1 IN THE COURT OF SH [ENTITY] : METROPOLITAN MAGISTRATE - 03 SOUTH : SAKET COURT : NEW DELHI [PRECEDENT] U/[SECTION] [ACT] JUDGMENT
(1) Serial number of the case : 1108/1 (2) Name of the complainant : Wahajuddin Rana s/o Riyajuddin r/o B850/K, Sangam Vihar, New Delhi110062 (3) Name of the accused, M/s Priya Lamp Shade parentage & residential address : Through its proprietor [ENTITY] s/o Kanhaiya Lal Goplani r/o A13, Raju Park, Devli Road, Khanpur, New Delhi110062 (4) Offence complained of or proved : 138 [ACT] (5) Plea of the accused : Pleaded not guilty (6) Final Order : Convicted (7) Date of Institution : 30/08/2008 (8) Date on which reserved for judgment : 23/08/2011 (9) Date of Judgment : 26/08/2011 BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. The material facts as carved out from the complaint are that the complainant is doing the business of wood work under the name and style of Rana Wood Works, A242, Choudhary Mukhtiar Singh Market, Devli Extension, New Delhi. The complainant supplied wooden lamp base on various occasions to the accused for a sum of Rs.45,000/. In discharge of the part legal liability, the accused issued a [PRECEDENT] cheque bearing no. 028908 dated 11/02/2008 drawn on Union Bank of India, Saket, New Delhi of Rs.20,000/ and requested the complainant not to present the said cheque as the accused was under financial crises. Thereafter, accused issued another cheque no. 031999 dated 20/06/2008 amounting to Rs.25,000/ in the month of June 2008 in discharge of his legal liability. The complainant presented both the above said cheques with his banker HDFC Bank, PVR Saket Branch, New Delhi on 21/07/2008 but the said cheques were dishonoured by the bank on account of "Funds Insufficient" vide bank memo dated 22/07/2008. The complainant made a demand for payment of the said amount of money by giving a Demand Notice dated 28/07/2008 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 30.08.2008 after being satisfied that the complainant has a prima facie case against the accused, the court summoned him for offence U/[SECTION] of the Act.
3. Accused appeared pursuant to the process issued by the court and on 22/11/2008, the particulars of the offence were read over and explained to the accused, to which he pleaded not guilty and claimed trial.
4. In order to substantiate its case, the complainant examined himself as the only complainant witness.
[PRECEDENT]
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 11/03/2011, accused stated that both the cheques were given as guarantee against supply of wooden lamp parts on different occasions. Accused further stated that later on, the amount of Rs.20,000/ was paid to the complainant against cheque no. 028908 dated 11/02/2008 of which, Rs.5500/ was paid through self cheque drawn on ICICI Bank dated 28/02/2008. It was further stated by accused that Rs.15,000/ cash were paid to the complainant against the cheque bearing no. 031999 dated 20/06/2008 for a sum of Rs.25,000/ as the material supplied by the complainant was of sub standard quality that is why complainant had assured him to repair the material or supply the material of standard quality. Accused further stated that, therefore, according to the terms and conditions of business, balance Rs. 4500/ was agreed to be paid after supply or repair of material. Accused further stated that the complainant after taking the abovesaid amount from me produced the abovesaid cheque malafidely just to harass him and thereafter, he neither got repaired the material nor supplied the same.
6. Accused examined two witnesses i.e. [ENTITY], Manager of ICICI Bank as DW1 and [ENTITY] as DW2 in his defence evidence.
7. Arguments have been advanced by both the parties at length. It 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 [PRECEDENT] 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 has already made a payment of Rs.20,000/ against the cheque no.028908 dated 11/02/2008. It has been argued by ld. counsel for accused that against the cheque no. 031999 dated 20/06/2008, a payment of Rs.15,000/ & Rs. 5000/ were made in cash on different dates and balance payment of Rs.5000/ was withheld as the material supplied by complainant was of sub standard quality and despite assurance, complainant did not replace the defective material. 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 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".
[PRECEDENT]
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 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 [PRECEDENT] 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. I shall now examine the testimony of witnesses to see whether the accused has been able to discharge his burden by cogent evidence and whether he has been able to prove his defence by preponderance of probabilities. 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 & ExCW1/B, return memos dated 02/07/2008 were exhibited as Ex.CW1/C & ExCW1/D, demand notice dated 28/07/2008 was exhibited as Ex.CW1/E and the reply dated 06/08/2008 sent on behalf of accused to the demand notice of complainant was ExCW1/G.
14. Complainant was cross examined at length by Ld. Counsel for accused. In his cross examination, it was stated by the complainant that he has supplied the material in the shape of lamp base for an amount of Rs.20,000/ 34 months prior from time when the cheque for Rs.20,000/ was given to him. It was further deposed by the complainant that after receiving the same, he deposited it with his banker for clearance but the cheque got bounced due to insufficient amount in the account of accused. Complainant further deposed that thereafter, he stopped the supply of material and asked the accused for payment of Rs.20,000/ in the month of March 2008. Complainant further deposed that he asked the accused that if he would not make the payment of Rs.20,000/, he would not supply the material any further. It was further deposed by the complainant that upon this, accused warned that if he would not supply the material to him, he would not make [PRECEDENT] any payment and under that pressure, he supplied further material to accused. Complainant further deposed that he cannot tell the amount for which he had supplied the material to the accused after this incident. It was further deposed by the complainant that he had supplied the material to the accused as was ordered by him before submitting both the cheques in question with his banker. Complainant denied the suggestion that after bouncing the cheque of Rs.20,000/, accused had made the payment against the said cheque amount for Rs.20,000/ out of which accused had given one cheque for Rs.5500/ and Rs.14,500/ in cash. Complainant denied the suggestion that accused had made payment to him for Rs.5000/ on 02/07/2008 and Rs.15,000/ on 04/07/2008 in cash against the cheque amount of Rs. 25,000/ out of which payment of Rs.5000/ was stopped by the accused due to non supply of standard material. Complainant further denied the suggestion he had supplied sub standard material to the accused and that is why accused had stopped the payment of Rs.5000/.
15. 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. The complainant has deposed the circumstances in which he supplied the material to the accused even after dishonour of first cheque of Rs.20,000/. In my considered view, from the cross examination of the complainant, Ld. Counsel for accused has failed to elicit anything which can be corroborative of defence of accused. Complainant has denied all the suggestions which were given by Ld. Counsel for accused.
16. It is relevant to mention here that a reply dated 06/08/2008 was sent [PRECEDENT] on behalf of accused to the counsel for complainant i.e. ExCW1/G wherein it has been averred that accused was duty bound to pay to complainant Rs.45,000/. It has further been averred in the said reply that after bouncing of cheque for Rs.20,000/, an amount of Rs.20,000/ was paid in cash and after bouncing of cheque for Rs. 25,000/, an amount of Rs.5000/ was paid in cash on 02/07/2008 and Rs.15,000/ on 04/07/2008 and Rs.5000/ was withheld in view of supply of sub standard material by the complainant.
17. Therefore, what is clear from ExCW1/G and also from cross examination of complainant that the defence of accused was that the payments (except Rs.5000/ withheld for supply of sub standard material) against both the cheques in question after their dishonour have already been made.
18. However, surprisingly, during his statement U/[SECTION] [ACT], accused has come up with another new defence that the cheques in question were given as a guarantee apart from defence of payments being already made against cheques in question.
19. Accused has examined two witnesses in his defence evidence. DW1 [ENTITY], Manager of ICICI Bank, Saket Branch deposed that accused had issued a self cheque bearing no.425951 dated 28/02/2008 for a sum of Rs.5500/ which was encashed on presentation from his Saket Branch on 19/05/2008. He further deposed that receiver of the payment had signed on the backside of the said cheque but he could not identify the signatures of the receiver.
[PRECEDENT]
20. Therefore, from the testimony of DW1 it cannot be ascertained as to who was the person who received the payment of Rs.5500/ against the self cheque bearing no. 425951. Therefore, the testimony of DW1 is also of no avail to the defence of accused.
21. DW2 is [ENTITY]. In his examination in chief tendered by way of affidavit, he deposed that in the year 2008, he used to run his business in the name & style of Poonam Brass & Metal Works from A13, Ist Floor, Raju Park, Devli Road, Khanpur, New Delhi110062 while accused used to run his business from ground floor of A13, Raju Park, Devli Road, Khanpur, New Delhi110062. He further stated that in the month of February 2008, accused issued an advance cheque of Rs. 20,000/ as guarantee to the complainant and after supply of goods in the last week of February 2008, accused issued a self cheque of Rs.5500/ to complainant and paid Rs.14,500/ to him in cash. He further deposed that complainant did not return the said cheque of Rs.20,000/ to accused which he had given him as guarantee regarding which complainant represented that he had lost the said cheque. DW2 further deposed that thereafter, accused issue a cheque of Rs.25,000/ as a guarantee against further supply of material supplied by complainant but the same was of sub standard quality regarding which accused complained to complainant who assured him that he will either repair the said material or change the same. Witness further deposed that in his presence it was settled that accused will withhold Rs.5000/ out of total amount of Rs.25,000/ till the said material is repaired or changed by complainant and out of the balance payment, accused paid a sum of Rs.5000/ in cash on 02/07/2008 and Rs.15,000/ on 04/07/2008 to the complainant in his presence. He further deposed that with respect to guarantee cheque of Rs.25,000/[PRECEDENT] complainant again expressed the same excuse that the said cheque was not traceable and that when it will be traced out, the same would be returned to accused.
22. DW2 was cross examined at length by the ld. counsel for complainant. In his cross examination, the witness deposed that he was doing his business from A13, First Floor, Raju Park, Devli Road, Khanpur, New Delhi which belonged to accused and he was paying rent of Rs.700/ per month to accused for the said premises. The witness further deposed that he know about two dealings with the accused and the complainant and he does not know the rest dealings. The witness further deposed that he was told by accused that he gives advance cheques to the complainant for supply of wooden lamp base. The witness admitted that all the facts of the present complaint have been told to him by the accused and he was told by the accused that he had given a self cheque of Rs.5500/ to the complainant. The witness further deposed that the payment of Rs.14,500/ was made by accused to the complainant in his presence in the presence of one [ENTITY] in last week of February 2008. Witness further stated that the self cheque of Rs.5500/ was given before the payment of Rs.14,500/ made by accused. He further stated that when the payments of Rs.14,500/ were being made by accused to the complainant in his presence and in the presence of [ENTITY], at that time accused had told complainant that he had already given a self cheque of Rs.5500/ to him. The witness further stated that he was told by accused that he had given cheque no.031999 for Rs.25,000/ to the complainant as an advance cheque. The witness deposed that he does not know when the complainant supplied the material to the accused against cheques in question. The witness admitted it to be correct that he was told by [PRECEDENT] accused only that the material supplied by the complainant is of sub standard quality. The witness volunteered that he was also shown the material by the accused. The witness deposed that the payment of Rs.5000/ was made by accused to the complainant in his presence on 0203/07/2008. The witness further admitted that the fact of nonreplacing or nonrepairing of sub standard material by the complainant was told by the accused to him. The witness also admitted that no dealing between accused and complainant took place in his presence. The witness deposed that he used to be told by accused about all the dealings between complainant and accused and the dispute between complainant and accused was also told by accused only.
23. I have gone through the testimony of DW2 carefully. In my considered view, the testimony of DW2 is not worthy of any credit. The name and presence of DW2 has surfaced for the first time only at the stage of defence evidence. During cross examination of complainant or even at the stage of examination of accused U/[SECTION] [ACT], the name and presence of DW2 at the time of alleged payment does not find any mention. It seems that he has been introduced at the belated stage of defence evidence just to save the case of accused.
24. Even otherwise, the testimony of DW2 is not worthy of credit because as per the witness, no dealing between accused and complainant took place in his presence and he used to be told by accused about all the dealings meaning thereby knowledge of witness is nothing but hearsay. The witness has further deposed that he was told by accused that he gave advance cheques to complainant for supplying of wooden lamp base meaning thereby the evidence of DW2 qua the factum of [PRECEDENT] in question being given as advance cheque is also nothing but a hearsay evidence and it is a settled law that hearsay evidence is no evidence.
25. I have also my sincere doubts about the presence of DW2 at the time of alleged payment (by accused to the complainant of Rs.4500/ in February 2008, of Rs.5000/ on 0203/07/2008 and of Rs.15,000/ on 04/07/2008) more so when during cross examination of complainant and during the statement of accused U/[SECTION] [ACT], it has nowhere come that DW2 was present at the time of alleged said payments.
26. After considering the facts and circumstances of this case and evidence brought on record, I am of the considered view that accused has not been able to discharge the burden of mandatory presumption in the present complaint for the following reasons : I. As discussed above, during cross examination of complainant, accused has not been able to elicit anything which is corroborative or supportive of his defence.
II. In ExCW1/G i.e. reply dated 06/08/2008, accused has admitted his liability of Rs.45,000/ towards complainant in no unclear terms though as per him, he has already made payments (except Rs.5000/) after dishonour of cheques issued against the said liability. However, accused has not brought any documentary evidence to support his claim of alleged payment. No receipt whatsoever has been brought on record by the accused as a proof of alleged payment.
[PRECEDENT]. It also remains totally unexplained from accused side as to why did he not take his cheques back if he has made the payments to the complainant. In the normal course of business, any prudent person would promptly take his cheques back from the person to whom he is making payment against those cheques. In the ExCW1/G which was the first opportunity where accused raised his defence, during cross examination of complainant and also during his statement U/[SECTION] [ACT], accused has chosen to remain silent regarding the said aspect.
IV. As per DW2, the complainant did not return the cheque for Rs. 20,000/ to the accused by representing that he had lost the same and also did not return the cheque for Rs.25,000/ on the excuse that same is not traceable and it would be returned when the same is traced out. However, it remains unexplained as to how DW2 came into knowledge of this fact. As I have discussed above, the testimony of DW2 is not worthy of any credit and he seems to be an interested witness being the tenant of accused, therefore, the deposition of DW2 regarding the factum of loss/misplacing of cheques by complainant cannot be believed upon.
V. Even if for arguments sake, it is believed that the accused believed the version of complainant that the cheques in question are not traceable, then in normal course of business, a police complaint and intimation to the banker should have been promptly made by accused. However, no such complaint or intimation to bank was brought on record by the accused meaning thereby same was not made. It is highly unbelievable that accused would simply make the payments and leave his cheques in the custody of complainant believing that same had got misplaced and also shall not make any efforts whatsoever to bring the same to the notice of concerned police/banking officials.
[PRECEDENT]. As discussed above, the testimony of DW2 is not believable and cannot be relied upon at all. The very presence of DW2 at the time of alleged payment is full of doubts. His introduction for the first time at the stage of defence evidence leaves no doubt in my mind that he is an implanted witness who has come forward for deposing ,not to unearth the truth but only for the sole purpose of saving the accused.
27. In view of the above discussion, I am of the view that defence of accused has not been proved even by preponderance of probabilities. It was on the accused to bring cogent evidence for proving his defence in which he has failed miserably. Having considered the entire evidence, it is proved that accused had issued the cheques against liability and against legally enforceable debt and the said cheques were dishonoured due to insufficient funds.
28. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheques in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of [SECTION] of the [ACT]. Accordingly, accused [ENTITY] stands convicted for committing the offence U/[SECTION] [ACT]. Let he be heard on the point of sentence. Announced in the open court on 26/08/2011 ([ENTITY]) Metropolitan Magistrate 03/[ACT]/South Saket Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.
([ENTITY]) Metropolitan Magistrate 03/[ACT]/South Saket Court/New Delhi [PRECEDENT] IN THE COURT OF SH [ENTITY] : METROPOLITAN MAGISTRATE - 03 SOUTH : SAKET COURT : NEW DELHI [PRECEDENT] U/[SECTION] [ACT] ORDER ON SENTENCE Present : Complainant with counsel Convict with counsel I have heard both the parties on the point of sentence.
Ld. counsel for convict requests for taking lenient view on the ground that convict is a poor person and first time offender and has no criminal antecedents. It is further submitted by ld. counsel for convict that convict has an old aged father and wife to look after.
It is submitted by ld. counsel for the complainant that complainant also does not want the convict to be sent to jail and he is only concerned with his money.
In view of the above submissions and in the facts and circumstances of the case, convict is sentenced to imprisonment till rising of this court and further directed to pay a compensation of Rs.50,000/ (Fifty Thousand) within a period of 30 days to the complainant. In default of payment of compensation, the convict shall further undergo simple imprisonment for one month.
It is ordered that the compensation amount if not paid in time, shall be recoverable under the provisions of [SECTION] [ACT].
Now, to come up at 04.00 PM.
Announced in the open court on 27/08/2011 ([ENTITY]) Metropolitan Magistrate 03/[ACT]/South Saket Court/New Delhi [PRECEDENT] At 04. 00 PM Present : None for complainant Convict in person Convict has undergone imprisonment till rising of this court. He be set at liberty. File be consigned to record room.
([ENTITY]) Metropolitan Magistrate 03/[ACT]/South Saket Court/New Delhi [PRECEDENT]