Delhi District Court
1. Janaki vs . Indus Ind Bank (2005) 2 Scc 217. on 4 May, 2010
IN THE COURT OF SH. PULASTYA PRAMACHALA
CCJ:ARC(EAST):MM:KARKARDOOMA COURT: DELHI
Complaint No.151/08
PS Seelampur
M/s. Aggarwal Fabrics
Through its Proprietor
Smt. Nisha Aggarwal,
81, Ram Nagar, Krishna Nagar, Delhi.
............ Complainant
Versus
1. M/s. Urvi Creations Pvt. Ltd.,
6-A, Shiv Mandir Gali
Moujpur, Delhi-110053
2. Sh. Pawan Jain
Director
Urvi Creations Pvt. Ltd.,
6-A, Shiv Mandir Gali
Moujpur, Delhi-110053
................ Accused
Offence complained of : U/S 138 Negotiable Instruments Act
Plea of accused : Not guilty
Date of Institution of the complaint : 19/07/2003
Date on which judgment was reserved : 23/04/2010
Date of decision : 04/05/2010
Decision : Acquitted
JUDGMENT
1. Briefly stated, the relevant facts of this case are that this complaint has been filed by Smt. Nisha Aggarwal, who is proprietor of complainant firm. Complainant is dealing in the business of selling and buying fabrics and accused had been buying the same from the complainant for making readymade garments and for supplying the same to its various customers in country as well as in abroad. Accused no. 2 on behalf of accused no. 1, approached the complainant and purchased fabric for a sum of Rs.83,714/- against Bill no. 54 dated 19/08/2001. Accused no. 2 on behalf of accused no. 1, issued a cheque bearing no. 757847 dated 27/03/2003 for a sum of CC no.151/08 Page 1/4 Rs.83,714/-, drawn on Bombay Mercantile Co-Operative Bank Limited, Darya Ganj, New Delhi, against payment of aforesaid bill and assured the complainant that the said cheque would be honored on its presentation. Complainant presented aforesaid cheque for encashment in his bank account no. 1301 in Canara Bank, Mahila Colony, Gandhi Nagar, Delhi but the said cheque was dishonored with remarks 'Funds Insufficient' vide bank memo dated 03/06/2003. Complainant approached the accused and asked for the cheque amount but accused avoided the complainant on one pretext or the other. Complainant served accused with a legal demand notice dated 09/06/2003 under Registered AD of post and accused sent a reply dated 27/06/2003 making false contentions. Accused failed to pay the cheque amount within stipulated time period. Hence, the present complaint.
2. Accused was summoned and was explained notice of accusation on 07/05/2005 to which he pleaded not guilty.
3. Complainant examined one witnesses in support of its case i.e. Sh. Sita Ram Aggarwal as CW-1.
4. Thereafter, vide order dated 13/02/2008, this court dispensed with the examination of the accused under Section 281 Cr.P.C. observing that the evidence of Sh. Sita Ram Aggarwal was the only evidence on behalf of complainant, who claims himself to be power of attorney of complainant. His evidence was not found incriminating and hence, it was observed that there is no evidence seeking explanation from the accused.
5. Both parties filed their written arguments and made their rival arguments.
6. Complainant relied upon following case laws:-
1. Janaki vs. Indus Ind Bank (2005) 2 SCC 217.
2. Ranjit Ray vs. Pukhraj Jain 1997 (1) Crimes 110.
3. Manimekalai vs. Chapal Dass 1995 CRLJ 1102.
4. M/s. G.J. Packaging vs. M/s. S.S.Sales 2006 CRLJ 214.
5. Associated Cement Co. Ltd. vs. Keshwanand AIR 1998 SC 596.
7. I have given due consideration to the rival contentions and perused the record of this case as well as case laws.
CC no.151/08 Page 2/48. On the basis of aforesaid case laws, it was argued that a power of attorney can depose on behalf of complainant and can file a complaint under Section 138 Negotiable Instruments Act as well. I have perused all these case laws.
9. The question involved in the present case is that whether an accused can be hold guilty of an offence in absence of explanation of evidence given to him under Section 281 Cr.P.C.? Another question is that whether the evidence given by an attorney can be treated to be evidence of complainant?
10. As far as the judgment passed in the cited case laws are concerned, they do not deal with the first question. They even do not deal with the second question directly except the first cited case law. However, the observation made by Bombay High Court in G.J. Packaging's case itself make it clear that when attorney has full knowledge of transaction, his statement can be recorded by Magistrate for verification of complaint. The first cited judgment pertains to a civil case. In this case, it was observed that power to depose on behalf of principal extends only to depositions in respect of 'acts' done by power of attorney holder in exercise of power granted by instrument. It was further observed that attorney cannot depose for principal in respect of matters of which only principal can have personal knowledge.
11. In the present case, this court has already given its observation that there is no evidence against accused which can be explained to him, meaning thereby the court gave its conclusion regarding the sustainability of evidence given by power of attorney of complainant. The court did not examine the accused. On the other hand, complainant accepted such verdict of the court and did not challenge the aforesaid conclusion arrived at by the court vide order dated 13/02/2008. This shows that complainant had no grievance in respect of aforesaid observation made by the court.
12. At this stage of judgment, in my considered opinion, this court cannot look into the same question i.e. whether there was any incriminating evidence against the accused or not? This court does not have power to review its decision. It is settled law that until unless accused is explained the CC no.151/08 Page 3/4 incriminating evidence and is given opportunity to explain his stand in respect of such incriminating evidence, he cannot be found guilty of the offence in question.
13. Since, in the present case, accused has not been given aforesaid opportunity, therefore, there cannot be any occasion to held him guilty of the offence in question. Therefore, complaint is dismissed and accused is acquitted of the charges.
14. Surety stand discharged.
15. File be consigned to record room.
Announced in the open (PULASTYA PRAMACHALA)
Court on 04/05/2010 CCJ/ARC(East)/MM
(Judgment contain 4 pages only) KARKARDOOMA COURTS,
DELHI
CC no.151/08 Page 4/4