Delhi District Court
Sarabjit Singh vs . Amit Jha & Anr. on 21 January, 2020
IN THE COURT OF DR. PANKAJ SHARMA: METROPOLITIAN
MAGISTRATE, PATIALA HOUSE COURTS, NEW DELHI.
Sarabjit Singh Vs. Amit Jha & Anr.
Case No.464/16
U/s 138 Negotiable Instrument Act
JUDGMENT
Case No. : 464/16
Date of Institution : 03.01.2008
Date of Commission of Offence : 14.11.2007 to 29.11.2007
Name of the complainant : Mr. Sarabjit Singh
Proprietor of Architectural Network
The Cranium, 24, Adhchini
Aurobindo Marg, New Delhi-110017
Name & address of the accused : 1. Mr. Amit Jha
Director, M-Tech Developers Pvt.
Ltd. ANS House 144/2 Ashram,
Mathura Road, New Delhi-110012.
2. M-Tech Developers Pvt. Ltd.
ANS House 144/2 Ashram,
Mathura Road, New Delhi-110012.
Offence complained of : U/s 138 r/w section 141 Negotiable
Instruments Act, 1881.
Plea of accused : Not guilty
Final Order : convicted
Date on which reserved for judgment : 16.01.2020 Date of announcing of judgment : 21.01.2020 BRIEF STATEMENT OF THE REASONS FOR THE DECISION CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 1 of 19
1. Briefly stated, as per complaint, the complainant is the Proprietor of Architectural Network and signed and filed the complaint. It is averred that the accused, M-Tech Developers Pvt. Ltd., acting through its Director, Amit Jha, who approached the complainant with a proposal to invest in a property in Goa. It was represented to the complainant that the accused is a leading promoter, builder, developer and has developed a number of residential colonies, commercial complexes, housing etc. and further represented that the accused had the license to develop the villas in Goa. Thereafter, complainant and accused entered into an agreement believing the assurances of the accused. In furtherance of said agreement, a sum of Rs.10,36,875/- was paid by the complainant to the accused towards the construction and development of the Villa in Goa as advance for registration of Plot/Villa/Flat @ 1975/- per square feet [size 2100/- sq. ft.]. It is averred that the accused was unable to honor the commitment and the project of flats and independent villas at Goa was shelved. Therefore, in accordance with the terms the accused is liable to pay an amount of Rs.10,36,875/- to the complainant as refund. It is averred that the accused for the purpose of refunding the money paid by the complainant issued three cheques to the complainant totaling to the exact amount paid by the complainant. The details of the cheques are as under:-
S. No. Cheque No. and Bank Date Amount
1. 364267, State Bank of India 11.10.2007 Rs.3,50,000/-
2. 364269, State Bank of India 13.10.2007 Rs.3,36,875/-
3. 364268, State Bank of India 15.10.2007 Rs.3,50,000/-
Total Rs.10,36,875/-
2. The complainant relied upon the assurance of the accused and CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 2 of 19 presented the aforesaid cheques for encashment with his bankers i.e. ABN Amro Bank. However, the aforesaid cheques were returned on the ground of "Insufficient Funds" vide cheque memo dated 11.10.2007, 18.10.2007 and 16.10.2007 for cheque nos.364267, 364269 and 364268 respectively. It is averred that the complainant on 01.11.2007 sent a legal notice to the accused with a demand to pay the amount against the same. The accused sent a reply of the legal notice dated 19.11.2007 stating that the amount has been paid thrice by cash and once by DD No.074189. The accused failed to make the payment of the cheques in question within the statutory period of limitation. Hence, this complaint under section 138 Negotiable Instrument Act, 1881 (hereinafter referred to as "NI Act") was filed on 03.01.2008 against the accused.
3. In pre-summoning complainant evidence, CW-1 Sh. Sarabjit Singh was examined on oath and he has deposed on the similar lines as that of the complaint and exhibited documents from Ex.CW1/1 to Ex.CW1/10. Therefore, his testimony is not reproduced herein to avoid repetition. Thereafter, the accused Amit Jha, Director of M/s M-Tech Developers Pvt. Ltd. was summoned for facing trial of the offence punishable under Section 138 NI Act. Thereafter, notice was framed against accused Amit Jha on 06.04.2010 and matter was fixed for post notice evidence and after the same got concluded statement of the accused was recorded under Section 313 Cr.P.C. Thereafter, matter was fixed for defence evidence. After DE was led, matter was fixed for final arguments and during this time an application under Section 319 Cr.P.C. was moved on behalf of the complainant and same came to be allowed vide order dated 22.08.2014 and M/s M-Tech Developers Pvt. Ltd. was ordered to be arraigned as an accused. The said order was set aside by CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 3 of 19 ld. ASJ vide order dated 20.02.2015. The order of ld. ASJ dated 20.02.2015 was set aside by Hon'ble High Court of Delhi vide order dated 08.10.2018. Since, there was no stay on the proceedings, the notice against accused no.2 was framed in the intervening time on 24.05.2016. The accused moved an SLP before Hon'ble Supreme Court of India which was dismissed vide order dated 30.07.2019. Thereafter, CE was closed on 07.01.2019 and statement of accused no.2 company through Krishan Kumar Tripathi was recorded on 19.10.2019. DE was closed on 13.12.2019.
4. CW1 tendered his evidence in post summoning evidence on 30.06.2011 and relied upon documents Ex.CW1/1 to Ex.CW1/10. In his cross-examination, he stated that villa was booked by him. He stated that his partnership concern M/s Architectural Network has no concerned with the present matter. He denied the suggestion that he sent the legal notice as the proprietor of said firm. He denied knowing any person by name Rahul. He admits that one Mr. Rahul was his employee and his full name was Rahul Kumar. He volunteered that there were three persons named Rahul who worked with him and he has three friends having the name Rahul. He admitted to have received one draft from the accused and draft no.074189 for Rs.3,87,625/- dated 19.10.2007 might be the same draft which he received. He volunteered that the draft which he received was for another property which he bought from the accused and same is unconnected with the present matter. He stated that he bought an apartment in the same complex where he booked the villa in Goa. He filed the statement of account for the period of 04.10.2007 to 26.10.2007 which is Ex.CW1/11 and the photocopy of the receipt issued by M-Tech Developers is Ex.CW1/12. He stated that he cancelled the booking of the apartment in the first CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 4 of 19 week of October, 2007, however, he had no document to show that he applied for cancellation/surrender of the apartment. He volunteered that accused asked him to hand over the original of Ex.CW1/12 and told him that they shall return his booking amount along with penalty. He stated that original booking amount of the apartment was Rs.2,06,250/-. He did not know the amount of penalty and interest paid separately over and above the booking amount by the accused company. He volunteered that it was their internal arrangement and he asked for double the booking account. He could not recall as to who accepted the demand draft from the accused company and he could not recall that the demand draft was collected by his employee Mr. Rahul. He stated that amount of the cheques in question does not include the amount of penalty or interest. He denied the suggestion that accused company paid an amount of Rs.3,50,000/-, Rs.2,00,000/- and Rs.1,00,000/- in cash to him through his employee Mr. Rahul on 12.10.2007, 17.10.2007, 20.10.2007 respectively. He denied the suggestion that payment of Rs.387625/- through demand draft was against the part payment of the impugned cheques. He denied the suggestion that he never applied for cancellation of the booking of the second apartment. He denied the suggestion that he had not approached the accused company for cancellation of booking of second apartment in the first week of October, 2007. He denied the suggestion that payment of Rs.387625/- was not against the cancellation of booking of second apartment for which he paid Rs.206250/-. He could not recall whether he had filed a written application for cancellation of second booking after a month of encashment of demand draft of Rs.387625/-. He could not recall whether the receipts Ex.CW1/D1 were surrendered by him to the accused. He admitted Ex.CW1/D1, Ex.CW1/D2, Ex.CW1/D3, CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 5 of 19 Ex.CW1/D4, Ex.CW1/D5 and Ex.CW1/D6. He couldn't tell whether the photocopy of PAN of Rahul Srivastava was submitted by him which is Mark-X. He couldn't tell whether the photo affixed on Mark-X is of his employee. He couldn't tell whether Ex.CW1/D7 was signed by his employee at point A and how he received cheque no.364269 for Rs.336875/-. He couldn't say anything about the fact that the said cheque was received by his employee Rahul Srivastava on his behalf. He said the same thing regarding Ex.CW1/D8 and Ex.CW1/D9. He couldn't tell whether the signature on Ex.CW1/D10 is of his employee or not. With respect to the question that his booking for two BHK apartment is subsisting. He stated that he has already received refund with interest and penalty due to him by accused company through DD No.074189 for Rs.387625/-.
5. CW1 again filed his fresh affidavit after company was impleaded as accused and in his cross-examination, he stated that he couldn't recall where exactly he had signed the affidavit Ex.CW1/1AA and volunteered that he signed it at Delhi. He stated that date of all the three cheques were changed at his request by the accused. He stated that accused gave him post dated cheques and since the payment was overdue, he was requested to prepone the dates of the said cheques. He stated that he couldn't recall the exact date on which he had received demand draft of Rs.387625/- and also who gave him the said draft. He volunteered that this happened more than a decade back. He stated that the amount of Rs.1036875/- is only the principle amount of the villa. Thereafter, CE was closed.
6. Statement of accused no.1 under Section 313 Cr.PC was separately recorded on 12.03.2013. In the said statement all the incriminating evidence were put to him distinctly, separately and CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 6 of 19 specifically for seeking his explanation. In the said statement, accused has stated that he had not given the subject cheques to the complainant. He also denied his signatures on the cheques. He admitted to have received legal notice. He shown ignorance about the reason for dishonourment of cheques.
7. Statement of accused no.2 through AR under Section 313 Cr.PC was separately recorded on 19.10.2019. In the said statement all the incriminating evidence were put to him distinctly, separately and specifically for seeking his explanation. In the said statement, accused admitted that complainant paid a sum of Rs.1036875/- to accused no.1 company for the purpose of the villa at Goa. He also admitted that complainant approached the accused no.2 company for refund of the said amount. However, company did not offer the same. He denied that accused no.2 through accused no.1 issued three cheques in favour of the complainant. He admitted that cheques were dishonoured but due to alteration by complainant and not due to insufficiency of funds. He admitted that reply Ex.CW1/9 was sent by accused no.2 company to the complainant for the legal notice dated 01.11.2007. He stated that accused company has already made payment of all the cheques. Accused opted to lead evidence in his defence.
8. in DE, DW1 Sh. C.V. Rao, Senior Accounts Officer of accused no.2 was examined. He stated that he was working in accounts department of the company for the last eight years and he maintains account books i.e. cash book, voucher and related record. He stated that complainant had two bookings and one was cancelled on 06.10.2007 and receipt and letter given by the complainant are Ex.CW1/D1 and Ex.CW1/D2. Signature verification form is Ex.CW1/D3 and letter of refund is Ex.CW1/4. PAN Card is Ex.CW1/D5. He stated CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 7 of 19 that he prepared the vouchers through which cheques were issued to complainant which are Ex.CW1/D7 to Ex.CW1/D9 and the cheques were collected by Sh. Rahul, employee of the complainant. He stated that he got it confirmed from the complainant about the release of cheques to Rahul. He stated that DD of Rs.387625/- was also given to Mr. Rahul on behalf of complainant and the receipt given by Rahul is Ex.CW1/10. He submits that after cheques were dishonoured on the request of complainant, cash was paid to complainant through Rahul and Rahul signed the vouchers prepared by him. He stated that original vouchers have been misplaced before handing over the same to the counsel and till date not traceable, however, photocopy is filed with the record. He stated that in day book dated 12.10.2007 Rs.3,50,000/- is shown to be paid to the complainant. Copy of the same is Ex.DW1/A and similarly for 17.10.2007 Ex.DW1/B and for 20.10.2007 Ex.DW1/C. He stated that draft of Rs.387625/- was issued against the cancellation of the booking Ex.CW1/D2 and receipt Ex.CW1/D1 and the booking for flat is still subsisting as no cancellation has been made and no payment has been made against that flat. In his cross-examination, he stated that apart from his letter dated 08.05.2013, he also possess other documents to prove that he had been working with the accused company for over eight years. He admitted that his daily work is limited to managing the money transactions and updating the accounts of the company. He maintained that two bookings pertain to a flat and villa and he had no idea as the price difference between them. He stated that booking with respect to villa has been cancelled. While he was question about how he so certain about which booking is cancelled as he was not aware of price difference of the two, he stated that he is not aware as this pertains to 2007. He asserted that he has dealt with the transactions CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 8 of 19 from start to end. He stated that only he disburses the cash. He stated that prior to cancellation, he asks the individuals to fill out the booking cancellation form and after signature verification from the bank, he issued cheques or cash as the case may be. He stated that in case of cash he first verifies the individual's identity by taking a PAN or other proof and thereafter, disburses the cash. He stated that similar procedure is follows in cash any authorized person comes in place of the individual. He stated that he took PAN of Rahul Srivastava as identity proof before giving him cash. He stated that he refund a huge amount of Rs.1036875/- in cash to Rahul Srivastava without conducting all the verification as he received all the relevant documents from the complainant. He stated that at the time of surrendering/cancelling the booking of the villa Mr. Rahul came with the complainant and complainant asked him that Mr. Rahul will come for collecting the sum and I had taken the copy of PAN of Rahul Srivastava. He couldn't recall whether he confirmed through telephonic conversation with the complainant before disbursing the amount in cash to Rahul Srivastava. He denied the suggestion that Rahul Srivastava was not duly authorized by the complainant to take the money on his behalf and that's why he has no record pertaining the same. He could not remember as to what amount he withdrew from the company for the refund of the complainant and the time of it. He produce document Ex.DW1/H, however, same was objected to by the ld. counsel for complainant. He stated that the cheques had been signed by the authorized signatory. He stated that the entire process from cheque to cash will take at least a month and a half in any given case. He denied the suggestion that accounts produced by him are doctored and self servant. Thereafter, DE was closed.
CC No.464/16Sarabjit Singh Vs. Amit Jha & Anr. Page no. 9 of 19
9. Final arguments were heard. Case file is carefully perused.
10. In order to bring home the guilt of the accused for the offence punishable under Section 138 NI Act, the complainant is required to prove the following essential ingredients of the said section:-
a) The accused had drawn a cheque in favour of the complainant;
b) The same was presented by the complainant with his banker within the period of its validity and the same was returned back unpaid due to insufficiency of funds or that it exceeds the amount arranged to be paid from the account of the accused;
c) The complainant gave a notice in writing to the accused within 30 days of the receipt of information by him from the bank regarding its return as unpaid;
d) The accused failed to make payment of the amount of cheque within 15 days of the receipt of the said notice;
e) The complainant institutes the complaint within 30 days from the date of expiry of the said 15 days; and
f) The cheque was issued by the accused for the discharge, in whole or in part, of any debt or other lawful liability.
11. As per Section 139 NI Act there is a presumption in favour of the complainant that the cheque in question was issued by the accused in discharge of his lawful liability. Before evaluation of the facts of this case, it would be handy to spell out all the relevant provisions and the binding precedents. Section 139 NI Act prescribes for presumption in favour of the holder of the cheque. The same is reproduced as under:-
"139.Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
The relevant portion of Section 118 NI Act is as under:
"118. Presumptions as to negotiable instruments-CC No.464/16
Sarabjit Singh Vs. Amit Jha & Anr. Page no. 10 of 19 Until the contrary is proved, the following presumptions shall be made:-
a) of consideration- that every negotiable instrument was made or drawn for consideration, indorsed, negotiable or transferred, was accepted, indorsed, negotiated or transferred for consideration......."
The law laid down by Hon'ble Supreme Court in case titled as M/s. Kumar Exports Vs. M/s. Sharma Carpets 2009 (2) SCC 513 in respect of presumptions contained in the aforesaid two provisions is reproduced as under:-
"18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume"
and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 11 of 19 only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
20.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 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 non-existence 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 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 shifts again on to the complainant......"
12. Thus, as per the statute and its interpretation by Hon'ble Supreme Court, it is mandatory for the court to draw a presumption against the drawer/accused. However, the said presumption is rebuttable. The accused can rebut the same by proving the contrary. The onus upon the accused of countering the said rebuttable presumption is not as onerous CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 12 of 19 as proving it beyond any reasonable doubt. The standard of proof for rebutting the said presumption is that of "preponderance of probabilities". The same is buttressed by the findings of Hon'ble Supreme Court of India in the case titled as Rangappa Vs. Mohan (2010)11SCC441 and its relevant portion is reproduced as under:-
"14.......................However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of Probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own".
13. Thus, in the event the accused is able to raise a probable defence which creates doubt with regard to the existence of debt or liability, the presumption may fail. The accused may discharge the said onus by leading positive evidence to dispel the said presumption or by impeaching the credibility of complainant witness through his cross-
CC No.464/16Sarabjit Singh Vs. Amit Jha & Anr. Page no. 13 of 19 examination or by creating holes in the version of the complainant to render it improbable.
14. Adverting to the facts of the present case, the first argument raised on behalf of accused persons are that the present complaint was filed beyond the period of limitation as such same may be dismissed at threshold. It was contended on behalf of accused that the limitation for filing the complaint was expired on 02.01.2008 and the complaint was filed on the subsequent day and no notice of the application seeking condonation of delay was issued to the accused. It is further contended that there is no reasonable cause shown by the complainant for condonation of delay and the application under Section 5 of Limitation Act was not signed by the complainant. Also, it is submitted that NI Act is a Special Act which provides for condonation of delay as per Section 142(2) of the Act and Limitation Act is not applicable herein.
The record would show that the present complaint was instituted on 03.01.2008 and came for hearing for the first time on 04.01.2008. Vide order dated 28.02.2008, the court allowed the application for condonation of delay noting that there is a delay of one day in filing the complaint and the same was due to the illness of the counsel of the complainant which fact was supported by an affidavit of the counsel of the complainant. Also, during the cross-examination of CW1, a question was attempted to be put to him regarding the notice of the application to the accused at the time of cognizance, however, the said question was disallowed by the court observing that same is a matter of record. From the record it is evident that the court had condoned the delay on 28.02.2008 in filing the complaint, however, accused has attempted to agitate the said issue again in futility as the said finding had attained finality in view of the fact that accused never preferred any appeal or CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 14 of 19 revision against the said order of condoning the delay in filing the complaint. The judgments relied upon by the accused are easily distinguishable from the facts of the present matter. So, the plea of the accused for dismissal of the complaint on the ground of limitation appears to be baseless and vague.
15. The next argument raised on behalf of accused persons is that the cheques in question i.e. Ex.CW1/1, Ex.CW1/2 and Ex.CW1/3 are null and void as there appears alteration on them. It was contended that on cheque Ex.CW1/1, the date has been altered from 28.11.2007 to 12.10.2007 and then to 11.10.2007 and the said dates have not been endorsed by the drawer and same are forged by the complainant. Similarly, on Ex.CW1/2 date has been changed from 29.11.2007 to 13.10.2007 and there is no endorsement by the drawer of the cheque. It was contended that neither in the complaint or in the affidavits there is a whisper that the dates on the cheque were altered with the consent of the drawer or there is any endorsement by the drawers of the cheques. It is contended that Section 87 of NI Act is mandatory and same renders any material alteration on a Negotiable Instrument as void. It was also contended that these instruments were initially signed by two persons, however, one signature is appearing where the date of presentation is altered and the said signatures are not of the accused.
Regarding change of dates a plausible explanation has been furnished by CW1 during his cross-examination wherein he was asked about the same question and he replied that the dates were changed at his request by the accused as accused had given post dated cheques and since the payment was overdue he was requested to prepone the dates of the said cheques. Ex.CW1/1, Ex.CW1/2 and Ex.CW1/3 are perused and the alteration of these instrument is only with respect to the CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 15 of 19 date of presentation counter signed by one of the authorized signatory. These instruments are apparently dishonoured for want of funds as per the returning memos Ex.CW1/4, Ex.CW1/4A, Ex.CW1/5, Ex.CW1/5A, Ex.CW1/6 & Ex.CW1/6A. The cheques returning memos do not mention the reason for dishonourment as 'material alteration' on these instruments despite there being a specific column to this effect for dishonourment in the returning memos. It is noteworthy that if the cheques in question would have depicted material alteration then the banker would have been the first to point out the same and the said detection would have been reflected as a reason for dishonour in the returning memos. The court is cognizant of the fact that at the relevant time when the cheques were dishonoured any cutting on the cheques counter signed by the drawer would not itself render it void or in other words the cheques were put for clearance if the signature of the drawer matched wherein cutting has been made. It is pertinent to note there DW1 categorically stated in his cross-examination that cheques had been signed by their authorized signatory. Therefore, the plea of the accused that his signatures are not there on the cheques in question or they are forged can easily be discounted on the fact that cheques in question were signed by the authorized signatory of the company and they are not dishonoured on account of different signature but for in sufficient funds. It is worth noting that accused during the long journey of trial never asked for forensic examination of the signatures on the cheques in question to support his plea of forgery on the cheques and also could not produce single piece of evidence to support the said contention. The judgments relied upon on behalf of accused persons are distinguishable from the facts of the present matter. In this background, the plea of alteration of the cheques by complainant is baseless and CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 16 of 19 same deserves to be dismissed.
16. It was contended on behalf of accused that the cheques in question were not issued in discharge of legal liability and same happened to be misused by the complainant. It is submitted that accused subscribed for a flat and a villa and sought refund for the villa and the amount of the villa along with the cheques returning charges were paid to the complainant through his agent Mr. Rahul Srivastava. It was also contended that along with a demand draft thrice payment has been made to Mr. Rahul in cash for the said amount as per Ex.CW1/9 and the receipts and encashment of DDs are admitted by complainant. It is submitted that the plea of the complainant that the draft was issued against the booking of the flat is totally false as the said fact he has not averred in his complaint or in his affidavit and for a booking amount of Rs.206250/- no person will pay an amount of Rs.387625/- and also complainant failed to prove that the said flat was surrendered.
As per the testimony of CW1, he did admit to have received one demand draft from the accused but according to him, the same was received from one another property apart from the villa. It is undisputed that complainant subscribed for one flat and one villa and paid initial amount. Accused has disputed that the demand draft of Rs.387625/- is pertaining to the refund of the villa and not for the flat which fact is vehemently denied by the complainant. Complainant has furnished his explanation that he asked for double the booking amount of Rs.206250/- for the flat and accepted the demand draft in refund of the said amount. Complainant denied for having received the said demand draft against the part payment of the cheques in question. The testimony of CW1 is reflective of the fact that the demand draft of Rs.387625/- was accepted on account of the booking of the flat. The plea of the accused that who CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 17 of 19 would give Rs.387625/- for the subscribed amount of Rs.206250/- appears to be vague as in common parlance in transaction like these double the initial amount/earnest money is commonly practiced and the amount of Rs.387625/- is less than the double of the booking amount which gives credence to the explanation provided by the complainant.
The alleged cash payments made by accused company to the complainant remained unsubstantiated as DW1 who is the account officer of the accused company working with the company for the last eight years deposed before court that the original vouchers have been misplaced. There has been no document in the form of police report regarding the missing of these vouchers is produced by the accused company to support the said loss of vouchers. It is noteworthy that these vouchers if produced in original before court would have supported the stand of the accused and lent credence to the fact of cash payment as alleged by the accused. Also, his testimony would show that he is unable to recall whether he has confirmed from the complainant to hand over the said sum in cash to Rahul on complainant's behalf. The ledger account produced by DW1 which is Ex.DW1/H could not be taken as proved in the absence of mandatory certificate under Section 65-B of Indian Evidence Act as such the objection raised on behalf of complainant regarding the mode of proof is sustained. Accused has failed to adduce direct evidence to prove that thrice payment in cash as reflected in Ex.CW1/9 have been made to Rahul on behalf of complainant. It is undisputed fact that complainant had sought cancellation of the booking of villa and accused had to refund the booking amount and the cheques in question were issued in discharge of the said liability. Accused could not bring on record which could be termed as probable defence to rebut the presumption contained in CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 18 of 19 Section 139 of NI Act for shifting the burden of proof to the complainant. On the other hand, complainant has firmly established the existence of a legally recoverable debt or liability and the issuance of cheques in question by the accused persons in discharge of their liability.
17. In view of the above discussion, the accused has failed to prove on record any admissible and reliable evidence to discharge his onus of rebutting the initial presumption in favour of the complainant as enshrined u/s 139 NI Act. There is no denial to the fact that the said burden is not onerous as the standard is of "preponderance of probabilities". However, still the accused had to show some facts or circumstances in his favour to at least raise suspicion in the story of the complainant or to displace the said presumption against him. In its absence, the initial presumption drawn against the accused has stood its ground. Accused persons are liable for dishonour of the disputed cheques.
18. For the forgoing reasons, the accused persons are hereby held guilty and convicted for the offence punishable under Section 138 NI Act.
Put up on 27.01.2020 for arguments on the quantum of sentence.
ANNOUNCED IN THE OPEN COURT ON 21.01.2020 (DR. PANKAJ SHARMA) METROPOLITAN MAGISTRATE, PATIALA HOUSE COURTS NEW DELHI CC No.464/16 Sarabjit Singh Vs. Amit Jha & Anr. Page no. 19 of 19