Delhi District Court
Prem Nath Vasistha vs . Brijender Mudgil 1Of 14 on 24 January, 2022
DLND020224142016
Presented on : 08-11-2016
Registered on : 01-03-2017
Decided on : 24.01.2022
Duration : 4 years 10 months 23 days
IN THE COURT OF SH. UDBHAV KUMAR JAIN
METROPOLITAN MAGISTRATE (NI ACT)-04,
PATIALA HOUSE COURTS, DELHI
CC No. 1015/2016
PREM NATH VASISTHA
S/o sh. B. N Vasistha
R/o 1174, ATS Village, Sector 93 A
Noida-201304 ...Complainant
VERSUS
BRIJENDER MUDGIL
S/o Sh. R. G Mudgil
R/o Flat No. 2/10, 2nd Floor,
Oak Road, Shipra Suncity,
Indirapuram, Ghaziabad-201014
U.P.
...Accused.
Complaint under section 138 of the Negotiable Instruments Act
Offence complained of : Section 138 Negotiable
Instruments Act, 1881
Date of commission of offence : On expiration of 15
days from the date
of service of
statutory notice
CC No. 1015-2016
Prem Nath Vasistha Vs. Brijender Mudgil 1of 14
(sent on 14.10.2016)
Plea of Accused persons : Not guilty
Date of decision of the case : 24.01.2022
Final Order : Convicted
JUDGMENT
(Delivered on 24.01.2022) BRIEF FACTS AND REASONS FOR DECISION OF THE CASE:
1. Vide this judgment I shall decide the present complaint u/s 138 of Negotiable Instrument Act, 1881 (in short " NI Act") filed by complainant Prem Nath Vasistha against accused Brijender Mudgil and Pratibha Mudgil. The complainant's story in nutshell is that the complainant alongwith his wife is the owner of the property A-2, Lovely Apartment, Mayur Vihar Extension, Phase I, New Delhi (hereinafter "said premises"). Acussed no.1 Brijender Mudgil was the tenant of the complainant and his wife in respect of the said property however due to some dispute, complainant instituted a suit being Suit No. 1496/16/10 titled 'Prem Nath Vasistha & Another Vs Brijender Kumar Mudgil' for recovery of the possession of said premises and for recovery of the arrears of rent and mesne profits. The suit was allowed in favour of complainant vide judgment dated 18.04.2016 alongwith decree for damages / use and occupation charge of the suit property from 25.2.2010 @ Rs. 20,000/- onwards and from January,2013 @Rs 22,000/- per month till the date of handing over of possession total amounting to Rs. 15,82,000/-. Since the accused persons failed to hand over possession of the said premises, execution petition vide Execution No. 681/16 was filed before the Executing Court and the Court issued warrants of possession in respect of said premises and further issued decree of attachment of moveable properties to the extent of Rs.
CC No. 1015-2016 Prem Nath Vasistha Vs. Brijender Mudgil 2of 14 15,51,232/-. When the complainant (therein the decree holder) reached the said premises alongwith the bailiff, appointed by the Ld. Administrative Civil Judge, for execution of the warrants of possession and warrants of attachment, possession of the said premises was handed over to Complainant in lieu of warrants of possession, but when the bailiff sought to attach the moveable properties owned by accused no.1 for execution of the warrants of attachment to the extent of Rs 15,51,232/-, accused persons undertook to pay the said amount by way of cheque and accordingly handed over a cheque of Rs 15,51,232/- (Rupees Fifteen Lakhs Fifty One Thousand Two Hundred and Thirty Two only) being cheque no. 188233 dated 30.08.2016 drawn on Punjab National Bank, Acharya Niketan, Mayur Vihar Phase I, New Delhi in favour of Complainant (hereinafter "cheque in question"). At the time of handing over the cheque in question, accused no.1 and 2, being the joint holders of the account, assured the Complainant that on presentation of cheque in question, it will be honoured and accused no.1 also handed over a letter dated 01.08.2016 stating that the said cheque was being handed over towards the payment due against the decretal amount and on the basis of the same, complainant instead of proceeding further with the execution of warrants of attachment to the extent of Rs 15,51,232/-, presented the cheque in question to his banker i.e. Punjab National Bank, 74, Janpath, New Delhi-110001 but the same was dishonoured vide returning memo dated 30.09.2016 with remarks "funds insufficient" therefore, a legal demand notice dated 14.10.2016 was issued to the accused persons. Despite receiving the said legal demand notice, accused persons failed to make payment towards discharge of their liability within stipulated period. Consequently, the present complaint has been preferred by the complainant against the accused persons.
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2. On the basis of complaint and pre-summoning evidence tendered by the complainant, cognizance of the offence U/s 138 NI Act was taken by Ld. Predecessor of this Court and process was issued against the accused persons however, accused no.2 Pratibha Mudgil was discharged vide order dated 15.03.2019 and accused Brijender Mudgil (hereinafter "accused") was examined under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter "CrPC") on 15.03.2019, putting the substance of the accusations leveled against him wherein the accused pleaded not guilty and claimed to be tried stating that the cheque in question was issued under coercion and force. It was also stated that he has no legally enforceable liability and he did not receive any legal notice.
3. To substantiate his case, complainant examined himself as CW-1 in post notice CE wherein the complainant adduced his evidence by way of an affidavit (Ex. CW1/1) in consonance with the pre-summoning evidence and relied upon the following documents in support of his complaint.
Certified copy of judgment and decree dated 18.04.2016 passed in Suit No. 1496/16/10 as Ex. CW1/A, Copy of report of bailiff as Ex. CW1/B, Letter dated 01.08.2016 given by accused as Ex. CW1/C, Cheque bearing no. 188233 dated 30.08.2016 as Ex. CW1/D, Original returning memo dated 30.09.2016 as Ex. CW1/E, Legal notice dated 14.10.2016 as Ex. CW1/F, Postal receipts as Ex. CW1/G (colly) and Ex. CW1/H (colly).
CW-1 was cross-examined and discharged. No other witness was examined in CE and CE was closed on 08.08.2019.
CC No. 1015-2016 Prem Nath Vasistha Vs. Brijender Mudgil 4of 14
4. Thereafter, accused was examined u/s 313 CrPC r/w S. 281 CrPC on 10.10.2019, wherein all the incriminating evidence were put to the accused. Accused submitted that cheque in question was taken by complainant forcefully when he came alongwith 20-25 people at his house and threatened him to make payment despite telling the complainant that he has filed an appeal against the judgment in Hon'ble High Court and that he has civil remedy available. It was further stated that he did not receive the legal notice and that he has no liability of Rs. 15,51,232/- as the complainant was not the landlord and he had no agreement of rent with the complainant. Accused admitted his signature on the cheque in question however, he was not able to remember whether he filled particulars on the cheque in question. Lastly, he stated that he was falsely implicated in the present case.
5. Accused was given opportunity to lead defence evidence. DW-1, accused himself, was examined, cross-examined and discharged on 18.11.2021. DE was thereafter closed on 18.11.2021.
6. Final arguments were thereafter heard from both sides. Precedents were also filed by both sides in support of their contentions.
7. I have heard counsel for the parties and perused the record. Offence under S.138 N.I. Act is deemed to have been committed when any cheque drawn by a person 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 debt or other liability, is returned by the bank unpaid, either because of 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 an agreement made with that bank.
8. To institute a case under the said section, the following requirements are to be fulfilled:-
i. that cheque has been presented to the bank within the period of its CC No. 1015-2016 Prem Nath Vasistha Vs. Brijender Mudgil 5of 14 validity whichever is earlier;
ii. 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 from the bank regarding the return of the cheque as unpaid; iii. the drawer of such cheque fails 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.
Being cumulative, it is only when all the ingredients and aforementioned requirements are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N.I. Act.
9. Section 118 of the NI Act inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature. In Rangappa V. Sri Mohan, (2010) 11 SCC 441, a three judge bench observed that, Section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. The Hon'ble Supreme Court observed that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof. A reverse onus clause requires the accused to raise a probable defence or creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of "preponderance of probabilities" and not "beyond shadow of any doubt".
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10. In the background of aforesaid legal proposition, the only disputed questions to be decided in the present case are: (a) whether the cheque in question can be said to have been issued in discharge of legal liability or not? (b) whether accused has been able to prove his defence to the extent of preponderance of probability or not?
11. It is the case of the complainant that it is an admitted fact that judgment and decree dated 18.04.2016 Ex. CW1/A was passed in favour of complainant and against the accused wherein he was not only ordered to hand over the possession of the said premises but was also ordered to pay damage/use and occupation charges and accordingly as per the decree Ex. CW1/A and warrant of attachment Ex. CW1/B, accused was liable to pay Rs. 15,51,232/- (Rupees Fifteen Lakh Fifty One Thousand Two Hundred and Thirty Two). It was further submitted that the decree attained finality as no appeal was preferred against the said decree and the accused at the time of execution of warrant of attachment himself undertook to pay the said amount and handed over the cheque in question. To prove the liability of accused, Ld. Counsel for the complainant relied upon letter of undertaking dated 01.08.2016 Ex. CW1/C, cheque in question Ex. CW1/D and returning memo dated 30.09.2016 Ex. CW1/E. Ld. Counsel for the complainant further submitted that legal notice Ex. CW1/F was served upon the accused as per the postal receipts Ex. CW1/G and Ex. CW1/H and despite receiving the same, accused failed to discharge his liability of Rs. 15,51,232/- (Rupees Fifteen Lakh Fifty One Thousand Two Hundred and Thirty Two). Ld. Counsel for the complainant also submitted that almost everything is admitted by the accused and accused was not even able to prove his defence therefore, it is a fit case for conviction.
12. On perusal of notice of substance of accusation u/s 251 CrPC, statement of accused recorded u/s 294 CrPC and statement of accused u/s 313 CrPC r/w Section 281 CrPC, accused has admitted that the cheque was signed by him. Hence, the CC No. 1015-2016 Prem Nath Vasistha Vs. Brijender Mudgil 7of 14 presumption under section 139 of the Negotiable Instrument Act would operate. The accused, however, has denied that the cheques in question were issued to the complainant for discharging his liability towards the complainant. Therefore, it is imperative to deal with the contentions raised by the accused to see whether accused has placed enough and cogent material before this court to rebut the said statutory presumption which arose in favour of the complainant.
13. It is well established that issuance of cheques itself raises the presumption that it must have been issued in discharge of legally enforceable liability / debt. In order to rebut this presumption, accused has to bring some substantial evidence to prove his defense on the basis of preponderance of probabilities. As observed by Hon'ble High Court of Delhi in V.S. Yadav v. Reena 2010 (4) JCC (NI) 323, the statutory presumption under NI Act is mandatory in nature and the same cannot be rebutted on mere explanations /bald statements made by the accused U/s 251 CrPC and Section 313 CrPC without leading any evidence. The Hon'ble Supreme Court in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 held, that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. 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.
Maintainability of complaint
14. At the very outset, Ld. Counsel for the accused submitted that the present CC No. 1015-2016 Prem Nath Vasistha Vs. Brijender Mudgil 8of 14 complaint is not maintainable as the complainant had specific remedy available before the Civil/Executing Court and this Court has no power to execute the decree passed by Civil Court. It was also submitted that when cheque in question was issued in lieu of warrant of attachment passed by Civil Court and when the cheque got dishonoured, complainant should have approached the Civil Court and availed his remedy before the said Court and not this Court. On the contrary, Ld. Counsel for the complainant submitted that it is a settled law that civil remedy does not bar criminal remedy, and both are independent proceedings. Further, as the said premises was handed over to the complainant, complainant did not pursue the execution petition further as far as recovery of possession was concerned and in discharge of liability towards complainant with respect to damages and occupation charges, accused handed over one cheque i.e. the cheque in question for which the complainant has availed remedy in the form of present matter and therefore, accused cannot dictate the complainant what remedy the complainant should avail.
14.1. It is a settled law that civil and criminal proceedings can run concurrently as both are independent proceedings. In K. Jagadish v. Udaya Kumar G.S. (2020) 14 SCC 552, the Hon'ble Apex Court held that:
"It is thus well settled that in certain cases the very same set of facts may give rise to remedies in civil as well as in criminal proceedings and even if a civil remedy is availed by a party, he is not precluded from setting in motion the proceedings in criminal law."
In the same case, the Apex Court placed reliance upon an earlier judgment of Apex Court in Pratibha Rani v. Suraj Kumar (1985) 2 SCC 370 wherein the Court summed up the distinction between the two remedies as under:
"21. ... There are a large number of cases where criminal law and civil law can run side by side. The two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence...
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14.2. Now, even though proceeding under Section 138 NI Act are deemed to be quasi criminal in nature but even then, the complainant was not precluded from filing the present complainant as the complainant is well within his rights. There is no express bar in filing of the present complaint and therefore, the present complaint is well-founded and maintainable. Moreover, no prejudice is caused to the accused. Thus, the averment of the defence that complainant should have availed civil remedy and not the present remedy berefts in force.
Receiving of legal notice
15. As far as service of legal notice is concerned, accused in notice of substance of accusation u/s 251 CrPC as well as during statement recorded u/s 313 CrPC stated that he did not receive the legal notice Ex. CW1/F however, during his cross-examination as DW-1 he fairly conceded that "I received notice Ex. CW1/F quite late after I shifted to the new premises. I had already received the summons of the present case so I did not reply to the legal notice." The statutory presumption of delivery of legal notice is already in favour of the complainant, in view of the decision of Hon'ble Apex Court in C.C. Alavi Haji v. P. Mohammad (2007) 6 SCC 555. The Hon'ble Court held that it is no longer pre- requisite that service of legal notice has to be proved. Even if the service of legal notice is not proved, then receipt of the summons on the complaint is sufficient to raise the cause of action U/s 138 NI Act in favour of the complainant. Therefore, averment of the accused that accused did not receive the legal notice is untenable and cannot come to the rescue of accused.
Liability and defence of the accused
16. The defence raised by the accused has two limbs. One limb is that there was no landlord-tenant relationship between the complainant and accused. It was submitted by Ld. Counsel for the accused that the premises was never taken from the complainant rather it was taken from some other person and as the cheque in CC No. 1015-2016 Prem Nath Vasistha Vs. Brijender Mudgil 10of 14 question relates to that dispute between the parties, this Court cannot decide that issue.
16.1. The other limb of defence is that the cheque in question was taken under coercion and forcefully from the accused by the complainant accompanied with 20- 25 persons including the Court Bailiff. Accused, to support his contention, also produced two documents in his evidence Ex. DW1/1 (colly), one complaint dated 08.08.2016 made to SHO, PS Mayur Vihar Phase-I alongwith some photographs and Ex. DW1/2, one letter dated 10.08.2016 sent to SHO, PS Mayur Vihar Phase-I for procuring copies of CCTV footage and visitors register.
16.2. Per contra, Ld. Counsel for the complainant submitted that as far as the first line of defence is concerned, this court cannot go into the merits of the case which was already decided by the Ld. ADJ Court vide judgment and decree dated 18.04.2016, Ex. CW1/A, which is already admitted by the accused in his cross- examination as DW-1 and as the said issue attained finality it cannot be raised again especially before this Court.
16.3. With regard to second line of defence, it was submitted that Ex. DW1/1 and Ex. DW1/2 are afterthought. At the very outset, at the time of producing these documents on record objection was raised related to the mode of proof. It was further submitted that cheque in question was given by the accused in discharge of liability as per the order of the Executing Court and that it was admitted by the accused in his cross-examination that he himself handed over the cheque in question to the complainant and therefore, it is clear that cheque in question was given to clear his liability. Further, the complaint is an afterthought as no person would wait for almost a week to make such complainant when he was assaulted, or something was taken from him. Hence, the accused has no defence in his favour.
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16.4. The first limb of defence raised by accused lacks merit as this court is not the competent forum to raise this issue and further, the judgment has already attained finality and even the accused has failed to show any document to the contrary. Moreover, as per Section 79 of the Indian Evidence Act, 1872 there is a presumption attached as to the genuineness of Ex. CW1/A. 16.5. As far as second limb is concerned, firstly it is admitted by the accused in statement of accused u/s 313 CrPC that he signed the cheque in question and in his cross-examination dated 18.11.2021 that "It is correct that Ex. CW1/D was filled by me and signed by me and handed over to the complainant." and therefore, there is a presumption of existence of liability by virtue of Section 139 NI Act. Secondly, Section 118 of NI Act holds presumption in favour of the complainant not only regarding consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration but also of the date that such negotiable instrument bearing a date was made or drawn on such date. Thirdly, both the documents produced by the accused Ex. DW1/1 and Ex. DW1/2 are not proved as these two documents are merely self-serving statements and nothing can be said to have been proved from that. Moreover, I agree that the complaint seems to be an afterthought as no prudent man will wait for almost a week to lodge such complaint. Accused should have led some cogent evidence to prove that the cheque in question was given under coercion.
16.6. Even from the cross-examination of CW-1, nothing substantive has come which supports the defence of accused or which is fatal to the case of complainant. Cross-examination of DW-1 instead of proving the defence of the accused, supports the case of complainants only.
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17. What is imperative for the purpose of rebutting the presumption u/s 139 NI Act, as per the defence of the accused, is that on the date of issuance of cheque there should not be any outstanding legal liability towards the complainant. From reading of notice of substance of accusation u/s 251 CrPC, cross-examination of CW1, statement of accused u/s 313 CrPC and as DW1, nowhere it is denied that the accused had no liability as per Ex. CW1/A and Ex. CW1/B pertaining to Rs. 15, 51,232/- . In fact, accused as DW-1 in his cross-examination admitted the existence of liability, relevant lines of cross-examination dated 18.11.2021 are extracted herein:
"Ld counsel for the complainant points out Ex.CW1/A to which witness submits that the same is correct. I filed an appeal against this order (Ex.CW 1/A) in the year 2016, however, the same could not be pursue further due to personal difficulty as well as some legal problem with the counsel. It is correct that vide onder dated 18.04.2016 (Ex.CW1/A), Ld Court passed the order interalia directing me to pay an amount of Rs. 15.60,000/- and cost of Rs. 10,932/- to the complainant. It is correct that the complainant had come on 01.08.2016 alongwith some other persons for getting the possession of the property bearing flat no. A-2, Lovely Apartments, Mayur Vihar Ext., Delhi. I cannot say whether the person accompanying the complainant was bailiff of the concerned court. It might be correct that Ex.CW1/B (2 pages) would be the warrants which were brought or 01.08.2016 by the complainant and the bailiff."
Even, no discrepancy or contradiction so fatal to the case of complainant is found which could come to the rescue of accused in rebutting the presumption of accused.
18. The nature of liability has already been put forth by the complainant. Nothing substantial to controvert the nature of liability has been proffered by the CC No. 1015-2016 Prem Nath Vasistha Vs. Brijender Mudgil 13of 14 accused. It is an admitted fact that cheque in question was given to complainant, filled and signed. There is a presumption under Section 139 of the NI Act that there exists a legally enforceable liability which is further corroborated by other documents on record. To rebut the presumption, accused was required to lead evidence as per his defence however, accused has failed to lead any cogent evidence to prove his defence. The touchstone for proving defence of accused is required to be done on the basis of preponderance of probability as once it is established that the cheque in question was issued in discharge of legal liability, it is the onus upon accused to rebut the presumption. Accused did not bring on record any substantive evidence to prove his defence. Mere denial that the cheque in question was not issued to the complainant to discharge his liability or that it was taken under coercion or forcefully does not lend much credence to his stand.
Final Order
19. It is true that for offence U/s 138 NI Act the accused is not expected to prove his defence beyond reasonable doubt in order to rebut the statutory presumption. However, in the instant case accused has miserably failed to discharge the onus of proving his defence even on the basis of preponderance of probabilities. The complainant has proved the guilt of the accused beyond reasonable doubt. Accordingly, accused Brijender Mudgil stands convicted for offence under section 138 NI Act.
Let copy of the Judgment be given to the convict free of cost. Convict be now heard on quantum of sentence.
Announced through CISCO WEBEX today i.e.24.01.2022 (UDBHAV KUMAR JAIN) MM-04(NI Act)/PHC NEW DELHI This judgment contains 14 pages all signed by the presiding officer.
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