Delhi District Court
Kanta Kataria vs Jaimal Singh on 1 April, 2019
IN THE COURT OF MS ANJANI MAHAJAN METROPOLITAN
MAGISTRATE02 (SOUTH DISTRICT), SAKET COURTS COMPLEX,
NEW DELHI
KANTA KATARIA VS JAIMAL SINGH
CC No. 15/1/16
U/s : 138 NI ACT
P.S. : Malviya Nagar
Date of Institution : 30.05.2005
Date on which case reserved for Judgment : 27.03.2019
Date of judgment : 01.04.2019
JUDGMENT
1.CC No. of the case : 15/1/16
2.Date of the Commission : Between the year 20032005
of the offence
3.Name of the accused : Jaimal Singh,
: Sh. Balbir Singh,
: R/o 128, Katwaria Sarai,
: New Delhi.
4.Name of the complainant : Smt. Kanta Kataria,
: W/o Sh. Suresh Kataria,
: R/o H. No. M67,
: Saket,
: New Delhi.
5.Offence complained of : U/s 138 NI Act and Section 174A IPC.
6.Plea of accused : Pleaded not guilty
7.Final order : Accused is convicted U/s 138 NI Act
: (Accused was convicted on his plea of
: guilt for the offence U/s 174A IPC vide
: order dated 09.03.2018).
CC No. 15/1/16 Kanta Kataria Vs. Jaimal Singh. 1/10
BRIEF FACTS:
1. The complainant filed the present complaint against the accused namely Jaimal Singh making the allegations therein that the accused in discharge of his legal liability towards the complainant had issued one cheque no. 515948 dated 05.02.2005 amounting to Rs. 24,000/ drawn on Indian Bank, Mehrauli Institutional area, New Delhi in favour of complainant and when this cheque was presented in Punjab National Bank, Sarvodaya Enclave, New Delhi the same was returned dishonoured with the remarks 'Account Closed' and despite receipt of legal notice dated 16.04.2005 by the accused, accused did not pay the cheque amount to the complainant within stipulated period of 15 days of receipt of notice and hence the accused committed an offence punishable U/s 138 NI Act. 2 In presummoning evidence the affidavit of evidence was filed by the complainant and documents were exhibited as per the affidavit. Vide order dated 02.06.2005, the accused Jaimal Singh was summoned for the offence U/s 138 NI Act.
3. During the course of the proceedings, the accused was declared as absconder vide order dated 18.04.2012.
4. Charge for the offences u/s 138 NI Act and Section 174A IPC was framed against the accused on 23.01.2017. The accused pleaded not guilty and claimed trial.
5. It is pertinent to note at this juncture that the accused pleaded guilty for the offence U/s 174A IPC vide order dated 09.03.2018 and was sentenced to the period already undergone by him in judicial custody alongwith fine of Rs. 100/ which was paid by the accused.
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6. On 13.02.2018, accused moved an application U/s 145 (2) NI Act for cross examination of CW1/complainant Ms. Kanta Kataria and CW1 was cross examined in pursuance to the application being allowed. Thereafter post notice complainant's evidence was closed on 22.05.2018. The statement of accused (SA) was recorded on 21.06.2018 wherein he sought to lead defence evidence.
7. Accused examined Sh. Raj Kumar as DW1, Sh. Harnam Singh as DW2 and himself as DW3 U/s 315 Cr.PC in defence evidence. Defence Evidence (DE) was closed on 18.01.2019.
8. Final arguments were thereafter advanced by ld. counsel for complainant and ld. defence counsel.
9. Heard the arguments. Perused the record.
REASONS FOR DECISION:
10. The complainant Smt. Kanta Kataria/CW1 has reiterated the complaint's allegations on oath vide her affidavit of evidence which is treated as the examination in chief of the complainant.
11. The complainant's stand is that on 01.05.2003 the accused took a friendly loan from the complainant of Rs. 6 lakhs. The complainant averred in her affidavit of evidence that loan was given vide a cash order no. 162118 dated 01.05.2003 issued by Punjab National Bank, Sarvodaya Enclave, New Delhi and at the time of securing the loan the accused gave 35 post dated cheques from his account no. 17638 drawn on Indian Bank, Mehrauli Institutional Area which would include Principal and Interest. Out of the cheques, one cheque no. 515948 dated 05.02.2005 for the sum of Rs. 24,000/ was presented by the complainant with her banker Punjab National Bank Sarvodaya Enclave, New Delhi but same was returned dishonoured vide the return memo dated 28.03.2005 with the remark CC No. 15/1/16 Kanta Kataria Vs. Jaimal Singh. 3/10 'account closed'. The cheque no. 515948 issued by the accused in favour of the complainant /CW1 was proved as Ex. CW1/1 while the bank's return memo mentioning the remark 'account closed' dated 28.03.2005 was exhibited as Ex. CW1/2.
12. The legal notice dated 21.03.2005 issued within the stipulated time calling upon the accused to make the payment of the amount covered under the cheque was proved as Ex. CW1/3 while the postal receipt and acknowledgement card were exhibited as Ex. CW1/4 and Ex. CW1/5 respectively.
13. The accused did not deny receipt of the legal notice and rather in his crossexamination, the accused admitted receiving legal notices from the complainant demanding the amount due as alleged in the present case and also admitted that he did not send any reply to said legal notice. Thus despite service of the legal notice upon the accused he failed to repay the amount within fifteen days of receipt of the legal notice . The Bank's endorsement of 'account closed' vide the return memo Ex. CW1/2 attracts the punishment U/s 138 NI Act in view of the judgment of Hon'ble Supreme Court in 'NEPC Micon Ltd. Vs. Magma Leasing Ltd' AIR 1999 SC 1952 wherein it was observed as under: "...Hence when the cheque is returned by a bank with an endorsement a/c closed it would amount to returning the cheque unpaid because the amount of money standing to the credit of that account is insufficient to honour the cheque".
14. Pertinently, at the stage of framing of notice against the accused and in the application U/s 145 (2) NI Act filed by the accused, the accused did not specifically deny taking the loan from the complainant.
15. In the defence disclosed at the stage of framing of notice, the stand CC No. 15/1/16 Kanta Kataria Vs. Jaimal Singh. 4/10 taken by the accused was that the impugned cheque was a security cheque and he had already made the payment to the complainant by way of cash. In the application U/s 145(2) NI Act the accused improved upon this defence by averring that he paid Rs. 2,23,00/ in installments to the complainant upto January 2004 and in February 2004 a quarrel occurred between the accused and the complainant's husband Sh. Suresh and subsequently a compromise was arrived at in the police post Madangir wherein the husband of the complainant admitted receipt of the amount of Rs. 2,23,000/ in front of witnesses. The version in the application of the accused is that as per the compromise the accused agreed to pay Rs. 50,000/ on 20.03.2004 besides Rs. 6 lakhs and for the balance amount Rs. 24,000/ would be paid for 26 months and the full amount was paid to the husband of the complainant for which the complainant and her husband refused to issue receipts.
16. Thus, the issuance of the impugned cheque has not been denied by the accused, it is not his contention that the signatures thereon are not his or that they are forged. The only contention is that the cheques issued were security cheques and the full and final settlement amount stood repaid.
17. The accused having not denied taking the loan from the complainant vide his stand at the stage of framing of notice and in his application U/s 145 (2) NI Act and the issuance of the impugned cheque also not having been denied by him, the presumptions U/s 118 NI Act r/w Section 139 NI Act come into play. As per the same, the Court shall presume that the instrument was endorsed for consideration and that the holder of the cheque received the cheque for discharge in whole or part of any other liability. These statutory presumptions are rebuttable in nature and the burden shifts upon the accused to establish a cogent and CC No. 15/1/16 Kanta Kataria Vs. Jaimal Singh. 5/10 probable defence to rebut the presumption raised in favour of the complainant. It has to be seen whether the accused has been able to rebut these presumptions of law.
18. At this stage, it is worthwhile to note that the accused suddenly took a UTurn in defence evidence by deposing that he had taken an amount of Rs. 6 lakhs by way of draft from Sh. Suresh on 05.05.2003 @ 3% simple interest for one month who told the accused that he would get a loan of Rs. 6 lakhs arranged for him. He deposed in his crossexamination that he did not know the complainant.
19. Therefore, while initially the accused took the stand that he had taken the loan from the complainant and the cheques were security cheques, in defence evidence he took the plea for the first time that he had taken the amount of Rs. 6 lakhs from the husband of the complainant by way of draft @3% simple interest that too for getting a loan of Rs. 6 lakhs arranged for the accused. The accused did not even so much so as put a suggestion to this effect to the complainant/CW1 during her crossexamination. The contradictory and vacillating stands taken by the accused at different stages of the trial clearly show the sham nature of defence raised by the accused.
20. This is more so as the accused has not produced any documentary evidence in respect of his plea regarding draft having been issued by the husband of the complainant.
21. The accused and the defence witnesses Sh. Raj Kumar and Sh. Harnam relied on a document Mark DW1/A i.e. copy to copy document of a letter addressed to the Incharge police post Madangir. The original of this document was never produced by the accused and the accused admitted in his cross CC No. 15/1/16 Kanta Kataria Vs. Jaimal Singh. 6/10 examination that the document Mark DW1/A did not mention that the original thereof would remain/was in the possession of the complainant's husband. In absence of the original being proved to have been lost/misplaced/in the possession of the opposite party, no reliance can be placed on the photocopy document and Mark DW1/A has no legal value. Even otherwise, the accused admitted that said document did not bear the signatures of the complainant or the date and also that no receiving had been issued by the police on the aforesaid document Mark DW1/A thus does not advance the defence of the accused in any manner.
22. Now, the other document relied on by the accused i.e. Ex. DW1/X is the copy of the receipt stated to have been issued by the husband of the complainant bearing the signature of the defence witness Sh. Raj Kumar who identified his signatures thereon.
23. Interestingly, the accused or the defence witnesses did not depose that the document Ex. DW1/X bore the signature of the accused. Although the accused in his crossexamination denied the suggestion that the receipt Ex. DW1/X was not concerned with the present dispute or that it pertained to some other transaction between the complainant's husband and Sh. Raj Kumar, yet the accused has furnished no explanation as to why Ex. DW1/X does not even bear his own signatures let alone of the complainant to whom the amount of Rs. 40,000/ was allegedly being paid as installment by the accused Jaimal in pursuance to the amount of Rs. 6 lakhs owed to the complainant or even the complainant's husband as per the best defence of the accused. Documentary evidence has primacy over oral evidence and the oral evidence of the defence witnesses cannot be used to read terms into the document Ex. DW1/X where there exist none in the document itself. Hence Ex. DW1/X also does not aid the defence CC No. 15/1/16 Kanta Kataria Vs. Jaimal Singh. 7/10 of the accused.
24. The accused and the defence witnesses took the plea that no receipts were issued by the complainant's husband for the installment amount repaid by the accused but the accused failed to adduce documentary evidence regarding the cash amount installments that he purportedly repaid by way of showing his bank statement regarding withdrawal of amount etc.
25. Furthermore, it is not expected of a reasonable person of ordinary prudence to keep mum regarding the original cheques lying in the custody of the opposite party despite repayment of the entire loan amount; if indeed the entire amount as per the purported settlement or otherwise was repaid what prevented the accused from demanding in writing either by way of letter/notice/recourse to other legal remedies that the original cheques be returned in case of refusal of the complainant or her husband to return the cheques? The accused has not provided any cogent reason for his inaction in this regard. The accused did not even choose to file reply to the legal notice of the complainant which is a factor going against him. The accused has failed to show even prima facie that he repaid the amount in cash to the complainant.
26. It is true that the complainant initially deposed in evidence that the accused had filled in the cheques and signed them before handing them over to the complainant and then corrected herself to depose that the amount, date and name of the accused were written by her on the cheques in question while the accused had signed thereon. However, this does not cast any doubt over the complainant's case for the reasons that the signature on the cheque were not disputed by the accused and the accused could not rebut the various presumptions raised U/s 118 NI Act.
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27. The complainant maintained in her crossexamination that she made the payment to the accused from her bank account in Punjab National Bank Sarvodaya Enclave Branch and that the bank account was in her individual name. She also deposed that her father in law had sold a bus had handed over the sale consideration amount from which she gave the loan to the accused. A question was put to her by ld.defence counsel as to whether the sale consideration amount to her father in law by way of cash or cheque which was objected to by ld. Counsel for the complainant on the ground of relevance which was kept open to be decided at the stage of final arguments and upon perusal of the evidence, I am of the opinion that the factum of loan amount of Rs. 6 laks having been taken from the complainant being admitted by the accused vide his application U/s 145(2) NI Act and his plea at the stage of notice, the subsequent defence of the amount having been taken from the husband of the complainant not being even prima facie established by the accused, the aforesaid question put to the complainant in her crossexamination was indeed irrelevant.
28. Ld. Defence counsel raised the plea that the complainant was asked to produce the relevant Income Tax records in her crossexamination but she failed to do so. In fact, the record shows that after the crossexamination of the complainant was deferred for the purpose of producing the ITR and passbook of the relevant period, vide order dated 16.05.2018, the complainant/CW1 was tendered for crossexamination but was not crossexamined by the accused on the ground that his counsel had gone out of station. Thereafter the accused did not move any application U/s 311 Cr.P.C. seeking to recall the complainant for her remaining crossexamination. The accused thus cannot be allowed to take benefit of default on his own part in failing to conclude the crossexamination of the CC No. 15/1/16 Kanta Kataria Vs. Jaimal Singh. 9/10 complainant. Hence this argument of ld. Defence counsel is without merit.
29. The complainant has established through cogent evidence that the accused intentionally did not maintain sufficient amount in his account and closed the same without sufficient cause, leading to dishonour of the cheque issued by him towards discharge of legal liability owed to the complainant. The accused further failed to repay the cheque amount despite the legal notice issued to him. The accused has failed to raise a probable defence.
30. The complainant has proved her case against the accused beyond reasonable doubt and thus the accused Jaimal Singh is convicted for the offence U/s 138 NI Act.
31. Put up for argument on sentence on 04.04.2019.
Digitally signed by ANJANI ANJANI MAHAJAN
MAHAJAN Date:
2019.04.03
17:16:29 +0530
Announced in the Court (ANJANI MAHAJAN)
on 01.04.2019 MM02(SD)/01.04.2019
Certified that this judgment contains 10 pages and each page bears my signatures.
Digitally signed by ANJANI ANJANI
MAHAJAN
MAHAJAN Date: 2019.04.03
17:16:36 +0530
(ANJANI MAHAJAN)
MM02(SD)/01.04.2019
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