: 1 : IN THE COURT OF MS. [ENTITY], LD. METROPOLITAN MAGISTRATE : SPECIAL COURT - 20 (NI ACT) : DWARKA : DELHI [ENTITY] v/s Sh. [ENTITY] Complaint Case No. : 2990/12 P.S. : Netaji Subhash Place U/s. : 138 [ACT] 1. Name of the complainant : M/s. [ENTITY] 4th Floor, Survey#208/1B Behind Weikfield IT Park, Viman Nagar, Pune 411014 Branch Office : Office no.1152 & 1351, Plot E5, 11th & 13th Floor, Agarwal Metro Heights, Netaji Subhash Place, PitamPura, Delhi - 110 036 2. Name of the accused and address : Shri [ENTITY] R/o A3/261, A3 Block Nand Nagri, Near Primary School,Delhi 110093 3. Offence complained of : U/[SECTION] [ACT] 4. Plea of accused : Pleaded not guilty : 2 : 5. Final Order : Acquitted 6. Date of Reserving the Order : 13.2.2013 7. Date of Order : 15.2.2013 Date of Institution of case : 01.8.2012 Date of Decision of the case : 15.2.2013 J U D G M E N T
1. Vide this judgment, I shall dispose of the complaint u/[SECTION] of the [ACT] against the accused.
2. The case of the complainant as per the complaint is that the complainant, M/s. Bajaj Finance Limited (original known as M/s. Bajaj Auto Finance Ltd.) is a Company incorporated under [ACT], having its Corporate Office at 4th Floor, Survey#208/1B, Behind Weikfield IT Park, Viman Nagar, Pune 411014 and interalia having its branch office at Office no.1152 & 1351, Plot E5, 11th & 13th Floor, Agarwal Metro Heights, Netaji Subhash Place, PitamPura, Delhi - 110 036 The present complaint is being filed through Sh. [ENTITY], AR of the bank, duly authorised in this regard.
3. It is submitted by the complainant in its complaint that at the : 3 : request of the accused complainant provided loan to the accused vide loan agreement no.4010PL00080087 and the loan has to be repaid in equal monthly installments by the accused. Accused thereafter issued a cheque bearing no.236144 dtd. 31.5.2012 for an amount of Rs.49407.00 drawn on Syndicate Bank in favour of the complainant towards the partial discharge of legally enforceable debt / liability arising out of the loan agreement.
4. It is also submitted by the complainant that the abovementioned cheque was presented for collection by the complainant through its bank but the same was returned unpaid by the bank of the accused due to the reason "Funds Insufficient". Complainant thereafter issued a legal demand notice and the same was duly served upon teh accused as per internet generated delivery report but despite service of the same, the accused neither replied to the notice nor paid the cheque amount in question. Hence, the complainant has filed the present complaint to prosecute the accused u/[SECTION] [ACT].
5. The complaint was filed within limitation on 20.7.2012 pursuant to which summons and thereafter warrants were issued against the accused, consequent thereupon the accused entered appearance and was admitted to bail. Notice was framed against the accused to which the accused pleaded not : 4 : guilty and claimed trial. Thereafter, the matter was listed for evidence.
Complainant's Evidence
6. CW1 deposes in his examinationinchief same facts as are submitted in the complaint and has relied upon following documents : Special Power of Attorney is Ex.CW1/A, cheque in question is Ex.CW1/B, cheque return memo is Ex.CW1/C, legal notice as Ex.CW1/D, postal receipts are Ex.CW1/E, internet generated delivery report is Ex.CW1/F and complaint is Ex.CW1/G. CW1 cross examined by the counsel for accused. During his cross examination CW1 submitted that the loan disbursed to the accused was of the amount of Rs. Seventy One Thousand which was to be returned in thirty equal installments of Thirty Six Hundred Ten rupees. CW1 also submitted that accused has already paid an amount of Rs. Fifty Four Thousand to the complainant towards the repayment of loan amount. CW1 during his crossexamination admitted that complainant has failed to mention in any of the documents filed by the same, total amount which is presently due towards the accused. CW1 further submitted that cheque Ex.CW1/B is given after settlement, arrived between the complainant and the accused though the fact regarding the settlement or any settlement agreement has not been filed by the complainant.
: 5 : Statement of Accused
7. Statement of accused u/[SECTION] [ACT] recorded in which accused submitted that he is absolutely unaware of the fact that he is liable to pay any amount to the complainant. Accused also showed his ignorance of the fact of the dishonouring of the cheque. Accused in his statement also submitted that he has no knowledge of any legal notice whether served by the complainant to him.
8. Accused in his statement u/[SECTION] [ACT] specifically denied to lead defence evidence, instead he wants to rely upon the cross examination of complainant itself to prove his side his case.
9. Before adverting to the facts of case in hand it would be pertinent to reproduce the relevant provisions of [SECTION], [SECTION] and [SECTION] of [ACT] at the very outset, which reads as follows : [SECTION] of [ACT] reads as follows:
138. Dishonour of cheque for insufficiency, etc., of funds in the account - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount : 6 : of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount : 7 : of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.] [SECTION] of [ACT] reads as follows:
Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that6 the holder of a cheque received the cheque of the nature referred to in [SECTION] for discharge, in whole or in part, of any debt or other liability.
[SECTION] of [ACT] reads as follows:
Presumption as to negotiable instruments -
: 8 : 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, endorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
10. Regarding the scope of presumptions u/[SECTION][SECTION] of the [ACT], there is no doubt about the settled legal position that once the signatures on the cheque are admitted by the drawer of the cheque, there arises a presumption in favour of the payee/holder in due course in terms of [SECTION] and [SECTION] of [ACT] that the cheque has been issued for consideration and in discharge of legally enforceable debt or liability. It is also well settled that (a) the presumption does not go to the extent of presuming the existence of debt and (b) the aforesaid presumption is rebuttable in nature (see [PRECEDENT]. Further, it is also well settled that for the rebuttal of the presumptions it is not necessary that the accused must step into the witness box but the presumptions can be rebutted : 9 : either by cross examination of complainant's witness (see [PRECEDENT] and [PRECEDENT] or even by raising presumptions of fact or law from the material available on record (see [PRECEDENT]). In [PRECEDENT] it was held as under:
"12. Under [SECTION] of the [ACT], the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in the regard lies on the defendant to prove the nonexistence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. The bare denial of the passing of the : 10 : consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist. "
11. Standard of proof of rebuttal of presumptions by any person accused of an offence under [SECTION] of the [ACT] is preponderance of probabilities and It is not at all necessary for the accused to prove his defence beyond reasonable doubts. Though, bare denial or bald suggestions given by the accused would not be sufficient to rebut the aforesaid presumption (see [PRECEDENT]). Thus, whether the presumption has or has not been rebutted depends on the facts of each case to be analyzed in the light of aforesaid legal principles.
: 11 :
12. Question which is to determined here is whether the accused handed over the cheque in question to the complainant was given in discharge of any legal debt or liability. Counsel for the complainant has contended at the time of final arguments that accused had given the cheque Ex.CW1/B to discharge his liability towards the complainant. It is the case of the complainant that the accused in discharge of his liability issued a cheque bearing no.236144 dtd. 31.5.2012 for an amount of Rs.49407.00 drawn on Syndicate Bank in favour of the complainant with the assurance that the said cheque would be encashed upon presentation. While counsel for the accused on the other hand, vehemently opposed the fact that accused owed any legal liability towards the complainant. Counsel for the accused contended that cheque Ex.CW1/B (colly) was given as security amount at the time of disbursal of loan amount to accused by the complainant. Counsel for accused relying on the crossexamination of CW1 further contended that if the cheque Ex. CW1/B was given under any settlement then where is that settlement, as same has never been produced by the complainant.
13. I have gone through all the relevant documents, examinationin chief, cross examination of the AR of the complainant as well as statement of the accused. Here, cross examination of AR of the complainant is necessarily to be highlighted. CW1 in his cross : 12 : examination himself admitted following facts: "It is correct that complainant issued receipt when any cheque/cash received from the party. The present cheque which is Ex.CW1/B is the settlement cheque, the settlement which has been arrived between the complainant and the accused. The fact regarding the settlement has not been mentioned in any of the documents filed by the complainant on the record. No settlement letter has been filed by the complainant and I do not know whether any settlement letter is there or not. I have not filed any receipt with respect tot he receiving of the cheque."
Hence, at this stage, it is clear now that the cheque amount is not equivalent to the amount of monthly installments as agreed to be paid by the accused towards the repayment of the loan amount. In fact, present cheque Ex.CW1/B was handed over by the accused under some settlement to the complainant as per complainant's own submission in his crossexamination. Thus, onus shifts on the complainant to establish the existence of such settlement. Complainant miserably fails to show any term or condition in the loan agreement by which settlement may be : 13 : arrived at later stage, and also fails to produce any such settlement agreement if any existed. This Court find force in the contention of the counsel for accused in as much as counsel for complainant has not been able to produce proof of any compromise between complainant in accordance of which present accused issued cheque which is Ex.CW1/B.
14. In view of the ratio decidendi in the judgment passed by the Hon'ble Supreme Court in case titled as [PRECEDENT], the prosecution must prove the guilt of an accused beyond reasonable doubt whereas the standard of proof on the part of the accused is "preponderance of probabilities". The burden was on the accused to disprove the presumption u/[SECTION] [ACT], a burden which he has successfully discharged. It is apparent that the accused has furnished cogent reasons which resulted in shifting the burden of proof on the complainant, which the latter failed to discharge. Complainant has miserably failed to bring in evidence even after giving ample effective opportunities that accused was liable to pay the amount mentioned in cheques Ex.CW1/4 (colly). Thus, the complainant has not been able to prove that cheques were issued for discharge of legal debt or other liability.
: 14 :
15. The complainant has further contended that in spite of giving of statutory notice u/[SECTION] [ACT], the accused failed to pay the amount of cheques in question. The accused, on the other hand, has vehemently denied the receipt of any legal notice. In his statement u/[SECTION] [ACT] he has avowed that he never received the mandatory legal demand notice as stipulated by [SECTION] [ACT]. Complainant has placed reliance on legal notice dated 29.6.2012 which is Ex.CW1/D bears the same address as on the bail bond furnished by the accused as well as the warrants which were duly served upon the accused.
16. At this juncture, it would be pertinent to refer to [SECTION] of the [ACT] which is extracted as below:
"27. Meaning of service by post Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless, the : 15 : contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
17. Also a reference to the following paragraphs of judgment given by the Hon'ble Supreme Court in [PRECEDENT] would be relevant at this juncture: "14. [SECTION] gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business.
15. Insofar as the question of disclosure : 16 : of necessary particulars with regard to the issue of notice in terms of [SECTION] of the Act, in order to enable the Court to draw presumption or inference either under [SECTION] of the [ACT] or [SECTION] of the [ACT], is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of [SECTION] of the Act stands complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect.
18. Therefore, in the view of abovementioned discussion, accused : 17 : fails to rebut the presumptions as per law, and therefore, it is deemed that the legal demand notice was duly served upon him. It is evident that the drawer has failed to make the payment of the cheque amounts in question within 15 days of the receipt of the aforesaid notice, thus, the present complaint u/[SECTION] [ACT] has been initiated against the accused.
19. In the view of the foregoing observations and in view of the evidence, documents put forth and arguments of both the parties, the accused is hereby acquitted for the offence punishable u/[SECTION] of [ACT]. ANNOUNCED IN OPEN COURT ([ENTITY]) th ON 04 February, 2013 METROPOLITAN MAGISTRATE SPECIAL COURT NO.09, NI ACT DWARKA, DELHI