Delhi District Court
Shobha Bhutani vs . Perfect Press Pvt. Ltd. & Ors. on 19 February, 2014
IN THE COURT OF SHRI GAGANDEEP JINDAL: MM (N.I.ACT):
SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Shobha Bhutani Vs. Perfect Press Pvt. Ltd. & Ors.
CC No.1393/1/2011
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification : 02406R0366162011
Number of the case
2. Name of the complainant : Smt. Shobha Bhutani
W/o Shri N.D. Bhutani
R/o B-19, Jangpura-B, Near
Hotel Rajdoot, New Delhi
3. Name of the accused , : 1. M/s. Perfect Press Pvt.
parentage & residential Ltd.,30/1, East Patel Nagar,
address New Delhi - 110008
Also at : A-73, Sector-2,
Noida, District : Gautam
Budh Nagar, Uttar Pradesh
2. Smt. Manjeet Kaur
Managing Director,
M/s Perfect Press Pvt. Ltd.
30/1, East Patel Nagar, New
Delhi - 110008
3. Shri Manohar Singh,
Director, M/s Perfect Press
Pvt. Ltd. 30/1, East Patel
Nagar, New Delhi - 110008
Also at : M/s Imagine Store,
CG-01, Ground Floor, HUDCO
Place, Khel Gaon Marg,
Ansal Plaza, Khel Gaon,
New Delhi - 110049
4. Shri Tripth Singh
Director M/s Perfect Press
Pvt. Ltd. 30/1, East Patel
Nagar, New Delhi - 110008
Also at : M/s Imagine Store,
CG-01, Ground Floor, HUDCO
Place, Khel Gaon Marg,
Ansal Plaza, Khel Gaon,
New Delhi - 110049
4. Offence complained of or : U/s 138 of Negotiable
proved Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and
claimed trial
6. Final Judgment/order : Accused no.1 to 3 are
Convicted and accused no.4
is acquitted.
7. Date of judgment/order : 19.02.2014
Date of Institution : 15.02.2011
Date of Reserving Judgment/Order : 06.02.2014
Date of Pronouncement of Judgment/Order : 19.02.2014
JUDGMENT
1. By way of the present Judgment, I shall dispose off the present complaint filed by the complainant against the accused u/s 138 of Negotiable Instruments Act, 1881 r/w Sec. 142 Negotiable Instruments Act, 1881 (hereinafter referred to as N.I. Act in short)
2. The case of the complainant is that accused no.1 through its managing director accused no.2 being authorized vide resolution dated 02.05.13 sold industrial property No.74 situated in Block-A, Sector-2, Noida, District Gautam Budh Nagar, U.P. Measuring 416 sq. mtrs. (hereinafter referred to as 'the property in question') to the complainant vide documents including agreement to sell with possession, registered general power of attorney, undertaking, indemnity bond, affidavits for a sum of Rs.18 Lacs which was duly paid by the accused through accused no.1. It is further alleged that the possession of the property in question was handed over to complainant and thereafter, a rent agreement dated 15.07.03 was executed vide which the entire ground floor of the property in question was given to the accused no.1 through accused no.2 at the rent of Rs.20,000/- per month starting from 01.07.13. It is further alleged that the accused persons failed to hand over the original transfer deed of the property in question and despite repeated requests and lastly vide letter dated 01.10.03, they have handed over the original transfer deed of adjoining premises belonging to accused no.1 i.e. A-73, Sector-73, Sector-02, Noida in lieu of property in question. It is further alleged that the complainant approached Noida authorities for transfer of the property in question by means of sale deed in her favour through the said general power of attorney executed by accused no.1, the accused cancelled the said registered GPA dated 13.04.09.
3. It is further alleged that vide legal notice dated 17.09.10, complainant called upon the accused to hand over the vacant peaceful possession of the property in question besides payment of arrears of rent @ Rs.20,000/- per month w.e.f. August, 2003 and damages and thereafter, issued another legal notice dated 21.12.10. On receipt of legal notice dated 21.12.10, accused no.2 and 3 in the last week of December, 2010 came to the house of complainant and agreed to vacate the ground floor of the property in question and issued the following cheques :-
Cheque No. Date Amount
015614 06.01.2011 Rs.3,00,000/-
015615 06.01.2011 Rs.1,50,000/-
015616 06.01.2011 Rs.2,50,000/-
015696 06.01.2011 Rs.3,00,000/-
When the said cheques were presented for encashment, the same were returned vide returning memo dated 10.01.11 and 11.01.11 with the remarks 'account closed'. Thereafter, complainant got issued legal demand notice dated 18.01.11 through her counsel and accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand notice. Hence, the present case was filed.
4. Notice u/s 251 Cr.P.C. was framed against the accused persons to which they pleaded not guilty and claimed trial.
5. To prove his case, complainant has examined one Ajay Bhutani who is AR of the company by way of affidavit as Ex. CW-1/A who has relied upon the following documents :
-
(a)special power of attorney in favour of witness Ajay Bhutani as Ex. CW-1/1,
(b)Copy of agreement to sell with possession Ex. CW-1/2,
(c)Copy of rent agreement Ex. CW-1/3,
(d)legal notice dated 17.09.10 and 21.12.10 as Ex. CW-1/4 and Ex. CW-1/5 respectively,
(e)Original cheques as Ex. CW-1/6 to Ex. CW-1/9
(f)Returning memos Ex. CW-1/10 and Ex. CW-1/11,
(g)Copy of legal demand notice Ex. CW-1/12,
(h)Postal receipts for sending legal demand notice are Ex. CW-1/13 to Ex. CW-1/18 and AD cards are Ex. CW-1/20 to Ex. CW-1/23.
(i)Reply to the legal notice Ex. CW-1/24 During the cross examination of CW-1, he was confronted with the following document i.e. copy of plaint filed in District Courts, Noida as Ex. CW-1/D-1.
CW-1 was discharged after cross examination.
6. The accused no.2 in her statement recorded u/s 313 Cr.P.C. denied the execution of agreement to sell with the complainant and submitted that her signatures were obtained in blank papers and the contents were later on got printed and denied execution of any rent agreement. She submits that the the cheques in question were given to the complainant as security while taking the loan in the year 2002.
7. The accused no.3 and 4 have answered the question in their statement recorded u/s 313 Cr.P.C. on the similar lines as accused no.2 has answered.
8. The accused persons have examined Manjeet Kaur as DW-1 who has relied upon the following documents :-
(a)Photocopy of Form-32 of accused company as mark A
(b)A receipt for clearance of the employees provident fund of accused no.4 as mark B
(c)Counterfoils of the cheques as Ex. DW-1/A (Colly)
(d)Statement of account as mark C
(e)Letter to a bank Ex. DW-1/B,
(f)Revocation of GPA Ex. DW-1/C
(g)Balance sheet for the year 2013 as mark E and F
(h)Physical examination is mark G
9. The accused persons have also examined Accused no.3 Manohar Singh as DW-2 and Anil Kumar, Officer of bank as DW-3. DW-3 has produced the statement of account as Ex. DW-3/A. All the defence witnesses were discharged after cross examined.
10. Final arguments on behalf of both the parties heard.
11. Ld. Counsel for the accused persons has firstly raised the defence that the cheques in question were not given to the complainant for payment of rent as alleged by the complainant. Rather, these cheques were given by the accused persons for the security purpose against the loan taken by them. Ld. Counsel for the accused persons has also disputed the authenticity of special power of attorney in favour of witness Ajay Bhutani as Ex. CW-1/1, Copy of agreement to sell with possession Ex. CW-1/2 and Copy of rent agreement Ex. CW-1/3.
12. To prove the defence raised by the accused persons, Ld. Counsel for accused has relied upon the cross examination OF CW-1 and testimonies of defence witnesses.
13. During the cross examination of CW-1, no suggestion was put to CW-1 regarding authenticity of the documents Ex. CW-1/3. In the statement u/s 313 Cr.P.C., accused persons stated that they never entered into any agreement to sell regarding the property in question, the complainant obtained the signatures of accused no.2 on blank papers. DW-1 in his evidence has stated that :
".....It was agreed between the parties that the loan availed from the complainant by us will be interest free for which first and second floor of the premises No.A-74, Sector-2, Noida, U.P. Will be given on rent vide GPA to procure the rent from the said premises. The possession of the entire property No. A-74 was with us. We have also given some blank signed papers to the complainant at the time of taking loan but the complainant had misused the same against us and executed an agreement to sell and rent agreement......."
14. DW-2 has also deposed on the similar lines regarding the authenticity of papers. DW-1 was confronted with written statement filed by accused persons in a civil suit pending in Noida Courts. Para no.4 of the said written statement read as under:-
"4. It is stated that the documents relied upon by the Plaintiff to seek reliefs as claimed in the present documents are sham documents and the entire transaction of "Agreement to Sell" as pleaded by the Plaintiff is also a sham transaction. It is submitted that the Defendants at the material point of time i.e. On or about June, 2003, were in urgent need of funds and had approached the Plaintiffs for some financial held in form of a friendly loan. As the loan was to be an unsecured non-interest bearing loan repayable on demand, it was agreed that corroborating documents would be created so as to proved a "collateral security" in favour of the Plaintiffs. It was with this intent that basic agreements were drawn up by the Plaintiff which were duly signed by the Defendant in good faith."
It is important to mention that the documents in these two cases are similar. From this para of written statement, it reveals that the documents Ex. CW-1/1 to Ex. CW-1/3 were signed by accused no.2 when these were already got printed and not on the blank papers as stated by DW-1 and 2 in their testimonies.
Moreover, as per section 91 & 92 of Indian Evidence Act, the contents of the documents can be proved by the documents itself which will be best evidence and no oral testimony contrary to the contents of the documents shall be admitted. The accused persons failed to disprove the documents Ex. CW-1/1 to Ex. CW-1/3.
15. Secondly, the accused persons while framing of notice u/s 251 Cr.P.C. have taken the plea of defence that the cheques were issued as security against a loan of Rs.10 Lacs which was taken from the complainant in 2002 and repaid in cash in installments from time to time till 2004. While in the statement recorded u/s 313 Cr.P.C. it is stated by the accused persons that complainant received Rs.16.75 Lacs by way of cheques and the loan taken by accused No.1 from the complainant and receipt of cash is also admitted. There is contradiction in the amount of loan taken by the accused company. Moreover, accused company is a registered company and has to maintain its account books as per the prescribed accounting standards as per law. If it has taken alleged loan from the complainant in the year 2002-03, then it must reveal in its account books as well as balance sheet for the year 2002-03. But the said balance sheet for the year 2002-03 is not produced by the accused persons for the reasons best known to them rather filed balance sheet as on 31.03.06 mark 'E' and as on 31.03.12 Mark 'F' which were not proved as per provisions of law because no certificate u/s 65 B of Evidence Act is filed nor any other certificate, issued by Chartered Accountant who had audited the accounts of accused company, is filed. So the adverse inference can be drawn against them.
16. Ld. Counsel for the accused persons submitted that cheques in question was not handed over by accused no.2 and 3 in the last week of December, 2010 as mentioned in para 16 of Ex. CW-1/A because as per the medical documents of accused no.3 as mark G, the accused was admitted in the hospital.
Perusal of the medical document mark G, accused no.3 was admitted in the hospital on 17.12.10 and discharged on 19.12.10. Therefore, the contention of Ld. Counsel for accused persons based on these medical documents that the said cheques cannot be handed over by accused no.2 and 3 to the complainant in the last week of December, 2010 holds no ground.
17. Ld. Counsel for the accused further raised that the cheques in question were issued in blank as mentioned in the counterfoils Ex. DW-1/A and the same were filled afterwards by the complainant and misused the same. But as per section 20 of Negotiable Instruments Act, once a person signs and delivers a negotiable instrument to any other person, he thereby gives prima facie the holder to make or complete the said negotiable instrument. It is admitted fact that the cheques in question were given to the complainant after signing the same by accused no.2. Therefore, in view of provision so section 20 of Negotiable Instruments Act, I find no merits in this contention of the Ld. Counsel for the accused. I also find support from the Judgment of Hon'ble High Court in the case titled as "Ravi Chopra Vs. State & Anr" reported in 2008 (2) JCC (NI) 169, where it is so observed that once the accused handed over the cheque to the complainant, he also granted implied authority to the complainant to fill the contents of the same and cannot raise the objections regarding same at later stage. The accused persons have failed to lead cogent evidence to prove that the cheques in question were given to the complainant for security purpose and failed to rebut the presumption u/s 118 of N.I. Act.
If for the sake of the arguments, it is assumed that the cheques in question were given for the security purpose against the loan of Rs.18 Lacs taken by the accused company. Then it is the admitted fact that the said loan is not repaid by the accused company to the complainant which can also be an alternative legal enforceable liability of the accused persons for which reference can be made to the Judgments of case titled as "Brahmdeo Singh Vs. Hari Singh" AIR 1996 Patna 498, "Avadh Bihari Singh Vs. Sheo Shanker Pandey" AIR 1955 PAT 451, "Heera Chand Vs. Jeev Raj" AIR 1959" Raj. 1.
18. Ld. Defence Counsel submitted that accused no.4 is not aware about the facts and transaction with the complainant as he has already resigned from the directorship of the accused company on 01.10.10 as mentioned in Form-32 of the accused company. Perusal of the document mark G reveals that the accused no.4 had resigned from the Board of Directors of accused no.1 on 01.10.10 while the cheques in question were issued by the accused company in the last week of December, 2010. Therefore, liability u/s 138 of Negotiable Instruments Act cannot be fixed against accused no.4.
Conclusion
19. From the above discussion and appreciation of the evidence, this court is of the opinion that the complainant has successfully proved that the cheques in question were issued by the accused no.1 to 3 to discharge their legally enforceable liability which got dishonoured on their presentation and accused persons failed to make payment within 15 days after service of legal demand notice. The accused no.1 to 3 have failed to raise any probable defence to rebut the presumption u/s 139 of Negotiable Instruments Act.
20. In view of the aforesaid discussion and findings of the court, the court is of the considered opinion that the complainant has been successful in establishing all the ingredients of Section 138 of Negotiable Instruments Act against the accused no.1 to 3 in respect of the cheques in question beyond reasonable doubt. Accused no.1 to 3 are accordingly convicted for the offence u/s 138 of Negotiable Instrument Act. Accused no.4 is acquitted in this case.
Announced in the open court (Gagandeep Jindal) on 19.02.2014 MM(N.I. Act):SED: Saket Courts, New Delhi