Delhi District Court
Complainant vs . on 26 April, 2022
IN THE COURT OF SH. MUNEESH GARG, ACMM,
SHAHDARA DISTRICT, KKD, DELHI
Pushpa Wahi
D/o Sh. Krishna Kumar Wahi,
R/o D-61, Anand Vihar, Delhi
...Complainant
Vs.
1) Rajput properties and Developers Pvt. Ltd
R/o C-56/34, Second Floor, Megtek Building,
Above SBI, Sector 62, Noida, Distt. Gautam Buddh
Nagar, UP.
2) Sunil Kumar Rajput, Managing
Director of Rajput properties and Developers Pvt. Ltd
R/o Tower No. 5, Flat No. 8081, 8th floor,
Crossing Republic, Ghaziabad.
3) Gyan Thakur, Director/Marketing Manager
Rajput Properties and Developers Pvt. Ltd.
Office at C-56/34, 2nd Floor, Magtech Tower,
Above SBI Bank, Sector-62, Nodia, U.P.(dropped from the
array of accused persons on 25.04.2022).
.... Accused
CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.1 of 15
Case Number : 13489/2016
Date of Institution of Case : 12.08.2016
(File was
received
by way of
transfer from
UP Court)
Offence Complained Of : 138/142 NI Act
Plea of the Accused. : Pleaded not
guilty
Judgment Reserved On : Not Reserved
Final Order : Convicted
Date of Judgment. : 26.04.2022
- JUDGMENT -
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Vide this judgment U/s 264 Code of Criminal Procedure, I shall dispose off, the above captioned case CC No. 13489/2016. It is the case of the complainant that accused no. 2 and accused no.3 claimed to be the Director of accused no. 1 company i.e. Rajput Properties and Developers Pvt. Ltd and they published an advertisement in newspaper dated 27.01.2013, offering a buyback scheme at Sh. RAJNIGANDHA GREEN (SRG), claiming that accused company got 2/3 BHK and invited the investors to invest in their scheme, misleading them for a CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.2 of 15 very high return at a very low investment in just six months and the size offered for the flat was 1990 sq. feet and amount to be deposited by investor was Rs. 10 lakhs and the appreciation on investment was to be given at Rs. 160 per sq. feet totalling to an amount of Rs. 3,18,400/- on an investment of Rs. 10,00,000/- for 1990 sq. feet, thereby meaning that the return supposed to be received by investor after six months was amount plus premium i.e. Rs. 13,18,400/-. Accused no.3 contacted on behalf of Accused no.1 with invitation to invest and house of the complainant was visited by him on behalf of Accused no.1 and Accused no. 2 for seeking investment and it was stated that size of the plot was reduced to 1500 sq. feet and buy back appreciation was reduced to Rs. 3,00,000/- and further that company was issuing post-dated cheques for amount invested alongwith appreciation amount. Complainant issued cheque bearing no. 629922 dated 15.07.2013 for a sum of Rs. 10 lakhs drawn at Punjab & Sind Bank from the hard-earned money of her husband which was received as retirement benefit/pension from Indian Railways and entered into a buy back agreement with the company of accused, which was duly signed by representative of accused persons and the company on 18.07.2013. The cheque was encashed by accused company. It was a proposal from Accused no.2 on behalf of Accused no.1 that after six months, either the investor should get the invested amount alongwith Rs. 3,00,000/- (i.e. total Rs. 13,00,000/-) or Accused no.2 would allot flat in their project SRG admeasuring 1500/- sq. yards. Accused no.2 issued post-dated cheque bearing no. 288282 dated CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.3 of 15 16.01.2014 drawn at IDBI Bank for sum of Rs. 13 lakhs. After expiration of six months i.e. after 16.01.2014, complainant contacted accused for either refund of invested amount together with appreciation amount or to allot flat. Accused no.2 asked complainant to get encashed the cheque issued by Accused no.2 on behalf of Accused no.1 and she presented the said cheque on 16.01.2014 which was retuned unpaid next day with remarks funds insufficient. On request of Accused no.2, cheque was presented again and retuned unpaid vide cheque return memo dated 17.02.2014. Complainant contacted Accused no.2 and apprised about dishonour of cheque and accused asked complainant to present the cheque after 24.03.2014 assuring that it would be honoured at that time. Complainant presented cheque again on 25.03.2014 which was dishonoured vide memo dated 26.03.2014 for the reason insufficient funds. Complainant tried to contact accused persons but in vain and she learnt that accused had misrepresented about the flat/land through publication in the newspaper/website/Marketing Manager/Director and there was no such scheme for allotment of flats at the particular address/building and the address did not belong to accused company and fraud was played upon the complainant. Legal notice dated 22.04.2014 was sent to the accused which was not replied and cheque amount was not paid. Hence, the present complaint has been filed.
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2. In support of her case, complainant has relied on the following documents: -
(i) Cheque bearing no. 288282 dt. 16.01.2014 Ex. CW-1/A.
(ii) Cheque return memo dt. 17.01.2014, return memo dated 17.02.2014 and return memo dated 26.03.2014 Ex. CW-
1/B.
(iii) The copy of legal notice dated 22.04.2014 Ex. CW-1/C.
(iv) Two postal receipts dated 22.04.2014.
(v) The copy of buyback agreement Ex. CW-1/E.
(vi) The copy of cheque issued by complainant Ex. CW-1/F.
(vii) Advertisement paper Ex. CW-1/G
(viii) The copy of complaint to SHO Ex. CW-1/H.
(ix) The copy of FIR Ex. CW-1/I
3. Thereafter, summons were issued to the accused persons. After appearance of accused, notice was framed on 10.08.2017 for offence u/s 138 NI Act against accused no.1 through its Managing Director i.e. accused no.2, wherein accused no.2 pleaded not guilty and claimed trial and stated that he was facing financial crisis and was running in JC for last about two and half years and wanted to settle the matter. Time was given to explore possibility of settlement but no settlement could be arrived at between the parties.
4. Thereafter, matter was posted for filing of application u/s 145 (2) NI Act but despite opportunities, no application was filed and the CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.5 of 15 opportunity to cross-examine the CWs was closed vide order dated 10.08.2017 and fixed the matter for statement of accused under section 313 Code of Criminal Procedure. Accused admitted in his statement recorded under section 313 Code of Criminal Procedure that he had taken loan from the complainant. Accused also admitted that cheques bear his signature. However, he took the defence that he did not issue the cheque in favour of the complainant and his staff might have issued the cheques. He also stated that he did not receive the legal notice. Accused preferred to lead defence evidence.
5. Accused examined himself as DW-1 in defence evidence. He deposed in his evidence that he has not issued the disputed cheque to the complainant. He deposed that complainant misused the disputed cheque in question with collusion of staff of management of accused company. He also deposed that he has not received any notice regarding the disputed cheques. He also deposed that no 'buyback agreement' was executed between accused and complainant. Ld. Counsel for the complainant cross-examined the accused. Thereafter, matter was fixed for final argument. During final argument, it is observed that accused no.3 has not appeared in this matter and no order has been passed against him. Ld. Counsel for the complainant dropped accused no.3 from the array of accused vide separate statement of attorney of complainant recorded on 25.04.2022. Accordingly, accused no.3 was dropped from the array of accused persons.
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6. I heard final arguments from both the sides and perused the record carefully.
7. Before adverting to the fact of case in hand, I deem it appropriate to discuss the procedure laid down by Hon'ble High Court of Delhi for trial of offence under section 138 Negotiable Instrument Act. The Hon'ble High Court of Delhi has laid down the procedure for trial of the offence punishable U/s 138 N.I. Act in the case titled as Rajesh Aggarwal Vs. State decided on 28.07.2010 as follows:
"17. The summary trial procedure to be followed for offences u/s 138 N.I. Act would thus be as under:
Step I: On the day complaint is presented, if the complaint is accompanied by affidavit of complainant, the concerned MM shall scrutinize the complaint & documents and if commission of offence is made out, take cognizance & direct issuance of summons of accused, against whom case is made out.
Step II: If the accused appears, the MM shall ask him to furnish bail bond to ensure his appearance during trial and ask him to take notice u/s 251 Cr. P.C. and enter his plea of defence and fix the case for defence evidence, unless an application is made by an accused under section 145(2) of N.I. Act for recalling a witness for cross examination on plea of defence.
Step III: If there is an application u/s 145(2) of N.I. Act for recalling a witness of complainant, the court shall decide the same, otherwise, it CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.7 of 15 shall proceed to take defence evidence on record and allow cross examination of defence witnesses by complainant. Step IV: To hear arguments of both sides.
Step V: To pass order/judgment."
8. A perusal of the provisions under Section 143 read with Section 145 of the Negotiable Instrument Act would make it amply clear that the concern of the legislature, while incorporating Section 143 and 145 by way of amendment w.e.f. 06.02.2003, was essentially to curtail the delay which was occurring in the disposal of these complaints under Section 138 of the Negotiable Instrument Act. The mandate of the law was that the case should be tried summarily as far as possible and further, the trial should be conducted on day-to-day basis and preferably be disposed of within a period of six months. In the instant case, accused did not move the application under section 145 (2) of N.I. Act, hence the matter is proceeded summarily as per Rajesh Aggarwal judgment (Supra).
9. The same view has been reiterated in case titled Gurpreet Singh Vs. M/s. Ranbaxy Laboratories Ltd. decided on 02 August, 2010, wherein Hon'ble High Court of Delhi has observed and held as under:
"3. I have perused the orders passed by learned MM after summoning of accused. A perusal of these orders would show that the learned MM proceeded with the case as if it was a summon trial case and after issuing notice asked the complainant to again lead evidence CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.8 of 15 despite the fact that the evidence by way of affidavit of complainant was already on record. The Legislature has specifically made offence under Section 138 of the Negotiable Instruments Act as a summary trial and once the accused is summoned, he has to state his plea and state his defence in terms of Section (g) read with Section 251 Cr.P.C. The summary trial proceedings can be converted to summon trial case only under two circumstances, firstly when the Court comes to a conclusion that the sentence of one year would be inadequate and it was a case where sentence of more than one year may be required to be awarded, secondly when the MM is of the view for some reason (to be recorded) that the case should be tried as a summon trial.
In the present case none of the two things happened. The learned MM did not pass an order as to why the case was to be converted to a summon trial. The learned MM was bound to follow procedure of summary trial and was bound to treat the affidavit and evidence already filed by the complainant on record as the evidence sufficient to convict the accused unless accused had pleaded a tenable defence and accused was prepared to prove the defence. The learned MM therefore went wrong in posting the case repeatedly for complainant's evidence, without asking the accused/petitioner as to what was his defence. Since the learned trial court committed a grave error in treating this case as a summon trial case, the order of learned MM suffered from jurisdictional error and was liable to be set aside in revision............Directions are hereby given to learned MM to treat the present case as a summary trial case and the complainant's evidence, already given during inquiry at pre-summoning stage should be treated as evidence at post-summoning stage in terms of Section 145 of CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.9 of 15 Negotiable Instruments Act and in terms of Section 263 (2) of Cr.P.C (summary trial proceedings) and the petitioner should be asked to lead evidence in defence.
(See judgment titled "Rajesh Aggarwal vs. State and another Crl.M.C. 1996 of 2010 decided on 28th July, 2010)."
10. The same view has been also reiterated in M/S. KALUCHA PAPER HOUSE & ANR. Vs. M/S. MAHAVIR PAPERS & ANR. Criminal M.C. No. 3687 of 2009 & C.M. Appl. No.12526 of 2009 decided on 02.08.2010, wherein Hon'ble High Court of Delhi has held that:
"2. ....... The witnesses of the complainant could not have been recalled unless the petitioner had made an application under Section 145 (2) of Negotiable Instrument Act and had taken a specific plea why he was not liable to pay the cheque amount. The procedure being following by the learned trial court of repeatedly fixing the complaint case again for evidence was, therefore, faulty and not in accordance with provisions of summary trial as given in Criminal Procedure Code and Negotiable Instrument Act.
3. I consider that the trial under Section 138 of Negotiable Instruments Act is mandatorily to be proceeded in a summary manner and it is the accused who has to disclose his defence and make an application before the trial court as to why he wants to recall the complainant or other witnesses for cross-examination. The evidence adduced before summoning has to be considered sufficient during trial and unless an application is made under Section 145 (2) of the Negotiable Instrument Act, there is no provision for re-examining complainant witnesses. I, therefore, CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.10 of 15 consider that this case is required to be sent back for trial according to law as laid down by this court in Rajesh Aggarwal's case (supra)."
11. In the present case, a plea has been taken by accused in his statement recorded U/s 313 Code of Criminal Procedure that he did not receive the legal notice. However, accused has not led defence evidence to prove the fact that he has not received the legal notice 22.04.2014 Ex. CW-1/C. Even otherwise, there is sufficient material on record to raise a presumption under Section 27 of General Clauses Act for the service of notice. Section 27 of General Clauses Act is reproduced as under:
"27. Meaning of service by post -Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send"
or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." Presumptions are:
i. Letter has been served upon the accused; ii. The same is served within the normal reasonable time;
iii. The content of the letter was within the knowledge of the accused. (Harcharan Singh vs. Shiv Rani & Ors. AIR 1981 SC 1248) CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.11 of 15
12. A three judge bench of Hon'ble Supreme Court in C.C. Alavi Haji vs. Palapetty Muhammed and Another. (2007) 6 SCC 555 has held that:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
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13. In the present case, complainant has duly proved service of legal notice to the accused vide speed-post receipt Ex. CW1/D. Thus, accused has failed to rebut the presumption of deemed delivery. The contention made by accused regarding non-receipt of legal notice, during recording of his statement U/s 313 Code of Criminal Procedure cannot help the accused.
14. Since evidence of complainant has remained unimpeached during the trial, it was for the accused to controvert the stand of the complainant in respect of liability. Accused has failed to dispute any material or circumstance brought on record by the complainant. In the present facts, admittedly cheques in question belong to the account of M/s Rajput Properties & Developers Private. Ltd. (accused no.1) and accused no.2 signed on the same as an authorised signatory. Accused no. 2 has not denied his signatures on the cheques or the factum of having signed on the cheques in the capacity of authorised signatory. Accused no.2 has not disputed the liability to pay cheques amount at the time of framing of notice by stating in his defence recorded at the time of framing of notice that he intends to settle the matter and thus, he did not dispute the claim of complainant at the time of framing of notice. Accused took a lame defence in his statement recorded under section 313 Code of Criminal Procedure and his testimony that complainant misused the cheque in collusion with staff of accused and staff might have issued the cheques. However, accused failed to CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.13 of 15 substantiate his defence on the scale of preponderance of probability. He did not disclose the name of his staff and stated in his statement recorded under section 313 Cr.P.C. that he does not know the name of that staff who might have issued the cheques to the complainant. Though accused alleged in his SA that his staff might have issued the cheques to complainant but during his cross-examination he denied the suggestion that employees of his company are not working according to him. Now, if the employees of the accused company were working according to him, then how could staff/employee issue cheques to the complainant without directions of accused? Hence, even if for the sake of arguments, it is bought for a second that cheques were issued by the staff of the accused, the same could have been only under express authority, consent and knowledge of accused and under his signature. Moreover, accused has not made any complaint to any authority regarding misuse of cheques. Accused admitted the suggestion in his cross-examination that he had not made any complaint regarding misuse of the abovesaid cheques to any authority. Hence, accused failed to rebut the presumption by adducing evidence. Therefore, complainant is bound to succeed in the present case in absence of any contrary material. Complainant has established his case through evidence led by way of affidavit supported by documentary proof discussed above. The mandatory presumptions of law arising under Sections 118, 139, 146 of N.I. Act and Section 27 of General Clauses Act are in favour of the complainant. Accused has failed to rebut the mandatory presumptions CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.14 of 15 of law. The cheques were presented to the bank within validity period and were returned unpaid due to insufficiency of funds as established by cheque return memos. Legal notice demanding the cheques amount was dispatched within statutory period as established by postal receipts. Therefore, requirements of Section 138 N.I. Act are satisfied in the present case.
15. Therefore, in view of the aforesaid discussion, complainant has successfully established the fact that accused failed to make payment towards dishonoured cheques issued by the accused no.2, being Director of accused no.1, in discharge of the legal liability despite receipt of the legal notice even after expiry of statutory period. Accordingly, accused no.1 i.e. Rajput Properties and Developer Private Limited and accused no.2 Sunil Kumar Rajput are convicted for the offence punishable under Section 138 of Negotiable Instrument Act, 1881. Let the convict be heard on the point of sentence separately. Digitally signed Judgment be uploaded on the Official Website of the Court. Copy of the Judgment be supplied to accused forced free of cost.
Announced in the Open Court on dated 26.04.2022.
(MUNEESH GARG) ACMM/SHAHDARA DISTRICT, KKD/26.04.2022 CC No.13489/16 Pushpa Wahi Vs. Rajput Properties and Developer Page no.15 of 15