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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 ..... 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. 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 - 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 complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als 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 ₹ 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 ₹ 17,68,000/-, as promised, the petitioner had made a part payment of ₹ 2,00,000/- to the respondent. This part payment of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay illegally demanded amount, because he had already paid a part payment of ₹ 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 ₹ 15,68,000/- and all the cheques (total value of ₹ 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 ₹ 2,00,000/- was received by him on 23.07.2011. Immediately thereafter, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondent in 40 installment of ₹ 50,000/- per month. So therefore by 30.04.2018, the petitioner was supposed to pay total decreed amount of ₹ 20,00,000/-. 8. Accordingly, the petitioner had started to pay ₹ 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 ₹ 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 ₹ 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 will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 instalment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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. Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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