IN THE COURT OF SH. ANAND ASWAROOP AGGARWAL SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER PATIALA HOUSE COURTS, NEW DELHI Criminal Complaint (u/[SECTION] [ACT] Old No.248/1/03 Criminal Complaint (u/[SECTION] [ACT]/09 Sh. [ENTITY] , W/o Sh. Ajipal R/o House No. 237, Village Khanpur, New Delhi-110062. Complainant Versus Sh. [ENTITY] (Peon), S/o Sh. [ENTITY], National Co-operative Union of India, 3, Siri Fort Institutional Area, Khelgaon Marg, New Delhi Also AT: Plot No. 657, Gali No. 1, New Delhi, Village Deoli, New Delhi-110062 Accused A. Date of institution of the complaint : 03.03.2003 B. Date of conclusion of final arguments & fixing the matter for orders : 10.02.2010 C. Date of Judgment : 16.02.2010 D. Final Order : Convicted u/[SECTION] [ACT] UNDER [SECTION]/[SECTION] OF THE [ACT] AS AMENDED UPTO DATE. Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 1/14 JUDGMENT
This complaint has been filed with the prayer that accused may be summoned, tried and punished for the offence punishable under [SECTION] [ACT].
In brief, case of the complainant is that accused is known to the husband of the complainant and known to each other, as accused's father is tenant under the husband of the complainant at house No. 657, Gali No. 1, New Basi, Village Deoli, New Delhi -62.
As per the complainant, accused was in need of money for his domestic requirements in the month of September 2002 and he approached the husband of the complainant and induced the complainant for a loan of Rs. 2 lacs for one month. As alleged, complainant paid to the accused a sum of Rs. 2 lacs on 02.09.09 in cash for one month at her residence and the accused promised to return the same within a period of one month. It is further alleged by the complainant that in order to discharge his liability towards the complainant, accused issued account payee cheque bearing no. 253949 dated 02.10.02 for a sum of Rs. 2 lacs drawn on Delhi State Cooperative Bank Ltd., Hauz Khas, New Delhi from his account no. 2575, maintained in the said bank. Further, the complainant has alleged that the said cheque was deposited by the complainant for its realisation in her account no. 8014 Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 2/14 maintained by State Bank of India, Tigri Branch, New Delhi -62 within its period of validity and the same was dishonoured by the bank of the accused on 29.01.2003 on the ground of " Insufficient Funds" and returned unpaid to the complainant through her banker on 29.01.03. Thereafter, complainant got served a registered AD/UPC legal notice of demand dated 06.02.2003, through her counsel calling therein the payment of dishonoured cheque amount of Rs. 2 lacs with interest @ 18% per annum thereon within 15 days of the receipt of the legal notice.
Lastly, it has been alleged that accused received and acknowledged the receipt of the notice and though the period of notice has expired accused did not make any payment to the complainant till date with respect to cheque in question.
It is with these averments that the present complaint under [SECTION] [ACT] has been filed by the complainant against the accused.
2) Vide order dated 03.03.03, accused was summoned to face the trial for the offence under [SECTION] [ACT]. On 24.01.04 accusation for the said offence was explained to the accused. In reply to the accusation, accused stated as under:-
" I plead not guilty and claim Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 3/14 trial.
It is correct that I had issued cheque Ex. CW1/1 and it bears my siganture at point A and it is also correct that cheque was dishonoured due to reason of insufficient funds in the Bank.
I had given the said cheque to my father as my father was in need of the cheque. I had not filed the particulars of the party to whom the cheque was to be issued and rest of the entry in the cheque was filed by & I do not owe any liability. I am innocent."
3) To substantiate its case on judicial file complainant herself has appeared in the witness box as PW-1. Vide order dated 17.08.04 CE was closed, as prayed for by the counsel for the complainant. On 05.11.04 statement of accused was recorded. Accused want to lead DE and matter was adjourned for DE.
4) On 06.12.04, an application under [SECTION] [ACT] for further cross examination of the complainant was moved and the same was dismissed on the same very date. Against this order dated 06.12.04 accused has filed [CASE NUMBER], which was dismissed vide order dated 03.01.05. On 02.02.05 accused examined one DW namely DW-1 [ENTITY] and on the same day DE was closed.
5) On 07.04.05, an application under [SECTION] [ACT] was moved on behalf of accused and the said application was dismissed on 07.04.05 itself and matter Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 4/14 was adjourned for final arguments. This order dated 07.04.05 was challenged by the accused in [CASE NUMBER], which was dismissed vide order dated 07.11.05. On 30.04.05 two applications were moved by the accused under [SECTION] [ACT], one for recalling the complainant and another for seeking permission to examine [ENTITY], as DW. Vide order dated 03.06.05, application for recalling Ms. [ENTITY] was dismissed. However, application for examination of [ENTITY] as DW was allowed subject to cost of Rs. 1,000/- and further subject to the condition that only one opportunity will be granted for defence evidence. Vide order dated 18.04.06 DE was closed by the court without examination of [ENTITY] as DW. This order dated 18.04.06 was challenged in [CASE NUMBER], which was dismissed vide order dated 25.11.08.
6) I have heard Sh. [ENTITY], Adv. for the complainant with complainant and Sh. [ENTITY], Adv. for the accused vide order dated 10.02.2010. In the course of his arguments, ld. counsel for the complainant made me to go through the entire material available on Judicial file. On the other hand, Ld. Counsel for the accused has filed Written Points of Consideration and has further relied upon case laws reported as [PRECEDENT] and [PRECEDENT].
Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 5/14 Also Ld. Counsel for the accused filed COPY TO COPY copy of judgment passed by Sh. [ENTITY], Ld. MM, New Delhi in complaint case titled as [ENTITY] Vs. [ENTITY], whereby Mr. [ENTITY], (father of accused herein) was convicted for the offence under [SECTION] [ACT]. I have gone through the entire material available on judicial file very carefully keeping in view the respective submissions made on behalf of the complainant and accused.
7) In the present case cheque is dated 02.10.02. The same has been exhibited as Ex. CW1/A. It was dishonoured vide memo dated 29.01.03 with remarks " 23. INSUFFICIENT FUND" . Demand notice dated 06.02.03, Ex. CW1/D was dispatched vide postal registry receipts Ex. CW1/E , Ex. CW1/F and UPC Ex. CW1/G, all dated 06.02.03. The AD cards Ex. CW1/H and Ex. CW1/I bears the correct and proper addresses of the accused as detailed in the title of the complaint/Judgment. Both the AD cards bears the signature acknowledging the receipt of the registered envelope sent alongwith the AD cards. In the course of cross-examination of PW1 Ms. [ENTITY] no suggestion has been given that accused was not served with the Demand Notice Ex. CW1/D. Also no suggestion has been given to the effect that address mentioned on the AD cards are not the correct and proper addresses of the accused.
The registered envelope containing the [ACT] (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 6/14 Notice Ex. CW1/D was sent through prepaid post and UPC. This all is sufficient to suggest that accused was duly served with Demand Notice Ex. CW1/D. In fact, DW1 Mr. [ENTITY], father of the accused in his cross- examination has deposed as under:-
" It is correct that my son lives with me in the same house. It is correct that I had received notice of this cheque from the complainant and did not gave any rely to notice"
Thus accused was as a matter of fact was served with the notice Ex. CW1/D. This complaint has
been filed on 03.03.03. In view of this discussion, it can be concluded that this complaint complies with all the technical formalities relating to a complaint case for the officen punishable under [SECTION] [ACT].
8) As already observed, accused was served with notice of demand Ex. CW1/D. But no explanation has come on record as to why no reply was sent by me to the said demand notice.
As per case of the complainant, she had given a loan of Rs. 2 lacs to the accused on 02.09.02 in cash at her residence and accused had issued cheque Ex. CW1/A for a sum of Rs. 2 lacs dated 02.10.02 in discharge of the said loan. As per accused, he has given the said cheque to his father as his father was Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 7/14 in need of the cheque and he had not filled the particulars of the party to whom the cheque was to be issued. Further, as per accused, he does not owe any liability to complainant. However, admittedly, the cheque Ex. CW1/A bears the signature of the accused at point A and the cheque was dishonoured due to reasons of insufficient funds in the Bank. As per DW1 Mr. [ENTITY], accused, his son had given him the cheque which was blank and undated for house hold expenses and the said cheque was given by him to the complainant as complainant stated to him that his (DW-1 Mr. [ENTITY]) earlier cheque had been lost and she (the complainant) had asked DW Mr. [ENTITY] to give another cheque. However, later DW1 Mr. [ENTITY] came to know that complainant had presented both the cheques for encashment. As per statement of accused recorded under [SECTION] [ACT], complainant had obtained the cheque from his father who was under the influence of liquor. But DW 1 Mr. [ENTITY] has not deposed that at the time complainant had demanded the cheque in question from him (DW1 Mr. [ENTITY]), he (Mr. [ENTITY]) was under the influence of liquor. Also it has not been specifically suggested to PW1 Mrs. [ENTITY] in her cross-examination that complainant took this cheque from the father of the accused or that father of accused was under the influence of liquor at the time of giving cheque in question to the complainant. Broad/Vague suggestion that has been Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 8/14 given in the cross-examination of PW 1 Mrs. [ENTITY] is that complainant has received this cheque by fraudulent manner. Thus stand of the accused that at the time of delivery the cheque to complainant, father of accused was under the influence of liquor is without any substance/merit. Further, stand of the accused is that he had not filled the other particulars of the cheque. Even this stand of the accused is without any substance in the facts and circumstances of this case. A careful perusal of the cheque Ex. CW1/A undoubtedly suggest that all the contents of the cheque have been filled by the same person (i.e. the accused) who has signed the same (i.e. the accused). Pen used in writing all the contents of the cheque including the signature of the accused is one and the same. But account number 2575 on the cheque has been written in different ink; obviously this number is written by bank official at the time of the issuance of the cheque book. The conclusion to the effect that the person (i.e. the accused) who has admittedly signed the cheque Ex. CW1/A is also the writer of the other contents of the cheque can be drawn from bare perusal of the cheque in question and in particular by carefully observing the writing pattern and the fact that all the contents of the cheque have been written by using the same pen which has been used by the accused while signing the cheque in question. In such circumstances, it can be said that cheque in question has been executed/drawn in favour of the complainant by the accused & presumption Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 9/14 under [SECTION] [ACT] can be raised in favour of the complainant and against the accused.
Now, since execution of the cheque has been admitted by the accused, presumption u/[SECTION] [ACT] is to be mandatorily drawn in favour of the complainant & against the accused. However, this presumption is rebuttable; to be rebutted by the accused.
In case law reported as [PRECEDENT] Hon'ble Supreme Court of India has observed as under :-
" 24 The more authoritative view has been laid down in the subsequent decision of the Constitution Bench in [PRECEDENT] where this Court reiterated the principle enunciated in [PRECEDENT] and clarified that the distinction between the two kinds of presumption lay not only in the mandate to the court, but also in the nature of evidence required to rebut the two. In the case of discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 10/14 innocence" of the accused. On the other hand in the case of a mandatory presumption " The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under [SECTION] of the [ACT] and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable.
It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which
occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before, it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted"."
Now so far as capacity of the complainant to pay a sum of Rs. 2 lacs is concerned, PW1 Mrs. [ENTITY] in her cross examination has been made to depose Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 11/14 that she receive Rs. 30-40 thousand, as rent. Further, perusal of the judgment in case titled as [ENTITY] Vs. [ENTITY] reveals that undisputedly Mr. [ENTITY] had also taken a loan of Rs. 2 lacs from the complainant and given a cheque to the complainant for a sum of Rs. 2 lacs. Even on that occasion, complainant had simplicitor taken cheque from the father of the accused and, as such, merely because complainant has not produced on record any documentary proof of giving Rs. 2 lacs to accused as loan, it cannot be said that no such loan was given by complainant to accused herein. Also case law reported as [PRECEDENT] relied upon by ld. counsel for the accused is of no help to accused in the facts and circumstances of this case. In the present case complainant is not involved in the business of finance & thus she is not required to maintain books of account etc. Also the fact that complainant in her cross- examination has deposed that she do not pay income tax but in the judgment of [ENTITY] Vs. [ENTITY] it has been observed that complainant stated that she is income tax payee is not of much importance in the facts & circumstances of this case in view of presumption u/[SECTION] [ACT] [ACT] acting in favour of the complainant and against the accused. Further if [SECTION] of the [ACT] is not complied with, it does not mean that no such loan for a sum of Rs.20,000/- or Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 12/14 upwards was given to the accused. The only consequence that follows on account of non-compliance with the provisions of [SECTION] [ACT] is that the person concerned shall suffer penalty u/[SECTION] of the [ACT] and it does not in any way otherwise effect the the liability of the person to pay the loan taken in violation [SECTION] [ACT].
In the case in hand, suggestions on the lines on which DW1 Mr [ENTITY] has deposed has not been given to complainant in the course of her cross examination. Even in the course of his examination under [SECTION] [ACT], accused has not specifically stated those facts, as alleged, as has been deposed about by DW 1 Mr. [ENTITY] as regards the circumstances in which complainant received the cheque in question from the father of the accused. Merely because father of the accused had not repaid the loan to the complainant, it cannot be said that complainant could not have granted loan to the accused. It is for the accused to prove the circumstance in which complainant acquired the possession of the cheque in question & in this case accused, to my mind, has failed to rebut the presumption under [SECTION] [ACT] r/w [SECTION] [ACT].
In view of above detailed discussion, in my opinion, it can be concluded that accused has failed to rebut the presumption under [SECTION] [ACT], so as to shift the onus to prove her own case on the complainant.
Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 13/14 Also, to my mind, in the present case all the necessary ingredients of [SECTION] [ACT] stands satisfied & thus accused is hereby convicted under [SECTION] [ACT]. Let accused be heard on quantum of sentence.
([ENTITY]) SCJ-Cum-RC/New Delhi 16.02.2010 Criminal Complaint (u/[SECTION] [ACT] Old No.248/1 Criminal Complaint (u/[SECTION] [ACT] 14/14