Delhi District Court
Budh Rattan vs . Mrs. Pratima on 10 February, 2022
IN THE COURT OF SH. BHANU PRATAP SINGH: MM (N.I.ACT): SOUTH-EAST
DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Budh Rattan Vs. Mrs. Pratima
CC No.621413/2016
U/s 138 Negotiable Instruments Act, 1881
1. CIS number : DLSE020037352015
621413/16
2. Name of the complainant : Budh Rattan,
S/o Shri Rameshwar Dayal,
Resident of A-36, Devil Extn.,
New Delhi-110080,
Proprietor of M/s Nirmal Garments
3. Name of the accused , parentage & : Mrs. Pratima,
residential address W/o Mr. Vijay Kumar,
R/o 38, Khem Chand Market,
Khanpur Extn., New Delhi-80.
4. Offence complained of or proved : U/s 138 of Negotiable Instruments Act,
1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Convicted
7. Date of judgment/order : 10.02.2022
Date of Institution : 12.01.2015
Date of Pronouncement of Judgment/Order : 10.02.2022
CC No.621413/16 Budh Rattan Vs Pratima page 1 of 9
JUDGMENT
1. By way of the present Judgment, this court shall dispose of the present complaint filed by Budh Rattan (hereinafter referred to as 'complainant') against Mrs. Pratima (hereinafter referred to as 'accused') u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short).
Brief facts:
2. The case of the complainant is that the complainant is proprietor of M/s Nirmal Garments and is also engaged in the business of construction of house on contract basis. That Mr. Vijay Kumar, the husband of the accused, being the owner of property bearing plot no.38, measuring 162 Sq. yds. (Approx.) situated at Khem Chand Market, Khanpur Extn., New Delhi, approached the complainant for construction of his above said plot with material, to which the complainant agreed. That accordingly the husband of the accused and the complainant entered into an agreement dated 19.05.2014 wherein all the stipulations of construction and payment were reduced into writing, which was also signed by the accused as a witness. That the accused also took the liability of her husband for paying the construction money to the complainant, and the accused in discharge of her part liability issued an A/c payee cheque bearing no.866151 dated 25.10.2014 for a sum of Rs.7,00,000/- drawn on Punjab National Bank, Khanpur, New Delhi-110062 in favour of complainant's proprietorship concern. That while issuing the above said cheque, the accused assured the complainant that the cheque would be honoured on its presentation, hence, the complainant accepted the said cheque. That the complainant deposited the above said cheque with his bank for its encashment however, the same was returned dishonoured with the reason "Payment Stopped by Drawer" and the dishonoured cheque was returned to the complainant by his bank vide return memo dated 27.11.2014. Thereafter, complainant sent the legal notice dated 08.12.2014 through speed post on 08.12.2014 calling upon the accused to make the payment within 15 days of the receipt of CC No.621413/16 Budh Rattan Vs Pratima page 2 of 9 the legal notice as prescribed u/s 138 of the N.I. Act. That the legal notice was duly served upon the accused and even after the expiry of stipulated period of 15 days from the date of receiving of legal notice, the accused did not make the payment and therefore, the present case was filed by the complainant.
Proceedings before the Court:
3. The cognizance of the complainant was taken and accused was summoned vide order dated 02.09.2015. The notice u/s 251 Cr.P.C was framed against the accused on 19.08.2016 to which accused pleaded not guilty and claimed trial. Thereafter, opportunity was given to the accused to cross examine the complainant witness. Complainant witness was examined, cross examined and discharged and complainant evidence was closed vide order dated 31.03.2018. Thereafter statement of accused was recorded on 08.05.2018 to which accused chose to lead defence evidence. Thereafter, defence witness was examined and cross examined and Defence Evidence was closed vide order dated 16.12.2019.
Thereafter, the matter was listed for final arguments. Written arguments were filed by the complainant. Though, opportunity was given to the accused to address the final arguments and file written arguments but the accused failed to avail the opportunity and no arguments were addressed or filed by the accused.
Arguments Raised by the Parties:
4. Complainant in his written arguments has argued that all the requirements of Section 138 NI Act have been fulfilled by the complainant in the present case and presumption u/s 139 of NI Act is drawn in favour of complainant. It has been further argued that the accused failed to rebut the presumption u/s 139 NI Act and raise any probable defence and therefore, accused is guilty of offence punishable u/s 138 NI Act. The complainant has relied upon following judgments:
1. "APS Forex Services Pvt. Ltd Vs. Shakti International Fashion Linkers & Ors.
CC No.621413/16 Budh Rattan Vs Pratima page 3 of 9
Criminal Appeal No. 271 of 2020.
2. Kalamani Tex & Anr. vs. P. Balasubramanian (2021) 5 Supreme Court Cases 283.
3. Chittuluri Venkata Subramanya Rajaram vs. Kotagiri Shivani & Anr., 2018(4) Crimes 152 AP:
4. ICDS Ltd. vs. Beena Shabbir & Anr., 2002 (6) SCC 426:
5. Ram Kishan vs. State of U.P. AIR 2012 SC 2288.
Reasons for Decision:
5. For deciding the present case, it is essential to lay down the ingredients of the offence under Section 138 NI Act which are as follows:
(a) A person must have drawn a cheque on an account maintained by him in a bank.
(b) The cheque must be drawn for payment of certain amount of money to another person to discharge in whole or in part, any legal enforceable debt or other liability.
(c) The cheque has been presented to the bank and is returned unpaid by the bank either due to insufficiency of funds or it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
(d) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of cheque within stipulated period.
(e) The drawer fails to make payment within stipulated time after the receipt of the said notice. [Reference: Kusum Inglots & Alloys Ltd & Ors v. K Pennar Peterson Securities Ltd and Ors (2000) 2 SCC 745].
A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118(a) and under Section 139 of the Act.
Section 118 Clause (a) of Negotiable Instruments Act reads as under:-
"That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was CC No.621413/16 Budh Rattan Vs Pratima page 4 of 9 accepted, endorsed, negotiated or transferred for consideration".
Section 139 of the Negotiable Instruments Act reads as under:-
"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, or any debt or other liability."
The combined effect of Section 118(a) and Section 139 of NI Act is that it raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability.
6. Coming to the present case, the complainant has relied upon his evidence affidavit Ex.CW1/1, agreement Ex.CW1/A, original cheque Ex.CW1/B, return memo Ex.CW1/C, legal notice Ex.CW1/D, postal receipt Ex.CW1/E, and internet tracking report Ex.CW1/F in order to prove essential ingredients of Section 138 NI Act. Further, the accused has admitted her signatures on the cheque in question in her statement u/s 251 Cr.P.C.
7. In the case of M/S Kalamani Tex vs P. Balasubramanian Criminal Appeal No. 123 of 2021, the Hon'ble Supreme Court has held:
The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then the 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him.
8. Therefore, in view of the above judgment, once the accused has admitted her signatures on the cheque in question in the present case, presumption u/s 139 of NI Act is drawn in favour of the complainant.
9. Now it is upon the accused to rebut the presumption u/s 139 of NI Act by raising a CC No.621413/16 Budh Rattan Vs Pratima page 5 of 9 probable defence in her favour on a scale of preponderance of probabilities. It is open for the accused to rely on evidence led by her or evidence adduced on behalf of the complainant and the materials submitted by the complainant in order to raise a probable defence. [Reliance placed on: Rohitbhai Jivanlal Patel Vs. State of Gujarat and Ors AIR 2019v SC 1876; M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39;].
10. In her statement u/s 251 Cr.P.C, accused took the defence "Mr. Vijay Kumar is my husband. The agreement placed on record for construction does not bears signatures of my husband on any page. The cheque in question bears my signatures. I did not give the cheque in question to the complainant. I do not know how the complainant came into possession of the above mentioned cheque. I did not receive the legal demand notice".
11. Further in her statement u/s 313 Cr.P.C, accused took the defence "The cheque in question was lost by me and I have also given letter to the bank instructing the bank for stopping the payment of the cheque in question to the complainant. I am not aware about the agreement executed between my husband and the complainant".
12. In order to prove the aforesaid defence, accused examined herself as DW-2 and deposed in her examination in chief dated 23.10.2019 that "I had not issued the cheque in question to the complainant. My cheque book was stolen from my home. I do not know how come the cheque in question came into the possession of the complainant."
13. The aforesaid defence of the accused is not tenable as no FIR regarding the stolen cheque has been brought on record by the accused. In the absence of FIR in respect of stolen cheque, the aforesaid defence of the accused is not tenable. [Reliance placed on: Uttam ram v Devinder Singh Hudan & Anr Criminal Appeal No. 1545 of 2019].
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14. Further, the above testimony of DW-2 is contrary to the statement given by the accused u/s 313 Cr.P.C wherein the accused stated that the cheque in question was lost by her. Therefore, the above testimony of the accused is not sufficient to prove the defence taken by the accused.
15. Further, the accused in her cross examination dated 23.10.2019 stated that "It is correct that complainant Budh Rattan raised an incomplete construction of my house in the year 2014. It is also correct that prior to the construction, demolition work was also done by complainant. It is correct that prior to the said constructions, one agreement was executed between the complainant and my husband regarding the completion of construction. It is also correct that as per the said agreement, complainant started the construction work of my house." The accused further stated in her cross examination dated 23.10.2019 that "As per my knowledge, ground and first floor was constructed by complainant".
16. Perusal of the above testimony shows that the accused has admitted that an agreement was executed between complainant and her husband and that the complainant started the construction of her house as per the said agreement and that the complainant constructed the ground and first floor. Therefore, the above testimony of the accused is not sufficient to prove the defence taken by the accused and to rebut the presumption u/s 139 of NI Act.
17. Another defence was taken by the accused in her statement u/s 251 Cr.P.C and u/s 313 Cr.P.C that she did not receive the legal demand notice.
18. However, this plea of the accused is not tenable by virtue of judgment of CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), in which the Hon'ble Supreme Court held:-
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 CC No.621413/16 Budh Rattan Vs Pratima page 7 of 9 days of receipt of summons from the court in respect of the complaint u/s. 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 from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
19. Therefore, in view of the above judgment, the defence taken by the accused is not tenable as the summons were issued to the accused and the accused appeared before the court after issuance of summons from the court and thereafter, copy of complete set of document was supplied to the accused.
20. Further, CW-1 Budh Rattan in his complaint stated that he is the proprietor of M/s Nirmal Garments and he further stated that he is also engaged in the business of construction of house on contract basis. In his cross examination dated 06.10.2016, CW-1 reiterated that M/s Nirmal Garments is the proprietorship firm and he is the proprietor. Further, CW-1 Budh Rattan withstood his cross examination as there are no material contradictions in his testimony dated 06.10.2016 and 31.03.2018.
Conclusion:
21. Based on the defence taken by the accused and evidence led by the accused, this court has arrived to the conclusion that the accused has failed to raise a probable defence in her favour on a scale of preponderance of probabilities and consequently, the presumption under Section 118(a) and 139 of NI Act drawn in favour of the complainant has not been rebutted by the accused. Since, the Complainant has proved the essential ingredients of CC No.621413/16 Budh Rattan Vs Pratima page 8 of 9 Section 138 NI Act beyond reasonable doubt, this court finds the accused Pratima guilty for the offence punishable U/s 138 N I Act. Therefore, accused Pratima stands convicted.
Announced in the open court (Bhanu Pratap Singh) on 10.02.2022 MM(N.I. Act):SED: Saket Courts, New Delhi CC No.621413/16 Budh Rattan Vs Pratima page 9 of 9