Delhi District Court
Bir Singh vs M/S Sunbeam Engineering Corporation on 25 February, 2012
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
CA No. 101/11
Bir Singh
S/o Sh Nepal Singh
R/o H.No. 907, sector - 29,
Faridabad, Haryana. ........Appellant/Accused
Versus
M/s Sunbeam Engineering Corporation,
B36, Okhla industrial Area,
PhaseI, New Delhi
Though Sh Baldev Raj .........Respondent/Complainant
JUDGMENT:
1. By way of present appeal, appellant has challenged impugned judgment dated 27.07.2011 and order on sentence dated 29.07.2011 whereby appellant is directed to pay compensation to the tune of Rs. 1,10,86,372/ i.e. cheque amount in question and to undergo simple imprisonment for the term of one year and in default of payment of compensation appellant shall further undergo SI for three months.
2. Brief facts as per complaint filed by respondent/complainant are that Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-1) appellant/accused Bir Singh persuaded complainant for purchase of agricultural land in Raigarh district of Maharashtra and in the process took money from him and got few sale deed registered in the name of complainant i.e., sole proprietorship concern. It is further alleged in that accused/appellant further took the money by various mode such like cash, cheque, DD etc. from the complainant but instead of getting title deed executed in the name of complainant, accused/appellant purchased the land in his personal name. It is further alleged that on coming to know this fact accused/appellant promised to repay the amount received by him from the complainant and in this pretext issued four cheques to the complainant but all four cheques amounting to total of Rs. 1,10,86,372/ got dishonoured on account of "funds insufficient". It is further alleged that after dishonouring of the cheques when the complainant brought the fact of dishonoring of cheques to the notice of accused/appellant, then accused told him that as the property prices gradually rising, he decided to purchase the property in his own name and after selling the property at higher price, he will return the principle amount alongwith interest to complainant.
3. On completing the statutory formalities of issuance of notice etc., the complainant filed the present complaint before Ld. MM and on appearance accused/appellant pleaded not guilty and claimed trial. Thereafter, the complainant filed his affidavit of evidence Ex.PW1/X Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-2) at postsummoning stage and deposed on the same lines as averred in the complaint and was cross examined by the accused/appellant on 31.05.2010.
4. In cross examination PW1 Sh. Baldev Raj proprietor of complainant company deposed that he received four cheques but he do not remember the date and amount of those four cheques as these were issued three years back and he further deposed that cheques were issued to him after being duly filled and also do not remember on what date he deposited the cheques in bank. He further deposed that he do not know who have written those cheques, however same were handed over by accused/appellant and know the accused since the year 2007 and since then dealing with him and came in contact with accused through Anand Khattar and paid the amount to the accused to purchase land in Bombay. He further deposed that Anand Khattar introduced him with accused Bir Singh and told that accused is dealing in land in Bombay and accused will purchase land for him. He further deposed that accused purchased the land, thereafter, asked him to pay the money and commission of 2% consideration was agreed upon to be paid to accused Bir Singh and he do not remember the name of the persons against whom he issued some cheques.
5. Thereafter, statement of accused was recorded u/s. 313 Cr.P.C. and in that statement he alleged that it is a false case and stated that Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-3) complainant had made payments to the parties and he had given the blank cheques after signing the same and cheques have been filled by the complainant and the amount on cheques are much high from what he has received from the complainant. Though the accused at the time of recording of statement opted to lead DE but the same was not led by the accused. Therefore, his DE was closed vide order dated 26.06.2010. Later on he has filed an application for recalling of PW1 for further cross examination and filing of some additional affidavit. But the said application was dismissed by the trial court vide order dated 20.04.2011 and against that order the applicant moved to Hon'ble High Court and there also his petition was dismissed and further he went to the Apex Court where his SLP was dismissed as withdrawn.
6. Ld. trial court vide impugned judgment had observed that there is presumption in favour of holder of the cheque for existence of whole or part liability however that presumption is rebuttable and that presumption can be rebutted by accused by raising probable defence. Ld. trial court vide impugned judgment observed that complainant has not asked even the single question whether the complaint is false or cheques were given in blank and further accused had not raised any defence evidence despite sufficient opportunity and further as per the statement of accused u/s. 313 Cr.P.C. accused has not denied the issuance of cheques and further admitted of receiving some payment Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-4) and only grudge is that amount of the cheques are much higher what he received from the complainant and to prove this fact accused could not produce any evidence on record. On over all appreciation ld. trial court concluded that accused unable to rebut the presumption raised by law, therefore, accused found guilty and convicted for offence u/s. 138 N.I. Act.
7. Ld. counsel for the accused/appellant vehemently argued that for rebutting the presumption u/s. 139 of N.I. Act accused/appellant do not require to come into the witness box and can rely upon the material on record and on the evidence of complainant. Ld. counsel for accused/appellant further submits that for rebutting the presumption he has to only raise probable defence and for raising probable defence accused need not to lead defence evidence and can raise the same by improbablising the version of the complainant and as soon as the accused managed to improbablise the prosecution story, the protection granted to complainant u/s. 139 N.I Act stood rebutted then complainant has to led the evidence to prove the guilt of the accused . Ld. counsel for accused/appellant for raising this proposition has relied upon the judgment of Supreme Court in case titled as "Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513", "Rangappa vs. Sri Mohan (2010) 11 SCC 441", "Krishna Janardhan Bhat Vs. Dattarrraya G Hegde (2008) 4 SCC 54".
Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-5)
8. Ld. counsel for accused/appellant further submits that it is improbable and unthinkable that compliant will give huge amount of Rs. 1,10,86,372/ to the accused/appellant, a property dealer for purchase of land without executing any document. He further submits that complainant even could not tell how he paid the said amount. Ld. counsel for accused/appellant further submits that if accused/appellant has misappropriated the money of the complainant then why he will pay such huge amount without any FIR or case. Ld. counsel for accused/appellant further argued that sequence of presentation of cheques itself shows that they were given in blank. It is further argued by ld. counsel for the appellant that why all the four cheques were presented by the complainant together which were returned unpaid on 16.02.2009. Ld. counsel for accused/appellant further submits that complainant in cross examination stated that he had given cheques not in the name of accused Bir Singh but in the name of some other, this itself shows that accused/appellant has no liability towards complainant. Ld. counsel for accused/appellant further submits that such a huge amount is paid by the complainant to the accused but no accounts books were shown in this regard neither any written document on transaction was produced before the court. Ld. counsel for accused/appellant further submits that the appellant managed to raise a probable defence by raising these material defects and lacuna in Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-6) complainant case and thus managed to rebut the presumption found in favour of complainant u/s/ 139 N I Act.
9. Ld. counsel for the respondent/complainant on the other hand submitted that accused/appellant could not raise any defence at any stage. ld. counsel for the respondent submits that accused can raise the defence at the time of receiving of statutory notice but he opted not to reply the same. Ld counsel for the respondent further submits that accused can raise the defence at the time of framing of notice as the present case is summary trial case but he has not raised the same. Ld counsel for the respondent also submits that accused/appellant even has not put any suggestion that he issued blank cheques to the complainant or he was implicated in the false case. Ld counsel for the respondent further submits that accused/appellant even had not asked the complainant that he has filled the higher amount on the cheques though the liability is towards shorter side. Ld counsel for the respondent further submits that however by stating the same accused has admitted his liability that he issued the cheque for valid consideration. Ld counsel for the respondent further submits that the application of accused u/s. 311 Cr.P.C. was also stands dismissed till the Apex court and could not rebut the presumption raised u/s. 139 N I Act and the impugned judgment passed by the Ld. trial court do not suffer from any infirmity and accused is rightly convicted for offence u/s. 138 N I Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-7) Act.
10. Arguments heard. Record perused.
11. It is a settled law that presumption u/s 138 & 139 NI Act required to be raised in every case where the factual basis for raising this presumption are established. In the present case complainant has led the evidence that cheques were dishonoured on the ground of 'insufficient funds' and further proved the memo issued by the accused bank in this regard. Accused also do not disputed his signatures on dishonoured cheques in question and only raised the plea that the cheques were given to the accused blank. Thus, the presumption u/s 139 NI Act is clearly available to the complainant that the said cheques were issued by the accused for discharge of legally enforceable debt or liability. Now burden is over the accused to rebut the same.
12. Apex court in "Rangappa Vs. Shri Mohan , (2010) 11 SCC 441" has observed that for rebutting the presumption u/s 139 NI Act the standard of proof for doing that is of preponderance of probabilities and if accused able to raise such defence which creates doubt over the existence of legally enforceable debt or liability the prosecution can fail. Thus, the test for rebutting the presumption is to raise a 'probable defence' and accused need not to prove his case beyond reasonable doubt. The Apex court in catena of judgments have observed that accused has to raise only a 'probable defence' for rebutting Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-8) presumption.
13. Now the next pertinent question is that how to raise the probable defence so as to rebut the said presumption. Apex court in "Rangappa case (supra)" observed that for raising 'probable defence', accused can rely upon the material submitted by the complainant in order to raise such defence or it is conceivable in some cases accused may not need to adduce evidence. Apex court in 'Krishna Janardhan Bhatt Vs. Dutta Raya G. Hegde, (2008) 4 SCC 54" observed that an accused discharging burden of proof placed upon him under a statute need not examine himself and he may discharge his burden on the basis of the material already brought on record.
14. Apex court in "Bharat Barrel and Drum Manufacturing Company's case AIR 1999 SC 1008" has observed that " the court may not insist upon the accused to disprove existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt". Apex court categorically opined that " it is not necessary for the accused to disprove the existence of consideration by way of direct evidence. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies." Apex court in "M.S. Narayanan Menon Vs. Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-9) State of Kerala, 2006 (6) SCC 39" have observed that "if for the purpose of civil litigation defendant may not adduce any evidence to discharge the initial burden placed on him, a 'fortiori' even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court". And entitled to discharge the burden from the material brought on record by the complainant. In "K Prakashanan Vs. P.K. Surenderanan, (2008) 1 SCC 258" apex court reiterated that it is not necessary for accused to discharge the burden to step into the witness box. Bombay High Court in case titled as "Sh Vinay Purlekar Vs. Sh Pramod Meshram , 2008 Cr.L.J 2405" after analysing the various Apex court judgments on the point how to raise a 'probable defence' observed that presumption u/s 139 NI Act could be rebutted either by leading evidence or bringing facts on record in cross examination of the complainant which could make the case of complainant improbable to the fact that the cheque in question was not issued for discharge of any debt or liability.
15. To sum up, the accused for rebutting the presumption can raise the probable defence either by leading evidence or could make the case of the complainant improbable by relying upon the materials on the record and from the cross examination of the complainant. And it is not Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-10) necessary for him to lead defence evidence.
16. In present case admittedly, accused not lead the defence evidence. Accused has not replied to the statutory demand notice under section 138 NI Act. Accused in his plea u/s 313 Cr.P.C or in cross examination of complainant not raised the plea that he had not received the said notice. Accused in his plea u/s 313 Cr.P.C had raised a plea that he has given the blank cheques to the complainant, but had not stated in his statement u/s 313 Cr.P.C, why and when, had given the said blank cheques to the accused though raised a plea that he had got some payment from the complainant but complainant had filled higher amount in said cheques. But this plea accused had not put to complainant in cross examination.
17. The accused was given full opportunity to cross examine the complainant. In cross examination he has not given any suggestion to the complainant that he misutilised the blank cheques. Accused had even not given any suggestion in cross examination to the complainant that he has no liability towards complainant. Thus, accused not able to raise any defence or plea that why he had given the blank cheques to the complainant and even not raised plea that said cheques were given without any consideration.
18. Accused further made another attempt during the trial to recall the complainant for further cross examination and in this regard he has Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-11) filed an application u/s 311 Cr.P.C. Though the said application was dismissed even in that application also has not averred what was the nature of transaction took place between both and why he had given the said blank cheques to the complainant and only baldly averred that these were by way of security but not cleared why he had given the same as security.
19. Thus, accused unable to lead any evidence over the fact of nature of transaction between parties and miserably failed to prove that he handed over the blank cheques and the cheques in question were not for any debt or liability.
20. But for rebutting the said presumption the accused has another option i.e, to improbablise the complainant version. The complainant in his testimony deposed that he engaged the services of accused for purchasing agricultural land in Raigarh District of Maharashtra and accused has purchased some land in his name but complainant also not opted to divulge the details of the same nor stated when those lands were purchased by accused for complainant firm. Complainant further deposed that subsequently he had given some more money to accused for purchase of land by way of cash, cheque, DD etc but instead of getting the title deeds in favour of complainant he purchased the land in his own name. Here also the complainant has not disclosed what amount of cash, cheque or DD had been given to accused for Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-12) purchasing the land and even had not specified what title deeds were executed by accused in his favour instead of complainant.
21. Complainant in cross examination could not state the name of the bank from where cheques were issued and also could not tell when these cheques were issued to him though stated 3 years back. The cross examination of the complainant was recorded on 31.05.2010 therefore, as per his cross examination the said cheques were given to him 3 years back i.e, in month of May 2007 however, said cheques bears the date of November and December 2008 and present case is not the case of post dated cheques. In cross examination further stated that accused asked him money for purchase of land and made the payment but do not remember the names of the person in favour of whom he issued some cheques whereas in complaint, complainant has not stated that he issued cheques in the name of some other person. The case of the complainant is that the cheques, cash, DD were all given to the accused.
22. The nature of transaction is worth more than one crore between both the parties but none of the parties had produced any document relating to their transaction. Complainant though in cross examination stated that he can show the record. But no steps were initiated by accused to make him to produce that record and complainant himself also had not opted to disclose the same.
Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-13)
23. Ld. counsel for accused submitted that sequence of cheques as presented itself shows that these were given blank. Further, why would accused give cheques without any FIR or case and why all cheques were presented on the same day, this all itself shows that cheques were given in blank. But this arguments has no force of law because these questions were not put to complainant in cross examination and opportunity to explain the same was not given to the complainant.
24. Ld. Counsel for the accused heavily relied upon the judgment of Hon'ble Delhi High court in "Pine product Industries Vs. R.P. Gupta & Sons, 2007 (94) DRJ 352" and submitted that in that case hon'ble Delhi High court has observed when the complainant himself is vague over aspect of liability in discharge of which cheques were issued and placed no details as to how the amount in question is arrived at, the order of conviction is to be set aside. I have gone through that judgment. In that judgment also the accused did not lead any defence evidence and his application u/s 311 Cr.P.C was also rejected by trial court. In that case also the court is left with the evidence lead by the complainant. But in that case the accused has replied to the notice u/s 138 NI Act. And has raised conspicuous pleas with regard to the manner and circumstances under which the complainant came into possession of the cheques in question and nature of transaction in reply to notice and in cross examination of complainant. But in present case Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-14) accused unable to raise such pleas. He had not replied to the statutory notice nor even in cross examination of complainant raised the plea that the cheques issued in blank, further not asked why the cheques were given to the complainant and what is the nature of transaction behind that. Above all even not suggested that cheques were without consideration.
25. Now the question is that when the accused himself has concealed the entire material facts regarding nature of transaction or why issued blank cheques etc., then whether mandatory presumption u/s 139 NI Act could be held stands rebutted just on the basis that complaint is vague over the transaction and details of payment of debt or liability. Apex court in "Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513", in context of presumption u/s 139 and 118 of NI Act observed that presumptions are devices by use of which the courts are able and entitled to pronounce an issue notwithstanding that there is no evidence or insufficient evidence and presumption literally means 'taking as true without examination on proof'. Apex court in "Rangappa (supra)", observed that section 139 NI Act is an example of reverse onus clause that has been included in furtherance of legislative object of improving the credibility of negotiable instrument Act and in absence of compelling justifications reverse onus clause usually imposes evidenciary burden and not persuasive burden. The accused in the Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-15) present case unable to raise the plausible defence over issuance of blank cheques or that same were without any liability or debt and further himself chooses to conceal the material particulars of nature of transaction between both, then in these circumstances, in my view mere vagueness of present nature or non placement of the documents of transaction by the complainant is not sufficient to deprive him the benefit of mandatory protection granted u/s 139 NI Act.
26. In view of above discussion, accused unable to raise any probable defence so as to rebut the presumption u/s 139 NI Act thus not entitled for any relief. Impugned judgment of conviction do not suffer from any infirmity and accused is rightly convicted by trial court for commission of offence u/s 138 NI Act. Hence, present appeal stands dismissed. Further impugned order on sentence also do not require any interference. Copy of this judgment alongwith TCR be sent back to the trial court to initiate appropriate further proceedings in accordance to law. File be consigned to record room.
Announced in the open court On this day of, 25th February, 2012 (Ajay Kumar Jain) Additional Sessions Judge-03, South East District, New Delhi Bir Singh Vs. M/s Sunbeam Engineering Corporation, CA No. 101/11 (Contd..pg-16)