Delhi District Court
Genesis Educational Foundation vs . Rajesh Berry on 27 June, 2013
1
IN THE COURT OF MR. ANUJ AGRAWAL : METROPOLITAN MAGISTRATE -
01 : (SOUTH EAST) : SAKET COURT : NEW DELHI
Genesis Educational Foundation vs. Rajesh Berry
CC No 819/1
U/s 138 Negotiable Instruments Act
JUDGMENT
(1) Serial number of the case : 819/1
(2) Name of the complainant : Genesis Educational Foundation
4, MMTC/STC Market, Gitanjali,
New Delhi (through its
Authorized Representative)
(3) Name of the accused, Rajesh Berry
parentage & residential address : s/o Mohinder Sain Berry
r/o 269, sector151, Gurgaon,
Haryana
Also at : 53, Babar Road, 2nd Floor
Bengali Market, New Delhi
(4) Offence complained of or proved: 138 Negotiable
Instruments Act
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : Convicted
(7) Date of Institution : 04.03.2006
(8) Date on which reserved : 03.06.2013
for judgment
(9) Date of Judgment : 27.06.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The present complaint was initially filed against two accused, Genesis Educational Foundation vs Rajesh Berry Page 1 of 23 2 namely, Rajesh Berry and Geeta Berry. Vide order dt. 08.01.2008, proceedings against accused Geeta Berry came to be quashed by Delhi High Court and thus the instant case is only against accused Rajesh Berry.
2. Material facts as carved out from the complaint are as follows:
The complainant society is engaged in promotion of education and related activities. In the year 2004 it was looking for land in and around Delhi. Accused, who was running a dental college, namely, Shri Gobind Tricentinary Dental College in Gurgaon and a charitable trust, namely, Dashmesh Educational Charitable Trust, was known to the secretary of the complainant society. When the accused came to know about the complainant society's requirement, he approached the latter and at his instance, following four demand drafts were prepared in the name of respective vendors for purchase of land measuring 86 kanals 14 marla land at Badshahpur, Gurgaon:
S. No. DD No. Date Amount In favour of the vendor
1. 353170 29.05.2004 24,96,000/ Jitender Khatana
2. 353171 29.05.2004 12,97,200/ Jitender Khatana
3. 353172 29.05.2004 12,97,200/ Smt. Kamlesh
4. 353191 31.05.2004 16,96,000/ Harbans Singh Khatana
Accused Rajesh assured the complainant society that the entire 86 kanal 14 marla land would be duly registered in the latter's name through its secretary at the earliest.
Genesis Educational Foundation vs Rajesh Berry Page 2 of 23 3
3. Complainant goes on to aver that in OctoberNovember 2004, it came to its knowledge that accused Rajesh had played fraud with his Trust and the Dental College and consequently he was remanded to judicial custody. On inquiry from SubRegistrar's office at Gurgaon, the complainant society further came to know that cheating, fraud and forgery had been committed by the accused with respect to the land which the former wanted to buy and for which entire consideration was paid through demand drafts. It further came to complainant's knowledge that the accused instead of registering the sale deeds in its favour, illegally registered 54 canal 14 marla land in his wife's name, two parcels of 8 kanal land each in name of two other persons and 16 kanal land in name of Sh. Naresh Garg, the secretary of complainant society. All this was allegedly done without the knowledge and consent of Sh. Naresh Garg.
4. It is averred that accused, after being released on bail, admitted his fraudulent acts/omissions and assured the complainant society that he would either get the entire aforesaid land registered in the name of complainant society or would return the market rate value thereof to its full satisfaction. In this regard, the accused introduced one Sh. Bansal, authorized representative of M/s Active Promoters Pvt. Ltd. to the complainant society and gave an assurance that through him, complainant society's property/money would be Genesis Educational Foundation vs Rajesh Berry Page 3 of 23 4 returned/protected and he would ensure that the entire land i.e. 86 kanal 14 marla would either be registered in the name of the complainant society or the market value thereof as on date would be returned to the complainant society. The said Sh. Bansal, at the instance of accused, entered into an agreement only for 16 kanals of land and the rest of the land i.e. 70 kanal 14 marla was neither registered in complainant society's name nor the market value thereof was paid to it.
5. As per complainant, in the above circumstances, it issued a legal notice dated 09/01/2006 to the accused which was duly served upon him. Accused, pursuant to receiving the said legal notice, approached the complainant society and offered to settle the matter by paying Rs. 6,75,00,000/ as full & final settlement towards the said land. The complainant society accepted the offer.
6. The accused accordingly issued cheque bearing no. 357431 dated 20/01/2006 drawn on United Western Bank Limited, Madangir which was handed over to the secretary of the complainant society with assurance of it being honoured on presentation. Complainant presented the aforesaid cheque in its bank account at United Western Bank, Pushp Vihar for encashment. However, the same was returned dishonoured by its banker with the remarks "Funds Insufficient" vide return memo dated 24/01/2006. Complainant made a demand for Genesis Educational Foundation vs Rajesh Berry Page 4 of 23 5 payment of the said amount by giving a Demand Notice dated 27/01/2006 to accused. Despite service of the statutory notice of demand, the accused failed to make payment of the cheque amount to the complainant within stipulated time. Thus, this complaint under section 138 of Negotiable Instruments Act, 1881 (hereinafter "the Act") against the accused.
7. On 19.05.2006 on being satisfied that the complainant had a prima facie case against the accused, the latter was summoned to face trial for offence U/s 138 of the Act. Accused appeared pursuant to the process issued by the court. On 14/09/2006 particulars of the offence were read over and explained to him, to which he pleaded not guilty and claimed trial.
8. In order to substantiate its case, Sh. Naresh Garg, the secretary of complainant was examined as CW1, Sh. Vinod Tayal, the authorized representative of the complainant society (through whom the present complaint was filed) was examined as CW2 and Sh. Sanjay Lambot, an official from accused's bank was examined as CW3.
9. Examined under section 313 CrPC read with section 281 CrPC on 05/07/2007, accused pleaded his innocence and stated that the disputed cheque was given blank by way of security.
10. Six witnesses were examined in defence evidence. Accused stepped into the witness box as DW1. DW2 was one Sh. P. R. Genesis Educational Foundation vs Rajesh Berry Page 5 of 23 6 Deshpandey, Relationship Manager, IDBI Bank. Sh. Vinod Kumar, Record Keeper, Genesis Educational Foundation, was examined as DW3. DW4 was Sh. Gopal Singh, an official from accounts department, Genesis Finance Company. DW5 was one Sh. Ram Deg, Section Supervisor, MTNL and DW6 Sh. Rajnish Aggarwal.
11. Arguments have been advanced by both the parties at length. It was argued by Ld. counsel for the complainant that from evidence, it stands proved that the cheque in question was signed by accused, which was dishonoured and despite service of legal notice, accused did not make payment of the cheque amount. It was argued that during cross examination of witnesses of complainant, nothing contradictory emerged and the complainant was able to establish its case to the hilt. It has been argued that accused has failed to discharge the burden cast upon him to rebut the presumption.
12. Per contra, in his endeavour to knock down the edifice of complainant's case, Ld. defence counsel vehemently argued that no case was made out against the accused as he was innocent and that the complainant had misused the cheque in question which was given as security. It was further argued that accused successfully rebutted the presumptions against him on the touchstone of preponderance of probabilities.
13. I have heard both the parties at length and perused the record. Genesis Educational Foundation vs Rajesh Berry Page 6 of 23 7
Before entering into factual matrix of the present case, I deem it fit to discuss certain statutory provisions of the Act. Section 118 (a) of the Act provides for presumption visavis consideration for a negotiable Instrument. It reads asunder : "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".
14. Section 139 of the Act provides for presumption in favour of a holder of a cheque. It reads asunder:
"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."
15. Apex court in Rangappa vs. Mohan AIR 2010 SC 1898 observed in para 14 that : "The presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observation in Krishna Janardhan Bhatt (supra) cannot be correct............This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested."
16. Therefore, in view of the statutory provisions and dicta of Apex Court, there is a presumption in favour of holder of the cheque that he received the same for discharge, in whole or in part, of any legally enforceable debt or other liability. It is a well settled principle of law Genesis Educational Foundation vs Rajesh Berry Page 7 of 23 8 that the presumptions available under the Act can be rebutted by the accused by adducing evidence and towards this end he may also rely upon the evidence put forth by the complainant. Onus is squarely upon the accused to rebut the presumptions. The accused can prove the non existence of consideration by raising a probable defence. And if he does so, onus would then shift to the complainant, who has to prove it as a matter of fact and his failure to do so would be fatal to his case.
17. Delhi High Court in V.S. Yadav vs. Reena 172 (2010) DLT 561 has held at para 7 of the judgment that : "In order to rebut the presumption U/sec 139 of N.I. Act, the accused by cogent evidence has to prove the circumstances under which the cheque was issued."
18. I shall now appreciate the evidence brought on record to adjudicate whether the accused has rebutted the statutory presumption on the scale of preponderance of probabilities or whether his guilt stands established.
19. Complainant examined three witnesses in support of his defence. CW1 Sh. Naresh Garg, the secretary of complainant society filed his evidence by way of affidavit Ex. CW1/A and relied upon documents exhibited from Ex. CW1/1 to Ex. CW1/15 and marked documents A to F. In his examinationinchief, he has reiterated the averments as made in complaint by AR Sh. Vinod Tayal.
20. He was crossexamined at length. In his cross examination, he Genesis Educational Foundation vs Rajesh Berry Page 8 of 23 9 deposed that the aforesaid demand drafts were got issued from bank account of the complainant society and the same was also reflected in the balance sheet of society as payment for the land as alleged by the complainant in his complaint. He specifically denied the suggestion that the amount of demand drafts as mentioned in para 5 at serial nos. 1 to 3 belonged to a company and not to the complainant society. CW1 was confronted with photocopy of fax Mark DX to which he replied that he cannot tell about the same as it was a photocopy. He denied the suggestion that the accused had handed over a blank cheque to him which he misappropriated after filling in the details. He denied the suggestion that complainant society had no dealings with the accused. He further denied the suggestion that accused took a loan from Genesis Finance Company (sister concern company of complainant) as per markX.
21. I have gone through the testimony of CW1 carefully. In my considered view, testimony of CW1 in the crossexamination remains intact and inspires confidence of this court. From the cross examination of CW1, Ld. counsel for accused failed to elicit anything which could said to be corroborative to the defence of the accused. As is evident, he denied all the suggestions which were put to him by Ld. defence counsel.
22. CW2 Sh Vinod Tayal also deposed in favour of the complainant Genesis Educational Foundation vs Rajesh Berry Page 9 of 23 10 by way of affidavit Ex. CW2/A wherein he deposed about filing of the instant complaint. He was not crossexamined by Ld. defence counsel.
23. CW3 is Mr. Sanjay Lambot, an official from United Western Bank Limited, branch Pushp Vihar. He was examined in detail and he proved that the joint saving account no. 1018210010339339 was earlier in the name of Ms. Geeta Berry, wife of accused Rajesh Berry and vide separate request letter dated 22/11/2005, Rajesh Berry became joint account holder. He brought on record the account opening form as Ex. CW3/C, request letter dt. 22.11.05 as Ex. CW1/D.
24. After recording his statement U/sec 313 CrPC/281 CrPC, accused led defence evidence and examined himself as DW1. He filed affidavit in his examination in chief wherein he deposed that he never took money from complainant society and cheque in question was given blank as a security to Naresh Garg for M/s Genesis Finance Company bearing his signatures only. He deposed that in the year 2004 he took a loan of Rs. 50,90,400/ from Genesis Finance Company through Naresh Garg for purchase of agricultural land at Badshahpur, Gurgaon. As per accused the said loan was given by Naresh Garg in the form of three Demand Drafts bearing No. 353170 dt. 29.05.2004 for Rs. 24,96,000/ drawn in the name of Jitender Khatana, DD bearing No. 353171 dt. 29.05.2004 for Rs. 12,97,200/ drawn in the name of Jitender Khatana and DD bearing No. 353172 dt. 29.05.2004 for Rs. 12,97,200/ drawn in Genesis Educational Foundation vs Rajesh Berry Page 10 of 23 11 the name of Smt. Kamlesh i.e. vendors of land. He further deposed that a fax Ex DW1/A(Mark DX) dated 05.11.04 was also sent by M/s Genesis Finance Company in this regard. He further deposed that cheque in question was totally blank except his signature and same was later on forged by Sh. Naresh Garg without his consent. During his cross examination, he deposed that as a chairman of Dashmesh Trust he took various loans from Genesis Finance Company, of which Naresh Garg is Director. He further deposed that he did not execute any document i.e. loan agreement, promissory note, mortgage deed with regard to such loan. However, he admitted his signatures on DW1/X1 and DW1/X2 i.e. the documents regarding loan taken from Genesis Finance Company on previous occasions. He further deposed during his cross examination that he did not mortgage any property while taking loan of Rs. 50,90,400/ from Genesis Finance Company. He further deposed that he gave postdated blank cheque for the said loan to Sh. Naresh Garg. He further deposed that loan was to be repaid within five years and rate of interest was 18%. He denied the suggestion that mark DX (Ex. DW1/A) is forged and fabricated document. He further admitted it to be correct that Mr. Naresh Garg did not sign the sale deed with respect of land at Badshahpur, Gurgaon.
25. DW2 Sh. P.R. Pandey is the witness from IDBI Bank who deposed that the four demand drafts bearing Nos. 353171 dated 29.05.2004 of Rs. Genesis Educational Foundation vs Rajesh Berry Page 11 of 23 12 12,97,200/, DD bearing No. 353172 dt. 29.05.2004 of Rs. 12,97,400/, DD bearing No. 353191 dated 31.05.2004 of Rs. 16,96,000/ and DD bearing No. 353170 dated 29.05.2004 of Rs. 24,96,000/ were issued by United Western Bank (since merged in IDBI Bank) of which 3 were issued from accounts of Genesis Education Foundation and fourth one was issued from cash credit account of M/s. Genesis Finance Company.
26. DW3 is Record Keeper from Genesis Society who brought original minute book, income tax returns, audit report, balance sheet etc. of the complainant society on record.
27. DW4 is Sh. Gopal Singh from Genesis Finance Company who brought on record the balance sheet Ex.DW4/1 to Ex.DW4/6 for the year 2004 to 2007.
28. DW5 is Sh. Ramdeg from MTNL whose testimony cannot be read into evidence being incomplete.
29. DW6 is Sh. Rajnish Agarwal who deposed that Mark DX was not received by him. He deposed that he knew Mr. Rajesh Berry as well as Sh. Naresh Garg. During his crossexamination, he deposed that he purchased land in Badshahpur through accused who got the land registered in joint name instead of exclusively registering his share in his name.
30. In view of the evidence brought on record and in the facts and circumstances of the case, I am of the opinion that accused has not Genesis Educational Foundation vs Rajesh Berry Page 12 of 23 13 been able to discharge the burden of mandatory presumption in the instant case for the following reasons:
31. As evident from record, the accused did not take any specific defence till the stage of DE. At the stage of framing of notice, no defence whatsoever was stated by accused. During crossexamination of complainant's witnesses too, which was the next stage for him to put forth his defence and explain the circumstances under which he issued the cheque, accused took a very vague defence when he suggested to CW1 Naresh Garg (secretary of complainant society) that cheque in question was handed over to him as a blank cheque. However, at the same time, the purpose and the circumstances under which the said cheque was issued in blank was never put forth by accused at that stage for the reasons best known to him.
32. Thereafter at the stage of examination U/sec. 313 r/w sec. 281 Cr.PC, accused stated that cheque in question was given blank as a security to Naresh Garg and it was not against any liability. It is abundantly clear that even at this stage, accused did not explain the circumstances under which a blank cheque was given to Naresh Garg. What appears to be strange is that accused, who is an advocate, did so despite knowing fully the implications of giving a blank cheque and that too without any liability. This defence of accused is a sham one and cannot pass the muster.
Genesis Educational Foundation vs Rajesh Berry Page 13 of 23 14
33. It was only at the stage of his defence evidence that accused took a specific plea of defence by deposing that he had taken loan of Rs. 50, 90,400/ from M/s. Genesis Finance Company through its director, Naresh Garg for purchase of agricultural land at Badshahpur through three demand drafts bearing No. 353170 dt. 29.05.2004 for Rs. 24,96,000/ drawn in the name of Jitender Khatana, DD bearing No. 353171 dt. 29.05.2004 for Rs. 12,97,200/ drawn in the name of Jitender Khatana and DD bearing No. 353172 dt. 29.05.2004 for Rs. 12,97,200/ drawn in the name of Smt. Kamlesh i.e. respective vendors of land and the cheque in question was given blank as a security to Naresh Garg for M/s. Genesis Finance Company Ltd. Though not stated in so many words, it appears that the defence of accused was that cheque in question was given in blank as a security against the loan of Rs. 50,90,400/ taken from M/s. Genesis Finance Company. It bears repetition to state that this specific plea of defence surfaced for the first time at the stage of DE only. Be that as it may, the said defence of accused cannot stand the test of judicial scrutiny in the light of the facts and circumstances of the instant case. Accused states that the said loan was taken in the year 2004; however, as evident from Ex. DW2/15 i.e. the account opening form of account No. 9399 (account from which the cheque was issued), the same was opened on 22.08.2005 by Smt. Geeta Berry wife of accused and accused was added as the other Genesis Educational Foundation vs Rajesh Berry Page 14 of 23 15 account holder on 22.11.2005. Therefore, it is clear that the cheque in question could not have been issued by accused in the year 2004 when the alleged loan was taken as a security as the very account from the cheque was drawn came into existence in the year 2005. This aspect completely belies the stand of the accused.
34. Ld. defence counsel made a feeble attempt by arguing that cheque in question was given in blank as a security in November 2005 for the loan taken in 2004 from M/s. Genesis Finance Company. However the said arguments does not impress me at all. In the ordinary course of nature, a security against a loan would be given at the time of taking of loan and not 1 ½ years later. Accused has failed miserably to explain the circumstances under which the cheque was issued in blank, 1 ½ years after taking of loan by him.
35. Be that as it may, as per accused, the said loan was taken at the interest rate of 18% per annum for a period of five years from Genesis Finance company. Therefore it is clear that the liability of the accused (including principal amount and interest) was specific. Accused now owes some explanation to this court as to why he would issue a blank cheque when the liability was specific right from the very inception.
36. Furthermore, accused's stand is that the said cheque was given to M/s Genesis Finance Company against the loan taken from it (which was later on misused by Sh. Naresh Garg by wrongly filling the name of Genesis Educational Foundation vs Rajesh Berry Page 15 of 23 16 complainant company i.e. M/s. Genesis Education Foundation with which the accused had no dealing). If this plea of accused is to be believed, the question then that arises is what was it that had inhibited him from at least mentioning the name of the payee i.e. M/s Genesis Finance Company in the said cheque. The said circumstances has also remained unexplained.
37. Next, accused asserts that the cheque in question was given against the loan which was given to him by way of three demand drafts. However, perusal of said demand drafts reveals that same had been prepared in the name of third parties (the seller of the land complainant). Had it been a loan, then in ordinary course of business, the demand drafts ought to have been in the name of accused and not in the name of third parties. Accused tried to wriggle out of this quandary by contending that same were prepared at his instance in the name of respective sellers of the land from whom he was to buy land after taking loan from the Genesis Finance Company. However, in such a circumstance, a tripartite agreement should have been there between the parties. However, no such agreement was brought on record, much less pleaded, by the accused. What is therefore clear is that this plea of accused rests on a foundation of sand.
38. The loan theory propounded by the accused is doubtful from another perspective. It has come in the crossexamination of the Genesis Educational Foundation vs Rajesh Berry Page 16 of 23 17 accused that he had taken loans from Genesis Finance Company in the past and documents (Ex. DW1/X1 and Ex. DW1/X2) were executed for this purpose. He admitted his signatures on the said documents. It is rather surprising to note that for this heavy amount of more than rupees fifty lacs, no document was executed; but in the past the parties had executed documents (Ex. DW1/X1 and Ex. DW1/X2) wherever loan was given by Genesis Finance Company to the accused or his trust. I fail to comprehend as to what was it that had inhibited the parties from executing documents this time round in the face of the fact that in the past loan documents were executed for such transactions.
39. The accused has been less than honest in his deposition. In his crossexamination, on the one hand, he categorically denied to have executed any document with regard to past loans between his trust and Genesis Finance Company. However, on the other hand, he took a somersault by admitting his signatures on the documents Ex. DW1/X1 Ex. DW1/X2 which were executed with respect to past loans.
40. Ld. defence counsel vehemently relied upon fax dated 05.11.2004 mark DX (Ex. DW 1/A) to prove his defence. The contents of said fax are reproduced for the sake of convenience as follows : "TO WHOM SO EVER IT MAY CONCERN This is to certify that we had given a loan of Rs. 50,90,400/ ( Rupees Fifty lacs Ninety Thousand Four Hundred only) to Mr. Rajesh Berry and Mrs. Geeta Berry both R/o 269, Sector 15, PartI, Gurgaon, Haryana for purchase of land at Genesis Educational Foundation vs Rajesh Berry Page 17 of 23 18 Badshahpur, Tehsil & Zila Gurgaon in the following names:
Date Draft No. Amount Name
29/05/2004 35317024,96,000/ Jitender Khatana
29/05/2004 35317112,97,200/ Jitender Khatana
29/05/2004 35317212,97,200/ Smt. Kamlesh
The above said land is mortgage with us against the finance given.
For Genesis Finance Co. Ltd.
Dated : 05/11/2004
Place : New Delhi Authorised Signatory
41. Ld. counsel for complainant argued that said documents being forged and fabricated document could not be replied upon. I have heard submissions of both the parties on mark DX and carefully perused the same. In my considered view, the said document cannot be read into evidence as it is merely a photocopy and original of same was never produced before this court. Therefore, the said document has not been proved by accused as per law, hence inadmissible. Further, it being a fax, falls in the category of electronic evidence. However, no certificate as mandated by Sec. 65B(4), Indian Evidence Act has been brought on record, thereby rendering the same inadmissible.
42. This aspect can be looked at from another angle. And this from the point of view from which the accused desires to be looked into. Let us take this fax message (mark DX) to be an admissible piece of Genesis Educational Foundation vs Rajesh Berry Page 18 of 23 19 evidence as contended by the defence. Yet, in my considered view, it remains shrouded in great mystery. Accused avers that the said fax was received in the office of DW6 i.e. Sh. Rajnish Agarwal, a common acquaintance of accused and complainant. However, DW6 categorically denied ever having received the same. Nonetheless, I fail to comprehend as to why the fax would be sent to the office of a third person in the face of the fact that it was sent by Genesis Finance and meant for the accused. Still more, it defies all logic as to why a fax would be suddenly sent out of the blue by Genesis Finance company more than four months after taking of alleged loan by the accused. The said circumstance also remained unexplained on the part of accused. Lastly, the accused by placing reliance upon this fax seeks to demolish his own testimony. This is because as per the said fax the land was mortgaged with Genesis Finance Company, which averment is contrary to accused's crossexamination, wherein he deposed that he did not mortgage any property to Genesis Finance while taking loan of Rs. 50,90,400/. Therefore, it is crystal clear that the contents of said fax are in material contradiction with the own deposition of accused, taking his case nowhere. Therefore under such circumstances, possibility of the purported fax message (mark DX) being a manufactured document cannot be ruled out.
43. Ld. defence counsel further urged that the cheque in question Genesis Educational Foundation vs Rajesh Berry Page 19 of 23 20 was not a valid one as the same was not drawn by Geeta Berry who was the only person competent to draw it from the account No. 9339. This argument is least impressive. Admittedly, the account No. 9339, from which the cheque in question was drawn, is a joint account; accused being added as joint account holder on 22.11.2005. Therefore, he was competent to operate the said account, including drawing of cheque from it. Sh. Sanjay Lombard, official from accused bank was examined as CW3; however, he was not crossexamined by Ld. defence counsel despite opportunity and no suggestion whatsoever was given to him to prove that accused was not competent to operate the said account. During defence evidence too, accused did not bring on record any document which could prove that he could not have drawn the said cheque being incompetent to operate the account. Further, the cheque in question has been dishonoured owing to 'insufficient funds' and not on account of 'difference of signature' or 'drawer being incompetent to draw the same'. Ld. defence counsel placed reliance upon Ex. DW2/7 to assert that he was not competent to operate the said account. However, in my view the said exhibit nowhere suggests that accused was not competent to operate the account. Therefore, in such circumstance, the said plea of accused too pales into insignificance.
44. Ld. defence counsel strongly urged that the cheque amount of Rs. 6.75 crores was not reflected in the balance sheet (Ex. DW3/F, Ex. Genesis Educational Foundation vs Rajesh Berry Page 20 of 23 21 DW3/G and Ex. DW3/H) of the complainant society. In this connection, he placed strong reliance upon judgments reported as Kumar Exports vs. Sharma Carpets 2009 (1) Civil Court Cases 778 (SC) and M. S. Narayana Menon vs. State of Kerala (2006) 6 SCC 39. This argument holds no water. It is to be noted that the amount of Rs. 6.75 crore was an amount which never came to be realized by the complainant and as such there was no question of showing the same in the balance sheet. A balance sheet shows the assets and the liabilities. The amount which was never realized, could by no stretch of imagination be shown in the balance sheet. It was not an asset. Similarly, it was not a liability. Rather, the amount of Rs. 67,86,400/ (total of the four demand drafts) has been shown in the column of 'current assets and advances' in the balance sheets. It only goes to show the bonafides of the complainant.
45. During the course of arguments, it was contended by the defence that the settlement amount of Rs. 6.75 crore was highly inflated in comparison to the advance of Rs. 67,86,400/ (total of the four demand drafts). It was submitted that in terms of the judgment of Thirumalai Iyengar vs. Subba Rao 1962 Madras Law Journal 193 presumption as to the quantum of consideration cannot be available to the complainant. This argument has no legs to stand upon. During entire course of the trial, no case was made out by the defence that the cheque amount was highly inflated. This issue was raised only during the course of final Genesis Educational Foundation vs Rajesh Berry Page 21 of 23 22 arguments. It was nowhere suggested by the accused to witnesses of the complainant that the land in question in 2006, when the settlement took place, was not worth Rs. 6.75 crore. Rather, rate of the land has not been questioned by the defence. In fact there is evidence on record by way of Ex. DW1/D to suggest that land rates had risen astronomically (16 kanal of land worth Rs. 1.22 crore in year 2005).
46. Ld. defence counsel further argued that the instant complaint having not been filed by a competent person, was liable to be dismissed. For proving the said assertion, he has relied upon of Sec. 6 of Societies Registration Act which reads as follows:
"6. Suits by and against societies. Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion".
47. However, it is clear that the said provision pertains to suits and present case being a criminal case therefore said provision cannot be applicable. Nonetheless, Sh. Vinod Tayal was duly authorised vide resolution Ex. CW1/A by the complainant to file the present complaint.
48. In the facts and circumstance of the case, it was on the accused to bring cogent evidence for proving his defence in which he had failed miserably. The defence of accused stands not proved even on the scale of preponderance of probabilities. Accused has failed to prove by cogent evidence the circumstances under which the cheque in Genesis Educational Foundation vs Rajesh Berry Page 22 of 23 23 question was issued (V S Yadav's case, supra).
49. It is proved on record that accused despite service of statutory notice of demand failed to make the payment of the cheque in question within 15 days from receipt thereof. The complainant has fulfilled all the ingredients of Section 138 of the Negotiable Instruments Act. Accordingly, accused Rajesh Berry stands convicted for committing the offence U/s 138 Negotiable Instruments Act. Parties be heard on the point of sentence.
Pronounced in the open court on 27.06.2013 (ANUJ AGARWAL) Metropolitan Magistrate 01(South East) Saket Court/New Delhi 27.06.13 Genesis Educational Foundation vs Rajesh Berry Page 23 of 23