IN THE COURT OF MS [ENTITY] METROPOLITAN MAGISTRATE, ROHINI: DELHI [CASE NUMBER] [ENTITY] Through his SPA holder [ENTITY], Proprietor of M/s North (India) Metal HUB, office at C74, Badli Extension, Delhi. Complainant V/s M/s [ENTITY] Through its proprietor [ENTITY], Office at A273, Vinayak Apartment, Ramprastha, Ghaziabad, Uttar Pradesh Accused JUDGMENT
(1) Name of complainant [ENTITY] and address Through his SPA holder [ENTITY], Proprietor of M/s North (India) Metal HUB,office at C74, Badli Extension, Delhi. (2) Name of accused, Sh. [ENTITY], Proprietor parentage and address M/s [ENTITY], Office at A273, Vinayak Apartment, Ramprastha, Ghaziabad, Uttar Pradesh (3) Offence complained of or proved: Under [SECTION] [ACT] (4) Plea of accused: Pleaded not guilty (5) Date of institution of case: 16.05.2009 (6) Date of reserve of order: 17.12.2012 (7) Final order: Conviction 8) Date of Final Order 20.12.2012 BRIEF STATEMENT OF THE REASONS FOR THE DECISION: The present complaint is filed Under [SECTION] of the Negotiable
Instrument Act, 1881 (hereinafter referred to as the 'Act').
Brief facts of the complaint are that complainant is running a business under proprietorship concern under the name and style of M/s North (India) Metal HUB and sh. [ENTITY] is working as Manager with the complainant and he is the SPA holder of the complainant. Complainant deals in the business of trading, manufacturing and supplier and distributor of Metal sheets and allied items used in the construction work. The accused approached the complainant in the month of September 2008 at Delhi and placed an order for supply of metal sheets and accordingly the complainant supplied the same to him as per order. The accused in discharge of his liability towards the complainant issued a post dated cheque bearing no. 501622 dated 25.09.2008 of Rs. 2,50,000/ to the complainant but when the complainant presented the said cheque for encashment, the same was dishonoured vide return memo dated 17.03.09 for the reason "Insufficient Funds". Thereafter, complainant has sent a legal notice dated 16.04.09 to the accused through registered Post A.D. and courier on 17.04.09. Despite receipt of legal notice, the accused has failed to pay the cheque amount and finally, complainant has filed the present complaint with the submission that accused be summoned, trial and punished according to law.
In his pre summoning evidence complainant has examined herself on affidavit as Ex. CW1/A. Complainant reiterated the contents of his complaint and placed on record the SPA of the complainant Ex. CW1/1, original cheque bearing no. 501622 dated 25.09.08 amounting to Rs. 2,50,000/ Ex CW1/2, drawn on Oriental Bank of Commerce, Delhi, original cheque returning memo dated 17.03.09 Ex.CW1/3, wherein it has been stated that cheque in question was dishonoured due to "Insufficient Funds", legal demand notice dated 16.04.09 Ex.CW1/4, postal receipt Ex.CW1/5 and Delivery report of courier Ex.CW1/6.
Thereafter, accused was summoned for an offence punishable u/[SECTION] of [ACT] and notice u/[SECTION] [ACT] for this offence was served upon her to which the accused pleaded not guilty and claimed trial. Accused has stated in his Notice that:
"I have given two cheque bearing no. 501626 of Rs. 297600/ on 20.05.08 and 501622 on 25.05.08 to the [ENTITY], Proprietor of M/s [ENTITY] and second cheque no. 501622 on 25.05.08 was blank in favour of [ENTITY], Proprietor of M/s [ENTITY] and all the aluminum sheet I was received from the [ENTITY] and I pay all the amount regarding the aluminum sheet and [ENTITY], Proprietor of M/s [ENTITY] received two cheques from me as a guarantee and after that [ENTITY] return one cheque bearing no. 501626 of Rs. 297600/ to me but second blank cheque no. 501622 was not returned to me. It is a false case. I do not have any legal liability towards the complainant".
Presummoning evidence of the complainant was treated as post notice complainant evidence as per the guidelines laid down by Hon'ble Delhi High Court, in case titled as [PRECEDENT].
Pursuant to allowance of application u/[SECTION] [ACT], the complainant was recalled for crossexamination. Accused could not demolish the stand of the complainant in his cross examination.
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove her case.
As present complaint is under [SECTION] of [ACT], there are three ingredients as follows held by the supreme court of india in [PRECEDENT] [SECTION] of the Act three ingredients, viz.:
(i) that there is a legal 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.
Abovesaid three ingredients have been proved by complainant in the present case. 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 Sections 118
(a) and [SECTION] are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in [SECTION] of the [ACT] as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in [PRECEDENT] " Presumptions are rules of evidence and do not conflict with the presumption 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 nonexistence of the presumed fact. "
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 conclusion, but this does not preclude the 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 exist.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of K.[ENTITY] v. Sankaran Vaidhyan Balan and others [AIR 1999 SC 3762] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant".
In [PRECEDENT], wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of [PRECEDENT]. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability on the accused and this they had to discharge at the trial.
Thereafter, statement of accused under [SECTION] [ACT] was recorded in which all the incriminating circumstances were put to the accused wherein accused has stated that:
"I have not given the cheque in question to the complainant but the same was given to one Sh. [ENTITY] who was agent of M/s [ENTITY] sheet from where I was going to purchase laminated sheets and I have given the blank signed cheque dated 25.05.08 for security. I do not remember whether I have received the legal notice or not. It is a false case. I have not given the cheque in question to the complainant but the same was given to one Sh. [ENTITY] who was agent of M/s [ENTITY] sheet from where I was going to purchase laminated sheets and I have given the blank signed cheque dated 25.05.08 for security. I have no liability towards the complainant".
Accused has examined only himself as DW1 in his defence evidence.
No other witness has been examined by the accused. Hence, DE was closed.
Oral arguments tendered by the Complainant as well as Ld. counsel for the accused were heard at length.
First defence taken by accused is that he has given blank signed cheque as security. To this, law is very clear. [SECTION] of [ACT], is quoted herewith: "[SECTION] of [ACT] At declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability. If the drawee were to dishonestly fill up any excess liability and the extent of liability if it becomes bona fide matter of civil dispute in such case, the drawer has no obligation to facilitate the encashment of cheque". (Shreyas Agro Services Pvt Ltd Vs Chandra Kumar S.B., II (2007) BC 357:
(2006) CrLJ3140: (2007) 6 Karn LJ 237 (Kant).
It was also held in case of [PRECEDENT], where it was held that "Where the Details on the body of cheque were written by the complainant himself, the accused merely signed the same, there was no evidence that blank cheque was given by the accused, it was held that entire body of cheque was not required to be written by the drawer only. What is material is the signature of the drawer thereon which was admitted by the drawer and the complainant cannot be said to have made material altercations within meaning of [SECTION] merely by writing details on cheque".
Secondly accused has stated that he has given the cheque in question to one Sh. [ENTITY] and complainant has misused his cheque but Sh. [ENTITY] to whom the cheque was given, was not examined as defence witness by the accused.
Thirdly, accused has admitted his signature on the cheque in question in his cross examination. It is also held 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 presumption referred to in [SECTION] of the [ACT] is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank signed cheques were lost by her, which was made use of by the complainant. The accused had failed to raise a probable defence to rebut the presumption placed on him by [SECTION] of the Act".
Accused has also stated in his cross examination that he uses aluminum sheets i.e, the material supplied by the complainant. Therefore necessary implication is drawn that complainant has supplied material.
Fourthly, accused has stated that he has not received legal notice. In judgment of the [PRECEDENT] Supreme Court of India held that:
" It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under [SECTION] of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under [SECTION] of the Act, cannot obviously contend that there was no proper service of notice as required under [SECTION], by ignoring statutory presumption to the contrary under [SECTION] of the [ACT] and [SECTION] of the [ACT]. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in [ENTITY] s case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of [SECTION] of the Act".
Fifthly, it has been submitted by Ld. Counsel for accused and also by the accused in his statement U/[SECTION] [ACT] that security cheque dated 25.05.08 was issued and it has been altered by making 25.05.08 as 25.09.08 by the complainant but no application for sending the cheque to handwriting expert has been ever filed.
Lastly, it has also been submitted by Ld. counsel for accused that a complaint U/[SECTION] has been filed in the other court but Ld. counsel for complainant has submitted that the said complaint was filed after two years of filing the present complaint which is an after thought.
It is settled preposition of law that the guilt of accused must be proved beyond reasonable doubt and reliance has been placed by this court on the judgments of [PRECEDENT] of [PRECEDENT] wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
This court is of the considered opinion that complainant has proved its case beyond reasonable doubt, therefore, accused is being covicted for the offence under [SECTION] of [ACT].
Let the accused be heard on point of sentence.
Announced in the open court ([ENTITY]) today on 20.12.12. MM / ROHINI COURTS / DELHI IN THE COURT OF Ms [ENTITY], MM, DELHI. [CASE NUMBER] [ENTITY] Vs. M/s [ENTITY] U/[SECTION] [ACT] 21.12.12 ORDER ON SENTENCE Present: AR for complainant with Ld. counsel Sh. [ENTITY]. Accused with Ld. counsel Sh. [ENTITY].
Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is a first time offender and he has a family consisting of his wife and three minor chidren and also wife and two minor chidren of his brother who is drug addict, therefore he maintains his wife and children. Therefore lenient view may be taken.
Ld. Counsel for complainant has submitted that the matter pertains to the year 2009 and relates to business transaction of Rs. 2,50,000/ was involved in the matter. Various opportunities have been given to the accused for settling the matter and the matter was also referred to Lok Adalat.
I have heard the submissions and carefully perused the record. Complainant regarding present cheques in question is pending since 2009 and the same relates to the business transaction between the parties. I am not inclined to grant the benefit of probation of [ACT] as the convict has a previous conviction U/[SECTION] [ACT] also. 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. 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 filed 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. 35,000/ with surety of like amount. Bail bond furnished and accepted till 21.01.13.
Copy of this order be given to both the parties free of cost. Bail bonds be put up on 21.01.13 File be consigned to record room after due compliance.
Announced in the open ([ENTITY]) court on 21.12.12 MM (N/W)/Rohini Courts, Delhi.