Delhi District Court
Colonel M.S. Chauhan vs Neeta Bhalla And Anr. And on 6 February, 2010
page no.1
IN THE COURT OF SH.SANDEEP YADAV, Sr. CIVIL
JUDGE CUM RENT CONTROLLER (SOUTH)
PATIALA HOUSE COURTS, NEW DELHI
CC NO.1525/1
VP GARG
S/O SH,. BIR BHAWAN
R/O 10/355, SUNDER VIHAR,
NEW DELHI87 ... Complainant
VERSUS
1. COLONEL M.S. CHAUHAN
24. BLOCK 1, GANGA COMPLLEX,
SECTOR29,.
NOIDA UP
2. M/S ZEE FINANCIAL SERVICES
24. BLOCK 1, GANGA COMPLLEX,
SECTOR29,.
NOIDA UP
3. M/S AAR ESS EXIM (P) LTD
HOUSE NO.455, SECTOR29,
NOIDA,UP .... Accused Persons
Complaint u/s. 138 of Negotiable Instruments Act
(a) Date of institution : 21.03.01
(b) Date of arguments : 25.07.09
(b) Date of Judgment : 06.02.10
page no.2
JUDGMENT
This complaint u/s 138 of Negotiable Instruments Act was filed by Mr. VP Garg against Colonel MS Chauhan M/s Zee Financial Services, M/s AAR Ess Exim Pvt. Ltd. The case of the complainant simply stated is as under:
2. The complainant, who is a labour contractor entered into an agreement dated 16.01.09 with the accused. Under the agreement the complainant was required to do the assigned work. The complainant demanded the money for the work to be done by him and in terms of agreement between the parties. Accused issued a cheque dated 17.01.01 for a sum of Rs.2 lacs in favour of the complainant. The complainant was assured by the accused that the aforesaid cheque will be cleared as and when presented for encashment. When the complainant deposited the said cheque for encashment in his account maintained with Central page no.3 Bank of India, Nehru Place, New Delhi same was returned unpaid by the bank of the accused with the remarks ''insufficient funds''. Thereafter, the complainant got issued a legal notice dated 07.02.01 which was sent to the accused through Registered AD/UPC. In the said notice the complainant demanded the payment of dishonoured cheque within 15 days. The notice was duly served on the accused on 09.02.01. However, the accused failed to make the payment due on the dishonoured cheque. Against this factual matrix the complainant sought trial and punishment of the accused u/s 138 of the Negotiable Instrument Act.
3. The presummoning evidence was lead. All the accused persons were summoned. Accusation u/s 251 of the Cr.PC were explained to the accused Colonel M.S. Chauhan. Accused pleaded not guilty and claimed trial. Complainant filed his evidence by way of affidavit. Statement of accused page no.4 M.S. Chauhan was recorded u/s 281 Cr.PC. Accused denied all the incriminating evidence. Accused stated that a cheque in question was issued as the mobilisation advance. Accused further stated that when he inspected the site on 17.01.01 he found that mobilisation work has not started.
4. Three defence witnesses were examined. I have heard ld. Counsel for the complainant as well as ld. Counsel for the accused. I have carefully perused the record particularly the evidence led by both the parties.
Section 138 N I Act provides as "Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is honour the cheque or that it exceeds that page no.5 amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years", or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and page no.6
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. "
6. Three persons namely Colonel M.S. Chauhan, M/s Zee Financial Services, M/s AAR Ess Exim have been arrayed as accused in the present complaint. However the complainant has not defined or specified the role of each accused in the complaint. In the complaint the word "accused"
has been written again and again but no specific role has been assigned to any of the accused. Even while stating about the issuance of the cheque it is mentioned in the complaint that accused issued a cheque of Rs. 2 lacs. However, it is not stated which accused issued the cheque. Even in the evidence by way of affidavit of the complainant, the role of all the accused persons have neither been page no.7 specified nor defined. The legal notice Ex.CW1/4 was issued to accused No.1 only. A judgment reported at 2009 (4) Crimes 429 (Bombay) Bombay High Court, it was observed and held in para 5 and 6 as under: ''A perusal of the complaint indicates that the petitioner has not made any specific avernments agaisnt the accused. All that has been stated is ''I say that the accused 1 to 3 are the partners of M/s HG Garments carrying on their business in cloth at the above stated address and residing at the above stated address''. It has then been stated that the accused gave two cheques to the petitioner dated 8.5.1993 of Rs.19,928/ and dated 10.5.93 for Rs.10,054/. It is then alleged that on presentation of the cheques for encashment it was discovered that the accused had directed the bank to stop payment. There is an avernment thereafter in the complaint that the notice was sent on 1.6.1993 to the accused. However, none of the avernments in the complaint point out to the specific role played by any of page no.8 the accused. There is no avernment as to who had signed the cheque nor in thes there an avernment.
As held by the Supreme Court in the case of SMS Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr. and by this Court in Shishir B Desai and Anr Vs. Ceat Financial Services Ltd and Anr that a complaint under Section 138 of the Negotiable Insttruments Act cannot be vague but must disclose the involvement of the accused in the dishonour of a cheque. No such averments are found in the present complaint and are hence, the Sessions Court has rightly discharged the accused. The judgment relied on by the learned advocate for the petiitoner is of no avail.
7. Therefore, the complaint filed by Mr. V.P. Garg fails to disclose the basic ingredient of section 138 of Negotiable Instruments Act.
8. The defence of the accused M.S. Chauhan is that the accused has given the cheque as a security and not in page no.9 discharge of any legally recoverable debt or liability. The complainant in his cross examination deposed that he had started the work after receiving the payment of mobilisation advance on 17.01.01. The complainant admitted in cross examination that cheque was for adjustment after completion of his work. The complainant further admitted in cross examination that the cheque was not given for anything done by him; it was an advance cheque for the work to be done by him from 17.01.01. It is clear from the cross examination of the complainant that the accused issued cheque in question not for discharge of any existing debt or liability but as an advance for the work to be done by the complainant. In other words, the accused has successfully rebutted the presumption raised u/s 139 of the Negotiable Instruments Act. The accused has also proved that the cheque in question was given as an advance payment and not towards the discharge page no.10 of any legally recoverable debt or liability.
9. DW2 Jagdish Chandra Bhalla in his evidence by way of affidavit deposed that on 16.01.01 Colonel M.S. Chauhan, the accused, had entered into an agreement on behalf of M/s.AAR ESS Exim Pvt. Ltd. with the complainant V.P. Garg in his presence at Faridabad. DW2 further deposed that the complainant had agreed to start the work on 17.01.01 on receiving the mobilisation advance cheque for Rs. 2 lacs. Therefore DW2 in his affidavit clearly deposed that the cheque in question was given as mobilisation advance. No further cross examination of DW2 was conducted on this aspect.
10. Ld. Counsel for the complainant relied upon 2008 (II AD Delhi) 251 K. S. Bakshi & Anr. vs. State & Anr. . In this case it was held that ''where a cheque forms part of a consideration under a contract it is paid towards a page no.11 liability.'' In the present case, it has already been established by the accused that the cheque in question did not form part of the consideration under the contract between the partners. Hence the judgement will not advance the case of the complainant.
11. It is clear from the above discussion that the complainant has failed to prove all the necessary ingredients of Section 138 of the Negotiable Instruments Act. The complainant could not prove his case against the accused beyond reasonable doubts. Accordingly the accused is acquitted. Surety stands discharged. File be consigned to the Record Room.
Announced in the open court (SANDEEP YADAV)
on 06.02.10 Sr. CIVIL JUDGE CUM RENT
CONTROLLER(SOUTH)
PATIALA HOUSE COURTS,
NEW DELHI
page no.12
VP GARG VS. COL. MS CHAUHAN
06.02.10
Pr. Complainant in person
Accused on bail.
Vide separate order the accused is acquitted. Bail bonds of accused stands cancelled. Surety is discharged. File be consigned to record room.
SCJ cum RC (S) PHC/ND/06.02.10