Delhi District Court
Page No. 1 To 8 M/S Amarnath Fabricator vs . M/S Dev Enterprises on 1 June, 2012
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IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : VK420/04
b. Date of the commission of the offence : 06/05/2004
c. Name of the complainant M/s Amarnath Fabricator
d. Name of accused person and his parentage: M/s Dev,
and residence Enterprises Through
Sh. Nam Dev, S/o Late
Sh. Chander Prakash,
R/o 144, Vinova Puri,
Lajpat NagarII, Delhi24.
e. Offence complained of : Dishonoring of
cheques for
funds insufficient.
f. Plea of the accused and his examination (if any): Not guilty
Because goods supplied
at belated stage and same
lost quality, cheque was
stolen by the complainant.
g. Final Order : Held guilty.
Convicted.
Page No. 1 To 8 M/s Amarnath Fabricator Vs. M/s Dev Enterprises
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h. Date of such order : 01.06.2012.
i. Brief reasons for decision:
1.Following ingredients have to be proved for constituting an offence u/s 138 of NI Act.
(a) Unpaid cheque m have been drawn from a live account of drawer at the time of issuance of cheque in question.
(b) The unpaid cheque in question must have been issued in discharge of a debt or other legally enforceable liability, in whole or in part.
(c) The cheque in question was presented to the bank within a period of 6 months from the date of issuance of cheque or within the period of its validity.
(d) The cheque is returned by the bank of drawer unpaid because of insufficiency of the funds in the account of the accused or it exceeds the amount arrangement made to be paid from that account by an agreement made with the that bank or cheque is return with endorsement account closed.
(e) The payee or holder in due course of such cheque should have given a written legal demand notice to the drawer of the cheque within 30 days of the receipt of the information by the complainant from the banker of the accused regarding of the return of the cheque unpaid.
(f) The drawer of such cheque should have failed to make a payment of the such amount of the money to the holder of the cheque within 15 days of the receipt of the said legal demand notice.
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(g) Any written complaint u/s 138 of NI Act should have been made before Ld. MM concerned within one month from the date on which cause of action raised u/s 138 (c) of NI Act unless condonation of delay has been granted by the court concerned.
2. A criminal prosecution would neither mean for recovery of money nor it would be for enforcement of any security. Section 138 of NI Act is a penal provision which entails a conviction and sentence on the proof of guilt in a duly conducted criminal proceedings for bringing the offender to the penal liability. One must always keep in mind the basic tenant of criminal jurisprudence as to the penal provision has to be interpreted strictly so that no one can ingeniously or guilefully or strategically be prosecuted and punished.
3. Unlike cardinal principle of general criminal jurisprudence regarding presumption of innocence of accused till conviction on merit by the competent court of law and burden of proof lie on the prosecution to prove guilt beyond all reasonable doubts, section 118, 139 and 140 of NI Act relieved and rescued the complainant from shouldering the initial onus of proof by providing for legal presumption as to consideration and genuineness in favour of cheque holder.
4. However, it is also settled position that the accused has to rebut the presumption u/s 139 of NI Act, with the standard of proof of the preponderance of Page No. 3 To 8 M/s Amarnath Fabricator Vs. M/s Dev Enterprises 4 probabilities. Thereafter accused may be able to raise a probable defence/plea which creates doubt about the existence of consideration in form of debt or liability legally enforceable by leading direct evidence or even circumstantial ones. Accused may discharge his burden on the basis of materials already brought on the record. In that case burden of proof shift again on the complainant who will be obliged to prove the same as matter of fact. Accordingly presumption of innocence and doctrine of reverse burden introduce by section 139 and proviso to section 138 of NI Act should be delicately balanced.
5. Having visited legal provisions and objects of the same, we may embark to examine the case in hand on basis of its factual matrix. As per version of complainant, he is sole proprietor of M/s Amar Nath Fabricator and dealing in the business of fabrication of various types as ordered by respective parties. It is submitted by the complainant that he got order by the accused M/s Dev Enterprises through its sole proprietor Sh. Nam Dev for doing manual work of fabrication upon agreed terms and conditions as per the agreed type of specimen of fabrication. It is case of complainant that accused gave order of supplying the prepared material of cloth by getting manual work done upon the same and in pursuance to the aforesaid order of accused complainant supplied fabricated material to the accused on various dates in the year 2003. It is also case of complainant that in discharge of aforesaid contractual liability of making part payment accused issued three cheques in question Ex. CW1/1, CW1/2 and Page No. 4 To 8 M/s Amarnath Fabricator Vs. M/s Dev Enterprises 5 CW1/3 for sum of Rs. 45,000/, Rs. 45,000/ and Rs. 50,000/, dt. 15.10.2003, 15.11.2003 and 15.12.2003 respectively. It is also stated by the complainant that aforesaid cheques in question got dishonoured for the want of sufficiency of funds vide cheques returning memos Ex.CW1/4, CW1/5 and CW1/6 all dt. 29.03.2004. It is further case of complainant that accused failed to pay cheques amount despite service of legal demand notice Ex. CW1/7, dt. 20.04.2004 within stipulated time. Hence the present complaint case.
6. On the other hand, accused admitted his signature and filling up the name of complainant firm and the column of amount as appearing on cheques in question and existence of some contractual liability regarding supply of material in question. However, accused pleaded that the supplied material in question with delay and same lost its value in Europian Export Market and claimed that he came to know cheques in question being in the possession of complainant only after receiving legal demand notice issued by the complainant. (See the statement of accused u/s 313 read with 281 Cr.P.C).
7. During cross examination CW1 stated that accused had given oral order regarding specification of goods and no goods return/receipt was issued when fabrication material was received by him and thereafter same was handed over to the accused after carrying the work of fabrication on it. CW1 admitted that there was no written agreement and he did not have any demand order/bill in Page No. 5 To 8 M/s Amarnath Fabricator Vs. M/s Dev Enterprises 6 respect of cheques in question. Counsel for accused put suggestion regarding receipt related to order of accused, delivery of goods and receiving of the same by the accused and service tax number of complainant. However, careful perusal of cross examination of CW1 (complainant) reveals that no suggestion regarding supplied material in question being of sub standard quality and having lost value in Europion Export Market due to alleged 45 days delay in supply. It is also notice worthy that no suggestion had been made during cross examination of CW1 regarding lost of cheques in question from the office of complainant and ignorance of the aforesaid vital fact till receiving of legal demand notice on part of accused.
However, in his statement u/s 313 read with 281 Cr.P.C accused admitted his signature and filling of name of complainant firm and column of amount appearing on cheques in question. He further in his statement u/s 313 read with 281 Cr.P.C admitted some contractual liability regarding supply of fabrication material and supplying of goods in question by the complainant with 45 days delays which resulting the loss of its value in Europian Export Market. Aforesaid admission of accused before the court indicates that there existed some contractual liability regarding supply of fabrication material by the complainant which might not be reduced into a written form. It is noticeable that legally binding contract may be entered into between parties even orally. Thus,, plea of accused as to absence of document like written demand order/bill/supply receipt on part of complainant is of no great legal importance. In para no. 5 of his Page No. 6 To 8 M/s Amarnath Fabricator Vs. M/s Dev Enterprises 7 statement u/s 313 Cr.P.C accused had tried to take plea of alibi as he has stated that he did not know how cheques in question came in the hand of complainant because same was allegedly lying in the drawer of his office. However, this could not be a probable plea in view of admitted business dealing and contractual liability between parties.
8. DW1 (accused) admitted in his cross examination that he used to get job work from Amar Nath Fabricators. DW1 (accused) also stated that he never issue cheques in question to the complainant and same had been stolen by the complainant from his office. However, accused admitted during his cross examination that he had paid some liability amount to the complainant through cheques prior to transaction in question and he himself filled entire contents appearing on cheques in question. Accused admitted that there was oral understanding him and complainant for possible agreement. Accused (DW1) also admitted that he had transaction with the complainant even after date appearing on cheques in question. Here, accused failed to explain why he was having admittedly duly filled cheques in question in his office in the name of complainant despite allegedly no transaction with complainant qua cheques in question. Accused did not filed any police complaint regarding theft of cheques in question or asking the bank for stopping the payment qua cheques in question rather accused admittedly transpired business with accused even after date appearing on cheques in question.
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9. Once, due issuance of cheques in question is proved, u/s 119 read with 139 of NI Act, court is under statutory duty to presume that same had been issued by the drawer in discharge of debt or liability. However, accused may rebut the aforesaid legal presumption by leading cogent and reliable evidence. In this case, accused had taken self contrary plea and failed to expose incurable infirmities in the story of complainant.
10. From the above discussion of relevant legal provisions, principles, their objects and their application to the given facts and circumstances of the case, I am of considered opinion that accused has failed to rebut mandatory presumption of law arising in favour of complainant by leading plausible defence evidence. Accordingly I return a finding of guilt against the accused person. Thus, accused person is hereby convicted for the offence as punishable u/s 138 of NI Act.
11. Let the convict be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
ON 1st Day of June, 2012 MM, NI Act, (East)
KKD Courts, Delhi.
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