Delhi District Court
Hans Kumar Jain vs Balbir Singh on 18 December, 2014
1
IN THE COURT OF SH. RAKESH KUMARIII
CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT :
KARKARDOOMA COURTS : DELHI.
HANS KUMAR JAIN VS BALBIR SINGH
CC/RBT No.: 455/14
U.I.D. No. : 02402R0152232006
U/s. : 138 N.I. Act
P.S. : Shakar Pur.
J U D G M E N T
1 Sl. No. of the case : 455/14
2 Date of institution of the case : 21.3.2006 3 Name of the complainant : Hans Kumar Jain.
4. Name of accused, parentage & : Balbir Singh s/o Sh. Hans Raj Address Mathur, r/o H. No. 97A, 2nd floor, Mohalla Aaram Park, Shashtri Nagar, Delhi31.
5 Offence complained of or proved : 138 N.I Act. 6 Plea of the accused : Pleaded not guilty 7 Date reserved for order : 22/11/14 8 Final order : Convicted 9 Date of Judgment : 24/11/14 Facts as borne out from the complaint are as follows :
1. By filing present case complainant contended that on 02.08.2005 accused took a friendly loan of Rs.30,000/ in cash without any interest for one month from the complainant. It is further alleged that on 05.12.2005 accused issued cheque bearing No. 792990 dt. 05.12.2005 for Rs.30,000/ drawn on The Vaish Cooperative Adrash Bank Ltd. Laxmi Nagar, Shakar Pur Delhi to dishcarge the liability of CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 1 2 above said amount of Rs.30,000/.
2. Complainant presented the cheque Ex.CW1/1 with its banker, same were returned back uncashed with remarks "INSUFFICIENT FUNDS"
vide returning memo dt. 31.12.2005 Ex.CW1/2 , and advice memo dt. 02.01.2006 Ex.CW1/3. Complainant again deposited the cheque in question, same was returned back uncashed with the remarks "INSUFFICIENT FUNDS " vide returning memo dt. 30.01.2006 Ex.CW1/4 and advise memo dt. 31.01.2006 Ex.CW1/5.
3. The complainant made a demand for the payment of the said amount of money by giving a demand notice dated 16.02.2006 Ex.CW1/6 to accused through regd. AD post Ex.CW1/7, UPC Ex.CW1/8, Postal receipt Ex.CW1/9. But he failed to make the payment of the said amount to complainant within 15 days of receipt of the said Demand Notice. Thereafter, complainant has filed this complainant U/s 138 of the Negotiable Instrument Act, 1881 (hereinafter "the Act") against the accused.
4. Upon institution of the complaint, presummoning evidence under Section 200 Cr.P.C was led by the complainant. After considering the material and the presummoning evidence on record, the accused was ordered to be summoned vide order dated 21.03.2006 to face trial for the offence under section 138 Negotiable Instruments Act, 1881.
5. Upon being served with the summons, the accused entered appearance. Subsequent thereto notice under section 251 Cr.P.C. for the offence under section 138, Negotiable Instruments Act, 1881 was CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 2 3 served upon him on 15.03.2013 to which he pleaded not guilty and claimed trial.
6. After service of notice upon the accused under section 251 Cr.P.C.; the matter was posted for complainant's evidence. During the course of complainant's evidence, the complainant got himself examined as the sole witness. The complainant's evidence was closed on 23.09.2013
7. After conclusion of complainant's evidence, statement of accused was recorded on 05.12.2013 under Section 313 Cr.P.C. wherein the accused stated that the there was dispute regarding arrears of rent with the complainant and he had already made the payment of arrears of rent to the complainant and matter was settled, but complainant did not return the cheque to him. The accused opted to lead defence evidence. In defence evidence, accused examined himself as DW1.
8. I have heard the rival submissions at Bar and have gone through the records of this case.
9. To constitute an offence under Section 138 N. I. Act it has to be proved that:
a) there was a legally enforcible debt.
b) that the cheque was drawn in discharge of whole or any part of debt or liability.
c) that the cheque so issued has been returned due to insufficiency of funds.
d) that the demand notice was duly served on the accused and despite that he failed to make payment.CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 3 4
10.The Negotiable Instruments Act, 1881 raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118
(a) therein 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. Presumptions, both under Sections 118(a) and 139 of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the case reported as "Rangappa Vs. Sri Mohan 2010 (5) SCALE 340", it has been held by a Three Judge Bench of the Apex Court that consideration attached to a cheque is a matter of presumption and the complainant is not required to prove it beyond reasonable doubt.
11.The question that naturally arises is as to what is the standard of proof that the law requires and which the accused is expected to discharge in order to rebut the presumptions. In criminal matters, the standard of proof upon the prosecution is proof beyond reasonable doubt.
However, the accused in order to rebut the presumption(s) against him is not required to conclusively establish his case. The burden of proof on accused in rebutting the presumption(s) is not as high as that of the prosecution. Reference in this regard can be made to the judgment reported as Hiten P. Dalal vs. Bratindranath Banerjee 2001 CriLJ 4647. It is also a settled principle that where the accused has discharged the initial burden of rebutting the presumptions; the CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 4 5 burden of proof shifts to the complainant. And whether or not the accused has discharged the onus of proof placed upon him would depend entirely on the facts and circumstances of the case. In this regard the judgment of the Apex Court in M. S. Narayana Menon Vs. State of Kerala AIR 2006 SC 3366 can be fruitfully referred to.
12.Moreover presumption of law in favour of payee/ holder in due course of cheque to the effect that cheque was received in discharge of a debt or liability is a mandate of law, though it is rebuttable presumption. It is again settled law that standard of proof to discharge the onus of rebuttal upon the accused is not that vigorous as is upon the prosecution to prove its case beyond all reasonable doubt. Accused can discharge onus by probabilizing defence by preponderance of probabilities but then probabilizing of defence has to be on the basis of some evidence and material before the court.
APPRICIATION OF FACTS,EVIDENCE AND ARGUMENTS
13.Prior to proceed further in the present case notice u/sec. 251 Cr.P.C given in writing to the accused on 15/3/2013 in which he only admitted the signatures on cheque no. 792990 dt. 05/12/05 which is Ex.CW1/1 but denied the service of legal notice dt. 16/2/2013 Ex.CW1/6 and contested the case.
14.Statement of accused u/sec. 313 Cr.P.C recorded on 05/12/2013 in which he shows his willingness to lead his defence evidence but only examined himself as DW1 and during his examination in chief he admitted that he had to pay Rs.30,000/ to the complainant for which CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 5 6 he had issued a cheque in question to the complainant but after that he had repaid the said amount to the complainant despite that complainant did not return the cheque in question with malafide intention to file the present case against him and contended further that he had no liability to pay any amount regarding the cheque in question. During crossexamination of the accused in which he admitted that cheque in question has been issued towards the discharge of liabiulity of Rs.30,000/, he had received the legal notice Ex.CW1/6, however denied the suggestion that no repayment of Rs.30,000/ made to the complainant for which cheque in question had been issued.
15.It also admitted by the accused that he had not write any letter to his banker's to stop the payment in respect to the cheque in question Ex.CW1/A, he had not made any complaint to either bank or to police. After conclusion of the crossexamination of accused, court has also put one question to the accused in respect to the fact that whether complainant had been asked in writing to return the cheque in question to which he answered in negative "No".
16.Now returning to the testimony of CW1 who remained firmed during crossexamination on the point of fact that cheque in question has been issued by the accused towards discharged of legal liability and denied the suggestion that " it is wrong to suggest that statement dt. 05/7/2005 was executed between me and the accused regarding the present dispute. It is further wrong to suggest that I had signed the said statement dt. 05/7/2005 in presence of witnesses. It is further wrong to suggest that I had stolen the cheque book of the accused CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 6 7 from the house of accused. It is further wrong to suggest that I have filed the present complaint case just to extort money from the accused but surprisingly neither in crossexamination of CW1 any document qua the statement dt. 05/7/2005 has been placed either during crossexamination of CW1 or during examination in chief of DW1.
17.Since it is admitted that cheque in question has been signed by the accused during answering to the notice u/sec. 251 Cr.P.C, the fact that cheque in question has been issued towards repayment of Rs.30,000/ hence I am of the considered view that accused has failed to rebut the presumption qua the fact that cheque in question has not been issued towards the legal liability means not towards the liability of repayment of Rs.30,000/ which is allegedly made by the complainant to the accused.
18.Moreover no documentary evidence has been placed on record by the accused in respect to the fact that he had repaid Rs.30,000/ to the complainant and what was the intention for which he has been prosecuted by filing the present complaint, especially keeping inview the fact that in the crossexamination he admitted that he had not written any letter to his bank or made any complaint to the police, qua the misuse of cheque however it is matter of fact that cheque in question has been returned back on account of "Insufficient Funds".
19.it is not out of mention here that to constitute the offence u/sec. 138 N.I. Act the following essential ingredients has to be fulfilled:
CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 7 8i). Cheque must have been presented within the period of six months or within the period of its validity whichever is earlier.
ii). Cheque must have been returned unpaid for insufficient funds or it exceeds the amount arranged to be paid.
iii. Payee/holder must have served the notice of demand notice in writing to the drawer within thirty days of receipt of information by him from the bank regarding returning of cheque as unpaid; and drawer must have failed to make the payment within fifteen days of the receipt of legal notice.
20.Moreover as per section 138 of N.I Act there is presumption of law in favour of payee/ holder in due course of cheque to the effect that cheque was received in discharge or debt or liability is mandate of law, though it is rebuttable presumption. It is settled law that standard of proof to discharge the onus of rebuttal upon the accused is not that vigorous as is upon the prosecution to prove its case beyond all reasonable doubt. Accused can discharge onus by probabilizing defence by preponderance of probabilities but then probabilizing of defence has to be on the basis of some evidence and material before the court.
21.Further reliance can also be placed on judgment reported as " V.S. CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 8 9 YADAV VS REENA 2010(4) JCC (NI) 323" wherein Hon'ble High court held as under:
"Negotiable Instruments Act,1881secs. 138,139 and Cr.P.C., 1973251281 Dishonour of chequeAcquittal by Ld. M.M on the ground that the complainant had failed to prove that the cheques were issued by the respondents against a liability i.e refund of loan Appeal against It must be remembered that reasoning for appreciating evidence does not mean that reasoning bereft of logic Reasoning also does not mean mis reasoning All reasoning must stand the test of basic logic of judicial mind showing that the judge had knowledge of law and had appreciated facts in the light of law The order of payment by person to the holder of cheque is not made in casual manner just for sake of fundThis order is made for consideration and that is why Sec.139 N.I Act provides that holder of cheque is presumed to have received the cheque in discharge of whole or in part of a debt or liability In this regard case no evidence was produced b the accused and the Trial court travelled extra steps not permitted by law to presume that the presumption has stood rebutted Therefore, the judgment act aside and the accused convicted.
Negotiable Instruments Act,1881 Sec.138/139Dishonour of cheque Presumption under sec. 139Rebuttal of Mere pleading not guilty and stating that the cheques were issued as CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 9 10 security, would not give amount to rebutting the presumption raised under sec. 139 N.I Act In order to rebut the presumption under sec. 139, the accused, by cogent evidence, has to prove the circumstances under which cheque were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque Unless the accused had proved that the acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act Nothing was proved in this case Judgment of acquittal set aside."
Further it was held that :
"It must be borne in mind that the statement of accused under sec. 281 Cr.P.C or under sec. 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 sec.
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 circumstances and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present, the accused in his statement stated that he had given cheques as security. If the accused wanted to CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 10 11 prove this, he was supposed to appear in the witness box and testify and get himself subjected to crossexamination. 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 sec. 281 Cr.P.C that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under sec. 138of N.I Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 11 12 evidence."
It was further held that :
"The respondent has placed reliance on 'Krishna Janardhan Bhat Vs Dattatraya G. Hedge, 2008(1) JCC(NI) 50: 2008 Crl. L. J.1172', which is also the case relied upon by the Trial Court. In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under sec. 139of N.I Act would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under sec.
138 of N.I Act or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the chequ4es were issued as security, would not give amount to rebutting the presumption raised under sec.
139 of N.I Act. If mere statement under sec. 313 Cr.P.C or under sec. 281 Cr.P.C of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/prosecution, then CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 12 13 every accused has to be acquitted.
But, it is not the law. In order to rebut the presumption under sec.
139of N.I Act, the accused, by cogent evidence, has to prove the circumstances under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/sec. 139 N.I Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case.
22.Reliance can be placed on the judgment of Hon'ble Apex Court in V.RAJA KUMARI VS SUBBARMANA NAIDU cited as 2004 X AD (SC) 433" wherein it was held that :
".....The Principle incorporated in S. 27 of General Clause Act can profitably be imported in a case where the send has dispatched the notice by post with correct address written on it. Then it can be deemed to have been served on the sendee unless he proves 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 CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 13 14 drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice....."
DECISION AND REASONING
23. After taking into consideration all the facts and circumstances of the case I am of the view that in the present case all the four ingredients have been proved by the complainant beyond reasonable doubt because he/accused admitted during crossexamination that cheque in question has been issued towards the discharge of liabiulity of Rs.30,000/, he had received the legal notice Ex.CW1/6, however denied the suggestion that no repayment of Rs.30,000/ made to the complainant for which cheque in question had been issued.as such I am of the considered opinion that accused has completely failed to rebut the presumption and essential ingredients of the offence u/sec. 138 N.I Act stands proved.
24.For the above reasons, I have no hesitation to hold that offence for charge under Section 138/142 N. I. Act against accused stand proved beyond reasonable doubt. Accused is accordingly convicted under Section 138 N. I. Act. Accused be heard separately on the point of sentence on 12/12/2014.
ANNOUNCED IN OPEN COURT Dated : 24th November 2014 (RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 14 15 IN THE COURT OF RAKESH KUMARIII : CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT : KARKARDOOMA COURTS, DELHI.
HANS KUMAR JAIN VS BALBIR SINGH
CC/RBT No.: 455/14
U.I.D. No. : 02402R0152232006
U/s. : 138 N.I. Act
P.S. : Shakar Pur.
18/12/2014
ORDER ON THE POINT OF SENTENCE:
Present : None for complainant.
Convict with counsel.
1. Vide separate judgment passed and announced in the open court on 24/11/2014, accused was held guilty and convicted for an offence under section 138 N.I. Act. Case was fixed for arguments on the point of sentence.
2. I have heard the convict and his counsel on the Point of Sentence.
3. An application on behalf of accused filed u/sec. 360 Cr.P.C r/w section 3&4 of Probation Offenders Act and report from Probation office received.
4. It is argued by Ld counsel for convict that convict is aged about 58 years old and has no previous involvement or antecedents. It is also stated that convict is DTC conductor and he is having CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 15 16 responsibility to look after his family consisting of his family and three children out of which two are married and one son is of marriageable age. It is further submitted that in case convict is sent to judicial custody social stigma will also affect the life of the convict as he is having a lot of respect in the family and society. It is further submitted that convict has already faced the trauma of trial for last eight years and on account of conduct of convict, he may be released on probation as provided under Probation of Offenders Act, 1958. Lastly it is submitted that lenient view may be taken against convict while passing order on sentence in the interest of justice.
5. Opposed by Ld. counsel for complainant stating that convict be punished with maximum punishment and he do not deserve any leniency. Adequately compensation has been prayed to be given to the complainant by Ld. counsel for complainant .
6. I have heard the submissions of Ld. counsel for convict and have perused the record. Liability in this case has already been proved during the trial and the payment is pending in this case since 2005.
7. Having considered the above said facts and circumstances of the case and the fact that convict has no previous criminal background and report of Probation Officer and SHO in favour of convict, hence it is expedient to release him on probation of good CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 16 17 conduct and behaviour. Hence in the interest of justice, benefit of Probation is granted to the convict u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.30,000/ with one surety in the like amount for the period of one years. No order as to fine. Further Rs.40,000/(Rupees Fourty Thousand) as compensation is awarded in faovur of the complainant which the accused Balbir Singh has to be paid within one month failing which he shall under go simple imprisonment for one years and compensation shall be recovered as revenue of State.
8. Convict is directed to appear before Probation Officer at least once in every three months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Probation Bond furnished by accused and are accepted.
9. Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
ANNOUNCED IN OPEN COURT Dated : 18/12/2014 (RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 17 18 CC No. 455/14 PS : SHAKAR PUR U/SEC. 138 N. I ACT.
18.12.2014 :
Present : None for the complainant.
Convict in person with counsel.
Fresh report from the Probation Officer as well as SHO concerned received, perused.
Vide separate order on the point of sentence, convict is granted benefit of Probation u/sec. 4 of Probation of Offender's Act subject to his furnishing bond of good behaviour and maintaining peace, for sum of Rs.30,000/ with one surety in the like amount for the period of one years. No order as to fine. Further Rs.40,000/ (Rupees Fourty Thousand) as compensation is awarded in faovur of the complainant which accused Balbir Singh has to be paid within one month failing which he shall under go simple imprisonment for one years and compensation shall be recovered as revenue of State.
Convict is directed to appear before Probation Officer at least once in every three months or as and when directed. He is also directed to maintain peace and be of good behaviour during probation period. Probation bond furnished by the convict which are accepted.
Copy of judgment and order on the point of sentence be given to the convict free of cost. File be consigned to record room after all necessary compliance.
(RAKESH KUMARIII) CMM, NORTH EAST DISTRICT, CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 18 19 KARKARDOOMA COURTS, DELHI CC No.455/14, HANS KUMAR JAIN VS BALBIR SINGH 19