Delhi District Court
Complaint Cases/1467/2015 on 11 December, 2015
IN THE COURT OF MS. RAJAT GOYAL
METROPOLITAN MAGISTRATE (SOUTH) 01,
N I ACT, SAKET COURTS : NEW DELHI
CC No.1467/15
Manoj Bisht v. Harish Chandra
1.Complaint Case No. : 1467/15
2. Name of the complainant : Manoj Bisht son of Shri G S Bisht r/o M68, Second Floor, Malviya Nagar, New Delhi.
3. Name and address of the : Harish Chandra accused son of Shri B D Bhatt r/o J1, Ganga Complex, IGNOU Complex, New Delhi.
4. Offence complained of or : Under Section 138 of the proved Negotiable Instrument Act, 1881
5. Plea of the accused : Pleaded not guilty and stated that the cheques were given as future investment for an adventure sports facility.
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6. Final Order : Acquitted
7. Date of Reserving the : 07.12.2015
Judgment
8. Date of pronouncement : 11.12.2015
Brief statement of reasons for the decision (as mandated under Section 355 (i) Cr.PC .
1. Briefly stated, case of the complainant is that the complainant is engaged in the business of supply of computer added cable wires and instruments. That the accused represented to the complainant that he was well connected with 'high ups' in various government and private organizations and that he could procure good business for the complainant. That during September, 2006 to June, 2008, the accused demanded money from the complainant at various times in this regard and gave the assurance that the CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 2 to 25 same would be returned as and when demanded by the complainant. That relying upon the said assurance of the accused, the complainant lent a total sum of Rs.21 lakhs to the accused during this period. That the accused executed an affidavit/undertaking dated 21.06.2008 acknowledging the receipt of Rs.21 lakhs from the complainant and promised to pay the same by 30.06.2010. That in discharge of his liability the accused issued three cheques of Rs.7 lakhs each dated 31.08.2010 bearing numbers 235989, 235990 and 235991 (hereinafter referred to as the "cheques in question"), all drawn on his bank account maintained with State Bank of Indore, Connaught Circus, New Delhi. That upon presentation, the said cheques in question were returned unpaid for insufficient funds vide cheque return memo dated 07.09.2010. That a legal notice dated 06.10.2010 was duly sent by the complainant to the accused in this regard, but to no avail. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "N I Act") CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 3 to 25
2. Upon service of summons, the accused entered an appearance on 30.08.2011 and was admitted to bail on 30.08.2011. Notice under Section 251 Cr.PC was served upon the accused on 03.12.2012, to which he pleaded not guilty and claimed trial. In his statement recorded under Section 263(g) Cr.PC, the accused stated that he had never borrowed Rs.21 lakhs from the complainant. That the cheques in question were given as future investment by the accused as he had agreed with the complainant to invest in the business of sports and river rafting in Uttrakhand Area. He further stated that the said business could never be materialized and the cheques in question were misused by the complainant for filing the present case. Thereafter, the matter was fixed for moving of application under Section 145(2) N I Act. Vide order dated 30.03.2013, the said application was allowed by my Ld. Predecessor. After the closing of complainant evidence, the matter was fixed for recording the statement of the accused under Section 313 Cr.PC. In the said statement recorded on 18.11.2014, the CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 4 to 25 accused stated that the cheques in question were given to the complainant for future business collaboration under the oral agreement between the complainant and the accused that the complainant will purchase land for setting of camps for adventure sports. He further stated that it was agreed between him and the complainant that he would use his network for marketing purposes and to organize events and to develop business. It was further stated by him that the complainant never fulfilled his part of the contract as no land was ever purchased by the complainant. The matter was thereafter fixed for defence evidence. The accused closed his defence evidence on 03.03.2015 and the matter was fixed for final arguments.
Evidence
3. In order to support his case, the complainant examined himself as CW1 and tendered his affidavit Ex.CW1/8 into evidence wherein the averments made in the CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 5 to 25 complaint were reiterated. The complainant also relied upon the various documents such as Ex.CW1/1 which is affidavit cumundertaking dated 21.06.2008, Ex.CW1/2 (colly) which are the cheques in question, Ex.CW1/3 (colly) which is the cheque return memo dated 07.09.2010, Ex.CW1/4 which is the legal notice dated 06.10.2010, and Ex.CW1/5 & Ex.CW1/6 which are postal receipts. Thereafter, the complainant evidence was closed.
4. The accused, on the other hand, did not examine any witness in his defence.
The law applicable
5. The law regarding the ingredients of the offence punishable under Section 138 N I Act is well settled. It was held by the Hon'ble Apex Court in the case of K Bhaskaran v. Sankaran Balan (1999 (7) SCC 510) that the offence CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 6 to 25 under Section 138 of the act can be completed only with the concatenation of a number of acts namely (i) Drawing of the cheque (ii) presentation of the cheque to the Bank (iii) returning the cheque unpaid by the drawee bank (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of the receipt of the notice.
It was also held by the Hon'ble Apex Court in the case of Jugesh Sehgal v. Shamsher Singh Gogi (2009) 14 SCC 683 that following ingredients are required to be fulfilled in a case under Section 138 N I Act:
"(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in a part, of any debt or other liability; CC No. 1467/15
Manoj Bisht v. Harish Chandra Page 7 to 25
(iii) that 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;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from the account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque 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 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 8 to 25 course of the cheque within 15 days of the receipt of the said notice."
Arguments and appreciation of evidence
6. Ld. Counsel for the complainant has argued that since the issuance of cheques in question has been admitted by the accused, presumptions under Sections 118 & 139 of N I Act arise in favour of the complainant about cheques in question being given for a consideration and for legally recoverable debt. He has relied upon the cases of K N Beena v. Muniyappan (decided by the Hon'ble Supreme Court of India on 18.10.2001), Vijay Kumar Gupta v. Bijender Kumar Panwar (decided by the Hon'ble High Court of Delhi on 29.04.2015) and Santosh Mittal v. Sudha Dayal (2014 (4) JOC (NI) 201). On the other hand, ld. Counsel for trhe accused has argued that the complainant has failed to establish his case beyond reasonable doubt and thus, the CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 9 to 25 present case deserves to be dismissed.
I have heard the arguments of both the sides and also gone through the record carefully.
7. It is the case of the complainant that the cheques in question were issued by the accused in favour of the complainant regarding a sum of Rs.21 lakhs paid by the complainant to the accused during 2006 to 2008 to procure various contracts for the complainant. Ld. Counsel for the accused has argued that the complainant has failed to show that the amount of Rs.21 lakhs as mentioned by the complainant was ever actually paid to the accused. I find myself to be in agreement with this argument. During his cross examination as CW1, the complainant stated that the amount of Rs.21 lakhs was given to the accused in both personal as well as business capacity. He further stated that around Rs.1112 lakhs was given from the company account and the approximately Rs.8 to 9 lakhs from his personal account. He further testified as CW1 that he was Director in CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 10 to 25 two companies namely M K Infosystems Pvt. Ltd. and M K Vantedage Facilities Services Pvt. Ltd.. It is the case of the complainant that money was given to the accused from the accounts maintained in the names of both the above mentioned companies as well as from the personal account of the complainant. Ld. Counsel for the complainant has relied upon Ex.CW1/D1 in this regard which is statement of account pertaining to the accused as maintained by the complainant for the period October, 2006 till June, 2008. However, the said document Ex.CW1/D1 does not inspire much confidence for various reasons: i. Ex.CW1/D1 is purportedly for the period 20062008. As per Ex.CW1/D1, a total amount of Rs.22 lakhs was advanced to the accused over this period. However, an amount of Rs.1 lakh has been adjusted from this amount of Rs.22 lakhs in Ex.CW1/D1 towards the sale of one car. Ld. Counsel for the complainant has argued that that the said car is Tata Safari Car bearing registration number DL CAF 9970 which was purchased by M/s M K Info Systems Pvt. Ltd. CC No. 1467/15
Manoj Bisht v. Harish Chandra Page 11 to 25 and given to the accused for his use in lieu of his promise to generate business for the complainant. Ld. Counsel for the complainant has relied upon one agreement dated 16.04.2007 which is Ex.CW1/D3 to prove that the said car was given by the complainant to the accused for his official work. The same has not been denied by the accused. It has been argued on behalf of the complainant that the amount of Rs.1 lakh which has been adjusted towards the end in Ex.CW1/D1 is the sale price of the said car as the same was repossessed from the accused and sold by the complainant in April, 2009. It defies any logic and explanation as to how an amount which was received by the complainant by sale of the said car in year 2009 already adjusted by the complainant in the account statement for the period 2006 to 2008. The very fact that the payment from the sale of the said car which was not been received by the complainant by June, 2008 has been shown as adjusted in Ex.CW1/D1 casts grave aspersions on the very authenticity and genuineness of Ex.CW1/D1.
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ii. Ex.CW1/D1 shows that an amount of Rs.56,500/ was
spent by the complainant on the purchase of one HP laptop which was given to one Mr. Rakesh. However, during his cross examination as CW1, the complainant has admitted that the invoice pertaining to the said laptop i.e. Ex.CW1/D4 does not mention the name of accused anywhere. The complainant has failed to place on record any evidence to show that the said laptop was purchased at the asking of the accused. In fact, the complainant states in his cross examination that "the payment was made by cheque in the name of M/s Ascendent Information Technologies, same is Ex.CW1/D4". It is further the case of complainant that another Lenovo laptop was purchased by the complainant and given to the accused for his use. However, during his cross examination, the complainant has admitted that there is no proof in this regard. He stated that "a laptop lenovo was purchased by the complainant in the name of M K Infosystem Pvt. Ltd. and given to the accused and payment was made by the cheque by the company to Big Byte CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 13 to 25 Computers & Technical Services is Ex.CW1/D5. I have not filed any documents to show that the said laptop was given to the accused, nor I have any such documents with me". A perusal of his cross examination shows that apart from bare averment of the complainant regarding the purchase of the laptops, there is no evidence on record as admitted by the complainant himself that the said laptops were purchased by the complainant for the accused or that the same were actually ever used by the accused.
iii. Ex.CW1/D1 mentions an amount of Rs.90,000/ as salary to one Harsh, driver. Again, there is not even an iota of evidence to prove that the said salary was actually ever paid by the complainant or that, if paid, the said driver was employed by the complainant for the accused. The same has been admitted by the complainant in his cross examination by stating that "I have not filed any document to show that I had made payment of Rs.90,000/ to Harish Driver over the period. Neither I have the same in my office". CC No. 1467/15
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iv. An amount of Rs.62,230/ has been shown as money
paid towards mobile bills in Ex.CW1/D1. Again, there is no evidence on record to show that the said bills pertained to mobile connection numbers in the name of the accused. In fact in his cross examination as CW1, the complainant has admitted that "two mobile bills are Ex.CW1/D8 (colly). The said mobile number is in the name of the company and the payment was made by the company. I do not have other bills pertaining to the other mobile number however the payments were made by the company. It is also correct that I have no document to show that the payment was made by the company or by me showing the payment made to the mobile company for the personal number of the accused". v. An amount of Rs.1,20,000/ is shown at point C in Ex.CW1/D1 as money paid to one Amar Singh on behalf of the accused. Again, an amount of Rs.24,000/ has been shown at point D in Ex.CW1/D1 as money given to one Chatarjee. An amount of Rs.68,000/ has been reflected in CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 15 to 25 Ex.CW1/D1 at point E as money paid to CRIS/GM BSNL. However, no evidence has been led by the complainant to prove that the said money was given by the complainant at the behest of the accused. In fact, in his cross examination as CW1, the same has been admitted by the complainant by stating that "there is no document either on record or with the company or with me to show that payment of Rs.1,20,000/ paid to Amar Singh on behalf of the accused as reflected in Ex.CW1/D1 at point C. There is no document either on record or with the company or with me to show that the payment of Rs.24,000/ paid to Chaterjee as reflected in Ex.CW1/D1 at point D. There is no document either on record or with the company or with me to show that the payment of Rs.68,000/ paid to CRIS/GM BSNL as reflected in Ex.CW1/D1 at point E.".
It is very clear from the above discussion that the complainant has failed to adduce evidence in proof of the alleged payments made by the complainant either to the CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 16 to 25 accused or upon his asking as mentioned in Ex.CW1/D1.
8. It is the case of the complainant that out of the total amount of Rs.21 lakhs given to the accused, an amount of Rs.89 lakhs was given by the complainant from his personal bank account. However, the same has not been substantiated by bank account statements of the complainant placed on record. When asked about the same in his cross examination conducted on 10.11.2014, it has been admitted by the complainant that "I have already submitted the details of the amount withdrawn by me from my personal account and the same have already been exhibited in Ex.CW1/D3 at page no. 115 & 116. There is no entry in the name of the accused on the said pages". In view of the admission of the complainant in this regard, it cannot be said without doubt that the said amount of Rs.89 lakhs was actually ever advanced by the complainant to the accused. Ld. Counsel for the complainant has argued that since the accused has admitted to issuing the cheques in question, presumptions under Sections 118 & 139 CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 17 to 25 of N I Act arise in favour of the complainant regarding the cheques in question having been given for a consideration. While the same is true, it must also be remembered here that the same is a rebuttable presumption of law. In the case in hand, the accused has, in my considered opinion, managed to rebutt the said presumption about the cheques in question having been given for a consideration by raising doubts over the amount alleged by the complainant to be given to the accused.
9. Ld. Counsel for the complainant has argued that the accused has mentioned at the back of each cheque that "Mr. Manoj Bisht provided facility to generate business from 01.09.2006 to 30.07.2008. This cheque issued for commitment to generate business". He has further relied upon Ex.CW1/1 which is one affidavitcumundertaking executed by the accused acknowledging that he has received Rs.21 lakhs from the complainant from September, 2006 to 15.06.2008 and that he is issuing seven post dated cheques CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 18 to 25 of Rs.3 lakhs each to the complainant in discharge of his liability in this regard. Ld. Counsel for the accused has argued that the said document is a forged and fabricated one and the same was never signed by the accused. He has further argued that the very fact that Ex.CW1/1 mentions seven cheques of Rs.3 lakhs each shows that the same is a forged document as there are three cheques of Rs.7 lakhs each on record of this case. However, I do not find much merit in this argument of the accused. The discrepancy between the number of cheques as mentioned in Ex.CW1/1 and the cheques in question could be on account of a typographical error as the cumulative amount as per Ex.CW1/1 is Rs.21 lakhs, which equals the amount of the cheques in question. Since it is the stand of the accused that he never signed Ex.CW1/1, the onus was upon the accused to prove that his signatures on Ex.CW1/1 were forged by examining a forensic/hand writing expert. The same was never done by the accused. Hence, the averment of the accused regarding Ex.CW1/1 being a forged document CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 19 to 25 cannot be taken at his mere ipsi dixit. This discussion leads to a very crucial aspect about the present case. Even if it is assumed by placing reliance on Ex.CW1/1 and the writing of the accused behind the cheques in question, which writing has been admitted by the accused himself, that an amount of Rs.21 lakhs was actually advanced by the complainant to the accused, the question arises whether the amount involved in the present case could be said to be legally recoverable. Put differently, it must be seen whether the cheques in question were issued by the accused in discharge of his legal liability. It is case of the complainant himself that the payment of Rs. 21 lakhs was made to the accused by the complainant over the period from September, 2006 to June, 2008 on the assertion of the accused that "he can procure good business to the complainant claiming himself to be well connected with the highups in various Govt./Private organizations". The same has been categorically mentioned by the complainant in para 2 of his complaint as well as affidavit Ex.CW1/8. It is, thus, clear that the said money was being CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 20 to 25 paid by the complainant to the accused so that the accused could generate business for the complainant by procuring Government as well as private contracts by using his influence with various government and private organizations. In my opinion, the cheques in question cannot be said to be issued in discharge of legal liability as the very object of the association/agreement of the complainant and the accused seems to be illegal being opposed to public policy. Where a person looks to garner business for himself by influencing government officials through a middleman of sorts, it leads to the only inescapable and unfortunate conclusion that the person is trying to profit himself by subverting the due process of law. It must also be noted here that besides the complainant's averment that he gave money to the accused so that business might be procured by the accused for the complainant from various government and private organizations, Ex.CW/D1 clearly mentions at point E that an amount of Rs.68,000/ was given by the complainant to CRIS/GM BSNL. The same does not have any semblance CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 21 to 25 of legal tender of money. The complainant cannot waive of the same by merely shrugging his shoulders and saying that the same was given at the asking of the accused. The complainant is a man of means and is also a Director in two companies. Hence, it cannot be believed that he innocently and naively kept advancing money to the accused for the purpose of further passing on the said money to various government organizations. It is very obvious that the complainant was expecting benefit and return from the said money advanced to the accused by way of getting government contracts. I place reliance upon the case of Rattan Chand Hira Chand v. Askar Nawaz Jung 1991 (3) SCC 67 in this regard wherein it was held by the Hon'le Apex Court that "the contract such as the present one which is found by the City Civil Court as well as the High Court to have been entered into with the obvious purpose of influencing the authorities to procure a verdict in favour of late Nawab was obviously a carrier contract. To enforce such a contract although its tendencies to injure public weal CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 22 to 25 is manifest is not only to abdicate one's public duty but to assist in the promotion of a pernicious practice of procuring decisions by influencing authorities when they should abide by the law. To strike down such contracts is not to invent a new head of public policy but to give effect to its true implications". Ld. Counsel for the complainant has argued that the amount of Rs.21 lakhs was advanced to the accused not just for procuring government contracts but also for procuring business from private organizations. Be that as it may, the complainant has not bifurcated his case into two heads to show that certain amount was paid to the accused to influence government contracts and the remaining to get private contracts. In the absence of such a distinction, the only logical inference is that the entire object of the basic agreement between the complainant and the accused was a illegal and opposed to public policy. That being so, the cheques in question cannot be said to be issued in discharge of legally enforceable debt/liability as mandated by the Explanation to Section 138 of N I Act.
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10. Ld. Counsel for the complainant has argued that not even slightest of evidence has been led by the accused to probabilize the defence taken by the accused that the cheques in question were given as future investment regarding sports adventure facility to be developed at Uttrakhand and hence, the accused must be convicted. I do not find myself to be convinced with this argument of ld. Counsel for the complainant. While it is true that apart from mere statement of the accused recorded under Sections 263(g) Cr.PC and Section 313 Cr.PC regarding the cheques in question having been given as future investment, no evidence has been led by the accused in this regard. However, the said fact cannot come to the rescue of the complainant as the complainant has himself failed to establish that the cheques in question were given in discharge of a legally enforceable debt. It is settled principle of law that the case of the complainant must stand on its own legs and that the complainant cannot seek to derive benefit out of the weakness in the defence led by the accused. CC No. 1467/15
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Conclusion
11. In view of the above discussion, I am of the considered opinion that the complainant has failed to establish his case beyond reasonable doubt by proving all the ingredients under Section 138 N I Act. The accused Harish Chandra Bhatt is hereby acquitted for offence punishable under Section 138 N I Act. The case stands dismissed.
Announced in the Open Court on 11.12.2015 (RAJAT GOYAL) Metropolitan Magistrate01 (South), NI Act Saket/New Delhi/11.12.2015 CC No. 1467/15 Manoj Bisht v. Harish Chandra Page 25 to 25