In the Court of Sh. [ENTITY] Senior Civil Judge cum Rent Controller New Delhi District, Patiala House Courts New Delhi [CASE NUMBER] Unique [CASE NUMBER] In the matter of: M/s Eicher Motors Ltd (A company incorporated under the provisions of the [ACT]) Having its office at Satkar, 80 Nehru Place New Delhi110019 Registered Office: 102, Industrial Area No. 1, Pithampur, Distt. Dhar, Madhya Pradesh Complainant VERSUS 1 Mrs. [ENTITY] w/o [ENTITY] R/o Chowki Rajjar Mohalla Thothan, Rampur [PRECEDENT] Page no. 1 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. Distt. Rampur, Uttar Pradesh 2 Mr. [ENTITY] S/o Sh Fida Hussain R/o Chowki Rajjar Mohalla Thothan Rampur, Distt. Rampur Uttar Pradesh. (Acquitted vide order dated 15.5.2013) 3 Mr. [ENTITY] s/o Sri [ENTITY] R/o Mohalla Shahukara. Bilaspur, Rampur, Distt. Rampur, Uttar Pradesh. (Proceedings against accused [ENTITY] were abated vide order dated 12.12.2012.) Accused Date of Institution : 27.03.2007 Date of Arguments: 03.09.2013 Date of Judgment : 03.09.2013 COMPLAINT UNDER [SECTION] OF THE [ACT]. [PRECEDENT] Page no. 2 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. JUDGMENT :
This is a complaint under [SECTION] of the [ACT] ( hereinafter called the Act) made by the complainant against the accused stating inter alia that the complainant is a limited company having its office in Delhi at Satkar, 80, Nehru Place, New Delhi and Mr. [ENTITY] has been authorized to file the present complaint vide SPA dated 24.3.2003. It is further stated in the complaint that the accused are residing/carrying on their business at Chowki Rajjar, College Road, Mohalla Thothan, Rampur, Distt. Rampur, Uttar Pradesh; that the complainant has financed accused no. 1 a Eicher 10.70 HSD Truck vide deed of hypothecation dated 30.1.2001. It is further stated in the complaint that accused no. 1,in partiial discharge of liability of accused no. 1, issued cheque no. 426237 dated 23.01.2003 for a sum of Rs.96,452/ drawn on State Bank of Patiala, Rampur, UP and accused no. 2 and 3 were the guarantors. It is further stated in the complaint that this cheque was presented for encashment by the complainant but the same was returned unpaid with the remarks "No Such Account" vide memo dated 28.01.2003. It is alleged that the accused have deliberately defrauded the complainant by issuing the cheque in question for which the accused did not have [PRECEDENT] Page no. 3 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. account in the bank and have deceitfully, handed over the said cheque closed. It is further stated in the complaint that the complainant got issued legal notice dated 10.02.2003 to the accused on 11.02.2003 by registered post but even after the service of the notice, the accused failed to pay the amount of the aforementioned cheque. As the accused despite service of legal notice did not make the payment, the present complaint is filed within limitation praying that the accused be summoned, tried and punished for having committed offence punishable under [SECTION] of [ACT]. 2 After examination of the complainant, by way of an affidavit, the accused were summoned for the alleged offence. 3 On appearance, the parties were heard on the point of notice of accusation under [SECTION] of [ACT] against the accused. Vide order dated 15.5.2013 accused no. 2 was acquitted of the allegations u/[SECTION] of the [ACT] and notice of accusation u/[SECTION] [ACT] for having committed offence u/[SECTION] of the [ACT] was framed against accused no. 1 to which accused no. 1 did not plead guilty and submitted that she had defence to make.
Proceedings against accused no. 3 [ENTITY] were abated vide order dated 12.12.2012.
4 In view of of the judgment dated 28.7.2010 passed by the [PRECEDENT] Page no. 4 of 16
M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. Hon'ble Delhi High Court in [CASE NUMBER] entitled [PRECEDENT], the accused is called upon to disclose his defence and in pursuance of the direction of the court the accused has disclosed her defence that she has not issued the cheque in question in favour of the complainant. The accused no. 1 further denied the signature on the cheque contending that this is a false complaint. No application under [SECTION] of the [ACT] was made on behalf the accused and as such the matter was adjourned for DE, with direction to the accused to file list of witnesses, if any and also to take steps if the accused want to call any witness by the process of the court. The application under [SECTION] of the [ACT] filed by the accused was dismissed. As no steps were taken by the accused for summoning the witness, nor any witness was produced, DE was closed vide order dated 04.07.2013. The case was thereafter fixed for final arguments.
5 I have heard counsel for the parties and gone through the relevant material on record including the allegations made by the complainant in the complaint. I have also considered the relevant provisions of law.
6 Ld. Counsel for the complainant has argued that accused no. 1 was guarantor to the loan and thereafter issued the cheque in question towards consideration. It is further contended that as the cheque returned [PRECEDENT] Page no. 5 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. dishonoured on presentation and the accused failed to make the due of the outstanding payment despite service of the legal notice, the accused is liable. It is further contended that the testimony of the CW remains unchallenged and uncontroverted as CW was not cross examined by the accused and the accused has failed to rebut the presumption in view of [SECTION] of the [ACT] as no evidence was led on behalf of the accused. Ld. counsel for the complainant further relied upon [SECTION] of the Act contenting that as the accused has drawn the cheque in question it shall be presumed that the cheque was issued for discharge of the liability to the complainant.
7 Having drawn my attention on the materials on record, it is submitted by counsel for the accused that no offence has been proved against the accused and therefore, the accused is liable to be acquitted. It is further mentioned that the cheque in question was not issued by accused no. 1 at all and accused no. 1 has no such account as alleged in this complaint. It is further contended that the accused is not liable to make any payment and the complainant has failed to prove the case in view of the contention in the complaint itself. Ld. Counsel for the accused has also placed on record one letter from the concerned branch (though not proved) in support of contention that accused never had any account as alleged by the complainant in the complaint against which the cheque in question was [PRECEDENT] Page no. 6 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. issued.
8 I have given my thoughtful consideration to the submissions made on behalf of the parties.
9 [SECTION] of the Act which pertains to dishonour of cheque for insufficiency, etc., of funds in the account, at the relevant time, read as follows:
138. Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the [PRECEDENT] Page no. 7 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the 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;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
10 From a reading of [SECTION] of the Act, it can be discerned [PRECEDENT] Page no. 8 of 16
M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. that to render a drawer of a cheque liable under the said section it is essential that the cheque must be drawn to discharge a legally enforceable debt or liability. If such cheque is drawn not to discharge any legally enforceable debt or liability, the drawer of such cheque cannot be held liable for commission of offence punishable under [SECTION] of the Act. From a reading of proviso to [SECTION] of the Act it can also be discerned that after dishonour of the cheque unless and until a notice as required by clause (b) of the said proviso is served upon the drawer of the cheque whereby he is called upon to make payment against the cheque, such drawer cannot be held liable for the commission of offence punishable under [SECTION] of the Act.
11 I have gone through the judgment reported as 2009(3) (Supra) wherein His Lordship after referring the decision in the case [PRECEDENT] referred the ingredients of the offence under section
138. Paragraph 29 reads as below:
"29. [SECTION] of the Act has three ingredients 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 [PRECEDENT] Page no. 9 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds."
In paragraphs 30 and 31 the Apex Court dealt with the presumption under [SECTION] of the said Act. Paragraphs 30 and 31 read thus:
"30. The proviso appended to the said section provides for compliance with legal requirements before a complaint petition can be acted upon by a court of law. [SECTION] of the Act merely raises a presumption in regard to the second aspect of the matter existence of legally recoverable debt is not a matter of presumption under [SECTION] of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
31. The courts below, as noticed hereinbefore, proceeded on the basis that [SECTION] raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct." (Emphasis added).
[PRECEDENT] Page no. 10 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. 12 As held in [PRECEDENT], under [SECTION] of the Act there is a legal presumption that the cheque was issued for discharging an antecedent liability and this presumption can be rebutted by the person who gives the cheque. The presumption is for casting the burden of proof as to who should adduce evidence in a case. It is open to the accused to adduce evidence to rebut the said presumption. As further held in [PRECEDENT], the presumption available under [SECTION] can be rebutted by the accused by adducing evidence. So the evidence available on record will have to be appreciated by bearing in mind the above fact regarding burden of proof. 13 As mentioned, the CW was not cross examined by the accused nor the accused produced any evidence in support of her claim and contention. The letter produced from the bank by the accused also at the time of final argument has no penitentiary value neither such document was proved by the accused in accordance with law nor any step was taken by the accused to summon the witness to prove her defence. The accused has denied the issuance of cheque in question as well as liability contending that she did not have any account upon which the cheque in question was issued at all and the complainant has forged and fabricated the document [PRECEDENT] Page no. 11 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. and filed this false complaint.
14 It is relevant to note that as the accused has not led any evidence nor cross examined the witness of the complainant, the issue to be examined as to whether complainant has proved the contentions as alleged in the complaint against accused no. 3 particularly in view of the legal provisions, i.e. [SECTION] of the [ACT]. As above mentioned, [SECTION] of [ACT] requires that the cheque is drawn by the person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge of liability. The question, therefore, is to be examined as to whether the accused no. 3 have any account with the bank in question upon which the cheque was issued and in this respect the contention of the complainant in the complaint is relevant as the accused has denied the maintaining of any account but not produced any evidence. As mentioned in the complaint itself, the alleged cheque upon presentation received back dishonoured with the remarks, "No Such Account" vide returned memo dated 28.01.2003. The complainant itself as mentioned in para 8 of the complaint that the accused defrauded the complainant by issuing the cheque for the amount for which the accused did not have an account in the bank. The returned memo also reflected that there was no such account as mentioned in the complaint and therefore it is apparent that no account was maintained by the accused upon [PRECEDENT] Page no. 12 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. which the alleged cheque was issued. Therefore, the contention of the accused appears to be true and correct. The alleged cheque, if any, issued by the accused, therefore, cannot be considered as a valid cheque and therefore, the accused cannot be held liable for the offence alleged under [SECTION] of the [ACT]. It is not necessary to note that accused might have committed any other offence but the complaint of the complainant fails on this ground alone. Moreover, the complainant has not taken any steps to summon any witness from the bank to prove that any account of the accused existed which was subsequently closed despite knowledge of no such account vide returned memo dated 28.1.2003. The complainant has not produced anything on record also to prove the other allegations regarding giving of loan, execution of any agreement and accused no. 3 standing guarantor etc. to further prove the liability of the accused, if any, and consequent issuance of the cheque in discharge of the liability. Therefore, in view of the contents of the complaint itself the complaint of the complainant fails.
15 As held by the Hon'ble Supreme Court in "[PRECEDENT], decided on 4.1.1972", the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not [PRECEDENT] Page no. 13 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. appear to be credible or is palpable false that burden does not become any the less . It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to he accused, and the evidence on his behalf probabilities the plea he will be entitled to the benefit of reasonable doubt.
16 I have also gone through the judgment reported as [PRECEDENT] wherein it is held that " presumptions are rules of evidence and do not conflict with the presumptions of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the [PRECEDENT] Page no. 14 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".
17 As held in 2010 [CASE NUMBER], if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of Negotiable Instruments.
18 Examining the case of the complainant from the point of reasonability and preponderance of probabilities also, the complainant failed to prove the case against the accused beyond reasonable doubt. The complainant has even not produced any record to show that the accused is liable and the cheque was issued towards any consideration. Moreover, admittedly it is apparent that the accused has no account at all upon which the cheque in question was issued. The above detailed discussion casts shadow on the case of the complainant.
19 In view of the above discussions and for the reasons given therein, this court is of the considered view that the complainant has failed [PRECEDENT] Page no. 15 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc. to prove the allegations made against accused no. 1 in the complaint. Complaint is therefore, liable to be dismissed and is accordingly dismissed. The accused is acquitted of the allegations levelled against her under [SECTION] of the [ACT].
20 File be consigned to RR.
Announced in the open court rd on this 3 day of September, 2013 ( [ENTITY]) Senior Civil JudgecumRent Controller New Delhi [PRECEDENT] Page no. 16 of 16 M/s Eicher Motors Ltd v. Mrs. [ENTITY] etc.