Delhi District Court
Noor Bano vs . Vishal Sinha on 28 August, 2018
IN THE COURT OF SHRI ARUN KUMAR GARG, METROPOLITAN MAGISTRATE(NI Act)-03 (SOUTH):SAKET COURTS:NEW DELHI CC NO: 470098/16 Mrs. Noor Bano R/o House No.352, Rajpur Khurd Extension, Near Budh Bazar Market, Chattarpur, New Delhi .........Complainant Versus Sh.Vishal Sinha S/o Sh. Ashok Kumar Srivastava Sai Properties, Office: A-1, Ground Floor, Backside Nanda Hospital, Chattarpur Extension, New Delhi - 110074 Residential Address: A-12, 3rd Floor, Chattarpur Extension, New Delhi - 110074 .........Accused Offence Complained of or proved : Under section 138 of Negotiable Instruments Act, 1881 Plea of the Accused : Pleaded not guilty Date of filing : 26.11.2015 Date of Institution : 28.11.2015 Date of reserving judgment/order : 09.08.2018 Final Order/Judgment : Acquitted Date of pronouncement : 28.08.2018 Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 1 of 18 JUDGMENT:
BRIEF FACTS AND REASONS FOR THE DECISION OF THE CASE:-
1. By this Judgment, I will dispose of the present complaint under Section 138 of the Negotiable Instruments Act, 1881 filed by the complainant against accused on account of dishonour of cheques bearing number 116676 and 116677 both dated 10.07.2015 for a sum of Rs.4,50,000/- each drawn on Corporation Bank, Chhatarpur Branch, New Delhi -110074, in favour of complainant (hereinafter referred to as the cheques in question).
2. Brief case of the complainant as per complaint is that in the year 2013, accused had availed a friendly loan of Rs.9,00,000/ from the complainant and in discharge of his liability towards the complainant, the accused issued the cheques in question in favour of complainant, which on presentation were dishonoured with remarks "Funds Insufficient" vide return memos dated 03.10.2015.
A legal notice of demand dated 31.10.2015 was thereafter served by complainant upon the accused through speed post and Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 2 of 18 registered AD and since, according to the complainant, the accused has failed to make the payment of cheques amount in question to the complainant, despite service of legal notice of demand, he has committed the offence under Section 138 of the Negotiable Instruments Act, 1881.
3. Upon receipt of the complaint, cognizance of the offence was taken and the accused was summoned vide order dated 12.01.2016. Accused appeared in response to summons of the court and was admitted to bail. Accused moved an application u/s 91 Cr.P.C. seeking direction to the complainant to produce certain documents which was allowed vide order dated 26.10.2016. Thereafter, a separate notice explaining accusations to the accused under Section 138 of the Negotiable Instruments Act, 1881 was served upon him in terms of Section 251 Cr.PC on 06.01.2017. Accused did not plead guilty and claimed trial. Thereafter, on a separate application of accused u/s 145(2) of NI Act, accused was allowed to cross examine the complainant vide order dated 24.10.2017.
4. It is significant to note that in terms of judgment of Hon'ble Supreme Court in Mandvi Cooperative Bank Ltd. v. Nimesh B. Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 3 of 18 Thakore (2010) 3 SCC 83 and Hon'ble Delhi High Court in Rajesh Agarwal v. State & Anr. (2010) 171 DLT 51, the pre- summoning evidence by way of affidavit Ex. CW-1/L shall be read as post-summoning evidence of the complainant. Even otherwise, the aforesaid affidavit was adopted by the complainant in her post-summoning evidence on 21.04.2018. In the aforesaid affidavit, complainant had relied upon the following documents:
Ex.CW-1/A & CW-1/B: Original cheques bearing nos. 116676 and 116677 both dated 10.07.2015 for a sum of Rs.4,50,000/- each drawn on Corporation Bank, Chhatarpur Branch, New Delhi
-110074, in favour of complainant Ex.CW-1/C & Ex.CW-1/D: Original cheques return memos dated 03.10.2015 and 09.10.2015.
Ex.CW-1/E : Legal Notice of demand dated 23.10.2015 Ex.CW-1/F to Ex.CW-1/I: Postal receipts regarding dispatch of legal notice.
Ex.CW-1/J: Reply of accused dated 09.11.2015 to the legal notice of complainant.
Ex.CW-1/K: The present complaint u/s 138 of NI Act.
5. CW-1 was duly cross-examined by Counsel for accused and during her cross examination, CW-1 was confronted with the MOU Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 4 of 18 Ex.CW-1/DX1. Thereafter, on a separate statement of complainant, CE was closed vide order dated 21.04.2018.
6. Statement of accused under Section 313 Cr.P.C. was recorded on 05.05.2018, putting entire incriminating evidence against him. Since the accused had chosen not to lead evidence in his defence, matter was adjourned for final arguments. Final arguments on behalf of the parties were thereafter heard on 09.08.2018.
7. It is submitted by counsel for complainant that the complainant has been able to prove all the ingredients of offence under Section 138 of the NI Act against the accused beyond reasonable doubts by way of uncontroverted testimony of CW-1 in the form of affidavit Ex.CW-1/L which is duly corroborated by documentary evidence Ex. CW-1/A to Ex. CW-1/J. He submits that nothing substantial could come in favour of accused during cross-examination of CW- 1 and accused has failed to probablize his defence even on the touchstone of preponderence of probabilites. According to him, accused has taken a false defence to mislead the court and has failed to prove the same in as much as no witness has been examined by him in support of his defence. He submits that Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 5 of 18 accused has neither disputed that he had availed the loan of Rs.9 lacs from the complainant nor has he disputed the issuance of cheques in question in favour of complainant. The only defence, according to him, which has been taken by the accused is that he had transferred one flat in favour of complainant in lieu of the aforesaid cheques, however, according to him, the accused has failed to produce the conveyance deed in respect of the said flat to prove the afoersaid fact. Even the MOU Ex.CW-1/DX1, according to him, does not refer to the amount of Rs.9 lacs received by accused from the complainant. Thus, according to him, the accused has failed to rebut the presumption arising in favour of complainant particularly in view of the fact that he has failed to lodge any police complaint against the complainant on account of alleged misuser of cheques by the complainant. He submits that the accused has failed to disclose any defence, during his plea u/s 251 Cr.P.C. Thus, according to counsel for complainant, accused is liable to be convicted for the offence u/s 138 of NI Act.
8. On the other hand, it is submitted by counsel for accused that the complainant has failed to prove the legally enforceable liability of Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 6 of 18 the accused to the extent of cheques amount in question as on the date of presentation of the cheques in as much as in view of the document Ex.CW-1/DX1, complainant was not entitled to refund of Rs.9 lacs from the accused being a partner with the accused in profit as well as losses arising out of the construction project taken up by accused and complainant in partnership. Even otherwise, according to him, once the accused had transferred the flat in favour of complainant in lieu of the aforesaid cheques vide documents dated 04.08.2015, complainant ceased to be a holder in due course in respect of the cheques and hence, could not have negotiated the cheques in terms of Section 60 of Negotiable of Insttruments Act. He submits that accused has merely admitted the averments made by complainant in para no.2 and 3 of her complaint and the averments made in para no.4 have been categorically denied by the accused. He submits that complainant has failed to produce any supporting documents in support of her averment in para no.4 of her complaint regarding the accused being in financial crises in the year 2013. He submits that the complainant being aware of all the facts, offered financial help to Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 7 of 18 the accused to the extent of Rs.9 lacs in April 2014 and subsequently expressed her willingness to be a partner of the accused in construction of building leading to the execution of MOU Ex.CW-1/DX1. He submits that complainant has expressed her ignorance about the alleged partnership between the complainant and the accused however in the same breath she had admitted her signatures on the MOU Ex.CW-1/DX1 which goes on to prove that the complainant was not entitled to refund of the sum of Rs.9 lacs given by her to the accused being a partner. He submits that when confronted with the suggestions from counsel for accused in consonance with the defence of the accused, complainant has failed to deny the suggestions put by counsel for accused and has merely pleaded ignorance. He submits that complainant cannot plead ignorance about the material facts being a partner in terms of MOU Ex.CW-1/DX1. It is further submitted by him that the testimony of complainant is not reliable in view of the fact that she has deliberately pleaded ignorance about the material facts. He further submits that the complainatn has failed to produce any document to prove the alleged independent payment Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 8 of 18 of Rs.9 lacs by her to the accused against the flat in question, rather she had executed an affidavit in favour of accused stating that the flat in question was purchased by her from the accused in lieu of the cheques in question. Though, according to him, complainant has denied the execution of such an affidavit, however, she had failed to produce the complete set of documents executed by accused in favour of complainant in respect of the aforesaid flat on 18.04.2015 despite being in possession of the same and despite directions of the court in terms of Section 91 Cr.P.C. According to him, at no stage of the trial, complainant has stated that the documents copy of draft of which were annexed by the accused with his application u/s 91 Cr.P.C., were not executed between the complainant and the accused despite the fact that the said documents were also having the draft of affidavit executed by complainant in favour of accused. He submits that complainant has admitted during her cross examination that she had insisted for transfer of flat by the accused but alleged independent payment, however, according to him, complainant has failed to explain as to why she had allegedly paid a sum of Rs.9 lacs to the accused as per Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 9 of 18 the documents despite the facts that the value of said flat, according to complainant was Rs.8 lacs only. He submits that in the absence of production of documents in respect of flat in question by the complainant, an adverse inference needs to be drawn against the complainant that if produced, the same would have gone against the complainant. In support of his aforesaid submissions, counsel for accused has relied upon the judgment of Hon'ble Delhi High Court in Shalu Vs. Sandeep Soni 2016(2) CLJ 542 Delhi. He has thus prayed for acquittal of accused from the charge u/s 138 of NI Act.
9. I have heard the submissions made on behalf of the parties and have also perused the record. I have also carefully gone through the judgment relied upon by Ld. Counsel for the accused. Before appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles, relevant for adjudication of complaint under Section 138 of NI Act, laid down in several judgments of Hon'ble Supreme Court of India and of various High Court including our own High Court. In my considered opinion, it is now well settled that in case the accused Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 10 of 18 admits his signatures on the cheque in question, there arises a presumption in terms of Sections 118(a) and 139 of the NI Act to the effect that the same was issued by him for valid consideration and in discharge of legally enforceable debt or liability towards the complainant. Though a Division Bench of Hon'ble Supreme Court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54 has observed that the presumption under Section 139 of the NI Act does not go to the extent of presuming the existence of a legally recoverable debt, however in a later judgment titled as Rangappa v. Sri Mohan, (2010) 11 SCC 441 a larger Bench of Hon'ble Supreme Court has expressed its disagreement with the aforesaid view holding that there is also an initial presumption regarding the existence of legally recoverable liability under Section 139 of the NI Act. Further, it has been 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 the accused can rebut the same by placing reliance on the material brought on record by the complainant. It is also well settled legal position that the Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 11 of 18 presumptions can be rebutted even by raising presumptions of fact and law on the basis of material available on record. The aforesaid propositions of law have been laid down by Hon'ble Supreme Court in M/s Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal (1999) 3 SCC 35, Krishna Janardhan Bhat's case (Supra) and Rangappa v. Sri Mohan's case (Supra). It is further well settled in the aforesaid judgments 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.
10.Now let us examine the facts of case in hand in the light of aforesaid legal principles. In the case in hand, accused has neither disputed the receipt of sum of Rs.9 lacs by him from the complainant nor the issuance of cheques in question by him in favour of complainant. Thus, the aforesaid admission would give rise to a twofold presumption in favour of the complainant i.e. not only regarding existence of legally enforceable liability of accused towards the complainant but also regarding issuance of cheques in question by accused in favour of complainant in discharge of the Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 12 of 18 aforesaid liability. Indisputably, the said presumption is rebuttable in nature and the accused could have rebutted the said presumption even without stepping into the witness box through cross- examination of complainant's witnesses while relying upon the material brought on record by the complainant.
11.In the case in hand, the complainant has alleged that the cheques in question were issued by the accused in discharge of his liability to repay the friendly loan of Rs.9,00,000/- availed by the accused from the complainant in the year 2013. On the other hand, accused has taken a defence that after receipt of sum of Rs.9 lacs by him from the complainant, complainant has entered into a partnership with the accused in the construction project and executed the MOU Ex.CW-1/DX1 in terms of which she was equal partner in sharing of not only the profit but also the losses if any arising out of the said project. He has further taken a defence that subsequently the said project ran into losses and though the complainant was not entitled to refund of the aforesaid amount, keeping in mind the long standing relations between the parties, accused had agreed to issue the cheques in question in favour of the complainant. Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 13 of 18 Subsequently, according to him, finding that the accused may not have sufficient funds in his bank account to honour the said cheques, complainant had insisted for transfer of one flat by the accused in favour of complainant in lieu of the said cheques and upon her insistence, accused had executed GPA sale documents in respect of one flat in favour of complainant on 04.08.2015. However, according to him, the complainant has failed to return the cheques in question despite the fact that the consideration for the same had subsequently failed and presented the same for encashment.
12.It is significant to note that the first opportunity for the accused to controvert the plea taken by the complainant was on receipt of legal notice of demand by him and availing the aforesaid opportunity, accused has duly replied the legal notice of demand of the complainant vide reply Ex.CW-1/J controverting all the pleas taken by the complainant in her legal notice of demand and disclosing the correct facts as per his version.
13.Thereafter, immediately on receipt of summons from the court, accused had appeared in the court and has moved an application Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 14 of 18 u/s 91 Cr.P.C., seeking directions to the complainant to produce the GPA sale documents in respect of the flat alongwith the affidavit of the complainant stating that she had taken the aforesaid flat in lieu of the cheque in question. The drafts of the documents required to be produced by the complainant were also annexed by the accused alongwith his application while stating that he is not in possession of even the photocopies of the said documents. The aforesaid application of the accused was allowed by the court vide order dated 26.10.2016, directing the complainant to produce the said documents, however, complainant has failed to produce the said documents despite repeated opportunities. During her cross examination dated 21.04.2018, she had admitted that she had taken all the original documents dated 04.08.2015 alongwith her without even giving the photocopies of the same to the accused. Specific suggestion was given by counsel for accused to the complainant that on 04.08.2015 total 7 documents were executed between the parties namely one GPA, one agreement to sell, one Will, one possession letter, two affidavits and one receipt. Complainant has failed to deny the aforesaid suggestion and has rather pleaded Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 15 of 18 ignorance about the same. It is beyond the comprehension of the court that as to how the complainant could have pleaded ignorance to the execution of 7 documents between the parties on 04.08.2015, when the said documents were admittedly in exclusive possession of the complainant. Thus, non-production of the aforesaid documents by the complainant coupled with non denial of suggestion of counsel for accused, gives rise to an adverse inference against the complainant that if produced, the said documents would have proved the defence sought to be taken by the accused regarding execution of documents dated 04.08.2015 by him in lieu of cheques in question.
14.The aforesaid defence is further probablized by the fact that though the complainant had alleged that the documents dated 04.08.2015 were executed by the accused on her insistence in lieu of some other amount already given by her to the accused, however, she has failed to produce any document to prove the aforesaid independent payment. In the absence of any objection by the complainant to the drafts of documents dated 04.08.2015 annexed by the accused with his application u/s 91 Cr.P.C., and production of original Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 16 of 18 documents dated 04.08.2015 by the complainant, it is apparent that the agreed consideration between the parties in respect of the flat was Rs.9 lacs, however, complainant during her cross examination has taken a stand that the value of aforesaid flat was merely Rs.8 lacs. Under the aforesaid circumstances, it is highly improbable that the complainant would have purchased the said flat for a consideration of Rs.9 lacs. The only conclusion which can be drawn from the aforesaid facts is that the complainant is not a reliable witness.
15.In view of the aforesaid discussion, in my considered opinion, accused has been able to rebut the presumption arising in favour of complainant u/s 118 and 139 of NI Act, on the touchstone of preponderance of probabilities on the basis of presumption of facts arising in favour of accused on account of non-production of material documents by the complainant despite being in possession of the same. Despite rebuttal of the said presumption, complainant has failed to prove the legally enforceable liability of the accused to the extent of cheques amount in question as on the date of presentation of the cheques. Accused is thus entitled to be Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 17 of 18 acquitted of the charge u/s 138 of NI Act.
16.In view of the aforesaid finding, accused is hereby acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881(as amended upto date).
17.Ordered accordingly.
18.Accused has already furnished PB and SB in sum of Rs.25,000/- each in terms of provisions of Section 437-A of Cr.P.C. and the same have been accepted and shall remain in force for a period of six months from today.
Announced in the Open Court on this 28th day of August, 2018. This Judgment consists of 18 signed pages.
(ARUN KUMAR GARG) Metropolitan Magistrate-03 (NI Act) (South) Saket Courts, New Delhi/28.08.2018 Noor Bano Vs. Vishal Sinha Judgment dated 28.08.2018 Comp. Case No.470098/2016 Page 18 of 18