IN THE COURT OF MS [ENTITY] : METROPOLITAN MAGISTRATE - 04 : SOUTH : SAKET COURT : NEW DELHI CT Cases 470110/2016 RAKESH SHARMA Vs. PANKAJ SHARMA U/[SECTION] [ACT] JUDGMENT
(1) Serial number of the case : 470110/2016 (2) Name of the complainant : [ENTITY] S/o Late Sh. [ENTITY] R/o D-102, Krishan Park, Khanpur Devli Road, New Delhi-110080. (3) Name of the accused, : [ENTITY] parentage & address S/o [ENTITY] R/o RZ-D2/7, Vijay Enclave, Palam, Village, New Delhi- 110045. (4) Offence complained of or proved: 138 [ACT] (5) Plea of the accused : Pleaded not guilty (6) Final Order : CONVICTED (7) Date of Institution : 19/10/2015 (8) Date on which reserved for judgment : 29/10/2018 (9) Date of Judgment : 12/12/2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that the complainant and the accused were having friendly relations from last 10-11 years. That in the beginning of the March 2014 the accused expresses his dire need of Rs. 50,000/- as a friendly loan for the purpose of his son's admission in the school and the complainant agreed to give him the said amount. That the complainant accepted the request of accused and gave a sum of Rs. 50,000/- as a friendly loan to the accused in cash on 05/03/2014 and accused assured to return the same within a period of five months. That on 20/02/2015 the accused in discharge of his legal liability had issued a cheque bearing no. 813106 dated 07/06/2015 for Rs. 50,000/- drawn on ICICI Bank, Gurgaon Branch (hereinafter "the cheque in question") in favour of the complainant, which on presentation was dishonoured and returned unpaid vide cheque returning memo dated 02/09/2015 with remarks "Insufficient Funds". That a legal demand notice dated 11/09/2015 was sent by the complainant through his counsel, despite receipt of which, payment of the cheques in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under [SECTION] of the [ACT] (hereinafter "the Act").
2. The pre-summoning evidence, by way of affidavit (Ex. CW-1/G) was filed by the complainant. In his affidavits of evidence, the complainant reiterated all the averments made in his complaint and relied on documents Ex. CW-1/A to Ex. CW-1/E, which are cheque in question Ex. CW-1/B, its return memo Ex. CW-1/B, legal notice Ex. CW-1/C, the speed post receipts and its tracking Ex. CW-1/D & Ex. CW-1/E. The present complaint is Ex. CW- 1/F After perusal of the complaint and affidavit of evidence, since sufficient material was found against the accused, summoning order u/[SECTION] [ACT] was passed against the accused vide order dated 19/10/2015 by my Ld. Predecessor Judge.
3. Accused appeared pursuant to issuance of bailable warrants. Thereafter, notice U/[SECTION] [ACT] was served upon the accused vide order dated 09/03/2016 to which the accused pleaded not guilty and claimed trial.
In his defence, accused stated that he has no liability towards the complainant and the cheque in question was given to one Sh. [ENTITY] as blank signed cheque and 2 or 3 other cheques were also lying with [ENTITY], who is uncle of accused. Accused further stated that, he does not know the complainant and the cheque in question was misused by the complainant. Further, accused denied his liability to pay the cheque amount to the complainant and also denied the receipt of legal notice of demand.
4. In post summoning complainant evidence, complainant CW-1 was duly cross examined on behalf of accused pursuant to allowing of application u/[SECTION] [ACT] filed by the accused and allowed vide order dated 05/04/2017. No other witness has been produced by the complainant and thereafter, CE stands closed vide order dated 25/07/2017.
5. Thereafter, the statement of the accused u/[SECTION]/[SECTION] [ACT] was recorded vide order dated 14/09/2017. All material existing on record including the exhibited documents were put to accused.
In his defence accused stated that, he does not know the complainant and he borrowed the amount of Rs. 80,000/- from Mr. [ENTITY] and gave two security cheques to him only and not to the complainant. Further, accused admitted the receipt of legal notice and stated that he did not make the payments as he has no liability for the same.
Accused expressed his desire to lead DE. Accused examined himself as DW-1 pursuant to allowing of application u/[SECTION] [ACT]. No other defence witness has been produced by the accused and thereafter, DE was closed vide order dated 26/04/2018.
6. I have heard the arguments of both the parties and perused the record of the case meticulously.
7. In order to prove an offence under [SECTION] [ACT], following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability;
iii) The cheque so issued was returned unpaid by the banker of the drawer;
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within15 days of the receipt of the said notice.
8. It is a well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the complainant, one under [SECTION] and other under [SECTION] of the [ACT]. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. (Reliance placed on [PRECEDENT]).
9. [SECTION] [ACT] is attracted in cases where any cheque drawn by a person on an account maintained by him to the 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 standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with that bank, such person shall be deemed to have committed an offence.
10. Undisputed factual matrix:-
On sifting of evidence on record and appreciation of arguments, the following facts have gone either unchallenged or are admitted:-
Cheque is signed by the accused
11. Defence taken by the accused:-
Cheque in question was given to the complainant Accused does not know the complainant cheque is misused by the complainant Cheque was given to [ENTITY] of the complainant) Legal notice of demand was not received by the accused
12. Points of determination:-
1. Whether there exists a legally recoverable debt?
Perusal of the cross examination shows that complainant is questioned only on the aspect of making any written agreement with respect to loan. A suggestion was put that the cheque in question was not given to [ENTITY]. Complainant was not questioned on any other aspect. Accused took an important defence that he does not know the complainant however no question was put on the aspect of friendly relation of 10-11 years as stated by the complainant. No question was put on the aspect of reason for which accused is stated to have taken a friendly loan. In written submissions filed by the accused various defence are raised by the accused. Accused raised a defence that total 3 persons having common counsel have filed a case against him, however no questions were put on this aspect during cross examination. Noting is placed on record to show the date of admission and admission fee of the child whose admission was done. On 26/04/2018 during examination it was stated by the accused that against the loan received from Mr. [ENTITY], a letter was written however, no such document was placed on record to raise a doubt with respect to the debt in the present case. Therefore, on the basis of above discussion, accused has not able to raise a probable defence against the claim of legally recoverable debt.
2. Whether cheque in question was issued in discharge of debt?
Accused has raised two fold defence in this regard. Firstly, that cheque was not issued to the complainant and cheque is misused by the complainant, secondly it was issued as a blank signed cheque and thirdly it was issued as a security.
With respect to first defence, nothing is stated by the accused as to what action is taken by him against the complainant for misusing the same. Nothing is put during the cross examination to bring out any probable defence to show that cheque was not given to the complainant. Further, accused has not explained, if cheque was given was a security whether any payment in lieu of original loan was returned or not. As per [SECTION] of the [ACT] it is specifically stated that one person signs and delivers a paper stamped in accordance with law either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon its negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument to any holder in due course for such amount. In the present case, accused has not objected to the signature on the cheque in question. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting . Accused has not denied his signatures on the cheques. Once signatures are admitted on the cheques, accused cannot escape the liability on the ground that the same has not been filled in by his. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which she has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him. As regards handing over of the cheques to the complainant is concerned, same is not in dispute since accused has admitted that he had handed over the cheques to the complainant.
Cheque issued as a security-In [PRECEDENT], it was held that there is no merit in legal submission of the accused that only on account of the fact that the cheque in question was issued as a security in respect of contingent liability, the complaint u/[SECTION] [ACT] would not be maintainable. It is required to examine that on the date of presentation of the dishonored cheque the ascertained and crystallized debt or other liability did not exist. The onus to raise a probable defence would lie on the accused, as the law raises a presumption in favor of the holder of the cheque that the dishonored cheque was issued for the debt or liability. Therefore, on the basis of above discussion, accused has not able to raise a probable defence that the cheque has not issued in discharge of debt.
3. Whether legal notice of demand was received by the accused?
At the stage of framing of notice and recording of statement u/[SECTION] [ACT] accused maintained the stand that he did not receive the legal notice of demand however a contradictory stand was taken at the stage of cross examination. At the stage of cross examination of accused on 26/04/2018 accused admitted that he has received legal notice of demand i.e. EX. CW1/C. Accused further admits not sending any reply for the same.
13. Conclusively, in light of the above discussions and reasons, this court finds accused [ENTITY] is guilty of offence punishable U/[SECTION] of the Act. Hence, accused [ENTITY] stands convicted for the said offence.
Copy of this judgment be given dasti to the convict. Announced in the open court on 12.12.2018 ([ENTITY]) [ACT] Certified that this judgment contains 10 pages and each page bears my signature.
([ENTITY]) [ACT]