IN THE COURT OF MS. SUGANDHA AGGARWAL ADDL. RENT CONTROLLER: NORTHWEST : ROHINI : DELHI Unique Case ID No. 02404R0512372008 Police Station : Hari Nagar JUDGMENT
(a) [CASE NUMBER] (b) Date of offence After fifteen days of service of notice dated 09.02.2008 (c) Complainant Sh. [ENTITY] S/o. Sh. [ENTITY] R/o. 11/29A, Tilak Nagar, New Delhi. (d) Accused Sh. [ENTITY] R/o. DB13B, LIF Flats, G8, Area Hari Nagar, New Delhi. (e) Offence Under [SECTION] of [ACT] (f) Plea of accused Pleaded not guilty. (g) Final Order Convicted (h) Date of institution 1.3.2008 (i) Date when judgment 25.10.2012 was reserved (j) Date of judgment 06.11.2012
1. This is a complaint case filed by the complainant alleging offence under [SECTION] of [ACT], against the accused. It is averred in the complaint that the accused was a tenant of the complainant in LIG flat bearing no. DB13B, G8, Hari Nagar, New Delhi64. It is further averred that the accused was in arrears of rent and therefore issued a cheque bearing no. 848606 drawn on ICICI Bank, Punjabi Bagh Branch dated 06.02.2008 amounting to Rs.2,46,000/ for payment of rent upto 15.12.2007 at the rate of Rs.6000/ per month. It is further averred that on 07.02.2008 the complainant presented the cheque for encashment but the same was returned dishonoured with remarks "Insufficient funds". Thereafter the complainant served a notice dated 09.02.2008 thereby calling upon the accused to pay the cheque amount. It is further averred that the accused failed to pay the cheque amount despite service of notice, therefore complainant was constrained to file the present case.
2. After examination of the complainant, accused was summoned for the offence punishable under [SECTION] [ACT].
3. When accused appeared in the Court, complete set of documents were supplied to him. Notice under [SECTION] of [ACT] for offence under [SECTION] [ACT], was served upon the accused vide order dated 06.10.2008, to which accused pleaded not guilty and claimed trial.
4. Complainant examined himself as CW1. CW1 has filed his affidavit Ex. CW1/A in examination in chief wherein he has reiterated and reaffirmed the contents of the complaint on oath and relied upon the following documents:
(a) Original cheque dated 06.02.2008 as Ex. CW1/1.
(b) Returning memo of ICICI Bank dated 08.02.2008 as Ex.CW1/2.
(c) Returning memo of Corporation Bank dated 09.02.2008 as Ex.CW1/3.
(d) Legal notice as Ex. CW1/4. (e) Speed Post Receipt as Ex. CW1/5. (f) UPC Receipt as Ex. CW1/6. (g) Reply to the notice dated 16.02.2008 as Ex. CW1/7. (h) [ENTITY] to reply dated 16.02.2008 as Ex. CW1/8. (i) UPC Receipt as Ex. CW1/9. (j) Speed Post Receipt as Ex. CW1/10.
5. During crossexamination CW1 has deposed that his wife is landlady of house in which accused is the tenant. It is further deposed by CW1 that he has sent a notice to the accused, his mother and DDA for cancellation of conveyance deed executed in favour of the mother of the accused. CW1 has further stated that he has filed several other complaints against the accused Under [SECTION] of [ACT]. CW1 was discharged after cross examination.
6. CW2 Sh. [ENTITY] is the Ahlmad of the court of Sh.[ENTITY], the then Ld. ADJ. He has identified the certified copy of rent agreement as Ex. CW2/1, certified copy of rent receipts as Ex. CW 2/2, Certified copy of another rent receipt dated 15.11.2000 as Ex.CW2/3, Certified copy of another rent receipt dated 15.12.2000 as Ex.CW2/4 and Certified copy of another rent receipt dated 15.01.2001 as Ex.CW2/5. CW2 was crossexamined and discharged.
7. CW3 [ENTITY], Officer from ICICI Bank, Punjabi Bagh Branch, New Delhi, has identified the certified copy of account opening form which is Ex. CW3/1. He has also identified the certified copy of agent I Card which is Ex. CW3/2. He further deposed that being an ICICI Prudential Advisor with ICICI Prudential Life Insurance Co. Ltd., a letter dated 18.07.2006 was issued to [ENTITY]. He further deposed that the account from which cheques in question were issued belong to the accused. CW3 was crossexamined and discharged. Complainant's evidence was closed.
8. After closure of complainant's evidence statement of the accused Under [SECTION] [ACT] was recorded. Entire incriminating evidence was put to the accused. Accused denied the entire incriminating evidence and stated that he is innocent and has been falsely implicated in this case. Accused opted to lead Defence Evidence.
9. Accused examined himself as DW1. DW1 deposed that his mother is the actual owner of the flat in question and he is residing there being her son. He has further deposed that he is not the tenant in the flat and therefore he is under no liability to pay the rent to the complainant. He has further deposed that he has issued the cheque in question to [ENTITY] as a security for a loan taken from [ENTITY]. [ENTITY] fraudulently handed over the cheque to the complainant and the complainant has filed the present false complaint by misusing the cheque.
10. During crossexamination accused has admitted his signature on Ex. CW1/1 and also admitted that he has received the legal demand notice Ex. CW1/4. DW1 maintained his stand during cross examination. DW1 was crossexamined by the complainant and discharged. Thereafter DE was closed.
11. I have heard arguments addressed by both the parties.
12. Complainant has filed written arguments wherein he has stated that accused was a tenant in the LIG Flat owned by the wife of complainant. The accused issued cheque Ex.CW1/1 towards the payment of arrears of rent for the said LIG Flat. The said cheque was dishonoured on presentation. Thereafter, legal notice dated 9.2.2008 was served upon the accused. It is further argued by the complainant that he received a reply to the said notice on 16.2.2008 wherein accused has admitted the fact that he has drawn the cheque in question from the account maintained by him. It is further argued that complainant has duly proved that the said cheque has been dishonoured on presentation and therefore accused shall be convicted for offence under [SECTION] of [ACT]. It is further stated that the defence taken by the accused is that the said cheque was given to [ENTITY] towards a loan taken by the accused from [ENTITY]. However, the said [ENTITY] has not been examined by the accused.
5. Counsel for accused has argued that complainant is in habit of filing frivolous complaint cases against the accused. Earlier complaint cases filed by the complainant have already been dismissed and judgment of the case is on the record. It is further argued that in the present case, complainant has failed to prove that accused was a tenant of complainant. It is further argued that admittedly wife of complainant was the owner of LIG Flat and therefore there was no privity of contract between the complainant and accused. In this regard, counsel for accused has relied upon the judgment passed by Hon'ble Madhya Pradesh High Court in the case of [PRECEDENT].
6. It is further contended that the written statement filed by DDA in civil suit filed by the wife of complainant for injunction and declaration, it has been admitted that the Conveyance Deed has been executed in favour of mother of accused and accused is not a tenant of the flat. It is argued that documents Ex.DW1/1 and Ex.DW1/2 are the positive evidence adduced by the accused and therefore, accused has successfully proved that he was not under any liability to pay the cheque amount. It is further argued that cheque in question were issued by the accused to [ENTITY] and not to complainant. There is no document placed on record by the complainant to show landlord and tenant relationship between the complainant and accused. It is further argued that the documents which have been executed by the complainant by the testimony of CW2 cannot be exhibited because CW2 is merely an Ahlmad who has brought the judicial record. The said documents are copy of rent agreement, rent receipt etc. which can be proved only by the author of said documents. The Ahlmad has only proved that the copies filed in the Court in this case are the true copies of documents filed in the judicial record of other case.
7. I have considered the rival contentions of both the parties and have perused the record.
8. In the present case, accused has been charged for offence under [SECTION] of the [ACT]. In order to prove the guilt of accused for offence under [SECTION] of [ACT], the complainant is required to prove the following ingredients beyond reasonable doubt : i. Accused had issued a cheque in favor of complainant. ii. The said cheque has been issued in discharge of a debt or liability and is for consideration.
iii.The said cheque has been dishonored on presentation. iv.Accused has failed to make payment of cheque amount within 15 days from the date of service of legal notice served to him by complainant.
9. As per the case of complainant, accused has issued the cheque Ex.CW1/1 towards the payment of arrears of rent which was dishonoured on presentation. Legal notice Ex.CW1/4 was served on the accused but accused did not make the payment of cheque amount despite service of legal notice and therefore he is liable to be convicted for offence under [SECTION] of the [ACT].
10. The defence taken by the accused is as follows : I. The cheque Ex.CW1/1 was issued to one [ENTITY] towards repayment of loan amount taken from said [ENTITY] and not to complainant and therefore, accused is not under any liability to pay the cheque amount.
II.Accused is not residing in the LIG Flat as a tenant. Mother of accused is owner of said flat and, therefore, accused is not under any liability to pay the cheque amount to complainant.
(I) DENIAL OF LIABILITY TO PAY THE CHEQUE AMOUNT AS CHEQUE EX.CW1/1 WAS ISSUED TO ONE [ENTITY]
11. Accused has stated in his statement recorded under [SECTION] of [ACT] that the cheque Ex.CW1/1 was issued to [ENTITY] as he has taken loan from [ENTITY]. Firstly, in order to prove its case, complainant has examined himself as CW1. He has filed his affidavit wherein he has reiterated and reaffirmed the contents of complaint on oath. CW1 has been cross examined at length. During crossexamination, with respect to transaction with [ENTITY], only certain suggestions were put to complainant that the cheque was handed over to [ENTITY] and complainant has received the cheque from [ENTITY] and now the same has been misused. All the said suggestions have been denied by the complainant. However, complainant has not been crossexamined on the point as to how he knows [ENTITY] or [ENTITY] is known to complainant and in connivance with [ENTITY], complainant has hatched a conspiracy to falsely implicate the accused in the present case.
12. As per case of accused, accused has only signed the cheque and the contents of the cheque have not been filled in by the accused. As accused has taken the said defence, it is for the accused to adduce evidence in this regard and to get the handwriting compared from an handwriting expert but no such initiative was taken by the accused and neither such evidence has been adduced by the accused in the Court. Further accused has not produced the cogent evidence in the Court despite being available. Accused in his evidence has examined himself as DW1. DW1 in his examinationinchief has maintained his stand that a loan was taken from [ENTITY] and cheque Ex.CW1/1was issued to [ENTITY]. The said loan amount has been repaid to [ENTITY] but [ENTITY] has handed over the cheque to complainant. During crossexamination, accused has admitted that he has not filed any criminal or civil case against [ENTITY]. Neither the said [ENTITY] has been examined by the accused in the Court. No ground has been given as to why [ENTITY] has not been examined in the Court despite the fact that accused was given an opportunity to lead defence evidence. Further it is an admitted case of accused that no notice was ever given to said [ENTITY]. Hence the defence taken by the accused has not been duly proved by him and only a vague plea has been taken by the accused.
(II) DENIAL OF LIABILITY TO PAY THE CHEQUE AMOUNT AS ACCUSED IS NOT TENANT IN THE DDA FLAT AND HIS MOTHER IS ITS OWNER
13. At the outset, it is imperative to mention that the defence taken by the accused during the course of arguments that accused was not under any liability to pay the arrears of rent has not been taken by the accused during trial of the case. Neither any evidence was led by the accused to prove this defence so as to enable the complainant to rebut the defence of the accused. During the entire proceedings of the case, the only defence taken by the accused was that the cheque was issued to [ENTITY].
14. As per the provisions of [SECTION] of [ACT], once the complainant has proved that a cheque has been issued by the accused in favour of complainant, then a presumption under [SECTION] of [ACT] can be drawn in favour of complainant that the said cheque has been issued towards legally recoverable debt. Once the presumption has been drawn in favour of complainant then onus lies on the accused to rebut the said presumption. In order to rebut the said presumption, accused has to adduce cogent evidence and mere explanation will not rebut the said presumption.
In [PRECEDENT], it is held : "In view of the express provision of [SECTION] of the [ACT], a presumption must be drawn that the holder of the cheque received the cheque, of the nature referred to in [SECTION], for the discharge of any debt or other liability unless the contrary is proved. Therefore, the High Court was not justified in entertaining and accepting the plea of the accused respondent at the initial stage of the proceedings and quashing the complaints filed by the appellant."
In [PRECEDENT], it is held that : "There is therefore 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 was on the respondents. This they have to discharge in the Trial."
In [PRECEDENT], it is held that :
"In view of the above, it is clear that the burden to establish that the dishonoured cheque was not issued towards any legally enforceable debt or liability is on the first respondent, who is the drawer of the dishonored cheque, but not on the appellant, who is the payee. For reasons best known to him first respondent did not choose to adduce any evidence to rebut the presumption under [SECTION] of the Act in favour of the appellant. So, it has to be taken that the dishonored cheque was issued by the first respondent towards a legally enforceable debt or liability to the appellant and, so, it cannot be said that the appellant established the guilt of the first respondent for an offence under [SECTION] of the Act beyond all reasonable doubt."
In the case of [PRECEDENT], it has been held as under : "The learned counsel appearing for the respondent/accused contended that the cheque had been issued by the respondent in blank for some other collateral purpose, which was misused by the revision petitioner. Had it been misused by the revision petitioner, atleast after the receipt of the legal notice, the respondent could have sent his reply rebutting the averments of revision petitioner, that would be a normal conduct of any person, but admittedly, the respondent did not send any reply, even after receipt of the legal notice sent by the revision petitioner, after the dishonor of cheque. Further, the respondent has neither produced any supporting document nor adduced any oral evidence as rebuttal evidence to establish that the cheque had been issued by him for some other purpose and that was misused by the revision petitioner. Even, while the respondent/ accused was questioned under [SECTION] [ACT] with regard to the incriminating circumstances available in the evidence of the petitioner/ complainant, and witnesses, the respondent herein has raised only a total denial and in his reply, he never said that he had issued any signed blank cheque and that was misused by the revision petitioner. Therefore, it is not open to the respondent/accused to raise the defence in the Revision, by way of advancing arguments against the available oral and documentary evidence.
It has been clearly established that the cheque relates to the Savings Bank A/c of the respondent/accused and the signature available in the cheque was also admittedly of the respondent/accused. When the cheque was sent for collection, the same was dishonored, due to insufficient funds in the aforesaid savings bank A/c, account of the respondent/accused, but, there was no reply from the respondent/accused. In the aforesaid circumstances, the respondent/accused cannot simply raise a bald defence that the cheque had been issued by him in blank form, for some other purpose and that was misused. Even the said bald defence was not raised, while he was questioned under [SECTION] [ACT] before the Trial Court."
In the case of [PRECEDENT] decided on 21st September, 2010, the Hon'ble Delhi High Court after relying upon the judgment in the case of [PRECEDENT] has held as under: "In this judgment itself Hon'ble Supreme Court has specifically observed that Court should not be blind to the ground realities and the rebuttal of presumption under [SECTION] of [ACT] would largely depend upon the factual matrix of each case. The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under [SECTION] of [ACT] or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under [SECTION] of [ACT]. If mere statement under [SECTION] [ACT] or under [SECTION] [ACT] of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under [SECTION] of [ACT], the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/[SECTION] [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."
15. From the above discussed judgments, it is clear that it is for the accused to rebut the presumption under [SECTION] of [ACT]. In the present case, complainant has proved on oath that the cheque in question has been issued by the accused which was dishonored on presentation. He has been cross examined at length on this point but nothing material could come during his crossexamination. The argument raised by Ld. Counsel for accused that there was no privity of contract between the complainant and accused is not tenable. The judgment of the case of [PRECEDENT]'s case (supra) relied upon by the counsel for accused is not applicable in the present case as in the said case, the respondent No.2 was neither involved in the transaction nor he was the signatory of the cheque. However, in the present case, accused is admittedly the signatory of the cheque. Accused has admitted the fact that he has signed the cheque and handed it over to [ENTITY]. Ld. Counsel for the accused has relied upon the judgment passed by Hon'ble Kerala High Court in the case of [PRECEDENT], wherein it has been stated that mere signing of the cheque does not hold that the accused has drawn the cheque. However, in the present case, accused has admitted that he has issued the cheque in favour of a person. Mere signing of the cheque does not mean that accused has drawn the cheque but the fact that accused has merely signed the chque can be drawn only when the presumption under [SECTION] of the [ACT] is rebutted by the accused by cogent evidence. In the present case, accused has failed to produce any cogent evidence to prove his defence.
16. Ld. Counsel for the accused has argued that documents like rent receipts and rent agreement etc. cannot be relied upon as firstly the same have not been proved as per the provisions of law and secondly they were not put to accused in his statement under [SECTION] of [ACT]. The said argument of learned counsel hold good. The said documents have not been proved as per the provisions of law and neither they have been put to accused in his statement recorded under [SECTION] of [ACT] but the same shall not have any bearing on the outcome of the present case as the said documents are not being considered by this Court for adjudicating the present case. The present case is a case under [SECTION] of the [ACT] in which it is to be seen whether a cheque has been issued by the accused or not which was dishonored on presentation. Once it is proved, a presumption under [SECTION] of the [ACT] is drawn and therefore the documents like rent agreement and rent receipts etc. are not considered by the Court in this case. Similarly, the written statement filed by the DDA is also not relevant in this case. Further the stand taken by the DDA in the written statement is only a submission made by the DDA and not a final finding given by any Court of law.
17. With respect to the argument of learned counsel that earlier complaint cases have been dismissed, the said cases have been dismissed by the Court of concurrent jurisdiction and is not binding on this Court. Furthermore, the said cases were dismissed because in the said cases, the cheques were not issued from the account of accused. But the facts of the present case are different from the earlier cases, therefore, the said argument does not hold good.
18. Hence in view of the above discussion, it has been duly proved by the testimony of CW1 that cheque Ex.CW1/1 was issued by the accused which was dishonored on presentation. Legal notice Ex.CW1/4 was served and accused failed to make payment of cheque amount within 15 days from the date of service of legal notice served to him by complainant. As aforesaid, the presumption under [SECTION] of [ACT] drawn against the accused has not been rebutted by him by leading cogent evidence.
19. Hence I am of the considered opinion that complainant has proved the guilt of accused beyond reasonable doubt. Accordingly, accused is convicted for offence punishable under [SECTION] of [ACT].
([ENTITY]) Addl. Rent Controller (N/W) Rohini Courts : Delhi Announced in open Court on November 6, 2012.