Delhi District Court
Judgment Of Hon'Ble High Court Of Delhi ... vs Rohit And on 14 March, 2022
Complaint No.12889/16
PS Anand Vihar
Nisha
D/o Late Sh. K.P. Singh
R/o H.No. 345, Street No.6,
Durga Puri,Shahdara,
Delhi 110093 ........Complainant
VERSUS
Prem Chand
s/o Sh. Shauraj Singh
R/o village Jalalpur Raghunath Pur,
Murad Nagar, Tehsil Modi Nagar,
Distt. Ghaziabad, UP ........Accused
Complaint under section 138 of the Negotiable
Instruments Act
Offence complained of : U/s 138 NI Act
Plea of Accused : Not guilty
Date of decision of the case : 14.03.2022
Final Order : Convicted
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1. Briefly stating, complainants case is that the accused entered into a deal of a land situated at village Jalalpur vide Khata no. 280 of Khasra no. 168 Min, Rakba 0.5060 hectare, on the basis of forged documents and concealment of material facts and an agreement to sell was executed between the accused and complainant alongwith other associates. Thereafter, an agreement to sell was also extended on the pretext that land was clear from all encumbrances. It is further alleged that said deal could not be finalised despite making huge payment by the complainant and her associates for the reason of non transferable nature of the land and legal hurdles concealed by the accused at the time of execution of agreement to sell and sale dead could not be executed due to legal hurdle of non transferable nature of the land. The complainant has further alleged that the complainant alongwith her associates lodged an FIR No. 46/2014, U/s. 420/468/471/34IPC, PS Karawal Nagar against accused, his father and other associates against the cheating and forgery of the documents and accused was arrested in that case. The accused has approached the complainant to settle the abovesaid criminal case and to avoid legal punishment as well as other legal actions and acknowledged his liability and issued a cheque no. 315103 dated 15.05.2016 for Rs.20,00,000/ drawn on State Bank of India, Railway Road, Murad Nagr, Distt. Ghaziabad, UP in her favour at her chamber at karkardooma courts, Delhi with assurance that this cheque would be encashed. After the assurance of the accused, the complainant presented this cheque with her banker HDFC Bank, Hargovind Enclave, Delhi but it was utmost surprise to know that the cheque was dishonored on 03.06.2016 on presentation for the reason "Payment Stopped". The accused has issued the abovesaid cheque in favour of complainant intentionally and then stopped the payment with intention to further cheat her and to cause wrongful loss despite knowing the fact that the cheque issued by him was bound to dishonor and ultimately dishonoured.The complainant contacted the accused many times via phone but the accused initially assured to pay the amount soon but thereafter stopped picking up the phone calls of the complainant and ultimately complainant served a legal notice upon the accused thereby demanding the payment of the dishonoured cheque, but accused has failed to pay the cheque amount within stipulated period despite service of legal notice.
Hence, the complaint in hand has been filed and prayer has been made that since the accused has failed to make the payment of the dishonoured cheque, therefore, he be punished for committing an offence under section 138 of the Negotiable Instruments Act.
2. The complainant was asked to lead his presummoning evidence on the basis whereof, vide order dated 10.08.2016, the accused was summoned before the court to face trial under section 138 of the NI Act.
3. Upon appearance of the accused before the court notice under section 251 Cr.P.C was served upon him to which he pleaded not guilty and claimed trial.
4.(a) An application under section 145(2) NI Act was filed by the accused which was allowed vide order dated 22.03.2017 and the accused was permitted to crossexamine the complainants witnesses.
Accordingly, the complainant was asked to lead her evidence. In her evidence, the complainant got examined only one witness i.e. herself as CW1.
In her examination in chief the complainant adopted her affidavit led by him in his presummoning evidence and tendered the same as Ex. CW1/A. She further tendered the following documents: Copy of agreement to sell Ex. CW1/1 Copy of FIR Ex. CW1/2 Cheque no. 315103 Ex. CW1/3 Cheque returning memo Ex. CW1/4 Legal notice Ex. CW1/5 Postal receipt Ex. CW1/6 Tracking report Ex. CW1/7 4(b)(i) In her cross examination CW1/complainant stated had admitted that besides the above mentioned address she is residing at Flat No. 403, TypeV, Residential Block, KKD Court, Delhi32. She is practicing as an advocate for the last 15 years. She is also filing income tax return for the last 15 years.
(b)(ii) CW1 has deposed that in the year 2011, she had talked about the land mentioned in para no. 1 of her affidavit with Sh. Hari, who was also an advocate and was her junior. She had voluntarily stated that Sh. Hari himself approached all the advocates with the deal of selling the land. She had gone to see the land in question while the process of agreement to sell dated 26.12.2011 was being done. She had visited the site of the land in question about 45 days earlier of the execution of above mentioned agreement. She had not verified the nature of the land or any particulars of the land from the place where the land was situated. She had not verified from any other place regarding the nature of the land or any particulars of the land before the execution of the above said agreement. She had voluntariy stated that she had purchased the land on the basis of ownership documents shown to her. She had only seen the documents of the property on the day of execution of the agreement only. She had voluntarily stated that rest of all the advocates had already seen the documents. Only Hari had shown the documents to her and other advocates who were interested to purchase the land along with her.
(b)(iii) She had further deposed that Hari had shown the documents to her in her chamber no. D223, KKD Court complex. She had not herself had taken the said documents as many other advocates including Sh. Dharamraj and Rajeev also dealing with said Hari. She had taken the photocopy of the documents of land from Dharamraj and Rajeev. She had voluntarily stated that the said documents had been handed over to IO in the case and she was carrying the seizure memo. On the day of execution of sale deed they found that the land in question cannot be sold as the same was not transferrable. She had admitted that she had not verified the said fact prior to the date fixed for sale deed. She had voluntarily stated that she believed the contents of the documents of seller.
(b)(iv) The measurement of the land was approximately 400 square yards which was her share in the entire deal. Her share in the said land was of Rs. 10 lacs out of total sale consideration at that time. The total purchaser of the said land were 11 persons including her. She had admitted that Ex. CW1/1 (agreement to sell) was executed for a total sale consideration of Rs. 20 lacs by the 11 purchasers of the total land measuring 0.5060 hectare. She had admitted that she went to Subregistrar office at Modi Nagar, Ghaziabad along with other purchasers on (ikrarnama mahaydabaya) but neither she nor her other colleagues (purchasers) made any verification regarding the nature of land and any other enquiry about the land from the concerned officials. She had not verified the market value of the land before purchasing the land from the accused.
(b)(v) She further deposed that she did not recollect the exact amount of the first installment of her share which was given to accused but it was given at the house of Sh. Dharamraj along with all the other purchasers. The receipt of the amount handed over by her to accused was prepared but the said receipt has not been filed in the present case as the said receipt has been handed over by her along with other complainants to the IO. She had paid the amount in cash but she did not recollect the share of his amount. She had not signed the said receipt. The said amount was cash in her hand. She had further deposed that she paid all the installments prior to the execution of agreement dated 26.12.2011 but she was not recollecting all the dates as all the advocates used to collectively deposit the money. All the said installments were paid by her either in her chamber or in the house of Dharamraj. She did not recollect the exact number of installments paid by her to the accused. The receipts in respect of all the installments were also executed and the same were with IO. None of the said receipts carrying her signature as they had authorized one person in this regard. She had not filed the seizure memo of the said documents but she was carrying the same. The copy of the same was Ex. CW1/D1.
(b)(v) She had further deposed that she had paid more than Rs. 5 lakhs towards her share to the accused. She had disclosed said investment in her ITR returns. She had admitted that the seizure memo Ex. CW1/D1 is only with respect to receipt of 15.05.2011. She had voluntarily stated that some of the documents are in civil suit before the Ghaziabad Court. She had admitted that the copies of the said documents have not been filed in the present case. In Ex. CW1/1, photo of Mr. Rajiv along with his signature shown at point X & X1 respectively. She cannot say whether the document Mark X bears the signature of Mr. Rajiv or not on each page at point A. She had denied the suggestion that the document Mark X in original has been handed over by her on the directions of the court to the IO. She had denied the suggestion that she was deliberately and intentionally concealing the fact from the court that she was in possession of original Mark X. She had admitted that vide agreement dated 22.12.2012 the period for agreement to sell was extended. She had voluntarily stated that as on the same day it was found that said land might get transferable in future.
(b)(vi) She had admitted that when she got registered FIR NO. 46/2014 at PS Karawal Nagar U/S 420/468/471/34 IPC against the accused on 15.01.2014, her husband Sh. Devender Kumar was posted as ACMM(NE) in Karkarduma Court.
(b)(vii) She further deposed that she was not aware before purchasing the land in dispute as the said land was alloted to the accused under the scheme of Scheduled Caste quota by the State Government. I have not also asked from her other colleagues who were also the copurchaser of the land regarding the nature of the land covered under the Scheduled Caste quota. She did not recollect the technical reasons for nontransferable of the land. On the day when the first agreement was extended she came to know that the land in dispute was under the category of allotment of patta to the scheduled caste persons. Despite the knowledge that the land in dispute was under the category of allotment of patta but she was not aware that the said land only could be purchased by the persons belonging to Scheduled Caste category. She did not have any knowledge that other copurchasers belong to the SC category. She had admitted that she does not belong to SC category. She had denied the suggestion that in the registrar office at the time of execution of the agreements, she was fully aware about the fact that the land in dispute could only be purchased by the persons belonging to scheduled caste category. She had denied the suggestion that despite my knowledge regarding the fact that the land in dispute belongs to patta and she was not having the eligibility to purchase the said land even though she had not withdrawn herself from purchasing the said land from the respondent.
(b)(viii) Apart from the present case, she had filed only one FIR against the accused. She was not aware as to how many cases have been filed by other copurchasers against the accused. She had admitted that on 08.09.16, she along with her other copurchasers marked her attendance before the subregistrar Tehsil Modi Nagar, U.P. in respect of the dealings of land in dispute. It is correct that I along with her dealings of land in dispute. She had admitted that she along with her copurchasers filed a civil suit before the concerned court in Ghaziabad court. She had admitted that the said suit is of specific performance of the agreement executed between the accused, her and other copurchasers. She had admitted that as per the contents of the said suit the land in dispute is transferable. She had admitted that the agreement dated 22.12.2012 (page no. 28 to 42) of Ex. CW1/1 (colly) was extended with the consent of both the parties. She had denied the suggestion that the said agreement was executed as some documents were incomplete and due to the said reason also the above mentioned agreement was executed between the parties. She had denied the suggestion that she along with her other copurchasers mentioning above mentioned reason in the written attendance application before the sub registrar, Modi Nagar submitted on 08.09.2016. She could not tell that in the above mentioned civil suit how much balance amount would be paid by her and other copurchasers to the seller. She came to know about the nature of the land to be agriculture land before the execution of the sale deed. She had not enquired from her colleagues regarding the ground position of the land in question prior to making of first installment to the seller. She did not not recollect as to when she first visited the land in question. She could not tell as to which side of the main road, the land in question is situated.
(b)(ix) She further deposed that she came to know about the arrest of the accused after about 34 days of the arrest. The IO informed them regarding the arrest. She came to know that one of the complainant Dharam Raj accompanied the IO at the time of arrest. The said Dharam Raj did not inform her regarding the place of arrest. She did not obtain the certified copy of the chargesheet from the court. She had gone through the contents of the chargesheet. She had admitted that she had only filed some of the documents executed between her and accused. She had not filed the documents regarding the attendance in the subregistrar office as the same was not relevant. She had denied the suggestion that she had deliberately not filed all the documents concerned with the land in dispute to conceal the material facts from the court.
(b)(x) She had further deposed that the first payment of Rs. 25,000/ made by her and all the joint cosharers was given simultaneously by collecting at the residence of Dharam Raj and in this respect a receipt was prepared. She did not recollect whether the said receipt was signed by her and other purchasers or the seller. She had denied the suggestion that she had deliberately and intentionally concealing the material fact that in fact she was not present at the time of making the first installment to the seller nor she deposited any share of mine to the seller. She had admitted that she had lodged an FIR no. 46/2014, PS Karawal Nagar against accused U/S 420/468/471/34 IPC on 15.01.2014. The main complaint which was converted in the FIR was signed by only three persons, namely, Rajeev Kumar, Dharamraj and myself. It is a matter of record if the said complaint has been received in the police station on 21.12.2013 and the same was converted into FIR on 15.01.2014. She did not recollect if during the above mentioned period my husband Sh. Devender Kumar was posted as ACMM/North East in Karkarduma Court and he was also dealing with PS Karawal Nagar. She had denied the suggestion that shhe had deliberately and intentionally concealed the material fact from this Hon'ble court on the last date of hearing during her crossexamination that on 15.01.2014 her husband was not posted in Karkarduma Court as ACMM/North East. She had denied the suggestion that she had deliberately and intentionally concealed the said fact as the above mentioned false FIR was lodged under the pressure and influence of her husband against the accused persons.
(b)(xi) She did not not recollect when and where the fard of the disputed land was firstly shown to her. She had only seen the fard of the disputed land. She had seen the said fard before making the first installment. She met with the coaccused Lalit Kumar when first time she visited the site of disputed land. Thereafter, she did not recollect whether she met with the said Lalit Kumar. She met with the coaccused Sh. Shoraj Singh, who was the father of the accused at the residence of Dharamraj. She had admitted that 2002 onwards, she was regularly filing her ITR and her PAN no. is ANBPK1450E. That out of the first installment of Rs. 25000/ was paid collectively she did not recollect her own share. She did not recollect the amount paid as second installment because it was paid collectively. She had paid the entire amount prior to the agreement to sell but she did not recollect the number of installments in which it was paid.
(b)(xii) She could not produce the ITR returns as the same are not traceable and not available. She had denied the suggestion that she deliberately and intentionally stated that the amount which she had paid to the accused was reflected in her ITR. She had denied the suggestion that she had failed to produce her ITR as she had not made any payment to the accused at any point of time and in this respect she had made a false statement and also filed a false case against the accused. She had denied the suggestion that the payment of Rs. 25000/ made on 08.05.2011 as token money by only Rajeev Kumar to the accused and she had no concern in any manner with the said payment. She had denied the suggestion that on 15.05.2011 only the payment was made by Rajeev Kumar to Prem Chand as bayana money and she had not made any payment or she had no concern with the said document executed between Prem Chand and Rajeev Kumar.
(b)(xiii) She has further deposed that after coming to know that the land is nontransferable, the legal notice was issued by herself to the accused in this regard. She did not recollect the date or month of legal notice but it was in the year 2016. No legal notice was issued from the year 2012 to 2015. She gained the knowledge about land becoming transferable after going through the gazzet last year. She had approached the accused thereafter. The accused met her personally for the first time after he relapsed on bail for negotiations along with cheque on 15.05.16 after lunch. She did not call his other colleagues in the said negotiations. Prior to that during his custody he used to approach her and Dharamraj for compromise. When the accused came in her chamber, her brother namely Kunwar Hitender was also present. The signatures part as well as the amount (in words as well as numerical) part was already filled by the accused, the remaining particulars were filled by her in front of him.
(b)(xiv) She had denied the suggestion that Ex. CW1/3 was handed over by the accused to her after signing and filling the amount (in words as well as numeric) on 15.05.2016. She had denied the suggestion that Ex. CW1/3 was in possession of my colleague Rajeev Kumar which was taken by him from the father of the accused on 13.01.2014 and in this respect a written document was also executed between Rajeev Kumar and father of the accused and the said document was also signed by Rajeev Kumar and father of accused and Vinod Kumar was the witness of the said document. She had denied the suggestion that number of Ex. CW1/3 was in possession of his colleague Rajeev Kumar and later on with the connivance of Rajeev Kumar she had collected said cheque and filed the present false case against the accused by filling his name and date in the said cheque. She had denied the suggestion that there was no legal liability of accused to make any such payment to her. She had denied the suggestion that one side she had filed the present false case on the basis of Ex. CW1/3 which she had collected from her colleague Rajeev Kumar and on the other side she had also filed a civil case for the specific performance of agreement dated 06.12.2011 which was clearly showing her malicious intention. She had denied the suggestion that she had filed the present case on the basis of false and frivolous documents. She had denied the suggestion that when the Ex. CW1/3 was taken by Rajeev from the possession of father of the accused without the permission and consent of the accused, thereafter the accused immediately sent the information top the concerned bank officials for stopping the payment against said cheque and since then the said information was also intact in bank record.
5. Thereafter statement of accused was recorded under section 313 Cr.P.C wherein the entire incriminating evidence against the accused was put to him to which he denied all the allegations and stated that he did not know the complainant. The cheque in qustion of Rs.20 lacs has been wrongly filed as the cheque was valued up to Rs.10 lacs only.
On request of accused, he was granted opportunity to lead defence evidence wherein he got examined six witnesses.
6. On the other hand DW1 Sh Rajiv Kumar stated in his examination in chief that agreement dated 26.12.2011 Ex.1/1 (colly) bears his signature alongwith his photograph at point X. Agreement dated 22.12.2012 Ex. CW1/D1 also bears his signature along with his photography at point X. A document titled Ikrarnama dated 13.01.2014 (in Hindi) already marked as Mark X was shown to the witness and witness denied his signature at point A on all three pages of Mark X. He did not have original of document of Mark X and he did not have any concern with this document at point A is forged. His cross examination on behalf of the complainant was nil despite opportunity given.
7.(a) DW2 is Sh. Swaraj Singh. He had stated in his examination in chief that they had a land in the name of his son Prem i.e. the accused measuring 6 bigha at village Jalalpur, Muradnagar. Rajiv, Rakesh, Pummy, Mahender. Complainant and her husband, Dharamraj and other advocates approached in the year 2010 to his son Prem where he was also present and stated to him that they desired to purchase aforesaid land. They all had seen the land prior to our discussion. They had initially denied to sell them the aforesaid land but they kept on insisting for about 56 months to purchase the same. On 26.12.2011, an agreement to sell was entered into between his son and proposed purchasers and all were present at that time. One year after the said agreement to sell, these persons stated that they will get the registry of the said land on 31.03.2012. The subregistrar office denied to register the sale deed due to some caste issue. All of the above said persons then came together to him and asked him to extend the period for executing the sale deed for one year. Then the next date for execution of sale deed were fixed as 30.11.2013. The said dt. 30.11.2013 approached but these person could not arrange the money. Then all these persons denied to purchase. On the other hand DW1 demanded back double the money which they have paid. All these persons called me on 13.01.2014 and he came at Karkardooma Court premises and stated that things would be decided today and He was then threatened & misguided by them and they asked what he had agreement written by Pummy Ram. On the instance, he had paid them an amount of Rs. 08 lacs (Eight Lacs) in cash which he had no further money and then he gave a blank signed cheque no. 315099 of SBI, Muradnagar branch, of his son Prem whose cheque book he was carrying. They all stated to give them Rs. 5 lacs more on the next day and then they will return him the said cheque. On the next day 14.01.2014 Hari took Rs. 5 lacs in cash from his son i.e. accused and returned the said cheque. On 13.01.2014, when he had given the said cheque no. 315099, thereafter Rajiv had taken the said cheque of his son Prem from him in which there were four other blank signed cheques bearing no. 315100, 315101, 315102, 315103 all signed by Prem. These all four cheques were taken from the cheque book by separating them away from the cheque book by Rajiv. He resisted to this act stating that he was a poor person but he did not acceed to his request. At that time, Pummy was writing the Ikrarnama. He stated that he is also SC by caste and they are also SC by caste and therefore, why were they not intending to purchase the above said land anymore as there are some dispute relating to caste. Rajiv told that Devender Ji is SC by caste and his wife is not and therefore, the above said land cannot be purchased by them. The cheque in question i.e. cheque no. 315103 from amongst those four cheques has been misused by the complainant by filing the present case. This cheque might have been taken by the complainant from Rajiv Ji. When he demanded the said Ikrarnama they stated that It will be given to them later. There was no amount mentioned in the said ikrarnama. They all got his signatures & thumb impression at this ikrarnama. The photocopy of said ikrarnama was marked as Mark A at which his thumb impression and signature are at point B while the signatures of Rajiv Ji are at point A and the said document was witnessed by one Vinod Kumar whose signature were at point C. The endorsement regarding receiving of the amount of Rs. 5 lacs given to Hari Shanker and receiving the said cheque no. 315099 by his son Prem was made at the back side of said first page of said Ikrarnama. The said endorsement was at point D. When he signed on the said Ikrarnama Mark X on 13.01.2014, he demanded a copy of it but he was denied. He was given copy of this Ikrarnama by Hari Shanker on 14.01.2014. (7)(b)(i) DW2 is cross examined on behalf of the complainant. During cross examination he has admitted that the land in question was allotted to him as a patta and thereafter the said land was transferred in the name of his son Prem Chand. The land in question was transferred in the name of Prem Chand in the year 2009. He had admitted that if a land was allotted as Patta then the pattedar could not sell the same unless he becomes the absolute owner of that land. He had voluntarily stated that some advocates who belonged to SC category, used to visit his house every week stating that they want to purchase his land knowing that the same is nontransferable and they will themselves get the land transferable and free from lease hold as they were themselves capable being advocates. He had admitted that he had been witnessed to the document dt 26.12.2011 Ex. CW1/1 and his signature and photographs were at point A on 19 th page of that document. DW2 was shown a certified copy of Khatoni Ex. DW2/C1 and he has admitted that land in question was transferred in favour of his son Prem vide order dt. 28.05.2016 of Tehsildar Modinagar as per which he became a Bhumidar with transferable rights as per endorsement at point A on the said Khatoni. DW2 had stated that they had already told that his son was not competent to enter into agreement Ex. CW1/1 dt.26.12.2011 but the complainant and their accomplices insisted that they will get every thing in order and the land in transferable state and thus how this agreement was entered into.
(b)(ii) He had denied the suggestion that sale deed of land in question could not be executed on account of shortage of money or caste issue. He was aware of the fact that another agreement was entered into between the complainant alongwith other purchasers and his son on 22.12.2012 extending the date of execution of first agreement. He had denied the suggestion that the said extension was done as my son had asked to convert the land from lease hold to Bhumidari with transferable rights.
8.(a)(i) DW2 (wrongly numbered) is Vinod Kumar. He has deposed that the accused was his brother in law and he had entered into a deal with some advocates in respect of his land measuring about 8 bigha situated in the area of village Jalalpur, Raghunathpur,Murad nagar, District Ghaziabad. U.P. The agreement was executed between his brother in law and purchaser of the said land for a sum of Rs 20 Lacs. The land was allotted to his brother in law being a scheduled caste and the same could not be sold or transferred to the persons of other caste and persons of other State. Thereafter, his brother in law went for the doing the registration of the sale deed in favour of the purchasers but the same could not be done, but he did not recollect the reasons. His father in law and the purchasers fixed a meeting in respect of settlement of dispute about 45 years back ie in January. On 13.01.2014, his father in law was called by purchasers in Karkardooma Court in a Lawyers Chamber block. When he reached in the chamber, his father in law, Hari Shankar advocate, Rajiv Kumar advocate and Pammi advocate and one Pradhanji were sitting there. A document i.e. an agreement was already prepared when he reached there. After seeing the document ie ikramnama dt 13.01.2014 DW2 had admitted that it was the document which was prepared when he reached in the chamber. The said document was written by Advocate Pummy and it was witnessed by him and his signatures are at point © (already pointed). The said document also bearing the signatures of his fatherinlaw at already point B. Same was also bearing signature of Advocate Rajeev already at point A.
(a)(ii) DW2 had further deposed that Advocate Rajeev had taken five blank cheques which were only signed by Prem Chand and the said cheques were taken as security cheques. The cheques were drawn on State bank Murad Nagar branch and last figure of the said cheques were started from 99 to 04. Out of the said cheques one cheque was returned to Prem Chand by Advocate Hari Shankar and in lieu of the said cheque cash of Rs 500000 was taken by Advocate Hari Shankar. When the ikrarnama di 13.01.2014 was signed by him original of the same was in possession of Rajiv advocate and Hari Shankar. The photocopy of the said ikrammama at 13.01.2014 was already on record and the same is already Mark X.
(b)(i) DW2 was cross examined on behalf of the accused. During cross examination, DW had admitted that he was not a witness in agreement to sell Ex CW1/1. He had no knowledge about execution of Ex. CW1/1. On 13.01.2014, he was told by his father in law (father of accused) about present case and he was called by my fatherinlaw to go him for the settlement with respect to the dispute in question. Accused was not present with us on 13.01.14. He did not recollect where is the original of the document Mark X. He had denied the suggestion that document Mark X was a forged and fabricated document. He did not recollect if the allotted property ie. property measuring 05060 hectare, Khasra no 168, Village Jalalpur was patta zameen and therefore, could not be transferred by sale. He had admitted that he had no personal knowledge about the present case.
9.(a)(i) DW3 is Sh. Hari Shankar. He has deposed that he is a practicing advocate in Karkardooma Courts since 2005. A deal regarding a land was taken place between the accused and the complainant and Dharam Raj, Rajeev, Pummy, Mahender, Kanti, Shobha, Depender, Kanvarjeet, Vikram and himself, except Kanvarjeet all above mentioned persons are the advocates. Kanvarjeet was employed in a private company. The land of the accused was situated at Jalalpur, Muradnagar, U.P. It was approximately 6 bighas land and in May 2011, token money was given by Rajeev, Nisha and Dharam Raj at the residence of the accused Prem Chand and other purchasers were also present there. In this respect a document was also executed. Late on, a registered agreement i.e. Ikrarnama was executed on 26.12.2011 between the seller and the above mentioned purchasers. At the time of execution of this document, a sum of Rs. 10 lacs was paid to the seller. The said agreement was already Ex CW1/1 (colly total 18 pages) and his photograph at the said agreement was at point A and his signature is at point B and his thumb impression was at point C. Thereafter, another agreement was also executed between the seller and all the purchasers that agreement dated 22.12.2012. The said agreement was already Ex. CW 1/D (colly, total 18 pages) and which also bears his photograph at point A, his signature at point B and his thumb impression at point C.He had also identify the photographs and signatures of co purchasers of Sh. Pummy and Sh. Rajeev. Ex. CW1/1 and Ex. CW 1/D1 having the photographs of Sh. Rajeev already at point X and his signature already at point X1 and his thumb impression already at point X2 and the photoghraphs of copurchaser Pummy at point Y, his signature at point Y1 and his thumb impression at point Y2. He has further deposed that Ex. CW 1/1 was having the last date for execution of the sale deed dated 31.12.2012 but there was no arrangement of money made from the purchaser side, so with the consent of the seller agreement Ex CW 1/D1 was executed and in which the last date for execution of the sale deed was fixed for 31.11.2013 but till the said date no arrangement for payment of the money was made by the purchasers, hence, last date for execution of the sale deed was expired. Thereafter, some dispute arose between the seller and the purchasers. In the month of January 2014, Rajeev, Nisha, Dharam Raj, Kanti, Shobha, Mahender and Devender Kumar, husband of Nisha called the accused for arriving at some settlement in the chamber no. F401, Karkardooma Courts, Delhi.
(a)(ii) He had further deposed that on 13.01.2014, father of the accused and his brother in law (jija) were called at Karkardooma Courts by Rajeev and Pummy in Chamber no. 401 KKD courts, Delhi. In the said chamber, Pummy wrote an Ikrarnama already Mark X (3 pages). In the said Ikrarnama five cheques description was written and the said cheques were taken by Rajeev and Pummy from the father of the accused. The said cheques were blank signed cheques and the same bears the signatures of accused only. Rs. 8 lacs in cash was also taken by Rajeev and Pummy from the father of the accused. The said cheques were taken as security cheques. The ikrarnama Mark X was signed in his presence which bears the signature of Rajeev already at point X and the signature of brother in law (jija) of the accused namely Vinod Kumar already at point C and the signature and thumb impression was at point B1. He had also brought the copy of the said agreement already Mark X (3 pages). Original of the same is in possession of Pummy and Rajeev. Rajeev and Pummy thereafter had taken with them the original ikrarnama, cash amount of Rs. 8 lacs and five security cheques and reached at the house of complainant and her husband Sh. Devender Kumar. Ikrarnama Mark X was written by Pummy in his handwriting in his presence and some additions were also made in the said ikrarnama by Rajeev and Pummy with the consultation of Sh. Devender Kumar, the husband of complainant.
(a)(iii) He has further deposed that on 17.01.2014, he was sent by above mentioned Rajeev and Pummy alongwith original ikrarnama and they also handed over one cheque bearing no. 315099 of SBI branch at Muradnagar, which is one of the cheques which were taken by Rajeev and Pummy from the father of the accused and as per the instructions, he had handed over the above mentioned cheque and received amount of Rs. 5 lacs in cash from the accused and he also made endorsement on the original ikrarnama in respect of handing over the above mentioned cheque and receiving of Rs. 5 lacs in cash, in lieu of the said cheque. The said endorsement was at point D on the back side of page no. 1 of the Mark X bearing his signatures at point B. Thereafter, Rajeev, Pummy and other associates were filing a false complaint against the accused and he restrained them not to file the same as the cheque and cash amount have already been received by them from the complainant side but with the connivance of other purchasers a false complaint has been lodged by involving him falsely in the said case. He had also filed a photocopy of the receipt regarding making of payment by Rajeev Kumar of Rs. 25,000/ at the initial stage on 08052011 to the seller as per initial conversation that took place between him and the seller. The photocopy of the said receipt was mark X1.
9.(b)(i) DW3 is cross examined on behalf of the complainant. During cross examination, he had stated that he knew the accused Prem Chand since 2011. He had denied the suggestion that he knew the accused Prem Chand and his father prior to the dealing of land in dispute. Pardhan Lalit Kumar was not his close relative but being a biradari person he knew him. He had denied the suggestion that he used to come and go at Muradnagar prior to 2011. He had denied the suggestion that he knew Gram Pardhan Lalit and accused and his father before dealing of the land in dispute. He had denied the suggestion that the dealing of land in dispute was done through him between Prem and another purchasers. He had admitted that he was also a purchaser in agreement to sell Ex. CW1/1. The dealing for purchasing the land in dispute was done through Adv. Rajeev and Adv. Kanti. He had denied the suggestion that initial dealing to purchase the land in dispute was done through him. He had admitted that the land in dispute was of patta land. He had voluntarily stated that the said land could be transferred only to schedule caste category person. He knew that a land of patta can be transferred only to schedule caste category person since he did his graduation in law i.e 2001. Ex. DW5/C1 was shown to him by Mr. Rajeev when the dealing of land in question was done. Ex. DW2/C1 mentions that the land in question was transferable in 2016 but not prior to it, however, he was not aware about it. He had denied the suggestion that he had provided the document Ex. DW5/C1 to all the purchasers. He did not recollect whether the initial negotiation of land in question was done at Chamber Block, Karkardooma Court premises and accused also visited chamber block, Karkarduma Court premises. He had denied that the cost of lad in dispute was of Rs.60 lacs. The agreement to purchase the land Ex. CW1/1 was of Rs. 20 lakhs. He had paid about Rs. 80,00085,000 as my share towards consideration of property in question. He had voluntarily stated that they were about 12 purchasers and in total Rs. 10 lakhs had been paid amongst them He was confronted with document Ex. DW1/C1 to which he had stated that he had not knowlodge about this document.
He had denied the suggestion that the agreement for purchase of property in question was for Rs. 40 lakhs as per receipt on record Ex. DW1/C1. He had admitted that FIR no. 46/14 PS Karawal Nagar is registered against him apart from other accused persons qua dispute of property in question. He had admitted that he had gone to jail in aforesaid FIR no. 46/14 PS Karawal nagar. He had denied the suggestion that he was deposing against the complainant in the present matter as he have a grudge against the complainant. He had denied the suggestion that he along with other co accused persons in aforesaid FIR, he had cheated the purchasers of the property in question therefore, he was deposing falsely in the present complaint.
10.(a)(i) DW5 is Sh. Pummi Ram. He has admitted that Ex. CW1/1 was executed on 26/12/2011 between the accused Prem Chand and himself alongwith his other 10 colleagues which includes Rajeev Kumar and complainant Nisha and on the Ex. CW1/1 his thumb impression and signatures alongwith his photograph was at point Y,Y1 and Y2 on first page and his signature & thumb impression on each page at point Y1 and Y2. He had admitted that Ex. CW1/D1 was executed on 22/12/2012 between accused in the present case and himself alongwith his other 10 colleagues which includes Rajeev Kumar and complainant Nisha and Ex. CW1/D1 bearing his signatures on each page is at point Y1 and his finger prints and thumb impression on page no. 8 of Ex. CW1/D1 at point Y2 and his photograph on page no. 2 of Ex. CW1/D1 at point Y. He had admitted that he knew accused Prem Chand And Ex. CW1/1 bearing his photographs. Mr. Rajiv Kumar is an advocate and practicing at Tis Hazari Court alongwith him and his photographs on Ex. CW1/1 was at point X and his signatures and thumb impression were at point X1. Ex. CW1/D1 also bears the signature of Mr. Rajiv Kumar at point X1 and his photograph at point X1. He had admitted that no sale deed was executed between Prem Chand and himself and his other colleagues. He has voluntarily stated that as the seller had given a forged document to them. The said forged documents were given to Mr. Dharam Raj. He could not tell the date and month when the same was given to him. After going through Mark X, he had stated that it was not written in his handwriting and he had no knowledge about Mark X. Mark X did not bear signature of Mr. Rajiv at point X. Mark X was never executed in my presence.
(a)(ii) DW5 was turned hostile and cross examined by defence counsel. During cross examination he has denied the suggestion that Mark X had been written in his handwriting and he was deliberately not disclosing the truth in this regard. he has denied the suggestion that Mr. Swaraj Singh, father of accused Prem Chand was called by him and his friend Rajiv and some other colleagues in Karkarduma Court in Chamber no. F401 and thereafter he and his colleague Rajiv after extending threats to the father of the accused forcibly and by misguiding him had taken Rs. 8 lacs in cash and a cheque of Rs. 5 lacs and four other bank signed cheques as security and he had also prepared in his own handwriting Mark X on which signatures of his colleague Rajiv were put at point X, signature and thumb impression of Swaraj Singh were put at point B and B1 and signature of witness Vinod Kumar were taken at point C. he has denied the suggestion that original of the Mark X was retained by him and his colleague Rajiv and he also sent his colleague Hari Shanker at the residence of Prem Chand on 17.01.2014 to receive Rs. 5 lacs and in lieu of the same cheque no. 315099 drawn on State Bank of India, Muradnagar Branch given to Prem Chand after taking the amount of Rs. 5 lacs through Hari Shanker. he has denied the suggestion that Cheque no. 315100 to 315103 were in his possession which were taken on 13.01.2014 and out of the said cheques he had handed over cheque no. 315103 Ex. CW1/3 to the complainant with his ill intention to extort the money from accused Prem Chand. he has denied the suggestion that the complainant had misused Ex. CW1/3 with his connivance and filed the present false case against the accused. he has denied the suggestion that original copy of Mark X has been illegally retained by him and his colleague Rajiv and he was not deliberately or intentionally produced the same before the court.
8.(b) DW5 is cross examined on behalf of the complainant. During cross examination, DW5 was confronted with certified copy of khatoni Ex. DW5/C1 .
11.(a) DW6 is Sh Ashish Chauhan. He has deposed that he was a summoned witness and he had been authorized by his senior officer Sh. Vikas Kumar to produce the record vide authorization letter dt. 06.09.2019 Ex. DW6/A bearing the signature of Mr. Vikas Kumar at point A. he had brought the system record of Ms. Nisha D/o Sh. K.P. Singh W/o Sh. Devender Kumar for the period w.e.f. financial years 201011 to 201213, Ex. DW6/B (colly. Running into 54 pages). certified copy of ITR for the assessment year 201112 to 201314 of Ms. Nisha. Same are Ex. DW6/C to Ex. DW6/E.
(b) DW6 was cross examined on behalf of the complainant. During cross examination he had deposed that he did not not have any personal knowledge with respect to the present case.
12. I had heard the arguments in detail and also perused the written submissions along with case law filed by the parties. Before arriving at the discussion on the factual matrix, it is important to discuss the provisions of law in this regards.
a. Section 138 of Negotiable Instruments Act, 1881 makes dishonour of cheques an offence. It provides that "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 provisions 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".
b. Careful reading of section 138 of the Act reflects that there are three key ingredients which need to exist in order to constitute an offence therein. The three ingredients were highlighted by the Hon'ble Supreme Court in the C.C. No. 8864/19 Dated 14.10.2020 Page 4/29 case of Krishna Janardhan Bhat v. Dattatraya G. Hegde AIR 2008 SC 1325 wherein the Apex Court held that the procedural requirements of section 138 are:
There is a legally enforceable debt. The drawer of the cheque issued the cheque to satisfy part or whole of the debt. The cheque so issued has been returned due to insufficiency of funds.
c. It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden to prove is on the complainant/ prosecution to prove the guilt of the accused. Also, the standard of proof is beyond reasonable doubt. However, in offences under section 138 of the Act, there is a reverse onus clause contained in sections 118 and 139 of the Act.
d. Section 118(a) of the Act provides that until the contrary is proved, it shall be presumed that "that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration."
e. Further, Section 139 of the Act lays down that "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."
f. On bare reading of these provisions, it becomes clear that the court shall presume the execution of a negotiable instrument for consideration unless and until the contrary is proved. Similarly, the Court shall also draw a presumption in favour of the complainant/holder of the cheque that the said cheque has been issued in discharge of legally enforceable debt of other liability. There is a statutory presumption under section 139 of the Act which arises in the favour of the complainant. This presumption is rebuttable and the accused is required to raise a probable defence. Burden of proof is hence upon the accused in such cases. Reliance can be placed on the decision of the Hon'ble Supreme Court in the case of M.S Narayan Menon vs. State of Kerala (2006) 6 SCC 39, wherein the Hon'ble Court has discussed in detail the scope and ambit of statutory presumption under section 118 read with section 139 of the Act. The relevant extract of the judgment is reproduced below:
"Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon"
f. Further, it is also a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption under section 118 read with section 139 of the Act is prepondereance of probabilities. The accused is not required to prove his case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences. At this point, the Hon'ble Supreme Court in M.S Narayan Menon case (supra) has interalia held the following: "The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies"
g. Further as discussed above, it should also be noted that the standard of proof in order to rebut the statutory presumption may be inferred from the materials on record and circumstantial evidences. It is not always mandatory for the accused to examine its own witnesses in order to rebut the said statutory presumption. At this point, reliance may be placed on the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat (supra), wherein the Hon'ble Court has categorically held the following: "32.
accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. As accused has a constitutional right to remain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different. 34. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.
13. At the stage of final argument, to begin with, the complainant had sought the benefit of presumption under section 139 of negotiable instrument act and had submitted that she had proved all the legal documents in proper manner and had requested to the court that submissions of accused may be heard first and had requested that she may be permitted to rebut the arguments advanced by counsel for accused.
14. First defence of accused: The cheque was not issued for discharge of any liability
(a)It is submitted by counsel for accused that there were total 12 prospective purchaser/parties to agreement to sell and admittedly total amount of 10 Lac rupees had been transferred by such prospective purchasers to the prospective seller that is accused herein. The counsel has submitted that as per this arrangement the share of complainant in the amount of 10 Lac rupees falls nearly about ₹90,000 and there was no occasion for the accused to pay a sum of rupees 20,00,000/ while returning the money to the complainant. The counsel for accused had argued that accused had maximum liability of rupees ₹90,000 towards the complainant and nothing more. On this basis the counsel for the accused had argued that the cheque in question was not issued in discharge of the liability as required by section 138 NI Act.
(b) As opposed to it the complainant has submitted that agreement to sell was entered into on circle rate and the land was to be transferred by the accused to the complainant and her associates for a sum of 60 Lac rupees. Complainant had submitted that she had put a document which is a certified copy taken from the Criminal Court in case FIR No. 46/14 PS Karawal Nagar to defense witness Swaraj Singh DW2/DW1 who is also father of accused and same was exhibited as Ex DW1/C1 as DW Swaraj Singh had admitted his signature on document exhibit DW1 / C1. The complainant has vehemently argued that as per document Ex DW1/C1 more than 20 Lac rupees had already been given from the side of subsequent purchasers to the accused persons as the price of the land as well as for other purposes and accordingly liability of accused towards the complainant was more than 20 Lac rupees. Complainant has further argued that in addition to repayment of his liability for amount given by the by the complainant to the accused, the accused had sought to compromised with the complainant all the criminal cases as well as civil cases filed by or on behalf of complainant against the accused persons. Complainant has further submitted that in lieu of that compromise, the cheque of rupees 20 Lac rupees was handed over by the accused to the complainant when the accused met the complainant in the year 2016 for the purpose of compromise.
(C1) To begin with the arguments advanced by counsel for accused was found plausible that the agreement to sell was for a sum of RS. 20 lacs and at the time of entering into agreement to sell Rs. 10 Lac had been advanced by complainant and her 11 associate to the accused. In pursuance of that agreement to sell, the share of complainant in that 10 Lac rupees amounts to about Rs. 90,000 only and there was no further liability of accused towards complainant for a sum of Rs. 19,10,000/. However, the complainant had vehemently argued that as per the agreement of all the parties only circle rates were mentioned in the agreement to sell Ex CW1 / 1 and it was mentioned that 10 Lac rupees was paid by complainant. The the complainant has relied on document exhibit DW1/C1 which was put by the complainant to DW swaraj Singh during his cross examination and witness had admitted his signature on document DW1 / C1, to show that a payment of more than 20 lacs was paid to the accused for the purposes of purchase of land as well as four construction of boundary wall of the said land. The complainant had further vehemently argued that cheque was issued for return of payment made by complainant to the accused as well As for compromise of all the legal disputes, civil as well criminal, between the complainant and accused with regard to purchase of land in question.
(C2). After perusal of record and hearing the arguments of both the parties, it appears that the basis of liability of the accused in the present case is not the agreement of agreement to sell. Document exhibit DW1 / seven also does not seem to be basis of the claim of the complainant. From the perusal of record and evidence led by the parties it is noted that after execution of agreement to sell Exhibit CW1/1, the sale deed could not be executed between the parties for which different reasons were stated by the parties during their evidence, which also does not seem to be the subject matter of the present proceedings. Due to non execution of the sale deed , the complainant and other associates had filed number of criminal as well as civil proceedings against the accused and other associates of accused. It has also come on record that accused as well as his associates had been in judicial custody in criminal proceedings instituted at the instance of complainant. It appears that liability of accused with regard to cheque Exhibit CW1/3 is that agreement/settlement arrived at between the complainant and accused vide which accused had sought to compromise all the legal cases, civil as well criminal, arising out of the non execution of sale deed. During her Cross examination by the accused, complainant CW1 has clearly stated that".... accused met her personally for the first time after he was released on bail for negotiation along with cheque 0n 15/05/2016 after lunch. When accused came in my chamber, my brother namely Kunwar HItander was also present....." However complainant was not examined further on this point nor any suggestion was given to her to the effect that accused had not met the complainant on the said date or accused has not met the complainant at anytime after getting bail for negotiation of settlement. When it comes to settlement of some dispute out of the court, the terms of settlement are determined by the parties themselves and it cannot be said that the amount paid by one party to another should be or must be exactly equal to the amount pleaded by party in a given case. On the basis of above said discussion, it cannot be said that cheque in question was not issued by the accused in favour of complainant for discharge of any legal liability. The settlement arrive at between the accused and the complainant constitutes sufficient liability on the part of accused in favour of the complainant. On the basis of above said discussion, no merit is found in the argument and defense of the accused that accused had no liability in sum of rupees 20 Lac rupees against the complainant for which this cheque could have been issued by the accused in favour of complainant.
15. Second defence of accused: Non Disclouser of payment made by the Complainant in ITR amounts to discharge of presumption in favour of complainant u/s 139 NI Act
(a) The counsel for accused has vehemently argued that despite asking the complainant on number of days during her cross examination, the complainant has not brought her ITR records of the relevant year though the complainant had admitted that she had submitted her ITR in the relevant year. The counsel for accused has submitted that when complainant had not brought her ITR records, he had to call a witness from income tax department namely Sri Ashish Chauhan who was the senior tax assistant at that time, examined him as defense witness DW6. DW6 during his examination in chief has brought the ITR record of the complainant and same has been exhibited as Ex DW 6/C to Ex. DW6/E. The counsel for accused has vehemently submitted that from ITR record of the complainant, it can be noticed that the complainant had not shown in her return any amount of money given by her to the accused at the time of execution of agreement to sell or afterwards. Counsel for accused has submitted that had any amount of money was given by the complainant to the accused for the purchase of the land in question at the time of entering into agreement to sell, the same must have been shown by the complainant in her ITR of the relevant year. The counsel for the accused had submitted that such non disclosure amounts to discharging the presumption in favour of the complainant u/s 139 NI Act. The counsel for accused has relied on number of judgements whereby hon'ble apex court as well as hon'ble Delhi high court to support his contention. The counsel for accused has relied on the decision of hon'ble apex Court in Kumar exports v. Sharma carpets (2009) 2 Supreme Court cases 513 and Anss Rajashekar v. Augustus Jeba Ananth (2019) 2 Crimes 4 SC. The counsel for accused has also relied on the judgment of hon'ble High Court of Delhi in Indrajeet Narula v. Rohit do and another CRL.L.P. 576/2014 and Daljeet Singh Chandok v. State and another CRL.L.P.453/2016.
(b)As against it the Complainant has vehemently argued that whether complainant has shown any transaction in ITR or not, same is subject matter of income tax authorities and the complainant. Complainant has submitted that if complainant does not pay the income tax return or if there is any irregularity, income tax department can put sanctions on the complainant or the or the income tax department can punish the complainant for the same, however only fact that same has not being shown in the income tax return, does not discharge the presumption in favour of complainant. the Complainant has relied on decision of hon'ble High Court of Delhi in Sanjeev Chanana v. Sandeep Chaudary in disregard. The complainant has further vehemently argued that as per her understanding of the income tax provision, she had to make statement about purchase of property on the completion of sale transaction. Complainant has submitted that when sale was not completed and no right was created in the favour of complainant in the immovable property, there was nothing for her to make her statement about execution of agreement to sale before the income tax authorities.
(C1). The counsel for accused has relied on the judgment of hon'ble apex court in Kumar exports v. Sharma carpets 2009 volume 2 Supreme Court cases 513. The hon'ble apex code in the present case has observed that:
The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case, the nonexistence 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 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 nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of the consideration and existence of debt, apparently does not serve the purpose of the accused. Something which is 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 nonexistence was so probable that a prudent man would 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 circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused my also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the NI Act.
The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue.
(c) In case of Kumar Exports(supra), the facts were that Sharma carpets had allegedly sold tuffet woollen carpet to Kumar Exports in the relevant. In pursuance of they said sale and purchase, the Kumar exports had issued the cheque in question in that case in favour of Sharma carpets. However a statement was made by Sharma carpets before tax authorities that no sale was made by Sharma carpets in the relevant Time. Considering the fact that Sharma carpet has made a statement before taxation authorities that they had not made any sale in the relevant time, the court has observed that accused has been able to bring it before the court up to the standards of preponderance of probabilities that cheques were not issued by the accused in discharge of any liability as Sharma carpets had themselves given a statement before taxation authorities that no sale was made by them at the relevant point of time. However there is no such statement made by the complainant before the income tax authorities or any other legal authority that complainant has not entered into agreement to sell with the accused or that complainant has not made payment off any sum of rupee to the accused or after his release from the jail on acceptance of bail, the accused has not entered in two settlement with the complainant and in pursuance of that settlement accused has given a cheque of rupees 20 lacs who the complainant. In view of the above, the ratio of the judgment of hon'ble apex court in Kumar exports v Sharma carpets(supra) does not apply to the facts of this case.
(C2) Further, the accused has relied on the judgment of hon'ble High Court of Delhi in Inderjeet Narula v Rohit dua and another(supra). In that case hon'ble High Court of Delhi has uphold the order of the Ld. magistrate that the large amount of money had been given as loan were not claimed to have been given by cheque which amounts to contravention of section 269 of Income Tax Act and same had not been advanced against written receipts or other documents acknowledging receipts of the loan, besides it no person was examined as witness by the complainant witnessing handing over money by the complainant to the accused. In the present case the case of complainant is not that complainant had advanced a loan of rupees 20 lacs in favour of accused and accused had given cheques to the complainant as discharge of his liability for payment against that loan. In the present case the cheque in question was given by accused to the complainant for settlement of legal claims against non execution of sale deed in pursuance of agreement to sell exhibit CW1/1. The existence of legal civil as well as criminal proceeding initiated at the instance of complainant against the accused is also admitted. It is for the settlement of dispute, that the cheque was issued by the by the accused in favour of complainant in the presence of brother of complainant namely Kunwar Hitander. Accordingly, the ratio of the judgment of hon'ble High Court of Delhi in Inderjit Narula versus Rohit and other also does not apply to the present case because factual metrics is altogether different.
(C3) Further, the ratio of judgment of Hon'ble apex court in daljeet Singh chandok versus state and another also does not apply to the present factual metrics as in the present case, the cheque has allegedly been issued for settlement of civil as well as criminal proceeding initiated at the instance of complainant against the accused and not merely for return of the payment made by complainant to the accused.
(C4) Besides these judgments, the accused has not pointed out any relevant rule of Income Tax Act or any other statute which require a person entering into agreement to sell to show the payment made by him to the prospective seller at the time of entering into agreement to sell, specially when complete payment has not been made and sale deed has not been executed and no right has been created in the favour off the prospective purchaser. Even otherwise as the cheque in question has allegedly been given for settlement of civil as well as criminal proceedings, the disclosure of the payment of money at the time of entering into agreement to sell in income tax return seem to be of lesser importance. In view of the above said discussion, the accused could not prove his point up to the standard of preponderance of probabilities and the presumption created by section 139 negotiable instrument in favour of complainant remained intact.
16. Third defence of accused: Non Service of Statutory notice u/s 138 NI Act upon the Accused
(a)The counsel for accused has vehemently submitted that accused has not received any statutory notice in compliance of section 138 negotiable act. The counsel for the accused had submitted that it is a matter of fact that said notice was not received upon the accused as accused did not reside at the address mentioned in the legal notice. Counsel has further submitted that even summons of the case was not served upon the accused on that address and same was served upon the accused in another court where he was facing trial in FIR No. 46/2014 PS Kaeawal Nagar. Counsel has submitted when such notice was not served upon the accused, the basic requirement of section 138 negotiable instrument act has not been satisfied and complaint is required to be dismissed.
The complainant has vehemently argued that legal notice was not served upon the accused as accused has illegally avoided receiving of the notice. Counsel has submitted that notice was served to the accused on the same address which is mentioned in agreement to sell. The complainant has submitted that that postal receit as well as notice is part of the record and it can be checked and verified that notice was sent to the same address by way of speed post. Counsel for complainant has further submitted that DW2 swaraj Singh who is father of accused has himself stated during his gross examination (dated 07.03.2019) that accused reside at the same address which is mentioned in agreement to sell.
One of the several defenses of accused is that the accused was not served the statutory legal notice as per section 138 of negotiable instrument Act. It is argued that in the absence of said service, the present complaint is liable to be dismissed.
(C1) In this regard this court is guided by the opinion of hon'ble apex court in case titled C.C. Alavi Haji vs Palapetty Muhadmmed and Ors. (2007) 6 SCC 55, as the ratio of which is also applicable in the present case. The honorable apex court has observed that the rigour of the requirement of service of legal notice has been reduced to an almost vanishing point in Section 138 NI Act jurisprudence. The Hon'ble Supreme Court while discussing the true intent behind the service of legal demand notice as a precursor to the launch of prosecution has quite categorically held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution, any accused who fails to pay the amount within 15 days of the service of summons, clearly cannot shield himself behind the technical demand of non service of legal notice. The relevant extract of the decision deserves to be quoted in extenso : ''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 Act, make payment of the cheque amount and submits 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''.
(C2) In addition to and in the light of above position of law, the following fact are relevant in the present case with regard to service of notice to the accused. Firstly, complainant has proved legal notice along with the postal receipts as per the rules of Evidence Act. Secondly, defense witness Swaraj Singh who is also father of accused had admitted during his cross examination that accused resides on the same address which is mentioned in agreement to sell. Thirdly, the accused has not brought any evidence to the effect that address mentioned one the notice allegedly issued by complainant to the accused was incorrect.
In view of the about that discussion coma no merit is found in the third defense of the accused.
(17) Fourth defence of accused: Explanation as to how the cheque in question had reached in the hand of the complainant
(a)The counsel for accused has vehemently argued that the father of accused was called by Rajiv Kumar and Pummy Ram to the lawyers chamber in karkardooma court for the purposes of compromise. The counsel had submitted that the father of accused Swaraj Singh was pressurized and further misguided to pay a sum of rupees eight lacs by Rajiv Kumar and Pummy Ram and their associates. He was further demanded rupees 5 Lac. On he is showing his inability to pay rupees five lacs, he was asked to give a cheque in sum of rupees five lacs. Father of accused Swaraj Singh who was carrying chequebook of the accused having blank signed cheque had given a cheque of rupees five lacs to the Rajiv Kumar and Pummy Ram. Both Rajiv Kumar and Pummy Ram had assured him that the same shall be returned on payment of ₹5. It is submitted by counsel for accused that at that time one IKRARNAMA was also written by the PummyRam, however copy of which was not given to the swaraj Singh at that time. It is further submitted by counsel for the accused that at that time Rajiv Kumar had forcibly taken four more cheques from Swaraj Singh from the chequebook of accused which were already having signed by accused Premchand. Swaraj Singh had requested not to take those cheques however those four cheques were taken by him forcibly. The counsel for accused has submitted that that photocopy of a IKRARNAMA has been marked X. The counsel has further submitted that when the accused had made payment of rupees 5 Lac to Hari Shankar who was associate of Rajiv Kumar and Pummy Ram, the cheque in sum of rupees five lacs was returned to the accused and Hari Shankar had made an endorsement at the back of the first page of IKRARNAMA. The counsel has submitted that out of the four cheques forcibly received by Rajiv Kumar and Pummy Ram,1 cheque was obtained by the complainant herein had been misused in filing the present case by the complainant. With regard to document mark X it is submitted by the counsel for accused that mark X is with Rajiv Kumar and Pummy Ram.
(b) The complainant has vehemently argued that this document mark X is fake and fabricated. Complainant has submitted that same has been concocted by the accused person to present a fake story before the court. The complainant has further submitted that court should not rely on document mark X not only because it has not been validly proved by the accused but also because it is totally a fake document which has been stated to be forged and fabricated by DW Rajiv and DW Pummy Ram, who are defence witnesses.
(C1) The court has considered the version of the accused as to how document mark X was prepared and executed and how the cheque in question had actually reached in the handoff complainant. However accused could not proved the existence of document mark X as per the rule of evidence.
(C2) As per section 63 (2) copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copy compared with such copies are secondary evidence. As per section 64 of Evidence Act, the documents must be proved by primary evidence except in cases mentioned in section 65 of the Evidence Act. Section 65 of Indian Evidence Act says that secondary evidence may be given of the existence, condition or contents of a document in the following cases:
1. Where original is shown or appears to be in the possession or power of same the person against whom document is sought to be proved, or of any person out of the reach of, or not subject to, the process of the court, or any person legally bound to produce it, and when after the notice mentioned in section 66, such person does not produce it Section 65 provides the when document can be proved by way of secondary evidence. In the present case only subsection (a) of section 65 is relevant and all other sub sections of section 65 are not relevant.
(C3) For the purposes of proving document mark X by way of secondary evidence, it was required on the part of accused to give a legal notice under section 66 of Evidence Act to Shri Rajiv Kumar or Pummy Ram or the complainant as the case may be, who as per accused is having the original document mark X to produce the original document mark X. Only on non production of document mark X by the person concerned on receiving this notice, the accused could have proved document mark X by secondary evidence.
(C4) The accused has not approved any legal notice given by him under section 66 of Evidence Act to anyone. Besides it there are different version of accused regarding the custody of original document mark X. During the cross examination of complainant CW1 she was given suggestion on behalf of accused that document mark X in original had been handed over by her under direction of the court to the IO. A further suggestion was given that she was deliberately and intentionally concealing the fact from the court that she was in possession of original mark X. Complainant had denied both the suggestion. DW 1 Swaraj Singh was silent regarding the possession of document mark X. Another defense witness namely Vinod Kumar had stated in his examination in chief that the original document mark X was in possession of advocate Rajiv and Harishankar. Defense witness Harishankar himself stated that original of document mark x is in possession of Pummy Ram and Rajiv.
Further, defense has examined its first witness as DW1 she Rajiv Kumar, who had stated in his examination in chief that he does not have original of document mark X and he does not have any concern with document mark X. DW1 Rajiv Kumar had stated clearly in his evidence that his alleged signature on document mark X is forge. Surprisingly that defense counsel had not sought any permission from the court for putting questions to defense witness Rajeev Kumar under section 154 of Indian Evidence Act. From the said fact an inference can be drawn that the accused has not negated the testimony of his own witness Rajeev Kumar who had deposed absolutely against the accused.
(C6). The accused has relied on the decision of hon'ble High Court of Delhi in case of Emmannuel Uchenna Ezenwosu v. Narcotics Control Bureau & Ors, criminal appeal no. 23/1997 where it is observed by hon'ble High Court of Delhi that produce and marked in stead of exhibiting the same is of no consequence, for the reason that a properly proved document even if marked maybe read in evidence and on the other hand an exhibited document if not properly proved on record cannot be read for want of proper proof. However this judgment and ratio is also not helpful to the accused as document mark X has not been properly and validly proved as per the rules of evidence, as discussed above.
As accused could not prove the document Mark X by primary or secondary evidence as per the rules of evidence, no force or relevance is found in the present defence of the accused.
(18) Other facts come before the court during the hearing of the case
(a)In addition to failing to prove the above said defense put up by the accused, the accused has miserably failed in proving certain basic facts which were required to be proved on the part of accused to discharge the benefit of presumption in favour of complainant provided by section 139 of negotiable instrument act. The accused has not given any explanation or reason as to why and how Swaraj Singh who was father of the accused was carrying the chequebook for accused Premchand, which contained as many as five blank cheques allegedly signed by the accused. The accused has not brought on record the evidence of sale of his shop from which he has allegedly received eight Lac rupees and which were allegedly given to the Rajiv and pummy when allegedly document mark X was executed. Accused has not also brought on record the cheque which was written by complainant or Rajiv or Pummy on payment of five Lac rupees cash by the accused to Harishankar. Accused has not examined any handwriting expert to show that amount mentioned inject exhibit CW1 / 3 in letters as well as in numbers was not in the handwriting of accused as alleged by the complainant. Neither the accused has stated that he or his father has made any complainant to police authorities regarding taking of blank signed cheque by Rajiv and Pummy forcibly from the father of accused nor any such complaint has been proved in the court during defense evidence. At one place, suggestion was given to the complainant that original document mark X is with the IO, however no effort was made to examine IO as defense witness so as to prove document mark X. Further no witness was called from the bank of the accused who could have proved when accused had given instructions to stop the payment. This instruction given to the bank to stop the payment might have been important to prove the defense of the accused as document mark X was allegedly written and cheques were allegedly forcibly taken from Swaraj Singh on 13/01/2014. DW Swaraj Singh had testified that the instruction to stop payment was given immediately after cheques were received forcibly from him. Had it been the case, the witness from bank could have come with the relevant document and depose about the receiving of stop payment instruction in the year 2014. Such evidence would have discharge the presumption in favour of complainant as the case of the complainnt is that she received the cheque Ex CW1/3 on 15/05/2016.
19. As far as the issue of credibility of complainant CW1, pointed out on behalf of accused on the ground that she had admitted in her cross examination that in the suit before civil court in Ghaziabad it is stated that the Land is transferable, is concerned, it does not affect the credibility of complainant CW1. It has stated by complainant in her cross examination that she had gained the knowledge about the fact that land becoming transferable from the gadget in last year. However there is there is no cross examination of complainant CW1 in this regard. Defense witness Swarj Singh had himself admitted in his cross examination that Prem Singh become bhumidar with transferable rights. The accused has not brought and proved the plaint filed by complainant in the Civil Code in Ghaziabad so as to show that even before gaining knowledge regarding land become transferable the complainant had mentioned in the plaint filed in Ghaziabad civil court that land is transferable in nature.
20. The accused has also relied the judgment of hon'ble apex court in case of C. Antony Versus K.G. Raghavan Nair to the effect that magistrate found that ink used in the body of the cheque was different from the ink used in signature, magistrate drew an inference that case put forth by the complainant was doubtful and hence could not be accepted. It is worthwhile to point out in that case the relevant facts were that complainant was totally unknown to the accused he had given cheque loan to the accused at the instance of an another person who was an advocate namely Vijay kumar. The court had found that loan examination of Vijay Kumar was beyond explanation because Vijaykumar was available in the court at the relevant point of time. It was in this light that difference in the ink was found to be not explained by the complainant, however in the present case the facts are different. It is himself stated by complainant that accused had handed over her the cheque which was signed by him and amount in words and figures was also filled by accused. Complainant had herself stated that she had filled her name and date in the presence of accused itself. The ratio of this case does not help the accused in discharging the presumption in favour of complainant.
21. In view of the above discussion neither the accused could adduce any direct evidence to prove that the cheque in question was not supported by any consideration and that there was debt or liability to be discharged by him, nor the accused could bring on record anything which could have been disprove the presumption which has been raised by Section 139 of NI Act in favour of the complainant. On being guided by the judgment of Hon'ble Apex Court and Hon'ble High Court of Delhi, it can be concluded that presumption created by Section 139 of NI Act remained intact and same could not be discharged by the accused in any manner.Thus in view of the aforesaid discussion it is held that the complainant has proved his case against the accused beyond the shadow of all the reasonable doubts. Hence, the accused is hereby held guilty for commission of offence punishable under section 138 of NI Act and is convicted thereunder.
22 Now to come up for arguments on quantum of sentence on 26.03.2022.
Let a copy of the Judgment be supplied to the accused free of cost. Digitally signed by MAYANK MAYANK MITTAL MITTAL Date:
2022.03.15 Announced in the open court 11:32:52 +0530 on Dated 14.03.2022 (Mayank Mittal) Metropolitan Magistrate06 (SHD) Karkardooma Court/Delhi/14.03.2022