IN THE COURT OF SH. RAKESH KUMAR SINGH: METROPOLITAN MEGISTRATE (NI ACT)-1, CENTRAL: ROOM NO.-42, TIS HAZARI COURT COMPLEX, DELHI Devender Kumar Vs [ENTITY] CC No.1502/10 18.05.2012
Judgment u/[SECTION] [ACT] Complainant has filed the instant complaint on the basis of a dishonoured cheque of Rs.2,00,000/- received in lieu of friendly loan given to the accused. The said cheque when dishonoured for reason funds insufficient, the complainant sent a legal demand notice but the accused failed to pay the amount. Hence the instant complaint. The complainant filed his affidavit to establish the ingredients of [SECTION] [ACT]. Agreement Exh.CW1/A, Promissory note cum receipt Exh.CW1/J, Cheque Exh.CW1/B, Dishonoured Memo Exh.CW1/C, Registry Receipts Exh.CW1/E, UPC Receipt Exh.CW1/F, Legal Demand Notice Exh.CW1/D, Return Envelop Exh.CW1/H, Acknowledgment of Payment Exh.CW1/I, AD Card though mentioned in the affidavit as Exh.CW1/G has not been filed by the complainant.
Accused pleaded not guilty and claimed trial. She filed an application U/[SECTION] [ACT] raising a defence that her signature was fraudlently and forcibly taken on blank cheque by the complainant. Accused cross examined the complainant. She, however, failed to lead defence evidence, despite opportunities.
Both the parties have been heard.
In the cross examination, the complainant remained unimpeached and the accused failed to bring anything in her favour in the cross examination of the complainant. I consider that the fact that the complainant does not remember the denomination of the currency notes cannot be treated as fatal.
In her statement U/[SECTION] [ACT], the accused has stated her story as under:-
That the complainant proposed a partnership business with her and when the business started, the complainant used to call to her in drunkard condition and used to force sexual relations. Thereafter the accused intimated the complainant to stop the partnership business and for that she agreed to pay Rs.46,000/- but the complainant asked from the accused a signed blank cheque and some signed blank papers for security. She returned Rs.16,000/- and the complainant sold all the machines for recovery of remaining Rs. 30,000/- but never returned the signed cheque and signed blank papers.
I consider that the story of the accused is completely fallacious. Accused has not examined any witnesses to establish such factum. Even there is nothing which suggest that accused has ever approached police station or any court of competent jurisdiction in respect of such sexual harassment or misuse of blank signed cheque and blank signed papers. It cannot be Devender Kumar Vs [ENTITY] CC No.606/10 1 believed that despite such harassments and misuse, the accused would not lodge a complaint against the complainant. Even further, the accused claims presence of some staff who were having knowledge of incident of sexual harassment but the accused never tried to examine any of her staff members. How can a bare explanation of accused be accepted without any supporting proof. In [PRECEDENT] decided on 21.09.2010, Hon'ble High Court of Delhi has observed 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]."
Both the parties have stated their own story and denied that of the other. Better to look into the documents. There is a cheque Exh.CW1/B, an agreement Exh.CW1/A, Acknowledgment of Payment Exh.CW1/I and Promissory Note cum receipt Exh.CW1/J. Accused has not disputed her signatures on all these documents. As such mandatory presumptions of law under [SECTION] and [SECTION] [ACT] is clearly available in favour of the complainant. A three judges bench of Hon'ble Supreme Court in [PRECEDENT] has held that:
" that the presumption mandated by [SECTION] of the Act does indeed include the existence of a legally enforceable debt or liability "
Ld. Counsel has raised a defence that other columns in cheques, promissory note cum receipt, agreement were not filled in by the accused. 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. 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 [PRECEDENT] decided on 20.04.2012.
Accused has only raised a contention that blank papers and cheque were signed by her and complainant never returned the same despite demand. However, the accused never lodged any complaint against the misuse of his cheque and blank signed paper. In such circumstances, how can a mere explanation of the accused be believed? In [ENTITY]), It has further been observed that:
"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."
There is sufficient material on record to presume service of notice. A three judges bench of the Hon'ble Supreme Court in [PRECEDENT] has held that:
"Any drawer who claims that he did not receive the notice sent by post, can, Devender Kumar Vs [ENTITY] CC No.606/10 2 within 15 days of receipt of summons from the court in respect of the complaint under [SECTION] of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under [SECTION] of the Act, cannot obviously contend that there was no proper service of notice as required under [SECTION], by ignoring statutory presumption to the contrary under [SECTION] of the [ACT] and [SECTION] of the [ACT]. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
Even further a three judges bench of Hon'ble Supreme Court in [PRECEDENT] has held that:
" Furthermore, the very fact that the accused had failed to reply to the statutory notice under [SECTION] of the Act leads to the inference that there was merit in the complainant's version "
Accused has failed to establish anything on the record. Accused failed to rebut mandatory presumptions of law arising in favour of the complainant. I see no reason why the claim of the complainant can not be accepted.
The complaint has to succeed.
Result:
I accordingly return a finding of guilt against the accused person.
The accused [ENTITY] is hereby convicted for the offence as punishable under [SECTION] [ACT] charged in the present complaint case.
Let the convict be heard on the point of sentence.
A copy of this order be placed on the official website of the District Court.
([ENTITY]) MM ([ACT])-01, Central District, Delhi 18.05.2012 Devender Kumar Vs [ENTITY] CC No.606/10 3