Delhi District Court
Baljeet Singh Sehgal vs Arun Thareja Cc No. 22796/17 Page No.1 Of ... on 14 July, 2021
IN THE COURT OF SH. KAPIL GUPTA, METROPOLITAN MAGISTRATE,
(NI ACT)-07, SOUTH-WEST, DWARKA COURTS,
NEW DELHI
CC NO. 22796/17
Baljeet Singh Sehgal ............ Complainant
Versus
Arun Thareja ............. Accused
JUDGMENT
(1) Name of the complainant, : Baljeet Singh Sehgal,
parentage and address S/o late S.Rajinder Singh Sehgal
R/o JG-3/125A,Vikas Puri,
New Delhi 110018.
(2) Name of accused, : Arun Thareja
parentage and address S/o Sh. C.B. Thareja,
R/o J-97, Second Floor,
Vikas Puri,
New Delhi-110018
Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.1 of 11
KAPIL Digitally signed by
KAPIL GUPTA
GUPTA Date: 2021.07.14
16:31:46 +05'30'
(3) Offence complained of or
proved : 138 NI Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 08.11.2017
(6) Date of conclusion of
arguments : 06.07.2021
(7) Date of Final Order : 14.07.2021
(8) Final Order : Acquitted
JUDGEMENT
1. Vide this judgment, the complaint filed by the complainant Baljeet Singh Sehgal under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act') is disposed off.
2. As per the complainant, the accused Arun Thareja had taken a friendly loan of Rs.10,00,00/- (Rupees Ten Lakh only) from the complainant on 19.08.2016 for a period of three months. The said amount was paid to the accused in cash by the complainant. The complainant has alleged that after expiry of three months period in the month of November 2016, he asked the Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.2 of 11 KAPIL Digitally signed by KAPIL GUPTA GUPTA Date: 2021.07.14 16:32:00 +05'30' accused to return the said loan but the accused showed his inability and avoided to return the said friendly loan on one pretext or the other. Further on 01.09.2017, the accused, in discharge of his legal liability of loan amount, issued to the complainant, a cheque bearing No.694910 dated 11.09.2017 amounting Rs.10,00,000/- drawn on State Bank of India, Vikas Puri Branch. It is further alleged that on presentation, the said cheque got dishonoured with the remarks "Kindly contact Drawer/Drawee Bank and please present again" vide cheque returning memo dated 13.09.2017. Thereafter, the complainant tried to contact the accused, but the accused avoided the complainant and thereafter, the complainant again presented the said cheque in question on 18.09.2017 in his bank, but the same was again dishonoured with the same remarks "Kindly contact Drawer/Drawee Bank and please present again" vide cheque returning memo dated 20.09.2017. Thereafter, the complainant sent a legal notice dated 28.09.2017 to the accused, which was dispatched under speed post on 03.10.2017. Thereafter, the complainant filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, the complainant examined himself as CW1 vide his affidavit Ex. CW-1/A. He reiterated the contents of his complaint and placed on record the cheque bearing no.694910 dated 11.09.2017 for a sum of Rs.10,00,000/- drawn on State Bank of India, Vikas Puri Branch as Ex. CW1/1, cheque returning memos dated 13.09.2017 & 20.09.2017 as Ex. CW-1/2 & Ex.CW1/3 respectively, copy of legal notice dated 28.09.2017 as Ex. CW-1/4, Postal Receipts dated 03.10.2017 as Ex.CW1/5, tracking record report as Ex.CW1/6 and returned postal envelope as Ex.CW1/7.
4. Thereafter, the accused was summoned and notice under Section 251 CrPC was framed upon accused on 06.12.2018, to which he pleaded not guilty and claimed trial. The accused stated that he had not issued the said cheque in question to complainant and rather it was issued to some other person. He has further stated that the said cheque in question was given as security to one person namely Sunny Bhasin towards 'Satta'. He has further stated that he does not know the complainant. He denied having received the legal notice.
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KAPIL Digitally signed by
KAPIL GUPTA
GUPTA Date: 2021.07.14
16:32:15 +05'30'
5. Thereafter, application under Section 145(2) NI Act, filed by the accused was allowed and the complainant examined himself as CW-1, wherein he adopted his version as recorded in pre summoning evidence Ex.CW1/A in the post summoning evidence as well.
6. In his cross-examination conducted on behalf of the accused, the complainant stated that he had known the accused since 3-4 years prior to the year 2016. He has denied the suggestion that he does not have any friendly relations with the accused. He has further stated that he was doing work of consultancy builder in the year 2016 and there was no fixed monthly income at that time. He has denied the suggestion that he was not having financial capacity to extend loan of Rs.10 Lakhs. He has admitted that he had not filed any document to show that he was having sufficient funds to advance the said loan to the accused at the relevant time. He has also denied the suggestion that at the relevant time, he was not having funds to advance loan of Rs.10 Lakhs in cash to the accused. He has further stated in his cross examination that a Promissory Note was executed while advancing the loan to the accused and also stated that he has not filed the same and further stated that he has the same. He has further denied the suggestion that no Promissory Note was executed by the accused and further denied the suggestion that he had never given any loan to the accused. He has further denied the suggestion that accused had not given any cheque to him. He has further denied the suggestion that he had taken the cheque in question from one Sh. Rinku, to whom the accused had given four blank cheques. He has also denied the suggestion that he misused the cheque in question and that further denied the suggestion that the accused has no legal liability towards him.
7. On 07.06.2019, statement of the accused under Section 281 CrPC read with Section 313 CrPC was recorded, in which all the incriminating evidence was put to him. The accused has stated that he does not know complainant and also stated that he had not taken any loan from complainant. He has further stated that he had given four cheques including the cheque in question to one Sh. Paramjeet Singh as 'Security' who used to do match fixing. He has also stated that the cheque in question bears his signature, however, the contents in the said cheque were not filled by him. He stated that he did not receive any legal notice qua the cheque in question. He has also stated that he does not have any liability towards the complainant. As per record, the Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.4 of 11 KAPIL Digitally signed by KAPIL GUPTA GUPTA Date: 2021.07.14 16:32:32 +05'30' accused did not prefer to lead any defence evidence.
8. It needs to be discussed that thereafter the accused had an application under Section 311 CrPC to lead defence evidence, which was allowed and the accused was permitted to examine himself, however, the accused still did not lead any evidence in defence and the same was closed.
9. I have heard the final arguments as advanced by both parties at length and have given my thoughtful consideration to rival submissions made by them. I have also gone through the material placed on record.
10. During course of the final arguments, Ld. counsel for the complainant has argued that the all ingredients under Section 138 NI Act have been proved and the accused must be convicted of the offence under Section 138 NI Act.
11. Per contra Ld. counsel for the accused has vehemently argued that the present complaint is not maintainable and hence the same may be dismissed and the accused be acquitted of the offence u/s 138 NI Act. He has also contended that the cheque in question was issued in the name of a proprietary concern namely 'GS Builders'(hereinafter referred to as "payee") , whereas the complaint has been filed by a person namely 'Baljeet Singh Sehgal'. He stated that the complainant is in no way related to the payee and has not brought on record any document to support such claim either. It was further argued that as per Section 142 NI Act, only the payee or as the case may be, the holder in due course of the cheque can file the complaint u/s 138 NI Act. Counsel for the accused concluded by stating that the complaint in itself is not maintainable as the complaint has not been instituted by the payee of the cheque and prayed that the complaint be thus dismissed.
12. Ld. counsel for the complainant rebutting the arguments led on behalf of the accused stated the complainant Baljeet Singh Sehgal is the proprietor of 'GS Builders' and is as such competent to file the present complaint case. He further submitted that the objections taken by the counsel for the accused are frivolous in nature and the same should be rejected and the accused be Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.5 of 11 KAPIL Digitally signed by KAPIL GUPTA GUPTA Date: 2021.07.14 16:33:07 +05'30' convicted of the offence u/s 138 NI Act.
13. Before proceedings further, it would be appropriate to discuss that as per Section 138 of the NI Act, following ingredients have to be proved by the complainant:
1. The accused issued a cheque on account maintained by him with a bank.
2. The said cheque has 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.
14. Section 142 of the NI Act provides for taking cognizance of the offence notwithstanding anything contained in CrPC which reads as under:
"(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque."
15. Section 7 of the NI Act defines "Payee" as the person named in the instrument, to whom or to whose order the money is by the instrument directed to be paid.
Section 8 of the NI Act defines "Holder" as any person entitled in his own name to the Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.6 of 11 KAPIL Digitally signed by KAPIL GUPTA GUPTA Date: 2021.07.14 16:33:26 +05'30' possession thereof and to receive or recover the amount due thereon from the parties thereto.
Section 9 of the NI Act defines "Holder in due course" as any person who for consideration became the possessor of a cheque if payable to a bearer or the payee or indorsee thereof, if [payable to order,] before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
16. It would not be out of place to discuss the case titled as National Small Industries Corporation Ltd. v. State (NCT of Delhi) & Ors., (2009) 1 SCC 407, it has been held by the Hon'ble Supreme Court that "The term "complainant" is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course)..."
Thus, in view of the above, either a "payee" or "holder in due course" of the cheque can only maintain a complaint under Section 138 NI Act.
17. Further, the Hon'ble Supreme Court of India in the case titled as Shankar Finance and Investments v. State of Andhra Pradesh & Ors., (2008) 8 SCC 536, while dealing with a case with respect to a proprietary concern has held as follows:
"Therefore where the payee is a proprietary concern, the complaint can be filed :
(i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the 'payee';
(ii) The proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and
(iii) the proprietor or the proprietary concern represented by the attorney-
holder under a power of attorney executed by the sole proprietor."
18. Upon a bare perusal of the complaint in the present case, it is clear that the present case Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.7 of 11 KAPIL Digitally signed by KAPIL GUPTA GUPTA Date: 2021.07.14 16:33:43 +05'30' has been filed by one person namely 'Baljeet Singh Sehgal' whereas the cheque in question has been issued in favour of the 'GS Builders' and such fact is not in dispute between the parties. Moreover, it has not been specified as to how the said person namely 'Baljeet Singh Sehgal' is related to the proprietary concern. Since the cheque has been admittedly issued in the name of a proprietary concern, the above stated conditions as observed by the Hon'ble Apex court had to be fulfilled.
19. Further, It has been held by the Hon'ble High Court of Delhi in the case titled as Mohd. Aslam v. Ramesh Thakur 2015 SCC OnLine Del 14169 that:
"13. The complaint petition does not refer to the petitioner as the proprietor of M/s. New Modern Meat Shop, though, the address of the respondent has been stated as proprietor of M/s. R.S. Enterprises. Even in his evidence, which has been tendered by an affidavit, there is no reference of his being the proprietor of M/s. New Modern Meat Shop. He has admitted before the Trial Court that he did not refer to the fact that he owns a firm under the name and style of M/s. New Modern Meat Shop. This lapse on the part of the petitioner does not appear to be inadvertent as the name of the proprietorship firm of the respondent has been stated in the complaint.
...
19. The Trial Court has rightly held that the petitioner could not establish himself as the proprietor of M/s. New Modern Meat Shop. No evidence has been led by the petitioner to prove the fact that he is the proprietor of M/s. New Modern Meat Shop."
20. In the present case, the complaint does not refer to the complainant as the proprietor of the payee and as observed earlier, there is no mention of the relation of complainant with that of the payee either. Such factum of complainant being the proprietor of the payee has even not been mentioned either in the complaint or in evidence adduced on record by the complainant, which has been tendered by an affidavit by the complainant.
Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.8 of 11
KAPIL Digitally signed by
KAPIL GUPTA
GUPTA Date: 2021.07.14
16:34:10 +05'30'
21. Furthermore, it has been held by the Hon'ble Apex Court in the case titled as Milind Shripad vs Kalim M.Khan (2011) 4 SCC 275 that:
"26. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm.
27. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent no. 1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact-situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings."
22. In view of the above stated binding precedent of the Hon'ble Apex Court, the complainant has to establish that the cheque had been issued to him or in his favour or that he is the sole proprietor of the payee concern and being so, he could also be payee himself and thus, entitled to make the complaint. Further, it is an undisputed fact that the cheque in question had been issued Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.9 of 11 KAPIL Digitally signed by KAPIL GUPTA GUPTA Date: 2021.07.14 16:34:27 +05'30' in the name of a proprietary concern and not in the name of the complainant, however, despite this, not even a single word has been uttered in the entire complaint with respect to the fact that the complainant herein is the proprietor of the payee. Furthermore, the complainant has not even brought a single document or an iota of evidence on record to show that he is, in fact, the proprietor of the payee.
As has been observed from the aforesaid binding judgements, it is the duty of the person who claims himself to be proprietor of a payee to bring on record evidence to prove the fact that he was actually the proprietor of the payee and therefore, he was competent to file complaint u/s 138 NI Act as per the requirement of the Section 142 NI Act.
23. In absence of any pleading, document or evidence whatsoever, the complainant has miserably failed to prove any nexus between himself and the payee. In absence of any proof of the fact that the complainant was indeed the proprietor of the payee, it will only be a dangerous proposition to assume that the complainant herein was the proprietor of the payee or the holder in due course with regard to the cheque in question, as such an assumption could lead to an unjust enrichment of the complainant herein at the cost of the actual payee, whosoever that person may be, as there is no evidence to connect the complainant herein with the payee.
24. It is also pertinent to note that the complainant did not bother to examine the bank witness of the bank where his account was maintained, who could have brought the relevant bank record stipulating the details of the account holder in whose bank account, the cheque in question was deposited, despite having listed such witness in the list of witnesses filed on his behalf. Accordingly, the complainant has not brought such material evidence to surface. Moreover, it is not conscionable to believe that a person claiming himself to be a proprietor of a certain proprietary concern, will not have any document whatsoever to support such claim.
25. In view of the totality of facts and circumstances of the present case and on the basis of material as is placed on record, this court is of the considered opinion that the complaint has not been filed by a competent person and the complainant herein had no locus to file the present complaint unless he had shown that he is the proprietor of the payee. Accordingly, the complaint Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.10 of 11 KAPIL Digitally signed by KAPIL GUPTA GUPTA Date: 2021.07.14 16:34:49 +05'30' filed u/s 138 NI Act is hereby dismissed and the accused is acquitted of the offence u/s 138 NI Act.
ANNOUNCED IN THE
COURT TODAY i.e. 14.07.2021
KAPIL Digitally signed
by KAPIL GUPTA
GUPTA Date: 2021.07.14
16:35:07 +05'30'
(KAPIL GUPTA)
METROPOLITAN MAGISTRATE (NI ACT) - 07
DWARKA COURTS/ NEW DELHI
Baljeet Singh Sehgal vs Arun Thareja CC No. 22796/17 Page no.11 of 11