Delhi District Court
Yogender Chaudhary vs . Manju Jain on 1 August, 2011
In the Court of Sh. Satish Kumar Arora : MM : KKD Courts : Delhi
C C No. 2405/07
U/s 138 NI Act
Yogender Chaudhary Vs. Manju Jain
JUDGMENT:
A Sl. No. of the case 02402R 0494302007
B Date of institution 17/07/07
C Date of commission of 15/06/07 and onwards
offence
D Name of the Yogender Chaudhary s/o Late Shri R. S.
complainant Chaudhary, R/o 14/77, Geeta Colony,
Delhi110031.
E Name of the accused & Smt. Manju Jain w/o Sh. Ravinder Kumar her parentage and Jain, r/o House No. F6/31, Krishana Nagar, address Delhi110051. Presently at 72, Rishabh Vihar, New Delhi110092 F Offence complained of U/s 138 NI Act G Plea of the accused Pleaded not guilty H Order Reserved on 25/07/11 I Final order Convicted J Date of such order 01/08/11 Brief reasons for the decision of the case.
1 The case of the complainant is that on 01.02.2004, complainant entered into an agreement to sell with the accused for the purchase of property no. F6/31, Krishna Nagar, Delhi and in pursuance C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 1 of 17 thereof complainant gave Rs.20,00,000/ to the accused as earnest money for the sale consideration of the aforesaid property. It is further the case that due to good relations between the parties and on the request of the accused, complainant extended the period for the execution of sale deed from 31.01.2005 to 31.01.2006 and then to 31.01.2007. It is further the case that despite the extension of period, accused failed to execute the sale deed and in terms of the agreement to sell, agreed to pay Rs.40,00,000/, double the amount of earnest money paid by complainant, to the complainant. It is further the case that accused issued cheque Ex.CW1/2 for an amount of Rs.40,00,000/ in favour of the complainant which upon presentation was returned unpaid with the remarks "funds insufficient" vide bank return slip Ex.CW1/3. Consequently, the complainant caused to send a legal demand notice on 09.05.07 which was received by the accused. Neither any reply to the notice nor any payment of the cheque amount was made by the accused. Thus, according to the complainant though a statutory notice was issued, no payment was effected within the statutory period and hence the accused has committed the offence punishable u/s 138 of NI Act. Therefore, the complainant approached this court by filing the present complaint u/s 138 of NI Act.
2. Vide order dated 07.09.07, accused was summoned to C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 2 of 17 face the trial for the offence punishable u/s 138 NI Act and upon her appearance, was given notice u/s 251 Cr.P.C. for the offence punishable u/s 138 NI Act to which she pleaded not guilty and claimed trial. During the trial, complainant examined two witnesses.
CW1 Yogender Chaudhary is the complainant himself. In his examination in chief by way of affidavit Ex.C1, complainant reiterated his case as stated by him in his complaint. He also proved the agreement for sale as Ex.CW1/1, the cheque as Ex.CW1/2, bank return slip dated 27.04.07 as Ex.CW1/3, legal demand notice dated 26.05.07 as Ex.CW1/4, the speed post and UPC receipt dated 26.05.07 as Ex.CW1/5 & 6 respectively. In his crossexamination by ld. defence counsel, he testified that Ruminder Chaudhary is his younger brother and he resides in the same house but in different portion. He testified as correct that a partnership deed Ex.CW1/X was entered into between Ruminder Chaudhary and Ravinder Jain, husband of complainant. He improved upon by stating that he is not aware of any such partnership deed. He further testified that he can identify the signatures of his brother, however, again stated that he cannot identify his signatures. He further testified that as he has been living abroad for the last 10 yrs, therefore, he cannot say as to which document he saw his brother signing except the agreement for sale. He further testified that he is an C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 3 of 17 NRI and maintains an NRI Account and an NRO Account in Corporation Bank, Laxmi Nagar, Delhi. He further testified that his brother Ruminder Chaudhary also has an account in the said bank. He further testified that he had not introduced the account of accused Smt. Manju Jain in the said bank and also cannot say whether the same was introduced by his brother. He denied the suggestion that the amount as mentioned in the complaint was paid by him to the accused for the purpose of investment in the partnership firm M/s R. R. Exports between his brother and husband of accused. He also denied the suggestion that he pressurized the accused to enter into an agreement to sell with regard to her property whereas there was no agreement between him and the accused to purchase the property. He also denied the suggestion that not even a single penny was received in cash or through cheques in question and that the whole amount was utilised in partnership. He also denied the suggestion that he took cheque book on behalf of accused from the bank. He also denied the suggestion that thereafter he obtained the signature of accused in blank on all the leaves of cheque book. He also denied the suggestion that the said cheque book of accused is still with him or that cheque Ex.CW1/2 bears his handwriting at MarkB. He also denied the suggestion that no amount was given to accused under agreement which is also a bogus document. C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 4 of 17 In his further crossexamination, he testified that he had not brought the notice dated 26.05.07 addressed to accused, however, he volunteered by stating that the same notice was resent as in the earlier notice name of the addressee was wrongly mentioned as Madhu Jain instead of Manju Jain. He denied the suggestion that as no notice dated 26.05.07 was sent to accused, therefore he had not brought the same. He testified as correct that he cannot produce any postal receipt of the legal notice dated 26.05.07 addressed to accused, however, he volunteered by stating that UPC receipt which is already on case file is Ex.CW1/7. He denied the suggestion that the UPC Ex.CW1/7 is a manipulated document. He also denied the suggestion that neither any legal notice was sent to accused nor any notice has been resent to her dated 26.05.07.
CW2 Prem Kumar, the summoned witness from the Corporation Bank, Laxmi Nagar, Delhi produced and proved the statement of account of the accused from 01.03.2007 to 31.03.2007 as Ex.CW2/A. In the said statement, cheque Ex.CW1/2 has been shown as returned dishonoured on 26.03.07.
3. In her statement recorded u/s 313 Cr.P.C, while denying the complainant's case in its entirety, accused Manju Jain stated that complainant was a friend of her husband and the cheque Ex.CW1/2 is C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 5 of 17 one of the blank signed cheques taken by the complainant on the pretext of making investment in the partnership firm between her husband and brother of complainant. Further, accused initially admitted that she received the legal notice, however, later denied having received any legal notice. She, however, admitted that in the year 2007 she was residing at F6/31, Krishna Nagar, Delhi. In her defence, accused examined two witnesses.
DW1 Ravinder Jain is the husband of accused. He in his examination in chief by way of affidavit Ex.DW1/A stated that accused is his wife and complainant and his brother Ruminder were known to him. He further stated that a partnership deed dated 10.12.03 was executed between him and Ruminder Chaudhary and the business was carried on in the name of M/s R. R. Exports Inc. He further stated that complainant agreed to invest in the partnership business, however, wanted security of his investment and for this, an account of accused Manju Jain was opened in Corporation Bank, Laxmi Nagar. He further stated that after opening the account of accused, Ruminder Chaudhary took the cheque book from the accused after obtaining her signatures on all the leaves of the cheque book besides obtaining her signature on a stamp paper of Rs.2/. He further stated that neither his wife / accused agreed to sell her property to complainant nor received any C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 6 of 17 consideration for the same. He also stated that no legal notice was received by his wife and the complainant has fabricated the legal notice in back date. He further stated that both the agreement for sale and the cheque in question have been been fabricated by the complainant in collusion and connivance with his brother. He further stated that the partnership suffered losses and was dissolved vide dissolution deed dated 19.10.05.
In his cross examination by ld. counsel for the complainant, DW1 Ravinder Jain testified that partnership deed between him and Ruminder Chaudhary was executed on 10.12.03. He also testified as correct that he resided at 6/31, Krishna Nagar, Delhi till the year 2008. He denied the suggestion that certified copy of Ex. CW1/1 bears his signatures at point A on the last two pages. He further testified that he can identify the signatures of his wife/accused and his son Gaurav Jain. He denied the suggestion that the signatures of his son and his wife are appearing at point B & C respectively on the certified copy of Ex. CW1/1. He further testified that he did not make any complaint to police or to any authority regarding misuse of cheque Ex. CW1/2. He further testified that partnership was dissolved in the year 2005 and account of partnership firm was closed subsequently. He denied the suggestion that his wife entered into agreement to sell Ex. C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 7 of 17 CW1/1 with the complainant and he with his son Gaurav were the attesting witnesses to the same. He denied the suggestion that as the sale deed was not executed in due course his wife issued cheque Ex. CW1/2 of the double amount of earnest money in terms of clause 2 of the said agreement. He denied the suggestion that legal notice was duly received by his wife and she admitted about the same in present proceedings. He testified as correct that he had not filed any document to prove that the amount allegedly paid by the complainant to accused was withdrawn by complainant and the said amount was paid to his brother Ruminder for investment in the business. He denied the suggestion that Rs.20 lakhs were paid to the accused in lieu of agreement to sell.
DW2 Prem Kumar is the summoned witness who brought the account opening form of savings bank account number 10168 in the name of accused Manju Jain and her husband Ravinder Jain alongwith the documents submitted by account holder. The same were exhibited as Ex. DW2/1 (colly). He also proved the statement of account for the period from 01.03.2007 to 31.03.2007 as Ex. DW2/2. He also proved the statement of account of complainant as Ex. DW2/3. In his cross examination by ld. counsel for the complainant, he testified as correct that cheque bearing no. 27874 was presented in the account no. C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 8 of 17 SB/01/10168 and the same was dishonoured.
4. Heard the ld. counsel for the complainant and ld. counsel for the accused and perused the record carefully.
Ld. counsel for the complainant submitted that complainant/CW1 Yogender Chaudhary through his oral testimony and through the documents placed on record and proved has established beyond reasonable doubt that cheque Ex. CW1/2 was issued by the accused Manju Jain towards discharge of her liability having arisen out of the breach of terms and conditions of the agreement to sell Ex. CW1/1. It was submitted that complainant categorically deposed that he gave Rs. Twenty Lakh by way of cash & cheque to the accused in terms of agreement Ex. CW1/1 for purchase of property no. F6/31, Krishna Nagar, Delhi belonging to accused. It was also submitted that complainant also categorically deposed that owing to good relation between the parties, time was extended to execute sale deed with respect to the said property in favour of complainant and the good relations between the parties have also been admitted by the accused in her statement u/s 313 Cr.P.C. and by her husband in his affidavit Ex.DW1/A. It was also submitted that in terms of clause (2) of the said agreement, accused upon failing to execute the sale deed became liable to pay the double amount i.e Rs. Fourty Lakh to the complainant. It was C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 9 of 17 also submitted that as the said cheque Ex. CW1/2 returned unpaid, complainant got issued legal demand notice Ex. CW1/4 upon the accused and as the accused failed to give any reply or make the payment, she had committed an offence punishable u/s 138 NI Act. Ld. counsel for the complainant further submitted that the defence taken up that the cheque book of the accused was taken by the complainant and further that the complainant made the accused to sign all the blank cheques and had thus misused the cheque Ex. CW1/2 is nothing but a false and concocted story and a figment of imagination. It was submitted that if the complainant manged to obtain the signatures of accused on the blank cheques, the first response of the accused must have been to immediately lodge a complaint with the police which admittedly is not so in the present case. It was also submitted that even otherwise accused had the time and opportunity to give the reply to the legal notice Ex. CW1/4 as the legal notice was dispatched on the correct address of the accused. It was, thus, submitted that complainant had established its case beyond reasonable doubt against the accused.
Ld. defence counsel, on the other hand, raised the following contentions:
a. That the complainant had failed to establish that the cheque Ex.CW1/2 was issued by the accused towards the discharge of C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 10 of 17 her liability having arisen out of the breach of the terms of the agreement to sell Ex.CW1/1. It was submitted that it has always been the defence of the accused that no such agreement Ex.CW1/1 was entered into between the accused and the complainant. It was also submitted that the agreement Ex.CW1/1 is nothing but a sham document. b. That the complainant had taken the benefit of good relations between his brother Ruminder Chaudhary and the husband of the complainant. It was submitted that a partnership deed Ex.CW1/X was entered into between Ruminder Chaudhary, brother of complainant and Ravinder Jain, husband of accused and the complainant made certain investments in the said partnership business and to take a security of his investment, he obtained blank signed cheques from the accused and cheque Ex.CW1/2 is one of such cheques which has been misused by the complainant. It was also submitted that it is apparent from the bare perusal of cheque Ex.CW1/2 that the signature of the accused appearing at point Mark C is in different ink when compared with other particulars appearing at point Mark A, B and D respectively. c. That the legal notice Ex.CW1/4 was never received by the accused as whereas in the legal notice dated Ex.CW1/4, name of the accused has been correctly mentioned, on the speed post receipt Ex.CW1/5 and the UPC receipt Ex.CW1/6, name of accused has been C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 11 of 17 incorrectly mentioned as Smt. Madhu Jain. It was submitted that UPC receipt CW1/7 is again a sham document which has been falsely made so as to rectify the mistake committed by the complainant which is apparent on the speed post and UPC receipt Ex.CW1/5 & 6 respectively. It was also submitted that the complainant failed to file on record the legal notice which was returned back to the complainant on account of the said admitted mistake. It was, thus, submitted that once the service of legal notice upon the accused has not been conclusively established by the complainant, the entire case of the complainant against the accused falls on the said ground alone.
Insofar as issuance of cheque Ex.CW1/2 by the accused is concerned, case of the complainant has always been that the said cheque was issued by the accused towards the discharge of her liability having arisen out of clause 2 of the agreement for sale Ex.CW1/1. The contention of ld. defence counsel that agreement for sale is a sham document and was never executed by the accused is untenable and one of the reason therefor is to be found in the cross examination of complainant / CW1 Yogender Chaudhary. One of the suggestion given to complainant Yogender Chaudhary in his cross examination and which I quote was "that the complainant pressurized the accused to enter into an agreement to sell with regard to her C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 12 of 17 property whereas there was no agreement between him and the accused." This suggestion given by the defence to the complainant establishes that the execution of the agreement to sell has not been denied by the defence, what has been denied is that it was voluntarily executed by the accused as alleged by the complainant. Going further, contrary to this suggestion, accused in her statement u/s 313 Cr.P.C. as well as in her defence had stated that no such agreement to sell Ex.CW1/1 was ever executed. Neither in her statement recorded u/s 313 Cr.P.C. nor in the testimony of her husband DW1 Ravinder Jain there is an averment that the complainant pressurized the accused to enter into an agreement to sell with respect to her property. Thus, the inconsistent stand taken up by the defence reinforces the complainant's case that agreement for sale Ex.CW1/1 was executed between the parties and consequently cheque Ex.CW1/2 was issued in terms of clause 2 of the said agreement. Further, accused had lodged no complaint with the police complaining that the agreement for sale Ex.CW1/1 was a fabricated and forged document or that was executed under pressure.
Coming on to the another contention of ld. defence counsel that complainant took blank signed cheques from the accused as a security to the investment made by him in the partnership between his brother and the husband of accused, again the same is untenable C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 13 of 17 and the reason therefor are to be found in the crossexamination of the complainant and the defence produced by the accused. Whereas the suggestion given to the complainant in his crossexamination was that it was he who not only introduced the accused in the opening of her account in Corporation Bank, Laxmi Nagar, Delhi but also took the entire cheque book after having obtained the signature of the accused on all the leaves of the blank cheques as a security for his investment. Contrary to this, DW1 Ravinder Jain in his examination in chief by way of affidavit Ex.DW1/A stated that Ruminder Chaudhary, brother of the complainant, not only introduced the accused Manju Jain for opening of her account in Corporation Bank, Laxmi Nagar but also took the cheque book after obtaining his wife's signatures on all the leaves of the cheque book. This deposition of DW1 Ravinder is in clear contradiction to the suggestion put to the complainant in his crossexamination. As whereas in the crossexamination of the complainant, the suggestion given was that it was the complainant who took blank signed cheque book from the accused, contrary to this, DW1 Ravinder in his crossexamination testified that it was Ruminder Chaudhary, brother of complainant, who took the blank signed cheque book from the accused. Again, this inconsistency in the defence negates the contention of ld. defence counsel that cheque Ex.CW1/2 was obtained as a blank signed cheque. C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 14 of 17 Also, if the entire cheque book of the accused was obtained as blank signed as alleged by the defence, the first reaction of the party in such a situation is to forthwith inform its banker not to honour any of the cheques and also to inform the police to take legal action which admittedly has not been done by the accused. Going further, from the statement of account Ex.DW2/2 of the accused it is to be seen that at the relevant time of the presentation of cheque, there were no sufficient funds existing in her account which again reinforces the complainant's case.
Coming on to the last contention of ld. defence counsel that the legal notice Ex.CW1/4 was never served upon the accused, again the same is untenable and the reason therefor is that whereas in the legal notice Ex.CW1/4, name of the accused and her address has been correctly mentioned, the mistake in the name of the accused appears on the speed post receipt Ex.CW1/5 and UPC receipt Ex.CW1/6 wherein the name of the accused has been incorrectly mentioned as Smt. Madhu Jain instead of Manju Jain. Notwithstanding the said error, complainant proved the UPC receipt Ex.CW1/7 wherein the name of the accused has been correctly mentioned. Even if assuming for a moment that the legal notice with the correct particulars was not resent to the accused, then also service of legal notice C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 15 of 17 Ex.CW1/4 upon the accused has been proved by the complainant on account of the fact that the same has been sent to the accused on her correct and admitted address and further the name of the husband of the accused has been correctly mentioned in the UPC receipt Ex.CW1/6. Further, the presumption u/s 27 of the General Clauses Act goes in favour of the complainant as the complainant had posted the legal notice Ex.CW1/4 on the correct and admitted address of the accused. Further, merely because the name of the accused has been incorrectly mentioned as Madhu Jain instead of Manju Jain on the speed post receipt Ex.CW1/5 and UPC receipt Ex.CW1/6, it cannot be in itself a ground to presume that the legal notice on the said ground alone would be returned back unserved to the sender / complainant. Also, the accused in her statement u/s 313 Cr.P.C. initially admitted that she received legal notice, however, later on denied having received the same. Accused also admitted in her statement u/s 313 Cr.P.C. that in the year 2007 she was residing at F6/31, Krishna Nagar, Delhi, the address on which the legal notice Ex.CW1/4 had been posted by the complainant through UPC and Speed Post. Thus, the complainant establishes beyond reasonable doubt that the legal notice Ex.CW1/4 was duly served upon the accused and she failed to give any reply or to pay the cheque amount.
C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 16 of 17 The accused has also miserably failed to discharge the presumption against her u/s 118 r/w s. 139 NI Act. The onus was on the accused to produce the necessary documents / statement of account of partnership firm entered into between her husband and the brother of the complainant as one of the suggestions put to the complainant was that the amount of Rs. 20 lacs alleged to have been given by the complainant to the accused as earnest money for agreement for sale Ex.CW1/1 was in fact given as an investment in the partnership firm. Accused having failed to brought on record the statement of account fails to rebut the presumption that the cheque Ex.CW1/2 was issued by her towards the discharge of her liability having arisen out of clause 2 of the agreement for sale Ex.CW1/1.
5. In view of the foregoing, I hold the accused guilty of the offence punishable u/s 138 NI Act. She stands convicted accordingly. Be put up for hearing the convict on the quantum of sentence on 11.08.11at 2 pm. Announced in the open court on 01.08.2011 (Satish Kumar Arora) Metropolitan Magistrate KKD Court, Delhi C C No. 2405/07, Yogender Chaudhary Vs. Manju Jain Page No. 17 of 17