Delhi District Court
Sh. Murari Prasad vs . Surender Verma on 30 July, 2022
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE - 04 : NORTH WEST DISTRICT
ROHINI DISTRICT COURTS : NEW DELHI
Sh. Murari Prasad Vs. Surender Verma
PS Keshav Puram/Budh Vihar
U/s 138 Negotiable Instruments Act
Date of Institution :02.12.2015
Date of Judgment :30.07.2022
JUDGMENT
(1) Serial number of the case : 22873/16
(2) Name of the complainant : Sh. Murari Prasad
S/o.: Sh. Parasshah
R/o.: H. No.L116, Gali No.5,
Prem NagarII, Kirari,
New Delhi
(3) Name of the accused : Surender Verma
C/o M/s Syam Jewllers,
Shop No.3246/29, Gali No.29
Vian Pura, Karol Bagh,
Delhi110005
Also At
Flat No.C14,
Parwana Apartment,
Plot No.52, Sector9,
Rohini110085
(4) Offence complained of/proved: U/S 138 Negotiable Instruments Act,
1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Acquitted
(7) Reserved for judgment on : 06.07.2022
Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 1 of 13
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that Gold Diamond Locket set worth Rs. 8 lakh was purchased by the complainant from the shop of the accused; that thereafter due to some financial crisis, the complainant contacted the accused for the sale of his aforesaid diamond locket; that accused agreed to purchase the aforesaid Diamond locket from the complainant for the sum of Rs. 5 lakhs only; that after taking a Diamond locket from the complainant, the accused issued and handed over the cheque bearing no. 717136 amounting to Rs. 5 lakhs dated 30.08.2015 drawn on Yes Bank Branch at Karol Bagh, Delhi; and the same was presented to the banker of the complainant which was returned for the reason "funds insufficient" vide return memo dated 05.10.2015; this was duly intimated to the accused who again sought the presentation of the cheque and upon the presentation, the same was returned dishonoured with remark "payment stopped by Drawer" vide returning memo dated 14.10.2015; that legal notice was issued to the accused dated 07.11.2015 however despite the service of legal notice to the accused, he did not make the payment of the cheque. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led presummoning evidence by way of affidavit (Ex CW1/A) and relied upon documents i.e., : cheque bearing no. 717136 dated 30.08.2015 for Rs. 5,00,000/ drawn on Yes Bank, Karol Bagh, New Delhi Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 2 of 13 (Ex.CW1/1); the bank return memo dated 05.10.2015, 14.10.2015 (Ex CW1/2 and Ex. CW1/3); legal notice dated 19.05.2015 (Ex CW1/4), postal receipts (Ex CW1/4 and Ex. CW1/6), and tracking report (Ex. CW1/7 and Ex. CW1/8) which were duly considered by the Ld Predecessor and the accused was summoned vide order dated 10.02.2016 for offence u/s. 138 NI Act.
3. After the accused entered appearance, he was admitted to bail and notice was framed against him on 06.05.2017 by the Ld Predecessor wherein the accused stated his defence that though the cheque was issued by him and his signatures are impressed upon it. The cheque in question was issued for security purpose and he had received the legal notice dated 07.11.2015.
4. After the application of the accused under section 145 (2) NI Act was allowed by the Ld Predecessor vide order dated 06.05.2017, the accused was permitted to crossexamine the complainant.
5. During his evidence, the complainant was duly cross examined by the counsel for accused in which he stated that he deals in tiles fitting, marble fitting in stone. He's older than 50 years. He is 10 pass and is from Bihar and lives at Prem Nagar. He lives with his wife and children. He earns around 2050 thousand per month. He has a bank account with Punjab National Bank and does not file ITR. He knows accused since 23 years before he filed the complaint. He knows the accused since he hypothecated something with the accused. He knows other Goldsmiths as well. He do not have balance in his bank account. That all his earnings are in cash. He had earlier purchased gold, Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 3 of 13 diamond jewelry in Bihar through known goldsmith. He paid cash for this jewelry and he got cash received for it. He did not remember how much gold, diamond jewelry he has. He had purchased diamond jewellery in Delhi and not in Bihar. He did not know since when he is purchasing gold jewelry when he had cash, he had buy gold jewelry. He came to Delhi before 2010. He further deposed that he buys gold or land from his savings and does not have any office of his tile or marble business and work as and when contacted. He further deposed that he do not have business of tiles and marbles. He's a worker with thekedar. All his investments are in cash. He took between Rs. 500 to Rs. 1500 when he worked on the Dihadi. All of his earning are in cash and do not deposit his earnings in bank. He deposd that he earns Rs. 20,000 per month in 2015 and used to earn around 2 to 3 lakhs annually approximately however he do not remember how much money he had in his bank. He used to buy gold jewelries to gift his wife. He has brought the diamond pendant to give his wife. The diamond pendant was circular, it has 5.5. CT written on it. He bought it around year 2015 and for Rs. 8 lakhs at the shop of the accused. He paid Rs. 8 lakh in one go. He did not have any entry in the bank account of Rs. 8 lakh and do not filed ITR. He did not know how much balance he had in his bank at that time. He can get his passbook of the year 2015. On the next date of hearing, accused produced his passbook which was exhibited as Ex. CW1/A1 And he deposed that it is correct bank account reflects Rs. 5,131/ qua April 2015.He returned the pendant around August 2015. The diamond was oval in shape Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 4 of 13 with. He did not have any knowledge about the quality of Diamond. He wanted to sell the diamond as he wanted to purchase land worth Rs. 12 lakhs in Prem Nagar and was getting a profit . He had not inquired about the price of the gold pendant in the market from anybody else. He denied that he was working as a Commission agent on cash basis. He denied that there are no cheque transaction because he was fully working on cash basis in the market. He denied that he has misused the security check being the cheque in question and he had instituted false case against the accused. He denied that he did not have documentary evidence with respect to transaction because of the reason that such transaction never took place as was entered into. He volunteered that the record was taken by the accused. He denied that he is deposing falsely. He denied that he never paid any amount. He denied that he had never sent a legal notice to the accused.
6. The statement of accused was thereafter recorded under Sec 313 CrPC on 04.05.2022 wherein the entire incriminating evidence was put to the accused and he reiterated his defence. He stated that the cheque was given to the complainant for the purpose of security. That the return memo was not placed in original on record. That he has received the legal notice and further reiterated when the complainant approached him, he was told that he was the gold and also doing the business of diamond and diamond jewellery. He is also a jeweler and the complainant used to buy used in jewelry from him since the year 2009 and used to sell the same in Bihar. The complainant used to come to Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 5 of 13 him twice or thrice in a couple of months. The complainant approached him to sell a diamond pendant which he never took. The complainant being approached him to sell the same pendant because he was in dire need of money. Upon considering his repeated requests, he gave him a cheque Rs. 5 lakhs against the said pendant. The complainant upon not getting the required market price, and I forgot to take back the said cheque in question. Complainant misused the said cheque and filed a false and frivolous case against him.
7. The accused however chose not to lead any evidence in his defence.
8. Final arguments advanced by Sh. Ashok Kumar, Ld counsel for the complainant and by Ms. Swadha Gupta, Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
9. To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That 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;
Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 6 of 13
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by him with a bank and hence the ingredient (i) is deemed to proved as not disputed.
11. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Ex CW1/1 dated 30.08.2015 was returned dishonoured on 05.10.2015 and 14.10.2015. During his crossexamination, no questions were put to the complainant nor any suggestions were given to him as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) i.e. the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.
Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 7 of 13
12. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by him in his statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
13. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, he sent notice dated 07.11.2015 (Ex CW1/4) to the accused had admitted to have received the legal notice. Henceforth the ingredient (v) also stands admitted.
14. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved. DEBT/LIABILITY
15. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the nonexistence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument.The burden upon the accused of proving the non Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 8 of 13 existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 )
16. The NI Act also provides under Section 139 that 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. Thus, Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. 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'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. 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 Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 9 of 13 cases the accused may not need to adduce evidence of his/her own. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
17. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.
18. Firstly, during the crossexamination of the complainant, his financial capacity was questioned. It has been deposed by him in his crossexamination that he does not file ITR and further he is a daily wage worker with the thekedar and earns about Rs. 5001500 on Dihadi. All his earnings are in cash and he saves around Rs. 10 to 20,000 in a month in 2015. A daily wage earner who owns around 2 to 3 lakhs annually cannot be conceptualize to purchase the pendant of amount of Rs. 8 lakhs, taken into consideration that he's a family man and has to take care of his family as well.
19. Secondly, the particulars in the complaint are vague in nature and do not specifically mentions that when such gold diamond locket was purchased, when it was returned and the nature of complaint as well as the deposition of the complainant do not inspire confidence that the daily wage earner who earns Rs. 500 per day would negotiate in a diamond pendant worth Rs. 8 lakhs.
20. Thirdly, In his crossexamination, the complainant have deposed that he's not even income tax assessee and during his crossexamination, there are various improvisation which shakes his testimony in the present case. Firstly he states Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 10 of 13 to be dealing in marbles and stones and thereafter he had denied to have been dealing in such profession/business and thereafter he says that he's a worker as a daily wage worker. Even the passbook which was produced in evidence by the complainant reflects the balance amount of Rs. 5,131 also adds to the financial incapacity of the complainant to have negotiated are dealt with a diamond pendant for the amount of Rs. 8 lakhs. Further there is no bill, no receipt qua purchase of such diamond pendant, henceforth the complainant have miserably failed to reveal the legal liability of the accused. Therefore the financial capacity of the complainant is not enough in the present case henceforth accused stands acquitted.
21. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt/liability/consideration was improbable/doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.
22. However, the complainant herein has miserably failed to do so. His Passbook statement Ex. CW1/A1 reflecting the amount of around Rs. 5,131 reflects poorly on his financial capacity. Moreover nothing has been placed on record to prove the financial capacity of the complainant. The revision was preferred but it was only with respect to the bank written memo which was not filed in original. I have also produced the order of the Ld. ASJ and this court is of the opinion that no prejudice is caused in the present case and no adjudication is required over the bank return memo as complainant have miserably failed to Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 11 of 13 prove his financial capacity on merits of the case. Despite given opportunity, he has failed to do so
23. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities ( Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
24. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.
25. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused Sh. Surender Verma S/o Sh. K.L.Verma is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, he stands acquitted.
26. Accused Sh. Surender Verma S/o Sh. K.L.Verma is directed to furnish bail bond and surety bond in the sum of Rs.25,000/ under Section 437(A) of the Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 12 of 13 Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
27. File be consigned to Record Room after due compliance. Announced in the open court on 30.07.2022 (VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 13 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Vijay Kr. Vs. Sanjay Gupta, CC No.9845/2017 Page 13 of 13