Delhi District Court
Rajinder Kumar Nagpal vs . Usha Adhana Page 1 Of 26 on 28 July, 2022
IN THE COURT OF SH. ANSHUL SINGHAL,
MM (NI ACT)-03, ROUSE AVENUE COURT COMPLEX,
NEW DELHI DISTRICT, NEW DELHI
In the matter of: CC No.: 2435/19
CNR NO.: DLND02-003913-2019
Rajinder Kumar Nagpal,
S/o Sh. Krishan Gopal Nagpal,
R/o Flat No. 93-C, Pocket A,
DDA SFS, Sukhdev Vihar,
New Delhi.
......Complainant
versus
Usha Adhana,
W/o Sanjay Adhana,
R/o House No. 1378,
Sector 28, Faridabad,
Haryana-121008.
........Accused
JUDGMENT
Date of Institution of Complaint : 15.02.2019 Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 19.07.2022 Decision Qua Accused : Conviction Date of Decision : 28.07.2022 BRIEF STATEMENT OF REASONS FOR DECISION
1. Vide this judgment, I shall dispose of the present complaint u/s. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) filed by the complainant against CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 1 of 26 accused on account of dishonour of three cheques, first bearing no. 072132 dated 29.09.2018 for a sum of Rs.7,00,000/-, second bearing no. 072134 dated 29.09.2018 for a sum of Rs. 5,51,000/- and third bearing No. 072133 dated 29.09.2018 for a sum of Rs. 5,00,000/-, all drawn on Indian Bank, Sector-29, Faridabad, Haryana issued by the accused in favour of the complainant (hereinafter referred to as the cheques in question).
BRIEF FACTS OF THE CASE
2. Brief facts of the case as per the complaint are that the accused and her husband approached the complainant for purchasing the house no. 1378, Sector 28, Faridabad, Haryana for a total sale consideration of Rs. 1,10,51,000/-. Subsequently the complainant and the accused entered into an agreement to sell dated 18.08.2017. It is further submitted that out of the total sale consideration the accused had paid a sum of Rs. 25,00,000/- to the complainant by way of cheque and RTGS on different dates.
3. It is further submitted that on or about last week of September, 2017, accused and her husband came to the complainant and asked him to allow them to occupy the house in question temporarily for two months and executed a separate rent agreement dated 04.10.2017 agreeing to pay Rs. 7000/- per month as rent for a period of 2 months for use and occupation of house and to oversee repair works. It is further submitted that thereafter the complainant executed CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 2 of 26 a sale deed of Rs. 85,00,000/- in favour of accused on 26.03.2018. It is further submitted that on the same day of registration of sale deed dated 26.03.2018, the complainant and accused had entered into a work done agreement on 26.03.2018 wherein accused had acknowledged the work carried out by the complainant in the aforementioned property representing repair, renovation and other miscellaneous works for a sum of Rs. 25,51,000/- and agreed to refund complainant. It is further submitted that to refund the said amount to the complainant the accused had issued various post dated cheques. It is further submitted that thereafter the accused made a payment of Rs. 8,00,000/- and showed her inability to honour the cheques and asked for further time to make the remaining payment.
4. It is further submitted that believing on the words of the accused and in complete good faith the complainant further entered into a continuation agreement dated 06.07.2018 of the work done agreement dated 26.03.2018 and agreed to return the previous cheques. It is further submitted that the accused again showed her inability to pay the balance amount and asked the complainant not to deposit the cheques and asked for further time to make good the balance amount. It is further submitted that believing the accused again the complainant further entered into a further continuation agreement dated 01.10.2018 in continuation of previous agreement dated 06.07.2018 and agreed to return the previous cheques and the accused in order to discharge CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 3 of 26 his liability issued cheques in question to the complainant. It is further submitted that all the agreements have been duly supported with an affidavit and the first agreement is also supported with a promissory note. However, on presentation of cheques in question the same were returned dishonoured on presentation with remarks "Funds Insufficient" vide cheque return memos dated 26.12.2008. That thereafter, a legal notice was sent to the accused dated 05.01.2019 and since no payment was made within 15 days of the service of legal notice, then the present case has been filed.
CASE PROCEEDINGS
5. During pre-summoning evidence, the complainant was examined as CW1 on 18.02.2019 and summons were issued to accused vide order dated 20.07.2019. The accused entered his appeared with counsel on 27.06.2019 and furnished bail bonds on the very same day.
6. A notice explaining the accusation to the accused u/s. 138 of N.I.Act was served on 20.07.2019 and her plea was recorded. The accused admitted her signatures on the cheque in question and further admitted the receipt of legal notice from the complainant and she has submitted that reply to the same has also been sent. She has categorically denied the fact that repair work has been done by the complainant in the house sold by the complainant and has submitted that repair work has been done at the expense of the accused herself. It is submitted on behalf of the accused CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 4 of 26 that the cheques were given as advance payments with the understanding that the same shall be returned when the work is completed. It is the case of the accused that the complainant has misused the same cheques and filed the present false and fabricated complaint.
7. Oral application u/s. 145(2) N.I.Act moved on behalf of the accused was allowed vide order dated 20.07.2019. During complainant's evidence (CE), the complainant has examined himself as CW1, who has relied relied upon his evidence by way of affidavit and has relied on the following documents:-
(i) Copy of the agreement to sell dated 18.08.2017 is Ex-PW1/A(OSR).
(ii) Copy of the rent Agreement dated 04.10.2017 is Ex-
PW1/B(OSR).
(iii) Copy of the work done agreement dated 26.03.2018 is Ex-PW1/C(OSR), copy of the cheques given along with is Mark A and copy of affidavit and promissory note executed by the accused in support thereof is Ex-PW1/E(OSR)(colly).
(iv) Continuation work done agreement dated 06.07.2018 is Ex-PW1/F(OSR) and copy of affidavit executed by the accused in support thereof is Ex-PW1/G(OSR).
(v) Continuation work done agreement dated 01.10.2018 is Ex-PW1/H(OSR) and copy of CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 5 of 26 affidavit executed by the accused in support thereof is Ex-PW1/I(OSR).
(vi) Original cheques in question along with bank return memos are Ex-PW1/J(colly).
(vii) Copy of legal demand notice along with speed post receipt is Ex-PW1/K (colly).
(viii) Original reply given by the accused to the legal demand notice is Ex-PW1/L.
(ix) Complaint in original is Ex-PW1/M.
8. CW1 was duly cross-examined by counsel for accused and discharged. Since no other witness sought to be examined on behalf of complainant, accordingly, vide order dated 07.12.2019, CE was closed.
9. An application u/s. 143A NI Act moved on behalf of the complainant seeking interim compensation equivalent to 20% of the cheque amount was allowed vide order dated 03.09.2019 of this court which was upheld by Ld. Revisionist Court vide order dated 14.10.2019. Both these orders were challenged before Hon'ble High Court of Delhi and vide order dated 21.01.2020 of Hon'ble High Court of Delhi, an amount of Rs.2,00,000/- was directed to be released to the complainant subject to the final outcome of the present proceedings.
10. Accused was thereafter examined u/s. 281 r/w. Section 313 Cr.P.C on 17.12.2019, and the entire incriminating evidence CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 6 of 26 was put to her, during which the accused admitted her signatures on the cheques in question but stated that she had not filled the particulars on the same. She further stated that she does not remember whether she received the legal notice from complainant or not. It is her case that the cheques were given as security for the repair work to be carried out at the house purchased from the complainant and that the present case is false and fabricated against her.
11. Since accused chose to lead defence evidence (DE), accordingly, matter was adjourned for DE. List of witnesses was filed on behalf of the accused was filed on 21.01.2020. The accused sought to examine a total of 11 witnesses in support of her defence, however, only 7 were actually examined by the court. Witnesses listed at serial no. 6, 7 and 10 were dropped vide order dated 05.04.2022 as neither any process fees was filed for summoning the witnesses nor any fresh address was filed for summoning the witnesses despite repeated opportunities. Witness listed at serial no.3 was not summoned by this court.
12. Accused has examined her husband, Sh. Sanjay Adhana as DW1 who has placed on record the following documents:
(i) Photographs of the property in question showing the status of renovation work as on 29.08.2019 along with certificate u/s. 65B of Indian Evidence Act are Ex-DW1/P1 (collectively 14 photographs) (objected CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 7 of 26 to by Ld. Counsel for complainant as to mode of proof).
(ii) Bills issued by M/s. Srinath Marketing Co. are Ex DW1/P2 (collectively 14).
(iii) Bill issued by M/s Kitchen Koncept is Ex-DW1/P3.
(iv) Bills issued by M/s Anand Kumar & Sons are Ex-
DW1/P4 and photocopy of bills from page no. 27 to 34 are Mark A.
(v) Bills issued by Balaji Electronics are Ex-DW1/P5 (collectively 3 bills) (objected to by Ld. Counsel for complainant as to mode of proof).
(vi) Bill issued by M/s. Kalandi Tiles & Marbles is Ex-
DW1/P6.
(vii) Bill issued by M/s. Gagan Sanitary Store is Ex-
DW1/P7.
(viii) Bills issued by Mangla Traders on simple papers are Ex-DW/P8 (collectively from page no. 41 to 65) (objected to by Ld. Counsel for complainant as to mode of proof and as to the fact that the name of the trader is not mentioned).
(ix) Bills issued by M/s Raj Wood Works are Ex-
DW1/P9 (colly).
(x) Bill issued by M/s Balaji Electronics is Ex-DW1/P10.
(xi) Cash memo issued by Subh Dev Fabricator is Ex-
DW1/P11.
CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 8 of 2613. During further DE, accused has examined Sh. Prem Singh, the labour contractor as DW2, Sh. Bhupender, from Subh Dev Fabricator as DW3, Sh. Suresh Kumar, Manager of M/s Kitchen Koncept as DW4, Sh. Vinit Garg, Manager of M/s Anand Kumar & Sons as DW5, Sh. Mahesh Chand, Manager of Gagan Sanitary Stores as DW6 and Sh. Satish Kumar, employee of Mangla Traders as DW7.
14. During examination of DW2, the witness placed on record copy of the relevant extract of pages of the register bearing the entries of the labour hired by him for work to be done on the property of the accused as Ex-DW2/1(OSR)(Colly). During cross-examination of DW3 and DW4, their specimen signatures were taken which were then Ex- DW3/DX1 and Ex-DW4/X1.
15. Since no other witness was sought to be examined on behalf of the defence, accordingly, DE was closed vide order dated 04.07.2022 and the matter was adjourned for final arguments.
16. Final arguments were heard by this court on 19.07.2022. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
LAW UNDER CONSIDERATION CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 9 of 26
17. Before moving forward towards the merits of the case at hand, it is pertinent to reproduce the penal provision of section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.-
Where 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, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the 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;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section, 'debt or other liability' means a legally enforceable debt or other liability."
CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 10 of 26(Emphasis Supplied)
18. At the very outset, it is pertinent to lay down the ingredients of the offence u/s. 138 of NI Act. In Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, the Hon'ble Supreme Court of India culled out the following ingredients in order to constitute an offence u/s. 138 of NI Act:
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, 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;
(iv) that cheque is 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 that 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) 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 aforementioned ingredients are satisfied that the person CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 11 of 26 who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act."
CASE OF THE COMPLAINANT
19. Ld. Counsel for the complainant has submitted that there exists legally enforceable liability in favour of the complainant on the basis of the agreements between the parties which are Ex-PW1/A, Ex-PW1/B, Ex-PW1/C, Ex- PW1/F & Ex-PW1/H, on the basis of affidavits and promissory note executed by the accused which are Ex- PW1/E, Ex-PW1/G & Ex-PW1/I and on the basis of presumption under section 139 NI Act and on the basis of the averments made in the complaint and the evidence by way of affidavit. He has further submitted that the cheques in question were issued to the complainant by the accused in discharge of legally enforceable debt or liability and the dishonour of the said cheques is proved by bank return memos which are Ex-PW1/J(colly). Further, copy of the legal notice, postal receipt and reply by the accused are Ex- PW1/K(colly) and Ex-PW1/L. He has further submitted that the complainant received no payment within 15 days of the service the legal notice. Ld. Counsel for complainant has thus submitted that all the ingredients laid down u/s. 138 NI Act are fulfilled and the accused should be convicted.
DEFENCE OF THE ACCUSED
20. The primary defence that the accused has taken is that there is no legally enforceable liability in favour of the complainant and against the accused as on the date of the CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 12 of 26 cheques in question or on the date of its presentation as the work was to be carried out by the complainant in pursuance of the work done agreements, however, no work was ever carried out by the complainant. Accused has also taken a defence that the cheques were given only for security purposes.
APPRECIATION OF EVIDENCE
21. Before moving to the merits of the case, it is pertinent to note that ld. counsel for complainant has relied upon the several judgments of Hon'ble superior courts in support of his case, namely, B.M.Baswaraj vs. Sriniwas S. Datta, MANU/SC/0686/2016, Naveen Garg Vs. Rajni Garg, 222 (2015) DLT 797, Triyamabak S Hedge Vs. Sripad MANU/SC/0690/2021, K.N.Beena Vs. Muniyappan & Ors MANU/SC/0661/2001, Rohitbhai Jivanlal Patel Vs State of Gujrat MANU/SC/0393/2019, T.P.Murugan (Dead) through LRs & Ors vs. Bojan MANU/SC/0795/2018 and Arjun Pandit Rao Khotkar vs. Kailash Kushanrao Gorantyal & Ors MANU/SC/0521/2020.
22. Before moving forward with the contentions of the accused persons, it is pertinent to discuss the relevant provisions of law which deal with legally enforceable debt or liability under the NI Act which are section 118(a) and 139 of the NI Act. Section 118(a) of the NI Act deals with the presumption of consideration and section 139 of NI Act CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 13 of 26 deals with presumption of legally enforceable debt or liability and reads as follows:
"118. Presumptions as to negotiable instruments- Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
***
139. Presumption in favour of holder-
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."
23. It is further pertinent to mention the relevant judgments on the point of presumption of legally enforceable debt or liability. Reliance is placed upon the judgments of Hon'ble Supreme Court of India in Rangappa v. Sri Mohan, (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 and Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it has held that the presumption u/s. 139 NI Act is a presumption of law and not presumption of fact. It has further been held that it is not necessary that the cheque must have been filled by the accused himself and the accused may be liable even when the cheque has been filled by the complainant. The essential requirement is that the liability must exist on the date of the presentation of the cheque in question. It has been further held that once the signatures on the cheque are admitted then the court is CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 14 of 26 bound to raise presumption u/s. 118 r/w. 139 NI Act regarding existence of legally enforceable debt or liability.
24. In the facts of the present case, the signatures on the cheque in question have been admitted. Accordingly, this court raises presumption under section 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
25. The first point raised by the accused is that the cheque in question was a security cheque given to the complainant. Ld. Counsel for the accused has submitted that since the cheque in question was given as a security and not in discharge of legally enforceable debt or liability, hence, the accused cannot be made liable for the offence u/s. 138 NI Act.
26. Reliance is placed by this court upon the judgments of Hon'ble Supreme Court of India in Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458, Sripati Singh vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 and Sunil Todi vs. State of Gujarat & Anr., 2021 SCC OnLine SC 1174 wherein it has been held that merely because a cheque has been issued for only security CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 15 of 26 purposes will not absolve the accused from the liability u/s. 138 NI Act. It has been further held that a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. It has been held by the Hon'ble Court that the accused would very much be liable u/s. 138 NI Act for issuance of a security cheque also, if on the date of the presentation of such cheque there has not been a prior discharge of debt, or if the cheque has not been given towards advance payment, the goods in respect of which have not been received by the court, or if other than this there has been change in circumstances which precludes the complainant from depositing the cheque with the bank.
27. Ld. counsel for the complainant has submitted that the date of the agreement pursuant to which the cheques have been given is 01.10.2018 and the date on the cheques is 29.09.2018 and it has been further submitted that the overall construction of the agreement also shows that the accused has agreed to hand over the cheques against the work already done by the complainant and in discharge of the legitimate dues of the accused towards the complainant.
28. There is nothing on record except the bald assertion of the accused that the cheques in question were given for security purposes. The accused has failed to support her contention with any shred of evidence. On the contrary, the overall construction of the three work done agreements dated CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 16 of 26 26.03.2018, 06.07.2018 and 01.10.2018, shows that each and every time cheques have been issued by the accused in favour of the complainant in discharge of the legitimate dues owed to the complainant for work already done by the complainant. Accordingly, it is hereby observed that the accused has failed to prove that the cheque in question was given only for security purposes to the complainant.
29. The point for consideration before this court is whether any work was done by the complainant against which cheques in question have been issued by the accused as stated in the work done agreement and the continuation agreement or if the work has been done at the expense of the accused herself to support the claim of the accused. Accused has examined 7 witnesses from DW1 to DW7 who have placed on file several bills and invoices showing that certain material has been supplied to the accused at his house. Ld. counsel for complainant has relied upon work done agreement and the continuation agreement and has stated that agreement categorically stipulates that the work has already been completed and the cheques are being given against the work already done by the complainant.
30. To show that there was no legally enforceable debt or liability existing in favour of the complainant as on the date written on the cheque, it has been submitted on behalf of the accused that no work has ever been carried out by the complainant and hence, nothing is due. It has further been CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 17 of 26 stated that all the repair work has been completed at the expense of the accused herself and the complainant has not held up his end of the bargain. Furthermore, attention of this court has been drawn towards the cross-examination of the complainant on various dates, whereby, the complainant has failed to tell the names of the persons from whom he got the repair work completed or the places from where he obtained the requisite material. It has been submitted on behalf of the accused that the complainant is not able to specify any details as no repair work has been done at the instance of the complainant and the entire repair work has been got done at the expense of the accused herself.
31. Ld. counsel for the accused has sought to prove bills/ invoices/ estimates issued by various vendors which are on record as Ex-DW1/P2 to Ex-DW1/P11. Though specific objections have also been raised by the complainant, however, common objections have been raised by the complainant in regard to the mode and manner of proof of these documents as the husband of the accused who has deposed as DW1 is not the maker of the said documents. Accordingly, several defence witnesses were called by the accused to prove the bills.
32. Out of the ten documents, bills/ invoices/ estimates issued by various vendors which are on record as Ex-DW1/P2, Ex- DW1/P5, Ex-DW1/P6, Ex-DW1/P9 and Ex-DW1/P10 are not proved in accordance with the rules of evidence, since CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 18 of 26 the author of those documents never stepped into the witness box. Accordingly, they are held to be not admissible in evidence.
33. Ld. counsel for the accused has drawn attention of the court towards testimony of DW2 Sh. Prem Singh, who has deposed to the fact that he took labour contract of the house of the accused in the month of August, 2017 and started repair work on 24.08.2017 which was continued till 16.10.2017. It has thus been submitted that the work has been carried out at the expense of the accused. Extensive cross-examination has been done by the counsel for the complainant and it has been submitted on behalf of the complainant that as per the document already on record, more particularly rent agreement which is Ex-PW1/B possession of the property in question was not handed over to the accused till 04.10.2017 then how could the accused have conducted the repair work before that day, i.e., in the month of August and September when he was not even in the possession of the house. It has thus been submitted that the witness is a motivated witness who is deposing falsely at the instance of the accused.
34. Ld. counsel for the accused has drawn the attention of this court to the deposition of DW3 Sh. Bhupender, who has stated that he has installed the entry gate at the property in question and he has identified the bill which is Ex-DW1/P11 which is issued in favour of Shubh Dev CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 19 of 26 Fabricators dated 28.08.2017. Two objections have raised in regard to this bill by the counsel for complainant, one that the said bill is not in the name of either the accused or the wife of the accused and second that the bill is dated in August. Extensive cross-examination has been done by the counsel for the complainant and it has been submitted on behalf of the complainant that as per the document already on record, more particularly rent agreement which is Ex- PW1/B, possession of the property in question was not handed over to the accused till 04.10.2017 then how could the accused have conducted the repair work before that day, i.e., in the month of August when he was not even in the possession of the house. It has further been submitted that there is nothing on record to suggest that the bill has been raised on the accused, since the bill neither bears the name of the accused nor the wife of the accused. It has thus been submitted that the witness is a motivated witness who is deposing falsely at the instance of the accused.
35. Ld. counsel for the accused has drawn the attention of this court to the deposition of DW4 Sh. Suresh Kumar, who has identified the bill which is Ex-DW1/P3 and he has submitted that the bill is in his handwriting and he has also issued the same on 24.07.2018. Extensive cross- examination has been done by the counsel for the complainant and it has been submitted on behalf of the complainant that as per the document already on record, more particularly rent agreement which is Ex-PW1/B CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 20 of 26 possession of the property in question was not handed over to the accused till 04.10.2017 then how could the accused have conducted the repair work before that day, i.e., in the month of July(when the bill in question has been issued) when he was not even in the possession of the house. It has further been submitted that as on the date of the invoice, there was not even an agreement to sell between the parties. Further attention of this court has also been drawn to the fact that no delivery was done by the witness at the property in question and even if it is assumed that the bill is genuine, then also there is nothing on record to show that the goods have been used at the property in question. It has thus been submitted that the witness is a motivated witness who is deposing falsely at the instance of the accused.
36. Ld. counsel for the accused has drawn the attention of this court to the deposition of DW5 Sh. Vinit Garg, who has identified the bill which is Ex-DW1/P4 and document Mark A from page 27 to 34 and he has submitted that the bill is in his handwriting and he has issued the same. It has been submitted by the counsel for complainant that installation of baskets was not part of the agreement between the parties and hence the question whether or not basket was purchased by the accused or his husband is not relevant to the facts of the present case. Further attention of this court has also been drawn to the fact that no delivery was done by the witness at the property in question and even if it is assumed that the bill is genuine, then also there is nothing on record to show CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 21 of 26 that the goods have been used at the property in question. It has thus been submitted that the witness is a motivated witness who is deposing falsely at the instance of the accused.
37. Ld. counsel for the accused has drawn the attention of this court to the deposition of DW6 Sh. Mahesh Chand, who has identified the bill which is Ex-DW1/P7 and he has submitted that the bill is in his handwriting and he has issued the same on 12.09.2017. Extensive cross- examination has been done by the counsel for the complainant and it has been submitted on behalf of the complainant that as per the document already on record, more particularly rent agreement which is Ex-PW1/B possession of the property in question was not handed over to the accused till 04.10.2017 then how could the accused have conducted the repair work before that day, i.e., in the month of September(when the bill in question has been issued) when he was not even in the possession of the house. Further attention of this court has also been drawn to the fact that no delivery was done by the witness at the property in question and even if it is assumed that the bill is genuine, then also there is nothing on record to show that the goods have been used at the property in question. It has thus been submitted that the witness is a motivated witness who is deposing falsely at the instance of the accused.
CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 22 of 2638. Ld. counsel for the accused has drawn the attention of this court to the deposition of DW7 Sh. Satish Kumar, who has identified the bill which is Ex-DW1/P8 and he has submitted that the bill is in his handwriting. Objection has been raised by Ld. Counsel for the complainant that there is no bill on record and what has been filed on record are merely estimate receipts and unless there is an invoice on record to prove the factum of sale, the same cannot be presumed. Several other contradictions in the document and testimony of witness have also been brought to light by Ld. Counsel for the complainant.
39. Ld. counsel for the complainant has submitted that all the seven witnesses examined in defence are motivated witnesses who have come to depose at the instance of the accused who have deposed falsely merely to save the accused from legal liability which is due as per the work done agreement and the continuation agreement which are Ex-PW1/C, Ex-P1/F and Ex-PW1/H. Ld. counsel for the complainant has submitted that the accused has tried to lead oral evidence in regard to the fact which are already contained in the document form which are already on record as Ex-PW1/C, Ex-P1/F and Ex-PW1/H. He has further placed reliance of Section 91 & 92 of the Indian Evidence Act and has submitted that the best evidence rule should prevail and party should not be allowed to lead oral evidence in respect of documents.
CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 23 of 2640. Ld. counsel for the accused has submitted that the accused has been able to raise a probable defence and has been able to show on the basis of preponderance of probabilities that the work has been done in the property in question at the expense of the accused and not by the complainant and accordingly, nothing is due in favour of the complainant.
41. It is an admitted case between the parties that the accused had entered the possession of the property in question only on 04.10.2017 and the work done agreement and the subsequent continuation agreements have been entered into between the parties on or after 26.03.2022. Furthermore, perusal of all the bills/ invoices/ estimates placed on record shows that, except bills which are Ex-DW1/P5 and Ex- DW1/P6 shows that they are all dated prior to 26.03.2022. It is the case of the accused that she has got all the work done at his own expense. This court fails to understand as to why the accused would enter into a work done agreement dated 26.03.2022, if she had already gotten the entire work done through external sources. Furthermore, this court fails to understand as to how work was carried out at the instance of the accused when admittedly, the accused was not even in the possession of the property in the month of August and September. Surprisingly, one of the bills is dated 24.07.2018, when both the parties had not even entered into an agreement to sell.
CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 24 of 2642. Thus, on the basis of record, a serious doubt has been cast in the version of the accused and in the veracity of the bills placed on record. Furthermore, this court cannot travel beyond the written documents, which are the work done agreement and the continuation agreements in absence of any cancellation or rectification of the same, which clearly stipulate that the work has already been done on behalf of the complainant and thereafter, the agreements are being entered into between the parties. The photographs that have been placed on record by the husband of the accused as DW1 would also not come to his aid, as the photographs have been taken on 29.08.2019 while the work done agreement is dated 26.03.2018. Thus, it cannot be said that the status of the property from 29.08.2019 till 26.03.2018 is the same. Nothing has been brought on record to show that the circumstances exist, where oral evidence of written documents can be led as per section 91 and 92 of Indian Evidence Act.
43. Thus, the liability of the accused to the tune of amount of the cheques in question is proved beyond reasonable doubt and the accused has failed to raise a probable defence and has also failed to prove his defence on the basis of preponderance of probabilities. Thus, the accused has failed to rebut the presumption u/s. 118 r/w. section 139 NI Act.
Findings of the Court CC No. 2435/19 Rajinder Kumar Nagpal vs. Usha Adhana Page 25 of 26
44. Thus, in my considered opinion, complainant has been able to prove his case beyond reasonable doubt qua the accused as he has been able to prove the contents of the complaint and that there was legally enforceable debt or liability existing in favour of the complainant and against the accused as on the date of issuance and the presentation of the cheque in question. The accused has not been able to raise a probable defence and further has not been able to prove his case on the basis of preponderance of probabilities. The accused has thus not been able to rebut the presumption u/s. 118 r/w. section 139 NI Act.
45. In view of the aforesaid, accused Usha Adhana, W/o Sanjay Adhana,, is hereby convicted of offence under section 138 Negotiable Instruments Act.
ANSHUL Digitally signed by
ANSHUL SINGHAL
SINGHAL Date: 2022.07.28
15:29:13 +05'30'
Announced in Open Court (Anshul Singhal)
on 28.07.2022 MM(N.I. Act)-03/NDD/RACC/ND
CC No. 2435/19
Rajinder Kumar Nagpal vs. Usha Adhana Page 26 of 26