Delhi District Court
Mishika Singh vs . Kumari Lakshmi on 22 September, 2018
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
MISHIKA SINGH VS. KUMARI LAKSHMI
CC No. 5949/17
U/s 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 5949/17
(2) Name of the complainant : Mishika Singh
D/o Sh. S.K. Singh
R/o C-57, Upkar Apartments,
Mayur Vihar, Phase-I
New Delhi -91.
(3) Name of the accused, : Kumari Lakshmi
parentage & address D/o Late Sh. Braj Bihari Prasad
R/o A-21, Upper Ground Floor
South Extension, Part-II,
New Delhi -49
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Conviction.
(7) Date of Institution : 15.05.2017
(8) Date on which reserved for
judgment : 14.09.2018
(9) Date of Judgment : 22.09.2018
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that accused had availed legal services of the complainant, who is an Advocate and the fee schedule was agreed and the same was communicated to the accused by way of email dated 28.09.2016. The complainant drafted legal notice Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 1 of 11 2 as per instructions of the accused to be sent to Builders and accused paid amount of Rs. 7000 by way of cheque dated 25.10.2016 in terms of agreed fee schedule and legal notice was dispatched to concerned person on 16.12.2016. Thereafter, complainant received a reply to the said legal notice on 18.01.2017 which was duly intimated to the accused by way of email and Whatsapp messages. Thereafter, on 10.03.2017, a meeting was held between complainant and accused and accused handed over additional documents to the complainant and after conclusion of meeting, accused in discharge of her liability to make the payment towards advance drafting and filing charges as per fee schedule issued cheque bearing no. 000038 dated 10.03.2017 drawn on HDFC Bank, Branch MP for a sum of Rs. 20,000/- to the complainant. Complainant deposited the cheque to Kotak Mahindra Bank, Bhogal Branch, New Delhi on 17.03.2017 which was dishonored for reason "payment stopped by drawer" vide memo dated 27.03.2017. Meanwhile, on 21.03.2017, complainant sent the draft prayer of consumer complaint to be filed for the approval of accused. Thereafter, on failure of accused to pay the said amount, a legal demand notice dated 03/04/2017 was sent to the accused through courier and speed post which was deemed to be duly served upon the accused. Despite the receipt of legal notice, payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. In the pre-summoning evidence, affidavit by way of evidence Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 2 of 11 3 ExCW1/1 was filed by the complainant. In her affidavit of evidence ExCW1/A, the complainant reiterated all the averments made in her complaint and relied on documents Ex.CW1/1 to Ex.PW1/9 which are original cheque in question, its return memo , emails sent by complainant to accused and email sent by accused to complainant, legal notice, returned envelope and AD card.
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 17.05.2017.
3. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 25.07.2017 to which the accused pleaded not guilty and claimed trial. Accused stated that a draft to be submitted in National Consumer Forum and it was delayed for 4 months since December and she continued to pay EMI of Rs. 45,000/- per month to the builder. When she realized that complainant has raised fees from Rs. 80,000/- to Rs. 5 lakhs and secondly, the draft submitted by complainant was actually case study of Sh. Amrsih regarding some other case, she changed her counsel after due information to the complainant. Complainant had given instructions to her banker to stop the payment and also gave due information to the complainant. She received the legal notice and replied to the same twice and the returned enveloped containing her reply Mark X and reply sent by her to complainant contained true facts. She further stated that had the complainant provided her services, she would have paid fees to her. She had to hire another advocate whom she had paid Rs. 40,000/- for the same services.
Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 3 of 11 4
4. Thereafter, upon oral request of accused U/s 145(2) N I Act to cross examine complainant and his witnesses, the same was allowed vide order dated 25/07/2017 and the accused was given an opportunity to cross examine the complainant and her witnesses.
Complainant was duly cross examined by the counsel Sh. Akash Vajpayi for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 10/10/2017.
5. Thereafter, the plea of the accused was recorded U/s 313 CrPC r/w 281 CrPC on 24.11.2017, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that the cheque of Rs. 20,000/- was issued to complainant as an advance payment for the draft to be submitted to National Consumer Forum case filed by accused against Mantri Developers for possession of delay of more than 5 years. On 24.03.2017 in between 6 to 6.30 pm, accused had sent email as well as Whatsapp message informing the complainant that she wishes to go with some other lawyer as so far the commitments have not been met and she has delayed beyond 7 months. Complainant was supposed to file a draft in December 2016 within 21 days of receipt of legal notice to the builder. Notice was served to the builder on 20.12.2016. On 26.12.2016, accused gave her all documents relevant to her case and asked her to go ahead. On 27.12.201, complainant wrote an email stating that within 21 days filing is assured. Between 27.12.2016 to 15.02.2017 there were no communications with her and even her phone was switched off. Complainant wrote email to accused on 15.02.2017 stating some family Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 4 of 11 5 emergency and apologies. On 21.03.2017,complainant gave one case law stating the jurisdiction to be suitable for national consumer forum. On the same date, she had also mentioned an unrealistic fees of Rs. 5 lakhs which was objected by accused. As per the initial contract on 28.09.2016, the whole case had to be seen within Rs. 80,000/- and filing, drafting was supposed to be within Rs. 33,000/-. on 24.03.2017 between 6/6.30, accused gave instructions to stop the cheque.
Accused further expressed his desire to lead defence evidence.
6. Thereafter, matter was listed for DE and accused examined herself as DW-1 in her defence evidence and relied on documents Ex. DW1/1 i.e invoice dated 28.09.2016, mail dated 21.03.2017 Ex.DW1/2 and mail dated 21.03.2017 Ex.DW1/3. Copy of police complaint Ex. 28.05.2017 Ex.DW1/4 and reply to legal demand notice dated 12.04.2017 Ex.DW1/5. Accused was duly cross examined by Sh. Roopesh Singh Badhuria, Ld. Counsel for complainant. No other defence witness was produced by the accused and thus, DE was closed vide order dated 17.07.2018 and matter was fixed for final arguments.
7. Sh. Roopesh Singh Badhuria, Ld. Counsel for complainant and Sh. Virender Tarun and Sh. Chirag Mahawal, Ld. Counsels for accused have addressed oral arguments and have also filed written submissions. By way of oral arguments, both parties have reiterated the written submissions.
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 5 of 11 6 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.
10. In the case at hand, the only defence taken by the accused is that she has no legal liability to pay the cheque amount to the complainant. The issuance of cheque in question, its dishonour and receipt of legal notice are not in dispute.
11. 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, (2006) 6 SCC 39).
12. Admittedly, accused approached the complainant through mobile Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 6 of 11 7 application namely Urban Clap in September 2016 with regard to a consumer matter regarding delay in delivery in possession of a flat to be constructed by builders. On 28.09.2016, complainant sent fee schedule to the accused vide email Ex.CW1/1. Accused paid an amount of Rs. 7,000/- by way of cheque dated 25.10.2016 for drafting the legal notice. After various communications between parties, legal notice was sent on behalf of accused to the builders/concerned persons on 16.12.2016. Thereafter, accused inquired as to when the case was going to be filed vide email dated 27.12.2016 and complainant replied to the same that 21 days have been given to the Mantri Team / Builders from the receipt of notice and after elapse of same, case will be filed (emails Ex.CW1/DX-
3). Thereafter, on 15.02.2017, complainant sent an email Ex.CW1/DX-4 apologizing for the delay in response due to some family emergencies and complainant discussed the legal options as to filing of case and as to jurisdictional aspect. On 17.02.2017, accused sent an email to the complainant Ex.DW1/X-4 informing that accused has initiated arbitration proceedings. Thereafter, on 10.03.2017, parties had a meeting wherein accused handed over the cheque in question to the complainant. On 17.03.2018, complainant presented the cheque. On 21.03.2017, complainant sent an email Ex.CW1/DX-1 (also Ex. DW1/2) whereby complainant asked the accused to take a look on the attached case law as well as the alternative prayer clause. On 24.03.2017, at 6 pm, accused sent an email Ex.CW1/DX-1 to the complainant intimating her wish to discontinue with the complainant. On 24.03.2017 at 9.28 pm, accused sent another email to complainant intimating her suggestion regarding the prayer Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 7 of 11 8 clause (same is part of Mark X-1). Thereafter, on 28.03.2017 at 5.28 pm, accused sent another email to complainant to share the payment schedule again. Meanwhile, on 27.03.2017 cheque in question got dishonoured.
It is the case of the complainant that she had provided legal services to the accused and accused had issued cheque in question to pay for that.
On the other hand, the defence of the accused is that the cheque in question was issued to the complainant as advance payment for draft of the complaint to be filed by the accused in National Consumer forum and the complainant delayed her matter beyond seven months and later on even raised the fees to unrealistic figure of Rs. 5 lakhs. Therefore, on 24.03.2017, she had duly informed the complainant that she wish to go with some other lawyer as commitments have not been met by the complainant and she had also stopped the payment of cheque in question.
13. Now the defence of accused is that complainant delayed the matter. As far as this plea is concerned, from the perusal of conversations and emails exchanged between parties, it is clear that accused was in constant touch with complainant, but accused has not sent even a single message or email to the complainant that her case is getting delayed. Further, prior to the email dated 24.03.2017 sent at 18:04:5 pm Mark X-1, there is not even a single whisper from the accused that complainant is not doing the work properly. Moreover, even if the email dated 15.02.2017 sent by the complainant Ex.CW1/DX-4 is considered as an admission of delay on part of complainant then the issuance of Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 8 of 11 9 cheque by the accused during the meeting dated 10.03.2017 is an indication that accused condoned the delay and also condoned the negligence, if any, on the part of complainant. Further, nowhere accused had pleaded that time was essence of the contract between parties nor any evidence has been advanced in this regard. Further, the accused has taken the plea that the case was to be filed within 21 days from the legal notice, but complainant delayed. As far as this plea is concerned, from the communications between parties, it is clear that complainant clarified the accused vide email Ex. DW1/X-3 that 21 days have been given to the Mantri Team / Builders from the receipt of notice and after elapse of same, case will be filed. Admittedly, thereafter a reply was received from Mantri Team/Builders and therefore, as per procedure the case can be filed only after taking care of legal aspects and from the communications filed on record, it is clear that complainant had sought certain clarifications from the accused regarding certain documents vide email dated 15.02.2017 Ex.DW1/X-4. Therefore, the plea of accused regarding delay is meritless.
14. Further, the accused deposed during cross-examination that-
"Q. I put it you that on 24.03.2017, you emailed the complainant that you wanted to engage the another lawyer? Ans. Yes.
Q. I put it you that on the same date after speaking to the complainant over phone qua the prayer clause, you sent an email to the complainant suggesting an amendment to the prayer clause? Ans. I objected first on the legal fees as Rs. 5 lacs. She convinced me that the draft has already been prepared by her. I respect people professional work and was ready to pay for the draft if produced. I asked the complainant to make the amendment in the prayer clause to get the EMI stopped.
Q. I put it you that did you ask the complainant to make any other amendment apart from the above in the prayer clause? Ans. Not after 24.03.2017."
Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 9 of 11 10 Thus, it is clear that complainant had already completed the drafting for which the payment was made by way of cheque in question.
15. Further, the accused has taken plea that complainant had not assisted her during arbitration proceedings. As far as this plea is concerned, during cross-examination, accused deposed that "
"Q. Did you inform the complainant about alleged arbitration from
16.01.17 to 20.02.2017?
Ans. Yes. By way of email dated 17.02.2017, I informed her about arbitration and I wrote six mails during the arbitration period and she was aware about the proceedings and she did not write any mail and finally failed. There was a arbitration clause, she never exercised arbitration clause. Q. Please provide the documents pertaining to the said email dated 17.02.2017?
Witness has gone through her record and has produced one email dated 17.02.2017. The same is taken on record and is exhibited as Ex. DW-1/X14. I have informed the complainant that vide email Ex.DW-1/X14 regarding arbitration proceedings."
The email Ex.DW1/X-4 is merely an information to the complainant that accused has initiated arbitration proceedings, but nowhere accused has asked the complainant to accompany the accused or assist the accused in arbitration proceedings. Moreover, th ere is nothing on record to suggest that accused has availed the legal services of the complainant for arbitration proceedings too. Therefore, this plea of accused is not sustainable.
16. Further, the accused has taken plea that the complainant raised the fees from Rs. 80,000/- upto Rs. 5 lakhs unreasonably. As far as this plea is concerned, clearly the accused has misunderstood or misinterpreted the email dated 21.03.2017 Mark X-1 because in the said email the complainant asked the accused to take look at the alternate prayer to file the case in National Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17 Page 10 of 11 11 Consumer Commission. There is nothing on record whereby complainant has ever communicated to the accused that her fees has been raised from Rs. 80,000/- to Rs. 5 lakhs. Moreover, the cheque in question has been issued by the accused to the complainant for the payment of drafting and from the perusal of record, it is clear that complainant had done the work of drafting and legal profession being a profession of skills cannot be measured on scales /straight jacket formula so as to conclude that complainant had done excellent work or unsatisfactory work.
17. 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 her case beyond all reasonable doubts. Resultantly, this court finds the accused Kumari Lakshmi W/o Sh. Aneesh Kumar guilty for the punishable U/s 138 N I Act. Hence, she stands convicted.
18. Let the convict be heard on the quantum of sentence on 31.10.2018 at 2.00 pm. Announced in the open court PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2018.09.22 KAUR 16:57:48 +0530 on 22/09/2018 (PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 11 pages and each page bears my signature.
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Mishika Singh Vs. Kumari Lakshmi CC No. 5949/17
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