IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, NORTH-WEST, ROHINI, DELHI CC No. 2939/2016 [ENTITY] S/o Sh. K.L. Chawla R/o QU-138A, Near Aggarwal Sweets, Pitampura, Delhi Also at: B-44, Keshopur Indl. Area, Behind H-Block, Petrol Pump, Vikaspuri, Delhi-110018 Complainant Versus [ENTITY] S/o Sh. Surender Saini R/o B-59, Budh Vihar, Phase-II, Delhi-110034 Accused JUDGMENT
(1) Name of the complainant, : [ENTITY] parentage and address S/o Sh. K.L. Chawla R/o QU-138A, Near Aggarwal Sweets, Pitampura, Delhi Also at: B-44, Keshopur Indl. Area, Behind H-Block, Petrol Pump, Vikaspuri, Delhi-110018 (2) Name of accused, : [ENTITY] parentage and address S/o Sh. Surender Saini R/o B-59, Budh Vihar, Phase-II, 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 : 17.05.2013 [ENTITY] v. [ENTITY] CC No. 2939/2016 Page no. 1 (6) Date of reserve of orders : 24.05.2018 (7) Date of Final Order : 21.07.2018 (8) Final Order : Convicted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under [SECTION] of the [ACT], 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
That the accused and complainant were having cordial relations as both of them were working in M/s. Chanson Motor Pvt. Ltd. In last week of July 2012, the accused had approached the complainant and requested him for a friendly loan of Rs.1,50,000/- as he was in dire need of money. The complainant gave the said amount in cash and the accused assured the complainant to repay the same within six months. After the said period when the complainant demanded his money, the accused gave Rs.15,000/- in cash as part payment and issued a cheque bearing no. 179435 dated 27.01.2013 for a sum of Rs.1,35,000/- drawn on Bank of Maharashtra, Rohini, Sector-24 Branch, Delhi-110085. The complainant presented the said cheque to his banker but it was returned unpaid with the remarks "funds insufficient" vide returning memo dated 28.03.2018. The complainant sent a legal notice dated 05.04.2013 to the accused, however, despite that the accused neither made any payment nor sent reply to the legal notice. 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-1/A. He reiterated the contents of complaint and placed on record, cheque bearing no. 179435 dated 27.01.2013 for a sum of Rs.1,35,000/- drawn on Bank of Maharashtra, Rohini, Sector-24 Branch, Delhi-110085 as Ex. CW1/1, cheque returning memo dated 28.03.2013 as Ex. CW-1/2, legal notice dated 05.04.2013 as Ex. CW-1/3, postal receipt as Ex. CW-1/4, courier receipt as Ex. CW-1/5 and tracking report as Ex. CW-1/6.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under [SECTION] of the Act and notice under [SECTION] [ACT] for this offence was framed upon accused on 27.06.2016 to which he pleaded not guilty and claimed trial. He stated that he gave nine cheques including the cheque in question to the complainant for getting [ENTITY] v. [ENTITY] CC No. 2939/2016 Page no. 2 his vehicle financed in the year 2013. He admitted his signature on the cheque in question, however, he denied having filled in the contents therein. He denied receiving of legal notice. He alleged that he has already paid five installments of Rs.10,770/- each to the complainant. At that time, he was ready to make the payment to the complainant.
5. Thereafter, the complainant examined, cross-examined and discharged. During the cross-examination, complainant stated that he worked with M/s. Chanson Motor Pvt. Ltd. from 2009 till April 2016 as Operational Manager. He also stated that the accused was working there as a driver prior to his joining but he could not say when he left the company. He also stated that he disclosed the loan amount in his ITRs. He also stated that he had given loan of Rs.1,50,000/- to the accused in July 2012 and the cheque in question was given in January 2013. He was shown photocopy of delivery receipt Ex. CW-1/D1 and he accepted his signatures on the document at point A. He denied the suggestion that he has financed a vehicle to the accused. He was shown copy of affidavit Ex. CW-1/D2 and he admitted his signature on the document at point B. He stated that he signed those documents on behalf of his company. He was also shown an undertaking Ex. CW-1/D3 and he admitted his handwriting at point A to B. He stated that the accused handed over him only one cheque and remaining cheques were handed over to M/s. Chanson Motor Pvt. Ltd. He stated that he had received 12 cheques from the accused on behalf of company. He also stated that the amount in cheque in question was filled by him in the presence of the accused. He admitted that the legal notice sent to the accused was returned to him. He admitted that the contents in the cheque in question were filled by him before signing of the cheque in question by the accused. He stated that the cheque in question was filled at his office either in December 2012 or January 2013. He stated that the cheques issued by the accused for finance of the vehicle are still in the possession of the company. He denied the suggestion that the accused has not taken any loan from him. He denied the suggestion that the accused has not issued him any cheque. He stated that he has not issued any receipt to the accused when the payment of Rs.15,000/- was made to him. He denied the suggestion that the accused has not given him Rs.15,000/-. He denied the suggestion that the legal notice was returned unserved.
6. On 23.03.2017, statement of accused under [SECTION] [ACT] read with [SECTION] [ACT] was recorded in which all the incriminating evidence were put to him to which accused took the defence that he never approached the complainant for a loan of Rs.1,50,000/- in July 2012. He stated that in the month of March 2012, the complainant had financed his vehicle for a sum of Rs.1,00,000/- which was to be paid in 12 installments of Rs.10,770/- and he had made the payment of five installments. He also stated that he did not make the further payment as [ENTITY] v. [ENTITY] CC No. 2939/2016 Page no. 3 the complainant did not provide him documents of the vehicle. He also stated that he requested the complainant to take back the car as in the absence of insurance and RC, it was not possible for him to drive the car. He also alleged that the complainant did not provide him documents and also took back the vehicle and he, therefore, lodged a police complaint regarding the same. The accused preferred to lead defence evidence. However, on 05.07.2017, the accused gave the statement that he does not want to examine any witness in the defence evidence. At his request, defence evidence was closed and the matter was listed for final arguments.
7. Thereafter, final arguments were advanced on behalf of complainant. The accused was given liberty to file written arguments. On 20.02.2018, the case was listed for orders, but it was referred to Mediation Centre at the request of the parties. As per the referral order dated 21.02.2018, the accused settled the case with the complainant, however, he did not make any payment towards settlement. On 24.05.2018, the accused refused to comply with the terms and conditions of the settlement agreement and the matter was listed for clarifications, if any/orders. Liberty was also given to both the parties to file written submission within 20 days, however, the same were not filed within the said time.
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] 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.
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.
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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]
(a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in [SECTION] discharged in whole or in part any debt or other liability.
[SECTION] of the [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] of the [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] for the discharge, in whole or in part, of any debt or other liability".
11. For the offence under [SECTION] of the Act, the presumptions under [SECTION] and [SECTION] 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 [SECTION] and [SECTION] are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in [PRECEDENT].
12. It has been held in [PRECEDENT] 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. From the aforesaid discussion, it becomes amply clear that the presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence.
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14. In the present case, the accused has admitted that the cheque in question bears his signature. Now reference can be made to Judgment of Apex Court in [PRECEDENT], "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] of the [ACT] has to be raised by the Court in favour of the complainant."
15. It means that in the present case the onus is upon the accused to rebut the presumption raised under [SECTION] and [SECTION] of the said Act and merely saying that the cheque in question was issued by him in favour of complainant in lieu of some other transaction is not sufficient to rebut the presumption.
16. The accused has taken the defence that he has not taken any loan from the complainant. He also stated that the cheque in question was not issued in discharge of any liability but for getting finance of his vehicle from the complainant in the year 2013. He also alleged that the complainant did not give him documents of the vehicle and also seized his vehicle. The accused showed some documents viz. photocopy of delivery receipt Ex. CW-1/D1, photocopy of an affidavit Ex. CW-1/D2 & an undertaking Ex. CW-1/D3 to the complainant during his cross- examination. The complainant admitted his signatures on those documents but he stated that he had signed those documents in capacity of employee of M/s. Chanson Motor Pvt. Ltd. The said documents do not prove that the cheque in question was given as security for the vehicle financed by the complainant. The transaction reflected in those documents is not to be confused with the loan given by the complainant evidenced by cheque Ex. CW-1/1. If the version of the accused was indeed true, he ought to have filed a complained against the complainant for misusing his cheque. The accused has neither given any stop payment instructions to his bank nor any notice to the complainant for demanding his cheque. He has also not placed on record copy of complaint lodged with the police against the complainant. Thus, the defence of the accused is not reliable.
17. It is pertinent to notice here that 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] [ACT] read with [SECTION] [ACT] can not be considered as evidence. For this, I rely upon the judgments of Hon'ble High Court of Delhi, [PRECEDENT] and [PRECEDENT] [ENTITY] v. [ENTITY] CC No. 2939/2016 Page no. 6 and [CASE NUMBER]) decided on 04.09.2017. It was held that "29. the defence taken by the respondent number 3 at the time of framing of notice under [SECTION] [ACT] or the defence taken by her in her application under [SECTION] [ACT] or her explanation under [SECTION] [ACT] read with [SECTION] [ACT] on 04.02.2015 is not "evidence" within the meaning of [SECTION] of the [ACT]. When person appear in the court as a witness, he is required to state facts on oath under [SECTION] of [ACT] and his examination in chief is decided on touchstone on cross-examination by other party. This is actually the evidence. Therefore, the plea taken in application under [SECTION] [ACT] or defence taken at the time of framing of notice under [SECTION] of Code or the explanation under [SECTION] read with [SECTION] of the Code by any stretch and imgination can not be treated as evidence. This is only the defence which should have been proved by cogent evidence to rebut the presumption under [SECTION] and [SECTION] 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.
18. Hence, in the light of above discussion it comes out that the complainant has successfully proved his case beyond all the reasonable doubts and accused has failed to rebut the presumption. Accordingly, accused is convicted for the offence under [SECTION] of [ACT].
19. As the complainant has proved his case beyond reasonable doubt, therefore, accused company is being convicted for the offence under [SECTION] of [ACT].
20. Let the accused be heard on quantum of sentence.
21. Copy of Judgment be supplied to the convict free of cost.
[ENTITY] RAJPOOT Date: 2018.07.23 16:09:52 +0530 ANNOUNCED IN THE OPEN COURT ([ENTITY]) TODAY i.e. 21st JULY 2018 [ENTITY] [ENTITY] v. [ENTITY] CC No. 2939/2016 Page no. 7