Delhi District Court
Jai Sunder Waney vs . Vikram Singh Sodhi 1 Of Page No. 12 on 20 January, 2020
IN THE COURT OF SH. ASHWANI PANWAR,
METROPOLITAN MAGISTRATE - 04, N. I. ACT,
PATIALA HOUSE COURTS, NEW DELHI DISTRICT, DELHI.
JUDGMENT
Jai Sunder Waney ....................Complainant
Versus
Vikram Singh Sodhi ....................Accused
a) CC. No. of the case : 34111/2016
b) Institution of the case : 15.02.2015
c) Name of the complainant : Jai Sunder Waney S/o Sh. Sunder
Chanrai Waney, R/o G10, Anand
Niketan, New Delhi110021
d) Name of the accused person(s) : Vikram Singh Sodhi
R/o W10A/15, Western Avenue,
Sainik Farm, New Delhi110062
e) Offence complained of : Under Section 138 of N. I. Act, 1881
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 20.01.2020
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 Jai Sunder Waney through his power of attorney holder Sh. Kumar Pal Singh Parmar against the accused namely Vikram Singh Sodhi. In gist, it is alleged in the complaint that complainant is the owner of plot no. B 29, Pushpanjali Farm, Bijwasan, Kapashera, New Delhi and with intent to construct/refurbish the said farmhouse, he had engaged the services of Olivier Vidal and Associates Architects, New York, USA in the year 2010, which further engaged Atwin Brij (India) Architects as the local architects and Jai Sunder Waney Vs. Vikram Singh Sodhi 1 of page no. 12 the accused Vikram Singh Sodhi approached the complainant through their architects in mid 2012.The complainant further alleged that pursuant to the execution of the construction agreement, the accused approached the complainant with request to extend him a loan of Rs. 20,00,000/, the complainant agreed to advance the said loan to the accused and to secure the said loan accused handed over an undated cheque bearing no. 000471 i.e the cheque in question EX.CW1/6. The complainant further alleges that the accused used substandard material and workmanship to carry out the work, however, the accused did not pay any heed to the same. It is further alleged that the complainant during his meeting with the accused at complainant's residence on 22.09.13 called accused to return the said loan of Rs.20,00,000/. The complainant subsequently terminated the construction agreement vide termination notice dated 01.10.13. It is further alleged that when the accused failed to return the loan amount complainant was constrained to present the cheque in question with his banker which was returned dishonoured vide returning memo Ex.CW1/7 with the remarks Payment stopped by drawer and following which a legal demand notice was sent Ex.CW1/8 The reply to the demand notice of the accused is Ex.CW1/10, however no amount was paid by the accused hence the present complaint.
PRESUMMONING EVIDENCE & NOTICE
2. Presummoning evidence was led by the complainant side and after hearing complainant side, the accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of the accused, it was ensured that copy of complaint has been supplied to him. Notice was put to the accused by my scholarly predecessor for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 29.07.2016 to which accused pleaded not guilty and claimed trial. The accused defended himself and even filed application under section 145(2) NI Act to substantiate his defence. It is stated by the accused that Jai Sunder Waney Vs. Vikram Singh Sodhi 2 of page no. 12 he has no liability qua the cheque in question. It is further submitted by the accused that the complainant tried to mix up the sum of Rs.20,00,000/ with the construction agreement although in the said agreement there is no reference of the sum of Rs.20,00,000/, thus the cheque amount was neither due nor recoverable as on the date when the cheque was presented for encashment. Thereafter, the matter was fixed for complainant's evidence and accused side was granted opportunity to crossexamine the complainant.
COMPLAINANT'S POST NOTICE EVIDENCE
3. The complainant examined himself as CW1, adopted affidavit of presummoning as his evidence reiterating almost all facts of complaint, stating all exhibits on record and the Ld. Counsel for the accused at the onset objected to the verification on the evidence by way of affidavit of CW1, (EX.CW1/B). The ld. Counsel for the accused further objected to Ex.CW1/1 and Ex.CW1/2A as to mode of proof being not supported by any certificate under section 65B Evidence Act. CW1 i.e. the power of attorney holder during his cross examination deposed that he was not related to the complainant, but was employed with him. CW1 admitted not having filled any document of proof of his employment. The witness further admitted in his deposition that he did not sign the power of attorney in any capacity, further that he did not remember where the complainant was residing when the power of attorney was executed and further that the complainant did not sign the power of attorney in his presence. About the transaction, the witness deposed that the agreement Ex.CW1/2 was not drafted on his instructions, but he stated that he was present when the agreement was executed. On further cross examination, the witness stated that the parties to the agreement neither signed the document in his presence nor the agreement Ex.CW1/2 bears his signature. The witness further admitted that the termination notice was dated 01.10.2013 and same was received by the accused as per tracking report on 04.10.2013 and therefore, as per agreement Ex.CW1/2 the fifteen days notice period before the agreement was terminated expired only on Jai Sunder Waney Vs. Vikram Singh Sodhi 3 of page no. 12 19.10.2013. The witness admitted that the cheque in question was undated and that he had filled the date on the cheque in question and verbal communication was made to the accused before filling the date on the cheque the witness however admitted that there was no written communication or email informing the accused regarding the same. The witness further deposed that the agreement Ex.CW1/2 no where records that Rs.40 lakhs and Rs.20 Lakhs were advanced as loan and in fact it is recorded that the same was given as mobilization amount. The witness further deposed that there is no clause in the agreement for advancing Rs. 20 lacs. The witness further deposed that there is no agreement or receipt showing that Rs. 20 lacs was given by the complainant to the accused as a loan.
4. Complainant closed his postnotice evidence vide order dated 14.11.2017 and thereafter, matter was fixed for recording statement of the 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. Incriminating evidence was put to him. Accused denied all the allegations and stated that he is innocent and has been falsely implicated in this case. The accused reiterated his stand that the complainant had approached them for the work based on their goodwill and reputation in the market. The accused further stated that Rs.20 Lakhs was paid for profits of 15% earned by the accused for his services rendered.
6. The accused was given opportunity to lead defence evidence, and he chose to step into the witness box under Section 315 of The Criminal Code of Procedure, 1973. The accused deposed that there was business relation between the parties, however the present cheque in question was only a security cheque for assisting the complainant and his architect in the selection of the goods and other technical issues. given long before and was not issued against any liability.
Jai Sunder Waney Vs. Vikram Singh Sodhi 4 of page no. 12 In cross examination of the accused dated 13.11.2018 accused submitted before the court that the cheque of Rs. 20 lacs was given by him to assure the complainant that he would continue to provide his professional services to the complainant. The accused even deposed that for objection raised by the complainant about substandard quality and antitermite treatment of the foundation of the structure, an independent expert was called to survey and they termed the allegation of substandard work as baseless and ill founded. The accused further stated that vide email dated 23.09.20113, he informed the complainant not to present the cheque in question since there was no debt. The accused further deposed that no fifteen days notice before termination of agreement was ever given and the cheque was presented without any proof of loss being found or even before the agreement was terminated. The accused side closed his defence evidence on 21.10.2019.
7. Final arguments from complainant side were heard 18.12.2019. Case file perused. POINTS FOR DETERMINATION : 8.1 Whether the complainant has been able to establish ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not?
8.2 Final order.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
9. To bring home conviction for offence punishable under Section 138 of The Negotiable Instruments Act, 1881, the complainant is obliged to prove :
(a) The cheque(s) was/were drawn/issued by the accused person(s) to the complainant on an account maintained by him/her/them/it with the bank for discharge, in whole or in part, of any debt or liability.
Jai Sunder Waney Vs. Vikram Singh Sodhi 5 of page no. 12
(b) The cheques(s) was/were presented to the bank within a period of six
months or within period of its/their validity.
(c) The cheque(s) so presented for encashment was/were dishonored.
(d) The payee/complainant of the cheque(s) issued a Legal Demand
Notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque(s).
(e) The drawer of the cheque(s) failed to make the payment within 15 days of receipt of aforesaid Legal Demand Notice.
(f) The complaint was presented within 30 days after the expiry of above 15 days.
UNDISPUTED/UNCONTROVERTED FACTS
10. At the outset, it is pertinent to mention herein that it is not in dispute that cheque in question belong to the accused, it bears his signatures, it was drawn on an account maintained by the accused with a bank, cheque in question was dishonored as alleged, legal demand notice was sent to correct address of accused and accused failed to make the payment of cheque in question till date. So, there is no need of discussion qua said ingredients and same can be regarded as being duly proved on record and being noncontroverted.
CONTENTIONS QUA CONSIDERATION 11.1(a) The contentions which have been raised by defence are that there was no amount outstanding on the accused towards the complainant. The cheque was provided to the complainant as security which the complainant misused. The accused argued that the witness who is an attorney holder has no personal knowledge of the present case, no document placed on the file records his Jai Sunder Waney Vs. Vikram Singh Sodhi 6 of page no. 12 presence or post in the present transaction. There is also no ledger account or report of losses, if any accessed by the complainant. The accused further argued that there is no loan agreement between the parties which shows that alleged loan of Rs. 20,00,000/ was advanced by the complainant to the accused It is the contention of defence that accused side has been able to rebut the presumption available in favour of the complainant. It is contended that accused should be acquitted in this matter.
11.1(b) On the other hand, it is the contention of the complainant side that it is not denied that both sides were in business relation and the services were rendered in accordance with the agreement. It is contended that amount, payee and signatures on the cheque have not been disputed and cheque was provided for repayment of liability, legal demand notice was issued and received by accused side, hence, all ingredients of commission of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stand established on record, therefore, accused should be held guilty in this matter.
11.2 Submissions of both side considered.
Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under : "Section 118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumption 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, was indorsed, negotiated or transferred for consideration;........."
Section 139 of The Negotiable Instruments Act, 1881 provides as under : "Section 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."
In matter of "Krishna Janardhan Bhat Vs. Dattatraya G. Hegde"
(2008) 4 SCC 54, Hon'ble Supreme Court of India has observed : "An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already Jai Sunder Waney Vs. Vikram Singh Sodhi 7 of page no. 12 brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different."
" Furthermore, whereas prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. 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 he relies."
In matter of "Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm" (2008) 7 SCC 655, Hon'ble Supreme Court of India (though it was a civil matter related to promissory note, but is relevant to refer herein) has held : "Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non existence of consideration by brining on record such facts and circumstances which would lead the court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."
In matter of "Bharat Barrel & Drum Mfg. Co. V. Amin Chand Payrelal"
(1999) 3 SCC 35, Hon'ble Supreme Court of India (though it was also a civil matter related to promissory note, but is relevant to refer herein) has held : "Upon consideration of various judgments as noted hereinabove, 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 nonexistence 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 the 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 Jai Sunder Waney Vs. Vikram Singh Sodhi 8 of page no. 12 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. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
In matter of "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441 which is a Full Bench Decision, Hon'ble Supreme Court of India while discussing above said provisions, judgments and other case law on the point has held : "In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant".
"Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendantaccused cannot be expected to discharge an unduly high standard or proof."
"In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise Jai Sunder Waney Vs. Vikram Singh Sodhi 9 of page no. 12 such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
11.3 So, precisely there is initial presumption of legally enforceable debt or liability against the accused side, but same is rebuttable. The standard of proof for rebuttal is preponderance of probabilities. Accused side can lead evidence in defence, even can rely on materials submitted by complainant and can rely upon circumstances also to show nonexistence of consideration or it being improbable and need not adduce evidence of his own for the same. 11.4 The defence of the accused side considered in view of abovecited case laws and this court finds substance in the submission of the accused. In the present case, the complainant has not filed on record loan agreement receipt or pronote which proves the alleged loan of Rs.20 lacs. Further the date of advancement of the alleged loan is not mentioned in the complaint. This raises a suspicion on the version of the complainant that loan of Rs.20 lacs was advanced to the accused by the complainant .Further it is admitted on record that books of accounts maintained qua the accused have not been filed on record by the complainant. Witness CW1 denied the suggestion that there are no loan documents as no loan of Rs. 20 lacs was given by the complainant to the accused. The accused has had a consistent stand throughout the trial regarding the alleged amount of Rs. 20 lacs that Rs. 20 lacs was never advanced as loan to the accused and the same was part payment of 15% agreed profit, which was to be paid by the complainant to the accused on completion of items deleted from the original contract as per the actul cost. 11.6 In light of the above discussion and documentary proof, it is clear that the complainant has failed to conclusively prove that Rs. 20 lacs was advanced as loan to the accused. CAPACITY OF THE ATTORNEY HOLDER TO DEPOSE
12. The accused deserves acquittal on merits as per the above discussion. Attention of this Court is also drawn to the landmark judgement of A.C. Narayanan v. State of Maharashtra & Jai Sunder Waney Vs. Vikram Singh Sodhi 10 of page no. 12 Ors.; 2014 (11) SCC 790 wherein it was held that the for a person to depose as power of attorney holder, the person must have personal knowledge of the case and if the person has no personal knowledge, he cannot be a witness as he cannot afford a valid right to the accused to cross examine. In the present case, the attorney holder stated that he was present when the transaction took place. However, if his deposition is read in toto, it appears that he was deposing based on limited documents filed on record and being an employee of the complainant. Firstly, neither in the complaint, nor in his evidence by way of affidavit, or in the verification, it is stated that the attorney holder has personal knowledge of the present case. He was not present in all the meetings between the parties, or atleast he has not established by any documentary proof that he was present in the meeting. He is neither the sender of any of the emails and communication made to the accused, nor receiver of any of the emails or communication made by the accused to the complainant. The witness even denied there being any change in the agreement Ex.CW1/2 subsequently, even though the agreement record changes in hand when the parties met subsequently. The attorney holder stated that various meeting were held between the parties before termination and presentation of the cheque, however, the witness could not state the date of those meetings. The witness stated that the presence and date of meeting must be recorded in the visitor's file of the guard at the complainant's house, however, no such register/ file was placed on record. From the above discussion, it can safely be said that the witness made a power of attorney holder of the complainant has no personal knowledge of the present case and he deposed based on his limited knowledge based on the documents. His presence at crucial meetings between the parties is not established and none of the document filed by the complaint mentions him as sender/ originator of the communication. In view of the above and the law laid down in A.C. Narayanan Case (Supra), the attorney holder is not a competent witness to depose in the present case as he has no personal knowledge and he could not afford a valid right of cross examination to the accused.
Jai Sunder Waney Vs. Vikram Singh Sodhi 11 of page no. 12 FINAL CONCLUSION
13. It stands established on record in the form of evidence of the complainant given vide affidavit (which can be read in evidence at all stages as per judgment of "Rajesh Agarwal Vs. State & Anr." 171 (2010) DELHI LAW TIMES 5, documents exhibited in evidence, admission of accused during accusations explained to him and statement of accused recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 that the complainant has failed to prove that the present cheque in question was issued against any debt or discharge of legally enforceable liability as on the date of the cheque and hence the foremost ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 is not established.
FINAL ORDER
14. In view of the aforementioned facts and circumstances, this Court is of the conclusion that complainant has not been able to duly prove its case under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt. Accordingly, accused namely Vikram Singh Sodhi stands acquitted for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 qua the cheque in question in the present complaint. Announced in the open Court on January 20, 2020.
(Ashwani Panwar)
M.M.04/N.I.Act/New Delhi,
PHC/Delhi/20.01.2020
Jai Sunder Waney Vs. Vikram Singh Sodhi 12 of page no. 12