Full Text
HIGH COURT OF DELHI
JUDGMENT
RAJESH BANSAL Petitioner
Through: Mr.Kshitij Sharda,Advocate, versus -
AMITSINGHA^"^«^0^'^ ^ ^ Respondent wXlir&ush: ;ssMr.Aman Bfialla,'Advocate.
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I •" rl J U D G^M EIN T i
I) s VIPIN SANGHI.J. ... u ^ /
1. After hearirigUearned'Gpunsel«leave'granted-; ^ nn VAf- -.A
2. Letthe appealbetegisteredCai^^^^ Crl.A.No. 60/ /2015(to beregistered and numbered)
3. I heard learned counsel finally at the admission stage with their consent and reserved judgment. Accordingly,I now proceed to dispose of the appeal.
4. The present appeal is directed against thejudgment dated 15.09.2014 passed in complaint No. 95/2012, whereby the learned Metropolitan CRL.L.P.No.708/2014 Page[1] of[9] 2015:DHC:10982 -6 Magistrate, Karkardooma Courts, Delhi, has acquitted the respondentaccused ofthe offence underSection 138 ofthe NegotiableInstruments Act, 1881(NIAct).
5. The case of the appellant/complainant, as emerging from the complaint and the evidence led by the complainant,is thatthe complainant had invested Rs.l Lakh in the business ofone Sh. Suresh Chandra Goyal and the accused. The accused,in order to repay the amount ofRs. 1 Lakh, issued the two cheques in questioflfLe;»iEx, CW-1/1 and CW-1/2 of Rs.50,000/- each date^?^d^^(|4^^^fJ cahd ?|^ip5'.20L[2]. respectively, while -C "o executing a Mempfdnd^'ofJM 26.06.2011 (Ex.CWrl/3). The^MOU \<r^^^|f^©^documlWexecuted by the appellant/claim^t,«^^e dccused^anc||sj^^uresh ChaSdra|3oyal. The. 11 n I' relevantextract;|ofthe MOU inter alia,reads as follows' h i; il, - ' (i - )7 Xl. •> \\ Sept, 2011 via da^4rm0er Secondparty Sh.RajeshBansal$yAy^^ofpaftnef;0iifonyS^ The Partnership wasbrokeri'i^'^ay^i^fmtiiuB infirst week ofDec2010. andwhereas both theparties agreedthatFirstparty willreturn full amount ofRs. 1,00,000/- (Rs. One Lakhs only) to Second Party Sh. Rajesh Bansal in Two installment ofRs. 50,000.00 (Rs. Fifty thousand only) by way oftwo monthly chequefor October 2011 and November 2011 Second party Suresh Chandra Goyalwillreturn allsecurity cheque drawn infavour ofsecondparty, ifany. Itis also agreedupon by alltheparties that interest@1.5%per month will be chargedifthere is any delayingettingthe chequescleared by thefirstparty." CRL.L.P.No.708/2014 Page2of[9] •s)-
6. The complainant claimed that the aforesaid cheques(Ex.CWl/1 and CWl/2) were presented for payment since the accused failed to make payment ofthe two installments ofRs.50,000/- each in terms ofthe MOU (Ex.CW-1/3), and these cheques were dishonoured upon presentation on account ofinsufficient funds in the account ofthe accused. Consequently, the complainant issued a legal notice dated 04.08.2012(Ex.CW-1/6)under Section 138 ofthe NI Act. Since the accused failed to make payment,the complaint was preferred. The accused admitted issuing the cheques in question(Ex.CW-1/1 & CW-tf[2])To4heiGompTamant. However,he claimed that the same had been is?udd as security'^af"the'^insfance of Sh. Suresh // ^ % Chandra Goyal. He denied owirigun^yllaBiity-towards^^ complainant. //,,
7. Thesubmission oflearne(|'^p|fhs]|Jtf^ appellant'is thatthe learned Magistrate, while acquitting thenafcdu^seqli'has given two reasons in the P ] ii I impugned judgment. The fir§f-Jis;|tna|^|t was not clearrfwhether the complainant himsplfhad,giyjen#e^suM',ofI^.H ElPlTo the accused,or had given the said amountcfhrough'Sh^SufeshChandra ©0,^^ complainant had admitted in his crdssrexaiPinafipn that^t-w^ ShfSufesh Chandra Goyal, who was liable to pay the mon|ytrpjJfrfffl3— learned Magistrate held that "therefore, he has admitted that the accused did not have any liability or debt towards him". Secondly,the learned Magistrate has held that the cheques in question were given as security cheques. Thus, a complaint under Section 138 ofthe NI Act is not maintainable in respect ofthese cheques.
8. In respect ofthe firstreason,the submission oflearned counsel for the appellant is that MOU (Ex.CW-1/3) itself reflects the debt owed by the CRL.L.P.No.708/2014 Page3of[9] ar~ accused,and the undertaking given by him thatthe same shall be returned in two monthly installments (in October 2011 and November 2011) of Rs.50,000/- each. Learned counsel submits that in the face of the acknowledgement ofdebt contained in the MOU(Ex.CW-1/3),the exercise undertaken by the learned Magistrate to ascertain whether, or not, the accused was indebted to the appellant,and to doubtthe existence ofthe debt itself,is misdirected. Itis submitted thatit was notopen to Magistrateto go behind the MOU(Ex.CW-1/3)and to m^ke an inquiry asto whether,or not, the accused was indebted tofthe appellant/ corfit51ainant to the tune ofRs 1 i Lakh. //" n i "-v-A % 'S ^... ^4:^
9. The appellSnt^h^'alsG^ffivh"tfe^^itention Court to the settlement reached^^between thei|iarties::in;|he course of%4proceedings, which was recorded by the Couft''on'2ii[3]:0L2013. On the laid date the,. n W.. hWH p complainant appeared with his cpuhselfahd~,the accused also appeared with
4. JiV s.',yj his counsel. The.Court recorded thht^^the'mattephad been settled between the parties, and prpceedl^'^p record'-'the-^state^eni'?^^4fie parties-. The respondent accused uMi§4tateHfeffl stated that he is t € -'-v i...ni'.-i'" ready to settle the present mitter^gp^rigiiplaiffafor atotalsum ofRs.
1 Lakh infoil&final settlementofthe present case. Hestated thathe would pay the settlement amount in three installments, i.e. firstly, a sum of Rs.10,000/- on 23.03.2013; Rs.45,000/- on 23.03.2013,and;Rs.45,000/- on 23.04.2013. He states that he would abide by his promise and this statement was signed by the accused. The statement of the complainant was also recorded to the effect that he is ready to settle the present matter with the accused for a total sum ofRs.l Lakh to be paid to him,as stated above. He /, U CRL.L.P.No.708/2014 Page4of[9] stated that he did not have any other cheque ofthe accused with him. He further stated that on receiving the settlement amount,he would compound the present matter with the accused. This statement of the complainant/ appellant was also signed by him. The learned Magistrate adjourned the matter to 23.02.2013, which was the date fixed for payment of the first installment.
10. Learned counsel for the appellant submits that no payment was made by the accused, as promised, pn:-23iO2^20f[3],x|nd consequently, the matter 'V was put up for defence,reviden'Ce'iont05.03.2.Qll3^^ flbAy.ever, on 05.03.2013, the accused made,/pa)^ment of^^ajSs®. o| Rs.10^^0,67%in cash to the complainant and/thqj^said pay%e#|w||5i|e|^lHed in fhe^iorder sheet. The matterwasadjounrelTc23.03.2^||^||?^akihgfurtherpdyme^t. However, on 23.03.20131'the accused stateSj|that|&' is not in a position to make paymentto the|complainant. Thel^atter7%as adjourned toTO.04.2013 to %. fi enable the accused to make:maylndnm"-Qnee£again;7^^ accused did not make paymenton the next^dite%i}e^l0.b4t201^7ahdj^^ the matter was put up for defence
11. Learned counsel for the aj^fl¥hT'submits that in view of the said settlement arrived before the Court, wherein the accused had undertaken to make payment of Rs.l Lakh to the complainant/ appellant, there was no occasion for the learned Magistrate to go behind the MOU(Ex.CW-1/3)and the said settlement recorded before the Court.
12. The further submission oflearned counsel for the appellant is that the mere fact that the cheques in question (Ex. CW-1/1 & Ex.CW-1/2) were CRL.L.P.No.708/2014 Page5of[9] issued as security cheques in favour ofthe appellant/ complainant, in the facts & circumstances ofthe case,could not lead to the conclusion that the complaint under Section 138 ofthe NI Act was not maintainable. Learned counsel submits that the presumption under Sections 118 and 139 ofthe NI Act— thatthe cheques in question had been issued in discharge ofa legally recoverable debt or other liability, was not dislodged by the accused in the present case.
13. On the other hand,leam^ECOunsel-for;the respondent has supported the.impugnedjudgmei;i^#t^^(p|,|:|)janlel|ubipits%at the appellant could K not establish that thd aCcus^ed was indebted to tHe'/appellant since it was,. J I,. 'f-Mp'' 'L' ' 'fj- \/jsP claimed by-him^'tlidfe-^rimariMt, thC^ponsifeiUtyW Sh. Suresh.ChandraGoyalt6mSepaymen^^%'Si-^Vj'f| -V-"" %
14. Learned •p t'l n 1.[1] counsel further s|[iMi^|tfiat,' admittedly, th| cheques in question were ^en as securit>|^gtH|lfere, dishonour ofsuch security:■ iiip ■ TrfJ; '0 -LI 'p-'ix. ff cheques couldnd^e the^%cfemfteiif^ldm^lain^ 138 of the NI Act. In this judgments taken note of in the impugned^i|[^^g^wgj|i^the decision of Supreme Court in Vijay Vs. Laxman & fffcc 86.
15. The present appeal was heard along with another appeal preferred by Sh. Suresh Chandra Goyal against the same accused (arising out of Crl.L.P. No.706/2014), in more or less identical circumstances. The issues raised and arising in the present appeal, are identical with the issues raised and considered in the appeal ofSh. Suresh Chandra Goyal (arising out of Crl. L.P. No.706/2014 - against the judgment dated 15.09.2014 in complaint /, V CRL.L.P.No.708/2014 Page 6of[9] V No.96/2012). In fact, the same learned Magistrate disposed of both the complaints on the same day.
16. In thejudgmentpronounced today in the appeal arising outofCrl.L.P. No.706/2014, this Court has disproved of the approach of the learned Magistrate in seeking to go behind the MOU(which was similarly executed between the appellant and the accused in the other case as well)to ascertain whether, or not^ the debt was owed by the accused in favour of the complainant/ appellant. On^therpar-ilf^'-ofceasra the approach of the learned Magistrate in deaiing^^ithlHhl is|ues>whether the accused was -indebted to the appellant/"chmplainaPt^inJhe sunjkdf^.l Lakh, in the present case, is rejected. Th'e|jl^©HX(BmCj^-l/3) dlg^^lyXstated that the. I % amount of Rs.;l LkSb had beefti||ransfej^ from the' apbount of the complainant/appellant as an inves|ment|in^o the partnership business ofthe accused and QnT*#^oVi broken, the liability fell on,and was acbepled«^dhd^aclm6w^^ hy^thexkecu^Sd. The accused undertookto paythe ampuntPfiRsXRI^kh^hftwo m ofRs.50,000/each in October2011 and No'^emBpr^|gin-th€'iightofthe Sections91 & 92 ofthe Indian Evidence Act, it was not open to the learned Magistrate to go behind the MOU(Ex.CW-1/3)and to entertain, or examine the plea of the accused that he was not indebted to the complainant in the sum ofRs.l Lakh,since that plea is contrary to the express terms ofthe MOU(Ex.CW- 1/3). Such a plea was barred from being raised,or considered in the lightof Sections 91 &92 ofthe Indian Evidence Act. CRL.L.P.No.708/2014 Page 7of[9]
17. Pertinently,the aecused did notset up a defeneefalling within thetwo exeeptions and three explanations to Seetion 91,or under Provisos 1 to 6 to Seetion 92 ofthe Evidenee Aet.
18. It is also pertinentto note that the aecused entered into the settlement before the Court itself, agreeing to pay Rs.l Lakh to the complainant. This was also the cheque amount. He not only agreed to the said liability, but discharged the said liability partly by making paymentofRs.10,000/- before the Court,to the appellant. TW&ieondum^ofTh^aecused is also a pointer to the fact that the acpiis^i^arMMlIhiQlil^^ towards the i complainant/appellanCpheff'he issuei'fhe eJieques'^W;CWrl/l and Ex.CW- 1/2 ■- - ■■ /: V/ '. H % -f i I \ v.i li vl
19. The aspect of the cheques;in question being seeurity|eheques and whether, in this|background, a eo^plaint' ilnder Seetion 138 of the NI Act was maintainable upon dishonour of suc^^ security cheques has been considered in extdnso in the-appeal oZSiMsh Gli^m GiSal (supra) and the submission of the,ac'ctisedThat a compjainfunlier|#ym 138 of theNI Act would not lie, has"te^^rej^^t^.'up^^i^^tion of the facts and circumstances ofthe case. The samereas'miirig applies to thepresent ease as well and, therefore, I do not consider it necessary to set out the same reasoningin thepresent judgment. The reasoning given inSuresh Chandra Goyal(supra) is adoptedinthepresent case as well.
20. For the aforesaid reasons, it is. clear that the learned Magistrate has returned findings of fact which are palpably wrong; its approach in dealing with the evidenee is patently illegal;,its decision is based on an erroneous 'v CRL.L.P.No.708/2014 Page8of[9] view ofthe law, and; the impugned judgment, if sustained, would lead to grave miscarriage ofjustice. The impugnedjudgment is, consequently,set aside. The accused is convicted ofthe offence under Section 138 ofthe NI Act.
JUDGE MAY /4,2015 B.S.Rohella n /t il y *ff"Erai-ssr Tff'f v.*!"-" CRL.L.P. No.708/2014 Page9of[9] f $-22 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A.601/2015 RAJESH BANSAL Appellant Through: Mr.Kshitij Sharda,Advocate versus AMIT SINGHAL Respondent Through: Ms.Aastha Dhawan,Advocate CORAM: HON'BLE MR.JUSTICE SIDDHARTH MRIDUL ORDER % 24.09.2015 CRL.M.A.14143/2015 Counsel appearing on behalfofAmit Singhal,the respondent herein, has handed over in Court today to counsel appearing on behalfofthe appellant the following demand drafts:-
(i) Demand draft bearing No.485518 dated 22.09.2015, drawn on
(ii) Demand draft bearing No.485523 dated 24.09.2015, drawn on
Andhra Bank, Preet Vihar Branch, New Delhi in the sum of Rs.25,000/-. Counsel appearing on behalfofthe appellant states that the claim ofthe appellant,which was agitated in the present appeal,has been satisfied. I In view ofthe above,the present application is allowed. The non-bailable warrants issued againstthe respondent by the court ofMetropolitan Magistrate, Karkardooma Courts,Delhi are cancelled. The application is disposed ofaccordingly. A copy ofthis order be given dastiunderthe signatures ofCourt Master. SIDDIj^RTH MRTOUL,J SEPTEMBER 24,2015 dn (j^ ^