Delhi District Court
Sanjay Rai vs Devender Meena on 29 August, 2023
IN THE COURT OF MR. SAHIL KHURMI,
METROPOLITAN MAGISTRATE (N.I. ACT)- 02,
ROUSE AVENUE DISTRICT COURT: NEW DELHI
DLND020062052019
Case No: 3878/2019
Sanjay Rai
S/o Shri Vishwanath Rai
R/o WZ-663, WZ Block,
Naraina Village,
Delhi - 110009
...... Complainant
::Versus::
Devender Meena
s/o Sh. Mohan Lal Meena
r/o House no. 352, L Extn.,
Mohan Garden, Uttam Nagar,
Near Dwarka Mor Metro Station,
Pillar No.764, Delhi - 110059
Also:
B1/47, Flat no.15, Sewak Park,
Dwarka Mor, Delhi-110059.
Also at
"Tiwari Niwas"
L-Extension-77, Mohan Garden,
Uttam Nagar, Delhi-110059.
.......Accused
Offence Complained of: 138 NI Act
Plea of the Accused: Not guilty
Date of Institution: 26.10.2017
Arguments Heard On: 26.08.2023
Date of Judgment: 29.08.2023
Decision: CONVICTED
Sahil Digitally signed
by Sahil Khurmi
CC No: 3878/2019 Khurmi Date: 2023.08.29
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Sanjay Rai vs. Devender Meena Page 1 of 16
JUDGMENT
1. Vide this judgment, I shall decide the present complaint filed u/s 138 NI Act bearing CC No.3878/2019, against the dishonor of cheque bearing no. 000032 dated 05.09.2017 for an amount of Rs.50,000/-, drawn on ICICI Bank, Gurudwara Road, Mohan Garden, New Delhi (Hereinafter referred to as impugned cheque).
BRIEF FACTS OF THE CASE:
2. Shorn to unnecessary details, the brief facts of the case put forth by the complainant are that the complainant had entered into a transaction for sale of Second Floor of Property no. L-4, area measuring 35 Sq. yards situated at Mohan Garden, Rama Park Road, Uttam Nagar, Delhi-110059 and complainant had given the accused an amount of Rs.6,00,000/-.
3. It is further stated that the said transaction could not fructify and in lieu of the said transaction, accused entered into a MOU for return of the aforesaid amount of Rs.6,00,000/- and in discharge of his liability the accused issued impugned cheque, which was dishonored with the remarks "payment stopped by drawer" vide cheque returning memo dated 08.09.2017 which is on record. Legal demand notice dated 19.09.2017 was sent to the accused. However, no payment was made within 15 days and hence, the present complaint.
4. The complainant examined himself as CW-1 in pre- summoning evidence, and relied upon his evidence by way of affidavit along with the following documents: -
S.No. Documents relied upon Exhibited as:
1. Agreement to sell dated Ex. CW-1/1 Digitally signed Sahil by Sahil Khurmi Date:
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10.12.2014.
2. MOU dated 22.01.2017. Ex. CW-1/2
3. Impugned cheque Ex. CW-1/3
4. Cheque return memo. Ex. CW-1/4
5. Legal demand notice. Ex. CW-1/5
6. Speed Post receipt Ex. CW-1/6
7. Courier receipt. Ex. CW-1/7
8. Delivery report of speed post. Ex. CW-1/8 (colly)
9. Delivery report of courier. Ex. CW-1/9 (colly)
10. Evidence by way of affidavit. Ex.CW1/A PROCEEDINGS OF THE CASE:
5. On appearance of accused, notice of accusation u/s 251 Cr.PC was served upon the accused on 11.04.2023, to which the accused pleaded not guilty and claimed trial. Accused admitted his signature on the impugned cheque and stated that he has not filled the contents of the cheque. He further stated that he has not received the legal demand notice, however, he admitted his address on the legal demand notice. He further stated that he had sold a flat to the complainant for Rs.5.5 lakhs received by him vide a sale agreement and thereafter he could not give the possession of the said flat to the complainant due to circumstances beyond his control. He further stated that thereafter a cancellation agreement was executed for an amount of Rs.6 lakhs with the complainant regarding the said transaction and he paid Rs.2 lakhs on 25.04.2017 and remaining Rs.2 lakhs on 26.06.2017 and last payment of Rs.2 lakh on 11.08.2017. He further stated that complainant disposed of 4 cheques by tearing Digitally signed Sahil by Sahil Khurmi Date:
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them off in front of him and cheque in question was one of them. He also stated that he has no liability towards the amount of cheque in question and his security cheque has been misused.
6. Thereafter, oral application u/s 145(2) NI act was moved which was allowed by the Court. CW1 was examined in chief, cross-examined and discharged. Vide separate statement of complainant, CE stood closed. Thereafter, all the incriminating evidence was put before the accused and the statement of accused u/s 313 Cr.PC was recorded in which accused reiterated his defence and admitted the agreement to sell which is on record as per which he was supposed to sell his property to the complainant and complainant paid Rs.5,50,000/- for scheduled payment including the earnest money of Rs.1 lakh paid by the complainant, however, the deal could not be fructified and got cancelled. He further admitted that memorandum of understanding which is filed on record which was duly executed between him and the complainant and he further stated that he had already paid Rs.6 lakhs to the complainant in cash, however, no receipt was given by the complainant and he did not return his 4 cheques.
7. Thereafter, application u/s 315 CrPC was moved which was allowed by the Court and accused was examined in chief. But accused didn't appear for his cross-examination despite various opportunities and his DE was closed.
8. Thereafter, final arguments were heard on behalf of both the parties. I have heard the counsels for both parties at length, considered the evidence led by them carefully and have perused the Court records thoroughly.
LAW UNDER CONSIDERATION:
9. Before adverting to the facts of the present case, it would Digitally signed by Sahil Sahil Khurmi Date:
Khurmi 2023.08.29 17:08:00 CC No: 3878/2019 +0530 Sanjay Rai vs. Devender Meena Page 4 of 16 be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the offence, as highlighted below:
1st Ingredient: The cheque was drawn by a person on an account maintained by him/her for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
2nd Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
3rd Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
4th Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
5th Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
10. Learned Counsel for the complainant has submitted that the accused should be convicted of offence u/s. 138 NI Act because the complainant has proved the original cheque, which the accused has not disputed as being drawn on the account of the accused. He has further submitted that the cheque in question was returned unpaid vide cheque returning memo which is on Digitally signed by Sahil Sahil Khurmi Date:
Khurmi 2023.08.29 17:08:06 CC No: 3878/2019 +0530 Sanjay Rai vs. Devender Meena Page 5 of 16 record. The same is also not disputed by accused. He has further submitted that the legal demand notice was sent to accused on his admitted address and is proved by postal receipt and tracking report. He has further submitted that the fact that the payment was not made within 15 days of the receipt of the legal notice is also not disputed.
11. Per contra, learned counsel for the accused has submitted that accused should be acquitted as the accused has not received the legal demand notice, as there is no legally enforceable debt or liability of accused in favour of the complainant, as wrong details of accused are mentioned in pre summoning evidence affidavit and it is not attested by Oath Commissioner.
12. Before examining the defences of accused, it is pertinent to note that the accused has admitted his signature on the impugned cheque. Accordingly, this Court raises presumption under section Section 118(a) and 139 of NI Act that the impugned cheque was issued by the accused to the complainant in discharge of legally enforceable debt or liability. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of impugned cheque. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favour of the complainant. Now I shall be discussing all the defences of the accused one by one.
FIRST DEFENSE:
13. It is the first defense of the accused that he didn't receive the legal demand notice. Digitally signed by Sahil Sahil Khurmi Khurmi Date:
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14. Per contra, learned counsel for complainant has argued that legal demand notice was served on admitted address of accused which is proved by postal receipt and tracking report.
FINDINGS OF THE COURT:
15. It is pertinent to mention that accused has admitted the address mentioned on the legal demand notice. The service of notice on the admitted address of accused is duly proved by complainant by postal receipt and tracking report.
16. Moreover, it was held by the Hon'ble Supreme Court in the decision cited as C.C. Alavi Haji vs Palapetty Muhammed &Anr. (2007) 6 SCC 555 that a person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act.
17. The Hon'ble Supreme Court of India has very well discussed this defence in K. Bhaskaran vs Sankaran Vaidhyan Balan and Anr. (1999) 7 SCC 510, where it was held that if a strict interpretation is given that the drawer should have actually received the notice for the period of 15 days to start running no matter that the payee sent the notice on the correct address, a trickster cheque drawer would get the premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the NI Act. Thus, for the detailed reasons aforementioned, the plea of the accused Digitally signed by Sahil Sahil Khurmi Date:
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that the legal demand notice was never received is not tenable and accordingly, rejected.
SECOND DEFENSE:
18. It is the second defense of the accused that there is no legally enforceable debt or liability of the accused towards the complainant for cheque amount in question as he has already repaid amount of Rs. 6 lakhs taken from the complainant for sale of property to the complainant, the deal of which could not be fructified and cheque of accused has been misused by the complainant.
19. During final arguments, learned counsel for accused stated that as per the agreement to sell Rs 5,00,000/- was to be paid by complainant to accused at the time of physical possession of property whereas it is admitted position that the property transaction was cancelled and physical possession of property was never given to the complainant, thus there was no occasion for the complainant to pay such amount to accused.
20. Per contra, learned counsel for the complainant has argued the factum of receiving an amount of Rs. 5,50,000/- by accused from complainant and thereafter entering into memorandum of understanding for an amount of Rs. 6,00,000/- is admitted by the accused during the trial. It is also submitted by counsel for complainant that the version of accused regarding repayment of money is not proved by the accused by leading any cogent and clinching evidence.
FINDINGS OF THE COURT:
21. Before proceeding to decide this defence, it is relevant to mention that in his notice u/s 251 CrPC as well as statement of Digitally signed by Sahil Sahil Khurmi Date:
Khurmi 2023.08.29 17:08:22 +0530 CC No: 3878/2019 Sanjay Rai vs. Devender Meena Page 8 of 16 accused u/s 313 CrPC the accused has admitted that the complainant paid Rs. 5,50,000/- to accused for buying his property but due to circumstances beyond his control he could not give the physical possession of his property and entered into memorandum of understanding with complainant for an amount of Rs. 6,00,000/- to be paid by him to the complainant.
22. As per section 58 of Indian Evidence Act, facts admitted need not be proved. Thus, since the accused has himself admitted receiving Rs. 5,50,000/- from the complainant and thereafter entered into memorandum of understanding for an amount of Rs. 6,00,000/- with complainant, therefore, the submissions of learned counsel for the accused that as per agreement to sell, an amount of Rs. 5,00,000/- was to be paid by complainant at time of getting physical possession of property which was never given and thus accused has no liability, is not well founded and sans merits.
23. The only point which needs to be considered by this Court is the factum of repayment of Rs. 6,00,000/- by the accused to the complainant.
24. It is relevant to mention that accused deposed in his examination in chief that he had issued four cheques of Rs. 50,000/-each to the complainant for discharge of his liability and when those cheques got dishonored, he paid a sum of Rs.2,00,000/- in cash on 25.04.2017, Rs. 2,00,000/- in cash on 26.06.2017 and Rs. 2,00,000/- in cash on 11.08.2017 to the complainant and his cheques have been misused.
25. In the considered view of this Court, no cogent and clinching evidence has been led by the accused to prove the Digitally signed Sahil by Sahil Khurmi Date:
Khurmi 2023.08.29 CC No: 3878/2019 17:08:28 +0530 Sanjay Rai vs. Devender Meena Page 9 of 16 factum of repayment of Rs. 6,00,000/- as deposed by him. Admittedly, the said alleged repayment is made in cash by accused, of which no proof has been furnished. Only suggestions have been given to complaint in his cross-examination regarding the repayment of money. It is a settled law that mere suggestions do not amount to proof. Accused can't rebut the mandatory presumptions u/s 139 NI Act by mere suggestions.
26. No written document/receipt/acknowledgment has been placed on record by the accused to prove the factum of repayment of money to the complainant.
27. The accused has failed to explain that when a written agreement to sell was executed between the parties and thereafter a written memorandum of understanding was executed between the parties for repayment of money by the accused to the complainant, then why no written document/receipt/acknowledgment was taken from the complainant while making a huge payment of Rs. 6,00,000/- to the complainant.
28. It is pertinent to mention that in the present case, despite various opportunities, accused never stepped into the witness box to submit himself to cross examination. It is trite that the absence of cross examination affects the value of the statement of a witness made in examination in chief and weight to be attached to it, though it does not render the same inadmissible per se. Support is drawn from an extract from "Murphy on evidence", 1998 CRL.L.J. 3494 wherein it is stated: "It seems that where a witness, who has given evidence in chief, becomes unavailable to Digitally signed by Sahil Sahil Khurmi Date:
Khurmi 2023.08.29 17:08:34 CC No: 3878/2019 +0530 Sanjay Rai vs. Devender Meena Page 10 of 16 be cross examined, his evidence in chief remains admissible, but is unlikely to carry very much weight."
29. Further, what weight should be attached to such a statement, which is untested by cross examination, shall depend on the facts and circumstances of the case. The Court must exercise great care and caution while dealing with the same. Support is drawn from a decision of the Hon'ble High Court of Delhi cited as Krishna Dayal vs. Chandu Ram, ILR (1969) Del 1090.
30. It is also important to observe that failure to allow cross examination of accused prejudices the complainant since there is no knowledge of what favorable evidence he might have been able to elicit had the accused stepped into the witness box.
31. It has been held in a catena of decisions including that of the Hon'ble High Court of Bombay cited as Martand Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97 that it is the bounden duty of a party personally knowing the facts and circumstances, to give evidence on his own behalf and to submit to cross examination and his non-appearance as a witness would be the strongest possible circumstance which will go to discredit the truth of his case.
32. It is also the rule of evidence as per illustration (g) under Section 114 of the Indian Evidence Act, 1872 that the evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it. Division Bench of the Hon'ble Punjab & Haryana High Court in Bhagwan Dass v.
Digitally signedSahil by Sahil Khurmi Date:
Khurmi 2023.08.29 17:08:40 +0530 CC No: 3878/2019 Sanjay Rai vs. Devender Meena Page 11 of 16 Bhishan Chand and Ors. AIR 1974 P H 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box. This ratio was followed by the Hon'ble Supreme Court in Thomas & Anr vs. Thiyagarajan, 2016 (4) CTC 158.
33. Thus, in the considered view of this Court, not stepping into witness box by accused for his cross-examination raises an adverse inference against him and discredits his testimony.
34. Moreover, it is not the case of the accused that he made any police complaint for misuse of his cheques by the complainant even after making the payment. It is also not the case of the accused that he made "Stop Payment Instructions" to his bank for misuse of his cheques or written any letter or complaint to his bank for misuse of his cheques. Any reasonable prudent person ought to have taken such steps if his valuable instrument like cheques were misused by some other person even after payment of money.
35. In the considered view of this Court, the accused has failed to prove the factum of repayment of Rs. 6,00,000/- in cash i.e., Rs.2,00,000/- in cash on 25.04.2017, Rs. 2,00,000/- in cash on 26.06.2017 and Rs. 2,00,000/- in cash on 11.08.2017 to the complainant. Hence, this defence of accused fails.
THIRD DEFENCE:
36. It is the third defence of the accused that the complainant has wrongly mentioned the details of the accused in his evidence by way of affidavit Ex. CW-1/A. Learned counsel for the accused has brought the attention of this Court, on the pre-summoning Digitally signed Sahil by Sahil Khurmi Date:
Khurmi 2023.08.29 CC No: 3878/2019 17:08:46 +0530 Sanjay Rai vs. Devender Meena Page 12 of 16 evidence by way of affidavit of complainant Ex. CW-1/A in which wrong details of the accused have been mentioned at para no. 2 including his name, father's name and address.
37. Per contra, learned counsel for the complainant has stated that the complainant has duly explained the same in his cross-
examination by deposing that it was typographical error of the lawyer and merely because of typographical error, the entire case of complainant can't be discarded especially when the accused has admitted taking the money from the complainant and his only defence is that he had repaid it in cash, of which no proof is furnished.
FINDINGS OF THE COURT:
38. In the considered view of this Court, in the pre-summoning evidence by way of affidavit Ex. CW-1/A correct name of the accused is mentioned in the name of parties on the top.
Moreover, correct name and details of the accused are mentioned in the Memo of parties, Complaint u/s 138 NI Act as well as legal demand notice. Correct details of the accused are also mentioned in the agreement to sell between the parties as well as in the memorandum of understanding between the parties.
39. Merely because there is a typographical error in the details of the accused in the pre-summoning evidence by way of affidavit Ex. CW-1/A, the same does not throw away the entire case of the complainant and is not an irregularity which vitiate the proceedings under Section 461 CrPC as the accused has failed to show what prejudice has been caused to him due to his wrong details mentioned at just one place. Digitally signed by Sahil Sahil Khurmi Date:
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40. Sufficient explanation has been given by the complainant in his cross-examination for such mistake. Reliance is placed upon judgement of Hon'ble High Court of Punjab and Haryana in Parvin Kumar vs Iqbal Singh Sethi in CRM-M-4544 of 2022 decided on 04.02.2022 where it was held that Typographical error in power of attorney is not irregularity which would vitiate proceedings.
41. Support is also drawn from judgement passed by the High Court of Tripura in the case of Soma Debbarma v. State of Tripura [W.P(C) No.273/2020] where it was held that the petitioner's counsel may be right in finding out that the defendant cannot resile from a direct statement taken under oath but a mistake, a typographical error, or a confusion, on the other hand, if the mistake is sufficiently clarified, it cannot be used as the basis for a Court ruling.
42. Accordingly, this defence of accused is untenable and hence, rejected.
FOURTH DEFENCE:
43. It is the fourth and last defence of the accused that the pre- summoning evidence by way of affidavit Ex. CW-1/A is attested by Notary and not attested before an Oath Commissioner and therefore the same becomes inadmissible under law.
44. Per contra, learned counsel for the complainant has argued that nothing has been placed on record by accused to prove that if the affidavit is not sworn before an Oath Commissioner and only attested by Notary Public, then the entire evidence affidavit gets discarded. Learned counsel has argued that the accused is doing Digitally signed Sahil by Sahil Khurmi Date:
Khurmi 2023.08.29 CC No: 3878/2019 17:08:59 +0530 Sanjay Rai vs. Devender Meena Page 14 of 16 nit-picking in the case of complainant whereas entire case of complainant has been admitted by accused and only defence of accused is repayment of money in cash, which remains unproved.
FINDINGS OF THE COURT:
45. In the considered view of this Court, the purpose of an affidavit attested by Oath Commissioner is that it is sworn before the Oaths Commissioner. Similarly, even if the pre-summoning evidence affidavit of complainant is attested by Notary and not by Oaths Commissioner, the same is duly given on SA i.e., Solemn Affirmation before the Court and then tendered in the evidence before the Court. Hence, it is not an irregularity which vitiates the proceedings under Section 461 CrPC. Accused has failed to explain what prejudice was caused to him due to this irregularity. Moreover, accused has failed to place on record any provision of law or any case law as per which this irregularity vitiates the entire trial. Accordingly, this defence of accused in untenable and hence, rejected.
FINAL ORDER:
46. On a consideration of the totality of factors pleaded by the accused in his defence, it becomes clear that the accused has merely paid lip service to his defence and has not led any cogent evidence to establish it or draw any circumstance against the case of the complainant which probabilizes his defence. Mere bald denial of the absence of consideration or pleading that the payment has already been made and cheques have been misused would not operate to absolve the accused of his liability.
Digitally
signed by
Sahil Sahil Khurmi
Date:
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47. Accordingly, accused Devender Meena s/o Mohan Lal Meena is convicted of the offence u/s 138 of Negotiable Instruments Act.
Announced in open court Note: This judgment contains 16 pages and each page has been signed by me. Digitally signed Sahil by Sahil Khurmi Date:
Khurmi 2023.08.29 17:09:13 +0530 (Sahil Khurmi) MM (NI Act)-02/RADC 29.08.2023 CC No: 3878/2019 Sanjay Rai vs. Devender Meena Page 16 of 16