Delhi District Court
Deepa vs Sunil Dutt on 1 March, 2024
IN THE COURT OF SH AZAD SEHRAWAT,
METROPOLITAN MAGISTRATE, SOUTH-WEST,
DWARKA, DELHI
In Re:
CNR No. DLSW02-016289-2019
CC No. 12287/2019
Deepa w/o Sh. Madan Rohilla
R/o RZ-241/A, Sadh Nagar,
Palam Colony, New Delhi-110045 .......... Complainant
Versus
Sunil Dutt
S/o Shri Dayananad Sharma
r/o H. No. 36, Sector-106, Near Animal Hospital
Daultabad (53), Gurgaon,
Haryana-122006 .......... Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not
guilty
(3) Date of institution of case : 04.04.2019
(4) Date of conclusion of arguments : 28.02.2024
(5) Date of Final Order : 01.03.2024
(6) Final Order : Convicted
Digitally signed
by AZAD
AZAD SEHRAWAT
SEHRAWAT Date: 2024.03.01
14:59:22 +0530
Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 1 of 32
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that the complainant Smt. Deepa w/o Madan Rohilla r/o RZ-241/A Sadh Nagar, Palam Colony, New Delhi is the sole and complete owner of said property in question. It is alleged that the said property was in a dilapidated condition and that complainant gave the contract for reconstruction of the said property to the accused Sunil Dutt, who was engaged in the business of construction of buildings and house and other related works, vide construction agreement dated 17.12.2017. It is further alleged that the complainant paid Rs. 23,00,000/- as advance for the construction work on said property after arranging the funds from her personal savings and amount received from committees. It is further alleged that the accused failed to complete the construction of said property and that the complainant asked him to refund the advance money given to him. It is further alleged that thereafter the accused agreed to refund an amount of Rs. 16,00,000/- to the complainant. Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 14:59:38 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 2 of 32
3. Thereafter, it is alleged that in discharge of his liability, the accused issued cheque bearing No. 339560 dated 28.01.2019 amounting to Rs. 16,00,000/- drawn on Sarva Haryana Gramin Bank, Rajendra Park, Gurgaon-122006 which on presentation was dishonoured vide return memo dated 30.01.2019 due to the reason "Funds insufficient". Thereafter, it is alleged that legal demand notice dated 20.02.2019 demanding payment of aforesaid cheque was sent to the accused through speed posts dated 21.02.2019 and that despite service of the aforesaid legal demand notice, no money was repaid by the accused. Thereafter, the complainant has filed the present complaint case with the submission that the accused be summoned, tried and punished according to law.
4. In his pre-summoning evidence, the complainant examined himself on affidavit . He reiterated the contents of the complaint and placed on record Construction agreement dated 17.12.2017 as Ex. CW-1/1, original cheque bearing no. 339560 as Ex. CW- 1/2, return memo dated 30.01.2019 as Ex CW-1/3 , legal demand notice dated 20.02.2019 as Ex. CW-1/4, postal receipts as Ex. CW-1/5 and courier receipt Ex. CW-1/6, tracking reports as Ex. CW-1/7and Ex. CW-1/8, certificate u/s 65 B of Indian Evidence Act as Ex. CW-1/9 and evidence by way of affidavit as Ex. CW-1/A. Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 14:59:48 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 3 of 32
5. Upon appreciation of the pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon the accused on 24.11.2021 to which the accused pleaded not guilty and claimed trial. The accused admitted his signatures on the cheque in question. However, he denied filling in the remaining details on the cheque in question. The accused denied receipt of the legal demand notice by him. The accused stated that he is not liable to pay Rs. 16,00,000/- to the complainant as the advance taken for construction in terms of construction agreement dated 17.12.2017. He further stated that he had entered into a verbal construction agreement with the complainant in April 2017 as per which the complainant had to pay Rs. 38,00,000/- to him. He further stated that the complainant gave him cheque of Rs. 12,00,000/- for the construction of four floors and cash of Rs. 11,00,000/-. He further stated that he had constructed four floors for the complainant, however, finishing was still remaining to be done in the four floors. Thereafter, he stated that he stopped the work of construction at the said site since the aforesaid cheque of Rs. 12,00,000/- given by complainant was dishonoured. He further stated that in December 2017, he entered into a written agreement with the complainant and that he had given the blank signed cheque in question as security cheque to the complainant. He further stated that he did not have any liability towards the complainant and that the complainant has misused the blank Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 14:59:54 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 4 of 32 signed security cheque to institute a false case against him. Thereafter, matter was listed for complainant evidence.
6. Complainant examined himself as CW-1 and he was cross-examined by ld. counsel for the accused. No other witness was produced by the complainant and she closed her evidence vide order dated on 17.01.2023.
7. Thereafter, statement of the accused under Section 313 Cr.P.C was recorded in which all the incriminating evidence were put to the accused separately to which the accused reiterated to great extent the stand taken by him in answer to notice under Section 251 Cr.P.C. He stated that the cheque in question has been signed by him. However, he denied filling in all the remaining details. He also denied receipt of legal demand notice by him and stated that he had left the address mentioned in the legal demand notice in the year 2018. He also stated that he is not liable to pay Rs. 16,00,000/- to the complainant as the advance taken for construction in terms of construction agreement dated 17.12.2017. He further stated that he had issued the cheque in question as blank signed security cheque to the complainant on 17.12.2017 when agreement was executed between the complainant and him. The accused admitted that he had executed the agreement Ex. CW-1/1 with the complainant and that the same bears his signatures. However, he stated that the handwritten receipt on back side of page-13 of the agreement Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:00:01 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 5 of 32 is not in his handwriting and also does not bear his signature. He further stated that he had entered into a construction agreement with the complainant for constructing the house of the complainant. He also stated that the complainant paid him Rs. 16,00,000/- for the same. He further stated that he had constructed four floors for the complainant including the lenters for the same. He further stated that he had some dispute with the complainant regarding the material to be used for construction of the floors and that, thereafter, he stopped the work of construction at that site and that the complainant engaged another person for the same. He further stated that the expenditure incurred for construction of the four floors of the complainant was Rs. 16,00,000/-, and therefore, he did not owe any liability towards complainant. He further stated that he had given the cheque in question as blank signed security cheque to the complainant at the time of entering into agreement with her. He further stated that the said blank signed security cheque has been misused by the complainant. Accused preferred to lead defence evidence. Thereafter, the matter was fixed for defence evidence.
8. No defence witness was produced by the accused despite several opportunities and his right to lead defence evidence was closed vide order dated 03.08.2023. Thereafter, the matter was listed for final arguments. Digitally signed by AZAD SEHRAWAT AZAD Date:
SEHRAWAT 2024.03.01 15:00:08 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 6 of 32
9. It was argued by Ld. counsel for the complainant that this is a fit case for conviction of the accused as all the essential ingredients of Section 138 of the NI Act read with Section 139 of the NI Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that the accused admitted his signatures on the cheque in question in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. He argued that the accused never gave reply to the legal demand notice. He also argued that accused never filed a complaint against the complainant for the alleged wrongful retention or misuser of the cheque in question. He also argued that the accused has not placed on record any document to show dishonour of the cheque issued by the complainant in his favour for completion of the construction work as has been alleged by the accused at the time of framing of notice under Section 251 Cr.P.C. It was further argued that the address mentioned on the legal demand notice is the same address as has been mentioned on the bail bonds furnished as well as on the aadhar card filed along with the same by the accused in the present matter. He further argued that no defence evidence was led by the accused in the present matter despite several opportunities. He also argued that no question or suggestion has been put during the cross-
examination of the complainant which can rebut the presumption raised under Section 139 of the NI Act. Ld. counsel for the complainant relied upon the judgment of the Hon'ble Supreme Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:00:16 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 7 of 32 Court of India in the case titled Rajesh Jain Vs. Ajay Singh [SLP (Crl.) No. 12802 of 2022] in this regard. The judgment has been perused and considered. It was further argued that the accused failed to raise a probable defence to disprove the case of the complainant and to rebut the presumption raised under Section 139 NI Act, and therefore, the accused be convicted for the offence under Section 138 of the NI Act.
10. Per contra, on behalf of accused, Ld. Counsel filed written arguments. He argued that the accused and the complainant had entered into an oral agreement for construction of the site for which the complainant had given an advance of Rs. 23,00,000/- in two modes, i.e. Rs 12,00,000/- by cheque and Rs. 11,00,000/- in cash. It is further argued that the accused had started the work of construction as per the oral agreement and that he had done the work amounting to Rs. 23,95,425/- in total. Details of this amount have been mentioned as follows:
S. No. PARTICULARS COST
1 DEMOLITION OF HOUSE, 10,85,724/-
DPC, PILLARS, AND
PARKING WITH2 SET
ROOMS AND WITH LATIN
BATHROOM
2 FIRST LENTER ON GROUND 2,06,959/-
FLOOR WITH WALL AND
WITH DOORS, ELECTRICITY
WORK
3 SECOND LENTER ON FIRST 3,10,637/-
FLOOR WITH WALL AND
WITH DOORS, ELECTRICITY
WORK
4 THIRD LENTER ON SECOND 4,31,190/-
Digitally signed
by AZAD
AZAD SEHRAWAT
SEHRAWAT Date:
2024.03.01
15:00:24 +0530
Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 8 of 32
FLOOR WITH WALL AND
WITH DOORS, ELECTRICITY
WORK
5 FOURTH LENTER WITH 3,60,915/-
WALL ELECTRICITY WORK
AND DOORS
TOTAL 23,95,425/-
He further argued that the said construction work was stopped by MCD on 10.12.2017 and that the accused handled the situation with MCD. He further argued that due to this situation with MCD the construction was stopped by the complainant.
He further argued that the complainant had stated in his cross-examination as CW1 that he had given the amount of Rs. 23,000,00/- to the accused 3 days after execution of the written construction of agreement Ex. CW-1/1, however, according to the agreement, this amount was already given to the accused by the complainant and that the amount mentioned therein is Rs. 22,50,000/- and that this fact creates a doubt on the whole transaction. He also argued that the space of date of the above mentioned payment has been left as blank in the said construction claimant Ex. CW-1/1 and that the court can assume existence of a prior oral agreement from this fact.
He further argued that the complainant and the accused thereafter entered into a written construction agreement on 17.12.2017 for security purposes only, and that the cheque in question was given as blank signed security cheque at the time of Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:00:31 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 9 of 32 execution of this agreement. He also argued that the complainant did not return the cheque in question despite repeated demands by the accused and that the same has been misused by the complainant.
He further argued that when agreement was executed on 17.12.2017 so how did accused receive a cheque by complainant on 11.05.2017 which is approximately 7 months before agreement and that it means complainant and accused had entered into an oral agreement before 17.12.2017.
He also argued that the witnesses to the construction agreement Madan Rohilla and Chander Mohan have not been made witnesses by the complainant in the present case while it was mandatory for the complainant to do so in order to prove her case beyond reasonable doubt.
He further argued that the complainant has failed to reveal which term and condition of the said construction agreement has not been complied by the accused. He also argued that the complainant has not mentioned on which date the above said agreement has been breached and that it is also not mentioned that when the complainant had approached the accused in order to ask him to return the advance money and it is also not mentioned that on which date the accused had started the construction work and when the accused had stopped the Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:00:45 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 10 of 32 construction and why.
He further argued that according to the complaint, the complainant and accused sat for settlement of the present dispute wherein the cheque in question dated 28.01.2019 was issued in favour of the complainant that is 13 months after execution of the written construction agreement and that this fact creates a doubt as why would the accused agree for settlement 13 months after execution of the said agreement. He also argued that the date of the settlement has not been mentioned by the complainant anywhere in his complaint.
He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is entitled to be acquitted of offence u/s 138 of the Act.
11. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
12. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:00:54 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 11 of 32 following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
13. The NI Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the negotiable instrument being drawn or made for consideration as contained in Section 118 (a) and secondly, of the nature referred to in Section 139, a presumption that the holder of the cheque received the same in discharged, in whole or in part, of any debt or other liability.
Section 118 of the N.I Act provides :
"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;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".Digitally signed
by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:01:01 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 12 of 32
14. For the offence under Section 138 of the NI Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16]. In this case, the Apex Court had held:
"........ Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, .... it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.
In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:11:25 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 13 of 32 does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists" . Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'
15. In the present case, accused has admitted his signatures on the cheque in question, in the notice U/s 251 Cr.P.C and his statement U/s 313 Cr. P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,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 the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:11:33 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 14 of 32 these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforementioned legal position, let us carry out a scrutiny of the evidence led at the trial.
16. In the present case, the complainant by way of an affidavit led his own evidence testifying that the cheques were issued to him in discharge of liability, for return of advance money given by the complainant to the accused for execution of the construction agreement in dispute. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
17. The principal defence taken by the accused as brought out from statement in his notice framed under Section 251 Cr. P.C, is that he had given the cheque in question as a blank signed security cheque at the time of execution of the construction agreement for which he had received Rs. 23,00,000/- in advance out of which Rs. 11,00,000/- was stated to be given in cash and Rs. 12,00,000/- was stated to be given by cheque. However, he retracted from this statement during recording of his statement Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:11:41 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 15 of 32 under Section 313 Cr.P.C. and he stated that he had only received Rs. 16,00,000/- in cash from the complainant as advance in lieu of the said construction agreement. He further stated that he had completed construction of 4 floors in accordance with the said construction agreement and that he had stopped further construction since the above mentioned cheque of Rs. 12,00,000/- given by the complainant as advance was dishonoured. However, he again retracted from this statement during recording of his statement under Section 313 Cr.P.C. and stated that the said construction was stopped due to some dispute with the complainant regarding material to be used in the construction.
18. Perusal of evidence shows that the above defence version of the accused is not supported by any material on record. The accused in his notice framed under Section 251 Cr.P.C stated that he had given the cheque in question as a blank signed security cheque at the time of execution of the construction agreement. Ld. Counsel for the accused has also argued in his favour on same lines.
In this regard, the accused has not put forward any evidence on record in support of the aforementioned defence plea taken by him in his notice framed under section 251 Cr.P.C. and in his statement recorded under Section 313 Cr.P.C. Further, the cheques in question have been dishonored vide cheque returning Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:11:48 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 16 of 32 memo both dated 25.08.2020 for reason "Funds Insufficient"
(Ex. CW1/C and Ex. CW1/D) and not for any other reason. There is no explanation or evidence as to why, if the cheques were taken by force by the complainant from the accused and were not issued by the accused voluntarily, "stop payment" instructions were not issued by the accused to his bank. Also, the accused had not filed any complaint against the complainant for wrongful retention or misuse of his cheques. In light of the above, the version of the accused that the that the cheque in question was given as blank signed security cheque at the time of execution of the construction agreement, is not credible, as the same is not supported by any evidence on record.
19. Even otherwise, if for the sake of argument, it is considered that the accused gave a blank signed cheque, once accused has admitted his signatures on the cheque in question, he cannot escape his liability on the ground that all or some of the particulars have not been filled in by him, or that signatures on cheque and the contents are filled in different writings and inks. When such a cheque containing blanks is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. It has been clearly laid down in Section 20 of Negotiable Instruments Act 1881, that where one person signs and delivers to another a Negotiable Instrument either wholly blank or having written thereon an incomplete negotiable Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:11:56 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 17 of 32 instrument, he thereby gives, "prima facie authority to the holder thereof to make or complete, as the case maybe, upon it a negotiable instrument". In the case of Satish Jayantilal Shah v. Pankaj Mashruwala and Anr. 1996 Cri. L. J. 3099, it has been held that:
"no law provides that in case of any negotiable instruments entire body has to be written by maker or drawer only."
In the case of Moideen v. Johny 2006 (2) DCR 421, it has been held that when a blank cheque is issued, the drawer gives an authority to the person to whom it is issued, to fill it up at the appropriate stage with necessary entries and to present it to the bank. Thus, the accused cannot dispute the contents of the cheque in question.
20. Ld. Counsel for the accused has argued that the said construction work was stopped by MCD and that the accused had to deal with MCD in order to continue the said work. At the stage of framing of notice under Section 251 Cr.P.C., the accused stated that he had stopped the construction work due to dishonour of the above mentioned cheque, for which no proof has been placed on record. However, at the stage of recording of statement under section 313 Cr.P.C., the accused stated that the construction work was stopped due to some dispute with the complainant regarding the material to be used in the construction and that the complainant had engaged another person for the construction of Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:12:03 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 18 of 32 the site. These contradictory statements at different stages of the trial cast a serious doubt on the defence of the accused. Thus, this argument of ld. Counsel is, in the opinion of this court, devoid of any merit and appears to be an afterthought at the stage of final arguments only.
21. Ld. Counsel for the accused has also argued that the construction agreement Ex. CW-1/1 does not mention the date on which the advance amount was given and that the amount mentioned therein is Rs. 22,50,000, and that therefore, this transaction is doubtful. He also argued that the complainant stated in his cross-examination as CW1 that the complainant had paid Rs. 23,00,000/- to the accused 2 to 3 days after execution of the construction agreement Ex. CW1/1 and that as per the agreement this amount has been given before execution of the same.
This argument also holds no merit in opinion of this court as this transaction has already been admitted by the accused. The accused has admitted in his notice framed under section 251 Cr.P.C. that he had received an amount of Rs. 11,00,000/- in cash and Rs. 12,00,000/- by cheque, which was allegedly dishonoured. However, no proof has been placed on record in order to show dishonour of the aforementioned cheque of Rs. 12,00,000/- given by the complainant to the accused. At the stage of recording of statement of the accused under section 313 Cr.P.C., the accused Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:12:21 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 19 of 32 retracted from his admission and stated that he had only received an amount of Rs. 16,00,000/- in cash from the complainant as advance for the said construction. The amount claimed in the cheque in question is also Rs. 16,00,000/-. The accused has been making contradictory statements at different stages of the trail in this regard. Ld. Counsel for the accused is trying to create a doubt on this transaction, whereas it is evidently clear that this transaction had in fact taken place according to the admissions made by the accused as discussed above. Moreover, the case of the complainant has been consistent in other major aspects. In the present matter, since the factum of receiving the amount as advance has been admitted by the accused as discussed above, this court is of the view that in light of the other facts and circumstances of the present case, the inconsistency regarding date of advance money is not so major in order to be fatal to the case of the complainant. Thus, in the opinion of this court, this argument of ld. Counsel for the accused also appears to be an afterthought at the stage of final arguments only, and therefore, holds no merit.
Reference in this regard can be made upon the judgment of the Hon'ble Supreme Court of India in the case titled Rajesh Jain Vs. Ajay Singh (Supra), which has also been referred to by Ld. Counsel for the complainant. In this case, the Apex Court held:
"54. Nothing significant has been elicited in the cross-examination of complainant to raise any suspicion in the case set up by the complainant.
Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:12:35 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 20 of 32
Other than some minor inconsistencies, the case of the complainant has been consistent throughout as can be noticed from a perusal of the complaint, demand notice and affidavit evidence. In fact, the signature on the cheque having not been disputed, and the presumption under Section 118 and 139 having taken effect, the complainant's case stood satisfied every ingredient necessary for sustaining a conviction under Section 138. The case of the defense was limited only to the issue as to whether the cheque had been issued in discharge of a debt/liability. The accused having miserably failed to discharge his evidential burden, that fact will have to be taken to be proved by force of the presumption, without requiring anything more from the complainant."
22. Ld. Counsel for accused also argued that when agreement was executed on 17.12.2017, so how did the accused receive a cheque from the complainant on 11.05.2017 which is approximately 7 months before the agreement and that it means complainant and accused had entered into an oral agreement before 17.12.2017.
In this regard, this cheque was never placed on record at any stage of the trial by the accused. At the belated stage of final arguments, after taking several adjournments for leading final arguments on the ground of non-availability of the main counsel for the accused, the accused had moved an application under Section 311 Cr.P.C. to place on record a copy of the above- mentioned cheque in order to create a doubt on the execution of the said construction agreement. However, this application was dismissed by a separate order on the ground that the execution of the said agreement has already been admitted by the accused and that the applicant/accused had failed to show why this copy of Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:12:41 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 21 of 32 the cheque was not placed on record at an earlier stage or why this application was not moved at an earlier stage. Moreover, he had only annexed a copy of the said cheque and no proof regarding dishonour of the same or date of presentation of the same was annexed along with the said application.
He also argued that the space of date of the abovementioned advance payment has been left as blank in the said construction agreement Ex. CW-1/1 and that the court can assume existence of a prior oral agreement from this fact.
In this regard, this argument does not hold sufficient merit in order to rebut the presumptions raised under Section 118 and 139 of the NI Act in light of factual matrix of the present case as documentary evidence will hold precedence over any other evidence and the written construction agreement Ex. CW1/1 has already been placed on record. The accused has not placed any evidence on record in order to contradict the same. Mere submissions are not sufficient in order to rebut the aforesaid presumtpions. Moreover, even if existence of a prior oral agreement is presumed, this fact, in the opinion of this court, will not be fatal to the case of the complainant since the subsequent written agreement is already on record and parties can always enter into a subsequent agreement by mutual consent. In such cases the subsequent agreement will prevail. Moreover, the factum of execution of the written agreement and receiving Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:12:49 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 22 of 32 ₹23,00,000/- has already been admitted by the accused in his notice framed under section 251 Cr.P.C. as discussed above. The accused retracted from the above admission later at the stage of recording of statement under section 313 Cr.P.C. and stated that he had received only Rs. 16,00,000/- in cash from the complainant as advance. Now, at the stage of final arguments, ld. Counsel for the accused is trying to create a doubt on the whole transaction, whereas this fact has already been admitted by the accused. This argument also appears to be an afterthought at the stage of final arguments only. These facts create a serious doubt on the defence of the accused, and therefore, this court is of the opinion that the accused has failed to rebut the presumptions raised under Section 118 and 139 NI Act.
23. Ld. Counsel for the accused also argued that the complainant and the accused had entered into a written construction agreement on 17.12.2017 for security purposes only.
In this regard, it has been admitted by the accused in the present case that he had entered into the agreement for constructing the house of the complainant, and he has not mentioned anywhere that the said agreement was entered into for security purposes as has been argued by Ld. counsel for the accused at the belated stage of final arguments. Moreover, no evidence to show the same has been placed on record by the accused. This is also a mere submission at the stage of final Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:12:57 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 23 of 32 arguments only. Therefore, in view of the same, this argument holds no merit in the opinion of this court and same appears to be an afterthought at the stage of final arguments only.
24. Ld. Counsel for the accused also argued that the witnesses to the construction agreement Madan Rohilla and Chander Mohan have not been made witnesses by the complainant in the present case while it was mandatory for the complainant to do so in order to prove her case beyond reasonable doubt.
In this regard, the execution of the said construction agreement, as discussed above, has already been admitted by the accused. Therefore, these witnesses were not required to be examined since the execution of the said construction agreement is not in dispute. Therefore, non-examination of these witnesses will not prove fatal to the case of the complainant.
25. Ld. Counsel for the accused argued that the accused had started the work of construction as per the oral agreement and that he had done the work amounting to Rs. 23,95,425/- in total, details of which have been provided in tabular form under para 9 of this judgment in accordance with th written arguments filed by ld. Counsel for the accused.
In this regard, the accused has neither produced any Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:13:05 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 24 of 32 evidence on record in order to show how this amount has been arrived at, nor has he placed on record any evidence which shows the accomplishment of the above-mentioned work. It is a settled preposition of law that mere denial is not sufficient to rebut the presumption raised under Section 118 and 139 of the NI Act. Reference can be made to Judgment of Apex Court in Rohitbhai Jivanlal Patel Vs. State of Gujarat [(Crl.) 1883 of 2018], in which it was held:
"16. On the aspects relating to preponderance of probabilities, 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 nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, 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."
Therefore, in view of the above discussions, this argument also hold no merit in the opinion of this court.
26. Ld. Counsel for the accused also argued that the complainant has failed to reveal which term and condition of the said construction agreement has not been complied by the accused. He also argued that the complainant has not mentioned on which date the above said agreement has been breached and that it is also not mentioned that when the complainant had approached the accused in order to return the advance money and that it is also not mentioned that on which date the accused had Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:13:15 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 25 of 32 started construction work and when the accused had stopped the construction and why. He also argued that according to the complaint, the complainant and the accused sat for settlement of the present dispute wherein the cheque in question dated 28.01.2019 was issued in favour of the complainant that is 13 months after execution of the written construction agreement and that this fact creates a doubt as why would the accused agree for settlement 13 months after execution of the said agreement. He also argued that the date of the settlement has not been mentioned by the complainant anywhere in his complaint.
In this regard, the court is of the opinion that the accused has failed to discharge the initial burden of proof put upon him by virtue of Section 118 and 139 of the NI Act, and therefore, merely because the above-mentioned dates and details have not given by the complainant, this fact will not be fatal to the case of the complainant without any evidence to the contrary on record. In such cases, wherein the presumptions lie in favour of the complainant, the complainant is not bound to prove such facts until and unless these presumptions have been rebutted by the accused. Once execution of the cheque by accused is admitted or has been proved by the complainant, the presumptions under Sections 118(a) and 139 of the NI Act have to be compulsory raised and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, once the accused Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date:
2024.03.01 15:13:40 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 26 of 32 proves that the cheque was not issued for consideration or in discharge of any legally recoverable debt or liability. In regard to the date of settlement being 13 months after date of the construction agreement, parties can settle a dispute at any time of their mutual convenience. No adverse inference can be drawn from the fact that the settlement was arrived at after one, two or even three years after a dispute. Therefore, this argument also is devoid of any merit in the opinion of this court and appears to be an afterthought at the stage of final arguments only.
Reference can be made upon the judgment of the Hon'ble Supreme Court of India in the case titled Rohitbhai Jivanlal Patel Vs. State of Gujarat (Supra), in which the apex court had held:
"17. In the case at hand, even after purportedly drawing the presumptionunder Section 139 of the NI Act, the Trial Court proceeded to question thewant of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevantwitnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence."
Reliance can also be placed upon the judgment of the Hon'ble Supreme Court of India in the case titled Rajesh Jain Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:13:51 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 27 of 32 Vs. Ajay Singh (Supra), in which the apex court had held:
"47. The accused has neither replied to the demand notice nor has led any rebuttal evidence in support of his case. The case set up by him needs to be drawn from the suggestions put during the cross examination and from his reply given in the statement recorded under Section 313 of Cr.P.C."
In light of the case law laid down in the above mentioned judgments , it is apparent that it was incumbent upon the accused to rebut the presumption by leading evidence in favour of his defence. The accused has not led any evidence in his defence or at any other stage of the trial. Also, as discussed in the above paragraphs, the accused has also failed to raise a probable defence from the facts of the case sufficient enough to rebut these presumptions. Also, there are no relevant suggestions put during cross-examination of the complainant in order to set up an appropriate defence. The accused evidently has been making contradictory statements at different stages of the trial in order to escape his liability and has failed to prove his defence of the discharge his evidential burden. Therefore, in light of the above dicta, the case of the complainant stands proved by force of the presumptions raised under Section 118 and 139 of the NI Act. Thus, this argument of ld. Counsel for accused is also bereft of any merit and it appears to be an afterthought at the stage of final arguments only.
27. The Apex Court in Sampelly Satyanarayana Rao v Indian Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:13:59 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 28 of 32 Renewable Energy Development Agency Limited, Crl App. No. 867/16, DoD 19.09.2016, also held as follows:
"We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability"
occurring in Section 138 of the Act. We are of the view that the question whether a post-dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise."
Thus, the legal position which emerges is that regard must be had to the nature of the transaction as well as whether a crystallized and ascertained debt or liability exists on the date of the cheque, and the same has to be examined on the basis of facts and circumstances of each case.
28. In the present case, the cheques in question were given return the advance money given by the complainant to the accused for execution of the construction agreement in dispute. As discussed above, the accused has failed to show any repayment of the aforesaid advance amount to the complainant or to dispute the existence of liability to the tune of amount of the cheque in question on the date of the cheque in question. In view of the above dicta, it is clear that the cheque in question is for the crystallized and established liability, towards repayment of loan, existing on date of cheque, and the dishonor of the cheque would invite action under Section 138 NI Act. Mere submission that the cheque in question was handed over as blank signed security Digitally signed by AZAD AZAD SEHRAWAT SEHRAWAT Date: 2024.03.01 15:14:06 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 29 of 32 cheque to the complainant is not sufficient to rebut the statutory presumptions without producing any evidence in respect of the same.
29. The accused has also denied the receipt of the legal demand notice. However, it is worth noting that the address of the accused as mentioned in the legal demand notice is the same address as that mentioned in his bail bonds as well as copy of aadhar card filed along with application filed for the cancellation of NBWs dated 20.11.2021 i.e. H.No. 36, Sector 106, Near Animal Hospital, Daultabad (53), Gurgaon, Haryana-122006. The address mentioned by the accused in his notice framed under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C is 1711, Daultabad, Gurgaon. The accused has not brought on record any evidence to show that he was not residing at the above address at the time of service of the legal demand notice. The address mentioned on the legal demand notice is the same address as that mentioned in his bail bonds as well as copy of aadhar card filed along with application filed for the cancellation of NBWs dated 20.11.2021. The above shows that the legal demand notice was sent at the correct address of the accused. Once the notice is proved to be sent by post to the correct address of the accused, then the presumption under section 27 of The General Clauses Act, 1897 arises and it shall be presumed, unless contrary is proved, that the notice sent to address of the accused was delivered to him/her. In M/s Darbar Digitally signed by AZAD SEHRAWAT AZAD Date: SEHRAWAT 2024.03.01 15:14:13 +0530 Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 30 of 32 Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on the correct address. In the light of the same, the legal demand notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service of the legal demand notice upon him.
As such, the legal demand notice stood served upon the accused but no payment was made despite the service nor any reply was sent to the same. In Rangappa v. Mohan (supra), the Apex Court held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
30. Moreover, as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, If the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance. Digitally signed by AZAD SEHRAWAT AZAD Date:
SEHRAWAT 2024.03.01
15:14:20
+0530
Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 31 of 32
31. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complainant disclosed the existence of a legally enforceable debt or liability with the aid of the cheque in question, return memo and the legal demand notice brought on record. However, the accused failed to rebut the presumption in favour of the complainant either on the basis of other material available on record or by adducing any cogent defence evidence. There is sufficient material on record to conclude that the complainant has successfully proved his case beyond reasonable doubt.
32. Accordingly, the accused Sunil Dutt s/o Dayanand Sharma, is convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
33. Let the convict be heard on quantum of sentence.
34. Copy of Judgment be supplied to the convict free of cost.
Digitally signed
by AZAD
AZAD SEHRAWAT
SEHRAWAT Date: 2024.03.01
15:14:27 +0530
ANNOUNCED IN THE (AZAD SEHRAWAT)
OPEN COURT. METROPOLITAN MAGISTRATE
TODAY i.e 01.03.2024 DWARKA COURTS/ DELHI
Deepa vs. Sunil Dutt CC No.12287/2019 Page no. 32 of 32