Delhi District Court
Seniors Builders Ltd vs . Shourya Towers Pvt Ltd & Another on 26 August, 2014
-:1:-
IN THE COURT OF MS. MANU VEDWAN, LD. METROPOLITAN
MAGISTRATE : SPECIAL COURT - 05 (NI ACT) : DWARKA : DELHI
Seniors Builders Ltd Vs. Shourya Towers Pvt Ltd & another
Complaint Case No. 97/14
P.S. : R. K. Puram
U/s. : 138 N.I.Act
J U D G M E N T
1 Name of the complainant : Senior Builders Ltd Through its Authorised Representative Sh Amitava Bhattacharya 1/1 Shanti Niketan New Delhi21
2. Name of the accused and address : 1 Shourya Towers Pvt Ltd 78B Sector D2 DDA Flats Kondli Gharoli, Mayur Vihar Phase3, New Delhi96 2 Anil Jain Director Shourya Towers Pvt Ltd 78B Sector D2 DDA Flats Kondli Gharoli, Mayur Vihar Phase3, New Delhi96
3. Offence complained of : U/s.138 N.I.Act
4. Plea of accused : Pleaded not guilty
5. Final Order : Acquittal
6. Date of Reserving the : 22.08.2014 Judgment
7. Date of Judgement : 26.08.2014 CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:2:- Date of Institution of case : 22.12.2006 Date of Decision of the case : 26.08.2014 BRIEF SKETCH OF THE CASE
1. Vide this judgment, I shall dispose of the complaint u/s.138 read with Section 142 of the Negotiable Instruments Act, 1881 against the accused.
2. The case of the complainant as per the complaint is that complainant is having its office at 1/1 Shanti Niketan, New Delhi21. The present complaint on the behalf of the complainant company has been filed through its authorized representative Sh. Amitava Bhattacharya. Complainant is engaged in the business of real estate property development in Delhi and NCR. It is further submitted that on 8th of July, 2005, complainant company entered into an agreement with the accused No. 1 company, regarding the assignment/sale of rights of complainant company in lands at Santoshi Nagar, Jalandhar, Punjab, in favour of the accused no 1 acting through accused No. 2 and certain associate companies of accused No. 1, also acting through accused No. 2. 3 It is further submitted in the complaint that on 08.04.2006, an an amount of more than Rs. 5.5. crores was due to the complainant from the accused persons. Thus, in order to discharge admitted partial liability, accused no. 1 through accused no. 2 issued two cheques drawn on HDFC Bank, Vasundhra Enclave, Delhi that is cheque bearing No. CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:3:- 135552 dated 09.10.2006 for a sum of Rs. 1.2 crores and cheque bearing No. 135553 dated 09.10.2006 for a sum of Rs. 1.35 crores in favour of complainant with an assurance that the abovesaid cheques would be duly encashed on presentation. Aforementioned cheques were first presented for encashment on around 9th October, 2006, but the same were returned for the reason Funds insufficient. It is further submitted that complainant apprised the accused persons regarding dishonour of the abovesaid cheques, accused persons reassured the complainant to represent the cheques around 17th of November, 2006. Accordingly complainant once again represented the said cheques for encashment on 17th November, 2006 and the said cheques were once again returned for insufficient funds.
4 It is further submitted by complainant that complainant sent a legal notice dated 18.11.2006 to the accused under Section 138 of Negotiable Instruments Act, through registered AD. By virtue of said notice accused was requested to clear the outstanding amount and pay the amount of the cheque within 15 days from the receipt of the legal notice dated 18.11.2006 failing which the accused was notified that necessary action under Negotiable Instruments Act, 1881 as amended up to date would be taken against him by the complainant bank. The said notice was duly received by the accused persons. The accused persons, however, through their reply dated 2.12.2006 denied any liability or obligation to pay the amount against the dishonoured cheques.
CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:4:-
5. The complaint was filed within limitation on 22.12.2006 pursuant to which summons were issued on 03.03.2007. Accused entered appearance on 18.11.2008 in execution of proceedings U/s 82 Cr. PC and was admitted to bail. Notice u/s.251 CrPC was framed against the accused on 11.12.2008 to which the accused pleaded not guilty and claimed trial. Thereafter, the matter was listed for evidence.
6. AR of the complainant has been examined during post summoning evidence as CW1. CW1 adopted pre summoning evidence Ex. C1 as post summoning evidence and has relied upon following documents - copy of resolution dated 12.01.2009 ex. CW1/1, certified copy of Resolution in favour of Sh. Amitava Bhattacharya exhibited as Ex. CW1/2, cheques in question as sEx. CW1/3 and Ex. CW1/4 and dishonour memos as Ex.CW1/5 and Ex.CW 1/6. Bank Memos are Exhibited as Ex.CW1/7 and Ex. CW1/8. Debit memos of the complainant are ex. CW1/9 and Ex. CW1/10. The copy of the Legal notice dated 18.11.2006 is exhibited as EX CW 1/11, postal receipts are exhibited as EX CW 1/12 and AD cards are EX CW 1/13.
CW1 was cross examined at length by the counsel for the accused. CW 1 during his crossexamination on 16.02.2009 submitted that he had sold the accused land located at Jalandhar but accused failed to pay consideration amount for the same. CW 1 further submitted that complainant company had entered into written agreement with the accused and it's company regarding the above mentioned land. CW1 CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:5:- during his further crossexamination on 4.08.2011 produced the authorization to file the complaint which is Ex. CW1/A1. The minutes book regarding his authorization is Ex CW1/A2. As observed by Hon'ble Predecessor Court on 4.08.2011 CW 1 gave evasive replies with respect to the area of the land sold by complainant company to the accused Therefore, Ld Predecessor Court directed to produce sale deeds as well as original agreement dated 08.07.2005 which should be produced for facilitation of clear appraisal of the circumstances of the case. On 25.09.2013 during the course of further crossexamination, CW 1 filed copies of sale deeds and translated copy of all sale deeds which are mark 1 to mark 6. CW 1 himself admitted during that crossexamination that Mark 1 to Mark 5 documents pertained to selling of land to complainant company itself.
7 Statement of accused u/s 313 CrPC was recorded on 19.09.2013. Accused in his statement u/s 313 Cr. PC admitted the fact that he had entered into an agreement with the complainant company on 08.07.2005 with regard to the assignment and sale of certain rights of the complainant company in the lands at Santoshi Nagar, Jalandhar, Punjab. Accused further submitted in his statement that he had issued the cheques in question for security purpose. Accused accepted the fact of receiving the legal demand notice of which he had sent the relevant reply. Accused in his statement submitted that cheques in question were handed over to the complainant company for the purchase of land at CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:6:- Jalandhar Punjab. As, complainant company failed to execute the sale deed, therefore, payment of the cheques in question was stopped. Accused choses not to lead the defence evidence.
8. Final arguments were advanced at length by learned counsel for the accused and also by learned Counsel for the complainant.
9. I have bestowed my serious minded consideration to the arguments advanced at length by erudite counsels for both parties and have also punctiliously glimpsed through the relevant material available on record.
10 Henceforth, I shall now step forward to lucubrate the legal provision defining the offence of the dishonour of cheque, which is envisaged under section 138 of the Act. A mandatory presumption is required to be raised in terms of Section 118(a) and Section 139 of the Act. Section 138 of the Act has three ingredients viz.: a)that there is a legally enforceable debt, b) that the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which pre supposes a legally enforceable debt and c) that the cheque so issued had been returned due to insufficiency of funds. Hon'ble Supreme Court in UOI Vs. Pramod Gupta by LRs and Ors. (2205) 12 SCC 1 has dealt with the expressions 'May presume', 'shall presume' and conclusive proof.
CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:7:- "..............The meaning of expressions "may presume" and "shall presume" have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression "shall presume" cannot be held to be synonymous with "conclusive proof".
Concept of presumptions has been elaborated by Hon'ble Supreme Court in Hiten P Dalal Vs. Bartindranath Banerjee(2001) 6 SCC 16) wherein it was held:
22. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. 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 nonexistence of the presumed fact.
23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:8:- either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition than it exists".
Therefore, the rebuttal does not haver 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".
11 It is also well settled that (a) the presumption does not go to the extent of presuming the existence of debt and (b) the aforesaid presumption is rebuttable in nature (see Krishna Janardhan Bhatt vs. Pattatraya G.Hegde (SC)200 8(1)RCR Criminal 695). Further, it is also well settled that for the rebuttal of the presumptions it is not necessary that the accused must step into the witness box but the presumptions can be rebutted either by cross examination of complainant's witness (see M.S.Narayana Manon vs. State of Kerala & Another AIR 2006 SC 3366 and Krishna Jnardhan Bhat vs. Dattatraya Hegde SC 2008(1) RCR Criminal 695) or even by raising presumptions of fact or law from the material available on record (see Kundan Lal Kala Ram vs. Custodian Evacuee Property, reported as AIR 1961 SC 1316).
CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:9:- Section 139 NI Act is basically an example of reverse onus clause as observed by Hon'ble Supreme Court in Rangrappu vs. Sri Mohan 2010 3 MLJ(Cri) 547(SC). In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. It is conceivable that in some case accused may not adduce evidence of his own and accused can rely upon the material submitted by the complainant to discharge his burden and thereby raise his defence.
12. Before I locomote on to explicitly render my dictum over the issue, I cannot afford to lose sight of certain facts acknowledged by the complainant in its pleadings. It is the case of the complainant that accused had issued two cheques bearing number 135553 dated 09.10.2006 for an amount of Rs. 1,35,00,000/ and cheque bearing number 135552 dated 1,20,00,000/ favouring the complainant's firm Senior Builders Ltd. drawn on HDFC Bank Ltd. Vasundhra Enclave, New Delhi 110096. Complainant company on 08.07.2005 entered into an agreement with the accused No. 1 company as regards the assignment/sale of certain rights of the complainant company in the lands at Santoshi Nagar, Jalandhar Punjab in favour of accused no1 acting through accused no 2 and certain other associates companies of CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:10:- accused no 1 also acting through accused no. 2. It is further alleged that as per the terms of the said agreement certain time bound payments were to be made by the accused persons to the complainant company for the rights/assigned or agreed to be assigned by the complainant company in favour of the accused. Thus, in the view of the abovesaid dealings, in part liquidation of their admitted liabilities which were alleged to be admitted in clear words in terms of letters and earlier correspondences between the complainant and the accused persons, the accused No. 1 through accused No. 2 issued the cheques in question.
Per contra, the counsel for the accused during his oral submissions as well as through his written submissions submitted that complainant miserably failed to produce any documents pertaining to the said transaction and thereby failed to prove the consideration, payable qua the cheques in question. It is further stated by the counsel for the accused in his written submissions that the cheques in question were given as advance towards the cost of land and expenses for the execution of sale deed of aforesaid land which complainant failed to execute. 13 After going through submissions of both the parties put through by the means of pleadings, submissions oral as well as written. Now, it is pertinent to divulge the relevant portions of crossexamination of the complainant (CW1) which should be clear enough to throw light on the entire case of complainant. CW 1 has submitted during the course of his crossexamination that complainant fails to divulge the details of the CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:11:- factum of the consideration, (specifically mentioned, that is, the deals pertaining the land in question) of the cheques Ex. CW1/3 and Ex. CW1/4: ".................It is correct that the particulars of the subject matter ie. The land in question in the present complaint have not been provided by me in my complaint and affidavit in evidence......................"
"..................... It is correct that as per this agreement dated 08.07.2005 I was to sell 42.5 Acre of land at Santosh Nagar, Jalandhar, Punjab to the accused. I cannot say as to how much area of the above land did I sell to the accused by way of sale deed. It is wrong to suggest that the cheque in question was given to me by the accused as an advance for sale of 14 acres of land by me. Vol. The cheque was given by the accused against the land already sold to the accused..........."
"................I can produce the sale deed or certified copy of the same regarding the land of which I have transferred the title to the accused however, I require time for same......".
CW1 had admitted and thereby directed by the court also to file the sale deeds as alleged to be executed between the complainant company and the accused which were as aforementioned are alleged to be the consideration for the cheques in question: CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:12:- "............... The witness is directed to produce the sale deeds and original agreements dated 08.07.2005 on next date of hearing for further cross examination........................"
CW 1 during the course of last leg of crossexamination conducted on 25.09.2013 produced various copies of sale deeds and admitted facts pertaining to production of the sale deeds in the way which is quoted in verbatim from his crossexamination: ".............. It is correct that I have not filed any other sale deed except the Mark 1 to Mark 5. I have sold the land to M/s Shourya Towers Pvt Ltd, M/s Surya Builders Pvt Ltd and four other companies of Mr. Anil Jain through various sale deeds. I do not know the number of the such sale deeds because I have handed over the resolution to the officials of the accused company and they have prepared the sale deed themselves. It is correct that as per sale deed Mark 1 to Mark 5 the land was sold to the complainant company. Vol. Stated I have further sold the said land to the accused..............".
CW 1 has also admitted during his crossexamination that complainant company has miserably failed to file the account book in the court CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:13:- record: "..............It is correct that I had not filed any account book on record to show the liability of the accused person. Vol. I can file the same....................."
14 The words 'until the contrary is proved' in Section 118 do not mean that accused must show that instrument is not supported by any form of consideration but accused has the option to ask the court to consider the nonexistence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. For the purpose of rebutting the initial evidentiary burden, the accused can rely on direct evidence or circumstantial evidence or on presumptions of law or fact.
Extracts from Judgement rendered by Hon'Justice T. S Thakur in Vijay Vs. Laxman and another Criminal Appeal No. 261 of 2013 arising out of SLP No. 6761 of 2010 are also relevant here.
"...............The absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction has instead taken place between the parties is a significant circumstance.........." (Complainant has also fails to explain analogy on those dates).
In Rajesh Shokeen Vs. Sonu Singh Criminal LIP 183/2014 Hon'ble J. Murlidhar expressed his views that : CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:14:- "..............Section 138 will be attracted only where a liability is shown to be owned by the Respondent to the complainant. In the present case, the complainant has, apart from contradicting what she stated in the complaint, not produced any evidence whatsoever to show that the sum of Rs. 19 lakhs was advanced to the complainant as loan in the years 2011 and 2012 on various dates as alleged by her in the complaint.................."
In Rangappa Vs. Mohan AIR 2010 SC 1898 Hon'ble Supreme Court has held that in a complaint under Section 138 NI Act an accused can seek to establish that complainant's case is not proved even on a preponderance of probabilities. The accused does not have to himself lead any evidence for that purpose. The presumptions under Sections 118 and 139 of the NI Act are rebuttable.
15. Even after availing ample effective opportunities complainant miserably fails to file sale deed executed in favour of accused and also fails to produce relevant books of account for bare perusal of court. Complainant thus is unable to prove that cheques in question were issued towards any legally payable debt. Even after amply raised by the accused the fact of relevancy of consideration at each stage of the case, complainant miserably fails to establish the aspect of consideration with respect to cheque in question.
In Builders Vs. Arihant Fertilizers & Chemicals and Anr (2008)2 SCC 321, Negotiable Instrument Act envisages that:
CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:15:- "...application of the penal provisions which needs to be construed strictly. Therefore, even if two view in the matter are possible, the Court should lean in favour of the view which is beneficial to the accused. This is more so, when such a view will also advance the legislative intent, behind enactment of this criminal liability."
The burden was on the accused to disprove the presumption u/s.139 NI Act, a burden which in the light of above mentioned discussion has been successfully discharged by him. It is apparent that the accused has furnished cogent reasons which resulted in shifting the burden of proof on the complainant, which the latter failed to discharge.
16. Regarding the question that whether legal notice has been received by the accused? Complainant has placed on record legal notice Ex.CW1/11 alongwith postal receipts Ex.CW1/12 and AD cards are EX CW 1/13. It is a settled position of law that a notice properly addressed, prepaid and posted by registered post shall be deemed to be served upon the respondent unless the contrary is proved. Furthermore, it is not in dispute that accused has been served through process of the court and once it is so, the decision of Hon'ble Supreme Court in Alavi Hazi v. Palapetty Muhammad & Anr. 2007 STPL (DC) 952 SC would also be applicable wherein Hon'ble Apex Court has held that even if the accused did not receive the legal demand notice he can pay the cheque amount within fifteen days of the service of summons from the court but if he CC. NO. 97/14 Senior Builders Vs. Shourya Tower -:16:- fails, he cannot contend that he has not received the legal demand notice. 17 It is evident that the drawer has failed to make the payment of cheque amount in question within 15 days of the receipt of aforesaid notice, thus, the present complaint U/s 138 NI Act has been initiated against the accused.
18. In the view of the foregoing observation and in view of the evidence, documents put forth and arguments of both the parties, the accused are hereby acquitted for the offence punishable u/s.138 of Negotiable Instruments Act.
ANNOUNCED IN OPEN COURT (MANU VEDWAN) ON THIS 26TH DAY OF AUGUST,2014 METROPOLITAN MAGISTRATE SPECIAL COURT NO.05, NI ACT DWARKA, DELHI CC. NO. 97/14 Senior Builders Vs. Shourya Tower