IN THE COURT OF MS. [ENTITY], [ENTITY], DWARKA COURTS, DELHI [CASE NUMBER] PS : Malviya Nagar U/[SECTION] [ACT] [ENTITY] Through its AR, Sh [ENTITY], Having its registered office At T220, II nd Floor, Savitri Nagar Malviya Nagar, New Delhi110 017 Complainant Versus [ENTITY] S/o Late Sh. Deen Dayal B9, Central Market Madangir, New Delhi110 062 Accused Date of Institution : 24th April, 2009 Plea of accused : Pleaded not guilty Date on which judgment was reserved : 07th March, 2011 Order : Convicted Date of decision : 18th March, 2011 J U D G M E N T :
1. The complainant version is that the accused had approached the complainant bank for a personal loan of Rs. 50,000/ and consequent thereto the accused availed loan Agreement no. DP00068 dt. 18.01.2008 from the complainant bank. In discharge of the part of the above said liability for the outstanding amount pending against the accused, he issued cheque bearing no. 998293 dt 11.02.2009 in the sum of Rs. 69,700/. On presentation, the said cheque were returned unpaid with the remarks "Insufficient Funds" vide return memo dt. 12.02.2009. The complainant issued a legal demand notice dt. 04.03.2009 to the accused and the same was duly served upon the accused. Accused did not pay the cheque amount within statutory period.
2. In the background of above facts, complainant has filed this case. The complainant led pre summoning evidence by way of affidavit and summons were issued against the accused vide order dt. 09.06.2009 for the offence under [SECTION] [ACT] known as the Act) and notice under [SECTION] [ACT] dt 18.05.2010 was served upon the accused for committing offence u/[SECTION] of the Act to which he pleaded not guilty and claimed trial.
3. In order to prove its case the authorized representative of the complainant got himself examine as CW1 and reiterated the contents of the complaint on oath before the Court and filed an affidavit in evidence which is Ex. CW1/1. He exhibited Power of Attorney in his favour as Exhibit CW1/A whereby he was authorized to file the complaint and depose in the Court; Cheque in question as Exhibit CW1/B; Cheque returning memo as Exhibit CW1/C; Legal notice of demand alongwith postal receipts, UPC and Courier receipts as Exhibits CW1/D (colly).
4. The complainant also examined Sh. [ENTITY], Special Assistant in SBI, Saket as CW2 and Sh. [ENTITY], Associate executive in J & K Bank, Greater [ENTITY] as CW3 to prove that the cheque in question was dishonoured for reason of insufficient funds.
5. CW1 has placed on record a document Mark C1 to show that complainant is authorized to advanced loans by RBI. During his cross examination CW1 submitted that cheque in question was given to the complainant by the accused when accused had come to the complainant for settlement. He admitted that except the signature all the other details mentioned in the cheque Ex. CW1/B are filled by officials of the complainant.
6. The statement of accused was recorded under [SECTION] [ACT] in which all the incriminating evidence was put to the accused, [ENTITY]. In reply of the said incriminating evidence the accused submitted that no legal notice was served upon him and he had given the cheque in question as security to the complainant after signing the same. He did not fill the details mentioned in the cheque in question and he has no liability to pay the cheque in question . As per his records he has liability to pay only Rs. 48,000/ to the complainant.
7. In his defence the accused examined himself as DW1 and stated on oath that he had given 12 PDC cheques and one blank cheque to the complainant at the time of taking loan. He had paid 3 installments to the complainant dt. 22.02.2008, 25.03.2008 and 28.04.2008 mark 13. He exhibited bank statement from 17th July 2007 to 22nd December 2010 as Ex. DW1/A to show that he had paid 3 EMIs for the loan and stated that no settlement has been arrived between him and the complainant.
8. During cross examination DW1 admitted that the loan agreement was executed on 21.01.2008 for a total sum of Rs. 50,000/. Further, he stated that he had to repay a total sum of Rs. 63,504/ to the complainant. He fully understood the terms and conditions of the said loan agreement before signing the same. He admitted that he has not repaid the complete loanamount to the complainant. Accused further admitted that he had received the legal notice of demand, Ex.CW1/D.
9. The case was fixed for final arguments. I have heard Ld. Counsel for the accused Sh. [ENTITY] and Ld. Counsel for the complainant Sh. [ENTITY]. Counsel for the accused has relied on the case laws; [PRECEDENT]; [PRECEDENT]. Whereas counsel for the complainant has relied on the cases of [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT], [PRECEDENT] in support of his arguments.
10. The main ingredients of the [SECTION] of the Act are as follows: The accused issued cheque on an account maintained by him with a bank.
The said cheque has been issued in discharge of any legal debt or other liability. As per the explanation given in [SECTION] of the Act, debt or other liability means a legally enforceable debt or other liability.
The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
When the aforesaid cheque was presented for encashment, the same was returned unpaid / dishonored.
The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
11. If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/[SECTION] of the Act. Keeping in mind the above stated ingredients, appreciation of evidence and material on record is required.
12. In this case it is admitted case of both the parties that cheque in question was signed by the accused. It is further admitted case that accused had entered into an agreement for grant of loan of Rs.50,000/ with the complainant . Thus, the initial onus for raising presumption u/[SECTION] of the Act is discharged by the complainant. Now it was for the accused to rebut the said presumption by leading direct evidence or by showing preponderance of probabilities in his favour. Accused has relied on Statement of account Ex. DW1/A in his defence. After going through the document Ex. DW1/A, it is nowhere established that the payments against the loan in question were being made by the accused neither it shows that payments were made against the cheque in question. Keeping in mind the above discussion, accused has not rebutted the presumption u/[SECTION] of the Act drawn in favour of the complainant.
13. The counsel for the complainant has contended that the cheque in question has been filled by the complainant after settlement was arrived at between the parties as per the outstanding dues against the accused. Counsel for the accused has argued that no such settlement took place as no settlement letter has been filed on record by the complainant. He, relying on the case law M/s Alliance Infrastructure Project Pvt Ltd. (supra) has argued that the payee of the cheque is to present the cheque for payment of only that much amount which is due to him after giving credit for the part payment made after the issuance of the cheque. He contended that the complainant presented the cheque for encashment of the whole amount due against the accused. Whereas the accused has already made payments of 3 installments as shown in statement of account, Ex.DW1/A. So, the accused is not liable to make the payments.
14. Counsel for the complainant has drawn the attention of the Court to the cross examination of the CW1 where he stated that accused was supposed to repay the loan in 12 installments of Rs. 5,292/ each. Accused has given only two installments to the complainant. The amount of loan was to be repaid from 20th Feb. 2008 to 20th Jan. 2009. As per record, accused was supposed to pay an amount of Rs. 63504/ on or before 20.01.2009. He contended that from the cross examination of the CW1 it is clearly explained that on 20.02.2009 the liability of the accused to pay the loan amount was more than Rs. 63504/. Further, he contended that cheque bounce charges and interest on default made by the accused were included at the time of filling of cheque in question Ex. CW1/B as per the terms and conditions of the agreement executed between the parties.
15. It is clear that the monthly installments were not being paid regularly to the complainant. Even though not relied by the parties in the case of [PRECEDENT], it is held that where issue of cheque is not denied by the accused, then onus is on him to prove as to how and why the cheque in question was issued. In this case no documentary evidence, whatsoever, was produced by the accused to substantiate his stand. The complainant has been able to well explain the basis on which the cheque amount has been filled after settlement was arrived at between the parties. In these circumstances, presumption under [SECTION] of the Act is raised in favour of the complainant and is not rebutted by the accused in this case.
16. Another offshoot of the probable defence of the accused is that cheque in question was a security cheque. Accused has stated in his defence that the cheque was given to the complainant for security purpose. Complainant has stated in cross examination that the cheque was not for security purpose. Thus, the situation is evenly poised. In order to believe any one version, I have to see the totality of facts and circumstances of this case as neither party has given any evidence in support of their version except asserting themselves.
17. CW1 in his evidence has stated that cheque in question was issued by accused in discharge of his legally enforceable liability. DW1 submitted that he did not know what is the meaning of a security cheque. He stated that he had given the security cheque as EMIs cheque as a security of his loan account executed between him and the complainant.
18. The accused has no where led any documentary evidence regarding it being a security cheque. Further from the cross examination of the accused it is clear that he does not know the meaning of the security cheque. Also during cross examination accused submitted that it was wrong to suggest that he had given the cheque in question after signing the same which is opposite to what he had stated at the time of notice u/[SECTION] [ACT] and his statement u/[SECTION] [ACT]. Thus, the accused has been making vague and contradictory statements. At many places the accused has used the words EMI and Security Cheque which clearly shows that the accused is equating the EMIs cheques to security cheques. Moreover, during cross examination the accused has admitted his liability to make payment of the loan amount.
19. Even if we believe that the cheque in question was given blank signed by the accused, then it is not going to help the cause of accused. Here it is worthwhile to mention the case law of [PRECEDENT], wherein it is stated that prima facie when a person hands over an undated cheque for a certain amount to the opposite party, then he gives authority to the opposite party to complete the necessary details in the said cheque. Since an undated cheque cannot be encashed, it can only mean that the accused in this case, had authorized the complainant to enter an appropriate date on it. Accused in this case has not raised the probable defence that cheque in question was not in the hand of holder in due course.
20. In the case in hand, the signature on the cheque in question is that of the accused is not disputed. The accused has stated that the said cheque was issued by him in favour of the complainant. Keeping in mind the observations of the higher Courts mentioned above, it matters little if the name of the payee, date and amount are filled up at a subsequent point in time.
21. As per the conclusion of previous issues presumption u/[SECTION] and [SECTION] [ACT] are raised in favour of the complainant and against the accused. Thus, the Court is of the view that cheque in question was given against the legal enforceable liability and not as a security cheque.
22. Thus, in the given factual matrix, only one view is possible and which is that the accused has not paid the cheque amount in question, due against him. Keeping in view the discussion above made, the complainant is able to prove the ingredients of [SECTION] of the Act beyond reasonable doubt. Accused is not able to make out a probable defence in his favour.
23. The accused is convicted under [SECTION] of the Act.
24. List for hearing the convict on the quantum of sentence on 26th March, 2011.
Announced in the open Court [ENTITY] on this 18th day of March, 2011 Metropolitan Magistrate Dwarka Courts, Delhi.
All pages signed. IN THE COURT OF MS. [ENTITY], [ENTITY], DWARKA COURTS, DELHI [CASE NUMBER] PS :Malviya Nagar U/[SECTION] [ACT] [ENTITY] Through its AR,Sh. [ENTITY], Having its registered office At T220, II nd Floor, Savitri Nagar Malviya Nagar, New Delhi110 007 Complainant Versus [ENTITY] S/o Late Sh. Deen Dayal B9, Central Market Madangir, New Delhi110 062 Accused Order on sentence.
Present: Sh. [ENTITY], counsel for the complainant with AR Sh. [ENTITY].
Convict in person with counsel Sh. [ENTITY]. I have heard the convict as well as the counsel for complainant, on the point of sentence. The convict is middle aged man of about 42 years and has family to maintain. Further it is submitted that convict is having poor financial condition. Counsel for the convict submits that a lenient view may be taken against him. Whereas the complainant has submitted that maximum sentence be awarded to the convict for the reason that the defence of the convict is palpably false . He has prayed for imposing maximum sentence.
Keeping in view the nature of the offence and the given facts and circumstances of the present case and taking into consideration, economic, social and family background of the convict, I sentence the convict to imprisonment till the rising of the Court and to pay Rs. 72,000/- as compensation to the complainant within one month from today in default the convict shall undergo SI for a period of three months.
Copies of this judgment are given to the convict free of cost. Announced in the open Court ([ENTITY]) on this 30th March, 2011 Metropolitan Magistrate Dwarka Courts, Delhi.
At this stage, an application for suspension of the sentence is moved by the convict through his counsel today in the Court. Heard. Allowed. Sentence of the convict is suspended till 30.04.2011 to enable him to file an appeal or to serve the sentence. Convict is admitted to bail on his furnishing a personal bond and surety bond in the sum of Rs. 30,000/-. Bond furnished and accepted.
([ENTITY]) Metropolitan Magistrate Dwarka Courts, Delhi.
30.03.2011