Delhi District Court
Rajesh Prasad vs Sarvesh Bisaria on 24 February, 2021
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. SESSIONS JUDGE - 03 (NEW DELHI )
PATIALA HOUSE COURTS : NEW DELHI
CR No. 628/2019
Rajesh Prasad,
S/o Sh. Mahesh Prasad,
R/o B81, Gulmohar Park,
New Delhi110049.
....Revisionist.
Versus
Sarvesh Bisaria,
S/o late Sh. S.K Bisaria,
Having Office at:
113, Lawyer's Chambers,
R.K Jain Block,
Supreme Court of India,
New Delhi 110001. .....Respondent.
Date of Institution : 30.09.2019.
Date of Arguments : 24.02.2021.
Date of Pronouncement : 24.02.2021.
ORDER
The present is a revision u/s 397 and 400 Cr.P.C filed against CR No. 628/19 (Parveen Singh) Page No. 1 of 10 ASJ03/NDD/PHC: 24.02.2021 order dated 16.09.2019 passed by the court of Ld. MM and framing of notice u/s 251 Cr.P.C.
2. The brief facts giving rise to the present revision petition are, that, as per the petition, the revisionist herein was engaged as a director of the company namely SUN Business Machines Pvt. Ltd. The revisionist was also holding the post of Secretary of Gulmohar Sports cum Community Centre. On 16.04.2019, revisionist received letter from the respondent stating that revisionist had taken a cash loan of Rs.50,00,000/ from the respondent. Further, in the letter, it was informed that in order to discharge the part liability, the revisionist had issued a cheque bearing no. 115383 dated 27.03.2019 drawn on Central Bank of India, Gulmohar Park Branch, New Delhi. On 20.04.2019, revisionist replied the letter dated 16.04.2019 and denied all the allegations against him. Thereafter, the respondent presented the cheque for encahsment. The cheque in question got dishonoured. Thereafter, respondent sent a legal notice to the revisionist. Thereafter, respondent filed a complaint case.
3. After taking cognizance of the complaint, summons were issued to the revisionist. Thereafter, vide order dated 16.09.2019, the ld. Trial court dismissed the application of revisionist u/s 251 Cr.P.C seeking discharge and framed notice against the revisionist. Hence, the present revision petition.
4. The grounds taken in revision petition are, that the ld. MM while passing the impugned order overlooked the liberty granted to the CR No. 628/19 (Parveen Singh) Page No. 2 of 10 ASJ03/NDD/PHC: 24.02.2021 revisionist vide order dated 01.07.2019 passed in Cr. Rev. No. 1954/2019. It is further submitted that the respondent stated to have given an amount of Rs.50 lacs in cash in his complaint which is contrary to the sale deed dated 28.01.2016 of property i.e. D83, Gulmohar Park, New Delhi. Ld. MM could not have dismissed the application on the basis of bar of Adalat Prasad's case. Ld. MM could not have held that it does not have the power to discharge the accused/ drop the proceedings u/s 251 Cr.P.C. Ld. MM could not have kept the application of the revisionist u/s 165 Evidence Act pending. The order of taking cognizance / summoning order dated 17.05.2019 is bad in law and the Magistrate has not applied his mind and neither examined the fact of existence of money with the respondent. It is further submitted that cognizance of the alleged offences could not have been taken without there being sufficient and substantial material on record.
5. I have heard ld. counsels for the parties and perused the record very carefully.
6. It has been contended by ld. Counsel for revisionist that the basis of filing the present complaint u/s 138 NI Act is the loan of Rs.50 lacs in cash which had been allegedly advanced by the complainant/ respondent to the accused/ revisionist. As per the respondent, the amount for providing this money in cash was obtained by him from his mother as gift. The mother of the complainant/ respondent had received this amount on account of sale or property in Gulmohar Park. However, the sale deed of the said property reflects that the entire amount had been paid through cheque and CR No. 628/19 (Parveen Singh) Page No. 3 of 10 ASJ03/NDD/PHC: 24.02.2021 no cash had been paid. Therefore, there could have been no occasion for the respondent/ complainant to receive that amount in cash from his mother. He has further contended that this fact was brought to the notice of the trial court and the copy of the sale deed of that property is placed on record. However, the trial court completely ignored this fact and did not decide the matter on merits. He has further contended that it is also to be noticed that the said loan was given on 29.01.2016 i.e. on the same date on which the mother of the respondent / complainant had sold that property and allegedly gifted the sale proceeds to the complainant/ respondent and it was much later that the cheque of that consideration amount was encashed and therefore on that day, no money could have been available with the respondent. He has further contended that trial court ignored this fact and in mechanical manner without considering the merits passed the order stating that it had no powers to discharge the accused. The trial court did so by completely ignoring the directions given in the earlier revision petition by the revisional court, that if the revisionist moved an application seeking discharge, the trial court should deal with the same in accordance with the law. He has further contended that the ld. Trial court had committed grave error in not deciding the application on merits and merely observeing that it had no powers to discharge the accused/ revisionist. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in Bhushan Kumar & Anr. v. State (NCT of Delhi) & Anr., (2012) 5 SCC 424 and the judgment CR No. 628/19 (Parveen Singh) Page No. 4 of 10 ASJ03/NDD/PHC: 24.02.2021 of Hon'ble Delhi High Court in R. Narayanan v. State (Govt. of NCT of Delhi) 2019 SCC Online Del 6392. Relying upon this judgment, he has stated that Hon'ble Supreme Court in para 17 of Bhushan Kumar's case (supra) had held as under:
17. It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code.
7. Therefore, the matter should have been proceeded on the merits of the case and if a discharge was made out, accused/ revisionist should have been discharged. He has further contended that the complainant/ respondent in his complaint had claimed to have received the money, which he had allegedly advanced to the revisionist, from his mother who had sold a property. However, the entire transaction of that property had happened through cheque and therefore, the complainant's mother could not have had that money on the same day on which the loan was allegedly granted to the revisionist. He has further contended that the trial court record reflects that the entire transaction of that property had CR No. 628/19 (Parveen Singh) Page No. 5 of 10 ASJ03/NDD/PHC: 24.02.2021 happened in cheque. However, the trial court failed to look into this aspect.
8. Per contra, respondent, in person, has contended that the trial court had rightly proceeded to frame notice against the revisionist / accused because at that stage, the trial court could only have a look at the evidence/ record which had been filed by the respondent/ complainant and no document filed by the revisionist could have been looked into. He has further contended that whatever issues had been raised by the revisionist were triable issues and on the basis of those issues, the trial court could not have discharged the accused/ revisionist at the stage of framing of notice. In this regard, he has relied upon the judgment of Hon'ble Supreme Court in M/s Kalamani Tex & Anr. v. P. Balasubramanian, SLP (Crl.) No. 1876/2018. He has further contended that the notice in this case has already been framed. The revisionist has admitted his signatures on the cheque in question. He has also admitted filling the name of the respondent and the amount in the cheque in question and therefore, presumption u/s 139 NI Act had arisen. Once the presumption u/s 139 NI Act had arisen, it can only be rebutted by accused / revisionist during the trial. In this regard, he has relied upon para 15 of M/s Kalamani Tex (supra), which is as under:
15. Once the 2nd Appellant had admitted his signatures on the cheque and the Deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the Complainant Respondent to explain the circumstances under which the appellants CR No. 628/19 (Parveen Singh) Page No. 6 of 10 ASJ03/NDD/PHC: 24.02.2021 were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law.
9. He has further contended that in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, Hon'ble Supreme Court has held as under: Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.
10. He has therefore, contended that there was no ground for discharge of the accused / revisionist.
11. I have considered the rival submissions and perused the record very carefully.
12. As far as the contention of ld. Counsel for revisionist that the trial court should have decided the application on merits is concerned, I find that the judicial discipline demanded that once the trial court was shown the order dated 01.07.2019 passed by the revisional court wherein it was directed that in case an application for seeking discharge or for stopping proceedings was moved before it, the trial court would deal with it as per law; the trial court should have proceeded to decide the application in the light of judgment of Bhushan Kumar (supra). The trial court at least should have given finding whether on the basis of material available on CR No. 628/19 (Parveen Singh) Page No. 7 of 10 ASJ03/NDD/PHC: 24.02.2021 record, case for discharge of revisionist was made out or not and only if it was not made out, the trial court should have dismissed the application and framed notice. However, this matter is pending for a long time and I proceed to decide it on the basis of arguments raised.
13. The sum and substance of the contention on behalf of the revisionist is, that the respondent/ complainant could not have had the money to advance loan of Rs.50 lacs in cash to the revisionist. In my opinion, though the complainant/ respondent had claimed that he had received this amount as gift from his mother, who had received this amount after sale of a property at Gulmohar Park, however, this fact needs to be proved during the trial and it is only thereafter it will be decided, whether the respondent could have had this huge amount of money to advance in cash as loan. The sale deed filed by the revisionist at this stage could not have been looked into by the court.
14. However, it is noticeable that notice u/s 251 Cr.P.C has already been framed against the revisionist and in response to the said notice, the revisionist/ accused had stated as under: The cheque in question was given to the complainant on the asking of the complainant for starting contributory committee. First complainant took a cheque of Rs.30 lacs in September, 2015 which cheque was stated by complainant to be misplaced in the shifting of his house. I have not given the cheque in question in March 2019 as alleged by the complainant in legal notice. Thereafter, in the month of January 2016 complainant took from me the CR No. 628/19 (Parveen Singh) Page No. 8 of 10 ASJ03/NDD/PHC: 24.02.2021 cheque in question for the purpose of starting contributory committee and cheque in question was misused. As the complainant did not start the committee in February & March 2016 I asked the complainant to return the cheque in question. I have given the cheque in question duly filled up to the complainant as he has asked me to do so. The date on cheque in question was not filled up by me. I have received legal notice and I have duly replied to the same. Before receiving the legal notice I also received demand notice and I have also duly replied to the same. I have no liability whatsoever as alleged in the complaint. Rest of defence, I will disclose defence in application u/s 145 (2) NI Act.
15. A perusal of the aforesaid response to the notice reveals that as per the revisionist/ accused, he had given the cheque duly filled up except the date. The moment the revisionist had accepted handing over the duly filled cheque, meaning thereby, the name of the drawee and the amount therein; presumptions u/s 118 and 139 NI Act started to apply. The moment this happens, it comes upon the accused/ revisionist to rebut the said presumptions which can only be done during the trial. Even the fact that the complainant/ respondent did not have sufficient money to advance loan, is a fact which can only be proved during the trial and can be used to rebut the presumptions as raised. Therefore, I find that all the grounds the revisionist had taken before the trial court and have taken in the revision petition, are not the grounds on the basis of which it can be said that there was no case in favour of the complainant/ respondent or that from the record available, a case for discharge of revisionist/ accused was made out.
CR No. 628/19
(Parveen Singh)
Page No. 9 of 10 ASJ03/NDD/PHC: 24.02.2021
16. I accordingly find that there are no merits in the present revision petition. The revision petition is accordingly dismissed. File be consigned to record room. Copy of this order be sent to the trial court with TCR.
Announced in open court (Parveen Singh)
today on 24.02.2021 ASJ03, New Delhi Distt.,
(This order contains 10 pages Patiala House Court, Delhi.
and each page bears my signatures.)
CR No. 628/19
(Parveen Singh)
Page No. 10 of 10 ASJ03/NDD/PHC: 24.02.2021