Laxmi Dutta Jain vs Giri Raj Singh
2011 Latest Caselaw 4569 Del

$-1
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CRL.L.P.No.402/2011

%              Judgment delivered on:16th September,2011


LAXMI DUTTA JAIN                                       ..... Petitioner
                                   Through : Mr.O.P. Aggarwal, Adv.

                       versus

GIRI RAJ SINGH                                        ..... Respondent
                                   Through : NEMO.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?                          No.
     2. To be referred to Reporter or not?            No.
     3. Whether the judgment should be reported
        in the Digest?                                 No.

SURESH KAIT, J. (Oral)

1. Vide this petition, the petitioner/complainant has

assailed judgment dated 01.07.2011 passed by learned

Metropolitan Magistrate, whereby the respondent/accused

has been acquitted in a case under Section 138 Negotiable

Instrument Act, 1881 (hereinafter referred to as 'NI Act').

2. Learned counsel for the petitioner submits that the

cheque was admittedly issued by the respondent in favour of

the petitioner. It is also admitted that the cheque was

dishonoured due to 'insufficient funds'. He further submits

that the cheque in question was given against the sale

consideration of the house. Further submits that there is no

'stop-payment' of the cheque in question by the respondent.

3. Learned Trial Court has summarised that the sale deed

was executed between the petitioner and wife of the

respondent, for a total sale consideration amount of

`3,32,000/-; out of which `1,22,000/- was paid in cash. The

balance amount of `2,10,000/- was to be paid by way of

cheque issued by the respondent which was subsequently

dishonoured; against which, the petitioner filed the

complaint against the respondent under Section 138 NI Act.

4. The defence of the respondent has also been recorded by

the learned Magistrate, inter alia, that respondent had

admitted the execution of the sale deed as well as handing

over of the cheque in question, however, he has taken the

defence that the said cheque was given by way of security

and the amount thereof was paid in cash on the very day of

execution of the sale deed, by withdrawing the amount of

`1,30,000/- from his bank and `1,60,000/- from the account

of his wife and placed the same on record i.e. the copies of

their account in the bank passbook as Ex.DW1/A to

Ex.DW1/D.

5. Further, after the above payments, respondent

demanded the cheque to be returned, however, petitioner

stated that he had misplaced the same, and whenever same

shall be retrieved, it shall be handed over to respondent.

The respondent in caution made 'stop-payment' instructions

to the bank vide letter Ex.DW2/E.

6. Learned Trial Judge after hearing both parties has

recorded his findings that the sale deed Ex.CW1/DA clearly

contains the recital that the petitioner has received a sum of

`3,32,000/- by way of cash & nothing remains due. Further,

possession of the subject matter has also been handed

over. The above fact has also been corroborated by the

evidence of DW-1 Joginder Singh Nambardar, who was a

witness to the said sale deed, categorically stated that,

respondent Giriraj Singh at the time of the execution of sale

deed on 04.07.2008 paid in cash `2,10,000/-. Respondent

has also placed on record the statement of his account and

that of his wife as Ex.PW2/A and Ex.PW2/B which shows that

`1,30,000/- and `1,60,000/- were withdrawn from their

respective banks accounts on the same day as that of the

sale deed.

7. Learned Trial Court has also recorded, that the

respondent has placed on record a letter Ex.DW2/E which he

wrote to the bank for 'stop-payment' the letter also

mentioned the fact of having paid the said sum which goes

on to prove that the defence of the respondent was not an

afterthought but very well documented even before the

complaint being filed by the petitioner.

8. The Trial Court has also noted that, the fatal factor to

the version of the petitioner is that the respondent had

issued a post date cheque of `2,10,000/- dated 06.08.2008

to be drawn on Gurgaon Gramin Bank. However, same was

presented for encashment in the month of January, 2009.

9. Learned Trial Court has recorded that it is highly

unnatural that when the sale deed was executed between

the parties, and the possession handed over, then why was

there a delay in presenting of the cheque by the petitioner.

10. Learned counsel for petitioner admitted that the sale

deed was executed and registered before the concerned

registrar, the possession was handed over. But due to

'insufficient funds' in the account, the cheque in question

was dishonoured by the bank. Therefore, at the request of

the respondent/accused, he executed the documents and

presented the cheque in question after the execution of the

sale deed handing over the possession to the respondent/

accused.

11. The cheque was firstly dishonoured because of the

'insufficient funds' and at that time, the respondent had no

liability to pay the amount to the petitioner. Thereafter, the

petitioner has been paid amount in cash, which is recorded

in the sale deed. It is highly unnatural in today's era that a

person executed the sale deed would hand over the

possession of the property, without receiving the

consideration amount in advance. Moreso, the cheque in

question has not been mentioned in the sale deed. Rather,

the cash amount in consideration is mentioned. Which

proves that the transaction was executed in cash.

12. Let us presume that the petitioner had faith in the

respondent/accused then why did the petitioner present the

cheque in question so belatedly.

13. I note that the Trial Court has also recorded that the

respondent/accused demanded the cheque to be returned

from the petitioner many times, however, the petitioner

denied and stated that the cheque had been misplaced. He

made no effort in asking the respondent to stop payment or

cancel the aforesaid cheque.

14. In view of the above discussion, I find no discrepancy in

the judgment passed by learned Metropolitan Magistrate on

01.07.2011.

15. Finding no merit in the Crl.L.P. No.402/2011, I hereby

dismiss the same with no order as to costs.

SURESH KAIT, J

September 16, 2011 Mk