Delhi District Court
Cc No. 1071/1 M/S. Nidhi Builders vs . Sh. C.R. Devender on 25 January, 2011
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CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender
IN THE COURT OF MS. TYAGITA SINGH: METROPOLITAN MAGISTRATE
(SOUTH), SAKET COURTS, NEW DELHI
CC no. 1071/1
Date of institution of case : 26.03.2009
Date on which case reserved for judgment : 20.01.2011
Date of judgment : 25.01.2011
Advocates appearing in the case :
Sh. Satish Tripathi, Ld. Counsel for complainant and Sh. Raj Kumar Sharma, AR of the complainant co.
Sh. Anil Tomar, Ld. Counsel for accused
Judgements relied upon by complainant:
1. Magnum Aviation (Pvt.) Ltd. Vs. State & Ors. 172(2010) DLT91
2. Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16
3. Mojj Engineering Systems Ltd. & Ors. Vs. A.B. Sugars Ltd. 154(2008) DLT 579
4. Rangappa Vs. Sri Mohan SLP (Crl.) No. 407/06 7510 (SC)
5. Rajesh Agarwal Vs. State etc. Crl.M.C. no. 1996/10 & Crl. M.A. No. 7672/2010 - 28.07.10 (Del.)
6. Moolchand Bhakhru & Anr. Vs. Rohan & Ors. Appeal (civil) 5920 of 1998 29.01.2002
Judgements relied upon by accused:
1. M/s. Kumar Exports Vs. M/s. Sharma Carpets 2009 (1)JCC [NI] 34
2. Krishna Janardhan Bhat Vs. Dattaraya G. Hegde 2008(1) JCC [NI]50
3. M/s. Collage Culture & Ors Vs. Apparel Export Promotion Council & Anr. 2007[4] JCC [NI] 388
4. M/s. Narayana Menon @ Mani Vs. State of Kerala & Anr. 2006 JCC [NI] 198
JUDGEMENT U/S 355
Cr.P.C
.:
a) Offence complained of : U/S 138 r/w Section 142 NI Act
b) Name of complainant, his : M/s. Nidhi Builders (I) Pvt. Ltd.
parentage & residence Nidhi House, B2/1B
Safdarjung Enclave
New Delhi29
c) Name of accused, her : Sh. C.R. Devender
parentage & residence No. 41, 2nd Cross,
Kumara Park West
Bangalore 560020
d) Plea of accused : He is falsely implicated.
e) Final order : Accused is acquitted.
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CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender
BRIEF FACTS OF CASE OF COMPLAINANT ARE AS FOLLOWS:
1. The complainant is a registered company having office at Nidhi House, B2/1B, Safdarjung Enclave, Delhi and is engaged in construction industry for the last 25 years having ISO 9001'2000. Sh. Raj Kumar Sharma is the employee of complainant company and has been duly authorised by the company to appear and pursue the case against accused vide Board Resolution dated 21.03.2009 and he is also authorised to sign and file present complaint.
2. The accused is resident of Bangalore and a frequent visitor to Delhi. Accused was interested in purchasing immovable property and showed his willingness to purchase plot no. 9, Sector20, PartII, Dwarka, Delhi for which the complainant company had been declared successful bidder by the DDA in bid conducted on 16.01.2007 and 17.01.2007. Sometime around August 2008, accused got in touch with CMD of the complainant Company and offered to purchase the above said plot. The negotiation for sale and purchase of plot were finalised between Mr. Naresh Chander, CMD of the company and accused Sh. C.R. Devender for a total sale consideration of Rs. 28 crores. The accused gave two cheques bearing no. 016805 and 016806, both dated 01.11.2008 drawn on Axis Bank Ltd., Bangalore in favour of M/s. Nidhi Builders (I) Pvt. Ltd. for sum of Rs. 10 crores each and promised to pay balance amount of Rs. 8 crores in the month of February 2009 when the Sale Deed was agreed to be registered by the complainant in favour of accused. The complainant agreed to sell the plot to the accused and to adjust the advance payment of Rs. 28 crores towards sale consideration at the time of registration of Sale Deed in month of February 2009.
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CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender
3. However, both the cheques when presented to the complainant's Bank were returned back with remarks "Funds Insufficient" on 09.01.2009. Despite issue of legal Notice dated 06.02.2009 through counsel u/s 138 NI Act, accused has failed to pay the cheque amount, hence accused is liable for offence u/s 138 NI Act r/ w section 142 NI Act. Complainant has alleged that accused was under legal liability to pay the cheque amount to the complainant, as agreed, but accused failed to pay the cheque amount despite issue of Legal Notice, hence accused is liable for the offence of dishonour of cheques since he deliberately and willfully neglected to make the payment within stipulated time.
4. Sh. Raj Kumar Sharma, the employee of complainant company was examined as CW1 on behalf of complainant and his Affidavit was tendered in Evidence as Ex.CW1/1. The extract of Board Resolution dated 21.03.2009 of complainant company, authorising Sh. Raj Kumar Sharma to represent the complainant company, has been exhibited as Ex.CW1/A. The original Cheques no. 016806 and 016805 both dated 01.11.2008, signed by accused Sh. C.R. Devender for sum of Rs. 10 crores each, have been exhibited as Ex.CW1/B and Ex.CW1/C respectively alongwith Return Memos dated 09.01.2009 as Ex.CW1/D and Ex.CW1/E respectively. Copy of legal notice dated 06.02.2009 addressed to accused by complainant through counsel, has been exhibited as Ex.CW1/F and the speed post receipts have been exhibited as Ex.CW1/G and Ex.CW1/H. Reply, dated 24.02.2009 to the legal notice, written by accused through his counsel to complainant company has been exhibited as Ex.CW1/I. No document regarding the registration of the company or regarding proof that Sh. Naresh Chander is actually the ChairmanCumManaging Director of the complainant company, has Page no. 4/11 CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender been filed by the complainant company.
5. Notice was framed by the Ld. Predecessor Court u/s 138 r/w section 142 NI Act against accused Sh. C.R. Devender on 22.12.2009.
6. During trial, CW1 Sh. Raj Kumar Sharma adopted his Affidavit tendered in presummoning evidence as his examinationinchief on 26.03.2010. He was cross examined on three different occasions at length by Sh. S.P. Kaushal, Ld. Counsel for accused. No other witness has been examined by complainant on its behalf. After closure of CE, statement of accused u/s 313 r/w section 281 Cr.P.C. was recorded in which accused stated that there was no legal liability on his behalf to pay any amount to complainant since complainant had not shown any documents of property to the accused despite assurance and the cheques had been given on good faith by accused that they would be presented only after signing of the documents. Accused did not lead any defence evidence in his favour. Final arguments were heard on last date and case was kept for order for today. BRIEF REASONS FOR DECISION AND DECISION THEREOF
7. During crossexamination, CW1 Sh. Raj Kumar Sharma admitted in his cross examination dated 23.06.2010 that he did not file any certificate of incorporation of the company on record along with his complaint though, he orally stated that at the time of incorporation of the company, Mr. Naresh Chander, Ms. Shashi Singhal and Ms. Nidhi were the Directors of the company. He admitted that Mr. Naresh Chander is the only person responsible for looking after the affairs of Page no. 5/11 CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender the administration of the company. He orally stated that the plot in question was purchased by complainant company from DDA in auction but he admitted that no documents regarding ownership of purchase of plot in name of complainant company has been filed with the complaint.
8. CW1 also admitted that he had not seen any agreement between accused and complainant company though he was present in the meeting when negotiations about sale / purchase of the said plot between complainant company and accused had taken place. He admitted that he could not remember the exact date of the meeting though it was somewhere in August 2008 and he also stated that he did not know whether any Minutes of Meeting were prepared at that time or not. He also admitted that he did not remember when the said plot was handed over to the complainant company by DDA. He also admitted that he had not annexed any document with file to show that the complainant company was declared successful bidder for the said plot by DDA.
9. In his further crossexamination dated 16.04.2010, CW1 stated that company had deposited Rs. 18.32 crores for purchase of the said plot but he admitted that he had not filed any document in this regard and he had also not filed any document to show the ownership of the plot in name of complainant company. CW1 admitted that Mr. Naresh Chander i.e. the CMD of the company is the only person who shall be aware of all the facts regarding the sale transaction of the said plot and his information is solely based the information received from CMD Sh. Naresh Chander. He stated that he did not know whether any documents had been exhibited between Naresh Chander and the accused for the said transaction. Page no. 6/11
CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender
10. In his further crossexamination dated 07.07.2010, CW1 again stated that no documents were prepared regarding sale and purchase of the said plot between complainant and accused and no receipt was issued to accused while receiving the impugned cheques and the agreement between the complainant and accused was oral agreement. CW1 denied the suggestion that there was no legal liability upon accused to pay the cheque amount to complainant.
11. Neither Mr. Naresh Chander, the CMD of the company was examined as witness on behalf of complainant company to give first hand information of the transaction between accused and complainant nor any document to show ownership of said plot in name of complainant company was filed on record. During final arguments, counsel for complainant and counsel for accused vehemently argued the case and filed various judgements in support of their case which have been cited at first page.
12. The counsel for complainant relied upon judgement of Hon'ble Delhi High Court titled Magna Aviation Pvt. Ltd. Vs. State and Ors. 172 (2010) DLT 91 in which it has been held that issuance of postdated cheques at the time of signing the contract has to be considered against liability as the amount mentioned in the cheque is payable by the person on the date mentioned in the cheques, hence the case of post dated cheques is covered u/s 138 NI Act, if the cheques get dishonoured.
13. However, in the present case there was no written contract between the complainant and the accused, more so when the talks between complainant and Page no. 7/11 CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender accused were regarding sale and purchase of immovable property and Transfer of Property Act requires that every transaction having value above Rs. 100/ must be by a written and registered document, therefore to enforce legal liability upon accused, there must have been written agreement of sale and purchase of immovable property which the complainant has failed to show or place on record in this case. Hence, the case of complainant does not fall squarely within the ratio of this judgement of the Hon'ble High Court of Delhi.
14. The counsel for complainant has relied upon another judgement titled Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16 in which Hon'ble Supreme Court had held that it is obligatory on the part of court u/s 138, 139 and 118 of NI Act to presume the liability of the drawer for the amount of cheque in every case where factual basis for such presumption is established but such presumption can be rebutted by the drawer by proving on evidence that the holder of the cheque had not received the same towards discharge of any liability. In the present case, the counsel for accused has brought out factual position in lengthy crossexamination of CW1 as discussed above and has proved that since there was no written agreement of sale and purchase of immovable property between complainant and accused, hence accused was not legally bound to pay the amount mentioned in the cheques to the complainant. Hence, this judgement is also of no help to the complainant since complainant has failed to prove that there was any legal liability on part of accused to pay the cheque amount to complainant.
15. In the same way, the other judgements relied upon by complainant does not help the complainant since all the ingredients of section 138 NI Act have Page no. 8/11 CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender not been proved by the complainant. In case of Rangappa Vs. Sri Mohan, Crl. Appeal no. 1020 of 2010 (Relied upon by complainant himself), the Hon'ble Supreme Court has relied upon its own earlier judgement titled Krishna Janardhan Bhat Vs. Dattatraya G. Hegde 2008(1)JCC(NI)50 (Supreme Court) (this judgement has also been relied upon by accused in the present case). In this judgement of Krishna Janardhan Bhat, Hon'ble Supreme Court has enlisted three ingredients of section 138 NI Act which are as follows:
(i). That there is a legally enforceable debt.
(ii).That the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii).That the cheque so issued had been returned due to insufficiency of funds.
16. In the present case, though the second and third ingredient of Section 138 NI Act have been fulfilled but the first ingredient is completely missing from the evidence of the complainant. Complainant has failed to show that there was any legally recoverable debt or legally enforceable liability upon the accused for which accused was legally bound to pay Rs. 20 crores towards the amount of dishonoured cheques within stipulated time. The complainant has miserably failed to show that it was serious about performance of contract and it had performed its part of liability by executing certain document of transfer of property in favour of accused but contract was frustrated due to the failure of accused to perform his part. As per provisions of TPA, an agreement to sell immovable property must be in writing signed and executed by the seller and purchase but in the present case, complainant has failed to prove any such document on record. Page no. 9/11
CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender
17. In the judgement (relied upon by accused) titled as M/s. Collage Culture and Ors Vs. Apparel Export Promotion Council and Anr. 2007[4] JCC [NI] 388 it has been held by Hon'ble High Court of Delhi that a post dated cheque may be issued under two circumstances, one is for a debt in presentei but payable in future and second, for a debt which may become payable in future upon occurrence of a contingent event, but the cheque issued only by way of security would not attract section 138 NI Act since it has not been issued for a debt. In the present case, both the cheques were issued by the accused as advance on the assurance that the documents regarding transfer of the property will be executed between complainant and accused but no documents were subsequently executed, hence complainant did not become legally entitled to the payment for cheques.
18. In another judgement titled as M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr. [2006 JCC[NI]198] (relied upon by accused), the Hon'ble Supreme Court, relying upon its own earlier judgements, has held that the statutory presumption raised against accused u/s 139 NI Act, can be rebutted by accused from the materials already placed on record, and he need not lead evidence to discharge the onus. The standard of proof expected from accused is not the same as expected from prosecution in a criminal case; whereas prosecution is required to prove its case beyond reasonable doubt to warrant conviction of accused, but wherever initial presumption is raised against accused in any case, he can rebutt the presumption and discharge the onus of proof lying upon him, by preponderance of probabilities, i.e. the same standard as is required in civil cases. Once the accused has rebutted the presumption & discharged the onus of proof, the burden again shifts upon prosecution to prove the case beyond reasonable doubt. Page no. 10/11
CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender Section 139 NI Act states as follows:
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.
19. In the present case, by lengthy crossexamination of CW1 and by drawing attention of the Court to the fact that neither any written document of transfer of immovable property was ever executed between complainant and accused, nor complainant proved on record any document to show that it was actually the owner of said plot, accused has successfully rebutted the presumption of section 139 NI Act and discharged the onus imposed upon him. But complainant has failed to discharge its burden of proof that there was actually any legal liability or debt payable by accused to complainant and that accused was legally bound to honour the cheques.
20. In the present case, accused has neither denied the issuance of cheques nor challenged the signatures on cheques, rather the accused has straightforwardly admitted that he had issued two cheques in favour of complainant on the ground that property transaction will be finalised between complainant and accused but complainant neither showed any property documents nor has placed any such documents on record to show that complainant is actually the owner of plot no. 9, Sector20, PartII, Dwarka, Delhi and complainant had performed its part of contract towards execution of property documents and only the accused had failed Page no. 11/11 CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender to perform his part, hence complainant has no legal entitlement towards encashment of cheques. Complainant has miserably failed to prove any legal liability or debt due from accused to complainant. All the ingredients mentioned in Section 138 NI Act have not been squarely met in the present case, hence there is no legal liability upon accused to pay the amount of impugned cheques to complainant. Therefore, accused stands acquitted of the present case u/s 138 r/w section 142 NI Act. Bail bond and surety bonds of accused stands cancelled. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( TYAGITA SINGH )
TODAY ON 25th January, 2011 MM07(SOUTH) NEW DELHI
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CC no. 1071/1 M/s. Nidhi Builders vs. Sh. C.R. Devender
CC no. 1071/1 M/s. Nidhi Builders Vs. C.R. Devender
25.01.2011
Present: Sh. Anuj Aggarwal proxy counsel for complainant
Sh. Anil Tomar, counsel for accused with accused
Vide separate judgement of even date, the accused stands
acquitted of the charge u/s 138 r/w section 142 NI Act. Bail bond and surety bond of accused stands discharged. File be consigned to record room.
( TYAGITA SINGH ) MM07(South)Saket 25.01.2011