Delhi District Court
Court Titled As C.C Alavi Haji vs . Palapetty Muhammed & Anr on 19 April, 2023
IN THE COURT OF MS. SANIYA DALAL, MM-01, NORTH-WEST,
ROHINI, DELHI
R. No. 10229/16
CC No. 472/1
Arun Kumar Pathak
S/o late Sh. Keshar Pathak
R/o 8-A, Sukhbir Nagar, Karala,
Delhi-110081.
............Complainant
Versus
Suraj Pal Singh
S/o Sh. Sukhram Singh
R/o WZ-1/3233, Mahindra Park,
Shakurbasti, Tri Nagar,
Delhi.
.............Accused
JUDGMENT
(1) Name of the complainant : Arun Kumar Pathak parentage and address S/o late Sh. Keshar Pathak R/o 8-A, Sukhbir Nagar, Karala, Delhi-110081.
(2) Name of accused : Suraj Pal Singh parentage and address S/o Sh. Sukhram Singh R/o WZ-1/3233, Mahindra Park, Shakurbasti, Tri Nagar, Delhi.
Digitally signed SANYA by SANYA
DALAL
DALAL Date: 2023.04.19
03:29:04 -0300
Pg. no. 1 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 05.05.2007
(6) Date of reserving for order : 31.03.2023
(7) Date of Final Order : 19.04.2023
(8) Final Order : Acquittal
Argued By:
Sh. R.K. Singh: Ld. Counsel for complainant Sh. R. K. Berman: Ld. Counsel for Accused BRIEF FACTS RELEVANT FOR THE DECISION OF THE CASE A. FACTUAL MATRIX
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. The substance of the allegations, as contained in the complaint, are as follows:
a. The complainant claims that accused purchased a plot of land (measuring 50 sq. yard) bearing no. 83A, Khasra No. 73/22, Village Karala, Block A, Delhi from the complainant as per SANYA Digitally signed by SANYA DALAL DALAL Date: 2023.04.19 03:29:23 -0300 Pg. no. 2 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 agreement and accused issued a cheque bearing no. 941090 dated 18.03.2007 for Rs. 1,00,000/- drawn on State Bank of Bikaner and Jaipur, Rohini, New Delhi (hereinafter referred to as "cheque in question") in favour of the complainant for full consideration of plot.
b. That upon presentment, the cheque in question got dishonored with the remarks "Funds Insufficient" vide return memo dated 21.03.2007. Thereupon, a legal demand notice dated 28.03.2007 was sent to the accused through registered post/AD and UPC, which was delivered upon the accused and it is the case of the complainant that despite service of notice, accused failed to pay the cheque amount within stipulated time.
B. PRE-SUMMOING EVIDENCE & NOTICE
3. Pre-summoning evidence was led by the complainant and upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 08.01.2013 to which he pleaded not guilty and claimed trial. In his plea of defence, accused stated that "I had purchased a plot from the complainant on 13.02.2007 but belonging to the DDA. Therefore, I was not bound to honour the cheque in question".
4. Thereafter, the matter was fixed for complainant's evidence.
C. COMPLAINANT'S EVIDENCE
5. In his evidence, complainant examined himself as CW-1 and he relied upon his pre-summoning evidence towards post summoning evidence which is Ex. CW-1/A. CW-1 relied upon the following documentary SANYA Digitally signed by SANYA DALAL DALAL Date: 2023.04.19 03:29:36 -0300 Pg. no. 3 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 evidence against the accused to prove his case beyond reasonable doubt: -
Ex. CW1/1 Original cheque bearing no.941090 Ex. CW1/2 Cheque returning memo Ex. CW1/3 Bank statement Ex. CW1/4 Receipt Ex. CW1/5 Legal notice dt. 28.03.2007 Ex. CW1/6 Postal receipt
6. CW1 was further subjected to cross-examination by the Ld. counsel for the accused. Thereafter, the complainant's evidence was closed.
D. STATEMENT OF ACCUSED
7. Statement of the accused was recorded under section 313 Cr.P.C on 04.02.2016 wherein all the incriminating evidences were put up before the accused person. In reply, accused denied all the incriminating evidences appeared against him. He further wished to lead defence evidence.
E. DEFENCE'S EVIDENCE
8. In his defence evidence, accused has examined himself as defence witness:
DW-1 Suraj Pal Singh
9. Thereafter final arguments heard on part of both the Ld. counsel for the complainant and accused. I have heard the rival contentions of both the counsel and given my thoughtful consideration to the material appearing on record. Digitally signed SANYA by SANYA DALAL DALAL Date: 2023.04.19 03:29:46 -0300 Pg. no. 4 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 F. INGREDIENTS OF OFFENCE AND DISCUSSION
10. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence: -
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonor of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
SANYA Digitally signed by SANYA DALAL DALAL Date: 2023.04.19 03:29:54 -0300 Pg. no. 5 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1
11. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. In addition to the above, the condition stipulated under section 142 NI Act have to be fulfilled.
12. Notably, there is no dispute at bar about the proof of first, third, fourth and fifth ingredients. The complainant has proved the cheque vide Ex. CW1/1. The cheque in question was dishonoured is proved vide Ex. CW-1/2. Copy of statement Ex. CW1/3. Amount receipt vide Ex. CW1/4. The complainant has sent legal notice to the accused vide Ex. CW1/5. Postal receipts are Ex. CW1/6. Reliance in this regard can be placed on one of the judgments of the Hon'ble Apex Court titled as C.C Alavi Haji vs. Palapetty Muhammed & Anr [(2007) 6 SCC 555]. As such, based on above, the first, third, fourth and fifth ingredient of the offence under section 138 NI Act stands proved against the accused.
13. The controversy in the present complaint pertains to second ingredient.
I. CONTENTIONS IN RELATION TO NON-FULFILMENT OF SECOND INGREDIENT
14. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the accused has admitted his signature upon the cheque in question. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque SANYA Digitally signed by SANYA DALAL DALAL Date: 2023.04.19 03:30:04 -0300 Pg. no. 6 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 received it for the discharge, in whole or part, of any debt or other liability.
15. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
16. In case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court had held:
"The accused under Section 138 NI Act has two options. He can either show that the consideration and debt did not exit or that under the particular circumstances of the case, the non- existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as it 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 non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that SANYA Digitally signed by SANYA DALAL DALAL Date: 2023.04.19 03:30:13 -0300 Pg. no. 7 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which his 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 probably that a prudent man under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question, was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon the circumstantial evidence and if the circumstances so relied upon are so 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 arises under Section 118 and 139 of NI Act''.
17. So far as the facts of liability is concerned, in view of mandatory presumption of law as discussed above, if any cheque has been produced by the complainant bearing the signatures of the accused, there cannot be any inherent lacuna in the existence of the liability. But then definitely, accused can point loop holes in the story of the complainant by impeaching the credit of the witness during his cross- examination. The accused can discharge his burden by demonstrating the preponderance of probabilities coming in its way. Though, the accused specifically not admitted the signatures upon the cheque at Digitally signed SANYA byDALAL SANYA DALAL Date: 2023.04.19 03:30:27 -0300 Pg. no. 8 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 the time of framing of notice on 08.01.2013 however, he stated in the reply to the accusation that "I had purchased a plot from the complainant on 13.02.2007 but on 21.02.2007, DDA took possession of the said plot stating that it was a land belonging to the DDA, therefore, I was not bound to honour the cheque in question".
18. In the present case, the complainant during cross-examination on 02.09.2014 stated that it was agreed between him and the accused to execute the documents in favour of accused on receiving of the payment of the cheque in question. Further, it was categorically stated by the complainant that the government took the possession of the plot in question i.e. 83A, khasra no. 73/22 Village Karala, colony known as Utsav Vihar, Block A, Delhi. It is further contended by the Ld. counsel that the testimony of the DW-1 has further corroborated the defence taken by the accused. Thereafter, while referring to the cross-examination of the complainant, Ld. counsel for the accused has argued that in his complaint, complainant stated that the accused in consideration of the above said plot, issued a cheque bearing no. 941090 dated 18.03.2007 for a sum of Rs. 1.0 lakh drawn on State Bank of India in favour of the complainant but at the time of cross- examination, the complainant clearly stated that the possession of the plot in question was taken by the government. It can thus be understood that the complainant has failed to prove the existence of legal debt/liability and as such as on the relevant date in question, the complainant being aware of the fact that the possession of the property in dispute has been taken over by the government which ultimately resulted in the frustration of the agreement between the complainant and the accused. Further, on account of frustration of the agreement, the accused was not bound to pay the complainant the said SANYA Digitally signed by SANYA DALAL DALAL Date: 2023.04.19 03:30:39 -0300 Pg. no. 9 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 amount on the date of presentation as the accused came to know on 21.02.2007 that DDA took the possesion of the plot under sale as revealed from the defence of the accused (DW1).
COURT'S OBSERVATION:
19. In the instant case, the fact that the accused and complainant were having financial dealings is not disputed, however, the main bone of contention was that as to whether on the date of presentation i.e. 18.03.2007, the accused was under any legal liability to pay the amount in question i.e. Rs. 1.0 lakh to the complainant.
As discussed above, through the admission of the complainant himself as well as through the corroboration of DW1 it is clear that accused has succeeded in raising a probable defence in his favour.
20. Therefore, as far as the second ingredient is concerned, in view of the above discussion, the accused has succeeded in raising a probable defence and has been successfully able to rebut the presumption by raising a probable defence.
G. CONCLUSION
21. Thus, in view of the totality of the circumstance and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much as it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests.
22. In the case of 'Kulvinder Singh vs Kafeel Ahmad'', Crl L. P. 478 of 2011, decided on 04.01.2013, Hon'ble Delhi High Court has held that SANYA Digitally signed by SANYA DALAL DALAL Date: 2023.04.19 03:30:48 -0300 Pg. no. 10 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1 the basic principle in criminal law is that the guilt of the accused / respondent, must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him.
23. In view of the above discussions, the present case appears to be a fit case where benefit of doubt can be extended to the accused. Accordingly, this court is of the view that complainant has failed to prove his case.
24. In light of foregoing reasons, it is clear that accused Suraj Pal Singh has succeeded in rebutting the presumption of legal liability and the complainant has failed to prove the same affirmatively. As a result, accused Suraj Pal Singh stands acquitted from the offence u/s 138 NI Act.
SANYA Digitally signed
by SANYA DALAL
DALAL Date: 2023.04.19
03:31:03 -0300
ORDER: - Acquitted (Saniya Dalal)
ANNOUNCED, DICTATED AND MM-01/North West/Rohini Courts SIGNED IN THE OPEN COURT 19.04.2023 TODAY ON 19.04.2023 Note: This judgment contains 11 pages and each page is digitally signed by the under signed.
Pg. no. 11 of 11 Arun Kumar Pathak v. Suraj Pal Singh CC No. 472/1