Delhi District Court
Didar Singh vs New Capital Tour And Taxi Service on 23 September, 2024
IN THE COURT OF MS. PADMA LADOL
JUDICIAL MAGISTRATE FIRST CLASS-04,
NEW DELHI, PATIALA HOUSE COURTS, NEW DELHI
CT. CASES No. 12206/2017
DIDAR SINGH VS M/S. NEW CAPITAL TOUR AND TAXI
SERVICES
Ct. Cases No. 12206/2017
CNR No. DLND020210092017
Date of Institution 05.08.2017
Name, parentage and address of Didar Singh
complainant S/o Sh. Jagir Singh
R/o 43, First floor, Gautam Nagar,
New Delhi
Name, parentage and address of the M/s. New Capital Tour and Taxi
accused Services
Through its Proprietor,
Balbir Singh
R/o. C-63D Shri Chand Park
Matiala Village, Uttam Nagar,
New Delhi
Offence complained off 138 Negotiable Instruments Act,
1881
Plea of Accused Not Guilty
Final Order Acquitted
Date of Judgment 23.09.2024
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PADMA LANDOL
LANDOL Date:
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Argued by: Sh. S.K Manan, Ld. Counsel for the complainant
Sh. H.S Dhillon, Ld. Counsel for the accused
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JUDGMENT
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the complainant against the accused with respect to dishonour of two cheques. In a nutshell, it is alleged that complainant has known the accused since a long time ago as both are in the business of tour and travel. That accused was in dire need of money for some urgent work due to which he approached the complainant in February 2017 for a loan of Rs. 1,95,400/-. The accused promised to return the loan within 2 months time. It is further alleged that in discharge of the said liability, the accused issued two cheques, cheque bearing no. 482668 dated 26.03.2017 for Rs.
95,400/- [cheque in dispute, Ex. CW-1/A] and another cheque bearing no. 482769 dated 26.04.2017 for Rs.
1,00,000/- [cheque in dispute, Ex. CW-1/B] to the complainant. Upon the assurance of accused, complainant Digitally signed by PADMA Ct Cases 12206/2017 PADMA LANDOL LANDOL Didar Singh Vs. New Capital Tour & Taxi Service Date:
2024.09.23 Page 2 of 2116:43:21 +0530 presented both the cheques in dispute, but same were dishonoured vide memos dated 21.06.2017 [Ex. CW-1/C & Ex. CW-1/D] with reasons 'Funds Insufficient' and 'Payment stopped by drawer' respectively. The complainant sent two separate legal demand notices both dated 20.07.2017 [Ex. CW-1/E & Ex. CW-1/F] which was delivered upon the accused, however, he did not make payment within the statutory period of legal demand notice, hence, this complaint.
2. Vide order dated 04.05.2018, after being satisfied that prima facie ingredients of Section 138 NI Act are made out cognizance was taken and summons were directed to be issued against the accused. Accused entered into appearance on 17.08.2018. Upon request of both the parties, matter was referred to Mediation however, no settlement was arrived. Thereafter, notice under Section 251 Cr.PC was framed and served upon the accused on 03.11.2018 to which he pleaded not guilty and claimed trial.
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3. The matter was then listed for Complainant Evidence.
Complainant examined a total of six witnesses as follows:
i) Complainant/Didar Singh: CW-1
ii) Jugjeet Singh: CW-2
iii) Ranjit Singh: CW-3
iv) Dinesh Sharma: CW-4
v) Mohit Yadav: CW-5 and
vi) Naresh Chauhan: CW-6
4. CW-1/Complainant tendered his affidavit in post summoning evidence and relied upon following documents:
i) Original cheque bearing no. 482668 dated 26.03.2017 for Rs. 95,400/-: Ex. CW-1/A.
ii) Original cheque bearing no. 482769 dated 26.04.2017 for Rs. 1,00,000/-: Ex. CW-1/B.
iii) Bank return memos both dated 21.06.2017: Ex. CW-
1/C and Ex. CW-1/D.
iv) Two legal demand notices both dated 20.07.2017: Ex.
CW-1/E and Ex. CW-1/F.
v) Legal demand notice dated 27.06.2017: Ex. CW-1/E-1.
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PADMA LANDOL
LANDOL Date:
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vi) Legal demand notice dated 27.06.2017: Ex. CW-1/F-1.
vii) Postal receipts dated 28.06.2017: Ex. CW-1/G and Ex.
CW-1/H.
viii) Carbon copy of taxi bills: Ex. CW-1/K.
5. After the conclusion of complainant evidence, accused was examined under Section 313 Cr.PC read with Section 281 Cr.PC wherein all the incriminating evidence were put to him. Accused opted to lead DE. Accused examined and cross-examined himself as DW-1 (as solitary witness).
Accused has relied on:
i) Notice u/s. 70(1) of Delhi Cooperative Societies Act 2003 dated 04.07.2017: Ex. CW-1/D1.
ii) Receipt of amount of Rs. 25,000/- paid by accused on 24.05.2017 as shown at Ex. CW-1/L (OSR).
ii) Receipt dated 05.02.2016 bearing signature of complainant: Ex. DW-1/1 (OSR).
Thereafter, DE was closed.
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6. Final arguments have been heard at length. Complete record including the written submissions and judgments filed by Ld. Counsel for complainant perused carefully.
7. The Court shall now deal with the defence taken by the accused and contentions of both the parties.
DEFENCE OF ACCUSED:
8. While framing of notice u/s. 251 Cr.PC, accused has stated in his defence that the present complaint is false and frivolous and there is no legal debt or liability towards the complainant. He has further stated that they had given blank signed cheques to the complainant as he was running a committee. It was also stated that the complainant also stood as a surety for him in a loan taken by him from Delhi Cooperative Taxi Union Society. That later a dispute arose between him and the said Society and notice was also issued to the complainant by the Society for payment of loan amount and thereafter, in connivance with the said Society, the complainant started pressuring him to pay the said loan and he filled up the cheques in dispute and presented the same. Accused further reiterated that there is Digitally signed by PADMA PADMA LANDOL LANDOL Date:
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no legal liability against him and the cheques were presented by the complainant without his consent. In his statement u/s. 313 Cr.PC, accused has reiterated the same defence. In addition, he has stated that he did not take any loan from the complainant. He has further stated that after the completion of two committees, he had asked the complainant to return his cheques, however he failed to do so. Hence, he issued stop payment instructions to his bank.
9. In the final arguments, complainant has asserted its case for conviction against the accused essentially on the ground of having proved the cause of action against him, beyond all reasonable doubt. This is premised on the substantive proof of presentation of the cheques in dispute admittedly issued by the accused with his signature, its return as dishonoured from the payee's bank upon presentation for encashment and non-payment by the accused of the legally enforceable debts within the statutorily prescribed period, despite service of legal demand notice. It is submitted by the Ld. Counsel for the complainant:
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i) That the accused has failed to reply to the legal demand notice despite service.
ii) That the accused has taken a defence that he had invested in two chit fund committees of Rs. 1,00,000/-
each run by complainant, however, if that is the case, the amount of the cheques in dispute should have been Rs.
1,00,000/- each and not Rs. 1,00,000/- and Rs. 95,400/-.
iii) That accused failed to examine any of the members of the chit fund committee as a witness in support of his defence.
10. Per contra, Ld. Counsel for the accused has prayed for dismissal of the complaint and acquittal of the accused persons on several counts:
i) The complainant has given a contradictory statement during his evidence that the cheques in dispute were given against the taxi services provided by him to accused.
ii) Complainant has categorically stated in his cross-
examination that he has not given any friendly loan to accused.
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PADMA LANDOL
LANDOL Date:
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iii) There is nothing on record filed by complainant to show that he had paid a sum of Rs. 65,000/- to Delhi Cooperative Taxi Union Society on behalf of accused.
iv) Complainant has also not furnished any RC/document to show his ownership of three taxis given to accused on rental basis.
v) That there is a contradiction in the depositions of the complainant and CW-4. On one hand, Complainant/CW-1 has deposed that there was no written settlement between the parties herein however, CW-4 has deposed that there was a written settlement between the complainant and accused and he had signed the same along with complainant, accused, CW-2 and CW-3 and one Mukesh Kumar.
vi) That the bills at Ex. CW-1/K neither bear any signature of accused nor ever received by him.
vii) That complainant has signed on the receipt of amount of Rs. 25,000/- paid by accused on 24.05.2017 as shown in Ex. CW-1/L (OSR).
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PADMA LANDOL
LANDOL Date:
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11. It is now pertinent to examine the factual matrix of the case in the light of the ingredients of the provision as produced herein:
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 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;
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(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 of other liability" means a legally enforceable debt or other liability.
The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are:
i) Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
(ii) Dishonor of cheque in dispute which must have been drawn on an account maintained by the accused;
(iii) Service of legal demand notice seeking payment of cheque amount within 30 days from the date of receipt of return memo;
(iv) Non-payment of cheque amount within fifteen days from the date of service of notice; and
(v) Filing of complaint within one month from the date on which cause of action arises.
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12. Now, coming to the facts of the case in hand in the light of above mentioned legal principles. In the instant case, the issuance of the cheques in dispute [Ex. CW-1/A and Ex. CW-1/B] by the accused, their presentation in the bank for encashment and subsequent dishonour due to the reason "funds insufficient and payment stopped by drawer", is not disputed and is a matter of record, as proved by the return memo [Ex. CW-1/C and Ex. CW- 1/D]. It is also admitted that the cheques in dispute belongs to the accused and even the signatures on the same is admittedly of the accused. Once these facts are established, a presumption of the cheque having been issued in discharge of a legally existing liability and drawn for good consideration arises by virtue of Section 118 (a) of the Negotiable Instruments Act. Once Section 139 of the NI Act comes into picture, the Court presumes that the cheque was issued in discharge, in whole or in part, of any debt or liability. At this stage, with the help of presumption under Section 139 of the Negotiable Instruments Act, the case of the complainant stands proved.
13. Since the presumption under Section 139 read with Section 118(a) of the NI Act is in favour of the complainant, it is now for the accused to rebut the same either by discrediting the veracity of material relied upon by the complainant or by leading positive evidence to probabilise his defence on the touchstone of preponderance of probabilities as provided by the three Judge bench of the Hon'ble Supreme Court in Rangappa Vs Sri Mohan (2010) 11 SCC 441 and also in Rohitbhai Jivanlal Patel v. State of Gujarat & Anr. (2019) 18 SCC 106.
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14. It is trite law that for rebuttal of the said presumption under Section 139 read with Section 118(a) of NI Act, accused need not even step into the witness box as he can rebut the same by placing reliance on the material brought on record by the complainant or even by raising presumptions of fact and law on the basis of material available on record. The accused has to make out a fairly plausible defence which is acceptable to the Court. Therefore, the standard of proof required from the accused to prove his defence is "preponderance of probabilities" and not beyond reasonable doubts. However, at the same time, it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the burden back to the complainant. The statutory presumption u/s. 118(a) NI Act reads 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 The statutory presumption u/s. 139 NI Act reads as under:
39. Presumption in favour of holder. --It shall be presumed, unless the contrary is proved, that the Digitally signed by PADMA PADMA LANDOL Ct Cases 12206/2017 LANDOL Date:
Didar Singh Vs. New Capital Tour & Taxi Service 2024.09.23 16:45:05 Page 13 of 21 +0530 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.
15. This Court shall now proceed to deal with the various defences taken by the accused and examine whether the accused has been able to rebut the presumption arising in favour of the complainant:
I. Contradiction in the nature of liability:
i) The first and foremost defence taken by the accused is that as per the present complaint, the nature of liability alleged against the accused is that of a friendly loan of Rs. 1,95,400/-. However, complainant has categorically deposed before the court that he had not given any friendly loan to the accused, rather the cheques in dispute were issued against the taxi services provided by complainant to the accused. This Court is in complete agreement with the objection raised by the accused. On the first date of cross-examination of CW-1/complainant on 22.03.2021, the first answer given by him is that, "the amount mentioned in the cheques was against the tourist service of taxis. We both were doing the business of tour and travels and he took the taxi from me from time to time and this amount was due of the taxis from me which the accused has not made the payment to me." Further, on the next date of cross-examination on 28.05.2022, Ld. Counsel for complainant put a distinct question to CW-1/complainant, "Have the accused ever took the friendly loan of Rs. 1,95,400/-?" To this, CW-1/complainant categorically Digitally signed by PADMA PADMA LANDOL Ct Cases 12206/2017 LANDOL Date:
Didar Singh Vs. New Capital Tour & Taxi Service 2024.09.23 16:45:11 Page 14 of 21 +0530 answered as, "No". CW-2, CW-3 and CW-4 have also unambiguously deposed that complainant did not give any friendly loan to the accused. After going through the cross- examinations of CW-1 as well as the Complainant Witnesses, it is concluded that complainant never advanced any friendly loan to the accused to the tune of Rs. 1,95,400/- at any point of time. Despite these categorical admissions, complainant has not, at any stage made an attempt to explain the stark contradiction in the nature of liability alleged against the accused. This goes to the root of the complainant's case and the case is liable to be torpedoed only on this count. However, this Court will make an effort to go through the remaining depositions of the complainant and his witnesses and see if any case, at all is made out against the accused.
The very basis of the case as per the complaint, evidence by way of affidavit as well as the legal demand notice in question is a friendly loan taken by accused. However, with the progression of case, specially with the inception of trial, the nature of liability completely changed and now it was a business transaction of taxi services between the parties. Not only that, complainant has also deposed that he had paid Rs. 65,000/- in cash to Delhi State Taxi Cooperative Thrift Credit and Service Society Ltd. (hereinafter referred to as 'Society') in the capacity of surety towards a loan taken by accused. It is further deposed by him as well as CW-2, CW-3 and CW-4 that there was a settlement between the parties in February 2017 wherein the cheques in dispute were issued by accused against the bills of taxis and payment done by complainant to Society on behalf of Digitally signed by PADMA Ct Cases 12206/2017 PADMA LANDOL LANDOL Date:
Didar Singh Vs. New Capital Tour & Taxi Service 2024.09.23 16:45:18 Page 15 of 21 +0530 accused. CW-1, CW-2 and CW-3 have deposed that it was an oral compromise, however, CW-4 has deposed that the compromise was in writing and he signed the same along with complainant, accused, CW-2, CW-3 and one Mukesh Kumar. No written compromise deed, if any has come on record. There is a contradiction in the depositions of CWs with respect to nature of compromise, whether the same was oral or in writing. This casts a strong shadow of doubt on the factum of compromise itself. Complainant has filed a carbon copy of some hand written bills [Ex. CW-1/K] allegedly issued to accused towards taxi services. Firstly, the originals of the said bills were never produced before the Court. Ld. Counsel for accused has objected to the bills stating that same neither bear any receiving/signature of accused nor were received by accused at any point of time. No reason has come for non-production of the original bills. Hence, the carbon copies cannot be read in evidence. Even otherwise, the total of all the amount mentioned in the bills comes out to be Rs. 1,37,025/- which is much lesser than the cheques amount in dispute. Further, with respect to payment to Society, CW-2, CW-3 and CW-4 have deposed that they are not aware as to how much payment was given by complainant to the Society on behalf of accused. However, complainant has alleged that he had given Rs. 65,000/- in cash, but no receipt to that effect has been furnished by him. Arguendo, even if it is assumed that Rs. 65,000/- was paid by complainant, then the total liability would be Rs. 2,02,025/- (Rs. 1,37,025 + Rs. 65,000), however, the cheques amount in dispute is Rs. 1,95,400/-. As already seen above, the carbon copies of bills cannot be read in evidence in absence of its Digitally signed by PADMA PADMA LANDOL LANDOL Date:
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originals and no proof, whatsoever has been furnished to establish the payment of Rs. 65,000/- paid to the Society. Furthermore, none of the Complainant Witness has been able to tell the settlement amount arrived between the parties. Moreover, there is contradiction as to the oral/written nature of compromise. In view of these facts, complainant has miserably failed to prove that there was a settlement between the parties in February 2017 wherein accused issued the cheques in dispute. In other words, accused has successfully challenged the case of complainant on the nature of liability and the contradictory stand taken by complainant in this regard.
II. Cheque in dispute was issued as security against chit fund committee:
Accused has taken a defence that both the cheques in dispute were given by him to complainant as a security at the time of investment in the chit fund committee run by complainant. In this regard, he has furnished two pages from his diary/notebook showing some calculations [Ex. DW-1/1 and Ex. CW-1/L (OSR)] and he has claimed that complainant has signed on the receipt of amount of Rs. 25,000/- paid by accused on 24.05.2017. The said pages/alleged receipts have been denied by complainant. Perusal of the said pages nowhere bear mention about any chit fund committee or complete details regarding payments, if any. It appears more like a rough and random calculation one does on a piece of paper. These documents are vague, bereft of any relevant details and also nowhere mentions any security cheque given by accused, hence, not sufficient to establish the defence of chit fund Digitally signed by PADMA PADMA LANDOL LANDOL Date:
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committee run by complainant, money invested therein and cheques in dispute given as security in lieu of the same.
III. Non-receipt of legal demand notice: It is contended by the accused that he did not receive the legal demand notice from complainant. Even though the accused has denied receiving the notice, he has never disputed the address at which legal demand notices [Ex. CW-1/E and Ex. CW-1/F] were sent. In fact, the accused has mentioned the same address in his bail bonds on which the legal demand notices were sent to him. Hence, the legal demand notice is deemed to be delivered upon accused in terms of Section 27 of General Clauses Act, 1897 read with Section 114 of Indian Evidence Act, 1872. Reliance in this regard is also placed on the judgment of Hon'ble Supreme Court in C.C Alavi Haji v. Palapetty Muhammed [(2007) 6 SCC 555].
16. Upon perusal of evidence of accused (examined as DW-1), it is noted that he has admitted that he used to take the taxis from complainant on rent for Rs. 500/- on daily basis. He has further admitted that complainant had stood as a guarantor for him in his loan taken from the Society. However, as already discussed above, firstly, complainant has completely changed the nature of liability/given contradictory statement as to the nature of liability during the course of trial. The complaint is based on friendly loan taken by accused, however, no evidence, whatsoever has been led to prove the said fact, in fact the complainant as well as all his witnesses have deposed that no friendly loan was advanced by complainant to accused. Further, no explanation, of any kind, has Digitally signed by PADMA PADMA LANDOL Ct Cases 12206/2017 LANDOL Date:
2024.09.23 Didar Singh Vs. New Capital Tour & Taxi Service 16:46:13 +0530 Page 18 of 21 come on record as to why the accused was in need of a friendly loan. In fact, evidences were given and witnesses were examined to prove a settlement/compromise between the parties with respect to payment on account of taxi bills and payment made by complainant to the Society in the capacity of surety. This goes to the root of the complainant's case. Secondly, even otherwise the complainant has miserably failed to prove the amount due against the accused on account of bills/invoices raised against the taxi services as well as payment of Rs. 65,000/- paid to the Society. All of the complainant witnesses (CW-2, CW-3 and CW-4) have deposed their ignorance about the settlement amount agreed between the parties qua bills of taxis and the payment to Society. Further witnesses, CW-5 and CW-6 were formal witnesses who only brought the bank details of accused along with letter issued by accused instructing his banker to stop the payment of cheques in dispute. The factum of issuance of 'stop payment' instruction is otherwise not disputed by accused. Hence, the inevitable conclusion is that the complainant has miserably failed to prove his case beyond reasonable doubt.
17. On the aspects of preponderance of probabilities, as already discussed above, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel (supra) and in various other rulings have Digitally signed by PADMA PADMA LANDOL Ct Cases 12206/2017 LANDOL Date:
Didar Singh Vs. New Capital Tour & Taxi Service 2024.09.23 16:46:21 Page 19 of 21 +0530 time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. In the case at hand, keeping all the aspects in view, the defence put forth by the accused and rebuttal of presumption raised against her is much more than a mere denial when tested on the touchstone of preponderance of probability. In fact, it casts a strong shadow of doubt on the case of the complainant.
18. Further, the Hon'ble Supreme Court of India in Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16 has held-
"22.....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"
19. In any case, Negotiable Instruments Act envisages application of the penal provisions which need to be interpreted strictly, therefore even if two views are possible in a matter, the Court should lean in favour of the view which is beneficial to the accused and the same position has been upheld in a catena of Digitally signed by PADMA PADMA LANDOL LANDOL Date:
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judgments. Therefore, even on this ground, the benefit of doubt is to be granted to the accused.
20. In view of the above discussion, this court is of the considered view that the accused has successfully rebutted the presumptions u/s. 118(a) and 139 NI Act by raising a probable defence and the onus shifted back to the complainant but the complainant has failed to prove its case beyond reasonable doubt. Therefore the accused Balbir Singh, Proprietor of M/s. New Capital Tour & Taxi Service stands acquitted of the offence punishable under section 138 of Negotiable Instruments Act. Announced in Open Court today on 23.09.2024.
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2024.09.23 16:42:55 +0530 Announced in the Open Court (PADMA LADOL) on this 23rd September, 2024 JMFC-04: New Delhi: PHC Certified that this judgment contains 21 pages and each page Digitally signed bears my signatures. PADMA by PADMA LANDOL LANDOL Date:
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