Delhi District Court
Court Of Delhi In Case Titled As M/S ... vs . Apparel on 31 August, 2012
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No.1081/1
M/s. Design Corner,
Consulting Architects,
Having office at D-68, Jhandewalan,
Flatted Factories Complex,
Through its Prop. Sh. Malkit Singh. ......Complainant
Versus
Sh. Chander Muni Tyagi,
S/o Late Thakur Dass Tyagi,
R/o Village Bharola,
Delhi-110033. .........Accused
Date of Institution : 07.12.2005
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 28.08.2012
Date of Decision : 31.08.2012
Final Order : Acquitted / Held not
guilty
CC No.1081/1 1/ 9
Judgment:
Vide this judgment, I shall dispose of the present complaint filed
u/s 138 N.I. Act. Before going further, it is necessary to dwell upon the
brief facts of the case.
Brief Facts:
1. It is alleged by the complainant that accused in discharge of his liability towards the payment of professonal fees against the services availed from the complainant issued a cheque bearing no. 612728 Ex.CW1/1 amounting Rs.2,00,000/- dated 27.08.2005 drawn on Punjab National Bank, Model Town-II, Delhi. On the assurance of the accused, complainant presented the said cheque with his banker but the same returned unpaid with the remarks "insufficient funds" vide returning memo dated 28.09.2005 Ex.CW1/2. However, on the request of the accused, complainant again presented the said cheque which again returned back unpaid on 19.10.2005 vide returning memo Ex.CW1/3 with the remarks "insufficient funds".
2. It is further alleged by the complainant that he sent a legal demand notice dated 29.10.2005 Ex.CW1/4 to the accused vide registered AD as well as UPC Ex.CW1/5 and Ex.CW1/6 respectively demanding the cheque amount. It is further alleged that accused failed to make the payment within stautory period after receiving the legal demand notice. Hence, the present complaint is filed.
CC No.1081/1 2/ 93. Complainant filed his pre-summoning evidence. Considering the same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused was summoned u/s 138 NI Act. On his appearance, the accused was granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr.P.C stating substance of accusation was served upon the accused on 25.04.2006 to which he pleaded not guilty and claimed trial.
Complainant Evidence:
4. In order to prove its case complainant stepped into the witness box as CW1 by tendering his evidence by way of an affidavit EX.CW-1/A. In his affidavit complainant has reiterated the same facts as that mentioned in his complaint.
Statement of accused:
5. In his statement u/s 313 Cr.PC r/w 281 Cr.PC accused admitted his signatures on the cheque in question however, denied the issuance of the same to the complainant. Accused further stated that he did not know the complainant and have issued the cheque in question to one Mr. Bhawar Lal Jain with whom the accused entered into an agreement pertaining to some property. Accused further stated that he did not have any concern with the complainant and denied having liability towards him qua the cheque in question. Accused admitted receiving of legal demand notice issued by the complainant.
CC No.1081/1 3/ 9Defence Evidence:
6. In order to prove his defence, accused stepped into the witness box as DW1 by taking the permission of the court u/s 315 Cr.PC. In his examination in chief the accused deposed that he never had any deal with the complainant nor issued any cheque to him. Accused further deposed that he gave the blank cheque in question to one Sh. Bhawar Lal the prop. of M/s. Labham Estate. Accused further deposed that he has not taken any service from the complainant. Accused further deposed that Bhawar Lal assigned the work to the complainant for approval of building plans to the MCD for the property agreed to be sold to Bhawar Lal and Hastimal by Fakeer Chand Tyagi, Basant Chand Tyagi and Ved Prakash Tyagi who owned a joint family property having share of the accused as well. The Commissioner of MCD rejected the building plans vide letter Ex.DW1/1 dated 26.07.2005.
Accused further deposed that Bhawar Lal has taken a blank cheque from him as a security for approval of the building plan of the property. Accused denied receiving of legal demand notice issued by the complainant. Accused further denied having any liability towards the complaint.
Reasons for Decision:
7. Accused has admitted his signatures on the cheque in question.
Hence, the execution of the cheque stands duly proved. Now once the execution of the cheque is duly proved, the presumption of law under section 118 and 139 of NI Act comes in favour of the complainant and CC No.1081/1 4/ 9 the initial burden of proof is shifted upon the accused. However, the presumptions of law are rebuttable. Let us see whether the accused has been able to rebut the presumptions and discharge the burden lying upon him.
8. Ld. Counsel for the accused raised a contention that accused has never received legal demand notice issued by the complainant therefore no cause of action arises against the accused. On the other hand ld. counsel for the complainant argued that the accused has admitted the receiving of legal demand notice in his statement u/s 313 Cr.PC. It is further argued that accused in his cross examination admitted that his address on record is the correct address and the notice have been issued on the same address. Moreover the accused has put his appearance on service of summons issued by this court at the same address, therefore, the presumption u/s 27 General Clauses Act can be drawn and the notice be deemed to have been served on the accused.
In the statement of the accused u/s 313 Cr.PC r/w 281 Cr.PC, he has admitted the receiving of legal demand notice. It is also not disputed that the address on which the legal notice has been served is the correct address of the accused and the accused has appeared before this court on service of the summons at the same address therefore, the presumption of deemed service can easily be drawn u/s 27 General Clauses Act. Hence, the service of legal demand notice stands proved and the contention raised by the accused stands rebutted.
CC No.1081/1 5/ 99. Ld. counsel for the accused has argued that the accused had no transaction with the complainant nor the accused had issued the cheque in question to the complainant rather the cheque was issued to one Mr. Bhawar Lal. It is further argued that accused have no liability towards the complainant.
On the other hand Ld. counsel for the complainant argued that the cheque in question was issued by the accused in discharge of his liability against the services availed from the complainant. It is further argued by the Ld. counsel that the accused has taken a false plea of non issuance of the cheque to the complainant and has failed to show that the cheque has been issued to somebody else. It is further argued that accused did not take any recourse in terms of legal proceedings against the complainant to recover or get back his cheque. All the essential ingredients for the offence u/s 138 of NI Act are made out therefore, accused is liable to be held guilty.
10. Countering the arguments of the complainant, Ld. counsel for the accused argued that in all the documents filed by the complainant, name of the accused does not occur. It is further argued that except the allegation made in the complaint, no proof as to the alleged transaction has been filed by the complainant. On contrary in his cross examination the complainant has admitted that the said building plan was submitted by him on instance of Sh. Bhawar Lal Jain and the accused was not in picture. The accused pointed out some of the material infirmities and contradictions in the version of the complainant at the time of cross examination. The complainant stated in his cross examination...
CC No.1081/1 6/ 9● It is correct that prior to issuance of the cheque in question, no correspondence took place between me and accused. ● When the cheque was issued, it was blank.
● It is correct that on the proposal assigned to the MCD by me the accused has not signed upon those proposals. ● It is correct that accused was not liable to pay at the time of handing over the cheque in question.
● It is correct that no written contract was executed between me and the accused.
● I have not traced any bill in the name of accused till date against my professonal charges.
Relying upon the above statements, Ld. counsel for the accused argued that the complainant has not produced any documentary proof to show the liability of the accused. It is further argued that accused has himself admitted that at the time of the issuance of the cheque, accused was not liable to pay and according to the provisions of Negotiable Instrument Act, Section 138, the cheque has to be issued in-discharge of existing debt or liability and in view of the admission of the complainant himself that accused was not liable to pay at the time of issuance of the cheque, the accused cannot be held liable u/s 138 of NI Act.
On the other hand complainant, could not explain the material infirmities and contradictions as pointed above in rebuttal to the arguments advanced by the accused.
It is pertinent to mention here that the document CW1/A i.e. bill raised by the complainant is in the name of M/s. Labham Estate Pvt. Ltd. and the company is owned by Mr. Bhawar Lal instead of accused CC No.1081/1 7/ 9 Chander Muni Tyagi. Apart from the above said document no bill or any other documentary proof has been filed by the complainant to show the liability of the accused towards him. The document DW1/1 shows that the building plan proposed by the complainant was rejected by MCD which further shows that the consideration on the part of complainant has not been fulfilled. The most important fact which came out of the cross examination of the complainant i.e. the accused was not having any liability towards the complainant at the time of issuance of the cheque straightly take away the case of the complainant. As it was held in judgment passed by the Hon'ble High Court of Delhi in case titled as M/s Collage Culture & Ors. Vs. Apparel Promotion council & Anr., Crl. M. C. No. 3011/04, the cheque must have been issued in discharge of existing debt or liability, so in view of the statement of the complainant himself, the accused cannot be held liable with respect to the issuance of the cheque as no liability existed at the time of issuance of the cheque.
11. As per judgment passed by Hon'ble Supreme Court of India in M/s Kumar Exports Vs. Sharma Carpets, AIR (2009) 2 SC 1518 the accused is only expected to prove its defence on the scale of preponderance of probabilities and not by proving the same beyond reasonable doubt. Accused has lead sufficient evidence rebutting the presumption of law which compels the court to believe in its existence although the presumption are rebutted by demolishing the case of complainant by cross examining him. The onus again shifted back upon the complainant. The complainant has failed to establish its case beyond reasonable doubt and his burden of proof remain CC No.1081/1 8/ 9 undischarged.
Decision:
12. After going through the record and detailed analysis of the evidence led by the parties, it is clearly established that accused has discharged his burden of proof by probablizing his plea of defence whereas complainant could not prove its case beyond reasonable doubt leaving the burden of proof lying upon him undischarged. The essential ingredients of offence u/s 138 of NI Act is issuance of cheque in discharge of legal debt/ liability is not made out, therefore, the accused is found not guilty, hence, the accused is hereby acquitted for the offence u/s 138 N.I. Act.
Announced today in the (Vishal Pahuja)
open court on 31.08.2012 MM NI ACT (WEST)/DELHI
31.08.2012
CC No.1081/1 9/ 9