Delhi District Court
Cc No. 2099/09 Page 1 Of 14 Lalit Singhal vs . Pradeep Kumar on 21 July, 2010
1
IN THE COURT OF MS. MONA T. KERKETTA, MM (N/E) KKD
COURT DELHI.
CC NO. 2099/09
U/S. 138 N.I. ACT
PS. Bhajan Pura
1. Date of Institution : 19.07.03
2. Name of the Complainant : Sh. Lalit Singhal,
S/o. Late Sh.B.B.Singhal
R/o.H.No. BII/431, Yamuna
Vihar, Delhi.
3. Name of accused : Sh. Pradeep Kumar Garg,
S/o. Late Sh. M.C.Garg,
R/o. A102, Yojna Vihar, Delhi
92.
4. Offence Complained or proved : U/s. 138 Negotiable
Instruments Act.
5. Plea of the accused : Pleaded not guilty.
6. Arguments heard /Order reserved on: 03.07.10
7. a Final Order : Convicted.
8. Date of such order : 17.07.10
Brief reasons for the decision of the case.
1. The facts as stated by complainant in his complaint are as CC No. 2099/09 Page 1 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 2 follows:
2. It is stated that complainant and accused are the near relatives and were having very good & cordial relation with each other. Accused expressed his desire to sell his share in the property bearing no. A102, Yojna Vihar, Delhi and ultimately offered the same to the complainant and an oral agreement took place between the parties for a sale consideration of Rs. 10,00000/ (Ten Lakhs). It was agreed between the parties that the complainant will make the payment in parts and after receiving the total sale consideration, the accused shall transfer his share in the abovementioned property in favour of the complainant or any other person nominated by the complainant. In pursuance of the abovesaid agreement, complainant in phases paid a sum of Rs.8,57,000/ by way of cheques and cash, to the accused.
3. It is further stated that after receiving payment of Rs. 8,57,000/ from the complainant accused refused to transfer of property on the pretext that there are some dispute in the family. When complainant asked for the refund of money, accused issued three cheques bearing nos. 058551, 058555 & 058566 dt. 26.12.02, 31.12.02 & 15.01.03 for a sum of Rs.2,23,000/, 6,00,000/ & 34,000/, drawn on Central Bank of India, Sukhdev Vihar, New Delhi25, in favour of complainant with assurance that the cheque will be encashed on its presentation with the bank. CC No. 2099/09 Page 2 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 3
4. It is stated that complainant presented cheques in question with his banker for encashment, which was returned with the remarks 'Account Closed' vide memo Dt. 31.05.03.
5. The complainant gave a legal notice dt.04.06.03 to accused in this regard through registered AD & UPC, which was duly served upon accused but he failed to reply the said notice and also failed to pay cheque amount within stipulated period provided under NI Act.
6. Complainant has prayed for summoning, trying & punishing accused U/s. 138 r/w 142, Negotiable Instrument Act. (hereinafter referred to as act).
7. On the basis of presummoning evidence, accused was summoned for the offence U/s. 138 N.I. Act by my Ld. Predecessor. Accused put his appearance and notice U/s. 251 Cr.P.C was framed against accused on 23.10.04 by my Ld. Predecessor, to which he pleaded not guilty and claimed trial.
8. Complainant examined himself as CW1 in post notice evidence & thereafter closed his CE on 22.08.07. Complainant has relied upon Ex.CW1/A evidence by way of affidavit, Ex.CW1/1, 2 & 3 cheques in question, Ex.CW1/4, 5 6 & 7 cheque returning memos, Ex.CW1/8 legal demand notice, Ex.CW1/9 & Ex.CW1/10 Regd. A.D & Postal Receipts & CC No. 2099/09 Page 3 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 4 UPC receipts, Ex.DW 2/C1C10 copies of cheques.
9. Statement of accused was record u/s 313 Cr.P.C. on 14.11.2007. Accused examined his wife Smt. Sudha Garg as DW1. Accused has relied upon Ex.DW 1/A which is affidavit of DW 1.
10. I have gone through the record carefully and heard arguments of Ld. Counsel for the parties.
11. The contention to be decided in the present complainant is as to whether the cheque in question was issued in discharge of any liability towards complainant as it has not been disputed by accused that he issued cheque in question and has also not disputed that cheque in question was dishonoured. Accused has further admitted receipt of legal notice dated 04.03.06 (above said facts admitted by accused in his statement U/s 313 Cr.P.C).
12. Accused in his statement U/s. 313 Cr.P.C has explained the circumstances, in which he handed over cheque in question to complainant. Accused in his statement U/s. 313 Cr.P.C has stated that he had issued cheques in question for the amount and the date mentioned therein but it was not towards repayment of any amount. Complainant had taken said cheques for making payment for purchasing some property and on sale of the same, commission was to be paid to him. In fact, CC No. 2099/09 Page 4 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 5 complainant had struck a deal with him that he will be selling and purchasing property and certain percentage of such property dealings shall be paid to him. Complainant had told him that he being a Govt. Servant, was not in a position to do such kind of business, therefore, the amount in such deals was to paid by cheque from his account and for this purpose complainant had deposited a sum of Rs. 55,000/ in the account of accused. When no deal could be finalised, he asked for return of his cheques i.e. cheques in question, which was refused by the complainant. Subsequently, accused had sent a letter through UPC on 18.12.02 seeking return of said cheques.
13. After going through the testimony of CW & DW it is clear that the accused has specifically denied that he had agreed to sell the property bearing No. A102, Yojna Vihar and Complainant had agreed to purchase the property for a sum of Rs. 10,00,000/(Rs. Ten lac only). The accused has denied that any payment was ever made by the complainant. Issuance of cheques is admitted but it is contended that the same were issued not in discharge of any debt/liability but complainant had received the same for property dealing business which was to be operated in the name of accused.
14. Counsel for accused has argued relying upon the judgments titled as Tajaram Ramnath Mourya Vs. Ramasrey Haridas Soni & Anr. 2009 (1) DCR 455, Vijayakumar Vs. Lab & General Exports (P) Ltd. CC No. 2099/09 Page 5 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 6 2009 (1) DCR 457, & Anjana Balkrishna Shewale Vs. Chayya Baban Jagdale & Anr. 2009 (1) DCR 420, that where a cheque is not issued for the purpose of discharge of any debt or other liability, the maker of the cheque is not liable for prosecution because there exist no legal consideration. A debt or liability means legally enforceable debt or liability. Complainant in the present complaint has failed to show that cheques were issued in discharge of a debt or liability.
15. It is further argued on behalf of accused that it seems practically unreasonable and unbelievable that no written documents would be executed for sale of a valuable property situated in a posh colony of Delhi. Complainant has failed to bring on record promissory note/receiptscum note, which were allegedly executed pertaining to sale of property i.e A 103, Yojna Vihar, Delhi. Complainant has no plausible explanation as to why an agreement to sale was not executed when a promissory note was executed.
16. Ld. Counsel for accused has drawn attention towards deposition of CW1, which go on to prove that no such transaction had taken place between parties. CW1 has deposed that he did not ask for title document pertaining to the intended property. He did not check the document regarding inheritance. He used to meet brothers of accused but did not ask the status of the property. He did not even verify the market value of the property of accused.
CC No. 2099/09 Page 6 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 7
17. Counsel for accused submits that complainant has not brought on record any statement of account as to when and in what mode & installments complainant had given money for the purchase of said property as complainant has deposed that he gave the entire amount after withdrawal from the bank. Complainant has further deposed that he had not shown those amount in his income tax return for the relevant period. Therefore, from the testimony of complainant it is clarified that no such dealing/transaction had taken place ever.
18. Counsel for complainant on the other hand submits that plea of accused is completely false. The name of firm by which the property dealing business was alleged to have been started is nowhere mentioned. No bank account of such firm, place of business, details of transactions and description of property for which the cheque in question was issued has been brought on record. Counsel for complainant further submits that complainant had not got any agreement to sale executed being close relative as he completely trusted words of accused. Complainant did not show the said amount in his income tax return for the relevant period as it was not pertaining to any income & was withdrawn from the bank.
19. Counsel for complainant has drawn attention of this court towards contradictory statements of DW in her deposition, wherein she has deposed that neither she nor her husband (accused) has ever done property dealing business. This fact alone falsifies the defence of CC No. 2099/09 Page 7 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 8 accused. Counsel for complainant further submitted that DW is not the owner of property offered for sale. She has specifically admitted, in deposition that she does not possess any document showing her ownership in said property. She has made two entirely different statements as to how she got the ownership of said property. Firstly on 22.08.09 she deposed that the property was gifted to her by accused and later on she deposed that the said property was sold to her by brothers of accused. DW has further deposed that she got the house constructed after death of her fatherinlaw but she does not remember the quantum of loan taken for construction and she cannot bring the record of loan. These material contradictions falsifies the version of accused.
20. During the course of argument, counsel for complainant submits that complainant has filed a suit for recovery of money against the accused on the basis of cheque in question. Complainant has brought on record copies of cheques Ex.DW2/C1C7. Complainant had issued these cheques for part payment towards purchase of said property and from evidence it is clear that these cheques were encashed either by accused or his wife. The signature of Pradeep Garg (accused) has been duly attested by the complainant on the back side of cheque. The signature of accused on the back of cheque Ex.DW2/C1C7 are exactly the same as available in the court file of the present case.
21. Counsel for complainant has further drawn attention towards CC No. 2099/09 Page 8 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 9 specific admission of accused U/s. 313 Cr.P.C regarding receipt of a sum of Rs. 55,000/ in his account which was allegedly deposited for business dealings. In reality the accused had received the said amount of Rs.55,000/ through encashment of Ex.DW2/C1C10 as part consideration for the sale of his property. It is further submitted that the accused has not brought on record the letter dispatched on 18.12.02 for seeking return on cheques in question when no deal could be finalised.
22. Counsel for complainant has further submitted relying upon the judgment cited as B.V. Rangam Vs. B. Govinda Reddy & Anr. 2004 CRI. L.J 3170 that since issuance of cheque is admitted, presumptions U/s. 139 & 118 NI Act can be drawn in favour of complainant. Presumption U/s. 139 can be drawn that complainant has discharged his initial burden as to legally enforceable debt. Now the burden to prove that said cheque was not issued against a legally enforceable debt is with accused and if the accused fails to rebut those presumption, he is liable to be prosecuted U/s. 138 NI Act.
23. I have considered submissions of respective counsels and gone through the judgments.
24. So far as contention of issuance of cheques in question towards discharge of legally enforceable debt is concerned, I am of the view that in view of section 139 & 118 of Negotiable Instrument Act, a number of CC No. 2099/09 Page 9 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 10 presumptions such as debt or liability can be raised. Most important is a presumption of debt or liability in favour of the payee or holder in due course. Section 139 NI Act raises a presumption in favour of holder of a cheque that holder of a cheque received the cheque for discharge in whole or part of any debt or other liability. Once issuance of cheque in question is admitted, the burden lies upon accused to rebut presumptions U/s. 139 NI Act. The complainant, in the present complaint has specifically mentioned in the complaint as well as affidavit that he made payments in phases as part consideration of the purchase of the property. Ex.DW2/C1 C7 clearly proves that said cheques were encashed by accused as well as his wife. Hence, accused has failed to rebut presumption U/s. 139 of NI Act.
25. Further, I find force in the submission of counsel for complainant that being in close relation, it is possible that no purported document might have been executed between the parties as complainant did trust the words of accused. Since family relations are admitted, it is possible that complainant might not have clarified or enquired about title of the property. From deposition of DW, material contradictions in statements can be noticed. She has categorically denied that she or her husband i.e accused were engaged in property dealing business. She has given two different statements regarding ownership of said property. Firstly she said that her husband had gifted her the said property and later on she changed her statement and deposed that brothers of accused had sold the said CC No. 2099/09 Page 10 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 11 property to her. She has not brought on record any document in order to establish her ownership of said property. All these clearly falsifies the version of accused.
26. As regard, complainant's failure to show the said income in incometax return for relevant period is concerned, I am of the view that not showing a monthly transaction in one's income tax return does not prove that the money not shown in incometax return is money earned by way of illegal means. Non showing a transaction in one's incometax return may make a person guilty of violation of provision of incometax but it cannot be proved by way of incometax return that loan advanced to accused was not legally enforceable debt on account of it being earned illegally.
27. Furthermore, accused has not brought on record the letter sent through UPC allegedly on 18.12.02 seeking return of cheques from complainant when no deal could be finalised. Ex.DW2/C1C7 clearly prove, that accused had received payment as a part consideration for sale of property.
28. Accused has taken a defence that cheque in question was not meant to be used towards discharge of a lawful liability/debt but he has not been able to prove his defence as discussed by me in preceding paras of this judgment.
CC No. 2099/09 Page 11 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 12
29. I find force in submissions of counsel for complainant and of the opinion that discrepancies in deposition of DW falsifies version of accused and stands taken by accused in his affidavit & statement U/s. 313 Cr.P.C does not inspire any confidence. Moreover, witness examined on behalf of accused namely Smt.Sudha Garg does not support version of accused in material particulars as detailed in submissions of counsel for complainant recorded in earlier part of this judgment.
30. Thus, complainant has proved his case beyond all shadow of doubt & consequently, I held accused guilty of offence U/s. 138, NI Act.
ANNOUNCED IN THE OPEN
COURT ON 17.07.10 (MONA T. KERKETTA)
MM/(NE)/KKD/DELHI/17.07.10
CC No. 2099/09 Page 12 of 14 Lalit Singhal Vs. Pradeep Kumar
Garg
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IN THE COURT OF MS. MONA T. KERKETTA, MM (N/E) KKD COURT DELHI.
CC NO. 2099/09 U/S. 138 N.I. ACT PS. Bhajan Pura ORDER ON SENTENCE 21.07.10 Pr: Complainant with Ld. counsel. Convict with Counsel.
I have heard Ld. Counsel for the parties on the point of sentence. Ld. Counsel for the convict has submitted that convict is a senior citizen. It is further submitted that he is working as a accountant in a cinema hall and has no other source of income. He has prayed for lenient view.
On the other hand, Ld. Counsel for complainant has submitted that convict is a habitual defaulter. This is not merely a case of dishonour of cheque but it is a case, where mutual trust of close family relatives has been dishonoured as with the passage of time when the value of property gone high, accused became dishonest. It is further submitted that lenient view should not be taken as complainant is senior citizen and has suffered a lot due to prolonged litigation.
It is very unfortunate that close family relatives are involved in this case. It is a clearcut example, where greed for money has eroded family relationship and values resulting into further enhancement of pain and CC No. 2099/09 Page 13 of 14 Lalit Singhal Vs. Pradeep Kumar Garg 14 sufferings of complainant, who is compelled to wonder in the corridors of justice for years. Only severe punishment would send a deterring message among the lawviolators.
In view of above, I am of the opinion that the ends of justice, would be met, if accused be awarded adequate punishment for his offence so as to deter others from indulging into such practices. He is awarded sentence to undergo RI for six months and also to pay fine of Rs. 17,20,000/ (double of cheque amount), out of which Rs. 10,000/ would go to State Exchequer, which accused is directed to deposit within 15 days from today. Accused shall pay remaining amount of Rs.17,10,000 / to the complainant within 45 days from today. It is further ordered that in case of default in payment of fine within time fixed, accused shall undergo SI for 3 months.
At this stage counsel for convict has moved an application U/s. 389 Cr.P.C for grant of bail till filing of appeal before Hon'ble Sessions Court. Convict is directed to furnish bail bond in the sum of Rs. 30,000/. Bail bond furnished and accepted till 20.08.10. File be consigned to record room after due compliance.
Copy of this order alongwith copy of judgment be given to accused free of cost.
ANNOUNCED IN THE OPEN
COURT ON 21.07.10 (MONA T. KERKETTA)
MM/(NE)/KKD/DELHI/21.07.10
CC No. 2099/09 Page 14 of 14 Lalit Singhal Vs. Pradeep Kumar
Garg