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TMI Blog2020 (12) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,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/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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