Delhi District Court
Dinesh Singh vs . Kari Yadav on 30 January, 2020
IN THE COURT OF MS. PRAGATI,
METROPOLITAN MAGISTRATE-01, PATIALA HOUSE COURTS,
NEW DELHI DISTRICT, NEW DELHI.
Dinesh Singh Vs. Kari Yadav
JUDGMENT
Case No. : 1682/17.
Date of Institution : 01.02.2017.
Name of the complainant : Dinesh Singh,
S/o Sh. Virender Singh,
R/o D-7/7098, Vasant Kunj,
New Delhi-70.
Name & address of the accused : Kari Yadav,
S/o Sh. Anant Yadav,
R/o H. No. G-541/C, Phase-6,
Aya Nagar, New Delhi-47.
Offence complained of : 138 of NI Act.
Plea of accused : Pleaded not guilty.
Final Order : Convicted.
Date on which judgment reserved : 30.01.2020.
Date of announcing of judgment : 30.01.2020.
Present: Complainant with ld. counsel Sh. Kanwar Uday Bhan Singh.
Accused Kari Yadav on bail with ld. proxy counsel Sh. S.S. Haider.
1. The complaint in hand has been filed by the complainant against accused Kari Yadav for commission of offence punishable u/s Dinesh Singh Vs. Kari Yadav.
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138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act).
2. Briefly stating, complainant's case is that in the month of October 2015, accused had offered to complainant for sale of a plot admeasuring 50 square yards situated in Khasra No. 2241, at F-Block, Aya Nagar, New Delhi, and in terms of negotiation of sale of the aforesaid plot, complainant had paid to the accused an amount of Rs.12.21 lacs in the installments of Rs.11,000/-, Rs.11 lacs, Rs.89,000/- and Rs.21,000/- on 13.10.2015, 16.10.2015 and 01.01.2016 through cash, cheque and RTGS. That a receipt-cum- agreement to sell and a separate acknowledgement receipt both dated 03.02.2016 were also executed in this regard and the sale formalities were to be completed on or before 30.04.2016, however, it came to the knowledge of the complainant that the aforesaid plot did not belong to the accused. That on confrontation, the accused accepted his fault and in order to discharge his liability in part, he issued a cheque bearing no. 982989 dated 18.11.2016 (hereinafter referred to as the "cheque in question") drawn upon the State Bank of India, Vasant Kunj Branch, New Delhi, in complainant's favour, however, the same was dishonoured upon its presentment on account of "funds insufficient". That a legal notice was served upon the accused asking him to make payment of the cheque amount, but to no avail. Hence, the complaint in hand has been filed and prayer has been made that the accused be summoned, tried and punished for commission of offence punishable under the provisions of NI Act r/w/s 420 IPC.
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3. In his pre-summoning evidence, complainant got examined himself as CW1. Arguments on the point of summoning of accused were heard and vide order dated 22.03.2017, accused was summoned to face trial before the Court for commission of offence punishable u/s 138 of NI Act.
4. Upon appearance before the Court, notice u/s 251 CrPC dated 07.11.2017 was served upon accused Kari Yadav to which he pleaded not guilty and claimed trial.
5. Complainant was asked to lead his evidence, wherein he got examined himself as CW1.
6. Statement of accused Kari Yadav u/s 313 of CrPC was recorded, wherein the entire incriminating evidence appearing against him was put to him.
7. Opportunity was granted to the accused to lead his defence evidence, wherein he got examined Naseem as DW1 and himself as DW2.
8. Final arguments advanced by ld. counsel for complainant and ld. defence counsel were heard. Case file perused carefully.
9. Ld. counsel for complainant has argued that the accused has admitted that he had taken a sum of Rs.12.21 lacs from the complainant. That since the accused had made a payment of Rs. one Dinesh Singh Vs. Kari Yadav.
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lac to the complainant prior to issuance of the cheque in question, therefore, only an amount of Rs.11.21 lacs was outstanding against the accused. That on one hand accused has said that he had made a complete payment of Rs.12.21 lacs to the complainant, on the other hand, in his examination in chief as DW2, accused has said that he has paid an amount of Rs.12.71 lacs. That the receipt Ex.DW2/A is a forged receipt and even if the accused had made the last payment of Rs.7.41 lacs as full and final payment to the complainant then what was the occasion for payment of Rs.1.30 lacs by accused to the complainant on 25.01.2017, has not been explained by the accused. That this shows that the plea of defence raised by the accused is false and so, the accused is liable to be held guilty.
10. On the other hand, ld. defence counsel has argued that the complainant/CW1 Dinesh Singh has admitted the receipt of Rs.2.30 lacs from the accused, but he did not mention the same in the legal notice (Ex.CW1/6). That the receipt Ex.DW2/A is in the handwriting of complainant himself, which also bears signatures of two other persons as a witness, who are known to the complainant, but the complainant did not examine either of them. That the complainant came alongwith 5-7 persons and got signed the cheque in question and filled the same himself as the accused only knows how to sign and he does not know how to read and write. That in these circumstances, the complainant has failed to prove his case against the accused beyond the shadow of all the reasonable doubts and so, he may be acquitted in the case in hand.
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11. CW1/complainant Dinesh Singh has tendered his affidavit Ex.CW1/A in his testimony, wherein he has reiterated the averments of his complaint. He has also led into evidence the following documents: -
(i) Ex.CW1/1 - copy of agreement to sell dated 03.02.2016.
(ii) Ex.CW1/2 - copy of receipt dated 03.02.2016.
(iii) Ex.CW1/3 - copy of certificate of payment issued by Punjab National Bank.
(iv) Ex.CW1/4 - cheque in question.
(v) Ex.CW1/5 - return memo.
(vi) Ex.CW1/6 - legal notice.
(vii) Ex.CW1/7 - Ex.CW1/8 - postal receipts.
(viii) Ex.CW1/9 - courier receipt.
(ix) Ex.CW1/10 - Ex.CW1/12 - tracking reports.
12. In his cross examination, he stated that as per the agreement between him and the accused, the balance payment for the sale of the plot was to be made at the time of execution of title documents in his favour and handing over the possession by accused to him. That he had made an advance payment of total of Rs.1.21 lacs in four installments i.e. Rs.11,000/- on 13.10.2015 in cash, Rs.11.00 lacs on 16.10.2015 through RTGS, Rs.89,000/- on 16.10.2015 vide a cheque and Rs.21,000/- on 01.01.2016 in cash. That the payments in cash were made by him in the presence of one person namely Sh. Abhinandan Gupta. That he had arranged this amount by selling his plot, which was situated in UP. He further stated that the agreement dated 03.02.2016 (Ex.CW1/1) was executed, wherein the conditions of Dinesh Singh Vs. Kari Yadav.
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payment made by him to the accused were laid down and that this agreement (Ex.CW1/1) was executed in the presence of only two witnesses and not three witnesses. He admitted that on 25.01.2017, he had received in his account an amount of Rs.1.30 lacs vide a cheque, but he denied that the same was full and final payment regarding the cheque in question. He also admitted that he had received an amount of Rs.one lac in the month of September 2016 vide a cheque. He denied that any receipt was executed between him and the accused regarding full and final payment of the cheque in question amount in presence of three witnesses.
13. On the other hand, DW1 Naseem stated that he knows the accused for the last 10-15 years and on 2 nd December, accused had paid a sum of Rs.7.41 lacs to one person in his presence, whom he does not know. That a written document was also executed by that person who had received the amount from the accused. In his cross examination, he expressed his ignorance as to what was written in the aforesaid document.
14. DW2/accused Kari Yadav also stepped into the witness box and stated that he had to sell a plot to the complainant for a sum of Rs.15.50 lacs, out of which Rs.12.21 lacs were paid by the complainant to him, however, since the complainant was unable to manage the remaining amount, therefore, the complainant asked him to return the amount of Rs.12.21 lacs. That he had told to the complainant that he does not have money, therefore, he returned to the complainant a sum of Rs. one lac at first, then Rs.1.50 lacs in old Dinesh Singh Vs. Kari Yadav.
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currency, then Rs.1.50 lacs, then Rs.1.30 lacs through cheque, then Rs.1.50 lacs and then finally Rs.7.41 lacs and a receiving was also given by the complainant in respect of the Rs.12.71 lacs (Ex.DW2/A) and as such, he has rather made a payment of extra amount of Rs.50,000/- to the complainant. That since he (accused) is illiterate, therefore, he had given 6-7 blank signed cheques to the complainant, which the complainant had got issued from him. In his cross examination, he denied that the writing at point A to A1 and B to B1 in receipt Ex.DW2/A is in different ink from that of the other written portion therein or that the receipt Ex.DW2/A is forged and fabricated. He stated that in his examination in chief, he has wrongly stated that he has paid a total amount of Rs.14.21 lacs to the complainant in installments. He further stated that the payment of Rs.7.41 lacs was done by him to the complainant in old currency notes and this amount was arranged by him out of the sale consideration of one plot sold by him, which was earlier offered to be sold to the complainant, however, he could not state as to when and to whom the said plot was sold by him. He also stated that after the payment of Rs.7.41 lacs to the complainant on 02.12.2016, he had not made payment of any amount to the complainant. That he did not make any complaint regarding taking of 6-7 blank signed cheques by the complainant from him as he came to know about the same later. He denied that since he was not able to sell the plot measuring 50 square yards to the complainant, therefore, the complainant had demanded back his money or that he had not returned the entire amount to the complainant or that the complainant had not taken any blank signed cheques from him.
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15. Now, Section 138 of NI Act provides as under: -
"138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with fine which may extend to twice the amount of the cheque, or with both: -
Provided that nothing contained in this section shall apply unless:-
(a) the 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;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation. - For the purposes of this section, "debt or other liability"
means a legally enforceable debt or other liability."
16. In the case in hand, the cheque in question is dated 18.11.2016 (Ex.CW1/4) which admittedly bears signatures of accused Kari Yadav was dishonoured vide return memo dated 23.11.2016 (Ex.CW1/5) on account of "funds insufficient". As such, the cheque in Dinesh Singh Vs. Kari Yadav.
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question was presented before the bank within its validity period of three months. Further, the legal demand notice dated 21.12.2016 (Ex.CW1/6) was sent vide postal receipt dated 21.12.2016 (Ex.CW1/7 and Ex.CW1/8) and courier receipt (Ex.CW1/9), which is within the limitation period of 30 days from the date of receipt of information regarding dishonour of cheque in question (i.e. 23.11.2016). Since the accused did not make payment of cheque in question amount within a period of 15 days from the receipt of legal demand notice (Ex.CW1/6), therefore, the complaint in hand was filed before the court on 30.01.2017, which is again within the period of 30 days from the lapse of the said 15 days. As such, the complaint in hand has been filed within the limitation period as prescribed u/s 138 of the NI Act.
17. Sub-clause (a) and (g) of Section 118 of NI Act provides as under: -
"118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made: -
(a) of consideration. - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
.........
(g) that holder is a holder in due course. - that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or accepto, thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
Dinesh Singh Vs. Kari Yadav.
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18. It has been held by the Hon'ble Supreme Court of India in case titled as "Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Ltd.", 2016 (4) JCC (NI) 218, that once issuance of cheque and signature thereon are admitted, presumption of a legally enforceable debt in favour of holder of the cheque arises and it is for the accused to rebut the said presumption, though accused need not adduce his own evidence and can rely upon the material submitted by complainant, but mere statement of accused may not be sufficient to rebut the said presumption. Since in the case in hand, the signatures of accused upon the cheque in question and the fact of its dishonour is not disputed by the accused, therefore, as per Section 118 of the NI Act and as per the decision of Hon'ble Supreme Court of India in case titled as "Sampelly Satyanarayana Rao" (supra), a presumption has arisen in favour of the complainant that the cheque in question was given by accused to the complainant for a consideration and that the complainant is the holder in due course thereof.
19. Further, Section 139 of the NI Act says that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 of NI Act, for the discharge, in whole or in part, of any debt or other liability. Therefore, in the case in hand, as per Section 139 of the NI Act, another presumption has arisen in favour of the complainant that the cheque in question was issued by the accused for the discharge in whole or in part of any debt or other liability.
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20. It has been held by the Hon'ble Supreme Court of India in case titled as "Rohit Bhai Jivan Lal Patel Vs. State of Gujarat & Another", (Crl. Appeal No. 508 of 2019) that once a presumption u/s 118 and 139 of the NI Act is raised in favour of the complainant, the onus shifted upon the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused. That the aspect relevant for consideration had been as to whether the accused has brought on record such facts/material/circumstances which could be of reasonably probable defence.
21. As such, since presumptions u/s 118 and 139 of NI the Act, have arisen in favour of the complainant, therefore, the onus now shifted upon accused Kari Yadav to rebut those presumptions. In order to rebut the same, the plea of defence taken by accused is that he had returned the entire amount to the complainant and rather he has made an extra payment of Rs.50,000/- to the complainant. Accused Kari Yadav has further relied upon receipt Ex.DW2/A which allegedly records the fact of return of entire amount by the accused to the complainant. Perusal of this receipt Ex.DW2/A reveals that the same has been executed on 28.11.2016 and the accused has admitted therein that he had received a sum of total Rs.12.21 lacs from the complainant in different installments on different dates as alleged by Dinesh Singh Vs. Kari Yadav.
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complainant/CW1 Dinesh Singh. Further it is admitted that he had already returned an amount of Rs.one lac to the complainant vide cheque bearing no. 982988 dated 21.09.2016. The same is also admitted by the complainant and is not in dispute. It is also mentioned that on 28.11.2016 itself, the accused is also making a payment of Rs.1.50 lacs to the complainant but in old currency notes, however, this has been disputed by the complainant. Be that as it may, this Court is of the view that even otherwise this payment of Rs.1.50 lacs in old currency notes can not be said to be a payment in the eyes of law.
22. Further it is mentioned in the receipt Ex.DW2/A that the accused "will make" the remaining payment of Rs.9.71 lacs. As such it is not mentioned that the accused has already made the remaining payment of Rs.9.71 lacs or that he has made the payment on 28.11.2016 itself rather it is mentioned that he "will make" the payment meaning thereby that the accused had undertaken to make the remaining payment to the complainant in future. Further, perusal of the receipt reveals that at the end of the aforesaid undertaking of the accused, it is further mentioned "received Rs.1.50 lacs (one lakh fifty thousand only)" and it is also mentioned "02.12.2016 received Rs.7,41,000/- seven lakh forty one thousand only". Firstly, when the receipt Ex.DW2/A was executed on 28.11.2016 and the remaining payment was to be made in future then how the factum of payment of Rs.7.41 lacs on 02.12.2016 came to be mentioned therein has not been explained by ld. defence counsel. Secondly, on careful perusal of receipt Ex.DW2/A it is evident that the writing to the effect of receiving of Rs.1.50 lacs and Rs.7.41 lacs from point A to A1 has been Dinesh Singh Vs. Kari Yadav.
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added later. Thirdly, accused has examined DW1 Naseem during his testimony to prove that this amount of Rs.7.41 lacs was given by the accused to the complainant in his presence, however, this receipt Ex.DW2/A was not put to DW1 Naseem during his testimony and he has not identified his signatures thereupon and as such he cannot be said to have proved the same. Also, DW1 Naseem had merely stated that the accused/DW2 Kari Yadav had given a sum of Rs.7.41 lacs to one person but who is that person, has not been specified by DW1 Naseem nor he has identified the complainant/CW1 Dinesh Singh in the Court as the same person to whom money was given by the accused in his presence. As such, this Court is of the view that the receipt Ex.DW2/A is not duly proved by the accused and so it can not be relied upon.
23. Further, there are many contradictions in the version of accused himself in a manner that in the notice u/s 251 CrPC dated 07.11.2017 accused has stated that the cheque in question does not bear his signatures and the same are forged. Whereas in his statement u/s 313 CrPC dated 03.08.2019, he has stated that the cheque in question was only signed by him and the complainant had filled the other details therein. Also, in the notice u/s 251 CrPC dated 07.11.2017, the accused has not stated that the cheque in question was forcibly obtained by the complainant from him. Even suggestion to this effect has not been given by accused/ld. defence counsel to the complainant/CW1 Dinesh Singh during his cross examination. However, in his statement u/s 313 CrPC dated 03.08.2019, accused has stated that the complainant along with 7-8 persons had taken 5 Dinesh Singh Vs. Kari Yadav.
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cheques from him under pressure by threatening him. Again in his testimony as DW2, nothing regarding forcibly obtaining of 5 cheques by the complainant along with 7-8 persons has been mentioned by the accused rather it is stated that since the accused is illiterate therefore he had given blank signed cheques to the complainant. As such, the accused has taken different contradictory stands. Moreover, if the cheque in question was forcibly obtained by the complainant then why any complaint was not made by the accused against the complainant has not been explained by the accused. It is quite hard to believe that five blank cheques were obtained by the complainant forcibly from the accused but the accused chose to remain silent and did not make any complaint in this regard. Therefore, this Court is of the view that the story of the complainant having obtained the cheque in question from accused forcibly is a concocted story which is an outcome of an afterthought. Furthermore, in the notice u/s 251 CrPC dated 07.11.2017, the accused has stated that he has made the entire payment of the cheque in question to the complainant, but there is no mention of the fact that he has rather made an extra payment of Rs.50,000/- to the complainant against the amount of Rs.12.21 lacs taken by him from the complainant. Even suggestion to this effect has not been given by accused/ld. defence counsel to the complainant/CW1 Dinesh Singh during his cross examination. Although, in his statement u/s 313 CrPC dated 03.08.2019, accused has stated that he has returned a sum of Rs.12.71 lacs to the complainant/CW1 Dinesh Singh, in five installments. But again in his testimony as DW2, accused has stated that he has rather paid a sum of Rs.14.21 lacs to the complainant. As such, accused has introduced Dinesh Singh Vs. Kari Yadav.
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a third figure during his testimony although later in his cross examination he has admitted that this amount of Rs.14.21 lacs was wrongly stated by the accused/DW2 in his examination in chief.
24. Also, as per accused/DW2 Kari Yadav himself, he had lastly made a payment of Rs.7.41 lacs as full and final payment to the complainant and he had not made any payment to the complainant thereafter. As per the receipt Ex.DW2/A, this payment of Rs.7.41 lacs was made by the accused on 02.12.2016. However, in his application u/s 315 CrPC, it is stated by the accused that he had also made a payment of Rs.1.30 lacs to the complainant on 22.01.2017 vide cheque bearing no. 060189. Had it been that the accused had made the last and final payment on 02.12.2016, then what was the occasion for him to make a payment of Rs.1.30 lacs on 22.01.2017 to the complainant, has not been explained by the accused. As such, in such circumstances, when there are a number of contradictions in the version of accused/ DW2 Kari Yadav and so his testimony can not be said to be credit worthy, therefore, the same cannot be relied upon. Whereas, on the other hand, nothing contradictory has appeared in the testimony of the complainant/CW1 Dinesh Singh so as to discard the same. Therefore, considering the aforesaid facts and circumstances of the case in hand, this court is of the view that accused has failed to rebut the presumptions raised against him u/s 118 and 139 of the NI Act, whereas on the other hand the complainant has duly established his case against the accused beyond the shadow of all reasonable doubts that the cheque in question was issued by the accused in order to discharge in part his legal liability towards the complainant and on Dinesh Singh Vs. Kari Yadav.
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presentation the same was dishonoured on account of "fund insufficient" and that the accused has failed to make the payment of cheque amount till date.
25. Hence, in view of the aforesaid discussion, accused Kari Yadav is hereby held guilty for commission of offence punishable u/s 138 NI Act and convicted thereunder.
26. Now, to come up for arguments on the point of quantum of sentence on 07.02.2020 at 2.00 pm. Announced in the open (PRAGATI) Court on 30th January 2020. MM-01 (NDD), PHC, NEW DELHI/30.01.2020 Note: -
This judgment consists of 16 pages and the same have been duly checked and signed by me.
(PRAGATI) MM-01 (NDD), PHC, NEW DELHI/30.01.2020 Dinesh Singh Vs. Kari Yadav.
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