Delhi District Court
Ram Singh Meena vs Jeet Ram Meena on 18 July, 2022
IN THE COURT OF MS DIVYA ARORA, MM (NI ACT)-01,
SOUTH-WEST DISTRICT: NEW DELHI
CC No.20607-19
Under Section 138 of N.I. Act
In the matter of:
RAM SINGH MEENA
s/o Shri K R Meena,
R/o B-1/96, Bharat Vihar,
Kakrola
New Delhi. ... Complainant
Versus
JEET RAM MEENA
s/o Shri Kailash Chand Meena
Proprietor : JRM Enterprises,
R/o RZF-524/2, Street no.21B,
Sadh Nagar, Palam Colony
New Delhi - 110 045.
Also At :
Village Aundmeena
Tehsil Mahua, District Dausa,
Rajasthan - 322240 .... Accused
Date of Institution : 07.06.2019
Date of Judgment : 18.07.2022
RAM SINGH MEENA VS JEET RAM MEENA
CC NO.20607-19 Page no.1 of 14
JUDGMENT
1. Briefly, the case of the prosecution is that complainant and accused knew each other for the last five years. Later in the first week of January 2018, accused approached the complainant to arrange Rs.3 lacs as a friendly loan for his business purposes. Considering the urgency of accused, complainant made a part payment of Rs.1,20,000/- in 2nd week of January 2018 and promised to pay Rs.1,80,000/- in the month of February 2018. In February 2018, complainant provided Rs.1,80,000/- to accused due to accused's urgency. On receipt of said amount, accused promised to return the total amount of Rs.3 lacs in December 2018. Thereafter in July 2018, accused again approached the complainant for further loan of Rs.2 lacs. After much pursuasions, complainant gave Rs.2 lacs in cash to accused as a friendly loan. Accused assured that the entire loan of Rs. 5 lacs will be paid by December 2018. In December 2018, when complainant approached the accused for payment, he issued a PDC bearing no.369025 dated 04.04.2019 for Rs.5 lacs drawn on Axis Bank Palam, New Delhi and assured the complainant that the same would be honoured on its presentation. However, on presentation of the said Cheque, the same was returned dishonoured vide return memo dated 26.04.2019 with the remarks ''Drawers signatures differs''. Upon this, the complainant sent a legal demand notice to the accused dated 21.05.2019 and on failure of accused to pay the cheque amount within the mandatory period of 15 days, the complainant has moved this court with a complaint under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as "NI Act"). Original Cheque is Ex.CW1/1, RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.2 of 14 Affidavit dated 04.04.2019 is Ex.CW1/2, Return memo is Ex.CW1/3, Legal notice is Ex.CW1/4, Postal receipts are Ex.CW1/5 and Ex.CW1/6, Speed post and courier receipts is Ex.CW1/7, Tracking reports are Ex.CW1/8 Colly.
2. On finding of prima facie case against the accused, summons were issued and he appeard before thecourt on 20.08.2019.
3. The notice under section 251 of the Code of Criminal Procedure ("Cr.P.C.") was framed against the accused vide order dated 20.08.2019 to which he pleaded not guilty and stated that "The Cheque in question bears my signatures. The other particulars were not filled by me. I had taken a loan of Rs.2 lacs from the complainant in the year 2018 and I had issued the Cheque in question as a blank security Cheque alongwith two other Cheques, in respect of said loan. I had received the legal demand notice sent by the complainant. I have yet to repay the loan of Rs.2 lacs. I do not know how to read English".
4. The complainant adopted his pre-summoning evidence tendered by way of affidavit as his post-summoning evidence.
5. After framing of notice, ample opportunities were given to accused to file an application under Section 145(2) NI Act. Thereafter vide Order dated 13.12.2021, his right to move an application under Section 145(2) NI RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.3 of 14 Act was closed. Thereafter, the complainant evidence was closed and the matter was listed for statement of accused under Section 313 CrPC.
6. Statement of accused was recorded under Section 313 CrPC read with Section 281 Cr.P.C. on 24.03.2022 wherein all the incriminating circumstances appearing in evidence against the accused was put to him to which he stated that, "I am the proprietor of M/s JRM Enterprises. I have never taken any loan of Rs.3 lacs from the complainant. However, I have taken Rs.2 lacs from complainant, but the said amount was never taken as a loan. The Cheque in question bears my signatures. However, I did not fill any particulars on the Cheque in question. I have never executed an affidavit dated 04.12.2018 in favour of complainant. I did not receive any legal notice. However, the address mentioned on the legal notice is correct as I was residing there in 2019. I am willing to pay the amount with respect to Cheque in question in installments".
7. Accused led the defence evidence and examined Pankaj Arya as DW1 and himself as DW2. They were cross examined at length by Ld. Counsel for complainant. DE was closed vide Order dated 01.06.2022.
8. Thereafter, the Ld. Counsel for complainant and the accused were heard at length in the present case and the matter was reserved for Judgement.
RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.4 of 14
9. Before proceeding to the merits of the case, it is important to lay down the basic provision of law with respect to Section 138 NI Act which is as follows:- Section 138 of Negotiable Instruments Act, 1881 makes dishonour of cheques an offence. It provides that ''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, 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, 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 extend to twice the amount of the cheque, or with both''.
10. In order to ascertain whether the accused has committed on offence u/s 138 NI Act, the following ingredients constituting the offence have to be proved:-
(a) The drawer of the cheque should have issued the cheque for the discharge, in whole or in part of a legally enforceable debt or other liability.
(b) The cheque 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 RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.5 of 14 amount arranged to be paid from that account by an agreement made with that bank.
(c) The drawer of such cheque fails to make the payment of the said amount of money within fifteen days of the receipt of the notice from the payee or the holder in due course demanding the payment of the said amount of money.
It is only when all the above mentioned ingredients are satisfied that the person who has drawn the cheque can be set to have committed an offence u/s 138 NI Act.
11. It is important to recall Section 118 of the Indian Evidence Act 1872 and Section 139 of the N.I Act here. Section 118 (a) of the Act provides that until the contrary is proved, it shall be presumed that ''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''. Further, Section 139 of the Act lays down that ''it shall be presumed, unless the contrary is provided, 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, of any debt or other liability.
12. In the case of Hiten P. Dayal Vs Bratindranath Bannerjee (2001) G SCC 16, the Hon'ble Supreme Court of India had observed that ''Because both sections 138 and 139 CrPC required that the court shall presume the RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.6 of 14 liability of the drawer of the cheque for the amount for which the cheques are drawn as noted in State of Madras Vs A. Vaidhyanatha Iyer AIR 1958 SC 61, it is obligatory on the court that raise this presumption in every case where the factual basis for raising of the presumption has been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused''.
13. The core issue that arises for consideration whether the cheques in question were issued by the accused in discharge of his liability.
14. The accused has admitted his signatures on the cheque in question at all stages of trial. Therefore, giving rise to the presumption in favour of the holder of the cheque under S. 139 of NI Act. Thus, unless the contrary is proved, it shall be presumed that the complainant received the cheques in question in discharge of the debt/ liability from the accused. The standard of proof for rebuttal is on preponderance of probabilities. As held by the Hon'ble Supreme Court in decision cited as K.N. Beena vs Muniyappan AndAnother;(2001) 8 SCC 458, in order to rebut the presumption, mere denial by the accused will not suffice. The accused must prove by leading cogent evidence that there was no debt/liability.
15. Major defence led by accused is that the cheque in question were given to complainant as a security Cheque as he had taken a loan of Rs.2 lacs from the complainant in year 2018. He further raised the defence that loan of Rs.5 lacs was never taken from the complainant. In the present case, the RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.7 of 14 onus to prove that the accused has not issued the cheque in question in favour of the complainant, primarily lied on the accused. Section 103 of the Indian Evidence Act, 1872 enunciates that the person who asserts a fact must prove the same unless the law otherwise provides.
16. To prove his defence, accused examined Pankaj Arya and himself. There are contradictory version of DW1 and DW2 with regard to reason of loan being taken. DW2 has stated in his examination and cross examination that loan was taken for his father's treatment when he had a fracture in his foot. However, DW1 has stated that the loan of Rs.2 lacs was taken as accused's father suffered a paralysis attack. No medical documents has been filed to show the exact illness of accused's father. Contradictory statements of DW1 and DW2 and non filing of medical document does corroborates the story of complainant i.e. loan was taken for business purpose.
17. The witness i.e. DW1 brought on record by the accused has failed to corroborate his defence that the loan amount was only Rs.2 lacs and not Rs.5 lacs. Accused has failed to bring on record any document which shows that the loan amount was Rs.2 lacs and not Rs.5 lacs. Accused has taken different stances of various stages of trial. In his notice framing, he has admitted loan of Rs.2 lacs whereas at the stage of Statement of Accused recorded under Section 313 CrPC, he has even denied the amount of Rs.2 lacs being ever taken as loan. Different stances taken by accused only weakens his defence and does not help him in discharging his burden of proof on the scale of preponderance of probabilities.
RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.8 of 14
18. In case of Kumar Exports V. Sharma Carpets, it has been held by Hon'ble Supreme Court that: "The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that 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."
19. Another defence raised by accused is that Ex.CW1/2 was blank at the time of signing. Merely stating that the said affidavit was blank at the time of signing will not suffice in displacing the burden of proof resting upon him. No complaint has been filed by him with regard to misuse of blank signed document.
20. Further, accused has stated that cheque in question was given as a RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.9 of 14 security cheque. Before, evaluating the claim of the accused let us understand the position with regard to the security cheque as settled by Hon'ble Delhi High Court in Suresh Chand Goyal vs Amit Sighal; "The contention that the cheque was issued only as security is preposterous. The cheque whether issued for payment of debt or as security makes no distinction in law. The cheque is a negotiable instrument, it may be that sometimes the cheque is issued with a request on the part of the drawer to defer the presentation of the cheque for some time to enable the drawer to make payment by cash and take back the cheque or allow time to arrange funds for encashment of cheque. When the amount is not paid as per oral understanding the payee is well justified to present the cheque for encashment. The cheque even if it is issued as a security for payment, it is negotiable instrument and encashable security at the hands of payee. Therefore, merely because the drawer contends that it is issued as security is not a ground to exonerate the penal liability under Sec.138 of the NI Act". Therefore, the defence of the accused that cheque in question was issued as security cheque has no force.
21. Another argument raised by accused's counsel is that the complainant has not brought any document on record to prove the loan advancement. In view of law laid down by Hon'ble Apex Court in Rohitbhai J Patel vs The State Of Gujarat, criminal appeal no. 508/19 wherein it has been categorically held that the complainant need not prove the source of funds which were subsequently used for advancement of loan till the time accused has discharged his burden. In the present case accused has failed to discharge his initial burden of proof.
RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.10 of 14
22. Additionally, the accused has averred that he has only signed the impugned cheque and not filled the other particulars i.e., did not fill in the name of payee or date. The fact that the cheque with the signature of accused is in possession of the complainant with no plausible explanation coming from accused to show as to how it ended up with the complainant does not dilute the liability of the accused as the legal position on inchoate instruments is well settled. Further, inaction on the part of accused to take steps for stopping misuse or wrong encashment of his cheque by complainant suggests that he never took steps to procure back his alleged blank signed cheque. Section 20 of the NI Act provides that if a person signs and delivers a paper stamped in accordance with the loan and either wholly blank or have written thereon an incomplete negotiable instrument, such person thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp.
23. In Ravi Chopra v. State and others [2008 (102) DRJ 147], the Hon'ble High Court of Delhi has held that if a blank signed cheque is given then it is possible that the drawer has consented impliedly or expressly to filling up of the cheque by the payee on a later date.
24. Therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, and the failure of the accused to put forth any reasonable and believable defence, admission of the accused RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.11 of 14 that signature on the cheque in question belongs to him and fact that the accused has not proved his defence to cause the probabilities to lie in his favour, an element of section 138 NI Act stands assembled.
25. Accused has admitted to the receiving of legal notice at the stage of notice framed under Section 251 CrPC, However, has denied at the stage of Statement recorded under Section 313 CrPC and in his evidence. The address is admitted by accused to be his correct address. This court is of the view that the address on the legal notice once having been shown to be the correct address of accused and legal notice having been dispatched by registered AD, a presumption of due service arises in view of Section 27 of General Clause Act & Section 114 of Indian Evidence Act and now it is upon accused to prove that notice was not served upon him. Not even an iota of evidence has been brought on record by the accused to displace the presumption of due service. To the contrary, perusal of record shows that complainant has issued a legal demand notice to the accused and same was dispatched by way of speed post. Thus, a mere denial of the service of legal notice would not ipso fact rebut the presumption of due service.
Also in CC Alavi Haji Vs. Palapatti Mohammad (Crl.)767/2007 the Hon'ble Supreme Court of India held that "where the notice is sent by Registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of proviso to section 138 Act stands complied with." Further, the above judgment also stated 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 RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.12 of 14 the complaint u/s 138 NI Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons. In the present case, the accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused, thus implying the satisfaction of the fourth condition.
26. Another condition qua the presentation of the cheque within three months is concerned, the same is satisfied upon the perusal of the cheque in question Ex CW1/1 dated 04.04.2019 while the return memo Ex CW1/3 dated 26.04.2019 thus, being presented within the prescribed period of limitation of three months. The defence did not adduce any evidence whatsoever to contradict the same.
27. Another condition pertains to the cheque being returned unpaid owing to their being dishonored. Bank return memo or slip is prima facie proof of dishonor. Section 146 of the Negotiable Instruments Act, 188, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case of cheque is returned vide a return memo issued by the bank having thereon the official mark denoting that the cheque has been dishonored. Again, as the defence has failed to rebut the said presumption, hence the said condition is also satisfied.
28. The last condition is that accused fails to make the payment within fifteen days from the date of the receipt of the legal demand notice. In the present case, the accused has evidently failed to make the payment within RAM SINGH MEENA VS JEET RAM MEENA CC NO.20607-19 Page no.13 of 14 the fifteen days contending that he owes no legal liability to pay the amount mentioned in the cheque in question. The accused has miserably failed to prove that said assertion and thus, the last limb of what will entail the liability against the accused, is also structured.
29. In view of the forgoing discussion, the accused has miserably failed in probabilising his defence, even on the scale of preponderance of probabilities.
30. The complainant has with the aid of evidence led a presumption of legal liability under Section 118 read with Section 139 of N. I. Act and has successfully proved the basic ingredients of offence under section 138 N. I Act.
31. Resultantly, the accused JEET RAM MEENA stands convicted for the offence under Section 138 NI Act. Let the convict be heard separately on the quantum of sentence.
32. Let a signed copy of the Judgment be supplied to the accused, free of cost, and a copy of the same be placed on record.
Decided on 18.07.2022
Announced in open court. (DIVYA ARORA)
MM (NI Act)-01/SW/DWK
New Delhi
RAM SINGH MEENA VS JEET RAM MEENA
CC NO.20607-19 Page no.14 of 14