Delhi District Court
738 In Support Of His Argument. However ... vs Bratindranath Bannerjee on 8 February, 2013
IN THE COURT OF SH. VIKRANT VAID, MM(NI ACT02)/
SOUTH, SAKET COURTS, NEW DELHI
CC No. 1606/10
Unique ID No. 02403R0993582007
P.K. Bajaj
S/o Late A.P. Bajaj
Proprietor M/s Bajaj Studios,
A5, Mayapuri, Phase1,
New Delhi. .....................Complainant
Versus
Suneel Menon @ Mookul Maruthur Suneel
S/o Sh. Sethu Madhavan Menon
R/o 4, Nazir Wali, Juhu Tara Road,
Mumbai. .............................. Accused
OFFENCE COMPLAINED OF OR PROVED : Section 138 of
Negotiable Instrument Act
PLEA OF ACCUSED : Pleaded not guilty
CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 1 of 22
DATE OF INSTITUTION : 21.06.2007
DATE OF RESERVING ORDER : 15.12.2012
FINAL ORDER : Conviction
DATE OF PRONOUNCEMENT : 08.02.2013
JUDGMENT
1. The present complaint is filed by P.K. Bajaj henceforth referred as 'complainant') against Suneel Menon (henceforth referred as 'accused') under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as "The Act")..
2. The brief facts of the case are that the accused is the chairman of Reminiscent (India) Television Ltd. The accused approached the complainant for settlement in the Civil Suit for recovery titled as 'P.K. Bajaj Vs. Reminiscent (India) Television Ltd' for the recovery of Rs. 90,00,000/ vide Suit No. CS(OS) 575/2005 in High Court. The suit was compromised for a sum of Rs. 90,00,000/. Accused issued CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 2 of 22 three cheques of Rs. 30,00,000/ each and handed over to the complainant on 09.11.2006 in Patiala House Court. The complainant presented the cheque in question (one of the three cheques) for payment but same were dishonoured with remarks "Funds Insufficient". Thereafter, a legal notice was sent to the accused by the complainant. Despite service of notice, the accused failed to make the payment of cheque amount within the stipulated period. Against the factual matrix, complainant instituted the present complaint (against the accused.
3. The predecessor of this court took cognizance of the offence under Section 138 of the Act and summoned the accused.
4. Notice under Section 251 CrPC against the accused was framed to which he pleaded not guilty and claimed trial. Consequently, the matter was listed for complainant's evidence. Vide order dated 31.07.2010 my Ld predecessor had directed joint trial of the present case alongwith the other two connected complaint case bearing CC no.1624/10 and 1629/10. The CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 3 of 22 procedure with respect to joint trial has been complied with.
5. Complainant in his evidence examined himself as the sole witness CW1. He substantiated the averments made in the complaint and proved the cheques, the cheque return memos, the legal notice and the reply to legal notice.
He substantiated the averments made in the complaint proving the following documents.:
1. Cheque bearing no. 823769 dated 10.05.2007 in sum of Rs.
30,00,000/ as Ex CW1/B1.
2. Cheque return memo dated 17.05.2007 as Ex.CW1/B2.
3. Photocopy of bank statement as Ex CW1/B3.
4. Legal notice dated 28.05.2007 as Ex CW1/B4
5. Postal receipt as Ex CW1/B5.
6. UPC receipt as Ex CW1/B6.
7. Courier receipt as Ex CW1/B7.
8. Reply to legal notice as Ex CW1/B8.
6. All incriminating circumstances were put to the accused in his examination under section 313 CrPC and his reply was recorded.
7. In defence evidence, accused examined himself as the sole defence witness DW1. He proved the following CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 4 of 22 documents.
(a) Copy of complete charge sheet filed in FIR No. 103/07 PS Sahu Nagar, Mumbai as Ex.DW1/A.
(b) Copy of plaint in suit No. CS(OS) 575/05 as Ex.DW1/B.
(c) Copy of order sheet dated 11.11.2009 as Ex.DW1/C.
8. Final arguments of the rival counsels were heard and record was perused carefully.
9. The essential ingredients which need be proved for constituting the offence under Section 138 of the Act were discussed in the case Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (9) SCALE 455. The relevant portion of the said judgment reads as under:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 5 of 22
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. Let us now examine whether the complainant has proved the necessary ingredients of the offence under Section 138 of the Act or not.
The first ingredient of the offence stands proved as original cheque is placed on record and signature on the same is admitted by the accused.
The second ingredient of the offence is that the cheque CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 6 of 22 must have been issued in discharge of legal liability. As the signatures on the cheque is admitted, the presumptions raised under Section 139 of the Act become applicable and the issuance of cheque in discharge of the legal liability stands proved. The law on this point has been succinctly laid down by the Hon'ble Apex Court in Rangappa v. Sri Mohan AIR 2010 SC 1898.
Further, it may be noted that DW1 admitted that the consolidated amount of the three cheques(including cheque in question) corresponded to amount claimed by complainant in the civil suit. Apart from making a bare denial, the accused has not produced anything on record to disprove the liability of Rs. 90,00,000/. In fact, neither DW1 elucidated on the aspect of liability nor much questions were put to CW1 during cross examination. Pertinently, cheques equivalent to the liability are in possession of complainant. In given circumstances, a presumption is immediately raised that the same were issued to the complainant in discharge of liability. CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 7 of 22
The third ingredient of the offence is that cheques must presented to the bank within a period of six months from the date mentioned on it. A perusal of the cheque and returnmemo manifests that it was presented for payment within the statutory period of six months.
The fourth ingredient of the offence if that the cheque(s) must be returned unpaid. The cheque was returned unpaid for the reason "Insufficient funds". The original bank returnmemos placed on record proves dishonour of cheque by virtue of presumption raised under Section 146 of the Act and during the trial it went uncontroverted.
The fifth ingredient of the offence is proved as the receipt of legal notice is admitted by the accused.
The last ingredient is that the accused must not have made the payment of the cheque amount within fifteen days of the receipt of legal notice. Non payment of cheque amount is admitted by the accused.
All the necessary ingredients for the offence have been CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 8 of 22 made out against the accused with the aid and assistance of the presumptions raised under the Act. So the complainant has discharged the initial burden of proving his case beyond reasonable doubt and now the onus shifted upon the accused to come up with a probable defence and rebut the presumptions raised against him
11. As emanated from the record, accused has raised a two fold defence. Firstly, he neither met the complainant on 09.11.2006 nor entered into any compromise with him. Secondly, the cheques were never issued to the complainant. Infact he had given blank signed cheques to one Narender Chokhani for payment of EMI(equated monthly instalments) of a loan. However, he stole and misappropriated the cheques. Complainant obtained the cheques from Narender Chokhani and misused it. Further, the particulars of the cheques have been filled by complainant and Narender Chokhani.
12. At the outset, I would point out that the CW1's testimony is not only categorical but also consistent with the CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 9 of 22 prosecution story. It has withstood the test of cross examination. Nothing material could be elicited by defence counsel from CW1 despite detailed crossexamination. So the onus now shifts upon the accused to lead credible positive evidence to establish his defence.
13. Now, I shall deal with the first limb of defence plea that accused neither met the complainant on 09.11.2006 and no compromise was effected between the parties.
The testimony of CW1 is categorical and unambiguous with respect to the settlement which was arrived at Patiala House Court on 09.11.2006. His testimony dated 12.11.2010 reads as:
"The cheques in question were handed over by Sh. Sunil Menon personally on 09.11.2006 at Patiala House around 2:30 pm......"
[Page 1, Para 3, Last sentence] On this, the accused raised the plea of alibi. This plea is extracted from the suggestion, (given to CW1 immediately after CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 10 of 22 his above quoted specific assertion), which reads as:
"... It is wrong to suggest that accused Sunil Menon was not present in Patiala House on 09.11.2006...."
[Page 2, 3rd sentence from the top] However, this plea of alibi has been falsified from accused's own admission( whilst deposing as DW1 on 29.05.2012); which reads as:
"...I was in Delhi on 09.11.2006 and got prepared the draft for Rs. 3.30 lakhs to be paid to Mr. Bajaj to settle the case. I handed over the draft to my lawyer on 09.11.2006 at the Patiala House Courts ..."
[Page 1, Para 1, 5th line from the top] The above admission runs counter to the defence plea. There was no occasion for accused to raise such a plea except to create a sham/false defence. Raising of a false plea of alibi not only adversely affect accused's prospects but at the same time lends credence to the complainant's case.
Admittedly, there was no date of hearing in Court on CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 11 of 22 09.11.2006. Accused is a resident of Mumbai. At the relevant time, a civil suit and a complaint case under Section 138 of The Act between the parties was pending in Court. In other words, they were not having cordial relations. Obviously, the accused would not have informed the complainant about his presence in Delhi and particularly in Patiala House Courts on 09.11.2006. A question crops up then how come complainant have specific and correct knowledge about the presence of accused in Patiala House Courts on 09.11.2006.
It is worthwhile to note that, at relevant time, a compromise was effected between the parties with respect to the complaint under Section 138 of the Act. In this situation, the possibility of compromise talks with respect to the civil suit cannot be ruled out. Rather it brightens the chances of settlement talks. It can be reasonably inferred that the complainant's knowledge regarding presence of accused in Patiala House Courts on 09.11.2006 was attributable to the ongoing settlement talks between the parties. There is no other CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 12 of 22 visible reason. Here complainant's story of striking a compromise in Patiala House Courts fits in nicely.
As discussed above, CW1's testimony is unequivocal and believable. On the other hand, accused has lied about his presence in Patiala House Courts on 09.11.2006. In these circumstances, I find the complainant's story of compromise talks in Patiala House Courts and a consequent settlement quite convincing and acceptable.
14. Counsel for the accused argued that the factum of compromise was not disclosed to the Hon'ble Delhi High Court where civil proceedings were undergoing which indicated that no settlement took place between the parties.
It is pertinent that when questioned on this aspect, CW1 explained in the following words:
"I did not inform the coiurt about the said compromise as the cheques were post dated and the compromise was subject to the realization of the cheque".
I find the explanation given by the CW1 to be reasonable under the given circumstances. Now it was for the accused to CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 13 of 22 establish that despite compromise, the matter was proceeded with in the High Court. However, accused failed to bring on record anything to substantiate his argument. Mere non disclosure of settlement to Hon'ble High Court is not sufficient to draw an adverse infernce against the complainant particularly when he has come up with a plausible explanation. In these circumstances, I do not find any force in the defence counsel arguments that nondisclosure of compromise to Hon'ble High Court probablises the defence plea. Accordingly, it is rejected.
15. Now I shall deal with the second limb of the defence plea of stolen cheques and misuse thereof by the complainant. A few important facts here require consideration:
(i) Blank signed cheques of personal accounts are not issued ordinarily to the accountant. Accused alleged that the blank signed cheques were given for payment of EMI(equated monthly instalments) of a loan to his accountant Narender Chokhani. The cheques of EMIs could have been paid directly CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 14 of 22 into the bank. The amount of EMI is predetermined and borrower knows it even at the time of availing the loan. Now, when the amount of EMI was already known, there was no occasion for issuing blank signed cheques to Narender Chokhani. Any ordinary prudent man simiarly placed would not issue blank cheque for payment of EMI. The conduct of accused is dehors that of ordinary prudent man. Accused has not come up with any plausible explanation regarding his conduct. This circumstance is highly significant and goes against the accused.
(ii) Accused alleged that one Mr. Narender Chokhani who was his employee had misappropriated funds and documents of Reminiscent (India) Television Ltd in the year 20032004. If that were the case, any ordinary prudent man would not only have initaited appropriate legal action against Mr. Narender Chokhani. In addition to this, he must have inquired about the blank cheques lying in his(Narender Chokhani) possession as the same were potentially capable of bing misused. However, CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 15 of 22 there is nothing on record to suggest that accused had acted like an ordinary prudent man. It can be reasonably inferred that no such steps were taken by the accused. Pertinently, there is no explanation for inaction on the part of the accused. The conduct of accused is dubioust and requires consideration.
(iii) It is pertinent that accused explained in examination under Section 313 CrPC that cheques were given to one Chokhani for specific purpose of payment of EMI. There is nothing on record to substantiate the defence plea. Moreover, the testimony of DW1 is vague and bereft of any details. Despite opportunity and testifying as DW1, accused did not produce any reliable independent oral or documentary to substantiate his claims. He even did not divulge the details viz. the amount of loan, the duration of loan, the amount of EMI etc of the alleged loan for which the cheques were issued. Even the name of bank from which the alleged loan was obtained has not been disclosed.
Why? No answer or explanation. These circumstances once again expose the frailty of the defence plea. CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 16 of 22
Mere registration of FIR or filing of chargesheet are not sufficient to rebut the presumption raised under the Act. If such were the case, any accused could displace the presumption by making a complaint to the police regarding misuse or stealing of cheque. Hence the documents Ex.DW1(Copy of FIR) and Ex.DW1/2 (copy of chargesheeet) do not come to the rescue of accused.
(iv) Accused could have placed on record the bank record viz. Statement of accounts etc to prove that cheque of the same series and cheque book were utilisied for payment of EMI's of loan. Unfortunately for him, nothing has been placed on record to corroborate his defence. This circumstance further dents the prospects of the defence case.
16. Counsel for the accused has also raised the plea that presumption of legally recoverable debt is not contemplated under Section 139 of the Act. He relied upon the judgment passed by Division Bench of Hon'ble Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde 2008 AIR SCW CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 17 of 22 738 in support of his argument. However this argument of defence counsel is misplaced as judgment relied upon has been overruled on the said law point by a Full Bench of the Hon'ble Apex Court in Rangappa V. Sri Mohan(supra) wherein it was held, "..... In light of these extracts, we are in agreement with the respondentclaimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct..."
In light of the above discussion, the arguments of defence counsel regarding presumption under Section 139 is rejected.
17. Accused has relied upon a few judgments in support of his contentions. So far as the proposition of law as laid down in the judgments Hiten. P. Dalal Vs. Bratindranath Bannerjee (2001) 6 SCC 16, M.S. Narayana Menon V. State of Kerala (2006) 3 SCC 39 and Bharat Barrel & Drum Mfg. co. V. Amin Chand Pyarelal (1999) 3 SCC 39 is concerned, it is CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 18 of 22 undisputed that the onus of rebutting the presumption lies upon the accused by raising a probable defence.
18. During arguments, counsel for the accused also contended that the complaint instituted on the basis of cheques given pursuant to a compromise is not maintainable. He relied upon judgment of the Apex Court in Lalit Kumar Sharma Vs. State of UP (2008) 5 SCC 638 to buttress his contention. However the said judgment does not help the accused as the facts of referred case and the instant case are different. In the referred case, the compromise was arrived at during the pendency of complaint under Section 138 of the Act and therefore it was held that no further complaint was maintainable. However, in the present case, no such complaint was under litigation when the compromise was effected and cheques were issued. Accordingly, the aforesaid judgment does not assist the accused in any manner.
19. It has also been contended by the defence counsel that the civil suit was filed by complainant against the Reminiscent CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 19 of 22 (India) Television Ltd and not personally against the accused. So there was no occasion for the accused to issue cheques from his personal account to settle the liability of the company. He contended that the prosecution story of issuance of cheques by accused from his personal bank account is nothing but absurdity.
20. Admittedly, the acccused herein is the Chairman / promoter director of the Reminiscent (India) Television Ltd. So the reputation of the company and litigation against it has direct bearing on the accused. In other words, accused is explicitly interested/responsible in the company being its Chairman / promoter director. So it cannot be said that it is improbable or absurd for the accused to issue cheques from his personal account to discharge the liability of Reminiscent (India) Television Ltd. The judgment of State of Haryana V. Bhajan Lal (1992) Supp 1 SCC 335 relied upon in support of contentions fo accused pertains to cognizance and summoning of accused in the instant case. The trial has already been CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 20 of 22 concluded in the case in hand. As such, the said judgment does not apply in the instant case. In any case, I do not find any absurdity in the complaint which could spell its dismissal. Hence the judgment Taruna Batra V. Shikha Batra 147 (2008) DLT 257 also is of no application in the present case. As such, the contention of defence counsel is untenable and therefore rejected.
21. In order to rebut the presumptions raised under the Act, the accused must come up with a probable defence. The probable defence may be raised by demolishing the complainant's case or by leading credible positive evidence. However, the accused has failed on both the counts. He has miserabley failed in demolishing the testimony of CW1. His plea of alibi has already been proved false. In addition, his story of stolen cheques does not inspire any confidence.
22. After carefully scrutinizing and analyzing the evidence together with the circumstances discussed above, I hold that the defence of the accused is not only inconsistent but also CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 21 of 22 improbable. Accused has miserably failed to rebut the presumptions raised under the Act and create doubt on the prosecution story.
23. In view of above, I return a finding that complainant has proved its case beyond reasonable doubt with the aid and assistance of presumption raised under the Act which the accused utterly failed to displace. Accordingly, accused is convicted for the offence under Section 138 Negotiable Instrument Act.
Announced in the open Court (Vikrant Vaid)
today on 08.02.2013 MM(NI Act)02/South
Saket/Delhi
CC Nos. 1606/10 P.K. Bajaj Vs. Suneel Menon Page 22 of 22