Delhi District Court
Kamlesh Verma vs . Devi Charan 1/9 on 7 May, 2013
IN THE COURT OF MS SHEFALI BARNALA TANDON
METROPOLITAN MAGISTRATE, ROHINI: DELHI
Unique ID No. RO584252008
Ms. Kamlesh Verma
W/o Late Sh. Sohan Lal
R/o CC33, D Janta Flats,
Hari Nagar, New Delhi64. ............Complainant
V/s
Sh. Devi Charan
S/o Sh. Ramji Lal,
R/o E4/189, Nand Nagri,
New Delhi110093.
Also at
C/o DDU Hospital,
Ward No. 10, Hari Nagar,
New Delhi110064. ...............Accused
JUDGMENT
(1) Name of complainant Ms. Kamlesh Verma
and parentage address W/o Late Sh. Sohan Lal
R/o CC33, D Janta Flats,
Hari Nagar, New Delhi64.
(2) Name of accused Sh. Devi Charan,
and parentage address S/o Sh. Ramji Lal
R/o E4/189, Nand Nagri,
New Delhi110093.
Also at
C/o DDU Hospital,
Ward No. 10, Hari Nagar,
New Delhi110064.
(3) Offence complained of or proved: 138 N. I Act
Kamlesh Verma Vs. Devi Charan 1/9
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 26.06.2008
(6) File Transferred on: 25.03.2008
(7) Date of reserve of order: 30.04.2013
(8) Final order: Conviction
(9) Date of Final Order: 07.05.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The present complaint is filed Under Section 138 of the Negotiable
Instrument Act, 1881 (hereinafter referred to as the 'Act ').
Brief facts of the complaint are that complainant was having family and friendly relationship with the accused from last couple of years. In the month of June, 2007 complainant was approached by accused who narrated his financial difficulties before her and requested for a friendly loan of Rs. 3,06,000/ and in discharge of this liability of friendly loan, accused issued three PDCs to the complainant amounting to Rs. 1,50,000/, Rs. 1,50,000/ & Rs. 6000/, drawn on Syndicate Bank, Delhi. At the time of issuing the said cheques, accused has assured the complainant that these cheques will be honored at the time of its presentation, but when the said cheques were presented, the same were dishonored with the remarks "funds Insufficient". On coming to know about the fate of these cheques, complainant immediately contacted the accused and informed him regarding dishonor of these cheques but instead of paying the said cheque amount to the complainant, accused started giving false assurances to the complainant. After waiting few days, complainant sent a legal notice dated 02.6.08 to the accused for demanding cheque amount. Since the accused has failed to make the payment of said cheque inspite of the receipt of legal notice, complainant has filed the present Kamlesh Verma Vs. Devi Charan 2/9 complaint with the submission that accused be summoned, trial and punished according to law.
In his pre summoning evidence complainant has examined herself on affidavit Ex.CW1/K. Complainant reiterated the contents of her complaint and placed on record original cheque bearing no. 098030 dated 05.05.08 amounting to Rs. 1,50,000/ as Ex.CW1/A, cheque bearing no. 098028 dated 05.05.08 amounting to Rs. 1,50,000/ as Ex.CW1/B & cheque bearing no. 818157 dated 05.05.08 amounting to Rs. 6,000/ as Ex.CW1/C, all the cheques are drawn on Syndicate Bank, New Delhi, original cheque returning memos dated 06.05.08 & 07.05.08 as Ex.CW1/D & Ex.CW1/E, wherein it has been stated that cheques in question were dishonoured due to "Funds Insufficient", legal demand notice dated 02.06.08 as Ex.CW1/F and postal receipts, UPC & AD Card as Ex.CW1/G, Ex.CW1/H, Ex.CW1/I & Ex.CW1/J respectively.
Thereafter, accused was summoned for an offence punishable u/s 138 of Negotiable Instrument Act and notice u/s 251 Cr.PC for this offence was served upon him to which the accused pleaded not guilty and claimed trial.
Thereafter a settlement was arrived between the parties on 23.01.2010 for a sum of Rs. 1,60,000/ out of which part payment was made by the accused and thereafter due to non payment, the matter was proceeded on merits on 26.11.2011.
Complainant has examined herself in his post notice evidence by way of pre summoning affidavit Ex.CW1/K, signed by her at point A & B along with the documents Ex.CW1/A to Ex.CW1/J. Accused could not demolish the stand of the complainant in her cross examination.
Complainant has also examined Sh.Bal Kishore @ Kishore Kumar as CW2 and CW2 tendered his evidence by way of affidavit which is Ex.CW2/A bearing his signature at point A & B and thereafter, he was cross examined by Ld. counsel for Kamlesh Verma Vs. Devi Charan 3/9 accused wherein the witness stated that:
" On 04.06.2007 the present loan was advanced to the accused in my presence. I gave Rs. 1.5 lakhs to the complainant in cash. The complainant had sought the above mentioned money from me in order to advance it to the accused. The accused has only issued three cheques in question in favour of the complainant and no other document / paper work was done at that time".
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and she has discharged her initial burden to prove his case.
As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the supreme court of india in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325 Section 138 of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; 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 are rebuttable in nature. Having regard to the definition of terms Kamlesh Verma Vs. Devi Charan 4/9 proved and disproved as contained in Section 3 of the Evidence Act as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] "Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. "
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.Bhaskaran v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
Kamlesh Verma Vs. Devi Charan 5/9 In Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.2006 (2) Crimes 409, wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of M.M.T.C. Ltd. and Anr. v. Medchl Chemicals and Pharma (P) Ltd. and Anr. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability on the accused and this they had to discharge at the trial.
Thereafter, statement of accused under section 313 Cr.P.C. was recorded in which all the incriminating circumstances were put to the accused wherein accused has stated that "I had taken only Rs. 50,000/ from the complainant, out of which, I had already paid Rs. 10,000/ to her and only Rs. 40,000/ are yet to be paid. I had given the cheques in question as security to the complainant. I do not know whether these cheques got dishonoured. I have not received legal notice".
Accused has not preferred to bring any witness in his defence. Hence, DE was closed vide separate statement on 15.04.13.
Oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
Ld. counsel for complainant has submitted in his arguments that complainant has given a loan of Rs. 3,06,000/ to the accused and accused has issued three cheques towards the said loan amount. Legal notice was served to the accused and AD of registered post is already on record. Accused has settled the present matter for a sum of Rs. 1,60,000/ but after payment of Rs. 99,000/ has Kamlesh Verma Vs. Devi Charan 6/9 resiled from the settlement. Complainant has examined CW2 Sh. Bal Kishore from where loan amount was arranged, therefore it has been shown that finances are arranged from which source.
It has been further submitted by Ld. counsel for complainant that liability has been admitted by the accused. No complaint has been filed against the present complainant by the accused and accused has also not examined any witness in his defence.
Ld. counsel for accused has argued that accused has given the blank signed cheques as security. Complainant has earlier settled the matter for a sum of Rs. 1,60,000/ for cheque amount of Rs. 3,06,000/ and her sons who were present at the time of giving the loan, were not examined as witness. There is contradiction in the statement of CW1 and CW2. CW2 is also not an income tax payee and he is a planted witness. Judgment has been relied by Ld. counsel for accused i.e, Goa Handicrafts Rural and Small Scale Industries Development Corporation Ltd. v. Samudra Rops Pvt. Ltd. and Ors.
Entire record perused.
Firstly, accused has taken the defence that he has issued the cheque in question to the complainant as security. To this, law is very clear. Section 20 of Negotiable Instrument Act, 1881, is quoted herewith: "Section 20 of N.I At declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability. If the drawee were to dishonestly fill up any excess liability and the extent of liability if it becomes bona fide matter of civil dispute in such case, the drawer has no obligation to facilitate the encashment of cheque". (Shreyas Agro Services Pvt Ltd Vs Chandra Kumar S.B., II (2007) BC 357:
(2006) CrLJ3140: (2007) 6 Karn LJ 237 (Kant).
It was also held in case of Madhukar V. Dessai v. Shaikh Abdul Riyaz, AIR 2007 (NOC) 1082 (Bom): 2007 (2) AIR Bom R 442: (2007) IV BC 475, where it was Kamlesh Verma Vs. Devi Charan 7/9 held that "Where the Details on the body of cheque were written by the complainant himself, the accused merely signed the same, there was no evidence that blank cheque was given by the accused, it was held that entire body of cheque was not required to be written by the drawer only. What is material is the signature of the drawer thereon which was admitted by the drawer and the complainant cannot be said to have made material altercations within meaning of section 87 merely by writing details on cheque".
Secondly, accused has stated in his statement U/s 313 Cr.P.C. that he had taken only Rs. 50,000/ from the complainant and he had already repaid Rs. 10,000/ to the complainant towards this loan amount but neither accused has filed on record any receipt for repayment nor he has examined any witness in his defence to disprove his liability.
After perusal of entire record and in view of the above, this court of the considered opinion that the accused has not rebutted the presumption in favour of complainant. Therefore, complainant has proved his case beyond reasonable doubt.
It is settled preposition of law that the guilt of accused must be proved beyond reasonable doubt and reliance has been placed by this court on the judgments of Bharat Barrel & Drum Manufacturing Company Vs. Amit Chand Payrelal [( 1999 ) 3 SCC 35]and of Krishna Janardhan Bhat v. Dattatraya G.Hegde(2008)4 SCC54 wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
As complainant has proved its case beyond reasonable doubt, therefore, Kamlesh Verma Vs. Devi Charan 8/9 accused is being convicted for the offence under section 138 of Negotiable Instrument Act.
Let the accused be heard on point of sentence.
Announced in the open court (SHEFALI BARNALA TANDON) today on 07.05.2013 MM / ROHINI COURTS / DELHI Kamlesh Verma Vs. Devi Charan 9/9
IN THE COURT OF Ms SHEFALI BARNALA TANDON, MM, DELHI.
Unique ID No. RO584252008 CC No. 607/08 Kamlesh Verma Vs. Devi Charan U/s. 138 Negotiable Instrument Act 09.05.13 ORDER ON SENTENCE Present: Complainant with Ld. counsel Pradeep Kumar.
Convict with Ld. counsel Sh. Lalit Sehgal.
Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is ready for settlement, to which the complainant does not have any objection. It has been further submitted by Ld. counsel for complainant that the settlement was arrived between the parties for Rs. 1,60,000/ in the year 2010 and towards that settlement only Rs. 99,000/ was paid by the accused and thereafter, he resiled from his statement. Today the complainant is ready for settlement if the accused is ready to pay Rs. 80,000/ as the remaining amount in lieu of that settlement.
Heard. Judgment has already been pronounced and the accused has already been convicted in this matter.
Record perused. I am not inclined to grant the benefit of probation of Offenders Act as the matter pertains to the year 2008 and cheque bouncing cases are on high rises in the society. Considering the totality of circumstances, accused is sentence to imprisonment till rising of the court and further sentenced to pay compensation amount of Rs. 80,000/. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of two months.
Both the counsels for parties have stated that they do not want to prefer an appeal against the judgment and order on sentence vide their separate Kamlesh Verma Vs. Devi Charan 10/9 statement.
As appeal is not preferred, the convict is directed to undergo the imprisonment today itself and as requested, to pay the compensation amount of Rs. 80,000/ on 06.06.13 at 2.00 pm. A copy of this order along with judgment be given to the accused free of cost.
Announced in the open (Shefali Barnala Tandon)
court on 09.05.13 MM (N/W)/Rohini Courts, Delhi.
Kamlesh Verma Vs. Devi Charan 11/9
CC No. 14314/1
09.05.13
Statement of Sh. Pradeep Kumar, Ld. counsel for complainant.
At bar, I am the counsel for complainant and I do not want to prefer an appeal on behalf of complainant against the judgment and order on sentence.
RO & AC (Shefali Barnala Tandon) MM (N/W)/Rohini Courts, Delhi.
Statement of Sh. Lalit Sehgal, Ld. counsel for convict.
At bar, I am the counsel for convict and I do not want to prefer an appeal on behalf of convict against the judgment and order on sentence. RO & AC (Shefali Barnala Tandon) MM (N/W)/Rohini Courts, Delhi.
Kamlesh Verma Vs. Devi Charan 12/9