Delhi District Court
Sheetal Mehroke vs . Manju Bhardwaj on 5 December, 2018
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
Sheetal Mehroke Vs. Manju Bhardwaj
PS Keshav Puram
U/s 138 Negotiable Instruments Act
Date of Institution : 24.02.2016
Date of Judgment : 05.12.2018
JUDGMENT
(1) Serial number of the case : 17422/2016
(2) Name of the complainant : Smt. Sheetal Mehroke
W/o.: Sh. N. S. Mehroke,
R/o.: C-164, Ashok Vihar, Phase I,
Delhi
(3) Name of the accused : Smt. Manju Bhardwaj
W/o.: Sh Vijay Pal,
R/o.: H No. 66-67, Vani Vihar,
Uttam Nagar, New Delhi.
(4) Offence complained of : Under Section 138 Negotiable
Instruments Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Conviction
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that she had family terms CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 with the accused for the last several years and the accused approached at her residence, to provide financial assistance to extend her business/ profession assuring to return the loan amount with interest of 24% p.a. On 25.03.2013 and 05.10.2013, the complainant gave Rs. 2 lakhs and 3 lakhs respectively to the accused and accused issued agreement/ undertakings dated 28.03.2013, 10.04.2015 and 16.10.2015 against the total amount of Rs. 5 lakhs being assurance. Despite repeated requests, the accused did not repay the loan amount with interest. After persistent requests, the accused asked the complainant to present the cheque which had been given by the accused at the time of taking the loan as the accused had received the payment from her foreign trips. The complainant then presented the cheque bearing no. 313886 dated 14.01.2016 for Rs 2,00,000/- drawn on State Bank of India, Gole Market, New Delhi (hereinafter referred to as the 'cheque in question') at her banker at State Bank of India, Tri Nagar, but the same was returned dishonoured on 14.01.2016 with the remarks "Funds Insufficient".
2. Upon the said dishonour, the complainant appraised the accused of the same and requested her to make the payment, but the accused did not do so and thereafter, a demand notice was sent by the complainant on 28.01.2016 to the accused through post which was served on 30.01.2016 despite which the accused did not make the payment of the cheque amount. Hence, the complainant filed the present complaint under Section 138 of the Negotiable Instruments CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 Act, 1881 (hereinafter referred to as "the NI Act").
3. To prove her case, the complainant Sheetal led pre-summoning evidence, tendering her evidence by way of affidavit (Ex CW1/1) and she also relied upon the documents i.e. the copy of cover photo of magazine of accused ie Ex. CW1/A; the original cheque bearing no. 313886 dated 14.01.2016, of Rs 2,00,000/- drawn on State Bank of India, Gole Market, New Delhi ie Ex.CW1/B; the cheque return memo ie Ex CW1/C; legal notice ie Ex CW1/D, postal receipt ie Ex. CW1/E; proof of delivery ie Ex. CW1/F and copy of agreement/ undertaking is Ex. CW1/G to CW1/I which were duly considered by the Ld Predecessor and thereafter the accused Manju was summoned for the offence under Section 138 of the NI Act.
4. After the accused entered appearance, she was admitted to bail and notice was served upon her by Ld Predecessor for offence under Section 138 of the NI Act wherein the accused did not plead guilty and claimed trial. In the notice, the accused also disclosed her defence and admitted her signatures on the cheque in question but denied having any liability qua the cheque in question stating that the cheque in question had been given to him for arranging a loan for a purchase of land in Sonepat but was misused by the complainant. She denied receipt of any legal notice of complainant.
5. An application under Section 145(2) NI Act was also filed by the accused whereafter the complainant was duly cross-examined by CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 Ld defence counsel and then complainant evidence was closed.
6. The statement of accused was thereafter recorded under Section 281 read with 313 of the Code of Criminal Procedure wherein the entire incriminating evidence was put to the accused wherein she denied having taken any loan and also denied having executed undertaking dated 28.03.2013. She reiterated as to having given the cheque in question to Sh Chander Mohan alongwith 4-5 other cheques and blank signed stamp papers for purchase of land for gaushala purpose. She denied having issued the cheque in question in discharge of any legal liability and also denied receipt of the legal notice. She did not dispute the factum of dishonour of the cheque.
7. The accused chose to lead evidence in her defence examining herself in her defence. As DW1, the accused testified that she had no transactions with the complainant Sheetal. She further testified that the father of complainant used to visit her and she had family relations with him for several years. She further testified as to having told father of complainant ie Chander Mohan about her requirement of land for Gaushala and that he took 5/6 blank cheques and blank signed papers on the pretext of providing financial assistance for purchasing the land for Gaushala but after a long period, he neither returned her documents nor blank cheques and to pressurize/harass her and to extort money, he distributed the cheques to his family members and filed the present complaint besides other complaints and civil suit in his name and that of his CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 family members including the complainant. She denied having liability against the complainant and also testified as to having filed a complaint in Police Station PS Bindapur and other higher authorities ie Ex. DW1/A with postal receipts Ex. DW1/B (colly.). The accused/DW1 was duly cross examined at length on behalf of the complainant.
8. Final arguments were then advanced by both the parties which have been carefully considered along with the evidence on record and written arguments.
9. During the course of the arguments, the Ld counsel for the accused relied upon the following judgments:
(a) Krishna Janardhan Bhat v Dattatraya G. Hedge,2008(4)SCC 54
(b) John K Abraham v Simon C Abraham 2014 (1) CCC (SC) 161
(c) Vijay v Laxman decided by the Hon'ble Supreme Court in Crl Appeal no. 261 of 2013
(d) Birender Singh v State of NCT of Delhi I (2008) DLT (Crl.) 255
(e) Kulvinder Singh v Kafil Ahmed 2014 (2) JCC (NI) 100
(f) M/s Sekhon and Sekhon Finanace and Investment Company v Rani decided on 21.08.2013 by the Hon'ble Punjab & Haryana High Court.
10. At the very outset it is noted that to prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused had issued a cheque on a bank account maintained CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 by her;
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That cheque has been presented to the bank within the period of its validity;
(iv) That cheque has been returned by the bank unpaid;
(v) The payee of the cheque made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of the cheque failed to make payment of the cheque amount to the payee within 15 days of the receipt of the said notice.
11. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by her with a bank. That being so, ingredient (i) stands proved as not disputed.
12. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Ex CW1/B was returned dishonoured vide memo Ex CW1/C. It is not the defence of the accused that the cheques were not presented to the bank within the validity period or as that the cheque in question was not dishonoured upon presentation. Even during cross-examination of the complainant, no questions were put to the complainant nor any suggestions were given to her in respect of the same nor as DW1, the accused testified anything to the contrary. Hence the ingredients (iii) and CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17
(iv) also stand proved as not disputed.
Legal Notice
13. As CW1, the complainant has testified that upon dishonour of cheque in question, she sent the notice Ex CW1/D dated 28.01.2016 to the accused for return of the cheque amount by registered post ie within 30 days of dishonour of the cheque on 14.01.2016. The complainant also relied upon receipts Ex CW1/E. The accused has however denied receipt of the notice of demand at the time of framing of notice, at the time of her statement under Section 281 read with Section 313 CrPC and in her deposition as DW1. However, it is pertinent to note that at the time of recording of framing of notice, the accused has given her address as 66,67, Vani Vihar, Uttam Nagar, Delhi which is one of the addresses on which the demand notice had been sent by post.
14. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, except self serving testimony, the accused did not lead any evidence to prove the address on the legal notice to be incorrect nor led any evidence to prove her correct address. For reasons best known to the accused, she also took no steps to examine any CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 official from the post office to prove the non-service of the legal notice upon her on account of any purported incorrect address. In the absence thereof, plea of the accused as to the legal notice not having been sent at her correct address remains unproved.
15. Be that as it may, in CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held that "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 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".
16. Thus, keeping in view that except mere denial of receipt of notice of demand, no evidence in rebuttal has been led by the accused as also keeping in view the dictum of the Hon'ble Apex Court, merely on the account of non service of notice Ex. CW-1/D the present complaint cannot be rejected and the same is held to have been duly served upon the accused.
CIS No. 17422/16Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17
17. In respect of ingredient (vi), there is no evidence on record to prove that the accused has made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) as to no payment having been made by the accused in respect of the cheque in question stands proved.
Debt/Liability
18. In the present case, the accused has not denied her signatures on the cheque in question. It is a well settled proposition of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) of the NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the non-existence of consideration by raising a probable defence. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the Court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993)3SCC35).
19. The NI Act also provides under Section 139 that 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, of any debt or other liability. It is a CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. (Reliance placed on Rangappa vs Sri Mohan, (2010) 11 SCC 441).
20. In the present case, the defence of the accused is that the cheque in question had been given to the father of the complainant for arranging finances for purchase of gaushala but he misused the same by distributing it to his family members. In the cross- examination of the complainant, the accused was unable to elicit any admission from the complainant as to the said defence and hence to rebut the presumptions, it was for the accused to either prove her defence as a matter of fact or to disprove the case of the complainant by punching holes in the case of the complainant.
21. However, from the evidence on record, the accused miserably failed to do so. For instance as DW1, the accused has vaguely testified that Chander Mohan ie that father of the complainant had taken 5-6 blank cheques and blank signed papers for financial arrangement for purchasing land for Gaushala. However, the accused has not been able to provide even an approximate timeline as to when she had given those cheques to Chander Mohan as during her cross- examination, the accused/DW1 gave evasive reply as to not remembering as to when she had provided the blank cheques and CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 blank papers to Chander Mohan. Further, the testimony of the accused is also conspicuously silent as to the cheque in question forming part of those 5-6 cheques and hence to prove her defence it was for the accused to corroborate her vague oral testimony with any other oral or documentary evidence which she failed to do.
22. Further the mere self serving testimony of the accused also does not inspire the confidence of the Court in as much as she has herself testified as DW1, that after a long time, the cheques/documents were not returned by Chander Mohan. However, in her cross- examination, she has admitted that she did not make any requests in writing to bring back those cheques/papers. No explanation has come on record as to why the accused did not make any demand to return the cheques/ documents as a reasonably prudent person is expected to do and the omission of such return demand and/or explanation of the omission thereof casts a suspicion over the version being set up by the accused.
23. It is also pertinent to note here that the accused has relied upon the complaint Ex DW1/A dated 12.09.2017 sent to SHO PS Bindapur alleging cheating and forgery by the complainant and other family members. Perusal of Ex DW1/A however reveals that the said complaint has been filed highly belatedly since it was filed after even the cross-examination of the complainant had been completed. The accused has herself admitted in her cross-examination that no written complaint was made before filing the present complaint, but CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 no further explanation was put forth by her to explain the omission of such complaint even more so when she was being represented by a lawyer since 07.10.2016.
24. The delay in making any written complaint to any authority prior to filing of the case uptil the completion of complainant evidence renders the defence of the accused improbable even more so as the accused has nowhere testified that the cheque in question did infact form part of those 5-6 cheques which were purportedly handed over to Chander Mohan nor she has clarified whether the said cheque was handed over at the same time or at any other time. Further, the entire testimony of the accused is also conspicuously silent as to the undertakings Ex CW1/G to Ex CW1/I being the same documents on which her signatures were purportedly taken when they were in blank. That being so, the uncorroborated testimony of the accused does not inspire confidence of the Court and the defence as raised be her does not appear to be probable.
Arguments of the accused
25. It has been argued on behalf of the accused that the complainant did not file any documents/receipt to prove the advancement of loan to the accused and hence the factum of advancement of the loan itself remained unproved. It is pertinent to note that the complainant has categorically relied upon the agreements/undertakings ExCW1/G to Ex CW1/I in respect of the loan advanced. However, for reasons best known to the accused, even though she testified that her CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 signatures were obtained on blank paper, there is no testimony of DW1 as to the documents Ex CW1/G to Ex CW1/I having been prepared on the same documents which had been given in blank. Further, the accused also took no steps to examine any witness of the said documents to disprove the execution thereof nor denied the execution of Ex CW1/G to Ex CW1/I during her testimony in the Court and hence there is no reason to disbelieve the agreements/ undertakings and the argument as raised by the accused fails.
26. It has also been argued on behalf of the accused that the complainant failed to disclose the source of funds nor she had shown it in her ITR. However, the argument as raised is devoid of merits in as much as the complainant has categorically testified during her cross-examination that she had advanced the loan of Rs 5 Lakh by withdrawing the amount partly from her bank account and partly from her savings. She has further testified that the sum of Rs 2 Lakhs had been withdrawn from State Bank of Patiala, Shakti Nagar Branch and State Bank of India, Ashok Vihar Branch. No further questions or suggestion were put to the complainant as to the said testimony being false or as to her not possessing sufficient funds to advance to the accused. Further there is not even a single question put to the complainant as her filing any ITR, hence the question of drawing any adverse inference against the complainant for not reflecting the loan in the ITR does not arise.
27. It has also been argued that it was highly improbable that the CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 complainant would advance a further loan of Rs 3 Lakh in October 2013 when the acused had not repaid the earlier loan. It is duly noted that in the absence of any other material to disbelieve Ex CW1/G to Ex CW1/I, mere perceived improbability in itself is not sufficient to rebut the statutory presumptions cast in favour of the complainant, and hence this argument also fails.
28. It has also been argued that since it is the case of the complainant that the cheque in question was given as a security cheque in 2013, it cannot be considered to have been given in discharge of liability of the accused as it is dated 14.01.2016. To appreciate this argument, it is necessary to understand the relevant law. In Suresh Chand Goyal vs. Amit Singhal (Crl.A601/2015 decided on 14.05.2015) the concept of security cheques was discussed. It was held therein that:
"28. There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be myriad situations in which the cheque issued by the accused may be called as security cheque, or may have been issued by way of a security, i.e. to provide an assurance or comfort to the drawee, CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced. While in some situations, the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."
29. Hence it is now well settled that the very fact that cheque was given as security for payment and that the payment secured was not made implies that the holder of the cheque has been given authority to fill in details on the cheque and present it for encashment. This is the natural and most inevitable purpose to be served by a security. If it were to be held that the cheque was not supposed to be filled in and presented for encashment, the cheque would fail in its avowed purpose as security for payment. In the present case, Ex CW1/H mentions the cheque in question to have been given as a blank security cheque which was to be returned after the accused repaid the loan amount of Rs 2 Lakh. Since it is not the case of the accused that she repaid the said amount but still the cheque was presented, hence the other possibility is that the cheque was presented for the principal amount only after the accused failed to make payment thereof. Hence the argument of the accused as to the security cheque not being considered to have been issued for discharge of debt/liability of the accused is devoid of merits and the mere fact that cheque had been given as a security cheque, that itself does not result in dismissal of the complaint under Section 138 NI Act.
CIS No. 17422/16Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 Decision
30. It is a trite law that onus lies upon the accused to rebut the presumption and to establish that the cheque in question was not given in respect of any debt or liability. The mere oral explanation furnished by the accused in the present case is not sufficient to dislodge the presumptions envisaged by Sections 118 and 139 of Negotiable Instruments Act, 1881. Since in the instant case, the accused has failed to lead any convincing evidence to aid her in discharge of her onus, the presumption of law operates in favour of existence of debt or liability.
31. Further, the judgments relied upon by the accused in Krishna Janardhan Bhat v Dattatraya G. Hedge (Supra), John K Abraham v Simon C Abraham(Supra), Vijay v Laxman (Supra), Birender Singh v State of NCT of Delhi (Supra), Kulvinder Singh v Kafil Ahmed (Supra) and M/s Sekhon and Sekhon Finanace and Investment Company v Rani (Supra) also do not assist the case of the accused being distinguishable on facts.
32. Hence from the totality of the evidence on record, on the scale of preponderance of probabilities, the accused has not been able to raise any probable defence sufficient to rebut the statutory presumptions raised in favour of the complainant and has miserably failed to prove her defence to be so probable as to create doubts about the existence of a legally enforceable debt or liability. Accordingly, the accused Smt. Manju Bhardwaj, W/o.: Sh Vijay CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17 Pal, is held guilty for the offence punishable under Section 138 NI Act and is convicted for the same in the present case.
33. Copy of this judgment be given dasti to the convict as per rules.
Announced in the open court
on 05.12.2018 Digitally signed
by POOJA
POOJA AGGARWAL
AGGARWAL Date: 2018.12.05
16:30:06 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 17 pages and each page bears my signature. Digitally signed by POOJA POOJA AGGARWAL AGGARWAL Date: 2018.12.05 16:30:17 +0530 (POOJA AGGARWAL) Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi CIS No. 17422/16 Sheetal Mehroke Vs. Manju Bhardwaj PS Keshav Puram Page 17 of 17