Delhi District Court
Cc No. 6615/17 Amarjeet Singh vs . Jolly Goswami Page No. 1 Of 20 on 11 February, 2020
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE - 07, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
CC No. 6615/17
Old CC No. 458/2/17
IN THE MATTER OF :
Amarjeet Singh
R/o 1853C/10, Govind Puri Ext.,
Kalkaji, New Delhi.
.......................Complainant
VERSUS
Jolly Goswami
R/o 52/56, Ground floor,
C.R. Park, New Delhi.
................... Accused
OFFENCE COMPLAINED OF : 138 NI ACT
PLEA OF ACCUSED : PLEADED NOT GUILTY
DATE OF INSTITUTION : 07.06.2017
CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 1 of 20
DATE OF RESERVING ORDER : 04.02.2020
FINAL ORDER : ACQUITTED
DATE OF PRONOUNCEMENT : 11.02.2020
JUDGMENT
1. The present complaint was filed by Amarjeet Singh [hereinafter referred to as 'Complainant'] against Jolly Goswami [hereinafter referred to as 'Accused'] under Section 138 of Negotiable Instruments Act, 1881 ['NI Act'].
2. It is the case of the complainant that in the year 2010, accused had taken flat on second floor of property bearing no. 1853C/10, Govind Puri Extn., Kalkaji, New Delhi110019 on rent from the complainant and a rent agreement to this effect was executed between the parties from time to time. It is averred that the accused had resided at the aforesaid premises till May 2015 and the last rent was Rs. 16,000/ per month. It is averred that till April 2013, CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 2 of 20 accused had paid the rent but thereafter, she became irregular and started defaulting in payment of rent. It is averred that a total sum of Rs. 2 lacs remains due and outstanding towards the rent amount. It is averred that in discharge of the aforesaid liability, complainant claims that the accused issued one cheque bearing no. 312176 dated 10.03.2017 for Rs. 2 lacs. However, the said cheque was dishonored on being presented for payment and therefore the present complaint was filed by the complainant against the accused. The details of the aforesaid cheque is as follows :
TABLE A S. Cheque Cheque Date Amount filled Cheque drawn Reasons for No. Number in cheque(s) on dishonour of (in Rs.) cheque(s)
1. 312176 10.03.2017 2,00,000/ IDBI Bank, Funds Chittranjan Insufficient Park, New Delhi110019
3. The aforesaid cheque was returned unpaid vide return memo dated 21.03.2017. It may be noted that a legal notice dated 21.04.2017 was sent to the accused for recovery of the said cheque but in vain and the present complaint was preferred against the accused.
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4. Pre - summoning evidence was led. Complainant stepped in the witness box as CW1. He substantiated the averments made in the complaint and relied upon the following documents :
TABLE B Sl. No. Documents Exhibit given 1 Rent agreement dated 01.06.2010 Ex. CW1/1 2 Cheque bearing no. 312176 dated Ex.CW1/2 10.03.2017 for Rs. 2 lacs 3 Cheque return memo dated 21.03.2017 Ex. CW1/3 4 Legal notice dated 21.04.2017 sent to the Ex.CW1/4(colly) accused along with the postal receipt 5 Reply of legal notice dated 08.05.2017 sent Ex.CW1/5 (colly) by accused through her counsel 6 Complaint u/s. 138 of NI Act Ex.CW1/6 7 Affidavit in evidence Ex.CW1/A
5. On the basis of the pre summoning evidence, accused herein was summoned and notice u/s. 251 CrPC was served upon the accused in which she pleaded not guilty and she claimed that she had issued the cheque in question to the complainant and all the particulars therein except the amount (in words and numbers) was not filled by her. She further claimed that they were tenants of the complainant herein and at that time the cheque in question was given as security.
She claimed that after termination of tenancy, all the dues were cleared and they shifted to another accommodation. She further CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 4 of 20 claimed that they were tenants of complainant in 2010 and shifted therefrom in 2012. She further claimed that she has no liability towards the complainant. In other words, accused denied any liability towards the complainant whatsoever.
6. Thereafter the complainant stepped in the witness box as CW1 and has adopted his pre summoning evidence. He was thoroughly cross examined by counsel for the accused. Complainant has not produced any other witness other than him and thereafter complainant's evidence stood closed. Thus the matter was listed for statement of accused in compliance of mandate of Section 313 Cr.P.C.
7. The accused was examined u/s. 313 CrPC wherein she reiterated the same facts as claimed by her at the time of framing of notice u/s. 251 CrPC upon her. The accused preferred to lead defence evidence and had examined herself as DW1.
8. DW1 deposed that they were tenants of the complainant and at that time the cheque in question was given as security and the same has been misused. She further deposed that after termination of tenancy, all the dues were cleared and they shifted to another CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 5 of 20 accommodation. She further deposed that she has no liability towards the complainant. DW1 relied upon the documents as under: TABLE C Sr. Documents Exhibit No. Given 1 Copy of rent agreement dated June 2013 between Shakuntala Ex. DW1/A Babbar and the accused qua property bearing no. L1/145C, LIG, DDA flats, Kalkaji, Delhi for the period 01.04.2013 to 28.02.2014 2 Copy of Aadhar card of accused with address L1/145C, LIG, DW1/B DDA flats, Kalkaji, Delhi 3 Copy of DL of her husband J.K. Goswami with address L Ex. DW1/C, 1/145C, LIG, DDA flats, Kalkaji, Delhi 4 Copy of gas receipt of Kalkaji gas service dated 05.12.2013 with Ex. DW1/D address L1/145C, LIG, DDA flats, Kalkaji, Delhi 5 Copy of rent agreement between Sonia Kirori and Joydeep Ex. DW1/E Goswami having address pocket 52/56, ground floor, CR Park, New Delhi dated 06.04.2015 6 Bank account statement of account bearing no. Ex. DW1/F 0632104000034469 with IDBI bank having address of the (06 pages). accused as L1/145C, LIG, DDA flats, Kalkaji, Delhi CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 6 of 20 DW1 further deposed that her husband had given the cheque in question to the complainant for security for any damages. She further deposed that when the said cheque was asked to be returned, the complainant told that he has misplaced the said cheque and since 2013, they were not even in touch with the complainant and only in 2017, when the Court summons came, they became aware of misuse of cheque in question.
9. The aforesaid witness was cross examined by the counsel for the complainant.
10.Thereafter, vide separate statement, accused closed her defence evidence. Thus, matter reached the stage of final arguments.
11.Arguments heard. Record perused.
12.As per record, complainant claims to be the exlandlord of the accused. As per him, the cheque in question was given to him by the accused as rent. It is his case that he had given his property bearing no. 1853C/10, Second floor, Govind Puri Extn., Kalkaji, New Delhi19 on rent to the accused in the year 2010. He claimed that accused stayed in the said property till May 2015. As per him, CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 7 of 20 from May 2013 till May 2015, a total sum of Rs. 3,83,200/ was payable by the accused as rent. He claimed that the accused only paid a sum of Rs. 1,83,200/ and the outstanding amount of Rs. 2 lacs was cleared by the cheque in question.
13.It is pertinent to note that the cheque in question was given in March 2017 by the accused to the complainant. In support of the said contention, complainant had himself stepped in the witness box as CW1 and reiterated the aforesaid facts.
14. A bare perusal of the aforesaid testimony of the complainant shows that even though the complainant alleged that the accused had not paid an amount of Rs. 2 lacs from May 2013 till May 2015, he has not given any bifurcation of how much amount was payable by the accused to him for the said months or any calculation to indicate as to how he has claimed that the said amount is payable by the accused. Infact, complainant has claimed that a sum of Rs. 3,83,200/ was purportedly payable as rent by the accused to him for the period May 2013 till May 2015 but, he has not indicated the rate of rent payable for each month during the aforesaid period CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 8 of 20 or any other calculation to explain how he arrived at the said amount.
15. Again, as per the complainant, all rent were paid in cash and there appears to be no accounts/record maintained by the complainant qua any payments received by the complainant from the accused. If that be the case, it is not clear from the record as to how the complainant alleged that a sum of Rs. 1,83,200/ had been paid by the accused and a sum of Rs. 2 lacs was still payable. In other words, the fact that a sum of Rs. 2 lacs was due and payable by the accused to the complainant is based on an oral averment of the complainant and there is no documentary backing to the said claim. The entire claim is based on a calculation which is not even explained in the record or even clarified at the stage of arguments. Atleast, none of the sort has been placed on record by the complainant.
16. I shall come to the aforesaid point in a little while. At this stage, it may be noted that as per the complainant, accused had occupied his property till May 2015. But this fact was vehemently contested by the accused. She has specifically stated that she was CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 9 of 20 the tenant of the accused from 2010 till March 2012. It is her specific case that she had already vacated the property of the complainant in and around March 2012 and had cleared all the dues of the complainant payable by the said date. It is also her case that since she had already vacated the property of the complainant in and around March 2012, the allegation of pending dues of Rs. 2 lacs from May 2013 till May 2015 are completely false.
17. Now, since the accused has admitted her signatures on the cheque in question, a rebuttable presumption was raised against her under section 139 NI Act to the effect that the cheque in question was given in discharge of a legally enforceable liability or debt. Now, it is settled law that the said presumption could be rebutted by the accused either during the cross examination of the complainant's witness or by leading independent evidence.
18. In my opinion, the presumption raised against the accused has been rebutted by her in both ways. Not only during the cross examination of CW1/complainant various facts have come on record which creates a shadow of doubt qua the complainant's case, but also, the accused has herself stepped in the witness box to further show that CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 10 of 20 nothing is payable by her to the complainant or possibly the case set up by the complainant is not believable.
19. In this regard, I may come back to the aforesaid point qua the calculation of Rs. 2 lacs claimed to be due and payable as pending rent from the accused. A specific query was put to the complainant during his cross examination on 06.07.2019 to explain as to how he claimed a sum of Rs. 2 lacs as being payable to him. Complainant simply claimed that the accused paid him till 2013 and thereafter till 2015, accused only paid Rs. 1,80,000/ to him. He claimed that for period between 2013 till 2015, Rs.3,80,000/ was due and payable by the accused to him and thus, as per him, Rs. 2 lacs were payable by the accused to him.
20. Now, he does not indicate as to how he reached the figure of Rs. 3,80,000/ as payable rent between 2013 till 2015. Neither the exact bifurcation of the rate of rent for the said period is given in the affidavit in evidence Ex. CW1/A nor the same is explained by the accused during her cross examination on 06.07.2019 or on any other date. He also does not indicate as to how much money was purportedly paid short (for each month) by the accused to the CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 11 of 20 complainant between 2013 till 2015. It is not clear from the record as to whether there was a short payment of rent every month or did the accused default in payment of rent in certain specific months only. Despite a specif query being put to the counsel for complainant during arguments, no answer was forth coming from the complainant in this regard. As already noted, a bald and vague statement has been made by the complainant qua the outstanding due of Rs. 2 lacs from the accused without any documentary proof whatsoever. In fact, no explanation was offered even on a specific query of the Court to explain or clarify as to how the complainant has calculated the aforesaid outstanding of Rs. 2 lacs.
21. In the usual course of things, presuming for the sake of argument, that the accused was actually defaulting in payment of rent for certain months or was paying less rent than the amount actually agreed every month, possibly, for his own memory, the complainant should have maintained some rough account of such payments so as to allow him to record as to how much money was actually paid by the accused and how much was still due and the period thereof. Without such rough accounts or rough record being maintained by the complainant, it is extremely difficult for any human being, CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 12 of 20 including the complainant, to remember the amount paid or payable by his tenants. Nothing of the sort appears to have been done in the present case which casts a shadow of doubt on the case being set up by the accused or the veracity of the claim of outstanding payment of Rs. 2 lacs.
22. At this stage, it may be noted that during the cross examination of the complainant, it has come on record that accused was not the sole tenant of the complainant and he had other tenants in the same property. If that be the case, it is even more reasonable to expect that the complainant should have kept a rough account or record of payments made by different tenants to him for his own memory. This became even more necessary because the complainant used to receive all rent in cash. This cash payment should have been entered in some rough record or ledger account for memory purposes. Alteast it was reasonable to expect the compainant that he was maintaining such a record. Even though, no such record is before this Court and thus the only inference that can be drawn from the facts before this Court is that either no such records were maintained or the same have not been produced before this Court. In either scenario, at the very least, it was expected of the CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 13 of 20 complainant to have explained his calculation of claiming Rs. 2 lacs as outstanding rent for the period May 2013 till May 2015. When he was specifically asked about the same, he only offered a vague and bald assertion stating that he has to receive Rs. 2 lacs from the accused and did not elaborate on it. In my opinion, this failure on the part of the complainant raises much doubt about the claim made by him and deprives this Court of the opportunity to see as to whether the claim of Rs. 2 lacs being set up by the complainant is actually true or not.
23. The matter does not rest here. The alleged shortfall in the rent amount paid by the accused is stated to be for the period May 2013 to May 2015. As per the complainant's own case, the accused purportedly vacated the property in question in May 2015. The cheque in question herein is dated 10.03.2017. Now, presuming the aforesaid facts to be true, for the sake of argument, it is very surprising that the complainant allowed the accused to vacate his property in May 2015 without clearing the outstanding rent. Again, it is also very surprising that from May 2015 till March 2017, he did not even bother to give a single legal notice demanding payment for the said amount. He simply claims to have CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 14 of 20 orally asked the accused for payment. No explanation is forthcoming from the record on the part of the complainant in this regard.
24. In fact, during the cross examination of the complainant, he admitted that he did not send any legal notice demanding payment of rent till March 2017. In fact, he further admitted in his cross examination dated 08.01.2019 that he never took any written acknowledgement from the accused qua the outstanding rent amount at any point of time. Both the aforesaid facts again raises grave doubt on the case being set up by the complainant.
25. It is highly unlikely that a landlord shall sit quietly for a very long period of time without demanding his rent and shall do nothing about it. In this case, for the period between May 2013 till May 2015 (when purportedly the accused was staying in the property of the complainant and was continuing to pay less rent than the agreed sum) and thereafter from May 2015 till March 2017 (when the accused had already vacated the property), the complainant has not even bothered to send one legal notice demanding payment or take any steps qua the recovery of the outstanding amount. This is more CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 15 of 20 so when the issue of limitation for recovery of payment may also have been playing on the mind of the complainant (with the default of rent being purportedly continuing from May 2013).
26. At this stage, it may further be noted that for the legal demand notice sent by the complainant Ex. CW1/4, a reply notice Ex. CW1/5 was also sent by the accused specifically stating that she had already vacated the property of the complainant in March 2012 itself. Thus, as per record, the accused had denied the claim of the complainant at the very first instance when she replied to the aforesaid legal notice demanding payment from her. She has categorically stated in Ex. CW1/5 colly (through her lawyer) that she had already vacated the property of the complainant in March 2012 and had paid all her dues till the said date. In fact, she went on to say that after vacating the property of the complainant in March 2012, she shifted to H.No. L1/145/C, LIG DDA flats, Kalkaji, Delhi. She stated therein that she occupied the said property till March/April 2015 and thereafter shifted to a new address i.e. H.no. 52/56, ground floor, CR Park, New Delhi (where legal demand notice was served on her).
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27. Now, in support of the aforesaid contention, she herself stepped in the witness box and had also proved on record various documents described above in Table C. It is her specific case that she had vacated the property of the complainant in March 2012 itself and thereafter she went to another address in Kalkaji and in March/April 2015, she shifted her address to CR park, Delhi. Various documents including her Aadhar card, bank account statement for the aforesaid addresses are also on record in support of her said contention.
28. Now, only a rebuttable presumption is raised against the accused under section 139 NI Act and on the touchstone of preponderance of probability, a probable defence was required to be raised by the accused to escape liability under section 138 NI Act. If I consider the testimony of the accused as DW1, in my opinion, she has raised a full proof defence in her favour and has specifically shown that she had shifted from the property of the complainant in March 2012 itself. Various documents placed by her, on record, ( as per Table C above) also corroborate her case in this regard. Thus, in my opinion, the testimony of the accused not only rebuts the presumption raised against her but also completely demolishes CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 17 of 20 the case of the complainant qua the occupation of the property of the complainant by the accused from May 2013 till May 2015. it may be noted that nothing has come up from the cross examination of the accused to disbelieve the facts stated by her. She has successfully stood the test of cross examination and has emerged unscathed.
29. It may be noted that the complainant had placed on record a written rent agreement between the parties of the period June 2010 and June 2011 (Ex. CW1/1 (colly) but surprisingly no rent agreement for the period May 2013 till May 2015 was filed by him. If the complainant was cautious to have a written rent agreement for June 2010 and June 2011, possibly the same caution should have been exercised by him till May 2015 (till when the accused purportedly occupied his property). In other words, for the period 2012 to 2015, some rent agreement should have been entered between the complainant and the accused or should have been filed before this Court to conclude as to whether the accused had actually occupied his property during the said period or not. The same is not on record which again casts a long shadow of doubt on the case of the complainant.
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30. On the contrary, the accused has brought before this Court various documents detailed in Table C above including rent agreement Ex. DW1/A and Ex. DW1/E which shows that the accused was residing at property bearing no. L1/145B, LIG DDA flats, Kalkaji, Delhi from April 2013 onwards; and again at property bearing no H. No. 56/52, ground floor, CR Park, New Delhi from April 2015 onwards. These documents clearly show that the case set up by the complainant qua occupation of his property by the accused from May 2013 till May 2015 is completely false or is hard to believe.
31. As far as the question of the complainant having possession of the cheque is concerned, the accused has explained that the same by claiming that the same was taken by the complainant as security from her husband. The said cheque was not returned by the complainant to the accused despite vacation of the property by the accused. Even though, it would have been prudent of the accused to have demanded the return of the said cheque, in writing, from the complainant at the time of vacation of his property, still considering the evidence on record, I am not inclined to accept the case of the complainant. The reasons of the same have already been recorded in the body of this judgment. In my opinion, not only the evidence CC No. 6615/17 Amarjeet Singh vs. Jolly Goswami Page no. 19 of 20 of the complainant is extremely weak qua his explanation of the outstanding rent but also his claim of occupation of his property between May 2013 till May 2015 by the accused appears to be false. The accused has successfully raised a credible defence qua her liability and thus, in my opinion, she is entitled to be acquitted in this case. The presumption raised against her is successfully rebutted and in my opinion, complainant has failed to prove his case beyond reasonable doubt. Accordingly, accused is acquitted for the offence punishable under section 138 NI Act.
Digitally signed by AASHISH GUPTA AASHISH Date:
GUPTA 2020.02.11
16:49:23
Announced in the Open +0700
(Aashish Gupta)
Court on 11th day of February, 2020 MM(South East)07
Saket, New Delhi
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