Delhi District Court
M/S Abco Building Solutions vs . on 29 August, 2018
IN THE COURT OF SHRI SUDHIR KUMAR SIROHI: MM03: SOUTH
EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
M/S ABCO BUILDING SOLUTIONS
VS.
KAY PEE ESS CONTRACTS & ANR.
CC NO. 614056/16
U/s 138 Negotiable Instruments Act, 1881
1. CC no. :614056/16
:M/s ABCO Building Solutions
Through its Proprietor
Name of the
2. Sh Bipin Kumar Bhalla,
complainant
Having its office at:
II K5/8, Lajpat Nagar, New Delhi110024
1) Kay Pee Ess Contracts
Through its Proprietor
Shri Sudarshan Kumar Batra
Having its office at: E65, Amar Colony,
Lajpat Nagar, New Delhi110024
and also at: E238239, Amar Colony, Lajpat
Name of the accused, Nagar, New Delhi
3. parentage & residential
address 2) Shri Sudarshan Kumar Batra
Proprietor
Kay Pee Ess Contracts,
Having office at: E65, Amar Colony, Lajpat
Nagar, New Delhi110024
and also at: E238239, Amar Colony, Lajpat
Nagar, New Delhi
Offence complained of
4. :U/s 138 of Negotiable Instruments Act, 1881
or proved
5. Plea of the accused :Pleaded not guilty and claimed trial
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6. Final Judgment/order :Convicted
Date of
7. :29.08.2018
judgment/order
Date of Institution : 19.11.2012
Date of Reserving Judgment/Order : 13.08.2018
Date of Pronouncement of Judgment/Order: 29.08.2018
JUDGMENT
1. By way of the present Judgment, I shall dispose off the present complaint filed by M/s ABCO Building Solutions, through its Proprietor Shri Bipin Kumar Bhalla, (hereinafter referred to as 'complainant') against Kay Pee Ess Contracts and its Proprietor i.e. Shri Sudarshan Kumar Batra (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).
2. It is submitted by the complainant that the accused approached the complainant on 18.04.2012 for the work of repairing damaged plaster from ceiling at Khadi Gram Udhyog, Connaught Place, New Delhi. An agreement dated 18.04.2012 was entered by complainant and accused as per which accused was to make payment in advance in order to start the work and thereafter, the accused was to deduct from running/ final payment on prorata basis. It is submitted by the complainant that complainant had completed the work to the satisfaction of the accused and accused had made the initial payment, but still Rs.1.5 lacs was not paid. It is submitted that out of Rs.1.5 lacs, accused issued following cheque: CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 2 of 13 Sl. Cheque Returning Date Amount Bank No. No. Memo Kotak Bank of India, Mahindra Safdarjung Bank Ltd.,
1. 000702 01.07.2012 1,00,000/ Enclave Branch, Roots Tower, New Delhi Laxmi Nagar, Delhi
3. On the presentation of the abovesaid cheque of Rs.1,00,000/ by the complainant through his banker, it was dishonoured and returned unpaid with the remarks "Insufficient Funds" vide returning memo dated 18.07.2012. Thereafter, upon request of accused, complainant redeposited the cheque twice and at both times, the cheque was returned unpaid with the remarks "Insufficient Funds" vide return memos dated 30.07.2012 and 22.09.2012. Thereafter, complainant issued a legal demand notice dated 01.10.2012 to the accused but 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 on 13.05.2014 to which he pleaded not guilty and claimed trial. Further, the defence taken by the accused in the notice which was framed was that he is liable to pay only INR40,000 to the complainant as he had already made payment of Rs.60,000 vide cash to the complainant pursuant to dishonour of the cheque in question.
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5. The complainant in order to prove his case has examined himself as CW1 and filed his evidence by way of affidavit and relied upon the following documents:
(a) The original cheque is Ex.CW1/A.
(b) Original cheque returning memo dated 22.09.2012 is Ex. CW1/B.
(c) Office copy of legal demand notice is Ex. CW1/C.
(d) Reg. AD and speed post receipts are Ex. CW1/D1 to Ex.CW1/D4.
(e) AD Card of legal notice is Ex. CW1/E.
6. Thereafter, CW1 was crossexamined wherein he admits that although he had received payment of Rs.60,000/ from the accused post dishonor of the cheque in question, even after payment of Rs.60,000/ accused is still liable to pay Rs.1.60 lakhs to the complainant.
7. In the statement of accused recorded u/s 281 Cr.P.C., accused has stated that the complainant had not completed the work to his satisfaction and left the work in between and that the cheque in question was given to complainant towards payment. However, when it was dishonored and he was contacted, he gave complainant Rs.60,000/ cash towards the payment. Apart from Rs.60,000/ given by him to the complainant, complainant also took Rs.60,000/ from his Supervisor Pushp Das. Accused has further stated that complainant had not given payment to his labour and it was he who had given payment of Rs.50,000/ to the labour and some payment of labour is still due. Although, the accused has admittted receipt of legal notice, he states that he was under the impression that complainant will not file any complaint as payment has been made by him. Further, the accused takes the CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 4 of 13 line of defence that he is not liable to pay any money to the complainant rather, more money than the payable amount has already been given to complainant and he is liable for refund of money from complainant.
8. Accused has also examined two witnesses in his defence:
(i) DW1 HC Prakash Yadav has deposed that he does the work of water proofing and brings labour and machinery for the said work. He has deposed that all the construction work of Khadi Gram Udyog was done by him and that the complainant had not paid him Rs.1.5 lacs (approx) which was due for the work done. He has further deposed that the complainant had left the construction work incomplete and also his payment was not paid by the complainant. DW1 has also testified that he completed the work which was the duty of the complainant to complete upon receipt of Rs.50,000/ in June, 2012 from the accused.
(ii) DW2 Pushp Dass has deposed that he has been employed at Kay Pee Ess since 2001 and that work of water proofing of ceiling of Khadi Bhandar, Connaught Place was given to the complainant in 2012 but the complainant did not complete the work for which material was supplied by the accused. He has deposed that one cheque of Rs.1 lac was given to Bhallaji on 01.07.2012 by KPE Constructions and that complainant was asked not to present the cheque as payment was made regularly in cash. DW2 has placed on record receipt of cash payment made to the complainant as Ex. DW2/A bearing signatures of complainant. It is important to note that in his crossexamination, DW2 has admitted a receipt dated 02072012 Ex DW2/C1 which was issued CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 5 of 13 by the complainant to the accused for payment of money for work done wherein DW2 has admitted a note signed by him stating that total work completed by the complainant is of 4,600 square feet. Both defence witnesses were discharged after crossexamination.
9. Final arguments on behalf of both parties heard. The Ld. counsel for the complainant has submitted that accused had malafide intention since the very beginning as accused was aware that cheque given by him to complainant will be dishonored but still he deliberately did not maintain sufficient funds in his account. Thus, accused has caused wrongful loss to the complainant and wrongful gain to himself and has committed offence under Section 138 of NI Act. Per Contra Ld. defence counsel for the accused has submitted that though the cheque in question was issued by the accused but payments were made in cash in lieu of that cheque and therefore, the accused may be acquitted in this matter. He has even argued that it is accused who should be given refund as complainant has received more money than the amount of cheque in question.
10. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. 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 of the 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.
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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.
11. 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) 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. Section 118 of the N.I Act provides : "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;" Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder 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, of any debt or other liability".
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12. Specifically, 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 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 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].
13. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
14. From the aforesaid discussion, it becomes amply clear that the presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory presumption, but this does not preclude the CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 8 of 13 person against whom the presumption is drawn from rebutting it and proving the contrary.
15. In light of the legal position discussed hereinabove and the reasons stated below, I am of the considered opinion that the accused has not been able to raise any reasonable doubt in the case of the complainant and has also failed to bring on record any material on record which would render the case of complainant as improbable.
a. If the case of the accused is that he has already repaid the loan and nothing is due from him to the complainant, he should have either given reply to the legal notice or filed a police complaint against the complainant.
b. Further, testimony of DW1 in favour of the accused is not of much relevance in the current dispute since essentially DW1 is putting forward his grievance with the complainant that the complainant owed him a sum of approximately Rs. 1.50 lakhs for the work done by him with respect to the project entrusted by the accused to the complainant and that it was the accused who paid him Rs. 50,000 upon which he completed all the work. Firstly, the primary grouse of DW 1 does not in any manner hit upon the presumption raised in favour of the complainant by virtue of S. 118 and S. 139 of NI Act. This is so because, the liability of the accused upon issuance of the concerned cheque arose towards the complainant and the same does not in any manner gets fulfilled by payment of money to DW1 who had been delegated work by the complainant. Additionally, it is also difficult to CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 9 of 13 fathom that the accused would pay the aforementioned amount as alleged to DW1 without keeping the complainant in the loop about it. There is no evidence on record to exhibit that complainant was made aware of this issue arising with respect to payment of dues to DW1 by the accused. Moreover, there is an inherent discrepancy in the testimony of DW1 wherein he states that Rs. 1.50 lakhs was due from the complainant to DW1. If that was the case, then why is it that DW 1 completed the entire work of the accused as is alleged by him merely upon payment of Rs. 50,000 by the accused to him. On these grounds, the testimony of DW1 does not inspire confidence of the court.
c. Moving on to the testimony of DW2, the most essential piece of evidence which is put forward is a document Ex DW2/A which contains handwritten noting of cash payments tendered by the accused to the complainant till 03.09.2012 and signature of the complainant against some of those entries. One factor which strikes at the credibility of this document is that it even contains an entry of Rs. 60,000 cash payment made by the accused to the complainant on 18.07.2012 a separate acknowledgment receipt of which has been anyway been put to the complainant in his cross examination by the accused under 145 (2) of the NI Act as Ex CW1/D3 and which has also been admitted by the complainant. Consequently, Ex DW2/A is a very vague selfserving document, which does not reflect that accused has discharged his liability towards payment of money to complainant. The fact that liability towards payment existed by the accused in favour of the complainant is also clear from Ex Dw2/C1 which has been admitted by CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 10 of 13 DW2 in his cross examination and which is an invoice raised by the Complainant on the accused for the work done wherein DW2 has made a noting with pen stating 'total work completed 4,600 square feet'.
d. Additionally, it is observed that during the entire course of trial, the accused has been very inconsistent in the defence put forward by him at all the stages, viz.: notice u/s.251CrPC, in application for cross examining the accused under S. 145 (2) NI Act as well as his statement recorded under S. 281 CrPC. To elaborate, in the notice u/s 251 Cr.P.C. framed against the accused on 13.05.2014 to which he pleaded not guilty and claimed trial, , the defence taken by the accused was that he is liable to pay only INR40,000 to the complainant as he had already made payment of Rs.60,000 vide cash to the complainant pursuant to dishonour of the cheque in question. However, in the application under S. 145 (2) NI Act dated 19.07.2014, the accused has stated that Rs.60,000 paid by the accused to the complainant is full and final payment towards the cheque in question and that he is not liable to pay any further amount to the complainant and that the cheque in question has been misused by the complainant despite his promise to return the cheque to the accused. Thereafter, the line of defence taken by the accused in his statement under S. 281 CrPC on 06.05.2015 is that the accused is entitled to a refund from the complainant as more money than that which he is liable to pay to the complainant has been paid to him as apart from Rs. 60,000 paid by cash to the complainant, the complainant has also taken a total of Rs. 60,000 from the supervisor of the accused.
CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 11 of 13 e. Further, the argument of the learned counsel for the accused that the accused had paid Rs. 3.5 lakhs as payment towards raw material which was in fact the financial responsibility of the complainant to bear does not carry any weight as this averment is not substantiated with any proof.
f. Also, another issue which puts a question mark on the credibility of the defense of the accused is that if infact, the complainant had not completed the work and had left the work midway, then why is it that payments were being continued to made to him vide the cheque in question as well as through cash as is alleged by the accused vide receipt Ex DW2/A. DW2 has stated in his examination in chief that the complainant has not completed his work and the rest of the work was got done through other labourer.
g. Additionally, the argument of the learned counsel for the accused that discrepancy in the allegations and testimony of the complainant as to the amount being due to the complainant from the accused being Rs. 1,50,000 or Rs. 1,60,000 does not carry much weight and is not suffice to rebut the presumptions raised in favour of the complaiant by virtue of S. 118 (a) and S. 139 of the NI Act since it is a minor contradiction which does not in anyway create any doubt with respect to the amount of Rs. 1 lakh for which the cheque in question was issued by the accused to the complainant.
CC No. 614056/16 M/s ABCO Building Solutions Vs. M/s KAY PEE ESS Contracts & Anr. Page No. 12 of 13 Conclusion:
16. In the facts and circumstances of the present case, on appreciation of the evidence and on the basis of material on record, I hold that accused failed to raise a probable defence and rebut the presumption in favour of complainant under section 118 (a) and 139 N.I Act, whereas the complainant has satisfied ingredients of section 138 NI Act.
17. Let copy of this judgment be provided forthwith to the convict, free of cost.
18. Let the convict be heard on quantum of sentence separately.
19. A copy of this judgment be placed on the official website of the District Court.
Announced in the open court (VASUNDHRA AZAD)
on 29.08.2018 MM03, South East,
Saket Courts, New Delhi
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