Delhi District Court
Manoj Kumar vs . Robin Singh on 29 November, 2022
IN THE COURT OF SH. MAYANK GOEL:MM(NI ACT)-02,WEST, TIS HAZARI
COURTS : DELHI
____________________________________________________________________________
Ct. Cases No. 14790/2018
MANOJ KUMAR Vs. ROBIN SINGH
PS Rajouri Garden
U/s. 138 Negotiable Instrument Act
Manoj Kumar,
S/o Sh. Chandeshwar Rai
R/o E-58, J.J. Colony ,
Khyala, Tilak Nagar,
New Delhi-110018.
........................ COMPLAINANT
Vs.
Robin Singh,
S/o Sh. Surender Singh,
R/o WZ-283/222, Third Floor,
Maddi Wali Gali No. 7,
Vishnu Garden,
New Delhi-110018
.......................... ACCUSED
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Ct. Cases No. 14790/2018
MANOJ KUMAR Vs. ROBIN SINGH Page No. 1 of 13
PS Rajouri Garden
U/s. 138 Negotiable Instrument Act
JUDGMENT
1) Offence complained of : Section 138 Negotiable Instruments Act 2) Plea of accused : Pleaded not guilty 3)Date of institution of the case : 19.12.2018 4) Final order : Convicted 5) Date of reserving of order for judgment : 21.11.2022 6) Date of final order : 29.11.2022
___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 2 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act Brief reasons for decision:
1) The necessary facts for disposal of present case as reflected in the complaint is that the complainant deals in the business of photography and videography and the accused approached the complainant in May - June of the year 2018 and stated that he required a professional photographer and videographer on different occasions and the complainant provided they accused the services of Rs.1,35,000/-. That in discharge of his legal enforceable debt, the accused issued four cheques bearing number 000070 for an amount of Rs. 25,000/- which is exhibit CW1/1, cheque bearing number 000069 for an amount of Rs.30,000/-
which is exhibit CW1/2, cheque number 000073 for an amount of Rs.40,000/- which is exhibit CW1/3 and cheque number 000072 for an amount of Rs.40,000/- which is exhibit CW1/4 with the assurance that the said cheques would get honoured when presented by the complainant for encashment. On presentation by the complainant with its banker, the said cheques were dishonored with remarks "Funds insufficient" as reflected vide returning memos dated 23.10.2018 and 25.10.2018 which are Ex. CW 1/5 to Ex. CW1/8. Thereafter, legal demand notice Ex. CW1/9(colly) dated 29.10.2018 was served upon the accused calling him to pay the cheque amount but despite the service of the legal notice, the accused has not paid the cheque amount within the stipulated period of 15 days as per NI Act. Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of the Negotiable Instruments Act, 1881.
2) Cognizance of offence under section 138 NI Act was taken against the accused and summons was issued. Notice of accusation u/s 251 Cr.PC was served upon the accused on 01.10.2019 and plea of defence of the accused was also recorded ___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 3 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act on the same day in which he had not pleaded guilty and claimed trial. The plea of accused had also been recorded on the same day and the accused submitted that the cheques in question bears his signature and he has filled up the other particulars in the cheques in question except the name and date in cheques bearing number 000072 and 000073. He further stated that he had not received the legal demand notice, however, it bears his correct and complete address. He further stated that he availed services from the complainant, however the same were not satisfactory and there were several complaints from his customers. He further stated that he had already paid Rs.1,20,000 to the complainant and he owe only the remaining amount.
3) In post summoning evidence, Complainant examined only himself as complainant's witnesses for proving his version of the case and was duly cross examined by Ld. Counsel for accused.
4) Thereafter memorandum of statement of accused u/s 313 Cr.P.C. was also recorded in the case wherein accused stated that he availed the services of the complainant worth about Rs.1,35,000/-. He further stated that he had received the legal demand notice regarding the cheques in question but he had not replied the same. He further stated that though he availed the services of the complainant, however, job done by complainant was not satisfactory and was not up to the mark. He further stated that there were complaints in the quality of the work done by the complainant. He further stated that he had already paid Rs.1,10,000/- to the complainant in two installments of Rs.50,000/- and Rs.60,000/-. He further stated ___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 4 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act that he suffered losses because of bad quality of work done by the complainant. He further stated that he owe only Rs. 25,000/- towards the complainant.
5) In his defence, the accused examined himself as DW1 and was duly cross-
examined by the Ld. Counsel for the complainant.
6) Thereafter, Learned Counsels for both the parties made detailed final oral submissions on behalf of respective parties.
7) Ld. Counsel for the complainant contended that the accused has admitted that his dishonored cheques in question bears his signature and also admitted that he had fully filled two cheques in question and partly filled the other two cheques in question and legal presumption of consideration u/s 139 of NI Act would act against the accused. It is further stated by Ld counsel for complainant that complainant has very well proved his case. It is further stated by Ld counsel for complainant that the accused at various stages of trial duly admitted the case of the complainant. It is further stated by Ld counsel for complainant that during cross-examination, the accused specifically admitted that he was liable to pay Rs.1,35,000/- to the complainant towards the work done by the complainant and he had issued four cheques in question to the complainant. It is further stated by Ld counsel for complainant that the accused during his cross-examination also specifically admitted that the cheques in question were issued by him before receiving the videos from the complainant but after the work assigned to the complainant was completed. It is further stated by Ld counsel for complainant ___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 5 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act that the accused also admitted his liability in statement under section 313 Cr.P.C. r/w Section 281 Cr.P.C. that he had availed the services of the complainant. It is further stated by Ld counsel for complainant that there is lot of contradiction in the statements given by the accused at the different times during the different stages of the trial. It is further stated by Ld counsel for complainant that at the time of framing of notice under section 251 Cr.P.C. it is stated by accused that he had already paid an amount of Rs.1,20,000/- to the complainant and at the time of recording his statement under section 313 Cr.P.C. read with section 281 Cr.P.C., it is stated by accused that he had already paid an amount of Rs.1,10,000 to the complainant. It is further stated by Ld counsel for complainant that no documentary proof has been placed on record by the accused regarding the losses incurred by him due to bad quality of work done by the complainant as alleged by him. It is further stated by Ld counsel for complainant that the accused had specifically admitted the case of the complainant and he may kindly be convicted in the present case.
It is stated by Ld counsel for accused that the accused duly admitted that he had availed the services of the complainant but the services provided by the complainant is unsatisfactory and not up to the mark and due to bad quality of work of the complainant, the accused had suffered losses. It is further stated by Ld counsel for accused that accused had already paid an amount of Rs. 1,10,000- Rs.1,20,000/- to the complainant and ready to pay the balance amount.
8) 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 offence under section 138 NI Act:
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(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 honour the cheque or that it exceeds the amount arranged 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 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.
9) 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 offence u/s 138 of NI Act.
10) As per section 114, Indian Evidence Act,1872 which is applicable to communication sent by the post, the court are to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that ___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 7 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act when a registered notice is posted , it is presumed to have been served unless rebuttal is given.
11) Final arguments addressed on behalf of both the parties have been heard and carefully considered along with the entire evidence on record.
12) 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 nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the 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 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 ___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 8 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act 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."
13) 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 "dis proved" 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 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.
___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 9 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act 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'."
14) It is a well settled proposition of law that once execution of Negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the non-existence of a consideration by raising a probable defence. The burden upon the accused of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist.
15) 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 ___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 10 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act 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.
16) In present case, accused has admitted his signature and account number with respect to cheques in question and also admitted that he had filled the body of two cheques in question fully and partly filled the body of two cheques in question. It is the case of the complainant that complainant has provided the services of photography and videography to the accused and in lieu of that services, the accused had issued the cheques in question totalling Rs.1,35,000. The main defence of the accused is that the work done by the complainant was of bad quality and not up to the mark and because of that bad quality of work, the accused had suffered losses. The accused, during his cross-examination, duly and specifically admitted his liability to pay Rs. 1,35,000/- i.e. the total amount of cheques in question to the complainant. Moreover, the accused failed to prove his defence that he had suffered losses due to the bad quality of the work done by the complainant. Here, the admission of signature and account number has itself creates the presumption u/s 139 of NI Act in favor of the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. When an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities.
___________________________________________________________________________________ Ct. Cases No. 14790/2018 MANOJ KUMAR Vs. ROBIN SINGH Page No. 11 of 13 PS Rajouri Garden U/s. 138 Negotiable Instrument Act Therefore, if the accused is able to raise the probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
17) In the present complaint case, the accused has failed to rebut the presumption raised under section 139 of NI act that such liability do not exist.
18) Ld Counsel for the complainant relied on several judgements. The proposition of law which has been clearly explained in Bir Singh V. Mukesh Kumar dated 06.02.2019 and have been subsequently relied upon by the Apex Court and other Hon'ble Courts is as follows:-
a) That the onus to rebut the presumption u/s 139 of the NI Act that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of the cheque of legal consequences.
b) That the bare reading of the provisions of Section 20, Section 87 and Section 139 of the NI Act makes it amply clear that a person who signed the cheque and makes it over to the Payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for a payment of debt or in discharge of a liability. It has also been held that it is immaterial that the cheque may have been filed by any other person other than the drawer if the cheque has been duly signed by the drawer.
c) Even if the blank cheque leaf voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption u/s 139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of any debt.
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19) 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 under section 139 NI Act which the accused has failed to do in the present case.
20) In upshot of aforesaid discussion, I return finding of conviction of accused for offence u/s 138 of NI Act in this case.
21) Let the copy of judgment be given free of cost to the convict.
22) Let convict be heard on quantum of sentence.
Digitally signed by
MAYANK MAYANK GOEL
Announced in open court GOEL Date: 2022.11.29
15:53:17 +0530
on 29.11.2022 (MAYANK GOEL)
MM(NI ACT)-02/West District
THC Courts/Delhi
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