-:1:- IN THE COURT OF MS. [ENTITY], LD. METROPOLITAN MAGISTRATE : SPECIAL COURT - 09 (NI ACT) : DWARKA : DELHI BHAJANPURA COOP VS. PUSHP LATA Complaint Case No. : 3641/13 U/s. : 138 [ACT] J U D G M E N T
1. Name of the complainant : The Bhajanpura Cooprative Urban Thrift and Credit Society Ltd.
C62, Gali No. 2, Bhajanpura Delhi110 053 Through its authorised Officer
2. Name of the accused [ENTITY] W/o Sh. Karamveer Gautam Vihar, Ghonda, Delhi53
3. Offence complained of : U/[SECTION] [ACT]
4. Plea of accused : Pleaded not guilty
5. Final Order : Acquitted
6. Date of Reserving the : 01.03.2014 Judgment
7. Date of Order : 07.03.2014 Date of Institution of case : 17.04.2013 Date of Decision of the case : 07.03.2014 BRIEF SKETCH OF THE CASE
1. Vide this judgment, I shall dispose of the complaint u/[SECTION] of the [ACT] against the accused.
2. The case of the complainant is that the complainant, Bhajanpura Cooperative Urban Thrift and Credit Society Ltd.(hereinafter called the complainant society) is registered and governed by the provisions of [ACT]. Shri [ENTITY], Recovery Officer and Shri [ENTITY], Asst. Assistant Recovery Officer of the society are conversant with the facts of the case and thus authorised thereby the Managing Committee of the society, to file the present complaint.
3. It is further submitted in the complaint that accused is a member of the complainant society having membership number 5028. On the request and representation of the accused complainant society advanced Rs. 1, 50,000/ to the accused on 05.05.2011 at the rate of 15% per annum and @ 3% in case of default, to be repaid in monthly installments. Accused promised to pay the monthly installments for repayment of loan regularly.
4. It is further submitted that present accused after passing of arbitral award against her in discharge of her legal liability issued a cheque bearing No. 612948 dt. 11.02.2013 for Rs.2,23, 547/ drawn on Central Bank of India, Ghonda, Delhi53 towards full and final settlement of the above said loan accounts. That cheque, when presented for payment, returned unpaid with the remarks "Funds Insufficient" on 16.02.2013. Complainant, thereupon, sent a legal notice dated 15.03.2013 to the accused under [SECTION] of [ACT]. By virtue of said legal notice dated 15.03.2013 accused was requested to clear the outstanding amount and pay the amount of the cheque within 15 days from the receipt of the legal notice. However, despite legal notice, the accused failed to make the payment of the dishonoured cheque to the complainant bank till date.
5. The complaint was filed within limitation on 17.04.2013 pursuant to which summons were issued against the accused on 10.05.2013 consequent thereupon accused entered appearance and was admitted to bail. Notice u/[SECTION] [ACT] was framed against the accused on 27.06.2013 to which the accused pleaded not guilty and claimed trial. Thereafter, matter was listed for evidence.
6. AR of the complainant has been examined as CW1. CW1 adopted pre summoning evidence Ex. CW 1/A as post summoning evidence and has relied upon following documents - certified photocopy of Resolution Ex. CW 1/1, (OSR) certified photocopy of Power of Attorney Ex. CW 1/2(OSR) and Ex. CW1/3(OSR), copy of application for loan Ex. CW 1/4 (OSR), Bond Ex. CW 1/5, Award as Ex/. CW1/6, certificate of Awared as Ex. CW1/7, Application for execution for Award as Ex. CW1/8, original cheque in question Ex. CW1/9, receipt of cheque Ex. CW1/10, Cheque return memo Ex. CW1/11, legal demand notice Ex.CW1/12, postal receipt Ex.CW1/13, postal track record Ex. CW1/14.
CW1 was cross examined at length by the counsel for accused. Thereafter, complainant has closed his evidence.
7. Statement of accused u/[SECTION] [ACT] recorded in which accused further submitted that cheque in question was given as security to the complainant. In her statement accused accepted the fact of taking the loan of Rs. 1, 50,000/ on 05.05.2011 from the complainant. Accused denied of receiving any legal notice from the complainant.
8. Accused has moved the application U/[SECTION] [ACT] on 30.09.2013 to get herself examined as defence witness. Same was allowed and accused got examined as DW1. DW1 in her examination in chief submitted that she had taken the loan of Rs. One lacs fifty thousand on 05.05.2011 from the complainant. Loan was to be repaid in 60 monthly installments, though, the amount of monthly installments has not been fixed by the complainant. DW1 further deposed that she had repaid approximately fivesix monthly installments to the complainant. DW1 denied of giving the cheque in question to the complainant on 11.02.2013. DW1 further deposed that she had given the cheques bearing numbers 612948 and 612949 to the complainant, at the time of disbursing the loan on 05.05.2011, as security. DW1, further deposed that the cheque in question was misused by the complainant and she did not owe liability towards the complainant with respect to cheque in question. DW1 also denied of receiving any legal notice. DW1 was crossexamined at length by the counsel for the complainant.
9. Accused also got examined Sh. [ENTITY] as DW2.
DW2 in his examination in chief deposed that he is also the member of the complainant's society. On 05.05.2011, complainant society took two blank cheques from the accused in front of him. It is further deposed by DW2 that he had also handed over two blank cheques to the complainant society being the surety of the present loan account. DW 2, also deposed that no receiving of the above mentioned cheques had been given to him by the complainant. DW 2 was crossexamined at length by the counsel for the complainant.
Accused further got examined Sh. [ENTITY], Assistant Manager, Central Bank of India as DW3. DW3 brought the Statement of Account bearing No. 1031516771 which belongs to the accused which is exhibited as DW 3/A. DW 2 in his cross examination submitted that Ex DW3/A does not pertains to cheque in question.
10. I have considered the rival submissions and perused the records carefully.
11. Before adverting to the facts of case in hand it would be pertinent to reproduce the relevant provisions of [SECTION], [SECTION] and [SECTION] of [ACT] at the very outset, which reads as follows : [SECTION] of [ACT] reads as follows:
138. Dishonour of cheque for insufficiency, etc., of funds in the account
- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] [SECTION] of [ACT] reads as follows:
Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that6 the holder of a cheque received the cheque of the nature referred to in [SECTION] for discharge, in whole or in part, of any debt or other liability. [SECTION] of [ACT] reads as follows:
Presumption 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, endorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
11. The scope of presumptions u/[SECTION] and u/[SECTION] of the [ACT] is that once the signatures on the cheque are admitted by the drawer of the cheque, there arises a presumption in favour of the payee/holder in due course in terms of these Sections of [ACT] that the cheque has been issued for consideration and in discharge of legally enforceable debt or liability. It is also well settled that (a) the presumption does not go to the extent of presuming the existence of debt and (b) the aforesaid presumption is rebuttable in nature (see [PRECEDENT]. Further, it is also well settled that for the rebuttal of the presumptions it is not necessary that the accused must step into the witness box but the presumptions can be rebutted either by cross examination of complainant's witness (see [PRECEDENT] and [PRECEDENT] or even by raising presumptions of fact or law from the material available on record (see [PRECEDENT]). In [PRECEDENT] it was held as under:
"12. Under [SECTION] of the [ACT], the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in the regard lies on the defendant to prove the nonexistence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. "
12. Standard of proof of rebuttal of presumptions by any person accused of an offence under [SECTION] of the [ACT] is preponderance of probabilities and It is not at all necessary for the accused to prove his defence beyond reasonable doubts. Though, bare denial or bald suggestions given by the accused would not be sufficient to rebut the aforesaid presumption (see [PRECEDENT]). Thus, whether the presumption has or has not been rebutted depends on the facts of each case to be analyzed in the light of aforesaid legal principles.
13. Question which is to be determined here is whether the accused handed over the cheque in question to the complainant was given in discharge of any legal debt or liability. As per the version of the complainant, the cheque in question was issued by the accused in discharge of her liability towards the complainant society. Per contra accused has submitted that cheque in question was handed over by her to the complainant society as security at the time of taking the loan from the complainant society, blank and signed only. Accused has specifically denied of entering any agreement with the complainant in pursuance of which cheque in question was handed over to the complainant. To rebut the presumption raised by the complainant, accused has raised her defence which is elaborated hereunder:
a) Accused has vehemently denied of giving the cheque in question to the complainant for clearing her liability. As, according to the version of the accused, she is not at all liable to pay amount mentioned in cheque in question on the date mentioned on the cheque in question, so there is no question of handing over the cheque Ex. CW 1/9 of the amount of more than rupees two lakh to the complainant on 11.02.2013 Accused during the crossexamination of AR of the complainant as well as in her statement u/[SECTION] [ACT] submitted that she is not owning liability to the extent of more than two lacs rupees as on
11.,02.2013 towards the complainant. Ld. counsel for the accused has cross examined the attorney of the complainant with respect to the liability of the accused to which the AR of the complainant submits that :
I have not filed any statement of account of the accused. That on 11.02.2013 accused was under the liability of the amount of rupees 2, 23, 547/ "
Taking into view above said submissions, it is not unsafe here to say that complainant miserably fails to explain the extent of liability of accused of the amount of more than two lacs rupees on the date of cheque in question. Even after having ample effective opportunities complainant fails to file the statement of account of accused or any other relevant evidence reasonable enough to be considered to establish the factum of the extent of liability of accused with respect to amount mentioned in cheque in question. Complainant as well as affidavit for pre summoning evidence which was later on adopted as post summoning evidence by the complainant fails to divulge the details of the extent of the liability of accused. The expression "amount of money" as envisaged in [SECTION] of [ACT] should be read in light of [SECTION] of [ACT] where it is clearly mentioned that the payee of the cheque can present the cheque in the payment of only that much amount which is due to him after giving credit of the past payment made after the issuance of the cheque. Support can be drawn from the Judgments of [PRECEDENT] and M/s [PRECEDENT] 18.
[SECTION] [ACT] is an example of reverse onus clause as observed by Hon'ble Supreme Court in [PRECEDENT]. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. It is conceivable that in some case accused may not adduce evidence of his own and accused can rely upon the material submitted by the complainant to discharge his burden and thereby raise his defence.
14. Complainant miserably fails to divulge details that under what circumstance cheque in question which is Ex.CW1/9 was issued by the accused. Complainant miserably fails to establish settlement, if any, with respect to giving of sum total amount. There is no further documents furnished as to how the accused became due to pay an amount of Rupees Two Lacs Twenty Three Thousand Five hundred forty seven as on 11.02.2013. Complainant miserably fails to adduce any evidence to prove the existence of liability between the accused and complainant.
A statutory presumption has an evidentiary value. For rebutting the presumption it is not imperative to step into the witness box. In cases where there are even the sling chances of false implication, the back ground fact along with the legal requirements must be taken into consideration.
In [PRECEDENT], [ACT] envisages that:
" application of the penal provisions which needs to be construed strictly. Therefore, even if two view in the matter are possible, the Court should lean in favour of the view which is beneficial to the accused. This is more so, when such a view will also advance the legislative intent, behind enactment of this criminal liability."
15. Further, in view of the ratio decidendi in the judgment passed by the Hon'ble Supreme Court in case titled as [PRECEDENT], the prosecution must prove the guilt of an accused beyond reasonable doubt whereas the standard of proof on the part of the accused is "preponderance of probabilities". The burden was on the accused to disprove the presumption u/[SECTION] [ACT], a burden which in the light of above mentioned discussion has been successfully discharged by her. It is apparent that the accused has furnished cogent reasons which resulted in shifting the burden of proof on the complainant, which the latter failed to discharge.
b) Regarding the question that whether legal notice has been received by the accused? Complainant has placed on record legal notice Ex.CW1/12 alongwith postal receipts Ex.CW1/13 (colly.) and track report Ex. CW 1/14. It is a settled position of law that a notice properly addressed, prepaid and posted by registered post shall be deemed to be served upon the respondent unless the contrary is proved. Furthermore, it is not in dispute that accused has been served through process of the court and once it is so, the decision of Hon'ble Supreme Court in [PRECEDENT] would also be applicable wherein Hon'ble Apex Court has held that even if the accused did not receive the legal demand notice he can pay the cheque amount within fifteen days of the service of summons from the court but if he fails, he cannot contend that he has not received the legal demand notice.
16 It is evident that the drawer has failed to make the payment of cheque amount in question within 15 days of the receipt of aforesaid notice, thus, the present complaint U/[SECTION] [ACT] has been initiated against the accused.
17. In the view of the foregoing observation and in view of the evidence, documents put forth and arguments of both the parties, the accused is hereby acquitted for the offence punishable u/[SECTION] of [ACT].
ANNOUNCED IN OPEN COURT ([ENTITY]) th ON this 7 March 2014 METROPOLITAN MAGISTRATE SPECIAL COURT NO.05, NI ACT DWARKA, DELHI