Delhi District Court
Cnr. Dlct020250672017 M/S Imperial ... vs Anil Sethi Page 1 Of 26 on 21 February, 2022
CC No. 13312/2017
CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 1 of 26
IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
CNR DLCT020250672017
CC No. 13312/2017
M/s Imperial World Travel
(Through its proprietor)
Sh. Niketan Anand,
Office at A3/32,
Moti Nagar, New Delhi- 110015 ...... Complainant
Vs.
Anil Sethi
S/o Sh. Jaswant Rai Sethi
R/o 4/13, Subhash Nagar,
Najafgarh Road,
New Delhi -110027 ...... Accused
Date of Institution : 25.10.2017
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the Accused : Not Guilty
Final Order : Acquittal
Date of Decision : 21.02.2022
JUDGEMENT
Page 1 of 26
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1. The present Complaint has been filed by the Complainant against the Accused under section 138 Negotiable Instruments Act, 1881.
Factual Matrix
2. The brief facts as alleged by the Complainant in the Complaint are that the Complainant is a proprietorship firm engaged in the business of providing travel assistance services and that the Accused is practising astrology and providing consultancy people in general. It is stated by the Complainant that pursuant to various meetings for numerology and astrology consultations with the Accused, friendly relations had developed between them and the Accused had approached the Complainant with an offer to sell the property bearing No. 228, Pocket- 3, Block C, Sector 34, area measuring 32 m² situated in Rohini residential Scheme, Delhi. It is also stated that on the basis of the assurances of the Accused, the Complainant was convinced to invest his money and buy the said property.
2.1 Next, it has been alleged that the Accused had offered to sell the said property for a total sale consideration of ₹ 15 lakh and the Complainant had agreed to purchase the same by virtue of an oral agreement. It has been also alleged that pursuant to the said oral agreement, a sum of ₹ 9,50,000 was paid by the Complainant to the Accused in cash by way of instalments and final payment was made on 16th of November 2016 towards Earnest money/part sale consideration. Thereafter, it has been alleged that the Accused kept delaying execution/signing of the documents and the Complainant Page 2 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 3 of 26 came to know that the said property is subject matter of the pending litigation involving the Accused herein and one third party, Mr. Sanjay Bhasin. Subsequently, it has been alleged that the Complainant cancelled the oral agreement and made requests to the Accused for repayment of the sum earlier paid by the Complainant. It has been alleged that in the discharge of the aforesaid liability, the Accused herein issued a cheque bearing number 000058 dated 21st of August 2017 for an amount of ₹ 950,000 drawn on Punjab and Sindh bank, Subash Nagar branch in favour of the Complainant i.e., Imperial World Travels.
2.2 When the Complainant presented the said cheque, hereinafter referred to as the cheque in question through his banker Oriental Bank of Commerce, Paharganj branch, the same was returned unpaid by the banker of the Accused vide returning memo dated 11th of September 2017 with the remarks "Funds Insufficient".
2.3 The Complainant thereafter issued a legal demand notice on 14th of September 2017 through counsel calling upon the Accused to pay the said cheque amount within a period of 15 days from receipt thereof. The said notice was duly served upon the Accused, the Accused also sent his reply dated 25th of September 2017 and failed to pay the aforesaid cheque amount within the statutory period.
2.4 Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (hereinafter the NI Act) was filed on 25th of October 2017 by the Complainant, praying for the Accused to be summoned, tried, Page 3 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 4 of 26 and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the court
3. Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit Ex. CW-1/A wherein the Complainant has affirmed the facts stated in the instant Complaint.
4. Documentary Evidence: To prove the case, the Complainant has relied upon the following documents:
a) Unexecuted agreement to sell, general power of attorney, indemnity bond, special power of attorney, agreement for construction, affidavits, undertaking, possession letter and will along with requisite stamp papers dated 06th of May 2017 and bearing name of Anil Sethi (Accused herein) and Meenakshi Sethi as first party/executant/obligor/testator and Niketan Anand (Complainant herein) as the second party/obligee/legatee, Ex. CW1/1.
b) Original cheque bearing no. 000058 dated 21st of August 2017 for a sum of ₹ 950,000 drawn on Punjab and Sindh bank Subash Nagar Branch, Ex. CW1/2.
c) Original cheque return memo dated 11th of September 2017 Ex. CW1/3.
d) Office Copy of legal notice dated 14th of September 2017 Ex. CW1/4.Page 4 of 26
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e) Postal receipts and track report Ex. CW1/5 (Colly).
f) Reply dated 25th of September 2017 sent by the Accused, Ex. CW1/6.
5. Summoning of the Accused: On finding of a prima-facie case against the Accused, the Accused was summoned on 1st of November 2017 where the Accused appeared before the court on 27th of March 2018.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused on 27th of March 2018 to which he pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused had stated that the signature on the cheque in question was his. He also admitted receiving the legal demand notice and stated that the cheque in question was issued in blank with his signature only as security for the amount of ₹ 10 lacs which was stated as fee for visas to Poland for the son of the Accused i.e., Dheeraj Sethi and the nephew of the Accused, i.e., Arun Chawla. It was also stated that the aforenoted visas were never so arranged by the Complainant. The Accused stated that the Complainant had sent him the image of the cheque in question (after filling the same except the date) to him through Whatsapp in February or March, 2017 for showing him the name of the payee. The Accused also stated that another cheque bearing number 000060 issued to the Complainant for a sum of ₹ 50,000 was encashed by the Complainant after filling the name of the payee as Niketan Anand. The Accused denied having any liability towards Page 5 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 6 of 26 the Complainant and stated that his cheque has been misused.
7. Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the Complainant. Thereafter, the Complainant was examined as CW1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged. Ms. Namita, JJA in the Court of Sh. Deepak Kumar, Ld. MM, Tis Hazari was also examined as CW-2. No other witnesses were examined by the Complainant. Thereafter, Complainant evidence was closed, and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
8. Statement of the Accused: Statement of the Accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 7th of May 2019 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused stated that he had issued the cheque in question as a blank signed cheque to the Complainant and came to know later on about the dishonour when the present complaint was filed. He reiterated the stance taken in the notice of accusation and stated, in addition that his son had approached the Complainant firm for visa and for procurement of a job abroad. The Accused also stated that the Complainant firm had taken 2 cheques from him and the cheque in question was given as a blank signed cheque along with another cheque for a sum of ₹ 50,000 which was encashed by the Complainant. The Accused then stated that the Complainant did not provide any visa or job as promised and the Complainant misused the present cheque in Page 6 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 7 of 26 question. The Accused denied having any liability towards the Complainant and stated that rather, the Complainant owed him an amount of ₹ 50,000 that the Accused had paid to him. Lastly, the Accused stated that the Complainant has prepared two files pertaining to his son and nephew and had also applied for visa into countries but the applications were rejected by the respective embassies.
9. Defence Evidence: The Accused examined four witnesses in his favour, i.e. DW-1: Sh. Dheeraj Sethi, DW-2: Sh. Arun Chawla, DW-3: Sh. Nand Lal Wadhwa and DW-4: the Accused himself. Thereafter, a separate statement of the Accused to that effect was recorded and defence evidence was closed. The matter was then fixed for final arguments.
10.Final Arguments: Final arguments were advanced by both sides. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused. I have also perused the record.
Legal Position
11.For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant: -
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that Page 7 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 8 of 26 account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that 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 agreement made with that bank;
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice;
11.1. The aforesaid legal requirements are cumulative in nature, i.e. only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
11.2. The provision of s.138 is buttressed by s.139 and s.118 of the Act.
s. 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. s.118 of the Act provides inter alia that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, Page 8 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 9 of 26 negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
11.3. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 and s. 118 of the Act mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume"
used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary.
11.4. In the case of Hiten P. Dalal v. Bratindranath Banerjee1, the Hon'ble Supreme Court had occasion to examine the confines of the presumption u/s 139 of the Act, wherein it held as follows:
"22. Because both Sections 138 and 139 (..) "introduce an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused."
(Ibid. at p. 65, para 14.) (...) 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.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
1(2001) 6 SCC 16 Page 9 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 10 of 26 (...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).
11.5. Also, in the case of Rangappa v. Sri Mohan2, it was held that:
"(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. (..)
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities".
(...) As clarified in the citations, the Accused can rely on the materials submitted by the Complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own(...)"(emphasis supplied) 11.6. With regard to the factors taken into account for rebutting the presumption u/s 139 read with s.118 of the Act, the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena 3 assumes importance, wherein it was held that:
2(2010) 11 SCC 441 3 CRL. A. No. 1136 Of 2010 Page 10 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 11 of 26 "Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. (...) The Accused, by cogent evidence, has to prove the circumstance under which cheques were issued". (emphasis supplied) Appreciation of evidence
12. Now I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredient in question or not.
(a) That a person has drawn a cheque, 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 legally enforceable debt or other liability 12.1. This condition pertains to the issuance of the cheque itself. It is pertinent to note that the Accused, in his notice of accusation has admitted his signature on the cheque in question. Further, the cheque has been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 read with s.118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or other liability.
12.2. In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal 4, it was held:
"12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is 4 (1999) 3 SCC 35 Page 11 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 12 of 26 supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.
The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. (emphasis supplied)"
12.3. Also, in the case of Kumar Exports Vs. Sharma Carpets5, it was held:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
The Accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. (...) To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not 5 2009 (2) SCC 513 Page 12 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 13 of 26 supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the Complainant. The Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear 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. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the Complainant's rescue. (emphasis supplied)"
12.4. The case of the Complainant, in a nutshell, is that the Accused and the Complainant had entered an oral agreement for the purposes of sale of the property for a total consideration of ₹ 15 lakh whereby an amount of ₹ 9,50,000 was given in cash to the Accused by the Complainant and thereafter, the said agreement was cancelled by the Complainant upon coming to know that the said property was subject matter of pending litigation. It is also the case of the Complainant that the cheque in question was issued by the Accused in favour of the Complainant for discharge of legally recoverable debt, i.e. the alleged ₹ 9,50,000 paid by the Complainant.
Page 13 of 26Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 14 of 26 12.5. The defence of the Accused, as borne from the reply to the legal demand notice, the answer to the notice of accusation, statement of the Accused u/s 313 r/w 281 Cr.P.C. and the testimony of defence witnesses paints a diametrically opposite picture. It is the case of the Accused that the Complainant had promised to procure visas for employment abroad for the son (DW-1: Mr. Dheeraj Sethi) and nephew (DW-3: Mr. Arun Chawla) of the Accused and the cheque in question was issued in blank signature only as security for an amount of ₹ 10 lakh which was stated by the Complainant to be his fee for getting the job done. It is also the case of the Accused that another cheque (not being the cheque in question) of the Accused for ₹ 50,000 had been presented and encashed by the Complainant but the Complainant failed to honour his promise and procure the visas and instead misused the cheque in question by presentation. Liability under the cheque in question is denied on the aforesaid ground.
12.6. The presumption, having been raised against the Accused, it falls upon the Accused to rebut it. The Accused has chosen to do so by cross-examining CW - 1 and by leading evidence in his defence by way of DW - 1 to DW - 4.
12.7. CW - 1, in his cross examination, admits that he is running business of travel agency. He also admits that DW - 1 is the son of the Accused and that tickets of DW - 1 were booked by him and payment thereof was also done by him. The invoice Ex. CW1/DX dated 18.02.2017 which pertains to tickets of 'China Eastern' Page 14 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 15 of 26 bearing Ticket No. 7811250618613 and bearing the name of DW- 1 is also admitted by CW - 1. He also goes on to admit that none of the documents forming subject matter of CW 1/1 (Colly) are bearing the signature of the Accused. The next admission made by CW - 1 proved to be quite injurious to the case of the Complainant. CW - 1 admits that he received the cheque in question as blank signed with signature only from the accused and that the rest of the contents were filled by him. The aforesaid admission is manifestly contrary to para 11 of the Complainant and Ex. CW1/A whereby the Complainant has averred cheque in question was issued by the Accused for a specific amount, date and in favour of the Complainant herein. The law on issuance and delivery of blank signed cheques is well settled by the judgement of Bir Singh Vs. Mukesh Kumar6, wherein the drawer is liable unless the contrary is proved but the factum of possession of undated blank signed cheque of the accused at or about the period indicated on CW-1/1 is quite relevant to the case of the defence.
12.8. In the instant case, the aforesaid contradiction in the testimony of CW - 1 vis-à-vis the complaint and the evidence affidavit is quite material because it is the case of the Accused that there was no sale transaction, that the cheque in question was issued as security for the purposes of procuring visa and Ex.CW1/1 is a subsequent document manufactured by the Complainant to favour his case.
62019 (4) SCC 197 Page 15 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 16 of 26 12.9. Perusal of the record reveals that none of the documents forming subject matter of Ex. CW1/1 have been signed by the Accused or the Complainant, and as such the said document cannot be read against the Accused and no legal sanctity could be attached to the said documents except to prove the narration that the Complainant had made efforts to procure the documents for the purposes of the sale transaction. Further, even though Ex CW1/1 refers to the Complainant by name as 'Niketan Anand' in all placed, the cheque in question has been issued in favour of 'Imperial World Travels'. No explanation is forthcoming as to why when the Accused allegedly had property transaction with 'Niketan Anand' in his individual capacity, he would issue the alleged cheque in question in the name of the business of the Complainant, 'Imperial World Travels', which admittedly has no connection with the sale transaction and whose name is absent on Ex. CW1/1. Moreover, when CW - 1 has admitted that the cheque in question was issued by the Accused in blank with signature only and the rest of the details were filled by CW - 1 himself, it becomes quite likely that Ex. CW1/1 could also have been prepared subsequently as per the sweet will of CW-1 so as to be in proximity with the date appearing on the cheque in question.
12.10. The testimony of CW - 2 does not take the case of the Complainant any further as it merely proves that there is a criminal complaint case filed by the Accused against one Sanjay Bhasin and Tejinder Kaur without any reference to the property forming Page 16 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 17 of 26 subject matter of Ex. CW1/1 i.e., property bearing No. 228, Pocket- 3, Block C, Sector 34, area measuring 32 m² situated in Rohini residential Scheme, Delhi.
12.11. It is the testimony of DW - 1 which unravels the case of the Complainant and solidifies the defence of the Accused. DW - 1 deposes that in the year 2016, he along with DW - 2: Arun Chawla were trying to settle abroad and the Complainant herein, arranged a meeting with DW - 3: Nandlal Wadhwa. Thereafter, he states that DW - 3 promised them that he would get them work visa for Europe and asked ₹ 10 lakh for the said services but ₹ 9.5 lakh were agreed for the same. He further deposed that he along with DW-2 applied for visa to Italy with the help of DW - 3, which was rejected. DW - 1 also deposed that the duo (DW-1:Dhiraj Sethi and DW-2:Arun Chawla) also tried to apply for visa of Poland and Greece, which was also rejected. However, the visa for China was approved and the duo had travelled to China and returned. DW - 1 has also pointedly deposed that the cheque in question was issued by the Accused to the Complainant herein as security and that DW - 3 was the mediator between him and the Complainant wherein the function of DW - 3 was to arrange the documents for the visa. He also deposed in respect of the purpose of the cheque in question stating that the same was issued so that the Complainant can encash the amount in case their visa application was approved but the same was presented wrongfully despite rejection of visa application.
Page 17 of 26Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 18 of 26 12.12. It is interesting to see that DW - 1 not only deposes consistently in respect of the aforesaid transaction with the Complainant but also backs it up with relevant documentary evidence, i.e.,Ex.DW- 1/A: Employment/Occupation proof issued by DW - 2, Ex. DW- 1/B: visa rejection letter issued by Polish Embassy and Ex. DW- 1/C: Salary Slips in favour of DW-1. It is quite pertinent to note that the Complainant has not taken any objection in respect of admissibility of the said documents and merely contended that these documents do not have any connection with the case of the Complainant.
12.13. DW - 3 has corroborated the testimony of DW - 1 in material particulars whereby he has stated that the Accused had approached him for the purposes of immigration of DW- 1 and DW-2 abroad and that the duo had visited China and thereafter expressed the desire to visit Europe wherein he had arranged an invitation from a European company but their applications were rejected. DW - 3 also states that he made an acquaintance with the Accused at the office of the Complainant. He also did not dispute providing invitation letters to DW - 1 and DW - 2 for the said purpose and the rejection of visa thereafter. The aforesaid fact is also supported by Ex. DW-1/A-C as well.
12.14. It is the testimony of DW - 2 further cements the defence of the Accused whereby DW - 2 deposes that he and DW - 1 had desired to go abroad and they had requested the Accused for the same and it was the Accused who had asked them to meet the Complainant.
Page 18 of 26Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 19 of 26 He also deposed that thereafter they met the Complainant who had asked them to give two cheques, firstly for ₹ 50,000 and secondly a security cheque for arranging the work visa for both of them. Thereafter, he has stated that they were referred by the Complainant to meet DW - 3 whereby some papers were prepared and submitted on two occasions but the visas were rejected. He also pointedly states that the cheque for ₹ 50,000 as well as the security cheque had been issued by the Accused herein. The travel of the duo to China is supported by DW - 2 as well.
12.15. The Accused himself, when appearing as DW - 4 has stuck to his guns and remained consistent in his defence and his testimony corroborated in material particulars by the other defence witnesses. In addition thereof, he has also denied any suggestion to the contrary given by the Complainant. He has also brought on record Mark A, i,e,, complaint dated 7th of September 2017 sent to the SHO, PS Rajouri Garden alongwith its courier receipt. The testimony of all of the defence witnesses is found to be clear, cogent and made in a manner which renders the possibility of contrived testimony unlikely.
12.16. At this stage, it would be apposite to deal with certain submissions advanced from the side of the Complainant. Firstly, it is submitted that pursuant to the alleged oral agreement between the Complainant and the Accused, ₹ 950,000 was advanced in cash to the Accused and the transaction as well as the willingness of the Complainant could be discerned by Ex. CW1/1 whereby even the Page 19 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 20 of 26 stamp papers bear date of 6th of May 2017 and they could not have been antedated. It is also stated that it is only due to the pending litigation, already established, the deal was called off. The said submission is quite attractive but is wholly without merit considering what has been culled out from the materials on record.
12.17. The only evidence of the oral agreement is the ipse dixit of the Complainant and there is no independent witness who could prove the agreement or the advancement of the amount in cash. Moreover, when CW - 1 has admitted that the cheque in question was issued in blank with signature only by the Accused, it is quite probable that it was up to the sweet will of the Complainant to fill up any date upon the cheque in question. Hence, even though it could not have been reasonably within the power of the Complainant to antedate the stamp papers, it would have been very well possible to fill up the date on the cheque in question which coincides/forms a nexus with the documents, Ex. CW1/1. The only fact which somewhat favours the Complainant is that there existed a dispute in respect of ownership of property bearing No. 228, Pocket- 3, Block C, Sector 34, area measuring 32 m² situated in Rohini residential Scheme, Delhi between the Accused and a third party and that too has been culled out only from the admission of DW - 1 and DW - 4. Even DW - 3 has only made a stray statement that when he had met the Accused for the first time, he was discussing some sale transaction with the Complainant without disclosing or claiming to know any details thereof and the Page 20 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 21 of 26 case of the Complainant falls short on that score. The presence of the photographs of the Accused on Ex. CW1/1 has also been sufficiently explained by the Accused and the explanation is quite consistent with the plea of defence taken by the Accused.
12.18. It is also been contended on behalf of the Complainant that assuming but not admitting that there existed a transaction between DW - 1 and DW - 2 with the Complainant for the purposes of visiting abroad, no cogent reason has been forthcoming as to why the Accused had issued the cheque in question instead of the duo. It is also been stated that DW - 1, DW-2 and DW-4 have given inconsistent answers in reply to the said question. The said submission also fails to take into consideration that it is not the reason which is relevant but the fact that the said defence witnesses have all deposed clearly and cogently and without modifying their stance that it is the Accused who had given a security cheque to the Complainant on their behalf and for the purposes of procuring visa, which could not fructify. The fact that the duo themselves had bank accounts or that it was they who had to visit abroad pursuant to the services of the Complainant would not operate to militate against the defence of the Accused. The apparent reasons for handing over the cheque in question by the Accused instead of the duo and the inference drawn might naturally differ from person to person and would be a fact which would be in the exclusive knowledge of the person so deposing at the variation in the testimony cannot be said to be material or injurious to the defence, Page 21 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 22 of 26 especially when the major aspects of the testimony quite clearly support the defence.
12.19. The ground of the witness being an interested witness has been taken by both sides at the time of final arguments. It has been submitted on behalf of the Complainant that DW - 1 & DW-2 are an interested witnesses, being the son and nephew of the Accused. It has been submitted on behalf of the Accused that DW - 3 has admitted being in contact with the Complainant before appearing to depose and his testimony qua the alleged sale transaction is required to be discarded, being made by a witness who is interested case of the Complainant. There is no provision of law or precedent which states that the testimony of an interested witness is to be discarded outright. It is the bounden duty of the court to sift the grain from the chaff and to examine the testimony of the witness when tested on the anvil of cross-examination. Thus construed, there appears to be no apparent infirmity in the testimony of either of the said witnesses and they have individually withstood the test of cross-examination. Hence, the said ground is found to be without merit.
12.20. Next, it has been submitted on behalf of the Complainant that if the defence of the Accused were in fact true, it is apparent from the record that neither the Accused nor any defence witnesses have made any complaint against the Complainant or even stopped the payment of the cheque in question and that Mark A has not been sufficiently proved according to law of evidence. In reply, it has Page 22 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 23 of 26 been submitted on behalf of the Accused that the Accused had duly replied to the legal demand notice and that a presumption of service must be drawn as against the postal receipt forming subject matter of Mark A. 12.21. It must be kept in mind that the case of the Complainant must stand on its own legs. Though the case of the Complainant is initially aided by presumptions in his favour, the burden of satisfying all the legal ingredients of the offence beyond reasonable doubt rests upon the Complainant and never shifts. The Complainant cannot rely upon the inconsistencies in the defence in support of its own case. While it is true that Mark A contains a postal receipt which does not bear the complete date and no witness from the concerned Police Station was examined in proof of receipt of the complaint, the same would not operate to demolish the whole of the defence of the Accused. The same would only mean that Mark A is not sufficiently proved and no presumption of service could be raised qua the same. Even if an adverse inference 7 is drawn against the Accused on the basis of certain parameters including not stopping payment of the cheque in question, the fact remains that the same is an inference and not evidence. An adverse inference cannot operate to tilt the scales in favour of the Complainant when the Accused has, from the materials already on record and by way of leading independent evidence, established his defence and has been able to show that the case of the Complainant is improbable, 7 u/s 114 of the Indian Evidence Act, 1872 Page 23 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 24 of 26 when looked at from the standard of a reasonable man.
12.22. Resultantly, the presumption that the cheque in question were issued in discharge of any legally recoverable debt or other liability of the Accused stands rebutted and the onus shifts back upon the Complainant to prove the same. Considering the evidence on the record, the Complainant has miserably failed to discharge this onus and this ingredient remains unfulfilled as against the Accused.
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
12.1. This requirement is satisfied on a perusal of the cheque in question Ex. CW1/2 which bears date of 21st of August 2017 and the return memo Ex. CW1/3 which bears the date of 11th of September 2017. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused.
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that 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 agreement made with that bank 12.2. s. 146 of the Negotiable Instruments Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The bank return memo Ex. CW1/3 on Page 24 of 26 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 13312/2017 CNR. DLCT020250672017 M/s Imperial World Travel V/s Anil Sethi Page 25 of 26 record states that the cheque in question has been returned dishonoured for the reason " Funds Insufficient". The defence has led no evidence to controvert the same and hence, this ingredient is also fulfilled as against the Accused.
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid 12.3. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/4 to the Accused. The original postal receipts in respect of the same are already on record as Ex. CW1/5 (Colly). The Accused has not disputed service of legal demand notice and has also sent reply Ex. CW1/6 which is on record. Hence, the said ingredient stands fulfilled against the Accused, being undisputed.
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice 12.4. In the instant case, the Accused has admitted receiving legal demand notice, both in the notice of accusation u/s 251 Cr.P.C. and the statement of the Accused u/s 313 read with s.281 Cr.P.C. It is also an admitted position that the Accused has failed to pay the cheque amount within the statutory period, on the ground that he does not owe any liability towards the Complainant, a defence which he has been able to prove at the trial. Hence, this ingredient stands fulfilled as against the Accused.
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13. As all the ingredients of the offence are not cumulatively satisfied against the Accused, the Accused Anil Sethi is hereby Acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
VISV Digitally signed by VISVESH
ESH
Date: 2022.02.21 18:01:35 +05'30'
ANNOUNCED BY VIDEO (VISVESH)
CONFERENCE ON 21.02.2022 MM, NI ACT-06, CENTRAL
TIS HAZARI COURTS,
DELHI
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