Delhi District Court
Makhddoom Akhtar vs . M. Jamil Ansari on 23 August, 2013
IN THE COURT OF SH. DHEERAJ MITTAL: M.M-02 (N.I.ACT):
SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Makhddoom Akhtar Vs. M. Jamil Ansari
CC No.1000/1/2009
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification : 02403R0177402009
Number of the case
2. Name of the complainant : Sh. Makhdoom Akhtar
S/o Shri Abdul Ali
R/o B-145, Shaheen Bagh,
Jamia Nagar, Okhla
New Delhi - 110025
3. Name of the accused , : Shri M. Jamil Ansari
parentage & residential Prop. Aftab-E-Hind
address R/o J-54, Gali No.12/3,
J Extn-II, Ramesh Park,
Laxmi Nagar,
Delhi - 110092
4. Offence complained of or : U/s 138 of Negotiable
proved Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and
claimed trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 23.08.2013
Date of Institution : 08.06.2009
Date of Reserving Judgment/Order : 05.08.2013
Date of Pronouncement of Judgment/Order : 23.08.2013
JUDGMENT
1. Brief facts of the case as per complainant are:
The accused and complainant are known to each other since long time and therefore, accused approached and took a friendly loan of Rs.41,000/- in cash from the complainant in the month of August, 2008 for his business needs. It is alleged that the accused assured complainant that he would repay the said loan amount within six months, but after the expiry of said period, accused sought more time to discharge his liability. It is further alleged that on several requests of the complainant, the accused issued a cheque bearing no. 801432 dated 08.04.2009 amounting Rs.41,000/- (Rupees Forty One Thousand only) drawn on The Janta Co-operative Bank Ltd. Darya Ganj, New Delhi (cheque in question) being proprietor of newspaper Aftab-E-Hind. It is further alleged that when the cheque was presented by the complainant in his bank for encashment, the same was dishonoured with remarks "funds insufficient". Thereafter, a legal notice dated 27.04.2009 was sent to the accused demanding the cheque amount, but on failure of the accused to pay the said amount, the present complaint was filed.
2. The accused was summoned for the offence u/s 138 N.I. Act by my Ld. Predecessor vide summoning order dated 30.09.2009.
3. Notice u/s 251 Cr.P.C. was served upon the accused on 01.12.2011, to which he pleaded not guilty and claimed trial.
4. Complainant/CW-1 led his post-notice evidence by way of adopting the pre-summoning affidavit Ex.CW1/A, deposed on the same lines as in the complaint and relied upon the following documents:-
(i) Cheque bearing no.801432 dated 08.04.2009 amounting Rs.41,000/- (Rupees Forty One Thousand only) drawn on The Janta Co-operative Bank Ltd. Darya Ganj, New Delhi Ex.CW1/1.
(ii) Bank returning memo dated 13.04.2009 Ex.CW1/2.
(iii) Copy of legal Notice dated 27.04.2009 Ex.CW1/3.
(iv) Postal dispatch receipt and UPC dispatch receipt Ex.CW-1/4 and returned A/D card Ex.CW1/5.
The complainant did not examine any other witness in his evidence and did not file any other document during his evidence.
5. The statement of the accused namely M. Jamil Ansari was recorded u/s 313 Cr.P.C. on 09.01.2013, wherein all the incriminating evidence was put to him. The accused examined one witness Shri Bhim Sharma as DW-1 in his defence evidence.
6. In brief, the accused has taken the defence that the cheque in question was given in advance to the complainant for security as the complainant has to give work of advertisements in his newspaper 'Aftab E Hind' and the cheque in question was for the payment of commission on the work of advertisement. But the complainant did not provide any work of advertisements and therefore, the cheque in question was not to be presented for encashment. The accused denied having any liability towards the complainant. The accused denied the receipt of legal notice.
7. It is settled proposition of law that for fastening liability u/s 138 Negotiable Instruments Act, following requirements are to be fulfilled: -
(a) Drawing of the cheque by the person on the account maintained by him.
(b) Drawer of the cheque issued the cheque to
discharge in whole or in part,any legal
enforceable debt or other liability.
(c) The cheque issued has been returned unpaid due to
insufficiency of funds or exceeds the arranged amount.
(d) The drawer fails to make payment within stipulated time after the receipt of demand notice.
8. I have perused the record, heard the submissions from the counsels for the parties and have gone through the written arguments filed by the accused.
The counsel for the complainant stated that the complainant has proved all the ingredients of the offence. He stated that AD card Ex. CW-1/5 is on record which shows that the legal notice was served upon the accused. He further stated that no notice regarding the return of cheque in question was sent by the accused to the complainant and no stop payment instructions were given to the banker. The counsel drew the attention of the court to certain order sheets and specifically the order sheet dated 07.03.2011 and submitted that the summons sent by the court had been served upon the accused on the same address as mentioned in the complaint. With these submissions, the counsel stated that the plea of the accused regarding non-service of legal notice is not tenable.
Per contra, counsel for the accused stated that the service of legal notice is sine qua non for the offence u/s 138 of N.I. Act and in the present case, legal notice was not served upon the accused and complainant has failed to show the delivery of legal notice to the accused. He further stated that the cheque in question was a security cheque and not for the discharge of any legal liability and therefore, offence u/s 138 N.I. Act is not made out. In support of his submissions, the counsel has heavily relied upon the following citations:-
i) S.K. Mittal Vs. Saree Mehal Reg. 2012 (2) DCR 384 Delhi High Court;
ii) Shibu Chakraborty Vs. Artati Poddar 1984-1997 DCR (2) 550 Karnataka High Court;
9. In the present case, the main defence of the accused is that legal notice was not served upon him. On the other hand, it was averred by the complainant that legal notice has been served upon the accused. The accused stated that the address on the UPC dispatch receipt Ex. CW-1/4 and returned A/D card Ex. CW-1/5 is not his correct address and complainant/CW-1 has admitted in his cross examination that the legal notice was not sent at the correct address of the accused. Here, it is important to note that in legal notice Ex. CW-1/3, in complaint the address of the accused has been mentioned as 'Sh. M. Jamil Ansari, Prop. Aftab-E-Hind, R/o J-54, Gali No.12/3, J- Extn.-II, Ramesh Park, Laxmi Nagar, Delhi - 110092'. Whereas on UPC dispatch receipt Ex. CW-1/4 and returned A/D card Ex. CW-1/5, the address of the accused is mentioned as 'Sh. M. Jamil Ansari, Prop. Aftab-E-Hind, R/o J-54, Gali No.12/3, J- Extn.-II, Ramesh Nagar, Laxmi Nagar, Delhi - 110092'.
Therefore, it was contended by the accused that the address written in the complaint, body of the legal notice is his correct address and the complainant has not written his correct address on the UPC dispatch receipt and returned A/D card and therefore, legal notice was not served upon him.
10. During arguments, it was stated by the counsel for accused that the Ramesh Nagar is in West Delhi and therefore, the legal notice showing address of the accused as Ramesh Nagar was not served upon the accused. The cross examination of complainant/CW-1 would show that the complaint contains the correct address of the accused whereas on UPC and returned A/D card, the correct address of the accused was not written. The relevant portion of the cross examination of CW-1 is reproduced herein for the sake of clarity :-
"......... This is correct that my counsel sent the statutory notice on my instructions at the address Sh. M Jamil Ansari, Proprietor Aftabe Hind, J-54, Gali No.12/3, J Extension II, Ramesh Nagar, Laxmi Nagar Delhi by registered AD and UPC. The registered AD and UPC are Ex. CW-1/5 and Ex. CW-1/4 respectively. But the address shown of the accused in the criminal complaint i.e. J-54, Gali No.12/3, J Extension II, Ramesh Park, Laxmi Nagar Delhi is correct..........."
Therefore, from the evidence of the complainant/CW-1, it is clear that the correct address was not written on the UPC and registered AD card. Since the correct address of the accused/respondent was not written on the UPC and registered post, no presumption regarding service of legal notice can be drawn.
11. It is settled law that the presumption regarding the service of legal notice can be raised only when the legal notice is sent by regd. post at the correct address of the accused/drawer. If the address on the legal notice and postal receipt is not the correct address of the accused, no presumption regarding service of legal notice can be raised against the accused/drawer. In the given facts of the case, when the accused has challenged the service of legal notice from the very beginning and the address on the UPC and registered AD card was not his correct address, it was the duty of the complainant to prove that the service of legal notice was effected upon the accused. However, it is a matter of record that the complainant did not bring any evidence on record to prove the service of legal notice. It may be noted that when the matter is listed for final arguments, an application u/s 311 Cr.P.C. was moved by the complainant for the examination of postman who served the legal notice upon the accused, but the same was dismissed by the court vide order dated 21.05.2013. Here, it is important to note that the Judgment of Apex Court in case titled as "CC Alavi Hazi Vs. Palapetty Muhammed 2007 (3) RCR (Crl.) 185 SC". The relevant portion is reproduced herein "10. It is, thus trite to say that where the payee dispatches the notice by regd. Post with correct address of the drawer of the cheque, the principle incorporated in section 27 of G.C. Act would be attracted, the requirement of the clause (b) of proviso to section 138 of the Act stands complied with...."
Section 27 of the General Clauses Act, 1897 also says that service shall be deemed to be effected by properly addressing, pre-paying and posting by regd. Post a letter containing the document. Therefore, it is clear that if the address on the postal dispatch receipt/document is not complete and correct, no presumption of service regarding legal notice can be drawn in favour of the complainant.
12. The counsel for accused has relied upon the Judgment of Karnataka High Court in the case titled as 'Shibu Chakraborty' (cited supra) to support his submissions that if the address is not the correct, no presumption regarding service of legal notice/registered letter is drawn. The relevant portion of the Judgment is reproduced herein: -
".......... The presumption that a registered letter was delivered at its address to the addressee, arises only if the address is correct. If there is possibility of the address being not correct this presumption stand rebutted. In this case, the complainant admits that the residential address of the opposite party No.1 was not what was recorded on the notice. So the presumption which otherwise arise under the provisions of section 114 (e) &
(f) of the Evidence Act and Section 27 of General Clauses Act read with provisions of Indian Post Officers Act does not arise in these circumstances of this case.
8. Service of Demand Notice is an essential ingredient of the offence under Section 138 of the Negotiable Instruments Act, as failure to comply with such Demand Notice is also essential ingredient to the offence........."
In view of the aforesaid discussions, it may be concluded that the complainant has failed to prove the service of legal notice upon the accused.
13. It is settled proposition of law that to fasten a liability for a criminal offence, all the ingredients of the offence have to be fulfilled and even if one ingredient of the offence is not completed, the accused cannot be convicted for that offence. It is further settled that the criminal laws are to be interpreted strictly and if the prosecution/complainant fails to fulfill the necessary ingredients of the alleged offence, the accused should be given benefit of that and he cannot be convicted for that alleged offence. As noted above, to make out the accused punishable for the offence u/s 138 N.I. Act, the aforesaid four ingredients as mentioned in paragraph 7 should be completed and service of legal notice upon the accused is one of that ingredients. If the complainant fails to prove the service of legal notice upon the accused, the accused cannot be convicted for the offence u/s 138 N.I. Act.
14. It may be noted that during final arguments, the counsel for the complainant drew attention of the court towards order sheet dated 07.03.2011 and stated that summons as well as other processes issued by this court have been served upon the accused at the address mentioned in the complaint. I have considered the arguments of the counsel, but the same are not helpful to the complainant because the address mentioned in the complaint is the correct address of the accused, whereas the address on the UPC and registered AD card is not the correct address of the accused and this has been the defence of the accused throughout the case.
15. Apart from the failure of proving the service of legal notice upon the accused, there are other lacunae/short comings in the case of the complainant. In his cross examination, complainant/CW-1 deposed that he was doing work of procuring work of advertisements for the newspapers and periodicals and therefore, this statement of the witness gives weight to the defence of the accused that the cheque might be for the payment of commission on procuring the advertisement work for the newspaper of the accused. Moreover, the complainant has not filed any written receipt/loan agreement/any other document which could show that the loan was granted to the accused. Further, there is no witness (except complainant/CW-1) examined by the complainant to prove that the loan was granted to the accused. It may be noted that in this case, the complainant has alleged that he had given a loan of Rs.41,000/- to the accused and the cheque in question is also of Rs.41,000/-. It cannot be expected that a person would take a loan in such figure i.e. Rs.41,000/-. Generally, the amount is in round figure i.e. of Rs.40,000/-, Rs.50,000/-, Rs. 1 Lakh etc. Moreover, it has been nowhere stated by the complainant that the demand of the accused was something else but he had given a loan of only Rs.41,000/-. These facts also raises doubt about the version of the complainant. It may be noted that the complainant/prosecution has to prove his case beyond reasonable doubt and it has to stand on its own legs.
In this case, the complainant has failed to bring any evidence on record to show that the loan was granted to the accused.
16. The discussion on the other facts of the case whether the complainant has proved or not proved the other ingredients of the offence and analysis of evidence of DW-1 will be a futile exercise which will waste the time of the court because it has already noted that even if one ingredient of the alleged offence is missing, the accused cannot be convicted of that offence.
17. Consequently, accused is entitled to be acquitted in this case and hence, accused M. Jamil Ansari is acquitted of offence u/s 138 N.I. Act.
File be consigned to record room after necessary formalities.
Pronounced in the open court (Dheeraj Mittal) on 23.08.2013 M.M.(N.I. Act)-02:SED: Saket Courts, New Delhi