IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, NORTHWEST, ROHINI, DELHI Unique ID No. 02404R0011132012 CC No. 75/1/12 [ENTITY] S/o Late Sh. Dhani Ram R/o BP18, Pitampura Delhi110034. Complainant Versus [ENTITY] S/o Sh. Thandi Ram R/o 8374, New Anaj Mandi Filmistan, Delhi110006. Accused JUDGMENT
(1) Name of the complainant, [ENTITY] parentage & address S/o Late Sh. Dhani Ram R/o BP18, Pitampura Delhi110034 (2) Name of accused, [ENTITY] parentage & address S/o Sh. Thandi Ram R/o 8374, New Anaj Mandi Filmistan, Delhi110006 (3) Offence complained of or proved: 138 [ACT] (4) Plea of accused: Pleaded not guilty (5) Date of institution of case: 16.01.2012 (6) Date of reserve of order: 04.03.2015 (7) Date of Final Order: 18.03.2015 (8) Final Order: Convicted [ENTITY] v. [ENTITY] CC No. 75/1/12
1. Vide this judgment I shall dispose of the complaint filed by the complainant under [SECTION] of the [ACT] (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: That the accused is cousin brother of the complainant and took friendly loan of total sum of Rs. 6,65,000/ in cash in parts from April to May 2011 for business purpose at the rate of 24% per annum for the period of three months. Accused did not pay the loan amount alongwith the interest in time and started delaying the payment on one pretext or the other and ultimately on 01.10.2011, settlement was arrived between the complainant and the accused and it was agreed that accused would pay the loan amount in maximum six installments to the complainant. One receipt cum undertaking was also executed by accused and six post dated cheques including the two cheques in question towards discharge of liability were issued by the accused in favour of the complainant. The cheques in question bearing no. 344540 dated 15.10.2011 for sum of Rs. 1,00,000/ & bearing no. 344541 dated 15.11.2011 for sum of Rs. 1,00,000/ both the cheques drawn on ICICI Bank, Sadar Bazaar, Delhi110006 was dishonoured on presentation vide cheques return memo dated 29.11.2011 with the reasons "insufficient funds". The legal demand notice dated 14.12.2011 regarding the same was sent to the accused which was duly served upon him, however no payment was made by the accused regarding the cheques in question despite service of legal notice. As the accused failed to make payment of the aforesaid cheques within stipulated period, thereafter, complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre summoning evidence, complainant has examined himself on affidavit. He reiterated the contents of complaint and placed on record one receipt cum undertaking executed by the accused as Ex. CW1/1, two cheques [ENTITY] v. [ENTITY] CC No. 75/1/12 bearing no. 344540 dated 15.10.2011 for sum of Rs. 1,00,000/ & bearing no. 344541 dated 15.11.2011 for sum of Rs. 1,00,000/ both the cheques drawn on ICICI Bank, Sadar Bazaar, Delhi110006, which are exhibited as Ex. CW1/2 & Ex. CW1/3, cheques returning memos dated 29.11.2011 as Ex. CW1/4(colly), legal demand notice dated 14.12.2011 as Ex. CW1/5, postal receipts as Ex. CW1/6(colly) and tracking report of delivery of legal notice as Ex. CW1/7.
4. Accused was summoned for an offence punishable under [SECTION] of [ACT] and notice under [SECTION] [ACT] for this offence was framed upon him on 06.09.2012 to which he pleaded not guilty and claimed trial and he stated that he wanted to procure loan of Rs. 6,00,000/ from the complainant but no loan was provided by the complainant to him. He also submitted that the cheques in question bear his signatures and the contents in the same were also filled by him, however, he denied his liability towards the complainant.
5. In his post notice evidence, complainant examined only himself as CW1 and adopted his presummoning affidavit towards post notice evidence and during cross examination, he stated that he had business dealings with the accused and he gave loan of Rs. 6,65,000/ to the accused on various dates in April, 2011 & May, 2011 after withdrawing the amount from his and his wife's saving accounts and some of the amount was given which was available at his house.
6. Thereafter, statement of accused under [SECTION] [ACT] was recorded in which all the incriminating evidence were put to the accused to which he stated that he never took any loan from the complainant and cheques were issued by him to the complainant as security cheques for taking loan, however, no loan was given by the complainant to him. After that the matter was fixed for defence evidence.
[ENTITY] v. [ENTITY] CC No. 75/1/12
7. No defence evidence was lead by the accused despite given sufficient opportunity. Thereafter, the matter was listed for final arguments.
8. Thereafter, oral arguments tendered on behalf of both the parties were heard at length.
9. It is submitted by Ld. counsel for the complainant: That accused took loan of Rs. 6,65,000/ from the complainant in the year 2011 and the same was admitted by the accused in document Ex. CW1/1. That the loan was to be paid by the accused in six months as per document Ex. CW1/1.
That the only defence taken by the accused is that six cheques including the cheques in question were given as security cheques to procure loan, however, accused has failed to lead any evidence to corroborate his defence. That presumption of law is in favour of the complainant and all the requisite conditions of the [SECTION] [ACT] were fulfilled by the complainant.
That the fact of taking loan of Rs. 6,65,000/ and signatures and contents of the cheques in question have already been admitted by the accused during trial.
10. Per contra, it is submitted on behalf of the accused: That document Ex. CW1/1 was executed by the accused, but it was a conditional document as liability of the accused would arise only upon payment of loan amount by the complainant to him.
That no loan amount was given by the complainant to the accused. That cheques in question were given only as security cheques only to procure the loan from the complainant.
That the accused has relied upon: [PRECEDENT]. [CASE NUMBER] and Vijay v. Laxman & Anr. Criminal Appeal [ENTITY] v. [ENTITY] CC No. 75/1/12 No. 261 2013 (Arising out of [CASE NUMBER]), same are perused and taken into consideration.
That complainant and accused were doing business together and accused has liability of Rs. 70,000/ only towards the complainant regarding the business dealings and that is why the present case is filed by the complainant to satisfy his grudges.
That complainant has not shown his loan amount in his relevant income tax returns.
That in view of the fact of the present case, only civil liability arises against the accused and no criminal liability is made out against the accused.
11. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first: As present complaint is under [SECTION] of [ACT], there are three ingredients as follows held by the Hon'ble Supreme Court of India in [PRECEDENT].
Three ingredients of [SECTION] of the Act, viz.:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
12. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in [SECTION] therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in [SECTION] [ENTITY] v. [ENTITY] CC No. 75/1/12 discharged in whole or in part any debt or other liability.
[SECTION] and [SECTION] of the said act are read as under:
[SECTION] Presumption as to Negotiable Instruments : 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 transfered, was accepted, endorsed, negotiated or transferred for consideration;
[SECTION]. presumption in favour of holder: 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.
13. For the offence under [SECTION] [ACT], the presumptions under [SECTION] and [SECTION] have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under [SECTION] and [SECTION] are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in [PRECEDENT].
14. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory presumption, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary.
[ENTITY] v. [ENTITY] CC No. 75/1/12
15. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. In the present case, the accused has admitted his signatures on the cheques in question and accused has also not denied his signatures on receipt cum undertaking Ex. CW1/1. Reference has been made to Judgment of Apex Court in [PRECEDENT] that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under [SECTION] of the [ACT] has to be raised by the Court in favour of the complainant."
The defence taken by the accused is that the six cheques including the cheques in question were given by him to the complainant to procure the loan of Rs. 6,00,000/ from the complainant. It is also contended on behalf of the accused that no loan amount was given by the complainant to him and hence, he does not have any liability towards the complainant regarding the cheques in question. During trial, it is accepted by the accused that the contents in the cheques in question were filled by him. Execution of receipt Ex. CW1/1 is not denied by the accused and the contention given by the accused is that as per receipt Ex. CW1/1, he was liable to pay the amount regarding the six cheques mentioned in the receipt only on advancement of loan. As a matter of prudence, it is difficult to believe that receipt Ex. CW1/1 was executed by the accused without advancement of loan to him by the complainant. On perusal of receipt Ex. CW1/1, it seems that the receipt was executed only after advancement of loan by complainant to the accused and it was agreed between them that, upon repayment of loan amount, the six cheques including the cheques in question shall be returned by the complainant. No directions were given by the accused to his bank regarding stop payment for the cheques in question to avoid its misuse by the complainant. Further, no complaint was made by the accused against the complainant for misuse of cheques in question. No defence evidence was lead by the accused to support his defence that no loan was advanced by the complainant to him despite issuance of six cheques and execution of receipt Ex. CW1/1.
[ENTITY] v. [ENTITY] CC No. 75/1/12
16. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has proved his case beyond reasonable doubt.
17. As the complainant has proved its case beyond reasonable doubt, therefore, accused is being convicted for the offence under [SECTION] of [ACT].
18. Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT ([ENTITY]) th TODAY i.e, 18 MARCH, 2015 [ENTITY] [ENTITY] v. [ENTITY] CC No. 75/1/12 IN THE COURT OF Ms. [ENTITY], MM, NORTHWEST, ROHINI COURTS, DELHI. CC No. 75/1/12 [ENTITY] v. [ENTITY] 25.03.2015 ORDER ON SENTENCE Present: Complainant with Ld. Counsel Sh. [ENTITY]. Convict with Ld. counsel Sh. [ENTITY].
Arguments heard on the point on sentence. It is stated by the Ld. counsel for the convict that convict is the only breadwinner in his family and is very poor person and is having family consisting of wife and one child. It is further submitted that he is presently earning only about Rs. 30,00035,000/ per month. It is also submitted that accused is suffering from various ailments and is presently undergoing heart treatment in Delhi Heart and Lung Institute since 2010 and he has been recently undergone surgery in Apollo Hospital in the year 2015. It is also submitted that convict is first time offender, therefore, lenient view may be taken.
Ld. Counsel for the complainant has submitted that the matter pertains to the year 2012 and relates to friendly loan transaction and the convict has defrauded him as cheque in question was dishonored. It is further submitted that maximum punishment should be given to the convict so that message should be sent to the society. It is also submitted that convict is not suffering from any serious ailments and no benefit of the medical condition of the convict be given to him as complainant is also suffering from various ailments.
I have heard the submissions and carefully perused the record. Complaint regarding present cheque in question is pending since 2012 and the same relates to friendly loan transaction between the parties. I am not inclined to grant the benefit of probation of [ACT] as the matter pertains to the year 2012 and cheque bouncing cases are on high rises and releasing the accused on probation would not have deterrent effect in the society.
Contd 2 [ENTITY] v. [ENTITY] CC No. 75/1/12 2
Considering the totality of circumstances, convict is sentenced for simple imprisonment for six months and is further ordered to pay compensation to the complainant for an amount of Rs. 3,00,000/ (Rs. three lakhs Only) u/[SECTION] [ACT] In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 3 months.
At this stage, an application u/[SECTION] of [ACT] has been moved on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 20,000/ with surety of like amount. Requisite personal bonds furnished. Same is accepted till 01.04.2015.
Copy of this order be given to the accused free of cost.
Announced in the open ([ENTITY]) court on 25.03.2015 MM (N/W)/Rohini Courts, Delhi. [ENTITY] v. [ENTITY] CC No. 75/1/12