Delhi District Court
Shubham vs . M/S Shree Bhaiya Das Chits (P) Ltd. on 19 December, 2018
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
SHUBHAM VS. M/S SHREE BHAIYA DAS CHITS (P) LTD.
CC NO. 473948/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 463948/2016
(2) Name of the complainant : Shubham
S/o Sh. Virender Kumar Vajpai,
R/o C-31/12, Abhimanyu Gali,
Arjun Mohalla, Moujpur,
Delhi-110053.
(3) Name of the accused, : M/s Shree Bhaiya Dass Chits
parentage & address (P) Ltd. Through its Authorized
Representative/Directors
Adarsh Mohalla, Maujpur,
Delhi-110053
Also At:-
371, Sector 10-A, Near D.A.V.
Public School, Gurgaon-
122001, Haryana.
(2) Ajay Kumar Sharma,
Authorized Signatory /Director
of M/s Shree Bhaiya Dass Chits
(P) Ltd. At:- 631/8, Krishna Gali
No. 13, Adarsh Mohalla,
Maujpur, Delhi-110053,
(3) Shyam Jain,
Authorized Signatory /Director
of M/s Shree Bhaiya Dass Chits
(P) Ltd. At:- 631/8, Krishna Gali
No. 13, Adarsh Mohalla,
Maujpur, Delhi-110053,
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016
Page 1 of 14
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(6) Final Order : CONVICTED
(7) Date of Institution : 06.10.2016
(8) Date on which reserved for
judgment : 30.11.2018
(9) Date of Judgment : 19.12.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that complainant was/is member of the accused company/chits i.e. accused no.
1. Accused no. 1 is a private Ltd. Company and accused nos. 2 and 3 are its authorized signatories and directors. On assurance of the accused persons, the complainant deposited money in his account vide account Chit No. 35 from August 2014 to December 2015 in the accused Chits/Company as per the company/chits plan against acknowledge/receipt of the payments. After persistent demands of the complainant from January 2016 to June 2016, accused persons, in lieu to discharge of their legal liability towards the payments received by accused/company, handed over the cheque signed by the accused no. 2 Ajay Kumar Sharma bearing no. 001038 dated 07.06.2016 for the sum of Rs. 1,46,700/- (including interest) drawn on Central Bank of Commerce, Branch GT Road Shahdara Delhi-110032 in favour of complainant, which on presentation was returned dishonoured with remarks "Insufficient Funds" vide cheque returning memo dated 23.08.2016. Thereafter, on failure of accused to pay the said amount, a legal demand notice dated 07.09.2016 was sent to the accused through speed post which was deemed to be duly served upon the Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 2 of 14 3 accused persons. Despite that payment of the cheque in question was not made by the accused persons within the stipulated time of 15 days. Hence, the instant complaint.
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1/A was filed by the complainant. In his affidavit of evidence ExCW1/A, the complainant reiterated all the averments made in his complaint and relied on documents which are copies of receipts Ex. CW-1/1 (OSR) to Ex. CW-1/12 (OSR), original cheque in question Ex. CW-1/13, its return memo Ex. CW-1/14, copy of legal notice Ex. CW-1/15, postal receipts Ex. CW-1/16 to Ex. CW-1/19, the tracking reports Ex. CW-1/20 to Ex. CW-1/23 and Form 32 Ex. CW-1/24 (04 pages).
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 08.10.2016.
3. Accused persons appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused no. 1 Shree Bhaiya Dass Chit Funds Pvt. Ltd. through accused no. 2 Ajay Kumar Sharma, director of accused no. 1 company vide order dated 18.05.2017 to which the accused no. 1 through accused no. 2 pleaded not guilty and claimed trial. Accused no. 1 company and accused no. 2 stated that they have not received the legal notice. The brother of complainant Nikhil Vajpayee has invested money in chit fund in the name of complainant and Nikhil Vajpayee had taken the cheque in question alongwith Rs. 29,300/- in cash. Thereafter, the brother of complainant Nikhil Vajpayee had Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 3 of 14 4 taken Rs. 1,46,700/- in cash from the accused company and they asked him to return the cheque but he has not returned the cheque and later on misused the cheque in question. The company and accused no. 2 have no liability towards the complainant.
Notice U/s 251 CrPC was served upon the accused no. 3 vide order dated 27.07.2017 to which he pleaded not guilty and claimed trial. Accused no. 3 stated that he was sleeping director in the company and he was not involved in day to day affairs of the company. Accused no. 3 further stated that he does not know anything about the transaction in question.
4. Thereafter, oral request of accused nos. 1 to 3 U/s 145(2) N I Act to cross examine complainant and his witnesses was allowed vide orders dated 18.05.2017 & 27.07.2017and the accused nos. 1 to 3 were given an opportunity to cross examine the complainant and his witnesses.
Complainant was duly cross examined by Sh. Santosh Kumar Sharma, Ld. Counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 13.03.2018.
5. Thereafter, the plea of the accused nos. 2 & 3 u/s 313 r/w 281 CrPC was recorded vide order dated 16.04.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused no. 2 stated that he had not received the legal notice. The cheque in question was given as security. The complainant has never visited their office and entire transaction was done with elder brother of complainant ie Nikhil Vajpayee. The Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 4 of 14 5 payments were also made by Nikhil Vajpayee and cheque was also given to Nikhil Vajpayee. Entire particulars of cheque were written by him. The elder brother of complainant Nikhil Vajpayee had received the amount by way of cash and the receipt has already been filed during cross examination of complainant. Accused no. 2 statd that he had no legal liability to pay the cheque amount to complainant.
Accused no. 3 stated that he had no knowledge regarding the transaction in question nor he was responsible for day to day affairs of the company. He was having only 10% shares in the company. He did not have signing authority on the cheques. He had not received the legal notice and he was sleeping director in the accused company.
Accused persons further expressed their desire to lead defence.
6. Thereafter, matter was listed for DE. In his defence, accused persons examined Nikhil Vajpayee as DW-1 and accused no. 2 as DW-2. Both the defence witnesses were cross examined by Sh. Vipin Dilawari, Ld. Counsel for complainant. No other defence witness was produced by the accused and thus, by way of statement of accused persons, DE was closed vide order dated 27.09.2018 and matter was fixed for final arguments.
7. Sh. Vipin Dilawari, Ld. Counsel for complainant and Sh. Avinash Sharma, Ld. Counsel for accused persons have addressed final arguments.
8. By way of oral arguments, Ld counsel for complainant has reiterated the facts mentioned in the complaint and further it has been argued on behalf of complainant that the accused persons have admitted that they Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 5 of 14 6 have issued cheque in question by way of receipt Mark X1. The only defence taken by the accused is that he had already paid the amount to the brother of complainant who has taken the same on behalf of complainant. However, accused persons have taken contradictory defences and their defence is not consistent throughout the trial. It has been further argued that during DE, accused persons have brought entirely new document and have taken defence that accused persons have paid the amount of cheque in question by way of receipt ExDW2/A and as per accused persons, the brother of complainant/DW1 has signed the receipt. However, this receipt was not put to complainant or to DW1 and DW1/brother of complainant has duly deposed that he has never received any payment from the accused persons qua cheque in question. It has been further argued that the receipt ExDW2/A has been filed during testimony of DW2 but DW2/accused no. 2 is neither signatory to the receipt nor executant of the receipt, therefore, clearly receipt ExDW2/A has not been properly proved. It has been further argued that accused persons have forged & fabricated the receipt ExDW2/A at the stage of defence evidence. Further, no proof has been brought by accused no. 3 that he is only a sleeping director in the company. Thus, the accused persons have failed to prove their defence while the complainant has proved its case beyond reasonable doubts. Therefore, accused persons are liable to be convicted.
On the other hand, it has been argued by the Ld counsel for the accused persons that the accused persons have summoned brother of complainant Sh Nikhil Vajpayee as DW because complainant has not examined Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 6 of 14 7 him despite the fact that DW1 Nikhil Vajpayee has received the payment on behalf of complainant. It has been further argued that as per complainant, accused persons issued cheque in question after a lot of persuasion but complainant had presented the cheque after 1½ months which shows that averment of complainant is wrong. It has been further argued that accused have taken consistent defence since beginning. Further Ld counsel for accused persons has read over the cross examination of complainant and has argued that complainant has denied that his brother had received any amount from accused persons on behalf of complainant. However, the brother of complainant has admitted the same during his testimony and he has admitted the receipt Mark X1 which shows that the testimony of complainant is not trustworthy. It has been further argued that in the plea U/s 313 r/w 281 CrPC, the accused no. 2 has mentioned about the receipt, however, inadvertently, the receipt ExDW2/A was not filed earlier and as soon as accused persons realized the same, the receipt was brought on record. Further as per complainant, receipt Mark X1 is not forged but receipt ExDW2/A is forged which is not probable because earlier complainant even denied that any payment towards the chit of complainant has been received by his brother Nikhil Vajpayee DW1 but when DW1 came in witness box, he admitted the receipt of some amount by way of cash and thereafter, complainant admitted that receipt Mark X1 is genuine. Thus, clearly the complainant is denying the receipt ExDW2/A intentionally taking the advantage of the fact that receipt could not be filed earlier. It has been further argued that the father of complainant had taken the policy and got the money Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 7 of 14 8 and similarly, complainant has also received the money. Accused persons don't want to lower down their market reputation and that is why, accused persons never filed any case or complaint and for the same reason, they did not approach the court with forged documents. It has been further argued that the accused cannot be allowed to suffer for one mistake that the receipt ExDW2/A could not be produced at earlier stage. It has been further argued that the testimony of accused no. 2 has remained unrebutted. Thus, accused persons have proved their defence while complainant has failed to prove his case beyond reasonable doubt, therefore, complaint is liable to be dismissed.
9. Arguments advanced by both parties heard. Case file perused meticulously.
10. 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.
11. In the case at hand, the issuance of cheque in question and its dishonour are not in dispute. Accused persons have taken the defence that they have not received the legal notice and they did not have the legal liability to pay the cheque amount to the complainant.
12. Now, this Court shall deal with the defences of the accused Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 8 of 14 9 persons one by one.
12A. FIRST DEFENCE - NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused persons is that they did not receive the legal notice of demand dated 07.09.16 ExCW1/15. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice of demand. The complainant has deposed that the legal notice of demand dated 07.09.2016 ExCW1/15 was sent to the accused persons through speed post on 07.09.2016, receipts of which are Ex.CW1/16 to Ex. CW1/19 and the tracking report showing the delivery of post are ExCW1/20 to ExCW1/22. A2. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused. A3. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held --
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 9 of 14 10 obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
Further, the accused persons have been served with the summons of the case on the same address on which legal notice has been sent and accused no. 2 has mentioned the same address on the bail bonds furnished on 11.01.17 on which legal notice was sent by the complainant.
Thus, in view of the above said dictum of the Hon'ble Apex Court, this court holds that the legal notice dated 07.09.2016 ExCW1/15 was served on the accused persons.
12B. SECOND DEFENCE - CHEQUE IN QUESTION NOT BEING GIVEN AGAINST ANY CONSIDERATION B1. 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, Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 10 of 14 11 (2006) 6 SCC 39).
B2. Admittedly, complainant had subscribed to the chit no. 35 being run by the accused persons and complainant had deposited the amount of chit as per receipts ExCW1/1 to ExCW1/12. The accused persons made the payment of Rs29,300/- by way of cash to the brother of complainant Mr Nikhil on 07.06.16 and for the remaining amount of Rs1,46,700/-, the cheque in question was handed over to the brother of complainant vide receipt Mark X1.
Now as per complainant, the cheque in question got dishonoured while as per accused persons, they made payment of cheque amount by way of cash to brother of complainant Nikhil Vajpayee later on vide receipt ExDW2/A and complainant misused the cheque in question.
B3. The receipt ExDW2/A has been filed by the accused persons at the stage of DE during testimony of accused no. 2 as DW2. As per receipt, brother of complainant/DW1 received the amount and he signed the receipt ExDW2/A. This receipt has not been put to DW1/brother of complainant and this receipt is not signed by accused no. 2, therefore, accused no. 2 cannot prove this receipt as he is neither signatory to the receipt nor executant to the same. Further, accused no. 2 has not given any reason why this receipt was not filed at the previous stage. Further, accused no. 2 admitted that he is a law graduate and is practicing in courts, therefore, he cannot take the excuse of inadvertence like an ordinary layman because being a law graduate, he is aware of the legal procedure. Further, accused persons have not brought any register or counter foil of the receipt nor the receipt has been given any no. so as to determine that the Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 11 of 14 12 receipt ExDW2/A has been prepared in due course.
B4. Further, during cross examination, accused no. 2 deposed that :
"It is correct that I have not signed the receipt Mark X1 and ExDW2/A. I am not maintaining any ledger/register about the payments received from members. Vol I am maintaining a rough register for the same. I have not filed any copy of rough register regarding maintaining the payments of receipts Mark X1 and ExDW2/A. The receipts/vouchers Mark X1 and ExDW2/A are from the same receipts book. There is no counterpart/counterfoil of these vouchers as these vouchers are being maintained in one copy only and the same copy is kept on file for the purpose of record".
Thus, as per accused no. 2, a rough register is being maintained regarding the payments but the same has not been filed on record. The accused no. 1 is a company and it is highly improbable that a company would be doing the business without maintaining proper records and similarly, it seems more improbable that company would issue the cheque and later on would make the cash payment and would get the receipt executed but would withhold with the receipt till the last stage of trial ie DE.
B5. Further, during cross examination, accused no. 2 deposed that :
"After 17.08.2016, I have not issued any letter, notice to the complainant or his brother namely Nikhil Vajpayee for returning of my cheque in question. After 17.08.2016, I have not given any letter to my bank for stopping payment of cheque in question. Vol I had close relations with Sh Nikhil Vajpayee and hence, I had not written any letter. After 02 days of bouncing of the cheque in question, I received one message from my bank about dishonour of cheque in question. After receiving the message, I have not made any complaint against the complainant or his brother namely Nikhil Vajpayee for misusing my cheque in question. Vol After receiving the message, I talked to Nikhil Vajpayee that despite assurance, my cheques have not been returned Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 12 of 14 13 and to this Nikhil Vajpayee stated that his brother ie complainant herein is not ready to give the cheques and is adamant to take commission of 5%. After talk to Nikhil Vajpayee, I have not made any complaint against them. In the month of Jan 2017, I came to know about the present complaint case. It is correct that after filing of the present complaint, I have not taken any action against the complainant or his brother about misusing of my cheque in question".
Admittedly, the cheque in question has been presented by the complainant after 1 ½ months from the date of cheque as the cheque in question is dated 07.06.16 and it got dishonoured on 23.08.16. As per accused persons, they made payment to brother of complainant on 17.08.16 and thus, there was opportunity available with the accused persons to get the payment of cheque in question stopped or to serve a legal notice upon the complainant for return of the cheque in question. However, accused persons have not taken any steps as an ordinary prudent person. Further, accused no. 2 has taken plea regarding commission of 5 % but accused no. 2 has not elaborated as to how this is relevant to the defence of accused persons.
B6. Further, accused no. 3 has taken additional defence that he is a sleeping director in the company but accused no. 3 has not led any evidence to prove the same. Further, complainant has specifically deposed in his evidence that accused no. 3 was dealing with the complainant for an on behalf of accused no. 1 and accused no. 3 is fully responsible for the acts and deeds of accused no. 1 company and is also handling all the affairs of accused no. 1 company. The averments of complainant have remained unrebutted. Even no suggestion has been given to complainant during cross examination that accused no. 3 was Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 13 of 14 14 never involved in the transactions between complainant and accused no. 1 company. In absence of any proof, mere averments of accused no. 3 that he was sleeping director and is not responsible for day to day affairs of the company, are of no help to the accused no. 3.
13. Therefore, 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 not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable doubts. Resultantly, this court finds the accused M/s Shree Bhaiya Dass Chits (P) Ltd., accused Ajay Kumar Sharma and accused Shyam Jain guilty for the offence punishable U/s 138 N I Act. Hence, they stand convicted.
14. Let the arguments on quantum of sentence be heard on 31.01.2019. Copy of judgment be given dasti to the convicts. Announced in the open court on 19.12.2018 (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 Shubham Vs. M/s Shree Bhaiya Das Chits (P) Ltd. CC No. 473948/2016 Page 14 of 14