Delhi District Court
Cc No. 9149/16 Ashutosh Gupta vs . Ritu Malhotra on 17 March, 2021
1/9
IN THE COURT OF SHRI JAGMOHAN SINGH
A.C.M.M. (NORTH), ROHINI COURTS, NEW DELHI
CC NO: 9149 /16
Unique Case ID No: DLNT-02-000824-2016
Ashutosh Gupta,
Prop. M/s Sagar Travels,
B-14, First Floor, Commercial Complex,
Dr. Mukherjee Nagar, Delhi - 110009 ..............Complainant
Versus
Smt. Ritu Malhotra
W/o Sanjeev Malhotra @ Sanjay Malhotra,
R/o 4/60, 1st Floor, Roop Nagar,
Delhi-110007 .....................Accused
Offence Complained of or proved : Under section 138 of Negotiable
Instruments Act, 1881
Plea of the Accused : Pleaded not guilty
Date of filing : 13.05.2013
Date of Institution : : 18.05.2013
Date of reserving judgment/order : 17.03.2021
Final Order/Judgment : Convicted
Date of pronouncement : 17.03.2021
JUDGMENT
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
Brief facts
1. Vide this judgment, I shall dispose of the present complaint u/s 138 of the Negotiable Instruments Act, 1881 (in short, NI Act) filed by the complainant against the accused.
2. The case of the complainant is that on the request of husband of the accused CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 2/9 namely Sanjeev Malhotra @ Sanjay Malhotra, he arranged a sum of Rs.
6,00,000/- for him, out of which he made payment of Rs. 3,75,000/- to Bhupender and Rs. 2,00,000/- to Balwan on behalf of husband of the accused. In discharge of aforesaid liability of her husband, the accused issued a cheque bearing no 005559 dated 01.03.2013 for a sum of Rs 40,000/- drawn on United Bank of India, Timarpur Branch, New Delhi. The said cheque when lastly presented for realisation was received back dishonoured vide cheque return memo dated 19.03.2013 with the remarks "Funds Insufficient". Consequently, a legal notice dated 02.04.2013 was served by the complainant through his Counsel upon the accused through Registered A.D. post of the same date calling upon the accused to make the payment towards cheque amount in question within 15 days of receipt of notice. Despite service of the said notice, no payment against the above dishonoured cheque was made by the accused within the requisite period. Hence the present complaint.
Trial
3. The cognizance of offence under Section 138 of the Negotiable Instruments Act, 1881 was taken by this Court and accused was summoned vide order dated 30.07.2013. The accused appeared in Court and was admitted to bail. Thereafter, notice u/s 251 Cr.P.C explaining accusations against the accused u/s 138 of the NI Act was framed on 03.07.2014, to which she did not plead guilty and claimed trial. An application filed by the accused u/s 145(2) NI Act seeking to cross examine the complainant was allowed and CW1/complainant was cross examined. Thereafter, statement of accused was recorded on 15.09.2016 u/s 313 Cr.P.C. Thereafter, the accused examined Bhupender Singh as DW1.
4. Documents relied upon by the complainant are as follows:- (i) Ex. CW1/A:
original cheque bearing No. 005559 dated 01.03.2013 for a sum of Rs 40,000/-
CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 3/9 drawn on United Bank of India, Timarpur Branch, New Delhi; (ii) Ex. CW1/C:
Cheque return memos dated 02.03.2013; (iii) Ex.CW1/D : Copy of Legal Notice dated 02.04.2013; (v) CW1/E & F : Registered Post Receipt dated 02.04.2013 and duly signed A.D. Card respectively.
Relevant law
5. Before examining the evidence led by the parties, it is pertinent to refer to the relevant legal provisions. The offence under S. 138 N.I. Act is deemed to have been committed when any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to anothis person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank. To launch prosecution under the said section, the following requirements are to be fulfilled:- (i) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (ii) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (iii) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, it is only when all the ingredients and aforementioned requirements are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.
CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 4/9
6. Section 118 of the NI Act inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act also stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature.
7. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, 2009 A.I.R. (SC) 1518 that the accused may rebut these presumptions by leading direct evidence and in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
Appreciation of evidence in the light of settled legal propositions
8. I have heard both the Ld counsels and also gone through the record carefully. Ld. Counsel for the accused also relied upon Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (2008) 4 SCC 54 and M/s Shankar Finance & Investments Vs. State of Andhra Pradesh [Hon'ble Supreme Court, Crl. Appeal No. 1449/ 2003, decided on 26.06.2008] in support of her arguments.
9. The defence of the accused may now be examined. At the time of framing of notice, accused stated that the cheque in question was from the bank account in the name of the firm "Hill Tour". The accused took the defence that the signature on the cheque in question was not her and that she had not issued the cheque in question to the complainant. She further stated that the cheque book from which CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 5/9 the above cheque was written used to be kept in the office of the above firm "Hill Tour". Accused also denied having any liability towards the complainant. During her statement recorded u/s 313 Cr.P.C. also the accused reiterated substantially the same defence. She also denied receipt of legal notice.
10.As noted above, the defence of the accused is that she neither signed the cheque nor gave it to the complainant. The said defence, however, does not seem probable for many reasons. Firstly, the cheque in question was returned dishonoured with the remarks "Funds insufficient" which implies that signature of the accused written on the cheque in question were found in order and that it matched with her specimen signature available with her bank. Because, in case there was a difference in the signature, the cheque dishonour memo would have reflected that very reason for the dishonour, which is not the case. Secondly, the accused has not brought on record any document to show that she approached police or any other authority with the grievance that the cheque in question had been either stolen, lost or misused. Prudent behaviour also demanded that the accused would have issued stop payment instructions to her bank in such a case. However, the accused apparently did not do any such thing. In the above circumstances, the defence of the accused of the cheque in question being stolen or misused is liable to be rejected.
11.The accused also led evidence in her defence through DW1 Bhupender Singh. However, the testimony of the above witness rather than helping the accused, proves the case of the complainant himself to a large extent. DW1 stated that he knew the accused, the complainant and her husband Sanjeev Malhotra due to business relations. He further stated that husband of the accused had to pay him Rs. 4.25 lacs for which complainant approached him (i.e., the witness) as a mediator. Thereafter, the complainant paid a sum of Rs. 3.75 Lacs to him through CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 6/9 three cheques on behalf of husband of the accused, who was his debtor. This testimony clearly establishes that payment of Rs. 3.75 Lac was made by the complainant to the above witness on behalf of husband of the accused and, therefore, husband of the accused was under a legal liability to the complainant for the said sum. This is exactly the case of the complainant. DW1 also stated that complainant had told him that he was supposed to pay a sum of Rs. Two Lacs to the accused. This part of the testimony, however, is in the nature of hearsay evidence and is not admissible under the evidence act. Further, during his cross examination, this witness admitted that he did not know anything about the transaction between the complainant and the accused. In view of the above discussion, I hold that the testimony of the witness is not only of little avail to the accused, it rather establishes the case of the complainant.
12.It is also pertinent to observe at this stage that in case a person issues cheque on behalf of and towards discharge of a legally recoverable debt owed by another person, provision u/s 138 NI Act is attracted in case the said cheque is dishonoured. Reference in this regard may be made to the decision of Hon'ble Delhi High Court in Pratap Singh Yadav Vs. Atal Behari Pandey 2003 Crl. L. J. 705 and Shrikant Somani Vs. Sharad Gupta 2005 (V) AD (Delhi) 300.
13. In view of the above discussion, I hold that accused has failed to rebut presumption u/s 118 and 139 NI Act arising in favour of the complainant. It rather appears that the defence taken by the accused is only an afterthought to escape criminal liability in the present case.
14.Now coming to the authorities relied upon by Ld. Counsel for the accused on the point of legal liability. In Krishna Janardhan Bhat (supra) relied upon by the complainant, it was held that existence of legally recoverable debt was not a matter of presumption under Section 139 of the Act. However, in the matter of CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 7/9 "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441 which is a Full Bench Decision, Hon'ble Supreme Court of India partly overruled the decision in Krishna Janardhan Bhat (supra) and observed that the presumption mandated by Section 139 of the Act did indeed include the existence of a legally enforceable debt or liability. It was observed as follows;-
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant".
15.In view of the above decision, the authority of Krishna Janardhan Bhat (supra) is not of any help to the complainant, being an overruled decision The authority of M/s Shankar Finance & Investments (supra) prescribes the manner in which a complaint u/s 138 NI Act can be filed by a proprietor ship firm. However, the same is not relevant to the controversy at hand. Ld. Counsel for the accused has also cited decisions given by some Ld. Disctict Courts at Delhi. However, the same are not being dealt with as it is settled law that a Disctict Court is not a court of record and hence its decision does not carry any precedent value.
16. Ld. Counsel for the accused also argued that the complainant had not shown the relevant transaction in his Income Tax Return. However, I am refraining from CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 8/9 dealing with the said argument as no question or suggestion to this effect was put to the complainant during his cross examination.
17. It is also the defence of the accused that she did not receive legal demand notice, which may now be examined. In this regard, it is pertinent to refer to Section-27 of the General Clauses Act, 1897, which raises a presumption of service by post and reads as under:
" Meaning of service by post - Where any (Central Act) or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send"
or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
18.In C.C. Alavi Haji v. Palapetty Muhammed and Anr. (2007) 6 SCC 555 also it has been held by the Hon'ble Supreme Court that S. 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.
19.The legal notice dated 02.04.2013 (Ex. CW1/D) was sent to the accused through registered A.D. receipt (Exh. CW1/E) of the same date. The complainant has also filed on record duly signed Acknowledgement Card (Exh. CW1/F). In these circumstances, presumption u/s 27 General Clauses Act arose in favour of the complainant and the accused failed to rebut the same as she did not lead any evidence to the contrary.
Order
20. In view of the above analysis I hold that complainant has been able to prove his CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra 9/9 case against the accused beyond reasonable doubt. Accused Ritu Malhotra is accordingly, convicted of the offence u/s 138 NI Act. A copy of this judgment be given to the convict dasti and free of cost. Order on sentence shall be passed after hearing both the parties.
21.Bail bond of the accused already on record is extended till next date of hearing for the purpose of Section 437A Cr.P.C. in compliance of the judgment of the Hon'ble High Court in State Vs Virender Yadav & Anr. 2014 I A.D (Del.) 389.
Announced in open Court on (JAGMOHAN SINGH)
17th March, 2021 (9 pages) A.C.M.M. (North), Rohini Courts,
17.03.2021/Delhi
CC No. 9149/16 Ashutosh Gupta Vs. Ritu Malhotra