Delhi District Court
This Is A Complaint Filed Against The ... vs . on 7 June, 2016
IN THE COURT OF Ms. SWATI SINGH, MM-01
( NEGOTIABLE INSTRUMENTS ACT) WEST DISTRICT,
TIS HAZARI COURTS, DELHI
Shri Atul Jain,
S/o late Shri B.D.Jain.
R/o 22, Inder Enclave,
Rohtak Road, Pachim Vihar.
New Delhi. ......Complainant
Vs.
Gp. Capt. R.K.Arya,
S/o Shri B.K.Arya,
Inspection Branch AIR HQ (RKP)
R.K.Puram, New Delhi. ......Accused
JUDGMENT
Complainant Case No. : 2107C/1 Date of institution : 08.10.2010 Offence alleged : Under Section 138 NI Act Plea of the accused : Not pleaded guilty Final order : Acquittal Date of Decision : 07.06.2016 BRIEF STATEMENT OF REASONS FOR THE DECISION
1. This is a complaint filed against the accused under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act'). The CC No.2107C/1 page no.1/15 allegations stated in the complaint are that the accused is working with Indian Airforce as group captain and approached the complainant to take the premises bearing no. flat no. 62, Vidya Sagar Apartments, Plot no.34, Sector 6, Dwarka, New Delhi on rent vide rent agreement dated 24.04.2010 on monthly rent of Rs.16,000/-. In discharge of liability towards the payment of rent for the period of June, July and August 2010 the accused issued three cheques bearing no.895068 dated 11.06.2010, cheque bearing no.895069 dated 07.07.2010 and cheque bearing no. 895070 dated 07.08.2010 all drawn on PNB, Rama Krishna Puram, Delhi in favour of the complainant. The complainant presented the said cheques in his bank but the same were returned dishonored with the remarks "Payment stopped by drawer" vide returning memos dated 10.08.2011. Legal demand notice dated 02.09.2010 was sent to the accused by registered post. According to allegations, the accused avoided the notice. The accused failed to make the payment of cheque amount despite service of notice and therefore, according to the complainant, the accused is liable for the offence under Section 138Section 138 of Negotiable Instruments Act, 1881.
2. To prove its case the complainant has examined himself as CW1 by way of affidavit Ex.CW1/1 who has relied upon the following documents.
a) Copy of rent agreement Ex.CW1/A,
b) Original cheques in question Ex.CW1/B, Ex.CW1/C and Ex.CW1/D.
c) Original cheque returning memos Ex.CW1/E, Ex.CW1/F, and Ex.CW1/G,
c) Legal notice Ex.CW1/H.
d) Original postal receipts Ex.CW1/I, to Ex.CW1/J
3. On finding a prima facie case against the accused, he was summoned vide order dated 01.12.2010. Consequent to the service of summons, the accused entered his appearance and was admitted to bail. Vide order dated 18.05.2011 notice U/s 251 Cr.P.C. was framed against the accused to which he pleaded not CC No.2107C/1 page no.2/15 guilty and claimed trial. The basic plea of defence of the accused was that he had issued one month prior intimation to the complainant for vacation of the house which was sent through courier as he was alloted with a government accommodation w.e.f 02.07.2010 vide no.97666/allotment/CO/E1 dated 28.06.2010. He further submits that he had shifted his residential telephone of landline no.25072899 and mobile no. 9868210528 for which he had been receiving the valid telephone bills at the new address w.e.f 02.07.2010 and he had issued one cheque bearing no.207824 amounting to Rs.48,000/- as security for two months and rent for one month. He further submits that he has not received the balance amount of Rs.16,000/- from the complainant which was given as advance. The accused also admitted that the cheques in question bears his signature. He also admitted that he had received the legal demand notice and he duly replied the same.
4. After framing of notice, the complainant was asked to lead evidence to prove his case. In his evidence, the complainant deposed as CW-1 and adopted the evidence led by him at the pre- summoning stage. His affidavit is Ex. CW1/1. In his affidavit he has fully corroborated the averments made by him in his complaint.
5. During his cross examination, the complainant deposed that he had rented flat no.62, Vidya Sagar Apartment, Sector 6, Dwarka, Delhi to the accused through one person namely J.S.Vohra, Retd. Sq. Leader. The complainant executed a rent agreement and gave the said property on rent to him on monthly rent of Rs.16,000/. He further stated that he met with the accused for the first time at the time of execution of rent agreement .i.e 24.04.2010 in the presence of Mr J.S.Vohra and Mr Sher Singh. He also admitted that on the day of execution of rent agreement, the accused handed over a cheque for the payment of Rs.48,000/- towards the security amount of two months .i.e 32,000/- and one month rent .i.e Rs. 16,000/- to Shri J.S.Vohra which was lateron handed over to him same day by CC No.2107C/1 page no.3/15 J.S.Vohra.
6. Complainant further deposed that he did not mention about the security amount of Rs.32,000/- in his complaint. He also admitted that he handed over keys of the rented premises to Shri J.S.Vohra on 24.04.2010, however, he is not aware as to when the possession of rented premises was handed over to the accused. Further he is not aware of the exact date of the vacation of the rented flat by the accused.
7. As per the complainant, he obtained the possession of the flat on 08.07.2012 through order of the court by breaking the lock in the presence of Shri Sher Singh. He admitted that he was aware about the vacation of the rented flat by the accused at the time of taking possession of the flat. He also admitted that he received one courier sent by the accused by dispatch receipt no.4406 of JMD courier Ex.CW1/D1. He explained that vide the above said courier he had received four post dated cheques bearing no.895068 dated 11.06.2010, 895069 dated 07.07.2010, 895070 dated 07.08.2010, 895071 dated 07.09.2010 all for Rs.16,000/- each drawn on PNB, R.K.Puram, Delhi. He denied that through the above mentioned courier he received a letter 10.06.2010 mark D2 from the accused regarding the vacation of flat. He further submitted that of the above mentioned four cheques he has filed the present complaint in respect of only three cheques bearing no.895068, 895069, 895070 and further he is not aware why his counsel has not included the fourth cheque bearing no.895071 dated 07.09.2010 in the present case.
8. The complainant also contacted J.S.Vohra, and asked him about the keys of the flat but Shri J.S.Vohra told him that he is not aware about the same. He admitted that the lease/rent agreement with the accused for the rented flat was for the period of 11 months. He also admitted that he did not give any notice to the CC No.2107C/1 page no.4/15 accused about the termination of the tenancy. However, when the complainant was confronted with the document Ex.CW1/D2 he accepted he had sent a notice dated 10.01.2012 to the accused about the termination of tenancy of the rented flat. The complainant further accepted that as per the document Ex.CW1/Z3 which is the electricity bill of the rented flat for the month of June, the number of electricity units consumed by the accused is zero.
9. Statement of accused was recorded under Section 313 read with Section 281 of Code of Criminal Procedure, 1973 on 09.09.2015. In his statement under Section 313 read with Section 281 of Code of Criminal Procedure, 1973, the accused reiterated the same defence as recorded in his plea of defence while framing of notice under sec 251 Cr.P.C. In answer to a question that whether he wanted to lead any evidence in his defence, he replied in affirmative. Accordingly, the accused was given chance to lead evidence in his defence. The accused only examined himself as DW1 and placed on record certain documents in support of his defence.
10. Final arguments have been heard on behalf of both the parties and record has been perused carefully.
11. In order to ascertain whether the accused has committed the offence under section 138 Section 138 of Negotiable Instruments Act, 1881, it is deemed fit to examine separately as to whether all the indispensable ingredients constituting the offence have been proved by the complainant. The offence under section 138 Section 138 of Negotiable Instruments Act, 1881 has the following ingredients:-
I. Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability; II. Dishonor of cheque in question;CC No.2107C/1 page no.5/15
III. Service of demand notice seeking payment of cheque amount within fifteen days from the date of service; IV. Non-payment of cheque amount within fifteen days from the date of service of notice;
V. Filing of complaint within one month from the date on which cause of action arises.
Section 138 of the Act reads as: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions ofthis Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) The 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.
(b) The payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
12. Section 139 of Negotiable Instruments Act, 1881 provides a statutory presumption that the cheque was handed over in respect of a debt or other liability.
CC No.2107C/1 page no.6/15Under Section 118 of Negotiable Instruments Act, 1881 every negotiable instrument is presumed to have been drawn and accepted for consideration.
In the case of K.N.Beena V. Muniyappan 2001 SC 2895, it was observed as follows:
"Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal Vs. Bratindranath Banerjee in (2001) 6 SCC 16 has also taken an identical view.
In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/ averments in his reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the Appellant /Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The 1st Respondent not having led any evidence could not be said to have discharged the burden cast on him. The 1st respondent not having discharged the burden of proving that the cheque was not issued for a debt or liability, the conviction as awarded by the Magistrate was correct. The High Court erroneously set aside that conviction."
In the case of Hiten P. Dalal Vs. Bratindranath Banerjee, AIR 2001 SC 3897, it was observed as follows:
"Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A Vaidyanatha Iyer, AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been CC No.2107C/1 page no.7/15 established. "It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.(1958 Cri. L.J. 232) The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted".
In the case of Girishbhai Natvarbhai Patel Vs. State of Gujarat and Anr. 2006 (1) DCR 594, it was held as follows:-
"It is an established position of law that under the scheme of Section 138 Negotiable Instruments Act, especially under Scheme of 118 and 139 the statutory presumption is created in favour of the complainant and the court has to presume and proceed on the basis of this presumption unless it is dislodged by the accused on the strength of leading cogent and convincing evidence in support of his claim".
In the case of Saftarsab Vs. B. Allaiah @ Allapa 2006 (1) DCR 307 it has been observed as under :
"Section 118 based on special rule of evidence is CC No.2107C/1 page no.8/15 applicable to negotiable instruments and the presumption is one of law and thereunder a Court shall presume inter alia that the negotiable instrument or the endorsement was made or indorsed for consideration. In effect, it throws the burden of proof of failure of consideration on the maker of the note or the endorser. The burden is on the maker of the instrument to discharge the same. Further, as per Section 101 of the Evidence Act, whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exists. Therefore, the burden initially rests on the plaintiff who has to prove the promissory note was executed by the defendant. As soon as the execution of the promissory note is proved the rule of presumption laid down in Section 118 of the Negotiable Instruments Act helps him to shift the burden to the other side".
In the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
13. Thus it is an established law that onus lies upon the accused to rebut the presumption and to establish that the cheque in question was not given in respect of any debt or liability. It therefore becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dislodge the presumptions envisaged by Sections 118 and 139 of Negotiable Instruments Act, 1881.
14. Now let us examine whether the abovesaid five ingredients have been proved in the present case or not. The accused has not disputed the factum of issuance of the cheque in fact he had himself admitted that the cheque in question was issued by him. He has admitted his signatures on the cheque in question.
CC No.2107C/1 page no.9/15Therefore, the first ingredient being admitted by the accused himself stands proved that the accused had drawn the cheque in question. Presentation of the cheque for encashment and return of the cheque unpaid by the bank for the reasons "Payment stopped by drawer" have also been proved on record vide the cheque return memos dated 10.08.2010 same are Ex.CW1/E, Ex.CW1/F and Ex.CW1/G. The accused has accepted that he received the legal notice from the complainant and he had duly replied the same. As such, the legal notice stood served upon the accused but no payment was made despite the service.
15. In the present case, issuance of cheque, its presentation and dishonorement are not in dispute, inasmuch as, the same has been duly proved on the basis of cogent evidence. In his statement under Section 313 Cr.P.C., accused has admitted having handed over the cheques to the complainant as he was the tenant in the property of the complainant. He further submits that he has not received the balance amount of Rs.16,000/- from the complainant which was given as advance. As such the accused is having no liability to pay any amount to the complainant because he had already vacated the rented premises on 02.07.2010.
16. It is the defence of the accused that four cheques including cheques in question were given by him to the complainant towards payment of rent. He had executed one rent agreement dated 24.04.2010 with the complainant commencing from 01.05.2010 for a period of 11 months. The rented premises was taken on rent through one Mr. J.S.Vohra for which the accused also paid brokerage amount of Rs. 8,000/- by way of cheque. He further submits that he had paid Rs.48,000/- (32,000/- as security for two months rent and Rs.16000/- rent for May 2010 as advance) by way of cheque to Mr. J.S.Vohra who further handed over it to the complainant.
17. After sometime the accused got to know from his office that a government accommodation is expected to be alloted to him shortly, therefore, the accused CC No.2107C/1 page no.10/15 informed the complainant about the same on telephone and also sent a notice dated 10.06.2010 by courier informing him that I shall be vacating your house in the first week of July. The said letter is mark D2. Accordingly, the accused was allotted government accommodation 252, salaria complex, Dwarka, Delhi vide allotment letter dated 28.06.2010 mark D3. As per the allotment letter, the government accommodation was to be occupied by on or before 02.07.2010. Therefore, the said government accommodation was occupied by the accused on 02.07.2010, copy of occupation certificate 3109/DWK/90/E3F dated 12.07.2012 Ex.DW1/4.
18. In his cross examination, he accepted that he was the tenant in flat no.62, Vidya Sagar Apartment, plot no.34, Sector 6, Dwarka. He also admitted that rent agreement Ex.CW1/A was executed between him and the complainant, however he had not signed in the presence of the complainant. Mr. J.S.Vohra informed him that one month rent and two months security is required at the time of execution of rent agreement. Therefore, the said sum of Rs.48,000/- by way of cheque was handed over to Mr. J.S.Vohra on 21/22.04.2010 prior to signing the rent agreement. He explained that he did not pay the monthly society charges for the month of June 2010 as the complainant had agreed to refund the balance of Rs.16000/- after adjusting the maintenance charges.
19. Once issuance of the cheques has been admitted or stands proved, a presumption arises in favour of the holder of the cheques that he had received the cheques of the nature referred to under Section 138 of the Act for the discharge, in whole or in part of any debt or any other liability. This presumption arises in favour of the holder under Section 139 of the Act which envisages that it shall be presumed unless the contrary is proved that the holder of a cheque received the cheque of the nature referred to under Section 138 of the Act for discharge, in whole or in part of any debt or any other liability. Accordingly, a presumption arises in favour of the complainant and against accused that the cheque had been issued in discharge of CC No.2107C/1 page no.11/15 any debt or other liability. It was for the accused to rebut this presumption which he has been able to rebut.
20. The complainant has gone on to vehemently argue that the rent agreement was executed with the accused on 24.04.2010, he also argued that he met the accused for the first time at the time of execution of rent agreement. On the contrary he admits that the amount of Rs.48000/- by way of cheque (Rs.32000 as two months security and Rs.16000/- as payment towards rent) was received by him same day by the complainant .i.e on 24.04.2010. He also admits that the said cheques were handed by the accused to Mr. J.S.Vohra, therefore, one fails to understand that when on 24.04.2010 both the complainant and the accused were present to execute the rent agreement then why the accused handed over cheque of Rs.48,000/- to Mr. J.S.Vohra, although he could have personally handed over the cheques to the complainant.
21. The complainant also accepted that at the time of breaking the lock on 08.07.2012 in pursuance of the order of the court dated 04.07.2012 he was aware that the accused had already vacated the rented premises. The complainant further submits that he was accompanied by Mr Sher Singh who was also the witness at the time of execution of rent agreement. Inspite of this, the complainant has not called Mr Sher Singh as a witness in support of his case. The complainant has also not examined one of the most important person in the present case Mr J.S. Vohra. When the accused specifically alleged that the entire transaction related to the rented premises was done with Mr J.S. Vohra then also the complainant chose not to produce him as a witness in support of his contentions.
22. The complainant further accepts the receiving of a courier dated 11.06.2010 by the accused vide dispatch receipt no.4406 Ex.CW1/D1 of J.M.D CC No.2107C/1 page no.12/15 Courier. However, the complainant alleges that through the said courier he had received four post dated cheques and not the letter dated 10.06.2010 Mark D2 written by accused to complainant regarding the intimation of the vacation of the rented flat. The said version of the complainant is not the same as stated in his complainant. It is because in his complainant he has alleged in para 3 "That in discharge of liability towards the payment of rent for the period June, July and August 2010 the accused signed three cheques bearing No..895068 dated 11.06.2010, cheque bearing no.895069 dated 07.07.2010 and cheque bearing no. 895070 dated 07.08.2010 all drawn on PNB, Rama Krishna Puram, Delhi in favour of the complainant and handed over to complainant".
23. The complainant nowhere mentions in his complaint as well as affidavit that he had received the above mentioned cheques by way of courier. Therefore, the said contention of the complainant cannot be relied upon. Further, the complainant himself says that he had filed the civil suit against the accused on 31.03.2012. i.e almost after 17 months when the third cheque bearing no 895067 got dishonored towards the payment of rent. It is not understandable as to why if accused was not making the payment of rent and the cheques given by him were getting dishonoured every month then why no further steps were taken by the complainant against the accused and why complainant kept on receiving the rent amount by way of cheques instead of cash and demand draft. Also the complainant did not issue any notice to the accused for vacating the rented premises as he was unable to make the pay the rent as per the rent agreement.
24. Further the complainant himself could not explain the genuine reason for the delay in filing the civil suit against the accused for possession. The complainant was diligent enough to file the present case on 08.10.10 for recovery of his rent amount but he did not bother to avail legal remedy for obtaining the possession of CC No.2107C/1 page no.13/15 his flat from the accused for a long period of almost 17 months. The complainant also nowhere in his cross examination stated that despite repeated reminders sent to the accused or requests the accused did not vacate the rented premises. He has not placed on record a single document which shows that he actually asked for vacating the rented premises by sending any letter or something else of similar nature to the accused. Further in his cross examination complainant first averred that he did not send any legal notice to the accused regarding termination of tenancy. However when he was confronted with notice dated 10.01.2012 Ex.CW1/D2 he accepted that he had sent the legal notice. The said document is the certified copy of the notice dated 10.01.2012 sent by the complainant to the accused regarding the termination of tenancy. From all the above facts, it seems that complainant has deliberately tried to conceal some material facts from the court and has not come with clean hands.
25. On the other hand, the accused has been able to discharge his onus of proving his defence although he was only required to create doubt in the version of the complainant. Ld counsel for accused has argued that when complainant on asking did not return the cheques given for advance payment on rent, directions for stop payment regarding those cheques were given by accused to his bank. The accused has filed on record number of documents which clearly reflects that he had occupied the government accomodation on 02.07.2010 alloted to him vide allotment letter dated 28.06.2010 (Mark D3).
26. The accused has also filed on record occupation certificate 3109/DWK/90/E3F dated 12.07.2012 Ex.DW1/4. The accused also enclosed copy of letter dated 01.07.2010 addressed to MTNL Dwarka for transfer of his landline phone from Vidyasagar apartments (rented premises) to newly alloted Salaria Officers Complex (govt accomodation). Copy of MTNL bill dated 07.07.2010 is also sent to the address of government accomodation of accused. The accused also CC No.2107C/1 page no.14/15 enclosed copy of letter dated 15.09.2011 Ex.DW1/5 of Indane Gas Service as per which the accused is stated to have been residing at Salaria Complex since 02.07.2010. All the documents point only towards one fact that the accused had left the rented premises on or before 02.07.2010. Therefore, the accused was not under any legal liability at the time when the cheques were presented in bank for encashment. The cheques were given as advance payment towards the rent, however, the accused vacated the rented flat on 02.07.2010 itself. The complainant has failed to prove that the accused did not vacate the premises on 02.07.2010 and hence liable for paying the rent.
27. It is a well settled principle of law that prosecution has to stand on its own leg and prove its case beyond reasonable doubt. 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 he has failed to fulfill all the ingredients of offence under Section 138 NI Act against the accused. The 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 the accused is 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 in Krishnajanardhan Bhat v. Dattatraya G. Hegde 2008 crl.L.J. 1172. Accordingly accused is acquitted for the offence under Section 138 of NI Act. Bail bonds are canceled and surety stands discharged. Endorsement, if any, stands canceled.
File be consigned to record room.
A copy of the order be sent to District Courts website.
Announced in open court on SWATI SINGH 07.06.2016 MM-01(NI ACT)WEST/DELHI CC No.2107C/1 page no.15/15 CC No.2107C/1 page no.16/15