IN THE COURT OF MS. RIYA GUHA, METROPOLITIAN MAGISTRATE([ACT]-02), CENTRAL, TIS HAZARI COURT, DELHI [CASE NUMBER] UID NO. 02401R1485892007 [ENTITY] S/o Sh. Prehlad Ji R/o EE-2942, Jahangir Puri, Delhi-110033 Complainant Versus [ENTITY] (Peon) R/o DAV College Managing committee Rchitrgupta Road, Paharganj, New Delhi. Accused The offence complained of : u/[SECTION] [ACT] The plea of the accused person : not guilty Final order : Conviction Date of institution of complaint : 17.09.2007 Date on which reserved for judgment : 26.03.2015 Date of pronouncement of judgment : 22.04.2015 JUDGMENT:
1. Briefly, the facts of the case necessary for deciding the matter are laid down as follows: It is the case of the complainant that the accused borrowed a loan of Rs. 30,000/- from the complainant in January 2005 for his bonafide necessity and the complainant had advanced the accused the loan amount which the accused promised to repay him back.
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2. It is further alleged that when the complainant demanded the accused to repay him back the loan amount, the accused gave him a cheque bearing no. 147888 dated 25.02.2007 for Rs. 30,000/- drawn on The Lakshmi Vilas Bank Ltd, Janpath Branch, New Delhi which is Ex. CW1/1 and told him that the cheque will be encashed when presented. However, when the complainant had presented the above mentioned cheque for its encashment with his banker on same day, the said cheque was dishonoured vide return memo dated 04.08.2007, with the remarks 'account closed'. The cheque return memo dated 04.08.2007 is Ex. CW1/2. The requests of the complainant to the accused to repay the money fell on deaf ears.
3. Thereafter, the complainant had got served legal demand notice dated 13.08.2007 upon the accused through Regd. AD, in respect of the above mentioned cheque. Despite service of the legal notice and despite expiry of statutory period, the accused had failed to pay the cheque amount to the complainant, hence the complainant had filed the present complaint against the accused. Copy of legal notice dated 13.08.2007 is Ex. CW1/3, original postal receipt is Ex. CW1/4 and UPC is Ex. CW1/5.
4. After considering the pre-summoning evidence, the court took cognizance of the offence and summoned the accused vide order dated 20.09.2007. The accused appeared before the court and he was admitted to bail. Notice against the accused under [SECTION] [ACT] was framed on 24.07.2008 to which he pleaded not guilty and claimed trial.
5. Thereafter, the matter was posted for the complainant's evidence and the accused had duly cross-examined the complainant on 18-10-2012. After completion of CE, the statement of the accused under [SECTION] [ACT] was [CASE NUMBER] Sh. [ENTITY] v/s Sh. [ENTITY] Pages no. 2 of 9 recorded to the following effect:
"I am innocent. I used to take money from Sh. [ENTITY], complainant time to time but I returned the same along with the interest amount and total amount which was returned by me including interest was Rs. 45,950/-. The complainant did not return the blank signed cheque given by me in lieu of the loan advanced by the complainant but despite assurance, the complainant had not returned the cheque to me even though the loan had been repaid. There is no legally enforceable liability due against me and the present complaint filed against me is false."
6. Thereafter, the matter was posted for defence evidence and the accused stepped into the witness box to depose in his own behalf. His testimony was recorded as DW1 and he was duly cross-examined by the Ld.Counsel of the complainant. In his defence, the accused has submitted that he used to take money from the complainant from time to time had already returned a sum of Rs. 45,950/- in the year 2006 alongwith interest and after paying the money to the complainant, he requested to return his cheque but the complainant refused to return the same and complainant has filed a false case against him.
7. Thereafter, on closure of evidence, the matter was posted for final arguments which had had been advanced by both the parties. To bring out an offence under [SECTION] of the [ACT], the complainant must successfully prove all the essential requirements as laid down in that provision i.e. :
a) The cheque for an amount is issue by the accused to the complainant on a bank account maintained by him.
b) The said cheque is issued for the discharge, in whole or in part of any debt or other liability by the accused.
c) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque.
d) The cheque is presented to the bank within 6 months from the date on which it is drawn and is within the period of its validity.
e) Within 30 days demand notice is issued by the complainant on receipt of information by him from the bank regarding the dishonour of the cheque.
f) The drawer of the said cheque / accused fails to make the payment of the said amount of the money to the complainant within 15 days of the said notice.
g) The debt or liability against which the cheque was issued is legally enforceable.
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8. In order to have the positive outcome in his favour, the complainant was required to show that the cheque Ex. CW1/1 was given by the accused to discharge his liabilities which was dishonoured via returning memo whereafter the accused had also failed to comply with the requirements of the legal notice Ex. CW1/3. On the other hand, the accused was required to show his defence in the balance of preponderance of probabilities that the cheque was not issued for any legally enforceable liability or that no offence under [SECTION] of [ACT] is made out against him.
9. As per [SECTION] [ACT], it is to be presumed in favour of the complainant during the trial that the cheque in question was given against consideration by the accused and that the complainant was the holder of the said cheque in due course. Further as per [SECTION] [ACT], it is to be presumed in favour of the complainant during the trial that the cheque in question was received by the complainant against a debt or liability. Reliance can be placed on "[PRECEDENT], Dated:- 07.05.2010.
10. It is well settled that both the aforesaid presumptions U/[SECTION] and [SECTION] of [ACT] are rebuttable in nature and the onus to rebut the same squarely rests upon the accused. The accused can rebut these presumptions not merely by examining his own witnesses but also through the cross examination of the complainant and his witnesses thereby bringing on record through the entire evidence available on record, that the complainant case is false and that there was no existing liabilities between the parties and that the cheque in question was misused. The accused has a right to argue his case even on the basis of the cross examination of the complainant and his witnesses to show to the court that there existed no legally recoverable debt or liability between the parties. In order [CASE NUMBER] Sh. [ENTITY] v/s Sh. [ENTITY] Pages no. 4 of 9 to rebut the legal presumption in question, it emerges that the accused need not require direct evidence to disprove the existence of consideration. If the accused succeeds in raising a probable defence by referring to his own evidence (if any) and from the evidence of the complainant, then the onus would shift on to the complainant, who then would have to show beyond reasonable doubt the existence of consideration/existence of a legally recoverable debt or liability in respect of the cheque in question.
11. The defence set up by the accused in the present case is that he had already returned the loan amount to the complainant and had also asked for return of the cheque but the complainant had not returned the cheque but misused the same by presenting it and the by filing the present case.
12. It is argued by the Ld. counsel for complainant that from evidence on record, the complainant has proved that cheque in question was signed by the accused which was dishonoured vide memo and despite the legal notice accused did not make the payment. It is further argued that the entire case of the complainant has remained unrebutted and that accused has failed to discharge the burden upon him to rebutt the presumption in favour of the complainant under the Act. The accused, on the other hand, has argued that he is having no legal liability towards the complainant because the cheque in question was given in blank only in lieu of loan taken which already stands repaid.
13. The accused may adduce direct evidence on preponderance of probabilities to prove that cheque in question was not supported by any consideration and that there was no debt or liability to be discharged by him. However, there is no need that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of [CASE NUMBER] Sh. [ENTITY] v/s Sh. [ENTITY] Pages no. 5 of 9 negative evidence is neither possible nor contemplated. At the same time it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.
14. The question which becomes important in this scenario is that whether the complainant proved his case, that whether the amount was legally enforceable debt. The offence under [SECTION] of the Act is a technical offence and the complainant is only supposed to prove that the cheque issued by the accused was dishonoured, his statement that cheque was issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the accused to show the circumstances under which the cheque was issued and this could be proved by the accused only by way of cogent evidence.
15. The issuance of the cheque is not disputed by the accused. It is further established on record that the cheque in question issued by the accused got dishonored vide bank memo. The signatures on the cheque in question is not disputed by the accused at all. It is also established on record that the cheque in question pertains to the account of the accused. The legal notice sent by the complainant is received by the accused as there is no denial on that account.
16. During recording of his statement under [SECTION] [ACT], the accused had stated that the cheque had been given by him as blank as a security and has been manipulated and falsely presented is of no consequence. The Court is of the considered view that a bare explanation of accused cannot be accepted in the absence of any supporting material. In [PRECEDENT] decided on 21.09.2010, Hon'ble High Court of Delhi has observed [CASE NUMBER] Sh. [ENTITY] v/s Sh. [ENTITY] Pages no. 6 of 9 that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under [SECTION] of [ACT]."
"If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
17. So far as the defence that other columns in cheque were not filled in by the accused is concerned, this contention does not have any force. No law requires that all the columns must be filled in by the drawer/maker himself. If signature on the cheque is admitted, the same will be sufficient. The concept of blank signed cheque is virtually immaterial in view of several judgments of Hon'ble High Court of Delhi viz. "[PRECEDENT], "[PRECEDENT]." [CASE NUMBER] decided on 05.05.2011," [PRECEDENT] decided on 13.02.2012 and "Manoj Sharma vs Anil Aggarwal"
CRL.M.C. 1325/2012 decided on 20.04.2012.
18. The accused has not denied the signatures on the cheques in question. Therefore, mere pleading not guilty and stating that the loan amount has been returned, would not amount to rebutting the presumption raised under [SECTION] of [ACT]. In the present case accused has not produced any cogent proof in support of his any defence that the cheque in question given in blank as security to the complainant which makes it improbable that the cheque in question was not issued towards the discharge of legal liability as alleged by the complainant.
19. During the cross-examination of the complainant, he was questioned by the opposite counsel about filing of his income-tax returns as well as whether [CASE NUMBER] Sh. [ENTITY] v/s Sh. [ENTITY] Pages no. 7 of 9 any written document was executed when loan was advanced. However, such questioning does not result in any dent in the case of the complainant, especially in the light of the fact that the accused himself admitted during his evidence that he used to borrow money from the complainant from time to time. He further deposed that he had handed over the cheque in question at the time of borrowing of such money.
20. Further, during his cross-examination, the accused was put to question as to how much money he had borrowed from the complainant. However, in answer he stated that he returned the amount of Rs.45,950/- to the complainant which was inclusive of interest. Also, he expressed his inability to answer as to what was the exact amount that he had borrowed from the complainant. In the considered view of the court, such response must result in drawing an adverse inference against the accused as it cannot be believed that a person who habitually borrows money from one particular person, will return an odd amount of Rs.45,950/- merely on the asking of the lender but will not remember as to how much he owes to the other person. Clearly, the accused had avoided to give a clear and specific answer to the questioning of the Ld.counsel of the complainant.
21. Further on more cross-examination, the accused had stated that he had not taken any receipts when he allegedly repaid the loan amount. He further stated that there was no witness when he repaid the loan amount to the complainant. It was further admitted by him that he did not take any action against the complainant, by way of sending a letter or notice, for return of the cheque. These circumstances which came out during cross-examination of the accused throws a doubt on his version as it cannot be believed that a person will neither take any receipts for repayment of loan nor will he strive to ask for return [CASE NUMBER] Sh. [ENTITY] v/s Sh. [ENTITY] Pages no. 8 of 9 of the cheque when he has repaid the loan. The accused had only taken a vague plea that the complainant did not return the cheque despite assurance. In the judgment "[PRECEDENT]", it was held that mere denial / averments in reply by the accused are not sufficient to shift the burden of proof onto the complainant. Accused has to prove in trial by leading cogent evidence that there was no debt or liability, which in the present case accused has not been done.
22. Reading of the evidence on record in its entirety, would show that the evidence is not supportive with the innocence of the accused and proves the case of the complainant beyond reasonable doubts. Secondly, accused has not produced any cogent proof in support of his defence on record. The accused has failed to discharge the onus. Hence, this court holds that the accused has not been able to rebut the presumptions under [SECTION] and [SECTION] [ACT] standing in favour of complainant.
23. Having considered the entire evidence, the complainant successfully proved all the essential requirements of [SECTION] of the Act. Accordingly, accused Sh. [ENTITY] S/o Sh. [ENTITY] is held guilty for committing the offence punishable u/[SECTION] of the Act, he is hereby convicted for the said offence.
24. Let he be heard on point of sentence separately on 29/04/2015.
Pronounced in the open (RIYA GUHA) court on 22/04/2015 MM (C-02)/Delhi [CASE NUMBER] Sh. [ENTITY] v/s Sh. [ENTITY] Pages no. 9 of 9