Delhi District Court
Complainant vs Nitisha Bharti on 13 July, 2023
Chhavi Jain v. Nitisha Bharti
IN THE COURT OF MS. CHHAVI BANSAL
LD. MM (NI ACT) DIGITAL COURT-03, SOUTH DISTRICT,
SAKET COURT, NEW DELHI.
Chhavi Jain,
W/o Sh. Mahesh Prasad,
D/o: Lt. Col. Yogesh Jain (Retd.),
R/o House No. C-607,
JVTS Garden, Chhattarpur Extn.,
New Delhi-110074.
Through POA,
Sh. Yogesh Jain
R/o House No. C-607(GF),
JVTS Garden, New Delhi-110074
Also at, House No. J-170,
Vikaspur, New Delhi-110018
..............Complainant
Versus
Nitisha Bharti,
W/o Sh. Manish Kumar,
R/o Upper Ground Floor (Rear), C-607,
JVTS Garden, Chhatarput Ext. new Delhi-110074.
.... Accused
Complainant Case no. 3737/2022
CNR No. DLST020078982022
Title Chhavi Jain v. Nitisha Bharti
Name of Complainant Chhavi Jain
Name of accused Nitisha Bharti
Date of filing 26.03.2022
Date of institution of 28.03.2022
complaint
Date of final arguments 22.06.2023
Digitally signed
CHHAVI by CHHAVI
BANSAL
BANSAL Date: 2023.07.13
17:46:52 +0530
CC No. 3737/2022 Page No. 1/21
Chhavi Jain v. Nitisha Bharti
Date of pronouncement of 13.07.2023
judgment
Offence complained of Under Section 138 NI Act
Plea of the accused Pleaded not guilty
Final order Convicted
JUDGMENT
1. The complainant has filed the present complaint case under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") seeking prosecution of the accused regarding the alleged dishonour of the cheques in question issued in discharge of the legal liability of the accused in both the complaint cases.
2. The Brief Factual Matrix, as per the present complaint of the complainant, is as follows:
2.1. That the complainant is presently staying in Malaysia and the present complaint is being filed through her father and General Power of Attorney Mark CW-1/A holder Mr. Yogesh Jain, and that the GPA holder on behalf of the complainant has personally dealt with the transactions with the accused.
2.2. That the accused approached the complainant for purchase of the Upper Ground Floor (rear) of property bearing no. C-607, JVTS Gardens, Chhatarpur Extension, New Delhi (hereinafter referred to as "property in question") and an agreement to sell dated 18.02.2020 was executed between the parties for said property including a common parking area and other common facilities.
2.3. That the accused paid part consideration before taking over physical possession of the property and the accused issued three Post Dated cheques for the remaining part of the consideration amount of Rs. 10,00,000/-.
2.4. That the accused also gave an undated written undertaking Mark CW-
1/2 to the complainant stating that if the aforesaid PDCs were not cleared, the documents executed in favour of the accused would stand cancelled and become null and void. Digitally signed by CHHAVI CHHAVI BANSAL BANSAL Date:
2023.07.13 17:47:00 +0530 CC No. 3737/2022 Page No. 2/21 Chhavi Jain v. Nitisha Bharti 2.5. That in March 2020, accused verbally asked the complainant not to present the cheques due to financial constraints and that the complainant readily obliged the accused by not presenting the cheques.
2.6. That in March 2020, the husband of the accused represented the accused in a meeting held on 15.03.2020 wherein all the residents of C-607 JVTS Garden assembled and decided that the complainant will surrender certain part of his property for adding space to the existing common parking area, and the husband of the accused agreed to compensate the complainant by paying an amount of Rs.1,50,000/-, i.e. share of the accused towards contribution to the common parking area. Copy of said settlement agreement is placed on record as Mark CW-1/3.
2.7. That the accused transferred Rs.1,00,000/- through NEFT to the complainant on 04.06.2020 out of the balance part payment of Rs.
10,00,000/-, and for the remaining outstanding amount of Rs. 9,00,000/-, accused issued 15 PDCs for Rs. 62,850/- each. 2.8. That the accused also issued another cheque bearing number 169888 dated 10.11.2021for Rs.1,50,000/- Ex. CW-1/5 in discharge of her liability towards the complainant in respect of the increased area of the common parking as had been agreed between the parties vide agreement Mark CW-1/4.
2.9. That in lieu of payment of the three PDCs of Rs. 62,850/- as mentioned above, the accused issued cheque bearing no. 169893 dated 10.01.2021 for Rs. 1,88,550/- Ex. CW-1/7. 2.10. That the cheques Ex. CW-1/5 and Ex. CW-1/7 were presented and dishonored vide return memos dated 05.02.2022 Ex. CW-1/6 and Ex. CW-1/8.
2.11. That the complainant issued a Demand Notice dated 21.02.2022 Ex CW-1/9 to the accused which was duly served to the accused but the accused did not make the payment of the cheque amount, prompting the complainant to file the present case.
3. After the complaint was filed, cognizance was taken and the accused entered appearance on 25.05.2022. On 04.07.2022, Notice u/s 251 of the Code of Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:47:06 +0530 CC No. 3737/2022 Page No. 3/21 Chhavi Jain v. Nitisha Bharti Criminal Procedure (hereinafter referred to as, "Cr.PC") was framed upon the accused wherein the accused admitted her signatures on the cheques Ex. CW-1/5 and Ex. CW-1/7, and the accused also stated that she received the demand notice Ex. CW-1/9 from the complainant. In her plea of defence the accused stated as under:-
"I have owned a house in February which was not fully furnished. The amount was divided in 15 cheques with interest. When we bought the house there were only three floors which were not furnished. After that they built two illegal floors above the house without giving the prior notice. When we bought a house the shaft was opened at that time. They closed the shaft by cheating on us. The total area was provided to us was not same as the document that we agreed i..e 1350 Sq.ft. And the total area which was provided to us was 1230 sq. ft. According to the agreement the lift was provided to us but it does not work at all. The lift did not work properly in September, 2020 I was pregnant and there was illegal construction on the fourth floor was going and the lift was not working at that time. I and my three months child were stuck up in the lift as it was not functioning properly due to illegal construction that was going on the fourth floor. When we bought the house, the complainant had taken the electricity meter bill and the water connection bill from us however, despite that the complainant did not get the meter installed. We were not informed that the complainant is an NRI. The 15 cheques were given to the complainant as security cheques and the payment qua the 12 cheques was already made through digital mode and as regards the remaining cheques we assured the complainant that we will make the payment once the complainant honour its promise regarding providing us the modular kitchen, almirah in the rooms, mosquito ventilators, reserved parking open shaft and functional lift. They sold our reserve parking area out of the common parking area to the third party. We have already made the completed payment. We owe no liability towards the complainant. We had filed the police complaint against the complainant."Digitally signed by CHHAVI
CHHAVI BANSAL Date:
BANSAL 2023.07.13 17:47:13 +0530 CC No. 3737/2022 Page No. 4/21 Chhavi Jain v. Nitisha Bharti
4. For Complainant's Evidence, CW-1 Yogesh Jain, who is the Power of Attorney Holder for the complainant, stepped into the witness box. CW-1 tendered and relied upon the documents mentioned in his affidavit of evidence Ex. CW-1/A. In his cross-examination, CW-1 accepted the suggestion that the accused was provided common parking space for her car and also that the accused was promised a lift for the property. CW-1 stated that the lift was not installed at the time when the accused took possession of the property but stated that the said lift was installed and was functional by the end of 2020. CW-1 stated that the property in question contains a fourth and fifth floor also, but that the same do not belong to CW-1 nor has CW-1 got the fourth and fifth floor constructed. CW-1 stated that he was not aware if any police complaint dated 25.05.2022 was filed against him by the accused for illegal construction of the fifth floor. CW-1 denied the suggestion that the cheques in question were given to the complainant at the time of purchasing the property. CW-1 denied the suggestion that the documents Mark CW1/2 and Mark CW1/3 were forged and fabricated or that the signatures of the accused on the photocopy of the undertaking Mark CW1/2 were forged and fabricated. CW-1 stated that he filled the name of the complainant on the cheque Ex. CW-1/5 and CW-1 denied the suggestion that he misused the cheque in question Ex. CW-1/5 by filling in the name of his daughter the complainant. CW-1 stated that the cheque Ex. CW-1/7 was given by the accused sometime in May/June, 2021 and that the same was given for the repayment of old cheques for the part payment amounts of February, Mach and April 2021. CW-1 accepted the suggestion that no specific parking area was allotted to the accused since the parking was common.
5. Thereafter, the GPA Holder of the complainant closed the evidence and the matter was listed for recording of Statement of the Accused u/s 313 r/w 281 Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:47:19 +0530 CC No. 3737/2022 Page No. 5/21 Chhavi Jain v. Nitisha Bharti Cr.P.C. In her statement u/s 313 Cr.P.C., accused stated that the property in question was purchased from the father of the complainant and included the common parking facility, that the property had only three floors when it was purchased but now there were five floors, that there was no lift facility when the accused took possession, that the area of the house was lesser than promised, that the shaft was open when the accused purchased the flat but that the shaft was later closed causing problems to the accused, that the property was not completely ready when the accused took possession and that certain fixtures were missing from the property, that the cheques in question were given as security cheques, that the complainant did not carry out the work in the property as promised but that the father of the complainant presented the cheques for encashment despite works not done by the complainant in the flat, that the lift did not work properly and that in 2021, the accused got stuck in the lift with her toddler.
6. Accused further stated in her statement u/s 313 Cr.P.C. that it was decided between the parties that the accused would pay Rs.1,50,000/- only if the parking was clearly demarcated and allocated to each of the residents but that the complainant did not clearly demarcate the parking. In reference to the cheque Ex. CW-1/5, accused stated that the cheque was given with an understanding that the accused would be provided with reserved parking, and that the accused stopped the payment of the cheques Ex. CW-1/5 and Ex. CW-1/7 because the complainant did not provide the accused with reserved parking. Accused further stated that the Cheque Ex. CW-1/7 was given as a security cheque and the complainant did not complete the work in the flat of the accused as promised and presented the cheque maliciously. Vide the same statement under Section 313 r/w 281 Cr.P.C., the accused opted to lead Defence Evidence. Digitally signed by CHHAVI CHHAVI BANSAL BANSAL Date:
2023.07.13 17:47:25 +0530 CC No. 3737/2022 Page No. 6/21 Chhavi Jain v. Nitisha Bharti
7. In her Defence Evidence, Accused examined herself as DW-1 on 08.05.2023. In her examination in chief, accused reiterated her case and stated that the GPA holder of the complainant promised that no further construction would be done beyond the second floor of the building, that facilities such as lift, modular kitchen, wall paper, common car parking etc. would be provided by the GPA holder of the complainant. DW-1 stated that she paid Rs.46,00,000/- to the GPA Holder of the complainant but it was only after taking the possession that DW-1 discovered that there was no lift, that the carpet area was only 1200 sq. ft. and not 1350 sq. ft. as promised, that the water and electricity connection were not provided, that an illegal gym was running in the basement, and that the closure of the shaft resulted in smoke accumulating in the house of DW-1. DW-1 when stated that the total sale consideration for the property was Rs. 46,00,000/- out of which the DW-1 paid Rs. 37,00,000/- and the outstanding amount of Rs. 9,00,000/- was to be paid in 15 PDCs of Rs. 62,850/- which included interest @ 7% per annum and also the amount of Rs. 1,50.000/- towards reserved parking. DW-1 stated that payment of 12 PDCs out of 15 PDCs has been paid in the account of the husband of the complainant. DW-1 stated that when payment of three PDCS was left, DW-1 approached the GPA holder of the complainant with her concern over lesser carpet area, shaft issue, absence of modular Kitchen, almirah, wall paper, water connection, reserved parking and electricity meter connection. DW-1 stated that the GPA holder of the complainant did not pay any heed to the concerns of DW-1 and presented the remaining three PDCs (including cheques Ex. CW-1/5 and CW-1/7) without informing DW-1.
8. DW-1 stated that she filed a police complaint Ex. DW-1/1 against the complainant and the GPA Holder of the complainant, and that DW-1 issued a show cause notice to GPA Holder of the complainant Ex. DW-1/2. DW-1 Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:47:30 +0530 CC No. 3737/2022 Page No. 7/21 Chhavi Jain v. Nitisha Bharti stated that she was not liable to pay the amount of the cheques Ex. CW-1/5 and Ex. CW-1/7 to the complainant.
9. In her cross-examination, DW-1 stated that she signed the cheques Ex. CW- 1/5 and Ex. CW-1/7 but the amounts were written by her husband. DW-1 denied the suggestion that the cheques Ex. CW-1/5 and Ex. CW-1/7 were not the same as were being discussed in her police complaint Ex. DW-1/1. DW- 1 admitted that the agreement Mark CW-1/3 bore the signature of her husband at point 'A' but that the said signature was not made in the presence of DW-1. DW-1 also brought her bank statement Mark DW-1/3, the photocopy of Agreement to Sell Ex. DW-1/4 and photocopy of title documents Ex. DW-1/5 on record. DW-1 denied the suggestion that she filed the police complaint Ex. DW-1/1 to intimidate and harass the complainant even though Rs. 10,00,000/- was outstanding on her part and DW-1 volunteered to state that she had already made the payment of Rs. 9,00,000/- out of Rs. 10,00,000/- at the time when she made the police complaint. DW- 1 admitted that the undertaking Ex. CW-1/2 bore her signature at point 'A'. DW-1 denied the suggestion that no assurance was given by the GPA holder of the complainant regarding removal of the gym from the basement. DW-1 further denied the suggestion that no assurance was given by the GPA holder of the complainant regarding absence of further construction on the property. DW-1 stated that she cannot show any document to prove that complainant promised an open shaft.
10.During her cross-examination, when DW-1 was shown certain screenshots of the WhatsApp chat between her husband and the GPA holder of the complainant Ex. DW-1/C1, DW-1 stated that she was not aware if such conversation took place between the parties. DW-1 gave details regarding the promise of electricity meter and water connection made by the GPA holder CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:47:50 +0530 CC No. 3737/2022 Page No. 8/21 Chhavi Jain v. Nitisha Bharti of the complainant, of the lift facility, of the shaft area. DW-1 accepted the suggestion that out of the 15 PDCs , 4 PDCs were not encashed upon the request of DW-1 . DW-1 accepted the suggestion that two fresh cheques were given in place of 4 PDC and one cheque of Rs. 62,850 was cleared but the second cheque of Rs.1,88,550/- was dishonored. Here, DW-1 volunteered to stated that second cheque was dishonored since the demands of DW-1 were not fulfilled in regard to the property in question. DW-1 denied the suggestion that the cheque Ex. CW-1/5 was given for creating parking space in terms of the agreement Mark CW-1/3, however DW-1 accepted the suggestion that the parking space promised vide agreement Mark CW-1/3 has been created and DW-1 volunteered to say that the same is being used by the residents of second and third floor and that till date DW-1 has no parking space. DW-1 admitted her signatures on the Photocopy of the agreement Mark CW-1/4 at points A to E but DW-1 volunteered to say that she signed blank papers. DW- 1 further stated that she did not know if she approached the GPA holder of the complainant seeking amendment in conditions of undertaking of Ex CW- 1/2.
11. In the Final Arguments advanced on 08.06.2023 and 22.06.2023, both parties reiterated their central contentions. It was argued on behalf of the complainant the accused be convicted since the accused has admitted issuance of the cheques to the complainant, that the accused was supposed to make payment of the balance sale consideration in 15 instalments and only three instalments remain outstanding as on date for which the accused issued the cheque Ex. CW-1/7, that the liability of the accused qua cheque Ex. CW- 1/5 is clear based on the agreement Mark CW1/3 and Mark CW-1/4 which makes it amply clear that the complainant was supposed to be paid the cheque amount of the Ex CW1/5 as contribution of the accused for the parking, that Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:47:38 +0530 CC No. 3737/2022 Page No. 9/21 Chhavi Jain v. Nitisha Bharti the defence of the accused that she is not liable to pay the cheque amount of deficiencies in the flat is not sustainable since no notice or letter regarding such deficiencies was issued by the accused to the complainant and that even the documents placed on record by the accused cannot absolve the accused of her liability towards the complainant. Ld. Counsel for the complainant placed reliance on the statements made by the accused without oath under Section 313 Cr. PC and further on the cross-examination of the accused in highlighting that the accused has not made a case for her in respect of the cheque liability involved.
12. Per contra, it was argued on behalf of the accused that there are two cheques in the present complainant and that the accused does not owe the liability for either of the cheque because the first cheque Ex. CW1/ 5 was issued so that the complainant could provide parking to the accused, but that the same parking has not been provided till date and further that the accused does not owe any liability qua the second cheque Ex. CW1/7 because the accused has no legal liablity qua the cheque amount since the complainant has failed to provide the flat in terms of the sale agreement between the parties. Ld. Counsel for the accused has also argued that the signatures of the accused were taken on some blank papers and the agreement Mark CW1/4 was prepared on the same blank papers which the accused signed. Ld Counsel for the accused further argued that the accused does not owe the cheque liability due to the illegal gym running on the ground floor of the property in question, due to facilities such as wall paper/ lift/ Terrace not been provided to the accused by the complainant due to closure of the shaft. Ld. Counsel for the accused has also highlighted that the bulk of the consideration has not already been paid by the accused to the complainant as shown in the bank account statement Ex DW1/3 . Ld. Counsel for the accused has finally argued that the Digitally signed CHHAVI by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:47:57 +0530 CC No. 3737/2022 Page No. 10/21 Chhavi Jain v. Nitisha Bharti accused is ready to make payment of the cheques if the complainant performs her part of the contract and provides all the agreed facilities to the accused. In view of the arguments, it was prayed that the accused be acquitted.
13. Submissions heard. Record perused.
14. Section 138 of the NI Act reads 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 provisions 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 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. CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:48:01 +0530 CC No. 3737/2022 Page No. 11/21 Chhavi Jain v. Nitisha Bharti
15. Thus, there are five essential ingredients which ought to be fulfilled to establish culpability for an offence u/s 138 NI Act:-
I. The cheque is drawn by a person on an account maintained by them for payment of money and the same is presented for payment within a period of three months from the date on which it is drawn or within the period of its validity; II. The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; III. The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
IV. A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
V. The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
16. Moreover, Section 139 NI Act reads as under:
139. Presumption in favour of holder.--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 for the discharge, in whole or in part, of any debt or other liability.
17. Section 139 thus raises a crucial presumption in favour of the complainant. In view of Section 139, the burden falls upon the accused to show that the cheque once admitted was not issued in discharge of any legally enforceable debt or liability. The contours of Section 139 NI Act have been established in a catena of judgments, and it is no more res integra that Section 139 NI Act casts a reverse onus upon the accused to show that the accused had no liability towards the complainant qua the cheque for which the complainant seeks to prosecute the accused, CHHAVI Digitally signed by CHHAVI BANSAL BANSAL 17:48:07 Date: 2023.07.13 +0530 CC No. 3737/2022 Page No. 12/21 Chhavi Jain v. Nitisha Bharti and that the presumption under Section 139 NI Act is essentially rebuttable in nature.
18. In Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16, the Hon'ble Supreme Court of India held as under:
"22. Because both Sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer [AIR 1958 SC 61 : 1958 Cri LJ 232] it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused." (Ibid. at p. 65, para 14.) Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists"
[ Section 3, Evidence Act] .
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'." (emphasis supplied) Digitally signed by CHHAVI CHHAVI BANSAL BANSAL Date:
2023.07.13 17:48:23 +0530 CC No. 3737/2022 Page No. 13/21 Chhavi Jain v. Nitisha Bharti
19. Furthermore, in Rangappa v. Sri Mohan, (2010) 11 SCC 441, the Hon'ble Apex Court went ahead to observe as under:
"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
20.Thus, in view of the settled position of law as discussed above, the complainant has to establish its case by satisfying the ingredients of Section 138 NI Act, while the accused can dispute the main case of the complainant or discharge its burden by rebutting the presumption codified u/s 139 NI Act.
21.In order to satisfy the central ingredient u/s 138 NI Act, i.e. the existence of legal liability, it needs to be seen whether the cheque amount is due CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:48:14 +0530 CC No. 3737/2022 Page No. 14/21 Chhavi Jain v. Nitisha Bharti on part of the accused towards the complainant. The complainant claims a total cheque amount of Rs. 2,51,400/- through two cheques from the accused. Let the case of the respective parties be analysed in regard to the two cheques placed on record.
22. As per the case of the complainant, one of the cheques in question Ex. CW-1/5 was issued in discharge of the liability of the accused towards the common parking in terms of the agreement Mark CW1/3 and the agreement Mark CW-1/4. It is the case of the complainant that the husband of the accused represented the accused in the meeting of the residents held on 15.03.2020 wherein it was decided that the complainant would surrender some part of his property for the purpose of creating additional parking space in the property in question, that all the residents would compensate the complainant commensurately on the basis of the number of flats owned by the residents in the building, that a settlement agreement Mark CW-1/3 was drawn in regard to the said meeting, and that the accused was supposed to pay Rs. 1,50,000/- to the complainant in terms of the said agreement Mark CW-1/3.
23. Further clarity in regard to the additional parking can be obtained from the agreement Mark CW-1/4 wherein inter alia two points have been clearly stated: first, on page 4 of the said agreement, that the accused would have 1/9th parking area for which the accused has given a PDC bearing no. 169888 dated 10.11.2021 for Rs. 1,50,000/- (i.e. cheque Ex CW-1/5), and second, at points 1 & 2 on page 5 of the said agreement, that the entire parking area is to be shared equitably by all parties and that no parking will be reserved for any particular party.
Digitally signed by CHHAVICHHAVI BANSAL Date: BANSAL 2023.07.13 17:48:32 +0530 CC No. 3737/2022 Page No. 15/21 Chhavi Jain v. Nitisha Bharti
24. The accused stated in her cross examination that additional parking has in fact been created in the property in question, even though the accused has not availed benefit of the same because the same is being used by other residents and because no demarcated parking has been provided to the accused. The accused has also identified the signatures of her husband on the parking settlement Mark CW-1/3, although the accused said that the husband of the accused did not sign the said document in her presence.
25. Crucially, the accused has also admitted her signatures on the said agreement Mark CW-1/4 at points A to E. However, a plea of defence that came for the first time right before the conclusion of the cross- examination of the accused was that the accused was made to sign blank papers and that the same blank papers have been misappropriated to create the agreement Mark CW-1/4.
26. No such plea regarding misuse of blank papers ever came from the side of the accused when notice u/s 251 Cr.P.C. was being framed upon the accused, in any suggestion to the complainant when the complainant was cross-examined, in the statement of the accused u/s 313 Cr.P.C., or even in the examination in chief of the accused. Misuse of blank signed papers is a serious matter, but the same was never mentioned by the accused throughout the proceedings except when her cross-examination was about to conclude. No evidence has been led by the accused to prove that she had signed blank papers and given the same to the complainant, or that the complainant misused any blank papers entrusted to the complainant by the accused.
Digitally signed by CHHAVICHHAVI BANSAL Date: BANSAL 2023.07.13 17:48:37 +0530 CC No. 3737/2022 Page No. 16/21 Chhavi Jain v. Nitisha Bharti
27. Perusal of the agreements Mark CW-1/3 and Mark CW-1/4 shows that the accused was to share the parking area with all the residents of flats situated in the property in question, and that the accused was supposed to pay Rs. 1,50,000/- to the complainant in its regard. There is no mention anywhere in the aforesaid agreements that parking for each flat owner would be separate or exclusively demarcated, and in fact it has been mentioned to the contrary that the parking would be common for all residents. It is the case of the accused that she stopped payment of the cheque Ex. CW-1/5 because she was not given separate parking. In view of the discussion above, it appears that the accused had no right to separate parking at all, and that the accused owes the cheque amount of Rs. 1,50,000/- (for which the cheque Ex. CW-1/5 was issued) to the complainant in view of the additional common parking created.
28. The present complaint has been filed for prosecution of the accused on the dishonour of two cheques. The complainant states that second cheque Ex. CW-1/7 was issued by the accused in discharge of her outstanding part payment towards the purchase of the property in question. The complainant has described the series of events that led to the accused issuing the cheque Ex. CW-1/5; that the accused first issued three cheques as described in para 3 of her complaint for a total amount of Rs. 10,00,000/-, that the accused then paid Rs. 1,00,000/- through NEFT on 04.06.2020 and issued 15 PDCs for the balance amount of Rs. 9,00,000/-, that the accused cleared 9 out of the abovementioned 15 instalments, that the accused issued two cheques for the 4 outstanding instalments: one cheque for Rs. 62,850/-, and another cheque for Rs. 1,88,550/-. (i.e. Ex. CW-1/5), that the first cheque for Rs. 62,850/-
CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:48:42 +0530 CC No. 3737/2022 Page No. 17/21 Chhavi Jain v. Nitisha Bharti cleared, but the other cheque Ex. CW-1/5 got dishonoured due to insufficient funds.
29. It is not in dispute that the accused is enjoying possession of the flat sold to her by the complainant. However, it is the defence of the accused that she does not owe the cheque amount for the cheque Ex. CW-1/7 to the complainant because the complainant was to provide certain facilities in the flat of the accused which the complainant did not provide.
30. Throughout the trial, the case of the accused has hinged upon the complainant not providing her facilities such as modular kitchen/wallpaper/installation of separate electricity and water connection meters, upon the alleged wrongful closure of the shaft, upon non-provision of the lift when the accused took possession and the solitary subsequent incident when the accused got stuck in the lift with her child. The accused claims that she does not owe the cheque amount for the cheque Ex. CW-1/7 to the complainant because the complainant has not provided the aforesaid facilities to the accused as allegedly promised. However, perusal of the sale agreement Ex. DW-1/4 shows that no such promise was made by the complainant, and the payment of the remaining sale consideration has never hinged upon the complainant providing any of the aforesaid facilities to the accused. No evidence has been led by the accused to show that the complainant was supposed to provide the aforesaid amenities and that the payment of the remaining sale consideration was contingent upon the complainant providing the said facilities to the accused.
31. Further, the accused has placed on record an undated complaint made by the accused to the SHO, PS Mehrauli EX. DW-1/1 which was CHHAVI Digitally signed by CHHAVI BANSAL BANSAL 17:48:47 +0530 Date: 2023.07.13 CC No. 3737/2022 Page No. 18/21 Chhavi Jain v. Nitisha Bharti received at the police station on 25.05.2022, and also a copy of an undated show-cause-notice-cum-reply Ex.DW-1/2 which was dispatched to the complainant on 19.03.2022. Crucially, the accused made the complaint to the SHO, PS Mehrauli only after the institution of the present case, and even the show-cause notice was issued after the cheques in question got dishonoured and after the accused received the demand notice from the complainant. No other notice except the notice Ex. DW-1/2 was ever given by the accused to the complainant. There is nothing on record to show that the accused has filed any civil case against the complainant regarding non-performance on part of the complainant qua the sale agreement Ex. DW-1/4, a fact being in surprising contradiction to the list of grievances the accused cited against the complainant regarding the absence of features such as modular kitchen/lift/wallpaper etc. which the accused claims that the complainant promised the accused, even if the same has not been mentioned anywhere in the sale agreement Ex. DW-1/4.
32. The accused is stated to be an Assistant Professor at a reputed college in Delhi and is an educated person well aware of her rights and remedies. In view of the same, there is no plausible explanation behind the absence of legal action taken by the accused against the complainant regarding the non-performance of sale agreement by the complainant and serious allegations such as misuse of blank papers signed by the accused. Such absence of legal action indicates that the defence of the accused is a concocted afterthought in reaction to the complainant claiming the cheque amount from the accused.
33.In fact, the accused has already made substantial payment of sale consideration. The grievances of the accused against provision of certain CHHAVI Digitally signed by CHHAVI BANSAL BANSAL Date: 2023.07.13 17:48:51 +0530 CC No. 3737/2022 Page No. 19/21 Chhavi Jain v. Nitisha Bharti facilities in her flat ought to have been raised at the appropriate forum. The accused is already enjoying possession of her flat. The accused has not disputed the quantum of liability or the calculation of the complainant. Thus, in view of the discussion above, it appears that the accused does owe the cheque liability for the cheque EX. CW-1/7 issued in discharge of the balance payment of the sale consideration to the complainant since she has already taken possession of the property sold by the complainant to her and has been enjoying continuous possession of the said property.
34.Coming to the merits of present case after examination of contentions and evidence of both the sides, it is not in dispute that the accused signed both the cheques in question and handed them over to the complainant, that the accused is enjoying possession of the property in question which was sold to her by the complainant, and that an additional parking area has in fact been constructed in the property in question. It is not the case of the accused that she has paid the entire sale consideration of the flat in question; rather, the accused has defended non-payment of the remaining part of the sale consideration by citing non-performance on part of the complainant. From perusal of the parking settlement agreement Mark CW-1/3 and Mark CW-1/4, it is clear that the additional space for parking was towards common parking for which the accused promised to pay additional amount of Rs. 1,50,000/-. The accused has admitted that the signatures on the agreement Mark CW- 1/4 at the relevant points are hers, but her defence that she was made to sign some blank papers which were later misappropriated does not inspire confidence given the belated stage at which such defence was taken and the absence of evidence to prove the same.
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35. In regard to the other essential ingredients of Section 138 NI Act, it can be seen from record that the cheques in question Ex. CW-1/5 and Ex. CW-1/7 was presented within three months from the date of issuance viz 10.11.2021 and 10.01.2022, and the same was dishonoured for the reason "Payment stopped by Drawer" and "Funds Insufficient" vide return memo dated 05.02.2022 Ex. CW-1/6 and Ex. CW-1/8 respectively. The Demand Notice Ex. CW-1/9 was issued on 21.02.2022, i.e. within 30 days from the receipt of information regarding dishonour of the cheque in question. Said Demand Notice is stated to have been delivered to the accused on 22.02.2022 as shown in the postal receipts and tracking reports Ex. CW-1/10 and Ex. CW- 1/11(colly), and even the accused has admitted to receving the demand notice in the notice framed upon her u/s 251 Cr.P.C. The present complaint was filed on 26.03.2022, i.e. within 30 days after the lapse of 15 days since the delivery of the demand notice to the accused.
36. In view of the aforesaid discussion, this court holds the considered view that all ingredients of Section 138 NI Act are made out against the accused, and that the accused has not been able to prove her defence to the extent of creating a reasonable and probable doubt in the story of the complainant. Thus, Accused Nitisha Bharti stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Digitally signed by CHHAVICHHAVI BANSAL BANSAL Date:
Announced in the open Court on 13.07.2023. 2023.07.13 17:48:57 +0530 (Chhavi Bansal) MM (NI Act) Digital Court-03 (South) Saket Courts: New Delhi 13.07.2023 CC No. 3737/2022 Page No. 21/21