CC No. 4992190/16 [ENTITY] vs [ENTITY] IN THE COURT OF SHRI DEEPAK KUMAR-I, MM-3 (NI ACT) SOUTH-WEST DISTRICT: NEW DELHI C.C No. 4992190/16 Under [SECTION] of [ACT] In the matter of :- Sh. [ENTITY] S/o late Sh. Baikunth Singh, R/o Flat no. 603, Plot no. 11, Sahara Apartment, Sector-6 Dwarka, New Delhi Complainant Verses [ENTITY] S/o Sh. G. S. Bisht R/o B-64, Vishwas Park Uttam Nagar New Delhi-59. Accused Date of Institution : 23.08.2014 Date of Judgment : 21.09.2016 J U D G E M E N T:
1. Vide this judgment, I shall dispose off the present complaint under [SECTION] of [ACT] (hereinafter referred to as the '[ACT]') filed by the complainant against the accused.
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2. The brief facts of the case as averred by the complainant in his complaint are that accused issued cheque bearing no. 117454 dated 10.07.2014 drawn on IDBI Bank, Sector- 5, Dwarka, Delhi-110075 i.e Ex. CW1/1 in favour of complainant against the discharge of part liability towards loan of Rs. 18 lacs taken by him from the complainant during the period 2012-13. It has been further averred that on presentation, the cheque was returned unpaid vide returning memo report dated 12.07.2014 with the remarks "INSUFFICIENT FUNDS" vide returning memo i.e Ex.CW1/2. Thereafter, the complainant sent a legal demand notice dated 28.07.2014 i.e Ex.CW1/3 to the accused through his Counsel by way of post i.e Ex.CW1/4. However, as per the complainant, despite service of the said legal notice of the demand, the accused failed to pay the aforesaid dishonored cheque amount. Hence, the present complaint.
3. The cognizance of offence u/[SECTION] [ACT], was taken and accused was summoned vide order dated 23.08.2014. Thereafter, separate notice u/[SECTION] [ACT], explaining accusations against the accused u/[SECTION] [ACT] was framed on 09.03.2015 to which he did not plead guilty and claimed trial.
4. An application filed on behalf of the accused u/[SECTION] [ACT] seeking to cross-examine the CW was allowed. Vide order dated 23.03.2015, CE was closed. On 30.05.2015, statement of accused u/[SECTION] [ACT] was recorded. Accused examined two defence witnesses including himself in support of his case. DE was closed vide order dated 30.07.2016.
5. It is well settled position of law that to constitute an offence under [SECTION] [ACT], the following ingredients are required to be fulfilled:
(i) A person must have drawn a cheque on an account maintained by him in a bank for [ENTITY] vs [ENTITY] payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) That 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;
(iv) That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
6. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence [ENTITY] vs [ENTITY] under [SECTION] of the [ACT].
7. Now, coming to the present case in hand.
Accused admitted his signature on the cheque in question. However, it has been contended that impugned cheque has not been issued against the discharge of any alleged liability and the same has been misused by the complainant after having managed to obtain the same from the office where accused used to work with the complainant
8. Per contra, it has been argued by the Ld. Counsel for the complainant that accused failed to prove if the cheque in question has not issued against the discharge of his liability. In order to strengthen his claim, complainant also filed on record promissory note i.e. ExCW1/6, copy of retirement benefits i.e. ExCW1/7 and ITRs i.e. ExCW1/8 and ExCW1/9 during his post summoning evidence.
9. I have heard both the parties and gone through the record.
10. First, it appears pertinent to mention here the provisions of [SECTION] of the [ACT] which inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. [SECTION] of the [ACT] stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature.
11. In [PRECEDENT], three Judge Bench of Hon'ble Supreme Court held that [SECTION] raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This presumption is rebuttable presumption and it is open to the accused to raise a defense wherein the existence of legally enforceable debt or liability can be contested.
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12. It has been held in [PRECEDENT] that the accused may rebut these presumptions by leading direct evidence and in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
13. After having discussed the settled principles of law, let me now proceed to examine the above said contention of the accused regarding cheque in question being misused by the complainant. It is trite to mention here that the narrative of cheque being misused, is very easy to be weaved, conceived and averred but very hard to be evidenced and established. Mere blanket claim bereft of any plausible and cogent explanation cannot replace the necessity of evidence of substantive nature. In the present case, accused has admitted of having signed the cheque in question. However, it has been asserted that cheque in question has been misused by the complainant as the same was kept in blank signed in the office where he happened to work with the complainant. Subsequent to the admission of the signature on impugned cheque, the onus was on the accused to explain the circumstances under which cheque reached to the complainant. However, much to the derogation of his own case, accused was found amiss in bringing out any credible evidence of unimpeachable character and unambiguous nature on record to strengthen his assertion and win over the confidence of the court. Further, the submissions are vague in nature. Secondly, arguments cannot be substituted for evidence. A bare claim or explanation given by the accused cannot be accepted.
14. Even assuming and not admitting that cheque in [ENTITY] vs [ENTITY] question was obtained unauthorisedly and fraudulently, then the sagacity of any prudent person placed in similar situation demands the immediate action which may be in the form of making police complaint or approaching any enforcement authorities, startlingly which has not happened in this case. Accused was supposed to made reasonable inquiry regarding the misplacement of cheque in question. However, he did not bring on record any communication or inquiry made regarding the misplacement or misuse of his blank signed cheque. Neither any mandate to that regard was given to the concerned bank authority for stopping the payment.
15. Moreover, accused admitted of having received the legal demand notice i.e. ExCW1/3 during admission/ denial of documents u/[SECTION] [ACT] However, no material was brought on record to show if the said legal notice was replied upon. An ordinary prudent person is supposed to rise to the occasion, at least, at this stage and rebut the claim of the complainant. The conduct of accused apparently militates against the standard of ordinary prudent person. Accused failed to bring on record any communications regarding his protest in respect of the alleged misuse of cheque by the complainant. Accused remained conspicuously and questionably inert and muted over this issue much to the detrimental of his own case, which largely imperils and emasculates the defense of the accused which is already resting on lame limbs. It seems purely an afterthought and the figment of imagination which was intended to fill the lacuna in the case of the accused. In these circumstances, adverse inference becomes necessary to be drawn against the accused.
16. In case titled [PRECEDENT], Hon'ble High Court of Delhi has observed that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised [ENTITY] vs [ENTITY] under [SECTION] of [ACT]."
"If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
17. The claim of the complainant regarding advancement of loan in question gets further reliance and credence in terms of promissory note of Rs. 05,00,000/-i.e. ExCW1/6 filed on record. Accused has not disputed the signature on the said promissory note. In the backdrop of production of the cheque along with the promissory note, the burden was on the accused to disprove the same by bringing on record cogent and credible evidence to buttress his claim. However, accused endeavored to wriggle out by simply giving suggestion that the said document is forged and fabricated which was wide, blanket and generic in nature. No explanation was given as to how is the said document forged and fabricated, neither any expert opinion was sought at any stage. Moreover, nothing substantial could be extracted to impeach the credibility of the complainant during his cross examination. Simple denial of the document cannot make the assertion of the accused sacrosanct so as to absolve him from his obligation to pick hole into the case of the complainant in a believable and reliable manner.
18. Complainant also examined CW2/ [ENTITY], in the presence of whom loan was claimed to have been advanced. He deposed to have witnessed the advancement of loan in question and also the execution of Promissory note i.e. ExCW1/6. During his cross-examination, nothing adverse could be extracted to discredit or discard his deposition in its entirety which gave further credence [ENTITY] vs [ENTITY] to the case of the complainant.
19. The deposition of DW-2 did not offer any aid or assistance to the case of the accused as nothing relevant and significant was brought on record to further the case of the accused.
20. In view of the aforesaid discussion and legal positions, I do not find any force in the contention of the accused that cheque in question was not issued against the discharge of any legal liability and accordingly the same is decided in favour of the complainant.
21. The incidence of dishonour of cheque in question has not been specifically denied or disputed. It remained unchallenged and unrebutted.
22. Accused has admitted of having received the legal demand notice i.e. ExCW1/3.
23. In view of the aforesaid discussions and legal positions I hold that the accused has not been able to rebut presumptions u/[SECTION] and [SECTION] [ACT] arising in favour of the Complainant. Accordingly, accused namely [ENTITY] is convicted of the offence under [SECTION] of the [ACT].
24. Let the parties be heard on the point of sentence.
25. A copy of this judgment be given free of cost to the convict.
Announced in the open Court on 21th Day of September 2016 ([ENTITY]) MM-03 ([ACT] New Delhi