1 IN THE COURT OF MS [ENTITY] : METROPOLITAN MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI [ENTITY] vs [ENTITY] CC No 635/1 U/[SECTION] [ACT] [CASE NUMBER] JUDGMENT
(1) Serial number of the case : 635/1 (2) Name of the complainant : [ENTITY] C/o H.No. 50/1, Yusuf Sarai, New Delhi-16 (3) Name of the accused, : [ENTITY] S/o Late [ENTITY] C/o Shop No. 3, Yusuf Sarai, New Delhi-16 (4) Offence complained of or proved : 138 [ACT] (5) Plea of the accused : Pleaded not guilty (6) Final Order : CONVICTED (7) Date of Institution : 06/09/2006 (8) Date on which reserved for judgment : 23/09/2015 (9) Date of Judgment : 08/10/2015 [ENTITY] vs [ENTITY] CC No 635/1
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The material facts as carved out from the complaint are that on different dates between the period 15/06/2005 to 24/06/2006, the accused had taken friendly loan on different dates from the complainant totalling to Rs.02 lacs and in discharge of his liability, the accused handed over one undated cheque on every transaction ie cheque bearing nos. 007332, 007333, 010366, 012039 all drawn on Indian Overseas Bank, Yusuf Sarai branch for Rs.15,000/-, Rs.15,000/-, Rs.10,000/- and Rs.20,000/- respectively and cheque bearing no. 233602 & 724072 both drawn on ICICI Bank, Green Park branch for Rs.50,000/- and Rs.10,000/- respectively. It is further averred in the complaint that on 24/06/2006, the accused lastly came to the complainant and asked for a further loan of Rs.80,000/- and handed over a consolidated cheque bearing no. 23369 dated 21/07/2006 for a sum of Rs. 2,00,000/- drawn on ICICI Bank Ltd., Green Park branch and took away all the previous cheques which on presentation, was dishonoured for reason "Insufficient Funds" vide memo dated 24/07/2006. Thereafter, it is averred that the complainant sent a legal notice dated 05/08/2006 by way of AD & UPC on 07/08/2006, demanding payment of the dishonored cheque, which the accused failed to make within stipulated time and hence, the complainant filed this complaint U/[SECTION] of [ACT] (hereinafter "the Act") against the accused.
2. The complainant filed an affidavit in the pre-summoning [ENTITY] vs [ENTITY] CC No 635/1 evidence. In the affidavit he reiterated the averments made in the complaint and relied upon the documents which are the cheque in question as ExCW1/A, returning memo as ExCW1/B, copy of legal notice as ExCW-1/D and proof of delivery of the legal notice as ExCW1/E & ExCW1/F.
3. On 10/10/2006, my Ld. Predecessor after being satisfied that the complainant has a prima facie case against the accused [ENTITY], summoned the accused for offence punishable U/[SECTION] of the Act.
4. Accused appeared pursuant to execution of summons and notice U/[SECTION] [ACT] was framed by my Ld. Predecessor vide order dated 16/08/2007. The accused pleaded not guilty and claimed trial.
5. After notice U/[SECTION] [ACT], accused was given the permission to cross examine the complainant. In the cross examination, the complainant deposed that he was running a stationery shop adjacent to the residence of the accused and earning approximately Rs.5,000/- to Rs.10,000/- per month. He further deposed that he was not an income tax payee. He also deposed that he had given Rs.1,20,000/- to the accused in the year 2005 and took six cheques. He admitted that he did not obtain any receipt from the accused for advancing the payment as he had taken cheques.
6. All the circumstances appearing in the evidence against the accused were put to him in order to enable him to offer his explanation. In his [ENTITY] vs [ENTITY] CC No 635/1 statement U/[SECTION] [ACT] recorded by my Ld. Predecessor on 04/07/2012, accused admitted issuance of cheque. However, he stated that the same was issued in blank in lieu of loan of Rs.10,000/- taken by him from the complainant. Further he denied the receipt of legal demand notice. He also stated that nothing except the signatures on the cheque in question ExCW1/A, were filled up by him. He further expressed his desire to lead evidence in his defence.
7. In his defence, accused examined one [ENTITY], Rent Collector, SDMC as DW-1 to prove the financial incapacity of the wife of the complainant, Advocate [ENTITY] as DW-2 to prove that the particulars on the cheque in question ExCW1/A were not filled up by the accused and [ENTITY], concerned official from Social Welfare Department as DW-3 to prove the financial incapacity of the complainant. Thereafter, DE was closed vide order dated 31/08/2015.
8. Arguments were advanced by both the parties and the case record has been perused meticulously.
9. In [PRECEDENT], the Hon'ble Delhi High Court has held that :
"It is a settled legal position that the onus to raise a probable defence would lie on the accused, as the law raises a presumption in favour of the holder of the [ENTITY] vs [ENTITY] CC No 635/1 cheque that the dishonored cheque was issued in respect of a debt or other liability. As settled by the Hon'ble Supreme Court, the said onus obliges the accused to raise a defence-either by picking holes in the case of the complainant and/or by positively leading defence evidence which leads the court to believe that there is a probable defence raised by the accused to the claim of the complainant with regard to the existence of the debt of other liability. The said onus does not case as stringent an obligation on the accused, as it casts on the complainant, who has to prove beyond reasonable doubt the guilt of the accused".
10. In the present case, the accused has raised the following defences :
1. Particulars on the cheque in question were not filled up by him.
2. Cheque was given in blank as a security for a loan of Rs.10,000/-.
3. Complainant did not have the financial capacity to advance a loan of Rs.02 lacs, as alleged by him.
4. Non receipt of legal notice.
11. Now, this court shall deal with the defences raised by the accused one by one in order to ascertain whether the accused has been able to rebut the presumptions arising in favour of the holder in due course U/[SECTION] [ACT] and the presumptions regarding cheque in question being given for consideration U/[SECTION] [ACT] by preponderance of probabilities. [ENTITY] vs [ENTITY] CC No 635/1 FIRST DEFENCE - CHEQUE IN QUESTION ONLY SIGNED BY THE ACCUSED AND THE OTHER PARTICULARS NOT FILLED BY THE ACCUSED No law provides that in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is the signature of the drawer or maker and not the writing on the instrument. Hence, question of body writing/other contents except signatures is almost of no significance. (Reliance placed on [PRECEDENT]).
Therefore, the defence plea raised by the accused that the cheque has only been signed by him and other particulars have not been filled up by him is not tenable in the eyes of law.
SECOND DEFENCE - CHEQUE IN QUESTION WAS GIVEN IN BLANK FOR LOAN OF RS.10,000/-
The accused has raised a defence that he had issued the cheque in question in lieu of the loan of Rs.10,000/- taken by him from the complainant whereas it is the case of the complainant that the accused was taking friendly loans on different dates from him between the period 15/06/2005 to 24/06/2006 and used to issue undated cheque on every transaction. In support of his case, the complainant has placed on record, [ENTITY] vs [ENTITY] CC No 635/1 photocopies of certain cheques allegedly issued by the accused out of which few cheques are undated and only two cheques bear the name of the payee. It is also the case of the complainant that when the cheque in question was issued by the accused, the complainant returned all the previous cheques given by the accused and the cheque in question was issued for the consolidated amount of Rs.02 lacs. What is pertinent to note here is that none of the cheques which are mark A to F are blank with respect to the amount. No reasonable explanation has been put forth by the accused to show why the cheques mark A to F were given to the complainant. Therefore, this court is of the view that from the appreciation of the material available on record, the defence of the accused that the cheque in question was given in blank against a loan of Rs.10,000/- does not appear to be probable.
THIRD DEFENCE - THE COMPLAINANT'S FINANCIAL INCAPACITY TO ADVANCE A LOAN OF RS.2,00,000/-
In order to substantiate the above said defence, the accused has examined witness from the office of SDMC & Social Welfare Department of NCT of Delhi. The said witnesses have deposed that the wife of the complainant and the complainant are drawing senior citizen pension from 01/05/2012 and August 2011 respectively. In the cross examination, the complainant has deposed that he was earning about Rs.5000/- to Rs.10,000/- per month from a stationery shop being run by him.
Firstly, the alleged loan has been advanced allegedly in the [ENTITY] vs [ENTITY] CC No 635/1 year 2005-2006 and therefore, the testimony of the defence witnesses with regard to the drawing of pension by the complainant and his wife from the year 2012 and 2011 respectively do not acquire much significance.
Secondly, the witness has not been examined with respect to complainant's monthly income or the fact that the complainant was drawing money from any other source except the stationery shop being run by the complainant or not.
Thirdly, it is the case of the complainant that the loan of Rs. 2,00,000/- was advanced on different dates between period of 15/06/2005 to 24/06/2006 and therefore, what is to be considered is that whether the complainant was having the financial capacity to advance loan of Rs. 10,000/-, Rs.15,000/-, Rs.20,000/- in installments or not. From the perusal of the entire record, it can be said that the accused has not been able to show that the complainant did not have the financial capacity to advance the alleged loan in installments to the accused and therefore, the defence raised by the accused does not appear to be probable and sufficient to rebut the presumptions arising in favour of the holder in due course of the negotiable instrument.
FOURTH DEFENCE - NON RECEIPT OF LEGAL NOTICE [SECTION] of [ACT] is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been [ENTITY] vs [ENTITY] CC No 635/1 delivered at the address of the addressee. Further [SECTION] of the [ACT] gives rise to a presumption that service of notice has been affected when it is sent to the correct address by Regd. Post.
In the present case, the complainant has alleged that he sent legal notice dated 05/08/2006 vide Regd. AD and UPC letters on 07/08/2006 and has placed on record, the Registration Slip and UPC receipt of the same as ExCW1/E & ExCW1/F. In [PRECEDENT] and in [PRECEDENT], the Hon'ble Apex Court has held that service of notice is deemed to have been affected on the sendee unless he proves that it was not really served and that he was not responsible for such non service. It is for the accused to rebut the presumption U/[SECTION] [ACT] and [SECTION] of [ACT]. Since, in the present case, the accused had appeared pursuant to issuance of summons at the same address, as that of the demand notice and in view of the postal receipts and Registered Slip ExCW1/E & ExCW1/F, this court holds that the legal notice of demand ExCW1/D was duly served upon the accused. Accordingly, this court finds this line of defence of accused also unacceptable.
12. Therefore, in light of the above discussions, this court is of the view that the accused has not been able to rebut the presumptions arising in favour of complainant by preponderance of probabilities and the complainant has been able to prove his case beyond all reasonable doubts and [ENTITY] vs [ENTITY] CC No 635/1 accordingly, this court finds accused [ENTITY] s/o Late [ENTITY] guilty for the offence punishable U/[SECTION] [ACT]. Resultantly, accused [ENTITY] s/o late [ENTITY] is hereby convicted for the offence punishable U/[SECTION] [ACT].
13. Let the convict be heard on the quantum of sentence on 12/10/2015 at 02.00 PM. Copy of this judgment be given dasti to the convict.
Announced in the open court on 08/10/2015 ([ENTITY]) Metropolitan Magistrate-02/[ACT]/South Saket Court/New Delhi Certified that this judgment contains 10 pages and each page bears my signature.
([ENTITY]) Metropolitan Magistrate-02/[ACT]/South Saket Court/New Delhi [ENTITY] vs [ENTITY] CC No 635/1