Delhi District Court
Suraj Lal Chauhan vs . Dharam Pal on 30 July, 2022
IN THE COURT OF MS. AAYUSHI SAXENA
METROPOLITAN MAGISTRATE (SOUTH) 01,
N.I. ACT, SAKET COURTS : NEW DELHI
CC NO. 13308/2018
SURAJ LAL CHAUHAN VS. DHARAM PAL
1.Complaint Case number : CC No. 13308/2018
2. Name of the complainant : Suraj Lal Chauhan, S/o Nanku Chauhan, R/o F231, Lado Sarai, New Delhi110030.
3. Name and address of the : Dharam Pal, accused S/o Sh. Pratap Singh, R/o House No. A15, Sanjay Colony, Bhati Mines, New Delhi110074.
4. Offence complained of or : Under Section 138 of the proved Negotiable Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Final Order : Acquittal
7. Date of Institution : 05.09.2018
8. Date of Reserving the : 29.07.2022 Judgment
9. Date of pronouncement : 30.07.2022 CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 1 of 17 Judgment:
1. The instant complaint is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act").
2. Succinctly, the chain of facts leading to filing of the present complaint, as has been averred in the present complaint, are as follows:
It has been averred that complainant had purchased the plot bearing no. 7/1, admeasuring 29 sq. yards approximately out of the land of the plot admeasuring 66 Sq. yards, situated at BlockA, Sanjay colony, Bhatti Mines, New Delhi from the accused. It has also been averred that on receipt of sale consideration amount, the accused executed the documents of sale purchase i.e. GPA, agreement to sell, affidavit, will, possession letter and receipt etc dated 06.04.2017, in respect of above said plot, in favour of the complainant and thereafter handed over physical and peaceful possession of the said plot to the complainant. It has also been averred that December, 2017, the accused Dharam Pal approached the complainant with intention to repurchase the said plot and after detailed discussion, the accused re purchased the said plot for a sum of Rs.7,15,000/ from the complainant and consequently, a mutual agreement dated CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 2 of 17 20.12.2017 was executed between the complainant and accused and the accused issued four post dated cheques in favour of the complainant. Out of the said four cheques, the complainant presented cheque no. 094956 dated 20.06.2018 for a sum of Rs.1,95,000/ and cheque no. 094957 dated 20.07.2018 for a sum of Rs.1,95,000/ (cheques in question), which on presentation were returned unpaid by the banker of the complainant vide returning memos dated 25.07.2018, with the remarks 'funds insufficient'. Thereafter, the complainant got issued Legal Demand Notice dated 01.08.2018 within the statutory period of time, through his counsel, but despite service of the said legal notice he failed to pay the cheque amount and aggrieved by the non receipt of payment, the complainant was constrained to file the present complaint.
3. Pursuant to filing of the said complaint, the complainant, filed his pre summoning evidence by way affidavit Ex.CW1/A and has relied upon various documents mentioned therein.
4. Ld. Predecessor of this Court took cognizance of the offence under section 138 NI Act vide order dated 20.02.2019 and ordered for issuance of summons for attendance of the accused.
5. Thereafter, the accused entered appearance on CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 3 of 17 04.05.2019 and he was admitted to bail on that very date. As both the sides submitted that there was a possibility of settlement, hence on the same date, matter was referred for mediation.
5.1 On 04.05.2019 itself, notice under Section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was given to the accused and he was asked whether he pleaded guilty or claimed trial. In reply to this, he pleaded not guilty and claimed trial. In his statement of defence recorded at that very date, he, interalia, stated that he purchased a plot from the complainant with the intention to resale it and had issued the cheques in question to the complainant regarding purchase of the said plot. Accused further stated that he could not resale the plot and therefore, he wished it to transfer back to the complainant. Accused also admitted his signatures on the cheques in question. He denied having received the legal demand notice.
5.2 As the statement of defense of accused revealed a specific defense, hence he was allowed to cross examine the complainant witness under section 145 (2) NI Act.
5.3 Given the nature of the allegations, Ld. Predecessor Court had directed that the case shall be tried as a Summons case under Chapter XX of Cr.P.C.CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 4 of 17
6. On 07.03.2020, CW1 was examined in chief, cross examined and discharged. The complainant closed CE by way of a separate statement
7. After closure of complainant's evidence on 07.03.2020, statement of the accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded on 29.11.2021 whereby circumstances appearing against him in evidence were put to him. While reiterating his said defence, additionally it was stated, interalia that he did not approach the complainant for repurchase of the said plot but the complainant approached him for the same. He further admitted the execution of mutual agreement dated 20.12.2017 between him and the complainant. He further stated that all the papers of property in question were still with the complainant and he was not in a position to sell the property. Further, he also told the complainant to take back the plot, however, the complainant did not do so.
8. Pursuant thereto, on 29.11.2021, the case was fixed for defence evidence. Thereafter, DW1 was examined in chief, cross examined and discharged on 31.05.2022. Accused closed DE vide a separate statement and the matter was fixed for final arguments.
9. Thereafter arguments were heard on behalf of both the parties.CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 5 of 17
10. Before delving into the facts of the present case, it would be apposite to discuss the legal framework regarding the offence under Section 138 of NI Act. The ingredients which are to be satisfied for making out a case under Section 138 NI Act, are being reproduced hereunder:
10.1 First Ingredient: The cheque was drawn by a person on an account maintained by him/her for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
10.2 Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
10.3 Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
10.4 Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 6 of 1710.5 Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
11. Notably, the first, third, fourth and fifth ingredient have been duly proved without there being any real controversy regarding the same:
(a) The complainant has proved the original cheques, Ex.
CW1/3 and Ex. CW1/5, which the accused has not disputed as the same have admittedly been drawn from his account. It is not disputed that the cheques in question were presented within their validity period.
(b) The cheques in question were returned unpaid vide return memos Ex. CW1/4 and Ex. CW1/6 due to the reason, "Funds insufficient".
(c) The complainant has proved on record legal notice Ex. CW1/7 dated 01.08.2018 and accused has even replied to the said notice which is Ex. CW1/10. So, receipt of legal demand notice Ex. CW1/10, is also not in dispute
(d) The fact that the payment was not made within 15 days of the receipt of the legal notice is also not disputed.
12. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheques in question were drawn by the drawer for discharging a legally CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 7 of 17 enforceable debt. In the present case, the issuance of the cheque in question is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118 (a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee [(2001) 6 SCC 16]. Further, it has been held by a threejudge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 [(2010) 11 SCC 441] that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence.
CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 8 of 17The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa [(2019) 5 SCC 418] as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118 (a) and 139, we now summarise the principles enumerated by this Court in the following manner:
1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. 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 they rely.
4. That it is not necessary for the accused to come in the CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 9 of 17 witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
5. It is not necessary for the accused to come in the witness box to support his defence."
13. Let us now see whether the accused has been able to raise a probable defence in his favour and has been able to rebut the said presumption.
13.1 It is the case of the complainant that in the month of December, 2017 the accused had approached him to purchase the abovementioned plot from him. The accused repurchased the said plot for a sum of Rs. 7,15,000/- from the complainant and a mutual agreement dated 20.12.2017 i.e. Mark B was executed between him and the accused. Further it is stated that as per the terms of the mutual agreement, the accused issued 4 post dated cheques, 2 of which are the cheques in question that is Ex. CW 1 / 3 and Ex. CW 1/5, which were dishonored upon presentation and being constrained, the complainant sent a legal demand notice dated 01.08.2018 to the accused, which is Ex. CW 1/7.
The accused replied to the said notice which is Ex. CW 1/10. As per the said reply it has been stated on behalf of the accused that he had clearly told the complainant that he was not in a position to purchase the property and as CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 10 of 17 such the requested the complainant to hand over the cheques given by him and further he instructed the complainant to not present the said cheques. In the para wise reply of Ex. CW-1/10, at point 3 it has been stated on behalf of the accused that the cheques were handed over to the complainant as security for the fulfilment of sale transactions and only at the clearance/saying of the accused, the said cheques were supposed to be presented. Further in the last paragraph of the said notice it has specifically been mentioned on behalf of the accused that the said cheques be returned to him immediately.
At the outset, it is trite to mention that as the mutual agreement dated 20.12.2017, which has been identified as Mark B, has not been disputed by the accused therefore, it is an admitted document and hence the same stands proved.
13.2 Now, it is the defence of the accused that he had purchased the above-mentioned plot from the complainant with the intention of resale and for that he had issued the cheques in question to the complainant. As he could not resell the plot, so he wanted to transfer back the plot to the complainant. He also stated that all the papers of property in question were still with the complainant. When the accused entered the witness box as DW1 on 31.05.2022, he stated that the actual possession of the above said plot was still with the complainant. He further stated that as CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 11 of 17 per para 6 of the mutual agreement Mark B, the present sale purchase deal of the above said plot had not been completed and the complainant had misused the above said cheques.
13.3 Now let us advert our attention to the mutual agreement i.e. Mark B. The said mutual agreement was executed on 20.12.2017 between the complainant, as the 1st party and that the accused, as the 2nd party. Further it has been mentioned in the said agreement that complainant had sold the plot in question to the accused for sale consideration of Rs.7,15,000 and the accused had agreed to purchase the same from the complainant on the terms mentioned therein i.e. Rs 15,000 had been given by way of cash on 15.08.2017, i.e. before execution of the mutual agreement Mark B , and 4 postdated cheques were given by the accused to the complainant.
13.4 Let us now come to the legal demand notice dated 01.08.2018, Ex.CW1/7, sent on behalf of the complainant to the accused. Pertinently, the said notice is silent about the possession of the abovementioned property and the execution of any documents in favor of the accused. Now, when CW1 was cross examined by Ld. Counsel for the accused, a question was put to him, to which he replied that "the accused had issued towards the payment of the remaining sale consideration and had stated that the said PDC would be encashed after a few months after he CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 12 of 17 would arrange funds. However, the accused upon his assurance got all the documents executed from me and took the possession of the same but failed to pay the remaining amount toward the 4 PDCs".
So, it was only at the stage of cross examination of CW1, that any whisper of possession of the property and execution of documents was made. Neither the legal demand notice Ex. CW1/7 mentions the same nor the present complaint. So, this oral testimony of CW1 seems to be an afterthought of the complainant and must be rejected.
13.5 Now, let us turn our attention towards Para 2 of mutual agreement Mark B. As per the same, the accused had to pay the balance amount to the complainant before 20.09.2018 or before sale deed and further para 6 mentions that only after full and final settlement of sale consideration, the complainant was to handover the vacant physical possession of the property to the accused, to execute the relevant documents and also to get the property registered in the name of the accused. So, as per complainant's own case, the sale was not completed at the time when the legal demand notice Ex. CW1/7 was sent to the accused on 01.08.2018. There were two other cheques which had to be encashed in the months of July and September ,2018. So, sale would have been completed once the above conditions stood fulfilled. If the cheques CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 13 of 17 in question had been dishonored, then the complainant could have cancelled the agreement or could have taken recourse to Point 10 of the mutual agreement i.e. he could have forfeited the advance amount. But, for the reasons best known to him, he did not do the same.
As already discussed above, the accused, by way of reply to legal demand notice has stated that the cheques in question were given to the complainant as security for fulfillment of the sale transaction. Also, it is the defence of the accused that he could not resell the plot, as property papers were with the complainant and he did not have money so he told the complainant to take back the plot. When the accused entered the witness box, he stated that as per the mutual agreement, the sale purchase deal of the above said plot had not been completed and the complainant had misused the cheques in question.
From the ongoing discussion, the it is clear that the complainant has taken different stands at different points of time, which creates a doubt in his case. Moreover, the defence of the accused seems to be probable, that at the time of dishonour of the cheques in question, as also on the date when the legal demand notice was sent to him by the complainant, the sale of the property was not complete.
13.6 It is also pertinent to note here that when CW1 was CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 14 of 17 cross-examined by Ld. counsel for the accused on 07.03.2020, he stated that "accused had represented that the payment towards the 4 cheques would be encashed after I would execute the relevant documents before 20/09/2018 and the balance payment as per the 4 cheques would be made after the execution of the same and the same has been mentioned as Mark B". This oral statement of CW1 is contradictory to the documentary evidence, Mark B, because as per Point 6 of Mark B, the transfer of vacant physical possession of the property as well as execution of documents, was to be done only on full and final settlement of the sale consideration.
Now, as per CW1's deposition, he had executed all the documents in favour of the accused and after execution of the same, the physical possession was handed over to the accused. Pertinently, no such document has been placed on record by the complainant showing that the said property had been transferred in the name of the accused. Neither any photo copy of the said documents has been placed on record by the complainant. Moreover, it is hard to believe that without even receiving the sale consideration amount, the complainant would hand over the possession of the property to the accused and would not even keep any documentary proof regarding the same. The story put forth by the complainant seems to be highly doubtful and unreliable as no prudent person will transfer CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 15 of 17 his property in favour of another person, without receiving the entire sale consideration and without keeping any documentary proof in that regard.
14. In Kali Ram v. State of Himachal Pradesh [(1973) 2 SCC 808], Khanna, J., speaking for the 3Judge Bench, held:
"One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 16 of 17 consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."
Conclusion
15. In view of the above discussion, I am of the considered opinion that complainant has failed to establish his case beyond reasonable doubt and accused has been successful in rebutting statutory presumptions arising against him by raising a probable defence. Accused Dharam Pal, is hereby acquitted for offence punishable under Section 138 NI Act. Copy of this judgment be given free of cost to both the sides.
Announced in the open Court on 30.07.2022 (Aayushi Saxena) Metropolitan Magistrate01 (South), NI Act/Saket/New Delhi/30.07.2022 CC No. 13308/2018 Suraj Lal Chauhan Vs. Dharam Pal Page 17 of 17