Delhi District Court
Rajesh Gupta vs . Surender Singh Tamta Page 1 Of 8 on 5 February, 2015
IN THE COURT OF SHRI GAURAV GUPTA, MM1 (NI ACT)
SOUTHWEST DISTRICT: NEW DELHI
C.C No. 7071/14
Unique case ID No. 02405R0798092008
under Section 138 of N.I. Act
In the matter of :
Sh. Rajesh Gupta
S/o. Sh Babu Ram,
R/o. RZ25D/2, Gali No.32,
Indra Park, Palam Colony,
New Delhi110045 ... Complainant
Versus
Sh. Surender Singh Tamta
S/o. Shri Thapaer Singh,
R/o. H.No. 134, Ground Floor,
Janta Flats, Pocket6,
PhaseI, Nasirpur, Dwarka,
New Delhi110045. ... Accused
Date of Institution : 18.08.2008
Date on which judgment was reserved : 28.01.2015
Date of judgment : 05.02.2015
C.C No. 7071/14
Rajesh Gupta vs. Surender Singh Tamta Page 1 of 8
J U D G E M E N T
1. This is a case for dishonour of a cheque for a sum of Rs. 1,00,000/ wherein interalia, it has been alleged by the complainant that the accused is running a kerosene oil depot vide licence no. 3224/89 and that the accused entered into an agreement dated 26.12.2007 for the purpose of handing over/subletting the kerosene oil depot to the complainant for a consideration amount of Rs. 5 Lacs. It has further been averred that in terms of agreement, a sum of Rs. 4 Lacs was paid by the complainant by way of cheques and the cheque for remaining amount of Rs. 1,00,000/ was not presented by the accused. It is the case of the complainant that the accused failed to handover the depot to the complainant and in order to partly repay the amount, issued the cheque bearing no. 742670 dated 02.02.2008 for Rs. 1,00,000/ , drawn on The Delhi State Cooperative Bank Ltd, Palam, New Delhi. The said cheque was dishonoured vide return memo dated 12.06.2008 due to "Insufficient funds". Consequently, a demand notice dated 06.07.2008 C.C No. 7071/14 Rajesh Gupta vs. Surender Singh Tamta Page 2 of 8 was served upon the accused calling upon him to make payment against the cheque. However, the accused failed to do so within fifteen days of its receipt leading to institution of the present complaint.
2. After issuance of summons, the accused entered appearance and was admitted to bail. Notice u/s. 251 Cr.P.C was served upon the accused to which he pleaded not guilty and claimed trial.
3. Thereafter, complainant led his evidence and examined himself as CW1 and tendered his affidavit in evidence. The complainant placed reliance on the following documents:
i. Agreement dated 26.12.2007 as Ex. CW1/1 (later as Mark A);
ii. Cheque as Ex. CW1/2;
iii. Return memo as Ex. CW1/3; iv. Copy of legal notice as Ex. CW1/4; and v. Courier receipt as Ex. CW1/5.
4. Thereafter, statement of accused u/s. 313 Cr.P.C was recorded wherein all the incriminating circumstances C.C No. 7071/14 Rajesh Gupta vs. Surender Singh Tamta Page 3 of 8 were put to him. The accused admitted his signatures on the cheques. However, he denied all other allegations. The defence of the accused is that he got the loan of Rs. 1,00,000/ from the complainant and the same was repaid by him by way of cheques bearing nos. 149066, 149063, 149062 & 149065 to the tune of Rs. 34,000/ alongwith interest and that he has been falsely implicated in this case by the complainant.
5. In order to substantiate his defence, the accused himself stepped into the witness box as DW1. The accused relied upon the bank statement of account no. 207010100173483, Mark A for the period from 01.01.2008 to 31.12.2008 and thereafter, defence evidence was closed.
6. In order to constitute an offence under the provisions of section 138 N.I. Act, the complainant is obliged to establish the following :
1. The issuance of the cheque by the accused in discharge of a legally enforceable debt or liability.
2. Presentation of the cheque within its validity C.C No. 7071/14 Rajesh Gupta vs. Surender Singh Tamta Page 4 of 8 and its dishonour thereof by the drawee bank.
3. Sending of legal notice within thirty days of receiving the information regarding its dishonour and failure thereof on the part of the accused to make payment within fifteen days of the receipt of the notice.
7. Once the signatures on the impugned cheques are admitted, the presumptions u/s. 118 (a) and 139 N.I. Act are raised against the accused that the cheque was drawn for consideration and that the same was issued in discharge of a legally enforceable debt or liability. The accused however, can rebut these presumptions by raising a probable defence.
8. The case of the complainant is based on agreement Mark A. Initially, the agreement was marked as Ex. CW1/1, however, later vide order dated 18.08.2008 passed by my Ld. Predecessor, same was marked as Mark A being a photocopy. It is settled law that merely putting an exhibit mark on a document is not a conclusive proof as to its C.C No. 7071/14 Rajesh Gupta vs. Surender Singh Tamta Page 5 of 8 admissibility and the same has to be decided as per settled provisions of law of evidence. The agreement was not challenged by the accused rather he admitted the same in his crossexamination to have been executed by him.
9. A perusal of the agreement in question would reveal that the same pertains to subletting of a kerosene oil depot for a consideration. Judicial notice can be taken of the fact that in order to be engaged in the retail trade of kerosene oil, a licence is required under Delhi Kerosene Oil (Export & Price) Control Order, 1962 as issued under the provisions of the Essential Commodities Act, 1955. The sale of kerosene is strictly monitored under the public distribution system of the State Govt. Any subletting of kerosene depot is not permissible under the provisions of Delhi Kerosene Oil (Export & Price) Control Order, 1962. Accordingly, the agreement in question is per se illegal.
10. Section 23 of Indian Contract Act specifies where the consideration or object of an agreement is forbidden by law or defeats the provisions of law, then such agreement C.C No. 7071/14 Rajesh Gupta vs. Surender Singh Tamta Page 6 of 8 shall be void. Explanation to Section 138 N.I. Act clearly mentions that "debt or other liability" means a legally enforceable debt or other liability. In other words, a debt or a liability which cannot be legally enforced would not form a basis for making out an offence punishable u/s. 138 N.I. Act. I am fortified in my opinion from a decision of the Hon'ble Delhi High Court in Virender Singh vs. Laxmi Narayan 2007 Crl. L.J. 2262, wherein the Hon'ble court acquitted the accused when it was found that the cheque was issued against unlawful consideration of agreement. It was held that the agreement was void at its inception known to both the parties so a cheque issued against debt or liability which is not legal cannot be a base for prosecution on its dishonor u/s. 138 N.I. Act.
11. In the instant case also, since the consideration of the agreement is illegal, the dishonor of the cheque issued in pursuance of the said agreement would not attract the penal provisions of Section 138 N.I Act.
C.C No. 7071/14 Rajesh Gupta vs. Surender Singh Tamta Page 7 of 8
12. Since, the basis for making out an offence u/s. 138 N.I. Act is not made out, there is no need to venture into an exercise to determine whether the other ingredients are satisfied or not. The complainant failed to establish that there existed a legally enforceable liability against the accused, in discharge whereof the impugned cheque was issued. As the essential conditions of Section 138 are not satisfied, the offence U/s. 138 N.I Act is not made out against the accused.
13. Accordingly, the accused is acquitted for the offence punishable U/s. 138 N.I Act.
Announced in the open Court
on 5th February, 2015 (Gaurav Gupta)
MM01 (NI Act)/SouthWest
Dwarka/ New Delhi
C.C No. 7071/14
Rajesh Gupta vs. Surender Singh Tamta Page 8 of 8