Delhi District Court
Davinder Pal Singh vs . Anup Paul on 25 July, 2023
IN THE COURT OF MS. DEEPAKSHI RANA: MM-01 (N.I.ACT): SOUTH-
EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
DAVINDER PAL SINGH Vs. ANUP PAUL
CC No.631828/16
U/s 138 Negotiable Instruments Act, 1881
1. CIS number : DLSE020013052011
631828/16
2. Name of the complainant : Davinder Pal Singh (D.P Singh) S/o Sh.
Diwan Singh, Advocate, A-390, Defence
Colony, New Delhi- 110024
3. Name of the accused , parentage & : Anup Paul, S/o Late Sh. Balai Bhushan
residential address Paul, R/o Flat No. 22, UCO Hut, GH-37,
Sector 20, Panchkula, Haryana
4. Offence complained of or proved : U/s 138 of Negotiable Instruments Act,
1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : 11.07.2023
7. Date of judgment/order : 25.07.2023
Date of Institution : 16.03.2011
Date of Reserving Judgment/Order : 27.06.2023
Date of Pronouncement of Judgment/Order : 25.07.2023
CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 1 of 11
JUDGMENT
1. By way of the present judgment, this Court shall dispose off the present complaint filed by Davinder Pal Singh (hereinafter referred to as 'complainant') against Anup Paul (hereinafter referred to as 'accused') u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short).
Brief facts:
2. The case of the complainant is that the accused duped the complainant into buying a property at Kolkata and the complainant eventually paid about Rs. 60 lakhs for the said property about which he subsequently got to know that a fraud has been committed upon him by the accused. Further, the accused took approximately Rs. 33 lakhs from the complainant for his own expenses subject to condition that he would repay Rs. 33 lakhs towards the principal amount along with a interest @ 24 % per annum. That accused in order to discharge his liability towards the above noted loan, a cheque bearing No. 956298 dated 17.07.2010 for Rs. 33 lakhs was issued by the accused which got dishonored with the remarks "payment stopped by drawer" upon presentation by the complainant. As per the complainant, this was communicated to him on 07.01.2011. Thereafter, compelled by the circumstances, complainant sent a legal notice dated 28.01.2011 u/s 138 NI Act calling upon the accused to make the payment within 15 days of the receipt of the legal notice as prescribed u/s 138 of the N.I. Act. Even after the expiry of 15 days stipulated period, the accused did not make the payment and hence, the present case was filed by the CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 2 of 11 complainant.
Proceedings before the Court:
3. The cognizance of the complaint was taken and accused was summoned vide order dated 30.04.2011. The notice u/s 251 Cr.P.C was served upon the accused on 22.05.2012 to which accused pleaded not guilty and claimed trial. The accused cross examined the complainant permission for which was granted to him by Hon'ble High Court of Delhi vide order dated 31.10.2012. Thereafter, statement of accused was recorded on 14.09.2022 wherein accused chose to lead defence evidence. The opportunity to the accused to lead defence evidence was granted and defence evidences were taken on record. Thereafter, the matter was listed for final arguments. Final arguments were heard on behalf of both the parties.
Arguments raised by parties:
4. Complainant has argued that all the requirements of Section 138 NI Act have been fulfilled by the complainant in the present case and he has proved his case beyond reasonable doubt. It has been further argued by the Ld Counsel for complainant that the accused has failed to prove his defence and has also failed to rebut the presumption drawn u/s 118 of NI Act about existence of debt/liability in favour of the complainant and therefore, accused is guilty of offence punishable u/s 138 NI Act.
The complainant has further relied upon the following judgments:
1. Uttam Ram v. Devender Singh Hudan, 2019, 10 SCC 289
2. V.S Yadav v. Reena, Crl. Appeal 1136 of 2010 CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 3 of 11
3. Sumeti Vij v. Paramount Tech Fab Industries, 2021 SCC Online 201 SC
4. P. Rasiya v. Abdul Nazeer, 2020 SCC Online SC 1131
5. B.M Basavraj v. Srinivas S. Dutta, Crl Appeal. 306 of 2016 SC
5. Ld Counsel for the accused has argued that accused has no liability towards the complainant. Complainant has filed a false case against the accused as there was no transaction between the complainant and the accused as alleged in the complaint. It has further been pleaded that the disputed cheque was used as a security cheque for property deal finalised between the parties. Further, it has been stated by the accused that complaint is barred by limitation as the notice was given after the expiry of period of limitation and therefore it cannot be considered valid in the eyes of law. Hence, this complaint is not maintainable.
Therefore, accused should be let free u/s 138 NI Act. Accused has relied upon the judgment of Hon'ble Supreme Court, Sunil Todi v. State of Gujarat, Crl Appeal No. 1446 of 2021.
Legal provisions invoked:
6. For deciding the present case, it is essential to lay down the ingredients of the offence under Section 138 NI Act which are as follows:
(a) A person must have drawn a cheque on an account maintained by him in a bank.
(b) The cheque must be drawn for payment of certain amount of money to another person to discharge in whole or in part, any legal enforceable debt or other liability.
(c) The cheque has been presented to the bank and is returned unpaid by the CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 4 of 11 bank either due to insufficiency of funds or it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
(d) 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 cheque within stipulated period.
(e) The drawer fails to make payment within stipulated time after the receipt of the said notice. [Reference: Kusum Inglots & Alloys Ltd & Ors v. K Pennar Peterson Securities Ltd and Ors (2000) 2 SCC 745].
7. A negotiable instrument including a cheque carries presumption of consideration in terms of Section 118(a) and under Section 139 of the Act. Section 118 Clause (a) of Negotiable Instruments Act reads as under:-
"That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
Section 139 of the Negotiable Instruments Act reads as under:-
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in section 138, for the discharge, in whole or in part, or any debt or other liability."
The combined effect of Section 118(a) and Section 139 of NI Act is that it raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability.
Analysis of evidence:
8. Coming to the present case, the complainant has relied upon his complaint Ex. CW1/6, Evidence Affidavit Ex. CW1/A, original cheque Ex. P-1, original CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 5 of 11 return memo Ex. P-2, Envelope by which return memo was received along with courier slip dated 30.10.2010 Ex. P-3, legal demand notice Ex.P-4, original postal receipts Ex.P-5, in order to prove essential ingredients of Section 138 NI Act. Further, the accused has not denied his signatures on the cheque in question in his statement u/s 251 Cr.P.C and u/s 313 Cr.P.C.
9. In the case of M/S Kalamani Tex vs P. Balasubramanian Criminal Appeal No. 123 of 2021, the Hon'ble Supreme Court has held:
The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then the 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him.
Based on the evidence led and documents relied upon by the complainant and in view of the above judgment, once the accused has admitted his signatures on the cheque in question in the present case, presumption u/s 118 and 139 of NI Act is drawn in favour of the complainant. Now it is upon the accused to rebut the presumption u/s 139 of NI Act by raising a probable defence in his favour on a scale of preponderance of probabilities. It is open for the accused to rely on evidence led by him or evidence adduced on behalf of the complainant and the materials submitted by the complainant in order to raise a probable defence. [Reliance placed on: Rohitbhai Jivanlal Patel Vs. State of Gujarat and Ors AIR 2019v SC 1876; M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39;].
10. Complainant apart from examining himself also has brought into the witness CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 6 of 11 box, two other witnesses so as to prove his statements regarding payment made to the accused. One of them is CW-2 Prabhash Kumar , Operation Officer, Standard Chartered Bank, Internal Services for proving the bank statement of the complainant pertaining to payment made to accused through cheque from time to time and another one is CW-3 Raj Kumar Jain for proving two payment made to accused on behalf of the complainant for a sum of Rs. 11 lakhs and Rs.8,65,000/- on 05.10.2007 and 30.06.2008 respectively.
11. In addition to relying upon the documents placed on record, complainant has subjected himself to cross examination on oath before the court wherein complainant stated that "before the registration was done finally in december 2007, I had paid the accused a sum of Rs.60,00,000/- in all more than half of it by cheque and remaining in cash. No, I did not take any receipt from the accused for the cash amount given by me to the accused".
Complainant has further placed on record a notarial certificate dated 16.05.2007 for the amount of Rs. 10 lakhs and some letters of accused which are admitted by the accused during the recording of his statement u/s 313 CrPC acknowledging the payment made to him by the complainant. Further in his statement the complainant stated that "after the sale deed, I had given three payments by cheque i.e. of Rs. 8,65,000/- in June, 2008 through my friend R.K Jain( also examined as a witness CW-3) which was directly paid in the account of the accused, Rs.75,000/- on 21.01.2008 and Rs. 10 lakhs on 21.08.2008. All the aforementioned amounts were paid by cheques. I had also paid amount in cash after the execution of the same on several occasions". This further shows that payment was made to accused after the conclusion of the property deal CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 7 of 11 between them in December, 2007.
12. All the other documents on which the complainant has relied upon i.e. original cheque, return memo returning envelope, notice and postal receipt regarding notice placed on record have gone unrebutted as neither any question nor any suggestion was put to complainant regarding the same during his cross examination.
On perusal of the above testimony of CW-1 supported by the testimony of CW-2 and CW-3, this Court is of the view that CW-1 has withstood his cross examination as there are no material contradictions which can be noted in his testimony. Further his assertions also finds support from the evidences placed on record by CW-2 and CW-3.
13. Coming to the version of the accused in the present case, the only defence taken by the accused in his statement u/s 251 Cr.P.C was that "the then court did not have territorial jurisdiction over the matter" which was subsequently addressed and the matter was transferred to this Court(South-East District).
14. In his statement u/s 313 Cr.P.C, the accused has stated that "the cheque in question was issued but it was never to be encashed. It was given as a security deposit for the property that I was selling to the complainant". When the question was put to accused regarding the legal demand notice, he answered " I have received the legal demand notice from the complainant. The legal notice was issued after the expiry period of limitation". All the other documents were admitted to by the accused and he also proposed to lead defence evidence CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 8 of 11 which was allowed thereafter.
15. To prove his side, accused has examined only one witness i.e. Sh. Najeeb Ahmad, Relationship Manager, HDFC Bank, Defence Colony who had brought the statement of account of complainant which is Ex. DW1/A regarding the dishonoured cheque bearing No.956298.
Witnesses at Sr. No. 3, 5 and 6 mentioned in the application of accused for calling defence witnesses were dropped in view of the admission of certain documents regarding the property deal between the complainant and the accused by the complainant which is not in question on this matter.
16. Coming to the defence put forth by the accused, the very first plea which was raised for the first time regarding the notice sent to the accused being barred by the limitation in his statement u/s 313 Cr.PC does not stand firm as the envelope placed on record regarding the return memo bears a courier slip as well which states the date of booking of courier to be 30.12.2010 which further strengthens the fact that the notice was issued in time. Another point raised by the accused in his defence is that the cheque was issued as a security also does not inspire confidence of this court as cheque in dispute bears the date 19.07.2010 which is approximately 2.5 years after the conclusion of the property deal and it has already been proved on record by the complainant that the payment was being made to accused even after the conclusion of the property deal between the parties which was in December, 2007.
17. It has been observed that notice u/s 251 Cr.PC was served upon the accused CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 9 of 11 and the accused took no specific defence and only pleaded not guilty. Complainant by way of an affidavit let his own evidence testifying that cheques were issued to him after he had advanced loan to the accused. Dishonour was proved by the bank official when he was called as the defence witness. No other document has been questioned by the accused except the notice which stands clarified as above.
In the judgment of V. S Yadav v. Reena, it has been categorically stated that "statement of accused u/s 313 Cr.PC read with Section 281 Cr.PC is not the evidence of the accused and it cannot be read as a part of the evidence. The accused had an option to get himself examined as a witness but he refrained from the witness box. Where the accused does not examined himself as a witness, his statement u/s 281 Cr.PC cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstances and not as evidence. If the accused wanted to prove his assertions, he was supposed to appear in the witness box and testify and get himself subjected to cross examination".
In Uttam Ram v. Devender Singh Huda, it was further held that "it is clear that bare denial of the passing of the consideration and existence of debt apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration on which, the court may either believe that the consideration and debt did not exist or their non existence was so probable that a prudent man would under the circumstances of the case act upon the plea that they did not exist".
CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 10 of 11
18. In the present matter, no evidences have been brought on record by the accused to prove that the cheque issued was a security cheque and that it was given in lieu of the property deal arrived at between the complainant and the accused whereas it has been proved by the complainant that he had made the payment even subsequently to the accused after the conclusion of the property deal and the disputed cheque also bears the date pertaining to 2010 i.e. much after the conclusion of the property deal. Further, the accused in his statement u/s 313 CrPC has already admitted the receipt of legal demand notice from the complainant therefore service of legal notice to the accused is also not on dispute. Therefore, this court is of the view that the accused has failed to prove his defence and rebut the presumption laid down by law.
19. Conclusion:
Based on the evidence led by the complainant and the defence taken by the accused, this court has arrived to the conclusion that the accused has failed to raise a probable defence in his favour on a scale of preponderance of probabilities and consequently, the presumption under Section 118(a) and 139 of NI Act drawn in favour of the complainant has not been rebutted by the accused. Since, the complainant has proved the essential ingredients of Section 138 NI Act beyond reasonable doubt, this court finds the accused Anup Paul guilty for the offence punishable U/s 138 N I Act. Therefore, accused Anup Paul stands convicted.
Announced in the open court (Deepakshi Rana) on 25.07.2023 MM-01(N.I. Act):SED: Saket Courts, New Delhi CC No.631828/16 Davinder Pal Singh Vs. Anup Paul page 11 of 11