IN THE COURT OF MS. [ENTITY] : CHIEF METROPOLITAN MAGISTRATE : NORTH EAST DISTRICT, KARKARDOOMA COURTS, DELHI. [PRECEDENT] [ENTITY]. [CASE NUMBER] [CASE NUMBER] U/[SECTION] [ACT] P.S. : Shahdara J U D G E M E N T
(a) The serial number of the case : 479/10 (b) The name of the complainant : Smt. [ENTITY] W/o Sh. [ENTITY] R/o H.No.319, Gali No.6, Durgapuri Extn.,Shahdara, Delhi.
(c) The name of accused person :1. Smt. [ENTITY] W/o Sh. [ENTITY]
2.Sh. [ENTITY] S/o Sh. Shiv Narayan Sharma Both R/o H.No.149/3, Uttranchal Vihar Society, Behta Hazipur, PS Loni, Distt. Ghaziabad, (U.P.).
(d) The offence complained of or proved: U/s. 138 [ACT]
(e) The plea of the accused : Pleaded not guilty
(f) Date reserved for order : 19.09.2013
(g) Final Order : Convicted
(h) The date of order : 28.09.2013 [CASE NUMBER] 1/11
1. The case set up by complainant is that accused no.2 entered into an agreement to sell in respect of his property No.149/3, Uttranchal Vihar Society, Behta Hazipur, PS Loni, Distt. Ghaziabad, (U.P.) on 6.2.2010; that the transaction was finalized at Rs.38.00 lac and out of this, an advance money of Rs.3.00 lac was paid by the complainant to accused on same day; that later coming to know that accused was not the owner of the property, complainant demanded refund of Rs.3.00 lac; that in discharge of legal liability, accused no.2 issued a bearing cheque no.604637 dated 20.6.2010 for a sum of Rs.3.00 lac, drawn on Punjab National Bank, Radhey Puri from bank account of accused no.1; that complainant presented the said cheque for encashment in his bank but the same was returned dishonoured on the presentation with endorsement "signature differ" vide cheque returning memo dated 20.06.2010; that complainant sent a legal notice dated 6.7.2010 to accused through registered AD post and [ACT]. It is on these allegations that the present case has been filed by the complainant under [SECTION] of the [ACT] (hereinafter 'the Act') against the accused.
2. After considering the presummoning evidence, accused was summoned for the offence under [SECTION] [ACT] [ACT] vide order dated 25.08.2010 by Ld. Predecessor of this court.
3. It is worthwhile to state that by order dated 25.8.2010 of Ld. Predecessor, only accused no.1 was summoned to face trial. Copy of the complaint and other documents were supplied to the accused and after considering the material available on record including pre summoning evidence, notice of accusation for offence under [SECTION] [ACT] was served vide order dated 26.10.2012 against accused to which he pleaded not guilty and claimed trial. She stated that she had no liability towards the complainant. She stated that on 5.6.2010, complainant and his family members alongwith police officials had called her and her husband at PS Loni, Ghaziabad and they had forcibly obtained her signatures on the cheque by giving threat that they would implicate them in a false case.
4. In order to substantiate its case, complainant has examined herself as CW1 and has filed her examination in chief by way of affidavit Ex.CW1/1. She also relied upon the documents Ex.CW1/A to Ex.CW1/G.
5. Statement of accused was recorded under [SECTION] [ACT], in which she has denied all allegations and has taken the plea of false [CASE NUMBER] 3/11 implication. She admitted the issuance of cheque but stated it was forcibly obtained by complainant from her at police station Loni, Ghaziabad on 5.6.2010. She stated that she had requested complainant not to put the cheque in bank as she had no money in bank. She denied of having received any legal notice from complainant. She stated that police officials forcibly had obtained her signatures as well as of her husband's signatures by putting them under fear of their false implication in heinous criminal cases. She stated that under such compelling circumstances, she handed over blank cheque signed by her to the complainant's husband. She denied of any legal liability.
6. In her defence, accused has examined her husband Sh. [ENTITY] as DW1 and herself as DW2.
7. I have heard Ld. Counsel for complainant and Ld. Counsel for accused, perused the entire records and have gone through the relevant statutory provisions of the 'Act'.
8. As per provisions of the Act, a mandatory presumption is raised in terms of [SECTION] and [SECTION] of the Act in favour of holder of the cheque that the same has been issued for dis charge of any debt or other liability. The accused can prove the non existence of consideration by raising a probable defence and if he [CASE NUMBER] 4/11 has proved, only then the onus would shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would disentitle him to granting the relief. In [PRECEDENT]; it was observed that as the signature in the cheque is admitted to be that of the accused, the presumption envisaged in [SECTION] of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. [SECTION] of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption.
9. In Judgment in [PRECEDENT], Hon'ble Supreme Court observed that the appellant's submission that the cheques were not drawn for the 'discharge in whole or in the part of any debt or other liability's is answered by the third presumption available to the Banks U/[SECTION] of the [ACT]. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in [SECTION] for the discharge, in whole or in part, of any debt or other liability."
[CASE NUMBER] The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. The provisions make it clear that the presumption has to be rebutted by proof" and not by a bare explanation which is merely plausible. It was so held in [PRECEDENT].
10.From the afore stated settled legal principles, it is crystal clear that [SECTION] of the Act envisages legal presumption that the cheque was drawn for consideration on the date which the cheque bears. This presumption is rebuttable but the burden of proving that the cheque was not issued for a debt or liability is on the accused. The accused must adduce evidence showing the reasonable possibility of non existence of the Presumed Fact. The presumption has to be rebutted by proof and not by a statement or plausible explanation. In this regard, I have considered the evidence produced on record and gone through the authorities filed in support of defence by the accused.
11.Ld. Counsel for accused contended that the present case is false as pursuant to Agreement to Sell dated 6.2.2010 in respect of the property no.A149, complainant could not fulfill her part of [CASE NUMBER] agreement and her earnest money of Rs.3.00 lac stood forfeited. It is argued that a prior notice was sent to complainant, mentioning the factual position but she still chose to present the cheque with the bank. It is argued that she also replied the notice of accused vide letter dated 29.6.10. It is argued that all the transactions were between the complainant and accused no.1's husband and accused no.1 has no concern whatsoever with the same.
12.Per contra, it is contended by counsel for the complainant that from evidence, it is proved that the cheque in question was signed by accused which was dishonoured and despite service of legal notice, accused did not make payment. It is argued that accused has failed to discharge the burden cast upon her to rebut the presumption in favour of complainant under the provisions of [ACT].
13.After having dwelt upon the law as regards presumptions and burden of proof in matters under [SECTION] of the "Act", let us have a glance at the material on record. The case of the complainant is that towards discharge of legal liability, she was handed over cheques in question by the accused, which was not honoured. The defence of the accused is that there is nothing on record to support the averments of complainant.
14.The defence as put up by accused as revealed from the particulars [CASE NUMBER] 7/11 explained to her while serving notice U/[SECTION] [ACT] is meritless. Accused has not denied of issuance of cheque in question to the complainant. Her defence is that complainant had misused the cheque in question after getting the same forcibly in the police station with her signatures before police officials of P.S. Loni, Ghaziabad, U.P. The ingredients of [SECTION] [ACT] are entirely attracted to the factual matrix and thus his liability.
15.The accused in her statement recorded on 18.07.2013 denied of having received statutory legal notice. The legal notice was dispatched interalia through registered AD post and [ACT]. It is not the case of accused that the she was not residing at the stated address. Where any letter properly addressed to the recipient is sent and posted by registered post, then unless the contrary is proved, it shall be deemed that the notice has reached the recipient in the ordinary course of post. In this connection the judgment reported as [PRECEDENT] would be fruitful, wherein it was observed : "[SECTION] gives rise to a presumption that service of notice has been effected when it is sent o the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the [CASE NUMBER] 8/11 notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station" due service has to be presumed. [[PRECEDENT]; [PRECEDENT] and [PRECEDENT] [PRECEDENT]. It is, therefore, manifest that in view of the presumption available under [SECTION] of the Act, it is not necessary to aver in the complaint under [SECTION] of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
There is only a bare and flat denial by accused, who has not made any endeavour to rebut the presumption. In terms of [SECTION] of [ACT], there is presumption of valid service. It was for the accused to rebut the presumption but no evidence has come up. The plea of defence that the cheque was forcibly obtained from her at P.S. Loni holds no ground in the absence of any evidence in rebuttal.
16.In defence, accused examined her husband Mr. [ENTITY] [CASE NUMBER] 9/11 Sharma as DW1 and Smt. [ENTITY] W/o Sh. [ENTITY] as DW2. Considering the evidence, this court opines that the same is not supported by any document and is only a bald and oral version witnesses. No complaint was ever filed in respect of the forcible taking of signatures by accused against police officials at P.S. Loni, Ghaziabad. Defence has failed to canvass any good ground for the cheque in question given to the complainant and thus cannot take shield under the armour of plea that complainant had obtained the cheque forcibly and misused the same. It was the liability of the accused to bring positive evidence, in the wake of disputing the liability by her, when she was defending a presumption, which was supporting the dishonoured cheque. The forbearance of the accused in bringing before the court, the best evidence, renders complainant's case proved.
17.Having gone through the provisions of [SECTION] of the Act, it is clear that evidence U/[SECTION] [ACT] casts a criminal liability punishable with imprisonment or fine or both on a person who issues a cheques towards the discharge of a debt or liability as a whole or in part and the cheques is dishonoured by bank on presentation. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the [CASE NUMBER] 10/11 cheques in question within 15 days from receipt thereof. The complaint has fulfilled all the ingredients of [SECTION] of the [ACT]. Accordingly, accused is guilty for committing the offence U/[SECTION] [ACT].
ANNOUNCED IN OPEN COURT Dated : 28th September, 2013 (MS. [ENTITY]) [ENTITY].
[CASE NUMBER] IN THE COURT OF MS. [ENTITY], [PRECEDENT].
[PRECEDENT] [ENTITY].
[CASE NUMBER] [CASE NUMBER] U/[SECTION] [ACT] P.S. : Shahdara ORDER ON THE QUANTUM OF SENTENCE 28.09.2013 : Present : Complainant [ENTITY] in person with counsel. Convict [ENTITY] on bail with counsel Sh. [ENTITY].
Vide separate judgment passed and announced in the open court on 28.09,2013, accused is held guilty and convicted for an offence under [SECTION] [ACT].
I have heard the convict and her counsel on the point of Sentence.
1. Ld. Counsel for convict submits that convict is unable to pay huge amount. It is stated that she has clean record and is appearing religiously from the day of inception of the complaint. Ld. Counsel requests for taking lenient view against the convict.
[CASE NUMBER] 12/11
2. Per contra, Ld. Counsel for complainant states that convict has tried to prolong the matter on one pretext or the other. It is further stated that since the convict had issued the cheque in discharge of liability and her guilt has been established beyond any doubt, she be punished with maximum punishment provided and she does not deserve any leniency. Referring to the judgments of superior Courts regarding provisions U/[SECTION] [ACT] and [SECTION] of [ACT], Counsel has prayed for compensation considering the conduct of the Convict. Therefore, Ld. Counsel for complainant has prayed for taking strict view under the provisions of [ACT].
3. I have heard respective parties at bar. Sentencing is a judicial discretion and Court should not shy away from sentencing the convict adequately in befitting circumstances. The offence under [SECTION] [ACT] has been introduced to encourage greater vigilance to prevent the usual callous attitude of drawer of cheques and to lend greater credibility to the transactions. The offence U/[SECTION] of [ACT] is technical in nature and the mandate of legislature is to try such cases in a summary fashion in order to expedite the trial. Instead of sending a message of deterrence to the public to refrain itself from indulging into such practices, it is rather encouraged to get the cheques frequently dishonoured and thereafter refuse to make their payment to the persons entitled to receive their legitimate dues, thereby [CASE NUMBER] compelling them to knock the doors of justice which is always delayed and hence, impliedly denied to them as well. This results into further enhancement of pain and sufferings of complainant who is compelled to wander in the corridors of justice for years.
4. The situation can only be changed if courts of law come to the rescue of complainant and start awarding severe punishments which would send a deterring message among the law violators to avoid such litigations or to prolong it for years.
5. In view of the aforesaid discussion, I am of the considered opinion that interest of justice shall be best served if convict is awarded appropriate sentence and accordingly, I sentence the convict to undergo Rigorous Imprisonment for one year and also sentence her to pay a fine of Rs.5.00 lac out of which, Rs.4.5 lac shall be payable to complainant as compensation. In default of payment of fine, convict shall have to serve Simple Imprisonment for six months.
6. Copy of judgment and order of sentence be given dasti to the accused free of costs.
File be consigned to record room.
ANNOUNCED IN OPEN COURT Dated : 28th September, 2013 (MS. [ENTITY]) [ENTITY].
[CASE NUMBER] 14/11