IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, SOUTH-WEST, DWARKA, DELHI CC No. 13125/18 [ENTITY] S/o Sh. [ENTITY] R/o A-1/380-A, Upper Ground Floor, Hastsal Road, Uttam Nagar, New Delhi-110059. Complainant Versus Sh. [ENTITY] S/o Sh. Paleni Swany R/o RZG-12, Tamil Enclave, Madrasi Colony, Vijay Enclave, Palam, New Delhi-110045 Accused JUDGMENT
(1) Name of the complainant, : [ENTITY] parentage and address S/o Sh. [ENTITY] R/o A-1/380-A, Upper Ground Floor, Hastsal Road, Uttam Nagar, New Delhi-110059. (2) Name of accused, :Sh. [ENTITY] parentage and address S/o Sh. Paleni Swany R/o RZG-12, Tamil Enclave, Madrasi Colony, Vijay Enclave, Palam, New Delhi-110045 (3) Offence complained of or proved : 138 N.I. Act (4) Plea of accused : Pleaded not guilty [ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 1/8 (5) Date of institution of case : 18.04.2018 (6) Date of conclusion of arguments : 26.09.2019 (7) Date of Final Order : 09.10.2019 (8) Final Order : Conviction
1. Vide this judgment I shall dispose of the complaint filed by the complainant under [SECTION] of the [ACT] (hereinafter referred to as the 'Act').
2. Brief facts relevant for the decision of the case are as under:-
That in the first week of January, 2018 the complainant had advanced a friendly loan of Rs.2.5 lakhs to the accused for two months. After the expiry of two months and on insistence of the complainant, the accused had issued a cheque bearing no.354690 dated 05.03.2018 for a sum of Rs.25,000/ drawn on Bank of India, Janakpuri, New Delhi in favour of the complainant. On presentation, said cheque was returned unpaid with the remarks "Insufficient Funds" vide memo dated 19.03.2018. Thereafter, complainant sent a legal demand notice dated 24.03.2018 through registered post. Despite service, the accused had failed to make the payment of the amount covered by cheque in question within the prescribed period. Hence, the present complaint.
3. In his pre-summoning evidence, complainant examined herself on affidavit Ex. CW-1/1. He reiterated the contents of complaint and placed on record, cheque bearing no. 354690 dated 05.03.2018 for a sum of Rs.2,50,000/- drawn on Bank of India, Janakpuri, New Delhi as Ex. CW-1/A, cheque returning memo dated 19.03.2018 Ex. CW1/B, legal notice dated 24.03.2018 as Ex. CW1/C, postal receipts as Ex. CW-1/D, tracking report Ex. CW1/E. [ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 2/8
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 20.11.2018 to which he pleaded not guilty and claimed trial. Accused took the defence that in the year 2012 he had taken loan of Rs.30,000/- from the complainant and he had repaid the same in monthly installments of Rs.5,000/-in the year 2016. He stated that the cheque in question was issued in a blank signed condition. He denied receiving of legal notice.
5. Thereafter, the complainant examined herself as CW-1. During cross- examination, he stated that his monthly income in Dec,2017 and Jan, 2018 was perhaps Rs.1.5 to 2 lakhs and his monthly expenditure was around Rs.40,000/- to 50,000/-. He admitted that his children studied in private school and their monthly fees was around Rs.10,000-12,000/-. He stated that on 4 th or 5th January, 2018 he had advanced loan of Rs.2.5 lakhs to the accused at his shop for a period of 1 - 1 months but neither any witness was present nor any document was executed at that time. He stated that he has not disclosed the loan in his ITRs. He stated that in February, 2018 he demanded his money back. He placed on record his ITRs for the assessment year 2018-2019 Ex. CW-1/F(colly). He denied the suggestion that in October, 2012 the accused had taken a sum of Rs.30,000/- from him. He denied the suggestion that the accused returned the said amount in 6 installments of Rs.5,000/- each. He denied the suggestion that when the accused demanded his cheque, he told him that the same were misplaced. He denied the suggestion that the contents in the cheque in question in different ink. He admitted that the contents in the cheque in question are written in different handwriting when compared with the signatures. He stated that the contents in the cheque in question were filled by him. He denied the suggestion that the accused had not taken Rs.2.5 lakhs as a loan from him. He denied the suggestion that the accused does not have any liability towards him. He denied the suggestion that he had not sent the legal notice. He denied the suggestion that in order to extort money, he has misused the security cheque which was given by the accused.
[ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 3/8
6. Thereafter, on 16.05.2019, statement of accused under [SECTION] [ACT] read with [SECTION] [ACT] was recorded in which all the incriminating evidence were put to him but he denied all the allegations levelled against him. He took the same defence as was taken by him at the time of framing of notice. He preferred to lead defence evidence but without examining any witness he closed defence evidence on 11.07.2019.
7. Thereafter, final arguments were addressed on behalf of both the parties.
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.
[ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 4/8
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] 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 [ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 5/8 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. In the present case, the accused has admitted the issuance of cheque in question to the complainant. Reference can be made to judgment of Apex Court in [PRECEDENT] that, "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."
14. 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 given as security and not in discharge of any liability is not sufficient to rebut the presumption of law.
15. The accused has taken the defence that he had not taken loan of Rs. 2.5 lakhs from the complainant. He alleged that he had taken loan of Rs. 30,000/- from the complainant and he had returned the same in installments to the complainant. However, no cogent evidence is led by the accused in support of his version. 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, reliance can be placed upon [PRECEDENT] and [PRECEDENT] decided on 04.09.2017]. It was held that "the defence taken by the respondent no. 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] of the Code recorded on 4.02.2015 is not "evidence" within the meaning of [SECTION] of the [ACT]. When person appears in the court as a witness, he is required to state facts on oath under [SECTION] of [ACT] and his examination in chief is tested on touchstone on cross-examination by other party. This is actually the evidence. Therefore, the plea taken in application under [ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 6/8 [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 imagination can not be treated as "evidence". This is only a 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. The complainant was cross examined by the counsel for accused but nothing favourable to the accused has emerged during the course of cross-examination. There is nothing on record to show that the claim of the complainant is false or that the documents filed by him are untrustworthy.
16. It was argued by Ld. counsel for the accused that the complainant has failed to establish his financial capacity to advance such a huge amount. It was also contended that the complainant during his cross-examination placed on record his ITR which shows that his annual income was around Rs. 4,70,000/-. It was also argued that the complainant has not disclosed the factum of advancement of loan to the accused in his ITRs and, therefore, all these facts create doubt on his case. I do not find merits in the submission of Ld. Counsel for the accused. The claim of the complainant cannot be discarded solely on the ground that his annual income at the relevant time was Rs. 4,70,000/-. Reliance can be placed on one judgment [PRECEDENT]. In that case, it was held that "para 24. mere admission of the complainant that he was earning only Rs.12,000/- per month from small business or his failure to file income tax returns, or his omission to produce the bank pass book or to examine [ENTITY] as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts she had pleaded in answer to the notice under [SECTION] [ACT]". Thus, there is no force in the submission of Counsel for the accused.
17. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
18. As the complainant has proved his case beyond reasonable doubt, therefore, accused [ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 7/8 is being convicted for the offence under [SECTION] of [ACT].
19. Let the accused be heard on quantum of sentence.
20. Copy of Judgment be supplied to the convict free of cost.
[ENTITY] RAJPOOT Date: 2019.10.09 16:36:11 +0530 ANNOUNCED IN THE OPEN COURT ([ENTITY]) TODAY i.e. 09th October, 2019 METROPOLITAN MAGISTRATE DWARKA DISTRICT COURTS/ DELHI [ENTITY] vs. [ENTITY] CC No. 13125/18 Page no. 8/8