Delhi District Court
Khushi Builders And Developers vs Sunita Taneja on 31 August, 2023
IN THE COURT OF ANKIT MITTAL,
METROPOLITAN MAGISTRATE - 04, N. I. ACT,
SOUTHEAST DISTRICT, SAKET DISTRICT COURTS, DELHI.
JUDGMENT
M/s Khushi Builders & Developers (P) Ltd.
Through It's Managing Director Mr. Om Prakash Office at: RZ2002, Gali No.2526, Tughlakabad Extension, New Delhi.
..............Complainant Versus Sunita Taneja W/o Sh. Ram Kumar Taneja, R/o RZ3084, Gali No.34, Tughlakabad Extension, New Delhi.
..................Accused PS - Kalkaji Under Section 138 of N. I. Act, 1881 CNR No. DLSE020239082018
a) Sl. No. of the case : CT No. 6795/2018
b) Date of filing of complaint : 01.08.2018
c) Name of the complainant : M/s Khushi Builders & Developers (P) Ltd.
Through It's Managing Director Mr. Om Prakash Office at: RZ2002, Gali No.25 26, Tughlakabad Extension, New Delhi
d) Name of the accused person(s) : Sunita Taneja W/o Sh. Ram Kumar Taneja, R/o RZ3084, Gali No.34, Tughlakabad Extension, New Delhi.
e) Offence complained of : Under Section 138 of N. I. Act, CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 1/16 1881 f) Plea of accused : Pleaded not guilty g) Final order : Conviction h) Date of such order : 31.08.2023 BRIEF STATEMENT OF THE REASONS FOR DECISION :
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 initially was filed by the complainant Khushi Builders & Developers (P) Ltd. through it's Managing Director Sh. Om Prakash against the accused. Thereafter, complainant company substituted the AR and Sh. Satish Gehlot became the new AR of the complainant company. Copy of board resolution of complainant company is Ex. CW1/1.
2. In gist, it is alleged in complaint that in the month of May, 2017, accused alongwith her husband approached the complainant and requested him to grant a loan of Rs.11 Lakh as they were facing financial crisis and difficulties. Further, considering the friendly and cordial relations, complainant gave accused a friendly loan of Rs.11 Lakh, out of which Rs. 3 Lakh was paid through RTGS and another Rs.3 Lakh was given in cash to the accused and remaining Rs.5 Lakh in cash to the husband of accused Ram Kumar Taneja. Thereafter, accused alongwith her husband assured the complainant to return the aforesaid amount within 09 months. Copy of money transfer receipt by RTGS is marked as Mark C1. Further, it is averred in the complaint that after completion of nine months, complainant approached the accused and demanded the return of loan amount to which accused in discharge of her legal liability, she issued two post dated cheques bearing no.776990 and 814236 dated 20.04.2018 and 15.04.2018 for a sum of Rs.5 Lakh and Rs.1 Lakh respectively drawn on State Bank of CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 2/16 India, Branch Ambedkar Nagar, New Delhi with the assurance that said cheques will get honoured at the time of presentation. Original cheques are Ex.CW1/2 and Ex.CW1/3. Thereafter, complainant presented the abovementioned cheques with his banker i.e. Punjab & Sind Bank but same got dishonored vide return memos both dated 21.04.2018 with remarks as "Funds Insufficient". It is further averred that after the dishonouring of the cheques, complainant immediately informed the accused about the dishonour of the cheques to which accused again assured complainant to present the said cheques. As per the assurance of the accused, complainant again presented the said cheques but the same got again dishonoured vide return memos both dated 29.05.2018 with the remarks as "Funds Insufficient". Both return memos are Ex.CW1/4 (colly). Further, as cheques in question again got dishonoured, therefore, complainant approached the accused and demanded his money but accused refused to pay the cheques amount, therefore, he sent a legal demand notice dated 12.06.2018 with a demand to pay the amount in question within 15 days. Copy of legal demand alongwith courier receipts are Ex. CW1/5 (Colly). Tracking report which is Ex. CW1/6. It is further averred in the complaint that despite service of notice accused, accused has not paid the cheques in question within statutory period of legal demand notice, hence, this complaint was filed.
APPEARANCE OF ACCUSED & NOTICE
3. Presummoning evidence was led by the complainant side and after hearing complainant side, accused was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. After appearance of accused, it was ensured that copy of complaint has been supplied to her. Notice was framed against the CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 3/16 accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 on 22.12.2021 in which accused pleaded not guilty and claimed trial. Accused stated simply in her defence recorded in her notice framed u/s 251 Cr.P.C that, "I want to contest the present case".
Thereafter, matter was fixed for complainant's evidence and accused side was granted opportunity to crossexamine the complainant's evidence. COMPLAINANT'S EVIDENCE
4. During the trial, complainant has led the oral and documentary evidence against the accused to prove its case beyond reasonable doubt. The following evidence are as under:
Oral Evidence CW1 Sh. Satish Gahlot (Substituted AR) Documentary Evidence Ex. CW1/1 Resolution letter passed by the complainant company in favour of substituted AR i. e.Sh. Satish Gahlot Ex. CW1/2 Cheque bearing No.776990 dated 20.04.2018 for a sum of Rs.5,00,000/.
Ex. CW1/3 Cheque bearing No.814236 dated 15.04.2018 for a sum of Rs.1,00,000/.
Ex. CW1/4 Return memos of cheques in question dated 29.05.2018. (colly) Ex. CW1/5 Copy of legal demand notice and its courier receipt.
(colly)
Ex.CW1/6 Tracking report.
Mark C1 Copy of money transfer receipt by RTGS.
Ex.CW1/A Post summoning evidence by way of affidavit of substituted AR.
AR of the complainant company stepped in witness box as CW1 adopted his affidavit of postsummoning evidence as his evidence in examination in chief and CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 4/16 reiterating almost all facts of complaint, stating all exhibits available on record.
5. Complainant evidence was closed vide order dated 16.11.2022 and thereafter, matter was fixed for recording statement of accused. STATEMENT OF ACCUSED
6. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 on 21.01.2023. Incriminating evidence was put to her. Accused denied all the allegations. In recording of statement of accused, accused opted to lead defence evidence.
Defence of Accused.
Oral Evidence (DW1 Kadir Ahmed)
7. Thereafter, defence evidence was closed vide order dated 31.07.2023.
8. Final arguments from both sides were heard at length. Case file perused. INGREDIENTS OF OFFENCE AND DISCUSSION
9. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence: First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity; Second Ingredient: The cheque was drawn by the drawer for discharge of any legally CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 5/16 enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank; Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank; Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice. APPRECIATION OF EVIDENCE
10. The accused can only be held guilty of the offence under Section 138 NI Act if the abovementioned ingredients are proved by the complainant coextensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled. Notably, there is no dispute at bar about the proof of only first, third, fourth and fifth ingredient. The complainant had proved the original cheques vide Ex. CW1/2 and Ex CW1/3 which the accused had not disputed as being drawn from her bank account. It was not disputed that the cheques in question were presented within its validity period. The cheques in question were returned unpaid with return memos both dated 29.05.2018 vide Ex. CW1/4 (colly), due to the reason, "Funds Insufficient".
However, accused has disputed the service of legal demand notice to her in her notice framed u/s 251 Cr.P.C. It was argued on behalf of the accused that she has not received any legal demand notice from the complainant.
11. Per contra, Ld. Counsel for the complainant denied the contention of the CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 6/16 accused and submitted that the service of the legal demand notice to the accused has been duly proved in the present matter.
12. Case file perused. So far as the contention qua the non service of the legal demand notice to the accused is concerned is not tenable in the present case. It is pertinent to mention here that in the entire cross examination of the complainant by the accused, the accused has neither disputed the service of legal demand notice nor the address mentioned on the legal demand notice. Importantly, not even a single suggestion has also been put by the Ld. Counsel for the accused qua the service of the legal demand notice to the accused. Furthermore, in her notice framed u/s 251 Cr.P.C as well, she has admitted that the address mentioned on the legal demand notice is correct.
13. Moreover, in the landmark decision of Hon'ble Supreme Court of India in matter of "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555 held that as under: "Any drawer who claims that he did not received the notice sent by post, can, within 15 days of receipt of summons from the court in respect of complaint Under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court alongwith the copy of complaint Under Section 138 of the Act, can not obviously contend that there was no proper service of notice as required Under Section 138, by ignoring statutory presumption to the contrary Under Section 27 of G. C. Act and 114 of the Evidence Act." CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 7/16
14. Adverting to the facts of the present case and in the light of the aforementioned landmark judgment of Hon'ble Supreme Court of India ie. "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr." (Supra), this contention of the accused is not sustainable. Hence, the first, third, fourth and fifth ingredient of the offence under section 138 of the NI Act stands proved.
15. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, accused has admitted her signature on the cheques in question. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
16. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
17. Further, it has been held by a threejudge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 8/16 contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
18. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 9/16 probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability.
In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below.
A. That the present case is not maintainable as there is a violation of the provisions relating to Income Tax Act.
19. It was vehemently argued on behalf of accused that as per the allegations of the complainant company, a loan of Rs. 3 Lakh was given in cash to the accused which is in violation of provisions relating to Income Tax Act, hence, there is no legally enforceable liability against the cheques in question were issued, therefore, the present complaint should be dismissed.
20. Heard.
21. The aforesaid contention is also devoid of merit, hence dismissed on the ground that as it is well settled principle of law that violation of Income Tax Act will not have any bearing upon the liability of accused under N. I. Act.
At this junction, it is relevant to refer the judgment passed by the Hon'ble High Court of Delhi in the case titled as Sheela Sharma Vs. Mahendra Pal dated 02.08.2016 having Crl. L.P. 559/2015 wherein the exact proposition of law has been discussed. The relevant paragraphs of aforesaid judgment are reproduced herein below as under: "..24. The mere advancement of the loan in cash, may entail consequences for the party acting in breach of Section 269 SS of the Income Tax Act. That is not the concern of this Court. Whether, or not, the appellant reflected the availability of the said amount in her income tax returns, is also not a matter of concern for this Court. That would CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 10/16 again be an aspect to be considered by the incometax authorities. The advancement of loan, in cash, to the tune of Rs.10 Lakhs is not prohibited in law. The transaction of advancement of loan of Rs.10 Lakhs, in cash, does is not illegal. Such a transaction is enforceable at law.
25. Breach of Section 269 SS of the Income Tax Act provides the penalty to which the person would be subjected to under Section 271D of the Income Tax Act. Section 271D does not provide that such a transaction would be null & void. The payer of the money in cash in violation of Section 269 SS of the Income Tax Act would, therefore, be entitled to enforce an agreement of advancement of money in cash beyond Rs. 20,000/."
Hence, in the light of the aforesaid judgment, it can be said that prosecution proceedings cannot be dismissed or stalled for the non compliance /violation of Income Tax Act, therefore, the aforesaid contention is dismissed. B. That the complainant has misused the cheques in question as there is no legal enforceable liability of the accused.
22. It was vehemently argued by the Ld. Counsel for accused that the accused took the loan of Rs.3 Lakh only from the complainant and the complainant has misused her cheques by filling the amount more than her liability. It was further argued that accused is still willing to repay the aforesaid amount. Further, in order to corroborate her version, accused testified Kadir Ahmad qua the loan transaction of Rs. 3 Lakh between the parties. It was argued on behalf of accused side that complainant has failed to prove the factum relating to the loan, therefore, present case is not maintainable.
23. Per contra, Ld. Counsel for the complainant vehemently opposed the CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 11/16 aforesaid contention of the accused and submitted that cheques in question issued by the accused against her legally enforceable debt.
24. Case file perused. Submissions heard.
25. Perusal of case file and evidence on record reveals that the accused has admitted the factum of her signature on the cheques in question as well as she has handed over the cheques in question to the complainant. Moreover, she also admitted that she took the loan from the complainant however, she disputed the overall liability of Rs. 6,00,000/ which was alleged by the complainant company as she contested that she took the loan amount of Rs.3,00,000/ and she is willing to repay the same even now also.
26. It is evident from the perusal of the case record that accused miserably failed to prove the defence that she took the loan of Rs. 3 Lakh from the complainant, even on the scale of preponderance of probabilities. It is important to point out that in the cross examination of the complainant, the factum that complainant company had given the loan to the accused was admitted though the total loan amount which was alleged by the complainant was not admitted by the accused. It is relevant to point out that a specific question was asked to the CW1 in his cross examination that whether any witness was present when the loan amount was advanced to the accused to which he denied. Therefore, in order to impeach the credibility of the complainant and to raise a probable defence, accused examined Kadir Ahmad DW1 as witness to prove that the loan transaction between the parties was of Rs. 3 Lakh instead of Rs. 6 Lakh.
27. Upon the perusal of the testimony of the DW1 Kadir Ahmad, it appears to be in conflict with the version of the accused. It is important to point out that as per the accused as well, the factum that she received Rs. 3 Lakh from the complainant through CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 12/16 RTGS is not disputed, however, DW1 in his examination in chief states that he had arranged the meeting of AR/CW1 Satish Gehlot with the accused, in which he gave Rs. 3 Lakh to accused and in return, accused handed over the cheques in question as security to the complainant. It is pertinent to mention here that in complete contradiction to his aforesaid stand, DW1 admitted in his cross examination that he is not aware that CW1/AR Satish Gehlot had given the amount of Rs. 3 Lakh through RTGS to the accused. Hence, it can be said that rather the version of the complainant, that the out of loan amount of Rs. 6 Lakh, Rs. 3 Lakh was given through RTGS and remaining amount was given in cash got corroborated, therefore, it can be said that it completely demolished the aforesaid defence of the accused.
Further in absence of any other oral/documentary evidence, the defence raised by the accused appears to be illusory and merely a bald assertion. Therefore, the aforesaid contention of the accused is dismissed as devoid of merit.
28. Further, I have gone through the cross examination and I do not find any material reason to disbelieve the testimony of complainant. Minor discrepancies, even if in existence, can never be given much importance so as to throw out the entire version of a witness. Nothing came out in the crossexamination to disprove the case of the complainant.
29. In view of the above, it is held that there is nothing in the crossexamination of the complainant which can impeach his credit or tend to show that accused has rebutted the presumption of law available in the favour of the complainant.
30. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala (2006) 6 SCC 39 has observed as under, "32. A Division Bench of this Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 13/16 Pyarelal [(1999) 3 SCC 35] albeit in a civil case laid down the law in the following terms:
"Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt".
31. In the present case, the accused has failed to adduce sufficient evidence to rebut the presumption laid down under section 139 of the NI Act. The accused has failed to prove that she has discharged the legal liability which is due towards the complainant. A statutory presumption has an evidentiary value. The question as CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 14/16 whether the presumption stood rebutted or not, must, therefore, determined keeping in view the other evidence on record. In the present case, the accused has miserably failed to rebut the presumption raised under section 139 of the NI Act.
32. Consequently, it can be said that legal liability exists in favour of the complainant, thus, the second ingredient to the offence under section 138 of NI Act stands proved.
CONCLUSION
33. To recapitulate the above discussion, the complainant has been successful in establishing its case beyond reasonable doubt that the accused had issued the cheque in question in discharge of its legally enforceable liability. The presumptions under section 118 and section 139 of the NI Act were drawn against the accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The defence of the accused that there was no legal liability is not proved, even on the standard of preponderance of probabilities. Moreover, the Hon'ble Supreme Court in the case of Lakshmi Dyechem v. State of Gujarat (2012) 13 SCC 375, has held as under, "Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If, however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally CC No. 6795/18 Khushi Builders & Developers (P) Ltd. Vs Sunita Taneja Page No. 15/16 enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant."
34. In light of the aforementioned discussion, the complainant has successfully proved all the essential ingredients of section 138 of the NI Act. Accordingly, Sunita Taneja is held guilty for committing the offence under section 138 of the NI Act and is hereby convicted.
Let the copy of the judgment be given dasti to convict free of cost.
Announced in the open Court (ANKIT MITTAL)
on 31.08.2023 M.M.04/N.I.Act/SouthEast,Saket/Delhi
31.08.2023
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