Delhi District Court
Balvinder Kumar vs . Vijay Kumar on 7 August, 2018
IN THE COURT OF SHRI SUNIL GUPTA, M.M (CENTRAL): TIS HAZARI
COURTS, DELHI
CC No. : 516554/16
U/s : 138 N. I. Act
P.S : DBG Road
Balvinder Kumar Vs. Vijay Kumar
JUDGEMENT
1. Sl. No. of the case : 516554/16
2. Date of institution of the case : 03.03.2012
3. Name of complainant :Balvinder Kumar S/o Sh.
Raunak Ram, R/o 1314, Shivaji
Enclave, New Delhi
4. Name of accused, parentage
& address :Vijay Kumar S/o Sh. Thakur
Dass, R/o H.No. 258, 3rd Floor,
Rishi Nagar, Rani Bagh, Delhi
5. Offence complained of
or proved : 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : Convicted
8. Date of which order was
reserved : 27.07.2018
9. Date of pronouncement :07.08.2018
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BRIEF REASONS FOR THE DECISION OF THE CASE
1. Briefly stated the facts as per the complaint are that the complainant and accused were known to each other. Accordingly, on 10.12.2011 the complainant offered to sell the old gold ornament as the complainant required the money. As such the accused alongwith his wfie Smt. Rajni Kapoor and brother Sh. Ashok Kumar visited the house of the complainant on 16.12.2011 to purchase old gold ornaments, the details of which is given below:-
(i) One set weighing 150 gms. (ii) Four Karas weighing 170 gms. (iii) Six sets ladies weighing 260 gms. (iv) Eight pendal sets weighing 122 gms. (v) Two Sikhi Kares weighing 170 gms. (vi) Four Chains (Gents) weighing 160 gms. (vii) 5 rings (Gents) weighing 70 gms. (viii) 6 Ringsd (Ladies) weighing 42 gms. (ix) Bajuband (Ladies) weighing 48 gms.
Total weighing 1222.200 grams after necessary deduction gold comes to 1100 gms.
The accused agreed to purchase the said ornaments @ 27700/- per ten grams for a total sum of Rs.30,47,000/- on 16.12.2011. In discharge of his part liability being the amount of sale consideration of Rs.30,47,000/-, on 16.12.2011 the accused issued the following post dated cheques drawn on HDFC Bank Ayodhya Chow, Sector-7, Rohini Dehi payable at par in favour of the complainant:-
S.No. Cheque No. Date Amount CC No. 516554/16 2 /8 Balvinder Kumar Vs. Vijay Kumar 1. 001618 09.01.2012 Rs.1,50,000/- 2. 001619 06.01.2012 Rs.1,50,000/- 3. 001620 04.01.2012 Rs.1,50,000/- 4. 001621 07.01.2012 Rs.1,50,000/- 5. 001622 05.01.2012 Rs.1,50,000/- 6. 001623 11.01.2012 Rs.2,00,000/- 7. 001624 10.01.2012 Rs.2,00,000/-
On 27.12.2011 further in order to discharge his aforesaid liability, he issued the following post dated cheques drawn on UCO Bank, Karol Bagh, New Dlehi payable at par in favour of the complainant:-
S.No. Cheque No. Date Amount
1. 297326 12.01.2012 Rs.3 lacs
2. 297327 13.01.2012 Rs.3 lacs
3. 297328 14.01.2012 Rs.3 lacs
4. 297329 16.01.2012 Rs.3 lacs
5. 297330 17.01.2012 Rs.3 lacs
6. 297331 18.01.2012 Rs.3 lacs
The accused has also entered into an agreement and
acknowledged his liability of Rs.30,47,000/- in the presence of witnesses and issued the aforesaid cheques with the assurance that the same would be honoured and the complainant believed the versions of the accused being close relative and accepted the same. However, the complainant out of aforesaid cheques presented three cheques bearing no. 001618 dated CC No. 516554/16 3 /8 Balvinder Kumar Vs. Vijay Kumar 09.01.2012 for Rs.1.5 lacs, No. 111619 dated 06.01.2012 for Rs.1.5 lacs and 001620 dated 04.01.2012 Rs.1.5 lacs for a total sum of Rs.4,50,000/- drawn on HDFC Bank, Ayodhya Chowk, Sector-7, Rohini, Delhi to the banker of accused through his banker Syndicate Bank, Ajmal Khan Road, Karol Bagh, New Delhi which were returned back by the banker of the accused with the remarks "Funds Insufficient" vide cheque returning memo dated 14.01.2012 which has been received by the complainant from his banker on 15.01.2012. The complainant informed the accused regarding dishonouring of cheques and requested him for payment of the dishonoured cheques but the accused with a view to usurp the said money of the complainant, avoided the complainant and tried to sneak-off from his liability, which the accused is legally bound to obey. The accused failed and neglected to make payment against the dishonored cheques, the complainant served the accused with legal demand notice dated 31.01.2012 through his counsel under speed post A.D. on 31.01.2012 and 02.02.2012 on the correct address of the accused which was duly served upon the accused but despite that no payment was made. So, present case was filed under Section 138 Negotiable Instruments Act.
2. On the basis of pre-summoning evidence, accused was summoned for the offence u/s 138 Negotiable Instrument Act vide order dated 03.03.2012. Accused put his appearance through counsel on 05.12.2012. Notice under Section 251 Cr.P.C was framed against him on 23.10.2013 to which he pleaded not guilty and he claimed trial. No application u/s 145(2) NI Act was moved by the accused, so, the matter was fixed for DE vide order dated 14.07.2014. No defence witness was examined so DE was closed vide order dated 23.03.2018 of this Court.
CC No. 516554/16 4 /8 Balvinder Kumar Vs. Vijay Kumar
3. Arguments heard.
Now Section 138 Negotiable Instrument Act provides as under :-
Dishonour of cheque for insufficiency, etc., of funds in the account- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, or 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [ a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this Section shall apply unless--
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, 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; and
iii) the drawer of such cheque fails 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.
So the perusal of the Section shows that complainant has to prove following things in order to prove his case :-
i) the cheque was drawn by the accused for payment of due amount to the complainant;
ii) the amount was due on the part of the accused for discharge of any legally enforceable debt or other liability;
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iii) the cheque was returned dishonoured;
iv) the legal notice was given to the accused within stipulated period;
v) even after the receipt of the legal notice, the accused chose not to make the payment.
Complainant has submitted that he has satisfied and proved all the ingredients of the offence under Section 138 Negotiable Instrument Act. He has further submitted that presumptions under Section 118 & 139 Negotiable Instrument Act are also there and in view of the aforesaid presumptions, the case of the complainant has been proved. The presumptions mentioned above are as under :-
Section 118 Negotiable Instrument Act- Presumption as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made :-
a) of consideration-- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
b) as to date-- that every negotiable instrument bearing a date was made or drawn on such date;
c) as to time of acceptance--that every accepted bill of exhange was accepted within a reasonable time after its date and before its maturity;..........
Section 139 Negotiable Instrument Act- Presumption in favor of holder.-- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability.
CC No. 516554/16 6 /8 Balvinder Kumar Vs. Vijay Kumar Complainant has also filed written arguments. It has been argued on behalf of complainant that the signatures on the cheque in question and receipt of statutory legal notice is not disputed by the accused. It has also been submitted that neither the complainant was cross-examined nor any defence witness has been examined by him. So the case of the complainant remains unrebutted. He has prayed for conviction of the accused.
No arguments were addressed on behalf of the accused despite grant of opportunity for this purpose.
It is to be seen that the cheques in question i.e. cheque bearing no. 001618 dated 09.01.2012 for Rs.1.5 lacs, No. 111619 dated 06.01.2012 for Rs.1.5 lacs and 001620 dated 04.01.2012 Rs.1.5 lacs are admittedly bearing the signature of accused Vijay Kumar. Although, he has denied the receipt of legal notice in his reply to the notice u/s 251 Cr.P.C. dated 23.10.2013, however, it is to be seen that the legal notice was sent to him by way of speed post and A.D. Acknowledgment cards (Ex.CW1/9 and Ex.CW1/10) bearing signature as proof of receiving are on record. It is not the case of the accused that the address as mentioned on the acknowledgement cards is not pertaining to him. He has simply denied having received any notice without leading any evidence to this effect which is not sufficient to doubt the service of legal notice on him.
Accused stated in his reply to the notice u/s 251 Cr.P.C. that cheques in question were given in blank as security he has only fill the name of the complainant and signed the same. He also stated that the cheques were issued for the repayment of monthly installments of goods worth Rs.2-3 lacs only. Complainant alongwith 4-5 persons from Tilak Nagar (Sardarji) visited his house and forcibly took him in a Van.
CC No. 516554/16 7 /8 Balvinder Kumar Vs. Vijay Kumar Thereafter, his wife called the police at 100 number and after the intervention of police personnel, he was rescued. He also stated that complainant got signed some blank papers from him. He was not liable to pay anything as alleged in the complaint to the complainant.
Despite stating in detail his aforementioned defence, nothing was done by accused to prove the same. No steps were taken to cross examine the complainant despite several opportunities granted for this purpose. Also, not even a single witness was examined by him in his defence. In the absence of cross-examination of complainant and testimony of any witness in favour of accused, the defence so stated by the accused on 23.10.2013 cannot be taken as proved.
So, the case of the complainant remains unrebutted. Accordingly, considering the presumptions as existing in favour of the complainant (which remains unrebutted), accused Vijay Kumar stands convicted for the offence under section 138 NI Act.
Announced in the
open Court on 07.08.2018
(SUNIL GUPTA )
Digitally signed Metropolitan Magistrate
by SUNIL (Central-02), Tis Hazari, Delhi.
SUNIL GUPTA
Date:
GUPTA 2018.08.08
17:44:32
+0530
CC No. 516554/16 8 /8 Balvinder Kumar Vs. Vijay Kumar