Delhi District Court
Fincruise Credit Services Pvt Ltd. vs . Charu Das on 22 December, 2014
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IN THE COURT OF MS. NEETI SURI MISHRA : LD. METROPOLITAN
MAGISTRATE : SPECIAL COURT - 08 (NI ACT) : DWARKA : DELHI
IN THE MATTER OF :-
FINCRUISE CREDIT SERVICES PVT LTD. VS. CHARU DAS
Complaint Case No. : 1733/14/11
P.S. : Connaught Place
U/s. : 138 & 142 N.I. Act
J U D G M E N T
1. Name of the complainant : Fincruise Credit Services Pvt. Ltd.
(Through Authorised Representative) Having its Office at C36, LGF Gulmohar Park, New Delhi - 110049.
2. Name of the accused and address : Ms Charu Das 40/202, Chittaranjan Park, New Delhi.
Presently residing at S488, First Floor, G.KI, New Delhi 110048.
3. Offence complained of : U/s.138 N.I.Act
4. Plea of accused : Pleaded not guilty
5. Final Order : Acquitted
6. Date of Reserving the : 08.12.2014 Judgment
7. Date of Order : 22.12.2014 Date of Institution of case : 23.11.2011 Date of Decision of the case : 22.12.2014 C.C no. 1733/14 Fincruise Credit Services Pvt. Ltd. vs. Charu Das 1 of 7 2 JUDGMENT BRIEF REASONS FOR THE DECISION
1. Signature on the cheque in question bearing no. 104876, is admitted by the accused. Mandatory Presumptions under Section 118(a) and Section 139 NI Act shape up in favour of the complainant, pursuant thereto. It is settled law that these presumptions can be rebutted by the accused on a scale of preponderance of probabilities either by leading his defence evidence or by punching holes in the story of the complainant. Hon'ble Supreme Court in Rangappa v. Shri Mohan, (2010) 11 SCC 441, observed that:
"Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
2. Complainant on the other hand is obligated to prove the accused's guilt beyond reasonable doubt, as the well-designed presumptions functioning in support of the complainant are not in conflict with the presumption of innocence of the accused. No presumption obviates the necessity to prove guilt of accused beyond all reasonable doubt. The Hon'ble Supreme Court in Hiten P. Dalal v. Bratindranath Banerjee, (Decided on 11 July, 2001), observed that:
"Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt."
C.C no. 1733/14 Fincruise Credit Services Pvt. Ltd. vs. Charu Das 2 of 7 3
3. Though the presumptions exist in favour of the complainant, yet the court needs to examine whether the essential ingredients of the offence have been firmly established by the complainant. They are as follows:
a) a person has drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
b) the cheque has been issued for the discharge, in whole or part, of any debt or other liability.
c) the 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;
d) the cheque shall be 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;
e) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
f) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
4. In light of the ingredients, the first aspect requiring the court's consideration is the extent of liability of the accused on the date on which the cheque was drawn, there being a presumption that the cheque is drawn on the date mentioned on the cheque. Section 138 NI Act requires that the cheque must be issued for the discharge of an existing debt or liability. To prove liability of the accused, the C.C no. 1733/14 Fincruise Credit Services Pvt. Ltd. vs. Charu Das 3 of 7 4 complainant has produced Ex. CW1/4, cheque in question and Ex. CW1/9, the Statement of Account duly supported with the Section 65B Evidence Act, Certificate, hence the same being admissible in evidence. The accused on the other hand, denies her liability of the cheque amount. Now, a bare perusal of the statement of account, categorically reveals the lumpsum debt (including principal, interest, bounce charges outstanding, bounce charges service tax) due to be paid by the accused as on 21/04/2014, but surprisingly, it literally fails to reveal how on 20/09/2011 that is the date on which the presumption says the cheque was drawn, the liability of the accused for Rs.3,82,944/- (the cheque amount) was calculated by the erstwhile complainant, which made the accused issue a cheque in its favour for the said amount. It is pertinent to mention that in order to fix the monetary liability of an accused, in a case where the complainant is a financial institution, what bare minimum is expected from the complainant is to atleast give a detailed account of how the liability of a person has been computed/ reached on the date on which the complainant says the cheque was drawn by the accused. It is strange, how without knowing his/ her liability towards another person, can the accused issue a cheque for a particular amount. Even in his cross-examination, CW1 AR for the complainant deposed that he had no knowledge of the rate of interest that was charged from the accused and also how the outstanding of Rs.3,63,482/- (as the principal outstanding mentioned in the Statement of Account) had been calculated. Thus even CW1 AR showed his inability to explain how the liability of accused as on 20/09/2011 was calculated. Mere submission of proof of the amount sanctioned and the amount repaid by the accused, is not enough to fix liability of a person. What needs to be shown is the exact, precise and clear-cut liability of a person reckoned on a particular date, in the absence of which it would be hard to hold a person liable. In this regard, I would like to refer to the judgment of the Hon'ble Madras High Court in M. Vairavan v. T.M Selvaraj Crl A No. 352 of 2009, that:
"In the instant case, the appellant/ complainant is only an individual, therefore it cannot be said that non-production of his account books would affect the case under Section 138 C.C no. 1733/14 Fincruise Credit Services Pvt. Ltd. vs. Charu Das 4 of 7 5 NI Act, though the same is relevant in a case relating to financial companies and other institutions having books of account. The decision of this court in Murugan Financiers v. P. V. Perumal reported in 2005 Crl L.J. 269 ended in acquittal on account of non production of books of accounts, sought for by the accused therein has no relevancy in this case."
This being the most fundamental ingredient of Section 138 NI Act, must have been fulfilled. Further, in the evidence affidavit filed on behalf of the complainant, it is stated that pursuant to the defaults of installments by the accused, the erstwhile complainant recalled the entire loan, for which Ex. CW 1/11 Legal Notice for recall of loan dated 20/08/2011 was sent to the accused. Ex. CW 1/11 Legal Notice for recall of loan, is neither an office copy nor a photocopy of the notice. It is basically a computer print-out of the scanned notice. It being not proved in accordance with law is inadmissible in evidence, hence is discarded. In light of the above-mentioned discussion, I am of the opinion that the complainant has failed to prove the guilt of the accused beyond reasonable doubt as presumptions in favour of the complainant have been sufficiently rebutted by the accused.
5. In her Statement recorded under Section 313 Cr.P.C., the accused disputed the amount of loan borrowed by her from the complainant, but she has failed to lead any evidence to prove her stand, hence the contention stands rejected at the inception.
6. She has further disputed the receipt of the Legal Demand Notice dated 29/09/2011. The settled position of law in this regard is that since the accused has not disputed the correctness of her address, she cannot dispute the receiving of legal demand notice. There is sufficient material on record to raise a deemed C.C no. 1733/14 Fincruise Credit Services Pvt. Ltd. vs. Charu Das 5 of 7 6 presumption of service of legal demand notice in terms of Section 27 of the General Clauses Act. A three judges bench of the Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555 has held that:-
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
Thus the contention of the accused does not hold water and is hence rejected.
7. The decisions of the Hon'ble Superior Courts relied upon by the Ld. Counsel for the complainant are of V.S. Yadav v. Reena, (Decided on 21st September, 2010), I.C.D.S. Ltd v. Beena Shabeer & Anr., (Decided on 12th August, 2002), General Auto Sales v. Vijaylakshmi, (Decided on 4th August, 2004), Kamruddin Ali v. Citi Financial & Ors., (Decided on 23rd May, 2012). These decisions are inapplicable to the present case as they primarily emphasize on the point of a cheque being given as a security cheque and starkly differ in their facts with the facts of the present case.
In view of the above-said discussion on the first aspect, regarding the extent of liability of the accused, this court is of the opinion that the complainant has failed to C.C no. 1733/14 Fincruise Credit Services Pvt. Ltd. vs. Charu Das 6 of 7 7 prove the guilt of the accused beyond reasonable doubt. It is settled law that the accused is required to rebut the presumption raised in favour of the complainant merely by preponderance of probabilities. Accordingly, in my opinion, the accused has raised sufficient doubt in the mind of the court as to her liability towards the complainant.
8. Hence the accused is acquitted in the facts of the present case for the offence under Section 138 Negotiable Instruments Act, 1881.
9. A copy of this order be placed on the official website of the District Courts.
ANNOUNCED IN OPEN COURT ON 22nd day of DECEMBER, 2014 (NEETI SURI MISHRA) METROPOLITAN MAGISTRATE SPECIAL COURT NO.08, NI ACT DWARKA, NEW DELHI Total Pages 7 C.C no. 1733/14 Fincruise Credit Services Pvt. Ltd. vs. Charu Das 7 of 7