Delhi District Court
Aadinath Probuild India Private ... vs Gaurav Jain on 27 January, 2022
IN THE COURT OF NAVEEN GUPTA
ADDL. SESSIONS JUDGE - 05, SHAHDARA DISTRICT
KARKARDOOMA COURTS, DELHI
CNR No. DLSH01-004316-2021
Crl. Revision No. 23/21
I.D. No. 41/21
PS Anand Vihar
In the matter of:
1. Aadinath Probuild India Private Limited,
C-1/2, Flat No. 3, Block-C,
Ground Floor, Model Town,
Delhi - 110 009
2. Abhay Jain
S/o Late Sh. Pawan Kumar Jain,
R/o S-51, 1st Floor, Panchsheel Park,
New Delhi - 110 017.
3. Praveen Kumar Jain,
R/o B-359, New Friends Colony,
New Delhi - 110 025. .......... Revisionists
Versus
Gaurav Jain
S/o Sh. Vijay Kumar Jain,
R/o 102, Rishabh Vihar,
Delhi - 110 092. ......... Respondent
Date of institution: 31.05.2021
Date of reserving the order: 20.01.2022
Date of order: 27.01.2022
CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 1 of 11
PS Anand Vihar
NAVEEN Digitally signed by
GUPTA NAVEEN GUPTA
ORDER
1. Vide this order, the Court has decided the revision petition filed by the revisionists, challenging the order dated 22.01.2021 passed by the Court of Ld. MM (NI Act), Digital Court, Shahdara, Karkardooma Courts, Delhi, whereby the Court has summoned the accused persons/revisionists herein for trying them for commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short 'N. I. Act').
2. Brief facts and circumstances leading to filing the present revision petition are that the complainant (respondent herein) Gaurav Jain filed a complaint under Section 138 of the NI Act against the revisionists herein (hereinafter referred as 'accused persons'). In his complaint, the complainant has inter-alia alleged that the accused had launched a project as 'Angel Jupiter'. Believing upon the representations made by accused and other responsible officers of accused No.1, the complainant booked a flat number C-2006, in Tower-C, Type-A (hereinafter referred as 'the impugned flat') in the abovesaid project. In February, 2015, the flat buyer's agreement was not ready and to secure complainant's right and to repose faith, an MOU was entered and a receipt of Rs.50 Lakh as total sale consideration of flat was acknowledged. The accused have also handed over a signed and filled undated cheque of Rs.50 Lakh. Thereafter, the accused approached the complainant for signing printed flat buyer agreement and assured him to hand over the possession of the said flat upon completion within a period of four years. The said agreement was entered on 01.03.2015.
CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 2 of 11 PS Anand Vihar NAVEEN Digitally signed by GUPTA NAVEEN GUPTA The complainant, since February, 2019 onwards, visited the accused several times, but the accused stated that the flat would be delivered within the extended period of six months i.e. by or before 01.09.2019. But the flat was not delivered. Thereafter, the date as 28.08.2020 was inserted in the cheque given by the accused and the cheque was presented for encashment. But, the same was returned unpaid vide memos dated 29.09.2020, 14.10.2020 and 21.11.2020. Thereafter, a legal notice was sent to the accused, but they did not make payment of the cheque's amount within stipulated period. Hence, the complainant filed the abovesaid complaint under Section 138 of the N.I. Act. Vide order dated 22.01.2021, Ld. Trial Court summoned the accused persons for an offence punishable under Section 138 NI Act. The accused/ revisionists herein have challenged the said order dated 22.01.2021.
3. Arguments have been heard from Ld. Counsel for the revisionists and Ld. Counsel for the respondent.
4. Ld. Counsel for the revisionists has argued that at the time of framing of charge, Ld. Trial Court failed to evaluate the complaint filed by the complainant. Further, in the beginning of 2015, father of complainant namely Sh. Vijay Jain approached Abhay Jain (revisionist No. 2 herein) in respect of purchasing a unit, in the name of complainant, in the project 'Angel Jupiter'. The father of complainant persuaded revisionist No. 2 to provide a cheque as an additional security towards the timely possession of the impugned flat. Accordingly, revisionist No. 2 provided an undated cheque bearing no. 223209 to the father of CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 3 of 11 PS Anand Vihar NAVEEN Digitally signed by GUPTA NAVEEN GUPTA complainant. Further, a flat buyer agreement was signed on 01.03.2015 by the representatives of revisionists and the complainant was provisionally allotted the impugned flat for the sale consideration of Rs.50 Lakh. However, as a matter of fact, no sale consideration was ever paid by the complainant. Further, no MOU was ever executed between the complainant and revisionists. Furthermore, no cash transaction of such a huge amount of Rs.50 Lakh can be believed to be true. Thereafter, neither the complainant nor his father raised any grievance or concern in respect of the said agreement till the year 2019. The father of complainant communicated to revisionist No. 2 that he had torn off the builder buyer agreement and the impugned cheque, as he did not intend to proceed with the transaction and subsequent allotment. Further, in the year 2018, the revisionist company represented itself before the National Company Law Tribunal, wherein a general public notice dated 25.12.2018 was published in newspaper inviting all the concerned debtors and aggrieved persons to approach the revisionist company to settle their dispute. But the complainant did not raise any kind of grievance against the revisionist. Further, the bank account of the revisionist, on which the impugned cheque had been drawn, was attached w.e.f. 28.11.2019 by the Regional Provident Fund Commissioner and same was released only on 08.02.2021, therefore, it can be evident that the revisionist could not issue the impugned cheque dated 28.08.2020 from the said bank account, which was lying attached by the Commissioner's order. Further, witnessing the present conduct of the complainant of waiving its own agreement, the revisionist executed a flat buyer's agreement in respect of the impugned flat on CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 4 of 11 PS Anand Vihar NAVEEN Digitally signed by GUPTA NAVEEN GUPTA 30.10.2020 with Mr. Satish Kumar Sharma for sale consideration of Rs. 63 Lakh. Hence, Ld. Trial Court has wrongly summoned the accused persons.
5. Ld. Counsel for the respondent has argued that first of all, Ld. Trial Court has not framed charges against the accused persons, as claimed by the revisionists in the present revision petition. Further, at the time of summoning of the accused persons, the Court is to make prima facie view that there is sufficient ground for proceeding against accused persons. Through the present revision petition, the revisionists have forwarded their defence. But, at this stage, defence of the accused persons cannot be looked into, as the same is matter of trial. Even otherwise, the revisionists have not denied execution of flat buyer's agreement and issuance of the impugned cheque by them. Ld. Counsel has further argued that there is a legal presumption under Section 139 of NI Act that the cheque in question has been issued in discharge of a debt or liability unless rebutted by the accused by producing clear and satisfactory evidence during trial. Ld. Counsel has relied upon following precedents in support of this argument i.e. Rajeshbhai Muljibhai Patel v. The State of Gujarat, 2020 (3) SCC 794, APS Forex Services Pvt. Ltd. v. Shakti International, 2020 (12) SCC 724, Shree Dhaneshwari Traders v. Sanjay Jain, 2020 (1) JCC
127. Further, the law relating to issuance of cheque whether is given in security or discharge of debt is also held disputed question of fact and can only be decided after trial. Ld. Counsel has relied upon following CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 5 of 11 PS Anand Vihar Digitally signed by NAVEEN GUPTA NAVEEN GUPTA precedent in support of this argument: Sunil Todi v. The State of Gujarat, Crl. Appeal No. 1446/2021 decided on 03.12.2021.
6. Ld. Counsel for the respondent has further argued that the revisionists/ accused persons did not give any reply to the legal notice dated 10.12.2020 sent by the complainant to them informing about dishonor of the impugned cheque and calling upon them to pay the cheque amount within stipulated period. Furthermore, the accused persons had never informed the complainant about the aspect of attachment of their bank account, as claimed by them in the present revision petition. Hence, the present revision petition shall be dismissed.
7. First of all, this Court stands guided with the precedent laid down by the Hon'ble Supreme Court in State Farm Corpn. of India Ltd. v. M/s. Nijjer Agro Foods Ltd., (2005) 12 SCC 502, wherein the Court has held that:
2. [Q]uite strangely, the High Court, by the impugned judgment dated 14-03-2003, while exercising revisional jurisdiction, examined the defence on merits and allowed the criminal revision petition filed by the respondents and reversed the decision of the Magistrate declining to drop the proceedings by holding that by making payment of Rs. 40 Lakhs, the respondents had discharged their liability. It was no stage to examine the defence of the respondents. [Emphasis supplied]
8. The revisionists have claimed that they have not received the consideration amount of Rs.50 Lakh for allotment of the impugned flat to the complainant and they did not execute the alleged MOU on 15.02.2015 with the complainant. It is pertinent to note that the said MOU has been signed by Abhay Kumar Jain and the complainant and CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 6 of 11 PS Anand Vihar NAVEEN Digitally signed by GUPTA NAVEEN GUPTA in para no. 1, it has been categorically stated that the sale consideration of Rs.50 Lakh 'paid today itself'. The defence raised by the revisionists is a matter of trial, which can only be appreciated after leading of evidence by the parties. All other aspects related to the abovesaid defence are again matter of trial. Similarly, whether the complainant had seen the advertisement given by the revisionists in the newspaper on 25.12.2018 is again a question to be decided during trial. It is worth noting that the revisionists have not provided the details of proceedings carried out before the National Company Law Tribunal.
9. The revisionists have further claimed that the cheque in question had been given to the complainant as security cheque and the same was undated. At this stage, the Court stands guided by the precedent laid down by the Hon'ble Delhi High Court in Credential Leasing & Credits Ltd. v. Shruti Investments & Anr., in Crl. L. P. 558/2014 decided on 29.06.2015, wherein the Court has held that:
30. Thus, I am of the considered view that there is no merit in the legal submission of the respondent accused that only on account of the fact that the cheque in question was issued as security in respect of a contingent liability, the complaint under Section 138 of the NI Act would not be maintainable. At the same time, I may add that it would need examination on a case to case basis as to whether, on the date of presentation of the dishonoured cheque the ascertained and crystallised debt or other liability did not exist. The onus to raise a probable defence would lie on the accused, as the law raises a presumption in favour of the holder of the cheque that the dishonoured cheque was issued in respect of a debt or other liability. As settled by the Supreme Court, the said onus obliges the accused to raise a defence - either by picking holes in the case of the complainant and/ or by positively leading defence evidence which leads the Court to believe that there is a probable defence raised by the accused to the claim of the complainant with regard to the existence of the debt or other liability. The said onus does not cast as stringent an CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 7 of 11 PS Anand Vihar NAVEEN Digitally signed by GUPTA NAVEEN GUPTA obligation on the accused, as it casts on the complainant, who has to prove beyond reasonable doubt the guilt of the accused. [Emphasis supplied]
10. It is pertinent to note that it is case of the complainant that the date of issuance of cheque is 28.08.2020 and a liability of Rs.50 Lakh was due against the accused persons as on date of issuance of the abovesaid cheque. Thus, prima facie case is made out against the accused/ revisionists herein to be summoned for an offence punishable under Section 138 NI Act.
11. Even otherwise, in similar circumstances, while dealing with a petition challenging the summoning order, the Hon'ble Delhi High Court in Ambica Plastopack Pvt. Ltd. & Anr. v. State & Anr., in Crl. M.C. 2698/2011 decided on 01.11.2013, has held that:
Cheques given as Security
7. The third ground of challenge is that the cheques in question were given as security and not in discharge of any legal liability. Since the defence of the petitioners was not before the learned Metropolitan Magistrate at the time of issuing of summons, the learned Metropolitan Magistrate had no occasion to look into the same at the time of issuing of summons. There is a legal presumption under Section 139 of the Negotiable Instruments Act that the cheques in question have been issued in discharge of a debt or liability unless rebutted by the petitioners. The petitioners have to rebut the presumption under Section 139 before the learned Metropolitan Magistrate at an appropriate stage. Section 482 Cr.P.C. cannot be invoked by the petitioner to rebut the legal presumption. Reference may be made to Hiten P. Dalal v. Bratindranath Banerjee, 2001 (6) SCC 16, MMTC Ltd.
v. MEDCHL Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 and Maruti Udyog Ltd. v. Narender, (1999) 1 SCC 113.
12. Furthermore, recently, in another case while dealing with a petition challenging the summoning order, the Hon'ble Delhi High Court in CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 8 of 11 PS Anand Vihar NAVEEN Digitally signed by NAVEEN GUPTA GUPTA M/S Chesons Enterprises v. M/S Cadiz Pharmaceuticals Pvt. Ltd., in Crl. M.C. 2149/2019 decided on 09.11.2020, has held that:
6. After going through the impugned order and the contentions raised by the learned counsel for the petitioner, it is apparent that disputed questions of facts are raised which require adjudication in the trial.
8. In so far as issuance of blank cheque is concerned, in Bir Singh v.
Mukesh Kumar reported as (2019) 4 SCC 197, the Supreme Court held that if a signed blank cheque is voluntarily presented to a payee towards some payment, the filling up of an amount and other particulars by the payee would not invalidate the cheque. The onus to prove that the cheque was not in discharge of any debt or liability would still remain on the accused which is to be discharged by adducing evidence.
9. Whether the cheque in question was issued towards the security and not towards any debt or liability is a matter of defence which could be determined in the trial on the petitioner adducing his evidence.
11. Recently, in Womb Laboratories Pvt. Ltd. v. Vijay Ahuja & Ors. reported as 2019 (4) RCR (Criminal) 358, it was held that whether the cheques were given towards security and not towards discharge of any debt or liability is a triable issue for which the relevant facts need to be proved.
12. In view of the above exposition of law, I do not find any merit in the contentions raised by the learned counsel for the petitioner. It is for the petitioner to establish in the trial that the cheque in question was not given towards discharge of any debt or liability.
13. Recently, the Hon'ble Supreme Court held this issue a matter of trial in Sripati Singh v. The State of Jharkhand, in Crl. Appeal No. 1269/2021 decided on 28.10.2021, and held that:
18. If the above principle is kept in view, as already noted, under the loan agreement in question the respondent No.2 though had issued the cheques as security, he had also agreed to repay the amount during June/July 2015, the cheque which was held as security was presented for realization on 20.10.2015 which is after the period agreed for repayment of the loan amount and the loan advanced had already fallen due for payment.
Therefore, prima facie the cheque which was taken as security had CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 9 of 11 PS Anand Vihar Digitally signed by NAVEEN GUPTA NAVEEN GUPTA matured for payment and the appellant was entitled to present the same. On dishonour of such cheque the consequences contemplated under the Negotiable Instruments Act had befallen on respondent No.2. As indicated above, the respondent No.2 may have the defence in the proceedings which will be a matter for trial. In any event, the respondent No.2 in the fact situation cannot make a grievance with regard to the cognizance being taken by the learned Magistrate or the rejection of the petition seeking discharge at this stage.
14. In respect of plea of issuance of undated cheque, the Court stands guided with the observations of the Hon'ble Delhi High Court in M/S. Mojj Engineering Systems Limited v. M/S A.B. Sugars Ltd., in Crl. M.C. No. 2543/2008 decided on 29.09.2008, that:
7. Even otherwise, prima facie, it was the petitioners who had handed over the undated cheque for a certain amount to the respondent in terms of a contract between the parties. Since an undated cheque cannot be encashed, it can only mean that the petitioners had authorized the complainant to enter an appropriate date on it.
xxxxx [P]rima facie, the holder thereof is authorized to complete the incomplete negotiable instrument. In that view of the matter, all further issues that may be raised by the petitioners regarding the nature and scope of the authority of the respondent to put any particular date on the cheque in question, are all matters for trial.
15. Thus, the arguments advanced on behalf of the revisionists regarding the cheque in question as security cheque or undated cheque are disputed questions of facts which require adjudication in the trial.
16. So far as the argument advanced on behalf of the revisionists is concerned that the impugned bank account of the accused persons on which the impugned cheque had been drawn, had been attached by Regional Provident Fund Commissioner w.e.f. 28.11.2019 till CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 10 of 11 PS Anand Vihar Digitally signed by NAVEEN GUPTA NAVEEN GUPTA 08.02.2021. It is worth noting that as per returning memos dated 29.09.2020, 14.10.2020, 21.11.2020 (Ex.CW-1/4 colly), the reason for return has been mentioned as 'kindly contact drawer/drawee bank and present again'. Thus, the said submission made on behalf of the revisionists cannot be verified from the documents furnished by the complainant with his complaint moved before Ld. Trial Court. Hence, this defence shall also be taken up by the revisionists before Ld. trial Court.
17. In view of above discussion, the Court does not find any infirmity or incorrectness in the impugned order dated 22.01.2021 passed by the Court of Ld. MM (N.I. Act), Digital Court, Shahdara, Karkardooma Courts, Delhi. Accordingly, the present revision petition is dismissed.
18. Revision file be consigned to Record Room. Trial Court Record be sent back to Ld. Trial Court alongwith a copy of this order.
NAVEEN Digitally signed by
GUPTA NAVEEN GUPTA
Announced through CISCO NAVEEN GUPTA
Webex video conferencing on Addl. Sessions Judge - 05
27th day of January, 2022 Shahdara District,
Karkardooma Courts, Delhi
CR No. 23/21 (I.D. No. 41/21) Aadinath Probuild India Pvt. Ltd. v. Gaurav Jain 11 of 11
PS Anand Vihar