Delhi District Court
Inderjeet Singh vs . Gurdeep Singh on 27 July, 2022
IN THE COURT OF MS. MEDHA ARYA
MM (N.I. ACT-03) SOUTH-WEST: DWARKA COURTS: NEW DELHI
CNR No.DLSW02-017593-2017
Ct. Case No.12924/2017
PS: Janakpuri
U/s.138 N.I. Act.
INDERJEET SINGH VS. GURDEEP SINGH
Date of Institution of case: 04.07.2017
Date of which Judgment reserved: 25.07.2022
Date on which judgment pronounced: 27.07.2022
JUDGMENT
1) Unique ID no. of the case : DLSW02-017593-2017
2) Name of complainant : Inderjeet Singh
S/o Sh. Diddar Singh
R/o G-78, Sant Nagar Extn.
Tilak Nagar,
New Delhi-110018.
3) Name and address of accused : Gurdeep Singh
S/o Sh. Khajan Singh,
R/o. Plot No.WZ-9, Vishnu Garden
New Delhi
4) Offence complained of : Section 138 N.I. Act
5) Plea of accused : Accused pleaded not guilty and
claimed trial
6) Final Order : Convicted for the offence punishable
U/s.138 N.I. Act
7) Date of order : 27.07.2022
Pg. 1 of 20 C.C. No.12924/2017
BRIEF REASONS FOR DECISION
Attempt of the accused to show crevices in the case of the
complainant can be equated with the task of feeding a fed horse. The accused did not even offer a cogent explanation of how the cheque in question possibly came in possession of the complainant, did not challenge the latter's version on material aspects-as to his role in the construction of the building of a portion of which the complainant was purportedly an intending purchaser etc, and hoped to secure his acquittal by dwelling on inconsequential inconsistencies in the case of complainant. In this quest, he failed and is thus, convicted.
1. It is the case of the complainant that he entered into an agreement-cum- receipt, to purchase a property bearing the address WZ-9, 1 st floor (without roof right), Meenakshi Garden, New Delhi from the accused, as per the collaboration agreement dated 24.06.2014, for a total sale consideration of Rs.45,00,000/-. The said receipt was executed on 19.10.2014, and under this agreement, Rs.20,00,000/- was paid by the complainant to the accused. It is further the case of the complainant that the possession of the said property was, however, never handed over to him by the accused, and finally towards repayment of this amount, the accused issued the 'cheque in question', i.e. the cheque bearing number 176731 drawn on Axis Bank Ltd. dated 05.05.2017 amounting to Rs.20,00,000/- in favour of the complainant. To the utter shock and Pg. 2 of 20 C.C. No.12924/2017 dismay of the complainant, however, the cheque in question, when presented for encashment, was dishonoured vide return memo dated 08.05.2017 with the remarks 'Account Closed'. The complainant then served a legal notice dated 19.05.2017 upon the accused, but despite the due receipt of the same and expiry of 15 days thereafter, the accused failed to make the payment of the amount of the cheque in question to the complainant, constraining the complainant to approach this court by way of the above- captioned complaint.
2. The complainant was examined u/s.200 Cr.P.C, after a preliminary scrutiny of the complaint. At this stage, he tendered his evidence affidavit Ex.CW1/A. The contents of the same are not being reproduced herein in the interest of brevity, the same being a reiteration of contents of the complaint. CW1 also placed reliance on the following documents: -
(i) Ex.CW1/1 being the receipt/agreement dated 19.10.2014,
(ii) Ex.CW1/2 being the cheque bearing no.176731 dated 05.05.2017 in sum of Rs.20,00,000/-,
(iii) Ex.CW1/3 being the cheque return memo dated 08.05.2017,
(iv) Ex.CW1/4 being the Legal Demand Notice dated 19.05.2017,
(v) Ex.CW1/5 & CW1/6 being the postal receipts both dated 19.05.2017, Pg. 3 of 20 C.C. No.12924/2017
(vi) Ex.CW1/7 being the returned envelope &
(vii) Ex.CW1/8 being the internet generated tracking report accompanied with Certificate under Section 65-B, Indian Evidence Act.
Upon consideration of the pre-summoning evidence, scrutiny of documents, and after hearing the complainant on the point of summoning, the accused was summoned to face the trial.
3. After the accused entered appearance, the notice of the accusation against him under Section 251 Cr.P.C was formally served upon him. The accused pleaded not guilty to the offence alleged against him, and claimed trial. He stated that the cheque in question bears his signatures, but he had not issued the same in favour of the complainant. He further stated that the account on which the cheque in question has been drawn was closed three years prior to the date on which the same was presented for encashment by the complainant. He also denied the receipt of legal notice.
Pg. 4 of 20 C.C. No.12924/2017
4. The application of the accused under Section 145(2) N.I. Act was allowed vide order dated 16.05.2018, and the accused was granted the permission to cross-examine the complainant's witnesses.
5. At the stage of C.E., the complainant took the witness stand as CW1. He adopted his pre-summoning evidence at this stage, placing reliance on the evidence affidavit already exhibited as Ex.CW1/A, and the documents already exhibited as Ex.CW1/1 to Ex.CW1/8.
During his cross-examination, he deposed that he and the accused have worked with each other for around three years. When the complainant was queried with respect to his financial capacity, he deposed that in his ITR pertaining to F.Y. 2013-2014, he disclosed his income to be Rs.3.5 to Rs.4 lakhs per annum approximately, and stated that he can produce the ITR on the record. He further deposed that he has not disclosed the amount of Rs.20,00,000/- given by him to the accused in his ITR for the relevant period. He further deposed that he had met the accused for the first time at the shop of a property dealer, namely Kulvinder Singh, in the year 2013. He deposed that the property with respect to which the agreement was executed belong to one lady, but was unable to specify the name of the woman. He accepted the suggestion that no collaboration has been filed on the record by him, and also accepted the suggestion that the receipt Ex.CW1/1 does not reflect the name of any lady. He stated that the accused had shown to him the collaboration agreement in Pg. 5 of 20 C.C. No.12924/2017 the month of April, 2014, but expressed his inability to specify the exact date of the said collaboration agreement. He deposed that when he had entered into the said agreement with the accused, the building was under construction. CW1 further deposed that he had paid the amount of Rs.20,00,000/- to the accused in instalments, but he does not remember the amount of each of such installments. However, he volunteered that he has the complete record pertaining to the same, and if required he can produce the same in the court. He deposed that he must have paid the first installment of Rs.1,00,000/- to the accused in April, 2014, but does not remember the exact date thereof. He also deposed that he has the original copy of the collaboration agreement, which was executed between him and the accused. He further deposed that when he had paid the first installment of the consideration amount, the agreement to sell was not executed between the parties, as the building was still under construction, and the construction was scheduled to be completed only after 1.5- 2 years after the date of the said collaboration agreement. He further deposed that the Agreement /Receipt Ex.CW1/1 was prepared in October, 2017, but after looking into his Counsel's files without the permission of the court, he changed his answer to the year 2014. He accepted as correct the suggestion that he did not file any complaint against the accused even when he came to know that the said property was sold to a third person in the year 2016, and also accepted as correct the suggestion that the agreement to sell in the respect of the said property does not bear his signatures. He deposed that the building out of which he wanted to purchase consists of four floors apart from stilt parking. He again deposed that although he had not taken the receiving of accused qua Pg. 6 of 20 C.C. No.12924/2017 the payment of installments made by him, he can produce the record of such installments. CW1 deposed that the agreement Ex.CW1/1 was executed after the payment of the last installment of Rs.20,00,000/-, and the cheque in question was given to him by the accused after the payment of this installment. He denied the suggestion that the receipt Ex.CW1/1 is a forged and fabricated document, and also denied the suggestion that no such agreement had taken place between him and the accused. He further denied the suggestion that the cheque in question was taken by him from the possession of the accused without his knowledge, and has been misused by him. After being cross-examined thus, CW1 was discharged as a witness.
6. No other witnesses were examined by the complainant, and CE was closed consequent to his statement to this effect which was recorded by the court on 09.05.2022.
7. Thereafter, the statement of the accused was recorded under Section 313 Cr.PC. All the incriminating evidences and materials appearing against him during the course of trial were put to the accused, who was given an opportunity to explain the same. At this stage, he stated that the agreement Ex.CW1/1 does not bear his signatures, and no agreement of sale/purchase had ever taken place between him and the complainant. He also stated that the cheque in question is drawn on a bank account which he had closed three years prior to the date mentioned on the same. He denied Pg. 7 of 20 C.C. No.12924/2017 the receipt of legal notice, but admitted that it bears his correct address. He opted to lead D.E. in the affirmative.
8. The proceedings in the case were accordingly adjourned for recording of D.E. However, on the next date of hearing, the accused made statement before the court to the effect that he does not wish to lead D.E. in affirmative on 12.07.2022. Accordingly, D.E. was closed.
9. Thereafter, final arguments were heard on part of both the parties. At the stage of final arguments, the accused also relied on the following judgements:-
(i) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde; S.C. 1325;, S.C. 1327, S.C. 1329, S.C. 1331 Crl. A. No.518/2006 and
(ii) M.S. Narayana Menon @ Mani Vs. State of Kerala and Anr.
(2006) 6 S.C. 39, Crl. A. No.1012/1999 dt. 04.07.2006.
The record of the case has been meticulously perused in the light of the same. Considered.
10. It would be apposite at this stage to briefly the discuss law applicable to the offence of dishonour of cheque. The legal S.138 N.I. Act, is that before a finding Pg. 8 of 20 C.C. No.12924/2017 of conviction for the offence punishable under Section 138 N.I. Act can be returned against the accused, it has to be established, cumulatively:-
(i) that the cheque in question was issued by the accused in favour of the complainant for the discharge of a legally enforceable liability.
(ii) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheque; and
(iv) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.
This court shall now examine if the four ingredients as described in the foregoing paragraph have been satisfied in this case.
11. The cheque in question was dishonoured on account of the fact that the accused had already closed his account on the date that the cheque in question was presented. It is not in dispute that the cheque in question has been drawn on a bank account that was earlier maintained by the accused. Reliance can be placed on NEPC Micon Ltd. v. Magma Leasing Ltd., (1999) 4 SCC 253 and Laxmi Dyechem v. State of Gujarat, (2012) 13 SCC 375 to hold that the offence punishable under Section 138 Pg. 9 of 20 C.C. No.12924/2017 N. I. Act is attracted even when the cause of the dishonour of the cheque in question is that the account on which it was drawn had been closed by the accused. Accordingly, this court is of the opinion that condition number (ii) above stands satisfied.
12. The accused took the defence of non-receipt of statutory legal demand notice, but with very little sincerity. The complainant had deposed as CW-1, during his examination-in-chief, that the legal notice was served by him upon the accused via registered AD, at his correct address. To substantiate this testimony, the complainant relied upon the documents Ex.CW1/5 and Ex.CW1/6 being the speed post receipts as well as the return envelope Ex.CW1/7, which contains the endorsement 'left'. Now, the address mentioned on the envelope is the same address adduced by the complainant on the record, on which the process of the complaint was received by the accused. Further, the same address was furnished by the accused on his bail bonds. The veracity of the address on which the legal notice was sent to the accused stands established. By virtue of Section 114 of the Indian Evidence Act, 1872, and Section 27 of the General Clauses Act, a presumption can thus be raised that the legal notice was duly served upon the accused. No evidence to rebut such presumption was brought on the record by him. Merely giving a suggestion to the complainant that he had not received the legal notice is not sufficient to establish the non-receipt of legal notice. Infact, by giving this suggestion, the accused has himself admitted the case of the complainant that the legal notice was sent by him at his correct address. In view of the Pg. 10 of 20 C.C. No.12924/2017 fact that the requirement of Section 138 N. I. Act is that the complainant has to send a legal demand notice to the correct address of the accused, not that the same has to be received by the latter, the requirement of service of legal notice has been substantially complied with by the complainant.
Further, even if it is believed that legal notice was not received by the accused, it is apparent from the record that even after receiving the summons, the accused had sufficient opportunity to pay the amount of cheque in question to the complainant, but didn't. The requirement of service of legal notice has been thus substantially complied with. At this juncture, this court seeks guidance from the law laid down by the Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555.
Thus, conditions no.(iii) and (iv) above also stand satisfied, as it is matter of record that the accused had due notice of the pendency of present proceedings, despite which he did not pay the amount of cheque in question to the complainant.
13. The formalistic hurdles out of the way, it now remains to be examined if the cheque in question was issued by the accused in favour of the complainant in discharge of a legally enforceable liability.
Pg. 11 of 20 C.C. No.12924/2017
14. At this stage, regard has to be given to Section 139 N.I. Act, which provides that if the maker of the cheque admits his signatures on the same, a presumption shall arise that the cheque in question has been received by the holder in discharge of any debt or liability. Section 118 of the same enactment is also to be referred here, which provides for a presumption that every negotiable instrument, in the hand of a holder in due course, has been made for consideration. In the case at hand, the accused has admitted his signatures on the cheque in question, though not the transaction detailed by the accused. Once the foundational fact that the cheque in question contain the signatures of the accused stands established, the presumption under Section 139/118 of Negotiable Instruments Act can be raised against accused.
15. It is trite that the presumption that has been raised against the accused is rebuttable in nature. The effect of the presumption is that the journey of the trial in this case, after a presumption is raised against the accused, shall begin from the vantage point of the accused who is required to prove that the cheque in question was not issued by him in favour of the complainant towards the discharge of any legally enforceable liability. To achieve this purpose, the accused can either take the witness stand and prove his defence in the affirmative, on a scale of preponderance of probabilities or he can show sufficient gaps in the case of the complainant, so as to create a reasonable doubt in the mind of the court regarding the version of the Pg. 12 of 20 C.C. No.12924/2017 complainant. The factual matrix of the case shall be examined through the person and the legal position enumerated above.
16. In the case at hand, the accused did not bring on record any evidence in the affirmative. At the cost of reiteration, it is a settled position of law that to dislodge the burden stacked against him by virtue of Section 139/118 of the Act, the accused is not required to bring on record evidence in the affirmative, and he can rely on the evidence brought on the record by the complainant, to either prove his case in the affirmative, or perforate the case of the complainant, to display to the court that the same does not pass the scrutiny of viability. The accused has only to create a reasonable doubt in the mind of the court in this regard, and does not have to prove his defence beyond any reasonable doubt. In the considered opinion of this court, however, the accused has failed to plug any loophole in the case of the complainant-
(i) Denial of the execution of the collaboration agreement and receipt Ex.CW1/1:-
The accused denied the existence of any collaboration agreement between the parties. He also denied his signatures on the receipt Ex.CW1/1. However, no evidence was brought on record by the accused to prove that the receipt Ex.CW1/1 does not bear his signatures. The accused could have sought the forensic examination of this document to prove this version. He could have also examined the testifying witness to the document, to prove that he did not execute the document. But not to be. Mere, bald Pg. 13 of 20 C.C. No.12924/2017 denial of the signatures cannot be considered to proof of non execution of the document. The fact that the signatures of this receipt do not tally with the signatures of the accused on the cheque in question cannot be considered enough proof of the fact that this document has not been signed by the accused. The divergence in the two signatures can be explained by the simple fact that the accused used a different set of signatures on the receipt Ex.CW1/1.
The accused argued that once he denied his signatures on the receipt, it became incumbent on the complainant to prove that the same bore his signatures. This argument can easily be set at a naught, by bearing in mind the fact that initial onus in this case was upon the accused. Through direct evidence, or circumstantial evidence, the accused ought to have first probabalised his version that he didn't sign the receipt. This was not done, and the onus remained undischarged. As such, the complainant was not required to prove the receipt and its due execution by the accused, merely because the accused blatantly denied his signatures on the same.
(ii) Non-filing of collaboration agreement:-
The accused argued that the fact that the complainant did not place on record the collaboration agreement, and only contended himself by placing on record the receipt Ex.CW1/1, is a major loophole in the case of the complainant. This argument does not find favour with this Court. At the cost of repetition, a trial for an offence punishable under section 138 N. I. Act is premised on the theory of reverse onus of proof, and cannot be equated with a civil suit for recovery, where the plaintiff is Pg. 14 of 20 C.C. No.12924/2017 required to prove his case first, on a balance of probabilities. Such being the legal position, the onus was first upon the accused to discharge the burden of proof placed upon him by virtue of Section 139 N.I. Act. Until the same was done, the complainant was not required to place on record any such document. In any event, CW1 deposed that he has the original copy of the collaboration deed in his possession. The fact that the accused did not ask for the production thereof in the cross-examination is also a circumstance that has to be weighed against the accused.
(iii) Payment of Rs.20 Lakhs not proved:-
The accused raised an argument to the effect that the complainant has not proved his assertion that he had paid Rs.20 lacks to him. Reliance was placed on the testimony of CW1 to the effect that he had not disclosed this amount in his ITR for the relevant period. It is a well settled position of law that non disclosure of a transaction in the ITR, although the same may amount to an infraction of the Income Tax Act, is not in any way a circumstance, the benefit of which accrues in favour of the accused. Reliance at this juncture reliance can be placed on the judgment passed by Hon'ble High Court of Delhi in case titled Bir Singh vs Mukesh Kumar AIR 2019 SC 2446.
It was also argued that the complainant had not elaborated either in the complaint, or in the legal notice or in the evidence affidavit, that he had paid the sum of Rs.20 lakhs to the accused in tranches, and this fact was disclosed only during the cross-examination of complainant. Even this fact does not show this court to the unbelievability of the case of the complainant. The instant complaint being premised Pg. 15 of 20 C.C. No.12924/2017 on the theory of reverse onus of proof, and the complainant having in his possession a cheque in question duly signed by the accused was enough for him to move the court by way of the instant complaint. It was first incumbent upon the accused to explain under what transaction did the cheque in question come in possession of the complainant. It is only subsequent to that the complainant would have been required to prove his case beyond reasonable doubt. In the case at hand, the accused could not prove that he is not the executant of the receipt Ex.CW1/1. Further, when trying to contest the version of the complainant, the entire focus of the accused was to bring on record the fact that the complainant probably did not have an entire idea of the previous ownership of the property which he wanted to purchase. The cross- examination of CW1 in this regard is instructive. CW1 was asked several questions as to the date of the execution of the agreement, the date on which the instalments was purportedly paid by him to the accused, the name of the previous owner, the date on which he came to know that the property which was promised to him was sold ultimately by the accused to a third person. However, during the cross-examination of the complainant, the accused never took the defence that he had no connection with the property, or that he was not raising the construction thereof under a collaboration agreement. Not even a suggestion to this effect was put to the complainant by the accused. At this juncture, this court seeks guidance from the law laid down by the Hon'ble Supreme Court of India in Sarwan Singh & Ors. vs State Of Punjab AIR 1976 SC 2304, to hold that failure to cross-examine the complainant on these material points is a circumstance which damages the case of the accused further. In the cross-
Pg. 16 of 20 C.C. No.12924/2017 examination the complainant on this point, the accused is deemed to have admitted that he was indeed involved in the construction of the property bearing the address WZ9, First Floor, Meenakshi Garden, New Delhi. A receipt reflecting the payment of Rs.20,00,000/- under an agreement to sell one portion of this property, purportedly executed between the complainant and the accused, was placed on record, and relied upon by the complainant. This receipt has not been disproved by the accused. There is thus evidence of overwhelming nature of the fact that such an agreement to sale had indeed been executed between the parties, and that the accused had indeed received Rs.20,00,000/- from the complainant.
(iv) Other discrepancies:-
Minor inconsistencies and inconsistencies in the testimony of the complainant, such as he not being able to specify, before looking into the case file, that the receipt Ex.CW1/1 was executed on which date, or not specifying in the examination-in-chief that he had paid Rs.20,00,000/- to the accused not in a single installment, but in tranches are not sufficient to discredit the case of the complainant.
The fact that CW-1 deposed that he came to know the accused through Kulvinder Singh, and then stated later that they worked together for 3 years, does not appear to be a contradiction, contrary to what was argued by the accused. The time phrase when they worked together is not elaborated, and it appears to be probable that the two worked together, after becoming acquainted through Kulvinder. In any event, it was the defence taken by the accused that his cheque was taken by the complainant Pg. 17 of 20 C.C. No.12924/2017 out of his possession without his permission. The accused could have benefited from the testimony of the complainant that both the parties worked together, by bringing on record some evidence to show that the cheque was also taken out of his possession by the complainant. However, the accused failed to do so.
Similarly, the inability of the complainant to specify the name of the previous owner of the property, especially when he has specified that address of the same the portion with which he was concerned is also not a circumstance on the basis of which it can be held that the accused has discharged the burden of proof placed upon him by virtue of section 139/118 N. I. Act. The version of the complainant is that the agreement had taken place with the accused, and further that the property was never given to him. In such a circumstance, it is not an outlandish factor that the complainant forgot the name of the owner of the property, which the accused was constructing under a collaboration deed. The argument of the accused to the contrary is also repelled. The accused could not give a cogent explanation of how to cheque in question came in possession of the complainant. A suggestion was given to the complainant that he had taken the cheque out of the possession of the accused without his knowledge. Yet the accused chose to not file any FIR, a complaint or even issue stop payment instructions with respect to the cheque in question is also a telling fact. These circumstances bring on record the falsity of the claim of the accused. The accused stated that he did not execute the receipt under which the payment was purportedly made to him by the complainant. However, neither the witnesses mentioned on the receipt were called on the record, nor the original owner of the Pg. 18 of 20 C.C. No.12924/2017 property was summoned as a witness by the accused to prove that there was no collaboration agreement as detailed by the complainant with respect to the property. In view of this, the minor inconsistencies in the testimony of CW1 do not advance the case of the accused.
(v) Case of complainant not expounded clearly:-
Ld. Counsel for the accused argued that the liability of the accused has not been expressed explicitly by the complainant, in as much as the complainant failed to clearly elaborate in the complaint that the accused was liable to repay to him the amount of Rs.20,00,000/-, in lieu of non-construction of the property, against which he had received the said payment from the complainant. This argument is also repelled by this court. When read as a whole, the complaint is found to be detailing unambiguously and clearly the contours of the liability of the accused, under which the cheque was purportedly issued by him in favour of the complainant. The argument seems to be only a last-ditch effort, and is unable to lead the case of the accused anywhere.
17. The attempt of the accused to dispel the burden of proof stacked against him by virtue of Section 139/118 N.I. Act, by proving his defence on the basis of the material brought on record by the complainant, and by plugging loopholes in the case of the latter, proved to be a wild goose chase. Having failed to dispel the burden of proof placed upon him by virtue of Section 139/118 N.I. Act, the accused Gurdeep Pg. 19 of 20 C.C. No.12924/2017 Singh S/o Sh. Khajan Singh is for the offence punishable u/s138 N.I. Act with respect to the cheque in question.
Let a copy of the judgment be provided to the convict free of cost. Let the convict be now heard on the point of sentence.
Digitally signed by MEDHA
MEDHA ARYA
ARYA Date:
2022.07.28
15:28:23 +0530
Announced in open Court on (MEDHA ARYA)
of 27th day of July, 2022 M.M. (N.I. Act-03), South-West,
Dwarka Courts, New Delhi
Pg. 20 of 20 C.C. No.12924/2017