Delhi District Court
Drawing Of The Cheque; vs Sharafudheen" Reported At 2003(2) Dcr ... on 4 April, 2012
1 IN THE COURT OF SHRI VIDYA PRAKASH, ACMM01(N/W) ROHINI COURTS DELHI C.C No. 589/1 ID No. 02404R0146942010 Sh. Anil Kumar Gupta ......... Complainant Vs. Dalip Kumar Ram ........... Accused JUDGMENT
1. Name of the Complainant's : Anil Kumar Gupta
2. Name of the accused, parentage : Dalip Kumar Ram,
address: R/o B62, Ist Floor,
Shaheed Sukhdev Nagar,
Wazirpur Industrial Area,
Delhi110052
3.Offence Complained of or proved : Section 138 Negotiable Instrument Act.
4.Plea of accused : Pleaded not guilty
5.Date of Institution of the case : 12.07.10
6.Date of reserve for order : 04.04.12 C.C No.589/1 Page 1/25 2
7.Final order : Convicted
8.Date of final order : 17.04.2012 BRIEF REASONS FOR THE DECISION OF THE CASE:
In brief, the case of the complainant is that he was having friendly and cordial relation with accused namely Dalip Kumar Ram. The accused was in dire need of money for the purpose of treatment of his wife and therefore, approached him for providing friendly loan. Accordingly, the complainant gave friendly loan of Rs. 60,000/ without interest to the accused in the month of January, 2010 which was agreed to be repaid on or before 31.3.10. The accused issued cheque bearing no. 325305 dt. 15.04.10 of Rs. 60,000/ drawn on State Bank of India, Wazirpur Industrial Estate branch, New Delhi(hereinafter referred to as the cheque in question) towards discharge of said liability. However, the said cheque was got dishonoured on its presentation with remarks "05kindly Contact drawer/drawee bank and please present again" vide memo dt. 16.04.10. On request of accused, the said cheque was again presented for encashment but same was again dishonoured with similar remarks vide subsequent memo dt. 22.04.10. On further request of accused, the said cheque was again presented for encashment but same was again dishonoured with the same remarks vide subsequent memo dt. 21.5.10 on which accused was served with legal notice dt. 02.06.10 through his counsel but accused failed to pay the cheque amount to the complainant thereby C.C No.589/1 Page 2/25 3 compelling the complainant to file the present complaint case.
After pre summoning evidence led by complainant, the accused was summoned in respect of offence U/s 138 N.I Act and notice U/s 251 Cr.PC was served upon accused on 29.11.10 in respect of said offence to which he pleaded not guilty and claimed trial. He claimed that the entire cheque book including the cheque in question, was lost besides his matric certificate. Out of cheques contained in the said cheque book, three blank cheques were already signed by him and the complainant has misused one of those cheques by filing the present complaint case.
Towards post notice evidence, the complainant has examined only himself as CW1. In his chief examination by way of affidavit, he deposed on the lines of averments made in the complaint case as discussed above. He has exhibited the cheque in question as CW1/1, returning memo dt. 16.4.10 as CW1/3, returning memo dt. 22.4.10 as CW1/6, returning memo dt. 21.5.10 as CW1/9, copy of legal notice dt. 02.06.10 as CW1/11, postal receipt, UPC receipt and returned envelope as CW1/12 to CW1/14 respectively and reply to legal notice dt. 02.06.10 as CW1/15.
During his cross examination on behalf of accused, complainant deposed that he knew the accused through his uncle namely Sh. O.P Gujral who is residing in his colony and was working in SBI. He further deposed that he had given the money to the accused in the month of January 2010 for the treatment of his wife C.C No.589/1 Page 3/25 4 and accused had promised to return the same by the end of March, 2010. The accused had given duly filled up cheque at Railway Crossing of C4, Lawrence Road, Delhi. He did not get any written document or receipt executed from accused while lending the money. He further stated that there was no guarantor or mediator in between him and the accused as accused was known to him. He further deposed that he had no knowledge as to whether the relevant documents including cheque book and pass book of accused got misplaced on 22.7.09 or that accused had lodged complaint dt. 22.7.09 with PS Ashok Vihar vide DD no. 41B or that the accused had already informed his banker in writing about the loss of his cheque book and pass book or not. He denied the suggestion that he got the particulars filled up in the cheque in question in collusion with his uncle in order to extort money from the accused or that the accused is not liable to pay any money to him.
Thereafter, statement U/s 313 Cr.PC of accused was recorded during which accused stated that this is a false case as the entire cheque book including the cheque in question was lost besides matric certificate. He further stated that out of the cheques contained in the said cheque book, three cheques were signed in blank by him and the complainant has misused one of the said cheques by filing the present complaint case.
The accused has also examined himself as DW1 and Sh. Balwan Singh Bisht, Special Assistant, SBI, Wazirpur Branch, Delhi as DW2 towards DE. C.C No.589/1 Page 4/25 5
The accused entered into witness box as DW1 and deposed on the lines of defence taken by him in his statement U/s 313 Cr.PC as mentioned above. He stated that he never received any loan amount from the complainant. On 22.7.09, some documents i.e passbook (copy of which has been marked as D1/A), cheque book, matriculation certificate, disability certificate and caste certificate were misplaced and NCR no. 2032/09 with PS Ashok Vihar Ex DW1/1 was registered. On 11.6.10, he gave complaint Ex DW1/2 to concerned SHO regarding missing of aforesaid documents. He further deposed that he also complained about the missing of the aforesaid documents to Bank Manager, SBI, Wazirpur, Industrial Area, Delhi. He had also sent reply mark D1/B(also Ex CW1/15) to the notice sent by complainant. During his cross examination, he deposed that he did not know the person who has filed the case against him. He admitted that NCR filed by him, does not mention the number of cheques lost as well as loss of any cheque book. He admitted that the cheque in question bears his signature but claimed that the amount is not filled up by him. He also admitted that he had not disclosed the number of lost cheques to his bank. He did not remember as to how many leaves were there in the cheque book which was got issued by the bank. He admitted that he did not instruct his bank in writing about "Stop Payment" with respect to the cheque in question. He deposed that he came to know about the dishonour of said cheque only when he had received the legal notice sent by complainant. He testified that he receives handicap pension which is credited in his account after C.C No.589/1 Page 5/25 6 three or six months during which period he used to visit the bank for receiving the same. He also produced fresh pass book which was issued to him on 24.7.09 showing therein all the transactions which took place. The photocopy of the said pass book has been proved as Ex as DW1/C1.
DW2 namely Sh. Balwan Singh Bisht Special Assistant in SBI, Wazirpur Branch, Delhi is the bank official of the banker of accused who entered into witness box and produced letter dt. 24.7.09 Ex DW2/A submitted by the accused with the bank for issuance of fresh pass book. He also produced relevant entry of the pass book retained register regarding issuance of fresh pass book to the accused. He proved photocopy of said relevant entry as DW2/B and DW2/C. He deposed that as per the record available in the bank, no application was moved by accused for issuance of fresh cheque book at the time of submitting the letter Ex DW2/A. However, he produced another application dt. 03.03.10 Ex DW2/D filed by accused before the bank regarding loss of his cheque book alongwith NCR dt. 22.7.09(Ex DW1/1) and on his request, fresh cheque book was sent to him through post. During his cross examination, he admitted that as per the procedure followed in the bank, whenever an application is received from any account holder, same is accepted against stamp of the bank and the date of receipt of said application is also mentioned therein. He also admitted that request for issuance of fresh cheque book was made by accused in this case only on 03.03.10 and prior to said date, no such request was made by accused with the bank on account of lost of his C.C No.589/1 Page 6/25 7 previous cheque book. During cross examination, DW2 also produced statement of account in respect of the bank account of the accused maintained in the bank for the period w.e.f 01.05.06 till 17.01.12. The said statement of account has been proved as Ex DW2/C1.
I have already heard Ld counsel Sh Nitin Bhardwaj Adv on behalf of complainant and Ld counsel Sh Sahib Singh Adv on behalf of accused. I have also carefully perused the record as well as the authority cited at the bar.
6. Before discussing the merits of the present case, it is relevant to discuss the relevant case law on the point in issue. In 'Harman Electronics(P) Ltd., V. National Panasonic India Ltd., (2008) 16 SCALE 317, the Court opined that the offence under Section 138 of the Act can be completed only with the concatenation of a number of acts, namely:
1.Drawing of the cheque;
2.Presentation of the cheque to the bank;
3.Returning of the cheque unpaid by the drawee bank;
4.Giving of notice in writing to the drawer of the cheque demanding payment of the cheque amount;
5.Failure of the drawer to make payment within 15 days of the receipt of the cheque.
Before proceeding further, let it be mentioned here that certain facts are not in dispute in this case.
C.C No.589/1 Page 7/25 8 It is not in dispute that cheque in question Ex CW1/1 bears the signature of the accused.
• It is also an undisputed fact that the cheque in question Ex CW1/1 was dishonoured vide returning memos Ex CW1/3, CW1/6 and CW1/9 with remarks "05kindly Contact drawer/drawee bank and please present again"
• It is an admitted fact that demand notice Ex CW1/11 was received by accused as reply Ex CW1/15 sent by him, has also been proved during trial.
7. It has been argued on behalf of complainant that there is a presumption in favour of complainant that cheque in question was issued by him for consideration and against valid debt. It has been further argued that it was for the accused to rebut the said presumption but the accused has failed to do so. Counsel for complainant further submitted that the defence raised by accused that his cheque book had been lost or that the complainant has misused the cheque contained in in the said cheque book, could not be proved by him either during cross examination of complainant or otherwise. Therefore, accused should be held guilty as he failed to pay the cheque amount to the complainant either within stipulated time from the date of receipt of demand notice dt. 02.06.10 Ex CW1/11 or even thereafter. Ld counsel of complainant also submitted that the receipt of demand notice Ex CW1/11 by accused is not disputed as the accused had also sent reply Ex CW1/15 to the said notice.
Ld counsel for the accused, per contra, argued that the complainant has failed C.C No.589/1 Page 8/25 9 to prove its case against the accused. He further submitted that the complainant has misused the cheque in question which was one of three blank signed cheques contained in the cheque book which had been lost by the accused. In this regard, counsel of accused also referred to NCR no. 2032/09 dt. 22.7.09 lodged at PS Ashok Vihar ( Ex DW1/1 as well as to the letters Ex. DW2/A and DW2/D produced by the banker of the accused towards DE.
Another bone of contention raised on behalf of accused is that the returning memo Ex CW1/10 does not disclose any reason of dishonour of the cheque in question and therefore, the offence U/s 138 N.I Act is not attracted at all. Ld counsel submitted that the cheque in question is shown to have been dishonoured with remarks " "05kindly Contact drawer/drawee bank and please present again"
and it nowhere shows that same was got dishonoured on account of insufficient funds or any other ground attracting the penal offence contained in Section 138 N.I Act. Therefore, the present complaint case is liable to be dismissed. In support of his submissions, counsel of accused also placed reliance upon the judgment of Hon'ble Kerala High Court reported at 2012(1) JCC(NI) 43.
8. In order to appreciate the contentions raised by Ld counsels for both the sides, it is appropriate to refer to the provision contained in Section 139 r/w section 118 of the Negotiable Instruments Act.
10. Under section 118 of the Negotiable Instruments Act, there is a legal presumption in favour of the complainant that every negotiable instrument (which C.C No.589/1 Page 9/25 10 includes a cheque) was made or drawn for consideration. The legal presumption is also regarding date of cheque, time of its acceptance, time of transfer, order of endorsement and also as to stamps. Reading section 118 and 139 of Negotiable Instruments Act, a presumption arises in favour of the complainant and not in favour of accused that, when this cheque was received by the complainant, it was against consideration and also towards discharge of liability by the accused.
11. In the case of M/s. Kumar Exports v. M/s. Sharma Carpets , 2009(1) R.C.R.(Criminal) 478 : 2009(1) R.C.R.(Civil) 453 : 2009(1) R.A.J. 154 Hon'ble Supreme Court of India, held as follows;
"9. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. In a suit to enforce a simple Contact, the plaintiff has to aver in his pleading that it was made for good consideration and must sub stantiate it by evidence. But to this rule, the negotiable instruments are an exception. In a significant departure from the general rule applicable to Contacts, Section 118 of the Act provides certain presumptions to be raised. This Section lays down some special rules of evidence relating to presumptions. The reason for these presump tions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, un less certain presumptions are made. The presumption, therefore, is a matter of prin C.C No.589/1 Page 10/25 11 ciple to facilitate negotiability as well as trade. Section 118 of the Act provides pre sumptions to be raised until the contrary is proved (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of endorsements, (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the Act provides that it shall be presumed, un less 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. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insuf ficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely, (1)"may presume" (rebuttable), (2) "shall presume" (rebuttable) and (3) "conclusive presump tions" (irrebuttable). The term `presumption' is used to designate an inference, affir mative or dis affirmative of the existence a fact, conveniently called the "presumed fact" drawn by a judicial tribunal, by a process of probable reasoning from some mat ter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without exami nation or proof". Section 4 of the Evidence Act interalia defines the words `may pre sume' and `shall presume as follows: "(a) `may presume' Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or C.C No.589/1 Page 11/25 12 may call for proof of it.
(b) 'shall presume' Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved."
In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, un less and until it is disproved."
"10. Section 118 of the Act inter alia directs that it shall be presumed, until the con trary is proved, that every negotiable instrument was made or drawn for considera tion. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability."
"Applying the definition of the word `proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable in strument was made or drawn for consideration and that it was executed for dis charge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the in strument, say a note, was executed by the accused, the rules of presumptions under C.C No.589/1 Page 12/25 13 Sections 118 and 139 of the Act help him shift the burden on the accused. The pre sumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in dis charge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists."
" 11. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebut table, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evi dence fairly and reasonably tending to show that the real fact is not as pre sumed, the purpose of the presumption is over. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statuto ry presumptions an accused is not expected to prove his defence beyond rea sonable doubt as is expected of the complainant in a criminal trial. The ac cused may adduce direct evidence to prove that the note in question was not C.C No.589/1 Page 13/25 14 supported by consideration and that there was no debt or liability to be dis charged by him. However, the court need not insist in every case that the ac cused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circum stances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not in curred any debt or liability, the accused may also rely upon circumstantial evi dence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evi dence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the nonexistence of considera tion and debt or liability either by letting in evidence or in some clear and ex C.C No.589/1 Page 14/25 15 ceptional cases, from the case set out by the complainant, that is, the aver ments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue. "
12. The law as enumerated by Hon'ble Apex Court in aforesaid authority and the provisions contained in Section 118 r/w Section 139 N.I Act clearly shows that there is a legal presumption in favour of complainant and against the accused that the cheque in question was received by the complainant in discharge of any debt or other liability from the accused either in whole or in part. As per this section, the burden to rebut the presumption was on the accused which the accused failed to rebut in the present case. To rebut the presumption u/s 138 N.I. Act, there has to be some more evidence from the accused besides making of bare oral denial. The accused has not proved any documentary proof to prove his case. If such a defence without any document is to be taken as sufficient rebuttal, in every case u/s.138 N.I. Act, the accused can escape his liability by mere oral claim that the cheque was not in discharge of his liability.
The discussion made herein above goes to show that the stand taken by C.C No.589/1 Page 15/25 16 accused is that cheque book issued by his banker had been lost and said cheque book was containing three blank signed cheques. The cheque in question was one of those cheques which has been allegedly misused by the complainant in this case. In this regard, the accused has proved copy of NCR no. 2032/09 dt. 22.7.09 Ex DW1/1. The perusal of said NCR reveals that there is no mention about the loss of cheque book of the accused therein. The said information relates to the loss of VoterICard, Disability Certificate, pass book, Xth Class certificate only. It is pertinent to note that as per the contents of aforesaid NCR, the documents mentioned therein had been allegedly lost on said date i.e 22.7.09. In case the cheque book of accused had also been lost at that time, it was the duty of accused to disclose this fact before duty officer of PS Ashok Vihar and same would have definitely been mentioned by duty officer in the said NCR. The subsequent conduct of accused in not making any written request with his banker to issue fresh cheque book on account of loss of his previous cheque book further shows that cheque book of accused had not been lost. The accused as DW1 has admitted during crossexamination that NCR Ex DW1/1 does not contain any reference about loss of cheque book. He also admitted that he did not make any request with his banker to issue fresh cheque book. He also did not issue instructions to his banker for ' stop payment' in respect of those cheques.
DW2 Sh Balwan Singh Bisht who is the bank official of the banker of accused, has proved copy of application/letter dt. 24.7.09 Ex DW2/A submitted by C.C No.589/1 Page 16/25 17 accused wherein he has mentioned that his pass book had been misplaced and he requested the banker to issue fresh pass book to him. Had it been the situation where cheque book of the accused would have also been lost besides pass book, the accused would have requested his banker to issue fresh cheque book as well alongwith the pass book. However, same has not been done for which no explanation whatsoever has been furnished by accused during trial.
It is relevant to mention here that cheque in question Ex CW1/1 which is dt. 15.4.10, was lastly dishonoured by the banker of accused vide returning memo dt. 21.5.10 Ex CW1/9 and demand notice dt. 02.06.10 Ex CW1/11 was also served upon the accused vide AD card Ex CW1/14 atleast before 14.6.10 as reply dt. 14.6.10 Ex CW1/15 was also sent by accused through his counsel to the counsel of complainant. The falsity of the defence taken by accused is apparent from the fact that he claimed in reply dt. 14.6.10 Ex CW1/15 that he had lodged complaint before SHO PS Ashok Vihar vide NCR no. 2032/09 about missing of his documents including 23 signed cheques in the cheque book on 22.7.09 despite the fact that said NCR was totally silent about missing of any cheque book or 23 signed cheques therein. Not only this, photocopy of relevant entry of pass book retained register proved as DW2/B also fortifies the fact that only pass book was issued to the accused against his written request on 24.7.09. The testimony of DW2 Sh. Balwan Singh Bisht examined by accused himself, also corroborates this fact. In fact, the testimony of said witness demolishes the stand/defence taken by C.C No.589/1 Page 17/25 18 accused that his cheque book had been lost on 22.7.09 as the said witness categorically stated during cross examination that the accused never made any request about loss of his cheque book with the bank at any point of time prior to 03.3.10.
In view of the aforesaid facts and circumstances and the case law discussed supra, this Court is of the considered view that the accused has failed to rebut the presumption available in favour of complainant that the cheque in question was issued towards discharge of legal debt.
This brings me down to the other argument raised on behalf of accused that offence U/s 138 N.I. Act does not get attracted in view of the reason that cheque in question has been dishonoured with remarks "05kindly Contact drawer/drawee bank and please present again". In this regard, reliance has also been placed by Ld counsel for accused on the judgment of Kerala High Court mentioned supra wherein it has been observed that like any other document, mere production and marking of cheque may only prove that a cheque which contains an order in writing and a signature has come into existence but it will not further prove that it is credited, drawn or executed by the accused. It has been further observed in the said judgment that as per Section 67 of Evidence Act, execution of document is primarily proved by examining the person who executed or created document by writing and signing the same. When such examination is not possible, execution can be proved by examining the person who saw the C.C No.589/1 Page 18/25 19 document being written and signed. While placing reliance upon the aforesaid observations made in the said authority, Ld counsel of accused argued that the complainant has failed to prove the execution of cheque in question by the accused and therefore, his case remained unproved during trial.
On the other hand, Ld counsel for the complainant submitted that on account of electronic clearing system being adopted by the banks, such type of returning memos are being issued by various banks and complainant should not be non suited for the said reason. Ld counsel for complainant also submitted that the cheque in question was dishonoured on account of insufficiency of funds as statement of account Ex DW1/C1 produced by the bank official of the banker of accused clearly shows that there was no sufficient funds in the account of the accused to honour the said cheque as on the date of its presentation lastly. Ld counsel for complainant also filed copy of model list of objections in respect of dishonour of instruments and image based cheque clearing wherein one of the ground for dishonoure of cheque is shown to be " Refer to Drawer". There are two sub heads under the said head and one of the sub head provides " kindly contact drawer/drawee bank and plead present again" While relying upon the said model list of objections, it is submitted that cheque in question has been dishonoured on the ground " Refer to Drawer" by the bank of accused and said reason disclosed in the returning memo, necessarily implies that said cheque was dishonoured on account of insufficiency of funds. In this regard, he C.C No.589/1 Page 19/25 20 also placed reliance upon the judgment in the matter titled as " Rajan Vs. Sharafudheen" reported at 2003(2) DCR 180 delivered by Kerala High Court wherein it has been observed in para7 of the judgment as under: " It is by now trite that the expression "refer to drawer" is nothing but a courteous expression employed by the bank to convey insufficiency of funds. Averments in the complaint read alongwith the documents produced with the complaint and the sworn statement of the complainant recorded by the learned Magistrate can leave no doubt in any prudent mind that the allegation was specifically raised that the dishonour was on the ground of " refer to drawer" implying thereby that there was insufficiency of funds. The learned Magistrate was certainly in error in not reading the complaint reasonably and realistically. Acquittal on this ground certainly warrants interference invoking the jurisdiction under S. 378 Crl.P.C."
Ld counsel of complainant has also placed reliance upon two more judgments reported at AIR 1996 SC 2339 and 1995 Cr.LJ 3828 in support of the contention that dishonour of cheque with endorsement " Refer to Drawer" gives rise to cause of action for filing complaint case in respect of offence U/s 138 N.I Act.
After giving thoughtful consideration to the respectful submissions made on behalf of both the sides in the light of material brought on record, Court is unable C.C No.589/1 Page 20/25 21 to persuade itself to agree with the aforesaid argument. It is an admitted fact that cheque in question bears the signature of accused as the stand taken by accused is that one out of three blank signed cheques misplaced by him, has been misused by the complainant. The complainant has categorically deposed during his chief examination by way of affidavit dt. 28.6.10 that the accused had taken friendly loan of Rs. 60,000/ for the treatment of his wife in the month of January 2010 and had issued the cheque in question Ex CW1/1 towards discharge of his said liability. He further deposed during his cross examination that accused had handed over filled up cheque to him at railway crossing of C4 Block, Lawrence Road, Delhi and the accused was already known to him through his uncle Sh. O.P Gujral residing in the same locality. Not even a single suggestion has been given from the side of accused that he did not require any money for the treatment of his wife in January 2010 or that he did not hand over filled up cheque to the complainant as stated by him. In other words, the relevant portion of the testimony of complainant as CW1 to the aforesaid extent, remained uncrossed and unchallenged. Thus, amounts to admission thereof on the part of accused in view of the judgment report at 1976 RLR(N) 112 wherein it has been held that the relevant portion of the testimony of a witness which is not cross examined by opposite side, amounts to admission thereof on the part of such party. The accused himself also did not dare to depose during his chief examination as DW1 that his wife never undergone any kind of treatment during the month of January 2010 as stated by the complainant. C.C No.589/1 Page 21/25 22 Moreover, it cannot be over looked that accused has changed his stands in the present proceedings. He claimed in his reply Ex CW1/15 that 23 signed cheques in the cheque book were misplaced on 22.7.09 for which NCR was lodged by him at PS Ashok Vihar. However, he stated before the Court at the time of serving notice U/s 251 Cr.PC on 29.11.10 that the entire cheque book containing the cheque in question as well, had been lost and the said cheque book was containing three blank signed cheques. However, he admitted during his cross examination as DW1 that he did not issue any instruction to his banker for 'stop payment' in respect of cheques contained in the cheque book misplaced by him. It is quite unbelievable that any person whose cheque book containing three blank singed cheques is misplaced, would not issue instructions of 'stop payment' to his banker at all. In this case, the cheque in question was allegedly misplaced on 22.7.09 but the accused did not care to apply for fresh cheque book till 03.03.10. Same shows that accused did not apply for issuance of fresh cheque book in lieu of previous cheque book from 22.7.09 till 03.03.10 i.e for a period of about 78 months. Not only this, accused has failed to produce any record pertaining to other cheques contained in the cheque book which was allegedly misplaced. He has also failed to produce any evidence on record which may substantiate the plea raised by him during trial regarding loss of his cheque book. It was appropriate for the accused to bring on record relevant record disclosing the details of the cheques which were contained in the lost cheque book previously issued by his C.C No.589/1 Page 22/25 23 banker as well as the the dates of issuance of said cheques. Same would have clearly showed as to when the lost cheque out of the cheque book allegedly lost, had been issued by him. The accused had infact examined his bank official as DW2 but still he did not care to get the said relevant record produced before the Court. Hence, Court is of the view that the accused has failed to rebut the presumptions available in favour of complainant in terms of Section 139 read with Section 118 N.I Act that the cheque in question was issued by the accused to the complainant against discharge of legal liability.
The bank statement accused Ex DW2/C1 produced by DW2 Sh. Balwan Singh Bisht, clearly reflects that the cheque in question was got dishonoured on its presentation on all the three occasions as claimed by the complainant in this case. The statement of account further shows that there was no sufficient funds available in the account of the accused out of which the cheque in question was issued. The relevant entries appearing in the said statement of account shows that the cheque in question was lastly dishonoured on 21.5.10 in the bank of accused. At that time, there was a balance of Rs. 942/ in his said account. Not only this, the photocopies of relevant entries as shown in the pass book Ex DW1/C1 also corroborates the fact that there was a balance of Rs. 942/ in the bank account of the accused at the time of dishonour of cheque in question. It is pertinent to note that a sum of Rs. 2,20,000/ was credited in the account of accused by way of cheque no. 374027 on 08.05.10 which he withdrew himself immediately on 10.5.10 C.C No.589/1 Page 23/25 24 i.e just prior to the presentation of cheque in question in his account. Same itself speaks about the malafaide intention of accused not to honour the cheque in question issued by him. In case the plea raised by accused is accepted then it will lead to undesirable result. In case such defence is accepted then in every matter filed U/s 138 N.I Act, the accused could come out with similar plea and would get off without being punished for the said offence. Thus, the accused cannot escape from his liability by claiming that the cheque in question was not dishonoured by his banker with remarks "insufficient funds" or similar reason and for that reason, offence U/s 138 N.I Act is not attracted against him.
While taking this view, I am also fortified by the judgment of our own High Court in the matter titled as " M. Arun Ahluwalia Vs. Arun Oberoi & Anr."
passed in Crl. M.C No. 239/10 decided on 08.7.11 wherein petition for quashing of summoning order was filed before Hon'ble High Court of Delhi and one of the grounds for quashing put forwarded on behalf of petitioner was that the cheque in question was not dishonoured for insufficient funds or on similar ground like exceeds arrangement, etc. and therefore, the summoning order should be quashed. However, it was claimed on behalf of respondents that although cheque in question was dishonoured on the ground of alteration in the cheque but the balance in the account of the petitioner was also insufficient as on the date of presentation of the cheque. After considering the submissions made on behalf of both the sides, it has been observed by Hon'ble High Court of Delhi that the C.C No.589/1 Page 24/25 25 legislative intent is to stop the dishonouring of cheque and adopt a nononsense situation and punish unscrupulous person who purport to discharge his liability by issuing cheques, not intending to do honour it by insufficiency of funds in their accounts and ultimately, dismissed the said petition. It is nowhere the case of accused that he made any payment to the complainant after receipt of legal notice Ex CW1/11 either within stipulated period prescribed under the law or till date.
In the light of aforesaid discussion, Court is of the view that the complainant has been able to prove all the necessary ingredients in respect of offence U/s 138 N.I Act, Consequently, the accused namely Dalip Kumar Ram is held guilty in respect of offence U/s 138 N.I. Act.
Announced in open Court today.
Dt. 17.04.2012 (VIDYA PRAKASH)
ACMM1(NW)ROHINI COURTS, DELHI
17.04.2012
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