Delhi District Court
Bhupinder Singh vs Shankar Lal Bhardwaj on 20 April, 2013
IN THE COURT OF SH. SUDHIR KUMAR SIROHI,
METROPOLITAN MAGISTRATE - 02, DWARKA COURTS,
NEW DELHI
Bhupinder Singh
Versus
Shankar Lal Bhardwaj
P.S : Chhawla
U/s : 138 Negotiable Instruments Act
1. Serial No./CC No. of the case : 181/1/09
2. Name of the complainant : Bhupinder Singh
S/o Sh. Lal Singh,
R/o C-542/411, Qutab Vihar,
Phase-I,
New Delhi-110071.
3. Date of Institution : 18.12.2009
4. Name of the accused, his : Shankar Lal Bhardwaj
parentage and residence S/o Sh. K.L. Bhardwaj,
R/o C-1/15, Naveen Place,
Kali Piao, Najafgarh,
New Delhi-110043.
5. Date when judgment was : 01.02.2013
reserved
6. Date when judgment was : 20.04.2013
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
9. Final Judgment Convicted
CC No. 181/1/09 Page 1 of 7
-:J U D G M E N T:-
1. Vide this judgment, I shall decide the present complaint filed by the complainant Bhupinder Singh Under Section 138 of Negotiable Instruments Act (hereinafter referred to as N.I Act) against the accused Shankar Lal Bhardwaj.
2. In the present complaint, complainant has submitted that accused was a good friend of him and having good family relations with him. It is further submitted that in the month of February, 2009, the accused approached him and requested for a short term financial assistance (friendly loan) to the extent of Rs. 5,00,000/- (Rupees Five lakhs only) as the accused was in dire need and requirement of money. It is further submitted that considering the friendly relations, the complainant accepted the request of the accused and advanced a sum of Rs. 5,00,000/- (Rupees Five lakhs only) to the accused. It is further submitted that accused promised and agreed to refund the loan amount within six months. It is further submitted that in the month of August, 2009, the complainant approached the accused and requested him to refund the loan amount, then the accused for discharge his liability had issued a cheque bearing no. 180500 dated 12.08.2009 amounting to Rs. 5,00,000/- (Rupees Five lakhs only) drawn on Corporation Bank, Najafgarh Branch, New Delhi. It is further submitted that the complainant presented the said cheque for its encashment in August, 2009 but the same was returned unpaid, then the complainant again approached the accused then the accused requested to present the said cheque in the month of November, 2009. It is further submitted that the complainant again presented the said cheque on 05.11.2009 with its banker, the same was again dishonoured vide memo dated 07.11.2009 with remarks "Payment Stopped by Drawer". It is further submitted that the complainant issued a Legal Demand Notice dated 19.11.2009 by Registered Post and UPC calling the CC No. 181/1/09 Page 2 of 7 accused to make the payment of dishonoured cheque. It is further averred that Registered AD Envelope of Legal Demand Notice received back on 21.11.2009 but the UPC had not been received back which raises the presumption that legal demand notice was served upon the accused. It is further averred that despite receipt of legal demand notice accused failed to make the payment of cheque amount demanded through Legal Notice within fifteen days, 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 21.12.2009. The accused appeared in the court on 09.03.2011 and was admitted to bail.
4. The complainant has examined himself as CW 1 and filed his evidence by way of affidavit Ex. CW1/1A and relied upon the following documents : - (A) Original cheque in question is exhibited as Ex. CW1/1. (B) The cheque returning memo is exhibited as Ex. CW1/2. (C) Office copy of the legal notice is exhibited as Ex. CW1/3. (D) Registry Receipt is exhibited as Ex. CW 1/4. (E) UPC receipt is exhibited as Ex. CW1/5. (F) Returned Envelope is exhibited as Ex. CW1/6. CW 1 was discharged after cross examination.
5. Complainant has also examined Sh. Jitender Singh as CW 2 who filed his evidence by way of affidavit Ex. CW2/A. CW 2 was discharged after cross examination. No other witness has been examined by the complainant and CE was closed.
6. 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 he had lost two cheques and one was misused by the complainant, therefore, he had stopped the CC No. 181/1/09 Page 3 of 7 payment of cheque in question. Accused denied the receipt of legal demand notice.
7. The accused has examined himself U/s 315 Cr.P.C as DW 1 and relied upon complaint to SHO PS Najafgarh regarding misplaced cheques dated 18.08.2009 mark A. DW 1 was discharged after cross-examination. No other witness has been examined by the accused and DE was closed.
8. Final Arguments on behalf of the both the parties heard.
9. From the arguments of both the parties, following questions for consideration has arisen :-
QA. Whether the accused has issued cheque in question to discharge his liability towards the loan taken by him or not? QB. Whether the accused has received the Legal Demand Notice or not ?
10. Question No. A :
Under Section 118, unless contrary is proved, it is to be presumed that Negotiable Instruments (including the cheque) had being made or drawn for consideration. Under Section 139, the court has to presume unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part of a debit or liability. Thus, in complaints U/s 138 of N.I Act, the court has to presume the cheque had been issued for a debit or liability. However, this presumption is rebuttable.
The accused has raised the defence that he had never taken the loan from the complainant and he had lost two cheques including the cheque in question and lodged complaint dated 18.08.2009 with the SHO Police Station Najafgarh mark A in this regard.
To prove his defence and to rebut the presumptions U/s 118 and 139 of N.I Act, the accused has relied upon the cross-examination of CW 1 and CC No. 181/1/09 Page 4 of 7 testimony of DW 1.
11. The CW 1 has confirmed his testimony in his cross-examination. CW 2 has also supported the testimony of CW 1. The accused failed to put his defence into the mouth of CW 1 and CW 2. The DW 1 has relied upon the complaint lodged with SHO PS Najafgarh mark A. Careful perusal of the complaint mark A reveals that the same was lodged on 18.08.2009 while the cheque in question bears the date 12.08.2009. It seems that the accused had lodged the complaint mark A just to raise a false defence. Moreover, the accused has failed to prove the complaint mark A as per the provisions of law.
12. In view of the above discussion, the accused has failed to rebut the presumption U/s 118 & 139 N.I Act in favour of the complainant.
13. Question No. B :
It is alleged by Ld. Counsel for accused that accused had not received the Legal Notice Ex. CW1/3. To prove the delivery of Legal Notice Ex. CW1/3, the complainant has filed on record the Registered Post and UPC receipts Ex. CW1/4 and Ex. CW1/5 respectively. The registered post was received back by the complainant with the remark "refused".
Moreover, the Hon'ble Supreme Court of India in case titled as C.C. Alavi Haji v. Palapetty Muhammed Jain. J (2007) 6 SCC has held that :-
"It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the GC Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause
(c) of the said proviso for payment by the drawer of the cheque.
Nevertheless, it would be without prejudice to the right of the drawer to show that the had no knowledge that the notice was brought to his address."
It is further observed that "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, CC No. 181/1/09 Page 5 of 7 where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that the did not receive the notice sent by post, can, within 15 days of the 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 the receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously content 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." The accused has furnished the same address in his Bail Bonds as mentioned on the legal demand notice. Moreover, accused affirmed address on legal notice to be correct in his statement u/s 313 Cr. P C. In view of the aforesaid judgment & Section-27, General Clauses Act, it can be safely presumed that the legal demand notice Ex. CW1/3 was served upon the accused.
Conclusion :-
14. In the facts and circumstances of the present case, complainant has successfully proved on record that the cheque in question was for valid consideration which when presented for encashment got dishonored due to Payment Stopped By The Drawer and in view of receipt of legal demand notice, the same is deemed to have been served upon the accused who failed to make the payment of cheque amount within the stipulated period of time of 15 days and hence accused has committed an offence under Sec.138 N.I. Act.CC No. 181/1/09 Page 6 of 7
Accordingly, the accused Shankar Lal Bhardwaj is convicted for the offence under Sec. 138 NI Act.
ANNOUNCED IN THE OPEN
COURT ON 20.04.2013
All the pages from 1 to 7 are
signed by me. (SUDHIR KUMAR SIROHI)
METROPOLITAN MAGISTRATE - 02,
DWARKA COURTS,NEW DELHI.
CC No. 181/1/09 Page 7 of 7