Delhi District Court
Cnr. Dlct020278682017 Asha Kukreja vs Dilip Jaiswal Page 1 Of 27 on 17 May, 2022
CC No. 14975/2017
CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 1 of 27
IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
CNR DLCT020278682017
CC No. 14975/2017
Smt. Asha Kukreja
D/o Sh. Wali Ram
R/o- MIG Flat No. 32-C, Ashok
Vihar Phase III, Delhi -110052 ...... Complainant
Vs.
Sh. Dilip Jaiswal
(Sole Proprietor of Syndicate Industry)
S/o Sh. Chander Bhusan
R/o 41, BES, Block Hari Nagar
New Delhi -110064 ...... Accused
Date of Institution : 17.11.2017
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the Accused : Not Guilty
Final Order : Acquitted
Date of Decision : 17.05.2022
JUDGEMENT
1. The present Complaint has been filed by the Complainant against Page 1 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 2 of 27 the Accused under section 138 Negotiable Instruments Act, 1881.
Factual Matrix
2. The brief facts as alleged by the Complainant in the Complaint are that the Complainant is the owner of industrial property bearing No. A-30, land measuring 150 sq.mt approx. in Pocket-A, Sector-4, situated in layout plan of Udyog Vihar, Bawana Industrial Complex, under relocation scheme Bawana, Delhi and that the Accused is the sole proprietor of Syndicate industry. It is alleged that the Accused along with his wife Suman Jaiswal approached the Complainant around May 2016 for taking on rent the industrial property of the Complainant. It is also alleged that the Accused along with his wife entered into a rent agreement dated 23rd of May 2016 which was executed by the Complainant in the wife of the Accused. Further, it is alleged that pursuant to the execution of the said agreement on 23rd of May 2016, the subject property was handed over to the Accused and his wife with all fittings and fixtures, the lease all rights of the land and it is alleged that the Accused and his wife agreed to take the same on rent at a monthly rent of ₹ 30,000 excluding day- to-day repairs, electricity charges, CETP, water and maintenance charges.
2.1 It is alleged that pursuant to the execution of the said agreement, the Accused took over possession of the property in question and started operating a sole proprietorship in the name of Syndicate industry with the same being the official address for all commercial Page 2 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 3 of 27 transactions and the said proprietorship firm of the Accused. It is also alleged that the Accused promise to pay the monthly rent of ₹ 30,000 against his possession of the said property and for operating a sole proprietorship firm from the said premises and in discharge of the legal and contractual obligation of his wife.
2.2 It is also alleged that the Accused neglected to adhere to the financial commitment as far as making payments of rent of the property was concerned and the Accused was a repeated offender and cheques previously issued by the Accused (not subject matter of instant complaint) against payment of the rent amount have also been dishonoured.
2.3 Further, it is alleged that on account of persistent defaults by the Accused, a sum of ₹ 2,19,994 was outstanding against the Accused in September 2017 and the Complainant had repeatedly requested the Accused to clear the aforesaid amount and other outstanding dues. It is alleged that on persistent request, the Accused made a promise to the Complainant through letter dated 2nd of May 2017 that the Accused shall clear the part payment due of ₹ 1 lakh by 31st of May 2017 along with part payment of ₹ 20,000 in the course of the day, i.e., 2nd of May 2017. Thereafter it is alleged that the Accused once again through letter dated 5th of May 2017 written on the letterhead of his proprietorship firm, admitted and assured the Complainant that the Accused has not paid the rent of the subject property for 5 months and that the Accused owed an amount of ₹ 150,000 which was stated to be cleared by 30th of May 2017 along Page 3 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 4 of 27 with any rent payable in future. It is also alleged that the Accused further promised to pay the above said amount as per the below mentioned schedule:
S.No. Date of payment Amount(Rs.)
1. 10th of May 2017 ₹ 30,000
2. 20th of May 2017 ₹ 30,000
3. 30th of May 2017 ₹ 40,000
2.4 It is alleged that the Accused again failed to pay the above said amount as promised. It is further alleged that thereafter, the Accused through letter/undertaking dated 27th of June 2017 admitted that the Accused has taken the said property on rent from the Complainant and that the Accused is in possession of the said property and further promised that the Accused shall vacate the said property by 30th of June 2017. Further, it is alleged that the Accused to clear the above said dues and all other pending dues in discharge of his liability, issued two cheques i.e., Cheque No. 002178 and 002179 dated 4th of September 2017 and 7th of September 2017 for an amount of ₹ 69,994 and ₹ 150,000 respectively and both drawn on Canara Bank, Paschim Vihar Branch.
2.5 When the Complainant presented the said cheques, hereinafter referred to as the cheques in question through his banker Union Bank of India, Subzi Mandi branch, the same were returned unpaid by the banker of the Accused vide returning memo dated 5th of September Page 4 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 5 of 27 2017 and 8 of September 2017 with the remarks "Payment stopped by drawer".
2.6 The Complainant thereafter issued a legal demand notice on 4th of October 2017 through counsel calling upon the Accused to pay the said cheque amount within a period of 15 days from receipt thereof. The said notice has been stated to be duly served upon the Accused and that the Accused failed to pay the aforesaid cheque amount within the statutory period.
2.7 Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (hereinafter the NI Act) was filed on 17th of November 2017 by the Complainant, praying for the Accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the court
3. Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit Ex. CW-1 wherein the Complainant has affirmed the facts stated in the instant Complaint.
4. Documentary Evidence: To prove the case, the Complainant has relied upon the following documents:
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a) Original rent agreement dated 23rd of May 2016 executed between the Complainant and the wife of the Accused, Ex.CW1/1
b) Handwritten note allegedly executed by the Accused dated 2nd of May 2017, Ex. CW1/2
c) Handwritten note allegedly executed by the Accused on the letterhead of 'Syndicate Industry' dated 5th of May 2017, Ex. CW1/3
d) Handwritten note allegedly executed by the Accused on the letterhead of 'Syndicate Industry' dated 27th of June 2017, Ex. CW1/4
e) Original cheques bearing no. 002178 and 002179 dated 4th of September 2017 and 7th of September 2017 for a sum of ₹ 69,994 and 1,50,000 respectively and both drawn on Canara Bank, Paschim Vihar Branch, Ex. CW1/5-6.
f) Original cheque return memos dated 5th of September 2017 and 8 of September 2017 Ex. CW1/7-8.
g) Office Copy of legal notice dated 4th of October 2017 Ex.
CW1/9-10.
h) Postal receipts and track report Ex. CW1/11-12 (Colly).
5. Summoning of the Accused: On finding of a prima-facie case against the Accused, the Accused was summoned on 19th of January 2018 where the Accused appeared before the court on 16th of August 2018.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused on 19th of January 2019 to which he pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused had stated that the cheques in question were signed by him and the legal demand notice Page 6 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 7 of 27 was received by him. He then stated that the cheques in question were forcibly taken from him by the son of the Complainant who had come along with 2 or 3 persons. He also stated that the cheques in question were taken a security for the outstanding rent against him. The Accused further stated that he might be having outstanding liability towards the Complainant to the tune of ₹ 30,000 or ₹ 40,000 but not to the tune of the amount as reflected in the cheques in question. The Accused stated that he was to vacate the premises in question by January 2017 but same could not be done as it was locked by the Complainant for non-payment of rent for one month. It was also stated that no work could be carried out in the factory during that period and the keys thereof were given to the Accused after about 15 to 20 days from the house of the Complainant and upon his repeated requests. The Accused then stated that he had taken a period of 1 ½ months from the Complainant for clearing the arrears and that he had also made certain payments in pursuance thereof. It was stated that as he failed to clear the entire payment so the premises were again locked at the instance of the Complainant which resulted in huge losses to the Accused. Then, it was stated that the Accused was not allowed to remove his machinery from the premises until payment of rent and in this way another period of 2 ½ months was wasted and the rent liability for that was also created against the Accused. Lastly, the Accused stated that he was humiliated by the Complainant in the presence of his customers and a security amount of ₹ 1 lakh was with the Complainant has not been adjusted and the cheques in question have been misused.
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7. Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the Complainant. Thereafter, the Complainant was examined as CW-1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged. Thereafter, Complainant evidence was closed, and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
8. Statement of the Accused: Statement of the Accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 16th of January 2020 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused, in addition to reiterating the stance taken in reply to the notice of accusation, stated that Ex. CW1/2 and Ex. CW1/3 were written and signed by him but they were taken forcibly by the Complainant. Ex. CW1/4 was admitted to have been executed by his wife. He admitted being the proprietor of Syndicate industry is and stated that he was the tenant of the Complainant from March 2016 till 30th of June 2017, on which state, he had vacated the premises of the Complainant. It was also stated that he had duly paid the rent of ₹ 30,000 per month to the Complainant and only the rent for the month of December 2016 was due to be paid to the Complainant. Further, it was stated that in the month of January 2017, his factory which he used to run from the premises of the Complainant was locked by the son of the Complainant and after 15 days, upon request to the Complainant, the Accused was given back the keys to the factory.
Page 8 of 27Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 9 of 27 However, it was stated that on account of the closure of the factory, the Accused could not arrange the rent and took time period of one and ½ month for payment but the Complainant locked the premises for another 2 ½ months. It was also stated that the Accused had lodged a complaint against the Complainant in PS Bawana on 22nd of May 2017 and subsequently the Complainant, her son and 2-3 other people forcibly took the cheques in question from the Accused after telling him to fill the amount of rent of around 6 months in those cheques. The Accused stated that he was only liable to the extent of ₹ 30,000 and not the sum mention in the cheques in question. Lastly it was stated that the son of the Complainant had threatened the Accused.
9. Defence Evidence: The Accused has examined himself as DW-1 and his wife Mrs. Suman Jaiswal as DW-2. Thereafter, a separate statement of the Accused to that effect was recorded and defence evidence was closed. The matter was then fixed for final arguments.
10. Final Arguments: Final arguments were advanced by both sides. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused. I have also perused the record. The Ld. Counsel for the Accused has relied upon the judgements in Hans Kumar Jain Vs. Renu Gandotra 1 and Praveen Goel Vs. Sanjay Vasudev 2.
1C.C. No. 26/11/13, Delhi District Courts 2 C.C. No. 2513/2017, Delhi District Courts Page 9 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 10 of 27 Legal Position
11. For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant: -
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank;
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice;
11.1. The aforesaid legal requirements are cumulative in nature, i.e. only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
Page 10 of 27Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 11 of 27 11.2. The provision of s.138 is buttressed by s.139 and s.118 of the Act.
s. 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. s.118 of the Act provides inter alia that the court shall presume, until the contrary is proved, 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.
11.3. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 and s. 118 of the Act mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume"
used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary.
11.4. In the case of Hiten P. Dalal v. Bratindranath Banerjee 3, the Hon'ble Supreme Court had occasion to examine the confines of the presumption u/s 139 of the Act, wherein it held as follows:
"22. Because both Sections 138 and 139 (..) "introduce an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused."
(Ibid. at p. 65, para 14.) (...) The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non-
3(2001) 6 SCC 16 Page 11 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 12 of 27 existence of the presumed fact.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
(...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).
11.5. Also, in the case of Rangappa v. Sri Mohan 4, it was held that:
"(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. (..)
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities".
(...) As clarified in the citations, the Accused can rely on the materials submitted by the Complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of 4 (2010) 11 SCC 441 Page 12 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 13 of 27 his/her own(...)"(emphasis supplied) 11.6. With regard to the factors taken into account for rebutting the presumption u/s 139 read with s.118 of the Act, the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena 5 assumes importance, wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. (...) The Accused, by cogent evidence, has to prove the circumstance under which cheques were issued". (emphasis supplied) Appreciation of evidence
12. Now I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredient in question or not.
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability 12.1.This condition pertains to the issuance of the cheque itself. It is pertinent to note that the Accused, in his notice of accusation has admitted his signature on the cheque in question. Further, the cheque has been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 read with s.118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or 5 CRL. A. No. 1136 Of 2010 Page 13 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 14 of 27 other liability.
12.2.In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal 6, it was held:
"12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. The court may not insist upon the defendant to disprove the 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. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. (emphasis supplied)"
12.3. Also, in the case of Kumar Exports Vs. Sharma Carpets 7, it was held:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
The Accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of 6 (1999) 3 SCC 35 7 2009 (2) SCC 513 Page 14 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 15 of 27 consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. (...) To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the Complainant. The Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear 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. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the Complainant's rescue. (emphasis supplied)"
12.4.The presumption, having been raised against the Accused, it falls upon the Accused to rebut it. The Accused has chosen to do so by cross-examining CW - 1 and by leading evidence on his behalf through DW-1 and DW-2.
Page 15 of 27Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 16 of 27 12.5.In sum, it is the defence of the Accused that he was the lessee of the premises owned by the Complainant from March 2016 till 30th of June 2017 at the monthly rent of ₹ 30,000 which was diligently paid to the Complainant. The Accused has stated that only the rent for the month of December 2016 was due to be paid to the Complainant. It is also the case of the Accused that in the month of January 2017, the said premises were locked by the Complainant, resulting in hardship in business and the Accused being constrained to request for extension of time to pay rent for that month. Further, it is the case of the Accused that due to the premises being locked for another 2 ½ months, the Accused had suffered losses and he had also lodged a complaint against the Complainant. Finally, it is the case of the Accused that the Complainant and her son had forcibly took the cheques in question, issued as security, and upon which the Accused had filled up the amount and signature and presented them for excessive amount whereas the Accused was only liable to the extent of ₹ 30,000 to ₹ 40,000.
12.6.At the outset, the learned counsel for the Accused submits that the Accused is not liable under the rent agreement Ex. CW1/1 for the reason that the said agreement has been executed between the Complainant and the wife of the Accused. He also states that the Complainant is not in a position to deny that the Accused is not her lessee under Ex. CW1/1. It is also stated that the monthly rent, if any, was to be recovered from the wife of the Accused, who is the lessee under the said agreement. Relying on the aforesaid, the Page 16 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 17 of 27 learned counsel submits that the Accused is not liable under Ex. CW1/1 as he is a stranger to the document. Further, it is submitted that even assuming that the said document could be read against the Accused, the Complainant has not been able to show anywhere in the complaint as to how the security deposit of ₹ 1 lakh in Para 4 of Ex. CW1/1 was adjusted against the alleged overdue liability of ₹ 219,994 claimed in the complaint.
12.7.Per contra, the learned counsel for the Complainant submits that the Accused has admitted being the tenant of the Complainant and paying rent all throughout the trial and has never disputed the same. It is also stated that despite Ex. CW1/1 not being executed with the Accused herein, the Accused has even otherwise admitted his liability to pay rent for the subject premises in Ex. CW1/2-4. In respect of the security deposit, the learned counsel submits that CW
- 1 has deposed in her cross examination that she had not received any security amount from the Accused or his wife in terms of Para 4 of Ex. CW1/1. It is also stated that even assuming that the security deposit was taken by the Complainant, only recovery proceedings would lie against the Complainant in the civil court.
12.8.So far as the contention qua receipt of security deposit is concerned, any oral testimony of CW - 1 which operates to contradict the averments of Ex. CW1/1 would be barred by the parol evidence rule embodied in Ss. 91 and 92 of the Indian Evidence Act, 1872 and the Complainant would not be in a position to deny the factum of the security deposit of ₹ 1 lakh being an inextricable term of Ex.
Page 17 of 27Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 18 of 27 CW1/1. Thus, even if this court acts on the assumption that the Accused was the de-facto lessee and liable to pay the rent of the subject premises, the Complainant was bound to explain as to how the security deposit of ₹ 1 lakh was adjusted against the claim of ₹ 219,994 which the Complainant has not done either in her complaint or in her evidence affidavit. The same has cast doubts on the case of the Complainant.
12.9. Ex. CW1/1 is the principal document relied upon by the Complainant to support her claim. It is seen that the said document, through purporting to be an ostensible "Rent Agreement" is, in fact a lease of immovable property for 1 year and 10 months which has been executed with the wife of the Accused i.e., DW-2. The same is apparent on perusal of the recitals whereby the 1st party has been described as the landlord and the 2nd party has been described as the tenant. Further, it has been stated that "the 1st party has agreed to let out the property...... with the leasehold rights of the land underneath on rent to the 2nd party" and "the tenancy has/will commenced (sic. Commence) w.e.f. 01/05/2016 for a period of 01/03/2018 only" and "the monthly rent of ₹ 30,000 will be paid in advance....". The further stipulations that the tenant shall not sublet, assign or transfer the premises and would serve advance notice to the landlord prior to termination also discloses the intention of the parties.
12.10. Further, the fact that Ex. CW1/1 was itself executed on 23rd of May 2016 but the lease period was to be reckoned w.e.f. 1st of May 2016 Page 18 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 19 of 27 would mean, in the absence of any other lease deed/document produced by the Complainant, that Ex. CW1/1 itself is the document which is evidencing a demise a praesenti upon specified terms and taking into account that the prospective lessee is already in prior possession of the premises. Hence, Ex. CW1/1 cannot but be held to be a document evidencing lease of the subject property and its terms thereof. The mere use of the recitals "agreed to let"
will not detract from the said position. Another inkling which supports this conclusion is the property description in the stamp paper whereby the property is described as "Article 35(ii) 8 Lease with security up to 5 years".
12.11. The foregoing discussion would show that the said document would require to be sufficiently stamped and compulsorily registered for the purposes of being admitted into evidence and be taken into account in the instant case.
12.12. So far as the question of stamp duty is concerned, it is seen that Ex.
CW1/1 stamped with a measly amount of ₹ 50 whereas the ad valorem duty would be upon ₹ 360,000 i.e., the annual rent. Such duty would come out to be ₹ 1480.875 9. In this backdrop, even though the said instrument was insufficiently stamped at the time of tendering it in pre-summoning as well as post-summoning evidence, it was taken on record by the Ld. Predecessor of this Court and without demur from the other side. For the aforesaid reason, the 8 Of the Indian Stamp Act, 1899 9 As per Article 35(ii) of the Indian Stamp Act, 1899 Page 19 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 20 of 27 consequences u/s 36 of the Indian Stamp Act, 1899 will follow whereby the said document cannot be called into question at any subsequent stage on account of insufficient stamping.
12.13. However, the aspect of registration still requires thorough consideration. It is pertinent to note that s.2(7) of the Indian Registration Act, 1908 does not make any distinction between a "lease" and "an agreement to lease". Further, leases of immovable property from year to year, or for any term exceeding one year, or reserving yearly rent are made compulsorily registrable 10. Therefore, it would not matter for the purpose of the Indian Registration Act as to whether Ex. CW1/1 is a lease or an agreement to lease and either of the same would be compulsorily registrable u/s 17 of that Act in as much as it pertains to immovable property. As such, the consequences u/s 49 of that Act have to necessarily follow in respect of the said document. S. 49 11 is reproduced below:
49. Effect of non-registration of documents required to be registered.-- No document required by section 17 1 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:1
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be 10 u/s 17 of the Indian Registration Act, 1908, see also s.106 of the Transfer of Property Act, 1882 11 Of the Indian Registration Act, 1908 Page 20 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 21 of 27 registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) 2, 3*** or as evidence of any collateral transaction not required to be effected by registered instrument 12.14. It is well settled that the defect of non-registration is incurable and goes into the root of the document and hits upon its inherent admissibility in proof of the covenants therein. It is also well settled that an objection to the effect that the document, being compulsorily registrable has not been registered cannot be waived and can be taken at any stage of the trial and even in appellate proceedings.
Mere marking of the said document as Exhibit will not cure the defect 12 and the Court has to apply its mind even though the defect of non-registration is taken at the very last stage. So far as the question of collateral purpose is concerned, it has been held in the case of M/S K.B.Saha And Sons Pvt. Ltd vs M/S Development Consultant Ltd. 13 that:
"1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that 12 As 'Mark' and 'Exhibit' denote documents for identification and do not amount to irrebutable proof; see Sudir Engg. Vs. NITCO Roadways, 1995 IIAD Delhi 189 13 (2008) 8 SCC 564 Page 21 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 22 of 27 is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose."
12.15. Hence, Ex. CW1/1, the focal document forming the substratum of the case of the Complainant is rendered wholly inadmissible on the ground of it being unregistered and no legally enforceable debt or other liability therefrom can attach to the parties thereto or to any other person by placing reliance on its terms. Further, it is seen that the said document has been executed by the Complainant not with the Accused but with the wife of the Accused, i.e., DW-2, who is admittedly neither the drawer of the cheques in question nor arrayed as Accused in the present matter. The Accused is undoubtedly a stranger to Ex. CW1/1 and cannot be held to be liable to the Complainant as lessee. Even if the matter be examined from the point of the Accused having issued the cheques in question to secure the payment of rent by DW-2, the fact remains that any liability arising out of unregistered Ex. CW1/1 against either DW-2 or the Accused would not be in the nature of legally enforceable debt or other liability, as it essentially stems from an enforcement of an important term in an unregistered document.
12.16. Now, the scope and effect of Ex. CW-1/2-4, all admitted to have been written and signed by the Accused, is to be discerned. Ex. CW-
Page 22 of 27Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 23 of 27 1/2 purports to be an undertaking dated 2nd of May 2017 made by the Accused to the effect that the Accused shall pay ₹ 1 lakh by 31st of May and the promise to pay ₹ 20,000 on the same day after lunch. Ex. CW1/3 is a subsequent undertaking dated 5th of May 2017 whereby the Accused has undertaken to be liable for 5 months of rent amount to ₹ 150,000 out of which, ₹ 1 lakh is undertaken to be paid by the Accused by 30th of May 2017. It is pertinent to note that in neither Ex. CW1/2 nor Ex. CW1/3, it is mentioned as to who is the recipient of the said amount and the said document remain ambiguous when viewed in support of the case of the Complainant. The name of the Complainant figures in Ex. CW1/4 which is another undertaking dated 27th of June 2017 thereby the Accused has promised to vacate the premises taken from the Complainant by 30th of June 2017. Thus, on a consideration of Ex. CW-1/2-4, no crystallized liability, let alone any liability to the extent of the amount under the cheques in question is even remotely made out against the Accused and in favour of the Complainant herein.
12.17. Much emphasis was laid by the learned counsel for the Accused to the fact that the Accused herein has not disputed being a tenant of the Complainant at any stage of the trial. It is also stated that the Accused had when appearing as DW - 1, admitted taking a factory on rent from the Complainant at monthly rent of ₹ 30,000 and occupying the premises. The said contention, though appears fanciful at first blush, is wholly without merit. When Ex. CW1/1 has been held to be wholly inadmissible, it follows as a sequitur that Page 23 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 24 of 27 the Complainant, being unable to produce any evidence in the affirmative, cannot rely upon the admission of the Accused to establish his own case. The reply to the notice of accusation u/s 251 Cr.P.C and the statement of the Accused u/s 313 r/w 281 Cr.P.C are both without oath and would not form a substantive piece of evidence. Further, even if the testimony of DW - 1 is taken at face value, it cannot be said that the said statement itself establishes any distinct oral lease/agreement between the Complainant and the Accused. The Complainant cannot rely upon the admissions made by the Accused to support her own case (and try to establish landlord-tenant relationship between herself and the Accused, which is beyond the complaint) and fasten liability upon the Accused. Further both DW - 1 and DW-2 have categorically deposed that the Accused is liable for a lesser amount and not to the extent of the amount claimed under the cheques in question and their testimonies have gone unrebutted to that extent.
12.18. Next, the learned counsel for the Accused has contended that there is no averment in the police complaint Ex. CW1/D1 (Later Ex. DW1/1) that the security cheques were taken forcibly or that Ex. CW-1/2-4 were signed under duress by the Accused. It is also stated that the Accused has admitted that no action has been taken on the police complaint. It must be kept in mind that the case of the Complainant must stand on its own legs. Though the case of the Complainant is initially aided by presumptions in his favour, the burden of satisfying all the legal ingredients of the offence beyond Page 24 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 25 of 27 reasonable doubt rests upon the Complainant and never shifts. The Complainant cannot rely upon the inconsistencies in the defence in support of its own case. Even if an adverse inference 14 is drawn against the Accused on that score, the fact remains that the Accused has, consistent with the standard of a reasonable man, promptly stopped the payment of the cheques in question which sits consistently with his defence taken throughout the trial. Even otherwise, an inference is not evidence. An adverse inference cannot operate to tilt the scales in favour of the Complainant when the Accused has, from the materials already on record and by way of leading independent evidence, established his defence and has been able to show that the case of the Complainant is improbable, when looked at from the standard of a reasonable man.
12.19. Resultantly, the presumption that the cheque in question were issued in discharge of any legally recoverable debt or other liability of the Accused stands rebutted and the onus shifts back upon the Complainant to prove the same. Considering the evidence on the record, the Complainant has miserably failed to discharge this onus and this ingredient remains unfulfilled as against the Accused.
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
12.20. This requirement is satisfied on a perusal of the cheques in question Ex. CW1/5-6 which bear date of 4th of September 2017 and 7th of 14 u/s 114 of the Indian Evidence Act, 1872 Page 25 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 26 of 27 September 2017 and the return memos Ex. CW1/7-8 which bear the date of 5th of September 2017 and 8th of September 2017. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused.
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank 12.21. s. 146 of the Negotiable Instruments Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The bank return memo Ex. CW1/7-8 on record states that the cheque in question has been returned dishonoured for the reason "Payment Stopped by Drawer". The defence has led no evidence to controvert the same and hence, this ingredient is also fulfilled as against the Accused.
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid 12.22. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/9-10 to the Accused. The original postal receipts and track reports in respect of the same are already on record as Ex. CW1/11-12. However, the Accused has admitted receiving legal demand notice in his notice of accusation and in his Page 26 of 27 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 14975/2017 CNR. DLCT020278682017 Asha Kukreja V/s Dilip Jaiswal Page 27 of 27 examination u/s 313 read with s.281 Cr.P.C 12.23. Hence, the said ingredient is fulfilled as against the Accused, being not in dispute.
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice 12.24. In the instant case, the Accused has admitted receiving legal demand notice, both in the notice of accusation u/s 251 Cr.P.C. and the statement of the Accused u/s 313 read with s.281 Cr.P.C.
12.25. It is also an admitted position that the Accused has not made payment of the amount under the cheques within the statutory period, on the ground that he does not owe any liability towards the Complainant. Hence, this ingredient stands fulfilled as against the Accused.
Decision
13. As all the ingredients of the offence are not cumulatively satisfied against the Accused, the Accused Dilip Jaiswal is hereby Acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
VISVESH Digitally signed by VISVESH
Date: 2022.05.17 13:46:06 +05'30'
ANNOUNCED IN OPEN (VISVESH)
COURT ON 17.05.2022 MM, NI ACT-06, CENTRAL
TIS HAZARI COURTS,
DELHI
Page 27 of 27
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