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2018 DIGILAW 676 (JK)

Sanjeev Kumar Aggarwal v. Sunil Kumar Ram Pal

2018-08-30

SANJAY KUMAR GUPTA

body2018
JUDGMENT : 1. Through the medium of instant petition, filed under Section 561-A Cr.P.C, the petitioner seeks quashing of Complaint titled Sh. Sunil Kumar Ram Pal Vs. Sanjeev Kumar Aggarwal sub-judice before the learned Additional Special Mobile Magistrate, R.S. Pura, Jammu, filed by the respondent against the petitioner and also the order dated 10th July, 2014, by virtue of which the learned Court ordered issuance of process against the petitioner. 2. The facts giving rise to the filing of the instant petition stated are that the respondent approached Sh. Subodh Kumar for the purchase of a vacant plot in the Industrial Area of Dehradun for a total consideration of Rs.45.00 lacs (Rupees Forty Five Lacs) and in pursuance to the said agreement, the respondent paid Rs.20.00 lacs (Rupees Twenty Lacs) and Rs. 25.00 (Rupees Twenty Five Lacs) in cheque to be encashed, subject to the transfer of the said plot after execution of the required documents. However, the said transaction could not mature for the reasons better known to the respondent herein the said Subodh Kumar, as such, it was agreed that the respondent shall handover the original documents of the said plot to the said Sh. Subodh Kumar, returned fourteen lacs to the answering respondent herein, as the cheques of Rs. 25.00 lacs due to non-maturity of the agreement were not encashed. It was further agreed that after handing over the original documents of the plot to the said Sh. Subodh Kumar, the respondent will be entitled to receive the remaining amount of Rs. 6.00 lacs. 3. It is stated in the instant petition that the respondent did not choose to perform his legal obligation, i.e., he failed to return the original documents of the land/plot to the said Subodh Kumar for the reasons better known to the respondent and in consequences whereof, the respondent could not obtain the remaining amount of Rs. 6.00 lacs from the said Subodh Kumar, but the respondent by using his influence and power tried to sacrifice the petitioner at the alter of non-existing debt or liability. That the petitioner acting in good faith and without any consideration or interest and being known both, the so called seller and the purchaser were appointed as attorney to facilitate the transfer of paper by the said Sh. Subodh Kumar, as the said Subodh Kumar was residing at Delhi. 4. That the petitioner acting in good faith and without any consideration or interest and being known both, the so called seller and the purchaser were appointed as attorney to facilitate the transfer of paper by the said Sh. Subodh Kumar, as the said Subodh Kumar was residing at Delhi. 4. It has also been stated in the instant petition that the petitioner was made a scapegoat at the alter of the transaction inter-se Subodh Kumar and the respondent, taking all undue advantage of the gentleness and the politeness of the petitioner herein. The respondent used force, power and all foul means in order to obtain the above referred amount of Rs. 6.00 lacs from the petitioner. He along with his wife came to the house of the petitioner and manhandled the petitioner. Besides this, he abused the petitioner extensively and created a scene and situation, living no stone unturned in humiliating and insulting the petitioner. Besides this, the petitioner was taken to Police Station, where under coercion and threat, three cheques amounting to Rs. 3.00 lacs each were obtained from the petitioner without any liability or debt against the respondent. 5. It has further been stated that from the bare perusal of the Complaint, annexed as Annexure-C to the instant petition, it is evident that the respondent had no claim against the petitioner. Whatsoever question of debt and liability were far beyond of any legal sanctity. The ‘Modus Operandi’ adopted by the respondent for obtaining the above referred cheques from the petitioner is itself, axiomatic and the question of liability against the respondent is also well clear from the contents of the complaint. After coming to know about this legal ‘Modus Operandi’ being opted by the respondent for obtaining the above referred cheques from the petitioner, the said Subodh Kumar served a Notice (Annexure-D) dated 09th May, 2014 upon the respondent, wherein the respondent was again requested to handover the original documents of the said plot to the said Subodh Kumar. The respondent herewith replied the notice, but virtually denied to return the documents, which is evident from the Reply dated 20th May, 2014, appended as Annexure-E to the petition. 6. The respondent herewith replied the notice, but virtually denied to return the documents, which is evident from the Reply dated 20th May, 2014, appended as Annexure-E to the petition. 6. It is further stated in the instant petition that the respondent willfully and knowingly that the petitioner is nowhere responsible or bound because of having no liability or debt against him, filed the Complaint impugned under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner. The said Complaint was returned to the respondent, to be presented before the appropriate forum of law in view of the judgment of Hon’ble Supreme Court titled, “Dashrath Roop Singh Rathore Vs. State of Maharashtra and ors.”. However, in view of the law laid down subsequently by the Hon’ble Supreme Court, the said Complaint was again transferred to the Additional Special Mobile Magistrate, R.S. Pura for adjudication. The Court below in gross violation of law and the facts of the case issued process in the said Complaint against the petitioner on 10th July, 2014, by virtue of which the petitioner is highly aggrieved of. In view of the aforesaid factual scenario, the petitioner has approached this Court by way of instant petition. 7. I have heard counsel for petitioner. 8. Petitioner has categorically stated that cheques in question bear his signatures. 9. The essential ingredients for maintaining the complaint u/s 138 of N.I. Act are as under:- 1. The cheque should have been issued for the discharge, in whole or part, of any debt or other liability 2. The cheque should have been presented within a period of six months or within its validity period whichever is earlier. 3. The payee or holder in due course should have issued a notice in writing to the 30 days of the receipt of information by him from the Bank regarding the return drawer within of the cheque as unpaid. 4. After receipt of the said notice from the holder in due course, the drawer should have failed to pay the cheque within 15 days of receipt of the said notice. 10. Section 139 of N.I Act reads as under:- “139. 4. After receipt of the said notice from the holder in due course, the drawer should have failed to pay the cheque within 15 days of receipt of the said notice. 10. Section 139 of N.I Act reads as under:- “139. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.” 11. In case Hiten P. Dalal vs. Bratindranath Banerjee reported in AIR 2001 SUPREME COURT 3897, it is held as under:- “That the four cheques were executed by the appellant in favour of the Standard Chartered Bank (hereafter referred to as the Bank), has not been denied nor was it in dispute that the cheques were dishonoured because of insufficient funds in the Appellants' account with the drawee, viz. Andhra Bank. Because of the admitted execution of the four cheques by the appellant, the Bank was entitled to and did in fact rely upon three presumptions in support of its case, namely, under Sections 118, 138 and 139 of the Negotiable Instruments Act. Section 118 provides, inter-alia, that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The presumption which arises under Section 138 provides more specifically that where any cheque drawn by a person on an account for payment of any amount of money for the discharge in whole or in part of any debt or other liability, is returned by the drawee bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque, such persons shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may extend to twice the amount of the cheque, or with both. The nature of the presumption under Section 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case. The nature of the presumption under Section 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61 , it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.” 12. In this way all the factual matter pleaded in this petition are required to be proved by petitioner during trial. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.” 12. In this way all the factual matter pleaded in this petition are required to be proved by petitioner during trial. At initial stage, when the complaint is at threshold and only process has been issued, it cannot be presumed that cheque in question was not issued for clearing legally enforceable debts. Further, order of taking cognizance has been passed on 10/7/2014 by Court below and present petition has been filed after about four years. It is not the case of petitioner that trial Court has no jurisdiction to entertain the complaint or there is some legal bar in entertaining the complaint. 13. In view of above, this petition is dismissed.