Delhi District Court
Smt. Shyam Wati vs . Vinod Piplani on 24 May, 2023
IN THE COURT OF MS. NEHA GOEL, METROPOLITAN MAGISTRATE, N.I. ACT-
02, CENTRAL, TIS HAZARI COURTS, DELHI.
CC No. 529185/2016
CNR No. DLCT020090162015
SMT. SHYAM WATI VS. VINOD PIPLANI
U/s 138 N. I. Act
PS SUBZI MANDI
JUDGMENT
1. Sl. No. of the case 529185/2016 2. Date of institution of 06.07.2015 the case 3. Name of complainant Smt. Shyam Wati w/o Sh. Kehar Singh, Proprietor of M/s
Shyam Plastic Diemaker & Plastic Manufacturers, R/o H. No. L2/87, Shastri Nagar, Delhi-110052.
Also at: I-95, Sector-1, Bawana Industrial Area, Delhi.
4. Name of accused, Sh. Vinod Piplani R/o Flat No. 256, third floor, Muskan parentage and address Apartment, C- Block, Pocket- 1, Sector-17, Rohini, Delhi-
110085.
Also at: Vinod Piplani, Proprietor M/s Virasat Industries, at K- 200, Sector-3, Bawana Industrial Area, New Delhi-110039.
5. Offence complained of Section 138 Negotiable Instruments Act
6. Plea of accused Accused pleaded not guilty
7. Final order Convicted
8. Date of pronouncement 24.05.2023
1. The present complaint1 has been filed by the complainant against the accused under Section 138 Negotiable Instruments Act, 1881.
Digitally signed
NEHA by NEHA GOEL
Date:
GOEL 2023.05.24
15:48:18 +0530
1 The present complaint case and CC No. 515542/2016 are connected matters as arising out of same transaction and are being disposed off by separate judgments. Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 1 of 19 Factual Matrix
2. The brief facts as alleged by the complainant in the complaint are that the complainant is engaged in the business of doing job work of plastic pump body and the accused have been getting the job work done through the complainant after providing the raw material and moulds from time to time as per his requirement. It is further mentioned that complainant has been maintaining proper books of accounts and has been raising bills for the job work done by the complainant and the accused was very much satisfied with regard to the quality and quantity of the work carried out by the complainant. It is further mentioned that in due discharge of lawful debts and liabilities towards the complainant the accused issued 102 cheques in favour of the complainant. The details of the cheques are us under:
S. Cheque Date Amount Drawn On
No. No.
1 030187 23.02.2015 Rs. Axis Bank, Sector
25,000/- 15, Rohini, Delhi
2 030188 08.03.2015 Rs. Axis Bank, Sector
25,000/- 15, Rohini, Delhi
3 030189 18.03.2015 Rs. Axis Bank, Sector
25,000/- 15, Rohini, Delhi
4 030190 28.03.2015 Rs. Axis Bank, Sector
25,000/- 15, Rohini, Delhi
3. It is further mentioned that at the time of handing over the aforesaid cheques to the complainant the accused assured the complainant that all the abovesaid cheques would be honoured on presentation and believing the said assurance, complainant received the said 2 Out of which, present case has been filed in respect of four cheques as mentioned in the table and CC No. 515542/2016 has been filed for rest of the six cheques. Digitally signed by Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 NEHA NEHA GOEL Page 2 ofDate:
19
GOEL 2023.05.24 15:49:16 +0530 cheques from the accused. It is further mentioned that the complainant presented the said cheques mentioned at serial no. 1 to 4 through his banker, i.e. Punjab National Bank, branch Hindu Rao, Delhi-110052, the same were returned unpaid by the banker of the accused vide four separate returning memos all dated 29.04.2015 with the remarks "Funds Insufficient". The complainant thereafter issued 4 separate legal demand notices all dated dated 20.05.2015 through counsel calling upon the accused to pay the said cheque amount of Rs. 1,00,000 (qua cheques mentioned at serial no. 1 to 4) within a period of 15 days from receipt thereof. The said notice was duly served upon the accused on 02.06.2015 and the accused failed to pay the cheque amount within the statutory period. Hence, the present complaint u/s 138 Negotiable Instrument Act 1881 was filed by the complainant, praying for the accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The complainant has averred that the present complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law. Proceedings before the court
4. Pre-summoning Evidence: To prove a prima-facie case, the complainant led pre-
summoning evidence by way of affidavit Ex. CW-1/A wherein the complainant has affirmed the facts stated in the instant complaint.
5. Documentary Evidence: To prove the case, the complainant has relied upon the following documents:
S. Description of documents Exhibit No.
No.
1 Cheque bearing no. 030187 dated 23.02.2015 for an amount of Rs. Ex. CW1/1A
25,000/- drawn on Axis Bank, Sector 15, Rohini, Delhi 2 Cheque return memo dated 01.05.2015 Ex. CW1/2A Digitally signed by Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 NEHA Page 3 ofGOEL NEHA 19 Date:
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3 Cheque bearing no. 030188 dated 08.03.2015 for an amount of Rs. Ex. CW1/1B
25,000/- Axis Bank, Sector 15, Rohini, Delhi
4 Cheque return memo dated 01.05.2015 Ex. CW1/2B
5 Cheque bearing no. 030189 dated 18.03.2015 for an amount of Rs. Ex. CW1/1C
25,000/- Axis Bank, Sector 15, Rohini, Delhi
6 Cheque return memo dated 01.05.2015 Ex. CW1/2C
7 Cheque bearing no. 030190 dated 28.03.2015 for an amount of Rs. Ex. CW1/1D
25,000/- Axis Bank, Sector 15, Rohini, Delhi
8 Cheque return memo dated 01.05.2015 Ex. CW1/2D
9 Speed postal receipt dated 20.05.2015 Ex. CW1/4A
10 Speed postal receipt dated 20.05.2015 Ex. CW1/4B
11 Legal notice dated 20.05.2015 Ex. CW1/3A
12 Speed postal receipt dated 20.05.2015 Ex. CW1/4C
13 Speed postal receipt dated 20.05.2015 Ex. CW1/4D
14 Legal notice dated 20.05.2015 Ex. CW1/3B
15 Speed postal receipt dated 20.05.2015 Ex. CW1/4E
16 Speed postal receipt dated 20.05.2015 Ex. CW1/4F
17 Legal notice dated 20.05.2015 Ex. CW1/3C
18 Speed postal receipt dated 20.05.2015 Ex. CW1/4G
19 Speed postal receipt dated 20.05.2015 Ex. CW1/4H
20 Legal notice dated 20.05.2015 Ex. CW1/3D
21 Tracking reports Ex. CW1/5
(colly)
6. Summoning of the Accused: On finding of a prima-facie case against the accused, accused was summoned on 15.07.2015 where the accused appeared before the Court on 30.10.2015. Before framing of notice, at joint request matter was put up before Mediation Centre but the matter could not be settled.
7. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the accused on 19.02.2016 to which he pleaded not guilty and claimed trial. The plea of Digitally signed Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 NEHA Page 4 of 19by NEHA GOEL Date:
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defence of the accused was recorded where the accused had stated that "These cheques were issued as security and I had put only the amount and the date in these cheques. These cheques were not issued against any payment as alleged by the complainant. I also have paid most of the payment to the complainant and have the voucher of the said payment."
8. Evidence of the Complainant: An application u/s 145 (2) NI Act was moved by accused which was allowed vide order dated 01.07.2016. The accused was granted permission to cross-examine the complainant. Thereafter, the complainant was cross examined as CW1 and discharged. Thereafter, an application u/s 311 CrPC was moved on behalf of complainant for examining Sh. Giriraj Singh (son of complainant) as CW2 and the said application was allowed vide order dated 24.03.2018. CW2 was examined and discharged. No other witnesses were examined by the complainant. Thereafter, complainant's evidence was closed, and the matter was listed for statement of the accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
9. Statement of the Accused: Statement of the accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 13.09.2019 wherein all the incriminating circumstances appearing in evidence against the accused were put to him and he was asked to explain the same. He stated that "I am innocent. I am doing the business of Cooler pump and after taking raw material and die from me, complainant used make the Cooler Pump body for me and for the same, I had issued advance cheques to the complainant and I never requested for my advance cheque and I used to make the payment by way cash. I have made most of the payment to the complainant and my raw material and die is lying with the complainant. The cheques in question bear my signatures and amount was filled by me. My cheques have been misused. I do not want to say anything else." Digitally signed NEHA by NEHA GOEL Date:
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10. Defence Evidence: An application u/s 315 CrPC was moved by accused which was allowed vide order dated 13.09.2019. Further, an application to summon certain witness was moved by accused and allowed vide order 17.01.2020. DW1 Sh. Vinod Piplani was examined, cross-examined and discharged u/s 315 CrPC on 17.02.2020. Ld. Counsel for accused submitted that he did not wish to examine any other witness in defence evidence and DE was closed vide order dated 29.04.2022. And, hence, matter was put up for final arguments.
11. I have heard the submissions of the Ld. Counsel for the complainant as well as the accused. I have also perused the record.
Appreciation of evidence
12. Before embarking upon a journey of appreciation of evidence, it would be fruitful to examine the statutory contours of the offence u/s 138 of the Negotiable Instruments Act, 1881 and the conspectus of cases which have served to explicate them.
13. For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the complaint as well as the evidence of the complainant: -
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by Digitally agreement made with that bank; signed by NEHA NEHA GOEL Date:
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Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 6 of 19
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice;
14. The aforesaid legal requirements are cumulative in nature, i.e. only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under Section 138 of the Negotiable Instruments Act.
15. The provision of Section 138 Negotiable Instruments Act, 1881 is buttressed by Section 139 Negotiable Instruments Act 1881 and Section 118 of the Negotiable Instruments Act 1881. Section 139 of the Negotiable Instruments Act 1881 provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. Section 118 of the Negotiable Instruments Act 1881 provides inter alia that the court shall presume, until the contrary is proved, 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.
16. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 of the Negotiable Instruments Act 1881 and Section 118 of the Negotiable Instrument Act 1881 mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume" used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing Digitally facts to the contrary. signed by NEHA NEHA GOEL Date:
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Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 7 of 19
17. In the case of Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 the Hon'ble Supreme Court had occasion to examine the confines of the presumption u/s 139 of the Negotiable Instruments Act 1881, wherein it held that: "22. Because both Sections 138 and 139 of the Negotiable Instruments Act, 1881 require that the court "shall presume"
the liability of the drawer of the cheques for the amounts for which the cheques are drawn (..) "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. at p. 65, para 14.) (...) 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. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man". (...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).
18. Also, in the case of Rangappa v. Sri Mohan, (2010) 11 SCC 441 it was held that: "(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Negotiable Instruments Act, 1881 does indeed include the existence of a legally enforceable debt or liability. (..) 27. Section 139 of the Negotiable Instruments Act, 1881 is an example of a reverse onus clause that has been included in furtherance of the Digitally signed by Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page NEHA 8 of 19 NEHA GOEL GOEL Date:
2023.05.24 15:52:15 +0530 legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Negotiable Instruments Act, 1881 specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 Negotiable Instruments Act, 1881 is a device to prevent undue delay in the course of litigation. (...) 28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption under Section 139 Negotiable Instruments Act, 1881, the standard of proof for doing so is that of "preponderance of probabilities". (...) As clarified in the citations, the Accused can rely on the materials submitted by the Complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own(...)".(emphasis supplied).
19. Now I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredient in question or not.
20. That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability. 20.1. This condition pertains to the issuance of the cheque itself. It is pertinent to note that the accused, in his statement recorded u/s 281 r/w 313 CrPC, accused has admitted that cheques in question bear his signature. Further, the cheques have been drawn on the account of the accused. This leads to drawing of an inference u/s 139 Negotiable Instruments Act 1881 read with s.118 of the Negotiable Instruments Act 1881, that the cheque was issued in discharge of a legally recoverable debt or other liability. Digitally signed NEHA by NEHA GOEL Date:
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Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 9 of 19
20.2. In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal, (1999) 3 SCC 35, it was held: "12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) Negotiable Instruments Act, 1881 would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-
existence of a consideration by raising a probable defence. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff". (emphasis supplied).
20.3. The presumption now having been raised against the accused, it falls upon him to rebut it. The accused has chosen so to do by cross examining CW1, CW2 and examining himself as DW1.
21. To rebut the presumption under Section 139 of NI Act, the accused has taken certain defences which have been discussed in the following paragraphs.
22. In sum, the defence of accused as reflected from his notice framed u/s 251 CrPC, application filed u/s 145 (2) NI Act, statement recorded u/s 281 r/w 313 CrPC and deposition recorded u/s 315 CrPC is that he is doing business of cooler pump with Sh. Giriraj Singh (son of complainant) and not with complainant Smt. Shyam Wati. Sh. Giriraj Singh used to make the cooler pump body for him after taking raw material and die from him. Accused does not know the complainant and he has only met Sh. Giriraj Singh as he only used to sit at office of the firm. He has business transaction from last 7 Digitally signed NEHA by NEHA GOEL Date: GOEL 2023.05.24 15:53:11 +0530 Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 10 of 19 to 8 years with Sh. Giriraj Singh. Sh. Giriraj Singh did not disclose the fact of receiving of payment from the accused to her mother and because of which she has filed the present cases by misusing his security cheques. The present case has been filed against him because of the dispute between mother and son. His raw material and die are still lying with Sh. Giriraj Singh though he has never given any notice, complaint etc. against Sh. Giriraj Singh regarding return of die and raw materials. Now, I shall examine the contentions of the accused in light of the evidence on record.
23. The first contention of accused is that he has always been doing business with Sh. Giriraj Singh and not with complainant CW1 Ms. Shyam Wati. This is fortified by the statements made by complainant CW1 Ms. Shyam Wati herself in her cross examination. She has deposed that Sh. Giriraj Singh is her son. She is the owner of the factory, but the work is looked after by her son Sh. Giriraj Singh and she does not look after the work of her company. She did not inform the factum of handling of the affairs of M/s Shyam Plastic Diemaker by Sh. Giriraj Singh to her counsel at the time of sending of the legal demand notice and filing of the present complaint case. Sh. Giriraj Singh got himself examined u/s 311 CrPC and he deposed that he used to manage the day-to-day affairs of the abovesaid proprietorship firm. This contention of the accused cannot come to his aid as it has been held by the Kerala High Court in K. Bahseer v. CK Usman Koya, Crl. A. No. 41/2005, judgment dated 17.03.2021 that there is no need for the Complainant to mention in the legal notice to disclose the nature of the transaction as that would render the statutory presumptions in NI Act otiose. The offence u/s 138 NI Act is made out on the ingredients of it, as noted above, and disclosing the nature of transactions or other details as to who was managing proprietorship and its day-to-day affairs is not a necessity. What comes to bear, in fact, is that the transactions are not disputed by the accused and complainant was Digitally signed well within her rights to fill up the rest of the cheque. NEHA by NEHA GOEL Date:
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24. The second contention of accused is that CW1 complainant Ms. Shyam Wati is not competent to depose as CW1 as she is unaware of the business transactions being not involved in firm/factory affairs. This argument is to be rejected as the Complainant/CW-1 is the payee of the impugned cheques and thus is unquestionably competent to depose in this trial. Now as to what facts she can prove herself and what facts has she gotten proved by CW-2 is a question, which has not been raised by the accused. What the accused has questioned is her competence to depose as a witness, which cannot be doubted, being the payee. This contention is also, therefore, rejected.
25. The third contention of accused is that the cheques in question worth Rs. 1,00,000/- were issued for security/advance purpose to Sh. Giriraj Singh for executing his work and not for making any payment. Cheques in question are in continuous serial numbers, hence, they could not have been issued against purchases/bills. He had put the amount, date and sign in these cheques. He has already paid back most of the dues through bank and in cash to Sh. Giriraj Singh and he has the voucher of the said payment. Though, during trial, accused failed to produce voucher/receipt/bank statement. The defence of security cheques is no longer a grey area. It was held in the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena CRL. A. No. 1136 Of 2010 that: "Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. (...) The Accused, by cogent evidence, has to prove the circumstance under which cheques were issued". The defence raised by the accused that the cheques in question were given as security and are hence not covered within the meaning of Section 138 NI Act is devoid of merit as a cheque given as security is also covered u/s 138 NI Act if on the date of presentment of such a cheque, valid legal debt/liability persists. In this regard law has been settled in view of the NEHA Digitally signed by NEHA GOEL Date: 2023.05.24 GOEL 15:53:36 +0530 Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 12 of 19 authoritative pronouncement by the Hon'ble Apex Court in ICDS Ltd vs. Beena Shabeer 2002 (2) SCC 426.
26. The fourth contention of accused that he is not aware about the proprietorship firm namely M/s Shyam Plastic Dye Maker and Plastic Manufacturers and he has only dealt with Sh. Giriraj Singh who did not inform him in whose name the firm is registered. CW- 1 has deposed that the income from her firm is approximately Rs. 5-6 lacs in a year. She is an income tax assessee. She used to show the income of her firm in her personal ITR.
She cannot tell the income of her firm shown in her personal ITR. She cannot tell the turnover of her firm. Her firm is audited by her CA. All the income and expenditures of her firm are done and shown in her personal bank account i.e. with the PNB Bank. Thereafter, CW2 Sh. Giriraj Singh deposed in cross examination that M/s Shyam Plastic Diemaker and Plastic Manufacturer is a proprietorship firm. He further stated that for doing the job work the TIN Number is not required and he does not have any TIN Number. Work executed by Sh. Giriraj Singh is in the name of and on behalf of the abovesaid proprietorship firm, of whom the proprietor is his mother CW-1. The alleged liability also accrue / arose in favour of the proprietorship-firm only, as he was merely managing and running the business on behalf of his mother. Smt. Shyam Wati is proprietor of abovesaid firm as such she has right to take cheque on her name and also on behalf of the proprietorship firm. On reading the deposition of CW1 and CW2 together, the facts emerge that the firm M/s Shyam Plastic Diemakers and Plastic Manufacturers is running on an MCD license and the income of the firm is being dealt by CW1 in her personal account. Smt. Shyam Wati is the proprietor of the firm though she is not aware about anything as the entire work was being handled by her son CW-2. It is settled law that proprietor and the proprietorship are the same thing as a proprietorship is only a trade name and has no existence or juristic personality of its own. CW-1 dealing with the Digitally signed by NEHA Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 NEHA Page 13 of 19 GOEL GOEL Date:
2023.05.24 15:53:53 +0530 earnings of the proprietorship concern in her bank account and also reflecting the same in her ITR shows that she is in fact the person in whose name the business is being run by CW-2. Importantly, the accused has admitted the business transactions with CW2, and the only argument is that the accused was not aware of the existence of proprietorship firm of CW1. The same is hardly a legal argument and in any case does not affect the offence of Section 138 NI Act as the accused has admitted to having issued the cheques by filling up the amounts even and only the name of the payee was not filled up. CW-1 was perfectly at liberty to fill up her own name, as her son, who was admittedly dealing with the accused on her behalf, was only acting as her agent. The money going to the account of either CW-1 or CW-2 is only a technicality and what is important is whether or not any money to be paid at all.
27. The fifth contention of accused is that the bills Ex. CW1/Y (colly) produced by complainant in cross examination are forged/fake in nature as Sh. Giriraj Singh did not provide him any bill. In cross examination CW1 Ms. Shyam Wati has deposed that she has the receipt/bill book of the work done for the accused but the same was never demanded by the accused hence, the same were neither prepared nor issued to the accused. There is no written receipt pertaining to the receiving of purchase order from the accused. She used to take receipt of the goods delivered to the accused. She cannot tell the total amount of the bills Ex. CW-1/Y (colly) which have been produced for the first time in Court on 08.03.2017. CW2 Sh. Giriraj Singh has deposed that he does not take proof of delivery while delivering any goods to the buyer as the same was not a practice in his line of work, and in his evidence by way of affidavit he has said that he used to raise the bill due to which he used to receive cheque/payment and in the present transaction accused verbally asked for the execution of the work to be done by the complainant firm. The accused, though has taken this objection to the bills, loses sight of Digitally signed NEHA by NEHA GOEL Date: Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 GOEL Page 14 of 19 2023.05.24 15:54:09 +0530 the fact that in his defence taken at the stage of notice-framing u/s 251 CrPC, did not dispute the transactions at all. Even if no bills were filed this case, the transactions with the complainant/her son are undisputed and the only dispute is whether or not the payment has been made by accused.
28. The sixth contention of accused is that complainant did not disclose that two additional civil cases were filed in Rohini Court against accused. One was filed by Smt. Shyam Wati for recovery of Rs. 1,04,000/- (approx.) which has been settled and payment made in the Court and other by Sh. Giriraj Singh for recovery of Rs. 50,000/- has been dismissed.
Accused has deposed that present case pertain to different cheques from that of cases which were filed in Rohini Court. Complainant has also admitted that present case pertains to the same job work but different cheque numbers. This contention therefore is misconceived as it has no bearing on the present trial. Civil and criminal proceedings operate in difference arenas, and the complainant is even entitled to prosecute both civil and criminal remedies even for the same cheques.
29. After taking into consideration all of the above, what is seen is that the only limited scope of controversy in this case, in which the transactions are not disputed, was that the accused has paid most of the money due to the Complainant/her son. Accused has not touched this defence and no evidence whatsoever has been led to prove this. Only a bald suggestion has been put to the CW-1 that most payments have been made to CW2 for the job work, that too without any preceding questions or follow up questions as to how, when and by what mode the payment was made. The accused in his defence at the stage of Section 251 CrPC stated that he can bring the vouchers/proof of payments made to the complainant but no such proof has been filed. Even if the version of accused is to be believed that such vouchers exist, then also an adverse inference is to be drawn against the accused for not producing them. NEHA Digitally signed by NEHA GOEL Date: 2023.05.24 GOEL 15:54:25 +0530 Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 15 of 19
30. All that the accused has done in this trial is disclose a defence at the time of framing of notice, but thereafter nothing has been brought on record by way of defence evidence or even by the cross-examination of the complainant to prove the same. As already noted above, in the case of V.S. Yadav (supra), the same does not amount to rebutting the presumption u/s 139 NI Act. The legally enforceable debt, being the first ingredient, is thus proved.
31. That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
31.1. This requirement is satisfied on a perusal of the cheques in question and cheque return memos as mentioned below. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the accused.
S. Cheque Date on cheques in Ex. No. on Return Memo Ex. No. on
No. No. question cheques dated Return Memo
1 030187 23.02.2015 Ex. CW1/1A 01.05.2015 Ex. CW1/2A
2 030188 08.03.2015 Ex. CW1/1B 01.05.2015 Ex. CW1/2B
3 030189 18.03.2015 Ex. CW1/1C 01.05.2015 Ex. CW1/2C
4 030190 28.03.2015 Ex. CW1/1D 01.05.2015 Ex. CW1/2D
32. That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque.
32.1. S. 146 of the Negotiable Instruments Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, Digitally signed Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 NEHA by NEHA GOEL PageDate:
16 of 19 2023.05.24 GOEL 15:55:38 +0530 unless and until such fact is disproved. The cheque return memos on record states that the cheques in question have been returned dishonoured for the reason "funds insufficient". The defence has led no evidence to controvert the same and hence, this ingredient is also fulfilled as against the accused.
33. That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid.
33.1. As regards the service of legal demand notices, the complainant has sent the same by speed post to the accused. The original postal receipts and tracking reports in respect of the same is already on record as follows:
S.no. Particulars of the legal notices and original postal receipts Exhibit Numbers
1. Legal notice dated 20.05.2015 Ex. CW1/3A 2 Speed postal receipt dated 20.05.2015 Ex. CW1/4A
3. Speed postal receipt dated 20.05.2015 Ex. CW1/4B
4. Legal notice dated 20.05.2015 Ex. CW1/3B
5. Speed postal receipt dated 20.05.2015 Ex. CW1/4C
6. Speed postal receipt dated 20.05.2015 Ex. CW1/4D
7. Legal notice dated 20.05.2015 Ex. CW1/3C
8. Speed postal receipt dated 20.05.2015 Ex. CW1/4E
9. Speed postal receipt dated 20.05.2015 Ex. CW1/4F
10. Legal notice dated 20.05.2015 Ex. CW1/3D 11 Speed postal receipt dated 20.05.2015 Ex. CW1/4G
12. Speed postal receipt dated 20.05.2015 Ex. CW1/4H
13. Tracking reports Ex. CW1/5 (colly) 33.2. Perusal of record reveals that bail bonds furnished by the accused bear different address as mentioned in the legal demand notice. However, the bail bond Digitally signed by Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 NEHA NEHA GOEL Page 17 of 19 Date:
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address is the same as mentioned in memo of parties. Accused has put suggestion to complainant that legal demand notice was sent to wrong address which complainant denied. In effect, accused has disputed the factum of receipt of legal demand notice.
In the evidence of the complainant, the legal demand notice has been stated to have been served upon the accused on the said address and for the proof of which, postal receipts have been tendered in evidence on behalf of the complainant. It has been held by the Hon'ble Supreme Court of India in 'C.C. Alavi Haji v. Palapetty Muhammed & Anr.' [(2007) 6 SCC 555] - "8. ... It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "G.C. Act") could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service".
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper Digitally sig Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 NEHA Page 18 of 19 by NEHA G Date:
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service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. ...". (emphasis supplied).
33.3 In light of the above judgment, this ingredient stands fulfilled as against the accused.
34. That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice.
34.1. In the instant case, the accused has not paid the amount due under the cheques in question within the statutory period on the ground that he does not owe any liability towards the complainant, a defence which he has not been able to prove at the trial. Hence, this ingredient stands fulfilled as against the accused. Decision
35. From the foregoing discussion, it is clear the accused Sh. Vinod Piplani has failed to rebut the presumptions under Sections 118 and 139 of NI Act. On the other hand, the complainant has been able to prove that the cheques in question were issued by the accused in discharge of a legally recoverable debt/liability owed to him with the aid of presumptions of law raised in her favour. Therefore, in the considered opinion of this Court, the accused Vinod Piplani is held guilty of offence punishable under Section 138 of NI Act and is hereby convicted for the same.
36. Let him be heard on the point of sentence separately. Digitally signed
NEHA by NEHA GOEL Date: ANNOUNCED IN OPEN COURT ON 24.05.2023 GOEL 2023.05.24 15:56:26 +0530 (NEHA GOEL) MM (NI ACT)-02, (CENTRAL) TIS HAZARI COURTS/ DELHI Shyam Wati Vs. Vinod Piplani CC No. 529185/2016 Page 19 of 19