Delhi District Court
Monis Khan vs Mr. Vinod Kumar on 6 October, 2018
IN THE COURT OF MS SHRIYA AGRAWAL, CIVIL JUDGE, SOUTH-EAST
DISTRICT, SAKET COURTS, NEW DELHI
CS No. 50502/16
Monis Khan
S/o Mr. Munawwar Khan
R/o C-56, IInd floor,
Omvihar, Phase-IV, Hastsal Road,
D.K. Mohan Garden, Uttam Nagar,
New Delhi-110059
....Plaintiff
Vs.
Mr. Vinod Kumar
R/o 55, Masjid Lane,
Jangpura Bhogal,
New Delhi.
....Defendant
Date of institution of Suit : 22.07.2014
Date on which Judgment was reserved : 30.08.2018
Date of pronouncement of the Judgment : 06.10.2018
JUDGMENT
1. The present suit as per the amended plaint was instituted by the Plaintiff against the defendant for the relief of permanent injunction and mandatory injunction and for declaration.
2 The plaintiff claims to be doing business of installing ATM machine on commission basis along with the defendant and one Mr. Saurabh Pahuja. Mr. Saurabh Pahuja would bring work from the companies and one Mr. Satish Khattar would provide him the place for the installation of ATM machines at different locations as required by the concerned company and give the money to Saurabh Pahuja as collected by plaintiff, defendant and one Mr. Satish Khattar. It is alleged that for past two months Mr.Saurabh Pahuja is stated to be missing and also to have taken away the money collected by the plaintiff, defendant and Mr. Satish CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 1 of 10 Khattar as informed by the defendant.
3 In the evening of 24th June, 2014, when the plaintiff was in the Lajpat Nagar Market area alongwith his pregnant wife, the defendant and Mr. Satish Khattar came along with 10-15 other persons and forcefully took away the plaintiff and his wife to police station Jangpura. When the plaintiff asked the defendant for the reason, the latter is stated to have threatened the plaintiff that he would finish off his wife. When the plaintiff tried calling the police, the defendant snatched away his mobile and the key to the vehicle. The defendant is also stated to have misbehaved with the plaintiff and to have beaten him up with fists. Some of the companions of the defendant pulled the plaintiff by her hair. She was also forced to accompany the defendant to police station Jangpura, where the plaintiff came to know that the defendant had lodged a false complaint against him. The defendant and Mr. Satish Khattar in connivance with the police officials pressurized the plaintiff to give the money which Mr. Saurabh Pahuja had taken away. When the plaintiff refused to give the same, they all threatened to implicate him in a false case. When the plaintiff told them that he did not have money, the defendant and Mr. Satish Khattar asked him to handover the cheques for the lives of plaintiff, his wife and their expected child to be spared. Thereafter, the plaintiff was forced to issue a cheque in favour of the defendant bearing no.080131 dated 05.09.2014 drawn on IDBI Bank for an amount of Rs.2,85,000/-, under immense illegal pressure. The defendant, Mr. Satish Khattar and the police official also obtained the signatures of the plaintiff on various blank papers. It is further averred that the defendant and Mr. Satish Khattar had also threatened the plaintiff with dire consequences, in the event he chose to report the matter to any higher authority or any other police official. The defendant obtained the cheque bearing no.080131 dated 05.09.2014 drawn on IDBI Bank of an amount of Rs.2,85,000/- with force, fraud and under coercion. The defendant did not have any authority to obtain the above said cheque in the said manner, when the plaintiff did not have any liability towards the defendant. The plaintiff gave stop payment instructions to his bank for the cheque bearing no.080131 dated 05.09.2014 drawn on IDBI Bank of an amount of CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 2 of 10 Rs.2,85,000/-.Thereafter plaintiff has also made a written complaint to the District Commissioner of police South East, Sarita Vihar, Station House Officer Police Station Lajpat Nagar, Commissioner of Police, Delhi, District Commissioner of police, West District Dwarka Sector-10, and Station House Officer, Police Station, Bindapur on 30.06.2014. The plaintiff also sent a legal notice dated 30.06.2014, through his counsel by speed post on 02.07.2014, whereby the plaintiff demanded the return of the cheque bearing no.080131 dated 05.09.2014 drawn on IDBI Bank for an amount of Rs.2,85,000/-. Defendant instead of acceding to the demand of the plaintiff, sent a false and a bogus reply.
4. Hence, the present suit (per the amended plaint) was originally instituted for the reliefs of decree of permanent injunction to restrain the Defendant from depositing the cheque bearing no. 080131 dated 5.9.2014 for an amount of Rs. 2,85,000/- with the Bank for encashment, for the relief of mandatory injunction to direct the Defendant to return the cheque in question and for the decree of declaration, to the effect that the cheque in question be declared as null and void. Vide order dated 2.2.2016, noting that the cheque in question had already been presented by the Defendant for encashment and that a criminal complaint under Section 138 Negotiable Instruments Act had already been filed by the Defendant, the reliefs for permanent and mandatory injunction were opted by the Plaintiff to be dropped from the Plaint. The suit has thus continued solely for the relief of declaration.
WRITTEN STATEMENT
5. Per contra, it is stated by the defendant that the suit is not maintainable. The plaintiff used to work with the defendant in a front point security solution (Angel Solution) since the year 2012. The plaintiff had asked the defendant to collect the money for the installation of ATM machine from the persons application. The defendant had duly collected the advance money from few a persons and had given to the plaintiff a sum of Rs.2,85,000/- ,for the installation purposes. The CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 3 of 10 plaintiff had developed ill-will and he delayed the installation of the ATM. He stopped taking defendant's call and went into hiding trace. Thereafter, the defendant had filed a written complaint with the police chowki Jangpura, on dated 25.05.2014, for cheating and forgery. The complaint was pending for investigation and on 24.06.2014 when he was noticed in the Lajpat Nagar Market. The defendant caught him and also called up the PCR, that came to the spot and took the plaintiff to the police station, Lajpat Nagar. He was thereafter sent to the police chowki Jangpura alongwith one police constable. A DD entry was made in the police station. The plaintiff compromised the matter with the defendant and a compromise was written in the police chowki Jangpura, in the presence of the police officials, where the plaintiff agreed to make payment of the amount taken by him for installation of the ATM machine from the defendant and had handed over a post dated cheque no.080131 drawn IDBI Bank dated 05.09.2014 for sum of Rs.2,85,000/-. As the matter got compromised between plaintiff and defendant, no action was initiated against the plaintiff. Thereafter, the defendant had deposited the said cheque on 05.09.2014 for encashment but the same returned as dishonoured with the remarks "payment stopped by drawer". The defendant had issued a legal notice to the plaintiff for making payment. The same returned with the endorsement, no such person at the address. Later on, the plaintiff, after giving the cheque for the payment received by him from the defendant in the police chowki, had concocted the false story and had filed a false complaint against the defendant with the police officials, about giving the cheque to the defendant under coercion and the alleged beating up his wife. The plaintiff did not pursue the said complaint against the defendant and one another person Satish Khattar, because no such incident had ever taken place.
6. Plaintiff has filed the present suit by concocting a false story in order to avoid making the payment taken by him from the defendant. The plaintiff is not residing at the address mentioned in the suit and he has filed the false declaration and affidavit to this effect, for which the present suit may be dismissed. In reply on merits, it is denied that Mr. Saurabh Pahuja brings work from the company and the CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 4 of 10 plaintiff, defendant and one Mr. Satish Khatter provide him the place for installation of ATM machine at different locations and that money is given to Saurabh Pahuja as collected by plaintiff, defendant and Satish Khatter. It is stated that there was no person by the name of Saurabh Pahuja during, the entire transaction. The amount collected by the defendant, was given to the plaintiff personally and not to any other person. It is denied that in the evening of 24.06.2014, when the plaintiff in the market of Lajpat Nagar along with his pregnant wife were located, the defendant and Mr. Satish Khattar came alongwith 10-15 other persons and forcibly took away the plaintiff and his wife to police station Jangpura. It is further denied that the plaintiff and his wife were threatened. It has been further denied that the defendant and Satish Khattar, in connivance with the police officials coerced the plaintiff to give the money which Mr. Saurabh Pahuja had taken away and that when the plaintiff refused to give the same, they all threatened him with false implication. At the police station, the plaintiff had, on his own, willingly given the post dated cheque, in the presence of the police officials, without any pressure or force and a compromise was reduced in writing by the plaintiff. It is further argued in pleadings that if any act was committed by the defendant against his wife, why would be actually keep silent and not taken any action against the defendant and other persons. All the allegations are stated to be false. The plaintiff had voluntarily and willingly given the cheque to the defendant, in the presence of the police officials, towards the liability for the amount taken by him for the installation of ATM machine. It has been denied that the plaintiff sent a legal notice dated 30.06.2014 on 02.07.2014, demanding return of the cheque bearing no.080131 dated 05.09.2014 drawn on IDBI Bank of the Rs.2,85,000/- and also demanding not to deposit the cheque with the bank for encashment. It is claimed that the legal notice dated 30.06.2014 was never received by the defendant and therefore there arose no question of sending any reply.
CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 5 of 10ISSUES
7. Vide order dated 2.2.2016, the following issues were framed :-
(1) Whether the Plaintiff is entitled to relief of declaration that the cheque bearing no. 080131 dated 5.9.2014 for an amount of Rs. 2,85,000/- as null and void as prayed in the plaint ? OPP. (2) Relief.
PLAINTIFF EVIDENCE
8. The Plaintiff himself entered the witness box as PW1 deposing on the strength of his affidavit Ex PW1/1, relying, inter-alia upon, the complaints dated 28.6.2014, 30.6.2014 (Ex PW1/A and Ex PW1/B), copy of postal receipt (Ex PW1/C), office copy of legal notice dated 30.6.2014 (Ex PW1/D), copy of legal notice to Mr. Satish Khattar (EX PW1/G), postal receipts and delivery report and copy of reply of legal notice dated 10.7.2014 by Mr. Satish Khattar (Ex PW1/I).
In his cross examination, the Plaintiff/PW1 has stated that he has known Mr. Saurab Pahuja through the Defendant. He denied having filed any complaint against him before any police authority, explaining that he was not directly connected with him. He denied the suggestion that there existed no such person by the said name and that he was a fictitious person. When asked if it would be correct to say that on 26.4.2014, the Plaintiff along with his wife was present in the Lajpat Nagar Market area, he answered in the affirmative, stating that he was there in the Cinema Lajpat. He acknowledged that the said exact location was not mentioned in the two complaints. He denied being aware of any complaint dated 17.5.2014 having been lodged by the Defendant received at the Jangpura Police Post on 25.5.2014 or of any DD No. 32 A entry having been lodged on 24.6.2014 by the Defendant. He admitted that on 24.6.2014, a PCR came to the spot and took away PW1 , Mr. Vinod Kumar and his associates to PS Lajpat Nagar and thereafter to Jangpura PP. He denied having compromised the matter with the Defendant at PP Jangpura in the presence of police officials and to have handed over the cheques to the Defendant out of his own free will and consent. He stated that it was his staff CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 6 of 10 that had brought the cheque which was handed over to the Defendant. He stated that he did not make any complaint with the PS Lajpat Nagar or the PP Jangpura on the same date i.e. 24.6.2014. He however, seeks to explain the delay by stating that his wife was not well and was in trauma, on account of miscarriage. He stated that it would be correct to state that he had not mentioned the date 5.9.2014 on the cheque in question and that he had only signed it and had written the amount. He adds, that the same was done under the pressure and threats extended by the Defendant, his associates and the police officials. He admitted that he had not lodged any complaint on 24.6.2014, but only on 28.6.2014 in the DCP office and on 30.6.2014 in the Commissioner of Police office.
DEFENDANT EVIDENCE
9. Defendant deposed as DW1 deposing on the strength of his affidavit EX DW1/, relying upon the documents, inter-alia, copy of complaint dated 17.5.2014 (Mark A), copy of DD entry (Mark B), copy of complaint dated 24.6.2014 (Mark C), certified copy of registered envelope (Ex DW1/4), copy of reply of complaint Mark D and copy of notice under Section 251 Cr.P.C (Ex DW1/6).
10. In the course of his cross examination, he stated that he had last met the Plaintiff on 24.6.2014 at Lajpat Nagar market, explaining that he was there for work. He stated that he made a PCR call. He stated that he knows the person Mr. Satish Khattar, who was also present there. The police came after 15-20 minutes. He stated that he could not give evidence concerning the taking of the amount of Rs. 2,85,000/- from the parties. He could not give any evidence in writing of handing over the above-stated amount to the Plaintiff. The defendant further stated that in the evening of 24.6.2014, the PCR came at about 6pm- 6:30 pm. He told to the PCR personnel that he had lodged a complaint against the Plaintiff. No FIR has been lodged against the Plaintiff on 25.6.2014 or till date. A complaint Mark A was received at the Police Post Jangpura 25.6.2014. When recalled for cross examination on 15.5.2017, the witness DW1 stated that the compromise Mark C was written by the Defendant's brother Mr. Kishan Kumar. He denied the CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 7 of 10 suggestion that the signatures of the Plaintiff were secured on a blank paper. He stated in the affirmative that he had filed a suit for recovery against the Plaintiff. He acknowledged that no receipt was taken by the Defendant with respect to the amount taken. He stated that although the Plaintiff had compromised the dispute under the pressure created, he had compromised because he had taken money from the Defendant.
11. The Defendant summoned one witness DW2, the Head Constable from PS Lajpat Nagar,who had brought the summoned record of DD No. 32 A dated 24.6.2014 received by ASI Hari Singh, which was entered in the Daily Diary Record at serial no. 32. The copy of the DD entry stood labeled as Ex DW2/A and the copy of DD no. 38 was labeled as Ex DW2/B (stating the details of the complaints made by the Defendant against the Plaintiff). The witness was cross examined by the counsel for Plaintiff.
12. The third witness examined by the Defendant was SI Mool Chand from PP Jangpura PS Harat Nizamuddin, who had brought along with original complaint register of the PP, comprising of complaints from 1.1.2014 till 10.12.2015. He confirmed that a complaint lodged by the Defendant was received reflected in diary no. 327 dated 25.5.2014 (Ex DW3/A). The same was objected to by the counsel for plaintiff on the ground that the original register brought along did not carry any endorsement of the police station or the police post. He brought the roznamcha, of PP Jangpura for the period 15.6.2014 till 5.7.2014. On 25.6.2014, the Head constable had recorded a DD entry at serial no. 14 regarding the diary no. 25.5.2014 concerning the complaint filed by the Defendant. The copy of the roznamcha stood labeled as Ex DW3/B and the DD entry at serial no. 14 stood labeled as EX DW3/B, while the DD no.14 PP dated 25.6.2014 with endorsement stood labeled as Ex DW3/C. The witness was also cross examined by the counsel for Plaintiff.
13. Heard final arguments. Perused the record.
14. The Plaintiff has pursued the present suit essentially for the relief of CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 8 of 10 declaration with respect to the cheque in question, for it to be declared as null and void, asserting that the same was secured by the Defendant under coercion and pressure cast upon the Plaintiff, in the presence of and with the aid of police officials, pursuant to a false complaint lodged by the Defendant against the Plaintiff. The Plaintiff has claimed that no amount whatsoever was ever due from the Plaintiff to the Defendant, for which any such cheque would be required to be voluntarily issued. He claims to have been made to sign the cheque and fill up the amount details therein, under the coercive influence of the Defendant, his aides and police officials. The Defendant has claimed that the said amount was due to be repaid by the Plaintiff and it is for this reason, that a compromise was entered into by the Plaintiff.
15. The Plaintiff has only relied upon the two complaints lodged with the DCP, Dakshin puri, Sarta Vihar (Ex PW1/A and Ex Pw1/B), which were noticeably filed subsequently. He has not summoned any witness from the concerned office to prove the complaints, not has led any evidence to reveal if any action was taken with respect to the complaints. If the case of the Plaintiff were to be believed, it was essential for him to not only prove that complaints he claims to have lodged with respect to the incident dated 24.6.2014 in question, that had allegedly taken place at Lajpat Nagar Market, but also to examine his wife and concerned police officials in the same regard. The Plaintiff clearly has failed to even summon witnesses to corroborate his claims qua the incident and also with respect to the coercion involved by having his wife step into the witness box. The Defendant on the contrary has proved the DD entry no. 32 A that was recorded in the evening of the date of the incident i.e. 24.6.2014.
16. The perusal of the evidence led by both sides reveals that although the Defendant had admitted that no formal receipt was secured from the Plaintiff with respect to the amount purportedly handed over to the latter, however, the issuance of cheque by the Plaintiff remains undisputed. The narrow question involved in the present lis, pertains to the voluntariness or lack of the same with which the cheque qua which declaration has been sought herein stood issued. It cannot be ignored CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 9 of 10 that the Plaintiff in his cross examination as PW1, himself had admitted that he had filled up the cheque amount details and had signed the same. It is only the circumstances under which the same was done, is what is in dispute. Having admitted the signatures and the amount in the cheque in question to be in his own hand, the Plaintiff cannot distance himself from the instrument. This admission has only enhanced the degree to which the onus already cast upon him, to show that there infact subsisted no liability when the cheque was issued, for it to be concomitantly deemed that the issuance was coerced and not out of free will. The Plaintiff noticeably has not prayed for any relief of declaration specifically with respect to there subsisting no liability for which the cheque was secured. Thus, the presumption otherwise arising against the Plaintiff, that there infact subsisted a due for which the instrument in question was issued, stands not met.
17. It is oft reiterated in a plethora of rulings by the Superior Courts, as was also observed in "Rangammal Vs. Kuppuswami (2011) 12 SCC 220", by the Apex Court that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot be rely upon weakness or absence of defence to discharge the said onus.
18. Thus, for these discussed reasons, the Plaintiff having failed to discharge the onus of proof cast upon him, the suit merits dismissal. The case appears to have been filed as nothing more than an attempt to create a defence in the proceedings that are already initiated against the Plaintiff under Section 138 Negotiable Instruments Act, and consequently to evade the liability, with respect to which the cheque in question was issued.
19. Suit accordingly stands dismissed.
20. Decree sheet be prepared.
Digitally signed by SHRIYA21. File be consigned to Record Room.
SHRIYA AGRAWAL
AGRAWAL Date: 2018.10.08
23:15:26 +0530
Pronounced in open court (Shriya Agrawal)
today. i.e. 06.10.2018 CJ/SE/Saket/06.10.2018
CS No.50502/16 Monis Khan Vs. Vinod Kumar Page 10 of 10