Delhi District Court
The Present Complaint For The Offence ... vs . on 3 July, 2012
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IN THE COURT OF SH ASHUTOSH KUMAR: Sr. CIVIL
JUDGEcumRENT CONTROLLER: NORTH WEST: ROHINI
COURTS:DELHI.
CC no. 96/10
Sh Asheesh Pandey S/o Sh. I.D.Pandey
R/o 58, Kadambri Aparments, Sector9, Rohini, Delhi.85.
.........Complainant
vs.
1.M/s D.R. Gaur Projects Pvt. Ltd., Ashoka Hotel, 207,IInd floor, Chankyapuri, New Delhi110021.
And also at: 167/8, Opp. Union Bank of India, New Railway Road, Gurgaon, 122001, (Haryana) ..........Accused no.1
2. Naresh Gaur, Director, D.R.Gaur Projects (P)Ltd., Ashoka Hotel,207,IInd floor, Chankyapuri, New Delhi110021. And also at: 167/8, Opp. Union Bank of India, New Railway Road, Gurgaon, 122001, (Haryana) .......... Accused no.2 Judgment:
a) Sl no of the case :
b) Name of the complainant : Sh Asheesh Pandey
c) Name of accused person :1) M/s D.R. Gaur Projects
Pvt. Ltd. i.e. accused no.1
company.
2) Sh. Naresh Gaur,
Director of accused
no.1 company.
d) Offence complained of :U/s 138 r/w 142 N.I.Act.
e) Plea of the accused :Both accused persons
Pleaded not guilty.
f) Date of Order : 03.07.12
h) Final Order : Both accused persons
Convicted for the offence
U/s 138 r/w Section 141
N.I.Act.
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THE BRIEF REASONS FOR THE JUDGMENT:
1. The present complaint for the offence U/s 138 r/w Section 142 N.I.Act was filed by the complainant against the both the accused persons i.e accused no.1 company as well as accused no.2 Naresh Gaur ( Director of accused no.1 company).
2. Briefly stated the facts of the case of complainant as per complaint are that accused no.1 is a private limited company registered under the provisions of the Indian Company's Act, 1956 and accused no.2 Naresh Gaur is the director of accused no.1 company and that accused no.1, in the year 2006, indulged in false representation with a view of defraud general public, through electronic and print media and verbal representation that it had launched a very ambitious housing project named "Coronation City"
GHP in Haridwar (Uttrakhand) and invited the public to con.............3
book residential plots, in the said project on a discounted price, at the stage of pre launch. It is further the case of the complainant that he (complainant) submitted an application no. C60/1358 and booked a 100 sq yds. residential plot and paid Rs 60,000/ vide cheque no. 202539 dt. 10.12.06, drawn on IDBI Bank, Delhi to accused company and accused vide letter dt. 26.11.07, asked the complainant to deposit an amount of Rs 80,000/, under the threat of making the allotment of plot of land only after receipt of abovesaid balance payment and the complainant again paid an amount of Rs. 80,000/ to the accused vide cheque no. 265961 dt. 28.3.07, drawn on IDBI Bank, Delhi but the complainant was shocked to know that the accused had neither any land for the project nor any approval from the competent authority for launching any such housing projects. It is further the case of the complainant that when the complainant approached the accused to return his (complainant) amount with interest 24 % p.a, from the date con.............4
of receipt to the date of payment, accused issued two cheque bearing no. 293020 dt. 17.09.08 for Rs 80,000/ and cheque no. 293021 dt. 18.09.08 for Rs 60,000/, both drawn on Union Bank of India, SSI Finance branch, Gurgaon, i.e both post dated cheques without any interest thereon. It is further the case of complainant that he (complainant) issued a legal demand notice through his counsel dt. 05.05.08 calling upon the accused to pay the said amount of Rs 1,40,000/, which was duly received and acknowledged by the accused vide letter dt. 28.5.08 and accused issued three cheques of Rs 60,000/ dt. 20.06.07 and other two cheques dt. 20.07.08, for Rs 6,000/ and Rs 80,000/ respectively, though two cheques for Rs 60,000/ and Rs 6,000/ were honoured and encashed but the third cheque no. 909435 dt. 20.07.08 for Rs 80,000/ issued by the accused and drawn on PNB Branch, DAV Sector14, Gurgaon, when presented by the complainant to his bankers i.e PNB, Prashant Vihar, Delhi, was returned con.............5
unpaid by the bankers' due to "insufficient funds" vide ExCW1/5 in the account maintained by the accused, with their bankers vide cheque return memo dt. 29.7.08. It is further the case of the complainant that complainant again issued a legal demand notice through his counsel calling upon the accused to pay the said amount of Rs 80,000/ , within 15 days of the receipt of the notice, and though the accused have received and acknowledged and admitted the claim of the complainant vide letter dt. 20.08.08 but the accused did not pay the said amount of Rs 80,000/, inspite of service of legal notice of demand.
3. Vide order dated 14.02.11, notice U/s 251 Cr.P.C. for the offence U/s 138 of NI Act was served upon both accused persons qua the aforesaid cheque, to which accused no.2 for himself as well as on behalf of accused no.1 company, pleaded not guilty and claimed trial.
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4. At request of Ld. Counsel for complainant as mentioned in order dated 14.02.11, affidavit of pre summoning evidence of complainant was adopted by the complainant in his post notice evidence and was examined as CW1, in view of law laid down in case titled as "Rajesh Aggarwal vs State & anr., reported in 171 (2010) DLT 51" of Delhi High Court. Further, accused persons did not move any application U/s 145(2) N.I. Act, in after notice evidence, for crossexamination of complainant's witnesses in view of law laid down by Hon'ble Delhi High Court in the abovesaid case.
5. Thereafter statement of accused U/s 313 Cr.P.C. was recorded on 01.04.11 and all the incriminating evidence appearing on record alongwith all the exhibited documents, were put to him, to which his stand was that the cheque in question was not issued by him. Further on specific query by this court vide order dt. 19.01.12, accused con.............
7no.2 stated that the cheque in question was not signed by him.
6. I have heard arguments by the parties & have perused the record carefully.
7. For proving the case U/s 138 N.I. Act against the accused, the complainant had to prove the followings:
a) that the cheque in question was issued by the accused persons in discharge of their legal debt/ liability.
b) That the said cheque was presented with the bankers of the complainant within the stipulated period and returned back unpaid due to insufficiency of funds.
c)Within 15 days of the receipts of the information about the bouncing of the said cheque, from the bank the complainants issued legal notice of demand to the con.............8
accused which must have been served.
d)Even after the expiry of 15 days from the receipt of notice, accused did not make the payment and within 30 days thereafter the complaint was to be filed.
8. Although accused no.2 Sh Naresh Gaur was mentioned as director of accused no.1 M/s D.R. Gaur Projects (P) Ltd., in the body of complaint by the complainant but before the court, accused no.2 admitted that he is the Managing Director of accused no.1 M/s D.R. Gaur Projects (P) Ltd. The issuance of cheque in question, on behalf of accused no.1, its bouncing due to "insufficient funds" and the service of legal notice of demand, within stipulated period and filing of complaint within stipulated period, do not appear to be in dispute. Even otherwise the same stands duly proved from the testimony of complainant/ CW1. However accused no.2 has disputed that the cheque in question does not bear his signatures. Pursuant to CN issued to banker of drawer of cheque in con.............
9question, bank official had appeared in the court and had stated that the cheque in question, bears the signatures of one of the directors namely 'Mamta Gaur', of the said company. Further on perusing the certified copy of extract of Board of resolution of accused no.1 company, filed with the banker concerned, it is revealed that signatures of Ms Mamta Gaur, one of directors of accused company are similar to that, on the cheque in question. Also from the said extract , it is clear that accused no.2 Naresh Gaur was the Managing Director of accused no.1 company . The Managing director is a principle officer of a company. Further the accused no.2 has not produced any material on record to satisfy this court that despite being Managing director of accused no.1 company, at the relevant point of time, he had no liability towards bouncing of the cheque in question.
9. U/s 139 r/w section 118 of the N.I.Act, there is a con.............
10presumption in favour of the complainant that the cheque in question was issued in discharge of legally enforceable liability of the accused and it was for consideration. There is a legal presumption in favour of the complainant and against the accused, that the cheque in question was received by the complainant in discharge of any debt or other liability , from the accused either in whole or in part. As per this section, the burden to rebut the presumption was on the accused. A mere oral allegation by the accused that the cheques were misplaced or stolen is insufficient to discharge this burden. To rebut the presumption U/s 139 N.I.Act, there has to be some more evidence from the accused besides making of bare oral denial. If such a defence without any document is to be taken as sufficient rebuttal, in every case U/s 138 NI Act, the accused can escape his liability by mere oral claim that the cheque was not in discharge of his liability.
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11U/s 118 of N.I.Act, there is a legal presumption in favour of the complainant that every negotiable instrument (which includes a cheque) was made or drawn for consideration. The legal presumption is also regarding date of cheque, time of its acceptance, time of transfer, order of endorsement and also as to stamps. Reading section 118 & 139 N.I.Act, a presumption arises in favour of the complainant and not in favour of accused that, when this cheque was received by the complainant, it was against consideration and also towards discharge of liability by the accused.
In the case of M/s Kumar Exports vs. M/s Sharma Carpets, 2009 (1) RCE (Criminal) 478: 2009 (1) RCR (Civil) 453: 2009 (1) RAJ 154 Hon'ble Supreme Court of India held as follows:
"9. In order to determine the question whether the offence punishable U/s 138 of the Act is made out against the con.............12
appellant, it will be necessary to examine the scope and ambit of presumptions to be raised as envisaged by the provisions of Section 118 & 139 of the Act. In a suit to enforce a simple contract, the plaintiff has to aver in his pleading that it was made for good consideration and must substantiate it by evidence. But to this rule, the negotiable instruments are as exception. In a significant departure from the general rule applicable to contracts, section 118 of the Act provides certain presumptions to be raised. This section lays down some special rules of evidence relating to presumptions. The reason for these presumptions is that, negotiable instrument passes from hand to hand on endorsement and it would make trading very difficult and negotiability of the instrument impossible, unless certain presumptions are made. The presumption, therefore, is a matter of principle to facilitiate negotiability as well as trade. Section 118 of the Act provides presumptions to be raised until the contrary is proved (i) as con.............13
to consideration (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer (v) as to order of endorsements (vi) as to appropriate stamp and (vii) as to holder being a holder in due course. Section 139 of the Act provides 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. Presumptions are devices by use of which the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence. Under the Indian Evidence Act all presumptions must come under one or the other class of the three classes mentioned in the Act, namely (1) "may presume"(rebuttable), (2) "Shall presume (Rebuttable) and (3) "Conclusive presumptions" (irrbuttable). The term "presumption" is used to designate an inference, affirmative or dis affirmative of the existance of a fact, conveniently con.............14
called the presumed fact drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed or admitted or established by legal evidence to the satisfaction of the tribunal. Presumption literally means "taking as true without examination or proof". Section 4 of the Evidence Act interalia defines the words "may presume" and "shall presume" as follows:
"(a)"may presume"Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved , unless and untill it is disproved or may call for proof of it.
"(b) "Shall presume"Whenever it is directed by this Act that the court shall presume a fact it shall regard such fact as proved , unless and untill it is disproved .
In the former case the court has an option to raise con.............
15the presumption or not, but in the latter case, the court must necessarily raise the presumption. If in a case the court has an option to raise the presumption and raises the presumption , the distinction between the two categories of presumptions ceases and the fact is presumed , unless and until it is disproved.
"10. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque , for the discharge of , whole or part of any debt or liability".
"Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Section 118 & 139 of the con.............16
Act, it becomes evident that in a trial U/s 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions U/s 118 & 139 of the Act held him shift the burden on the accused. The presumptions will live, exist and survive and 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. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists."
"11. The use of the phrase "until the contrary is proved" in con.............17
Section 118 of the Act and use of the words unless the contrary is proved in Section 139 of the Act read with definitions of "may presume" and "Shall presume" as given in section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonable tending to show that the real fact is not as presumed, the purpose of the presumption is over. The accused in a trial U/s 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 non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions as accused is not expected to prove his defence con.............18
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 non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would 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 non existence was so probable that a con.............19
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 the 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 may 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 & 139 of the Act. The accused has also an option to prove the non existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, form 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. One such rebuttal evidence is adduced and con.............20
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 U/s 118 & 139 of the Act will not again come to the complainant's rescue."
10. It is settled law that the accused persons can rebut the presumption U/s 118 & 139 of N.I. Act on the principle of preponderance of probability and accused persons do not has to prove the same beyond reasonable doubt and for this purpose the accused need not examine any witness in his defence and can rely on lacuna/deficiencies in the case of complainant (prosecution).
12. Accused no.2 has not specifically denied that he was the director of accused no.1 company at the relevant point of time and was Incharge and con.............
21responsible for day to day conduct of accused no.1 company. Further no cross examination of the complainant was conducted by the accused persons, thereby accepting the testimony of complainant, who has deposed on the lines of complainant. Hence both the accused failed to rebut the presumption U/s 118 & 139 NI Act against them. Further all the necessary ingredients for the offence U/s 138 r/w section 141 N.I Act have been duly proved by the complainant against both the accused persons.
In view of aforesaid discussion, it stands established although the cheque in question was not signed by accused no.2, still being the Managing director of accused no.1 company, he was the principle officer of accused no.1 company at the relevent time and in my view he is also guilty alongwith accused no.1 company for the offences U/s 138 r/w section 141 NI Act. Consequently both accused persons i.e accused no.1 company as well as accused no.2 Naresh Gaur (Managing Director of accused con.............
22no.1 company), stand convicted for the offences U/s 138 r/w section 141 NI Act.
Announced in the open court (Ashutosh Kumar) today i.e on 03.07.12. SCJ cumRC:NW:Delhi con.............
23CC96/09 Asheesh Pandey vs. D.R.Gaur Project (P) Ltd. & ors 03.07.12 Present: Sh I.D.Pandey father of complainant.
Accused no.2 Naresh Gaur for himself as well as for accused no.1 company as its Managing Director, produced from JC with Ld P. counsel Sh Rikesh Singh.
Heard. Perused. Pursuant to show cause notice to concerned Jail Superintendent, for not producing accused Naresh Gaur from JC on the LDOH i.e 02.06.12, one Sh Jitender Bhardwaj, Asstt. Superintendent Jail has appeared, on behalf of concerned Jail Superintendent, Central Jail no.4, Tihar Jail and has filed a written reply dt. 2.7.12 under the signatures of concerned Jail Superintendent wherein it is mentioned that the said accused could not be produced before this court on the LDOH of 2.6.12 due to shortage of time as he was also produced before the court of Sh Sudesh Kumar, Ld MM, Patiala House Courts, Delhi in 02 other cases on that date. In view of reasons explained\, show cause notice to concerned Jail Superintendent stands discharged.
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24Case is fixed today for Judgment.
Put up for Judgment for today at 12:30 p.m. SCJ/RC:NW:Delhi con.............
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Called again at 12:45 p.m
Present: As before.
Vide separate Judgment of even date,
dictated to the Stenographer and announced in the
open court, both accused persons i.e accused no.1
company as well as accused no.2 Naresh Gaur ( Director of accused no.1 company), stand convicted for the offences U/s 138 r/w section 141 NI Act.
List it for arguments and order on the point of quantum of sentence on 05.07.12. at 2 p.m. (Ashutosh Kumar) SCJcumRC:NW:Delhi.
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