Delhi District Court
In Re: Rajesh Kapoor vs Mandeep Singh on 26 June, 2023
IN THE COURT OF MS. NIDHI BALA, METROPOLITAN MAGISTRATE,
MAHILA COURT-03, SHAHDARA DISTRICT,
KARKARDOMA COURT, DELHI.
IN RE: RAJESH KAPOOR VERSUS MANDEEP SINGH
CNR No.DLNE020004052021
1. Complaint Case no. : 44/2021
2. Date of Institution of case : 27.01.2021
3. Name of the complainant : Rajesh Kapoor
S/o Sh. Nand Kishore
R/o H.No. F-324, Karampura,
New Delhi-110015.
4. Name of Accused person : Mandeep Singh
S/o Sh. Sardar Gyan Singh
R/o Plot No. D-24, Ground Floor,
Sikdarpur Colony, D-Block, East Jyoti Nagar,
Shahdara, Delhi-110093.
Also At:-
CJ Complex, Near Gurudwara,
Awas Vikas, Rudrapur, Uttarakhand-263153.
5. Offence complained of : Section 138 NI Act
6. Plea of accused : Pleaded not guilty
7. Final Order/Judgment : CONVICTED
8. Date of judgment : 26.06.2023 (In view of transfer cum posting
order No. 25 / DHC/ Gaz./G-7/ VI. E2 (a) /
2023 dated 24.05.2023)
JUDGMENT
1. Vide this judgment the present complaint case for an offence punishable U/Sec.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act") is being decided.
Digitally signed NIDHI by NIDHI BALA
Date:
BALA
2023.06.26
15:57:34
+05'30'
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2. Factual matrix of the case:-
2.1 Complainant was searching a property in Jyoti Nagar, Delhi i.e. area of the
accused's residence and he met the accused through his friend/relative who was known to accused. Accused told to complainant that the property bearing Plot No.D-24, Khasra No. 484 measuring area 50.50 Sq. Yards Lower Ground, Sikdarpur, D-Block, East Jyoti Nagar, Delhi belongs to his mother namely Arvind Kaur and after inspection and enquiry, complainant agreed to purchase the said property for the consideration of Rs.12,00,000/- (Twelve lacs). Complainant gave the amount of Rs.10,00,000/-(Ten lacs) to Arvind Kaur in three installments by way of cash as demanded and an agreement to sell was executed between the complainant and Arvind Kaur i.e. mother of accused on 29.04.2019 in the presence of witnesses and it was further agreed that the balance amount of Rs.2,00,000/- (Two lacs) shall be paid at the time of registration of sale deed before the Registrar which shall be executed on 01.06.2019 as agreed. However, Arvind Kaur i.e. mother of accused expressed inability to get the sale deed executed/registered on 01.06.2019 due to some problem and assured to get the sale deed executed/registered on 25.07.2019 and she gave the undertaking in writing, therefore, complainant waited till 25.07.2019. But mother of accused again failed to keep her words and she did not reach the Registar Office concerned while the complainant had reached there on time and also obtained the cash receipt from the office of Sub Registrar for the purpose of registry. Thereafter, accused and his mother sought more time for the execution of sale deed as agreed and this time accused gave an undertaking on behalf of his mother in writing for the execution of sale deed on 30.10.2019 but again accused and his mother failed to reach the Registrar office and this time also complainant had reached and obtained the receipt, then on next day accused requested the complainnat for not taking any legal action against his mother. 2.2. Thereafter on 13.01.2020 complainant sent a legal notice to Arvind Kaur i.e. mother of accused which was duly served and she requested to hold the legal action against her and assured to execute the sale deed but again she failed to keep her promise. Several meetings were held but accused and his mother kept on delaying the execution of sale deed NIDHI Digitally signed by NIDHI BALA Date:
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on one pretext or the other. Thereafter in the month of October 2020, a meeting was held and it was orally agreed that accused shall pay Rs.18,00,000/-(Eighteen lacs) i.e. double of the token amount as per the agreement dated 29.04.2019 to the complainant and on the same day accused being the son of Arvind Kaur in order to discharge her liability issued a cheque bearing no. 000022 dated 20.11.2020 in the sum of Rs.8,00,000/-(Eight lac) drawn on Kotak Mahindra Bank, Yamuna Vihar Branch, Delhi (hereinafter called "the cheque in question") and it was further agreed by the accused that after two months of the encashment of the cheque in question, he shall issue another cheque in favour of the complainant for the balance amount of Rs.10,00,000/-(Ten lacs).
2.3. As per the instructions of the accused, complainant presented the cheque in question in his bank i.e. Bank of India, Yamuna Vihar Branch, Delhi (within the jurisdiction of the court), however, the same returned unpaid / dishonored for the reason "Funds Insufficient" vide cheque return memo dated 02.12.2020. Complainant again contacted the accused and his mother to pay the amount but they turned to deaf ears. Thereafter on 24.12.2020, complainant sent a legal demand notice to accused through his counsel via speed post as well as through WhatsApp and called upon the accused to make the payment of the cheque amount in question within 15 days of receipt of legal notice but accused failed to make the payment of the cheque amount despite service of notice and therefore, the present complaint is filed by the complainant against the accused for the offence under Section 138 of the NI Act.
3. On being satisfied of the prima facie ingredients of Section 138 of the NI Act, cognizance was taken and summons were directed to be issued against the accused vide order dtd. 30.01.2021 and accused appeared through counsel accordingly and was admitted to bail after his appearnce on the execution of warrants. On 24.09.2021 notice under Section 251 Cr.PC was framed and served upon the accused to which he pleaded not guilty and claimed trial. While putting forth his plea of defence, accused admitted his signatures upon the cheque in question and also the amount having been written by himself, fact of dishonour of the cheque in question and the fact of receiving the legal demand notice sent NIDHI Digitally signed by NIDHI BALA BALA Date: 2023.06.26 15:58:31 +05'30' CC No. 44/2021 Rajesh Kapoor Vs. Mandeep Singh Page no. 3 of 13 by complainant to him through counsel. The statement of accused was recorded under section 294 Cr.P.C qua the admitted facts. The plea of accused is being reproduced hereinafter for ready reference:
"I do not know the complainant. I do not owe any money/liability towards the complainant and the cheque in question had been given by me to one Harish as a security cheque for some transaction between me and Harish. My mother had entered into an agreement with Harish on which only my mother had signed . My mother had signed on some blank papers also which had been misused by Rajesh Kapoor, complainant. My cheque has been misused by Harish and Rajesh Kapoor. I do not want to say anything else."
4. The accused was then granted liberty to move an application under Sec. 145(2) of NI Act to cross examine the complainant, however,the same was not filed despite giving several opportunities and adjournment for the same. Thereafter accused was allowed to cross examine the complainant on oral request of the Ld. Counsel for the accused since Ld. Counsel for the complainant did not have any objection for the same and consequently complainant/CW-1 was partly cross examined and the opportunity for further cross given to accused was closed considering his conduct since Ld. Counsel for the accused was seeking adjournments on one pretext or the other and it appeared that he was playing delay tactics.
5. EVIDENCE OF COMPLAINANT:
5.1 In Complainant's evidence, the complainant (CW-1) tendered his evidence affidavit in post summoning evidence and relied upon the following documents:
i) Ex. CW-1/X : Evidence of complainant by way of affidavit.
ii) Ex. CW-1/A : Cheque in question bearing no. 000022 dated 20.11.2020 in the sum of Rs.8,00,000/-(Eight lac) drawn on Kotak Mahindra Bank, Yamuna Vihar Branch, Delhi (Signatures and the amount on the cheque are admitted by accused at the time of framing notice as well as his statement recorded Under Section 294 Cr.P.C).
iii) Ex. CW-1/B: Original Cheque Return Memo dtd. 02.12.2020 (Admitted by accused at the time of his statement recorded Under Section 294 Cr.P.C) NIDHI Digitally signed by NIDHI BALA Date:
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iv) Ex. CW-1/C: Statutory Legal demand notice dtd. 24.12.2020 sent by Complainant to accused through counsel (Admitted by accused at the time of his statement recorded Under Section 294 Cr.P.C).
v) Ex. CW-1/D and Ex. CW-1/J : Postal receipts qua legal notice sent through post and its tracking report respectively ( Fact of receiving legal demand notice is admitted by accused at the time of his statement recorded Under Section 294 Cr.P.C).
vi) Ex. CW-1/E(OSR) : Copy of Agreement to sell executed between complainant and the mother of accused namely Arvind Kaur dated 29.04.2019.
vii) Ex. CW-1/F(OSR) : Copy of cash receipt bearing no. 47425 obtained by the complainant from the office of Sub-Registrar IV A, Shahdara, Delhi dated 25.07.2019.
viii) Ex. CW-1/G(OSR) : Copy of cash receipt bearing no. 643 obtained by the complainant from the office of Sub-Registrar IV A, Shahdara, Delhi dated 30.10.2019.
ix) Ex. CW-1/H and Ex. CW-1/I: Copy of legal notice sent by complainant to the mother of accused dated 13.01.2020 and Postal receipt qua the same respectively.
x) Ex. CW-1/10: Certificate under section 65B of the Indian Evidence Act, 1872.
xi) Ex. CW-1/K : Copy of the Aadhar Card of complainant.
5.2. Another witness examined on behalf of the complainant is CW-2 Ajay Kumar Sharma who tendered his evidence by way of affidavit Ex. CW-2/A and he is the witness to the agreement to sell executed between the complainant and the mother of accused namely Arvind Kaur, hence, relied on the agreement Ex.CW-1/E(Colly) as well as undertaking given by the accused as well as her mother Arvind Kaur for the execution of sale deed, in his presence Ex. CW-2/1(Colly)(OSR).
5.3. Another witness examined on behalf of the complainant is CW-3 Vijoy Kumar Chakravorty who tendered his evidence by way of affidavit Ex. CW-3/A and he is the NIDHI Digitally signed by NIDHI BALA BALA Date: 2023.06.26 15:59:05 +05'30' CC No. 44/2021 Rajesh Kapoor Vs. Mandeep Singh Page no. 5 of 13 witness to the agreement to sell executed between the complainant and the mother of accused namely Arvind Kaur, hence, relied on the agreement Ex.CW-1/E(Colly).
6. The accused was then examined under Section 313 Cr.PC, 1973 wherein all the incriminating evidence were put to the accused and he denied the alleged liability towards the complainant. Accused did not lead any defence evidence.
7. Final arguments have been heard at length on behalf of complainant as well as accused, however, written arguments were not filed by any of the party despite giving the opportunity. Complete record has been perused carefully.
8. ARGUMENTS ON BEHALF OF COMPLAINANT:
8.1. During the course of arguments, Ld. Counsel for complainant reiterated the contents of the complaint and the evidence affidavit of the complainant and further argued that accused has admitted his signatures on the cheque in question as well as the fact of dishonour of the cheque in question and also admitted the fact of receiving the legal demand notice sent to him by the complainnat through counsel and thereby attracts the presumption of section 118 and 139 of NI Act in favour of the complainant and accused has failed to rebut the said presumption of law . Ld. Counsel further argued that accused has taken only one defence in this case that he had given the cheque in question to one Harish as security with whom he had some transaction, however, accsued has miserable failed to prove his defence. On the other hand complainant has examined two independent witnesses to corroborate his version since the said witnesses were present at the time of execution of agreement to sell executed between the complainant and the mother of accused which turned into the liability of his mother since she failed to execute the sale deed as agreed and accused issued the cheque in question to discharge the liability of his mother. 8.2. Ld. Counsel further argued that the complainant has been able to prove all the ingredients of the offence under Section 138 of the NI Act against the accused and accused has not produced any cogent and reliable evidence to prove his plea of defence since burden NIDHI Digitally signed by NIDHI BALA BALA Date: 2023.06.26 15:59:19 +05'30' CC No. 44/2021 Rajesh Kapoor Vs. Mandeep Singh Page no. 6 of 13 to prove the same is on him. The Complainant has thus prayed for conviction of the accused for the offence u/s 138 of NI Act.
9. ARGUMENTS BY ACCUSED:
9.1. Per contra, accused chose to address the arguments himself since his counsel refused to represent him and he did not want to engage any lawyer. Accused argued that he has no liability towards the complainant as alleged as he does not even know him. He further argued that he has some transaction with one Harish and he had given the cheque in question to Harish as security without writing the date and name on it and the said Harish has misused his security cheque with the connivance of the complainant. Therefore, accused prays for the dismissal of the complaint and he be acquitted.
10. Now, the foremost provision of law to settle the entire dispute/controversy between the parties herein is Sec. 138 of NI Act and the same is being reproduced hereinafter for the ready reference:-
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
NIDHI Digitally signed
by NIDHI BALA
BALA
Date: 2023.06.26
15:59:39 +05'30'
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(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
10.1. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the reciept of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
NIDHI Digitally signed by NIDHI BALA Date:
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11. Now, coming to the facts of the present complaint case keeping in view the essential ingredients of section 138 of NI Act.
11.1. In this case, it is not disputed but duly admitted by the accused that the cheque in question bear his signatures and belongs to him rather he has also admitted the amount having been written by him. Therefore, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled. Accused has further admitted the fact of dishonour of the cheque in question, hence, another essential ingredients (iii) and (iv) also stand proved by the complainant. Accused has further admitted the fact of receiving the legal demand notice sent to him by complainant rather he gave the reply also, hence, essential ingredients
(v) and (vi) also stand proved.
12. Now coming to the last and the remaining core ingredients (ii) and (vii) of Section 138 of NI Act as discussed in preceding Para 10.1 and the real issue of controversy herein i.e. whether the cheque in question was issued in discharge of any debt or liability, whole or in part and whether the same is a legally enforceable debt. Now in the present case accused has duly admitted his signatures on the cheque in question and also admitted the amount having been written on the same by himself, therefore, presumption of section 118 and 139 of the NI act,1881 arise here. It is already settled by the Hon'ble Apex Court as well as different Hon'ble High Courts including the Hon'ble High Court of Delhi in the catena of judgements that the holder of the cheque has the presumption of law in his favour as per Section 118 of the NI, Act and Section 139 of the NI Act which mandates that unless the contrary is proved, it is to be presumed 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. In the case in hand presumption of section 118 and 139 of NI Act arise in favour of the complainant which is being reproduced hereinafter for ready reference:-
"Section.118 Presumptions as to negotiable instruments. --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;
NIDHI Digitally signed by NIDHI BALA BALA 16:00:05 +05'30' Date: 2023.06.26 CC No. 44/2021 Rajesh Kapoor Vs. Mandeep Singh Page no. 9 of 13
(b) as to date --that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance --that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer --that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements --that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps --that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course --that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. "
"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".
It is explicit in the said provision that the said presumption shall remain untill contrary is proved. In K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr, (1999) 7 SCC 510. Further in Rangappa v. Sri Mohan, (2010) 11 SCC 441, the Hon'ble Supreme Court has held that the presumptions under Sections 118(a) and 139 of the NI Act are rebuttable in nature and for rebuttal of the same accused need not even step into the witness box as he can rebut the same by placing reliance on the material brought on record by the complainant. It is also a well settled legal position that the presumptions can be rebutted even by raising presumptions of fact and law on the basis of material available on record. It is further well settled that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not prove his defence beyond reasonable doubts. Again in Basalingappa vs Mudibasappa (2019) 5 SCC 418, the Hon'ble Supreme Court categoracally held as under:-
NIDHI Digitally signed
by NIDHI BALA
BALA
Date: 2023.06.26
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"10. The complainant being holder of cheque and the signature on the cheque having not been denied by the accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before we refer to judgments of this Court considering Section 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn."
12.1. Needless to mention herein that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. In the present case initial presumptions in terms of Section 118 (a) and 139 of the NI Act duly arise not only regarding existence of legally enforceable liability in favour of the complainant but also regarding issuance of cheque(s) in question by the accused in favour of complainant in discharge of his aforesaid liability. And the accused has miserably failed to rebut the said presumption and further failed to prove his defence since his only defence that he did not issue the cheque in question in favour of the complainant to discharge the liability of his mother. He rather stated that he had given the cheque in question to one Harish as security with whom he had some transaction, however, accused has failed to disclose as to what was the transaction with the said Harish and when did he give the cheque in question to the said Harish. On the other hand the testimony of the complainant has remained intact nad unrebutted even during his part cross examination done on behalf of the accused. Further he has produced all relevant documents before the court and lead the same in evidence which duly corroborated his version. Moreover, two witnesses CW-2 and CW-3 also deposed in favour of the complainant to duly corroborate his version and the said witnesses were the witnesses to the execution of agreement to sell between the mother of accused namely Arvind Kaur and the complainant which turned into the liability of Arvind Kaur towards the complainant since she failed to execute the sale deed as agreed and it was orally agreed by the accused to discharge the liability of his mother after the several meeting were held between complainant and the accused as well as NIDHI Digitally signed by NIDHI BALA BALA 16:00:31 +05'30' Date: 2023.06.26 CC No. 44/2021 Rajesh Kapoor Vs. Mandeep Singh Page no. 11 of 13 his mother and in order to discharge the said liability, accsued issued the cheque in question in favour of the complainant.
12.2. Again, this court is not oblivious of the position of law that the accused is only supposed to discharge his/her onus not beyound the reasonable doubt but on the principle of preponderance of probabilities which is again a settled position of law and it has been reitereted again and again through the precedents that the said appreciation depends upon the facts and circumstance of each and every case and no air tight formula can be adopted in order to ascertain as to whether accused has been successful in dislodging the tesitomy of complainant before the court. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel vs State of Gujarat and Another 2019) 18 SCC 106 and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. Further, it has been held in Rajesh Agarwal v. State, 2010 SCC online Del 2501 that:-
"9. .....There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
13. In the present case in hand, keeping in view the facts and circumstances of the present case and the settled position of law in this regard, the presumption of law as per section 118(a) and section 139 of NI Act clearly come in picture for the favour of complainant and his burden of proving the fact of issuance of cheque in question in discharge of legally enforceable debt stands discharged and the accused has miserably failed to dischrge his reverse onus. In the light of the foregoing discussions, this court is of the NIDHI Digitally signed by NIDHI BALA Date: BALA 2023.06.26 16:00:43 +05'30' CC No. 44/2021 Rajesh Kapoor Vs. Mandeep Singh Page no. 12 of 13 opinion that the accused has not led any cogent and reliable evidence to rebut presumptions under Sec. 118 and 139 of NI Act. There is nothing coming out during the trial which would probablise the defence raised by the accused or falsify the case of the complainant.
14. In the above view, the complainant has proved that the accused had issued the cheque in question in his favour for discharge of the legally enforceable liability. This Court has considered opinion that in the facts and circumstances of the present case, the complainant has proved his case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, the accused is, thus, held guilty and stands convicted for the said offence.
NIDHI Digitally signed
by NIDHI BALA
BALA
Date: 2023.06.26
16:00:57 +05'30'
Announced in Open Court (NIDHI BALA)
today on 26.06.2023 MM (MC-03),SHAHDARA DISTRICT,
KARKARDOOMA COURT, DELHI
Certified that this judgment contains 13 pages and each page bears my signatures.
NIDHI Digitally signed
by NIDHI BALA
BALA Date: 2023.06.26
16:01:09 +05'30'
(NIDHI BALA)
MM (MC-03), SHAHDARA DISTRICT,
KARKARDOOMA COURT/26.06.2023
(In view of transfer cum posting order No. 25 / DHC/ Gaz./G-7/ VI. E2 (a) / 2023 dated 24.05.2023) CC No. 44/2021 Rajesh Kapoor Vs. Mandeep Singh Page no. 13 of 13