Delhi District Court
Mr. Girish Rehani vs Keltech Infrastructure Ltd. & Ors Cc No. ... on 31 August, 2022
IN THE COURT OF MS. PRIYA JANGHU, METROPOLITAN
MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No DLSW02- 010793-2017
CC No. 7999/2017
Mr. Girish Rehani
S/o Sh. S.L. Rehani
R/o G-26, 3rd floor, Jangpura Extension,
Delhi-110014
...........Complainant
Versus
1. M/s. Keltech Infrastructure ltd.
7, IP. Building E-109, Pandav Nagar
Near Akshardham Temple NH-24, Delhi-110092.
Email: [email protected].
2. Narinder Kumar, Director
R/o 502, Parivar Apartments,
30 IP Extension, Patparganj, Delhi-110092
Email:[email protected]
[email protected]
3. Indu Bala, Director
R/o-502, Parivar Apartments
30 I.P. Extension,
Patparganj, Delhi-110092
4. Ashutosh Ch Das, Director
5. Narayan, Director
Also At:
S-11, II Floor
Aditya City Centre,
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 1 of 14
Indirapuram, Ghaziabad, Uttar Pradesh-201014
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case: : 04.05.2017
(4) Date of conclusion of arguments: 27.08.2022
(5) Date of Final Order : 31.08.2022
(6) Final Order : Acquitted
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 complainant booked four flats bearing no. K- 4-1801, K-4-1901, K-5-1802 & K-5-1902 in the project of accused persons in the name of 'Kumar Imperial Greens' at Plot GH-01B, Sector 16, Noida Extension, Greater Noida West, UP for a total sum of rupees one crore which was paid in the name of accused no.1 vide agreement/MOU dated 21.08.2013. Accused persons also undertook to pay the assured return to the complainant @ 15% per annum till the possession is handed over by the accused persons to the complainant.
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 2 of 14
3. In discharge of the said liability the accused persons issued cheques bearing No. 329412, 329413 and 329409, all dated 05.12.2016 amounting to Rs. 1,25,000/-, Rs. 1,25,000/- and Rs. 5,00,000/ respectively, all drawn on Axis Bank, Mayur Vihar, New Delhi, The complainant presented the cheques in his account maintained at Indian Bank, Dwarka, Sector-10 Delhi, which were returned with the remarks " Funds insufficient" vide bank return memos dated 17.02.2017. Thereafter, complainant served a legal notice dated 18.03.2017 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 persons. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
4. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/1. He reiterated the contents of complaint and placed on record documents copy of agreement as Mark A (from page no. 12 to 59); copy of agreement/MOU as Mark B (from page no. 60 to 67); original three cheques in question bearing No. 329412, 329413 and 329409 are EX.CW1/C , Ex.CW1/D and Ex. CW-1/E respectively; return memos are Ex.CW1/F, Ex.CW1/G and Ex. CW-1/H respectively; legal notice is Ex.CW1/I (OSR); speed postal receipts are Ex.CW1/J-1 to Ex.CW-1/J-4 (OSR); tracking reports Ex. CW-1/K-1 to Ex. CW- 1/K-4(OSR); certificate under Section 65 B of Indian Evidence Act is Ex. CW-1/L; Copy of statement of account 30.11.2016 to 04.05.2017 is Ex. CW-1/M(OSR) (consisting of 8 pages).
5. Upon appreciation of pre-summoning evidence, all accused persons were summoned for an offence punishable under Section 138 of the Act. Accused no. 2, Narinder Kumar appeared as AR / Director of accused no.1 company. Notice under Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 3 of 14 Section 251 Cr.P.C. for this offence was framed upon accused no.4 Ashutosh Chandra Das and accused no.5 Narayan Dass on 27.09.2019 to which accused no. 4 and 5 pleaded not guilty and claimed trial. At the stage of framing of notice u/s 251 Cr. P.C, accused no.4 and 5 stated that the cheques in question have not been signed by them. Also the remaining details in the cheques in question have not been filled by them. Accused no.4 and 5 also denied the receiving of legal demand notice. Accused no.4 stated that he is driver in accused no.1 company and was made director of accused no.1 company by signing on some forms and that he was not aware of transactions between the complainant and accused no.1 company and its directors. Accused on 5 also stated that he is a sleeping director in accused no.1 company and was not aware of transactions between the complainant and accused no1 company and its directors.
6. Notice under Section 251 Cr.P.C. for this offence was framed upon accused no.1 through it director/AR Narinder Kumar as well as accused no.2 Narinder Kumar and upon accused no.3 Indu Bala on 20.12.2021 to which all the accused persons pleaded not guilty and claimed trial. In notice under Section 251 Cr.P.C, accused no.2 Narinder Kumar, admitted his signatures on the cheques in question . However, he denied the filling of remaining details in the cheques in question and do not remember the receiving of legal demand notice by him. He also stated that he is the director of M/s Keltech Infrastructure Ltd and is managing the day to day affairs of the company. Complainant has purchased certain flats from the accused persons and they have given the cheques in question as blank signed security cheques at the time of entering into agreement with complainant. The complainant has misused the blank signed security cheques.
7. Accused no.3 Indu Bala denied her signatures on the cheques in question as well as filling in the details in cheques in question by her. She also denied the receiving of legal demand notice by her. She also stated that she is a director in Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 4 of 14 M/s Keltech Infrastructure Ltd. and not looking after the day to day affairs of the company and that same are looked after by her husband i.e accused no.2 Sh. Narinder Kumar. She is not aware of the transactions entered into between the complainant and accused no.1 company and also the issuance of cheques in question by accused company to complainant. Thereafter, matter was listed for complainant evidence.
8. Complainant Girish Rehani examined himself as CW-1. He was duly cross- examined by ld. Counsel for accused and vide separate statement of complainant, his evidence was closed vide order dated 05.04.2022.
9. Thereafter, statement of all the accused persons under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to them to which accused persons reiterated the stand taken by them in answer to notice U/s 251 Cr.P.C. Accused no. 2 Narinder Kumar admitted his signatures on cheques in question and denied the filling in remaining details in the cheques in question and that he do not remember the receiving of legal notice by him. Accused no.2 again stated that he is the director of M/s Keltech Infrastructure Ltd and is managing the day to day affairs of the company. The complainant had purchased certain flats from accused no.1 company. Accused persons have given the cheques in question as blank signed security cheques at the time of entering into agreement with complainant. The complainant has misused the cheques in question. Accused no.3 Indu Bala, Accused no.4 Ashutosh Chandra Das and accused no.5 Narayan Das also stated the same facts as stated by them in notice under Section 251 Cr. P.C. Accused no. 3 Indu Bala also stated that she is the director of accused no.1 company. However, she was not director in the said company at the time of issuance of cheques in question. It was also stated by accused no.4 Ashutosh Chandra that he has resigned from the accused no.1 company in January 2020. Accused no 5 Narayan Dass further stated that he is a sleeping director in the Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 5 of 14 accused no.1 company and have resigned from the said company on 05.02.2020.
10. In statement, u/s 313 Cr.P.C all accused persons except accused no.5 Narayan Das, denied to lead DE. However, at later stage, accused no.5 Narayan Das also denied to lead DE and same was closed vide order dated 30.07.2022.
11. 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 no.2 admitted his signatures on the cheques in question 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. 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.
12. Per contra, ld. Counsel for accused reiterated the submission made by the accused persons in their plea of defence at the time of framing of the notice under Section 251 Cr.P.C and their statement under Section 313 Cr.P.C. He argued that the legal notice sent by the complainant to the accused persons is not in accordance of Section 138 (b) of NIAct. He argued that evidence of complainant suffered from material lapses and was not sufficient to establish the case against accused persons. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused persons are entitled to be acquitted of offence under Section 138 of Act.
13. I have perused the entire record as well as evidence led by the complainant as well as by the accused persons and given my thoughtful consideration to them.
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 6 of 14 14 . 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.
15. 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;"
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 7 of 14 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".
16. 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].
17. In the present case, accused no.2 Narinder Kumar 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 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 Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 8 of 14 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.
18. Major defence taken by counsel for accused is that the legal demand notice in the present case does not comply with the legal requirement of proviso (b) to Section 138 NI Act as in the legal demand notice, the cheques in question amount was not demanded rather a vague amount of Rs.25,30,000/- was demanded. The relevant extract from the legal demand notice which is Ex.CW1/I, is as under :-
"You are, therefore, directed to make payment of Rs. 25,30,000/- ( rupees twenty five lacs thirty thousand only) to our client within 15 days from the receipt of this notice".
However, the amount claimed in the present complaint is Rs. 7,50,000/- which is the total amount of three cheques in question.
19. Condition precedent in both the proviso (b) and (c) of Section 138 envisages "Payment of the said amount of money". The said amount of money undoubtedly would be the amount of the cheques in question.It is apposite to discuss the settled law by Hon'ble Supreme Court in catena of cases namely:
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 9 of 14 As observed by Hon'ble Supreme Court of India in Central Bank of India and Anr. vs. Saxons Farms and Ors., AIR 1999 SC 3607, wherein it was stated that :The object of the notice is to give a chance to the drawer of the cheque to rectify his omission. The demand in the notice has to be in relation to 'said amount of money' as described in the provision. The expression 'payment of any amount of money' as appearing in the main portion of Section 138 of the Act goes to show it needs to be established that the cheque was drawn for the purpose of discharging in whole or in part of any debt or any liability, even though the notice as contemplated may involve demands for compensation, costs, interest etc. The drawer of the cheque stands absolved from his liability under Section 138 of the Act if he makes the payment of the amount covered by the cheque of which he was the drawer within 15 days from the date of receipt of notice or before the complaint is filed.
20. In Suman Sethi v Ajay K. Churiwal and Ors. Crl.A. No. 113 of 2000 [Arising out of SLP (C) No. 1074/98] Decided On: 02.02.2000 by Hon'ble Supreme court of India it was held that:
8. It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount" i.e. cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to "said amount" there is also a claim by way of interest cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving up break up of the claim the cheque amount, interest damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice an omnibus demand is made without specifying what was due under Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 10 of 14 the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad.
21. In K.R. Indira v. Dr. G. Adinarayana decided by Hon'ble Supreme Court on 9 October, 2003 it was held that:
However, according to the respondent, the notice in question is not separable in that way and that there was no specific demand made for payment of the amount covered by the cheque. We have perused the contents of the notice. Significantly, not only the cheque amounts were different from the alleged loan amounts but the demand was made not of the cheque amounts but only the loan amount as though it is a demand for the loan amount and not the demand for payment of the cheque amount, nor could it be said that it was a demand for payment of the cheque amount and in addition thereto made further demands as well. What is necessary is making of a demand for the amount covered by the bounced cheque which is conspicuously absent in the notice issued in this case. The notice in question is imperfect in this case not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non-compliance with such a demand only being the incriminating circumstance which exposes the drawer for being proceeded against under Section 138 of the Act.
22. In Rahul Builders Vs Arihant Fertilizers and Chemical and Ors (2008) 2 SCC 321, it was held by Hon'ble Apex Court that:
One of the conditions was service of a notice making demand Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 11 of 14 of the payment of the amount of cheque as is evident from the use of the phraseology "payment of the said amount of money". Such a notice has to be issued within a period of 30 days from the date of receipt of information from the bank in regard to the return of the cheque as unpaid. The statute envisages application of the penal provisions. A penal provision should be construed strictly; the condition precedent where for is service of notice. It is one thing to say that the demand may not only represent the unpaid amount under cheque but also other incidental expenses like costs and interests, but the same would not mean that the notice would be vague and capable of two interpretations. An omnibus notice without specifying as to what was the amount due under the dishonoured cheque would not subserve the requirement of law. (Emphasis supplied)
23. Ld. counsel for complainant has relied upon "Vani Agro Enterprises vs State of Gujarat Criminal Appeal No(s). 587-590 of 2010 decided on 05.12.2019.....," however, the issue herein the present matter is not that one notice for the different complaints cannot be filed, demand notice would have been perfect if amount claimed in the cheques in question would have been claimed along with the amount pertaining to other cheques for which other complains were filed by complainant. In the present case, no amount of cheques in question was claimed in the legal demand notice. Further the amount claimed in notice was not specified under separate heads, which should have been done. Further, complainant never made any efforts for consolidation of complaints. Hence, the aforesaid judgment relied by complainant is of no help to his case.
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 12 of 14
24. Thus, from the above said settled position of law it is amply clear beyond a shadow of doubt that,
1) In the notice, demand has to be made for the "said amount" i.e. cheque amount.
2) If apart from the cheque amount, something additional is also claimed in the legal demand notice, break up of the claim must be there, which much be separately specified and those additional claims must be severable.
3) If there is omnibus demand without any break-up, notice would be bad in law.
25. In the present case in hand, the demand is made for an amount of Rs. 25,30,000/-. However, the amount of cheques in question is Rs. 7,50,000/-. The amount claimed in legal notice is neither segregated nor any explanation for the consolidated amount has been provided. The amount of Rs. 25,30,000/ is an omnibus demand, which is more than the amount of cheques in question. Thus, condition of proviso (b) of section 138 NI Act is not complied with.
26. Even otherwise on merits, the complainant's case is founded on the Builder Buyer Agreement Mark A and MOU Mark B. However, the agreements have not been proved in accordance with previsions of section 65 of Indian Evidence Act, Section 65 of Indian Evidence Act provides the conditions under which secondary evidences may be given but complainant never moved any application under section 65 of Indian Evidence Act for making the photocopies of aforesaid agreements admissible. Since, conditions mentioned in section 65 of Indian Evidence Act, were not complied with and original agreements were never placed on record, Mark A and Mark B remains unproved. Consequently, it could not be further proved that the cheques in question were given in discharge of any legally enforeceable liability.
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 13 of 14
27. As the legal demand notice in the instant case is not in conformity with the proviso (b) of Section 138 of NI Act and the cheques in question amount is not demanded, condition precedent given in proviso (b) is not fulfilled, therefore, main provision u/s 138 would not apply. Both proviso (b) and (c) are interrelated as if the legal demand notice is not valid and sum demanded in legal demand notice is not the cheques in question amount, failure to make payment of the said amount of money as envisaged in proviso (c) cannot be imputed on the accused persons because the accused persons will only be in a position to make payment when the said amount of money (cheques amount) is demanded from them.
28. Considering totality of the circumstances and in view of the above discussion, this court has come to the conclusion that Section 138 NI Act would not apply in this case. Therefore, accused no.1 M/s Keltech Infrastructure Ltd., accused no. 2. Narinder Kumar, accused no.3. Indu Bala , accused no. 4. Ashutosh Ch Das and accused no. 5. Narayan, are acquitted of offence under Section 138 of Negotiable Instruments Act.
29. File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT (PRIYA JANGHU)
TODAY i.e. 31.08.2022 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Mr. Girish Rehani vs.Keltech Infrastructure ltd. & Ors CC No. 7999/2017 Page no. 14 of 14