Delhi District Court
Basalingappa vs . Mudibasappa, (2019) 5 Scc 418 : 2019 Scc ... on 31 March, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE (NI-03),
CENTRAL, TIS HAZARI COURTS, DELHI
Presided over by: Ms. Isha Singh
Case no. : 527099/2016
Unique Case ID no. : DLCT02-007730-2015
In the matter of :
Sh. Shiv Kapoor
Proprietor of M/s Dee Mobile Hub
146-D, Kamla Nagar, Delhi-110007.
R/o 10579, Lane No. 4,
Pratap Nagar, Delhi.
......................COMPLAINANT
Versus
1. Sh. Himanshu
Brother of Shri Rohit
C/o M/s Baba Mobile Repairing,
B-1252, Shastri Nagar,
Delhi-110052.
2. M/s Baba Mobile Repairing,
B-1252, Shastri Nagar,
Delhi-110052.
3. Sh. Rohit
Proprietor / Authorised signatory of
M/s Baba Mobile Repairing,
B-1252, Shastri Nagar,
Delhi-110052.
............... ACCUSED PERSONS
CC No. 527099/2016 Shiv Kapoor v. Himanshu & Anr. Page 1 of 12
1. Name of the Complainant : Mr. Shiv Kapoor
2. Name of the Accused : Mr. Himanshu
3. Offence complained of or proved : Section 138, Negotiable Instruments
Act, 1881
4. Plea of the Accused : Not Guilty
5. Date of Filing : 02.12.2015
6. Date of Reserving Order : 22.03.2022
7. Date of Pronouncement : 31.03.2022
8. Final Order : ACQUITTED
BRIEF STATEMENT OF REASONS OF DECISION
FACTUAL MATRIX
1. At the inception, the present complaint was filed by Mr. Shiv Kapoor, proprietor of M/s
Dee Mobile Hub (hereinafter "complainant") against Mr. Himanshu (hereinafter
"accused"), M/s Baba Mobile Repairing and Mr. Rohit, proprietor/authorized signatory
of M/s Baba Mobile Repairing under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter "NI Act")
2. The substance of allegations, as contained in the complaint, are as follows:
(a) That the complainant is the proprietor of M/s Dee Mobile Hub and is dealing with
the business of mobile phones and accessories. That M/s Baba Mobile Repairing
and Mr. Rohit, its proprietor/authorized signatory had purchased mobile phones of
the make Micromax from the complainant against bill no. 012 of Book no.1 dated
08.06.2014 for a total sum of Rs. 44,77,360/- and had agreed and promised to make
payment against the said bill amount. That towards the said liability, M/s Baba
Mobile Repairing and Mr. Rohit, its proprietor/authorized signatory issued a cheque
bearing no.055457 dated 10.06.2014 for Rs.4,77,360/- drawn on Axis Bank, Delhi
in favour of the complainant. However, upon presentation, the aforesaid cheque was
dishonoured. That after much persuasion, M/s Baba Mobile Repairing and Mr.
Rohit, its proprietor/authorized signatory agreed to pay a sum of Rs.1,00,000/-
through DD bearing no. 005551 dated 28.07.2014 drawn on Axis Bank, Shastri
Nagar, Delhi and promised to pay the remaining bill amount of Rs.4,77,360/-. That
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M/s Baba Mobile Repairing and Mr. Rohit, its proprietor/authorized signatory also
executed a receipt to this effect on 23.08.2014.
(b) That Mr. Rohit, proprietor/authorized signatory of M/s Baba Mobile Repairing
issued a cheque bearing no. 055547 dated 28.09.2014 for Rs.3,77,360/- drawn on
Axis Bank Ltd., Shastri Nagar, Delhi-110052 in favour of the complainant towards
discharge of the legal liability. That despite the assurance of Mr. Rohit,
proprietor/authorized signatory of M/s Baba Mobile Repairing, the said cheque was
returned as unpaid with the remarks "Funds Insufficient" three times vide cheque
returning memos dated 04.10.2014, 13.10.2014 and 22.11.2014.
(c) That, resultantly, a complaint under Section 138 NI Act was preferred against M/s
Baba Mobile Repairing and Mr. Rohit, its proprietor/authorized signatory by the
complainant and a suit under Order 37 CPC was filed as well, for the recovery of
sum of Rs. 3,77,360/- with pendentlite and future interest. Due to the non-
appearance of M/s Baba Mobile Repairing and Mr. Rohit, its proprietor/authorized
signatory in the suit instituted under Order 37 CPC, the suit was decreed in favour
of the complainant. That, qua the aforementioned suit, execution is pending before
the Hon'ble Court of Shri Vinod Kumar, Ld. ADJ, Central, Delhi.
(d) That during the aforesaid execution proceedings, the accused Himanshu and his
brother Rohit, proprietor/authorized signatory of M/s Baba Mobile Repairing came
to the complainant and requested for an amicable settlement. That accordingly,
accused Himanshu issued a cheque bearing no. 050934 dated 28.10.2015 for a sum
of Rs. 4,06,058/- drawn on Axis Bank Ltd., Shastri Nagar, Delhi-52 in favour of the
complainant (cheque in question) on behalf of M/s Baba Mobile Repairing and Mr.
Rohit, its proprietor/authorized signatory, towards the discharge of the aforesaid
legal liability.
(e) That the cheque in question was accepted on the assurance of accused Himanshu
and his brother Rohit, proprietor/authorized signatory of M/s Baba Mobile
Repairing, which was also fortified by the appearance of accused Himanshu before
the Ld. Executing Court on 11.09.2015 where the said fact of issuance of cheque
was also recorded and the execution proceedings were adjourned for payment since
the cheque was post-dated.
(f) The aforesaid cheque was presented by the complainant for payment through his
banker - HDFC Bank, Kamla Nagar, Delhi-110007 for its encashment, however
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the same was returned as dishonoured vide cheque returning memo dated
29.10.2015 with the remarks "insufficient funds".
(g) Thereafter, the complainant sent a legal notice dated 06.11.2015 by way of speed
post. It is the case of the complainant that despite service/deemed service of the
legal demand notice, the accused failed to repay the cheque amount within the
stipulated period and hence, the present complaint was filed on 02.12.2015 under
section 138 of the NI Act.
PROCEEDINGS BEFORE THE COURT
3. Pre-summoning evidence was led by the complainant and upon finding a prima facie
case only against the accused Himanshu, he was summoned to face trial vide order
dated, 21.01.2016 and after his appearance, notice of accusation under Sec. 251, The
Code of Criminal Procedure, 1973 (hereinafter "CrPC") was served upon him on
26.05.2016 to which he pleaded not guilty and claimed trial. After perusal of the
cheque, the accused stated that the cheque in question bears his signature, however the
same was obtained under coercion. As regards the legal demand notice, he stated that
although the address mentioned upon the same was his own, however still he had not
received the legal demand notice. At the time of framing of notice under Sec. 251 CrPC,
the accused took the following plea of defence:
"I have not issued the cheque in question against any liability.
Complainant had disputes with my brother and they have taken the
cheques in question under corecion."
4. In view of the application filed by the accused under Sec.145(2), NI Act, accused was
allowed the opportunity under Sec. 145(2) NI Act, to cross-examine the complainant
vide order dated 03.08.2017.
5. However, at the post-summoning stage, the complainant did not adopt his pre-
summoning evidence and chose not to enter the witness box for the purposes of cross-
examination. Only at the pre-summoning stage, the complainant had examined himself
as CW-1 and tendered his evidence by way of affidavit Ex.CW1/A; cheque bearing no.
050934 dated 28.10.2015 for a sum of Rs. 4,06,058/- drawn on Axis Bank Ltd., Shastri
Nagar, Delhi-52 Ex.CW1/1; Return memo dated 29.10.2015 with the remarks "Funds
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Insufficient" Ex. CW1/2; Legal demand notice dated 06.11.2015 Ex.CW1/3; Postal
Receipts Ex.CW1/4 (Colly.); Internet Generated Tracking Report Ex. CW1/5 (Colly.).
6. Nevertheless, after the application moved by the accused u/s. 145(2) NI Act was
allowed, the matter was fixed for cross-examination of the complainant. However, for
five dates of hearing, the complainant did not enter appearance before the court and
resultantly on 20.05.2019, last opportunity was granted to both the parties for conclusion
of cross-examination of complainant and the matter was fixed for 21.06.2019. Despite
the same, the complainant chose not to appear on 21.06.2019 and in such circumstances,
the complainant evidence was closed. In effect, no opportunity could be afforded to the
accused to cross-examine the complainant for bringing out his defence.
7. Statement of accused under Section 313 CrPC read with Sec.281 CrPC was recorded on
16.07.2019 wherein the plea of defence taken by the accused at the time of framing of
notice u/s.251 CrPC was reiterated. Additionally, he stated that he was studying in
school at the time when the cheque was taken forcefully from him by the complainant
and that his family had also made a complaint to the police at 100 number emergency.
8. The accused did not lead any defence evidence and the same was closed vide his
separate statement recorded on 20.12.2021.
9. Thereafter, final arguments were heard in the present case. I have heard the learned
counsels on both sides and given my thoughtful consideration to the material appearing
on record.
10. It has been argued by the Ld. Counsel for the complainant that all ingredients of Sec.
138 NI Act, have been fulfilled in the present case and that the complainant has duly
proved his case. It was argued that accused admitted his signatures on the cheque which
has given rise to presumptions in favour of the complainant. Ld. Counsel for the
complainant also argued that the defence taken by the accused in his application under
Sec.145(2) has been inconsistent with his plea of defence taken at the time of framing
of notice under Sec.251 CrPC as well as his statement recorded under Sec.313 CrPC.
Ld. Counsel submits that the accused has not led any evidence to rebut the presumption
under Sec.118 and Sec.139, NI Act. It was argued that accused failed to raise the
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probable defence to disprove the case of complainant. As such, it is prayed that the
accused be punished for the said offence.
11. Ld. Counsel for the accused has argued that the complainant has failed to establish his
case beyond reasonable doubt. Ld. Counsel has submitted that the none of the averments
mentioned in the complaint have been proved as admittedly, the complainant never
entered the witness box and never subjected himself to cross-examination. He also
further argued that the complainant did not place on record any documentary proof in
support of the existence of legally recoverable debt/liability against the accused. It has
been contended that the accused has been denied the opportunity to raise his defence as
the complainant never stood the test of cross-examination and without the same, the
evidence of the complainant led by way of affidavit at the pre-summoning stage, cannot
be read. It has been contended that the accused has been falsely implicated in the present
matter as the cheque was obtained under coercion and that there is no legally recoverable
debt/liability towards the complainant. As such, it is prayed that the accused be
acquitted.
FINDINGS
12. Before dwelling into the facts of the present case, it would be apposite to discuss the
legal standards required to be met by both sides. The constituents elements of an offence
u/s.138 NI Act are well laid out in the section itself and have been explained through
various pronouncements of the superior courts over a period of time. The Hon'ble Apex
Court summed them up again in, Himanshu v. B. Shivamurthy (2019) 3 SCC 797 as
below:
"The first condition is that the cheque ought to have been presented to the
bank within a period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier. The second condition
is that the payee or the holder in due course of the cheque, as the case may
be, ought to make a demand for the payment of the said amount of money
by giving a notice in writing, to the drawer of the cheque, within thirty
days of the receipt of information by him from the bank regarding the
return of the cheque as unpaid. The third conditions is that the drawer of
such a cheque should have failed to make payment of the said amount of
money to the payee or as the case may be, to the holder in due course of
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the cheque within fifteen days of the receipt of the said notice. It is only
upon the satisfaction of all the three conditions mentioned above and
enumerated under the proviso to Section 138 as clauses (a), (b) and (c)
thereof that an offence under Section 138 can be said to have been
committed by the person issuing the cheque."
(emphasis supplied)
13. In the defence raised by the accused u/s 251 CrPC as well as in his statement recorded
u/s 313 read with Section 281 CrPC, it is admitted that the cheque in question bears his
signatures. The accused has denied the receipt of legal notice. This assertion of non-
receipt of legal notice cannot help the accused in escaping liability under section 138
NI Act, especially keeping in mind that firstly, at the stage of framing of notice u/s.251
CrPC, the accused himself admitted that the legal demand notice was addressed to him
on his correct address; secondly that the accused entered appearance in the court
pursuant to service upon the same address as was mentioned in the legal demand notice.
It has been settled by the Hon'ble Apex Court in the judgement reported as, C.C. Alavi
Haji v. Palapetty Muhammed, (2007) 6 SCC 555 that an accused who claims that he
did not receive the legal notice, can, within 15 days of receipt of summons from the
court, make payment of the cheque amount, and an accused who does not make such
payment cannot contend that there was no proper service of notice as required under
Section 138, by ignoring statutory presumption to the contrary under Section 27 of the
General Clauses Act and Section 114 of the Evidence Act.
14. Since the accused has admitted his signatures on the cheque in question, a presumption
shall be raised under section 139 read with section 118 of the NI Act against the accused
that the cheque in question was issued in discharge of a valid debt or liability. In this
regard, the Hon'ble Apex Court, having analysed all the concerned provisions in
Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at
page 432, came down to the following conclusion:
"25. We having noticed the ratio laid down by this Court in the above cases on
Section 118(a) and 139, we now summarise the principles enumerated by this Court
in the following manner:
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25.1. Once the execution of cheque is admitted Section 139 of theAct mandates
a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the
onus is on the accused to raise probable defence. The standard of proof for
rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence
led by him or the accused can also rely on the materials submitted by the
complainant in order to raise a probable defence. Inference of preponderance of
probabilities can be drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in
support of his defence. Section 139 imposed an evidentiary burden and not a
persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support
his defence."
15. In addition to the above, in Kishan Rao V. Shankargouda, (2018) 8 SCC 165, quoting
Sharma Carpets [Kumar Exports v. Sharma Carpets,(2009) 2 SCC 513], the Hon'ble
Apex Court had held at para 20 as follows:
"The accused may adduce direct evidence to prove that the note in question
was not supported by consideration and that there was no debt or liability to
be discharged by him. However, the Court need not insist in every case that
the accused should disprove the non-existence of consideration and that by
leading direct evidence because the existence of negative evidence is entirely
possible nor contemplated. At the same time it is clear that bare denial of the
passing of the consideration and existence of that, apparently would not serve
the purpose of the accused. Something which is probable has to be brought
on record for getting the burden of proof shifted to the complainant. To
disprove the presumption the accused should bring on record such facts and
circumstances, upon consideration of which the Court may either believe that
the consideration and debt did not exist or their non-existence was so
probable that a prudent man would under the circumstances of the case, act
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upon the plea that they did not exist. Apart from adducing direct evidence to
prove that the note in question was not supported by consideration or that he
had not incurred any debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so relied upon are
compelling, the burden may likewise shift again on the complainant."
16. To paraphrase the above, once presumptions u/s 118 and 139 NI Act are raised in
complainant's favour upon admission by the accused of the issuance of the cheques in
question, it is therefore upon the accused to rebut them by adducing evidence. If upon
preponderance of probabilities, the accused is able to do the same, onus once again shifts
back upon the complainant to prove its case beyond reasonable doubt. If the accused is
unable to do so, the complainant is entitled for a decision in his favour. It is pertinent to
note however, that the accused can rebut the presumptions raised against him by
flagging gaps in the complaint's version itself and he is not obliged to separately led
independent defence evidence always. He can show such circumstances to exist, from
the material placed on record by the complainant himself, that there exists a probably
defence in his favour. Considering this, the right of the accused to cross examine the
complaint is of paramount importance because by doing so, he can cast a dent on the
complainant's narrative to probablise his own defence. Such an opportunity to be
provided to the accused is therefore crucial and non-affording the same, may well
amount to denying the accused to exercise his right to defend himself altogether. Such
a lapse on part of the complainant therefore, would in fact go against the grain of
constitutional jurisprudence that no person can be condemned unheard, as essentially
that is what happens if the complainant does not subject himself to be cross examined
by the accused.
17. In view of the above, the opportunity of cross examination of the complainant assumes
greatest significance.
18. In fact, in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra (2013) 4 SCC 46,
right of cross-examination has indeed been held to be one part of the principles of
natural justice. Para 24 of the judgment quotes the observations made by Hon'ble Mr.
Justice Gajendragadkar, speaking for the Constitution Bench in State of M.P.v.
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Chintaman Sadashiva Waishampayan [AIR 1961 SC 1623] and are reproduced as
below:
'24. A Constitution Bench of this Court in State of M.P.v Chintaman
Sadashiva Waishampayan [AIR 1961 SC 1623] held that the rules of natural
justice require that a party must be given the opportunity to adduce all
relevant evidence upon which he relies, and further that, the evidence
examined of the opposite party should be taken in his presence, and that he
should be given the opportunity of cross-examining the witnesses examined
by that party. Not providing the said opportunity to cross-examine witnesses,
would violate the principal of natural justice.'
19. In the present case, the complainant, at the post-summoning stage did not even step once
into the witness box and never stood the test of cross-examination. It is a settled position
of law that when a party to the suit does not appear into the witness box and states his
own case on oath and does not offer himself to be cross examined by the other side, a
presumption would arise that the case set up by him is not correct. (Vidhyadhar vs.
Manikrao, AIR 1999 SC 1441).
20. Similar views were expressed by Hon'ble Mr.Justice K.K.Sasidharan, as he then was, in
the case of D.F.Philips vs. Dhamayanthi Kailasam and Others, 2009 (4) TLNJ 217 :
"26. ...In ordinary circumstances, evidence not tested by cross examination
has no probative value. There should be an opportunity to the opposite party
to cross examine the witness..."
21. The case projected by the complainant in his complaint is based on introduction of facts
through plaint averments. It can be controverted only through cross examination and the
veracity of the evidence can be tested by the accused. Complainant being the dominus
litis spearheads the litigation. Onus is more on him to prove the case, unless the burden
is shifted to opposite side. In that process, the complainant must be ready and prepared
and must show that he is always available and willing to complete the evidence. The
evidence of the complainant, as such is very crucial to prove his case. Such evidence
shall be complete and it becomes complete only upon completion of cross examination
by the accused.
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22. In the present case, after the application moved by the accused u/s. 145(2) NI Act was
allowed, the matter was fixed for cross-examination of the complainant. However, for
five dates of hearing, the complainant did not enter appearance before the court and
resultantly on 20.05.2019, last opportunity was granted to both the parties for conclusion
of cross-examination of complainant and the matter was fixed for 21.06.2019. Despite
the same, the complainant chose not to appear on 21.06.2019 and in such circumstances,
the complainant evidence was closed. The conduct of the Plaintiff of remaining absent
for cross examination amounts to denial of opportunity to the accused to disprove the
case of the complainant and render the evidence of the complainant as incomplete. The
law is trite that incomplete evidence of a witness who has failed to subject himself for
cross examination shall not be retained on record (Rajendran Vs A. Swaminathan
C.R.P.(PD)(MD)No.246 of 2009 and M.P.(MD)No.1 of 2009 dated 1.12.2010 and
Antony Matilda vs. Vairamuthu in C.R.P.(PD) (MD) No.1132/2017 dated
08.09.2017).
23. The evidence of the complainant in the above case, not tested by cross examination on
account of his non-appearance, does not even have the probative value, for, the
incompleteness is attributable to the complainant himself. Had the complainant been
keen to complete his evidence, he would have offered himself for cross examination by
re-opening and recalling his evidence.
24. Considering the above, this court is constrained to note that in absence of the occasion
whereupon the complainant could be cross examined by the accused, the rights of the
accused were seriously prejudiced since the complainant himself did not subject for
cross-examination, which has prevented the accused from bringing out a credible
defence in his favour. The same in fact, raises an adverse inference against the case set
up by the complainant himself.
25. In light of the discussion as above, the conduct of the complainant has resulted in
shifting the burden of proof back upon him, which it in turn, not been discharged beyond
reasonable doubt. Neither has the complainant entered the witness box to subject
himself to cross-examination nor have the averments in the complaint been supported
with proper proof to prove the existence of a legally recoverable debt.
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CONCLUSION
26. As a result, the complainant has failed to prove the offence beyond reasonable doubt
and as such, the complaint of the complainant is dismissed and the accused Himanshu
is hereby acquitted of the offence of Section 138 of the Negotiable Instruments Act,
ISHA
1881. Digitally signed
by ISHA SINGH
Date:
ORDER:ACQUITTED SINGH 2022.03.31 17:19:02 +05'30' (Isha Singh) Announced in open court MM / NI Act -03 / Central on 31.03.2022 Delhi /31.03.2022 Note: This judgement contains 12 pages and each page has been signed by me.
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