IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, NORTHWEST, ROHINI, DELHI Unique ID No. 02404R0005872011 [CASE NUMBER] [ENTITY] S/o Sh. Baru Mal Goyal R/o 890/58, Lekhu Nagar, Tri Nagar, Delhi110035. Complainant Versus [ENTITY] S/o Late Sh. Satya Narain Gupta R/o H.No. F11, Shastri Nagar, Near Shiv Mandir Dharamshala Delhi110052. Accused JUDGMENT
(1) Name of the complainant, [ENTITY] parentage & address S/o Sh. Baru Mal Goyal R/o 890/58, Lekhu Nagar, Tri Nagar, Delhi110035 (2) Name of accused persons, [ENTITY] parentage & addresses S/o Late Sh. Satya Narain Gupta R/o H.No. F11, Shastri Nagar, Near Shiv Mandir Dharamshala Delhi110052 (3) Offence complained of or proved: 138 N.I. Act (4) Plea of accused: Pleaded not guilty (5) Date of institution of case: 12.01.2011 (6) Date of reserve of order: 09.12.2015 [ENTITY] v. [ENTITY] [CASE NUMBER] 1 (7) Date of Final Order: 18.12.2015 (8) Final Order: Convicted
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 was old acquaintance of the complainant and in the first week of July, 2010, he took loan of Rs. 5,44,000/ from the complainant to be repaid on or before 31.07.2010. Accused also executed a receipt of payment of Rs. 5,44,000/ in favour of the complainant. Towards repayment of loan amount alongwith interest, accused issued two cheques bearing no. 608711 dated 16.08.2010 for sum of Rs. 2,99,000/ & bearing no. 608710 dated 24.07.2010 for sum of Rs. 2,50,000/ both the cheques drawn on UCO Bank, Lawrence Road, Delhi110035 in favour of the complainant. The accused told the complainant that before presenting the cheques for encashment, the complainant should ask him. On assurance and consent of the accused, the complainant presented both the cheques in the last week of October, 2010 for encashment but the same returned uncashed with the remarks "funds insufficient" vide return memo dated 30.10.2010. Thereafter, complainant served a legal notice dated 22.11.2010 to the accused through Registered AD/UPC/Courier. However, in spite of service of legal notice, the accused did not make payment. 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 presummoning evidence, complainant examined himself on affidavit. He reiterated the contents of complaint and placed on record, receipt which is exhibited as Ex. CW1/1, original cheques bearing no. 608711 dated 16.08.2010 for sum of Rs. 2,99,000/ & bearing no. 608710 dated 24.07.2010 for sum of Rs. 2,50,000/ both the cheques drawn on UCO Bank, Lawrence Road, [ENTITY] v. [ENTITY] [CASE NUMBER] 2 Delhi110035 as Ex. CW1/2 & Ex. CW1/3, cheque returning memo dated 30.10.2010 as Ex. CW1/3, legal demand notice dated 22.11.2010 as Ex. CW1/5, Courier receipt as Ex. CW1/6, UPC receipt as Ex. CW1/7 and postal receipt as Ex. CW1/8.
4. Upon appreciation of presummoning evidence, accused was summoned for an offence punishable under [SECTION] of [ACT] and notice under [SECTION] [ACT] for this offence was framed upon him on 11.04.2014 to which he pleaded not guilty and claimed trial. He stated that he took loan of Rs. 1,50,000/ from the complainant. He accepted his signatures on the cheques in question. He further stated that amount in the cheques in question was forcibly made to be filed by him by the complainant.
5. In post notice evidence, complainant examined only himself. He adopted his affidavit given in presummoning evidence towards postnotice evidence and during cross examination he stated that loan was given to the accused in cash and there was no witness present at the time of advancement of loan.
6. Thereafter, statement of accused under [SECTION] [ACT] was recorded in which all the incriminating evidence were put to the accused to which he replied that he took loan of Rs. 5,44,000/ from the complainant in July, 2010 and he executed receipt Ex. CW1/1 for taking loan. He took defence that cheques in question were given as security and he has already made part payment towards the loan. Thereafter, matter was fixed for defence evidence.
7. In defence evidence, accused examined two witnesses including himself as DW1. He took only defence that he has already made most of the payment towards loan but no receipt or any other evidence regarding the same is placed on record by him. DW2 namely Ms. [ENTITY] (mother of the accused) stated during cross examination that accused has already made payment of Rs. 4,70,000/ to the complainant after selling the property situated at Tri Nagar. Thereafter, matter was listed for final arguments.
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8. Oral arguments tendered on behalf of both the parties were heard at length. Written arguments were also submitted on behalf of accused.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first: For the offence under [SECTION] [ACT] to be made out against the accused, the complainant must prove the following points, that:
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. 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] discharged in whole or in part any debt or other liability. Presumptions both under [SECTION] and [SECTION] are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in [PRECEDENT].
11. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. The court has to first see as to whether the complainant has proved that the accused issued the cheques [ENTITY] v. [ENTITY] [CASE NUMBER] 4 in question towards a legal liability or not from the account maintained by him. In this regard, complainant has relied upon his affidavit. Further, accused throughout trial admitted his signatures on cheques Ex. CW1/2 & Ex. CW1/3 which by itself is sufficient proof of issuance of cheques towards a legal liability. Cheques in question were presented within the period of limitation and the same were got dishonoured. Complainant has placed on record Ex. CW1/4 in this regard. Legal notice regarding the same was also served within the period of limitation. Ex. CW1/5 to Ex. CW1/8 are placed on record by the complainant in this regard. Complainant has also placed on record receipt Ex. CW1/1 to prove the transaction. Hence, presumption under [SECTION] [ACT] is raised in favour of the complainant. Reference has also been made to Judgment of Apex Court in [PRECEDENT]
Defence of the accused to the case of the complainant is that he has made part payment to the complainant and now he is only liable for Rs. 7080 thousand to the complainant. No receipt regarding payment made by him to the complainant is placed on record by the accused. DW2 did not fully support the testimony of DW1 and the only submission made by DW2 is that accused has already made payment of Rs. 4,70,000/ to the complainant after selling his property at Tri Nagar. No documents in support of payment of Rs. 4,70,000/ is placed on record. In view of above, it can be stated that accused has failed to prove his defence. Further, signatures in cheques in question and amount in the same has already been admitted by the accused. Signature on loan receipt Ex. CW1/1 is also admitted by the accused at the time of recording of statement under [SECTION] [ACT] During trial, accused also took defence that complainant forcibly made him to fill the amount in the cheques in question. However, no evidence in this regard has been adduced by him. Also, no police complaint is made by accused in this regard. Ld. Counsel of the accused raised contention that the present complaint was not filed within period of limitation. To this, it is made clear that notice to the application for condonation of delay was issued to him and only after that summons were issued to him on 03.10.2013. Hence, the issue of filing of the complaint with delay is deemed settled. One more contention is raised by Ld. Counsel for accused that legal notice was not served [ENTITY] v. [ENTITY] [CASE NUMBER] 5 upon him. Reliance is placed upon counsel of accused upon [CASE NUMBER] [CASE NUMBER] in this regard. Regarding non service of legal notice upon the accused no evidence is lead. Merely making submission that legal notice was not served upon the accused is not sufficient. Further, as per [PRECEDENT] Hon'ble Supreme Court of India held that any drawer who claims that he did not receive the notice, can within 15 days of receipt of summons from the court, can make payment. A person who does not pay within 15 days of receipt of summons cannot claim for no proper service of legal notice. Hence, the claim of the accused of non service of legal notice hold no ground for dismissal of complaint. On the other hand, complainant has fulfilled all the ingredients of [SECTION] [ACT].
12. 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 successfully proved his case beyond reasonable doubt.
13. As the complainant has proved its case beyond reasonable doubt, therefore, accused is being convicted for the offence under [SECTION] of [ACT].
14. Let the accused be heard on quantum of sentence.
ANNOUNCED IN THE OPEN COURT ([ENTITY]) th TODAY i.e, 18 DECEMBER, 2015 METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI [ENTITY] v. [ENTITY] [CASE NUMBER] 6 1 IN THE COURT OF Ms. [ENTITY], MM, NORTHWEST, ROHINI COURTS, DELHI. [CASE NUMBER] [PRECEDENT] 21.12.2015 ORDER ON SENTENCE Present: Complainant in person.
Convict with Ld. counsels Sh. [ENTITY] & 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 he is presently earning only about Rs. 22,000/ per month. It is also submitted that convict does not have any previous criminal record, therefore lenient view may be taken.
Per contra, complainant has submitted that the matter pertains to the year 2011 and relates to loan transaction and the convict has defrauded him as cheque in question was dishonored.
I have heard the submissions and carefully perused the record. Complaint regarding present cheque in question is pending since 2011 and the same relates to loan transaction between the parties. I am not inclined to grant the benefit of probation of [ACT] as the matter pertains to the year 2011 and cheque bouncing cases are on high rise and releasing the convict on probation would not have deterrent effect in the society.
Considering the totality of circumstances, convict is sentenced for simple imprisonment for one year and is further ordered to pay compensation to the complainant for an amount of Rs. 7,50,000/ (Rs. Seven Lakh Fifty thousand Only) under [SECTION] [ACT] In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 6 months.
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At this stage, an application u/[SECTION] of [ACT] has been moved on behalf of the convict 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 30 days 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. 50,000/ with surety of like amount. Requisite personal bonds furnished. Convict has undertaken to furnish the surety bonds by tomorrow. Personal bonds are accepted till 22.12.2015.
Copy of this order be given to the convict free of cost.
Announced in the open ([ENTITY]) court on 21.12.2015 MM (N/W)/Rohini Courts, Delhi. [ENTITY] v. [ENTITY] [CASE NUMBER] 8