Delhi District Court
Lalit Singh vs Dinesh Raj Sharma on 9 October, 2018
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
LALIT SINGH VS DINESH RAJ SHARMA
CC No. 468546/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 468546/2016
(2) Name of the complainant : Lalit Singh
S/o Sh Braham Singh
R/o House No. 204, Village
Asola, Fatehpur Beri,
New Delhi-110074
(3) Name of the accused, : Dinesh Raj Sharma
parentage & address R/o Sh Mahesh Chand Sharma
R/o House No. 58, Village Asola
Fatehpur Beri, New Delhi
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : ACQUITTED
(7) Date of Institution : 14.11.2011
(8) Date on which reserved for
judgment : 05.09.2018
(9) Date of Judgment : 09.10.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 1 of 14 2 that accused works for levelling and excavation of land as well as for removal of waste/debris under the name & style of "DRS Constructions". Accused had undertaken job work of M/s Era Infra Engg. Ltd to level & excavate the land and remove the waste/debris for and on behalf of its sub contractor at its site at Suchna Bhawan, New Delhi for which job the accused engaged the complainant w.e.f. October 2010 to December 2010. In order to pay the outstanding dues of complainant, accused issued cheques bearing nos. 000028 & 000029 each for a sum of Rs1,17,000/- both dated 24.06.2011 drawn on Kotak Mahindra bank, branch Defence Colony, New Delhi (hereinafter "the cheques in question") which on presentation got dishonoured with remarks "Funds Insufficient" vide memo dated 26.09.2011. Thereafter, a legal demand notice dated 08.10.2011 was sent to the accused through regd. AD post and despite that payment of the cheques in question was not made by the accused within the stipulated time of 15 days. Hence, the instant complaint.
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1/G was filed by the complainant. In his affidavit of evidence ExCW1/G, the complainant reiterated all the averments made in his complaint and relied on documents which are original cheques in question Ex.CW-1/A & B, their return memo dated 26.09.2011 Ex.CW-1/C, office copy of legal notice dated 08.10.2011 Ex.CW-1/D, postal receipt ExCW1/E and the complaint ExCW1/F. After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 16.11.2011.
Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 2 of 14 3
3. Accused appeared pursuant to issuance of BWs and notice U/s 251 CrPC was served upon the accused vide order dated 29.07.2013 to which the accused pleaded not guilty and claimed trial. Accused stated that he had not given the cheques in question to the complainant for any legal debt due towards him. He had handed over the said cheques to the complainant with respect to separate land deal which was entered into with him, the complainant and one Ms Kamna Chauhan. Accused stated that he had not hired the complainant for any excavation work. No such transaction had taken place and he had no liability against cheques in question.
4. Thereafter, considering the defence of accused taken to notice U/s 251 CrPC, on oral request of accused, accused was given opportunity to cross examine complainant and his witnesses.
5. Complainant examined himself as CW-1, Subhash as CW-2, Nasir Ali as CW-3 and Yogesh Sharma Senior Executive, JMC Project India Ltd as CW-4 in his evidence. Complainant was duly cross examined by Sh Lalit Singh, Ld Counsel for the accused. CW-2 & CW-3 were duly cross examined by Sh Kapil Gulati, Ld Counsel for accused. CW-4 was duly cross examined by Sh Amit Tanwar, Ld. Counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 25.11.2017.
6. Thereafter, the plea of the accused Dinesh Raj Sharma u/s 313 r/w 281 CrPC was recorded vide order dated 09.01.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused denied availing of any services of complainant nor complainant had Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 3 of 14 4 done any work on his behalf. Accused further stated that the cheques were given to the complainant for some land transaction and complainant was mediator in the transaction. It was a transaction related to sale/purchase of plot of 300 sq yards situated just opposite to the house of complainant and in pursuant to the said transaction, he had paid Rs02 lacs by way of RTGS to one Ms Kamna Chauhan who was neighbor of complainant. Accused further stated that he has no legal liability to pay the cheques amount to the complainant. Accused further stated that he had not received the legal notice. Accused further stated that the record of CD ExCW1/X1 was forged & fabricated and he had never called the complainant for any settlement at his home.
Accused further expressed his desire to lead defence evidence on his behalf.
6. Thereafter, matter was listed for DE and accused examined himself as DW-1 who was duly cross examined by Sh. Arun Bhushan, Ld. Counsel for the complainant. No other defence witness was produced by the accused and thus, DE was closed vide order dated 03.07.2018 and matter was fixed for final arguments.
7. Sh Arun Bhushan, Ld counsel for complainant has addressed oral arguments on behalf of complainant and Sh Dushyant Sisodia, Ld counsel for accused has addressed oral arguments and has also filed written arguments on behalf of accused.
By way of oral arguments, Ld counsel for complainant has reiterated the facts stated the complainant. It has been argued that the accused Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 4 of 14 5 has admitted issuance of cheques in question and he has only disputed that cheques were given for some other transaction and not for excavation work. However, during cross examination of complainant by way of suggestions, accused admitted that work was given to the complainant by the accused. Further, the accused has not put his defence taken to the notice U/s 251 CrPC, to the complainant by way of suggestions. Further, no details of deal or particulars of land were given by the accused so as to corroborate his plea that complainant was anywhere involved in the transaction between complainant, accused and Kamna Chauhan. Further, it has been argued that if complaint can be filed by the accused with respect to cheating of Rs02 lacs against Kamna Chauhan then why accused has not filed any complaint against complainant as to misuse of cheques in question. Further, during his testimony, complainant had produced one CD which is ExCW1/X1 and in the said CD, accused has admitted that he has to make the payment to the complainant and complainant has also deposed that after recording the CD, when accused came to know about the said recording, accused threatened the complainant of dire consequences. It has been further argued that complainant has duly proved the CD. The legal notice was sent to accused on correct address. Further, complainant has produced 03 witnesses in support of his case. Further, Ld counsel for complainant has pointed out towards the testimony of CW-2, CW-3 & CW-4 and has argued that all these witnesses have duly proved that accused has appointed the accused as Sub Contractor for the job work of levelling of land and removal of waste & debris from the site at Suchna Bhawan, ND from October 2010 to December 2010. The Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 5 of 14 6 testimonies of all the four CWS have remained unrebutted. It has been further argued that to prove his defence, accused has examined himself as DW-1 but accused could not prove his defence. Thus, the testimony of complainant has remained unrebutted and no major contradiction is there in the testimony of the complainant while has accused has failed to prove his defence. Counsel for the complainant has relied upon the judgments of : M/s Gurdyal & Sons vs M/s J M Prakashan Pvt Ltd & Ors. and C C Alavi Haji vs Palapetty Muhammed & Anr. Appeal (Crl.) 767 of 2007.
On the other hand, by way of oral arguments, Ld counsel for the accused has reiterated the written arguments and has argued that accused has been able to prove that he has no liability to make the payment of cheques amount. The accused is required to show only a probable defence and accused has been able to discharge his part of burden of proof while complainant failed to prove his own case, therefore, the accused is liable to be acquitted. Counsel for the accused has relied upon the judgment of : Kumar Exports vs Sharma Carpets (2009) 2 Supreme Court Cases 513.
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 6 of 14 7 banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. In the case at hand, the issuance of cheques in question and its dishonour are not in dispute. Accused has taken the defence that he has not received the legal notice and he did not have the legal liability to pay the cheques amount to the complainant.
11. Now, this Court shall deal with the defences of the accused one by one.
11A. FIRST DEFENCE - NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he did not receive the legal notice of demand dated 08.09.2011 ExCW1/D. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice of demand. The complainant has alleged that the legal notice of demand dated 08.09.2011 ExCW1/D was sent to the accused through speed post on 08.09.2011, receipt of which is Ex.CW1/E. A2. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court 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. In the present case, no evidence in rebuttal has been led by the accused. A3. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 7 of 14 8 of 2007), the Hon'ble Apex Court has held --
"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 u/s. 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 u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
A4. In the present case, accused has been served on the same address which has been mentioned in the bail bonds furnished by the accused on 19.02.2012 and moreover, on the same address accused has been served with the summons of the present complaint. Thus, in view of the above said dictum of the Hon'ble Apex Court and above discussion, this court holds that the legal notice dated 08.09.2011 ExCW1/D was served on the accused.
11B. SECOND DEFENCE - CHEQUES IN QUESTION NOT BEING GIVEN AGAINST ANY CONSIDERATION B1. It is the case of complainant that accused was working under the firm namely DRS Construction and accused took the job work from M/s Eth Infra Engg. Ltd to level and excavate the land and remove wasted & debris as Sub Contractor at the site of Suchna Bhawan, ND. In order to complete this work, accused engaged the complainant who completed the work and accused issued Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 8 of 14 9 cheques in question to make the part payment towards the outstanding for the job work done by the complainant.
On the other hand, as per accused, he had given the cheques in question to the complainant without filling the name of drawee/payee and date for the purpose of land deal between complainant, accused and Ms Kamna Chauhan and he has not hired the complainant for any excavation work. B2. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may 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. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
B3. Now, to prove his defence, accused has cross examined the complainant. The complainant deposed that :
"I run my business of levelling and excavation of land in my personal name. I know the accused since childhood and we had studied till class 7 th together. The project/work in question started in October 2010. It was pertaining to digging of basement at Suchna Bhawan which was awarded by ERA Infra Engineering Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 9 of 14 10 Ltd to the accused. It is correct that the accused got the contract to work from ERA Infra and further sub contracted the same to me. NO work order was issued to me by the accused. Vol : Since the accused was known to me, it was verbal. No bills were issued by me in respect of work done from October to December 2010. Digging machine and truck are used in such work. No labour is involved in such work. Driver and operator used to operate the trucks and the digging machine and those drivers and operators belonged to me. I used to maintain the record of the machines and trucks sent on the site. The machines used at the said project was hired by me. In the year 2010, I have also worked in direct contract with ERA infra. It is correct that besides ERA, I have worked with other companies as well. I have not filed ITR for the year 2010-2011 and kept no record of the annual income for that period. I am not an income tax payee. I know Ganga Bishan as he also worked at the same site. I am aware that accused has filed a complaint case before the police in the PS Fatehpur Beri against me. The same is regarding a property deal with one Kamna Chauhan wherein the accused had made some payment on inducement of the complainant. In that property deal, neither the sum of rs02 lacs which was paid by accused as token money was received back by the accused nor the sale and purchase papers were executed in the name of the accused by Kamna Chauhan as well as by the complainant. It is wrong to suggest that the cheques in question in the present case were handed over to the complainant in regard to the above said property deal. It is wrong to suggest that total five cheques were given by the accused to me in regard to the above said deal. It is wrong to suggest that out of those five cheques, two cheques were misused by me and other three cheques were misused by other persons. It is correct to suggest that the payee's details and the date on the cheque were not written by the accused and the same were filled up by me. ".
Thus, during cross examination, complainant corroborated the defence of accused to the extent that there was a property deal between accused and Kamna Chauhan wherein accused paid Rs02 lacs as token money on Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 10 of 14 11 the inducement of complainant and even a complaint regarding the same filed by the accused against complainant is pending and till date, neither the token money has been returned to the accused nor documents have been executed in his favour and complainant further corroborated the defence of accused that the details of payee and date on the cheque were written by the complainant. Thus, the initial burden has been discharged by the accused and now the onus shifts upon the complainant to prove the liability of accused. B4. The complainant has relied upon CD ExCW1/X1 and has deposed that accused in the CD has admitted his liability qua the transaction in question. Perusal of record shows that Certificate U/s 65B Indian Evidence Act has not been annexed with the CD. Further, the complainant has neither reiterated the facts/conversation recorded in the CD during his deposition/examination in chief nor the transcript placed on record has been exhibited. Further, complainant has not even deposed that the transcript placed on record is the true replica of conversation/facts recorded in the CD. Further, complainant has not even disclosed the exact date or month when the said conversation which is recorded in CD had taken place nor he has deposed as to when he prepared the CD and through whom. Further, the complainant has not even deposed as to where the conversation recorded in CD has taken place nor complainant has produced the mobile phone through which recording was done.
Thus, merely by putting a CD on record, cannot prove the CD or its contents ipso-facto. Moreover, the CD was not even put to accused during his cross examination and no opportunity was adduced to accused to give any Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 11 of 14 12 explanation regarding the conversation recorded in CD during cross examination. Thus, the CD is of no help to the complainant to prove his case. B5. Further, the onus to quantify the liability of accused to pay the cheques amount is also upon the complainant. The complainant has not filed any statement of accounts or bills raised for the work done by the complainant towards the job work given by accused. During cross examination, complainant deposed that he used to maintain the record of machines and trucks sent on the site but even that record has not been produced by the complainant. It is humanly not possible to remember the exact dates and quantum of work done on each and every date for the work done for 03 months without keeping any written record at all. Further, complainant has examined Sh Subhash as CW2 who has deposed that the truck of his father was hired by the complainant for the purpose of removing debris and waste malba on behalf of accused and he used to remove the debris and waste malba from the site by using the said truck and he had given accounts about the trips and accordingly, complainant used to make the payment in cash. The said witness himself has stated that he used to give accounts to complainant but neither the complainant has produced the said record nor CW2 has produced any such record. Further, complainant has examined Sh Nasir Ali as CW3 who has deposed that his truck was hired by the complainant for the purpose of removing debris and waste malba on behalf of accused and he used to remove the same from the site and used to give bills for payment to the complainant in the name of accused. The bills ExCW3/B & C have been issued by CW3 in name of accused but the payment has been made to him Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 12 of 14 13 by the complainant. There is nothing in these bills to establish that the bills were issued by CW3 for the work hired by the complainant on behalf of accused. In the record/bills, it could have been mentioned that bills have been issued in name of accused but the work has been done through the complainant. The court here is not adjudicating whether the work was done or not but the court is adjudicating whether the work was done by complainant on behalf of accused. However, record is not supporting the plea of complainant. Similarly, accused has examined Sh Yogesh Sharma, Senior Executive, JMC Projects India Ltd as CW4 who has produced the record ie bills & statement of accounts for the work done by accused to JMC Projects. However, during cross examination, this witness has admitted that the bills produced by him are related to site JPT at Dhankor, Formula I, Race I, UP. Thus, the bills/record is not pertaining to the work done by the accused on the site of Suchna Bhawan, New Delhi and therefore, the testimony of CW4 is not of any help to the complainant. B6. The accused has examined himself as DW1 and he has reiterated his defence that he had handed over cheques in question to complainant regarding land deal with Kamna Chauhan and he had not hired the complainant for any excavation work. The testimony of accused has remained unrebutted.
12. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have been rebutted by the accused by preponderance of probabilities, whereas the complainant has failed to prove his case beyond all reasonable doubts. Resultantly, this court finds the accused Dinesh Raj Sharma Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 13 of 14 14 s/o Sh Mahesh Chand Sharma not guilty for the punishable U/s 138 N I Act. Hence, he stands acquitted.
13. Further, accused is directed to furnish bail bonds and surety bonds in the sum of Rs.25,000/- U/s 437(A) CrPC and is directed to be present before the Ld Appellate Court as and when notice is served upon him.
14. File be consigned to record room after due compliance. Announced in the open court on 09.10.2018 (PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Lalit Singh vs Dinesh Raj Sharma CC No. 468546/2016 Page 14 of 14