Delhi District CourtUnknown vs . Bratindranath Banerjee (2001) 6 Scc ... on 11 March, 2020IN THE COURT OF SHRI SUSHIL KUMAR,\n METROPOLITAN MAGISTRATE, NORTH-WEST-03, ROHINI\n                COURTS, DELHI\n\nCC No. : 7596/2016\n\nSh. Prem Kumar Chhabra S/o Sh. Shanu Ram,\nR/o: E-8, Prashant Vihar, Delhi.\n                                                                  ....Complainant\n\n v.\n\nJagdish Raj S/o Sh. Janak Raj,\nR/o 45, Siddharta Appartments, Paschim Vihar,\nNew Delhi.\n                                                                    ....Accused\n\nDate of institution of case                 :             17.11.2012\nDate of reserving the judgment              :             24.02.2020\nDate of pronouncement of judgment :                       11.03.2020\n                               JUDGMENT1. S. No. of the Case:                              7596/2016\n2. Date of institution of the case:                 17.11.2012\n3. Name of the complainant:                         Sh. Prem Kumar Chhabra\n4. Name of the accused:                             Jagdish Raj\n5. Offence complained or proved:                   138N.I. Act6. Plea of Accused:                                 "Not Guilty"\n7. Final Order:                                     Convicted\n8. Date of Final Order:                             11.03.2020\n\n\nBRIEF FACTS AND REASONS FOR DECISION\n\n\nCC No. 7596/16        Prem Kumar Chhabra v. Jagdish Raj         Page No.1 of 131.     Vide this judgment, this Court shall dispose of the present\ncomplaint filed by the Complainant against the above-named accused\nundersection 138read withsection 142of Negotiable Instrument Act,\n1881 (hereinafter referred to asN.I. Act) for dishonour of cheque bearing\nno.247948 dated 25.09.2012 drawn on IDBI Bank, Sector-3, Rohini\nBranch, Delhi, issued by accused in favour of complainant for a sum of\nRs. 8,00,000/-.2.     The brief facts of the case as averred by the complainant in his\ncomplaint are that complainant and accused are having a good friendly\nrelations for the last many years and having visiting terms with each\nother. That the accused approached and requested complainant for a\nfriendly loan as he was facing financial crisis and want to come out of\ndire financial crisis with the help of the friendly loan. That upon the\nrequest of the accused, complainant gave friendly loan to the accused\nfrom time to time in installments and Rs.8,00,000/- (Rs. Eight Lacs\nOnly) became outstanding towards the accused and the accused assured\nthe complainant to repay the friendly loan.That accused in discharge of his liability, issued a cheque bearing\nbearing no.247948 dated 25.09.2012 drawn on IDBI Bank, Sector-3,\nRohini Branch, Delhi, issued by accused in favour of complainant for a\nsum of Rs. 8,00,000/- towards the repayment of aforesaid amount.3.     That thereafter, complainant presented the cheque in question\nthrough his banker but the cheque in question was returned dishonoured\nwith cheque return memo dated 28.09.2012 with the remarks\n\nCC No. 7596/16      Prem Kumar Chhabra v. Jagdish Raj   Page No.2 of 13\n "DRAWER'S SIGNATURE DIFFERS". That, thereafter, a legal notice\ndated 15.10.2012 was sent to accused through registered AD and\nCourier, however, despite service, accused failed to make payment\nagainst the cheque in question within the stipulated period. Therefore,\nthe complainant was constrained to file the present complaint.4.     After taking pre-summoning evidence, the Court took cognizance\nof the offence undersection 138NI Act and directed issuance of process\nagainst accused. In pursuance thereof, accused appeared before the Court\nand furnished Court Bail.5.     Notice undersection 251Cr.PC was framed against the accused on\n02.07.2015 to which he pleaded not guilty and claimed trial. Accused\ntook the defence that the cheque in question bears his signatures but the\nparticulars were not filled in by him. He further took the defence that the\ncheque in question was a security cheque.6.     In her evidence, the complainant has examined herself as CW-1 by\nway of tendering an affidavit of evidence. CW-1 was cross-examined at\nlength by Ld. Counsel for accused. The complainant placed reliance on\nthe following documents :-i) the dishonoured original cheque bearing no. 247947 as Ex. CW1/A;ii) the original cheque return memo dated 28.09.2012 as Ex. CW1/B;iii) the copy of legal notice dated 15.10.2012 as Ex. CW1/C;iv) Original postal receipts as Ex. CW1/D and Ex. CW1/E.v) Original Tracking Report for RD122800195IN is Ex. CW1/F.\n\nCC No. 7596/16     Prem Kumar Chhabra v. Jagdish Raj    Page No.3 of 137.     Thereafter, CE was closed. It was followed by recording of\nstatement of accusedu/s 313Cr.PC. All the incriminating evidence was\nput to accused to which he pleaded innocence and false implication.\nAccused wished to lead DE. Matter was posted for defence evidence.8.     In his Defence Evidence, accused has examined himself as DW-1\nalong with three other defence witnesses namely Sh. Manoj Kumar\n(DW-2), Sh. Pradeep Kumar (DW-3) and Sh. Ankur Saggar (DW-4).DW-1 / accused deposed that he was engaged in the business of\nproperty dealing and used to purchase and sell the properties. That he\nused to take the money from the complainant. That he took\napproximately Rs.3 crores from the complainant and in lieu of that, he\ngave the title documents of the properties. That he also gave blank\ncheques as security to the complainant and he also gave the title\ndocuments of the flats bearing no.444-445, Sector-B-4, Pocket-6, Narela,\nDelhi. That he also gave title documents of the property bearing no.C-\n100, Bindapur as security to the complainant including the cheques in\nquestion. That he returned back the loan of Rs. 3 crores to the\ncomplainant and that now Rs.35 lacs including interest of Rs.24 lacs\nwere outstanding towards him. That the complainant has not returned\nback the title documents of the aforesaid properties. That the\ncomplainant is engaged in the business of money lending without having\nproper licence.During cross-examination of DW-1 by Ld. Counsel for\ncomplainant, he deposed that he had taken the loan from the complainant\nof Rs.3 crores during the period 2009-10. He further testified that\n\nCC No. 7596/16    Prem Kumar Chhabra v. Jagdish Raj   Page No.4 of 13\n property bearing no.444-445, Sector-B-4, Pocket-6, Narela, Delhi are in\nhis name and property no.C-100, Bindapur, Delhi is in the name of his\nson Ankur Saggar (DW-4). He further testified that he had given the\noriginal files of aforesaid properties to the complainant. DW-1 was\nconfronted with Sale Deeds which is Ex. DW-1/C1 (colly) and Ex. DW-\n1/C2 (colly) whereby the registry of the aforesaid properties are done by\naccused in favour of one Mr. Dharmender. DW-1 / accused voluntarily\ndeposed that he had given the property documents to the complainant\nand at complainant's instance, he had transferred the property to one Mr.\nDharmender, who is relative of complainant. DW-1 further deposed that\nit was agreed that the property would again registered in his name after\nhe would return the loan amount taken by him from the complainant. It\nis interesting to mention that DW-1 admitted in his cross-examination\nthat as on date of cross-examination i.e., 27.10.2016, he owe an amount\nof Rs.30 lacs to the complainant. DW-1 admitted that he had not taken\nany steps for recovery of his property papers from the complainant.DW-2 Sh. Manoj Kumar deposed that the accused Jagdish Raj\nhad taken money from the complainant in the year 2011 and the said\ntransaction did not take place in his presence. He further testified that\naccused had returned the amount of Rs.26 lacs to the complainant in his\npresence in the month of October-November, 2011 itself. He further\ndeposed that complainant at that time was also having property papers of\naccused and in his presence, complainant told the accused to return the\nremaining amount and take back his property papers qua the property\nbearing no.A-6, Narela, Flat No.444-445 and also qua the property at\nBindapur. That complainant is doing the business of money lending on\n\nCC No. 7596/16     Prem Kumar Chhabra v. Jagdish Raj   Page No.5 of 13\n interest basis.During cross-examination of DW-2 by Ld. Counsel for\ncomplainant, he testified that no receipt was ever executed between the\naccused and complainant pertaining to receiving of Rs.26,00,000/- by\ncomplainant. He voluntarily deposed that in a plain paper, it was written\nthat complainant had received Rs.26 lacs from the accused and now\nbalance amount is Rs.35 lacs. He further testified that an agreement was\nalso executed between the complainant and the accused person in his\npresence (Mark-A). He testified that he had not signed on the receipt but\nhe had signed on the agreement (Mark-A) as a witness. He denied the\nsuggestion that he had not signed the receipt as the same was prepared in\nhis presence. He further denied the suggestion that he had signed on\nAgreement Mark-A as witness later on being a friend of accused. He\nfurther deposed that apart from receiving Rs.26 lacs by the complainant,\nno other transaction took place in his presence.DW-3 Sh. Pradeep Kumar deposed that he had also taken money\nfrom the complainant at the interest @ 4% per month after mortgaging\nthe property papers belonging to his father. That he had also given blank\nsigned cheque to the complainant along with an affidavit. That accused\nJagdish Raj had returned the amount of Rs.26 lacs to the complainant in\nhis presence on 25.12.2011 as the complainant had taken the property\npapers of the accused for giving loan of Rs.61 lacs.During cross-examination of DW-3 by Ld. Counsel for\ncomplainant, he deposed that he does not have documentary proof\nregarding the loan taken by him from the complainant. He voluntarily\ndeposed that he had returned the loan amount, therefore, he does not\n\nCC No. 7596/16        Prem Kumar Chhabra v. Jagdish Raj   Page No.6 of 13\n have any documentary proof regarding the loan and the document was\nalso returned to complainant. He further testified that he does not have\nany documentary proof regarding the payment of loan amount made by\naccused to complainant but the same was returned in his presence. He\ndenied all the suggestions put by Ld. Counsel for complainant.DW-4 Sh. Ankur Saggar deposed that he handed over the\nproperty title documents of the property bearing flat no.B-4/444-445,\nNarela, Delhi and Flat No.C-100, Bindapur, Delhi, which is in his name\nto complainant and his father also handed over three signed blank\ncheques of IDBI Bank, Sector-7, M2K, Rohini, Delhi as security. That he\nalso handed over Rs. 26 lacs to complainant in his presence on\n25.12.2011 and there is outstanding balance amount of Rs.35 lacs. That\nthe complainant instructed them to transfer the property bearing Flat\nNo.B-4/111-445, Narela, Delhi, in the name of his relative and at the\ntime of clearing the said amount, he will hand over the title documents of\naforesaid two properties along with three signed blank cheques to his\nfather. That the complainant had misused the three cheques and filed the\nfalse case against the accused.During cross-examination of DW-4 by Ld. Counsel for\ncomplainant, he deposed that an agreement was executed between the\naccused and complainant and he had signed on the said agreement as\nwitness. He further deposed that he had handed over the document of\nproperties bearing No.C-100, Bindapur and B-444-445, Narela, Delhi on\ndated 25.12.2011 or 26.12.2011. He voluntarily deposed that property\nbearing no.B-444-445, Narela, Delhi was transferred in the name of\nrelative of the complainant and he does not remember the date of\n\nCC No. 7596/16     Prem Kumar Chhabra v. Jagdish Raj   Page No.7 of 13\n transfer. He testified that as on date, his father has to pay Rs.35 lacs to\ncomplainant. He failed to tell the serial numbers of cheques including the\ncheque in question which were given by his father (DW-1) to the\ncomplainant. He denied the suggestion that accused or himself had sold\nthe property as mentioned above to some third person on or before\n25.12.2011 or 26.12.2011 or to Dharmender. He testified that there was\nan agreement executed between his father (accused) and complainant\nand he had signed the same as a witness (Mark-A). Thereafter, DE was\nclosed and matter was posted for final arguments.9.     The Court has carefully perused the case record and have heard\narguments advanced by Ld. Counsel for complainant as well as by Ld.\nDefence counsel.10.    At the onset, it would be appropriate to have a glance at the\ningredients ofsection138NI Act which reads as under :"138. Dishonour of cheque for insufficiency, etc. of\n         funds in the account-Where any cheque drawn by a person on an account\n         maintained by him with a banker for payment of any\n         amount of money to another person from out of that\n         account for the discharge, in whole or in part of any debt\n         or other liability is returned by the bank unpaid, either\n         because of the amount of money standing to the credit of\n         that account is insufficient to honour the cheque or\n         agreement made with that bank, such person shall be\n\nCC No. 7596/16      Prem Kumar Chhabra v. Jagdish Raj   Page No.8 of 13\n          deemed to have committed an offence and shall, without\n         prejudice to any other provision of this act, be punished\n         with imprisonment for a term which may be extended to\n         two years, or with fine which may extend to twice the\n         amount of the cheque, or with both.Provided that nothing contained in this section shall\n         apply unless-(a) the cheque has been presented to the bank within a\n         period of six months from the date on which it is drawn\n         within the period of its validity, whichever is earlier;(b)the payee or the holder in due course of the cheque, as\n         the case may be, makes a demand for the payment of the\n         said amount of money by giving a notice n writing, to the\n         drawer of the cheque, within thirty days of the receipt of\n         information by him from the bank regarding the return of\n         the cheque as unpaid; and(c) the drawer of such cheque fails to make the payment\n         of the said amount of money to the payee or as the case\n         may be, to the holder in due course of the cheque within\n         fifteen days of the receipt of the said notice.Explanation- For the purposes of this section, " debt or\n         other liability" means a legally enforceable debt or other\n         liability."11.    Coming back to the factual matrix of the present case. In the\npresent case, accused has taken the defence that cheque in question was\n\nCC No. 7596/16         Prem Kumar Chhabra v. Jagdish Raj   Page No.9 of 13\n given by him as security and that the same has been misused by\ncomplainant. It is important to mention that accused has admitted the\nfact that the cheque in question bears his signature at the time of framing\nof notice u/s 251 Cr PC. He has further taken the defence that the other\nparticualrs in the cheque in question were not filled by him.12.Section 118(a)of NI Act provides that every negotiable instrument\nshall be presumed to have been made or drawn for consideration. The\nHon'ble Supreme Court in the case ofMallavarapu Kasivisweswara Rao\nVs. Thadikonda Ramulu Firm & Ors.AIR 2008 SC 2898 has thus held:"Undersection 118 (a)of the negotiable instruments act,\n         the court is obliged to presume, untill the contrary is is\n         proved, that the promissory note was made for\n         consideration. It is also a settled position that the initial\n         burden in this regard lies on the defendant to prove the\n         non-existence of consideration by bringing on record\n         such facts and circumstances which would lead the court\n         to believe the non-existence of the consideration either\n         by direct evidence or by preponderance of probabilities\n         showing that the existence of consideration was\n         improbable, doubtful or illegal."13.    Further, according tosection 139of NI act, a presumption is\ndrawn against the drawer and in favour of the holder that "unless the\ncontrary is proved, the holder of a cheque received the cheque for\ndischarge, in whole or in part, of any debt or liability. In Hiten P. Dalal\n\nCC No. 7596/16       Prem Kumar Chhabra v. Jagdish Raj     Page No.10 of 13\n Vs. Bratindranath Banerjee (2001) 6 SCC 16, the Hon'ble Supreme\nCourt\nhas opined as under:"22... It is obligatory on the court to raise this\n         presumption (undersection 139NI Act) in every case\n         where the factual basis for raising of the presumption had\n         been established. It introduces an exception to the\n         general rule as to the burden of proof in criminal cases\n         and shifts the onus on to the accused. Such a presumption\n         is a presumption of law, as distinguished from a\n         presumption of fact which describes provisions by which\n         the court 'may presume' a certain state of affairs.\n         Presumption are rules of evidence and do not conflict\n         with the presumption of innocence, because by the latter\n         all that is meant is that the prosecution is obliged to\n         prove the case against the accused beyond reasonable\n         doubt. The obligation on the prosecution may be\n         discharged with the help of presumptions of law or fact\n         unless the accused adduces evidence showing the\n         reasonable possibility of the non-existence of the\n         presumed fact."14.     In view of the above presumptions and above-cited judgments,\nonus was upon the accused to prove in the trial by leading cogent\nevidence that he had no liability towards complainant and that\ncomplainant has misused the cheque in question which was given by him\n\nCC No. 7596/16      Prem Kumar Chhabra v. Jagdish Raj   Page No.11 of 13\n as a security. Interestingly, at the time of framing of notice, accused has\nadmitted that the cheque in question bears his signature. Further, accused\nhas become a defence witness in the present case and being the defence\nwitness i.e., DW-1, he has testified that he had taken Rs.3 crores from\ncomplainant and in view of the same, he had given title documents of his\nproperties along with blank cheques as security to the complainant. DW-\n1 has further deposed that he had returned back the loan of Rs.3 crores to\ncomplainant and that now Rs.35 lacs including interest were outstanding.\nHe further deposed that the complainant has not returned his property\ndocuments. Thus, accused has admitted that the cheque in question bears\nhis signature. Accused has also admitted that he is also liable to pay\nRs.35 lacs to complainant. It is further interesting to mention that the\ndefence witnesses namely Sh. Manoj Kumar (DW-2), Sh. Pradeep\nKumar (DW-3) and Sh. Ankur Saggar (DW-4) have admitted that there is\nno written proof of the fact that accused had returned Rs.26 lacs to the\ncomplainant as alleged by them. Further, DW-4 who is son of accused\nhas also admitted during his cross-examination that his father (accused)\nis liable to pay amount of Rs.35 lacs to the complainant.15.    It has been argued on behalf of accused that the complainant has\nmisused the cheques given by accused as a security for the loan taken by\naccused from the complainant. However, no complaint to the police has\never been proved on record by accused to that effect during the trial.\nThus, the contention of Ld. Counsel for accused that the cheques have\nbeen misused by complainant is not maintainable. Accused has himself\nadmitted the fact that cheque in question bears his signature and that he\n\nCC No. 7596/16     Prem Kumar Chhabra v. Jagdish Raj    Page No.12 of 13\n is liable to pay amount of Rs.35 lacs to complainant. Nothing material\nwith respect to rebuttal of the presumptions raised in favour of complaint\nhas come in the cross-examination of complainant. Thus, this Court is of\nthe view that the accused has failed to rebutt the above presumptions.\nFurther, the defence argued by the accused is one which cannot be\naccepted unless compelling reasons are there.16.    Accused has failed to shake the credibility of CW-1 Prem Kumar\nChhabra. The defence of accused appears to be afterthought and same is\nbaseless. The accused in this case has not succeeded in adducing any\nevidence to rebut the presumptions raised against him.17.    In the light of above discussion, this court is of view that accused\nJagdish Raj is guilty for the offence punishableu/s 138N.I. Act and is\naccordingly convicted for the same. Let the convict be heard on the\npoint of sentence separately.                     SUSHIL        Digitally signed by\n                                                                SUSHIL KUMAR\n\n                                                  KUMAR         Date: 2020.03.12\n                                                                15:59:35 +0530\nAnnounced in open Court                          (SUSHIL KUMAR)\non 11th Day of March, 2020                    Metropolitan Magistrate-03,\n                                         North-West, Rohini Courts, Delhi\n\n\n\n\nCC No. 7596/16      Prem Kumar Chhabra v. Jagdish Raj    Page No.13 of 13