Delhi District Court
In Re: Krishan Gopal vs . Dansingh Bisht on 1 June, 2023
IN THE COURT OF SH. SHASHANK NANDAN BHATT,
MM, NI ACT-06, SOUTH WEST, DWARKA, DELHI
IN RE: KRISHAN GOPAL VS. DANSINGH BISHT
CC No. 359/2019
CNR No. DLSW02-000140-2019
Krishan Gopal Gupta
S/o Sh. Lekhram Gupta,
R/o A-24, Sanjay Enclave,
Rajapuri Road,
Uttam Nagar
New Delhi-110059 ........Complainant
Versus
Dansingh Bisht
S/o Sh. Rattan Singh Bisht
R/o A-594, Gali no. 1,
Partap Vihar, Part-II,
Kirari Suleman Nagar,
New Delhi
Also At
Bisht Property Dealer
Partap Vihar, Part-II,
Kirari Suleman Nagar,
New Delhi .........Accused
DATE OF INSTITUTION : 04.01.2019
OFFENCE COMPLAINED OF : U/s 138 N I
Act
DATE OF JUDGMENT : 01.06.2023
DECISION : Convicted
JUDGMENT
1. The instant matter has originated out of a complaint under section 200 CrPC read with Section 138 Negotiable Instruments Act (hereinafter referred to as the 'N I Act'), filed by the complainant against the accused alleging that cheque dated 12.11.2018, amounting to Rs. 6,00,000/- (Rs. Six Lakhs only/-) bearing no. 153820 (Union Bank of India), issued by the accused in favour of the complainant, in discharge of a legal debt or other liability, has been dishonoured and the accused has not paid the said amount even KRISHAN GOPAL VS. DANSINGH BISHT Page 1 of 18 CC No. 359/2019 Judgment after receiving the prescribed legal demand notice. By virtue of this judgment, the present complaint is being is disposed of.
Brief Facts of the case
2. The case of the complainant, in brief, is that the accused had sold his property bearing Khasra no. 707, D-1, Pratap Vihar, Phase-3, New Delhi, and during the said transaction, the accused signed the bayana receipt as a witness. Thereafter, the accused was again present at the time when the complainant received the full and final payment qua the sale transaction and during the entire transaction, the complainant and the accused became good friends. In the month of September 2018, the accused approached the complainant for a friendly loan of Rs. 6 lakhs, for a period of two months.
3. The complainant has further averred that considering the request of the accused, he advanced the said sum, as a friendly loan, in September 2018, under an assurance that the accused shall return the said amount within a period of 2 months i.e. till November, 2018. After the expiry of the stipulated period, when the complainant approached the accused in the first week of November 2018, the accused issued the cheque in question (the details of which are mentioned in paragraph no. 1 of the judgment), in discharge of his liability. Upon the assurances of the accused, the complainant presented the said cheque for encashment, however, the same got dishonored with the reason of 'Funds Insufficient', vide return memorandum dated 01.12.2018. Thereafter, the complainant again approached the accused and requested him to make the entire payment, but, the accused paid no heed to his requests. Finally, the complainant sent the legal notice dated 10.12.2018, to the accused via speed post, on 12.12.2018. Despite delivery of the said legal notice, the accused did not make the payment of the cheque amount. Being aggrieved with the above facts and circumstances, the present complaint was instituted by the complainant.
KRISHAN GOPAL VS. DANSINGH BISHT Page 2 of 18CC No. 359/2019 Judgment
4. Pursuant to institution of the present case, summons were issued qua the accused in the present complaint. Notice u/s 251 Cr.PC was framed against the accused vide order dated 11.10.2019, to which the accused pleaded not guilty and claimed trial. In the defence recorded u/s 251 Cr.P.C. on the same date, the accused admitted that he had signed the cheque in question and stated that he knows the complainant, as he is a regular visitor to his office. The complainant sold his plot to someone, whose name he does not remember and he had acted as a mediator during the said transaction. The accused further stated that he had given his cheque, in a blank signed condition to the complainant, as a security for the payment that the complainant was to receive from the purchaser. He has further stated that he did not owe any liability to the complainant. The accused also stated that he had not received any legal demand notice from the complainant.
5. In support of his case, the complainant -Krishan Gopal Gupta has examined himself as CW-1 and presented the following documents:
(i) Original cheque in quetion as Ex.CW-1/A;
(ii) Return memo as Ex.CW1/B;
(iii) Legal notice as Ex.CW1/C;
(iv) Postal receipt as Ex.CW1/D & Ex.CW1/E;
(v) Tracking Reports along with certificate u/s 65-B of Indian
Evidence Act as Ex.CW1/F and Ex.CW1/G;
(vi) Bayana Receipt as Ex.DW1/CX-1.
6. During his examination in chief, complainant - Krishan Gopal Gupta (CW-1) has reiterated the contents of his complaint. He was duly cross examined by the Ld. Counsel for the accused and in his cross examination dated 06.03.2020, he stated that the accused is a property dealer and acted as a mediator in getting his plot at Pratap Vihar-III, Khasra no. 107, B-1, for a sum of Rs. 6 lakhs. He had received a sum of Rs. 6 lakhs, in cash but, he does not remember who purchased the said plot. The accused had only asked him to sign some papers and it was the accused, who got the plot sold. He neither knows on what documents his signatures were obtained, nor does he have those documents, with him. He denied the suggestion KRISHAN GOPAL VS. DANSINGH BISHT Page 3 of 18 CC No. 359/2019 Judgment that no such transaction ever took place and the accused never acted as a mediator for the sale of the said plot. He does not know whether the property documents, which he had, were authentic, but, stated that the Power Of Attorney was in his name.
7. The witness- Krishan Gopal Gupta/ CW-1 further stated that the accused never apprised him whether the documents of his property were not authentic, or if the same were not registered. He denied the suggestion that the accused returned the property documents, as they were not authentic. He further denied the suggestion that after retuning the said property documents, the accused asked him to return the cheque in question, which he did not return and explained that the accused had taken a loan of Rs. 6 lakhs, from him and the cheque was issued in discharge of the said liability. He further stated that the accused had approached him to take a loan of Rs. 6 lakhs, in September, after he got Rs. 6 lakhs, from the sale proceeds of the abovementioned property.
8. The witness- Krishan Gopal Gupta/ CW-1 further stated that he does not file the ITR and the loan was advanced by him, in cash. At the time of advancement of the loan, his wife, his children and the accused, were present. He denied the suggestion that no loan was advanced by him to the accused. He further stated that he does not remember the exact date, when the accused handed over the subject cheque to him, but, when he demanded the loan amount from the accused, the accused came to his house and gave him the duly filled cheque. He denied the suggestion that he has not sent any legal notice to the accused and a wrong tracking report has been placed on record by him. He denied the suggestion that the property documents are in his possession and he did not produce the same, deliberately. He further stated that the loan was advanced in currency notes with the denomination of Rs. 2000/- and Rs. 100/-. He had known the accused for 1-2 years, prior to advancement of the loan and he had no prior transactions with the accused. He also stated that the property documents which the accused had given him at the time of KRISHAN GOPAL VS. DANSINGH BISHT Page 4 of 18 CC No. 359/2019 Judgment purchasing of the property, were taken back by the accused, at the time of selling it. He denied the suggestion that the accused does not owe any liability to him.
9. In his statements recorded u/s 313 Cr.PC, the accused stated that the complainant had approached him to sell his plot and deposited his property documents with him, in lieu of which, he issued a blank cheque, as a security, to the complainant. He knew the complainant as the complainant used to visit him for business transactions, as he worked as a property dealer. He further stated that he did not sign any bayana receipt. He denied the entire case of the complainant and submitted that the cheque in question is the same blank cheque, which he had given as a security to the complainant. The complainant filled the particulars over the same and presented it for encashment. He also added that he had returned the property documents to the complainant, as the property could not be sold. He was not in Delhi for 3 months, as he had met with an accident and the complainant got the present cheque dishonored, in his absence, for reasons best known to him. He further stated that he did not receive the legal demand notice. He also admitted the fact that the cheque in question bears his signatures, but, stated that the particulars over the same have not been filled by him.
10. Thereafter, the matter was listed for defence evidence. The accused chose to lead defence evidence and presented himself as a witness. In his examination in chief, accused/ Dan Singh Bisht (DW-1) stated that he is a property dealer by profession and the complainant approached him to sell his plot measuring 25 square yards and left his original property papers with him, for the purpose of showing the same, to the interested parties. He further stated that in lieu of the said documents, the complainant took a blank signed cheque from him. Subsequently, he found out that the property papers kept with him, were not in order and when he intimated the same to the complainant, the complainant took away the property papers. Thereafter, he requested the complainant to return his cheque, but, KRISHAN GOPAL VS. DANSINGH BISHT Page 5 of 18 CC No. 359/2019 Judgment the complainant did not comply with his requests. After this, the complainant presented the cheque in question for encashment, without his consent, after filling the details in the same. He did not receive any legal demand notice from the complainant and came to know about the present case, after receiving the summons.
11. The Ld. counsel for the complainant duly cross examined the accused- Dan Sigh Bisht/DW-1 and in his cross examination dated 12.07.2022, the witness - Dan Singh Bisht /DW-1 stated that he has studied upto VIII standard and is in the business of property dealings for the past 4-5 years. He admitted that A-594, Gali no. 1, Pratap Vihar, Part-2, Kirari Suleman Nagar, New Delhi, is his correct address, but denied the suggestion that he has an office named "Bisht Property Dealers" in Pratap Vihar, Part-2. He stated that he cannot tell the exact name of the person to whom he had shown the property documents of the complainant. Upon being specifically questioned by the Ld. counsel for the complainant as to whether he issues security cheques towards the property documents of other people also, the witness replied in the negative and stated that he does not issue cheques to other persons and that he does not maintain any record in this regard. He further volunteered to state that it was his first deal with the complainant.
12. Furthermore, the witness- Dan Singh Bisht(DW-1) denied the suggestion that the plot bearing no. A-25, Vijay Enclave, was purchased by the complainant through him. Upon being confronted with a bayana receipt (Ex.DW1/CX-1), the witness stated that the said document is authentic and the said deal was executed between the complainant and one Amit Kumar, through him. He also admitted his signatures at point A of the said bayana receipt. The witness admitted that Rs. 50,000/- was received by the complainant from Amit Kumar qua the said deal, in his presence, but denied the suggestion that in September 2018, the said Amit Kumar paid the balance amount of Rs. 6 lakhs to the complainant and thereafter, documents were executed by the complainant in favour of Amit KRISHAN GOPAL VS. DANSINGH BISHT Page 6 of 18 CC No. 359/2019 Judgment Kumar, in his presence. He also denied the suggestion that the said amount of Rs. 6 lakhs was advanced to him by the complainant, as a loan, in September 2018. He also stated that he cannot tell the exact date when he requested the complainant to return his cheque. He admitted that till date, he has not filed any complaint against the complainant qua non return/ misuse of the cheque in question. He denied the suggestion that the cheque in question was given by him to the complainant, as a repayment of the loan of Rs. 6 lakhs, which he had taken from the complainant.
13. Thereafter, the matter was listed for final arguments. During the course of final arguments, it was argued by the Ld. Counsel for the complainant that in view of the fact that the accused has admitted his signatures on the cheque in question, the presumptions under 118(a)/139 N I Act are attracted and the case is fit for conviction. He has stated that during the course of trial, the accused took a false defence that the cheque in question was handed over by him to the complainant, as a security, at the time when the complainant handed over his property documents to him, which has not been proved by him to any extent. He further argued that the accused also tried to challenge the financial capacity of the complainant, but, the same stands proved by virtue of the fact that the accused has admitted his signatures on the bayana receipt (Ex.DW1/CX-1), which categorically reflects the sources of funds of the complainant. It has thus been prayed that the accused be convicted, in the present case.
14. Per contra, the Ld. counsel for the accused has argued that the complainant has misused the cheque in question, as the same was merely a security cheque, which was given by the accused to the complainant, as a security, when the complainant handed over his property documents to the accused, for the purpose of finding buyers for his property. The said cheque has been misused by the complainant, after the accused returned his property documents to him, as he could not find any suitable buyers. It has further been argued by the Ld. counsel for the accused that the complainant has KRISHAN GOPAL VS. DANSINGH BISHT Page 7 of 18 CC No. 359/2019 Judgment himself admitted the fact that he does not file ITR and his financial capacity is highly doubtful. It has thus been prayed that the accused be acquitted, in the present case.
Findings of the Court-
15. Before delving into the facts of the case, it is apposite to bear in mind the law with respect to section 138, Negotiable Instrument Act. In order to prove his case under section 138 N I Act, the complainant must prove the following facts-
i) The accused issued a cheque on a bank account maintained by him;
ii) The said cheque must have been issued, wholly or partly, in discharge of a 'legal debt or other liability' ;
iii) The said cheque was presented before the bank within 3 months from the date of issuance and was dishonoured;
iv) The payee issued a legal demand notice, within 30 days of receipt of information of dishonour of the cheque;
v) The drawer failed to make payment within 15 days of receipt of the said legal demand notice.
16. Further, the NI Act raises two important legal presumptions in favour of the holder of the cheque as soon as the execution of cheque is proved. As per Section 118(a), NI Act, it shall be presumed that every negotiable instrument was 'made, accepted, transferred, negotiated or endorsed for consideration, unless the contrary is proved'. Furthermore, as per section 139, NI Act, it shall be presumed that 'the holder of cheque, received the cheque for the discharge, in whole or in part, of any debt or other liability, unless the contrary is proved.'
17. The principles with respect to above mentioned presumptions, have been succinctly laid down in Para 25 of the judgment by Hon'ble KRISHAN GOPAL VS. DANSINGH BISHT Page 8 of 18 CC No. 359/2019 Judgment apex court in Basalingappa v. Mudibasappa (2019) 5 SCC 418, which lays down as under-
" 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 the 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.
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."
18. At the very outset, it is pertinent to note that in the present matter the cheque in question (Ex.CW1/A) was issued on 12.11.2018. The said cheque was presented before the bank within the prescribed time and was dishonored vide return memo (Ex.CW1/B) on 01.12.2018, with the reason 'Funds Insufficient'. Thereafter, a legal notice (Ex.CW1/C) dated 10.12.2018 was sent by the complainant on 12.12.2018. As per the version of the complainant, the accused did not make any payments to him, despite delivery of the legal demand notice and thereafter, the present matter was instituted by the complainant on 03.01.2019.
19. In the instant matter, the case of the complainant is that the accused took a loan of Rs. 6,00,000/- from him, in September 2018, and in discharge of his liability, issued the cheque in question, in favour of KRISHAN GOPAL VS. DANSINGH BISHT Page 9 of 18 CC No. 359/2019 Judgment the complainant. During the course of trial, the accused has admitted his signatures on the cheque in question and as laid down in Basalingappa (Supra), once the signatures on the cheque in question have been admitted by the accused, the burden to raise a probable defence rests upon the shoulders of the accused, as per the mandatory presumptions of section 139 of the N I Act. In order to rebut the presumptions, the defence taken by the accused is mainly three fold- (I) The accused did not receive the legal demand notice sent by the complainant and consequently, no cause of action u/s 138 of the N I Act can be said to have arisen, in the present matter; (II) The cheque in question was issued by him as a security to the complainant, when he took the property documents of the complainant for the purpose of showing them to the prospective buyers and the same has subsequently been misused by the complainant; (III) The complainant has failed to explain his financial capacity and the sources of his funds.
WITH RESPECT TO THE DEFENCE THAT THE ACCUSED DID NOT RECEIVE THE LEGAL DEMAND NOTICE SENT BY THE COMPLAINANT AND CONSEQUENTLY, NO CAUSE OF ACTION U/S 138 OF THE N I ACT CAN BE SAID TO HAVE ARISEN, IN THE PRESENT MATTER.
20. The first defence that the accused has taken in the present matter is that he did not receive the legal demand notice sent by the complainant and thus no cause of action arose in the present matter. During the course of final arguments, the Ld. counsel for the accused vehemently argued that as per the tracking report (Ex.CW1/F and Ex.CW1/G), the speed post consignments, through which the legal demand notice were sent by the complainant to the accused, shows the date of booking to be 12.12.2018, whereas the date of delivery is 11.10.2018, and the said tracking reports are prima facie incorrect/ false. Upon a careful scrutiny of the tracking reports (Ex.CW1/F and Ex.CW1/G), it emerges that as per the said reports, the date of KRISHAN GOPAL VS. DANSINGH BISHT Page 10 of 18 CC No. 359/2019 Judgment delivery(11.10.2018) precedes the date of booking(12.12.2018), which clearly suggests that the said tracking reports are incorrect, probably due to some technical glitch. Thus, it is evident that there is absolutely no proof of delivery of the legal demand notice sent by the complainant to the accused, on the record. In light of the above discussion, the short question that falls for the consideration of this court is whether the accused can evade his liability u/s 138 of the NI Act on the sole ground that there is no sufficient proof of delivery of legal demand notice on the record.
21. At this juncture, it is pertinent to note that the position of law with respect to the abvoementioned question of non receipt of the legal notice, is no longer res integra in view of the judgment of Hon'ble apex court in C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555, wherein it has been held that an accused who has not received the legal demand notice cannot claim the benefit of the defence of non receipt of the same as once summons are served upon him, it is the duty of such an accused to make the payment of the cheque in question within 15 days of receiving summons from the court. Once this option is not availed by him, the benefit of defence of non service of notice cannot be given to the accused. In the instant matter, even if the case of the accused qua non receipt of the legal demand notice, is accepted at its best, then also, as per the legal position discussed hereinabove, the accused was duty bound to make the payment qua the cheque amount, upon receiving the summons of this court and the mere fact that the accused did not receive the legal demand notice, does not absolve him of his liability u/s 138 of the N I Act. Consequently, in view of the above legal position, the accused cannot claim any benefit of the defence of non receipt of the legal demand notice.
WITH RESPECT TO THE DEFENCE THAT THE CHEQUE IN QUESTION WAS ISSUED BY HIM AS A SECURITY TO THE COMPLAINANT, WHEN HE TOOK THE PROPERTY DOCUMENTS OF THE COMPLAINANT FOR THE KRISHAN GOPAL VS. DANSINGH BISHT Page 11 of 18 CC No. 359/2019 Judgment PURPOSE OF SHOWING THEM TO THE PROSPECTIVE BUYERS AND THE SAME HAS SUBSEQUENTLY BEEN MISUSED BY THE COMPLAINANT.
22. In the instant matter, at the stage of recording of statements u/s 313 of Cr.PC, defence evidence and final arguments, the accused has claimed that the cheque in question was a security cheque, which he handed over to the complainant in lieu of the property documents of the complainant, at the time of finding prospective buyers for him and subsequently, when he found out that the property documents were not in order, he returned the same to the complainant, but the complainant instead of returning the cheque in question, misused the same. Contrary to the said version, at the stage of framing of notice, the accused stated that the cheque in question was a security cheque, for the payment that the complainant was to receive from the purchaser.
23. Furthermore, to the utter surprise of this court, till the stage of his cross examination, the accused time and again repeated that he never executed any deal qua the property of the complainant and that he returned the property documents to him as the same were not in order, however, turning a complete volte face, upon being confronted by the bayana receipt (Ex.DW1/CX1, regarding the sale of Khasra no. 707, D-1 Block, Pratap Vihar, Part-3, Delhi, for a sum of Rs. 6,50,000/-, by the complainant to one Amit Kumar), the accused admitted the genuineness of the said document as well as his signatures over the same and stated that the said deal was executed through him, between the complainant and one Amit Kumar. Thus, it is evident that the accused has taken contradictory stands, throughout the course of the present trial, and his testimony appears to be false and does not inspire the confidence of this court, to any extent whatsoever.
24. At this stage, it is apposite to mention that during the course of the present trial, the Ld. counsel for the complainant, made his best efforts to summon the said Amit Kumar by moving an appropriate KRISHAN GOPAL VS. DANSINGH BISHT Page 12 of 18 CC No. 359/2019 Judgment application in this regard, which was allowed by this court, but, eventually the said witness had had to be dropped as the complainant could not trace his present whereabouts, which goes on to show the bonafide of the complainant. On the other hand, the accused, who was admittedly a middleman in the property deal pertaining to the bayana receipt (Ex.DW1/CX-1), and probably had more means to trace the whereabouts of the purchaser- Amit Kumar, took no steps to produce the said Amit Kumar, as a witness, in order to clarify the exact nature, terms and fate of the said deal, which again casts aspersions upon the genuineness of his defence.
25. Furthermore, when the Ld. counsel for the complainant, specifically questioned the accused during his testimony, as to whether he ordinarily issues cheques at the time of receiving property documents from the sellers, the accused replied that he does not issue security cheques for the said purpose, which suggests that the version of the accused is highly unnatural and hard to believe. At this stage, it is pertinent to mention that this court is mindful of the fact that the sale transactions by way of GPA(General Power of Attorney) are not valid in the eye of law, as per the mandatory provisions of Section 17, The Indian Registration Act, however, the legal validity of the sale transaction between the complainant and the said Amit Kumar and the Bayana Receipt (Ex.DW1/CX-1) executed in this regard, is not a central issue to the present dispute and the legal status of the said transaction/document, per se, cannot prove the defence of the accused.
26. At this stage, it is also pertinent to note that during the course of final arguments the Ld. counsel for the accused argued that the complainant has manipulated the cheque by filling the particulars over the same. However, this argument of the accused does not appear to be genuine as no such suggestion was put to the complainant at the stage of his cross examination, nor is there any material on record that goes on to show that the accused made any complaints against the complainant, as and when he came to know KRISHAN GOPAL VS. DANSINGH BISHT Page 13 of 18 CC No. 359/2019 Judgment about the alleged misuse of the cheque in question, which is totally contrary to reasonable human conduct, more so, when the accused was admittedly a property dealer, who is expected to know the repercussions of dishonor of cheques.
27. In light of the above variations and contradictions in the versions of the accused, at various stages of trial, the accused has miserably failed to establish with clarity, the exact purpose for which he had handed over the cheque in question to the complainant. Further, the fact that the accused changed his entire version, during his cross examination, upon being confronted with the Bayana Receipt (Ex.DW1/CX-1), casts deep aspersions upon his veracity and his entire testimony appears to be doubtful. Consequently, the accused has failed to prove that the cheque in question was handed over by him to the complainant, as a security, at the time of taking his property documents and the same was subsequently, misused by the complainant.
WITH RESPECT TO THE DEFENCE THAT THE
COMPLAINANT HAS FAILED TO EXPLAIN HIS
FINANCIAL CAPACITY AND THE SOURCES OF HIS
FUNDS.
28. The law with respect to the question of financial incapacity/ non explanation of sources of funds, in cases pertaining to section 138 of the N I Act, has been succinctly dealt by the Hon'ble Apex Court in a catena of decisions. The Hon'ble Apex court in Basalingappa(Supra), has held that - it is not imperative for the accused to step into the witness box to prove his defence regarding financial incapacity of the complainant and it is the duty of the complainant to prove his financial capacity, once the accused challenges the same. Furthermore, the Hon'ble Apex Court has recently held in P Rasiya v. Abdul Nazir 2022 SCC OnLine SC 1131 that the complainant is not bound to specifically state nature of transaction and sources of funds in his complaint. A conjoint reading KRISHAN GOPAL VS. DANSINGH BISHT Page 14 of 18 CC No. 359/2019 Judgment of the above judgments, makes it amply clear that in cases pertaining to section 138 of the N I Act, initially, the complainant is not expected to specify his sources of funds, in the complaint. However, when the financial capacity or the sources of funds are challenged by the accused, during the course of trial, the complainant is under an obligation to explain his financial capacity and the sources of his funds.
29. In the present matter, the complainant did not reveal the sources of his funds in his complaint and as laid down by Hon'ble Apex court in P Rasiya (Supra), he was under no obligation to do the same. Subsequently, at the stage of complainant's evidence, upon being cross examined on the aspect of financial capacity and the sources of funds, the complainant explained that the amount of Rs. 6 lakhs was advanced by him to the accused, out of the sale proceeds of the property situated at Pratap Vihar -III, Khasra No. 107, D-1, which was sold for a sum of Rs. 6 lakhs, through the accused. During the course of the trial, the accused challenged the version of the complainant and till the stage of his cross examination, contended that he never executed any property deal for the complainant as his property documents were not in order and he subsequently, returned the property documents to the complainant. However, as discussed hereinbefore (paragraph no. 23 of the judgment), to the utter surprise of this court, the accused changed his entire stance, upon being confronted with the Bayana Receipt (Ex.DW1/CX-1), after which, he admitted the genuineness of the said document as well as his signatures over the same, as a witness. Not just this, the accused also admitted that at the time of execution of the said receipt, the purchaser Amit Kumar handed over Rs. 50,000/- to the complainant, in his presence.
30. Furthermore, upon being questioned about the remaining sale consideration of Rs. 6 lakhs (which as per the Bayana Receipt was payable before 10.10.2018), the accused stated that the said sum of Rs. 6 lakhs was not handed over in his presence in September, 2018.
KRISHAN GOPAL VS. DANSINGH BISHT Page 15 of 18CC No. 359/2019 Judgment In the considered opinion of this court, the testimony of the said Amit Kumar(purchaser as per the Bayana Receipt), would have been the best possible evidence to answer the question whether the remaining sale consideration of Rs. 6 lakhs was subsequently paid by him to the complainant or not. However, as discussed in paragraph no 24 of the present judgment, the accused took no steps to produce the said Amit Kumar as a witness and the complainant had to drop the said witness as he had no knowledge of his present whereabouts, after his summons were received back with the report that his address was incorrect/ incomplete. Admittedly, the accused was a middleman in the property deal and probably had more means to trace the whereabouts of the purchaser- Amit Kumar. Consequently, it was expected from the accused to take reasonable measures to produce the said Amit Kumar, in order to clarify the fate of the transaction between the complainant and the said Amit Kumar.
31. In the considered opinion of this court, the entire conduct of the accused, in initially stating that he could not find buyers for the complainant, after which he returned his property documents and then subsequently, changing his stance, upon being confronted with the Bayana Receipt (Ex.DW-1/CX-1), smells of foul play on his part and his version qua non receipt of Rs. 6 lakhs, by the complainant from Amit Kumar, in his presence, does not appear to be genuine. During the cross examination of the complainant, the Ld. counsel for the accused, did not put any questions to the complainant, about his monthly income or expenses, which again suggests that the financial capacity of the complainant has not been sufficiently questioned by the accused. As discussed hereinabove, the legality of the transaction between the complainant and Amit Kumar (sale via GPA) and the legality of the Bayana Receipt (Ex.DW1/CX-1), is not relevant to the decision of the present case, as the said transaction merely suggests the sources of funds of the complainant and is entirely independent of the present matter. Consequently, the accused has KRISHAN GOPAL VS. DANSINGH BISHT Page 16 of 18 CC No. 359/2019 Judgment failed in challenging the financial capacity or the sources of funds of the complainant.
32. Before parting with the judgment it is pertinent to mention that during the course of final arguments, the Ld. counsel for the accused has relied on the following judgments: P Jayaraj v. R Saroja 2007 (1) DCR 562 - primary burden of proof lies upon the complainant; K Prakashan v. P K Sundaran - the accused must rebut the presumptions as per the requirement of preponderance of probabilities; J K Abraham v. Simon C Abraham Criminal Appeal 2043/23 - Evidence of source of income has to be proved by the complainant ; M/s Sekhon and Sekhon v. Rani (CRMA 212 - MA 2012- mere admission of signatures does not tantamount to admission of guilt. This court humbly bows down to the law laid down in the abovementioned judgments and the same have been duly considered in appreciating the facts and circumstances of the present case. Lastly, in his written arguments, the Ld. counsel for the accused has also emphasized on the fact that the complainant has failed to establish the fact that the territorial jurisdiction of the present matter lies with this court, as he did not summon the authorized employee of his bank to prove the fact that the said bank lies within the territorial jurisdiction of this court. In the considered opinion of this court, the said argument is devoid of any merits, as the return memorandum (Ex.CW1/B) categorically mentions the bank of the complainant to be State Bank of India, Uttam Nagar, which is within the territorial jurisdiction of this court. Thus, the accused cannot be given any benefit of the argument that the complainant has failed to prove that this court lacks the territorial jurisdiction to try the present case.
33. In view of the above discussion, it is apparently clear that complainant has remained firm to his version throughout the course of the trial and has sufficiently proved the sources of his funds. On the other hand, in light of the contradictory versions taken by the accused, at various stages of trial, the accused has failed to prove his KRISHAN GOPAL VS. DANSINGH BISHT Page 17 of 18 CC No. 359/2019 Judgment defence that the cheque in question was merely a security cheque, handed over in lieu of the property documents of the complainant. Thus, the complainant has succeeded in proving his case as per the standards prescribed by law.
CONCLUSION
34. Thus, on account of above appreciation of facts, evidences and materials on record, this court is of the considered opinion that the complainant has succeeded to prove his case on the touchstone of 'beyond reasonable doubts'. Consequenty, the accused Dan Singh Bisht is convicted under the accusation of committing the offence u/s 138 N I Act.
35. This judgment contains 18 pages. This judgment has been pronounced in the open court today and each page has been duly signed.
36. Let a copy of this order be given dasti to the accused, free of cost.
37. Let a copy of the judgment be uploaded on the official website of Digitally signed District Courts, Dwarka forthwith. SHASHANK by SHASHANK NANDAN NANDAN BHATT BHATT Date:
2023.06.01 PRONOUNCED IN THE OPEN COURT 14:49:36 +0530 TODAY i.e. ON 01st June 2023 (Shashank Nandan Bhatt) Metropolitan Magistrate (NI Act)-06 South- West, Dwarka 01.06.2023 KRISHAN GOPAL VS. DANSINGH BISHT Page 18 of 18 CC No. 359/2019 Judgment