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2018 (7) TMI 706
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....ns, same was dishonoured with remarks "insufficient funds". The appellant served a legal demand notice dated 26.08.2006 to the respondent by courier as well as UPC, but even after receipt of the legal notice, the respondent did not make the payment. So, the present complaint was filed by the appellant under Section 138 of the Negotiable Instrument Act. 3. The accused was summoned. Notice under Section 251 Cr PC was framed on 31.03.2009. The respondent pleaded "not guilty" and claimed trial. 4. Before the Learned MM, the appellant Sh. Bhawish Chand Sharma examined himself as CW-1 in post notice evidence. Appellant filed his evidence by way of affidavit CW1/A. He also proved the cheque in question Ex. CW1/1, the cheque returning memo, Ex. CW1/2, envelope sent through the courier Ex. CW1/3, courier receipt Ex. CW1/4, UPC certificate Ex.CW1/5 and legal demand notice Ex. CW1/6. He also examined Parvesh Sharma, his son as CW-2. 5. The appellant/ complainant in his cross examination stated that the property in question was sold to the respondent for a sum of Rs. 20,00,000/- out of which Rs. 15,00,000/- was received in cash and two cheques bearing no. 509032 and 509033 of Rs. 2,00,000/-....
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....g the dispute. Surender Kumar requested the complainant for some payment to him for making efforts to get the dispute settled. On this, the respondent issued the cheque for Rs. 5 lakhs in blank (the column meant for name was kept blank) to Surender Kumar on the same day, as security. He further deposed that after the registry, the respondent demanded his cheque of Rs. 5 lakhs from Surender Kumar, and Surender Kumar replied that he has handed over the same to the appellant/ complainant. In response to a court question, he also stated that the demand for the cheque was made by the respondent from Surender Kumar in his presence during a meeting after the registry of the sale deed in his office. DW-1 was cross examined by the complainant. In his cross examination, he stated that he had no personal knowledge regarding the present dispute between the parties. He also admitted that he did not know Surender Kumar, but he had seen him one or two times. He did not know whether Surender Kumar was the middleman. He was not present when the sale deed was registered in the office of the Registrar. He did not have any knowledge regarding the amount of sale/ purchase in the sale transaction. He st....
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....ich were disclosed in the sale deed, thereby not explaining as to how the amount of Rs. 1 lakh was sought to be recovered. iii) If the accused had been returned the two cheques of Rs. 4 lakhs, then why would the accused replace the same with a cheque for Rs. 5 lakhs, is not clear; iv) The complainant claimed the difference of Rs. 1 lakh towards sale of the construction material lying on the ground floor of the building in question. However, this fact was not stated either in the sale deed, or in the legal notice, or even in the complaint; v) The complainant stated in his cross examination that the cheque in question was given to him when he was alone. However, he examined his son CW-2 Pravesh Sharma, who stated that the cheque was given in his presence and in the presence of his mother and younger brother. CW-2 is not a witness to the sale deed Ex. CW1/DA. 11. Pertinently, the learned MM also rejected the defence of the accused that he had, in return for the two cheques of Rs. 4 lakhs, paid Rs. 4 lakhs in cash to the complainant. The learned MM also rejected the explanation furnished by the accused with regard to the issuance of the cheque of Rs. 5 lakhs which bore his signatur....
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.... cheque of Rs. 5 lakhs with the amount filled in), it was not necessary for the appellant to explain as to why the amount filled in the cheque was Rs. 5 lakhs, and not Rs. 4 lakhs. In any event, the appellant had explained the same by stating that the additional amount of Rs. 1 lakh was paid by the accused in respect of the construction material lying at the site of the property purchased by the accused from the appellant and his wife. 16. Learned counsel for the appellant submits that in the brief synopsis filed on behalf of the respondent in this Court, which is duly supported by the affidavit of the respondent dated 30.09.2016, he has himself explained that out of the total consideration of Rs. 20 lakhs, Rs. 15 lakhs had been paid in cash "and on 12.03.2016 a sum of Rs. 1 lac further in advance payment was made to the appellant just one day before the Registry and balance amount of Rs. 4 lacs was paid by the respondent to the appellants by way of the two cheques 2 lacs each". Learned counsel points out that there is no evidence led by the accused to substantiate the plea that apart from Rs. 15 lakhs paid in cash (which is acknowledged by the appellant), a further sum of Rs. 1 l....
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....f the electricity connection installed in the premises in question at the time of the sale to the respondent. The appellant was permitted to bring the said additional documents on record along with an additional affidavit. The appellant has also filed the said affidavit. 21. Further arguments were heard in the matter on 07.02.2018, and judgment was reserved on the said date. 22. I have considered the submissions of learned counsels and also perused the affidavits filed by them in pursuance of the orders passed by me to seek clarification. 23. I may, firstly, take note of the factual position as emerging on the record in relation to the existence of liability towards electricity dues as on the date of the sale deed. In the additional affidavit filed by the respondent- in compliance of the order dated 09.01.2018, the respondent states that the property was purchased by the appellant from one Gulzar Singh vide a general power of attorney/ agreement and will dated 20.11.1987 to the extent of 100 Sq.Yds. In respect of the remaining 100 Sq.Yds., a similar agreement was executed between Gulzar Singh and Smt. Shakuntala Devi- the wife of the appellant. The respondent states that as ther....
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....tates that no dues are pending against the said electricity connections. 25. From the documents filed by the respondent, and the documents filed by the appellant, and the statements made by them in their respective affidavits, it is absolutely clear that the respondent has merely raised a bogie of there being some outstanding electricity dues from the time when Gulzar Singh occupied the property in question. There is absolutely no basis for the same. It is not the case of the respondent that the electricity supply company i.e., BSES Yamuna Power Ltd. has raised any demand in respect of the electricity meters installed in his premises, ever since he came in occupation of the same. He has never faced any threat of disconnection on account of the alleged outstanding dues. Electricity bills raised by supply company for December 2017, which are placed on record do not show any outstanding arrears. They are based on the actual consumption of electricity for the previous month. It is not the defence of the respondent accused that the electricity company has taken any steps against him- as the user of the electricity connections in the premises, or his property, to recover the so called d....
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....wife. He claims that he had made payment of Rs. 4,00,000/- in cash to the appellant. Pertinently, there is no receipt or acknowledgment produced by him evidencing payment of the said amount. The appellant had denied having received the said amount in cash. Apart from the respondent's ipse dixit, there is nothing to substantiate the said position. I agree with the submission of Ld. Counsel for the appellant that, had the amount of Rs. 4,00,000/- been paid in cash by the respondent, he would have obtained a receipt for the same, since that was the disclosed consideration in the sale deed and he would not have put his sale deed in jeopardy by letting the said transaction of payment of cash go unacknowledged. Pertinent, the Ld. MM has also rejected this defence of the accused. 30. Pertinently, even the ADJ while rendering the judgment dated 14.11.2014 in CS.OS 01/2011 preferred by the appellant, has returned the finding that the defendant i.e, the respondent accused "has issued consolidated cheque of Rs Five Lacs after receiving two cheques of Rs. Two lacs each. Hence, the sale deed executed by the plaintiffs in favour of the defendant in respect of the suit property is without any sa....
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.... accused. Though he claims that he had made payment of Rs. 4,00,000/- in cash, that story is completely unbelievable. As noticed above, the respondent has claimed in his Brief Synopsis that "the total consideration of the property in question is Rs. 20 lacs in which Rs. 15 lacs has been paid in cash and on 12.3.2016 a sum of Rs. 1 lac further in advance payment was made to the appellant just one day before the Registry and balance amount of Rs. 4 lacs was paid by the respondent to the appellants by way of the two cheques 2 lacs each". He is bound by this statement, duly supported by his affidavit. However, there is nothing to substantiate - not even probabalise, his stand that he had paid Rs.One Lakh in cash "on 12.03.2016" i.e. one day before the Registry. Pertinently, the Sale Deed was got registered on 14.03.2006. Thus, there is nothing to substantiate that the respondent had made any payment to the petitioner, other than the amount of Rs. 15 lakhs. Thus, there is no inconsistency in so far as the case of the complainant is concerned that he has received Rs. 15,00,000/- and had to receive the balance of Rs. 5,00,000/-. 34. The respondent claimed to have issued the cheque in que....
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....en the parties. He did not know the middleman Surender Kumar. He did not even know that Surender Kumar was a middleman. He was not present when the sale deed was registered in the office of the Registrar. He did not have any knowledge regarding the amounts of the sale/ purchase under the transaction. Similarly, DW2 stated that he had not seen the electricity bill amounting to Rs. 22,00,000/-, allegedly raised by DESU towards the outstanding dues, himself. He had not seen any official from the electricity department visiting the property in question. Pertinently, the respondent neither examined himself, nor the said Surender Kumar to probabalise his defence. 38. The explanation furnished by the complainant that the amount of Rs. 1,00,000/- was towards the sale of building material lying on the ground floor of the premises was not necessary to be gone into. As to how the parties decided on the consideration under the transaction, and what all went into it, is not the concern of the court. What is relevant and material is that the total sale consideration was Rs. 20 lakhs. 39. The defence set up by the respondent accused is most implausible. This court in Rajesh Agarwal v. State & ....
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....or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence". (emphasis supplied) 41. In G.L. Sharma v. Hemant Kishore, Cr. A No.1400/2011 decided by this court in 13.01.2015, this court, inter alia, observed: "11. Once the cheque relates to the account of the accused and he accepts and admits the signature on the said cheque then initial presumption as contemplated under Section 139 of the Act has to be raised by the Court in favour of the complainant. The presumption referred to in Section 139 of the Act is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused in order to rebut the presumption is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttable evidence. In other words, the defence raised by way of rebuttal evidence must be probable and capable of b....
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....f, the petitioner did not disclose as to on what account the legally recoverable debt had arisen. It was only in the legal notice issued by the complainant, he stated that the accused had taken a friendly loan and that in discharge thereof the cheque of Rs. 12 lakhs had been issued. 45. In my view, the said decision is of no avail to the respondent, since it has been the consistent claim of the appellant that the cheque in question was issued towards discharge of the liability of Rs. 5 lakhs payable under the sale transaction. 46. Reliance is also placed by Mr. Dudeja on K. Prakashan v. P.K. Surendran, Crl A No.1410/2007 decided on 10.10.2007 by the Supreme Court of India. Reliance is particularly placed on paras 13 and 20 of this decision. Paragraph 13holds that, whereas the standard of proof so far as the prosecution is concerned is to prove the guilt beyond reasonable doubt; the defence of the accused has to be established on mere preponderance of probability. 47. There can be no quarrel with the aforesaid proposition. It will have to be examined from case to case as to whether the accused has set up a probable defence. 48. In para 20 of this decision, the Supreme Court held....