Delhi District Court
M/S. Sainath International Through Its ... vs Foodstuff Enterprises Llp Through It ... on 12 February, 2025
CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022,
CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022,
CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022
M/s. Sainath International Vs. Food Stuff Enterprise LLP
IN THE COURT OF MS. POOJA KUMARI, JMFC (NI ACT),
DIGITAL COURT-02, SOUTH, SAKET COURTS, DELHI
CC NI Act NO.: 385/2022
CNR No. DLST02-000578-2022
CC NI Act NO.: 386/2022
CNR No. DLST02-000580-2022
CC NI Act NO.: 387/2022
CNR No. DLST02-000582-2022
CC NI Act NO.: 388/2022
CNR No. DLST02-000583-2022
CC NI Act NO.: 389/2022
CNR No. DLST02-000577-2022
CC NI Act NO.: 390/2022
CNR No. DLST02-000579-2022
CC NI Act NO.: 391/2022
CNR No. DLST02-000581-2022
CC NI Act NO.: 392/2022
CNR No. DLST02-000576-2022
POOJA
KUMARI
Digitally signed by
POOJA KUMARI
Page 1 of 24 Date: 2025.02.12
16:10:28 +0100
CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022,
CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022,
CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022
M/s. Sainath International Vs. Food Stuff Enterprise LLP
IN THE MATTER OF:
M/s. Sainath International
Through Its Authorized Signatory
Sh. Chetan Asrani
Gala No. 106, B-23, Parashnath Complex
Next To Radha Krishna Hotel, Dapida, Mankoli
Bhiwani, Thane, Mumbai-421302
....Complainant
Versus
1. Food Stuff Enterprise LLP
277/2196, Motilal Nagar I,
Oppo. Vibgyor High School,
Goregaon West, Mumbai
Maharashtra-400104
......Accused no.1
2. Harsh Mehta Dhimant
277/2196, Motilal Nagar I,
Oppo. Vibgyor High School,
Goregaon West, Mumbai
Maharashtra-400104
......Accused no.2
3. Rohit Balakrishna Iyer
277/2196, Motilal Nagar I,
Oppo. Vibgyor High School,
Goregaon West, Mumbai
Maharashtra-400104
........Accused no.3
Digitally
signed by
POOJA
POOJA KUMARI
KUMARI Date:
2025.02.12
Page 2 of 24 16:10:31
+0100
CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022,
CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022,
CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022
M/s. Sainath International Vs. Food Stuff Enterprise LLP
Date of institution : 10.01.2022
Summoned on : 25.03.2022
Offence Charged with : U/s 138 of Negotiable Instrument
Act, 1881
Notice u/s 251 of CrPC : 05.01.2023 & 06.01.2023
Plea of accused : Pleaded not guilty
Date of judgment : 12.02.2025
Final order : Acquittal
JUDGMENT
1. The abovementioned eight (8) cases are connected matters and have arisen out of same transactions, between same parties for an offence under Section 138 Negotiable instrument Act, 1881 ((hereinafter referred as NI Act). Therefore, this court will decide the all above-mentioned eight (8) cases against above- mentioned accused persons vide this judgment.
Complainant Case in brief:
2. Complainant was supplying food items to accused no.1 i.e., partnership firm through accused no.2 &3 (partners of the firm) and raised invoices against the supplied goods. In order to clear Digitally signed by POOJA POOJA KUMARI KUMARI Date:
Page 3 of 24 2025.02.1216:10:34 +0100 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP the payment against the invoices, accused persons had issued cheques bearing no. 785608 (CC NI Act NO. 392/2022), 785610 (CC NI Act NO. 389/2022), 785611(CC NI Act NO. 385/2022), 785612 (CC NI Act NO. 390/2022), 785613 (CC NI Act NO. 386/2022), 785614(CC NI Act NO. 391/2022), 785615(CC NI Act NO. 387/2022) & 785617(CC NI Act NO. 388/2022) of Rs. 50,000/- each respectively dated 09.08.2021 (hereinafter referred cheques in question) which got dishonoured for the reason "Payment stopped by drawer" vide return memo dated 27.10.2021. Therefore, complainant sent a legal demand notice dated 12.11.2021, through speed post and e-mail, calling upon accused persons to pay the amount of cheque in question which was duly served to accused. Since the accused failed to pay the amount of the cheque in question within 15 days of receiving of legal demand notice, the complainant has moved to this court with the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act").
3. Upon prima facie consideration of the pre-summoning evidence, the accused was summoned vide order dated POOJA KUMARI Digitally signed Page 4 of 24 by POOJA KUMARI Date: 2025.02.12 16:10:37 +0100 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP 25.03.2022.
4. Accused persons appeared and notice under Section 251 of Cr.P.C. was served to them. They pleaded not guilty and claimed trial. At this stage, they admitted being the drawer of the cheques in question and signatures therein. Accused has raised the defence that the cheques in question were not issued by their LLP. Accused has admitted that he had received the legal demand notice. They denied their liability towards the complainant for the cheques in question.
Complainant Evidence:
5. In the Post-summoning evidence, the complainant through the AR namely Chetan Asrani examined on affidavit being Ex.CW1/A. Complainant has relied on following documents to prove his case: -
S.No. Name of Document Dated Exhibit
1. Copy of board 17.12.2021 Ex. CW-1/1
resolution
2. Copy of partnership - Ex. CW-1/2
deed
3. Invoices Ex. CW-1/3 to
Digitally
signed by
POOJA
POOJA KUMARI
KUMARI Date:
2025.02.12
16:10:40
Page 5 of 24 +0100
CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP Ex. CW-1/18
4. Cheques bearing no. 09.08.2021 Ex. CW-1/19 no. 785608 (CC NI Act NO. 392/2022), 785610 (CC NI Act NO. 389/2022), 785611(CC NI Act NO. 385/2022), 785612 (CC NI Act NO. 390/2022), 785613 (CC NI Act NO. 386/2022), 785614 (CC NI Act NO. 391/2022), 785615 (CC NI Act NO. 387/2022) & 785617 (CC NI Act NO. 388/2022)
5. Return memos of 27.10.2021 Ex. CW-1/20 cheques
6. Copy of legal demand 12.11.2021 Ex. CW-1/21 notices
7. Original speed post - Ex. CW-1/22 receipt
8. Copy of tracking - Ex. CW-1/23 report
9. E-mail dated - Ex. CW-1/24 POOJA KUMARI Page 6 of 24 Digitally signed by POOJA KUMARI Date: 2025.02.12 16:10:44 +0100 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP 12.11.2021 and (colly.) Ledger Account
6. Complainant has tendered his evidence by way of affidavit of evidence, documents exhibited and reiterated the facts as stated in his complaint.
7. AR of complainant was examined and duly cross examined on 29.04.2023, 12.07.2023 & 13.07.2023 by the ld. counsel for accused and discharged. Thereafter, complainant evidence was closed vide separate statement dated 13.07.2023.
8. Thereafter, Statement of accused persons under Section 313 read with Section 281 Cr.P.C were recorded on 23.02.2024, whereby the entire incriminating evidences were put to them. At this stage, the accused persons have denied liability against the cheques in question and stated as follows:
Accused no.2 on behalf of Accused no.1 (Partnership firm) and himself has stated as follows:
"We never issued cheque to the complainant company for any debt or liability. He has filled the payee name, date and amount. He has never given any detail of VAT during demand notice, during complaint before the court, during evidence before the court. He has claimed thrice the amount of the actual dues through cheque that's why we are forced to stopped the payment Complainant has filed the case with pre determined POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:10:48 +0100 Page 7 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP mind. Complainant told us that he will file the case before even depositing the cheques. We have issued blank signed security cheques for the business purpose. We have repeatedly asked him to return these blank cheques and we will issue him new as per the statement of accounts but he was not ready to do it. this clearly showed his intention to misuse those blank cheques. So we had to stop payment. We are making regular payments to complainant and there is no short-fall of payment."
Accused no.3 has stated as follows:
"We never issued cheque to the complainant company for any debt or liability. He has filled the payee name, date and amount. He has never given any detail of VAT during demand notice, during complaint before the court, during evidence before the court. He has claimed thrice the amount of the actual dues through cheque that's why we are forced to stopped the payment. Complainant has filed the case with pre-determined mind. Complainant told us that he will file the case before even depositing the cheques. We have issued blank signed security cheques for the business purpose. We have repeatedly asked him to return these blank cheques and we will issue him new as per the statement of accounts but he was not ready to do it. This clearly showed his intention to misuse those blank cheques. So we had to stop payment. We are making regular payments to complainant and there is no short-fall of payment."
POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 Page 8 of 24 16:10:51 +0100 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP Defence Evidence
9. At this stage, accused no.2 Harsh Mehta Dhimant examined and cross-examined himself on oath as DW-1 on 07.06.2024 & 03.01.2025. He placed and relied on following documents to prove their plea of defence.
S.No. Name of Document Dated Exhibit
1. Copy of board 24.07.2022 Ex. DW-1/1
resolution
2. Copy of Whatsapp - Ex. DW-1/2
Conversation from
09.10.2021 to
25.10.2021
3. Copy of ledger book - Ex. DW-1/3
of complainant shared
by complainant
4. Copy of proof of - Ex. DW-1/4
service of E-mail
5. Copy of statement of - Ex. DW-1/5
Account as on
27.10.2021 to show
that there was
sufficient balance in
account
6. Certificate u/s 65B of
POOJA
KUMARI
Digitally signed
by POOJA
KUMARI
Page 9 of 24 Date: 2025.02.12
16:10:54 +0100
CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP Indian Evidence Act
10. Further, DE was closed vide separate statement dated 03.01.2025. Thereafter, case was fixed for final arguments.
11. Final arguments were advanced by both the parties and heard.
Submissions by Ld. Counsel for Complainant
12. Ld. Counsel for the complainant submitted that the accused persons have already admitted their signature over the cheques in question hence presumption of the cheques in question having been issued in discharge of debt or other liability arises in favour of the complainant in terms of Section 118(a) read with Section 139 of NI Act. He further argued that the accused has also admitted the genuineness and correctness of the cheques in question being Ex. CW-1/19 and receiving of the legal demand notice i.e., Ex. CW-1/21. Ld. Counsel of complainant further argued that the fact that the complainant received no payment within 15 days of the service of the legal demand notice coupled with the admission of the accused, duly proves all the ingredients of the offence under Section 138 NI Act. Ld. Counsel for the complainant submitted that the POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:10:57 +0100 Page 10 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP mandatory presumption under Section 139 of the NI Act cannot be rebutted on a bare denial but only when cogent evidence is led by the accused which has not been led in the instant case. Ld. Counsel for complainant has further submitted that complainant has placed all invoices i.e., Ex. CW-1/3 to Ex. CW-1/18 and also ledger to prove the liability of accused against the cheques in question. It was further submitted that accused persons had admitted the liability and have taken frivolous excuse to evade the duly proved legal liability existing in favour of complainant. Thus, submitted that since all the ingredients laid down under Section 138 NI Act are fulfilled and accused has failed to rebut the presumption, therefore, the accused persons are liable to be convicted. Ld. Counsel for complainant has referred following rulings to counter the arguments of Ld. counsel for accused and substantiate his claim:
A) M/S Kumar Exports vs M/S Sharma Carpets (2009 (2) SCC 513) B) Rangappa Vs Mohan (AIR 2010 SC 1898) C) P. Rasiya Vs. Abdul Nazer and Anr. Criminal Appeal Nos. 1233-1235 Of 2022 D) C.C. Alavi Haji vs Palapetty Muhammed & Anr (2007 POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:00 +0100 Page 11 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP (6) SCC 555) Submissions by Ld. Counsel for Accused
13. Per contra, Ld. Counsel for accused has submitted that complainant has filed these cases with pre-meditated intent to unjustly extract thrice the actual dues from the accused firm. The complainant is in possession of more than 12 cheques belonging to the accused firm and was initially willing to return the same. However, due to acrimony arising between the parties, the complainant, acting with malafide intent, deliberately filled out these cheques with an inflated amount i.e., thrice the actual dues, and purposefully presented them in Delhi to invoke Jurisdiction in this forum. Complainant has filed these cases solely to harass an exert undue pressure on the accused firm, amounting to clear abuse of the legal process. Ld. counsel for accused submitted that the cheques in question were given towards the security wherein nothing was due against the accused persons towards the complainant on the date of handing over the cheques, hence no case under section 138 of the NI act is made out. It is further submitted that AR of the complainant has admitted the fact in WhatsApp chats, ledger shared through mail i.e., Ex. DW-1/2 to Ex. DW-1/4 POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:03 +0100 Page 12 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP and also during cross-examination that the actual outstanding debt amount against the ledger of complainant M/s. Sainath International i.e., Ex. CW-1/24 was only Rs. 1,19,640/-. Ld. counsel for accused submitted that any additional amount now being claimed beyond the aforementioned dues is false, fabricated and devoid of any legal basis.
14. Ld. counsel for accused submitted that accused firm was having sufficient fund in his bank account and the same is proved by the bank account statement that is i.e., Ex. DW-1/5. This also signifies that complainant has deliberately misused the cheques to harass the accused persons despite the repeated requests of accused persons to return those cheques, which is clearly evident in whatsApp chats i.e., Exhibit DW 1/2.
15. It is further submitted that the C- form and F-form were not provided to accused persons and also the same was not mentioned in the complaint and invoices placed on record by the complainant. It is also submitted that the plea of defence of accused is quietly covered under the edicts of Hon'ble Supreme Court in case of Dashrathbhai Trikambhai Patel vs. H. Mahendrabhai Patel (2023)1 SCC 578. Ld. counsel also Submitted that the security cheques which were not provided for these transactions cannot be utilized for initiating POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:07 +0100 Page 13 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP proceedings under section 138 of the NI act. Thus, finally ld. counsel for accused submitted that accused has successfully rebutted the presumption lying against the cheques in question. Therefore, in the interest of justice and equity, accused persons are liable to be acquitted.
Learned counsel for accused has referred following Precedents to substantiate his argument:
A) M/S Indus Airways Pvt. Ltd And Ors vs M/S Magnum Aviation Pvt Ltd And Anr (2014 (12) SCC 539) B) Suman Sethi vs Ajay K, Churiwal {2000 (2) SCC 380} C) M/S. Rahul Builders vs M/S. Arihant Fertilizers & Chemical & Anr. 2008 (2) SCC 321 D) M/S Laxmi Dyechem vs State Of Gujarat & Ors (2012 (13) SCC 375) Counter Submissions by Ld. counsel for complainant
16. Per contra, Ld. counsel for complainant has submitted that complainant has discharged its initial burden and established the ingredients of offence u/s 138 of NI act. The presumption lies in favour of complainant which has not been rebutted by accused either by leading cogent evidence or from the case set out by complainant himself. It was further submitted that the mere denial cannot be held sufficient to rebut the presumption POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:11 +0100 Page 14 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP under section 139 of the NI act. And thus, accused has failed to bring out any material contradiction in the statement of the complainant. Complainant has stood by his complaint and his statement has stood the test of cross-examination. Ld. Counsel for complainant has submitted that accused is making a false claim to evade their legal liability for the cheque in question. Hence, complainant has proved his case beyond reasonable doubt against accused and accused is liable to convicted in the present case.
17. Heard the submissions of the Ld. counsels of the both parties and meticulously perused materials on record.
Findings:
18. Before delving into the facts of the present case, it is relevant to discuss the law applicable to the present proceedings. To bring home a liability under Section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, which are:
"(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge, in whole or POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 Page 15 of 24 16:11:14 +0100 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP in part, of any legal debt or other liability, which is legally enforceable.
(c) The said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
(d) The aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(e) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand."
19. Once the other ingredients mentioned in the foregoing paragraph are established by the complainant, then as soon as the execution of cheque in question is admitted by the accused, a factual base is established to invoke the presumption of cheque having been issued in discharge, in whole or in part, of any debt or other liability by virtue of Section 118(a) read with Section 139 of NI Act. This is a reverse onus clause, which means that unless the contrary is proved, it shall be presumed that the cheque in question was drawn by the accused for a consideration and that the complainant had received it in discharge of a debt/ liability from the accused. In the case titled POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:17 +0100 Page 16 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, it was held by Hon'ble Supreme Court of India that once the accused has admitted the signatures on the cheque in question, then the court is bound to raise presumption under Section 139 NI Act.
20. In the present case, in order to discharge his initial burden to prove the above-mentioned ingredients, complainant relied upon his own evidence affidavit marked as Ex. CW1/A and placed on record several documents being Ex. CW-1/1 to Ex. CW-1/24 (colly.).
21. In the case at hand, since the AR of complainant who deposed as CW-1 has discharged his initial burden on the basis of the documents mentioned hereinbefore and the admission of signatures of the accused, all the other ingredients of the offence under Section 138 of the NI Act stand successfully established. Further, since the accused persons being partners have admitted their signatures on the cheques in question and the fact of issuance of the same from the account of Accused no.1, thus, the presumptions under Sections 118(a) and 139 of the NI Act arise against the accused persons with respect to the existence of legally enforceable debt/liability in favour of the complainant. The onus is now upon the accused to rebut the POOJA KUMARI Digitally signed by POOJA KUMARI Page 17 of 24 Date: 2025.02.12 16:11:21 +0100 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP mandatory presumptions under the NI Act by raising a probable defence to show that the cheques in question were not issued in discharge of a debt/ liability.
22. Upon perusal of the record and hearing the parties at length, apropos the defence of the accused, the question which need to be decided is as follows:
Whether the accused persons have able to rebut the presumption lying against them for the cheques in question:
23. Complainant has filed same day 08 separate cases for 08 separate cheques of same date 09.08.2021 amounting to Rs. 50,000/- each which were continuing in serial numbers against the above-mentioned accused persons for the payment of supply of goods. All aforesaid cheques were presented in same bank on same date i.e., on 27.10.2021 for the total sum of Rs 4,00,000/- In order to show the liability against the cheques in question complainant has produced invoices and Ledgers in support of his claim. Complainant has stated in his deposition that he was receiving payments from accused through online mode as well as through cheques in his firm's account. Complainant has categorically stated that he is not sure that POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:23 +0100 Page 18 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP payment is due towards which invoices but there are due payments on part of accused. During 19.02.2020 to 05.07.2021 complainant's partnership firm had received the payment from accused but he has not received the complete payments towards the invoices produced on record. It was further stated by complainant that his partnership firm has received numerous cheques from the accused LLP. AR of Complainant further deposed that on 23.10.2021, accused for Sainath International was having the liability of Rs. 1,19,640/- excluding the interest.
The accused has deposed that he had given 12 cheques to complainant as security deposit bearing the cheque numbers 785621 to 785624 which were bounced on 10.08.2021 as these were submitted by complainant without informing to him and the claimed amount in cheques were much more than the actual liability. Accused has deposed that he has a liability of sum of Rs 1,11,194/- towards complainant. Accused had instructed the bank to stop the payment as the claimed amount was much more than his liability. Accused had also stated during his cross examination that the final outstanding amount was shared by the complainant and it was matching with his records.
POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 Page 19 of 24 16:11:26 +0100 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP Both the parties are involved in business together since last long years. Complainant has admitted that as per ledger a sum of Rs Rs.1,23,640/- is outstanding on the part of accused to pay and accused has also admitted 1,23,642/- is outstanding on their part, with minor difference of amount. Despite, the admission of liability in tune of Rs. 1,23,640/-, cheques were presented on same day for total amount of Rs.4,00,000/-. There is no acknowledgment between the parties with respect to interests against delay in making payment. Complainant has deposed that the amount includes C-form, F-form, receivables and interest. However, complainant has not mentioned about "C-form, F-form, receivables and interest" in his complaint, evidence by way of affidavit and legal demand notice. Complainant has also not filed any calculation to substantiate his claim in tune of Rs. 4,00,000/-. Even after the questions raised during cross- examination, complainant has not taken any further step to prove the liability in tune of Rs.4,00,000/-, which is the total of eight cheques presented simultaneously on same day and demanded by legal demand notice on same date. Complainant has vaguely deposed during cross- examination that the total cheque amount is in tune of cheques amount.
In Alliance Infrastructure Project Pvt. Ltd. v. Vinay Mittal POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:30 +0100 Page 20 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP [Crl. M.C. No. 2224/2009], the Hon'ble Delhi High Court has held that if the cheque is presented for an amount more than the amount actually payable to the payee then such a complaint is not maintainable, and the drawer of the cheque will not be guilty of the offence punishable u/s 138 NI Act.
The Hon'ble Supreme Court in a ruling titled as "Hiten P.Dalal Vs. Bratindranath Banerjee (2011) 6 SCC" 16, has held as under :-
Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. 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."
Hon'ble Apex court in another case titled as Krishna Janardhan Bhatt Vs. Dattatraya G.Hegde (2008) 4 SCC 54 has observed;
"Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:34 +0100 Page 21 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. 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 he relies."
Thus, there are dues pending for payment on part of accused as both have mutually agreed but accused is not liable to pay total cheques amount to complainant as has been claimed by presenting on same date. In light of these discussions and above mentioned rulings, accused has positively rebutted the presumption lying against them for the cheques in question.
Resultantly, these cumulative facts cast serious doubt in the case set by the complainant.
24. In view of the foregoing discussion, this court has no hesitation to hold that the liability of the accused for the cheques in question is not established. Hence, this court has arrived at a conclusion that the accused persons have been able to rebut the mandatory presumption resting against them. Complainant on the other hand has failed to prove his case beyond reasonable doubt qua the existence of liability of the accused cumulatively for all cheques. POOJA KUMARI Digitally signed by POOJA KUMARI Date:
2025.02.12 16:11:37 +0100 Page 22 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP
25. It is imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence. In the present case, the accused persons have clearly presented a defence that is more probable than the complainant's total claim and consequently, the benefit of doubt must go to him.
26. The onus has now shifted back upon the complainant to prove the second ingredient of the offence under Section 138 NI Act, regarding the issuance of the cheques in question for any legal debt or other liability equivalent to the amount mentioned therein. Since the complainant has not taken any steps thereafter to prove his case beyond reasonable doubt qua the liability of the accused on the date of the presentation of the cheque in question being equal to the total amount of cheques, this court has fairly arrived at the conclusion that the complainant's case does not stand on its own legs.
27. Since, this basic ingredient which is pivotal to attract liability under Section 138 NI Act has not been proved by the complainant, accordingly, no offence of dishonor of the cheque POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.02.12 16:11:39 +0100 Page 23 of 24 CC NI Act NO.: 385/2022, CC NI Act NO.: 386/2022, CC NI Act NO.: 387/2022, CC NI Act NO.: 388/2022, CC NI Act NO.: 389/2022, CC NI Act NO.: 390/2022, CC NI Act NO.: 391/2022 CC NI Act NO.: 392/2022 M/s. Sainath International Vs. Food Stuff Enterprise LLP in question under the said Section is made out.
FINAL ORDER
28. In the light of discussions hereinabove, this court finds the accused no.1 Foodstuff Enterprise LLP, accused no.2 Harsh Mehta Dhimant and accused no.3 Rohit Balakrishna Iyer not guilty of the offence under Section 138 Negotiable Instruments Act, 1881 and therefore acquit them accordingly.
29. As per section 437A of the Cr.P.C the accused persons are directed to furnish fresh personal bond of Rs 10,000/- and one surety of the like amount within one week from today. File be consigned to Record Room as per rule.
This judgment contains 24 pages and each page has been signed by the Presiding Officer. Digitally signed by POOJA POOJA KUMARI KUMARI Date:
2025.02.12 Announced in open 16:11:42 +0100 Court on 12.02.2025 (POOJA KUMARI) JMFC (NI ACT), DIGITAL COURT-02, SOUTH DISTRICT, SAKET COURTS, DELHI 12.02.2025 POOJA KUMARI Digitally signed by POOJA KUMARI Page 24 of 24 Date: 2025.02.12 16:11:45 +0100