Delhi District Court
M/S Sirohi Home Products Pvt. Ltd vs Prahlad Singh on 6 July, 2013
IN THE COURT OF SH. GAGANDEEP JINDAL,
METROPOLITAN MAGISTRATE (NI ACT)- 12, DWARKA COURTS,
NEW DELHI
M/s Sirohi Home Products Pvt. Ltd.
Versus
Prahlad Singh
P.S : New Rajender Nagar
U/s : 138 Negotiable Instruments Act
1. Serial No./CC No. of the case : 3618/12
2. Name of the complainant : M/s Sirohi Home Products Pvt. Ltd.,
Shop No. 106, Second Floor,
Shanker Road Market,
New Rajinder Nagar
New Delhi-110060.
3. Date of Institution : 23.11.2012
4. Name of the accused, his : Prahlad Singh
parentage and residence S/o Sh. Tota Ram
R/o 32, Village Masjid Moth,
New Delhi.
5. Date when judgment was : 05.07.2013
reserved
6. Date when judgment was : 06.07.2013
pronounced
7. Offence complained of and : Offence Under Section 138 of
proved Negotiable Instruments Act
8. Plea of accused : Accused pleaded not guilty and
claimed trial
9. Final Judgment Acquitted
CC No. 3618/12 Page 1 of 6
-:J U D G M E N T:-
1. Vide this judgment, I shall decide the present complaint filed by the
complainant M/s Sirohi Home Products Pvt. Ltd. Under Section 138 of
Negotiable Instruments Act (hereinafter referred to as N.I Act) against the
accused Prahlad Singh.
2. In the present complaint, it is submitted that accused approached the
complainant for getting finance to purchase a Hyundai Accent (Model-2003)
bearing Registration No. DL-7CJ-0046 from the complainant and the complainant
provided the said finance facility to the accused. It is further submitted that the
accused in discharge of his liability has issued the cheque bearing no. 524402
dated 17.10.2012 for a sum of Rs. 68,906/- drawn on Bank of Baroda, Safdarjung
Hospital, New Delhi in favour of the complainant. It is further submitted that
when the said cheque was presented by complainant with its banker for
encashment, same was returned unpaid by the Drawee Bank with the returning
memo dated 20.10.2012 for the reason "Insufficient Funds". Thereafter, the
complainant issued Legal Notice dated 26.10.2012 through Registered AD
calling the accused to make the payment of dishonoured cheque. It is further
submitted that despite service accused failed to make the payment of cheque
amount demanded through Legal Notice, thereby committing the offence Under
Section 138 of N.I Act for the prosecution of which the present complaint has
been filed.
3. After considering the material on record, the cognizance of the
offence U/s 138 of N.I Act was taken and accused was summoned on
11.12.2012. The accused appeared in the court on 19.01.2013 and was
admitted to bail.
CC No. 3618/12 Page 2 of 6
4. Notice U/s 251 Cr.P.C. was framed against the accused on
02.02.2013. At the time of framing of notice, the accused pleaded not guilty
and claimed trial.
5. The complainant has examined Sh. Inderjit Chadha, Authorized
Representative as CW1. CW 1 has filed his evidence by way of affidavit Ex.
CW1/A and relied upon the following documents : - (A) Copy of the resolution is
exhibited as Ex. CW1/1. (B) Office copy of the legal notice dated 05.09.2012 is
exhibited as Ex. CW1/2. (C) Original cheque in question is exhibited as Ex.
CW1/4. (D) The cheque returning memo is exhibited as Ex. CW1/5. (E) Office
copy of the legal notice dated 26.10.2012 is exhibited as Ex. CW1/6. (F)
Registered Post receipt and AD Card are exhibited as Ex. CW1/7 and Ex. CW1/8
respectively. CW 1 was discharged after cross-examination.
6. No other witness has been examined by the complainant and
complainant evidence was concluded on 08.05.2013.
7. The accused was examined U/s 313 Cr.P.C. and all the incriminating
evidence were put to the accused. In his statement the accused admitted the fact
of taking finance facility in question from the complainant. Accused submitted
that he had given 04-05 blank signed cheques including the cheque in question
for security purpose at the time of taking finance facility in question. Accused
further submitted that he is liable to make the payment of two EMIs. The accused
admitted the receipt of legal demand notice.
8. The accused has examined himself U/s 315 Cr.PC as DW 1 and Sh.
Raj Kishor as DW 2. DW 1 and DW 2 were discharged after cross-examination.
9. No other witness has been examined by the accused and the defence
evidence was concluded on 28.06.2013.
10. Final Arguments on behalf of the both the parties heard.
CC No. 3618/12 Page 3 of 6
11. Under Section 118, unless contrary is proved, it is to be presumed that
Negotiable Instruments (including the cheque) had being made or drawn for
consideration. Under Section 139, the court has to presume unless the contrary
was proved, that the holder of the cheque received the cheque for discharge, in
whole or in part of a debit or liability. Thus, in complainants U/s 138 of N.I Act,
the court has to presume the cheque had been issued for a debit or liability.
However, this presumption is rebuttable.
So far as presumption as to issuance of cheque for consideration and
in discharge of debt, the accused need not disprove the complainant case in its
entirety. He can discharge his burden on the preponderance of probabilities
through direct or circumstantial evidence for which he can rely on evidence
adduced by the complainant.
12. The accused has raised the defence that the cheque in question was
given for security purpose at the time of taking finance facility in question from
the complainant. The accused has also disputed his liability to the tune of
cheque amount in question i.e. Rs. 68,906/-. To prove the aforementioned
defence, accused relied upon the cross-examination of CW 1 and his own
testimony U/s 315 Cr.P.C as DW 1.
13. The CW 1 during his cross-examination has failed to disclose the
outstanding amount against the accused at the time of presentation of cheque in
question. The complainant has neither filed the loan agreement nor filed
statement of account of the accused to prove the liability of the accused to the
tune of Rs. 68,906/-.
14. Although, it is true that for prosecution under section 138 of N.I Act,
complainant is not obliged to prove the original consideration as it is expected in
a suit for recovery of money but when execution of the cheque and debt or
liability is disputed by the accused. In view of the presumption under section 139
CC No. 3618/12 Page 4 of 6
of N.I Act, there is no need to prove that the cheque in question was given for
valid consideration. Still complainant could have filed statement of account of
the accused which could evince as to what was the amount of installment, how
many installments have been paid by the accused and how much amount is
outstanding against him. Since complainant is a private limited company and
must be maintaining its books of account, therefore, it was incumbent upon it to
have filed its books of account in support of its claim.
To give teeth to my observation, I would like to refer to a judgment in
Murugan Financiers v. P.V. Perumal, 2006 Cr LJ 269 (Mad) wherein the order
acquitting the accused was upheld on the finding that since the complainant
being a finance company has not produced books of account in support of claim,
complainant has not proved debt or legally enforceable liability satisfactorily.
15. Also in the recent case of M/s Goodwill Hire Purchase v. Daljit
Singh alias Jangi, 2011 (1) RCR Civil 132 (P & H), it was held :
"....The complainant has neither placed nor proved on record the alleged hire
purchase agreement nor any statement of account relating to alleged hire
purchase transaction and as such in absence of any documentary proof, it could
not be presumed or established that the accused-respondent ever entered into
any hire purchase agreement with him. Even no statement of account was produced by the complainant to show the liability of the accused and nothing was shown in the Income-Tax Record, inspite of the fact that complainant firm is Income-Tax Assessee and no bank record was produced on file from which it could be inferred that the amount paid to the accused was withdrawn from any bank. Moreover, the complainant failed to prove on record that there was no legally enforceable debt of the accused, there was no liability of the accused to make payment of the alleged amount to the complainant and presumption Under Section 139 of the Act stands rebutted......"
16. So, in view of the aforementioned judgments, it is clear that the complainant being a private limited company ought to have produced statement CC No. 3618/12 Page 5 of 6 of account in support of its claim. So, when accused has disputed his liability to pay the cheuqe amount it become incumbent upon the complainant to furnish its books of account which the complainant have failed to do. Hence, I am inclined to raise adverse presumption against the complainant U/s 114 (g) of Evidence Act which says that that court can raise adverse presumption, if evidence which could be and is not produced would, if produced, be unfavourable to the person withholds it.
17 The penal provision U/s 138 of N.I Act could be reflected only when the complainant proves that the cheque in question was issued ".....for discharge in whole or in part of any debt or other liability....". The debt or legal enforceable liability is not satisfactorily proved by the complainant.
18. In the facts and circumstances of the present case, on appreciation of the evidence and on the basis of material on record, I hold that accused is able to adduce the rebuttal evidence by raising a probable defence which creates doubt about the existence of legal enforceable debt or liability to the tune of cheque amount in question, hence, in such a scenario, the burden shift back to the complainant which the complainant has failed to discharge.
19. Therefore, no offence U/s 138 of N.I Act is made out against the accused. Hence, accused stands acquitted.
ANNOUNCED IN THE OPEN
COURT ON 06.07.2013
All the pages from 1 to 6 are
signed by me. (GAGANDEEP JINDAL)
METROPOLITAN MAGISTRATE (NI ACT) - 12,
DWARKA COURTS,NEW DELHI.
CC No. 3618/12 Page 6 of 6