Delhi District Court
In M/S. Kumar Exports vs . Sharma Carpets, Air (2009) 2 Sc 1518 on 13 December, 2012
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No.1247/1
Sh. Hitesh Bhasin,
S/o Late Sh. Faqir Chand,
R/o H.No. 2994/5-A/2,
Ranjeet Nagar,
New Delhi. ......Complainant
Versus
Sh. Amarjeet Singh Suri,
S/o Sh. Daleep Singh,
R/o RA-102, Lower Ground Floor,
Inderpuri, New Delhi-110012. .........Accused
Date of Institution : 16.10.2003
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 07.12.2012
Date of Decision : 13.12.2012
Final Order : Acquitted / Held not
guilty
CC No.1247/1 1/ 9
Judgment:
Vide this judgment, I shall dispose of the present complaint filed
u/s 138 N.I. Act. Before going further, it is necessary to dwell upon the
brief facts of the case.
Brief Facts:
1. It is alleged by the complainant that he entered into an agreement to sale with accused for the sell of property no. RA-102(Lower Ground Floor) measuring 120 Square Yards Approximately at Inder Puri, New Delhi vide agreement o sell dated 07.11.2002. It is further alleged that accused agreed to purchase the aforesaid flat for a total consideration of Rs.11,25,000/-. Accused paid the initial amount of Rs.1,20,000/- and agreed to pay the balance amount on or before 11.12.2002. It is further alleged by the complainant that accused took the possession of the aforesaid flat but failed to make the remaining payment as agreed on due time. Thereafter, the complainant filed the complaint before the SHO Inderpuri on 23.07.2003 where the accused admitted his liability and towards the sale consideration and in discharge of his liability accused issued 03 post dated cheques out of which cheque bearing no. 585375 Ex.C1 amounting Rs.4,00,000/- is one of the cheque in question.
2. It is further alleged that on presentation of the said cheque with the bank the same returned unpaid vide returning memo dated 03.09.2009 Ex.C2 with the remarks "Insufficient Funds". After CC No.1247/1 2/ 9 receiving the information, complainant issued a legal demand notice to the accused demanding the cheque amount dated 09.09.2003 Ex.C3. However the accused failed to make the payment in time. Hence, the present complaint is filed.
3. Complainant filed his pre-summoning evidence. Considering the same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused was summoned u/s 138 NI Act. On his appearance, the accused was granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr.P.C stating substance of accusation was served upon the accused on 13.10.2004 to which he pleaded not guilty and claimed trial.
Complainant Evidence:
4. Complainant tendered his evidence by way of an affidavit Ex.P-1 in which he reiterated the same facts as that mentioned in his complaint.
Statement of accused:
5. In his statement u/s 313 Cr.PC r/w281Cr.PC, accused denied having purchased any property from the complainant and stated that the same was purchased from one Sh. Anupam Narula whom he has paid Rs.6 to 7 Lacs. Accused further stated that he had no relation with the complainant. Accused further stated that complainant along with 10-11 persons came to his house and beaten him following which CC No.1247/1 3/ 9 everyone went to Police Station where accused was forced to issue 03 cheques, 02 cheques of Rs.50,000/- and one cheque of Rs.4 Lacs. Accused further stated that cheque of Rs. 4 Lacs was taken as security and the same was recorded in the handwriting of complainant. Accused further stated that he has no knowledge as to how the complainant is connected with aforesaid property. Accused stated that the cheques were taken from him under coercion, pressure and the complainant has falsely implicated him. Accused further denied receiving of any legal demand notice from the complainant.
Defence Evidence:
6. Accused did not lead any defence evidence. Hence, defence evidence was closed.
Reasons for Decision:
7. Accused has admitted his signatures on the cheque in question and issuance of the same to the complainant, therefore the execution of the cheque in question stands duly proved. Now once the execution of the cheque has been duly proved the presumption of law U/s 118 and 139 comes in favour of the complainant and the initial burden of proof shifts upon the accused. Let us see whether the accused has been able to rebut the presumption of law by adducing sufficient evidence on record or not.
8. Ld. Counsel for the accused argued that accused has never CC No.1247/1 4/ 9 being served upon with the legal demand notice therefore, no cause of action arises against the accused u/s 138 of NI Act.
On the other hand ld. Counsel for the complainant argued that the legal demand notice issued to the accused received back with the remarks refused which is deemed to be service of the notice. Moreover, the accused has been summoned to appear before the court on the same address and he appeared in pursuance to that summons. Hence, the presumption u/s 27 of General Clauses Act can be drawn against the accused.
It is important to note here that the envelop in which the legal notice have been sent to the accused returned back with the report "refused" which can be treated as deemed service of the legal demand notice. Moreover, the accused has not disputed or challenged the correctness of the address on which legal notice have been sent rather the accused is appeared before this court upon the service of the summons at the same address. Therefore, the presumption of 27 of General Clauses Act can easily be drawn and the legal notice shall deemed to have been effected.
9. Ld. Counsel for the accused raised the contention that the cheque in question has been got issued by the complainant from the accused under pressure and coercion in the Police Station Inderpuri. It is further argued that the accused has never purchased any property from the complainant rather the property claimed by the complainant to have been sold to the accused has been purchased by the accused from one Mr. Anupam Anand. It is further argued that the accused has no liability qua the cheque in question towards the complainant CC No.1247/1 5/ 9 therefore, no cause of action arises u/s 138 of NI Act and the cheques are without any consideration.
On the other hand Ld. Counsel for the complainant argues that the accused has admitted issuance of the cheques and has also admitted his liability before the SHO Inderpuri and issued the cheques in-discharge of his liability on account of sale consideration against the property purchased.
Countering the arguments, ld. Counsel for the accused further argued that the complainant has not filed any document on record which can show that the property has been sold by the complainant to the accused. Moreover, the ownership of the said property was with one Smt. Swarna Anand in the year 2002 which she transferred to the complainant in the year 2003 vide General Power of Attorney therefore, the agreement to sell of the said property in the year 2002 cannot be believed to have entered as the complainant was not having any ownership / title upon the said property.
10. Ld. Counsel for the accused further argued that the accused has rebutted the presumption of law and raised a reasonable probable defence in his favour and is therefore, liable to be acquitted.
On the other hand, ld. counsel for the complainant argued that although the copy of agreement to sell is not filed on Judicial Record but the accused had admitted his liability in the Police Station Inderpuri before the SHO. It is further argued that the complainant had entered into a collaboration agreement Ex.CW1/10 dated 13.11.1996 whereby the share in the property has been clearly mentioned and in view of the same complainant had the authority to sell the part of his portion to CC No.1247/1 6/ 9 anyone therefore, execution of General Power of Attorney by Smt. Swarna Anand in favour of the complainant in the year 2003 will not disentitle the complainant to recover the money from the accused as per agreement to sell entered in the year 2002.
It is important to note here that the claim of the complainant is based upon the agreement to sell which he entered with the accused and in lieu of which the cheque in question has been issued. No proof has been produced on record by the complainant showing the sale of property by the complainant to the accused except the photocopy of the undertaking given by the accused in the Police Station Inderpuri which the accused has been challenging since the very first date of his appearance, at the time of framing of the notice and in his statement u/s 313 Cr.PC r/w 281 Cr.PC that the cheques have been got issued by the complainant under the pressure / coercion. Secondly, the complainant claimed to have been in possession of the property since the year 1996 has also failed to show his title / ownership upon the property except collaboration agreement relied upon by him. I would like to highlight the relevant paragraph i.e. Para no. 8 of said agreement which shows that the complainant was not having the authority to deliver the possession of the floors to its prospective buyers before handing over the possession of ground floor and every payments mentioned there upon complete in all respect to the first party ie. Swarna Anand. Admittedly the General Power of Attorney has been executed by Smt. Swarna Anand in favour of the complainant on 08.05.2003. Therefore, in view of the clause mentioned therein the collaboration agreement, the accused was not having authority to deliver the possession to any of its buyers prior to the execution of the CC No.1247/1 7/ 9 General Power of Attorney. Execution of which implies fulfillment of terms and conditions of the collaboration agreement.
11. As per the judgment passed by Hon'ble Supreme Court of India in M/s. Kumar Exports Vs. Sharma Carpets, AIR (2009) 2 SC 1518 the accused is only expected to prove its defence on the scale of preponderance of probabilities and not by proving the same beyond reasonable doubt. Accused has lead sufficient evidence rebutting the presumption of law which compels the court to believe in its existence. The accused has successfully rebutted the presumption of law and has raised reasonable probable defence in his favour by demolishing the case of complainant by cross examining him.
Now, once the presumption of law has been rebutted by the accused the onus again shifted back upon the complainant. Now the presumption does not again come in favour of the complainant for his rescue and he has to stand on his own legs by conclusively establishing his case. In the instant case complainant failed to discharge his burden of proof by bringing any independent evidence on record to show the liability of accused with respect to cheque issued.
Decision:-
12. After going through the record and detailed analysis of the evidence led by the parties, it is clearly established that the accused has discharged his burden of proof by probablizing his plea of defence whereas complainant could not prove its case beyond reasonable doubt leaving the burden of proof lying upon him undischarged. The CC No.1247/1 8/ 9 essential ingredients of offence u/s. 138 NI Act ie., have not been complied with, therefore, the accused is found not guilty hence the accused is hereby acquitted for the offence u/s. 138 NI Act.
Announced today in the (Vishal Pahuja)
open court on 13.12.2012 MM NI ACT (WEST)/DELHI
13.12.2012
CC No.1247/1 9/ 9