Rajesh Kumar vs Mehrotra Impex Pvt. Ltd.
2020 Latest Caselaw 3313 Del

$~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

                                    JUDGMENT

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

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

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

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

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

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

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/-

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

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

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

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

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/-

(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

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,

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

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

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

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

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

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

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

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