Delhi District Court
Complaint Titled As Satyavir Verma & ... vs . Pawan Aggarwal & Ors Is on 18 December, 2013
IN THE COURT OF SH. GAGANDEEP JINDAL,
METROPOLITAN MAGISTRATE (NI ACT)- 12, DWARKA COURTS,
NEW DELHI
Sushil Arora
Versus
Vinod Aggarwal
P.S : Dwarka North
U/s : 138 Negotiable Instruments Act
1. Serial No./CC No. of the case : 3462/12
2. Name of the complainant : Sushil Arora
S/o Late Sh. Mohan Lal,
WZ-443/C, Sadh Nagar,
Palam Colony,
New Delhi.
3. Date of Institution : 03.12.2010
4. Name of the accused, his : Vinod Aggarwal
parentage and residence RZ-200-B, Street No. 3,
Sadh Nagar, Palam Colony,
New Delhi-45.
Also at :-
RZ-93-B, Street No. 3, Sadh Nagar,
Palam Colony, New Delhi.
5. Date when judgment was : 06.12.2013
reserved
6. Date when judgment was : 18.12.2013
pronounced
7. Offence complained of and : Offence Under Section 138 of
proved Negotiable Instruments Act
8. Plea of accused : Accused pleaded not guilty and
claimed trial
CC No. 3462/12 Page 1 of 8
9. Final Judgment Convicted
-:J U D G M E N T:-
1. Vide this judgment, I shall decide the present complaint filed by the complainant Sushil Arora Under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I Act) against the accused Vinod Aggarwal.
2. In the present complaint, it is submitted that complainant and accused were having family/friendly relations. It is further submitted that accused approached the complainant and requested him to give a loan of Rs. 5,00,000/- for a period of one year. It is further submitted that complainant paid accused the loan amount of Rs. 5,00,000/- by cheque no. 715428 which was duly encashed by accused on 27.04.2009. It is further submitted that while receiving the amount of Rs. 5,00,000/-, the accused issued a post dated cheque bearing no. 788959 dated 30.03.2010 for a sum of Rs. 5,00,000/- drawn on Axis Bank Ltd., Palam Branch, New Delhi in favour of the complainant towards discharge of his liability. It is further submitted that when the said cheque was presented by complainant with its banker for encashment, same was returned unpaid by the Drawee Bank with the returning memo dated 23.09.2010 for the reason "Funds Insufficient". Thereafter, the complainant sent a Legal Demand Notice to the accused by courier calling the accused to make the payment of dishonoured cheque. It is further averred that accused refused to receive the same and failed to make the payment of cheque amount demanded through Legal Notice, thereby committing the offence Under Section 138 of N.I Act for the prosecution of which the present complaint has been filed.
3. After considering the material on record, the cognizance of the offence U/s 138 of N.I Act was taken and accused was summoned on 10.05.2011. The accused appeared in the court on 27.09.2011 and was admitted to bail.
CC No. 3462/12 Page 2 of 84. Notice U/s 251 Cr.P.C. was framed against the accused on 12.12.2011. At the time of framing of notice, the accused pleaded not guilty and claimed trial.
5. The complainant has examined himself as CW1. CW 1 has filed his evidence by way of affidavit Ex. CW1/I and relied upon the complaint Ex. CW1/H following documents : - (A) Original cheque in question is exhibited as Ex. CW1/A. (B) The cheque returning memo is exhibited as Ex. CW1/B and envelope of the same is exhibited as Ex. CW1/B1. (C) Office copy of the legal notice is exhibited as Ex. CW1/C. (D) Courier Receipts are exhibited as Ex. CW1/D and Ex. CW1/E. (E) The envelopes received back by the complainant showing the refusal are exhibited as Ex. CW1/F and Ex. CW1/G respectively. (F) Copy of ITR of the complainant for the assessment year 2011-2012 is exhibited as Ex. CW1/X. (G) Copy of ITR of the complainant for the assessment year 2008-2009 and 2009-2010 are marked as Mark A and Mark B respectively. CW 1 was discharged after cross-examination.
6. No other witness has been examined by the complainant and complainant evidence was concluded on 20.04.2013.
7. The accused was examined U/s 313 Cr.P.C. and all the incriminating evidence were put to the accused. In his statement the accused denied the fact of taking loan from the complainant and submitted that his brother namely Pawan Kumar had dealings with the complainant and his brother need some money for entry purpose. He further submitted that he had given the cheque in question to his brother Pawan Aggarwal who had given the same to the complainant in their dealings. The accused denied the receipt of legal demand notice but admitted that the given addresses are correct. The accused further submitted that he do not know the complainant and his brother had taken a sum of Rs. 5 lacs for entry purpose which his brother had refunded to the CC No. 3462/12 Page 3 of 8 complainant.
8. The accused has examined himself U/s 315 Cr.P.C as DW 1, Sh. Pradeep Kumar, EC No. 43524453, Ahlmad in the court of Sh. Pankaj Sharma, Ld. MM, Dwarka Courts, New Delhi as DW 2 and Sh. Pawan Kumar Aggarwal S/o Late Sh. Nem Chand as DW 3.
9. DW 2 has relied upon the following documents : - (A) Copy of complaint titled as Satyavir Verma & Ors. Vs. Pawan Aggarwal & Ors is exhibited as Ex. DW2/1. (B) Copy of the application U/s 156 (3) Cr.P.C is exhibited as Ex. DW2/2. (C) Copy of list of witnesses is exhibited as Ex. DW2/3. (D) Copy of complaint dated 06.07.2010 lodged with SHO PS Palam is exhibited as Ex. DW2/4. (E) Copy of complaint dated 31.07.2010 lodged with SHO PS Palam Village is exhibited as Ex. DW2/5. (F) Copy of cheques are exhibited as Ex. DW2/6. (G) Copy of passbook of Smt. Usha Rani is exhibited as DW2/7. (H) Copy of passbook of Sh. Sushil Arora is exhibited as DW2/8. (I) Copy of returning memos are exhibited as Ex. DW2/9 and Ex. DW2/10 respectively (J) Copy of vakalatnama dated 03.07.2012 is exhibited as Ex. DW2/11. (K) Copy of statement of Sushil Kumar Arora dated 05.09.2010 is exhibited as Ex. DW2/12. DW 2 was discharged after cross-examination.
10. No other witness has been examined by the accused and the defence evidence was closed vide order dated 11.09.2013.
11. Final Arguments on behalf of the accused heard. The complainant has filed written arguments.
12. Firstly, the Ld. Counsel for the accused has argued that the entrie transaction took place between the complainant and Pawan Aggarwal (Brother of the accused) and not with the accused. Ld. Counsel for the accused further argued that complainant never gave any loan to the accused and there is contradiction regarding the date of handing over of cheque in question to the CC No. 3462/12 Page 4 of 8 complainant because in the present case the complainant has stated that he obtained the cheque in question from the accused at the time of granting the loan to him in April, 2009 while in another complaint case U/s 200 Cr.P.C Ex. DW1/1 and his statement before the police official Ex. DW2/11, he stated that cheque in question was obtained from the accused in February, 2010.
13. Perusal of file reveals that complainant has alleged that he had given Rs. 5 lacs to the accused vide cheque bearing no. 715428. The accused in his statement U/s 315 Cr.P.C has admitted that the complainant gave a cheque of Rs. 5 lacs which was credited in his account on 28/29.04.2013. Moreover, this fact has also been proved by the document Ex. DW2/8 relied upon by the accused in his defence evidence which is photocopy of passbook of account of complainant which shows that on 27.04.2009 an amount of Rs. 5 lacs was credited in the account of Vinod Aggarwal i.e. accused vide cheque no. 715428.
From the above discussion, it is proved that the alleged transaction took place between complainant and accused and not with brother of accused. In view of presumption U/s 118 N.I Act, the contradiction in respect of date of handing over the cheque in question by the accused to the complainant has no adverse affect on the case of the complainant because the cheque in question bears the date 30.03.2010.
14. Ld. Counsel for the accused further argued that the complainant has suppressed the fact the cheque in question was presented by him for encashment on 24.07.2010 as per Ex. DW2/10 and the complainant has not issued any legal notice on the basis of returning memo Ex. DW2/10 rather he presented the cheque in question again just to file the present case and to extend the limitation period.
It is well settled principle of law that a person can present the cheque for encashment as many times as he wish during the validity of said cheque. On CC No. 3462/12 Page 5 of 8 this point, I find support from the decision of the Hon'ble Supreme Court of India in case titled as MSR Leathers Vs. S. Palaniappan 2012 (4) JCC (NI) 289. In the present case, the cheque in question bears the date 30.03.2010 which got dishonoured on 23.09.2010 vide returning memo Ex. CW1/B which was within the validity of period of cheque in question. In view of these circumstances, this argument of the Ld. Counsel for the accused holds no ground.
15. Ld. Counsel for the accused has also argued that brother of accused has returned the amount of Rs. 5 lacs to the complainant by withdrawing the same from his bank account. The accused has neither produce any bank statement of his brother's account nor examined any witness to prove the said fact. Moreover, if it is assumed that said amount has been withdrawn by the brother of the accused from his bank account, there is no evidence on record that the brother of accused has returned the amount of Rs. 5 lacs to the complainant Hence, accused failed to prove the alleged payment of Rs. 5 lacs to complainant.
16. Ld. Counsel for the accused has also argued that accused has not received the legal demand notice, therefore, the present case is not maintainable.
The Hon'ble Supreme Court of India in case titled as K Bhaskaran v. Sankaran Vaidhyan Balan & Ors. (1999) 7 Supreme Court Cases 5010 has held as follows :-
"No doubt Section 138 of the NI Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proved that, it was not really served and that he was not responsible for such non service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoidng the notice."CC No. 3462/12 Page 6 of 8
In the case of C.C. Alavi Haji v. Palapety Muhammed & Anr. 2007 (6) SCC 555, the Hon'ble Supreme Court of India has held as follows :-
"It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. 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 the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons form the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran case2 if the "giving of notice" in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
In view of the aforementioned judgment of K Bhaskaran v. Sankaran Vaidhyan Balan & Ors. and C.C. Alavi Haji v. Palapety Muhammed & Anr., an accused person cannot take benefit of his own wrong by avoiding the service of legal demand. In the instant case, Ld. Counsel for the accused has argued that accused has left Delhi alongwith his family members in year 2010 due to financial problem, therefore, no legal demand notice was received by him. If this argument of the Ld. Counsel for the accused is taken positively, then, it will defeat the entire purpose of object of the proviso of 138 N.I Act because in that case such type of debtors like accused can easily evade their liability U/s 138 N.I Act by leaving their address given to their creditors. Moreover, if the accused CC No. 3462/12 Page 7 of 8 genuinely wants to make the payment of cheque amount he could do so after receiving the summons from the court but this is not the case. Therefore, this defence is not available to accused.
17. Moreover, the complainant has sent the legal demand notice Ex. CW1/C to the accused at two addresses mentioned in Ex. CW1/C through Courier Receipts Ex. CW1/D and Ex. CW1/E which was received back by him vide envelopes Ex. CW1/F and Ex. CW1/G with the report "Party Refused". The accused in his statement U/s 313 Cr.P.C has admitted both the addresses as correct at which the legal demand notice was sent by the complainant. In view of the judgment in the case titled as "C.C. Alavi Haji v. Palapetty Muhammed Jain. J (2007) 6 SCC" & Section-27, General Clauses Act, it can be safely presumed that the legal demand notice Ex. CW1/C was served upon the accused.
Conclusion :-
18. Thus, in view of the above discussion, complainant has successfully proved on record that the cheque in question was given by the accused for valid consideration which when presented for encashment got dishonored due to reason "Funds Insufficient" and in view of presumption of of receipt of the legal demand notice, the accused has failed to make the payment of cheque amount within the stipulated period of time of 15 days and hence committed an offence under Sec.138 N.I. Act. Accordingly, the accused is convicted for the offence under Sec. 138 NI Act.
19. Be heard on Order on Sentence separately.
ANNOUNCED IN THE OPEN
COURT ON 18.12.2013
All the pages from 1 to 8 are
signed by me. (GAGANDEEP JINDAL)
METROPOLITAN MAGISTRATE (NI ACT) - 12,
DWARKA COURTS,NEW DELHI.
CC No. 3462/12 Page 8 of 8