Delhi District Court
Page No. 1 Of 16 Ram Niwas Singh vs . Manoj & Anrs. on 31 January, 2020
IN THE COURT OF SH. TUSHAR GUPTA, METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC a. New No. of the case : 58881/2016 b. Date of the commission of offence : 26.05.2016 c. Name of the Complainant : Ram Niwas Singh d. Name of Accused person and his : Manoj parentage and residence S/o Sh. Jeet Singh R/o H. No. 101, Chadhary Rasal Singh Mohalla, Gamri Gaon, Delhi110053. e. Offence complained of : Dishonouring of cheque for the reason "funds insufficient". f. Plea of the Accused and : Not guilty his examination (if any) because liability denied. g. Final Order : Held guilty (Convicted). h. Order reserved on : 31.01.2020. i. Order pronounced on : 31.01.2020. Page No. 1 of 16 Ram Niwas Singh VS. Manoj & Anrs. Brief reasons for decision:
1) The necessary facts for disposal of present case as reflected in the complainant that the complainant and the accused are closely acquainted with each other as the office of the accused and the house of the complainant are adjacent to each other. In the first week of January, 2016 the accused No.1 came to the complainant along with his father i.e. accused No. 2 and instigated the complainant to purchase a property No. C1/19, Parasram Market, Sudampuri, Gali No.6, Delhi and induced the complainant to pay token money of Rs.
14,40,000/. The complainant paid the amount of Rs. 14,40,000/ to the accused in good faith. However, when the complainant approached the accused for execution of sale agreement, the accused person avoided execution of the same. The complainant again and again approached the accused persons and requested them either to execute the necessary agreement or to refund an amount of Rs. 14,40,000/. On 21.02.2016, accused No. 2 undertook to execute the agreement or to return the money on an Estamp paper. Thereafter, when accused again approached the accused persons to do the needful, accused no. 1 in presence of and at the instance of accused No. 2 issued a cheque bearing No. 584953 dated 03.05.2016 for a sum of Rs. 14,40,000/ drawn on PNB, Bhajanpura, Delhi which is Ex. CW1/2. The Page No. 2 of 16 Ram Niwas Singh VS. Manoj & Anrs.
complainant accordingly, presented the aforesaid cheque and the same was returned unpaid by the banker for the reasons insufficient funds vide returning memo Ex.CW1/5. Legal demand notice dated 09.06.2016 which is Ex.CW1/6. It is submitted by the complainant that the accused has failed to paid the amount of cheque in question within the stipulated period of 15 days. Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of the Negotiable Instruments Act, 1881 (in short NI Act) on 23.07.2016.
2) Cognizance of offense under section 138 NI act was taken against all the accused and summons were issued. Thereafter, accused no. 2 Ajit Singh was discharged from the present case vide order of this court dated 19.09.2019. Cognizance was taken against the accused No. 1. Notice of accusation u/s 251 Cr.PC was served upon the accused on 30.11.2016 and plea of defence of the accused was also recorded on the same day in which he had not pleaded guilty and claimed trial.
3) In post summoning evidence of complainant (CW1) has been examined and cross examined as sole complainant witness for proving his version of the case. The complainant relied upon document Ex.CW1/1 to Ex.CW1/13. An Page No. 3 of 16 Ram Niwas Singh VS. Manoj & Anrs.
opportunity was granted to the accused to crossexamine the complainant and thereafter memorandum of statement of accused u/s 313 r/w 281 of Cr.PC also recorded in the case wherein accused wanted to lead defence in his favor. Thereafter, Ld. Counsels for both the parties made detailed final oral submissions on behalf of respective parties.
4) In his defence, the accused choose not to lead any evidence. Accused had stated in his notice to accusation that he had not given the cheque in question to any one as he does not know the complainant personally. It is further submitted by the accused that no property transaction ever taken place between him and the complainant. It is further stated that he had not taken any amount in cash from the complainant and he do not have any liability towards the complainant. Same defence was taken by him in his statement u/s 313 CrPC.
5) Ld. counsel for the complainant contended that the accused has admitted that his dishonored cheque in question bears his signature and legal presumption of consideration u/s 139 of NI Act would act against the accused. Ld. Counsel for the complainant further contended that the accused does not have any Page No. 4 of 16 Ram Niwas Singh VS. Manoj & Anrs.
defence evidence in present case and he has taken false plea to avoid his liability towards the complainant.
6) This is the factual matrix of this case. Let us now examine the legal benchmark which is to be satisfied in order to constitute an offense under section 138 NI Act:
(i) that the persons must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) That the cheque should have been issued for discharge in whole or in party of any debt or other liability.
(iii) that the cheque has been presented to a bank within a period of three months from the date on which it was drawn.
(iv) that cheque is returned by the bank unpaid because of the amount of money standing to the credit of account is insufficient to honor the cheque or that it exceeds the amount arranged to to be paid from that account or any other reason.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount by giving a notice in writing to the Page No. 5 of 16 Ram Niwas Singh VS. Manoj & Anrs.
drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of cheque as unpaid.
(vi) that the drawer of the said cheque fails to make payment of the said amount to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
7) It is only when all the aforementioned ingredients are satisfied, that the person who had drawn the cheque can be deemed to have committed an offense u/s 138 of NI Act.
8) Arguments heard of both the parties. File perused.
9) In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court, held as under:
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the Page No. 6 of 16 Ram Niwas Singh VS. Manoj & Anrs.
statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. 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 nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, 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 presumptions, 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 nonexistence was so probable that a prudent man would under the circumstances of the case, act 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 Page No. 7 of 16 Ram Niwas Singh VS. Manoj & Anrs.
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. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
10) In M. S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39, the Apex Court dealing with the statutory presumption under Sections 118(a) and 139 of the N. I. Act inter alia held as under:
"29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "disproved" have been defined in Section 3 of the Evidence Act (the interpretation clause)......
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until Page No. 8 of 16 Ram Niwas Singh VS. Manoj & Anrs.
after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
XXX XXX XXX
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
XXX XXX XXX Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the s standard of reasonability being that of the 'prudent man'."
Page No. 9 of 16 Ram Niwas Singh VS. Manoj & Anrs.
11) The gist of two above mentioned precedents is that the accused is in trial under Section 138 NI Act is left with two alternatives for his defence. He can either show that consideration and debt did not exist for which direct evidence could be adduced which is seldom available or he can show by relying upon circumstantial evidence that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that prudent man ought to suppose that no consideration and debt existed. It is evident that standard of proof to rebut the statutory presumption is not to prove it beyond the reasonable doubt as required in a criminal complaint. The onus to that effect on the accused is not onerous and what is required is a probable defence which could primarily find its foundation in preponderance of probabilities. In order to raise a probable defence, the accused can also rely on the evidence adduced by the complainant. However, a bare denial of the statutory presumption by the accused will not suffice.
12) In present case, the accused had admitted his signature and account number with respect to cheque in question in notice u/s 251 of Cr PC. However, he did not fill the body of cheque in question. Now, admission of signature and account number has itself creates the presumption u/s 139 of NI act in favor of Page No. 10 of 16 Ram Niwas Singh VS. Manoj & Anrs.
the complainant. Now the burden of proof shifts upon the accused to rebut the presumption that such liability does not exist. In the present case the accused has taken the following defence to rebut the presumptions.
13) In the present case accused has raised two defenses. First is that he had not given the cheque in question to the complainant and second is that no property transaction was ever executed between him and the complainant. Now let me examine the first defense. Accused had admitted his signature and account number on cheque in question. However accused had made a evasive denial before this court that cheque in question was not issued to the complainant. Except this evasive denial accused had not made a single clarification that how the cheque in question came in the possession of the complainant. It was not even clarified that whether it was lost or stolen by someone or misplaced from somewhere. A person of ordinary prudence would not have been so lethargic that he even did not know the whereabouts of his blank signed cheque. It was the bounding duty of the accused to prove that how the cheque in question came in the possession of the complainant. On the basis of evasive denial without any clear cut clarification it can not be believed that accused had not handed over the cheque to the complainant. Thus from the above Page No. 11 of 16 Ram Niwas Singh VS. Manoj & Anrs.
discussion it can be very well said that cheque in question was handed over to the complainant by the accused.
14) The second defense raised by the accused is that no property transaction was ever executed between them. Now to this particular fact also accused has not raised any defense in his favor rather he has simply denied the property transaction without placing any cogent evidence before the court. Learned counsel for accused had argued before this court that it is not always necessary for the accused to adduce direct evidence to prove the non existence of debt rather the same can be discharged on the basis of material already on record. Learned counsel for accused had further argued that there are many contradictions and loopholes in the testimony of the complainant. Let us examine whether the testimony of the complainant has passed the test of crossexamination. In crossexamination complainant deposed that he met the accused and Ajit singh in first week of January 2016 in respect of purchase of property and the payment in cash is made to the accused in second week of January, 2016. The deposition of the complainant is corroborated by the second para of the complainant as both the facts are correctly stated in said para. Up to this extent testimony is clear and unrebutted. The argument which Page No. 12 of 16 Ram Niwas Singh VS. Manoj & Anrs.
the learned counsel for accused has raised is that the complainant was not having any financial capacity to pay the alleged amount. Let me examine this fact. Complainant deposed that he had arranged Rs. 5,40,000 from his wife , Rs. 4,00,000 from his brother in law namely Brijesh chauhan and the rest amount of Rs. 5,00,000 was available from his savings. Now if I examine this statement learned counsel for accused has not put even a single suggestion that no such payment was received by the complainant or that he was not having financial capacity to pay the money. Complainant has clarify the source of amount to which no suggestion was asked. Therefore the statement of complainant stands clear and unrebutted as I see no reason to doubt the same. Now in para no. 4 of the complaint it is stated that complainant went to the house of the accused with respectable members of the society and on the same day cheque in question was handed over by the accused. Same is deposed by the complainant in his crossexamination and he also clarifies the name of the persons who went along with him at the house of accused. Further, learned counsel for accused had argued that in complaint, complainant stated that the his house and the office of the accused are adjacent and in his cross examination he deposed that these are not adjacent. I m not considering it as a contradiction as the accused has already admitted in his notice of accusation Page No. 13 of 16 Ram Niwas Singh VS. Manoj & Anrs.
that his father and the complainant are good friends. I do not find any merit in this argument raised. Therefore after reading the complaint and the cross examination of the complainant I do not find any contradictions or loophole rather there are corroboration between both.
15) One another argument which was raised by the learned counsel for accused is that no written document was executed between both the parties. Let us examine this fact. Complainant in his crossexamination had admitted that no written document was executed against the advancing of money. Complainant had produced a document which is Ex. Cw1/1. Perusal of the document reveals that it is a e stamp and it bears description of the words which the complainant alleges that it is the handwriting of the accused. I am not taking this document into consideration as neither it was put to the accused for its authentication nor the handwriting of the accused was duly proved. There is no other document on record. An amount of Rs. 14,40,000 is a huge amount and non executing of a document for giving of said amount can go in either way. However merely the document was not executed the whole of the case of the complainant can not be defeated. The presumption is in the favor of the accused which he has failed to rebut. Had the accused been able to create Page No. 14 of 16 Ram Niwas Singh VS. Manoj & Anrs.
some reasonable doubts over the story of the complainant or relieved his burden of proof then non executing of the document must have ample relevancy in the present case. Therefore in light of above discussion merely a document was not executed can not be said that money was not advanced.
16) One another fact which I must discuss here is that accused had admitted the receiving of legal demand notice issued by the complainant however he did not reply to the same. A person of ordinary prudence whose cheque has been wrongly misused would not have remained quiet after receiving the legal notice. One must not have remained mum if the contentions raised by the opposite party were false and wrong. Thus adverse inferences may be drawn from the fact of not replying to the legal notice after duly receiving the same.
17) In view of above discussions, this court is of considered view that accused has failed to create reasonable doubt over the veracity of story of complainant by balance of probabilities. It is noticeable that the complainant has to prove his case beyond reasonable doubt only when the accused has rebutted the presumption u/s 139 NI act which the accused has fails to do in present case.
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18) In upshot of aforesaid discussion, I return finding of conviction of accused Manoj for offense u/s 138 of NI Act in this case.
19) Let the convict be heard on quantum of sentence.
Digitally signed byTUSHAR GUPTA
TUSHAR Location:
Karkardooma
GUPTA Courts, East District,
Delhi
Date: 2020.01.31
Announced in the open court (TUSHAR GUPTA) 15:18:35 +0100
on 31st Day of January, 2020. MM/KKD(East)/Delhi Page No. 16 of 16 Ram Niwas Singh VS. Manoj & Anrs.