Delhi District Court
Cc No. 499/2017 Rahul Sajwan vs . Govid Kumar on 22 March, 2023
IN THE COURT OF MS. AKRITI MAHENDRU METROPOLITAN
MAGISTRATE-04, PATIALA HOUSE COURTS, DELHI
CC No. 499/2017
Rahul Sajwan S/o Sh. G.S. Sajwan
R/o 108/b, Madangir Village
New Delhi-110062
......................Complainant
Vs.
Govind Kumar
S/o Sh. Shyam Sunder
R/o House No.47, Gali No.1
Neb Sarai, New Delhi .........................Accused
JUDGMENT
(1) Serial number of the case : CC No. 499/2017
(2) Name of the complainant : Sh. Rahul Sajwan
(3) Name of the accused, : Govind Kumar
(4) Offence complained of
or proved : Dishonour of Cheque, Section
138 Negotiable Instruments Act,
1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Conviction
(7) Date of Institution : 24.06.2016
(8) Date of Judgment : 22.03.2023.
CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar
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1. Vide this judgment and final order, this Court shall dispose of the present complaint case instituted by the Complainant invoking the provisions of Section 138 of the Negotiable Instruments Act, 1881 (as amended to-date).
2. Succinctly speaking, the facts giving rise to the instant complaint case may be enumerated as hereafter: the accused had approached the Complainant and offered to sell him an under construction flat bearing No. A out of Plot No.102, measuring 85 Sq. Yds., situated at Gali No.2, Neb Sarai, IGNOU Road, Saket, New Delhi (hereinafter referred to as the property). The complainant agreed to purchase the property for a total sale consideration of Rs.28,00,000/- (rupees twenty eight lacs only) and paid an amount of Rs.6,80,000/- (rupees six lacs eighty thousand only) to the accused as advance. In pursuance thereof, the accused signed and executed a General Power of Attorney and a will, both dated 07.12.2013, in favor of the Complainant. The time fixed for construction of the property was till 30.06.2015, however, the transaction fell apart inasmuch as the accused allegedly failed to construct the property within the prescribed period and instead, expressed his inability to do so altogether. Consequently, a deed of cancellation of GPA was signed and executed by the accused whereby, he agreed to refund an amount of Rs.8,06,000/- inclusive of Rs.1,26,000/- ( Rupees one lac Twenty six thousand) towards the interest component, and an indemnity bond, both dated 21.11.2015. In pursuance thereof, the Accused issued four cheques in favor of the Complainant towards repayment of the above-mentioned amount; the particulars whereof are:1) Cheque bearing No. 000156 dated 20.12.2015 amounting to Rs.50,000/-; 2) cheque bearing No. 000157 dated CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /3/ 31.01.2016 amounting Rs.76,000/-; 3) cheque bearing No. 000158 dated 31.01.2016 amounting Rs.3,00,000/-; 4) cheque bearing No. 000159 dated 31.01.2016 amounting Rs.3,80,000/-. Reportedly, upon presentation, all the aforementioned cheques were returned dishonored either owing to insufficiency of funds or for the reason "Alteration/corrections on instruments are prohibited under CTS". It is noteworthy that the cheque bearing no.000156 which was returned due to alteration / correction was replaced by the Accused with cheque bearing No.000179 dated 24.01.2016. Even that cheque got dishonored owing to insufficiency of funds vide return memo dated 08.04.2016. Thereafter, the statutory demand notice dated 04.05.2016 issued to the Accused at the behest of the Complainant fell on deaf ears inasmuch as it evoked neither reply nor compliance. The Complainant was thereby, constrained to institute the present complaint case.
3. The Complainant tendered his pre summoning evidence by way of affidavit (Ex.CW1/1); and relied upon documents, to wit - General Power of Attorney (Ex.CW1/A), Will (Ex.CW1/B), Deed of cancellation of GPA dated 21.11.2015 (Ex.CW1/B-1), Indemnity bond (Ex.CW1/C), Cheques (Ex.CW1/D)(Colly.), cheque no. 000179 (Ex.CW1/E), cheque returning memos (Ex.CW1/F) (Colly.), Legal notice (Ex.CW1/G), Registered AD and Postal Receipts (Ex.CW1/H)(Colly.), and Delivery reports (Ex.CW1/I) (Colly.). On the strength of foregoing, the Accused was summoned vide order dated 24.06.2016.
4. Upon appearance of the Accused, notice under Section 251 of the Code of Criminal Procedure, 1973 was framed during the course of proceeding dated 14.03.2019 to which, the Accused, inter alia, pleaded not guilty and claimed CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /4/ that the complaint is false and frivolous as the transaction failed to pan out owing to remiss on the part of the complainant in timely payments which not only ensued losses for the accused but also prevented him from completing the project. Nonetheless, the accused asserted that he had issued the cheques entailed herein towards refund of the advance payment, albeit alleged misuse thereof.
5. Thereafter, due to failure of the accused to file the application under Section 145 (2) of the Negotiable Instruments Act, 1881 (as amended to date), the opportunity of the accused to cross examine the complainant was closed vide order dated 07.06.2019.
6. Subsequently, the Accused was examined in the exercise of power under Section 313 of the Code of Criminal Procedure, 1973 on 26.02.2020 wherein, he offered a different version from the one taken by him at the time of framing of notice under Section 251 of the Code of Criminal Procedure, 1973 inasmuch as attributed that handing over of the cheques was under duress. Likewise, another point of variance between the two statements recorded u/s 251 & 313 of Cr.PC is that in the latter he has claimed that the execution of indemity bond and Deed of cancellation was also under duress/coercion. In this background, the Accused expressed his willingness to lead DE.
7. The Accused examined himself as the sole witness in his defence. In his examination in chief, tendered by way of Affidavit (Ex.DW1/1) he deposed that he had approached the Complainant and offered to sell his flat for a total sale consideration of Rs.28,00,000/- (rupees twenty eight lacs only) out of which the complainant paid a sum of Rs.6,80,000/- (Rupees Six Lacs Eighty Thousand CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /5/ only) as advance payment. He signed the GPA and the Will, both dated 07.12.2013, in favor of the Complainant. The accused deposed that the complainant was required to pay approximately Rs.1,40,000/- (Rupees one lac forty thousand) per linter (sic) to him whereas, he was supposed to construct five floors out of which the former had constructed four floors however since the latter defaulted in making payments, the accused suffered business losses. It has been further averred in the affidavit that the accused had agreed to finance the Complainant in the tune of amount of Rs.14,00,000/- repayable in 120 months @ 11.25% interest per annum vide a loan agreement. The Complainant allegedly forced the accused to sign the indemnity bond dated 21.11.2015 in pursuance of which four cheques changed hands from the latter to the former. The accused has deposed that the Complainant did not discharge his part of the obligation and instead, has misused the cheques forcibly obtained from him.
8. DW1 was cross examined pointedly by Ld. Counsel for the Complainant. During the course of his cross examination, DW1 deposed that he could not file any complaint against the complainant for allegedly pressurizing him to sign the indemnity bond and forcibly taking cheques from him owing to the illness of his wife. DW1 also admitted that he did not issue any stop payment instructions to the bank. He denied the suggestion, however, that he had signed and executed the indemnity bond (Ex.CW1/C) of his own volition to repay the principal amount of Rs.6,80,000/- (Rupees Six lacs eighty thousand) along with interest of Rs.1,26,000/- (Rupees one lac Twenty Six thousand). He further denied the suggestion that he had issued the aforementioned cheques to repay the amount with the assurance that they would be encashed. DW1 made three different claims regarding the issuance of the cheques in his cross examination inasmuch as at first he claimed that the cheques in question were issued as security CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /6/ whereas, in the same breath, he deposed that the cheques were issued by him under duress and lastly, he testified to have issued the cheques with an assurance that the advance received would be returned after the sale of the flat, regardless of the fact that even that could not materialise hitherto. DW1 denied the suggestions put forth by the Ld. Counsel for the Complainant, namely - that he had received the legal demand notice; or that he had signed and executed all the exhibits, i.e. GPA and Will, both dated 07.12.2015 voluntarily; or that he was not under any pressure while signing the cheques in question and executing the indemnity bond; or that he did not want to pay the principal amount along with interest; or that he could not complete the construction of the flat and for the same reason he had agreed to return the advance amount along with interest; or that he had not incurred any loss in his business due to the complainant; or that he was deposing falsely to circumvent his liability.
9. Final arguments were advanced with equal vehemence on behalf of both the parties hereto. While it was contended on behalf of the Complainant that the Accused has failed to displace the statutory presumptions envisaged under Section 118 read with Section 139 of the Negotiable Instruments Act, 1881 (as amended to-date) and therefore, liable to be convicted for the commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (as amended to date); the Accused, per contra, argued that the foregoing statutory presumptions have been cogently rebutted inasmuch as the Complainant himself failed to prove the existence of a legally enforceable debt.
10. Law is rather trite on the subject that following ingredients must be satisfied in order to bring home the guilt of a person accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /7/ 1881. This position of law has been observed by the Hon'ble Supreme Court of India in the matter of 'Jugesh Sehgal v. Shamsher Singh Gogi', (2009) 14 SCC 683:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six (three) months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice"
11. The abovementioned proposition of law was reiterated by the Hon'ble Supreme Court in the matter of 'Aparna A. Shah v. M/s Sheth Developers P. CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /8/ Ltd & Anr.', reported as (2013)8 SCC 71.
12. Admittedly, apart from disputing his liability, no other ingredient enumerated hereto fore has been contested by the Accused during the course of the trial of the instant CC. Legally speaking, and taking into account the statutory presumptions leaning in favor of the Complainant and against the Accused, the onus is on the latter to rebut them, not to mention discharge the burden of proving that he is not indebted to the former in the tune of the amount entailed in the impugned cheque, or even that the impugned cheque was not issued for the purpose alleged by the Complainant in its complaint.
13. At this stage, it is deemed germane to reproduce the statutory presumptions applicable to the facts entailed in the instant CC, namely - (Section 20 of the Negotiable Instruments Act, 1881 (as amended to-day)) Inchoate stamped instruments: Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in (India), and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
(Section 118 of the Negotiable Instruments Act, 1881 (as amended to-day)) CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /9/ Presumptions as to negotiable instruments:--- Until the contrary is provided, the following presumptions shall be made:-
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
(b) as to date - that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity.
(e) as to order of indorsements - that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course;
Provided that, where the instrument has been obtained from its lawful CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /10/ owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
(Section 139 of the Negotiable Instruments Act, 1881 (as amended to-day) 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.
14. Applying the foregoing legal exposition to the facts of the instant case, this Court shall now proceed to examine the competing pleas raised by the parties hereto.
15. The first and foremost plea raised by the Accused is regarding the non- receipt of the legal demand notice on the strength of which the Ld. Counsel of the Accused has argued that the complaint deserves to be dismissed. Perusal of the record reveals that the delivery report of the legal Demand notice shows that the same has been returned back with report 'no such person', however, even if it is hypothesised that the legal notice was not received by the Accused, it is nobody's case that the Accused tendered the amounts entailed in the impugned cheques upon entering appearance before this Court in response to summons issued in the instant CC. At this stage, the observations passed by the Hon'ble Supreme Court of India in the celebrated case titled as 'C.C Alavi Haji v. Palalpetty Muhammed & Anr.', reported as (2007) 6 SCC 555 spring to mind which reads as under:
"It is also to be borne in mind that the requirement of CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /11/ giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot 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 the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would de,feat the very object of the legislation."
16. In light of the above-mentioned observations, the plea with respect to the non-receipt of the legal demand notice is rejected as being inconsequential and devoid of any merit.
17. The second plea agitated on behalf of the Accused is that the complainant cannot derive premium of his own wrong inasmuch as the transaction forming substratum of the instant CC fell apart owing to remiss in discharging part of the obligation undertaken by the complainant, i.e. in disbursing timely payments in terms of the understanding between the parties. However, bare perusal of the documents placed on record, more particularly the indemnity bond (Ex.CW1/C) and the deed of cancellation (CW1/B-1), dated 21.11.2015 executed by the accused rather go to debunk the veracity of defence put forth by him inasmuch as the transaction, as duly recorded in those documents, CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /12/ apparently withered on the vine owing to the inability of the accused to complete the construction on or before 30.06.2015.
18. At this stage, it is opportune to refer to the provisions of section 91 and 92 of the Indian evidence act, 1872 insofar as they preclude the parties from tendering oral evidence in proof of the terms, inter alia, of a contract which has been reduced into writing for the purpose of contradicting, wearing, adding to, or subtracting from, its terms unless the contingency(ies) envisaged vide provisos referred to in section 92 thereof is attracted. For better appreciation of implication of the foregoing legal provisions to the plea raised by the accused, it is profitable to reproduce the aforesaid sections, which read as under:
"Section 91 - Evidence of terms of contracts, grants and other dispositions of property reduced to form of document When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence1 shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein- before contained.
Exceptions When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
Wills admitted to probate in India may be proved by the probate.
Explanations This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /13/ one document, and to cases in which they are contained in more documents than one.
Where there are more originals than one, one original only need be proved.
The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact.
Section 92- Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms; Proviso (1): Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party want or failure of consideration, or mistake in fact or law:
Proviso (2): The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document:
Proviso (3): The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
Proviso (4): The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
Proviso (5): Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved;
CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar
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Provided that the annexing of such incident would not be repugnant to, or inconsistent with the express terms of the contract:
Proviso (6): Any fact may be proved which shows in what manner the language of a document is related to existing facts."
19. In the judicial estimation of this court, the accused, in the instant case, has failed to bring home any of the exceptional circumstances entailed in the provisos to section 92 of the Indian Evidence Act, 1872 so as to depart from the rule envisaged under section 91 thereof. That said, the reverse negligence sought to be shifted by the accused upon the complainant during the course of the trial does not hold water inasmuch as is blatantly repugnant to the averments entailed in the indemnity bond (Ex.CW1/C) and the deed of cancellation (CW1/B-1) much less when these documents have been executed by none other than the accused himself. The desperate attempt of the accused at rewriting history does not rescue him legally anyhow; au contraire, only reinforces his culpability in attempting to wriggle out of a legally enforceable liability.
20. The third and final plea raised by the accused is that he was compelled to execute indemnity bond dated 21.11 2015 (Ex. CW1/C) by the Complainant in pursuance of which the cheques entailed in the instant CC were issued by him under pressure and this fact goes to vitiate the issuance of the aforesaid cheques with the consequence that no liability, much less a criminal one, can be fastened upon the accused. Even this plea of the accused is deemed untenable, both on the touchstone of law as well as logic, for, on the one hand, legally speaking, the foregoing exposition vis-à-vis section 91 read with 92 of the Indian Evidence Act, 1872 read in juxtaposition to the utter failure on the part of the accused to prove coercion only goes to prove vacuousness of the plea and far from legally CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /15/ invalidates the execution, inter alia, of the indemnity bond (Ex.CW1/A) dated 07.12.2013 or the legal consequences emanating there from. And from the standpoint of logic, it is rather apparent from the evidence brought on record that the indemnity bond (Ex.CW1/A) purportedly signed by the accused under pressure was executed on 21.11.2015 whereas, the cheques were presented for encashment as late as on 07/08.04.2016, that is to say that, the accused had more than 3 months' time to file a complaint with the police regarding alleged coercion or the circumstances attending either the execution of the indemnity bond (Ex.CW1/C) or issuance of the cheques in question, not to mention that stop payment instructions were not even issued by the accused to the drawer bank. This court cannot also lose sight of the fact that once the cheque bearing no.000156 was returned unpaid due to alteration in instrument, the accused, admittedly and of his own volition, replaced it a new leaflet bearing no.000179. That said, the conduct of the accused is contrary to that of a prudent man's conduct, for under the pressing circumstances alleged by the accused, an ordinary prudent person would have filed a (criminal) complaint against the person who allegedly compelled him and made him sign documents that can be converted to a valuable security in order to safeguard his interests immediately upon removal of the alleged threat or pressure. Stop payment instructions is another step which the accused patently failed to take to prevent abuse of the instruments forming subject matter of the instant CC, leave alone that no legal notice was ever issued at the behest of the accused seeking return, inter alia, of the instruments from the complainant. All in all, the accused has peddled a self- serving version of the circumstances attending the execution of the indemnity bond (Ex.CW1/C) and the deed of cancellation (Ex.CW1/B-1), both dated 21.11.2015 under duress / coercion which does not inspire confidence of this Court, for it fails qualify the legal denominator, much less passes muster of a CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar /16/ reasonable and prudent man. Accordingly, the plea of the accused that the complainant had pressurized him to issue the negotiable instruments entailed herein is hereby rejected as not proved.
21. Upon due circumspection of the totality of foregoing facts and circumstances, including but not limited to scrutiny of material available on record in the adumbral of the legal position governing the field, this Court is of the considered opinion that the Accused has not been able to sufficiently rebut as much the statutory presumptions leaning against him as the version put forth by the Complainant vide his complaint. This Court hereby, convicts the Accused for the commission of offence under Section 138 of the Negotiable Instruments Act, 1881 complained of by the Complainant in the instant CC.
Announced in open court (AKRITI MAHENDRU) today i.e. on 22.03.2023 MM -04/New Delhi District All 16 pages have been checked Patiala House, New Delhi and signed by me. 22.03.2023 CC No. 499/2017 Rahul Sajwan Vs. Govid Kumar