Delhi District Court
Rakesh Saini vs . Sadanand Yadav on 18 November, 2019
IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
CC No. 23415/17
Rakesh Saini vs. Sadanand Yadav
Sh. Rakesh Saini
S/o Sh. Krishan Lal Saini
R/o 251/B, Sayam Vihar,
Phase-I, E-Block, Dindarpur, Najafgarh,
New Delhi-110043.
............Complainant
Versus
Sh. Sadanand Yadav
S/o Sh. Daya Ram
R/o L-34, Dakshin Puri, Sector-5,
Ambedkar Nagar,
New Delhi.
.............Accused
JUDGMENT
(1) Name of the complainant, : Sh. Rakesh Saini
parentage and address S/o Sh. Krishan Lal Saini
R/o 251/B, Sayam Vihar,
Phase-I, E-Block, Dindarpur,
Najafgarh,
New Delhi-110043.
(2) Name of accused, : Sh. Sadanand Yadav
parentage and address S/o Sh. Daya Ram
R/o L-34, Dakshin Puri, Sector-5,
Ambedkar Nagar,
New Delhi.
(3) Offence complained of or
proved : 138 N.I. Act
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(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 16.11.2017
(6) Date of conclusion of arguments : 11.10.2019
(7) Date of Final Order : 18.11.2019
(8) Final Order : Conviction
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 is a contractor and is in business of wood work and other related works. The accused undertook to execute certain work at DPS, Sector-84, Manesar, Gurgaon, Haryana and in this regard, he engaged the complainant as a sub-contractor for executing certain good work. In pursuance of the same, the complainant had performed his job as per the satisfaction of the accused. In the course of work, the complainant raised bills and invoices for a total sum of Rs. 3,07,718.25/-. In discharge of part liability, the accused had issued a cheque bearing no. 140787 dated 11.07.2017 for a sum of Rs.1,80,000/- drawn on Oriental Bank of Commerce, Kailash Colony, New Delhi. On presentation, the said cheque was returned unpaid vide bank return memo dated 04.10.2017 with the remarks "Funds Insufficient". Thereafter, complainant served a legal notice dated 25.10.2017 upon the accused through his counsel demanding the said amount.
Despite service of legal notice by speed post, the accused failed to repay the amount within stipulated time. Thereafter, complainant has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In her pre-summoning evidence, complainant examined himself on affidavit Ex. CW- 1/A. He reiterated the contents of complaint and placed on record, copy of invoices and bills Rakesh Saini vs. Sadanand Yadav CC No.23415/17 Page no. 2/10 Ex. CW1/1 (colly), copy of e.mail Ex. CW1/2, ledger account Ex. CW1/3, cheque bearing no. 140787 dated 11.07.2017 for a sum of Rs.1,80,000/- drawn on Oriental Bank of Commerce, Kailash Colony, New Delhi as Ex. CW-1/4, cheque returning memo dated 04.10.2017 as Ex. CW-1/5, legal demand notice dated 25.10.2017 as Ex. CW-1/6, postal receipt as Ex. CW- 1/7, tracking report as Ex. CW1/8 and certificate u/s 65B of Indian Evidence Act as Ex. CW1/9.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of Negotiable Instruments Act and notice under Section 251 Cr. P.C. for this offence was framed upon accused on 28.08.2018 to which he pleaded not guilty and claimed trial. He took the defence that the cheque in question was given to one Sh. Surender, who is Uncle of the complainant, in a blank signed condition with the instruction to use the same in case of any need to make any payment to labourers employed by complainant and Surender. He stated that labour of the complainant had joined his services due to which some dispute arose with the complainant and the present complaint has been filed in vengeance. He stated that he has a liability of Rs. 5,000-6,000/- and not of the amount covered by the cheque in question. He admitted receiving of legal notice.
5. The complainant was examined. During cross-examination, he stated that the accused had availed his services at DPS school, Sec-84, Gurgaon. He admitted that no written agreement was executed between him and the accused in respect of the services rendered by him. He stated that he knows one Sh. Surender Kumar Saini as he is paternal Uncle. He stated that he rendered his services to the accused for about two months and employed 10-15 persons for the purpose of manufacturing tables, chairs, doors and other incidental wooden work. He admitted that Sh. Surender had employed him for the purpose of getting the wood work done by the accused. He denied the suggestion that he received payment from the accused through Surender. He admitted that he received a sum of Rs. 1.0 lakh by way of cheque and thereafter, he had not contacted the accused. He stated that the cheque in question was issued by the accused for making part payment in respect of bills and for the rest of the payment, the accused had requested for some more time. He admitted that accused had not appended his signature as a token of receiving of bills issued by him. He denied the suggestion that he has filed a false complaint against the accused.
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6. Thereafter, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him. He admitted that the complainant is a contractor and is in the business of wood work and other related work. He admitted that he undertook to execute certain work at DPS, Sec-84, Manesar and engaged the complainant as sub-contractor for executing certain work. He stated that he had demanded only two workers/carpenters from the complainant. He denied receiving of any bill or e.mail from the complainant. He stated that the cheque in question was issued by him in a blank signed condition alongwith another cheque of Rs. 1.0 lakh as he had purchased three wooden doors from the complainant. He denied receiving of legal notice but admitted the address mentioned therein. He stated that he had issued the cheque in question to the complainant for making balance payment, if any in respect of wooden doors which was purchased by him from the complainant. He alleged that he had paid Rs. 20,000- 25,000/- in cash to the complainant against the labour expenses incurred by the complainant. The accused preferred to lead defence evidence.
7. The accused examined himself as DW-1 and deposed that he had asked the complainant and Surender Kumar Saini for helping him for providing wooden work at DPS School, Sec-84, Gurgaon. He stated that he had asked Surender Kumar Saini to supply him three wooden doors and wooden frame and at that time he had given a cheque of Rs. 1.0 lakh to Surender Kumar Saini. He stated that the workers provided by Surender Kumar Saini had worked for him for 1-1 ½ months. He stated that he had given the cheque in question in blank signed manner to Surender Kumar Saini in good faith since he was not having funds at the time when Surender Kumar Saini had demanded money from him for the labourers. He stated that wage of labourers was around Rs. 40,000/- and he had spent Rs. 20,000-28,000/- on food expenses of the labourers provided by Surender Kumar Saini. He stated that two years ago, he asked Surender Kumar Saini to prepare his bills and the amount mentioned in that bill was filled by him (Surender Kumar Saini) in the blank cheque provided by him on account of professional animosity against him. He stated that the extra amount to be paid to Surender Kumar Saini is about Rs. 12,000/- which is as per the daily wage amount of the labourers. During cross-examination, he denied the suggestion that he had approached both the complainant and Surender Kumar Saini for providing labourers for wooden work. He stated that he had given them advance cheque after two days of starting Rakesh Saini vs. Sadanand Yadav CC No.23415/17 Page no. 4/10 the job against supply of material. He stated that the bill was issued in the name of complainant. He admitted that the cheque was duly credited in the name of the complainant. He admitted that he had not made any complaint with regard to disputed cheque either prior to receiving of legal notice or anytime thereafter. He admitted that the e.mail ID mentioned in the complaint belongs to him. He denied the suggestion that the bills were sent to him at his e.mail address and he had issued the cheque in question towards part liability of the same after seeing the e.mail. He stated that he had not made any complaint against the complainant regarding the work as well as payment. He stated that labourers namely Hari Chand and Shatrughan were provided to him. He denied the suggestion that both the complainants and Surender Kumar Saini used to come at the site. He denied the suggestion that their 5-6 workers were working at the site. He stated that his wife has received the legal notice Ex. CW1/6.
8. The accused examined Sh. Laxmi Prasad Vishwakarma who as DW-2 deposed that he had worked for about 1-1 ½ months at DPS School, Sec-84, Manesar on daily wage. He stated that the accused had brought two daily wage workers namely Hari Chand and Shatrughan from somewhere and those workers were doing wooden work at the school. During cross-examination, he stated that he came to depose before the court at the instance of the accused. He stated that he knows the accused since childhood and he has been working with the accused since 17 years. He stated that he also work with some other contractor also. He stated that he does not know the complainant. He stated that the accused had given Rs. 1,30,000/- to Surender Kumar Saini but he does not know for what purpose the said amount was given. He stated that the accused never showed him any bill.
9. The accused examined one more witness namely Matiwar who as DW-3 deposed that he has been working with the accused as a painter on daily wage basis. He stated that the accused did not give any contract for the work at DPS site and all the workers were working there on daily wage basis. He stated that he does not know the complainant. Durign cross-examination, he stated that he has been working with the accused for the last 17-18 years on daily wage basis and he came to depose at the instance of the accused.
10. Thereafter, final arguments were advanced on behalf of both the parties.
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11. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid / dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
12. The Act raises two presumptions in favour of the holder of the cheque i.e. complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides : "Presumptions as to negotiable instruments:
Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
13. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) Rakesh Saini vs. Sadanand Yadav CC No.23415/17 Page no. 6/10 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 end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
14. 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.
15. From the aforesaid discussion, it becomes amply clear that the presumption of law, though rebuttable, works in favour of the complainant. However, the presumption gets rebutted if the defence raises a reasonable suspicion in the prosecution story by raising a probable defence.
16. In the present case, the accused has admitted that the cheque in question bears his signatures. 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."
17. It means that in the present case the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was not given to the complainant in discharge of any liability is not Rakesh Saini vs. Sadanand Yadav CC No.23415/17 Page no. 7/10 sufficient to rebut the presumption of law.
18. This court is of the considered opinion that the accused has failed to rebut the presumption of law rising in favour of the complainant. It pertinent to note that the accused has taken inconsistent stand at different stages. At the time of framing of notice u/s 251 Cr.PC and at the stage of defence evidence, the accused has alleged the cheque in question was given to Surender, who is Uncle of complainant in a blank signed manner and it has been misused by the complainant. However, he has taken altogether different stand at the time of recording of statement u/s 313 Cr.PC. At the stage of recording of statement u/s 313 Cr.PC, the accused admitted that he had engaged the complainant as a sub-contractor for executing certain wood work and the cheque in question was given alongwith cheque of Rs. 1.0 lakh to the complainant in respect of three wooden doors purchased by him from the complainant. He also admitted that he had demanded two workers/carpenters from the complainant. He also admitted that he had given Rs. 20,000-25,000/- in cash to the complainant against labour expenses incurred by the complainant. Thus, the contradictory stand taken by the accused at different stages is itself sufficient enough to infer that he has failed to rebut the presumption of law. Further, at the time of framing of notice, the accused admitted that he had received the legal notice. However, during cross-examination, the accused admitted that he has not lodged any complaint with regard to misuse of cheque in question. If the version of the accused regarding misuse of cheque was indeed true, he ought to have filed a complaint against the complainant and Surender. However, he has also not given any reasonable explanation as to why no action has been taken against the complainant and Surender for misuse of cheque in question. Thus, it is difficult to believe the assertion of the accused. The accused has examined two more witnesses namely Sh. Laxmi Prasad Vishwakarma and Sh. Matiwar, however, they have not deposed anything relevant for the purpose of this case. Further, both of them admitted that they have been working as daily wage workers with the accused since 17 years. Thus, the possibility of them deposing in favour of accused cannot be ruled out.
19. It was also contended by Ld. Counsel for the accused that invoices Ex. CW-1/1 (colly) can not be read in evidence as they are forged and fabricated. It was also argued that the said documents are photocopies which have not been signed by the accused. He also argued that in the absence of original invoices/bills and certificate u/s 65-B of Indian Rakesh Saini vs. Sadanand Yadav CC No.23415/17 Page no. 8/10 Evidence Act supporting Ex. CW1/3, they can not be relied upon. Pertinently, at the time of post summoning evidence when the said documents were exhibited, Ld. Counsel for the accused did not raise any objection. Therefore, once these documents were proved on record without there being any objection on behalf of accused, now it can not be agitated that they are forged and fabricated. Even if for the sake of arguments, the said documents are eschewed from evidence, there is sufficient material on record against the accused. Once the complainant files the complaint on the basis that he is holding the cheque as the holder in the due course and the said cheque got dishonoured and it is also established that the due notice of dishonour of the said cheque was given to the accused, there is a clear presumption in favour of the complainant that the amount is due under the said cheque. In the present case also, the accused at the time of recording of statement u/s 313 Cr.PC admitted the business transaction with the complainant and his signatures on the cheque in question. In the case of B.M. Basavaraj v. Srinivas S. Datta (IV(2016) SLT 155), Hon'ble Supreme Court of India has set aside the order of trial court and the Hon'ble High Court that had dismissed the complaint primarily on the ground that the complainant had not furnished any document to prove that it had actually supplied the material to the accused as per the agreement. It was held by Hon'ble Supreme Court of India that "it is not even necessary for the appellant/complainant to produce any document to the effect that it had fulfilled the obligation under the agreement which was entered into between the parties. The case was found on the dishonour of two cheques and not on the basis of the said agreement. Further, it was a civil suit which was filed on the basis of said agreement or any demand was raised for money on the ground that the agreement had been fulfilled. The case is that the payment was not released. In the legal notice, specific averment made by the appellant/complainant that appellant/complainant had discharged his obligation under the contract and only thereupon the cheque was issued and the respondent/accused had not even replied to the said notice".
In the instant case also, it is specifically averred in the complaint, affidavit Ex. CW-1/A and legal notice Ex. CW-1/6 that the complainant had provided services as a sub-contractor to the accused and bills/invoices for a total sum of Rs. 3,07,718.25/- were raised. Thus, there is no requirement for the complainant to place on record bills, invoices, ledger account in support of his complaint. The claim of the complainant can not be discarded on the ground that the bills/invoices and the ledger account do not hold substantial evidentiary value in the eyes of law.
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20. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
21. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
22. Let the accused be heard on quantum of sentence.
23. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by PRIYANKA PRIYANKA RAJPOOT
RAJPOOT Date: 2019.11.20
15:28:40 +0530
ANNOUNCED IN THE OPEN COURT (PRIYANKA RAJPOOT)
TODAY i.e. 18th November, 2019 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
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