Delhi District Court
T.P. Jain vs Shyam Lal on 14 May, 2018
IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
NORTH-WEST, ROHINI, DELHI
CC No. 16054/2016
T.P. Jain
S/o Late Sh. Sita Ram Chand
R/o ND-10, Vishakha Enclave,
Pitampura, Delhi-110034 ............Complainant
Versus
Shyam Lal
Proprietor of M/s. Atul Food Industries
At : C-10, Lawrence Road, Industrial Area,
Delhi-110035
Also At:
49, First Floor, Shakti Vihar,
Pitampura, Delhi-110034 .............Accused
JUDGMENT
(1) Name of the complainant, : T.P. Jain
parentage and address S/o Late Sh. Sita Ram Chand
R/o ND-10, Vishakha Enclave,
Pitampura, Delhi-110034
(2) Name of accused, : Shyam Lal
parentage and address Proprietor of M/s. Atul Food
Industries, At : C-10,
Lawrence Road, Industrial Area,
Delhi-110035
Also At:
49, First Floor, Shakti Vihar,
Pitampura, Delhi-110034
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 22.12.2015
(6) Date of reserve of order : 08.05.2018
T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 1
(7) Date of Final Order : 14.05.2018
(8) Final Order : Convicted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
That the complainant is a retired serviceman. The complainant was having good friendly relations with the accused. In February 2013, the accused approached the complainant for a friendly loan of Rs.10,00,000/-. The complainant acceded to his request and gave him friendly loan of Rs.10,00,000/- on 20.02.2013 on interest at the rate of 12% per annum. In discharge of liability, the accused handed over a post dated cheque bearing no. 035744 dated 21.10.2015 for a sum of Rs.10,00,000/- drawn on ICICI Bank Limited, Lawrence Road, Delhi. The cheque was issued under the signature of the accused as proprietor of M/s. Atul Food Industries. After taking the said loan, the accused was regularly paying interest to the complainant and in May 2013, he again approached the complainant for further friendly loan of Rs.10,00,000/-. Since the complainant is a retired employee and was in need of interest income for his day to day expenses and the accused was regularly paying the interest, he acceded to the said request of the accused and gave him further friendly loan of Rs.10,00,000/- vide cheque no. 000013 drawn on Bank of Baroda, Vishakha Enclave, Pitampura, Delhi. In discharge of liability, the accused gave a post dated cheque of Rs.10,00,000/- bearing no. 159810 dated 20.10.2015 drawn on Bank of India, Mayapuri Industrial Area, SME Branch, Delhi. The said cheque was also issued by the accused as a proprietor of M/s. Atul Food Industries. The accused paid interest to the complainant regularly till August 2015. When the complainant presented both the cheques bearing no. 035744 & 159810 for encashment, they were returned unpaid with the reasons "account closed" vide returning memo dated 28.10.2015 and 26.10.2015. On 18.11.2015, the legal notice was sent to the accused through speed post and registered post, calling upon him to pay the amount of Rs.20,00,000/- i.e. the total amount of both the cheques. However, the accused neither made any payment nor sent any reply to the same. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-
T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 2 1/A. He reiterated the contents of complaint and placed on record, cheques bearing no. 035744 dated 21.10.2015 for a sum of Rs.10,00,000/- drawn on ICICI Bank Limited, Lawrence Road, Delhi & bearing no. 159810 dated 20.10.2015 for a sum of Rs.10,00,000/- drawn on Bank of India, Mayapuri Industrial Area, SME Branch, Delhi as Ex. CW1/1 & Ex. CW-1/2 respectively, cheques returning memos dated 28.10.2015 & 26.10.2015 as Ex. CW-1/3 & Ex. CW-1/4 respectively, legal notice dated 18.11.2015 as Ex. CW-1/5 and postal receipts as Ex. CW-1/6 to Ex. CW-1/8.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 11.08.2016 to which he pleaded not guilty and claimed trial. He took the defence that his cheque book was misplaced from his factory one year ago and he lodged a complaint with the police. He admitted his signatures on the cheques in question, however, he denied having filled in the contents therein. He denied receiving of legal notice. He also denied his liability towards the complainant.
5. Thereafter, on 05.06.2017, the complainant was examined, partly cross-examined. The opportunity of the accused to further cross-examine the complainant was closed by the court vide order dated 15.07.2016. The complainant during his cross-examination stated that he developed friendly relations with the accused in the year 2005 through a common friend namely Sh. Umesh Jain. He conceded that he has not mentioned the place and in whose presence, he had given the amount in cash to the accused. He stated that he had given the amount to the accused on 20.02.2013 in the presence of Sh. Umesh Jain. In voluntarily, he stated that he had advanced loan of Rs.10,00,000/- to the accused in October 2010 which was returned by the accused on 29.06.2011 and the accused also paid interest on the amount thrice. He conceded that the said fact is not mentioned in his complaint as well as in his affidavit. He also stated that the loan in question was given to the accused on interest. He also stated that sum of Rs.10,00,000/- was given to the accused on interest by cheque. He conceded that no promissory note, payment receipts and loan agreement was executed at the time of giving of loan to the accused. He conceded that his source of income is not mentioned in the complaint and in the affidavit. He denied the suggestion that he never had friendly relations with the accused. He stated that on 20.02.2013, the accused gave him duly filled cheque i.e. Ex. CW-1/1 in the presence of Sh. Umesh Jain and one more person. He also stated that the contents in Ex. CW-1/1 were filled by one of the persons who had accompanied the accused. He could T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 3 not say whether different inks are used in Ex. CW-1/1 or not. He denied the suggestion that different handwriting and the ink are used in Ex. CW-1/1.
6. On 26.09.2017, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused denied having taken any loan from the complainant. He stated that he used to keep blank signed cheque book in his office. He does not know how the cheques in question reached into the hands of the complainant. He admitted his signatures on the cheques in question. However, he denied having filled in the contents therein. He stated that he had never paid any interest to the complainant. He denied receiving of legal notice, however, he admitted that the legal notice bears his correct address. He also stated that he met the complainant for the first time in the court. He preferred to lead defence evidence. However, on 20.11.2017, he gave the statement that he does not want to lead defence evidence and it was closed at his request.
7. Thereafter, final arguments were heard on behalf of complainant and an opportunity was given to the accused to file written submissions. The matter was listed for orders for 16.01.2018. However, in interregnum the accused moved an application under Section 311 Cr.P.C. for recalling the complainant for cross-examination, which was dismissed by the court vide order dated 27.01.2018. Thereafter, an opportunity was given to the accused to advance final arguments which were addressed by him on 09.02.2018 and the matter was listed for orders for 24.02.2018. In the mean time, the complainant moved an application under Section 311 Cr.P.C. for recalling the complainant for examination and for placing on record certain documents. The said application was dismissed by the court vide order dated 17.04.2018.
8. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 4
2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. 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) 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.
Section 118 of the N.I Act provides : "Presumptions as to negotiable instruments:
Until the contrary is proved, the following presumptions shall be made: (a) of consideration
- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - 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".
11. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 5 Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
12. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
13. Coming to the facts and circumstances of the present case. The accused has admitted in the notice under Section 251 Cr.P.C. that the cheques in question bear his signatures. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
14. It means that in the present case the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheques in question were not given by him to the complainant is not sufficient to rebut the presumption.
15. In my opinion, the accused has failed to rebut the presumption of legal liability. Neither on a reading of the complaint nor from the evidence led by the complainant and the cross examination of the complainant, the accused has been able to create a reasonable doubt on the case of the complainant. The accused had taken the defence that he has misplaced the cheques in question and he does not know how the cheques in question came in the possession of the complainant. No cogent evidence has been adduced by the accused in support of his plea. No attempt has been made by the accused to examine himself. If the said version of the accused was indeed true he ought to have filed a complaint with the police against the complainant for misusing his cheques. The accused has also not given the details viz. date of misplacing of cheque or date, month or year in which it came to his knowledge that his cheque book had been stolen T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 6 from his factory and the steps taken by him to stop someone from misusing it. The accused, to rebut the presumption under Section 139 read with Section 118 of the NI Act, has to set up at least a probable defence. The defence cannot be frivolous or moonshine. It cannot be merely a "possible" defence. Partial cross-examination of the complainant was conducted by the accused and nothing favorable has emerged in favour of the accused. The evidence led by the complainant is totally unrebutted. No effective defence has been put forth by the accused and no effective cross-examination has been conducted. There is nothing on record which can suggest that the complainant has misused the cheques of the accused. In Halsbury's Laws of England, forth edition, Vol. 17, Para no. 278 at Page no. 194, it has been held that failure to effectively cross-examine a witness on some material part of his evidence or failure to cross-examine him totally, may be treated as acceptance of the truth of the statement of the witness.
16. Moreover, the accused did not step into the witness box to stand by his defence. The defence taken by the accused at the time of framing of notice and while recording the statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. can not be considered as evidence. For this, I rely upon the judgments of Hon'ble High Court of Delhi, V.S. Yadav v. Reena [172(2010)DLT 561] and Bansal Plywood v. State(NCT of Delhi) and Anr. (CRIMINAL APPEAL No. 17 of 2017) decided on 04.09.2017. It was held that "the defence taken by the respondent no. 3 at the time of framing of notice under Section 251 Cr.P.C. or the defence taken by her in her application under Section 145(2) NI Act or her explanation under Section 313 Cr.P.C. read with Section 281 of the Code recorded on 4.02.2015 is not "evidence" within the meaning of Section 3 of the Indian Evidence Act, 1872. When person appears in the court as a witness, he is required to state facts on oath under Section 4 of Oaths Act, 1969 and his examination in chief is tested on touchstone on cross-examination by other party. This is actually the evidence. Therefore, the plea taken in application under Section 145(2) NI Act or defence taken at the time of framing of notice under Section 251 of Code or the explanation under Section 313 read with Section 281 of the Code by any stretch and imagination can not be treated as "evidence". This is only a defence which should have been proved by cogent evidence to rebut the presumption under Section 139 and 118 of the Act".
Thus, the bald plea of the accused having not been substantiated by cogent evidence would not be sufficient to rebut the presumption of law against him.
T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 7
17. It was argued by Counsel for the accused that the complainant, in his cross- examination, has stated that the cheques in question were given to him in the presence of Sh. Umesh Jain, however, the said witness was not examined by him. It was also contended that the complainant has not disclosed his source of income for providing loan of Rs.20,00,000/-. It was also argued that he has not placed on record any agreement or receipt to show that the accused had been paying interest to him on the loan amount and thus, all these facts create doubt on his case. I do not find merits in the submission of Ld. Counsel for the accused. Non examination of witnesses and non filing of documents are not fatal to the case of the complainant. For this, I rely upon one judgment Sanjay Arora v. Monika Singh [2017 SCC Online Del 8897]. In that case, it was held that "para 24. mere admission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under Section 251 Cr.P.C.". Thus, there is no force in the submission of Counsel for the accused.
18. In view of the above, this court is of the considered opinion that the accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. The complainant has led cogent evidence to prove his case. Therefore, complainant has successfully proved his case beyond reasonable doubt.
19. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
20. Let the accused be heard on quantum of sentence.
21. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by PRIYANKA PRIYANKA RAJPOOT RAJPOOT Date: 2018.05.16 11:29:23 +0530 ANNOUNCED IN THE OPEN COURT (PRIYANKA RAJPOOT) TODAY i.e. 14th MAY 2018 METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI T.P. Jain v. Shyam Lal CC No. 16054/2016 Page no. 8