Delhi District Court
Kavita Yadav vs . Gopal Bindal on 28 September, 2022
IN THE COURT OF SH. MAYANK GOEL:MM-02, NI Act, THC COURTS : DELHI ____________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL U/s. 138 Negotiable Instrument Act Kavita Yadav W/o Sh. Rajeev Yadav, R/o WZ-02, Hari Singh Park, New Delhi-110056. ........................ COMPLAINANT Vs. Gopal Bindal S/o Sh. Suraj Bhan, R/o NS-28, Mianwali Nagar, Paschim Vihar New Delhi-110087. ................................. ACCUSED ___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 1 of 17 U/s. 138 Negotiable Instrument Act JUDGMENT
1) Offence complained of : Section 138 Negotiable Instrument Act 2) Plea of accused : Pleaded not guilty 3)Date of institution of the case : 24.02.2014 4) Final order : Convicted. 5) Date of reserving of order for judgment : 23.09.2022 6) Date of final order : 28.09.2022
___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 2 of 17 U/s. 138 Negotiable Instrument Act Brief reasons for decision:
1) The necessary facts for disposal of present case as reflected in the complaint is that the accused alongwith his son namely Sh. Rajat Bindal, constitutes a HUF and he was the Karta of the said HUF. That the accused and his son were involved into the construction business. That the complainant alongwith Smt. Neetu Yadav W/o Sh.
Neeraj Yadav own two plots both measuring 250 sq. yards each out of Khasra No. 278 in the approved/regularized colony known as Hari Singh Park, New Delhi. That the accused alongwith his son had approached the family members of the complainant thereby expressed the desire to carry out the construction of a building on the aforesaid plots in collaboration with the complainant. That after negotiation, a Collaboration Agreement dated 01.02.2011 was executed between the parties, i.e. the complainant alongwith Ms. Neetu Yadav and the accused. That as per the terms of the said Collaboration Agreement dated 01.02.2011, in lieu of constructing a building on the said plot, a floor in the building so constructed was to be given to the accused. That the other floors were to be retained by the complainant and Ms. Neetu Yadav for their use. That as per the understanding, the construction was to be made using best quality material and maintaining finest standards. That during the course of construction, the accused deviated from the agreed specifications, etc and used/employed the material of lesser/inferior grade/specification than what was agreed. That the complainant raised an objection to his using/employing lesser/inferior grade in the construction then the accused and his son promised to compensate the complainant by making payment of amount equal to the difference between the value of the material of agreed grade/specification and the material actually used for the construction by accused. That after the completion of the construction of the building, the accused, initially, avoided making payment of the compensation, as aforesaid, on one pretext or the other, to the complainant. That the ___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 3 of 17 U/s. 138 Negotiable Instrument Act standard excuse frequently used by the accused was regarding a slump in the market due to which buyers for the portion falling to his share were not available and selling the same below the price would result in grave loss to the accused. That initially, the complainant and her family members believed words of the complainant and did not suspect his intentions. That after waiting for too long, the complainant and her family members started putting pressure upon the accused to fulfill his promise. That in November, 2013, the accused approached the complainant and her family members and informed that the accused was not able to find a suitable buyer for the portion falling to his share. That in order to complete the transaction, the accused requested the complainant to execute the sale deed in favour of M/s Gopal Bindal HUF in as much as, that the accused was expecting that after the execution of the sale deed in his favour, the accused would be able to find a willing buyer for the said portion. That the accused told that he was already in negotiation with some prospective buyer. That the accused also offered and stated that a part of the promised compensation would be shown as payment of sale consideration while the rest shall be paid by way of cheque in the name of the complainant. That since the complainant had no other option and by this manner, the accused was hoping to get back her money, the complainant agreed to the said proposal of accused. That in pursuance of the aforesaid arrangement, the accused handed over a cheque bearing no. 282850, which is Ex. CW 1/1, dated 26.11.2013 for an amount of Rs. 7,50,000/- drawn on State Bank of India, Paschim Enclave Branch, New Delhi. That simultaneously, the son of the accused handed over another cheque bearing no. 102161 dated 26.11.2013 for Rs. 7,50,000/- drawn on HDFC Bank, Mianwali Nagar Branch, New Delhi. That the accused and his son requested the complainant to wait for few days before presenting the same then the accused shall make the payment of the money shown as sale consideration under the sale deed and also maintain sufficient funds in the respective bank accounts to honour both the cheques. That the accused and his son ___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 4 of 17 U/s. 138 Negotiable Instrument Act stated and promised that the same shall not take more than a week from the execution of the sale deed. That on or about 2 nd or 3rd December, 2013, the accused sent a draft sale deed for the perusal and finalization by the complainant. That the complainant on finding the sale deed to be in order asked the accused to inform the suitable date for presenting the same at the office of the Sub-Registrar, for registration. That on 06.02.2013, the complainant alongwith the accused reached the office of the Sub-Registrar where the accused brought two sets of documents for signatures of the complainant and resultant registration. That the accused also assured the complainant that the documents are verbatim to the draft which was sent for approval. That the sale deed was executed and registered in favour of the complainant. That after few days, the accused and his son kept on telling that the sale deed was not yet registered and released to the accused. That on or about 13/14.12.2013, the accused asked for presentation of the aforesaid cheques. On presentation by the complainant with its banker, the said cheque was dishonored with remarks "funds insufficient" as reflected vide returning memo dated 16.12.2013, which was Ex. CW 1/2. Thereafter, legal demand notice Ex. CW 1/3 dated 14.01.2014 was served upon the accused calling him to pay the cheque amount but despite the service of the legal notice, the accused has not paid the cheque amount within the stipulated period of 15 days as per NI Act. Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of the Negotiable Instruments Act, 1881.
2) Cognizance of offence under section 138 NI Act was taken against the accused and summon was issued. Notice of accusation u/s 251 Cr.P.C was served upon the accused on 07.06.2019 and plea of defence of the accused was also recorded on the same day in which he had not pleaded guilty and claimed trial. The plea of accused ___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 5 of 17 U/s. 138 Negotiable Instrument Act had also been recorded on the same day. It is stated by accused that the cheque-in- question bears his signature and had filled up the other particulars. It is further stated by the accused that he constructed the building in pursuance of the Collaboration Agreement executed with the complainant and one Ms. Nitu Yadav. It is further stated by the accused that as per the terms of the agreement, he had to bear expenses of the constructions and the complainant and Ms. Nitu Yadav had to execute sale deed of entire first floor in his favour without any consideration. It is further stated by the accused that over and above the cost of construction. It is further stated by the accused that he had to pay Rs. 18,00,000/- to the complainant as collaboration amount. It is further stated by the accused that the said amount of Rs. 18,00,000/- was paid and the building was constructed but the complainant and Ms. Nitu Yadav kept avoiding the execution of the sale deed of the first floor in the favour of the accused and the complainant demanded more amount and under coercion, the accused paid a further sum of Rs. 23,00,000/- to the complainant. It is further stated by the accused that the however, the complainant executed the sale deed of only half of the first floor in favour of the nominee of the accused on 01.06.2012. It is further stated by the accused that subsequently, when the accused parked his car in the common area a dispute took place between them. It is further stated by the accused that a settlement was arrived at as per which the complainant and Ms. Nitu Yadav agreed to execute the two sale deed i.e. one for half portion of the first floor and one for proportionate share in open area but even for this, they were made to pay Rs.27,70,000/- and Rs. 15,00,000/- respectively. It is further stated by the accused that Rs.27,70,000/- was paid in cash and cheques of Rs. 15,00,000/- were given, which includes the cheques-in-question. It is further stated by the accused that the sale deed of the half portion of the first floor was executed on 06.12.2013 but excuses were made for execution of the second sale deed. It is further stated by the accused that he had to issue stop payment instruction for the cheque-in-question.
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3) In post summoning evidence Complainant (CW-1) has been examined as sole complainant witness for proving his version of the case and was duly cross examined by Ld. Counsel for the accused.
4) Thereafter, memorandum of statement of accused u/s 313 Cr.P.C. r/w Sec 281 Cr.P.C.
was also recorded in the case wherein the accused stated that the cheque-in-question bear his signature and he had filled up the other particulars in the cheque-in-question. Accused further stated that this cheque was issued by him to the complainant as the complainant assured him to execute the sale deed of the proportionate share in open area measuring 130 sq. yards. out of which his proportionate area was 32.5 square yards but since after receiving the cheque, the complainant refused to execute the sale deed. Accused further stated that he had to instruct his bank to stop payment. Accused further stated that the legal notice dated 14.01.2014 issued by the complainant through his counsel was duly replied by the accused dated 24.01.2014 through his counsel, which is Ex. CW 1/6. Accused further stated that he do not owe any liability towards the complainant qua the cheque-in-question.
5) In his defence, the accused did examined himself as DW 1 and Sh. Lakshay Garg as DW 2.
6) Thereafter, Learned Counsel for both the parties made detailed final oral submissions on behalf of respective parties before this court.
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7) Ld. Counsel for the complainant contended that the accused has admitted that the dishonoured cheque-in-question bears his signature and legal presumption of consideration u/s 139 of NI Act would act against the accused. It is stated by Ld. Counsel for complainant that the testimony of complainant during cross-examination by Ld. Counsel for the accused is consistent and the accused failed to shake his credibility and veracity. It is further stated by Ld. Counsel for complainant that the complainant entered into collaboration agreement with the accused for construction of the property vide Ex. DW 1/1. It is further stated by Ld. Counsel for complainant that the accused used sub-standard quality of material in the said construction and to compensate the complainant, the accused issued the cheque-in-question. It is further stated by Ld. Counsel for complainant that the accused duly admitted the collaboration agreement Ex. DW 1/1. It is further stated by Ld. Counsel for complainant that accused failed to prove his defence and consequently failed to rebut the presumption raised u/s 139 NI Act. It is further stated by Ld. Counsel for complainant that complainant has very well proved his case and accused shall be convicted in the present case.
It is stated by Ld. Counsel for the accused that it is admitted fact that accused entered collaboration agreement to build her property and as per the said collaboration agreement, the complainant had to transfer the first floor of the said property in the name of the accused. It is further stated by Ld. Counsel for the accused that in the collaboration agreement, it is mentioned that the complainant would transfer the first floor in the favour of the accused without any consideration but the complainant and her sister-in-law took Rs. 50,00,000/- in cash from the accused to get entire first floor of the said property transferred in the name of the accused. It is further stated by Ld. Counsel for the accused that the cheque-in-
___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 8 of 17 U/s. 138 Negotiable Instrument Act question was never given to compensate the complainant for the sub-standard quality of goods used by the accused in construction of the said property as the accused never used the sub-standard quality goods in the construction of the said property. It is further stated by Ld. Counsel for the accused that the cheque-in-question was given to the complainant to execute the registered sale deed in favour of the accused for the proportionate portion i.e. 32.50 sq. yards of the 130 sq. yards as the accused had the equal rights in the open area. It is further stated by Ld. Counsel for the accused that the accused had examined DW 2 Sh. Lakshay Garg to prove the custom of registration of sale deed in the property under collaboration agreement. It is further stated by Ld. Counsel for the accused that during whole cross-examination, the complainant failed to show what sub-standard quality goods were used by the accused for which she alleged that the accused had given the cheque-in-question. It is further stated by Ld. Counsel for the accused that from the perusal of the cross- examination of the complainant, it is very much clear that she had no personal knowledge about the said construction of the said property and all the evidence was hearsay as all the facts were to her by her husband.
8) This is the factual matrix of this case. Let us now examine the legal benchmark which is to be satisfied in order to constitute an offence under section 138 NI Act:
(i) That the persons must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) That the cheque should have been issued for discharge in whole or in party of any debt or other liability.
(iii) That the cheque has been presented to a bank within a period of three months from the date on which it was drawn.
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(iv) That cheque is returned by the bank unpaid because of the amount of money standing to the credit of account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account or any other reason.
(v) That the payee or the holder in due course of the cheque makes a demand for the payment of said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of cheque as unpaid.
(vi) That the drawer of the said cheque fails to make payment of the said amount to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
9) It is only when all the aforementioned ingredients are satisfied, that the person who had drawn the cheque can be deemed to have committed an offence u/s 138 of NI Act.
10) As per section 114, Indian Evidence Act,1872 which is applicable to communication sent by the post, the court are to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted , it is presumed to have been served unless rebuttal is given.
11) Final arguments addressed on behalf of both the parties have been heard and carefully considered along with the entire evidence on record.
12) In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court, held as under: "The accused in a trial under Section 138 of the Act has two ___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 10 of 17 U/s. 138 Negotiable Instrument Act options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
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13) In M.S Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39, the Apex Court dealing with the statutory presumption under Sections 118(a) and 139 of the N. I. Act inter alia held as under:
29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "dis proved" have been defined in Section 3 of the Evidence Act (the interpretation clause)......
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
XXX XXX XXX
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
XXX XXX XXX Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the s standard of reasonability being that of the 'prudent man'."
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14) It is a well settled proposition of law that once execution of Negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the non-existence of a consideration by raising a probable defence. The burden upon the accused 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. To disprove the presumption, the accused 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 non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist.
15) The gist of two above mentioned precedents is that the accused is in trial under Section 138 NI Act is left with two alternatives for his defence. He can either show that consideration and debt did not exist for which direct evidence could be adduced which is seldom available or he can show by relying upon circumstantial evidence that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that prudent man ought to suppose that no consideration and debt existed. It is evident that standard of proof to rebut the statutory presumption is not to prove it beyond the reasonable doubt as required in a criminal complaint. The onus to that effect on the accused is not onerous and what is required is a probable defence which could primarily find its foundation in preponderance of probabilities. In order to raise a probable defence, the accused can also rely on the evidence adduced by the complainant. However, a bare denial of the statutory presumption by the accused will not suffice.
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16) In present case, accused has admitted his signature and account number with respect to cheque-in-question. The case of the complainant is that the accused had issued the cheque-in-question to compensate the complainant for using sub-standard quality goods by him in the construction. The main defence of the accused is that he had given the cheque-in-question to the complainant to execute the sale deed in proportionate share of 32.5 sq. yards in open area ad-measuring 130 sq. yards. The collaboration agreement Ex. DW 1/1 is duly admitted by both the parties. In Para 6 of the collaboration agreement, it is specifically mentioned that the complainant and her sister-in-law namely Neetu Yadav would execute the registered sale deed of the entire built-up first floor in the favour of second party or his nominee, which has been duly executed by the complainant and her sister-in-law namely Neetu Yadav and the said fact is duly admitted by the accused.
In Para 8 of collaboration agreement, it is mentioned that "Second Party's Allocation:-
A) Entire First Floor ALONGWITH 1/5TH UNDIVIDED SHARE/RIGHT together with 1/5th proportionate share/rights in the land underneath."
In the said collaboration agreement, the second party is the accused and as per the said clause the accused has 1/5th undivided share/right in the land underneath in the said property. The complainant and her sister-in-law namely Neetu Yadav had already transferred the entire first floor in the name of the accused as per collaboration agreement which is approximately 370 sq. yards. The open area left in the said property is 130 sq. yards. The 1/5 th of the said open area i.e. 130 sq. yards would be 26 sq. yards and not 32.5 sq. yards as alleged by the accused in his defence and the accused/second party has only right of 26 sq. yards as per collaboration ___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 14 of 17 U/s. 138 Negotiable Instrument Act agreement. Therefore, the proportionate share to which the accused is entitled is only 26 sq. yards. The accused in his defence alleged that the cheque-in-question was given to the complainant for the execution of the sale deed of the proportionate area of 32.5 sq. yards , however, the complainant is not the owner of whole open area of 130 sq. yards and sister-in-law namely Neetu Yadav of complainant is also equal co- owner with the complainant in the open area of 130 sq. yards. The accused failed to prove that how his proportionate share would be 32.5 sq. yards and also failed to prove that how the complainant alone can transfer the proportionate share of 32.5 sq. yards in the name of the accused as her sister-in-law namely Neetu Yadav is co- owner in that open area. Moreover, the accused had failed to file on record any document to show that the complainant had agreed to execute any registered sale deed of the proportionate share amounting to 32.5 sq. yards in the favour of the accused and the same is also not mentioned in the said collaboration agreement. This fact also cannot be denied that it is very well mentioned in the collaboration agreement that the accused has 1/5th proportionate share/right in the land underneath and the complainant and her sister-in-law namely Neetu Yadav had only transferred 370 sq. yards built-up first floor of the property in the name of the accused and for 1/5th proportionate share in open area of 130 sq. yards, the accused had no document in his name which had been executed by the complainant and her sister-in-law namely Neetu Yadav, for which the accused can very well avail the remedies, as per law. Here, the admission of signature and account number has itself creates the presumption u/s 139 of NI Act in favor of 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. 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 ___________________________________________________________________________________ Ct. Cases No. 4409/2016 KAVITA YADAV Vs. GOPAL BINDAL Page No. 15 of 17 U/s. 138 Negotiable Instrument Act raise the probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
17) In the present complaint case, the accused has failed to rebut the presumption raised under section 139 of NI act that such liability do not exist.
18) Ld Counsel for the complainant relied on several judgments. The proposition of law which has been clearly explained in Bir Singh V. Mukesh Kumar dated 06.02.2019 and have been subsequently relied upon by the Apex Court and other Hon'ble Courts is as follows:-
A) That the onus to rebut the presumption u/s 139 of the NI Act that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of the cheque of legal consequences.
B) That the bare reading of the provisions of Section 20, Section 87 and Section 139 of the NI Act makes it amply clear that a person who signed the cheque and makes it over to the Payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for a payment of debt or in discharge of a liability. It has also been held that it is immaterial that the cheque may have been filed by any other person other than the drawer if the cheque has been duly signed by the drawer.
C) Even if the blank cheque leaf voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption u/s 139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of any debt.
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19) In view of above discussions, this court is of considered view that accused has failed to create reasonable doubt over the veracity of story of complainant by balance of probabilities. It is noticeable that the complainant has to prove his case beyond reasonable doubt only when the accused has rebutted the presumption under section 139 NI Act which the accused has failed to do in the present case.
20) In upshot of aforesaid discussion, I return finding of conviction of accused Gopal Bindal for offence u/s 138 of NI Act in this case.
21) Let the copy of judgment be given free of cost to the convict.
22) Let convict be heard on quantum of sentence. Digitally signed by MAYANK MAYANK GOEL Announced in open court GOEL Date: 2022.09.28 15:24:41 +0530 on 28.09.2022 (MAYANK GOEL) MM(NI ACT)-02/West District THC Courts/Delhi
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