Delhi District Court
Shishir Kumar Sharma vs . Iramya Developers Pvt. Ltd. & Ors Cc No. ... on 15 December, 2020
IN THE COURT OF MR. MRIDUL GUPTA, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No. DLSW02-028845-2018
CC No. 26630/2018
Sh. Shishir Kumar Sharma
S/o Sh. Devki Nandan Sharma
R/o # 1704,Nishant CGHS Ltd.,
7th Floor, Plot No.5, Sector,19B,
Dwarka, New Delhi-110075.
............Complainant
Versus
1. Iramya Developers Pvt. Ltd.
Office at : Plot No.42, Sector-13
Dwarka, New Delhi.
2. Vikram Sarin
Office at: A-7, Priya Apartment,
Vikas Puri, New Delhi-110018,
Also at: # 138, C-Block, Vikas Puri,
New Delhi
3. Ishita Sharma
Office at: A-7, Priya Apartment,
Vikas Puri, New Delhi-110018,
Also at: # 138, C-Block, Vikas Puri,
New Delhi (Not summoned)
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 1 of 10
Digitally signed
MRIDUL by MRIDUL
GUPTA
GUPTA Date: 2020.12.15
14:47:21 +05'30'
(3) Date of institution of case : 25.07.2018
(4) Date of conclusion of arguments: 07.12.2020
(5) Date of Final Order : 15.12.2020
(6) Final Order : Convicted
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 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that accused no.1 is a private limited company and is into the business of construction and accused no. 2 and 3 are managing directors of accused no.1. It was alleged that complainant agreed to buy one housing unit admeasuring 1550 sq.ft. In housing society project of accused, for an amount of Rs. 1.25 Cr. The parties entered into MOU and complainant gave two cheques of Rs. 15,00,000/- each to the accused persons which were duly encashed. As per MOU, it was agreed that, if construction does not commence from December 2017, the entire amount would be refunded with 6% interest per annum. When the construction did not commence, the complainant asked for refund of his money and in discharge of the said liability of refund of Rs. 30,00,000/-, the accused persons issued two cheques i.e. cheques in question bearing no. 368875 and 36876 both dated 01.04.2018 amounting to Rs. 15,00,000/- each, both drawn on Citi Bank NA, Delhi to complainant, with an assurance of their encashment. The complainant presented the cheques in his account maintained at ICICI Bank, Sector-11, Dwarka, New Delhi, which were returned with the remarks "Funds Insufficient" vide bank return memos dated Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 2 of 10 MRIDUL Digitally signed by MRIDUL GUPTA GUPTA 14:47:39 +05'30' Date: 2020.12.15 14.06.2018. Thereafter, complainant served a legal notice dated 02.07.2018 upon the accused through his counsel demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/A. He reiterated the contents of complaint and placed on record, MOU with accused persons as Ex. CW-1/1 (OSR) and Ex. CW-1/2 (OSR), original cheques bearing no. question bearing no. 368875 and 368876 both dated 01.04.2018 amounting to Rs. 15,00,000/- each, both drawn on Citi Bank NA, Delhi as Ex. CW-1/3 and Ex. CW-1/4, cheque returning memos dated 14.06.2018 as Ex. CW-1/5 and Ex. CW-1/6, legal demand notice dated 02.07.2018 as Ex. CW- 1/7, receipts of speed post as Ex. CW-1/8 and tracking reports as Ex. CW-1/9 (colly).
4. Upon appreciation of pre-summoning evidence, accused no.1 and 2 only were summoned for an offence punishable under Section 138 of the Act. Accused no. 3 was not summoned. Accused no. 2, Vikram Sarin also appeared as AR and Managing Director of accused no.1 company. Notice under Section 251 Cr.P.C. for this offence was framed upon accused persons through Vikram Sarin on 27.07.2019 to which he pleaded not guilty and claimed trial. He admitted his signatures on the cheques in question and also filling in all the details in the same. He also stated that complainant had invested an amount of Rs. 30,00,000/- in a housing society project run by accused no.1 company. However, the project got delayed due to time taken for approval from DDA. He further stated that it was agreed that the amount invested by complainant would be refunded to him. He gave cheques in question to the complainant towards the refund of amount paid by him. However, cheques could not be honoured due to the financial difficulty of accused company. He also stated that he had already paid Rs. 7,00,000/- to complainant after filing of the present case. He had also entered into settlement afresh with the complainant and he needs some more time to make the payment.
Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 3 of 10 Digitally signed MRIDUL byGUPTA MRIDUL GUPTA Date: 2020.12.15 14:47:46 +05'30'
5. Thereafter, it was noted that in the notice U/s 251 Cr.P.C, accused had merely pleaded not guilty and had taken no specific defence. Accused had admitted his liability qua the amount of cheques in question and also issuance of cheques in question towards the said liability. No plea of defence was disclosed by the accused. Therefore, in view of the decision of the Hon'ble High Court of Delhi in Rajesh Aggarwal Vs. State & Anr., Crml. MC No. 1996/2010, DOD 28.07.2010, the right of accused to cross examine the complainant was closed vide court order.
6. Thereafter, statement of accused under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which accused reiterated the stand taken by him in answer to notice U/s 251 Cr.P.C. He admitted entering into the MOUs with the complainant as well. He stated that he had repaid of Rs. 12,50,000/- to the complainant after filing of present case. He sought some time to make the remaining payment to the complainant.
7. In his statement, u/s 313 Cr.P.C accused stated that he wanted to lead DE. However, accused did not examine any witness despite repeated opportunities for the same. Considering the said conduct of accused and also that he was habitually irregular in appearance before Court, right of accused to lead defence evidence was closed vide Court Order dt. 12.03.2020.
8. Thereafter, matter was listed for final arguments. It was argued by the 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 Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused admitted his signatures on the cheques and also filling in details in the same 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 accused never gave reply to the legal demand notice. He also argued that the accused admitted to issuance of Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 4 of 10 MRIDUL Digitally signed by MRIDUL GUPTA GUPTA 14:47:56 +05'30' Date: 2020.12.15 cheques in question towards refund of money owed to the complainant. He argued that accused admitted that he had not made any repayment except in mediation after filing of present case. It was argued that accused failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused be convicted for the offence under Section 138 of the Act.
9. Despite grant of several opportunities, Ld. Counsel for accused did not advance final arguments or file any written submissions. Thereafter, vide detailed order dated 07.12.2020, right of accused to lead final arguments was closed vide Court Order.
10. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
11. 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 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.
Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 5 of 10 MRIDUL Digitally signed by MRIDUL GUPTA GUPTA 14:48:06 +05'30' Date: 2020.12.15
12. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part 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".
13. For the offence under Section 138 of the 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].
14. 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 Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 6 of 10 MRIDUL Digitally signed by MRIDUL GUPTA GUPTA 14:48:14 +05'30' Date: 2020.12.15 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 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 aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
15. The accused persons admitted the factual position as put by the complainant. The accused persons admitted that complainant invested Rs. 30,00,000/- in housing society project of accused company and it is also admitted that they entered into MOUs Ex. CW-1/1 and Ex. CW-1/2. It is also admitted that due to delay in delivery of project, it was agreed that amount invested would be returned to complainant and that cheques were given in discharge of said liability of refund of amount to complainant. The only defence taken by the accused as brought out from his statement U/s 313 Cr.P.C, is that the cheques could not be honored due to financial difficulty of accused company and that he had repaid Rs. 12,50,000/- to the complainant after filing of present case. He sought some time to make the remaining payment to the complainant.
Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 7 of 10 Digitally signed MRIDUL byGUPTA MRIDUL GUPTA Date: 2020.12.15 14:48:24 +05'30'
16. However, the said version as put forth by the accused does not bring out any credible defence whatsoever. Once the issuance of fully filled up cheques, in discharge of legal liability is admitted, mere financial hardship cannot be a ground to escape the liability. As discussed above, on basis of these statements, it was also noted that accused had taken no specific defence and in view of the decision of the Hon'ble High Court of Delhi in Rajesh Aggarwal Vs. State & Anr., Crml. MC No. 1996/2010, DOD 28.07.2010, the right of accused to cross examine the complainant was closed vide court order. Moreover, the accused did not lead any defence evidence to throw any doubt on case of complainant, nor could he reveal any ground to cross-examine the complainant.
17. In present case, accused persons have admitted existence of liability to the tune of amount of cheques in question on the date of cheques in question, as discussed above. In this regard it is also pertinent to note that any payment made by accused persons to complainant after filing of present case, in pursuance of mediation or otherwise, cannot operate to the prejudice of case of complainant as far as the merits of the case are concerned. Thus it is clear that the cheques in question are for the crystallized and established liability, towards repayment of amount, existing on date of cheques, and the dishonor of the cheques would invite action under Section 138 NI Act.
18. The accused persons have also denied receipt of legal demand notice under section 138 of the Act. However, it is worth noting that the address of the accused no. 1 company as mentioned in legal demand notice is the same as the address of accused no. 1 in the admitted MOU, Ex. CW-1/2, i.e. Plot no. 42, Sector-13, Dwarka, Delhi. Moreover the address of accused no. 2 Vikram Sarin as mentioned in the legal demand notice is also the same as his address in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C and his bail bonds i.e. C-138, Vikas Puri, New Delhi. Moreover the accused has not brought on record any evidence to show that he was not residing at above address at time of legal notice. The above shows that legal notice was sent at correct address of both accused no. 1 and accused no. 2. Once the legal notice is Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 8 of 10 MRIDUL Digitally signed by MRIDUL GUPTA GUPTA 14:48:33 +05'30' Date: 2020.12.15 proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him. In M/s Darbar 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 correct address. In the light of the same the legal 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. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply 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.
19. 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.
20. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused persons were 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 vide the cheque in question, return memo, legal notice and other documents brought on record. However the accused has failed to rebut the presumption in favour of complainant either on the Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 9 of 10 MRIDUL Digitally signed by MRIDUL GUPTA GUPTA 14:48:43 +05'30' Date: 2020.12.15 basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
21. Accordingly, the accused no. 1 Iramya Developers Pvt. Ltd. and accused no. 2 Vikram Sarin are convicted for the offence under Section 138 of Negotiable Instruments Act, 1881.
22. Let the convicts be heard on quantum of sentence.
23. Copy of Judgment be supplied to the convicts free of cost.
MRIDUL Digitally signed by
MRIDUL GUPTA
GUPTA 14:48:55 +05'30'
Date: 2020.12.15
ANNOUNCED IN THE OPEN COURT (MRIDUL GUPTA)
TODAY i.e. 15th DECEMBER 2020 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Shishir Kumar Sharma vs. Iramya Developers Pvt. Ltd. & Ors CC No. 26630/2018 Page no. 10 of 10