Delhi District Court
Sanjay Kumar Agarwal vs . Mahant Raghav Das on 19 January, 2018
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
SANJAY KUMAR AGARWAL VS. MAHANT RAGHAV DAS
CC NO. 462882/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 462882/2016
(2) Name of the complainant : Sh. Sanjay Kumar Aggarwal
S/o Sh. Hari Narayan,
R/o H. No. 1608, Block-C, JJ
Colony, Tigri, New Delhi-110062
(3) Name of the accused, : Mahant Raghav Das,
parentage and address Sh. Purshottam Dass,
R/o Janki Nath Temple, Pustak
Centre, Shakambri Saree Ke
Upper, Sadar Bazar, Chomu,
Distt. Jaipur-303702, Rajasthan
Also At :
C/o Chela Bhagwan Dass, Janki
Nath Mandir Parisar, Sadar
Bazar, Chomu,
Distt. Jaipur-303702
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : CONVICTION
(7) Date of Institution : 29.10.2015
(8) Date on which reserved for
judgment : 10.01.2018
(9) Date of Judgment : 19.01.2018
Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016
Page 1 of 15
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that the accused agreed to sell a plot measuring 100 sq. yards at Janki Vihar, Chomu (Rajasthan) to complainant. Complainant paid the accused Rs. 6,00,000/- in the month of March, 2015 as token/earnest money regarding the said plot. Since the accused did not keep his words, complainant asked the accused to return the token/earnest money given to the accused by him. In order to discharge his liability towards complainant, the accused issued two cheques in favour of the complainant, one cheque for Rs. 2,00,000/- was duly honoured. Another cheque bearing no. 000047 for a sum of Rs04 lacs dated 10.07.2015, drawn on HDFC Bank, Chomu, Rajasthan, on presentation was returned to the complainant by the accused banker with the remarks of "Insufficient Funds " vide cheque return memo dated 24.07.2015. At the request of accused, complainant presented the said cheque again on 11.09.2015 to his bank but the said cheque again dishonoured with the remarks "Insufficient Funds" vide bank return memo dated 15.09.2015. When the accused failed to make the payment, complainant sent a legal notice of demand on 22.09.2015 informing the accused regarding the dishonour of the cheque and demand the cheque amount within 15 days from the date of receipt of the notice. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the complainant filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act"). Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 2 of 15 3
2. In the pre-summoning evidence, affidavit by way of evidence ExCW1/1 was filed by the complainant. In his affidavit of evidence ExCW1/1, the complainant reiterated all the averments made in his affidavit of evidence Ex. CW-1/1 and relied on documents Ex.CW1/A to ExCW1/G which are the original cheque in question, its return memos dated 24.07.2015 & 15.09.2015, copy of legal notice dated 22.09.2015, postal receipts and internet generated copy of tracking reports.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 04.12.2015.
3. Accused appeared pursuant to issuance of BW and production warrants and notice U/s 251 CrPC was served upon the accused vide order dated 15.02.2017 to which the accused pleaded not guilty and claimed trial. Accused further stated that he had given as security for the payment and at the request of complainant, he had given Rs. 4 lacs in cash to the complainant in January 2015 at his home in Chomu and when he asked to return the cheque, complainant stated that in the next visit to Chomu i.e. his native place, complainant would return the cheque. Accused further stated that he has no legal liability to pay the cheque amount to the complainant.
4. Thereafter, upon application of accused U/s 145(2) N I Act to cross examine complainant and his witnesses, the same was allowed vide order dated 15.02.2017 and the accused was given an opportunity to cross examine the Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 3 of 15 4 complainant and his witnesses.
Complainant examined himself as CW-1 and CW-2 Ram Avtar Arya from Punjab National Bank to prove clearance of another cheques of Rs02 lacs and to prove the return memos, in his post summoning complainant evidence. CW-1 ie complainant was duly cross examined by the counsel for the accused and CW-2 was not cross examined by the counsel for accused despite opportunity. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 03.11.2017.
5. Thereafter, the plea of the accused Mahant Raghav Das u/s 313 r/w 281 CrPC was recorded vide order dated 15.12.2017, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that neither he has entered into any agreement to sell with the complainant nor he has any plot in Janki Vihar, Chomu, Rajasthan. Accused stated that he had taken friendly loan of Rs. 6 lacs from the complainant in January 2015 and he had already returned Rs. 2 lac by way of bank transfer and Rs. 4 lacs by way of cash by calling the complainant in Jaipur in July 2015. At the time of taking loan in January 2015, he had given an undated cheque to the complainant as security. When he returned Rs. 4 lacs in July 2015, he asked the complainant to return his cheque but the complainant failed to return the same at that time and said that he would return the same in Delhi. Accused further stated that complainant misused his cheque and concocted the story of agreement to sell and filed a false case against him. Accused further stated that he has no legal liability to pay the cheque amount to the complainant and he did Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 4 of 15 5 not receive any legal notice as he was in JC since last 19 months.
Accused did not wish to lead defence evidence in his defence.
6. Thereafter, matter was listed for addressing final arguments on 05.01.2018.
7. It has been argued on behalf of complainant that complainant has paid Rs06 lacs to the accused for sale of a property but accused failed to transfer the property in favour of complainant and in order to return the money paid by the complainant to the accused in advance, accused issued two cheques, one of Rs02 lacs which has been encashed and second of Rs04 lacs ie cheque in question which got dishonoured. The accused has admitted the issuance of cheque in question and its dishonour and the only defence taken by accused is that the cheque was not issued for return of earnest money but for return of friendly loan. U/s 139 r/w 114 of N I Act, there is presumption of law against the accused and not the presumption of fact and therefore, even if the plea of accused is considered that he has given the cheque for return of friendly loan, he cannot escape his liability because he failed to rebut the presumptions of law. The accused has failed to lead any defence evidence while the testimony of complainant has remained unrebutted. Further the accused has taken contradictory defences at different stages of trial as at the stage of defence to notice U/s 251 CrPC, accused has taken plea that he had returned Rs04 lacs to the complainant in January 2014 at his home in Chomu while in the plea recorded U/s 313 CrPC, he stated that he had returned Rs04 lacs to the complainant in July 2014 at Jaipur. Further, the accused has taken plea that he Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 5 of 15 6 had given undated cheque as security to complainant at the time of taking loan of Rs04 lacs but persual of cheque shows that there is no difference in the ink used while filling the particulars of the cheque in question and if the complainant could have written the date later on, as alleged by accused, there would have been slightest difference in the date and remaining particulars. The accused even had the liability to obtain opinion of expert to corroborate his plea but accused has failed to do the same which clearly proves that accused has issued duly filled cheque in favour of complainant. Further, accused has taken plea that he had already paid Rs04 lacs to the complainant but he has failed to produce anything and even failed to explain why no receipt has been taken by him after payment of Rs04 lacs. Thus, considering the fact that complainant's testimony has remained unrebutted and accused has not proved any defence while presumptions U/s 119 r/w 141 N I Act are against the accused, the accused is liable to be convicted. Counsel for the complainant has relied upon the judgments of :
On the other hand, it has been argued on behalf of the accused that as per Section 138 N I Act, there has to exist any debt or other legal liability. In para No. 2 of the complaint, complainant has stated that accused has agreed to sell a plot to the complainant but admittedly no written agreement has been executed and during cross examination, even complainant admitted that no agreement to sell was made between complainant and accused which is a major contradiction in the testimony of complainant. Further, complainant admitted during cross examination that he had never seen the title deeds of the plot Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 6 of 15 7 whose agreement to sell was agreed between complainant and accused. But as an ordinary prudent person, the complainant was required to check the particulars of immoveable property before entering into agreement to sell. Further, complainant also failed to disclose the exact sale amount for which the plot was agreed to be sold to the complainant. Further, in the complaint, complainant stated that Rs06 lacs were paid as earnest money while during cross examination, he deposed that the total amount for which plot was to be sold was Rs06 lacs. From the testimony of complainant, it is clear that the complainant was not aware about th e particulars of the transaction which corroborates the plea of accused that no agreement to sell was ever executed between the parties because accused has no plot in Chomu, Rajasthan. It has been further argued that as far as contradictions in the statement of accused qua the payment of Rs04 lacs is concerned, the discrepancy arose only because of inadvertence as well ad due to the reason that accused is in JC since long which affected his state of mind. It has been further argued that the complainant has filed complaint U/s 138 N I Act only because there is rebuttable presumption against accused and had the complainant filed the recovery case or case for specific performance, then he was required to prove all the things ie the exact date of agreement to sell, the exact consideration/total amount of sale etc. It has been further argued that presumptions U/s 138 N I Act cannot be raised in vacuum and the initial onus is upon the complainant to prove the averments of complainant and the debt or any other legal liability for the purpose of 138 N I Act, can be the liability which has been specifically mentioned Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 7 of 15 8 in the complaint and not for any other purpose and in the present case, from the testimony of complainant, it is clear that complainant has failed to prove the liability of accused as mentioned in the complaint and complainant be allowed to take the plea that accused be convicted for the offence punishable U/s 138 N I Act because accused has admitted the liability for friendly loan. It has been further argued that accused has already returned the friendly loan of Rs04 lacs to the complainant and receipt has not been taken in good faith. Further, the accused has not advanced any DE because the conduct of complainant is contradictory and accused has been able to rebut the presumptions by cross examination of the complainant. Thus, the complainant has failed to prove his case and accused has rebutted the presumptions raised against him. The accused is required to show only a probable defence and accused has been able to discharge his part of burden of proof while complainant failed to prove his own case, therefore, the accused is liable to be acquitted.
8. Arguments advanced by both parties heard. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 8 of 15 9
10. In the case at hand, receipt of legal notice and the legal liability of accused to pay the cheque amount to the complainant are in dispute.
11. Now, this court shall deal with the defences of accused one by one.
11A. FIRST DEFENCE AS TO NON RECEIPT OF LEGAL NOTICE A1. One line of defence taken by the accused is that he did not receive the legal notice of demand dated 22.09.2015 Mark-A. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice of demand. The complainant has alleged that the legal notice of demand dated 22.09.2015 Mark A was sent to the accused through speed post on 22.09.2015 on the correct address of accused, receipts of which are ExCW1/E and tracking reports are ExCW1/F & ExCW1/G. A2. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused. A3. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held --
"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 u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 9 of 15 10 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 from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
A4. The accused has furnished bail bond during trial on 18.01.2017 and he has mentioned the address of Chomu, Rajasthan which is the same address on which the complainant had sent the legal notice. As per accused, he doesn't received the legal notice as he is in JC since last 20 months but he has not disputed correctness of his address.
Therefore, in view of the above said dictum of the Hon'ble Apex Court as well as discussion above, this court holds that the legal notice dated 22/09/2015 Mark A was served on the accused.
11B. SECOND DEFENCE AS TO LEGAL LIABILITY B1. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 10 of 15 11 consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
B2. In the present case, as per complainant, he has entered into agreement to sell with the accused qua one plot measuring 100 sq yards at Janaki Vihar, Chomu, Rajasthan and paid Rs06 lacs to the accused in March 2015 as earnest money. But accused failed to give the property and to return the earnest money, he issued two cheques including the cheque in question to the complainant which got dishonoured, hence the complaint.
On the other hand, as per accused, he had taken loan of Rs06 lacs from the complainant and cheque in question was issued as undated cheque for the purpose of security but in lieu of the cheque, the accused has made cash payment to the complainant.
B3. Admittedly, the accused had issued one cheque of Rs02 lacs apart from the cheque in question and the cheque of Rs02 lacs has already been encashed by the complainant and admittedly no written agreement or document has been prepared between the parties qua the transactions alleged by both parties.
B4. The accused has argued that during cross examination, complainant has admitted that : "it is correct that no agreement to sell was made between me and accused for selling a plot at Janaki Vihar, Chomu, Rajasthan by accused". It is settled principle that testimony of a witness has to Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 11 of 15 12 be considered as a whole and only one line from the deposition of witness cannot be read in isolation. After reading the entire deposition of the complainant, it appears that by the above quoted statement, the complainant has meant to say that no written agreement to sell was executed between parties or no documentation was made qua the agreement between parties. Further, admittedly there is no bar in entering into oral agreement to sell though the proof of oral agreement to sell is a difficult task but no law provides that there cannot be any oral agreement to sell between parties. B5. Further, the accused has admitted that he had taken Rs06 lacs from the complainant and the accused is only questioning about the nature of liability. As per complainant, cheque in question was issued for return of money paid by the complainant in advance towards sale of immoveable property while as per accused, the cheque in question was issued as undated cheque for the security for return of loan. Once the accused has admitted the issuance of cheque in question, then by virtue of Section 139 r/w 114 of N I Act, two statutory presumptions arise against the accused and the burden of proof shifts upon the accused to prove his defence or averments. But the accused has not advanced any evidence to prove his averments and mere oral averments without any evidence are of no help to the accused. Moreover, even for the sake of arguments, the plea of accused is considered, then the accused is admitting that his liability qua the cheque amount is a legal liability and is also admitting that cheque has not been issued for any unlawful consideration or for any illegal liability.
Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 12 of 15 13 B6. Further, the accused has stated in defence to the notice U/s 251 CrPC that he had given Rs04 lacs in cash to the complainant in January 2015 at his home in Chomu while in the plea recorded U/s 313 CrPC, he stated that he had returned Rs04 lacs in cash to the complainant by calling the complainant in Jaipur in July 2015. The plea of Ld counsel for accused appears to be probable that the accused is in JC since long and therefore, the contradiction regarding the month might have appeared because of his mental status being affected due to the accused being in JC since long. But admittedly, accused has failed to produce any evidence or receipt to corroborate his plea that he has returned Rs04 lacs by way of cash in lieu of cheque in question. Moreover, it is highly improbable that any ordinary prudent person would pay such a huge amount of Rs04 lacs in cash without taking any receipt or without taking back the cheque because had the parties had no intention to attach legal sanctity to their transaction, the cheque in question would not have been issued even for the purpose of security as alleged by accused. Further, the cheque in question is dated 10.07.2015 and as per accused, he has paid the amount in cash to the complainant in July 2015 itself. Thereafter, the cheque in question was presented by the complainant on 15.09.2015 for the second time and there was sufficient time period between the first presentation of cheque on 24.07.2015 and the second presentation of cheque on 05.09.2015 and accused had ample time to serve legal notice upon the complainant, thereby calling the complainant to return the cheque or to give stop payments instructions to his banker or to lodge complaint against the complainant. But accused had failed to take any Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 13 of 15 14 steps as an ordinary prudent person. Therefore, the defence of accused is improbable.
B7. Further, the accused has taken plea that during cross examination, complainant had admitted that he has never seen the title deed of the plot nor complainant had information as to who is owner of the plot which was agreed to be sold by the accused and as an ordinary prudent person, it is highly improbable that a person would pay such a huge amount of Rs06 lacs without checking the title deeds or without obtaining the title deeds. As far as this plea is concerned, the complainant has stated during cross examination that :
"It is correct that without seeing the title deeds, no-one gives money to the other party to purchase a plot. Vol I trusted the accused as my relatives lives in Chomu, Rajasthan and they know the accused and just because of trust with my relatives, I trusted and the cheque was given in front of Vinod Bansal".
The accused is a Mahant who is residing in Mandir and therefore, the explanation given by the complainant seems probable and the plea of accused seems merit-less.
12. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved his case beyond all reasonable doubts. Resultantly, this court finds the accused Mahant Raghav Dass s/o Sh Purshottam Dass guilty for the offence punishable U/s 138 N I Act. Hence, he stands convicted.
Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 14 of 15 15
14. Let the convict be heard on the quantum of sentence on 02/02/2018 at 02 PM.
Announced in the open court on 19/01/2018 (PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 15 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Sanjay Kumar Vs. Mahant Raghav Das CC No. 462882/2016 Page 15 of 15