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4550a6d284bf-9 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | 11. WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF VALIDITY Perusal of the record reveals that the cheque in question which is Ex. CW1/A is dated 19.07.2007 which got dishonored vide cheque returning memo which is Ex. CW1/B dated 21.07.2007 which is not disputed by the accused clearly shows that the cheque has been presented within period of its validity i.e. within six months from the date of issuance of the cheque.
12. DISHONOUR OF CHEQUE IN QUESTION In the instant case, Satish Kumar Garg who has appeared as complainant's witness has got exhibited the cheque returning memo which is Ex. CW1/B to prove the fact of dishonour of the cheque in Case No. 223/12 Madhav Cooperative Vs Alamgeer 10 of 20 question. Complainant also examined bank witness Sh. Bikesh Sharma, to prove the dishonor of the cheque who correctly identified the cheque Ex. CW1/A and return memo Ex. CW1/B and stated that the same was issued by their bank mentioning 'insufficiency of funds' as the reason of dishonor. He produced the statement of account of the accused as Ex. CW2/X and stated that as the balance of the accused was not sufficient, so the entry of dishonor is not reflected in the statement of account.
The dishonor of the cheque in question has not been disputed by the accused nor the cheque returning memo has been challenged by the accused.
Therefore considering the entire evidence on record it stands duly proved that the cheque in question was dishonored vide cheque returning memo dated 21.07.2007 which is Ex. CW1/B with the reason "Insufficient Funds". | https://indiankanoon.org/doc/187477809/ |
4550a6d284bf-10 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | 13. SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED In the instant case, Satish Kumar Garg who has appeared as complainant's witness has specifically stated in his examination in Case No. 223/12 Madhav Cooperative Vs Alamgeer 11 of 20 chief that the complainant got issued the legal notice of demand dated 13.08.2007 which is Ex. CW1/C and it was sent to the accused vide Spped Post with Regd. AD which are Ex. CW1/D and Ex. CW1/E respectively. The accused has also admitted the receipt of legal notice of demand during framing of notice under section 251 CrPC and while answering to the question during his statement U/s 313 r/.w 281 Cr.PC as well as his examination in chief.
In light of the evidence on record and the admission made by the accused, it stands proved that legal notice of demand was properly served upon the accused.
14. WHETHER THE CHEQUE IN QUESTION WAS ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY In the case in hand, Satish Kumar Garg who has appeared as complainant's witness has specifically stated in his examination in chief by way of affidavit that the accused was irregular in making payments and settled his account with the complainant for a sum of Rs. 29,200/ and issued the cheque in question in discharge of that Case No. 223/12 Madhav Cooperative Vs Alamgeer 12 of 20 liability.
The accused has however deposed in his examination in chief that he had issued cheque in question to the complainant before the disbursement of loan as blank signed cheque, by way of security only and the same has been misused by the complainant. | https://indiankanoon.org/doc/187477809/ |
4550a6d284bf-11 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | Before deciding this issue let us go through the relevant provisions of law.
Section 46 of the Negotiable Instruments Act speaks of the delivery, it reads as follows: "The making, acceptance or endorsement of a promisory notice, bill of exchange or cheque is completed by delivery, actual or constructive."
Section 118 (b) of the Negotiable Instruments Act provides that until the contrary is proved, the following presumption shall be made.
(b) As to date that every Negotiable Instrument bearing a a date was made or drawn on such date.
Moreover, there is a presumption in favour of the complainant Case No. 223/12 Madhav Cooperative Vs Alamgeer 13 of 20 u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
Now the Court shall examine whether the accused is successful in rebutting the presumption as contemplated by Section 118 (b) and Section 139 of Negotiable Instruments Act. | https://indiankanoon.org/doc/187477809/ |
4550a6d284bf-12 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | To rebut the presumption of section 139 of NI Act and section 118 (b) of NI Act, the sole ground of defence taken by the Ld counsel for accused is that the cheque in question was given to the complainant as blank signed cheque by way of security prior to the sanctioning of loan and that the cheque in question was issued by the Case No. 223/12 Madhav Cooperative Vs Alamgeer 14 of 20 accused in blank with only his signatures. | https://indiankanoon.org/doc/187477809/ |
4550a6d284bf-13 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | To support this contention, the accused has failed to bring anything on record. DW2 Shama Begum, who is the wife of the accused has also stated in her examination of chief that the accused gave the cheque of ICICI Bank to the complainant for loan. A Security cheque if issued for any debt payable in presenti but such payment has been deferred to a future debt can be subject matter of proceedings under section 138 NI Act. In the present case, even it is presumed that the cheque has been issued for security purpose, it was meant for discharge of debt but the payment of which has been deferred to a future date. In this regard, the Hon'ble High Court of Delhi has observed in its judgment titled as Krish International P. Ltd & Ors Vs. State & Ors. MANU/DE/0302/2013 as : "9. There is no dispute that the proposition of law as laid down in M/s Collage Culture that a cheque issued not for an existing due but issued by way of security would not attract the provisions of Section 138 of the Act. In M/s Collage Culture the learned Single Judge of this Court (Pradeep Case No. 223/12 Madhav Cooperative Vs Alamgeer 15 of 20 Nandrajog, J.) drew distinction between a cheque issued for a debt in present but payable in future and second for a debt which may become payable in future upon the occurance of a contingent event. Paras 20 to 24 of the report in M/s Collage Culture are extracted hereunder :
20. A post dated cheque may be issued under 2 circumstances. Under circumstance one, it may be issued for a debt in presenti but payable in future. Under Second circumstance it may be issued for a debt which may become payable in future upon the occurrence of a contingent event. | https://indiankanoon.org/doc/187477809/ |
4550a6d284bf-14 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | 21. The difference in the two kinds of postdated cheques would be that the cheque issued under first circumstance would be for a debt due, only payable being postponed. The latter cheque would be by way of a security.
22. The word 'due' means 'outstanding at the relevant date'. The debt has to be in existence Case No. 223/12 Madhav Cooperative Vs Alamgeer 16 of 20 as a crystallized demand akin to a liquidated damages and not a demand which may or may not come into existence; coming into existence being contingent upon the happening of an event." Hence, it is sufficiently proved on record that the cheque in question was not issued by way of security but for payment of the amount received by the accused from the complainant.
Further, even if we assume that the cheque in question was issued by the accused in blank with only his signatures, even then the law has been clearly laid down in this regard by Hon'ble Delhi High Court in M/s Jammu & Kashmir Bank vs. Abhishek Mittal, 2012 CD DCR 189, that : "When a blank cheque is signed and handed over, it means that the person signing it has given the implied authority to the holder of the cheque, to fill up the blanks which he has left. A person issuing a blank cheque is supposed to understand the consequences of Case No. 223/12 Madhav Cooperative Vs Alamgeer 17 of 20 doing so. He cannot escape his liability only on the ground that blank cheque has been issued by him." | https://indiankanoon.org/doc/187477809/ |
4550a6d284bf-15 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | "Once issuance of the cheque been admitted or stands proved, a presumption arises in favour of the holder of the cheque that he had received the cheque of the nature referred to under Section 138 of the Act for the discharge, in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the Act for discharge, in whole or in part of any debt or any other liability. Of course, this presumption is a rebuttable presumption and same can be rebutted only by the person who had drawn the cheque."
Thus, the accused has failed to rebut the presumption under section 118 (b) of Negotiable Instruments Act. Therefore, presumption under section 118 (b) holds good and according to which cheque was issued by the accused in discharge of his legal Case No. 223/12 Madhav Cooperative Vs Alamgeer 18 of 20 liability.
Therefore, Court is of the considered opinion that the complainant has sufficiently been able to prove its case that the cheque in question was issued by the accused in discharge of his legal debt or liability.
15. THE DRAWER OF THE CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF SAID NOTICE In the instant case Sh. Satish Kumar Garg who has appeared as complainant's witness has deposed in his examination in chief by way of affidavit that despite service of legal notice of demand accused has failed to pay the cheque amount.
Considering the evidence on record it stands proved that the accused has failed to make the payment of the cheque amount within 15 days of the receipt of legal notice of demand. | https://indiankanoon.org/doc/187477809/ |
4550a6d284bf-16 | Case No. 223/12 Madhav ... vs Alamgeer 1 Of 20 on 22 February, 2014 | 16.In view of the aforesaid discussion, I am of the considered Case No. 223/12 Madhav Cooperative Vs Alamgeer 19 of 20 opinion that the complainant has sufficiently proved its case against the accused. All the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused Alamgeer S/o Sh. Rafiq Ahmed is hereby convicted of the offence u/s 138 Negotiable Instruments Act. Let copy of this judgment be given free of cost to the convict.
Announced in the open court
today i.e. 22.02.2014 (MANU GOEL KHARB)
METROPOLITAN MAGISTRATE
DWARKA COURTS, NEW DELHI
Case No. 223/12 Madhav Cooperative Vs Alamgeer 20 of 20 | https://indiankanoon.org/doc/187477809/ |