Delhi District Court
Hon'Ble Bombay High Court In A Case ... vs . on 20 December, 2011
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No.661/1
M/s. Getfast Investment & Financial Services
Through Attorney Sh. Shiv Shanker Prasad
B-8, II Floor, Moti Nagar,
New Delhi. ......Complainant
Versus
Mr. Ashwani Dutta
A-37A/2, Anand Vihar,
Uttam Nagar,
New Delhi. .........Accused
Date of Institution : 21.01.2004
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 26.11.2011
Date of Decision : 20.12.2011
Final Order : Convicted/Held
guilty.
CC No.661/1 1/ 12
Judgment:
1.Vide this judgment, I shall dispose of the present complaint filed u/s 138 N.I. Act. Before going further, it is necessary to dwell upon the brief facts of the case.
2. Complainant company has filed its complaint through its authorized representative Sh. Shiv Shankar Prasad. Special Power of Attorney who was later on substituted by the new AR namely Sh. Satish Kumar vide General Power of Attorney exhibited as PW1/A. It is alleged by the complainant that accused approached the complainant for loan of Rs.65,000/- on the request of the accused, complainant advanced the loan. It is further alleged that on demanding the repayment of the said loan by the complainant, accused issued a cheque bearing no. 302049 which is exhibited as PW1/B dated 17.11.2003 amounting Rs.65,000/- drawn on The Bank of Rajasthan Ltd. Naraina, New Delhi in favour of the complainant.
3. It is further alleged that on the presentation of the said cheque by the complainant in his bank the same returned dishonoured with the remarks "insufficient funds" vide returning memo dated 24.11.2003 Ex.PW-1/C. The complainant issued a legal demand notice Ex.PW-1/D to the accused on 22.12.2003 through registered post as well as UPC which was duly served. It is further alleged that despite the service of the notice accused failed to make the payment to the complainant within the statutory period. Hence, the present complaint is filed.
4. Complainant filed his pre-summoning evidence. Considering the CC No.661/1 2/ 12 same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused was summoned u/s 138 NI Act. On his appearance, the accused was granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr.P.C stating substance of accusation was served upon the accused on 18.04.2007 to which he pleaded not guilty and claimed trial.
Complainant Evidence:
5. Complainant company through its Authorised Representative Sh.
Satish Kumar stepped into the witness box as CW1 and tendered his evidence by way of an affidavit Ex.P1/1. In his affidavit, complainant has reiterated the same facts as that mentioned in his complaint.
Statement of accused:
6. In his statement u/s 313 Cr.PC r/w 281 Cr.PC., accused admitted the issuance of the cheque in question to the complainant but denied that same was issued as loan and claimed to have been issued against the supply of Water Purifier in September, 2002. It is further stated by the accused that complainant did not supplied the Water Purifier and also refused to return back the cheque saying the cheque has been misplaced. Accused has admitted receiving of legal demand notice sent by the complainant. It is further stated that cheque was handed over to the husband of the complainant.
Defence Evidence:
7. Accused in order to prove its defence got examined 02 witnesses namely Sh. Rajiv Chadha as DW3 and Sh. Jai Prakash CC No.661/1 3/ 12 Verma as DW4.
8. DW3 Sh. Rajiv Chadha tendered his evidence by way of an affidavit Ex.DW3. DW-3 has deposed in his affidavit that he along with Jai Prakash and Ashwani Dutta decided to do a business and placed on order of water purifier from Sarvesh Mahajan who was working as CA and had office in the name of Mahajan Gandhi & Company. It is further stated by DW-3 that he along with two other persons named above visited the office of Sh. Sarvesh Mahajan for purchasing water purifier and in lieu of that Ashwani Dutta gave a cheque of Rs. 65,000/- to be kept as surety with Sarvesh Mahajan. However, the cheque was undated as it was agreed that the payment shall be given bill wise. It is further deposed that Sarvesh Mahajan failed to supply the water purifier and when asked to return the cheque he told that the same has been misplaced and never return the same. It is further deposed that Ashwani Dutta never took any loan from M/s Get Fast Finance and the cheque in question was never issued as the repayment of the loan.
9. DW-4 has deposed in his affidavit that he along with Jai Prakash and Ashwani Dutta decided to do a business and placed on order of water purifier from Mr. Sarvesh Mahajan who was working as CA and had office in the name of Mahajan Gandhi and Company. It is further stated by DW-3 that he along with two other persons named above visited the office of Sh. Sarvesh Mahajan for purchasing water purifier and in lieu of that Ashwani Dutta gave a cheque of Rs. 65,000/- to be kept as surety with Sarvesh Mahajan. However, the cheque was undated as it was agreed that the payment shall be given bill wise. It is CC No.661/1 4/ 12 further deposed that Sarvesh Mahajan failed to supply the water purifier and when asked to return the cheque he told that the same has been misplaced and never return the same. It is further deposed that Ashwani Dutta never took any loan from M/s Get Fast Finance and the cheque in question was never issued as the repayment of the loan.
Reasons for Decision:
10. Accused admitted the receiving of legal demand notice sent by the complainant in his statement u/s 313 read with 281 Cr.P.C. Hence, the service of the legal demand notice stands duly proved.
11. Accused admitted issuance of the cheque in question to the complainant and admitted signatures thereon. As the issuance of the cheque has been admitted by the complainant, the execution of the cheques stands duly proved. Now, the execution of the cheque has been duly proved, the presumption of Section 139 N.I.Act comes in favour of the complainant and the burden shifts upon the accused. The presumption is rebuttable so the accused in order to rebut the same has to raise a reasonable probable defence by adducing sufficient evidence. Now, let us see whether the accused has been able to rebut the presumption or not.
12. Ld. counsel for accused has raised a contention that the power of attorney Ex. PW-1/A is defective as the same does not bear the signatures of the AR for the complainant Satish Kumar. It is further argued that no permission of this court has been taken by complainant for substituting its AR so the power of attorney filed by Satish Kumar is CC No.661/1 5/ 12 defective, hence, the complaint is liable to be dismissed. On the other hand, ld. counsel for complainant has submitted that the permission of this court has been taken by the complainant while substituting AR Satish Kumar as new authorized representative by filing an appropriate application on 12.11.08. Secondly, it is further argued by the complainant that the power of attorney is not defective so the complaint cannot be said to be bad in law on the basis of the same.
It is important to mention here that if the power of attorney is executed by one person conferring some authority in favour of some other person it must bear the signature of the executant i.e. the person conferring authority upon some other person. In the present case, the document Ex. DW-1/A bears the signature of executant Kavita Mahajan as well as the signature of Satish Kumar which are depicted just above the signatures of Kavita Mahajan. Sh. Satish Kumar has been substituted as AR by the permission of this court on application moved by the complainant on 12.11.2008. In view of the above facts the general power of attorney is absolutely valid and AR is properly substituted as per procedure. So the plea taken by the accused stands rebutted.
13. Ld. counsel for accused further argued that AR for the complainant Sh. Satish Kumar does not have any personal knowledge about the case and the same has been depicted in his cross- examination. Ld. counsel for accused has pointed out some of the statements which shows infirmity in the version of the complainant:-
● I do not remember the date and year of giving the loan to Sh. Ashwani Dutta.CC No.661/1 6/ 12
● It has come to my knowledge when the cheque was bounced and subsequently, the complaint was filed. ● I have no knowledge whether the said cheque was issued by Ashwani Dutta in order to supply all the material. Ld. counsel for accused further pointed one contradictory statement made by the witness Satish Kumar when he says that he never appeared before this court prior to filing of power of attorney dt. 21.09.2008 whereas in the year 2006 also a special power of attorney was filed in the name of Satish Kumar which is Ex. CW-1/D-1. Arguing further ld. counsel for accused relied upon a judgment passed by Hon'ble Bombay High Court in a case titled as Smt. Durgadevi Vs. Shalikram Vitthalrao Korde and Anr., 2009 CRI.L.J.2186 and submitted that if the attorney does not have any personal knowledge of the transaction in question his testimony cannot be relied upon so in the present case, AR for the complainant being not aware about the transaction cannot be believed.
On the other hand, ld. counsel for complainant has argued that the above statements given by PW-1 are not material in order to washout the credibility of witness. Moreover, it is the burden upon the accused to show that the cheque was not issued in discharge of any liability.
The infirmities and the contradictions pointed out by the accused are not materialistic as it often happens that the authorized representative representing the company in numerous cases may not be remembering the transactions by heart. It is further to be noted that witness stated in his cross-examination that the cheque was given towards the repayment of the loan. The judgment relied upon by the CC No.661/1 7/ 12 accused does not applies to the present case as the facts of the present case are distinguishable from that judgment. Moreover, no material contradiction has come out in the evidence of witness Satish Kumar. The discrepancies in his statement are minor and cannot be considered to have material effect on the credibility of witness. Hence, the testimony of CW-1 stands unrebutted.
14. Ld. counsel for accused has further argued that the witnesses DW-3 and DW-4 has totally supported the plea of defence as taken by the accused. It is further argued that in the cross-examination the said witnesses have not been discredited and their evidence remained unsakened so in view of the same the presumption under the law stands rebutted as accused has raised a reasonable probable defence in his favour.
On the other hand, ld. counsel for complainant countering the argument of the accused argued that both the witnesses have deposed in their affidavit on the same lines. It is pointed out that the witnesses in their cross-examination have stated that Mr. Sarvesh Mahajan was working as CA and it is a well known fact that a person carrying any such profession cannot indulge into any other business it is the specific requirement of such service so Mr. Sarvesh Mahajan is not doing any business nor he has concern with the complainant company as he has been working as full time CA. Ld. counsel for complainant has pointed out some of the contradictory statements given by both the witnesses when they say that:-
● "I cannot tell what was the name of the company of the alleged water purifier".CC No.661/1 8/ 12
● It is correct that I have not seen any water purifier in the office of Sh. Sarvesh Mahajan.
● Sh. Ashwani Dutta had not signed any document at the time of handing over the cheque.
● No bill was ever raised by Sarvesh Mahajan in this regard.
Pointing out the above contradictions and infirmities in the statements given by the witnesses ld. counsel for complainant has argued that the witnesses have appeared on the behest of the accused and they never had any such transactions with Sarvesh Mahajan and the cheque was never issued for purchase of any water purifier. Hence, the testimony given by the witnesses stands discredited.
The witnesses have deposed verbatim same to same in their affidavits. In their cross-examination also they have failed to establish whether Sarvesh Mahajan who is the husband of the Kavita Mahajan was running any such business of water purifier or the cheque in question was issued with respect to the same. The cheque of entire amount has been issued by the accused Ashwani Dutta and if the witnesses are believed to have joined with the accused for starting a business in joint venture they must have contributed towards the advance cheque whereas it is not so in the present case, as admitted by the witnesses in their cross-examination when they states as "it is correct that I never issued any cheque to the accused to the extent of my share i.e. 1/3rd of 65,000/-". Moreover, neither the accused has filed police complaint qua the misplacement of the cheque nor he informed or written any letter to the bank for stopping the payment of the cheque in question. In all the plea of defence taken by CC No.661/1 9/ 12 the accused seems to be flimsy and cannot be believed in absence of any corroborative evidence. In view of the above facts I have no reason to believe the version of the witnesses and their testimony stands discarded.
15. Ld. counsel has further relied upon a judgment passed by Hon'ble Allahabad High Court in a case titled as Fragrant Leasing and Finance Company Ltd., and Anr. Vs. Jagdish Katuriya and Anr. 2007 CRI.L.J. 3880 and raised a contention that accused has manipulated the date on the cheque and has materially altered the same so making the cheuqe void in view of the provision of Section 87 N.I.Act. Hence, no action could be taken u/s 138 N.I.Act against the accused. On the other hand, ld. counsel for complainant has argued that the cheque in question was issued by the accused to the complainant undated giving him liberty to fill up the date. It is further argued by ld. counsel for complainant that putting the date by the complainant is not a material alteration to be considered u/s 87 N.I. Act.
Now to deal with this contention I would like to throw some light on the section 87 itself. Although it says that any material alteration in negotiable instructions renders the same void as against anyone who is party thereto at the time of making such alteration and does not consent thereto it provides a rider that if alteration is made in order to carry out the common intention of original parties, it does not amount to material alteration. The word mentioned in the abovesaid section 'does not consent thereto' is very important as it is admitted by the accused that he has issued the cheque to the complainant undated enabling him to fill up the same and present with his banker which means that CC No.661/1 10/ 12 accused consented to the same. If the drawer of the cheque consented the payee or holder thereof he cannot take advantage of it later by saying that the cheque become void as there is material alteration thereto. Same was decided in Veera Exports vs. T.Kalavathy A.I.R. 2002 SC. In view of above, effect of this alteration cannot be considered as material hence, the contention raised by the accused stands rebutted.
16. Accused has failed to produce any cogent evidence which can compel the court to believe that their existed no consideration for the cheque issued. Accused is not required to produce direct evidence but the evidence must be strong enough which can compel the court to believe the non-existence of the consideration. In the present case, accused could not raise any reasonable probable defence so the presumption falling in favour of the complainant stands unrebutted and complainant is said to have established his case beyond reasonable doubt.
Decision:
17. I have gone through the material placed on record and arguments advanced by Ld. counsels. In view of the above discussion and detailed analysis of the evidence led by the parties, this court is of the view that accused has failed to rebut the presumption of Section 139 N.I. Act and could not raise a probable defence which can be believed by this court.
18. All the essential ingredients of offence u/s 138 are made out. As CC No.661/1 11/ 12 the accused could not discharge the initial burden lying upon him the onus never shifted upon the complainant. Therefore, it can be said that complainant has successfully established his case beyond reasonable doubt. Hence, accused is found to be guilty and is hereby convicted by the offence under Section 138 N.I. Act.
Announced today in the (Vishal Pahuja)
open court on 20.12.2011 MM NI ACT (WEST)/DELHI
20.12.2011
CC No.661/1 12/ 12