Delhi District Court
Complainant vs . on 22 September, 2012
Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-01,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Savinder Kumar
S/o Sh.Jai Singh,
R/o 572, Madanpur Khadar,
New Delhi-110076.
. . . Complainant
Vs.
1. M/s R.S.K. Pardising Developers Pvt. Ltd.
B-I, Basement, PVR Road, Saket,
New Delhi-110017.
2. Ravi Kumar Sharma
S/o Sh.Ram Rattan Sharma,
Managing Director,
M/s R.S.K. Pardising Developers Pvt. Ltd.,
R/o B-8, Raju Park, Devli Road,
Khanpur, New Delhi-110062.
. . . Accused
CC NO. : 5605/1
OFFENCE COMPLAINED OF : U/s 138 of Negotiable Instruments Act
PLEA OF ACCUSED : Not guilty
DATE OF INSTITUTION : 24.10.2007
DATE OF RESERVING ORDER : 16.05.2012
FINAL ORDER : Convicted
DATE OF ORDER : 22.09.2012
Present: Sh.Praveen Kumar, Counsel for the complainant alongwith complainant in person.
Sh.B.D. Tayyab, Counsel for the accused alongwith accused in person.
JUDGMENT
Vide this judgment, I propose to dispose of the above titled criminal complaint u/s 138 of Negotiable Instruments Act. The brief facts of the case are as follows: -
02406R1032352007 -1-Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
1. That the complainant entered into two agreements with the accused on 14.3.2007 and 22.3.2007. The said agreements are Ex.CW1/B and Ex.CW1/C. The complainant booked two plots of 100 Sq. Yards each in the future project at Rudrapur (Uttrakhand). The complainant issued four cheques of Rs.1 lac each as per registration amount and first installments. The accused agreed/promised to pay a 10% buyback of total pre-registration rate i.e. Rs.500/- per sq. yard in addition to the amount paid i.e. Rs.2 lacs (Registration amount and first installment of Rs.1 lac).
2. That the accused in discharge of the liability, issued 2 post dated cheques of Rs.2,50,000/-
each against each plot vide cheques no.506345 dated 18.08.2007 and 056344 dated 26.08.2007, respectively, both drawn on Vijaya Bank, Malviya Nagar, New Delhi. The said cheques are Ex.CW1/D and Ex.CW1/E. The complainant deposited the said cheques for encashment through his banker i.e. Punjab & Sind Bank, Madanpur Khadar, but the said cheques were dishonoured for the reason "Insufficient Funds" vide two cheque returning memos dated 21.8.2007 and 26.8.2007. The said cheque return memos are Ex.CW1/F and Ex.CW1/G. Thereafter, the complainant approached the accused, whereupon accused advised and requested him to redeposit the cheques. The complainant redeposited the said cheques and the same were again dishonoured for the reason "Insufficient Funds" vide a single cheque return memo dated 13.9.2007. The said cheque return memo is Ex.CW1/H. Thereafter, the complainant through his counsel gave legal demand notice u/s 138 of N.I. Act dated 18.9.2007 to the accused demanding payment of the said cheques through registered post and UPC. The copy of the legal notice is Ex.CW1/I. The said legal demand notice were served upon the accused vide A.D. cards, which are Ex.CW1/J and K. Despite receipt of the legal demand notice, the accused failed to pay the amount of the dishonoured cheques within the stipulated period of the legal demand notice and therefore, the present complaint has been filed by the complainant, which is Ex.CW1/L.
3. Accordingly, the summoning order was passed against the accused on 29.10.2007 and on appearance of the accused, the notice under section 251 Cr.P.C. was served upon the 02406R1032352007 -2- Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
accused on 02.02.2010, to which the accused pleaded not guilty and claimed trial.
4. The complainant then filed the post summoning evidence by way of affidavit and the matter was listed for tendering of the said affidavit and for cross-examination of the complainant. On 02.02.2011, the complainant tendered his evidence by way of affidavit, in which, he reiterated the contents of his complaint and his pre-summoning evidence by way of affidavit. No additional document was filed in the post summoning evidence and no other complainant witness was examined by the complainant. The complainant was, then, cross-examined on the said affidavit by Ld. Counsel for the accused. In the cross- examination, the complainant stated that he and the accused had an agreement regarding purchase of certain land and that he had given four cheques to the accused in lieu of the said agreement. The complainant denied the suggestion that he had stopped payment of any of the said cheques. He also denied suggestion that the accused has not received any money from his account in respect of the said two cheques which were alleged to have been dishonoured. The complainant stated that the four cheques as mentioned by him were issued in March, 2007 and he does not remember the date of their issuance. He further denied the suggestion that he had resold the said land to the accused and in lieu of the same, he had taken any amount through cheques from the accused. He further clarified in his cross-examination that he had taken two cheques from the accused of Rs.2,50,000/- each from the accused, which are the cheques in question in the present complaint, in view of a scheme of buyback of a land which was purchased by him. He admitted that out of Rs.5 lacs, which was given by way of said two cheques, the sum of Rs.1 lac was towards his profit. He denied the suggestion that he had not sold the land to the accused and clarified that the land in question was never allotted to him by the accused. Thereafter, the complainant categorically denied all other suggestions which were put to him by Ld. Counsel for the accused regarding liability against the accused in respect of the two cheques in question. The complainant inter alia also denied the suggestions which were put to test the veracity of his statements made in his affidavit and the complaint filed by him. He also specifically denied the suggestion that he has not given the entire purchase 02406R1032352007 -3- Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
money to the accused for allotment of the land and therefore, the possession of the land was not given to him by the accused.
5. The statement of accused u/s 313 Cr.P.C. was, thereafter, recorded in which all the incriminating evidence were put to the accused and he was questioned regarding the same. In the said statement, the accused had stated that as per agreements Ex.CW1/B and Ex.CW1/C, it was specifically agreed between him and the complainant that if the complainant does not make the entire payment of the plots for which the said agreements were executed, then the said agreements will not become effective. He further stated that out of the four cheques, which were given to him by the complainant for Rs.1 lac each, two cheques were encashed and two cheques were dishonoured. He, therefore, stated that since the entire payment of the plots was not received, there was a breach of agreement by the complainant and accordingly, in view of the specific clause under the said agreements, the said agreements have become null and void. He also alleged that the cheques in question in the present complaint were only given as security for buyback and since the agreements itself had become null and void in view of the fact that the complainant has failed to honour the terms of the same, therefore, no liability arises against him in respect of the cheques in question. He also denied the receipt of legal demand notice in the said statement.
6. The matter, then, proceeded for defence evidence and the accused only examined himself as a defence witness u/s 315 Cr.P.C. and no other defence witness was examined. In the examination-in-chief of the accused, the accused has admitted the agreements entered into between him and the complainant i.e. the two buyback agreements, which are Ex.CW1/B and Ex.CW1/C. He further stated that the prices of said two plots were to be calculated at Rs.5,000/- per sq. yard totalling to a sum of Rs.5 lac for each plot. He further admitted that the complainant had given four cheques to him for Rs.1 lac each, two cheques for one plot under one of the buyback agreements and the other two cheques were for the other plot in respect of the other buyback agreement. He further alleged that out of the said four 02406R1032352007 -4- Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
cheques, only two cheques were honoured and remaining two cheques were dishonoured and same is evident from the record of his bank account. The accused, however, did not produce any bank record or any documentary evidence to show the dishonour of the said two cheques. The accused further alleged in his examination-in-chief that the complainant has never paid the remaining cost of either of the plots i.e. Rs.3 lacs for each plot. He further mentioned that he is still ready to allot the plots to the complainant if the complainant makes the payment of remaining cost towards the plots. He, accordingly, denied the liability in respect of the cheques in question, even though, he admitted receipt of Rs.2 lacs from the complainant, given to him by way of two cheques, which were honoured. He also reiterated in his examination-in-chief that the cheques in question were given as security in respect of buyback agreement and since the complainant has failed to oblige the terms of the said two agreements as two of the cheques of the complainant were dishonoured and also the complainant did not come forward to make payment of the balance cost of the plots, therefore, no liability arises against him.
7. The accused was, then, cross-examined by Ld. Counsel for the complainant. In the cross-
examination the accused stated that he cannot bring any record to show that out of the four cheques two cheques of the complainant was dishonoured stating that his office has been sealed. He also admitted that he has not placed any document on record to prove that he is the owner of any of the plots which he has agreed to sell/transfer as per the said agreements. He also mentioned that he has purchased the land in Rudrapur for Rs.70 crores. However, no document to substantiate the said fact was also produced by the accused. He admitted all the contents of buyback agreement in his cross-examination including the fact that in case the complainant does not wish to take the possession of his plot, he (i.e. accused) shall be liable to pay a sum of Rs.5 lacs to the complainant in lieu of Rs.4 lacs, which were given to him by the complainant vide four cheques. All other suggestions put by counsel for the complainant were denied by the accused in his cross- examination.
02406R1032352007 -5-Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
8. I have perused the entire material on record and heard the submissions of the rival parties.
9. At the outset, it is pertinent to mention the law in respect of section 138 of N.I. Act. In order to determine the question whether offence punishable under Section 138 of the Act is made out against the accused, it is necessary to prove all the following ingredients:
i. There is legally enforceable liability / debt.
ii. The drawer of the cheques issued the cheques to satisfy part or whole of the debt or other liability.
iii. The cheques so issued have been returned due to insufficiency of funds or exceeds arrangement.
iv. Payment not made by the accused despite service of the legal demand notice.
10. Moreover, the Negotiable Instruments Act also raises certain presumptions in favour of the holder in due course of a negotiable instrument. As per section 118 (a) of the said Act, "Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
11. Section 139 of the Act stipulates and as under:
"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, or any debt or other liability."
12. Under the light of these provisions and the provisions of the Law of Evidence, I have examined the evidence placed on record on behalf of both the parties. It is clear from the two agreements dated 14.03.2007, which is Ex.CW1/B and dated 22.03.2007, which is Ex.CW1/C, that it was agreed between the parties that a plot measuring 100 sq. yards in respect of each agreement has been booked by the complainant in a future project at 02406R1032352007 -6- Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
Rudrapur (Uttranchal) and the accused had agreed that the complainant shall be at an option to either take possession of the said plot or take 10% buyback of the amount paid by him. In lieu of the said two agreements, the complainant has also given four cheques to the complainant for Rs.1 lac each, out of which, two cheques of Rs.1 lac each under each agreement were towards pre-registration amount and the other two cheques for Rs.1 lac each under each agreement were for the first installment in respect of the said plots. It is also clear from the said agreements that the accused is liable to pay a 10% buyback of total pre-registration rate i.e. Rs.500/- per sq. yard in addition to the amount paid to him under each agreement (i.e. Rs.2 lacs for each agreement) after 150 days of the date of pre- registration and only after receiving first installment. It is further clear from the terms of the said agreements that in case of refusal by the complainant to pay installment, the agreements shall be considered as null and void and the complainant will not have the option of buyback in such a circumstance. It is further clear from the terms of the agreement that the accused had also given a post dated cross cheque for Rs.2,50,000/- to the complainant under each agreement in respect of the said buyback policy. It is also clear that the parties have also agreed under the said agreements that the accused shall issue an allotment letter to the complainant after receipt of second installment from the complainant and the plot will be registered in the name of the complainant at the time of possession i.e. by 31.12.2007.
13. The defence taken by the accused is that since the cheques given for each agreement for first installment i.e. Rs.1 lac in respect of each agreement were dishonoured, therefore, the complainant had defaulted in payment and, thus, para no.3 of the said buyback agreement becomes applicable. Hence, the accused argued that the agreement had become null and void and there was no liability against him to give a 10% buyback as agreed under the said agreements. The complainant, on the other hand, argued that there was no default on his part and all the cheques given by him to the accused were duly honoured. He further mentioned that he is not ready to accept the possession of the plots now and that the liability of the accused for paying 10% of buyback arises in such a circumstance.
02406R1032352007 -7-Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
14. From the entire material on record, it is evidence that even though the accused has alleged that two cheques out of four cheques given by the complainant were dishonoured, no documentary evidence was brought on record to prove the same. The accused in his cross- examination has stated that since his office was sealed, he could not produce the documentary evidence. The said argument does not appear to be satisfactory in view of the fact that the accused always had an opportunity to bring statement of account of his bank account to show the dishonour of the cheques or to bring the concerned official of his bank as defence witness to prove the alleged dishonour. The accused had clearly failed in leading any such defence. Therefore, plea taken by him that since the complainant had defaulted in obliging the terms of two buyback agreements by not paying the first installment, and therefore, there does not arise any liability against him, does not appear to be very convincing. Even if it is to be assumed that the present cheques in question were given as security at the time when the agreements were executed and they were to be encashed at the option of the complainant, who exercises his right to either take the possession of the plot under two agreements or to avail buyback scheme for which the cheques in question were issued. nevertheless, this was the mutual understanding between the parties and, as is evident from the terms of the agreements, if the complainant avails the buyback option and declines to take possession of the plots, he was very much in his right to encash the two cheques in question. Moreover, the complainant has also alleged that the accused himself did not have the ownership or the title of the plots which he had agreed to transfer in favour of the complainant. The accused in his defence clearly failed to rebut the said arguments as well. The two cheques in question arise from the liability which can be ascertained from two agreements Ex.CW1/B and Ex.CW1/C. The pre- registration amount and the first installment given by the complainant under the said two agreements were only a security paid to the accused for the plots to be transferred by him to the complainant as per the agreements. The said amount paid under the agreements can also be referred to as "booking amount" or the "advance payment" made by one party to another in ordinary business trading practices for transfer of property. By such payments, 02406R1032352007 -8- Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
the party inclined to purchase a property shows his/her bonafide, and an intention that the remaining amount shall be paid on actual transfer of property in his/her name by way of Registration of Title, etc. Now, in the present case, the complainant had shown his intention to invest in a future project of the accused and had agreed to purchase two plots in the said project. Two agreements were, thus, entered into and the complainant paid Rs.2 lacs under each agreement showing his bonafide. The parties had, however, agreed that the complainant shall be at an option to either take possession of the plots and will make payment of remaining installment, or else, he'll be at liberty to claim a buyback of the money already paid by him. The accused had failed to prove any breach of terms by the complainant. The complainant availed the option of buyback and, thus, encashed the two cheques of the accused given under the said scheme. Thus, the liability of accused for the two cheques in question clearly entailed.
15. From the perusal of the record also, it is clear that the said two cheques were dishonoured for the reasons "Funds Insufficient". The receipt of legal demand notice also stands unrebutted and from the perusal of the two A.D. cards i.e. Ex.CW1/J and Ex.CW1/K it appears that the legal demand notice was duly served. Therefore, under the considered view of this court, the complainant has proved his case beyond all reasonable doubts. The accused has clearly failed to rebut the liability arising against him. The accused has also not led any evidence to substantiate the defence taken by him.
16. As held in various caselaws, the standard of proof on the part of the accused and that of the prosecution is different in a criminal. Whereas, prosecution must prove the guilt of the accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. 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 he/she relies (cited from, Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54). Moreover, in the decision of Drum Manufacturing Co. v. Amin Chand Pyarelal (1993) 3 SCC 35, after analysing 02406R1032352007 -9- Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
various judgments, the Apex Court observed that the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant (or the accused) can prove the non-existence of a consideration by raising a probable defence. Furthermore, in the recent judgment of Hon'ble Supreme Court in Rangappa v. Sri Mohan (2010) INSC 373 (decision dated 07.05.2010), after analysing the law laid down in previous judgments, it was held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. This is a rebuttable presumption, even though this initial presumption lies in favour of the complainant. If the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, prosecution can fail.
17. In the present case, the accused was not able to sufficiently rebut the presumption lying in favour of the complainant. The ambiguities and lacunaes in the deposition of the accused at various places further weaken the defence of the accused. In view of the material on record, submissions of the Counsel for both sides and presumption of the law lying in favour of the complainant, I am of the considered view that the the ingredients for offence under section 138 of Negotiable Instruments Act stand proved and the complainant has proved his case beyond reasonable doubt as against the accused. Accused have clearly failed to rebut the presumption of law. I, therefore, hold both the accused, guilty of the offence under Section 138 of Negotiable Instruments Act. Accused are convicted.
Pronounced in open court. (Ms. ANKITA LAL)
Dated: 22.09.2002 MM (NI Act)-01, South-East,
Saket Courts, New Delhi.
02406R1032352007 -10-
Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
IN THE COURT OF MS. ANKITA LAL, MM (NI ACT)-01,
SOUTH-EAST, SAKET COURTS, NEW DELHI
Savinder Kumar
S/o Sh.Jai Singh,
R/o 572, Madanpur Khadar,
New Delhi-110076.
. . . Complainant
Vs.
1. M/s R.S.K. Pardising Developers Pvt. Ltd.
B-I, Basement, PVR Road, Saket,
New Delhi-110017.
2. Ravi Kumar Sharma
S/o Sh.Ram Rattan Sharma,
Managing Director,
M/s R.S.K. Pardising Developers Pvt. Ltd.,
R/o B-8, Raju Park, Devli Road,
Khanpur, New Delhi-110062.
. . . Accused
ORDER ON SENTENCE
Date: 01.10.2012
Present : Sh.Praveen Kumar, Counsel for the complainant alongwith complainant in person.
Sh.B.D. Tayyab, Counsel for the accused alongwith accused no.2 in person. Accused no.1 is a company.
Accused no.1 and 2 have been convicted for the offence punishable u/s 138 of N.I. Act vide judgment dated 22.09.2012. I have heard Ld. Counsel for complainant as well as Ld. Counsel for the accused on the sentencing of the accused.
Ld. Counsel for the accused submits that the accused is the sole bread earner of the family and a family to take care of. It is further submitted that the accused has small children look-after and is also liable to maintain his wife. It is further submitted that the accused has never been involved in any litigation in past and has absolutely clean antecedents. Ld. Counsel for the accused prays that considering the age of the accused, his family background, his socio-economic 02406R1032352007 -11- Savinder Kumar v. M/s R.S.K. Pardising Developers Pvt. Ltd.
status and the nature of the offence, and the fact that he was only a victim of the circumstances, a lenient view may be taken towards the accused and he be released on fine only.
Ld. Counsel for the complainant has argued that great inconvenience and harassment has been suffered by the complainant in contesting the present complaint. A lot of expense has been suffered by the complainant in terms of money and time. It is also argued that the trial has stretched for about five years and the complainant has suffered great hardship in prosecuting the present complaint. Ld. Counsel for the complainant also argued that the perusal of the record will also shows that the accused has caused undue harassment to the complainant by not appearing in several dates and by using dilatory tactics during the course of the trial. It is further argued that since the cheque amount is also huge and also since the accused never made any efforts to compound the matter, therefore, it is prayed that stricter punishment be imposed upon the accused, so as to create a deterrent effect in such offences.
I have perused the record of this case and after considering the submissions of both the counsels, I am of the view that keeping in mind the age of the accused, his family background, his antecedents, the nature of the offence, facts of the present case, the conduct of the accused during the entire course of the trial and at the same time balancing the interests of both the parties, I deem it proper to impose a sentence of composite fine of Rs. 7,00,000/- upon the accused no.1 and 2 and also sentence accused no.2 to simple imprisonment for a period of four months. The entire fine shall be paid as compensation to the complainant. In default of payment of fine, accused no.2 shall be liable to undergo a Simple Imprisonment of one month in addition to the substantive imprisonment.
Bail Bond of Accused is cancelled. Surety is discharged. Endorsements, if any be cancelled. Documents, if any, be returned.
Copy of this order as well as the copy of judgment be given to the accused immediately, free of cost.
Pronounced in open court. (MS. ANKITA LAL)
Dated: 01.10.2012 MM (NI Act)-01, South-East,
Saket Courts, New Delhi.
02406R1032352007 -12-