Delhi District Court
Satbir Singh vs . Parveen Kumar Page 1 Of 22 on 17 December, 2015
IN THE COURT OF SHRI DEEPAK KUMAR, MM03 (NI ACT) SOUTHWEST DISTRICT: NEW DELHI C.C No. 936/15 Unique case ID No. 02405R0121182013 under Section 138 of N.I. Act In the matter of : Sh. Satbir Singh, S/o Sh. Dharam Singh, R/o 37, A2 Block, Dharampura Extn. Najafgarh, Delhi110043. ...Complainant Verses Shri Parveen Kumar S/o Sh. Sudershan Kumar R/o RZ239, Dharampura, PartI, Najafgarh, New Delhi110043. ...Accused CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 1 of 22 Date of Institution : 13.05.2013 Date of judgment : 16.12.2015 J U D G E M E N T
1. Vide this judgment, I shall dispose off the present complaint under section 138 Negotiable Instruments Act (hereinafter referred to as the 'N I Act') filed by the complainant against the accused.
2. The case of the complainant is that the accused is a property dealer and running the property business under the name and style of Jai Guru Dev Property situated at Dharampura, Najafgarh, Delhi. It is averred in the complaint that accused approached the complainant to sell out his two plots, one belonging to the complainant and another belonging to his brother Sh. Rajender Singh and told that the plots of the complainant comes under the acquisition for new road, which can fetch some handsome profit and further assured to show some other cheaper plots to the complainant. Believing his words, complainant agreed to sell his plots through the accused and received Rs. 2.50 lacs as profit from accused who sold the plots for a total sum of Rs. 32,00,000/ to some other persons. However, as per the complainant, the accused neither paid the remaining amount nor offered him other plots as CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 2 of 22 agreed by him despite of being asked for the same.
3. It is further mentioned by complainant that subsequently, after several requests, accused brought a Bayana receipt dated 21.07.2012 and told the complainant that one of his friends namely M.S. Nain wants to sell his plot situated at 63, Khasra No. 46/4, Dharampura, A1 Block, Najafgarh, Delhi110043 for a total sum of Rs. 46,00,000/ and requested him to purchase the same by telling that he had already paid Rs. 13,00,000/ to M.S. Nain as Bayana / Earnest money. Believing upon his words, complainant signed the Bayana receipt dated 21.07.2012.
4. It is further mentioned in the complaint that after having taken three months time to execute the documents of the said plot, accused informed the complainant that he has given Rs. 19,00,000/ to M.S. Nain from his own pocket as he owed Rs. 32,00,000/ of the complainant from the plot sold through him and only the amount of Rs. 14,00,000/ is to be paid by the complainant in three months to M.S. Nain. Thereafter accused approached the complainant in the month of August, 2012 and requested him to purchase his plot situated in Dharampura for a total sum of Rs. 10,00,000/ and on his assurance, complainant paid Rs. 10,00,000/ to the accused and consequently, accused executed the relevant CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 3 of 22 documents in favour of the complainant on 17.08.2012. On 18.08.2012,accused again executed fresh documents in favour of the complainant by stating that plot number has been wrongly mentioned in the previous documents executed on 17.08.2012
5. It is further averred that, having noticed the difference in signatures on the documents dated 17.08.2012 and 18.08.2012, complainant sensed something wrong and thus, proceeded to find out the plot sold by the accused to the complainant in the area of Dharampura but complainant did not find any such plot there. After being intimated about the said fact,accused sought some time to make the payment. Thereafter, in the second week of October, 2012, when complainant met with M.S. Nain for execution of the documents, then he told the complainant that he did not execute the documents in his favour as accused has not made any payments to him. The said fact was brought to the knowledge of the accused. By showing some remorse, accused promised to make the payment after sometime.
6. It has further been averred that thereafter, on repeated requests and putting pressure upon the accused, in order to discharge the said liability, accused issued a Post Dated Cheque bearing no. 003016 dated 26.02.2013 for a sum of Rs. 40,00,000/ CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 4 of 22 (Rupees Forty Lacs Only) drawn on Bank of Maharashtra, Najafgarh Branch in favour of the complainant which was dishonoured vide cheque returning memo dated 20.03.2013 with the remarks "FUNDS INSUFFICIENT". Thereafter, the complainant sent a legal demand notice dated 30.03.2013 on the same day through his Counsel to the accused by way of Registered Post. However, as per the complainant, despite service of the said legal notice of the demand, the accused failed to pay the aforesaid dishonored cheque. Hence, the present complaint.
7. The cognizance of the offence under section 138 Negotiable Instrument Act, 1881 was taken by the Ld. Predecessor Court and accused was summoned vide order dated 22.05.2013. The said accused appeared in the Court and was admitted to Bail. Separate Notice u/s 251 Cr. P.C., explaining the acquisition against accused u/s 138 Negotiable Instruments Act, was framed on 22.10.2013, to which he did not plead guilty and claimed trial.
8. An application filed by the accused u/s 145(2) of the Negotiable Instrument Act, seeking crossexamination of the complainant's witness was allowed vide order dated 31.01.2014. Accordingly, accused was given opportunity to crossexamine the complainant. Vide order dated 20.09.2014, CE was closed. CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 5 of 22 Statement of accused u/s 313 Cr.P.C was recorded on 07.01.2015. Further, accused examined DW1 and DW2 in his defence evidence. DE was closed vide order dated 07.10.2015.
9. It is well settled position that to constitute an offence under S. 138 N.I. Act, the following ingredients are required to be fulfilled:
(i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that 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;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 6 of 22 agreement made with the bank;
(v) the payee or the holder in due course of the cheque 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. Being cumulative, 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 under Section 138 of the Act.
11. I have heard both the parties and gone through the record.
12. At the outset it appears relevant to discuss the CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 7 of 22 provisions of Section 118 of the NI Act which inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability . The said presumptions are rebuttable in nature.
13. In Rangappa vs. Sri Mohan 2010 V AD(SC), three Judge Bench of Hon'ble Supreme Court held that section 139 raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This presumption is rebuttable presumption and it is open to the accused to raise a defense wherein the existence of legally enforceable debt or liability can be contested.
14. It has been held in M/s Kumar Exports v. M/s. Sharma Carpets, 2009 A.I.R. (SC) 1518 that the accused may rebut these presumptions by leading direct evidence and in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 8 of 22 accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
15. As, discussed above, it becomes amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. Or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed. In the first situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant.
16. So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above if an accepted signed cheque has been produced by the complainant, then there cannot be any inherent lacuna in the existence of liability. But then definitely accused can create some loopholes in the story of the complainant by impeaching the credit of witness during the cross examination. The strength of standards on the accused is not as high as placed and desired from the complainant. Accused can CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 9 of 22 discharge its burden by demonstrating the preponderance of probabilities coming in its way.
17. Now coming to the present complaint case, there has been two fold defence of the accused. Firstly that the accused does not owe any liability towards complainant and secondly that the cheque in question has been taken by the complainant by putting accused under fear and force. I am proceeding to examine the same in the reference of facts and circumstances of the present case.
18. Accused has been consistent in denying his liability towards complainant. It has been argued by Ld. Counsel for accused that throughout the trial complainant has been in practice of manufacturing the unsubstantiated story and thus his deposition should not be relied upon. It has been further argued that complainant has not examined any witness to prove the transactions in question. In order to amplify and qualify his submissions,he pointed towards the sheer contradictions getting reflected in the different versions of the complainant. However, same has been vehemently denied and disputed by the opposite counsel. I proceed to consider the same in the reference of the facts and circumstances of the present case.
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19. During crossexamination complainant was found shifting his stand quite leisurely and with surprising impunity. At one stage he deposed that he does not file any income tax return, however, later on he conceded to be an Income Tax Payee since 1988. He further contradicted himself by deposing first that he never entered into any sale purchase deal of any plot, then by stating that I have executed documents of both the plots in favour of the purchaser and signed all the documents. Similarly, in his complaint he has mentioned the execution of several documents in respect of the sale and purchase of the plots.
20. Again, startlingly he went on to depose that he is not the owner of the both of the plots in question. Then the relevant question emerges as to how complainant managed to sell the said plot in favour of the accused without having its ownership. Even by assuming and not admitting that he was acting as middle man or just as a facilitator, then how could he validly assert to have the entire claim got transferred in his favour. It is further relevant to note that during cross examination, complainant materially contradicted his averment made in the complaint by deposing that he never visited the plots in question whereas he stated in his complaint to have visited the plots in Dharampura after having sensed something wrong.
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21. In these circumstances the onus was on the complainant to examine the relevant witnesses. The actual owner of the plots in question could have been prayed to be examined which could have been instrumental in turning the tide in his favour. However by choosing not to do so, he has invited inevitable adverse inference to be drawn against him. Moreover during cross examination, complainant claimed to have executed the registry/attorney of his plot in favor of the someone namely J.B Sangwan and one Deewan Chand. He further went on to depose that after having received the payment, he executed the documents in favour of the said persons. The said version/admission materially contradicts the complainant regarding the alleged liability of the accused towards the complainant.
22. The evading and prevaricating approach of the complainant was quite evident throughout his cross examination. During his crossexamination, complainant's statements appeared to be full of convections and conjectures. Complainant found shifting his stand quite frequently and giving incongruous and incredulous answers to the questions put to him by the Ld. counsel of the accused. He remained inconsistent and discrepant. He was found introducing and inventing new facts at surprising frequency and at his own convenience. In these circumstances, complainant has lost CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 12 of 22 all his credibility to depose as a witness. Ld. counsel of accused has been able to successfully and decisively impeach the credibility of the complainant as a witness in the present case.
23. It further assumes significance and relevance to note that during his cross examination, complainant has himself admitted that he has not mentioned the transactions of the deal in question in his income tax return despite of being an Income Tax Payee since 1988. In this regard, Ld. Counsel for accused has placed his reliance upon the judgment of Hon'be Supreme Court in the case titled as K. Subramani vs. K. Damodara Naidu 201591) JCC (NI) 23.
24. In K. Subramani (supra), Hon'ble Supreme court has held that conclusion of the trial court has been arrived at on proper appreciation of material evidence on record by taking note of the following facts: "9. In the present case the complainant and the accused were working as Lecturers in a Government college at the relevant time and the alleged loan of Rs.14 lakhs is claimed to have been paid by cash and it is disputed. Both of CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 13 of 22 them were governed by the Government Servants' Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs.5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chiefexamination of the complainant, there is any averment with regard to the sale price of site No.45. The concerned sale deed was also not produced. Though the complainant was an incometax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his incometax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs.1,49,205/ from L.I.C. It is pertinent to note that the alleged loan of Rs.14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 14 of 22 substantiate his claim. The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which she has stated that the present appellant/accused had not taken any loan from her husband. On a consideration of entire oral and documentary evidence the trial court came to the conclusion that the complainant had no source of income to lend a sum of Rs.14 lakhs to the accused and he failed to prove that there is legally recoverable debt payable by the accused to him".
25. In view of the above and considering the fact that admittedly, complainant was Income Tax Payee and thus in the backdrop of the facts and circumstances of the present case, the said amount was substantial enough to be deserved to be mentioned in IT Return and hence by not showing the same in his IT return, complainant has made his entire claim doubtful.
26. It has also been defence of the accused that cheque in question has been obtained forcefully by the complainant. Same has been controverted by the complainant. Let's examine the CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 15 of 22 same in the reference of facts and circumstances of the present case.
27. Throughout the trial, accused remained steadfast in his claim that cheque in question has been taken by putting him under pressure and threat. To substantiate his claim, accused has filed two documents i.e Ex.DW1/A and Ex.DW1/B which are the complaint made to the concerned police authority regarding the forceful seizure of the cheque in question by the complainant. Complaint made to the SHO, P.S Najafgarh, New Delhi is of dated 05.02.2013 which is prior to the date of filing the present complaint case. The said documents have not been disputed by the complainant. Accused has also examined DW2 who substantiated the version of the accused by deposing that accused has nothing to do with the transactions in question and complainant has forcefully obtained the cheque in question from the accused by constantly nagging and pressurizing him. DW2 stated to have signed the Bayana Reciept i.e. Ex. CW1/7 as a witness. Same was not disputed. DW2 remained consistent in his deposition and nothing adverse could be extracted from him so as to discredit or impeach his credibility in its entirety.
28. In view of the attending circumstances of the present case, as discussed and decided above, the version of the accused CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 16 of 22 appears to have some silage in fueling and furthering his defense as he has been quite diligent and reasonable in swinging into action immediately by lodging the complaint against the complainant.
29. It also appears relevant to note here that its quite normal for ordinary prudent person to remain diligent and vigilant while humoring into financial transactions. In ordinary course of human nature, money matters are considered sensitive matters which demands alert and attentive attendance of human psyche. Here in the present case, when a huge amount of money has been alleged to be involved, it was all natural for the complainant to come forth with reliable and credible evidence. But, much to the detrimental of their own case,complainant has remained inert and inactive in bringing forth any plausible evidence to win over the confidence of the court. Complainant has failed to aver the exact date on which cheque in question was handed over to him. Neither the place, where the impugned cheque was handed over, was mentioned in the complaint. Complainant was also found amiss in examining any witness before whom alleged cheque was given or the alleged transaction happened. The conspicuous absence of any plausible explanation regarding said fatal omissions makes the entire case of the complainant doubtful.
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30. In M/s Pine product Industries & Anr. Vs. R.P Gupta & Sons & Anr. 2007(10 JCC (NI) 28, when accused pleaded that his cheque was misused and he had no liability to pay any amount, then keeping in view the fact that complainant had given no details what were the liabilities of the accused, what was the amount for which cheque was issued as a part payment, on which date and what amount was given to the accused at what rate, what was the extent of the goods which were adjusted against some payments, Hon'ble Delhi High court held that presumption of liability has been rebutted by the accused so he is liable to be acquitted.
31. In C. Santhi vs. Mary Sherly And Anr.
decided on 30.06.2011, Hon'ble High Court of Kerala while considering the issue of difference between execution and issuance of cheque,has held as follows: "On consideration of the various aspects and provisions of the Act,I am of view that the contention raised by a accused in a prosecution under section 138 of the act that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 18 of 22 blank cheque leafs very often referred to as a blank 'cheque',but strictly speaking it is not a 'cheque', as defined under the Act. It can be treated only as a containing admitted signature of the accused. The admission of signature on cheque leaf alone will not constitute admission of execution of the cheque. The argument that accused admitted 'execution of the cheque in the reply notice etc. cannot therefore be accepted." .......................
" The prosecution shall however make clear to court ,each of the circumstances relied upon by it, to establish drawing of the cheque by the accused. The mere fact that the cheque produced in the court came from possession of complainant alone will not be sufficient to prove execution, even though it may be one of the circumstances. No laws allow a court to presume that the cheque which is produced and marked in the court was handed over or delivered to complainant by the accused. The court can at best say that the cheque was in the CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 19 of 22 possession of the complainant. But under what circumstances it came to his possession is to be stated by the complainant. In the absence of such statement, court cannot proceed on any assumption that it was handed over to complainant by accused."
32. Further, it is all more significant that presumption can only be raised in furtherance of prosecution case and not in derogation of the same. The three judge bench of Hon'ble Supreme Court in a case while dealing with Prevention of Corruption Act has observed in respect of presumption of law in 'Trilok Chand Jain v. State of Delhi' AIR 666 as under: "......the presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception"
33. In the case of 'Kulwinder Singh Vs. Kafeel CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 20 of 22 Ahmad' Cr. L.P. No. 478 of 2011, decided on 04.01.2013 Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the respondent/accused must be proved beyond reasonable doubt and if there is any slightest doubt about the commission of an offence then the benefit has to accrue him.
34. Thus, in view of the totality of circumstances and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It appears also relevant to acknowledge and appreciate the fact that criminal conviction entails enigmatic and stigmatic experiences and exposures for the accused and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature. The version preferred to be relied upon by the complainant appears to be suffering from fatal infirmities. Even the standard of preponderance of probabilities appears to be completely in favour of the accused.
35. Accordingly, in view of the above discussion, I hold that the complainant has failed to prove his case. Accused has been able to rebut presumptions u/s 118 and 139 NI Act arising in favour CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 21 of 22 of the Complainant.
36. As the ingredients of the Section 138 N.I. Act are not fulfilled, the offence under Section 138 N.I. Act is not made out against the accused. Accordingly, the accused Sh. Praveen Kumar is acquitted.
37. Bail Bond filed u/s 437 (A) Cr.P.C is already on record.
Announced in the open Court on 16th Day of December, 2015 (Deepak Kumar) MM03 (NI Act)/SouthWest Dwarka/ New Delhi CC No. 936/15 Satbir Singh Vs. Parveen Kumar Page 22 of 22