Full Judgment Text
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 26.11.2020
Pronounced on: 04.12.2020
+ CRL.M.C. 1977/2020 & Crl.M.A. 14157-59/2020
RAJESH KUMAR ..... Petitioner
Through Mr.Rajesh Kumar, Adv.
versus
MEHROTRA IMPEX PVT. LTD. ..... Respondent
Through Mr.Nishant Nigam, Adv.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T
1. Present petition has been filed under section 482 Cr.P.C. read with
Article 227 of the Constitution of India praying as under:
i. Call the Trial Court Records of CT case No.619030/2016
(CNR-DLSE020002882011) decided by Ms.Vasundhra Azad,
learned MM-03, South East District, Saket Courts as well as
execution petition no.617/2017 (CNR-DLWT010054062017)
pending before Shree Vikash Dhull, learned ADJ-01/West
District/Tis Hazari Courts, Delhi;
ii. Issue an order thereby all the pending/decided matters between
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the parties may be clubbed together so as a common
compounding order.
iii. Issue an order thereby directing the petitioner to pay to the
respondent the judicious/reasonable amount within certain
period of time keeping in view the fact and circumstances of the
present case;
iv. Further the order dated 15.05.2019 and 25.05.2019 passed by
the learned Magistrate court may be vacated. The judgment
dated 27.02.2020 passed by learned ADJ- 04, South East court
may also be set aside. Further the execution proceedings in
execution petition no.617/2017 may be recalled.
2. Brief facts of the present case, as narrated in the present petition, are
that in 2010, the petitioner was running a small garment factory. Since
around 2009, he was dealing with the respondent. Lastly during 15.11.2010
to 29.12.2010, he had purchased some fabric materials from the respondent
on credit basis, upon certain terms and conditions. Respondent issued seven
invoices of different amounts for the material purchased during 15.11.2010
to 29.12.2010. In the first week of July, 2011, final account has been
mutually settled between the parties and therefore eight cheques (without
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mentioning dates) having total value of Rs.17,68,000/- were handed over to
the respondent. The petitioner had offered these cheques for securing the
debt of the respondent. Petitioner had promised to pay part payments time
to time. The respondent had assured that after receiving all the due
outstanding payments, all the eight undated security cheques would be
returned back to the petitioner. Immediately thereafter, in the last week of
July, 2011, against the total liability of Rs.17,68,000/-, as promised, the
petitioner had made a part payment of Rs.2,00,000/- to the respondent. This
part payment of Rs.2,00,000/- was made on 22.07.2011 through pay order.
The said payment was made against running account and on 19.04.2014, the
AR of respondent had admitted the said fact before the learned Trial Court.
The payment was not made against any particular cheque, in fact, it was
made against all the deposited cheques. Therefore, after making the part
payment of Rs.2,00,000/-, the total outstanding dues/liability of the
petitioner had been reduced to the amount of Rs.15,68,000/-. On
19.04.2014, AR of the respondent clearly admitted that the final debit
balance was Rs.15,68,000/-. However, on 11.08.2011, the respondent had
issued legal notice under section 138 of N.I. Act, demanding total amount of
Rs.17,68,000/- from the petitioner. But the respondent did not
CRL.M.C. 1977/2020 Page 3 of 22
discuss/disclose maliciously anything about receiving a part payment of
Rs.2,00,000/- on 22-23.07.2011. Whereas in its reply dated 31.08.2011, the
petitioner had clearly mentioned that against the total outstanding amount of
Rs.17,68,000/-, he had already made a part payment of Rs.2,00,000/-
through pay order no.000878 dated 22.07.2011.
3. Learned counsel for the petitioner has submitted that on 31.08.2011,
the petitioner had specifically offered to make remaining outstanding
amount of Rs.15,68,000/- to the respondent. However, the petitioner had
requested for some time for making the remaining payments. But the
respondent/complainant with malafide intention was demanding much
excess amount than the actual existing liability. Despite on 31.08.2011, the
petitioner had offered to pay the actual payable amount. The respondent did
not even bother to response to the reply dated 31.08.2011 of the petitioner.
Finally the respondent has filed complaint under section 138 of N.I. Act
before the learned Magistrate against the petitioner.
4. Further submitted that in its complaint as well as pre and post
summoning evidence, the respondent intentionally did not discuss anything
about receiving of an amount of Rs.2,00,000/- after receiving the eight
cheques. In its complaint and evidence, the respondent had claimed the total
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liability of the petitioner as Rs.17,68,000/-.
5. Learned counsel further submitted that before serving the notice under
section 251 of Cr.P.C. by learned Magistrate, the petitioner had filed his
settlement proposal in terms of “Damodar S. Prabhu” guidelines of the
Hon’ble Supreme Court and offered before the court to pay the actual
outstanding amount, even something more. Therefore, on 02.03.2013, he
had clearly offered to pay the amount of Rs.16,00,000/- in installments, but
refused to pay illegally demanded amount, because he had already paid a
part payment of Rs.2,00,000/- after drawing/giving his cheques to the
respondent/complainant. Moreover, through settlement application, on
02.03.2013, the petitioner had apprised his defense before the learned
Magistrate, however, on the same day, the settlement application was heard
and notice under section 251 of Cr.P.C. was served and thereto petitioner
had pleaded not guilty since he was not liable to pay excess amount. So
ultimately the trial started, wherein, the petitioner was supposed to prove
preponderance of probability that at the time of legal notice, the actual
“legally enforceable debt” was Rs.15,68,000/- and all the cheques (total
value of Rs.17,68,000/-) were deposited for security purposes.
6. It is submitted by learned counsel for the petitioner that during trial
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application under section 145(2) of N.I. Act was allowed, therefore, the AR/
Director of the complainant was called for his cross examination. During
cross examination, on 19.04.2014, the AR/Director of the respondent
admitted that one payment of Rs.2,00,000/- was received by him on
23.07.2011. Immediately thereafter, he made his voluntarily statement
saying that the payment was received against running account. But he did
not say that the payment was received against any particular cheque, out of
eight cheques. He clearly admitted that he would have to check why a sum
of Rs.17,68,319/- was demanded from the petitioner in the legal demand
notice. The amount of Rs.15,68,319/- was the final due amount as the
invoices have been raised even after 29.12.2010. Thereafter on 26.07.2014,
the statement of the petitioner was also recorded under section 281 of
Cr.P.C.; on 09.09.2014, defense evidence was recorded; both defense
witnesses had recorded the same defense that the petitioner had already paid
a part payment of Rs.2,00,000/- to the respondent. In addition, on
09.09.2014, the petitioner had made his statement before learned Magistrate
that “I had made payment of Rs.2,00,000/- by way of pay order which was
against the cheques in question issued to the complainant”. On 16.10.2014,
the petitioner had filed an application under section 311 of Cr.P.C. seeking
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permission for producing statement of account regarding pay order dated
22.07.2011. The same had been dismissed with the order quoted as
“Perusal of record shows that the complainant during cross examination
has admitted payment of Rs.2,00,000/- made on 23.07.2011. Since the fact
of receipt of payment is admitted, the application for recalling of witness is
dismissed.”
7. Further submitted, with the indulgence of learned Magistrate, several
times, the petitioner had tried his best to settle the matter. But because of
the “disputed” part payment of Rs.2,00,000/-, the matter could not be settled
even through mediation. In the meantime, the respondent had filed a civil
suit i.e. CS(OS) No.2379/2013 before this Court on the basis of the said
eight cheques praying for recovery of Rs.29,38,481/- from the petitioner.
However, the petitioner had put his same submissions before this Court that
the actual legally enforceable debt was Rs.15,68,000/- and not
Rs.17,68,000/-. He submitted bonafidely before this Court that he was
always ready and willing to pay the amount of Rs.15,68,000/- along with
reasonable interest in installments, which was appreciated and, therefore, on
29.01.2015 directed the petitioner to pay the total full and final settlement
amount of Rs.20,00,000/- to the respondent in 40 installment of Rs.50,000/-
CRL.M.C. 1977/2020 Page 7 of 22
per month. So therefore by 30.04.2018, the petitioner was supposed to pay
total decreed amount of Rs.20,00,000/-.
8. Accordingly, the petitioner had started to pay Rs.50,000/- in each and
every months. However, his financial position was not good. But he was
trying his best for abiding the order of this court. By October, 2016, he had
paid 16 installments for a total amount of Rs.8,00,000/- to the respondent.
9. It is submitted that vide order dated 29.01.2015, this Court had also
put a condition quoted as “In case of three consecutive defaults by the
defendant (petitioner herein), the entire decretal amount shall become
payable alongwith interest @ 12% p.a. from the date of filing of suit i.e.
20.11.2013” . This Court had also given liberty to the respondent to restart
criminal prosecutions under section 138 of N.I. Act before the Magistrate
Court, in the event of three consecutive defaults. After paying Rs.8,00,000/-
to the respondent, by the middle of 2016, the petitioner had made three
consecutive defaults due to his extreme financial hardship but not
intentional. However, he was committed and willing to make all the rest
payments till 30.04.2018 (within 40 months). Several times, the petitioner
had made submissions before the learned Magistrate that he was willing to
pay rest of the installment, but due to acute financial hardship he could not
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make payment on time. On 03.03.2007, the petitioner had made his
submissions before the learned Magistrate that he has already paid
Rs.8,00,000/- out of Rs.20,00,000/- and was ready to make the payment by
30.06.2017 with respect to all arrears. Since respondent wanted to restart the
prosecution proceedings against the petitioner, therefore, again re-started
despite the fact that several times, the petitioner had requested the
respondent for abeyance the criminal proceedings, so as he could again start
to pay installments. The petitioner had continuously assured the respondent
that he would make rest of the payment i.e. Rs.12,00,000/- till 30.04.2018, at
any cost. But the respondent had started to demand full decretal amount of
Rs.20,00,000/- along with 12% interest from 20.11.2013. So again no
settlement could arrive between the parties.
10. Learned counsel for the petitioner submitted that finally vide order
dated 15.05.2019, the learned Magistrate has held that at time of legal
demand notice dated 11.08.2008, the legally enforceable debt/liability of the
petitioner was Rs.15,68,000/- and not Rs.17,68,000/-. Therefore, the
petitioner has been convicted, because he did not pay the amount of
Rs.15,68,000/- to the respondent.
11. It is submitted that the petitioner was ready and willing to pay
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Rs.15,68,000/- since 31.08.2011 but, respondent had never accepted the
same because he was claiming for Rs.17,68,000/-. However, vide order
dated 25.05.2019, the petitioner was awarded simple imprisonment of three
months for the offence under section 138 of N.I. Act and also directed to pay
fine of Rs.22 lacs. Being aggrieved, the petitioner had filed an appeal before
learned Sessions Court but the same has been dismissed vide order dated
27.02.2020.
12. Lastly, learned counsel submitted that the petitioner may not be
punished under section 138 of N.I. Act, because he had never refused to pay
the actual legally enforceable debt amount. The respondent may not be
allowed to take undue advantage by asking exaggerated amount under the
guise of section 138 of N.I. Act. The said provision is not enacted for
enriching the dishonest payee. The petitioner wants to pay appropriate and
reasonable amount to the respondent, therefore, he is seeking indulgence of
this court for securing the ends of justice.
13. In view of the facts and submissions made by the learned counsel for
the petitioner, nothing can be granted in favour of the petitioner. Even,
during arguments, this Court had put a specific query to the petitioner, who
was present through video conferencing, that how and within how much
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time he would like to pay the amount. He replied that he is in great financial
crises, therefore, as and when money would come he will pay the amount.
This type of vague statement cannot be accepted even if the court wants to
help such a petitioner, so this Court is also helpless and decided to give
opinion on merit and as per law.
14. The case of the respondent is that the petitioner and respondent had
engaged in a business relationship where the respondent was selling Fabric
to the petitioner. The petitioner was required to remit payments with regard
to the purchase from the respondent and such payments were to be made
against each invoice raised by the respondent. The petitioner instead of
making payments against each invoice commenced making part payments
and thus, a running account was maintained by the respondent with regard to
the petitioner. At some point in the year 2010 the petitioner stopped making
payments to the respondent. Therefore, various reminders were issued to the
petitioner due to which the petitioner issued Eight Cheques for an amount of
Rs.17,68,000/- (Rupees Seventeen Lakhs Sixty Eight Thousand Only) to the
respondent. The said cheques were presented by the respondent with its
bank, however, the same were dishonoured. In this regard, the respondent
issued a legal notice to the petitioner apprising him of dishonour of the
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cheques and also advised him to remit the payments due to the respondent.
The petitioner while responding to the legal notice admitted his liability to
the tune of Rs.15,00,000/- (Rupees Fifteen Lakhs Only) approximately and
committed to remit the payment over a period of 30 months. Since the
payment was due on an immediate basis and that the assurances given by the
petitioner were hollow in nature, the respondent proceeded to file a
complaint under Section 138 of the Negotiable Instruments Act before the
Learned Metropolitan Magistrate, Saket Courts, Delhi. The said proceedings
lasted for more than 8 years and finally concluded on 25.05.2019 and vide
order dated 15.05.2019 the petitioner was held guilty of offence under
Section 138 of the Negotiable Instruments Act. Thereafter, the order of
sentencing was passed vide order dated 25.05.2019 whereby the petitioner
was directed to pay an amount of Rs.22,00,000/- to the respondent as
compensation.
15. Learned counsel for respondent has submitted that during the
pendency of the proceedings before the Learned Metropolitan Magistrate,
the respondent had also filed a civil suit before this Court vide C.S. (OS)
No.2379/2013. In the said civil suit the petitioner had arrived at an amicable
settlement with the respondent to remit total amount of Rs.20,000,00/-
CRL.M.C. 1977/2020 Page 12 of 22
(Rupees Twenty Lakhs Only) to the respondent through equal monthly
instalments of Rs.50,000/- commencing from January, 2015. Further, this
Court had directed the petitioner that in case the petitioner is found
defaulting on the instalments, for 3 consecutive times then the entire decretal
amount shall be due alongwith interest @ 12% thereon and any amount
already paid towards the said decretal amount shall stand forfeited.
Furthermore, this Court had also directed that the respondent will also have
the liberty to prosecute the complaint pending before the Metropolitan
Magistrate.
16. Further submitted that during the pendency of the proceedings before
the Learned Metropolitan Magistrate, the respondent abided by the
directions of this Court in C.S. (OS) No. 2379/2013 and continue to remit an
amount of Rs.50,000/- every month commencing from January, 2015.
However, the petitioner after the month of July, 2015, started to default on
his monthly instalment. Initially, the petitioner delayed payments only for a
period of 2 months so as to not get covered under the ambit and scope of the
directions of this Court with regard to the three consecutive defaults.
However, subsequent to the month of September, 2015, the petitioner
defaulted in paying the monthly instalments for a period of three consecutive
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months. Even so the respondent allowed the petitioner to continue paying
the equal monthly instalments yet the petitioner took the undue advantage of
the leniency of the respondent and completely stopped paying the
instalments after May, 2016. Since the petitioner had defaulted more than
once with regard to three consecutive defaults the respondent was left with
no other option but to proceed with the complaint pending before Learned
Metropolitan Magistrate, Saket Courts, Delhi.
17. It is submitted that the Petitioner while remitting Rs.50,000/- per
month as per the directions of this Court had remitted an amount of
Rs.8,00,000/- (Rupees Eight Lakhs Only) to the Respondent. Further, It is
imperative to mention that despite various opportunities given to the
Petitioner, despite number of defaults, the Petitioner chose not to proceed
further with the amicable settlement but chose to contest the complaint
before the Learned Metropolitan Magistrate. Finally, vide judgment dated
25.05.2019, the petitioner was held guilty for the offence under Section 138
of the Negotiable Instruments Act and convicted with three months simple
imprisonment and payment of Rs.22,00,000/- to be paid as compensation in
favour of respondent.
18. Instead of complying with the order of conviction dated 25.05.2019,
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the petitioner challenged the judgment dated 15.05.2019 before the
Additional Session Judge, Saket Court, Delhi. However, the said appeal was
also dismissed vide judgment dated 27.02.2020. Consequently, the matter is
pending before the Learned Metropolitan Magistrate, for compliance of the
Order of Conviction dated 25.05.2019. However, the petitioner has failed to
appear and has been declared an absconder vide order dated 18.11.2020.
Despite the above conduct of the Petitioner, in an audacious attempt the
Petitioner has filed the present petition under Section 482 Cr.P.C. seeking
compounding of the offence for which he has been convicted as also seeking
other reliefs which are beyond the jurisdiction of this Court under the
provisions of Section 482 Cr.P.C. In view of the above the present petition is
liable to be dismissed since the Petitioner is not serious in complying with
the directions of this Court passed in C.S. (OS) 2379/2013 or Order of the
Learned Metropolitan Magistrate, Saket Courts. Delhi and has been avoiding
the due compliance of such directions and further has been running away
from the law.
19. I have heard learned counsel for the parties and perused the material
available on record.
20. Vide the present petition under Section 482 Cr.P.C., the petitioner has
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sought to combine the Civil Execution Proceedings pending before the
Learned Additional District Judge, Tis Hazari Court, Delhi, and the criminal
proceedings pending before the Learned Metropolitan Magistrate. The said
reliefs cannot be granted since both proceedings are mutually exclusive and
are pertaining to different reliefs since one is pending before the Additional
District Judge for execution of the settlement decree dated 29.01.2015 and
the other is before the Learned Metropolitan Magistrate for compliance of
the order of conviction and which has been disposed of vide order
18.01.2020 whereby the petitioner has been declared an absconder after due
procedure under Section 82 Cr. P.C. was followed.
21. The present petition is liable to be dismissed since the Petitioner has
not come before this Court with clean hands especially as the Petitioner has
defaulted on payments, eventually, it was required to make efforts to satisfy
settlement decree dated 29.01.2015. The said settlement decree has attained
finality and is liable to be complied with. Hence, the petitioner through the
present petition cannot seek to override/appeal/modify the contents of the
said Settlement Decree.
22. Moreover, the Petitioner has not shown any bonafides with regard to
his conduct to arrive at an amicable settlement/compound the offence and
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thus, the present Petition cannot be allowed since in a catena of judgments,
the Hon'ble Supreme Court has held that the powers under Section 482
Cr.P.C. are to be used sparingly and in case the law provides for other
provisions which can be applied for due delivery of justice then in that case
Section 482 Cr.P.C. cannot be invoked to seek any relief. Hence, even in the
present case, the petitioner without moving any Application and/or seeking
any assistance from the Court of the Learned Metropolitan Magistrate or the
Learned Additional District Judge in trying to either compound the offence
or amicably settle the matter, has approached this Court under Section 482
Cr.P.C.
23. It is pertinent to mention here that in the statement of accused
(petitioner herein) recorded under Section 313 Cr.P.C, he has admitted that
he had issued the eight cheques in question to the complainant although the
same were issued for security purposes since it was agreed between the
respondent and petitioner that he would make all payments due to the
complainant before December 2013. Further, the petitioner has stated that
till 22.07.2011, he had paid approximately 16 lakhs through cheques and
demand drafts.
24. For the offence under Section 138 N.I. Act, the presumptions under
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Sections 118(a) and 139 have to be compulsory raised as soon as execution
of cheque by accused is admitted or proved by the complainant and
thereafter burden is shifted to accused to prove otherwise. These
presumptions end only when the contrary is proved by the accused, that is,
the cheque was not issued for consideration and in discharge of any debt or
liability. A presumption is not in itself evidence but only makes a prime
facie case for a party for whose benefit it exists. Presumptions both under
Section 118 and 139 are rebuttable in nature as was held by the Hon’ble
Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee
{(2001) 6 SCC 16} .
25. It has been held in M/s Kumar Exports v. M/s. Sharma Carpets,
{2009 A.I.R. (SC) 1518} that the accused may rebut these presumptions by
leading direct evidence and in some 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. Further, the burden may be discharged by the accused by showing
preponderance of probabilities and the onus on the accused is not as heavy
as it is on the complainant to prove his case.
26. From the aforesaid discussion, it becomes amply clear that the
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presumption of law, though rebuttable, works in favour of the complainant.
However, the presumption gets rebutted if the defence raises a reasonable
suspicion in the prosecution story by raising a probable defence. 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
presumption. However, this does not preclude the person against whom the
presumption is drawn from rebutting it and proving the contrary.
27. In the present case, the petitioner has admitted in the notice under
Section 251 Cr.P.C. that the cheques in question bear his signatures.
Reference can be made to judgment of Apex Court in Rangappa v. Mohan:
AIR 2010 SC 1898 , “Once the cheque relates to the account of the accused
and he accepts and admits the signatures on the said cheque, then initial
presumption as contemplated under Section 139 of the Negotiable
Instruments Act has to be raised by the Court in favour of the complainant.”
Accordingly, the onus is upon the accused to rebut the presumption raised
under Sections 118(a) and 139 of the said Act and the same can be done by
accused by either bringing out loopholes in the case of the complainant or
by bringing a reasonably probable defence in his favour. Since such case
attracts a criminal liability, the burden of proof upon the complainant is to
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the extent of proving his/her case beyond all reasonable doubts whereas the
accused is required to create preponderance of probabilities in this favour.
28. At this stage, it is relevant to cite a leading judgment of the Hon’ble
Supreme Court of India in the matter titled as Vijay vs. Laxman &
Anr.:{(2013) 3 SCC 86} wherein it has been held that: “We are not
unmindful of the fact that there is a presumption that the issue of a cheque is
for consideration. Sections 118 and 139 of the Negotiable Instruments Act
make that abundantly clear. That presumption is, however, rebuttable in
nature. What is most important is that the standard of proof required for
rebutting any such presumption is not as high as that required of the
prosecution. So long as the accused can make his version reasonably
probable, the burden of rebutting the presumption would stand discharged.
Whether or not it is so in a given case depends upon the facts and
circumstances of that case.”
29. Unlike the prosecution, accused is not required to establish his
defence beyond all reasonable doubts. He is only required to create a hole in
the story of prosecution to get the benefit of acquittal. Accused can say that
the version brought forth by the complainant is inherently unbelievable and
therefore the prosecution cannot stand. Or the accused can give his version
CRL.M.C. 1977/2020 Page 20 of 22
of the story and say that on the basis of his version the story of the
complainant cannot be believed.
30. Since the petitioner has stated in his testimony before the Trial Court
on 28.02.2019 that he cannot specify as to which particular cheque the
amount of Rs. 2 lakhs relates to, for ease of reference, that particular cheque
is taken to be cheque bearing no. 005604 issued in the sum of Rs.2 lakhs.
However, with respect to the remaining cheques in question, the liability has
been explicitly and unequivocally accepted by the petitioner in his testimony
as DW2.
31. It is pertinent to mention here Section 58 of the Indian Evidence Act,
1872 which states as follows: „No fact need to be proved in any proceeding
which the parties thereto or their agents agree to admit at the hearing, or
which, before the hearing, they agree to admit by any writing under their
hands, or which by any rule of pleading in force at the time they are deemed
to have admitted by their pleadings.‟
32. Admittedly, there has been default, in making payment, on the part of
petitioner since July 2011. Despite the decree passed by this Court and
conviction by the Trial Court, till date respondent has not received the
payment due. The legal fight of the respondent had started from the legal
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notice dated 11.08.2011 and continued till date. Thus, the respondent was
compelled to run from pillar to post. In such circumstances as in the
present case, the petitioner deserves no leniency or sympathy.
33. In view of above facts and the law discussed, I am of the view that
there is no illegality or perversity in the orders passed by the Trial Court
and Appellate Court as well.
34. Finding no merit in the present petition, the same is dismissed with no
orders as to costs.
35. Pending application also stands disposed of.
36. The order be uploaded on the website forthwith.
(SURESH KUMAR KAIT)
JUDGE
DECEMBER 04, 2020
ab
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