Delhi District Court
Shri Bal Ram Makkar vs Smt. Saroj Kumari on 1 March, 2012
CC No.408/09/04
IN THE COURT OF SH. D.K.JANGALA:
ADDL. RENT CONTROLLER: NORTHWEST:ROHINI: DELHI
CC No.408/2009/04
U/S 138 N I Act.
Shri Bal Ram Makkar
S/o late Shri Ram Ditta Mal,
R/O 23A/1B, First Floor,
Tilak Nagar, New Delhi ....... Complainant
Versus
Smt. Saroj Kumari
W/o Shri Inderjeet Singh,
R/O H.No.220, Gali No.6, Kankarwali,
Bhudhpur Road, Yadav Nagar,
Rewari123401, Haryana. .......... Accused
Date of Institution: 27.01.2004
Date of final arguments: 18.02.2012
Date of Decision: 01.03.2012
JUDGMENT
1. The complainant filed the present complaint case against the accused for commission of the offence punishable U/S 138 of Negotiable Instrument Act (hereinafter referred as N I Act). It is submitted by the complainant that the accused was introduced to the complainant by Shri Arjun Dass Makkar in the year 1997. It is stated that Shri Arjun Dass Balram Makkar Vs. Saroj Kumari Page 1 of 20 CC No.408/09/04 Makkar is a cousin brother of the complainant had good family relations with the accused in the year 1997. It is stated that accused is running business of manufacturing of Leather Chappal at Rewari, Haryana under the name and style of M/s Pawar Leather Shoes Co. and in order to run business smoothly accused had taken loan from the complainant so many times on interest and repaid the same along with interest to the complainant.
2. It is stated that accused has developed good relations with the complainant during last 45 years, therefore, in the month of May 2002 the accused had approached the complainant and requested for a loan of Rs.1 lakh. It is stated that keeping in view the good relations complainant paid Rs.1 lakh in cash to the accused in the month of May and June 2002 on monthly interest of 2%. It is stated that accused acknowledged the loan amount and issued two post dated cheques bearing No.573714 daed 15.7.2003 for Rs.50,000/ and cheque bearing No.953304 dated 17.8.2003 for Rs.50,000/ both drawn on Punjab National Bank, Rewari.
3. It is stated that in the month of July 2003 the accused requested the complainant not to present the cheques on due dates because accused is having some financial problems. It is stated that the complainant believed the words of accused and did not present the cheques on due dates. It is Balram Makkar Vs. Saroj Kumari Page 2 of 20 CC No.408/09/04 stated that both the cheques were presented by the complainant within the validity period of cheque with his banker i.e. Canara Bank, Ganesh Nagar, New Delhi. However, the cheque bearing No.953304 had been returned for the reasons "Signature incomplete" and the cheque bearing No.573714 had been returned for the reason "Account Closed/transferred to Protested Category" vide their cheques returning memos dated 15.12.2003. It is stated that the banker of the complainant debited Rs.326/ in the account of the complainant vide debit advice dated 20.12.2003.
4. It is stated that complainant sent a legal notice dated 24.12.2003 u/s 138 of N.I Act through his counsel by registered AD & U.P.C. It is stated that the notice was served upon the accused on or before 27.12.2003 and the accused sent a false reply dated 05.01.2004 through her advocate. It is stated that accused has failed to make the payment despite service of legal demand notice, therefore, accused may kindly be punished for the offence punishable u/s 138 of N.I. Act.
5. The complainant led pre summoning evidence, and the accused was summoned to face the trial. The notice under Section 251 CrPC for commission of the offence punishable U/s 138 of N I Act was served upon the accused on 14.11.2006 to which she pleaded not guilty and claimed trial.
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6. The complainant examined himself as CW1 and filed his evidence by way of affidavit. The complainant proved the dishonoured cheques as Ex.CW1/1 and Ex.CW1/2. The cheque returning memos dated 15.12.2003 are proved as Ex.CW1/3 and Ex.CW1/4. The debit advice of the bank is proved as Ex.CW1/5. The legal demand notice along with postal receipts are proved as Ex.PW1/6 to Ex.CW1/9. The passbook of saving account of Smt. Vidya Makkar wife of complainant is proved as Ex.CW1/10.
During cross examination CW1 admitted that except accused he had given the loan to other persons also but he is not able to told their names. It is stated that he cannot tell their names and the amount given. It is denied that he was introduced to Shri S.K. Gulati, Advocate by one Shri Arjun Dass Makkar. It is admitted that Shri Arjun Dass Makkar accompanied him in the Court and sitting in the Court on the day of cross examination. It is admitted that Shri Arjun Dass Makkar has attended the court occasionally with him. It is stated that in the year 1997 he was introduced by Shri Arjun Dass Makkar to the accused Sarjoj Kumari. It is stated that Shri Arjun Dass Makkar is a C.A by profession. It is stated that he has mentioned in his affidavit but he cannot give the details of specific amount and date when he advanced the loan to accused prior to transaction of the present case. It is stated that he has not shown the said Balram Makkar Vs. Saroj Kumari Page 4 of 20 CC No.408/09/04 loan amount in his incometax return and he do not maintain any account. It is also admitted that he has also not shown the loan amount in his incometax return. It is stated that the cheques were given as guarantee to the loan amount.
7. It is stated that loan was advanced by the accused for a period of one year and the date were put on the cheque as per the convenience for the repayment of the loan amount by the accused. It is stated that there was no witness when the loan was advanced to the accused. It is stated that Shri Arjun Dass Makkar was aware regarding the present transaction with the accused. It is stated that prior to entry A to E in the statement of account Ex.CW1/10 of Smt. Vidhya Makkar he has deposited a sum of Rs.1 lakh in her account and withdrawn the said loan amount from the account of his wife through Self Cheque. It is denied that the entry shown in the statement of account of his wife Ex.CW1/10 does not pertain to the loan amount of accused and the same pertains to other transaction and has been falsely created with a view to create false evidence. It is stated that the accused never paid any interest to him towards the loan amount. It is stated that accused has told him that she will also pay interest with the loan amount. It is stated that he do not know who wrote the date, name and amount on the cheque in question. It is denied that the cheques were Balram Makkar Vs. Saroj Kumari Page 5 of 20 CC No.408/09/04 in the hand writing of complainant or Shri Arjun Dass Makkar.
CW1 deposed that he cannot say whether Shri Rattan Lal, deceased father of Shri Arjun Dass Makkar had close relations with the accused in the year 1997. It is stated that he do not aware if his uncle Shri Rattan Lal was member of a society Saroj Kamal Udhyog in Riwari in which he was President and member. It is stated that he do not know if late Shri Rattan Lal had taken away 10/12 cheques from the cheque book of accused and Saroj Kamal Udhyog which were duly signed by the accused in and around July 1998. It is stated that he is not aware if his brother Shri Arjun Dass Makkar had filed a case u/s 138 of N.I. Act at one point of time. It is admitted that his brother Shri Arjun Dass Makkar has engaged Shri S.K. Gulati in his cases. It is admitted that the present case has been filed by Shri S.K. Gulati, Advocate.
CW1 denied that cheque in question was stolen by late Shri Rattan Lal. It is denied that when the earlier complaint of Shri Arjun Dass Makkar was withdrawn as compromised and Shri Arjun Dass Makkar had stated that he does not have any other cheque in his possession and therefore, he gave these two cheques in question to him to file a proxy complaint on his behalf.
Balram Makkar Vs. Saroj Kumari Page 6 of 20 CC No.408/09/04 CW1 deposed that he cannot give the details/nature of incomplete signature of accused on one of the cheques. It is stated that he is not aware whether the cheque No.953304 pertains to Saroj Komal Udhyog.
CW1 also deposed that these cheques do not bear the name and signature of authorized signatory of Saroj Komal Udhyog. He further deposed that he is not aware whether those cheques were having the stamp of Saroj Komal Udhog. He denied that the present case is filed in connivance with Shri Arjun Dass Makkar.
8. The complainant examined another witness CW2 Shri Gurkirath Singh, Sr. Manager, PNB Rewari, Haryana. CW2 produced the statement of account No.3818 and 716. The copy of the same are proved as Ex.CW2/1 and Ex.CW2/2. CW2 deposed that on 15.12.2003 in account No.3818 the credit balance was Rs.265/. Later on the account No.3818 was inoperative as Zero Balance. The accounts of Saroj Komal Udhyog and Saroj Kanal Grain Mandi is one and the same having same address. He further deposed that in account No.CC.716 there was no CC Limit of Rs.4 lac. The account had utilized the same and on 15.12.2003 there was no debit balance.
9. The statement of accused was recorded under Section 313 CrPC whereby the accused denied the story of the complainant. The accused Balram Makkar Vs. Saroj Kumari Page 7 of 20 CC No.408/09/04 had admitted her signatures on both the cheques. It is stated that she has not given the cheques to the complainant because she did not know him. It is stated that in the year 1997 two cheque books were missing and both cheques pertains to the said cheque books and she lodged the complaint with the bank. The accused has denied taking of the loan of Rs.1 lakh from the complainant.
10. The accused led the defence evidence. The accused in her evidence has deposed that complainant is the cousin brother of Shri Arjun Dass Makkar who is the son of late Shri Rattan Lal. She deposed that that in the year 1997 when she was running a small scale industry of manufacturing shoes, Shri Rattan Lal approached her to start the business at a higher scale. Thereafter a society called Saroj Komal Udhyog was formed in 1997 and late Shri Rattan Lal became its member/President. She also deposed that late Shri Rattan Lal and his son Shri Arjun Dass Makkar became very friendly and were having visiting terms. She also deposed that late Shri Rattan Lal came to her house and tore some cheques from cheque book belonging to her and of Saroj Komal Udhyog. She further deposed that the said blank cheques were bearing her signatures and those cheques were kept only for the purpose which could be used in emergency in her absence by her children for business Balram Makkar Vs. Saroj Kumari Page 8 of 20 CC No.408/09/04 purpose. She also deposed that the complaint of theft of those cheques were immediately lodged to the concerned bank and instructions were also given for stop payment on 15/18.7.1998. She deposed that in December 2001 she received the legal notice of the complaint filed on the basis of cheque No.573720 by Shri Arjun Dass Makkar, cousin brother of the complainant.
11. She further deposed that being a lady separated from her husband has to support two sons and look after the business, therefore, fearing the harassment she compromised with Shri Arjun Dass Makkar in the said complaint and the same was disposed off as compromised on 25.02.2003. The certified copy of the said order dated 25.02.2003 is proved as Ex.AW1/2. She deposed that in the said compromise Shri Arjun Dass Makkar has cleverly made a statement that he does not possess any other cheque without giving details of the cheque numbers which had been stolen by his father Shri Rattan Lal and which were in his possession. She deposed that after extracting Rs.42,000/ from her by filing a false and frivolous complaint, the greed of Shri Arjun Dass Makkar did not satisfy and he handed over cheques to the present complainant and the present complaint is a proxy complaint at the behest of Shri Arjun Dass Makkar. She deposed that Shri Arjun Dass Makkar has been accompanying to the Balram Makkar Vs. Saroj Kumari Page 9 of 20 CC No.408/09/04 Court on most of the dates and the complaint has been filed by same advocate. She further deposed that she never met the complainant and had never introduced to him. She deposed that she had never taken any loan from the complainant. She also deposed that she has not written the name of the payee or the date of the cheque or the amount of the cheque She further deposed that any cheque from the account of Saroj Komal Udhyog had to bear her signatures as well as of the treasurer of the society. She also deposed that the said resolution bear the signatures of Shri Rattan Lal, as President. She also proved the reply dated 5.1.2004 as Ex.AW1/3.
During cross examination AW1 stated that she is doing her business for the last 20 years. It is admitted that cheque No.953304 was pertaining to Saroj Komal Udhyog which was a cooperative society. It is admitted that the signature of two authorised persons of the society were to be appended on the said cheques and cheque No.953304 bear only her signatures. It is also admitted by her that no instructions for stop payment were made regarding cheque No.953304 because the account was already closed. She also admitted that she know Shri Arjun Dass Makkar. She specifically denied that she took the loan amount of Rs.1 lakh from the complainant.
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12. I have carefully perused the record and gone through the submissions of both the parties. It is submitted by Ld. counsel for the complainant that the complainant has proved all the necessary ingredients for commission of an offence punishable u/s 138 of N.I. Act, therefore, the accused is liable to be convicted. It is stated that accused is a habitual offender of law because earlier also a case u/s 138 of N.I. Act was filed against her. It is stated that accused has already been convicted for the theft of electricity for which a case is going on.
13. On the other hand it is submitted by counsel for accused that the complainant has failed to prove his case beyond reasonable doubt. It is stated that the present complaint filed by the complainant is a proxy complaint at the behest of Shri Arjun Dass Makkar because Shri Arjun Dass Makkar in an earlier matter which was compromised between Shri Arjun Dass Makkar and accused had made a statement that he has no other cheques with him. It is stated that Shri Arjun Dass Makkar was not able to use the cheques which were stolen by his father Shri Rattan Lal, therefore, he used the present complainant as proxy complainant and filed the false and frivolous complaint. It is prayed that accused may kindly be acquitted and the complaint be dismissed. Ld. counsel for accused has relied upon the following judgments:
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CC No.408/09/04
(i) "Krishna Janardhan Bhat Vs. Duttatraya G. Hegde, JT. 2008 (1) SC 485"
(ii) "K. Prakashan Vs. PK. Surenderan, 2008(1) SCC 258"
(iii) "John K. John Vs. Tom Varghese & Anr., A.I.R. 2008 SC 278"
(iv) "M.S. Narayana Menon Vs. State of Kerala & Anr.
A.I.R. 2006 SC 3366"
(v) "N. Chirag Travels (P) Ltd. Vs. Ashwani Kumar & Anr.
IV(2008) BC 379"
(vi) "Sanjay Mishra Vs. Kanishka Kapoor & Anr.
2009 Crl. L.J. 3777"
(vii) "Kumar Exports Vs. Sharma Carpets, 2009 (2) SCC 513"
14. The necessary provisions of Section 138 of N.I. Act are reproduced herein.
Section 138: 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, 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 the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment [a term which may Balram Makkar Vs. Saroj Kumari Page 12 of 20 CC No.408/09/04 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 "(a) 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,
(b) 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
(c) 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.
Explanation: For the purpose of this Section, "debt or other liability"
means a legally enforceable debt or other liability."
15. It is stated by the complainant that cheque bearing No.953304 was dishonoured due to the reason "Incomplete Signatures". The accused took a defence that the said cheque in dispute was issued from the account of Saroj Komal Udhyog and as per the resolution of the said firm the signatures of two authorized persons were necessary to honour the cheque. The complainant has nowhere stated that the present cheque in Balram Makkar Vs. Saroj Kumari Page 13 of 20 CC No.408/09/04 dispute was dishonoured due to the reason "Insufficient Fund" or any other reason mentioned u/s 138 of N.I. Act. The dishonour of the cheque due to the reason "Incomplete Signatures" does not comes within the definition as given u/s 138 of N.I. Act. The dishonour of the cheque on the ground that one of the signature of the authorized signatory are missing does not give rise to file a complaint u/s 138 of N.I. Act. Therefore, the complaint filed by the complainant on the basis of cheque No.953304 is not maintainable as the same is not covered under the provisions of Section 138 of N.I. Act.
16. It is stated by the complainant that cheque bearing No.573714 dated 15.7.2003 for a sum of Rs.50,000/ issued by the accused was dishonoured due to the reason "Account Closed/Transferred to Protested Category" vide cheque returning memos dated 15.12.2003. The accused took the defence that the cheques in dispute were not issued by her. The accused took the defence that cheque in dispute was misused by the complainant in connivance with one Shri Arjun Dass Makkar. The accused stated that Shri Arjun Dass Makkar has misused the cheques stolen from the accused and in a court proceedings Shri Arjun Dass Makkar gave a statement that he has no other cheques in his possession, therefore, to come out from his own statement Shri Arjun Dass Makkar has filed the present complaint through proxy complainant.
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17. The complainant examined himself as CW1 and proved the dishonoured cheques and its returning memos. The complainant has admitted that Shri Arjun Dass Makkar is accompanying him in the court proceedings and also attended the court with him. It is also admitted that Shri Arjun Dass Makkar introduced the accused to the complainant. It is stated that Shri Arjun Dass Makkar is a C.A by profession. It is also admitted that Shri Arjun Dass Makkar is a cousin brother of the complainant.
18. The complainant has filed the statement of account of his wife Ex.CW1/10 but the complainant has failed to examine her wife on record to prove that the amount was withdrawn from her account for the purpose of giving the loan to the accused. It is also relevant to note that as per the statement of account Ex.CW1/10 a sum of Rs.50,000/ was deposited on 23.5.2002, thereafter a sum of Rs.49,500/ was deposited on 23.5.2002 itself. Thereafter the amount of Rs.30,000/ was withdrawn on 27.5.2002, Rs.20,000/ was withdrawn on 28.5.2002 and Rs.25,000/ was withdrawn on 01.6.2002, a sum of Rs.10,000/ was withdrawn on 10.6.2002, a sum of Rs.15,000/ was withdrawn on 15.9.2002. The complainant has failed to explain the reason of deposit of the amount for such a small period where he had to advance the loan in cash to the accused. It is beyond the Balram Makkar Vs. Saroj Kumari Page 15 of 20 CC No.408/09/04 conduct of a common prudent man to deposit the amount in the account of his wife just to withdraw the same amount to give the same in cash. Had this been transaction by way of cheque, the same could have led corroboration to the testimony of the complainant, but here the case of the complainant is that the loan amount was given in cash. Therefore, the complainant has failed to explain the reason for deposit of amount for such a short period in his bank account. Even this discrepancy gives credence to the defence taken by the accused that these entry have been created just to corroborate the false story of the complainant regarding payment of loan transaction. Further the complainant has failed to examine or produce his wife for examination who was the best witness to give the details of deposit and withdrawal of the amount from her account. It is stated by the complainant that this amount was deposited by him and withdrawn by him, but it is admitted case of the complainant that the account was of Smt. Vidaya Makkar, wife of the complainant, therefore, the account can be opened only under the signatures of her wife and the complainant himself could not have withdrawn any amount. Therefore, in these circumstances it is not safe to rely upon the submission of the complainant regarding consideration of the cheque amount.
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19. Ld. Counsel for the complainant has stated that since the cheque in dispute is on record, therefore, there is a presumption u/s 139 of N.I. Act in favour of the complainant and against the accused regarding existence of valid consideration amount of the cheque amount. Ld. Counsel for the accused has stated that the presumption u/s 139 of N.I. Act is a rebutable presumption and the accused by leading the positive evidence and showing the contradictions in the testimony of the complainant has been able to rebut the presumption. It is a well settled law that to rebut a presumption u/s 139 of N.I. Act the accused has to prove his case based on the principles of preponderance of probability. The accused is not under duty to prove his defence beyond reasonable doubt. On this issue I have relied upon. "V.D. Jhingan Vs. State of Uttar Pradesh, AIR 1966 SC 1762" wherein it was held:
"...... It is wellestablished that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt......"
I have also placed reliance on another judgment passed by three Judge Bench titled as "Kali Ram Vs. State of Himachal Pradesh (1973)2 SCC 806: AIR 1973 SC 2773" wherein it has been held:
".......One of the cardinal principles which had Balram Makkar Vs. Saroj Kumari Page 17 of 20 CC No.408/09/04 always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."Balram Makkar Vs. Saroj Kumari Page 18 of 20
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20. In the present case the accused has come in the witness box and deposed on oath that cheque was without consideration. The accused also stood the test of cross examination and even during her cross examination the accused stated that the cheque was without consideration. The complainant during his cross examination has admitted that Shri Arjun Dass Makkar was his brother. It is also admitted that Shri Arjun Dass Makkar is regularly appearing in the Court along with complainant which shows some interest of Shri Arjun Dass Makkar in the present complaint. The accused has proved on record the earlier complaint case filed by Shri Arjun Dass Makkar and his statement recorded therein where he has stated that he has no other cheques in his possession. This statement of Shri Arjun Dass Makkar itself gives credence to the defence taken by the accused, because this statement itself indicates that the present accused was having apprehension of possession of some other cheques by Shri Arjun Dass Makkar. Shri Arjun Dass Makkar is the cousin brother of the complainant and his regular appearance in the Court is also raising doubt upon the story of the complainant and giving weightage to the defence of the accused that the present case is filed as a proxy by the complainant for Shri Arjun Dass Makkar.
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21. The falsity of the complaint is also reflected from one statement of the complainant. The complainant during his cross examination has staed that he is not aware about the complaint case filed by Shri Arjun Dass Makkar u/s 138 of N.I. Act against the accused. However, in reply to another question the complainant admitted that Shri S.K. Gulati was the counsel engaged by Shri Arjun Dass Makkar in his complaint u/s 138 of N.I. Act. These contradictions in the testimony of the complaint itself shows that the complainant was concealing the truth and was not deposing truthfully.
22. In view of above discussions, I am of the considered opinion that complainant has failed to prove his case beyond reasonable doubt for commission of an offence punishable u/s 138 of N.I. Act against the accused. The accused is able to prove her defence based on the principles of preponderance of probabilities. Therefore, in the present facts and circumstances while giving benefit of doubt, the accused Smt. Saroj Kumari is acquitted for the commission of an offence punishable u/s 138 of N.I. Act. Personal bond and surety bonds cancelled. Surety discharged. File be consigned to Record Room.
Announced in the open court ( Devender Kr. Jangala) on 01.03.2012 Addl. Rent Controller: Rohini Balram Makkar Vs. Saroj Kumari Page 20 of 20 CC No.408/09/04 Balram Makkar Vs. Saroj Kumari Page 21 of 20