Delhi District Court
Lalit Lamba vs . M/S Rms Infra Projects Pvt. Ltd. & Ors. ... on 15 October, 2019
IN THE COURT OF MS. UDITA JAIN
METROPOLITAN MAGISTRATE08 (NI Act)
DWARKA COURTS, NEW DELHI
Case No. : 49902942016
Sh. Lalit Lamba
S/o Sh. Prem Singh
R/o I10, TBlock, Sanjay Park
Near Prem Nagar,
Baljeet Nagar, Patel Nagar,
New Delhi 110008
..........................Complainant
Versus
1. M/s RMS Infra Projects Pvt. Ltd.
Through its Director, Mrs. Ragini Kumari W/o Murari Kumar Singh
Having its Registered Office at
Office No. 452, Sector26, Dwarka,
New Delhi.
Also At:
FC18, Teen Murti Compound, New Delhi.
2. Mr. Murari Kumar Singh
Director of M/s RMS Infra Projects Pvt. Ltd.
Office No. 452, Sector26, Dwarka,
New Delhi.
Also At:
FC18, Teen Murti Compound, New Delhi.
Also At:
Flat No. B2081, Engineers Apartments,
Plot No. 11, Sector 18 A, Dwarka, New Delhi.
CC.No. 49902942016
Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 1/19
3. Mrs. Ragini Kumari
W/o Murari Kumar Singh,
Director of M/s RMS Infra Projects Pvt. Ltd.
Office No. 452, Sector26, Dwarka,
New Delhi.
Also At:
FC18, Teen Murti Compound, New Delhi.
Also At:
Flat No. B2081, Engineers Apartments,
Plot No. 11, Sector 18 A, Dwarka, New Delhi.
.................Accused
Date of Institution : 12.09.2014
Plea of the accused : Pleaded Not Guilty
Date of Reserving Judgment : 12.10.2019
Date of Judgment : 15.10.2019
Sentence or final Order : Conviction
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complaint case U/s 138 of the Negotiable Instruments Act, 1881 (hereinafter said as the NI Act) filed by the complainant Lalit Lamba against the accused no.
1.M/s RMS Infra Projects Pvt. Ltd., accused no. 2 Mr. Murari Kumar Singh and accused no. 3 Mrs. Ragini Kumari.
CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 2/19 COMPLAINANT'S VERSION
2. The factual matrix, as per the complaint, necessary for the disposal of the present case is that the complainant and accused are in the business of construction. It is averred that accused got the contract of club building "SKYCOURT" project at Sector86, Gurgaon from the DLF. The complainant and accused company had a contract wherein complainant had to carry out the structure & rough finishing works of the project "THE SKYCOURT" but afterwards some differences occurred between the complainant and the accused as a result of which the accused withdrew the work of the project "THE SKYCOURT" from the complainant. It is alleged that the complainant had started the work at accused's project "THE SKYCOURT" and it was withdrawn at a latter stage when most of the work was completed. It is further alleged that the complainant had not been made the payment for the work that had been done by him towards the project "THE SKYCOURT" which was given to him by the accused. Thereafter, in order to discharge the debt/liability towards the work done by the complainant at the above said project, the accused being directors of the company, incharge and responsible for the day to day affairs and further having control over the day to day business of the accused company issued three cheques bearing no. 002334, 02335 and 02336 dated 09.04.2014, 10.05.2014 and 20.06.2014 amounting to Rs. 2,00,000/, Rs. 2,50,000/ and Rs. 3,50,000/ respectively drawn on Axis Bank, Vikas Puri, New Delhi, in favour of the complainant. It is further alleged that accused company while issuing the aforesaid cheques assured CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 3/19 and promised the complainant that the abovesaid cheques would be duly honoured upon its presentation. When the complainant presented the said cheques through its Banker, HDFC Bank Ltd., Thana Road, Najafgarh, New Delhi, they were returned dishonoured vide returning memo dated 27.06.2014 for cheque nos. 002334, 002335 and 002336 i.e. the cheques in question with the remarks "Account closed".
3. It is urged that the accused no. 2 and 3 being the Directors of the company (accused no.1), are in charge and responsible for the day to day affairs and are further having control over the day to day business of the company (accused no.1) and are wholly responsible for any act done by the company (accused no. 1). It is further averred that the accused company never harboured any intention to pay to the complainant and have dishonestly and intentionally withheld the dues in order to achieve their otherwise malafide and deceitful designs. It is alleged that complainant contacted the accused and informed about the dishonour of the cheques requesting the accused to make the payment which the accused intentionally and deliberately ignored. When the intentions of the accused to not pay the complainant became clear, the complainant, accordingly sent a legal notice dated 25.07.2014 through registered post and speed post at the aforementioned address of the accused demanding payment of the dishonoured cheques within fifteen days of the receipt of the notice. It is further averred that the said notice was sufficiently stamped, registered AD and sent at the last known correct address of the accused and therefore, the same is deemed to have been served upon the CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 4/19 accused. It is alleged that despite service of the legal notice as aforesaid, the accused have not made the payment of the chequesinquestion to the complainant till date and accordingly the present case has been filed by the complainant for prosecution of the accused no. 1, M/s RMS Infra Projects Pvt. Ltd., accused no. 2 Mr. Murari Kumar Singh and accused no. 3 Mrs. Ragini Kumari for the offence under section 138 of the NI Act.
4. After complaint was filed, the complainant examined himself in presummoning evidence and after hearing the Ld. Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused by the Court vide order dated 24.09.2014. On appearance of the accused a separate notice U/s 251 of the Criminal Procedure Code (herein after said "the Code") dated 02.12.2016 was given to the accused to which he pleaded not guilty and claimed trial. Thereafter, an opportunity was granted to the accused by the court for cross examination of the complainant's witnesses vide order dated 02.12.2016.
COMPLAINANT'S EVIDENCE
5. The complainant Lalit Lamba got himself examined as CW1 & tendered his evidence by way of affidavit Ex. CW1/A reiterating the contents of the complainant. The complainant also relied upon the documents are as follows :
CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 5/19
a) Cheque in question i.e Ex CW1/1 to Ex.CW1/3.
b) Cheque returning memo i.e Ex. CW1/4 to Ex.CW1/6.
c) Legal notice is Ex. CW1/7.
d) Postal receipts are Ex.CW1/8 (colly six receipts) and Ex.CW1/9 (colly six receipts).
e) Form 32 along with signatory details is Ex. CW1/10 (04 pages).
6. CW1 was cross examined by the Ld. Counsel for the accused. No other witness was examined by the complainant and the matter was listed for recording statement of the accused.
STATEMENT OF ACCUSED U/S 313 OF THE CODE
7. The statement of all the accused was recorded U/s 313 of the Code in which all the incriminating evidence along with exhibited documents were put to them. In the same, the accused denied owing any liability toward the complainant and giving the cheques in question in discharge of any such liability. All the accused, similarly claimed that the complainant attacked their office on 18.02.2014 and he took away certain documents forcibly from there. It is alleged that a police complainant was also lodged to report the same. He further denied receiving the legal notice and having any liability towards the complainant.
CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 6/19 DEFENCE EVIDENCE
8. In defence evidence the accused examined himself as DW1, one Rajesh Jindal, associate director, AECOM India Pvt. Ltd. as DW2, Mr. Prakash Chand, father of the complainant as DW3 and one Manish kumar, AR of DLF Ltd as DW4. The said witnesses were then cross examined by Ld. Counsel for the complainant.
No other defence witness was examined by the accused and after recording statement of the accused in this regard, D.E was closed on 30.08.2019 and the matter was fixed for final arguments.
FINAL ARGUMENTS
9. Final arguments were addressed on behalf of both the parties. During arguments, Ld counsel for complainant alleged that the accused has been unsuccessful in rebutting the presumption against him and therefore, is liable to be convicted of the offence under Section 138 NI Act. It is alleged that the versions of the accused throughout the case and the evidence led by him had been rather contradicting and therefore, the accused are not entitled to a judgment in their favour. It was further submitted that after appearing in court the accused had even settled the matter before the mediation cell for a sum of Rs. 8,00,000/ i.e the cheque amount out of which he has paid a sum of Rs. 2,00,000/ lakhs to the complainant. On the other hand, Ld. Counsel for the accused has argued that from the cross examination of the complainant and his witnesses as CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 7/19 well as by way of his own evidence, the accused has been successful in rebutting the presumption against him. It is alleged that there is no question of the accused engaging the complainant to do the construction of the "SKYCOURT" project, since the accused had no authority to do so. It is averred that the construction contract of the "SKYCOURT" project was handed over by DLF Ltd. to the accused which they had no authority to delegate it further. It is argued that the complainant was an employee of AECOM which was a project management company employed by DLF to look after the work of the "SKYCOURT" project. The complainant used to take unauthorised commission from the accused by threatening the latter with cancellation of contract, if the accused failed to pay the commission to the complainant. It is alleged that recovery proceedings have also been initiated to recover the same. Even the agreement Ex. CW1/11 on which the complainant placed reliance has been denied contending that none of the accused or their authorised representative have executed the same. It is further claimed that the cheques in question must have been taken by the complainant from the office of the accused when he attacked it and took several documents forcibly. It is further averred that in a criminal case the complainant has to prove his case beyond all reasonable doubts and since the complainant has failed to discharge the burden of proof upon him beyond all reasonable doubts, the accused is entitled to be acquitted.
I have heard Ld. Counsels for both the parties and have perused the entire record of the case file. Before proceeding further it is imperative for me to go through the relevant provisions of law. CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 8/19 Section 138 of the Negotiable Instruments Act provides that:
"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 while 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 three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 9/19
(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.
APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF SECTION 138 OF THE NI ACT AND THE DEFENCE RAISED BY THE ACCUSED
10. It is not disputed by the accused that the cheques in question Ex.CW1/1 to Ex.CW1/3 are drawn on the account maintained by him. Further, the accused has also not disputed his signatures on the cheques in question. The presentation, dishonour of the cheque in question and the cheque returning memos Ex. CW1/4 to Ex. CW1/6 have also not been challenged by the accused. Therefore, in light of the evidence on record it CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 10/19 stands duly proved that the cheques in question are drawn on the account maintained by the accused and the same also bears his signatures. Further, it also stands proved that the cheques in question Ex.CW1/1 to Ex.CW1/3 got dishonoured vide cheque returning memos Ex.CW1/4 to Ex.CW1/6 with the reason "Account Closed".
11. Now coming to the issue whether the accused has been served with the legal demand notice Ex.CW1/7 by the complainant. The accused has denied the receipt of the legal demand notice throughout the trial.
12. It is pertinent to mention here that throughout the trial, the accused has never challenged the addresses mentioned in the legal demand notice Ex. CW1/7 and Regd. AD receipts. Further, the summons were served upon the accused at one of the addresses mentioned in the complaint and legal demand notice. Therefore, there remains no doubt that the legal demand notice Ex. CW1/7 has been sent by the complainant at the correct address of the accused through speed post. It is trite to say that when there is service of notice by post on the correct address of the accused which evidently has taken place in the present case the same would amount to proper service. Otherwise, a trickster cheque drawer would deny receiving the legal demand notice by adopting different strategies and escape from legal consequences of Section 138 of the NI Act. It was for the accused to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the notice and the postal CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 11/19 receipt is incorrect or that the letter was never tendered to him. Therefore, there is always a presumption that the legal demand notice has been duly served upon the accused unless some concrete evidence in rebuttal is adduced by the accused to establish that the legal demand notice has not been served upon him which is totally absenting in the present case. Furthermore, in the present case, evidently the summons have been served upon the accused along with the copy of the complaint at address of the accused as mentioned in the complaint and the legal demand notice and the accused has appeared in the court in pursuance of the process issued by the court. Even otherwise, in C.C. Alavi Haji vs Palapetty Muhammed & Anr (2007) 6 SCC 555, the Hon'ble Apex Court has held as under:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 12/19 from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation..."
13. Therefore, in light of the facts that the one of the address mentioned on the legal demand notice is the same address on which the summons were served upon the accused and the addresses mentioned on the same has not been denied by the accused throughout the trial, it is deemed that the legal demand notice was served upon the accused.
14. Now coming to the issue whether the accused has been able to rebut the presumption raised against him by application of Section 139 N I Act. As per Section 139 of N.I. Act, it is 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. In this regard, it is a trite law that "once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of Negotiable Instruments Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 N I Act is a mandatory presumption and not a general presumption, CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 13/19 but the accused is entitled to rebut the said presumption. What is required to be established by the accused is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court" (Rangappa vs. S. Mohan, (2010) 11 SCC 441). Therefore, it is clear that mere blank assertions on behalf of the accused are not sufficient to rebut the presumption mentioned in Section 139 N I Act. A probable defence must be raised by him.
15. In the case at hand, the complainant alleges that he and the accused entered into an agreement vide which the complainant had to built the basic structure of the "SKYCOURT" project, which was conferred by the DLF to the accused. It is averred that the complainant could not complete the entire project but as most of it was done by the complainant, the accused gave the cheques in question to the complainant to make payments for the same.
On the other hand, the accused at the time of framing of notice and also in his statement u/s 313 of the Code has specifically denied owing the alleged sum to the complainant. He averred that he had no liability towards the complainant as alleged by him and contended that the cheques in question along with several other documents were taken by the complainant forcibly from their office. In his evidence, the accused deposed that the complainant was a site engineer at the "SKYCOURT" CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 14/19 project, where he started seeking commission from the accused threatening the withdrawal of the contract. An agreement DW1/1 is also said to have been executed for the purpose. The accused alleged that when he started receiving notices from DLF for noncompletion of contract, he contacted the complainant after which the tripartite agreement Ex. CW1/12/D1 was executed between the parties to the present case and one Sheetla Construction Company, whereby it was agreed that the remaining contract will be completed by the Sheetla Construction Company. It was also agreed that if after completion of work, the Sheetla Construction Company fails to pay commission to the complainant, the accused would pay the same. It is alleged that thereafter the Sheetla Construction Company could not complete the work and consequently the contract was cancelled by DLF. After about 34 months the complainant along with his father and 34 other persons, allegedly, entered into the office of the accused and took certain documents against which a police complaint was also lodged by the accused. During arguments, it was alleged by ld counsel for accused that the cheques in question were also taken by the complainant at that time. Throughout the trial of the case, the accused denied his liability towards the complainant with respect to the cheques in question.
16. U/s 139 N I Act, it is presumed that the cheque was issued in favour of the complainant in discharge of any debt or liability. Further, Section 118(a) N I Act presumes existence of consideration against which the cheque is issued. Both these presumptions are rebuttable CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 15/19 presumptions of law and as discussed above, the burden of rebutting which is upon the accused.
Further as far as the extent of burden of proof upon the accused to rebut the presumption is concerned, it is settled that the accused may not even take the stand as a witness to rebut the said presumption and may rely upon the evidence of the complainant to rebut the same. The burden of proof upon the accused to rebut the presumption is only by preponderance of probabilities. Nevertheless, the accused has to raise a probable defence by creating doubts in the story of the complainant. This he can do even from the crossexamination of the complainant.
17. In the case at hand, it was for the accused to prove by preponderance of probabilities that he had no liability towards the complainant as alleged by the latter and that the cheques in question were not issued for discharge of any such liability. It was for the accused to raise a probable defence in their favour and to rebut the presumption against them. A careful perusal of the court record shows that the accused denied that they had ever entered into a contract with the complainant for construction at the "SKYCOURT" project. They further denied that the cheques in question were issued by them in favour of the complainant to make payments for the work done by the latter. They, instead alleged that the complainant used to take unwarranted commission from them and the cheques in question were forcibly taken by the complainant from their office. On going through the court file, it has come to light that, while CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 16/19 taking this defence, the accused produced a document Ex. CW1/12/D1, materially contradicting their stand. A careful perusal of the said tripartite agreement shows that it authorises one Sheetla Construction Company to complete the construction work of the "SKYCOURT" project citing the inability of the complainant to complete the said work. While on the one hand, the accused sought to prove that they had no authority to delegate the contract of construction at the "SKYCOURT" project, on the other hand, they themselves rely upon the above said tripartite agreement which clearly authorises one Sheetla Construction Company to complete the construction work of the said project. This clearly weakens the defence of the accused in the present case. By relying upon the said agreement ld counsel for accused pointed at the last three lines of the agreement alleging that it shows that the accused were to pay commission to the complainant, unauthorisedly sought by him, in case the Sheetla Construction Company completes the project and fails to make payment to the complainant. Any document produced by a party in court has to be read as a whole and even a bare reading of the above mentioned agreement does not lead to the conclusion pointed by the accused.
18. The accused have also sought to impeach the credibility of document Ex. CW1/11 produced by the complainant contending that the same is not signed by any of the accused persons. The said document is apparently a settlement agreement vide which the cheques in question were given by the accused to the complainant. The complainant in his crossexamination avers that the said document is signed by one Hemant CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 17/19 on behalf of the accused. He, however admitted that he has not placed on record any authority letter authorising the said Hemant to execute the agreement on behalf of the accused but alleged that he had seen the said letter. The accused in his crossexamination admitted that one Hemant is employed at his company. Having said that he could have easily produced the said Hemant as a witness in support of his case and could have proved that the agreement Ex. CW1/11 was not signed by him. The accused could have even got the signatures of said Hemant examined by a handwriting expert to prove that it was not signed by the latter but the accused have failed to do any such thing. The accused have also failed to prove by way of any independent oral or documentary evidence that the complainant was receiving unauthorised commission from them and that is the only transaction that they had with the complainant, further weakening their defence. Throughout the trial and even at the stage of final arguments, the accused have contended that the cheques in question were taken forcibly by the complainant from their office along with several other document. It was also claimed that a police complaint was lodged to prove the same, but no evidence has been led to support the said fact. In view of the same, the defence of the accused seems to be merely an ipsi dixit. It cannot be construed as a probable defence.
19. In the absence of any probable defence being raised by the accused to rebut the presumption under Section 138 Negotiable instruments Act and in the light of the aforesaid provisions of law & CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 18/19 judgments, this Court deems it fit to hold that the accused have failed to rebut the presumption against him u/s 139 N I Act, even by preponderance of probabilities. The accused have failed to discharge the burden of proof upon them either by producing their own evidence or by shaking the credibility of the complainant from their crossexamination. On failure of the accused to discharge the burden upon them, it is fit to hold that the complainant has been able to prove the offence under Section 138 of the Negotiable Instruments Act against the accused beyond the shadow of reasonable doubts. Throughout the trial of the case, it is not denied that accused no.2 and 3 are not the directors of the accused no.1 company or that they were not incharge of or were not responsible for the conduct of the business of the company, accordingly, since all the ingredients of Section 138 and Section 141 of the NI Act have been satisfied, the accused no.1, M/s RMS Infra Projects Pvt. Ltd., accused no.2, Mr. Murari Kumar Singh and accused no.3, Mrs. Ragini Kumari are hereby Convicted for the offence u/s 138 of the Negotiable Instruments Act.
20. Let the convict be heard on the point of sentence.
21. Copy of judgment be given to convict, free of cost.
22. This Judgment contains 19 pages. Every Page of this Judgment has been signed by me. UDITA Digitally signed by UDITA JAIN Date: 2019.10.16 JAIN 14:52:46 +0530 Announced in the open Court (Udita Jain) on 15th October, 2019 MM (NI Act08)/Dwarka Courts New Delhi CC.No. 49902942016 Lalit Lamba Vs. M/s RMS Infra Projects Pvt. Ltd. & Ors. Page No. 19/19