Delhi District Court
Sh. Ashish Mishra vs . on 20 October, 2014
IN THE COURT OF MS. NEHA: METROPOLITAN
MAGISTRATE03 : (SOUTH EAST) DELHI
CC no. 745/6/14
Unique ID no. 02406R0494852010
Sh. Ashish Mishra
s/o Sh. Sudhir Mishra
R/o H. No. 39, 3rd Floor,
Shahpur Jat, Near Khel Gaon,
Hauz Khaz, New Delhi110049 .....Complainant
Vs.
Mr. D. C. Mehandiratta
S/o Sh. Motandass Mehendiratta
R/o C5/5, First Floor,
Mian Wali Nagar, Paschim Vihar,
New Delhi - 110063. .....Accused
Date of Institution of complaint : 09.09.2010
Date of Reserving the Judgment : 03.09.2014
Date of Decision : 27.10.2014
Offence Complained of : Section 138 NI Act
Plea of accused : Not Guilty
Final Order : Acquitted
Counsels for the Parties:
Sh. Shiv Chopra, Ld. Counsel for the complainant
Sh. Sanjay Bajaj, Ld. Counsel for the accused.
CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta
PS: Hauz Khas page no.1 of 12
BRIEF FACTS AND REASONS FOR DECISION:
Vide this order, I shall decide the present complaint filed by the complainant under Section 138, Negotiable Instruments Act, 1881 (hereinafter called the NI Act). The complainant has submitted that he is a business man and was in need of a residential premise for himself as well as his family. After being approached by the accused for property bearing flat no.142, Guru CGHS, Plot no.2, Sector6, Dwarka, New Delhi110075 which was stated to be owned in the name of Mrs. Indu Bala/wife of accused, the complainant had agreed to take on rent the said flat for a period of 11 months commencing from 1st April, 2010 and ending on 28th February, 2011.
2. It is further submitted in the complaint that after mutually settling the terms and conditions with respect to such tenancy, a rent agreement dated 1st April, 2010 was executed. In the rent agreement, it was agreed that the complainant would be paying a monthly rent of Rs.18000/ for taking the said flat on rent. On being asked by the accused, the complainant had further agreed to deposit an amount of Rs. 36,000/ as security deposit for such tenancy. It was assured by the accused that the entire security deposit would be returned to the complainant at the time of expiry CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.2 of 12 of the tenancy.
3. It is further submitted that the complainant had been extremely diligent and regular in depositing the monthly rental during his tenancy. For the month of April, 2010 the complainant had deposited the monthly rent of Rs.18000/ by issuing a cheque bearing no.153254 and even for the month of May 2010, the entire amount of rental amount was deposited by the complainant on 21.05.2010 in the bank A/c of Smt. Indu Bala in Punjab National Bank having A/c No. 4081000200016455 after having adjusted the advance payments of Rs.2500/ made by the complainant on behalf of Smt. Indu Bala at the commencement of the tenancy.
4. It is submitted that due to the hostile behavior of the accused who was interfering with the complainant's peaceful enjoyment of tenancy, the complainant was compelled to vacate the said flat on 05.06.2010 even when the rent agreement was to expire on 28.02.2011. Accordingly the peaceful and vacant possession of the said flat was given by the complainant to Smt. Indu Bala on 05.06.2010 with a hope that the security amount of Rs.36,000/ deposited by the complainant at the commencement of the tenancy would be refunded to the complainant forthwith. However, out of the said security amount of Rs.36,000/ the complainant was only given two post dated cheques of Rs. 13,000/ and Rs.16,500/ by the CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.3 of 12 accused along with an assurance that the remaining balance amount of Rs. 6500/ would soon be paid to the complainant. Out of these two cheques given by the accused to the complainant, the post dated cheque of Rs.16500/ dated 26.06.2010 bearing cheque no.516543 drawn by accused from his account with Punjab National Bank was returned unpaid vide return memo dated 01.07.2010 citing "payment stopped by drawer".
5. Thereafter the complainant got issued a statutory legal notice dated 22.07.2010 under section 138 of Negotiable Instrument Act, 1881 (hereinafter called the 'Act') demanding payment of Rs. 16,500/ within 15 days from the receipt of said legal notice. The said legal notice was sent through REGD.AD/UPC. The said legal notice was duly served, received and acknowledged by the accused. The complainant has come to know that there were no sufficient funds in the bank account of accused on the date of the dishonour of the said cheque.
6. It is further submitted that rather than making the payment as demanded, the accused had got sent a mischievous reply dated 04.08.2010 to the legal notice of the complainant dated 22.07.2010. The accused, however, did not make the payment within the stipulated time. Hence, the complainant has filed the present complaint.
CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.4 of 12
7. The court examined the complainant. After perusing the material available on record, the Court took the cognizance and process was issued against accused Sh. D. C. Mehandiratta. Alleged Smt. Indu Bala was not summoned by the Court. Accused Sh. D. C. Mehandiratta appeared in the Court. He was released on bail. The notice u/s 251 Cr.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
8. The complainant has examined himself as CW1 to prove his case. The CW1 has tendered his evidence by way of affidavit Ex. CW1/A wherein he has reiterated the facts stated in the complaint. The CW1 has relied upon the following documents:
a) Tripartite lease agreement is mark CW1/1.
b) Rent agreement is mark CW1/2.
c) Copy of deposit slip of Rs. 15,500/ in the account of Indu Bala is Ex. CW1/3.
d) Cheque bearing no. 516549 dt. 26.06.2010 for a sum of Rs. 16,500/ drawn on PNB is Ex. CW1/4.
e) Cheque return memo dt. 01.07.2010 is Ex.
CW1/5.
f) Statement of account of bank account showing dishonour of cheque and debit of Rs. 36,000 and Rs. 18,000 from the account of complainant in CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.5 of 12 favour of Smt. Indu Bala is Ex.CW1/6.
g) Legal demand notice dt. 22.07.2010 is Ex.CW1/7.
h) Postal receipt, speed post receipt and UPC receipt is Ex.CW1/8 to Ex. CW1/11 respectively.
i) Reply dt. 04.08.2010 to the legal demand notice is Ex.CW1/12.
j) Covering envelope in which the reply dt.
04.08.2010 was received is Ex.CW1/13.
9. The witness was cross examined. The complainant did not examine any other witness. The CE was closed vide order dated 26.10.2012.
10. The accused was examined and his statement was recorded u/s 281 Cr.P.C, by putting all the incriminating circumstances to him. Accused has stated that he is innocent. Accused examined himself in defence as DW1. Thereafter DE was closed vide order dated 23.07.2014.
11. Final arguments were addressed on behalf of both the parties.
12. Ld. Counsel for the complainant has argued that the complainant has proved its case beyond reasonable doubts and therefore, the guilt of the accused has been proved as per law.
CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.6 of 12
There is a presumption in favour of the complainant and against the accused that the cheque was issued for a valid consideration. The burden is on the accused to rebut this presumption. However the accused has failed to rebut the presumption. Hence, the complainant has proved its case beyond reasonable doubts. The accused, therefore, may be convicted for the offence U/s 138 NI Act.
13. Per Contra, Ld. counsel for accused had argued that the accused has discharged the burden that the cheque was not issued for any liability. It is submitted that the complainant has admitted during cross examination that the key was not handed over to the accused or his wife. Further, during evidence of accused, suggestion has been put to accused that cheque of Rs. 13,000/ was issued towards full and final settlement. It is also argued that the complainant has failed to prove beyond reasonable doubt that the cheque was issued towards return of security deposit. Therefore the complaint is liable to be dismissed.
14. I have heard the Ld. Counsel for the parties and carefully perused the material available on record.
15. The law relating to Section 138, NI Act has been adequately developed through various judicial pronouncements. The Act provides that there is a presumption in favour of the CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.7 of 12 complainant and against the accused that the cheque was issued for consideration. The presumption is however rebuttable. In Kumar Exports, M/s. v. M/s. Sharma Carpets AIR 2009 SC 1518 the Hon'ble Apex Court has observed that the accused is not required to prove his case beyond reasonable doubts and it is sufficient that he creates a reasonable doubt on the story of the complainant.
16. Now, in the present case, the complainant has contended that he was tenant of accused and had given a sum of Rs. 36,000/ as security. When the complainant vacated the property, out of total security amount of Rs. 36,000/, he was given two post dated cheques of Rs. 13,000/ and Rs. 16,500/ along with an assurance that remaining balance of Rs. 6,500/ would soon be paid. Out of those two cheques, the cheque of Rs. 16,500/ (cheque in question) was dishonoured.
17. The complainant has examined himself as CW1. He has been crossexamined at length by Ld. Defence Counsel. The complainant has deposed during crossexamination, "The accused had only returned Rs.16,500/ against my security deposit by way of a cheque, which was dishonored for "stop payment". Thereafter, when I contacted the accused, the accused deposited a sum of Rs. 13,000/ in my account in lieu of the security deposit. I have not received any other amount from the accused before or after the CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.8 of 12 receipt of Rs.13,000/".
18. The complainant has stated during crossexamination that cheque of Rs. 16,500/ was against security deposit, which was dishonoured. When the complainant contacted the accused, he deposited a sum of Rs. 13,000/ in his account. When a sum of Rs. 13,000/ has been deposited in the account, the complainant can not claim entire cheque amount in the present case and the legal demand notice must be specific that out of total cheque amount, part amount has been paid and complainant must demand only the balance.
19. The complainant has further stated in the complaint that he had given keys of the flat to Smt. Indu Bala/ wife of accused herein. However during crossexamination, the complainant has stated, "I had handed over the keys of my premises to one of my friend Mr. Arvind Pandey, who lives in Dwarka when I had vacated the premises on 5th or 6th June, 2010. I do not remember when the accused collected the keys from the office of my above named friend, but the keys may have been collected around the same date when the cheque for Rs.16,500/ was given by the accused to the said friend which was around the month of June, 2010. The said cheque was given to me by my friend around 27th or 28th June, 2010."
CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.9 of 12
20. The testimony of complainant is contradictory to his pleadings in the complaint. The contradictions in the testimony of complainant makes his case doubtful that the accused had issued two cheques including the cheque in question towards return of security deposit.
21. Accused has taken defence that the cheque was not given to the complainant towards return of security deposit and it was lost by him while he had handed over cheque of Rs. 13,000/ to the friend of complainant and the cheque was not signed by him. The accused has examined himself in defence as DW1 and has tendered his evidence by way of affidavit Ex.DW1/A. DW1 has deposed that the complainant was tenant at his house and he had vacated the premises on 13.06.2010 without giving any notice and without handing over possession. Upon intervention of property dealer Pradeep Chawla and to save the possession, on 26.06.2010 he had handed over a cheque of Rs. 13,000/ to the friend of complainant at his instructions which was encashed by the complainant.
22. Accused has further stated in his affidavit that when the final settlement cheque was handed over, another blank cheque fell in the dark corridor as there was no light in the staircase. As the blank unsigned cheque was misplaced a stop payment instruction CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.10 of 12 was given to the banker. Accused has relied upon two documents i.e. account ledger/statement of account from 03.03.2010 to 31.07.2010 is Ex.DW1/1 and certificate issued by Punjab National Bank to the effect that there was balance of Rs. 72,451/ in the account of accused on 30.06.2010.
23. Ld. counsel for the complainant has argued that the certificate issued by the bank is a manipulated document as the accused is the employee of Punjab National Bank and it is very easy for him to get any certificate from the officer of the bank.
24. I do not agree with the contention of Ld. Defence Counsel that a bank will not issue any fake certificate only because the accused happens to be its employee. Further the accused has also filed the statement of account which shows that on 30.06.2010 there was balance of Rs. 72,751/ in the account of accused.
25. The accused has been crossexamined by Ld. Counsel for the complainant. During crossexamination of DW1, one suggestion has been given by Ld. Counsel for the complainant that on 26.06.2010 accused had given one post dated cheque of Rs. 13,000/ to the complainant against full settlement.
26. The suggestion given to the accused during his testimony supports the defence that the cheque of Rs. 13,000/ given by the accused to the complainant was towards full and final settlement.
CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta PS: Hauz Khas page no.11 of 12
27. In the light of the discussion hereinabove, I am of the considered opinion that a reasonable doubt has been created on the story of the complainant. In the present case, it is not proved by the complainant that the cheque was given towards return of security deposit. Therefore, the accused can not be made liable to make any payment to the complainant. The accused has shown, on the balance of probability, that the cheque was not issued to discharge any legal liability. The benefit of doubt is given to the accused. Accordingly, accused stands acquitted.
Pronounced in the open Court (Neha)
th
today on 27 October, 2014 MM03 (South East)
Saket, New Delhi
CC No. 745/6/14 Ashish Mishra Vs D. C. Mehandiratta
PS: Hauz Khas page no.12 of 12