Delhi District Court
Supreme Court In Rangappa vs . S. Mohan Decided On 07.05.2010: on 28 March, 2022
IN THE COURT OF SH. ANUJ KUMAR SINGH
MM-02 (NORTH-WEST DISTRICT), ROHINI COURTS, DELHI
CC No.1746/16
Sh. Deepak Nihalani
S/o Sh. Vasdev Nihalani
R/o AB-48, Shalimar Bagh,
New Delhi. ......Complainant
Versus
Sh. Ankush Sharma
C/o M/s. Nine 75 Restaurant
At D-49, First Floor, Kamla Nagar, New Delhi.
Also at 1744, Sohan Ganj, Ram Gali, New Delhi. .........Accused
Date of Institution : 20.02.2016
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 28.03.2022
Date of Decision : 28.03.2022
Final Order : Convicted / Held Guilty.
Judgment:
Vide this judgment, I shall dispose of the present complaint filed u/s 138
N.I. Act. Before going further, it is necessary to dwell upon the brief facts of
the case.
Brief Facts:
1. It is alleged by the complainant in his complaint that the accused was having partnership business relations with one Sh. Vishu Yadav S/o Sh. Virender Yadav R/o B-4/26, Sector-15, Rohini, Delhi-85 under the name and style of M/s. Nine 75 Restaurant situated at Kamla Nagar, New Delhi and accused verbally dissolved the said partnership business on 15.09.2014 and a dissolution deed was executed between accused and said Sh. Vishu Yadav vide e-stamp no. IN DL-17112366128379M and accused proposed the complainant to became a partner by investing an amount of Rs.23,50,000- in aforesaid restaurant business by showing greenery and lucrative opportunites. Due to explicit requests, complainant got agreed to invest and paid aforesaid amount and agreed to become a partner in the same out of which Rs.3,00,000/- had been paid by the complainant to the landlord namely Sh. Shivark S/o not known At shop no.2F, Kamla Nagar, Delhi-7 as security deposit to be paid to him and accused got executed a partnership deed dated 30.09.2014 vide e- stamp no.16612258476354M with complainant in this regard duly Notarized at Notary Public, Tis Hazari Courts, Delhi and started doing the partnership business in the name and style of M/s Nine 75 situated at Kamla Nagar, New Delhi.
2. It is further alleged in the complaint that contents of clause 3 of aforesaid partnership deed are reproduced herein as "that already the First Party (accused) has invested Rs.47,00,000/- as capital in the running business (including Rs.6,00,000/-) as security deposit amount being paid to the landlord and contents of clause 11 of aforesaid partnership deed are reproduced herein as "In case of dissolution of partnership firm due to any dispute/clashes between both the parties then First Party (accused) shall return the aforesaid entire amount ie. Rs.23,50,000/- only) invested by Second Party (complainant) at the time of joining of aforesaid business and the present partnership firm would come to an end and First Party shall run the same as per his own wish and manner and if the dissolution of present partnership firm is due to non running of restaurant business then all amount generated after disposing of all the assests of the firm shall be divided equally between both the partners.
It is further alleged that from the very begining complainant worked hard for whole day upto late night with full devotion in order to run the aforesaid restaurant business and accused was coming to the shop from 09:00 PM to 12:00 AM, however complainant never raised any objection to this, but later on when on an average profit of Rs.10,000/- to Rs.15,000/- per day started coming out then accused started picking up quarrels with complainant on very trivial issues and started showing his intentions to dissolve the partnership.
3. It is further alleged that in the end of March, 2015, accused demanded additional capital of Rs.15,00,000/- from complainant on pretext of adding more fixtures and fittings alongwith taking Liquor License/MCD License/Fire Safety License, then complainant refused to pay the same on which accused picked up quarrel and created a scene and orally dissolved the aforesaid partnership business and in order to dipose off his liability of Rs.23,50,000/-, accused paid Rs.10,00,000/- in cash and directed the complainant to get Rs.3,00,000/- refundable security deposit from the landlord, and handed over a cheque bearing no.000053 dated 25.09.2015 amounting Rs.5,00,000/- drawn on Bank of Baroda, Jawahar Nagar, Delhi to the complainant Ex.CW1/C . It is further alleged that on presentation of the said cheque by the complainant with his bank namely Bank of India, Shalimar Bagh, New Delhi, the same returned back unpaid with the remarks "Funds Insufficient" vide returning memo dated 27.10.2015 Ex.CW1/D. Thereafter, the complainant issued a Legal Demand Notice dated 14.11.2015 Ex.CW1/E vide registered post demanding the cheque amount. Receipt of the courier and post is Ex.CW1/F. However, the accused failed to make the payment within the statutory period after receiving the legal demand notice. Hence, the complaint is filed.
4. Complainant filed his pre-summoning evidence. Considering the same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused was summoned u/s 138 NI Act. On his appearance, the accused was granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr.P.C stating substance of accusation was served upon the accused on 11.11.2016 to which he pleaded not guilty and claimed trial.
Complainant Evidence:
5. Complainant stepped into the witness box as CW1 by tendering his evidence by way of an affidavit Ex.CW1/1. In his affidavit complainant has reiterated the same facts as that mentioned in his complaint.
Statement of accused u/s 313 Cr.PC r/w 281 Cr.PC:
6. In his statement accused denied taking loan of Rs.5,00,000/-. Accused admitted issuing the cheque no.000053 dated 25.09.2015 but submitted cheque was given to the complainant but it was not given for repayment of any loan. Accused denied receiving legal notice and submitted that he had vacated the premises. It is further submitted by accused that he was falsely implicated in the present case. The cheque in question was given as a blank signed cheque.
Defence Evidence:
7. Accused did not lead any defence evidence and opportunity to lead defence evidence was closed vide order dated 24.02.2020.
Reasons for Decision:
8. Before proceeding further, it would be appropriate to quote the Hon'ble Supreme Court in Rangappa vs. S. Mohan decided on 07.05.2010:
"Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act."
9. On notice being served under section-251 Cr.PC, accused Ankush Sharma pleaded not guilty and claimed trail.
However, accused had failed to take any steps for the cross examination of the complainant or to lead defence evidence. Opportunity was accordingly closed.
10. The prosecution for the Offence U/s 138 NI Act is primarily based upon documentary proof and involves a reverse onus clause.
Discussion on Legal provisions:
11. It is well settled that there are certain mandatory presumptions of law under the Negotiable Instruments Act. Such presumptions may be summarized in the following manner:
Section-118 of Negotiable Instruments Act reads as under:
"118. 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;"
Presumptions are:
i. Cheque was drawn for consideration;
ii. Cheque was transferred for consideration; iii. Cheque was accepted for consideration.
12. Section-139 of Negotiable Instruments Act reads as under:
"139. 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."
Presumptions are:
i. Holder of the cheque has lawfully received the cheque, meaning thereby that the holder was in lawful possession of the cheque;
ii. The cheque was given in discharge of any debt or liability; iii. Legally enforceable debt or liability was in existence at the time of issuance of the cheque; (contrary view has been overruled by the three judges bench of Hon'ble Supreme Court in Rangappa vs S. Mohan decided on 07.05.2010). iv. The cheque was of the nature as described in section-138; v. The cheque was drawn by the person who was maintaining the account the cheque;
vi. Amount of money mentioned in the cheque was intended to be given;
13.. Section-146 of Negotiable Instruments Act reads as under:
"146. Bank's slip prima facie evidence of certain facts.- The court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
Presumptions are:
i. The cheque has been dishonoured;
ii. The cheque has been so dishonoured for the reason mentioned in the Section-27, General Clauses Act reads as under:
"27. Meaning of service by post - Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Presumptions are:
i. Letter has been served upon the accused;
ii. The same is served within the normal reasonable time; iii. The content of the letter was within the knowledge of the accused. (Decision of Hon'ble Supreme Court if India in Harcharan Singh vs Shiv Rani & Ors. AIR 1981 SC 1248).
14. In case titled Gurpreet Singh Vs. M/s. Ranbaxy Laboratories Ltd. & decided on 02 August, 2010, Hon'ble High Court of Delhi has observed that:
"The Legislature has specifically made offence under Section 138 of the Negotiable Instruments Act as a summary trial and once the accused is summoned, he has to state his plea and state his defence in terms of Section 263 (g) read with Section 251 Cr.P.C. The summary trial proceedings can be converted to summon trial case only under two circumstances, firstly when the Court comes to a conclusion that the sentence of one year would be inadequate and it was a case where sentence of more than one year may be required to be awarded, secondly when the MM is of the view for some reason (to be recorded) that the case should be tried as a summon trial. In the present case none of the two things happened. The learned MM did not pass an order as to why the case was to be converted to a summon trial. The learned MM was bound to follow procedure of summary trial and was bound to treat the affidavit and evidence already filed by the complainant on record as the evidence sufficient to convict the accused unless accused had pleaded a tenable defence and accused was prepared to prove the defence".
15. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 (Para. 12) it has been held that:
"Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence.
Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist."
16. However, accused has not brought on record any such facts or circumstances showing the non-existence of liability.
Finding:
17. By the affidavit of complainant, all the exhibited documents stands proved. By virtue of legal demand notice, postal receipts requirement of proviso (b) & (c) appended to section-138 NI Act stands satisfied (presumption of law arising under section-27 General Clauses Act as discussed above stands unrebutted). By virtue of Cheque Returning Memo, dishonour stands proved vide section-146 NI Act. By Virtue of mandatory presumptions of law arising under section-118 and 139 of NI Act, legal liability can be treated as proved. (It is pertinent to mention that the mandatory presumptions extend to the existence of legally enforceable debt or liability. See a three judges bench decision of Hon'ble Supreme Court in Rangappa Vs. S. Mohan decided on 07.05.2010).
18. Accused has not tried to rebut the mandatory presumptions of law arising in favour of the complainant. A mere claim of trial can not be treated as sufficient.
19. From the above discussion, I am of the considered opinion that accused has failed to rebut any of the mandatory presumptions of law arising in favour of the complainant.
20. Hence, after considering all the materials and evidence before it, the court has come to the conclusion that the offence u/s 138 NI Act is made out against the accused and the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused while complainant has been successful in proving her case. Resultantly, this court finds the accused Ankush Sharma S/o Sh K.K. Sharma guilty for the offence punishable U/s 138 N I Act. Therefore, accused stands convicted.
21. Let the convict be heard on the point of sentence.
Announced today in the (ANUJ KUMAR SINGH)
open court on 28.03.2022 MM-02 (North-West District)/Rohini/Delhi
28.03.2022