1 IN THE COURT OF SH [ENTITY] : METROPOLITAN MAGISTRATE - 03 SOUTH : SAKET COURT : NEW DELHI [ENTITY] vs Davinder Pal Singh CC No 475/10 U/[SECTION] [ACT] JUDGMENT
(1) Serial number of the case : 475/10 (2) Name of the complainant : [ENTITY] s/o Baldev Raj Aneja r/o C160, Lajpat NagarII, New Delhi110024 (3) Name of the accused, : Davinder Pal Singh parentage & residential address s/o Gurbax Singh r/o J24/B, Lajpat NagarII, New Delhi24 (4) Offence complained of or proved : 138 [ACT] (5) Plea of the accused : Pleaded not guilty (6) Final Order : CONVICTED (7) Date of Institution : 08/03/2010 (8) Date on which reserved for judgment : 09.09.2011 (9) Date of Judgment : 15.09.2011.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
[ENTITY] vs Davinder Pal Singh
1. The material facts as carved out from the complaint are that accused had friendly relations with complainant. In the first week of June 2009, the accused approached the complainant for a friendly loan of Rs. 1,50,000/ as the accused was in need of the same and the complainant gave the said loan to the accused who agreed to return the same in the month of August 2009. In part discharge of the said legal liability, the accused issued a cheque bearing no. 619743 for Rs.15,000/ drawn on The Nainital Bank Ltd., 4041, Pushpa Market, Central Market, Lajpat Nagar, New Delhi24. The complainant presented the said cheque to his banker ICICI Bank Ltd, E04, Jhandewalan Extn., New Delhi which was returned dishonoured with the remarks "Funds Insufficient" vide memo date 23/01/2010. The complainant made a demand for payment of the said amount of money by giving a Demand Notice dated 29/01/2010 to accused. Statutory notice of demand was duly served upon accused but he failed to make the payment of the said amount to complainant within stipulated time. Thereafter, the complainant has filed this complaint U/[SECTION] of [ACT] (hereinafter "the Act") against the accused.
2. On 19.04.2010 after being satisfied that the complainant has a prima facie case against the accused, the court summoned accused company for offence U/[SECTION] of the Act.
[ENTITY] vs Davinder Pal Singh
3. Accused appeared pursuant to the process issued by the court and on 17/03/2011, the particulars of the offence were read over and explained to the accused, to which he pleaded not guilty and claimed trial. In his plea of defence in the notice U/[SECTION] [ACT], the accused stated that he does not know the complainant and the cheque was given to [ENTITY] in blank along with 15 other blank signed cheques for the purpose of taking business loan from him. Accused further stated that [ENTITY] came to his shop and threatened him that he shall get filed 16 criminal complaints against him with respect to these cheques by misusing them. Accused further stated that the present case has been filed to harass him at the instance of [ENTITY].
4. In order to substantiate its case, the complainant examined himself as the only complainant witness.
5. All the circumstances appearing in the evidence against the accused were put in order to enable him to offer his explanation. In his statement U/[SECTION] [ACT] recorded on 03/06/2011, accused reiterated his plea of defence as raised by him in the notice U/[SECTION] [ACT].
6. Accused examined Sh. [ENTITY] as the only defence witness.
7. Arguments have been advanced by both the parties at length. It [ENTITY] vs Davinder Pal Singh has been argued by Ld. counsel for the complainant that from evidence, complainant has proved that the cheque in question was signed by accused which was dishonoured and despite service of legal notice, accused did not make payment. It is argued that during cross examination of witnesses, nothing material has come out and the complainant has been able to prove his case to the hilt. It is argued that accused has failed to discharge the burden cast upon him to rebut the presumption in favour of complainant under the provisions of [ACT].
8. Per contra, for knocking down the edifice of complainant case, it has been argued with vehemence by Ld. counsel for defence that no case is made out against accused as he never took any loan from the complainant and that the complainant has malafidely filed this false case. It has been argued by Ld. Counsel for accused that accused has been able to discharge his burden in the present case successfully.
9. I have heard both the parties at length and perused the record. Before entering into factual matrix of the present case, I deem it fit to discuss certain statutory provisions of [ACT]. [SECTION] of [ACT] provides for presumptions regarding consideration for a Negotiable Instrument. It reads as under :
"That every negotiable instrument was made [ENTITY] vs Davinder Pal Singh or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
10. [SECTION] of the [ACT] provides for presumption in favour of a holder. It reads as under :
"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, or any debt or other liability".
11. Apex court in [PRECEDENT] while over ruling the judgment titled [PRECEDENT] observed in para 14 that :
"the presumption mandated by [SECTION] of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observation in [PRECEDENT] (supra) cannot be correct This is of course in the nature of a rebuttable presumption and it is opened to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested".
12. Therefore, in view of the statutory provisions and apex courts judgment, there is a presumption in favour of holder of the cheque that he [ENTITY] vs Davinder Pal Singh has received the same for discharge in whole or in part of any legally enforceable debt or other liability. It is a well settled principle of law that the presumption available U/[SECTION] [ACT] can be rebutted by the accused by adducing evidence. Therefore, the burden of proof is on the accused to discharge his burden. The accused can prove the non existence of consideration by raising a probable defence and if he proves the same, then only the onus would shift upon complainant, who has to prove it as a matter of fact and his failure to prove would disentitle him to grant the relief.
13. In [PRECEDENT], Hon'ble Supreme Court observed that the defence submission that the cheques were not drawn for the discharge in whole or in the part of any debt or other liability is answered by the third presumption available to the banks U/[SECTION] of the [ACT]. This section provides that "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". The effect of these presumptions is to place the evidential burden on the defence of proving that the cheque was not received by the bank towards the discharge of any liability.
14. Delhi High Court in "[PRECEDENT]" has held at para 7 that : [ENTITY] vs Davinder Pal Singh "in order to rebut the presumption U/[SECTION] of [ACT], the accused by cogent evidence has to prove the circumstances under which the cheque were issued".
15. I shall now examine the testimony of witnesses to see whether the accused has been able to discharge the burden of mandatory presumption as raised against him or not. CW1 is complainant himself, whose examination in chief was conducted by way of affidavit, wherein he reiterated the averments made by him in his complaint. The cheques in question were exhibited as Ex.CW1/A, return memos dated 23.01.2010 was exhibited as Ex.CW1/B, demand notice dated 29.01.2010 was exhibited as Ex.CW1/C and the acknowledgment card was exhibited as Ex.CW1/F.
16. Complainant was cross examined by Ld. Counsel for accused. I have gone through the testimony of complainant carefully. In my considered view, the testimony of complainant remains intact during cross examination and inspires confidence of this court. From the cross examination of the complainant, Ld. Counsel for accused has failed to elicit anything which can be corroborative of defence of accused.
17. Accused has examined [ENTITY] as only defence witness. In his examination in chief, it was stated by [ENTITY] that accused and his [ENTITY] vs Davinder Pal Singh brother [ENTITY] had called him since they had to take money from [ENTITY]. It was further deposed by the witness that Sh. [ENTITY] had taken sixteen cheques from accused and his brothers and assured them that he will hand over the balance payment but he did not do so. It was further stated by the witness that despite asking by the accused, Sh. [ENTITY] did not return the cheques. During his cross examination it was deposed by the witness that the sixteen cheques which were given to Sh. [ENTITY] were all blank but duly signed by the accused his brother.
18. I have gone through the testimony of DW in detail. In my considered view, the testimony of the said DW is not reliable at all. The name of the witness has surfaced for the first time during the stage of defence evidence only. Prior to that i.e, at the stage of notice, cross examination of complainant and statement of accused under [SECTION] [ACT], the name of this witness, his role or his presence in the said transaction was not mentioned at all by the accused. Therefore, possibility of DW being a planted witness, cannot be ruled out. Even otherwise, I am of the firm opinion that the witness has not supported his testimony by any documentary evidence and his testimony cannot stands the test of judicial scrutiny.
19. In the present case, once the accused had taken a definite stand of issuing the cheque in question in blank to one Sh. [ENTITY] and not to [ENTITY] vs Davinder Pal Singh complainant, it was for him to rebut the presumption by reliable and cogent evidence and above discussion makes it clear that accused has failed miserably to discharge the burden and hence, the plea of the accused that he did not issue the cheque to the complainant pales into insignificance.
20. In totality of the facts and circumstances of the case, it was on the accused to bring cogent evidence for proving his case that he had issued the cheque in question in blank to one Sh. [ENTITY] and not to complainant in which he had failed miserably. The defence of accused has not got proved even on the scale of preponderance of probabilities.
21. It was the sole burden and duty of the accused for rebutting presumption which was supporting the dishonoured cheque. The accused has failed to discharge the burden. Having considered the entire evidence, it is proved that accused had issued the cheque against liability and against legally enforceable debt and the said cheque was dishonoured due to insufficiency of funds.
22. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheque in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of [SECTION] of the [ACT]. Accordingly, accused stands [ENTITY] vs Davinder Pal Singh convicted for committing the offence U/[SECTION] [ACT]. Let he be heard on the point of sentence.
Announced in the open court on 15.09.2011 ([ENTITY]) Metropolitan Magistrate 03/[ACT]/South Saket Court/New Delhi Certified that this judgment contains 10 pages and each page bears my signature.
([ENTITY]) Metropolitan Magistrate 03/[ACT]/South Saket Court/New Delhi [ENTITY] vs Davinder Pal Singh