Rajesh Bansal v. Amit Singhal

Judgment reserved on:

27.04.2015 % Judgment delivered on: .05.2015 +

CRL.L.P. 708/2014 RAJESH BANSAL Petitioner Through: Mr. Kshitij Sharda, Advocate, versus - AMIT SINGHA^"^«^0^'^ ^ ^ Respondent wXlir&ush: ;ssMr. Aman Bfialla,'Advocate. // .Aira4iS^.'WS3..#S .ff jf CORAM:# ^ % HON'BLE MR. JUSTICElP?Tf}fANGHI V I •" rl J U D G^M EIN T i I) s VIPIN SANGHI. J. ... u ^ /

¶1After hearirigUearned'Gpunsel«leave'granted-; ^ nn VAf- - .A

¶2Let the appeal be tegisteredCai^^^^ Crl.A. No. 60/ /2015 (to be registered and numbered)

¶3I heard learned counsel finally at the admission stage with their consent and reserved judgment. Accordingly, I now proceed to dispose of the appeal.

¶4The present appeal is directed against the judgment dated 15.09.2014 passed in complaint No. 95/2012, whereby the learned Metropolitan CRL.L.P. No. 708/2014 -6 Magistrate, Karkardooma Courts, Delhi, has acquitted the respondent-accused of the offence under Section 13 8 of the Negotiable Instruments Act, 1881(NIAct).

¶5The case of the appellant/complainant, as emerging from the complaint and the evidence led by the complainant, is that the complainant had invested Rs.l Lakh in the business of one Sh. Suresh Chandra Goyal and the accused. The accused, in order to repay the amount of Rs. 1 Lakh, issued the two cheques in questioflf Le;»iEx, CW-1/1 and CW-1/2 of Rs.50,000/- each date^?^d^^(|4^^^f J cahd ?|^ip5'.20L2. respectively, while -C "o executing a Mempfdnd^'of JM

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' relevant extract;|of the MOU inter alia, reads as follows' h i; il , - ' (i - )7 Xl . •> \\ Sept, 2011 via da^4rm0er Second party Sh. Rajesh Bansal$yAy^^ of paftnef;0iifonyS^ The Partnership wasbrokeri'i^'^ay^i^fmtiiuB in first week of Dec 2010. and whereas both the parties agreed that First party will return full amount of Rs. 1,00,000/- (Rs. One Lakhs only) to Second Party Sh. Rajesh Bansal in Two installment of Rs. 50,000.00 (Rs. Fifty thousand only) by way of two monthly cheque for October 2011 and November 2011 Second party Suresh Chandra Goyal will return all security cheque drawn in favour of second party, if any. It is also agreed upon by all the parties that interest @

1.5% per month will be charged if there is any delay in getting the cheques cleared by the first party." CRL.L.P. No.708/2014 •s)-

¶6The complainant claimed that the aforesaid cheques (Ex.CWl/1 and CWl/2) were presented for payment since the accused failed to make payment of the two installments of Rs.50,000/- each in terms of the MOU (Ex.CW-1/3), and these cheques were dishonoured upon presentation on account of insufficient funds in the account of the accused. Consequently, the complainant issued a legal notice dated 04.08.2012 (Ex.CW-1/6) under Section 138 of the 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-tf2)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. // , ,

¶7The submission of learne(|'^p|fhs]|Jtf^ appellant'is that the 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 himsplf had,giyjen#e^suM',ofI^.H ElPlTo the accused, or had given the said amountcfhrough'Sh^Sufesh Chandra ©0,^^ complainant had admitted in his crdssrexaiPinafipn that^t-w^ Shf Sufesh 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 of the NI Act is not maintainable in respect of these cheques.

¶8In respect of the first reason, the submission of learned counsel for the appellant is that MOU (Ex.CW-1/3) itself reflects the debt owed by the CRL.L.P. No. 708/2014 ar~ accused, and the undertaking given by him that the 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 of debt 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 doubt the existence of the debt itself, is misdirected. It is submitted that it was not open to Magistrate to go behind the MOU (Ex.CW-1/3) and to m^ke an inquiry as to whether, or not, the accused was indebted tofthe appellant/ corfit51ainant to the tune of Rs 1 i Lakh. //" n i "-v-A % 'S ^ ... ^4:^

¶9The appellSnt^h^ 'alsG^ffivh "tfe^^itention Court to the settlement reached^^between thei|iarties::in;|he course of%4 proceedings, which was recorded by the Couft''on'2ii3:0L2013. On the laid date the , . n W . . hWH p complainant appeared with his cpuhselfahd~,the accused also appeared with . JiV s.' ,yj his counsel. The. Court recorded thht^^the'mattep had 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^rigiiplaiffa for a total sum of Rs. 1 Lakh in foil & final settlement of the present case. He stated that he 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 of Rs.l Lakh to be paid to him, as stated above. He /, U CRL.L.P. No.708/2014 stated that he did not have any other cheque of the 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.

¶10Learned counsel for the appellant submits that no payment was made by the accused, as promised, pn:-23iO2^20f3,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 matter was adjounrelTc 23.03.2^||^||?^akihg further pdyme^t. However, on 23.03.20131'the accused stateSj|that|&' is not in a position to make payment to the|complainant. Thel^atter7%as adjourned to TO.04.2013 to % . fi enable the accused to make:maylndnm"-Qnee£again;7^^ accused did not make payment on the next^dite%i}e^l0.b4t201^7ahdj^^ the matter was put up for defence

¶11Learned 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.

¶12The further submission of learned 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 issued as security cheques in favour of the appellant/ complainant, in the facts & circumstances of the case, could not lead to the conclusion that the complaint under Section 138 of the NI Act was not maintainable. Learned counsel submits that the presumption under Sections 118 and 139 of the NI Act — that the cheques in question had been issued in discharge of a legally recoverable debt or other liability, was not dislodged by the accused in the present case.

¶13On the other hand, leam^ECOunsel-for;the respondent has supported the .impugned judgmei;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 . Chandra Goyal t6 mSe paymen^^%'Si-^Vj'f| -V-"" %

¶14Learned •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 could nd^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 & f f fcc 86.

¶15The 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 of Sh. 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.

¶16In the judgment pronounced today in the appeal arising out of Crl.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 of the accused and QnT*#^oVi broken, the liability fell on, and was acbepled«^dhd^aclm6w^^ hy^thexkecu^Sd. The accused undertook to pay the ampunt PfiRsXRI^kh^hftwo m of Rs.50,000/- each in October 2011 and No'^emBpr^|gin-th€'iight of the Sections 91 & 92 of the 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 of Rs.l Lakh, since that plea is contrary to the express terms of the MOU (Ex.CW-1/3). Such a plea was barred from being raised, or considered in the light of Sections 91 & 92 of the Indian Evidence Act. CRL.L.P. No. 708/2014

¶17Pertinently, the aecused did not set up a defenee falling within the two exeeptions and three explanations to Seetion 91, or under Provisos 1 to 6 to Seetion 92 of the Evidenee Aet.

¶18It is also pertinent to 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 payment of Rs. 10,000/- before the Court, to the appellant. TW&ieondum^ofTh^ aecused is also a pointer to the fact that the acpiis^ i^arMMl I hiQlil^^ towards the i complainant/ appellanCpheff'he issuei'fhe eJieques'^W;CWrl/l and Ex.CW-1/2 ■- - ■■ / : V/ ' . H % -fi I \ v.i li vl

¶19The 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 oZ SiMsh Gli^m GiSal (supra) and the submission of the, ac'ctisedThat a compjainf unlier|#ym 138 of the NI Act would not lie, has "te^^ rej^^t^.'up^^i^^tion of the facts and circumstances of the case. The same reas'miirig applies to the present ease as well and, therefore, I do not consider it necessary to set out the same reasoning in the present judgment. The reasoning given in Suresh Chandra Goyal (supra) is adopted in the present case as well.

¶20For 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 view of the law, and; the impugned judgment, if sustained, would lead to grave miscarriage of justice. The impugned judgment is, consequently, set aside. The accused is convicted of the offence under Section 138 of the NI Act. (VIPIN SANGHI) JUDGE MAY /4 ,2015 B.S. Rohella n /t il y * f f "Erai-ssr Tff'f v.*!"-" CRL.L.P. No.708/2014 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 behalf of Amit Singhal, the respondent herein, has handed over in Court today to counsel appearing on behalf of the appellant the following demand drafts:-

(i) Demand draft bearing No.485518 dated 22.09.2015, drawn on Andhra Bank, Preet Vihar Branch, New Delhi in the sum of Rs. 1,50,000/-.

(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 behalf of the appellant states that the claim of the appellant, which was agitated in the present appeal, has been satisfied. I In view of the above, the present application is allowed. The non-bailable warrants issued against the respondent by the court of Metropolitan Magistrate, Karkardooma Courts, Delhi are cancelled. The application is disposed of accordingly. A copy of this order be given dasti under the signatures of Court Master. SIDDIj^RTH MRTOUL, J SEPTEMBER 24, 2015 dn (j^ ^

$-9. IN THE HIGH COURT OF DELHI AT NEW DELHI