Delhi District Court
Sh. Jal Singh Malik vs . Sh. Om Prakash on 2 April, 2019
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
SH. JAL SINGH MALIK VS. SH. OM PRAKASH
CC No. 471383/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 471383/2016
(2) Name of the complainant : Jal Singh Malik,
S/o Late Sh. Sukhbir Singh Malik,
R/o D-3/104A, Sangam Vihar,
New Delhi-110080
(3) Name of the accused, : Om Prakash,
parentage & address S/o Sh. Bhartu,
R/o Flat At 2nd Floor in Part-B,
H.No. D-149, Balaji Apartment,
Near Venu Eye Hospital, Krishna
Park, Devli Road, Khanpur,
New Delhi-110080.
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused no.2 : Pleaded not guilty
(6) Final Order : Acquitted
(7) Date of Institution : 21.04.2016
(8) Date on which reserved for
judgment : 23.03.2019
(9) Date of Judgment : 02.04.2019
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that in the year 2008, complainant and his wife agreed to purchase a flat in Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.1 of 15 2 nearby locality of Krishna Park/Jawahar Park, Khanpur, New Delhi-80 and complainant and his wife agreed to pay the amoiunt as much as possible in the account of the accused and since 07.02.2008 to till 2012 the complainant had deposited a sum of Rs. 4,47,095/- in two accounts of the accused maintained at Axis Bank in A/c No. 160010100050643 and State Bank of India, Ambedkar Nagar, Sector-1, New Delhi in A/c No. 10207358344 and Rs. 1,52,905/- in cash in the year 2013 to 2014 total amount of Rs. 6,00,000/- to the accused on the basis of the assurance made by the accused that he purchase a suitable flat for complainant. Thereafter, accused started evading to purchase a flat for complainant or return the amount paid to him to the complainant. Upon mediation of relatives, accused agreed to pay amount of Rs. 6,00,000/- to the complainant in the month of December 2015 and accordingly, the accused issued a post dated cheque bearing no. 098957 dated 10.01.2016 for sum of Rs. 6,00,000/- in favour of the complainant which on presentation got dishonoured with the remarks "Funds Insufficient" vide memo dated 15.03.2016. Thereafter, on failure of accused to pay the cheque amount, a legal demand notice dated 16.03.2016 through his counsel by Regd. AD post to the accused at his both addresses which was deemed to be duly served upon the accused. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the instant complaint filed by the complainant through his attorney/ his wife Ms. Mala Devi Malik.
2. In the pre-summoning evidence, affidavit by way of evidence Ex.CW-1/X was filed by the complainant. In his affidavit of evidence Ex. CW1/X, Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.2 of 15 3 the complainant reiterated all the averments made in his complaint and relied on documents i.e. original of SPA Ex.CW-1/A, cheque in question Ex. CW1/B, its return memo Ex. CW-1/C, office copy of legal notice Ex. CW-1/D, postal receipts are Ex. CW-1/E and Ex. CW-1/F and the tracking reports are Ex. CW-1/G and Ex. CW-1/H. The complainant is Ex. CW-1/1.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 23.04.2016.
3. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 06.08.2016 to which the accused pleaded not guilty and claimed trial. Accused stated that the complainant is his relative and the cheque in question was given as surety. He has no legal liability to pay the cheque amount to the complainant. Accused stated that he received the legal notice. The entire contents of the above said cheque were filled by him.
4. Thereafter, the accused has filed an application u/s 145(2) N.I. Act which was allowed vide order dated 06.08.2016 and accused was given opportunity to cross examine the complainant and its witnesses.
5. Complainant examined Ms. Mala Devi Malik wife of complainant as CW-1 and the complainant himself as CW-2 for the purpose of post summoning evidence. Both the witnesses were duly cross examined by Sh. Ankit Aggarwal, Ld. Counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, on separate statement of Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.3 of 15 4 complainant, CE was closed vide order dated 08.03.2018.
6. Thereafter, the plea of the accused u/s 313 r/w 281 CrPC was recorded vide order dated 28.04.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that he had given Rs50,000/- to the complainant in the year 2007. The complainant returned amount of Rs49,000/- to him on 07.02.2008 with assurance to pay remaining balance of Rs1000/- later on. In Dec 2008, complainant approached him and stated that the needs Rs3.50 lacs to purchase a property and therefore, he had given him amount of Rs3.50 lacs which complainant assured to repay soon but the complainant had returned the same to me in span of 04 years and he had returned the amount till year 2012. Thereafter, being relatives, accused involved other relatives as complainant was making the payments in installments and that too late and thereafter, matter got settled and complainant assured him to be careful in future. Thereafter, directly in the year 2015, complainant approached him to purchase a property jointly showing him the financial crunch and he offered that he should pay Rs10 lacs and complainant will make the contribution of Rs06 lacs. The complainant asked for a security cheque of Rs. 06 lacs stating that he will pay the amount in cash to him. Accused stated that the complainant assured him to make the payment of Rs03 lacs by Dec 2015 and further amount of Rs03 lacs by first week of Jan 2016 but the complainant did not make any payments and misused his cheque. He has received the legal notice.
7. Accused examined Sh. Manju Singhal as DW-1 and accused Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.4 of 15 5 examined himself as DW-2. Both the witnesses were duly cross examined by Sh. Ankit Aggarwal, Ld. Counsel for the complainant. No other defence witness was produced by the accused. Thereafter, DE was closed vide order dated 06.03.2019.
8. Sh. C.M. Goel, Ld. Counsel for complainant and Sh. Ankit Aggarwal, Ld. Counsel for accused have addressed oral arguments.
9. Arguments advanced by both parties heard. Case file perused meticulously.
10. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
11. In the case at hand, the issuance of cheque in question, its dishonour and receipt of legal notice are not in dispute. The only defence taken by accused is that he has no legal liability to pay the cheque amount to the complainant.
12. As per complainant, he had given sum of Rs. 6 lacs to the accused for the purpose of purchase of property and when accused failed to purchase the property, he assured to return the amount and he issued cheque in question to return the amount.
Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.5 of 15 6 On the other hand as per accused, he has no legal liability to pay the cheque amount to the complainant.
13. By way of oral arguments, ld. Counsel for complainant has reiterated the averments of complainant. It has been further argued that accused has admitted the issuance of cheque in question, the receipt of legal notice, handing over the cheque to the complainant and signatures on the cheque. The accused has only disputed the liability to pay the cheque amount to the complainant. However, the accused himself has proved the document Ex. CW-2/D1 and in the document Ex. CW-2/D1 there is an admission by the accused to pay the amount of Rs. 6 lacs to the complainant. The document Ex. CW-2/D1 corroborated the story of complainant that complainant paid the amount to the accused from 2008 till 2014 and upon the mediation of relatives accused agreed to return the money to the complainant. It has been further argued that the complainant has duly proved that amount of Rs. 4,47,095/- has been deposited in the account of accused from 2008 till 2012 and in the year from 2013 to 2014 complainant paid cash of Rs. 1,52,905/- to the accused. The testimony of both CWs have remained unrebutted. It has been further argued that the amount was paid to the accused not as loan but for a particular purpose and the period of limitation has to be computed from the date when the purpose failed and accused issued cheque in question and not three years as in ordinary case of loan is computed. Therefore, no question of time barred liability arises. Further, even for the sake of arguments, the plea of accused as to time barred liability is Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.6 of 15 7 considered, then as per section 25 (3) of Indian Contract Act, the moment accused issued cheque in question, afresh contract has entered into between parties. It has been further argued that the document Ex. CW-2/D1 is a proof that complainant has paid sum of Rs. 06 lacs to the accused. The defence of accused is a sham defence which is liable to be discarded in toto.
On the other hand, it has been argued on behalf of accused that the story set up by the complainant is improbable because if the property deal worth Rs. 06 lacs has been finalized in the year 2006 and complainant has paid the amount in installments from the year 2006 to 2014, then it is not possible that complainant would get same property for Rs. 06 lacs in the year 2014 because definitely the property rate will increase with the passage of time. Further, Ld. Counsel for accused has read over the cross examination of both CWs and has pointed the discrepancies in the depositions of both Cws. It has been further argued that it is highly improbable that complainant would safe the receipt of small amount but he would not take the receipt for cash payment of Rs. 152905/-. Further, ld. Counsel for accused has objected to the authority of CW-1 Mrs. Mala Devi to institute the complaint and to give deposition as CW-1. It has been further argued that SPA is forged and fabricated. It has been further argued that the complainant has admitted the document Ex. CW-2/D1 but this a vague document / agreement and this was prepared but it was not actually acted upon by the parties and that is why the terms of agreements have been kept ambiguous. It has been further argued that as per document Ex. CW-2/D1, accused has already bought the home but admittedly no house was ever Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.7 of 15 8 bought. The purpose of bringing the document Ex. CW-2/D1 is to prove the defence of accused how cheque was issued only for the purpose of surety and how complainant came into possession of cheques. It has been further argued that the accused has been able to raise a probable defence while the complainant has failed to prove his case.
14. It is a settled legal position that under the scheme of Negotiable Instruments Act, a statutory presumption has been created in favour of the holder of the negotiable instrument in due course Section 139 stipulates that the court shall presume liability of the drawer of the cheque for the amount for which the charge is drawn & Section 118 envisages that unless the contrary is proved, it shall be presumed that the negotiable instrument including a cheque has been drawn for consideration. [Ref : 2001 V AD(SD) 260 Hiten P. Dalal Vs. Bratindranath Banerjee].
15. Although, the court is under an obligation to raise the presumption contemplated u/s 118 & 139 N I Act in every case, where the factual basis for raising the presumption has been established by the complainant, the accused is required to raise a probable defence to rebut such a presumption by leading evidence or bringing such facts on record in the cross- examination of the complainant that could make the latter's case improbable. For doing so, it is not necessary for the accused to disprove the existence of consideration by way of direct evidence. The standard of proof has been held to be preponderance of probabilities & the inference of preponderance of probabilities can be drawn not only from the material that has been placed on Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.8 of 15 9 record, but also by reference to the circumstances upon which the accused relies. [Ref : 1999 II AD(SC) 221 Bharat Barrel & Drum Manufacturing Co. Vs. Amin Chand Pyarelal].
16. Further, if the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will shift back to the complainant who will then be under an obligation to prove it as matter of fact & failure to do so will disentitle him to any relief on the basis of the negotiable instrument and this obligation can be also discharged by way of cross examination of the complainant.
17. As far as objections of complainant with respect to SPA in favour of CW-1 /Mala Devi is concerned, once the complainant himself has entered into witness box and has given deposition that he has authorized his wife to file and contest the case on his behalf by way of SPA dated 23.03.16 Ex. CW-1/A, the objections on part of accused with respect to authority/SPA in favour of CW1 became irrelevant.
18. To prove his defence, accused has cross examined the SPA of complainant/CW-1 who has deposed during cross examination that:
"............Q For what purpose you had deposited the money in the bank account of accused?
A For the purpose of property.
Q Where you wish to buy the property or at what place? A I do not know about the same...............
..............Q What was the expenditure of your house between 2008 to 2012?
A I do not know about the same.
Q What was the reason behind straining of your relationship in 2012? (confronted with the first answer of the complainant in the cross- examination on 10-02-2017) Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.9 of 15 10 A Due to money only. As accused broken his promise and did not help us to buy house for which I had deposited money in the bank account of accused.
Q How long you have been in strained relationship with the accused?
A Till date. After 2012 we have never been in good relation with each other. Even we were not in talking terms................ ..............Q Did you know what was the amount required to buy the property for which you had deposited the money in the account of accused?
A I do not know as my husband know about it............ ..............I do not know for which purpose SPA Ex. CW-1/A was executed. My husband has not disclosed complete facts of the complaint to me before filing of the present complaint. Vol. Only some facts have been told to me. The facts related to complaint and to the present case were not informed to me before execution of affidavit annexed with the complaint in vernacular manner................ ....................I do not know whether any agreement got signed between my husband and the accused in respect of the alleged cheque in which it was clearly stated that alleged cheque has been given as a security.............
...................There was also some cash transaction which I used to get from my husband house and sometimes the accused used to come home and collect the amount from us. Approximately Rs. 1.52 Lakhs were given in cash through me and my husband. It is correct that no written agreement has been executed qua the cash transaction mentioned above. I do not remember the exact date or month or year when the said cash was given to the accused. It is wrong to suggest that we have not ever made any transaction in cash with the accused. I do not know how much total money given by us to the accused for the above-said purpose.................. ............. I do not know in how many installments the total cash of approximately Rs. 1.52 Lakhs were given to the accused. I do not know what was the denominations of the cash amount given to the accused. I do not know when was the cheque was handed over to my husband by the accused after the strained relationship that got happened with the accused in 2012................"
Thus, clearly the SPA of complainant/CW-1 is not aware of the material facts of the transactions in question. Further, she admitted that she does not have personal knowledge of all the facts and circumstances of the transactions in question and she knows only some facts which have been informed to her by her husband. Therefore, the testimony of CW-1 is of no use to the complainant to prove his case.
19. Further, complainant himself has entered into witness box and has Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.10 of 15 11 deposed as CW-2. During cross examination the complainant deposed that :-
"................Accused is the son in law of my brother in law (sala)............. ................I shifted to Delhi in the year 2010 at Sangam Vihar in my own residence mentioned above. I purchased the same for Rs. 10 lacs approximately. I manage the amount from my personal savings as well as I had taken loan from the people of my village. I had taken loan around of Rs. 6,50,000/- from my villager in cash. ............... ...............I came to Delhi in October 2010 and I purchased the house approximately three to four months prior to that. It is correct that in the year 2008, I approached the accused to buy a property. (vol. accused was dealing in the property transactions). I asked the accused to buy a property of admeasuring area around 25 to 30 and 50 sq. yards in the area of Sangam Vihar and where the accused having the business of property dealer. I don't know about my budget because I did not the money in my hand ready at that time and I assured to pay the money by way of monthly installment. Q. Can you give idea what was your budget i.e. whether it was Rs. 20 lac, Rs. 30 lacs, Rs. 50 lacs or Rs. 70 lacs? Ans. The accused assured me to buy a property at the lowest price approximately below Rs. 20 lacs................. ................It was decided between me and the accused that the payment of the property would be made by me by installments as per my savings either by way of cash or by way of depositing the amount in the account of accused............... .............I haven't specified the period to the accused under which the said property had to be purchased but the accused had to purchase it as earlier as possible and the entire payment of the property was also not disclosed. I have given the accused of Rs. 6 lacs for the purpose of property in cash and by way of deposing in the account of accused. I had paid Rs. 1,52,905/- in cash to the accused once at my home and some time used to pay at the home of accused. I had made the entire payment of Rs. 6 lacs to the accused between the year 2008 to 2012. Thereafter, I requested the accused to buy a property for me as I have been regularly paying installments in your account and have also made in cash to you but you still reluctant to my property dealing. I had very good relation with accused till the accused hand over cheque in question to me. It is correct that there is no written documents regarding the cash payment of Rs. 1,52,905/-...................... ............................It is contradicted to you that in your evidence affidavit and in your complaint at para no. 4 you have stated that the cash transactions of Rs. 1,52,905/- was made to the accused in the year 2013 to 2014 but now you have stated above that the entire transactions of Rs. 6 lacs including Rs. 1,52,905/- was made to the accused till 2012 only, which of your statement is correct? Ans. I had given some money in the year 2013 to 2014 and entire payment was not made in the year 2012.
I had given approximately Rs. 1 lac in cash to the accused in the year 2013 to 2014 and I have no proof or receipt or any acknowledgment signed by the accused in respect of the cash payment of Rs. 1 lac as we are relative and I have trust upon him...................
Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.11 of 15 12 ...............I have handed over the said Rs. 1 lacs to the accused in several visits. Once when I paid some amount in cash to the accused, his wife was present there. ...................."
Thus, complainant has deposed that he had paid a sum of Rs. 152905/- to the accused by way of cash but complainant has kept changing his version as to when the cash payment was made whether till the year 2012 only or in between the year 2013 to 2014. Further, complainant has failed to clarify that in absence of a particular account statement, how complainant quantified the liability of accused with respect to cash transactions equivalent to Rs. 152905/-. In absence of such details, how court can determine the liability of accused to pay the amount of cheques to the complainant. It is highly improbable that a person who has given cash payment to the accused on regular basis in installments will be able to recollect or remember the accurate details of payments on day to day basis without keeping the written record. Further it is more improbable that complainant who wants to buy a property worth Rs. 20 lacs would keep paying money in installments from the year 2006 till 2014 and would pay only Rs. 06 lacs in eight years for purchasing the property without the actual purchase of the property.
20. Further, during cross examination, complainant has been shown one document i.e. Ex. CW-2/D1 (Colly) and he deposed that:-
".............At this stage, witness has been shown one agreement dated 11.12.2015 and witness has been asked whether this document has been executed between you and accused. The witness has answered that when I asked the accused to repay the amount taken by the accused from me towards purchase of my property then accused stated that he would prepare some documents to have a proof that he had returned my money after issuance of cheque in question and therefore, accused prepared this document. This document has been Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.12 of 15 13 signed by me at point-A on every page. The document is Ex.CW-2/D1 (colly). It is correct that I can read Hindi. I have signed the document Ex. CW-2/D1 after reading the contents..............."
21. Now the complainant has argued that this document itself is an admission on part of accused qua his liability to return the cheque amount to the complainant.
22. For the sake of convenience the translated version the agreement is reproduced as follows:-
Agreement This agreement dated 11.12.2015 has been executed at New Delhi between following parties i.e. Sh. Jal Singh Malik s/o Late Sh. Sukhbir Singh, R/o H.No. 104- A-3, Sangam Vihar, New Delhi-110080 (called as first party) And Sh. Om Prakash, s/o Late Sh. Bhagat Singh, R/o H.No. 604, Devli Village, New Delhi- 110080 (Called as second party) That, first party and second party, both had jointly bought the H.No. F-158, Forth Floor, Jawahar Par, New Delhi-110080, in which the First party has paid Rs. 6,00,000/- and second party has paid Rs. 10,00,000/-. That, the first party is taking Rs. 6,00,000/- from second party on this date............. That, second party will pay Rs. 6,00,000/- to first party by way of cheque. That, no transaction is remaining between first party and second party and in future first party will not be able to take any legal action against second party. That, today dated................ we both parties have signed this agreement in full consciousness after reading the same in presence of following witnesses, so that this agreement may be executed and be used on time. Dated:
Witness
1. First party signature
2. Second party signature First of all this document is incomplete and further, this document does not imply that complainant has made the payment of Rs. 06 lacs to the accused which accused is assuring to return, rather from the document it appears as if complainant and accused are co-buyers and accused is assuring to Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.13 of 15 14 buy the share of complainant and accused is assuring the complainant to make the payment of complainant's share. Therefore, this agreement is of no help to the complainant because there is no admission of any liability by the accused.
However, this agreement corroborated the plea of accused that he issued the cheque for the purpose of security only.
23. Further, accused has examined his wife as DW-2 who by way of examination in chief has retirieted the defence of accused taken at the stage of plea recorded U/s 281 read with 313CrPC. The testimony of DW-2 has remained unrebutted.
24. Now the story set up by the complainant does not appear to be probable that he started paying installments to the accused in advance without any sale agreement and without even keeping the written record and without finalizing the budget or the exact duration.
In case titled Vipul Kumar Gupta vs Vipin Gupta, 2012 (4) JCC (NI) 248, it has been held by Hon'ble Apex Court held that: "The respondent /accused has only to create a doubt in the version of the appellant, while as the appellant has to prove the guilt of the accused beyond reasonable doubt, in which, in my opinion, he has failed miserably". Similar views has been taken in the judgment of Kulwinder Singh vs Kafeel Ahmad 2013 4 BC 113 by Hon'ble Apex Court that "the basic principle in criminal law is that the guilt of the respondent / accused must be proved beyond reasonable doubt and if there is a slightest doubt about the commission of an offence then the benefit has to accrue to him". Similar view has been taken by the Apex Court in the case titled as K. Prakashan vs P. K. Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.14 of 15 15 Surenderan (2007) 140 Compol Cas 372; and in case titled as MSR Leathers vs S. Palaniappan & Anr. (2012) 193 DLT 90:
Therefore, even if there is any discrepancy in the defence of accused, the benefit cannot be given to the complainant blindly and accused cannot be convict for taking varying his defence, if the complainant has failed to prove the guilt of accused beyond reasonable doubt.
25. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have been rebutted by the accused by preponderance of probabilities, whereas the complainant has failed to prove its case beyond all reasonable doubts. Resultantly, this court finds the accused Om Prakash s/o Sh. Bhartu, not guilty for the offence punishable U/s 138 N I Act. Hence, he stands acquitted.
26. Further, accused is directed to furnish bail bond and surety bond in the sum of Rs 40,000/- U/s 437(A) CrPC and is directed to be present before the Ld Appellate Court as and when notice is served upon him. Bail bond not furnished.
Be listed for furnishing of bail bond on 06.04.2019. Digitally signed by
PRABH PRABH DEEP
Announced in the open court DEEP KAUR
Date: 2019.04.02
on 02.04.2019 KAUR 16:13:00 +0530
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Certified that this judgment contains 15 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Jal Singh Malik Vs. Om Prakash CC No. 471383/2016 Page no.15 of 15