Delhi District Court
Has Been So Held In Rohitbhai Jivanlal ... vs State Of Gujarat & Anr 2019 Scc on 10 October, 2019
1
IN THE COURT OF SH GAURAV SHARMA.: MM : NI ACT-03 (CENTRAL) : TIS
HAZARI COURTS : DELHI.
CC No.514066/16
DATE OF INSTITUTION : 25.01.2011
DATE RESERVED FOR JUDGMENT : 18.09.2019
DATE OF JUDGMENT : 10.10.2019
IN THE MATTER OF:
Pramod Kumar Aggarwal
S/o Sh. Nanhey Mal,
TypeM10/C, Shalimar Apartment
Shalimar Housing Complex,
Shalimar Garden, Sahibabad,
Gaziabad, U.P
........Complainant
VERSUS
Rakesh Kumar,
S/o Sh. Gopal Chand Sharma
R/o 1620, III Floor, Front Side,
Udhampur, Near Shyam Lal College
Shahdara
Delhi110032.
...........Accused
JUDGMENT:
a) Srl. No. of the case & Date of institution : 2069/11 & 03.02.2011
b) Date of commission of offence : on the 15th day of service of legal demand notice
c) Name of the complainant : Pramod Kumar Aggarwal 2
d) Name of the accused : Rakesh Kumar
e) Nature of offence complained of : S. 138 NI Act
f) Plea of the accused person : Accused pleaded not guilty
h) Final Order : Convicted
i) Date of order : 10.10.2019 COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 JUDGMENT 10.10.2019
1. The Accused Rakesh Kumar is hereby Convicted for the offence u/s 138 of Negotiable Instruments Act, 1881.
2. Bereft of any cogent proof, the accused has not been able to rebut the presumptions raised against him. The accused was expected to offer much more than mere lip service as to his defence, entitling the complainant a decision in his favour.
Factual Scenario
3. The factual scenario of the present complaint filed U/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") is that Pramod Kumar Aggarwal, hereinafter referred to as the 'complainant', knew Rakesh Kumar, hereinafter referred to as the 'accused', since long and had friendly relations with him also, on account of which they used to help each other out in times of need, financially or otherwise. In the month of March 2010, the accused took a friendly loan of Rs 1,10,000/- (Rupees One Lakh Ten Thousand) from the complainant and subsequently, to repay the same issued the cheque bearing No. 422493 dated 13.06.2010 drawn on State Bank of India, Shahdara Branch, New Delhi - 110032, hereinafter referred to as the 'cheque in question', in favour of the complainant. Upon insistence of the accused to 3 not to present the said cheque in June 2010, it was ultimately deposited for encashment by the complainant in third week of November 2010 at his bank but the same was returned back dishonoured with remarks "Funds Insufficient". Even after informing the accused about the same, he did not pay any attention to it, subsequent to which, the complainant issued a legal notice dated 13.12.2010 through registered AD, UPC post and courier dated 13.07.2016 which was duly served upon the accused and replied back also. Despite the same, the accused has not paid the required amount and hence, the present case.
Proceedings Before Court
4. In the present complaint summons were issued against the accused, he entered appearance and notice of accusation was framed against him u/s 251 CrPC on 17.07.2012 to which the accused pleaded not guilty and claimed trial. In the defence recorded on the same date the accused stated that he did not even know the complainant and he did not know that how did the cheque in question came into his possession. He also added, that the same might have been given to the complainant by one of his employees Mr Gurpreet Singh. The accused admitted his signatures on the cheque though but denied having taken any loan from the complainant.
5. In support of his case the complainant examined himself as CW-1 and proved his affidavit in evidence as Ex.CW1/1; original cheque bearing No. 422493 dated 13.06.2010 drawn on State Bank of India, Shahdara Branch, New Delhi - 110032 Ex.CW1/A; Return Memo Dated 30.11.2010 as Ex.CW1/B; Legal Notice dated 13.12.2010 as Ex.CW1/C; Postal Receipts as Ex.CW1/D (Colly); AD Card of registered post Ex.CW1/E; Copy of reply of legal notice dated 07.01.2011 as Ex CW1/F. The complainant was duly cross-examined and thereafter complainant evidence was closed on 28.01.2016.
6. Statement of accused u/s 313 Cr.P.C. was recorded on 01.04.2016 wherein he essentially reiterated what he had earlier stated in his defence whilst framing of notice 4 u/s 251 CrPC.
7. The accused did not examine any witnesses in his defence and thereupon final arguments were led and concluded. The accused also filed written submissions and relied on several judgments, namely, Smt Nanda v Nandkishore (Bombay HC Cr Appeal No 467/2009), Shiv Dial Singh v Jitender Kumar & Anr 2016 (1) Civil Court Cases 150 (P&H), Devender Kumar v Khem Chand 2015 (4) Civil Court Cases 616 (DELHI), Rakesh Manocha v Rajinder Kumar CC No 1828/16 (judgment by Metropolitan Magistrate).
8. I have heard counsels for the parties, perused the record and gone through the relevant provisions of law.
Findings
9. At the outset it must be noted, that the accused all along took the proceedings of the court extremely casually. He was afforded opportunities as per law at every stage and he had nothing, but disregard to offer in return. The accused was evasive of the proceedings of this court initially and did not enter an appearance in pursuance of the summons, bailable warrants or even the non bailable warrants issued against him. Constrained with options, proceedings under section 82 CrPC were issued against him on 28.04.2012 upon which he appeared in court and notice u/s 251 CrPC was framed against him. Thereafter, an application u/s 145 (2) of the NI Act was moved by the accused after much delay, which was allowed and cross examination of the complainant was concluded. During all this period, the accused had been appearing intermittently only and at several occasions his presence was secured through non bailable warrants. Statement of the accused under Section 313 CrPC read with Section 281 CrPC was thereafter recorded and the matter was fixed for leading evidence in defence by the accused for 24.06.2016. Thereafter twice, opportunities were given to the accused to lead evidence but he did not. Cost was also imposed on him for noncompliance but that also did not make the accused mend his ways. Finally, on the day of third opportunity 5 given to the accused and after waiting for the accused to enter an appearance from morning till noon, the court closed his right to lead evidence in defence on 13.10.2016 and the matter was put up for final arguments. The accused thereafter also, was not regular in appearing in court, so much so, that when in pursuance of non bailable warrants issued against him, he did not appear, proceedings u/s 82 CrPC were issued for the second time against him and vide order dated 27.07.2018, he was declared an absconder. Such proceedings were subsequently dropped on his appearance. Interestingly thereafter, he participated in the proceedings of the court along with his counsel when final arguments were concluded and the matter was put up for order/judgment. After the trial was therefore effectively complete, two applications came to be filed by him, one u/s 311 Cr.PC. and another u/s 315 CrP.C.. Considering the extremely negligent attitude/conduct of the accused all through, both these applications were dismissed vide order dated 02.07.2019. Even after this, the accused sought time on one ground or the other to advance additional final arguments, thus protracting the proceedings even further. Having noted such recalcitrant conduct of the accused, one may proceed on the merits of the case as hereunder.
10. The constituent elements for an offence u/s 138 NI Act are well laid out, in the section itself as well as through various pronouncements of the superior courts. The Hon'ble Apex Court summed them up in a recent judgment, Himanshu v. B. Shivamurthy, (2019) 3 SCC 797 which can be summed up as below :
'The first condition is that the cheque ought to have 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. The second condition is that the payee or the holder in due course of the cheque, as the case may be, ought to make 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. The third condition is that the drawer of such a cheque should have failed to make 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. It is only upon the satisfaction of all the three conditions mentioned above and enumerated under the proviso to Section 138 as clauses (a), (b) and (c) 6 thereof that an offence under Section 138 can be said to have been committed by the person issuing the cheque.' (emphasis supplied) As can be seen, the law is fairly straightforward to comprehend with regards the ingredients of section 138 NI Act.
11. In the defence raised by the accused, it is admitted that the cheque in question bears his signatures. In such a scenario, a presumption shall be raised against him under Section 139 read with section 118 of the NI Act, that cheque was issued in discharge of a valid debt or liability. Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at page 432 noted at para 25 as follows :
'25. We having noticed the ratio laid down by this Court in the above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner :
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence.' (emphasis supplied)
12. Recently, in Bir Singh v Mukesh Kumar (2019) 4 SCC 197 also, the Hon'ble Apex Court has observed likewise in the following manner :7
"33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence"
(emphasis supplied)
13. In the present case under consideration also, it is clear that since at the time of framing of notice the accused admitted the issuance of the cheque in question and that is not disputed, hence, presumption U/s.139 r/w Section 118 of the NI Act is raised against him. Moreover, once presumptions u/s 118 and 139 NI Act are raised, it is thereafter upon the accused, to rebut them by adducing evidence. If upon preponderance of probabilities, the accused is able to do the same, onus once again shifts back on the complainant to prove its case beyond reasonable doubt. If the accused is unable to do so, the complainant is entitled for a decision in his favour.
14. In view of the above, the only way out left with the accused was to furnish evidence in support of his version of the story to rebut the presumptions raised against him. However, as has been held in Kishan Rao v. Shankargouda, (2018) 8 SCC 165, mere denial regarding existence of debt shall not serve any purpose for the same. Quoting Sharma Carpets case [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513], the Hon'ble Apex Court had held at para 20 therein :
'The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that 8 there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.' (emphasis supplied)
15. In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960 also, the Hon'ble Apex Court has stated in clear terms as to what kind of rebuttal evidence is required for the accused to negate the presumptions raised against him under the NI Act. It was opined that mere reasonable and probable explanation will not suffice. The same must be supported by proof. Relevant portion from para 24 of the said judgment may be reproduced herein :
' ........ In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted (AIR p. 580, para 12)' (emphasis supplied) 9
16. Considering the above, when the contentions raised by the accused as against those raised by the complainant are weighed under the facts and circumstances of the case, they don't appear to favour him. The accused has not led any evidence in his defence, i.e. neither has he examined himself nor any other witnesses on his behalf.
Agreed, that it is not necessary for the accused to step into the witness box to rebut the presumptions raised in favour of the complainant at all occasions, but nevertheless credible defence must be raised that can cast a doubt on the narrative of the complainant. Let's examine if the same was done or not by the accused on the touchstone of the ratio laid down in Kishan Rao (supra) and Hiten Dalal (supra) as noted above.
17. The consistent stand of the accused throughout the trial has been that he does not know the complainant at all. On the contrary, the complainant has averred in his complaint that both of them had relations of close friendship since long and they used to help each other financially or otherwise in hour of need also. With regards these opposing contentions, the cross examination of the complainant dated 31.03.2015 is instructive. Though the complainant therein admits of not knowing the names of the parents, wife or the children of the accused, however, he correctly states that the accused has two children and parents of the accused also live with him. Not knowing the names of the wife, parents or the children of the accused may well seem to be odd, but it does not, in the opinion of this court necessarily lead to the conclusion that the two persons are completely unknown. Further, the complainant has also stated in his cross examination that his and the accused's houses are 4-5 Kms apart and that they used to meet about 3-4 times a year. No suggestion/counter question was asked of the complainant on these aspects and hence, they remain unchallenged. In such a scenario, these questions and answers given to them by the complainant do not conclusively affirm the claim of the accused that he and the complainant were completely strangers and unknown.
18. Other than the above, the complainant also denied the suggestion put to him in his cross examination that the house property bearing no 1620, Third Floor, Uldhan Pur, 10 Navin Shahdara, Delhi was owned by the accused. On this also, no further contradictions were tried to be extracted out of the complainant, which suggests that his knowledge with regards this, was proper. This again goes on to negate the accused's version of not knowing the complainant altogether.
19. There are certain other important aspects of the cross examination of the complainant which must be noted here. The complainant was sought to be questioned on the aspect of his sources of funds and whether any loan agreement was executed or not while advancing money to the accused. The complainant denied of there being any loan agreement and also stated that there was no such loan given previously and he was not into any sort of money lending business. It was also stated by the complainant that the loan in question was given out of his cash funds and not after withdrawal from bank. None of the answers of the complainant on these issues urged by the accused seem to be unusual. For an amount of Rs 1,10,000/-, advancing loan by cash does not sound illogical or something that is not possible. Moreover, there is no necessity of there being an agreement for the same in law also. In fact, the complainant has stated that such a loan was given on the basis of past friendly relations between the parties, which seems to be a normal and acceptable proposition. Further, the complainant also stated that, though he does not remember, but can produce his ITR for the year 2009 to prove whether he had disclosed the transaction in question (the loan given) in his income tax returns. The said income tax return was not insisted upon by the accused to be produced either despite the complainant agreeing for production of the same, if required. This in fact goes onto show the bonafide of the complainant. Even after having noted all of this, it must be remembered that the line of questioning on the sources of funds of the complainant is not germane till such time when the accused has been successful in rebutting the presumptions already raised against him and not before. It has been so held in Rohitbhai Jivanlal Patel vs State of Gujarat & Anr 2019 SCC OnLine SC 389. Considering the same, it can be said that the complainant has faulted all remained incoherant during his cross examination.
1120. Further in his cross examination, the complainant expressed his inability of remembering the exact date, month and year when he visited the residence of the accused/met with the accused which also does not seem to be unnatural. Human memory is ingenious no doubt, but failing to remember exact dates and times cannot be cited as the reason by the accused to say that there was no loan given at all. That would be stretching it too far.
21. The complainant also stated in his cross examination that the cheque in question was handed over by the accused to him in his chamber. This fact also went undisputed and no question was asked to contradict the same, another point in favour of the version of the complainant that reinforces his case.
22. Lastly, the accused has all the way stated that one of his previous employees Gurpreet Singh may have handed over the present cheque in question to the complainant after having a fallout with him. The complainant denied the suggestion in this regard and stated that he doesn't know any such person. As for the accused also, nothing has been proved with regards this contention of his and therefore it remains a blank proposition only, unsupported by any sort of formal proof. As has been noted above, for an accused to rebut presumptions raised against him, either cogent proof has to be brought on record or such circumstances have to be shown which go on to probabalise his defence. Mere storytelling would not suffice. The defence should be such that when seen from a prudent man's perspective, it seems convincing in light of the evidence on record or the relevant circumstances of a case. In the present case however, the accused has not been able to do that. Recently, the Hon'ble Apex Court has also held that it is squarely the responsibility of the accused to show as to how the cheque in question came in possession of the complainant if it has to discharge its burden of proof. In M. ABBAS HAJI T.N. vs CHANNAKESHAVA (CRIMINAL APPEAL NO.664 OF 2012 decided on September 19, 2019), the accused had sought to take the defence that the complainant used to visit his office and during one such visit, he may have taken the cheque in dispute from there. This kind of argument was repelled by the Hon'ble Court and whilst dismissing the appeal of the accused, it held :
12"As far as the present case is concerned, in addition to three reasons, given by the High Court, we are of the view that the original appellant has not even explained how the leaves of the cheque entered into the hands of the complainant. It is urged that in cross examination of the complainant some suggestions were made that since the complainant was visiting the office of the original appellant, he had access to the same. The complainant had only admitted that he visited the office of the original appellant but he denied all the other suggestions. Thereafter, it was for the original appellant to prove his part of the case. The High Court, in our opinion, was right in holding the original appellant guilty under Section 138 of the Act. We see no reason to interfere in the appeal, which is accordingly dismissed."
(emphasis supplied) In the case at hand also, the accused has not been able to prove his contention that one of his ex-employees might have given the cheque in question to the complainant. Even he, did not seem to be absolutely sure about this. Moreover, with regards this employee also, sufficient details haven't been provided, say, his records of employment, his working details, for what period he was working with the accused, what type of work he was engaged in and other such details of a like manner. Simply stating that he was an employee and was terminated on account of his alcoholic behaviour, doesn't go on to dislodge the case of the complainant. If such contentions are accepted at face value, then it would be very easy for an accused to state whatever story he wishes, without adducing any supportive evidence to prove his defence. In the considered view of this court therefore, the accused has not been able to prove his line of defence in absence of any sort of clinching evidence.
23. None of the judgments relied upon by the accused come to his rescue either and all of them can be distinguished on the facts of the case. In Smt Nanda v Nandkishore (Bombay HC Cr Appeal No 467/2009), there was an admission by the complainant herself with regards her money lending activities and on that ground when it was found that since she did not have a proper license for the same, the case of the complainant was dismissed. In the present case, there is no such admission by the complainant. In, Shiv Dial Singh v Jitender Kumar & Anr 2016 (1) Civil Court Cases 150 (P&H), the accused himself produced convincing evidence in form of numerous documentary records to substantiate his defence apart from his general submissions. In the present 13 case however, nothing of that sort has been brought on record by the accused. In Devender Kumar v Khem Chand 2015 (4) Civil Court Cases 616 (DELHI), there was an agreement and a corresponding promissory note executed between the parties and based upon that and other evidence, benefit of doubt was given to the accused. There are no such documents available on record in the present case. Finally, in Rakesh Manocha v Rajinder Kumar CC No 1828/16 (judgment by Metropolitan Magistrate) also, there existed a promissory note as factum of transaction in question. The same is not the case before this court.
24. In view of the above discussion, this court finds that the accused has not been able to prove a probable defence in his favour and the has not been able to rebut the presumptions raised against him u/s 118/139 of the NI Act.
25. For the foregoing reasons therefore, the accused Rakesh Kumar is Convicted of the offence punishable u/s.138 of the Negotiable Instruments Act in respect of the cheque in question.
Digitally signedGAURAV by GAURAV SHARMA SHARMA Date: 2019.10.11 (Announced in open 23:06:51 +0530 Court on 10.10.2019) (Gaurav Sharma) MM/NI Act-03/Central 10.10.2019 Judge Code: DL00855