Delhi District Court
Devender Singh vs Manoj Aneja on 29 September, 2015
IN THE COURT OF MS.MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
NORTHWEST, ROHINI, DELHI
Unique ID No. 02404R0001212013
CC No. 2/1/13
Devender Singh
S/o Late Sh. Sardar Ram Singh
R/o B158, Lok Vihar,
Pitampura, Delhi. ............Complainant
Versus
Manoj Aneja
S/o Sh. Pishori Lal Aneja
Proprietor of M/s. J.P. Agro Industries
R/o A51, Sarvesanji Apartment,
Sector9, Dwarka,
New Delhi. .............Accused
JUDGMENT
(1) Name of the complainant, Devender Singh
parentage & address S/o Late Sh. Sardar Ram Singh
R/o B158, Lok Vihar,
Pitampura, Delhi
(2) Name of accused, Manoj Aneja
parentage & address S/o Sh. Pishori Lal Aneja
Proprietor of M/s. J.P. Agro Industries
R/o A51, Sarvesanji Apartment,
Sector9, Dwarka,
New Delhi
(3) Offence complained of or
proved: 138 N.I. Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 03.01.2013
(6) Date of reserve of order: 23.09.2015
Devender Singh v. Manoj Aneja CC No. 2/1/13 1
(7) Date of Final Order: 29.09.2015
(8) Final Order: Acquitted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: That the complainant and accused were in the business of real estate and known to each other since long. With passage of time they developed good business relations between them. Accused took friendly loan of Rs. 10,00,000/ from the complainant for 25 days which was advanced by complainant to accused on 14.07.2007 by way of cash. Towards repayment of said loan accused issued cheque bearing no 007197 for Rs. 10,00,000/ drawn on Allahabad Bank, Rajinder Nagar, New Delhi to the complainant. The said cheque on presentation got dishonoured with the reasons "Funds Insufficient" & "Account Closed" vide return memo dated 26.07.2007. Complainant instituted a criminal complaint no. 121/1/07 under section 138 Negotiable Instruments Act against the accused in Rohini Courts. In the same criminal case, accused was convicted. Appeal was preferred by the accused in the said case. In the Ld. Appellate Court, parties entered into a compromise and agreed to settle all the disputes towards dishonoured cheques. In terms of the said compromise, accused issued two cheques bearing no. 921483 dated 30.12.2011 for Rs. 20,00,000/ and cheque bearing no. 921482 dated 31.07.2012 for Rs. 22,00,000/, both drawn on Federal Bank Ltd., Karol Bagh, New Delhi. Upon presentation of cheque bearing no. 921482 dated 31.07.2012 for Rs. 22,00,000/, the said cheque got dishonoured with the reasons "Account Closed". Upon dishonour of the said cheque, complainant apprised the accused for the same but he paid no heed to the request of the complainant for making payment of cheque amount. Thereafter, mandatory legal Devender Singh v. Manoj Aneja CC No. 2/1/13 2 notice dated 23.11.2012 was issued to accused by way of Regd. AD and Courier. The said legal notice was duly served upon the accused. However, in spite of service of legal notice, the accused neither made payment, nor gave reply to the same within stipulated time period. Therefore, complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre summoning evidence, complainant examined himself on affidavit. He reiterated the contents of complaint and placed on record, certified copy of order dated 07.09.2011 alongwith the statements of the parties as Ex. CW1/A, original cheque bearing no. 921482 dated 31.07.2012 for sum of Rs. 22,00,000/ drawn on The Federal Bank Limited, Karol Bagh, New Delhi110005 as Ex. CW1/B, cheque return memo dated 30.10.2012 as Ex. CW1/C, legal demand notice dated 23.11.2012 as Ex. CW1/D, postal receipts as Ex. CW1/E & Ex. CW1/F, Courier receipts as Ex. CW1/G & Ex. CW1/H and returned envelope as Ex. CW1/I, photocopy of receipt dated 14.07.2007 as Mark 'X', cheque bearing no. 007197 dated 22.09.2008 as Mark 'Y' and order on sentence dated 10.09.2009 passed by Sh. Dig Vinay Singh, the then Ld. ACMM, Rohini Courts as MarkZ.
4. On appreciation of presummoning evidence, the accused was summoned. Notice under Section 251 Cr.P.C. for offence under Section 138 N.I. Act was framed upon accused on 05.02.2014 to which he pleaded not guilty and claimed trial. Accused took defence that cheque in question was issued for the purpose of security for getting the file of property back from the complainant. As per him, contents in the cheque in question were not filled by him and he does not have any legal liability towards the complainant. Signature in the cheque in question was accepted by him.
5. Complainant examined only himself in his post notice evidence. He adopted his affidavit Ex. CW1/1 towards examination in chief and during cross examination he stated that he can not say as to whether he mentioned the cheque Devender Singh v. Manoj Aneja CC No. 2/1/13 3 amount in his Income Tax Return of the relevant period. As per complainant, number of property transactions took place between him and the accused since 2006. However, he could not tell the exact details of those deals. He denied the suggestion that he had to return the cheque in question to the accused in terms of settlement of one property. Complainant admitted that sum of Rs. 2.50 lacs was received by him from accused. However, he stated that the sum of Rs. 2.50 lacs has nothing to do with present cheque in question.
6. Thereafter, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded on 10.09.2014 in which all the incriminating evidence were put to the accused to which he took same defence as it was taken by him at the time of framing of notice under Section 251 Cr.P.C. He also stated that he has already made payment towards loan of Rs. 10,00,000/ by way of Demand Draft of Rs. 5,00,000/ and by giving sum of Rs. 5,00,000/ in cash. Thereafter the matter was fixed for defence evidence.
7. In his defence evidence, accused examined two witnesses including himself in his defence as DW1. He took defence that he handed over two files of property to the complainant against his investment. As per him, he took a loan of Rs. 10 lacs from the complainant and he has already paid that the said loan by way of demand draft of Rs. 5 lacs and by making payment of Rs. 5 lacs by way of cash. He further stated that earlier matter between them was compromised for Rs. 7.50 lacs. He made payment of Rs. 2.50 lacs by way of cheque and remaining Rs. 5 lacs were paid by him in cash in presence of one of common friend namely Sh. Sanjay Batra. He stated that he does not have legal liability against the complainant for the cheque in question.
DW2 corroborated the testimony of DW1 to the extent that the cheque in question was given as blank cheque for the purpose of security in his presence.
8. Thereafter, oral arguments tendered on behalf of both the parties were heard at length. It was contended on behalf of the complainant that cheque in Devender Singh v. Manoj Aneja CC No. 2/1/13 4 question was given by the accused for the settlement arrived between them in Learned Appellate court regarding one case in which accused was convicted. As per the Ld. Counsel for the complainant, cheque number is mentioned in the statement towards settlement and thus it is clear case against the accused regarding non payment of settlement amount by way of cheque in question. Per contra, it was submitted on behalf of accused that settlement amount is not mentioned in the statements of the parties and the cheque in question was issued as security cheque for getting the property file back from the complainant.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first: For the offence under Section 138 NI Act to be made out against the accused, the complainant must prove the following points, that:
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Devender Singh v. Manoj Aneja CC No. 2/1/13 5Section 118(a) and Section 139 of the said act are read as under:
Section 118 Presumption as to Negotiable Instruments : Until the contrary is proved, the following presumptions shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transfered, was accepted, endorsed, negotiated or transferred for consideration;
Section 139. presumption in favour of holder: 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.
11. For the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
12. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. The court has to first see as to whether the complainant has proved that the accused issued the cheque in question towards a legal liability in favour of the complainant or not from the account maintained by him. During trial, accused admitted his signatures on cheque Ex.CW1/B. Accused has also not denied the issuance of cheque to the Devender Singh v. Manoj Aneja CC No. 2/1/13 6 complainant. Statement in Ex.CW1/A is admitted by the accused. In this regard, presumption under Section 139 NI Act is raised in favour of the complainant and hence nothing was required to be proved by the complainant.
Defence taken by the accused is that two cheques including cheque in question were given by him for the purpose of security to get the files of property back. It is contended by the Ld. Counsel for the accused that during settlement before Ld. Appellate Court, amount of settlement was not specified in the statements of parties. On careful reading of statement of complainant as well as accused given by them for settlement before Ld. Appellate Court in a case in which accused was convicted by the then Ld. Trial court, it comes out that for the purpose of settlement, two cheques including cheque in question were given apart from the payment made by the accused. Amount in the cheque in question is not specified in the statements of accused as well as complainant. As per the complainant, accused preferred appeal against the conviction in the case filed by him for cheque of Rs. 10,00,000/ and before Ld. Appellate Court, the matter was settled for the sum of Rs. 42,00,000/. This contention of complainant is highly objected on behalf of the accused. It is submitted on behalf of accused that amount in the cheque in question was not specified as cheques were given in blank for security purpose and now complainant is taking advantage of those statements.
As per both the parties the cheque in question in the previous case between them was for Rs.10,00,000/. Accused in that case was convicted and was ordered to pay compensation of Rs.11,25,000/ to the complainant. In these circumstances, it is highly improbable that accused would have settled the matter for sum of Rs. 42,00,000/ for the case in which cheque amount was only Rs. 10,00,000/. As per the accused, contents in the cheque in question was not filled by him. No other evidence is adduced by the complainant to prove that matter was settled between them before Ld. Appellate Court for sum of Rs. 42,00,000/. During crossexamination, it was accepted by the complainant that there was deal between him and the accused regarding the plot bearing no. H519, TDI, Kundli, Sonipat and objection regarding the same was removed after the settlement Devender Singh v. Manoj Aneja CC No. 2/1/13 7 before the Ld. Appellate Court. Admission of complainant regarding deal with the property situated at Kundli, Sonipat, strengthen the defence taken by the accused. Ld. Counsel of accused has relied upon Prakash Kumar v. Nishant of Gujrat High Court 08.05.2012 in which it was held that if accused brings something on record which is probable of getting the benefit of doubt then the onus shifts upon the complainant.
As per the accused, the matter was settled between them before the Ld. Appellate Court for sum of Rs. 7,50,000/ and he made payment for sum of Rs. 2,50,000/ by way of cheque and payment for remaining amount of Rs. 5,00,000/ was given by him by way of cash. During crossexamination, complainant accepted that he received payment of Rs. 2,50,000/ from the accused, however, he denied that the said payment was received for the settlement of the matter for sum of Rs. 10,00,000/. Accused examined Sh. Sanjay Batra in his defence who stated that two cheques were handed over by the accused to the complainant in his presence for the purpose of security and contents in those cheques were not filled by the accused. DWSh. Sanjay Batra also stated that matter was settled between the complainant and the accused for sum of Rs. 12,50,000/. Ld. Counsel for the complainant raised contention for contradiction regarding amount of settlement as accused was stated that matter was settled between them for sum of Rs. 7,50,000/ and DW2 stated that matter was settled between the parties for sum of Rs. 12,50,000/. Regarding amount of settlement, contradiction in the testimony of DW1 & DW2 is not a material contradiction as DW2 stated that payment by way of banker's cheque of Rs. 5,00,000/ and cheque of Rs. 2,50,000/ was not made by the accused in his presence. Regarding settlement between the complainant and the accused and handing over of two cheques for the purpose of security, DW2 corroborated the testimony of DW1. Ld. Counsel for the accused also stated that complainant failed to specify the sources of his income and he failed to give any evidence regarding settlement of matter of Rs. 42,00,000/, hence, allegations made by him in his complainant are vague. Ld. Counsel for the complainant relied upon Col. R.P. Mendiratta v. Sandeep Chaudhary Crl. A. 1125/2013 of Hon'ble High Court of Delhi in which acquittal of accused was Devender Singh v. Manoj Aneja CC No. 2/1/13 8 upheld as complainant failed to submit his sources of income and the documents regarding the transaction. Ld. Counsel of the accused has also relied upon Trilochan Singh v. Ved Prakash, decided by Hon'ble High Court of Punjab and Haryana on 17.07.2013, in which acquittal of accused was upheld as complainant failed to prove the transaction and to place on record the relevant Income Tax Returns. Complainant in the present case has not placed on record any relevant documents and relevant Income Tax Returns to prove the transactions between him and the accused, so that his version for settlement for sum of Rs.42,00,000/ can be relied.
Complainant has not mentioned any other specific dues in his complaint upon the accused towards him. Complainant during trial also did not specify the deals executed between them regarding which accused is having liability towards him. As no other dues are specified by the complainant in his complaint and during trial, it is difficult to believe the submissions of complainant that matter between them settled for sum of Rs. 42,00,000/ before Ld. Appellate Court. As a matter of general practice, no person would settle the matter for sum of Rs. 42,00,000/ in which cheque amount is involved only of Rs. 10,00,000/. Submissions of accused that matter was settled between them for sum of Rs. 7,50,000/ seems to be more probable then the submissions of complainant that matter settled for sum of Rs. 42,00,000/. As per the accused, he made payment of Rs. 2,50,000/ out of Rs. 7,50,000/ by way of cheque. Receiving of payment of Rs. 2,50,000/ is also accepted by the complainant during trial, although he did not accept that those Rs. 2,50,000/ were accepted by him in previous criminal case between them. Upon perusal of statements made by the complainant as well as accused before Ld. Appellate court, it seems that some payment was made by the accused to the complainant towards settlement and two cheques including the cheque in question were given by the accused apart from the payment made by him. As amount in those cheques is not specified in the statements made by them, it seems that those cheques were not issued towards payment of any particular amount and there is possibility that those would have been issued for the purpose of security. Acceptance by complainant during his crossexamination Devender Singh v. Manoj Aneja CC No. 2/1/13 9 regarding settlement of dispute over property situated at TDI, Sonipat during pendency of appeal further strengthen the defence taken by the accused.
Lastly, it was also contended on behalf of complainant that regarding misuse of cheque, accused did not filed any complaint to police or in the court, hence his defence can not be relied upon. To this, point to be considered that defence of accused remained consistent through out. It is settled law that prosecution has to stand on its own legs to prove its case and it cannot derive any benefit from the weaknesses of dafence of the accused. Thus non filing of complaint to police or court is of little consequence.
13. Hence in the light of above discussion it comes out that the complainant has failed to prove his case beyond all the reasonable doubts and accused has successfully rebut the presumption in favour of the complainant as the standard of proof so as to prove a defence on the part of accused is only 'preponderance of probabilities' and 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 as the same was held by Hon'ble Supreme Court in Krishnajanardhan Bhat v. Dattatraya G. Hegde 2008crl.L.J. 1172. Accordingly accused is acquitted for the offence under section 138 of Negotiable Instruments Act. Bail bond and Surety bond stands discharged. Original documents of surety, if any, be released as per rules. File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
th
TODAY i.e, 29 SEPTEMBER, 2015 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
Devender Singh v. Manoj Aneja CC No. 2/1/13 10