Delhi District Court
Gurcharan Singh vs Arun Seth Page 1/8 on 27 February, 2015
THE COURT OF MS. RICHA GUSAIN SOLANKI
METROPOLITAN MAGISTRATE- 07 (CENTRAL),
TIS HAZARI COURTS, DELHI
Mr Gurucharan Singh .................. Complainant
S/o Lt Sh Thakur Singh
R/o 1384-88, Nicholson Road,
Kashmeri Gate, Delhi-06
Also at :
27,Bunglow Market, Kamla Nagar,
Delhi-07
VERSUS
1)Mr Arun Seth .................. Accused
S/o Sh Devender Nath Seth
2) Mrs Shabnam Seth
W/o Sh Arun Seth
Both R/o 17 E, Bunglow Road,
Kamla Nagar, Delhi -07
Also at :
Sewati Bhawan
106 (Opp MSD School)
Kamla Nagar, Delhi-07
CC No. 1063/1
PS- Kashmeri Gate
U/S:138 Negotiable Instrument
Act
1. Serial No. of the case : 02401R461512011
2. Date of commission of offence : 05.09.2011
3. Date of Institution : 07.10.2011
4. Date when judgment : 16.02.2015
was reserved
5. Date when Judgment : 27.02.2015
was pronounced
6. Offence Complained of : Section 138 Negotiable
and proved Instruments Act.
CC No. 1063-1
PS- Kashmeri Gate
Gurcharan Singh Vs Arun Seth Page 1/8
7. Plea of accused : Pleaded not guilty
and claimed trial
8. Final Judgment : Accused are acquitted of
offence Punishable
U/s 138 Negotiable Instruments
Act.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION OF THE CASE:
1. Briefly stated facts of the case as stated in the complaint are that he is owner of property bearing no.21 UB Second Floor to top floors(10 rooms each floor)situated at Jawahar Nagar, Delhi and the same was given on lease to accused vide lease deed dated 05.08.2010 for a period of 11 months with effect from 01.07.2010. It was agreed that a rent of Rs 315000/ would be paid by the accused by 15th of each month. It is alleged that accused persons were a defaulter in payment of rent and finally it was settled between the parties that a sum of Rs 915000/ would be paid by the accused. Accused promised to pay 8 cheques in the total amount of Rs 760000/ and promised to pay Rs 155000/ in cash.
2. Accordingly, cheque bearing no. 780519 in the amount of Rs 20000/ dated 04.02.2011 EX CW1/C , cheque bearing no. 780289 in the amount of Rs 110000/ dated 09.02.2011 EX CW1/D, cheque bearing no.
780290 in the amount of Rs 120000/ dated 16.02.2011 EX CW1/E, cheque bearing no. 780512 in the amount of Rs 70000/ dated 28.02.2011 EX CW1/F were issued. The cheques Ex CW1/D to CW1/F were dishonoured due to insufficiency of funds vide returning memo CW1/H - CW1/J. Cheque Ex CW1/C was returned because it was stale. Consequently, a legal notice dated 20.08.2011 Ex CW1/K was sent vide receipts Ex CW1/L and Ex CW1/M. Despite service of the legal notice CC No. 1063-1 PS- Kashmeri Gate Gurcharan Singh Vs Arun Seth Page 2/8 accused failed to make the payment and therefore it is alleged that an offence u/s 138 NI Act has been committed.
3. Notice was framed against the accused to which they pleaded not guilty and stated that they had no liability towards the complainant. They also stated that they had already paid Rs 240000/ to complainant on 23.03.2011 as settled amount on different dated in February 2011.
4. COMPLAINANT'S EVIDENCE:
4.1 In support of the allegations complainant examined Sh Umed Singh as CW1 who adopted his affidavit filed in pre summoning evidence as post summoning evidence. His affidavit reiterates the content of the complaint.
He relied on the rent agreement as CW1/B, SPA in his favour as to Ex CW1/A. He relied on documents EX CW1/C to Ex CW1/M. During cross examination, he admitted that a settlement agreement had been arrived at between the parties on 05.05.2011 wherein the total matter was settled at Rs 915000/. He admitted that on 21.04.2011 a settlement agreement was arrived at between the parties. He could not say if on 21.04.2011 a full and final settlement was arrived at for Rs 108000/. He also admitted that accused gave four cheques to the complainant at the same time. He denied the suggestion that the cheque in dispute was also given on 21.04.2011. He admitted the signatures of complainant on agreement mark C1. He then stated he was not aware if the cheque in question was given on 15.05.2011 or 21.04.2011. He did not know about the contents of the legal notice or when it was served on the accused. He did not know when the cheques were filled up and presented for encashment.
5. After the Complainant evidence was closed, the accused was examined U/s 313 Cr.P.C r/w 281 Cr.P.C and all the incriminating evidence CC No. 1063-1 PS- Kashmeri Gate Gurcharan Singh Vs Arun Seth Page 3/8 were put to him wherein they admitted issuing cheques Ex CW1/CCW1/F against outstanding dues in respect of lease agreement dated 05.08.2010. They also admitted dishonour of these cheques vide return memos Ex CW1/GCW1/J. They also admitted receipt of legal notice EX CW1/K. They further stated that they had already paid amount due to the complainant in cash and there was no liability towards the complainant.
6. DEFENCE EVIDENCE 6.1 Accused examined accused no. 1 as DW 1, who entered the witness box on 01.11.2014 and stated that the accused had paid Rs 4 lakhs as security amount as well as Rs 1140000/which was taken from the PG students for security. He relied on copies of complainant mark A1 to mark A2 which was to be adjusted towards the rent of AprilMay 2011. He stated that accused paid rent upto December and issued 12 PDCs in lieu of rent till the month of March. He relied on agreement Ex DW1/A .He further stated that the rent for the month of January was paid in cash but the complainant did not return the cheques and promised to return the same after clearance of entire rent payment upto March. He further stated that in February 2011 accused made payment of Rs 60000/ on 14.02.2011, Rs 60000/ on 24.02.2011, 1lakh, 1.25 lakhs on 27.02.2011, their receivings are mark B1, B2 and B3. He further stated that in March accused paid Rs 4.50 lakhs for which complainant gave a receiving EX DW1/B ,DW1/C and DW1/C1 for Rs 411000/. He also stated that complainant had received Rs 39500/ from the PG students vide slips Ex DW1/DDW1/H. He further stated that rent for April 2011 was also paid but no receipt was issued by complainant. He further stated that on 21.04.2011 a settlement Ex DW1/I was arrived at and Rs 108000/ was the settled amount. The same day Rs 15000/ were given in cash and a cheque in the amount of Rs 8000/ CC No. 1063-1 PS- Kashmeri Gate Gurcharan Singh Vs Arun Seth Page 4/8 bearing no. 062027 dated 25.04.2011 was given as regards the remaining payment for PDCs bearing no. 062023 dated 05.05.2011 in the amount of Rs 20000/, no. 062024 dated 10.05.2011 in the amount of Rs 20000/, no. 062025 dated 15.05.2011 in the amount of Rs 20000/, no. 062026 dated 20.05.2011 in the amount of Rs 20000/were given. He further stated that complainant had told him that the accused need not pay since the rent for the month of April 2011 had been paid.
7. Heard. Perused.
8. For the offence U/s 138 NI Act to be made out, five ingredients have to be satisfied:
a) Drawing of cheque for discharge of legally discoverable debt or liability,
b) Presentation of the cheque within the period of its validity,
c) Dishonor of the cheque,
d) Demand for the payment of the such amount of money by giving the notice in writing within 30 days from the dishonor regarding the return of the cheque as unpaid,
e) The drawer of the cheque failing to make the payment within 15 days of the receipt of the said notice.
9. At the outset it is to be mentioned that the signatory of all the cheques is accused no.1 Anil Seth and not accused no. 2 Shabnam Seth. The only link between accused no 2 and the cheques is that the cheques were given in pursuance of agreement Ex CW1/B which was executed between the complainant and both the accused. However, this is not CC No. 1063-1 PS- Kashmeri Gate Gurcharan Singh Vs Arun Seth Page 5/8 sufficient to fasten criminal liability on accused Shabnam Seth.
10. It is also pertinent to mention that the cheque Ex CW1/C bearing no. 7805190 dated 04.02.2011 in the amount of RS 20000/ has been returned vide memo EX CW1/G not for insufficiency of funds etc but for the reason for the instrument was outdated/ stale. Dishonor of cheque on this ground does not attract the liability under section 138 NI Act which requires that the cheque be presented within the period of its validity.
11. As regards ingredients b,c,d and e in so far as cheques EX CW1/D to Ex CW1/F are concerned, accused has already admitted the same in his statement recorded under section 313 Cr.P.C.
12. It is to be noted that the complainant of the present case has not entered in the witness box. The only witness examined in this support of this case is his power of attorney Sh Umed Singh. Although Sh Umed Singh filed his affidavit Ex CW1/1 stating that he was aware of the facts and circumstances of the present case. His cross examination reflects otherwise. He did not know when the cheques in question were given by the accused to the complainant. He did not know when the same were filed up or when they were presented with the banker. He also did not know when the legal notice U/s 138 NI Act was served or what were the contents thereof. He admitted that on 21.04.2011 the settlement was arrived at between the complainant and the accused but he did not know the date or contents thereof. No other witness has been examined by the complainant. Be that as it may accused has admitted that he had written the cheques in question and the same were return for insufficiency of funds. The case of the accused is that they had made the payment against the cheques in question and it is for this reason agreement Ex DW1/I was signed between the parties on 21.04.2011. It is the case of the complainant that apart from the CC No. 1063-1 PS- Kashmeri Gate Gurcharan Singh Vs Arun Seth Page 6/8 amount mentioned in DW1/I all other payments had been made good. It is further their case that even the amount mentioned in EX DW1/I is not due because the complainant had told the accused that the security amount has mentioned in Clause 10 of the lease agreement would be adjusted towards the remaining due amount. As noted earlier the complainant has himself not entered the witness box to depose anything on this issue. Per contra CW1 has admitted the signatures of the complainant in this agreement EX DW1/I. He had also expressed that he did not know if the accused had made the payment of Rs 253000/ to the complainant against PDCs.
13. In a criminal trial complainant is supposed to prove the guilt of the accused beyond reasonable doubt. In cases like these presumption under Section 139 NI Act goes in favour of the complainant and against accused that the cheque given for a consideration or debt. However, this presumption is rebuttable.
14. In order to rebutt this presumption, accused had to either prove that there was no liability or debt or that under circumstances of the present case, non existence of liability or debt is so probable that a prudent man ought to suppose that no liability or debt existed.
CW1's absence of knowledge of facts of the present case, complainant reluctance to enter the witness box coupled with the facts that the settlement was probably arrived at between the parties on 21.04.2011 sufficient rebuts the presumption under section 139 NI Act.
15. Accordingly, then the burden shifted back on the complainant to rebut this presumption. However, the complainant has filed to prove beyond reasonable doubt that the cheques were given for outstanding legal liability.
16. Accordingly, the ingredients of the offence U/s 138 of Negotiable CC No. 1063-1 PS- Kashmeri Gate Gurcharan Singh Vs Arun Seth Page 7/8 Instruments Act do not stand satisfied. Accused Arun Seth and Shabnam seth are acquitted for the offence punishable U/s 138 of Negotiable Instruments Act.
ANNOUNCED IN THE OPEN (RICHA GUSAIN SOLANKI)
COURT ON 27.02.2015 METROPOLITAN MAGISTRATE-07
(CENTRAL), TIS HAZARI COURTS, DELHI.
CC No. 1063-1
PS- Kashmeri Gate
Gurcharan Singh Vs Arun Seth Page 8/8