Delhi District Court
Rahul Yadav vs Vijay Khanna on 12 December, 2018
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
RAHUL YADAV VS VIJAY KHANNA
CC NO. 476514/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 476514/2016
(2) Name of the complainant : Rahul Yadav
S/o Late Sh Jai Prakash Yadav
R/o H.No. 2, Street No. 2,
Village Saidulajab, PO Mehrauli,
Delhi-110030
(3) Name of the accused, : Vijay Khanna
parentage & address S/o Sh. N D Khanna
R/o H.No. 9407, Garden Villas,
DLF Phase IV, Tehsil & District
Gurgaon, Haryana
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : ACQUITTED
(7) Date of Institution : 02.02.2015
(8) Date on which reserved for
judgment : 01.12.2018
(9) Date of Judgment : 12.12.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that complainant entered into oral agreement to sell with the accused on 01.01.2014 at the residence of accused on the representation of dealer Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 1 of 14 2 Surender, accused & his wife Radha Khanna that the built up property bearing no. E-224, Sainik Farms, New Delhi admeasuring 500 sq. yards is free from all encumbrances and the original chain of documents (laminated) pertaining to the said property were shown to the complainant. The complainant agreed to purchase the said property for a total sale consideration of Rs2,60,00,000/-, out of which complainant paid Rs02 lacs in cash and Rs01 lakh vide cheque no. 591425 dated 01.01.2014 drawn on ICICI Bank, branch Saket, New Delhi to the accused. Further, complainant paid Rs20,000/- to the dealer/Surender as part of his commission and Rs1100/- as token. Thereafter, the complainant paid total sum of Rs20 lacs in following manner :
1. On 04.01.2014 - Rs05 lacs cash
2. On 06.01.2014 - Rs03 lacs deposited in bank
3. From 18.01.2014 to 24.01.2014 - Rs 01 lakh deposited in bank and Rs03 lacs paid by way of RTGS
4. On 25.01.2014 - Rs 01 lakh cash
5. On 05.02.2014 - Rs 05 lacs through RTGS Thereafter, an agreement to sell was executed between complainant & accused with respect to the said property on 25.01.2014.
Thereafter, as per the demand of accused, on 25.04.2014 complainant paid further sum of Rs11 lacs to the accused and thus, the complainant paid a total sum of Rs31 lacs to the accused. The accused did not honour his part of agreement and gave a cheque of Rs31 lacs bearing no. 068415 dated 22.05.2014 drawn on ICICI Bank, Sushant Lok, Gurgaon branch to the complainant. Thereafter, accused further demanded money and on 30.05.2014, complainant paid further sum of Rs65,000/- to the accused and accused issued a new post dated cheque bearing no. 071546 dated 22.08.2014 for an amount of Rs31.65 Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 2 of 14 3 lacs drawn on ICICI Bank, Sushant Lok, Gurgaon branch to the complainant and complainant returned the previous cheque to the accused. The said cheque on presentation was returned dishonoured with remarks "Signature Differ" vide cheque returning memo dated 21.11.2014. Thereafter, on failure of accused to pay the cheque amount, a legal demand notice dated 18.12.2014 was sent to the accused through speed post & courier which was deemed to be duly served upon the accused. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complaint.
2. In the pre-summoning evidence, affidavit by way of evidence Ex.CW1/A was filed by the complainant. In his affidavit of evidence Ex.CW1/A, the complainant reiterated all the averments made in his complaint and relied on documents copy of the Agreement to Sell ExC1, receipts advancing payments made ExC2 & ExC2-A, original cheque in question ExC3, its return memo ExC4, office copy of legal notice ExC5, speed post & courier receipts ExC6 & ExC7 and proof of delivery ExC8.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 30.03.2015.
3. Accused appeared pursuant to issuance of production warrants as accused was stated to be in JC in some other case. Thereafter, inadvertently no notice U/s 251 CrPC was framed against the accused and matter got listed for cross examination of the complainant. The said irregularity in procedure was Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 3 of 14 4 later on rectified vide order dated 28.05.2018 as both parties have not objected to the same nor accused has pleaded at any point of time that any prejudice was caused to him due to non framing of notice.
Complainant was duly cross examined by Sh. Ghanshyam Sharma, Ld. Counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 14.05.2018.
5. Thereafter, matter was fixed for recording statement of accused. At the stage of SA, it had been noticed that :
"At this stage, it has been noticed that inadvertently, notice U/s 251 CrPC has not been framed upon the accused. However, the complainant has already been cross examined and non framing of notice is mere an irregularity in procedure.
Notice U/s 251 CrPC cum plea u/s 313 CrPC read with 281 CrPC recorded to which accused wishes to lead DE".
Thereafter, plea of the accused Vijay Khanna u/s 313 r/w 281 CrPC cum Notice U/s 251 CrPC was recorded vide order dated 28.05.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that at the time of execution of agreement to sell Ex.C1, he had already clarified to the complainant that his care taker is sitting in the property since last 18 years and possession of the property will be handed over to the complainant as and when the care taker vacates the property. Accused further stated that is why even the agreement to sell Ex.C1 does not mention the specific date for handing over the possession and the time for handing over the possession of the property was kept open. Further, as per clauses of agreement to sell Ex.C1, the agreement was revocable at the Will of Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 4 of 14 5 either of the party and there is no clause in the agreement regarding refund of the bayana amount given. Accused further stated that when he filed a suit for possession against his care taker then complainant approached him stating that now it is going to take a lot of time due to litigation and he expressed his will to revoke the agreement and accordingly he revoked the agreement and there was no clause as to refund of the bayana/advance receipt. Accused further stated that the complainant had also filed a parallel case against him for cheating etc. on the ground that he entered into agreement to sell with the complainant without being owner of the property and in the said case, after considering the circumstances of the case, Hon'ble High Court of Delhi gave him bail after payment of Rs.4,00,000/- to the complainant and he had already paid amount of Rs.4,00,000/- to the complainant. Accused further stated that the cheque in question was issued as blank signed cheque for the purpose of the security to the complainant at the time when the complainant revoke the agreement and he can produce the letter whereby complainant revoked the agreement and he confirmed the revocation and in that letter it was specifically mentioned that blank signed cheque was issued as security and refund if any, is to be mutually decided. Accused further stated that he had received the legal notice.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused submitted that he does not wish to lead any DE and vide separate statement of accused, DE was closed vide order dated 25.09.2018 and matter was fixed for final arguments.
7. Sh. Ravin Rao, Ld. Counsel for complainant and Sh. Ghanshyam Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 5 of 14 6 Sharma, Ld. Counsel for accused have addressed final arguments.
By way of oral arguments, Ld counsel for complainant has reiterated the facts stated in the complaint and it has been further argued that accused has admitted issuance of cheque in question and receipt of legal notice. It has been further argued that the accused and his wife were owners of the property and accused admitted the execution of the agreement to sell ExC1 and also admitted the receipt ExC2A. It has been further argued that as per Clause No. G of agreement to sell ExC1, it is clearly mentioned that the property is free from all encumbrances. However, the accused sold the property to someone else and thus, played a fraud upon the complainant. It has been further argued that later on, it transpired that accused & his wife were only tenants of the property. When complainant confronted the accused & his wife, then accused issued cheque in question to return the payment made in pursuant to agreement to sell. The testimony of complainant has remained unrebutted. The agreement to sell has not been denied by accused, handing over the cheque has not been disputed by the accused and the only defence taken is that he gave blank signed cheque as security but it is a sham defence. The accused has denied receipt of legal notice during cross examination of complainant. However, the accused admitted receipt of legal notice during the plea recorded U/s 313 r/w 281 CrPC cum Notice U/s 251 CrPC. It has been further argued that admittedly accused paid Rs04 lacs to the complainant during bail application in other matter. It has been further argued that even if the cheque has been dishonoured for the reason "signatures differ", the complaint U/s 138 N I Act is Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 6 of 14 7 maintainable. It has been further argued that in the agreement to sell ExC1, there is no forfeiture clause, therefore, the accused is under legal liability to return the amount paid by the complainant to the accused in pursuant to agreement to sell. It has been further argued that the payment schedule has been duly explained by the complainant during his evidence and the testimony of complainant qua the payment of amount of Rs31.65 lacs has remained unrebutted. It has been further argued that the arbitration clause in the agreement to sell does not create any bar upon the maintainability of complaint U/s 138 N I Act. The accused has not adduced any defence evidence to prove his defence. It has been further argued that the accused has failed to prove his defence while the complainant has proved his case beyond reasonable doubts. Therefore, accused is liable to be convicted.
On the other hand, by way of oral arguments, Ld. Counsel for accused has reiterated the defence of accused stated during trial and it has been further argued by the Ld counsel for the accused that the present complaint U/s 138 N I Act is not maintainable in the present case because the reason for dishonour is "signatures differ" and therefore, the complainant can file prosecution under any other offence but not under Section 138 N I Act. Further, Ld counsel for accused has read over the cross examination of complainant and has argued that during cross examination, complainant admitted that all the transactions took place through property dealer Surender and complainant admitted that he was satisfied with the title documents and therefore, the arguments of complainant, that accused and his wife were only Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 7 of 14 8 tenants over the property, are not sustainable. It has been further argued that another deal was executed between accused and one Mr Ravi Malhotra but the same was already cancelled prior to deal with the complainant. Further, it has been argued that the agreement to sell was revocable at any time by either of the parties and when complainant came to know about the eviction case filed by the accused against the tenant, complainant revoked the agreement but in the agreement to sell, it was never agreed that money paid by the complainant would be returned, therefore, no money was to be returned and accordingly, there is no existing liability upon the accused to pay the cheque amount to the complainant. It has been further argued that the receipt ExC2A is only for the amount of Rs20 lacs and even the accused has taken plea that he has received amount of Rs20 lacs only. Now, the onus shifts upon the complainant to prove that he has paid amount of Rs31.65 lacs to the accused but complainant has not filed anything to prove the same and no calculation has been given by the complainant as to how the liability of accused is equivalent to the cheque amount. It has been further argued that at the time of deal, as per prevalent practice, accused had given blank signed cheque for the purpose of security which has been misused by complainant by filling the arbitrary amount of Rs31.65 lacs. It has been further argued that as per clause no. 17 of ExC1, in case of any dispute the parties were required to refer the matter to Arbitrator and therefore, the present complaint is not maintainable in view of arbitration clause. It has been further argued that the complainant has failed to prove its case while accused has proved his defence. The accused is required to show only Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 8 of 14 9 a probable defence and accused has been able to discharge his part of burden of proof while complainant failed to prove its own case, therefore, the accused is liable to be acquitted.
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. In the case at hand, the issuance of cheque in question, its dishonour and receipt of legal notice are not in dispute. Accused has taken the defence that he did not have the legal liability to pay the cheque amount to the complainant.
11. Admittedly, complainant and accused entered into agreement to sell dated 25.10.2014 ExC1 whereby complainant agreed to purchase the property for total sale consideration of Rs2.60 crores and till 25.01.2014, complainant paid sum of Rs14 lacs to the accused and as per receipt ExC2, till 05.02.2014, complainant paid Rs20 lacs to the accused.
Now, it is the case of the complainant that he has paid further sum of Rs11.65 lacs to the accused in pursuant to agreement to sell dated Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 9 of 14 10 25.01.2014 ExC1 and thus, paid total sum of Rs31.65 lacs till 30.05.2014. However, accused failed to honour his part of contractual obligations and therefore, to return the amount paid by the complainant to the accused, accused issued cheque in question which got dishonoured.
On the other hand, the accused has taken plea that the complainant revoked the agreement and there was no clause in the agreement regarding refund of bayana amount and at the time of revocation of agreement, the accused had given blank signed cheque for the purpose of security and the refund, if any was still to be decided.
12. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
13. The plea of accused that the present complaint is not maintainable because the cheque got dishonoured due to the reason "signatures differ", is Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 10 of 14 11 not sustainable as it is settled principle that even if the cheque got dishonoured for the reason "signatures differ", the complaint U/s 138 N I Act is maintainable. Similarly, the arbitration clause has no impact over the criminal proceedings U/s 138 N I Act. Similarly, in the present complaint, the plea of accused as to revocation clause is also immaterial as the issue in the present complaint is not as to who revoked the agreement but the issue is the legal liability of the accused to pay the cheque amount. As far as the averments of accused as to refund of earnest money is concerned, even in absence of specific clause in the agreement, the general principle is that earnest money is refundable except in cases where forfeiture clause is agreed between parties, therefore, the plea of accused that he is not liable to return the money paid by the complainant to the accused in pursuant to agreement to sell, is meritless.
14. To prove his defence, accused has cross examined the complainant. During cross examination, complainant deposed that the deal was done through property dealer Surender and complainant was satisfied with the title documents. Further complainant deposed that :
"It is correct that property dealer Surender had assured me about the genuineness of the title documents of the property and also about the deal which was approved by the accused. I had never tried to visit the above property to know whether the aforesaid property was under tenancy or not. Vol. The accused has told me that the tenant was in US and as and when she would return in January, they will show you property to me. I never visited the aforesaid property to meet the tenant Jyotika Kumar prior to the execution of agreement to sell dated 25/01/2014.".
Thus, the complainant admitted that he had not visited the Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 11 of 14 12 property to ensure the occupation status of the property prior to execution of agreement to sell.
15. Further, the accused has disputed the payment of Rs11.65 lacs and now the onus shifts upon the complainant to prove that he has paid sum of Rs11.65 lacs to the accused. As per complainant, he had paid Rs11 lacs in cash to accused on 25.04.2014 and Rs65,000/- on 30.05.2014 and during cross examination, the complainant deposed that :
"I had also made the payment of Rs. 11 Lakhs and Rs.65,000/- on different dates to the accused after the execution of agreement to sell".
Thus, as per complainant, he paid the amount by way of cash without taking any receipt. It is highly improbable that the parties who have chosen to pen down the agreement and have even taken cautions to pen down the exact date and amount paid by the complainant to the accused from time to time, will involve themselves in cash transaction and that too for such a huge and specific amount. Further, during cross examination, complainant deposed that :
"In the month of February/March 2014, I came to know that the aforesaid property cannot be vacated by the tenant and therefore, I demanded my money back. In the month of March 2014, I came to know that the accused had filed the suit of eviction in the court against the tenant. I had not cancelled the agreement to sell even after coming to know about the suit for eviction having been filed by the accused. Vol. The accused assured that the above property will be vacated within 15 days".
Thus, as per complainant, the dispute arose somewhere in March 2014 and as per complainant, he had already paid Rs20 lacs to the accused till Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 12 of 14 13 05.02.2014. Considering the circumstances, it seems improbable that any ordinary prudent person whose money worth Rs20 lacs is already at stake would give further payment of Rs11.65 lacs to the accused that too by way of cash without taking any receipt or undertaking or acknowledgment specifically when even the status of property became dubious. Further, during cross examination, complainant admitted that he had never given any written notice to the accused to give the possession or to return the money. Therefore, considering the entire set of facts, the accused has been able to raise a probable doubt over the averments of complainant.
16. Further, even for the sake of arguments, the entire case of complainant is taken as gospel truth, then during cross examination, complainant deposed that :
"It is correct that accused has returned Rs. 50,000/- or Rs 55,000/- to me. Vol. The accused had taken Rs 50,000/- to Rs. 60,000/- as a loan from me and this amount of Rs. 50,000/- or Rs. 55,000/- was towards the refund of the said loan. It is wrong to suggest that this amount of Rs. 50,000/- or Rs. 60,000/- was towards the return of the part payment of Rs. 20 Lakhs. This amount was transferred in my account by the accused".
Thus, the complainant has admitted that he received amount of Rs50 thousand or Rs55 thousand from the accused though as per complainant, it was towards return of loan. However, the complainant has not specifically disclosed the date, month or year when the said loan of Rs50 thousand or Rs60 thousand was given by the complainant to the accused. Therefore, in ordinary course of human nature, it will be presumed that this amount has been paid by the accused to the complainant towards return of bayana amount and thus, in Rahul Yadav vs Vijay Khanna CC No. 476514/2016 Page 13 of 14 14 any case, the liability of accused is not equivalent to the cheque amount.
17. In view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have been rebutted by the accused by preponderance of probabilities, whereas the complainant has failed to prove his case beyond all reasonable doubts. Resultantly, this court finds the accused Vijay Khanna s/o Sh Sh N D Khanna not guilty for the offence punishable U/s 138 N I Act. Hence, he stands acquitted.
18. Further, accused is directed to furnish bail bonds and surety bonds in the sum of Rs.20,000/- U/s 437(A) CrPC and is directed to be present before the Ld Appellate Court as and when notice is served upon him. Bonds furnished on 07.12.2017 are to be continued and accepted for a period of 06 months from today. Original FDR retained vide order dated 07.12.2017 retained for further 06 months.
19. File be consigned to record room after due compliance. Announced in the open court on 12.12.2018 (PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Rahul Yadav vs Vijay Khanna CC No. 476514/2016
Page 14 of 14