Delhi District Court
Page No. 1 Of 19 Shashi vs . Rohit Kukreja on 3 August, 2015
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IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 1148/12
b. Date of the commission of the offence : 30/12/2011
c. Name of the Complainant : Smt. Shahsi
d. Name of Accused person and his parentage: Sh. Rohit Kukreja,
and residence S/o Sh. Om Prakash Kukreja,
R/o H No. E428, Gali No. 2,
East Vinod Nagar, Delhi91,
e. Offence complained of : Dishonouring of cheques for
"Funds Insufficient".
f. Plea of the Accused and his examination (if any): Not guilty
because payment
already made in cash.
g. Final Order : Convicted.
h. Order reserved on : 17.07.2015
i. Order pronounced on : 03.08.2015
Page No. 1 of 19 Shashi Vs. Rohit Kukreja
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Brief reasons for decision:
1.Vide this judgment this Court shall dispose off Criminal complainant number 1148/12, U/s 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') filed on 16.01.2012. Presummoning evidence was led by the complainant and cognizance for the offence was taken on 17.01.2012 whereafter, the accused was summoned before the court.
2. The factual averments and allegations of the complainant are; 2.1. The accused represented himself as the owner of the second floor of property bearing No. A30 Pandav Nagar, Delhi - 92, admeasuring 86 Sq. Yards. 2.2. The complainant agreed to buy the abovementioned property from the accused for a total consideration of Rs. 25,00,000/ (twenty five lakhs only). 2.3. The complainant and accused entered into two Agreements, viz. Agreement to sell & purchase dated 28.09.2011 and another agreement dated 08.11.2011, which they call as 'Sell Consideration'. 2.4. The complainant alleges that in pursuance of the agreement entered into between the parties, she paid a sum of Rs. 15,00,000/ (fifteen lakhs only) to the accused as part consideration.
2.5. It is the case of the complainant that the entire transaction was to be completed on or before 28.11.2011, i.e. the complainant had pay the remaining consideration amount and the accused was to deliver vacant physical possession to the complainant and also execute relevant ownership documents in favor of Page No. 2 of 19 Shashi Vs. Rohit Kukreja 3 the complainant.
2.6. Complainant alleges that the accused failed to deliver actual physical vacant possession of the abovementioned property at the agreed time and upon enquiries the complainant came to know that the accused is not the owner of the said property and therefore has no authority to deal for the said property. 2.7. When the complainant along with the her relatives met the accused, he admitted his mistake and assured the complainant that he will return the part consideration taken by him i.e. Rs. 15,00,000/ (fifteen lakh only). 2.8. Further, the complainant submits that the accused in discharge of his liability issued two cheques bearing numbers '015774' & '015775' both drawn on Axis Bank, Mayur Vihar Phase II branch and both dated 06.12.11, to the complainant with the assurance that the said cheques will be honoured upon presentation. (hereinafter referred to as the dishonoured cheques in question). 2.9. The said two cheques upon their presentation were dishonoured and returned back unpaid to the complainant by its banker with the remarks "Funds Insufficient" vide return memo dated 08.12.2011.
2.10. The complainant thereafter issued legal demand notice dated 14.12.2011 to the accused through her counsel but the accused neither gave any reply to the legal notice, nor he made the payment of the dishonoured cheque amount within the stipulated period. Hence, this complainant.
3. The accused was accordingly summoned by the Ld. Predecessor presiding officer of this Court and notice under section 251 Cr. P.C was served Page No. 3 of 19 Shashi Vs. Rohit Kukreja 4 upon him on 05.05.2012 whereby his plea of defence was also recorded. The accused pleaded not guilty and claimed trial.
4. The complainant, in order to prove her case, led her evidence by way of affidavit. The same is on record. The complainant also relied upon the following documents to prove her case, viz.
4.1. Mark A i.e. Agreement to sell and purchase dated 28.09.2011. 4.2. Mark B i.e. Sell Consideration dated 08.11.2011. 4.3. EX. CW1/1 dishonoured cheque bearing No. "015774". 4.4. EX. CW1/2 dishonoured cheque bearing No. "015775". 4.5. Ex. CW1/3 (colly) i.e return memos with respect to both the dishonoured cheques respectively.
4.6. EX. CW1/4 Legal demand notice and postal receipts.
5. Complainant adopted her presummoning evidence as her post summoning evidence and after crossexamination of the complainant by the counsel for the accused, as no other witness was brought by the complainant, on 21.05.2014, complainant's evidence was closed. Upon the conclusion of the complainant's evidence, the statement of accused was recorded under section 313 Cr.P.C on 25.08.2014 and all the incriminating facts appearing in evidence against him were to put to him and he was given an opportunity to explain his version of story. In his statement u/s 313 Cr.P.C., the accused made significant additions and alterations to his plea of defence.
6. Per Contra, the accused in his defence alleges that he has no Page No. 4 of 19 Shashi Vs. Rohit Kukreja 5 existing liability towards the complainant and the dishonoured cheques in question are sans consideration. Accordingly, section 138 of the NI Act is not attracted against him.
7. The accused in support of his case has relied upon the testimony of one defence witness namely Mahesh, S/o Kanhaiyalal i.e. DW1 and also relied upon the following two documents; viz.
7.1. EX/CW1/D1 i.e one notarised Settlement Deed dated 30.11.2011. 7.2. EX/CW1/D2 i.e. one hand written document purporting to be the receipt / acknowledgement of receiving of money.
8. On the basis of the evidences led by the accused and also on the basis of his statement recorded under section 313 Cr.P.C as well as his plea of defence, the main points of defence that can be culled out are that; 8.1. It is not in dispute that the accused and the complainant entered into an agreement to sell with respect to the property mentioned by the complainant whereby the complainant was the buyer and the accused was the seller. 8.2. It is also not in dispute that in lieu of the agreement to sell the complainant paid part consideration for a sum of Rs. 15,00,000/ (fifteen lakh only) to the accused.
8.3. It is also not in dispute that the agreement to sell did not materialize within the given time period and the accused returned the part consideration of Rs. 15,00,000/ (fifteen lakh only) received by him to the complainant by way of the two dishonoured cheques in question.
Page No. 5 of 19 Shashi Vs. Rohit Kukreja 6 8.4. That after returning the part - consideration amount to the complainant by way of the dishonoured cheques, the accused paid a sum of Rs. 12,00,000/ (Twelve lakhs only) in cash in November,2011, to the complainant's husband in the presence of DW 1 Mahesh Singh S/o Kanhaiya Lal. 8.5. The said cash payment of Rs. 12,00,000/ was made upon the assurance from the complainant and her husband that the cheques already given to the complainant will not be presented in the bank and the same will be returned to the accused.
8.6. However, the complainant despite receiving full and final payment in cash did not return the already given cheques to her and with a malafide intention presented the said two cheques and got them dishonoured. 8.7. Hence, the case of the accused is plainly that he had to return Rs. 15,00,000/ to the complainant which he paid in cash although the complainant was holding two cheques of the accused but despite receiving of the cash payment the complainant did not return the said cheques back to the accused and got them dishonoured to the disadvantage of the accused.
9. After crossexamination of DW1 by the counsel for the complainant, defence evidence was closed on 06.01.2015 and the matter was listed for final arguments. Both the parties argued the matter at length in support of their respective cases. Submissions heard. Record perused.
10. The factual matrix and the rival contentions of the parties being clear, now, on the basis of the legal provisions and the worth of the evidences lead by Page No. 6 of 19 Shashi Vs. Rohit Kukreja 7 the parties, this court proceeds to evaluate whether the accused is innocent or guilty of committing the offence under section 138 of the NI Act.
11. This court is well conscious of the fact that the case at hand is one attracting a penal punishment. Therefore, the prosecution, i.e. the complainant in this case has to stand on its own legs and has to prove the guilt of the accused beyond all reasonable doubts. It is pertinent to note that the accused himself has not stepped in the witness box. The averments made by the accused in response to his plea of defence is not on oath and the statement made in response to questions put during examination under section 313 of the Cr.P.C. cannot be used as substantial evidence against the accused. However, these can be used to connect the missing link in arriving at the final conclusion.
12. Sections 138 to 142 were incorporated in the Act with an amendment. The very object of amending the Act and adding these provisions pertaining to dishonour of Cheques and making it a penal offence was to increase the use and reliability of the cheques in the growing economic setup. The Act fastens strict criminal liability upon the drawer whose cheque get dishonoured for Insufficiency of funds or for exceeding arrangements.
13. The Amended Act by virtue of sections 118 and 139 provide for various presumptions in favour of the holder of the cheque, the most important one being that the dishonoured cheque was issued towards the discharge of a debt or a liability. Section 139 of the Act reads as under:
Page No. 7 of 19 Shashi Vs. Rohit Kukreja 8 S.139. presumption in favour of holder. It shall be presumed, unless the contrary is prove, the holder of the cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or any other liability.
14. The complainant in this case is holding two dishonoured cheques drawn by the accused. Hence, as per the mandatory presumption carved out by section 118 & 139 of the Act, this court is bound to presume that both the dishonoured cheques were issued by the accused to the complainant in discharge of a legally enforceable debt or liability. However, this mandatory presumption is not conclusive in nature and is subject to rebuttal. The burden of rebutting this mandatory presumption rests upon the accused.
15. As per settled law, there are two possible ways of rebutting this mandatory presumption as raised by law in favour of the complainant, viz. 15.1 First way : Evaluating the complainant's own version of story in the light of the facts culled out by the defence by cross examining the complainant i.e to say that whether the complainant has been able to withstand the ground created by him in his evidence. Or, the defence has been able to crush the case of the complainant by highlighting inconsistency in the testimony of the complainant and showing that the complainant has built up a false case or he is guilty of suppression of true facts, etc. And;
15.2 Second way: The accused in his defence, by leading sufficient
Page No. 8 of 19 Shashi Vs. Rohit Kukreja
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evidence, is able to bring out the facts which suggest preponderance of probability in his favour, that, either there was no occasion for any financial transaction between the accused and the complainant. Or, that the cheque in question was never issued to the complainant. Or, the cheque in question was not issued in discharge of any debt or liability.
16. Upon due consideration of the complaint's evidence and her cross examination, this court is of the considered opinion that the defence has failed to highlight any inconsistency in the case of the complainant. The complainant in her crossexamination has successfully been able to withstand all her averments and nothing material to shake her credit or dispute the veracity of her statements could be brought forth by the defence.
17. Accordingly, the mandatory presumptions as raised by law in favour of the complainant have not got rebutted by mere cross examination of the complainant by the defence. Hence, now this court has to travel beyond the mere cross examination of the complainant and evaluate the defence of the accused in the light of the cogent evidence lead by accused in his favour.
18. This court proceeds to evaluate the defence evidence by first scrutinizing the testimony of DW1 Mahesh.
18.1. DW-1 in the opening paragraph of his examination in chief has admitted that, "For the past 56 years I have been working alongwith the accused."
Page No. 9 of 19 Shashi Vs. Rohit Kukreja 10 Further it is stated by DW1 that, "On 24.11.2011, I visited the office of the accused located at East Vinod Nagar, Delhi, where the complainant alongwith her husband and the accused were present. In my presence, the accused counted and handed over a cash amount of Rs. 12 lacs to the complainant. As far as I could see, all the currency notes were in denominations of Rs. 500/. The document EX CW1/D1 was already prepared but got executed by the parties at that time in my presence and the same bears my signatures at point X and thumb impression at point Y. However the same was notarised in karkardooma courts in my presence".
18.2. DW1 in his cross examination further states that, "After the execution of the agreement the accused, the complainant, husband of the complainant and I had come to the Kakrkardooma courts for getting the agreement notarised".
18.3. Before evaluating the testimony of DW1 on the scales of truth it is pertinent to mention that the complainant in her crossexamination has specifically denied her signatures on document Ex. CW1 / D1. Complainant has also denied knowing any person namely Mahesh Singh, i.e. DW1. 18.4. Document EX CW1/D1, which the witness DW1 claims to be already prepared on 24.11.2011 but to have been executed in his presence on the same Page No. 10 of 19 Shashi Vs. Rohit Kukreja 11 day and also being notarised in his presence on the same day, bears the signatures and thumb impression of DW1 alongwith date 30.11.2011. DW1 has failed to give any reasonable explanation for this contradiction of dates in his testimony.
The document Ex. CW1/ D1 is a notarised document made on a stamp paper. The back of the stamp paper also bears the date 30.11.2011 purporting that the document was purchased on 30.11.2011 from the vendor. DW1 further fails to give any reasonable explanation as to when the stamp paper was itself purchased on 30.11.2011, then how the same could have been already prepared and executed on 24.11.2011 .
Moreover, document Ex. CW1/D1 is a notarised document bearing the signatures and the seal of the notary public and the same also bears the date 30.11.2011. This is sufficient evidence of the fact that the document Ex. CW1/D1 was prepared and executed on 30.11.2011 itself after purchasing the stamp paper on 30.11.2011 and not on 24.11.11 as alleged by DW1. 18.5. Before discarding the testimony of DW1 being false, this court deems it appropriate to again scrutinize his deposition giving him a benefit of doubt of having forgotten the dates. Even if it is presumed that DW1 has got confused with dates and he actually went to the office of the accused on 30.11.2011 and not on 24.11.2011, even then the testimony of DW1 does not pass the test of the truth. It is stated by DW1 that on the date when Ex. CW1/D1 was executed and thereafter notarised in his presence, the accused handed over Page No. 11 of 19 Shashi Vs. Rohit Kukreja 12 Rs. 12,00,000/ (twelve lakhs only) to the complainant. Hence, if benefit of doubt is given to the DW1 then it means that Ex. CW1/D1 was made on 30.11.2011 and on 30.11.11 itself payment of Rs. 12,00,000/ in cash was made. However, it is pertinent to note that the document Ex. CW1/D1 itself records that the payment of Rs. 12,00,000/ in cash had already been made to the complainant on 24.11.2011.
18.6. Even if this court raises yet another presumption in favour of DW1 that indeed he visited the office of the accused on 24.11.2011 only and he has got confused between the two defence documents and he is deposing about the preparation of document Ex. CW1/D2 instead of Ex. CW1/D1, even then the testimony of DW1 does not pass the test of truth as document Ex. CW1/D2 is not a notarised document. From his testimony it is clear that DW1 had signed on only one document which was a notarised document and therefore, nothing has been stated by DW1 about execution of the document Ex. CW1/D2 which is a nonnotarized handwritten document.
18.7. Hence, upon evaluating the testimony of DW 1 from all possible angles, this court comes to the conclusion that DW 1 is not a reliable witness. It is further apparent that DW1 has given a false testimony in favour of the accused to shield him from conviction as he is known to the accused on account of working with him for the past 56 years. Accordingly, the testimony of DW1 is discarded completely. No reliance, whatsoever can be placed on testimony of DW1 being false and misleading.
Page No. 12 of 19 Shashi Vs. Rohit Kukreja 13
19. Now this court proceeds to evaluate the document Ex. CW1/D2 which is a handwritten document purporting to be a receipt / acknowledgment of receiving money by the complainant from the accused on account of cancellation of agreement entered into between them.
19.1. With respect to document Ex. CW1/D2 the following observations are very important.
a) It does not specifically bear any date. One date i.e. 24.11.2011 appears in the document by way of interpolation between two words.
b) It does not bear the signatures of the complainant.
c) It is in the handwriting of the accused.
19.2. In view of above observations, this court refuses to place any reliance on document Ex. CW1/D2. This court by virtue of its powers conferred by section 73 of the Indian evidence Act, has itself compared the handwriting on the document Ex. CW1/D2 with admitted handwriting of the accused on and behind the dishonoured cheques. The handwriting is same. It means that the entire document Ex. CW1/D2 has been prepared by the accused himself. Moreover, the said document does not bear the signature of the complainant and in absence of signature of the complainant no reliance whatsoever can be placed on this document.
19.3. The accused has attempted to carve out a theory that the complainant intentionally and very cleverly evaded to sign the document. However, this court fails to understand as to why no attempt was made by the Page No. 13 of 19 Shashi Vs. Rohit Kukreja 14 accused later on to obtain the signatures of the complainant on the said document. After the preparation of document Ex.CW1/D2 another document dated 30.11.2011 i.e. document Ex. CW1/D1, as alleged by the accused was prepared between the parties. The accused fails to explain why at that time he did not obtain the signatures of complainant on this document. 19.4. Moreover, the husband of the complainant is a signatory to document Ex. CW1/D2, as alleged by the accused. It bears the signature as well as the thumb impression of the husband of the complainant. Yet, for the reasons best known to the accused, he has not summoned the husband of the complainant to prove the document. Even if, it is presumed that nonsummoning of the husband of the complainant as a defence witness was a bonafide omission, as the husband of the complainant would have only deposed against the accused, the accused needs to answer as to why he has not pressed for examination of thumb impression on the document purporting to be the thumb impression of the husband of complainant. The only valid reason to the mind of this court for such an omission on the part of the accused can be that the thumb impression and the signatures do not belong to the husband of the complainant and if the accused would have pressed for their examination the result of the same must have gone against the accused.
19.5. Similarly, in addition to the husband of the complainant, DW1 Mahesh Singh is also one of the attesting witness to the document Ex. CW1/ D2. Again, the accused for reasons best known to him has not got DW1 examined at Page No. 14 of 19 Shashi Vs. Rohit Kukreja 15 all with respect to document Ex. CW1/D2 specifically. The only reason for this glaring ommission seems to be that if DW1 would have been examined with respect to document Ex. CW1/D2 then such facts would have been revealed which were against or prejudicial to the case of the accused. Moreover, DW1 in his examination in chief has specifically stated that, "At this time I do not remember whether any other document with respect to the transaction was executed between the parties". The signatures of DW1 appear on both the defence documents i.e. Ex. CW1/D1 and Ex. CW1/D2 but interestingly DW1 refuses to have any knowledge with respect to execution of the any document ,other than document Ex. CW1/D1, for the same transaction between the parties.
19.6. After holding that DW1 is not a reliable witness and he has given a false testimony before this court, this court further has no iota of doubt, for the reasons stated above that document Ex. CW1/D2 is a manufactured document. Accordingly, no reliance can be placed on it and it is therefore discarded from the evidence.
20. Further, this court is constrained to highlight the contradicting versions and inconsistencies in the story put forth by the defence. At the time of framing of notice when the first opportunity was given to the accused to put forth his case, there the accused stated that, "I have given two cheques in question to the complainant on 16.11.11. there was a sum dealing with regarding the property in Pandav Nagar in which I was the seller and complainant was Page No. 15 of 19 Shashi Vs. Rohit Kukreja 16 purchaser. The complainant paid me advance of Rs. 15 lakhs in October, 2011 but ultimately, the deal could not be materialized as such, I refunded that money through the two cheques in question but in the meanwhile we arrived at settlement and on 30.11.11, I paid the complainant Rs. 12,00,000/ in cash to the husband of the complainant Sh. Hans Raj and another 1.5 lakhs through credit card. As such, I do not have any pecuniary liability towards the complainant"
20.1. On the basis of the first defence put forth by the accused, various questions arise, the burden of answering which was purely on the accused. But, they have gone unanswered in the evidence put forth by the accused. For instance, when the accused had entered into an agreement with the complainant and he had handed over the two dishonoured cheques in question to the complainant, then why he gave cash money of Rs. 12,00,000/ to the husband of the complainant.
20.2. The accused in his first defence, as highlighted above, alleges to have paid Rs. 12,00,000/ to the husband of the complainant on 30.11.2011. However, in the document Ex. CW1/D1 which is purported to have been made on 30.11.2011, it is recorded that that the FIRST PARTY, i.e. the complainant and not her husband has received cash sum of Rs 12,00,000/ from the accused on 24.11.2011 as full and final settlement.
20.3. The accused in his first defence, as highlighted above, alleges to have paid Rs. 1.5 lakhs in addition to Rs. 12,00,000/ to the husband of the complainant. However, no receipt or any bank statement to that effect has been Page No. 16 of 19 Shashi Vs. Rohit Kukreja 17 put forth by the accused in his defence. As per the first defence of the accused he paid Rs. 13.5 lakhs in total to the husband of the complainant. But, document Ex. CW1/D1 records that a total sum of Rs. 12,00,000/ was paid to the complainant as full and final settlement.
20.4. The accused in his first defence as highlighted above, alleges that he had given the two dishonoured cheques in question to the complainant. However, in his statement under section 313 Cr. P.C he takes a complete Uturn from his earlier statement and asserts that the two dishonoured cheques in question were handed over to the husband of the complainant. 20.5. This court fails to understand, if as per the case of the accused he had already given two cheques to the complainant or to her husband in discharge of his liability, then why there was need to make any cash payment for the same transaction. At best the accused could have deposited the cash amount in his account in order to facilitate the honour of the cheque. Or, upon making of the cash payment, as any prudent person, the accused ought to have issued stop payment instructions to his banker, which in this case, for reasons best known to him, he did not issue.
21. It is pertinent to note that as per the case of the accused the dishonoured cheques were handed over to the complainant on 16.11.2011 (as stated in his first plea of defence at the time of serving of notice U/s 251 upon him) and the payment in cash was either made on 24.11.2011 or on 30.11.2011 as alleged. However, the dishonoured cheques in question are dated 06.12.2011 Page No. 17 of 19 Shashi Vs. Rohit Kukreja 18 and they were presented and returned unpaid on 08.12.2011. Hence, there was sufficient time for the accused to issue stop payment instructions to his banker, if despite payment being made in cash the complainant was not returning back the cheques. Moreover, another question which challenges the defence of the accused is that why he did not make any police complainant against the complainant or her husband if despite receiving cash payment they were not returning his cheques.
22. Hence, on the basis of the observations made in the forgoing paragraphs, this court has no iota of doubt that the accused has not stuck to one theory of his defence and has constantly changed his versions. At various stages of proceedings, when opportunities had been given to the accused to put forth his version of events, they have differed.
23. Accordingly, on the basis of the above discussion this court securely holds that the accused has hopelessly failed to rebut the mandatory presumption raised in favour of the complainant by virtue of section 139 of the NI Act.
Therefore, this court hereby holds that both the dishonoured cheques were given by the accused to the complainant in discharge of his existing legally enforceable debt and liabilities.
24. Accordingly, the accused by not making the payment of both the dishonoured cheque amount within the statutory period of limitation as prescribed under the Act has committed an offence under section 138 of the NI Act. Therefore, the Accused is held guilty for the offence under section 138 of the NI Page No. 18 of 19 Shashi Vs. Rohit Kukreja 19 Act and hereby stands convicted. Accused being convicted, let this matter be now listed for hearing the accused on the point of sentence. Copy of this judgment be given free of cost to the accused immediately.
Announced in the open court (VIDHI GUPTA)
on 03rd Day of August, 2015. MM/KKD/Delhi
This judgment contains 19 signed pages.
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