Delhi District Court
Cc No. 4857/19 Neeru Babbar vs . M/S W. Ainaa & Ors. Page No. 1/15 on 19 February, 2022
IN THE COURT OF ANKIT MITTAL,
METROPOLITAN MAGISTRATE - 04, N. I. ACT,
SOUTHEAST DISTRICT, SAKET DISTRICT COURTS, DELHI.
JUDGMENT
Ms. Neeru Babbar, D/o Late Sh. Balram Babbar R/o A/111, Amar Colony, Lajpat Nagar4, Delhi110024. ...................Complainant Versus M/s W. Ainaa Prop. Nitin Gautam, Regd. Office at:
Shop No. 43 & 44
MGF Metropolitan Mall, Saket, New Delhi110017....................Accused No. 1
Nitin Gautam, S/o Laxmi Gautam, Proprietor, W.Ainaa Shop No. 43 and 44 MGF,Metropolitan Mall, Saket, New Delhi110017.
..................Accused no. 2 PS - Amar Colony Under Section 138 of N. I. Act, 1881 CNR No. DLSE020144092019
a) Sl. No. of the case : CT No. 4857/2019
b) Date of filing of the complaint : 11.04.2019
c) Name of the complainant : Ms. Neeru Babbar, CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 1/15 D/o Late Sh. Balram Babbar R/o A/111, Amar Colony, Lajpat Nagar4, Delhi110024.
d) Name of the accused person(s) :1. M/s W. Ainaa Prop. Nitin Gautam, Regd. Office at:Shop No. 43 & 44
MGF Metropolitan Mall, Saket, New Delhi110017.
2.Nitin Gautam, S/o Laxmi Gautam, Proprietor, W.Ainaa Shop No. 43 and 44 MGF,Metropolitan Mall, Saket, New Delhi110017.
e) Offence complained of : Under Section 138 of N. I. Act, 1881 f) Plea of accused : Pleaded not guilty g) Final order : Convicted. h) Date of such order : 19.02.2022. BRIEF STATEMENT OF THE REASONS FOR DECISION :
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the complainant Ms. Neeru Babbar against accused Nitin Gautam. In gist, it is alleged in complaint that complainant had been working with the accused no. 1 owned and run by accused no. 2 at the showroom named and styled as the M/s W. Ainaa Showroom as a Showroom Manager at MGF, Metropolitan Mall Saket since 01.12.2017. Further, it was averred by the complainant that her salary was fixed at the amount of Rs. 55,000/ per month alongwith commission of 3% of the monthly sale from these two showrooms. It is stated in CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 2/15 the complaint that complainant in October 2018, was diagnosed with Breast Cancer (at the end of third stage). It is further stated in the complaint that complainant had brought notice to the accused Nitin Gautam about her severe illness ie. Cancer and its treatment that the complainant had to undergo immediately to save her life. With persistent demand raised by the complainant to accused qua her outstanding dues towards salary, commission and bonus, accused Nitin Gautm issued cheque in question ie. cheque bearing no. 170837 dated 05.01.2019 for a sum of Rs. 5,00,000/, drawn on Yes Bank, Malviya Nagar which is Ex. CW1/2. Complainant presented the cheque, but same was dishonored vide memo Ex.CW1/3 and Ex.CW1/4 with reasons 'funds insufficient'. The complainant sent a legal demand notice on 27.02.2019 vide Ex.CW1/5 via speed post Ex.CW1/6 which was delivered vide tracking reports Ex.CW1/7 and Ex. CW1/7A and since no reply or payment was made within statutory period of legal demand notice, hence, this complaint. Further, she also annexed photocopies of medical records Ex. CW1/1, Ex. CW1/1a, Ex. CW1/1b, Ex. CW1/1c, Ex. CW1/1d, Ex. CW1/1e, Ex. CW1/1f, Ex. CW1/1g alongwith the complaint. Further, she adopted her presummoning evidence by way of affidavit Ex. CW1/X in her post summoning evidence as well.
Complainant's bank statement of Central Bank of India Ex. CW1/8, complainant bank statement of Punjab and Sindh Bank Ex. CW1/9. Print out of whatsapp chat screen shot of Ms. Neeru Babbar ie. complainant and accused Nitin Gautam Ex. CW1/10. Print out of whatsapp chat screenshot of Prem Babbar mother of complainant and accused Nitin Gautam Ex. CW1/11. Transcript of telephone conversation of Neeru Babbar, Prem Babbar, sister in law of complainant and Nitin Gautam Ex CW1/12. Audio CD of telephonic conversation of above transcript Ex. CW1/13. Certificate u/s 65B, Indian Evidence Act Ex. CW1/14 alongwith additional affidavit Ex. CW1/A1 in her examination CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 3/15 u/s 311 Cr.P.C.
PRESUMMONING EVIDENCE & NOTICE
2. Presummoning evidence was led by the complainant side and after hearing complainant side, accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of accused, it was ensured that copy of complaint has been supplied. Notice was framed against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 05.09.2019 in which accused pleaded not guilty and claimed trial. Thereafter, matter was fixed for complainant's evidence and accused side was granted opportunity to crossexamine the complainant's evidence.
COMPLAINANT'S EVIDENCE
3. Complainant stepped in witness box as CW1 adopted her affidavit of pre summoning as her evidence reiterating almost all facts of complaint, stating all exhibits available on record.
4. Complainant postnotice evidence was closed vide order dated 14.10.2019 and thereafter, matter was fixed for recording statement of accused. STATEMENT OF ACCUSED
5. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately on 17.10.2019. Incriminating evidence was put to him. Accused denied all the allegations. In recording of statement of accused, accused opted to lead defence evidence.
Defence of Accused.
CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 4/15
Oral Evidence (DW1 Nitin Gautam)
Documentary Evidence
Ex.DW1/C1 ITR for assessment year 201920.
Ex.DW1/C2 Form GSTR3B for year 201819
6. Thereafter, defence evidence was closed vide order dated 27.02.2020.
7. Final arguments from both sides were heard at length and written synopsis/arguments were filed by both the parties. Case file perused. INGREDIENTS OF OFFENCE AND DISCUSSION
8. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:.
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity; Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank; CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 5/15 Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
APPRECIATION OF EVIDENCE
9. The accused can only be held guilty of the offence under Section 138 NI Act if the abovementioned ingredients are proved by the complainant coextensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third, fourth and fifth ingredient. The complainant had proved the original cheque vide Ex. CW1/2 which the accused had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was presented within its validity period. The cheque in question was returned unpaid with return memo dated 05.02.2019 vide Ex. CW1/3 and Ex.CW1/4 due to the reason, "funds insufficient". The complainant had proved on record the legal demand notice dated 27.02.2019 vide Ex. CW1/5, postal receipts Ex. CW1/6 and tracking reports vide and Ex. CW1/7 and Ex. CW1/7a.
Further, the accused had not been able to prove that the legal notice was not received by him as he had admitted in his statement u/s 294 Cr.P.C r/w 313 Cr.P.C that the address provided by the complainant in the complaint is correct. Once, it is not disputed and proved on record that the legal demand notice was sent to correct address then the defence of the accused side that he has not received any legal demand notice is no defense in the eyes of law in view of the landmark judgment passed by Hon'ble Supreme Court of India in matter of "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555. In said judgment, Hon'ble Supreme Court of India has held that : CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 6/15 "Any drawer who claims that he did not received the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint Under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court alongwith the copy of complaint Under Section 138 of the Act, can not 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 G. C. Act and 114 of the Evidence Act."
As such, the first, third, fourth and fifth ingredient of the offence under section 138 of the NI Act stands proved.
10. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
11. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 7/15 cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
12. Further, it has been held by a threejudge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
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 they rely.
CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 8/15 25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
13. The presumptions raised under Section 118(b) and Section 139 are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In the present case, ld. counsel for the accused has raised the defence to rebut the presumption, which is discussed hereinbelow:
DEFENCE THAT THERE WAS NO LEGALLY ENFORECABLE DEBT
14. That the present complaint filed by the complainant is not maintainable and liable to be dismissed against accused because there is no legally enforceable debt against accused as alleged by the complainant. In the written arguments advanced by the Ld. Counsel for accused admits since the factum of the handing over the cheque in question, signatures thereon and the filing up of entire contents in question is admitted by the accused therefore, the primary issue to be determined in the present case is only qua the aspect of liability with respect to cheque in question and the purpose for which they handed over by the accused to the complainant, that is to say that whether the cheques were issued in discharge of a legally enforceable liability or otherwise. The contention of the accused primarily rests upon two points;
(i). That the accused does not owe any liability towards complaint on the account her salary.
It was argued that the accused categorically deposed in the witness box that no CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 9/15 dues of salary of the complainant is pending and the complainant had misused the cheque in question after she left the job.
15. In the present case, the complainant stated in her complaint that she joined two showroom of accused in December 2017 and salary was fixed for amount of Rs 55,000/ per month along with the commission of 3% of the monthly sale from these showrooms. Further, it was stated in the complaint that she received full salary of first month; however complainant was deprived of full salary and commission on the sale as decided in the successive months. And further it was averred that continuously monthly accumulation of part unpaid salary and commission, led to the forceful continuation of employment by the complainant anticipating to receive the due salary and commission amount.
16. It is pertinent to note here that complainant remained consistent in her stand qua the unpaid salary in her cross examination. Moreover, in the cross examination of the accused, it was stated by him though he cleared monthly salary and other dues of all complainant timely however he admits that he does not have any record of making full and final payment of the salary and incentive to the complainant. Importantly he submits that he paid salary and incentive to the complainant in cash but he admits he never used to any receipt signed in lieu of payment of the salary which is highly unlikely and unusual for a businessman who are running any form of business or trade. Further, the Ex.CW1/10 to Ex.CW1/13 which are printout of chat conversation and telephonic voice call transcript which is between complainant, complainant's mother, complainant's sister in law and the accused which is supported by certificate u/s 65B Indian Evidence Act which is Ex.CW1/14 is admitted by the accused in his cross examination. Perusal of same reveals nowhere accused has disputed the liability qua salary claims of the complainant though exact break even of salary which is five lacs which is claimed by the complainant in the present matter CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 10/15 is not mentioned in those exhibits. However, inference can be drawn from the conduct of accused from admitting the liability and seeking time from the complainant for clearing the dues which is seen throughout from chats and telephonic conversations between accused and complainant. Therefore, in absence of any document for proving the salary was paid to the complainant and admissions of the accused, the same cannot be accepted as a probable defense.
Further, it was argued that the cheque in question which was in the possession of complainant in the capacity of her being Jr. manager of accused was misused by the former when she left the job. Same was affirmed by the accused in his statement u/s 313 Cr.P.C and examination in chief u/s 315 Cr.P.C.
17. It is pertinent to mention here the subsequent of conduct of accused is relevant as he already admitted the factum of handing over the cheques to the complainant, he never insisted on return of cheque in question, when the complainant left the job even when he had the active knowledge of cheques possession with the complainant nor he made any complaint when he came to know that cheques have been misused by the complainant rather in Ex. CW1/11 (colly) at page 35, accused suggests the complainant's mother when to present the cheque in question. Therefore, this contention of accused that cheque in question was misused by the accused doesn't hold much water.
(ii). That the accused introduced the complainant with the financier and helped her in investing 5 lacs rupees @ 2% percent interest.
18. It was further argued on the behalf of the accused that the latter owes no liability towards on the account of any unpaid salary rather he was helping the complainant in making the investment and introduced her to a financier. Moreover, to buttress his CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 11/15 argument, Ld. Counsel for accused heavily relied upon the Ex.CW1/10 to Ex.CW1/13 and pointed out some chats/conversations out of whole bunch from where he submitted that inference can be drawn that no liability qua salary was there on the accused rather it relates investment made by the complainant with the third party for interest, thus raising the probable defence.
19. Before adverting to appreciate the arguments made by the accused by culling out isolated chats/conversations which admittedly happened between the accused and complainant, it is necessary to point out some settled principles qua appreciating the evidence. It is well settled principle of law that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have ring of truth. It is the totality of the situation which has to be taken note of. It is important to mention here that throughout the chat conversation and telephonic voice call transcript which is between complainant, complainant's mother, complainant's sister in law and the accused there is not even single instance where accused denied his liability rather there is unequivocal admission of accused that he has liability and sought time for making the payment to complainant, even though the nature of liability is not discussed in specific. It is to be noted here that claim of complainant for salary is independent in nature. Pertinently, wherever there is reference of salary claim by the complainant in the Ex.CW1/10 to Ex.CW1/13, it is not refuted by the accused either expressly or impliedly. Further, surprisingly accused never disputes or confronts complainant qua misuse of cheque or demand of complainant in any of chats or conversations which admittedly happened between the both parties. Thus, this defence of accused is also vague and without any substance.
CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 12/15
20. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, "32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
"Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt"
21. In the present case, the accused has failed to adduce sufficient evidence to rebut the presumption laid down under section 139 of the NI Act. The accused has failed CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 13/15 to prove that he has discharged the legal liability which is due towards the complainant. A statutory presumption has an evidentiary value. The question as whether the presumption stood rebutted or not, must, therefore, determined keeping in view the other evidence on record. In the present case, the accused has miserably failed to rebut the presumption raised under section 139 of the NI Act.
Consequently, it can be said that legal liability exists in favour of the complainant, thus, the second ingredient to the offence under section 138 of NI Act stands proved.
CONCLUSION
22. To recapitulate the above discussion, the complainant has been successful in establishing his case beyond reasonable doubt that the accused had issued the cheque in question in discharge of its legally enforceable liability. The presumptions under section 118 and section 139 of the NI Act were drawn against the accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The defence of the accused that there was no legal liability is not proved, even on the standard of preponderance of probabilities. Moreover, the Hon'ble Supreme Court in the case of Lakshmi Dyechem v. State of Gujarat (2012) 13 SCC 375, has held as under, "Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If, however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 14/15 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant."
In light of the aforementioned discussion, the complainant has successfully proved all the essential ingredients of section 138 of the NI Act. Accordingly, the accused, Sh. Nitin Gautam is held guilty for committing the offence under section 138 of the NI Act and is hereby convicted.
Copy of the judgment be given dast to convict free of cost.
Announced in the open Court (ANKIT MITTAL) on 19.02.2022. M.M.04/N.I.Act/SouthEast,Saket/Delhi 19.02.2022 CC No. 4857/19 Neeru Babbar Vs. M/s W. Ainaa & Ors. Page No. 15/15