Delhi District Court
Vinesh Thakur vs . Gaurav Yadav Cc No. 18409/17 Page No. 1 ... on 5 March, 2020
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-024966-2017
CC No. 18409/2017
Vinesh Thakur
S/o Narsingh Pal
R/o. B-137, Street No. 12,
Nasirpur Colony, Palam,
New Delhi-110045 ............ Complainant
Versus
Gaurav Yadav
S/o. Sh. Kanhaiya Lal
B-14/A, Gali No.5, Rajapuri,
New Delhi-110059 ............. Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 01.09.2017
(4) Date of conclusion of arguments: 25.02.2020
(5) Date of Final Order : 05.03.2020
(6) Final Order : Convicted
Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 1 of 12
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that he and the accused are having friendly relationship and are well known to each other since last few years. It is alleged that the complainant advanced friendly loan of an amount of Rs. 1,40,000/- in cash to the accused on 28.10.2016 and accused promised to repay the same within a period of six months. It is alleged that on 05.05.2017, the accused in discharge of his loan liability issued one cheque of Rs. 1,40,000/-, i.e. cheque in question bearing no. 000006 dated 10.06.2017, drawn on Bank of India, Dwarka Sector-7 Branch, New Delhi to complainant towards repayment of loan, with an assurance of its encashment. The complainant presented the cheque in his account maintained at The Nainital Bank Limited, Branch Pappan Kalan, New Delhi, which was returned with the remarks "Account closed" vide bank return memo dated 10.07.2017. Thereafter, complainant served a legal notice dated 21.07.2017 upon the accused through his counsel demanding the said amount.
Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/G. He reiterated the contents of complaint and placed on record, copy of aadhar card of complainant as Ex. CW1/A, original cheque of Rs.1,40,000/- i.e. cheque in question bearing no. 000006 dated 10.06.2017 drawn on Bank of India, Sector-7, Dwarka, New Delhi as Ex. CW-1/B, cheque returning memo dated Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 2 of 12 10.07.2017 as Ex. CW-1/C, legal demand notice dated 21.07.2017 as Ex. CW- 1/D, receipt of speed post as Ex. CW-1/E (colly), tracking report alongwith Certificate U/s. 65B of Indian Evidence Act, 1872 as Ex. CW1/E-1 (Colly) and complaint as Ex.CW-1/F.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 29.04.2019 to which he pleaded not guilty and claimed trial. He admitted his signatures on the cheques in question, however denied filling in any of the remaining details. He stated that he had availed only loan of Rs. 30,000/- from complainant in October 2016. He gave cheque in question as blank signed security cheque to complainant. Complainant had also kept his bike as security. He had repaid about Rs. 7000/- or Rs. 8000/- in cash to the complainant. The said blank signed cheque had been misused by the complainant. He denied receipt of legal notice.
5. The accused moved an oral prayer to cross-examine the complainant witnesses which was allowed vide order dated 29.04.2019. However, thereafter despite grant of several opportunities to cross examine the complainant, accused failed to avail the same. Vide order dated 12.09.2019, right of accused to cross examine the complainant was closed vide court order. Vide separate statement of complainant, the evidence of complainant was closed.
6. The statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused reiterated the stand taken by him in answer to notice U/s 251 Cr.P.C. He stated that he had repaid Rs. 10,000/- to complainant in cash as the interest amount.
7. Thereafter, accused moved an application u/s. 311 CrPC for recalling the complainant for cross examination. Vide order dated 16.10.2019, the application was allowed subject to fine and costs and accused was granted one single opportunity to cross examine the complainant on the next date of hearing.
Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 3 of 12 However, accused did not appear on the next date of hearing i.e. 22.11.2019 and also did not pay the cost and fine and thus, vide order of even date, the right of accused to cross-examine the complainant U/s. 311 Cr.P.C was also closed. Thereafter, accused appeared on next date of hearing i.e. 08.01.2020 and was granted one last and final opportunity for leading defence evidence on the next date of hearing. However, on next date of hearing i.e. 10.02.2020, accused moved another application U/s. 311 Cr.P.C for recalling the complainant for cross- examination. However, considering the above conduct of accused and on merits, the application was dismissed vide detailed order dated 10.02.2020.
8. Vide order dated 10.02.2020, it was also noted that same was the last and final opportunity granted to accused to lead defence evidence. However, accused again stated that as of now, there is no witness to be summoned on his behalf. Thus, considering the above conduct of accused and failure to avail the numerous opportunities for leading evidence, right of accused to lead defence evidence was also closed vide order dated 10.02.2020.
9. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheque in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. He argued that accused never gave reply to the legal demand notice. He also argued that the accused did not produce any document regarding alleged repayment made to the complainant. He also argued that accused never filed a complaint against the complainant for misuse of cheques in question. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 4 of 12
10. Per contra, ld. Counsel for accused reiterated the version of accused in answer to the notice U/s. 251 Cr.P.C and in the statement U/s. 313 Cr.P.C. He argued that accused had taken only Rs. 30,000/- from complainant and also repaid Rs. 10,000/- to him. The blank signed security cheque taken at the time of grant of loan was misused by the complainant. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
11. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
12. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
13. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 5 of 12 as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions 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, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour 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, of any debt or other liability".
14. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
15. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C and in his statement U/s 313 Cr.P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898, that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 6 of 12 Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
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 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. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
16. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him in discharge of liability, after he had advanced loan of Rs. 1,40,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
17. The principle defence taken by the accused as brought out from his statement U/s 313 Cr.P.C is that he had availed only loan of Rs. 30,000/- from complainant in October 2016. He gave cheque in question as blank signed security cheque to complainant. Complainant had also kept his bike as security. He had repaid about Rs. 10,000/- in cash to the complainant as interest amount. The said blank signed cheque had been misused by the complainant.
18. However, perusal of evidence shows that said version of accused is not Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 7 of 12 supported by any material on record. The accused did not lead any defence evidence in support of his version. He also did not place on record any receipt or document to show repayment of Rs. 10,000/- to the complainant. It is also not the case of the accused that he had filed any complaint against the complainant for wrongful retention or misuse of his cheque or given any notice to complainant for return of his cheque. In light of the above, the version of accused that he had taken a loan of Rs. 30,000/- only from complainant, out of which Rs.10,000/- has been repaid, is not credible, as the same is not supported by any evidence on record.
19. It is also pertinent to note that the accused did not lead any evidence in defence. The decision of Hon'ble High Court of Delhi in V.S.Yadav vs Reena, Crml. Appeal No. 1136/2010, date of decision 21.09.2010, can be referred to here, wherein it was held:
"It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281 Cr. P.C., that the cheques were issued as security, does not amount to proof."
The law laid down in above judgment is squarely applicable in present case. In present case also, the accused has not led any evidence in support of his version of security cheque. A simple bald averment of cheque being given as Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 8 of 12 security cheque which was misused after repayment, in notice under section 251 Cr.P.C and statement under section 313 Cr.P.C., in absence of any material to substantiate the same, either through cross-examination of complainant or defence evidence, is not sufficient to dislodge the statutory presumptions.
20. Regarding the averment that cheque was given as blank signed cheque which was misused by complainant even after certain repayment of loan, the same is also not a credible defence. Even if for the sake of argument, it is considered that the accused gave a blank signed cheque to the complainant, once accused has admitted his signatures on the cheque he cannot escape his liability on the ground that the particulars have not been filled in by him, or that signatures on cheque and the contents are filled in different writings and inks. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused can not dispute the contents of the cheque in question.
21. It is also pertinent to note that the testimony of complainant i.e. CW-1 regarding the loan transaction and issuance of cheque in question by the accused Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 9 of 12 towards discharge of loan liability, has gone unrebutted at trial as no cross examination of the complainant was conducted. Reliance in this regard can also be placed on decision of Hon'ble High Court of Delhi, in Sanjay Arora V. Monika Singh, Crl. Appeal No. 98/2017, dated 31.05.2017, wherein it was observed:
"Mere admission of the complainant that he was earning only Rs. 12,000 per month from small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under Section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
In the present case also the defence taken by the accused is that he had given the cheque in question to complainant as security for loan taken from him and had repaid some amount to complainant. However he has failed to produce any material in support of his plea of defence.
22. The accused has also denied receipt of legal demand notice under section 138 of the Act. However, it is worth noting that the address of the accused as mentioned in legal demand notice is the same as his address in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C and his bail bonds i.e. B-14/A, Gali No.5, Raja Puri, New Delhi. Furthermore, the tracking report of speed post of legal demand notice (Ex. CW1/E1 (colly)) shows item delivered "To: GAURAV YADAV B14/A". Moreover the accused has not brought on record any evidence to show that he was not residing at above address at time of legal notice. The above shows that legal notice was sent at correct address of accused. Once the legal notice is proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him. In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 10 of 12 have been served upon the accused. 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 but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
23. Moreover as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, If the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance.
24. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
25. Accordingly, the accused is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 11 of 12
26. Let the convict be heard on quantum of sentence.
27. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by MRIDUL MRIDUL GUPTA
GUPTA Date:
2020.03.05
15:29:06 +0530
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 05th MARCH, 2020 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Vinesh Thakur vs. Gaurav Yadav CC No. 18409/17 Page no. 12 of 12