Delhi District Court
M/S. Aakash Institute vs Sanjay Sharma on 28 July, 2016
IN THE COURT OF MS. MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
NORTH-WEST, ROHINI, DELHI
Unique ID No. 02404R0174772013
CC No. 7762/16
M/s. Aakash Institute
Through Its, Attorney
Sh. Rakesh Bogra,
S/o Sh. Krishan Chand Bogra
V-4, Plaza, 3rd Floor,
KP-Block, Pitampura,
New Delhi-110088 ............Complainant
Versus
Sanjay Sharma
S/o Sh. Mahadev Prasad Sharma
R/o C-484, Saraswati Vihar, Pitampura
Delhi-110034 .............Accused
JUDGMENT
(1) Name of the complainant, M/s. Aakash Institute
parentage and address Through Its, Attorney
Sh. Rakesh Bogra,
S/o Sh. Krishan Chand Bogra
V-4, Plaza, 3rd Floor,
KP-Block, Pitampura,
New Delhi-110088
(2) Name of accused persons, Sanjay Sharma
parentage and address S/o Sh. Mahadev Prasad Sharma
R/o C-484, Saraswati Vihar, Pitampura
Delhi-110034
(3) Offence complained of or
proved: 138 N.I. Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 01.07.2013
(6) Date of reserve of order: 11.07.2016
(7) Date of Final Order: 28.07.2016
M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 1 of 8
(8) Final Order: Acquitted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
That accused came to the complainant institute for teaching and the accused was appointed as Physics Teacher after taking an interview by the complainant institute in the year 2012 for a monthly salary of Rs. 1,20,000/-. Appointment letter was issued by complainant institute on 23.08.2012. At the time of appointment, all the terms and conditions were explained to accused and after understanding each and every terms and conditions, necessary documents were signed between accused and complainant institute. As per the terms and conditions of the appointment letter, it was made clear that in case of resignation, accused was required to give a statutory notice to complainant intimating about his resignation and also, have to complete necessary notice period as per the terms of his appointment. Accused left the job on 28.08.2012 without intimating the complainant and without giving any notice as prescribed by the terms. Due to conduct of accused, complainant institute suffered financially. As per the agreement, accused is liable to pay the damages to the complainant institute for total sum of Rs. 5,00,000/-. As per the conditions already settled between the complainant and the accused, he handed over two cheques bearing no. 013438 dated 06.03.2013 for Rs. 1,20,000/- & bearing no. 013439 dated 06.03.2013 for Rs. 1,20,000/- both the cheques drawn on ICICI Bank, Janakpuri, New Delhi-110058 to the complainant institute and assured that both the cheques will be encashed when presented in bank. Upon presentation, the said cheques were got dishonoured with the remarks "funds insufficient" vide returning memo dated 08.03.2013. Thereafter, accused visited the complainant institute and requested to forgive him and requested that he will clear all dues and further assured that the above said cheques may be presented again and the same shall be encashed. On his assurance, management of complainant institute again deposited the said cheques with its banker, however, the said cheques were again dishonoured with remarks "funds insufficient" vide bank return memo dated 06.05.2013. Mandatory legal demand notice dated 13.03.2012 was issued to the accused by way of speed post and same was duly served upon the accused. Despite service of legal notice, the accused neither made payment nor gave reply to the legal notice. Thereafter, complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished according to law. M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 2 of 8
3. In his pre-summoning evidence, complainant examined himself on affidavit. He reiterated the contents of complaint and placed on record, two cheques bearing no. 013438 dated 06.03.2013 for Rs. 1,20,000/- & bearing no. 013439 dated 06.03.2013 for Rs. 1,20,000/- both the cheques drawn on ICICI Bank, Janakpuri, New Delhi-110058 as Ex. CW-1/B & Ex. CW-1/A respectively, cheques returning memos dated 08.03.2013 & 06.05.2013 as Ex. CW1/C & Ex. CW-1/D, legal demand notice dated 24.05.2013 as Ex. CW-1/E, postal receipt as Ex. CW-1/F, Courier receipt as Ex. CW-1/G, tracking report as Ex. CW-1/H & Ex. CW-1/I, copy of salary and terms & conditions as Ex. CW-1/J and General Power of Attorney as Ex. CW-1/K.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of Negotiable Instruments Act and notice under Section 251 Cr. P.C. for this offence was framed upon him on 30.01.2014 to which he pleaded not guilty and claimed trial. Accused took defence that cheques in question were given as guarantee cheques on insistence of complainant. He left the job after 03 days as he did not found working conditions proper in complainant institute. He denied for having any legal liability towards complainant and stated that cheques were presented without his knowledge.
5. In post notice evidence, complainant examined only himself as CW-1. During cross-examination, complainant adopted his pre-summoning evidence affidavit towards examination in chief in post notice evidence. During cross examination of AR of the complainant, he accepted that cheques were given by accused on 23.08.2012 before joining and there was no liability of accused towards the complainant on 23.08.2012.
6. Thereafter, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which he took the same defence as it was taken by him at the time of framing of notice under Section 251 Cr.P.C. He also stated that he gave his resignation in writing but the same was not accepted by complainant institute. Thereafter, matter was fixed for d efence evidence.
7. In defence evidence, accused examined Sh.Chittranjan Hati, Advocate as witness, who stated that reply to the legal notice Ex. DW1/A was drafted by him and the same was sent by accused through Post.
M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 3 of 8
8. Thereafter, oral arguments tendered on behalf of both the parties were heard at length. Ld. Counsel for the complainant has relied upon Wilson Mathew v. State of NCT of Delhiand Anr. 2015(224)DLT291 regarding security cheque and Ld. Counsel for accused has relied upon Indus Airways Pvt. Ltd and Others v. M/s Magnum Aviation Pvt. Ltd.& Anr. 2014 II AD(Cri.)(S.C.)477 regarding advance payment. Same are perused and taken into consideration.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 NI Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
11. For the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 4 of 8 etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
12. I have perused the entire record and have given due considerations to the submissions made on behalf of the parties. The court has to first see as to whether the complainant has proved that the accused issued the cheques in question towards a legal liability in favour of the complainant or not from the account maintained by him. To prove this, complainant has relied upon his affidavit Ex. CW-1/1 and Ex.CW1/J. As per complainant, the cheques in question Ex. CW-1/A & Ex. CW-1/B got dishonoured. Return memos Ex.CW1/C & Ex. CW-1/D of cheques are placed on record by the complainant in this regard. To prove that mandatory legal notice Ex. CW-1/E was sent by him, he has relied upon documents Ex.CW1/F to Ex.CW1/I. Hence, initial presumption is raised in favour of the complainant. Reference has been made to Judgment of Apex Court in Rangappa v. Mohan,AIR2010SC1898 that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
In the present case the defence of the accused is that he does not have any legal liability towards the complainant and the cheques in question were given without any liability on insistence of complainant institute. It is also submitted that accused joined the institute as a faculty and left the job just after four days as working hours and conditions of working were not found suitable by him. Another contention made on behalf of accused is that he joined the institute on 23 rd August and left the institute on 28 th August but the cheques in question were presented by the institute in the month of March, which proves that cheques are presented by the institute just to harass him.
In the present case, signature and amount in cheques in question and execution of agreement Ex.CW1/J with the complainant institute are not disputed. The dispute is over the legal liability of accused. As per accused, he does not have any legal liability towards the complainant as he joined the institute for teaching but he left the institute just after four days, founding working conditions unsuitable to him. The fact that he left the institute just after four days of joining is not disputed by the institute. As per contract Ex.CW1/J, cheques in question were given by the accused at the time of joining, however, as per M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 5 of 8 complaint, cheques in question were given by accused to compensate the damages suffered by the institute after he left the job. Both the facts are contradictory. As per CW1, cheques were given by the accused when he joined the institute and at that time he had no liability towards the institute. Cheques in question are dated 06.03.2013 while accused joined the institute on 23.08.2012. As per Ex.CW1/J, accused handed over two undated cheques to the complainant institute at the time of joining. It is not understandable, as if accused left the job on 28.08.2012 then why complainant institute presented the cheques in the month of March. As per complaint, cheques in question were given by the accused as per settled terms to compensate the damages. From complaint, it is inferred that cheques in question were given after accused left the institute and cheques were presented after taking permission of the accused, while as per accused and CW1, cheques were given at the time of joining. From this, it seems that complainant, to fill the lacuna for presentation of cheques in the month of March, has used such kind of language in complaint. Further, neither dates as to when accused gave assurances to the complainant institute for presentation of cheques nor any document for settlement of terms of damages are mentioned by the complainant in his complaint. All these facts bring the case of complainant under shadow of doubt. Furthermore, the contract Ex.CW1/J seems to be a standard form of contract. From terms and conditions of the contract Ex.CW1/J, it is inferred that under the pretext of interest of students, totally one sided contract is drafted by the institute. As a matter of practice, any person who wish to get job in the institute as faculty would have to sign the same contract without having any option for accepting few conditions and rejecting the others. In contract Ex.CW1/J, there is no mention of working conditions or working hours for the faculties. Number of leaves or any kind of facilities provided to faculty members is not mentioned in the contract. During cross-examination, CW1 stated that there is specific time and standard for all the faculty members including accused and they were required to serve as per terms and conditions of agreement of their institute. No such agreement is placed on record on behalf of the complainant institute. This fact leads to presume that complainant institute has not disclosed the complete facts to the court. In addition to this, the conditions imposed upon the faculty members by way of this contract seems to be too harsh and are one sided. In such form of contracts, there is "take it or leave it" condition. The person who is willing to get the job will have to have sign such contract without having option to pick and choose. It is accepted by CW1 in his cross-examination that the date on which cheques were given by the accused, he had no liability towards the institute. In present case, accused left the institute just after four days, which leads to infer that working conditions found by the accused in the complainant M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 6 of 8 institute would be totally unfavorable. Accused left the job without drawing even a single salary, which is sufficient to support his contention that he did not found working conditions suitable in the institute. Accused during trial stated that his resignation was not accepted by the institute. This fact, further leads to infer that complainant institute wanted to put pressure over the accused to not to leave the job. In the present contract Ex.CW1/J, it is not that there was any force, coercion or undue influence but there is lack of free will. Besides this, complainant institute not disclosed that any reply to legal notice was sent by the accused. In the present case, complainant has not disclosed all the material facts to the court. There is no mention of working conditions by the complainant. In this contract, there seems to be lack of free will on the part of accused. Conditions would be altogether different, if accused had accepted any salary from the institute. If he had accepted any salary, then it could be inferred that he was satisfied with all the terms and conditions of the institute. But in the present case accused left the job just after four days, which leads to infer that there must be some serious problem with the accused regarding working conditions of the institute. As a matter of prudence, no person left the job just after four days without having serious problem. In present case, Ex.CW1/J is a kind of contract where any person willing to join as faculty will have to say first "yes" and then he will get the experience of working condition in the institute. Taking of cheques at very initial stage at the time of joining without having any liability is one of the conditions imposed in the contract Ex.CW1/J. Lack of free will at the time of giving cheques and that too without any liability are sufficient to raise doubt over the existence of any legal liability of accused towards the complainant. Further, complainant has not disclosed the agreed working conditions with the accused, which casts shadow of doubt over his case. From above discussed facts, it comes out that complainant has not come up with complete facts and he has tried to derive liability of accused only on the basis of Ex.CW1/J.
13. Hence, in the light of above discussion, it comes out that the complainant has failed to prove its case beyond all the reasonable doubts and it has failed to fulfill all the ingredients of offence under Section 138 NI Act against the accused. Accused has successfully proved his defence and rebut the presumption in favour of the complainant as the standard of proof so as to prove a defence on the part of accused persons are only 'preponderance of probabilities' and 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 he relies as the same was held by Hon'ble Supreme Court M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 7 of 8 in Krishnajanardhan Bhat v. Dattatraya G. Hegde 2008crl.L.J. 1172. Accordingly, accused is acquitted for the offence under Section 138 of Negotiable Instruments Act. Bail bond and Surety bond stands discharged. Original documents of surety, if any, be released as per rules. File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
TODAY i.e. 28th JULY 2016 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
M/s. Aakash Institute v. Sanjay Sharma CC No. 7762/16 Page no. 8 of 8