Delhi District Court
Digitally Signed vs . on 8 August, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 11539/2016
Unique Case ID No. -: DLSH020019442016
Police Station -: Anand Vihar
Section(s) -: 138 NI Act
In the matter of -
M/s RAJPRO ENGINEERS PVT. LTD.
Through its Director
Sh. Rajiv Narula
Having Regd. Office at,
D-209, Anand Vihar,
Delhi 100092
....Complainant
VS.
1. M/s KEEP IN TOUCH CLOTHING PVT. LTD.
Registered office:
128 HOG Market, Rajendra Place,
New Delhi-8
Also at:-
B-63, Sect. 83, Noida, UP
2. AMBER JOSHI
Director
M/s Keep in Touch Clothing Private Limited
R/o EH-2/806, Eldeco Apartment,
Sect. 93-A, Noida, UP
3. AKASH JOSHI
Director
M/s Keep in Touch Clothing Private Limited
R/o EH-2/806, Eldeco Apartment,
Sect. 93-A, Noida, UP
.... Accused
M/s RAJPRO Engineers
1. Name of Complainant :
Pvt. Ltd.
M/s Keep in Touch Pvt.
2. Name of Accused : Ltd, Amber Joshi &
Akash Joshi
3. Offence complained of or proved : 138 NI Act
4. Plea of Accused : Not guilty
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.08.08
15:59:24 +0530
5. Date of Filing of case : 15.03.2016
6. Date of Reserving Order : 01.08.2023
7. Date of Pronouncement : 08.08.2023
8. Final Order : All accused Convicted
Argued by -: Sh. Sachet Sharma, Ld. Counsel for the complainant.
Sh. Rajiv Kumar, Ld. Counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION
1. The present complaint has been filed against the
accused under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter "NI Act"), for dishonour of the cheques
mentioned in the table below :-
TABLE I -
Cheque Amount Drawn Date of Date of Reason of Date of legal
No. (In Rs.) on cheque dishonour dishonour notice and
Bank (Return date of
Memo) dispatch
060826 1,63,776 Union 15.10.2015 04.01.2016 Drawer 30.01.2016
/- Bank signature
differs
060827 1,63,776 Union 15.11.2015 04.01.2016 Funds 30.01.2016
/- Bank Insufficient
The substance of allegations and assertions of the complainant is
that the complainant is owner of the industrial building bearing
no. B-35, Sec. 60, Noida, UP (hereinafter, "rented premises")
and the complainant had leased the said premises to the accused
for a period of 11 months from January to November, 2015. A
lease agreement dated 27.12.2014 was executed between the
parties and the monthly rent was fixed at Rs. 1,63,776/-, inclusive
of service tax @ 12.36 % after deduction of TDS @ 10%. It is
alleged that the accused issued 11 post-dated cheques for the rent
payable for the respective months of the lease period. However,
the accused was irregular in payment of the monthly rent and after
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.08
15:59:29 +0530
paying rent till June, 2015, the accused stopped paying the rent.
Thereafter, the accused vacated the rented premises on
30.11.2015. It is alleged that the cheques qua the rent from July to
September became stale and the complainant presented the two
cheques in question for the rent due for the months of October and
November. However, the said cheques, as per Table no. 1, when
presented, were returned unpaid by the Bank. The complainant
then issued a demand notice, which was received by the accused.
Even after the receipt of the demand notice, the accused failed to
pay the cheque amount within the stipulated period and hence, the
present complaint.
2. After the accused were summoned, notice of
accusation under Section 251, Code of Criminal Procedure, 1973
(hereinafter "CrPC") was served upon the accused. In reply to the
notice of accusation, the accused pleaded not guilty and claimed
trial.
3. During the trial, the complainant has led the
following oral and documentary evidence against the accused to
prove its case beyond reasonable doubt:-
ORAL EVIDENCE
CW-1 : Rajiv Narula (AR of complainant)
DOCUMENTARY EVIDENCE
Ex. CW1/A : Evidence by way of affidavit
Ex. CW1/1 : Company resolution
Mark A : Photocopy of lease agreement
Ex. CW1/2 : Cheque (060826) dated 15.10.2015
Ex. CW1/3 : Cheque (060827) dated 15.11.2015
Ex. CW1/4 : Return Memo
Ex. CW1/5 : Return Memo
Ex. CW1/6 : Legal Notice
Ex. CW1/7 : Postal receipt
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DEV CHAUDHARY
CHAUDHARY Date:
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Ex. CW1/8 : Postal receipt
Ex. CW1/9 : Postal receipt
Ex. CW1/10 : Postal receipt
Ex. CW1/11 : Return letter
Ex. CW1/12 : Speed post acknowledgement receipt
Ex. CW1/X : Passport
4. Thereafter, before the start of defence evidence, in
order to allow the accused to personally explain the circumstances
appearing in evidence against them, the statements of the accused
under Section 313 CrPC (read with Section 281 CrPC) were
recorded without oath. Every incriminating evidence appearing on
record was put to the accused. In reply, the accused stated
similarly and admitted the dishonour of cheques but stated that the
cheques in question were issued to the complainant at the
commencement of the lease deed qua the property towards the
payment of rent and at the time of vacating the property, all the
dues were considered to be settled with the complainant and this
was reduced to a writing vide document Ex. CW1/D1. They stated
that the cheques were lying with the complainant and the
complainant did not return the cheques on the pretext that he was
going to Dubai. They denied receipt of the legal demand notice.
Pursuant thereto, they stated that they wish to lead defence
evidence.
5. During the trial, the defence has led the following
oral and documentary evidence to disprove the case of the
complainant:-
ORAL EVIDENCE
DW-1 : Amber Joshi (accused)
DW-2 : Akash Joshi (accused)
DOCUMENTARY EVIDENCE
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.08
15:59:41 +0530
Ex. CW1/D1 : Possession letter
Ex. DW1/C1 : Letter dated 23.04.2015
Ex. DW1/C2 : Letter dated 18.08.2015
6. I have heard the learned counsel appearing for the
parties and have given my thoughtful consideration to the material
appearing on record.
7. It has been argued by the learned counsel for the
complainant that all the ingredients of the offence are fulfilled in
the present case. The complainant has duly proved its case. The
accused have failed to rebut the presumption raised against the
accused. It is argued that the issuance of the cheques in question
and the signatures are not denied. The accused have taken a
defence that the parties had settled the dues vide a document,
which is denied by the complainant. He has argued that the
accused entered into the witness box and their depositions make it
clear that they have tried to create a false and fabricated defence.
As such, it is prayed that the accused be punished for the said
offence.
8. Per contra, learned counsel for the accused has
argued that the complainant has failed to establish its case beyond
reasonable doubt. He submits that the accused has no legally
enforceable liability as the complainant failed to establish the
existence of any liability. It is argued the rented premises were
taken for a longer period than mentioned in the agreement.
However, the period was reduced in writing for 11 months in
order to avoid paying stamp duties etc. It is argued that soon after
the inception of the tenancy, the complainant started pressurising
the accused to vacate the premises and the accused obliged, even
at the cost of incurring losses. The dues were settled yet the
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.08.08
15:59:50 +0530
complainant misused the cheques in question, which were lying in
his possession. It is argued that the accused is required to establish
only a probable defence, which the accused has been able to
successfully establish in the present matter. Learned counsel has
relied upon Rangappa vs. Sri Mohan (2010) 11 SCC 441 in
support of his contentions. As such, it is prayed that the accused
be acquitted.
ANALYSIS -
9. Before dwelling into the facts of the present case, it
would be apposite to discuss the legal standards required to be met
by both sides. In order to establish the offence under Section 138
of NI Act, the prosecution must fulfil all the essential ingredients
of the offence. Perusal of the bare provision reveals the following
necessary ingredients of the offence :-
First Ingredient: The cheque was drawn by a person on an
account maintained by him for payment of money and the
same is presented for payment within a period of 3 months
from the date on which it is drawn or within the period of its
validity;
Second Ingredient: The cheque was drawn by the drawer for
discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the
bank due to either insufficiency of funds in the account to
honour the cheque or that it exceeds the amount arranged to
be paid from that account on an agreement made with that
bank;
Fourth Ingredient: A demand of the said amount has been
made by the payee or holder in due course of the cheque by a
notice in writing given to the drawer within thirty days of the
receipt of information of the dishonour of cheque from the
bank;
Fifth Ingredient: The drawer fails to make payment of the
said amount of money within fifteen days from the date of
receipt of notice.
10. The accused can only be held guilty of the offence
under Section 138 NI Act if the above-mentioned ingredients are
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date: 2023.08.08
15:59:56 +0530
proved by the complainant co-extensively. Additionally, the
conditions stipulated under Section 142 NI Act have to be
fulfilled.
11. In the present matter, it is proved by the complainant
that the cheques Ex. CW1/2 and Ex. CW1/3 were drawn by the
accused, and were presented within limitation i.e. within 3
months. The accused have not denied issuance of the cheques in
question. Accused no. 3 has admitted in his statement under
Section 313 CrPC that the cheques in question were signed by
him. It is also not disputed that the cheques in question were
returned unpaid. The cheques in question were returned unpaid for
the reason of "drawer signatures differ" and "insufficient funds",
both of which fall within the ambit of Section 138 NI Act {Refer:
Laxmi Dyechem vs. State of Gujarat (2012) 13 SCC 375}. The
return memos Ex. CW1/4 and Ex. CW1/5 have been proved by
the complainant. The legal demand notice Ex. CW1/6 seeking the
cheque amounts, was issued within time. The complaint has been
filed in time and all the limitation periods prescribed in the NI Act
have been adhered to.
12. With regard to the legal demand notice, Ex. CW1/6,
the accused have denied receipt of the said legal notice. However,
the complainant has also proved the postal receipts Ex. CW1/7 to
Ex. CW1/10, as well as tracking reports, Ex. CW1/12. Even
though the envelop of one address mentions that the addressee has
'left', the tracking reports for the other addresses mention that the
item has been delivered. Further, in his cross examination, the
accused no. 2, DW1, has admitted that the address mentioned on
the legal notice as address no. 1 is the registered office address of
the accused company. However, he stated that his address
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by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.08
16:00:03 +0530
mentioned on the legal notice is not correct.
13. Therefore, the address of the accused company has
been admitted to be correct. The accused no. 3 has not denied
anywhere that his address is not correct. Even if it is assumed that
the address of the accused no. 2 is not correct, service upon the
company is deemed service on the Directors. Both accused no. 2
and 3 are Directors of the accused company, as per their own
admission. Service upon one address of the accused no. 1
company has been proved by the tracking report pertaining to the
postal receipt bearing no. ED 9610983779IN. Therefore, in terms
of the law laid down in Krishna Textport and Capital Markets
Ltd. vs. Ila A. Agrawal (2015) 8 SCC 28, the service upon
company is sufficient compliance of the mandatory requirements
of the provision. Further, the legal demand notice has been served
upon the address of the accused on record, on which the Court
processes have also been served till the time accused entered into
their first appearance. In terms of Section 27 of the General
Clauses Act, 1897, and Section 114 of the Indian Evidence Act,
1872, the service of notice can safely be presumed. In this regard,
a three judges' bench of the Hon'ble Supreme Court in C.C. Alavi
Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555 has
held that:
"16. ...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 service
of notice as required under Section 138, by ignoring
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.08
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statutory presumption to the contrary under Section 27 of
the G.C. Act and Section 114 of the Evidence Act. In our
view, any other interpretation of the proviso would defeat
the very object of the legislation."
It is admitted fact that no payment was made within fifteen days
of the receipt of Court processes. It is also pertinent to note that
the accused no. 3 filed an application for cancellation of NBWs
issued against him, which was taken up on 05.01.2018. In this said
application, to which the accused no. 3 is a signatory, it is
mentioned that the accused no. 3 was shocked to receive a legal
notice dated 30.01.2016 from the complainant, and he also
contacted the complainant thereafter, who informed him that a
mistake has been committed and he should ignore the notice and
not reply to it. Therefore, the accused no. 3 has taken a contrary
stand before the Court, after admitting receipt of notice at one
occasion. Therefore, in view of above, the service of legal demand
notice has been amply proved by the complainant.
14. Accordingly, all the ingredients of the offence
mentioned above stands proved by the complainant apart from the
second ingredient. Thus, the only point remaining to be
adjudicated is whether the cheque in question was issued by the
accused in discharge of a legally enforceable debt. In the present
case, the signature of the accused on the cheque in question is not
denied. The accused no. 3 has admitted in the statement under
Section 313 CrPC that he is the signatory to the cheques in
question. There is no dispute at Bar that the cheques were issued
to the complainant by the accused. Suffice it to say, the fact that
the cheques in question have been signed by the accused is an
admitted fact. Since the accused have admitted the signatures on
the cheques in question, the presumptions enshrined under Section
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Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2023.08.08
16:00:15 +0530
118(a) and 139 of the NI Act are raised against the accused. In the
former provision, it is presumed that the negotiable instrument
was made or drawn for consideration while the latter provision
enshrines the presumption that the holder of the cheque received it
for the discharge, in whole or part, of any debt or other liability.
Since both Section 118 and 139 of the NI Act use the word
"shall", raising of the presumption is mandatory for the court,
once the foundational facts are proved {Refer Hiten P. Dalal vs.
Bratindranath Banerjee (2001) 6 SCC 16} and then the onus
shifts on the accused, who has to rebut the same by establishing a
probable defence.
15. The principles regarding the onus of proof have been
laid down by the Hon'ble Apex Court in Basalingappa vs.
Mudibasappa (2019) 5 SCC 418, inter alia, in the following
words:
"25. We having noticed the ratio laid down by this Court in
the above cases on Section 118(a) and 139, we now
summarise the principles enumerated by this Court in the
following manner:
25.1. Once the execution of cheque is admitted Section 139 of
the Act mandates a presumption that the cheque was for the
discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise probable
defence. The standard of proof for rebutting the presumption
is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to
rely on evidence led by him or the accused can also rely on
the materials submitted by the complainant in order to raise a
probable defence. Inference of preponderance of probabilities
can be drawn not only from the materials brought on record
by the parties but also by reference to the circumstances upon
which they rely.
25.4. That it is not necessary for the accused to come in the
witness box in support of his defence. Section 139 imposed an
evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the
witness box to support his defence."
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DEV CHAUDHARY
CHAUDHARY Date:
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Thus, it is for the accused to establish a probable defence on the
standard of preponderance of probabilities to prove that there was
no legally enforceable debt or other liability.
16. In this regard, the initial onus of proving the debt is
always on the complainant. However, it is now settled law that the
existence of debt is also a matter of presumption under Section
139 NI Act. A three-judge bench of the Hon'ble Apex Court in
Rangappa vs. Sri Mohan (2010) 11 SCC 441 has held, after
discussing the law on this point, as under:-
"26. In light of these extracts, we are in agreement
with the respondent claimant that the presumption
mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat may not be correct."
Therefore, the onus was on the accused to prove that there was no legally enforceable debt and not the vice-versa. The complainant has duly proved its case by proving the relevant documents such as the cheque in question, return memo etc. The fact that the parties had a lease agreement amongst themselves is not disputed. Although the complainant has tendered into evidence the lease agreement between the parties, Mark A, and the accused has also admitted existence of the same, however, the document on record is a copy, which remains unproved. There is no explanation in the deposition of the AR of the complainant, CW1, regarding tendering a photocopy on record and not producing the original document in Court. There is no assertion that the photocopy satisfies either of the provisions of Section 63 of the Indian Evidence Act. Thus, the lease agreement remains unproved as per the provisions of Section 64-65 of the Indian Evidence Act.
CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 11 of 18 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.08.08 16:00:27 +0530 However, given the fact that the existence and terms of the agreement are not in dispute, the fact that the agreement itself has not been proved does not assume significance in deciding the present case.
17. The case of the complainant is that the cheques in question were towards the rent due. The fact that the cheques in question were part of the lease deed between the parties, and towards rent, has been specifically admitted by the accused DW2 in his cross examination. The defence of the accused is that even though the cheques in question were issued towards the liability of rent due at the time of entering into an agreement, the liability of the accused got extinguished on the basis of the possession letter Ex. CW1/D1, vide which it was agreed that there is no obligation left between the parties, pursuant to entering into the said agreement. On the other hand, the complainant has claimed that the letter is false as he had only signed a blank paper in good faith.
18. In this regard, it is noted that the complainant has not relied upon the document in its complaint. The document was produced for the first time by the accused during the cross examination of the AR of the complainant. On being question, the AR of the complainant, CW1, admitted that the document bears his signatures and stamp of the complainant company. However, he explained that the document was issued blank signed and stamped, in good faith, to the accused no. 2. At this juncture, it is apposite to look into the contents of the document, Ex. CW1/D1.
The document is titled as "Possession Letter". It document reads as under :-
"Be it known to all that M/s Keep in Touch Clothing Pvt. Ltd. having its registered office at 128, HOG Market, Rajendra Place, New Delhi 110008 through its Director Mr. Amber Joshi CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 12 of 18 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.08.08 16:00:34 +0530 and Mr. Akash Joshi, both S/o Mr. R.P. Joshi, R/o EH-2/8-6, Eldeco Apartment, Sector 93A, Noida, do hereby handover peaceful vacant possession of the entire Industrial Building at Plot No. B-35, Sector 60, Noida which was leased to them through a Registered Lease Agreement dated 27.12.2014 by M/s Rajpro Engineers Pvt. Ltd. having its Registered office at D- 209, Anand Vihar, Delhi- 110092 in compliance of terms and conditions of the Registered Lease Agreement dated 27.12.2014 today on 30th Day of November, 2015, with no obligation left, of what ever nature, between the two parties, and hence neither of the two above parties will have any legal right to approach the Court of Law for dispute against each other of any nature what so ever, in the Republic of India" (emphasis supplied) On the bare perusal of the document, it conveys that the accused has vacated the rented premises on 30.11.2015, in terms of the lease agreement between the parties, and there is no obligation left between the parties of any kind.
19. The complainant has deposed in his cross examination that he was not in India on 30.11.2015, the day on which the said document is stated to be executed. Thus, only the signatures upon the document have been admitted. Learned counsel for the defence has argued that since the signatures have been admitted, the complainant cannot escape from the consequences of the document. He has argued that there is no possibility of fabricating the document.
20. In this regard, mere admission of signatures is not a proof of contents of a document and mere marking of a document as exhibit does not tantamount to due proof of its contents. In the present case, the AR of complainant has only admitted the signatures and not the contents. He has disputed the contents of the document. In fact, CW1 has given a solid ground to doubt the genuineness of the contents of the documents. The document mentions that the rented premises is being vacated "today", on 30.11.2015. The complainant has proved on record Ex. CW1/X, CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 13 of 18 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.08.08 16:00:41 +0530 which is his duly stamped passport showing that he was not in India from 26.11.2015 to 01.12.2015. Therefore, the complainant could not have signed the document on 30.11.2015. The accused have also deposed that the complainant was supposed to leave for Dubai around that time.
21. Thus, it was incumbent upon the accused to prove the contents of the documents and that the complainant had willingly agreed to the fact that the parties had extinguished any pending dues/claims/liability/rights via the document. The accused no. 2 entered into the witness box as DW1. He deposed that the document was prepared in his presence. His version is that when the unit was being dismantled, the AR of the complainant called him to his office and asked him to handover the keys of the rented premises to his staff. The accused asked him to handover the post dated cheques and the AR of the complainant informed him that the same were at his home somewhere. He also offered to "reduce things to writing" so that both of them are satisfied. The version of the witness is that the letter was typed and narrated by the AR of the complainant in his office, and then the same was signed.
22. However, in my opinion, the version of the accused does not inspire confidence. At the outset, it is noted that the explanation given by the accused no. 2 in his deposition is vague.
He has nowhere stated that the parties had agreed to terminate the liabilities under the contract. He has nowhere mentioned what the parties agreed to do on that day. There is no mention of the date on which the letter was prepared. Further, and more importantly, the accused has nowhere mentioned about the contents of the document Ex. CW1/D1. There is no mention that the contents of the document reflect the terms agreed between the parties. In his CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 14 of 18 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.08.08 16:00:48 +0530 cross examination, DW1 has not deposed as to who had typed the document. He admitted that one of his staff members namely Alan Charles D'rozorio was present at the time when the document was executed. However, the said person was not produced as a witness in order to vouch for the assertion of the accused. Further, the accused also admitted that the document does not bear signatures of any witness. Therefore, the accused no. 2 has not been able to prove the contents of the letter.
23. Pertinently, the accused has raised a contention that the date mentioned in the document Ex. CW1/D1 is not the date on which the document was executed but the date on which the vacation was to be completed. However, it is noted that the document is unambiguous in its wordings. Further, in terms of Section 92 and 94 of the Indian Evidence Act, no such evidence can be admitted to give a different meaning to the document.
Moreover, when the other accused no. 3 was questioned regarding the absence of the AR of the complainant from India on 30.11.2015, he deposed that he did not wish to comment on the same. Therefore, from the above discussion, it is clear that the accused have failed to prove the contents of the possession letter Ex. CW1/D1 and the complainant has been able to successfully throw a doubt on the same.
24. As such, the plea of the accused that the obligations between the parties stood extinguished on account of the possession letter stands rejected. DW1 in his cross examination stated that he can produce the proof of payment of rent to the complainant. However, no such proof was produced before the Court, despite opportunity. The said proof could have been best evidence in support of the claims of the defence. However, DW1 CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 15 of 18 Digitally signed by DEV CHAUDHARY DEV CHAUDHARY Date:
2023.08.08 16:00:54 +0530 deposed that no such proof can be produced as their company is closed due to COVID-19. This explanation does not inspire confidence as bank statements could have been easily produced by the accused. DW1 then stated that DW2 looked after the financial aspects of the company. However, when DW2 entered into the witness box, he deposed that the bank statement regarding proof of payment of rents for 11 months was lying in the possession of his brother, DW1. Therefore, it is clear that both the accused have tried to evade the questions regarding repayment of rent and have not produced any documentary evidence to support their claims. DW2 has further specifically admitted in his cross examination that the complete rent due for the period of tenancy of 11 months has not been paid by them. As such, the defence has miserably failed to prove set forth by it.
25. The fact that the rent was due is cogently proved by the complainant and as such, the cheques in question were presented for legally enforceable lability on the date of presentment. Further, despite being subjected to cross examination, nothing substantial has been elicited from the AR of the complainant, CW1, to corroborate the defence of the accused, or punch holes in the version of the complainant. Thus, the AR of the complainant as duly proved the version in the complaint and the defence has failed to point out any circumstance to throw a doubt on his version.
26. As already noted above, the presumptions operate against the accused and it was incumbent upon the accused to prove his defence, on a standard of preponderance of probabilities. The accused has not proved on record any documentary or other evidence to show that the payments were infact made to the CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 16 of 18 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.08.08 16:01:00 +0530 complainant. No witness has been examined in this regard. The defence of extinguishment of liability also remains unproved by the accused. Thus, as discussed above, the liability of the accused is in existence and subsisting.
27. The drawer of the cheques in question is the accused no. 1 company. The fact that both the accused no. 2 and 3 are Directors of the accused no. 1 company is not disputed. Accused no. 3 has admitted that he is signatory to the cheques in question. He also admitted signing on the lease deed between the parties. Therefore, he is clearly liable for the offence in question. With regard to accused no. 2, he has admitted being integral part of the transaction, in his deposition. In his cross examination, he has admitted that he used to discuss day to day affairs of the company with the other accused. He specifically admitted being informed about the day-to-day affairs of the company. Thus, in terms of Section 141 of the NI Act, he is also liable for the offence under Section 138 of the NI Act. Under Section 141 NI Act, a reverse onus is cast upon the said Director to prove that the offence was committed without his knowledge. However, in the present case, none of the accused no. 2 or 3 have deposed about or proved any such fact. I have no hesitation to hold that the accused have failed to raise even a probable defence in the present case.
CONCLUSION -
28. To recapitulate the above discussion, the complainant has been successful in establishing its case. The signature on the cheque in question is admitted by the accused and presumption under Section 118 and Section 139 of NI Act is raised against the accused. The accused have miserably failed to rebut the said CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 17 of 18 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2023.08.08 16:01:07 +0530 presumption by raising a probable defence. The defence of the accused that the complainant was paid the dues is not proved, even on the standard of preponderance of probabilities.
29. As such, the complainant has proved the offence beyond reasonable doubt and the accused have failed to raise a probable defence. Resultantly, the drawer of the cheque, accused no. 1 KEEP IN TOUCH CLOTHING PVT. LTD. as well as accused no. 2 Director, AMBER JOSHI and accused no. 3 Director, AKASH JOSHI both sons of Rama Prasad Joshi are hereby CONVICTED of the offence under Section 138 of the Negotiable Instruments Act, 1881.
30. Let the convicts be heard separately on quantum of sentence. A copy of this judgment be given free of cost to the Digitally signed convicts. DEV by DEV CHAUDHARY CHAUDHARY Date:
2023.08.08 16:01:14 +0530 Announced in Open (DEV CHAUDHARY) Court in presence of Metropolitan Magistrate - 07 accused persons Shahdara District, KKD (through VC).
This judgment New Delhi, 08.08.2023 contains 18 signed pages. CT. NO. 11539/2016 RAJPRO ENGINEERS PVT LTD. Vs. KEEP IN TOUCH CLOTHING PVT LTD PAGE NO. 18 of 18