1 IN THE COURT OF MS [ENTITY] : METROPOLITAN MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI YOGENDER GOEL VS. JAGDAMBA ELECTRICAL CC NO. 471568/2016 U/[SECTION] NEGOTIABLE INSTRUMENTS ACT JUDGMENT
(1) Serial number of the case : 471568/2016 (2) Name of the complainant : [ENTITY], S/o Late Sh. Lakhi Ram Goel, R/o F-270, Near Panchmukhi Mandir, Lal Kuan, Badarpur, New Delhi-110044 (3) Name of the accused, : (1) [ENTITY] & parentage & address Electronics, Through Its proprietor 711, Main M.B. Road, Lal Kuan, New Delhi- 110044 (2) [ENTITY], S/o Sh. [ENTITY], (Proprietor & Authorized Representative) 711, Main M.B. Road, Badarpur, Lal Kuan, New Delhi- 110044 (4) Offence complained of or proved : 138 [ACT], 1881 (5) Plea of the accused : Pleaded not guilty (6) Final Order : ACCUSED NO. 2 - CONVICTED (7) Date of Institution : 28.06.2013 (8) Date on which reserved for judgment : 21.03.2018 (9) Date of Judgment : 03.04.2018 [ENTITY] Vs. [ENTITY] [CASE NUMBER]
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that the accused no. 1 is a proprietorship concern of which accused no. 2 is the proprietor. The accused no. 2 is the cousin of the complainant. In the month of August 2012, being a cousin of complainant, accused had taken financial assistance of Rs. 4.50 lacs from the complainant. The accused, towards the discharge of contractual liability on the part of the accused no. 1 and 2, issued cheque bearing no. 536421, dt. 21.04.2013 for Rs. 4,50,000/- inter alia, on an account maintained by the accused no. 2 on behalf of accused no. 1. Complainant presented the said cheque for its encashment on 26.04.2013. The said cheque has been returned unpaid on 30.04.2013, vide dishonor memo dated 30.04.2013 "No such account". Thereafter, the complainant sent a statutory demand notice dt. 14.05.2013, through his advocate under registered post and courier to the accused nos. 1 & 2 at their correct addresses with the request to pay the amount mentioned in the above said cheque which have been dishonoured, within 15 days from the receipt of demand notice. Despite that, payment of the cheque in question was not made by the accused persons within the stipulated time of 15 days. Hence, the complaint.
2. In the pre-summoning evidence, affidavit by way of evidence Ex.CW-1/A was filed by the complainant. In his affidavit by way of evidence Ex. CW-1/A and relied on documents which are cheque in question Ex. CW-1/1, its return memo Ex. CW-1/2, office copy of legal notice Ex. CW-1/3, speed post receipts and courier receipts Ex. CW-1/4(colly).
[ENTITY] Vs. [ENTITY] [CASE NUMBER] The bank witness Sh. [ENTITY], OfFicer Allahabad Bank, Tughlakabad Extension Branch, New Delhi was examined as CW-2 who brought the statement of account Ex. CW-2/A (colly) to prove that the account belongs to accused and accused was closed w.e.f. 31.03.2008. Thereafter, pre- summoning evidence was closed. Since sufficient material was found against the accused, summoning order u/[SECTION] [ACT] was passed against the accused vide order dated 05.06.2014.
3. Accused appeared in pursuant to issuance to summons and notice U/[SECTION] [ACT] was served upon the accused vide order dated 18.12.2014 to which the accused pleaded not guilty and claimed trial. Accused stated that he did not borrow any money from the complainant neither he gave any cheque to him. The account from which the cheque in question was drawn was closed 7 years ago and the complainant misused the cheque against him to extort money from him. Accused further stated that he is not liable to pay anything to the complainant.
4. Thereafter, upon application of accused U/[SECTION] [ACT] to cross examine complainant and his witnesses, the same was allowed vide order dated 05.06.2015 and the accused was given an opportunity to cross examine the complainant and his witnesses.
Complainant was duly cross examined by the counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 25.01.2017.
5. Thereafter, the plea of the accused no. 2 [ENTITY], u/[SECTION]/[SECTION] [ENTITY] Vs. [ENTITY] [CASE NUMBER] [ACT] was recorded vide order dated 25.01.2017, wherein, all material existing on record including the exhibited documents were put to accused. Accused stated that complainant is not his cousin and he has not taken any loan from the complainant and he does not know the complainant at all. Accused stated that he has never issued any such cheque to the complainant and he did not receive the legal notice. Accused stated that he knows the elder brother of complainant but he has no financial transaction even of Rs. 10/- with the complainant at all. The accused has stated that he has already lodged a police complaint and wanted to prove by summoning the record.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused [ENTITY] examined himself as DW-1 in his defence evidence, he was duly cross examined by the counsel for complainant. Thereafter, no DW was produced by the accused. Thus, DE was closed vide order dated 27.01.202018 and matter was fixed for final arguments.
7. Both the parties have addressed oral arguments on 13.03.2018 and thereafter, both the parties have filed written arguments on 20.03.2018 wherein the arguments addressed by both the parties were reduced in the writing and the same are not being reproduced here being matter of record. Complainant has also relied upon the judgments of :
"[PRECEDENT]", Crl. Appeal No. 1066 of 2001 decided on 18.10.2001;
"[PRECEDENT]" , Crl. L.P. 567/2014 decided on 30.06.2015;
"[PRECEDENT]", 2013 LawSuit (Bom) [ENTITY] Vs. [ENTITY] [CASE NUMBER] 923;
"M/s [PRECEDENT]" Crl. Appeal No. 1523 of 2014;
"[PRECEDENT]", Appeal (Crl.) 1255 -1261 of 2004;
"[ENTITY] Vs. [ENTITY] and Anr.", I(2007) BC 96, 2006(6) Bom CR 653;
Accused has also relied upon judgments of :
"Sh. [PRECEDENT]", in CC No. 335/15 decided on 29.02.2016; "[ENTITY] Vs. [ENTITY]" 2015 XAD (Delhi) 555;
"[PRECEDENT];
"[ENTITY] Vs. Sri [ENTITY]" 2010 V AD (SC); "[PRECEDENT]; "[PRECEDENT];
"[PRECEDENT]; "[PRECEDENT]". Decided on 30.06.2011;
"John K. Abraham Vs. Simon C. Abraham And Anr".
(2014) 2 Supreme Court Cases 236;
"[PRECEDENT];
"[PRECEDENT];
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under [SECTION] [ACT], following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and [ENTITY] Vs. [ENTITY] [CASE NUMBER] the accused failed to make the payment within 15 days of the receipt of the said notice.
10. In the case at hand, the accused has disputed receipt of legal notice as well as his legal liability to pay the cheque amount to the complainant.
Now, this Court shall take the defences of accused one by one. 10A. FIRST DEFENCE AS TO NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he did not receive the legal notice of demand dated 14.05.2013 Ex. CW-1/3. One of the essential ingredients for proving an offence U/[SECTION] [ACT] is the sending the legal notice of demand. The complainant has alleged that the legal notice of demand dated 14.05.2013 Ex. CW-1/3 was sent to the accused through registered AD as well as courier on 16.05.2013, receipt of which are Ex. CW-1/4 (colly) on the correct address of the accused.
A2. [SECTION] of [ACT] is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. [SECTION] of the [ACT] envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused. A3. In [PRECEDENT], the Hon'ble Apex Court has held
"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 u/[SECTION] of the Act, [ENTITY] Vs. [ENTITY] [CASE NUMBER] 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 u/[SECTION] of the Act, cannot obviously contend that there was no proper service of notice as required u/[SECTION], by ignoring statutory presumption to the contrary u/[SECTION] of the [ACT] and [SECTION] of the [ACT]".
A4. Further, the accused has furnished bail bond during trial on 18.12.2014 and he has mentioned the same address on which the complainant had sent the legal notice. The same address has been mentioned by the accused during his testimony recorded on 27.06.2017.
Therefore, in view of the above said dictum of the Hon'ble Apex Court as well as discussion above, this court holds that the legal notice dated 14.05.2013 ExCW-1/3 was served on the accused.
10B. SECOND DEFENCE AS TO LEGAL LIABILITY B1. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under [SECTION] [ACT] and another under [SECTION] of the [ACT]. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the [ENTITY] Vs. [ENTITY] [CASE NUMBER] consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on [PRECEDENT].
B2. Admittedly, M/s [ENTITY] & Electronics ie accused no. 1 is a proprietorship firm and it is settled principle that a proprietary concern is not a company within the meaning of [SECTION] of the Act, both the proprietor and the proprietary concerned cannot be prosecuted u/[SECTION] of the [ACT]. Therefore, the instant complaint is not maintainable against accused no. 1 M/s [ENTITY] & Electronics, proprietorship firm. B3. It is the case of the complainant that he had given friendly loan of Rs4.50 lacs to accused [ENTITY] in August 2012 and accused no. 2 issued cheque in question to discharge his legal liability and cheque got dishonoured and accused failed to make the payment within stipulated time period.
On the other hand, the defence of the accused is that he has not taken any loan from the complainant and he has no legal liability to pay the cheque amount to the complainant and he has sold some scrap after clearing his shop in January 2013 and cheque book pertaining to cheque in question was inadvertently given in scrap.
B4. Now to prove his defence, accused has cross examined the complainant. During cross examination CW-1 has deposed that:
"I have extended the loan for the goods to be bought by the accused for his shop. I have not got any paper signed while extending the said loan. I have given the [ENTITY] Vs. [ENTITY] [CASE NUMBER] amount of loan in cash to the accused. The denomination of the said loan amount was one bundle of Rs1000/- and seven bundle of Rs50, again said Rs500/-".
Thereafter, during cross examination, complainant also brought his income tax returns according to which his annual income is below Rs04 lacs. The complainant further deposed during cross examination that :
"It is incorrect to suggest that I have not given even a single penny to the accused and the cheque in question is misused after finding it from the waste. But the loan is given in August 2012. I do not know whether any delivery receipt regarding delivery of legal notice was annexed along with the complaint or evidence. However, my Advocate may be knowing it. The accused has handed over me the cheque in question in April 2013. I don't remember the exact date when the cheque was handed over by the accused to me. The cheque was issued after the giving of loan when I demanded the return of loan. The cheque was handed over by the accused under his signatures and seal and I have filled other particulars in the shop of the accused at the request of accused. It is correct that at the time of extending of alleged loan, I have not taken any of the surety either in writing or otherwise".
Thus, the testimony of complainant has remained unrebutted and even the complainant has been able to show that he has a sound financial capacity to grant loan to the accused. The judgments relied upon by the accused are not applicable to the facts in hand.
B5. Now, to prove his defence, accused has entered into witness box as DW-1. During defence evidence, for the first time, accused has taken plea that :
"Infact, in the month of January 2013, when I have cleaned my shop then in the waste paper by mistake the [ENTITY] Vs. [ENTITY] [CASE NUMBER] cheque book pertaining to the account at Allahabad Bank was also gone with the waste paper to the [ENTITY]. Infact, the said cheque book was not of any use of mine because the said branch of Allahabad Bank has been closed and shifted to somewhere and therefore, my account was also closed for about 5-6 years back. In the month of May 2013, when the local police of Pul Prahladpur called me upon saying that a complaint had been filed by the complainant in respect to the cheque in question, then I have come to know that the above said cheque had been misused by the complainant and accordingly, I have given written complaint to the local police".
Thus, as per accused, his cheque book containing the cheque in question was inadvertently sold in the scrap. The accused has filed photocopy of complaint as Mark A. The accused has not brought the original of the same. Further, even the photocopy Mark A does not bear the date when the said complaint was lodged nor the same mentions any DD no. to ascertain that the said complaint was ever lodged infact.
B6. Further, during cross examination, accused has deposed that :
"I do not remember when I have sold scrap to [ENTITY] ie whether I sold the scrape to [ENTITY] at the beginning of the month or in the middle of the month or in the last of the January 2013. It is correct that I have not sold the scrap either to complainant or to his brother or to his any of family members".
Thus, the accused has not brought any reasonable circumstance where the complainant could have accessibility to the scrap sold by accused. B7. Further, admittedly, as per bank statement ExCW2/A (colly), the account of the accused was closed 31.10.2008 and as per accused, he sold the scrap in January 2013 in which by mistake, cheque book pertaining to account of [ENTITY] Vs. [ENTITY] [CASE NUMBER] Allahabad Bank was given. The accused has not come up with any plea as to why a prudent person would keep his old cheque book for 05 years from the closing of account. Further, the accused has not even disclosed the exact number of cheques which were misplaced by accused while perusal of bank statement ExCW2/A clearly shows that the cheques from the same cheque series ie 5364 have been used by the accused. Further, the accused has not denied his signatures on the cheque in question and there is no reason why a prudent person would keep blank signed cheques in his shop despite a lapse of 05 years from the closing of account.
Thus, the accused has not come up with a reasonable or prudent defence.
B8. During final arguments, it has also been argued on behalf of the accused that the complainant has not shown the said loan in his ITRs and therefore, the complainant has failed to prove his case. On the other hand, the complainant has opposed the same.
The facts mentioned in the judgments relied upon by the accused are not applicable to the facts in hand. Further, in [PRECEDENT] wherein it was held that non disclosure of loan advanced by complainant to the accused may attract penal provisions under the [ACT] but the same has no consequences on the proceedings of the complaint U/[SECTION] [ACT].
In view of the dictum of the above mentioned judgment of Hon'ble High Court of Delhi as well as on the principles of unjust enrichment, the plea of [ENTITY] Vs. [ENTITY] [CASE NUMBER] the accused is not sustainable and the case of complainant cannot fail only on the ground that complainant has failed to reflect the loan advanced to accused in his ITR.
11. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/[SECTION] & [SECTION] of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable doubts. Resultantly, this court finds the accused no. 2 [ENTITY] S/o Sh. [ENTITY] guilty for the offence punishable U/[SECTION] [ACT]. Hence, he is stand convicted.
12. Let the convict be heard on the quantum of sentence on 07.05.2018. PRABH by PRABH Announced in the open court DEEP Date:
2018.04.03 on 03.04.2018 KAUR 15:25:17 +0530 ([ENTITY]) Metropolitan Magistrate-02/[ACT]/South Saket Court/New Delhi Certified that this judgment contains 12 pages and each page bears my signature.
([ENTITY]) Metropolitan Magistrate-02/[ACT]/South Saket Court/New Delhi [ENTITY] Vs. [ENTITY] [CASE NUMBER]