Delhi District Court
Dhaja Ram Charitable Trust vs . Dr. Jay Kumar Dixit on 3 May, 2014
IN THE COURT OF SHRI GAGANDEEP JINDAL: MM (N.I.ACT):
SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Dhaja Ram Charitable Trust Vs. Dr. Jay Kumar Dixit
CC No.1570/1/2010
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification : 02403R0518992010
Number of the case
2. Name of the complainant : Dhaja Ram Charitable Trust
74/2, Maidan Garhi Extn.,
New Delhi - 110074
Through its Chairman and
authorized officer Capt.
Dilawar Singh Sangwan
S/o Late Shri Dhajaram
R/o 8111, Sector C-8, Vasant
Kunj, New Delhi
3. Name of the accused , : Dr. Jay Kumar Dixit
parentage & residential R/o 101, Nandni Garden
address Apptts., Congress Nagar,
Nagpur (Maharashtra)
4. Offence complained of or : U/s 138 of Negotiable
proved Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and
claimed trial
6. Final Judgment/order : Convicted
7. Date of judgment/order : 03.05.2014
Date of Institution : 31.07.2010
Date of Reserving Judgment/Order : 16.04.2014
Date of Pronouncement of Judgment/Order : 03.05.2014
JUDGMENT
1. By way of the present Judgment, I shall dispose off the present complaint filed by the complainant against the accused u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as N.I. Act in short)
2. The case of the complainant is that complainant is charitable trust and Capt. Dilawar Singh Sangwan is the chairman of the complainant trust and has been authorized by the trusties to pursue the present complaint. It is further submitted that Dr. Jay Kumar (hereinafter referred to as 'accused') entered into the agreement with the complainant dated 05.01.10 for running the Amart Acupuncture Hospital owned and established by the complainant whereby the accused agreed to pay day to day expenses i.e. Staff salaries, rent of the building, advertisement, water, electricity, consumables, ration etc. In addition to the said terms, accused agreed to pay Rs.1.50 Lacs as profit sharing per month by the 7 th of every month but the accused did not abide by the terms and conditions by the end of May, 2010, an outstanding of Rs.4.30 Lacs became due. It is further submitted that accused approached the complainant and expressed his difficulties for work under the said agreement and requested to review the terms and conditions of agreement. Therefore, the terms and conditions of earlier agreement dated 05.01.10 were revised and a supplementary agreement dated 02.06.10 was executed whereby the amount of profit sharing was decreased from Rs.1.50 Lacs to Rs. 50,000/-. It is further submitted that as per supplementary agreement dated 02.06.10, accused issued two cheques No.013576 dated 02.06.10 for a sum of Rs.1.50 Lacs and No.013577 dated 05.06.10 for a sum of Rs.1 Lakh and when the said cheques were presented for encashment, the same same were firstly returned vide returning memo dated 09.06.10 with the remarks 'funds insufficient' and secondly returned vide returning memo dated 14.06.10 with the remarks 'funds insufficient'. Thereafter, complainant got issued legal demand notice dated 18.06.10 through his counsel and accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand notice. Hence, the present case was filed.
3. Notice u/s 251 Cr.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.
4. To prove his case, complainant has examined one Capt. Dilawar Singh Sangwan as CW-1 by way of affidavit Ex. CW-1/1 who has relied upon the following documents:-
(a)Resolution passed by the trusties of the complainant Ex. CW-1/X,
(b)Original cheques in question Ex. CW-1/A1 and Ex. CW-1/A2,
(c)Returning memos are Ex. CW-1/B1 & Ex. CW-1/B2,
(d)Copy of agreement dated 05.01.10 as Ex. CW-1/C1
(e)Copy of supplementary agreement dated 02.06.10 as Ex. CW-1/C2
(f)Copy of legal demand notice Ex. CW-1/D,
(a)Postal receipt etc for sending legal demand notice are Ex. CW-1/E to Ex. CW-1/G,
(b)Reply sent by the accused Ex. CW-1/H,
(c)Rejoinder sent by the complainant Ex. CW-1/I
(d)Postal receipt etc for sending rejoining of legal demand notice are Ex. CW-1/J. CW-1 was discharged after cross examination. During the cross examination, he also produced print out of e-
mail Ex. CW-1/D-1.
5. In the statement of accused recorded u/s 313 Cr.P.C., accused has admitted the execution of the agreement and supplementary agreement Ex. CW-1/C1 and Ex. CW-1/C2 respectively and submitted that the cheques were given to the complainant for payment of rent but he paid the rent of Rs.1 Lakh in cash against the receipt and before payment of Rs.1.50 Lacs, complainant took forcible possession. Accused denied receipt of legal demand notice.
6. In defence evidence, accused has examined one Ajmatulla Khan who has relied upon the following documents: -
(a)Notice dated 11.06.10 issued by Capt. Dilawar Singh as Ex. DW-1/1, sample answer Ex. DW-1/2 and the answer sent by DW-1 to the said notice is Ex. DW-1/3.
7. Final arguments on behalf of all the parties heard.
8. From the arguments, following questions for consideration arose:-
A) Whether the cheques in question were issued by the accused in discharge of legal enforceable debt or not?
B) Whether the complainant sent a valid legal demand notice u/s 138 of N.I. Act to the accused or not?
9. Question A:
It is important to mention here the defences taken by the accused at different stages in order to evaluate the authenticity of the defence taken by the accused.
At the time of framing of notice u/s 251 Cr.P.C., the accused took the defence that the cheques in question do not bear his signatures and the contents were not filled by him and there is no legal enforceable liability towards the complainant.
While in his statement recorded u/s 313 Cr.P.C., the accused has stated that the cheques in question were given to the complainant for security purpose for the payment of staff salaries, rent of the building, advertisement, water, electricity, consumables, ration etc. and has admitted the execution of the agreement Ex. CW-1/C-1 and supplementary agreement Ex. CW-1/C-2.
On perusal of the clause no.2 of supplementary agreement Ex. CW-1/C-2, it reveals that cheque No.013576 dated 02.06.10 for a sum of Rs.1.50 Lacs Ex. CW-1/A1 was given by the accused as per the terms and conditions of supplementary agreement Ex. CW-1/C-2.
Hence, the defences taken by the accused at different stages during the trial are contradictory to each other which itself impeach the credibility of accused.
10. Ld. Counsel for accused had argued that the accused has already paid a sum of Rs.1 Lakh on 05.06.12 as per second deed executed between them, but no receipt was produced by the accused to prove the said payment. The accused in his statement recorded u/s 313 Cr.P.C. has admitted that he has deposited Rs.1 Lakh in cash against the receipt. So, a receipt must have been issued for the said payment of Rs.1 Lakh but not produced by the accused. Therefore, adverse inference can be drawn against the accused that no such payment of Rs.1 Lakh was made by the accused.
11. Ld. Counsel for accused has argued that the accused deposited a security of Rs.5 Lacs with the complainant trust and therefore, the same was adjusted by the complainant towards the outstanding amount. Therefore, the accused is not liable to pay the cheque amount to the complainant and has relied upon the supplementary agreement Ex. CW-1/C-2.
But clause 6 of supplementary agreement Ex. CW-1/C-2 reads as follows:-
"supplementary agreement deed will become effective and enforceable immediately after its execution subject to realization of the above cheque amount vide clause 2 above."
However, the cheque No.013576 Ex. CW-1/A1 got dishonoured vide returning memo Ex. CW-1/B1. Therefore, the terms and conditions of supplementary agreement Ex. CW-1/C-2 would not invalidate the main agreement Ex. CW-1/C-1. The clause 20 of main agreement Ex. CW-1/C-1 reads as follows:-
"However, if the Second Party wishes to withdraw before the due date for some unforeseen circumstances, then in that case the amount of Rs.5,00,000/- (Rupees Five Lacs only) deposited by the Second Party (accused) with the First Party (complainant) shall stand forfeited."
12. Ld. Counsel for the complainant has submitted that the security amount of Rs.5 Lacs was forfeited as per clause 20 of agreement Ex. CW-1/C1 because the accused has left the hospital in June, 2010 without any intimation. DW-1 in his cross examination has also stated that the accused and his son Swarnam Dixit and daughter in law Poonam Dixit left for Nagpur on 18.05.10 and son of the accused told him that he is living only for some days.
But DW-1 has not stated when the son of the accused came back to hospital. Whereas in his statement recorded u/s 313 Cr.P.C. accused has submitted that the complainant took forcible possession of the tenanted premises but no complaint was lodged by the accused in this regard. As per testimony of DW-1, the conduct of the accused and his son itself shows that they had breached the terms and conditions of the agreement Ex. CW-1/C-1 as they have left the tenanted premises without any notice to the complainant. Therefore, the contention of Ld. Counsel for the accused that outstanding amount was adjusted by the accused with the security amount holds no ground.
13. In view of above discussion, the accused has failed to rebut the presumption u/s 139/118 of N.I. Act that the cheques in question was not given by the accused in discharge of legal enforceable liability.
14. Question B:
Ld. Counsel for the accused has argued that the resolution Ex. CW-1/X was executed in favour of Capt. Dilawar Singh on 25.06.10 while the legal notice u/s 138 of Negotiable Instruments Act dated 18.06.10 sent by Capt. Dilawar Singh. Therefore, the said legal demand notice is not valid notice as on 18.06.10 because Capt. Dilawar Singh was not having any authority to send legal demand notice u/s 138 of Negotiable Instruments Act on behalf of complainant trust. The only requirement for sending legal demand notice u/s 138 of Negotiable Instruments Act is written information regarding dishonour of the cheque to the accused at his correct address. In the present case, legal demand notice Ex. CW-1/D was sent by Capt. Dilawar Singh being the chairman of the complainant trust. Therefore, Ex. CW-1/D is a valid notice.
15. Conclusion:-
From the above discussion and appreciation of the evidence, this court is of the opinion that the complainant has successfully proved that the cheques in question were issued by the accused to discharge his legally enforceable liability which got dishonoured on their presentation and accused failed to make payment within 15 days after service of legal demand notice. The accused failed to raise any probable defence to rebut the presumption u/s 139 of Negotiable Instruments Act. Accused is accordingly convicted for the offence u/s 138 of Negotiable Instrument Act.
Announced in the open court (Gagandeep Jindal) on 03.05.2014 MM(N.I. Act):SED: Saket Courts, New Delhi