Delhi District Court
Page No. 1 To 14 Ms. Zakia Tayyeb vs . Mrs. Rajeshwari on 18 September, 2012
1
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 : VK115/07
b. Date of the commission of the offence : 15/08/2004
c. Name of the complainant Ms. Zakia Tayyeb
d. Name of accused person and his parentage: Mrs. Rajeshwari,
and residence W/o V. K. Vidharthi,
R/o 75, South Anarkali,
3rd Floor, Delhi51.
e. Offence complained of : Dishonoring of
cheque for
funds insufficient.
f. Plea of the accused and his examination (if any): Not guilty
Because dispute had
been settled and settled
amount paid by her.
g. Final Order : Held guilty.
Convicted.
h. Order reserved on : 25.08.2012.
i. Order pronounced on : 18.09.2012
Page No. 1 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari
2
Brief reasons for decision:
1. The brief facts necessitating present complaint under section 138 of
Negotiable Instrument Act 1881 (in short NI Act) are that complainant deals in the
business of frozen food export as proprietor of M/s Prime Frozen Food Exports
and on the initiative of the accused complainant agreed to deal in the business of
export of buffalo frozen boneless meat through accused. Complainant sold
goods in question against sale invoice details as under:
a. Invoice No. FRI151/03 DL07/02/2004
Order No. IUZ2003, 11122003 US $ 10032
b. Invoice No. 000834/FEB3/04 Dt. 15/02/2004
Order No. 1UZ2003, 11122003 US $ 80064
c. Invoice No. 000835/FEB3/04 Dt. 20/02/2004
Order No. 1UZ2003, 11122003 US $ 80064
_______________________
Total US $ 200160
_______________________
It is case of complainant that she received following amount as
under:
DATE CHEQUE No AMOUNT
07/02/2004 IPBIR 8,00,000
01/05/2004 10,00,000
Page No. 2 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari
3
13/07/2004 514668 9,50,000
13/07/2004 514666 4,40,000
_________________
31,90,000
_________________.
It is further case of complainant that accused person in partial
discharge of her liability of Rs. 60,17,360/ issued a cheque Ex. CW1/4 bearing
number 514664, dt. 19.05.2004 for Rs. 20,00,000/ drawn on Vijiya Bank, Hauz
Khas, New Delhi (hereinafter referred to as cheques in question). It is also case
of complainant that cheque in question had returned unpaid vide returning memo
Ex. CW1/5, dt. 20.05.2004 with remarks funds insufficient and on the alleged
request of accused complainant again presented cheque in question and same
returned unpaid vide cheque returning memo Ex. CW1/6, dt. 26.07.2004 with
remark payment stopped by drawer. It is further case of complainant that
accused did not pay cheques amount despite service of legal demand notice Ex.
CW1/7 dt. 30.07.2004 within stipulated time. Hence, aggrieved from the
aforesaid conduct of accused, complainant filed the present complaint case u/s
138 of NI Act on 03.09.2004.
2. Notice of accusation u/s 251 Cr.P.C was served on accused on
21.05.2007 to which she pleaded not guilty and claim trial. (CW1) Complainant,
(CW2), Sh. Dilip Kumar Yadav, Manager Vijiya Bank, Hauz Khas, New Delhi and
Page No. 3 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari
4
(CW3), Sh. S. K. Chawla, Sr. Manager, Alahabad Bank, Parliament Street, New
Delhi were examined on behalf of complainant. Ld. Counsel for accused
subjected complainant to extensive cross examination. Explanation of accused
qua incriminating evidence u/s 313 Cr.P.C was also recorded on 02.07.2010.
Sh. Jashvinder Singh (DW1), Joint Secretary Delhi Chander of Commerce, Sh.
Subhash, (DW2) Assistant Manager from Vijiya Bank, Hauz Khas and accused
(DW3) herself u/s 315 Cr.P.C examined and cross examined for proving her plea
of defence. Both counsel for parties made elaborate oral argument on
18.08.2012 and 25.08.2012 and they had also filed written argument on record.
3. I have given thoughtful consideration to respective submissions of
both counsels and made careful perusal of entire record of this case.
4. At very outset, it may be pertinent here to mention some relevant
legal provisions. Section 118 of the Act provides for presumption as to drawing,
transfer and acceptance of cheque for consideration. Section 139 of the act
further provides for presumption regarding receiving of cheque in question by the
holder of cheque (i.e. Complainant in this case) in discharge of legal enforceable
debt or liability. Here, it would be relevant to quote the observation of the three
judges bench of Hon'ble Supreme Court of India made in Rangappa Vs. S.
Mohan (2010) 11 SCC 441 as under:
"In light of these extracts, we are in agreement with the
respondentclaimant that the presumption mandated by
Section 139 of the Act does indeed include the existence of Page No. 4 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 5 a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein."
5. Accused has to rebut aforesaid legal presumption regarding consideration and genuineness of cheque in question by leading cogent and reliable evidence and mere denial of existence of consideration in question would not be sufficient to create probable doubt over the case of complainant. In Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pharelal, (1993) 3 SCC 35 (Para.12) it has been held as herein below: "Upon consideration of various judgment as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or doubtful or the same was illegal, the onus Page No. 5 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 6 would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the Page No. 6 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 7 court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances, of the case, act upon the plea that it did not exist."
6. Adverting to the facts of this case accused admitted her signature on cheque in question and issuance of cheque in question to the complainant. However, she pleaded that entire account was settled for Rs. 13,90,000/ and same had been paid through other cheques. Accused also admitted service of legal demand notice sent by complainant. Once, due issuance of cheque in question stands proved, presumption u/s 118 read with 139 came in rescue of complainant and it is up to accused to rebut the same by leading cogent and reliable evidence.
7. During examination in chief accused (DW3) stated that complainant supplied material in question very late due to which she could not export the same in time and suffered huge loss on the account of material in question being of substandard quality. Accused (DW3) further stated in his examination in chief that in July 2004 it was settled between complainant and her that there would be no outstanding dispute if she pays Rs. 13,90,000/ to the complainant. Aforesaid categorical admission of accused regarding transaction with complainant which might not have transpired as expected by the parties, shows that there existed some liability on part of accused towards complainant. It is the admitted version Page No. 7 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 8 of accused that the loses incurd by accused because of timely non supply of goods in question and the dispute between the parties was allegedly settled for Rs. 13,90,000/. It confirms that transaction actually took place. However, Ld. Counsel for accused submits that complainant was just local supplier and not exporter and used to not issue any bill for local supply to the accused. Here, court is of considered opinion that for limited purpose of question of culpability u/s 138 of NI Act the court is not suppose to determing the nature of transaction in question in terms of local and international one as it is sufficient that cheque had been issued in discharge of any debt of other liability. Aforesaid expression i.e. Any debt and other liability are of widest connotation and same has been deliberately used by legislature. However, court is mindful of legal proposition that offence u/s 138 of NI Act is hyper technical offence and same stands committed on the account of non payment of cheque amount by the drawer/accused just after 15 days of receipt of legal demand notice issued by the complainant. Thus, any payment qua dishonoured cheque in question after 15 days of receipt of legal demand notice would not be sufficient to exonerate accused from criminal liability u/s 138 of NI Act. At the highest aforesaid factum, if proved would have some bearing over the quantum of sentence. The legislative intention behind section 138 of NI Act was to increase the efficacy of cheques in business circle of develop economy and to discourage and punish casual drawer of cheque without any bonafied intention to owner the same.
8. Ld. Counsel for accused also contends that invoices showing the Page No. 8 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 9 export of goods are forged and fabricated. Ld. Counsel for accused further submits that as per letter Ex. DW1/1 of Secretary General of Delhi Commerce attestation and verification on all invoices of complainant are forged. Here, it is noticeable that accused had admitted that her firm has relationship with Delhi Chamber of Commerce and her husband is working in agriculture produce promotion export development authority (APEDA) under ministry of commerce. It is also noticeable that the registrationcummembership certificate of APEDA to complainant's firm had been issued by the husband of accused i.e. Sh. V. K. Vidyarthi, assistant general manager, APEDA.
9. Accused admitted the stamp appearing on business contract agreement marked Y at point 2. Ld. Counsel for complainant had submitted that accused admitted her signature on aforesaid agreement marked Y before Hon'ble High Court of Delhi in Civil proceedings where the original of the same is lying. Complainant in her cross examination had also stated that it was agreed between parties in agreement that at the time of supply of consignment complainant will prepare invoice and hand over the same to accused for certification and attestation. Agreement marked Y also confirmed same stand of complainant. Here, para 3 of aforesaid agreement may be referred to. In this circumstances, it is quite possible that no proper certification and attestation of invoice prepared by complainant had been carried out by the accused in connivance with her husband and officials in Delhi Chamber of Commerce which comes under APDEA (Ministry of Commerce). Thus, the contention of Ld. Page No. 9 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 10 Counsel for accused regarding no export on the account of invoices of complainant being allegedly forged and fabricated, does not hold field. It is more so in view of admitted fact on the part of accused as to supply of material in question at belated stage and alleged loss thereto suffered by accused.
10. The main contention of accused is that she had settled all accounts with complainant for Rs. 13,90,000/ and same had been paid through another cheques. It is noticeable that complainant admitted receiving of Rs. 13,90,000/ through two cheques of accused and Ld. Counsel for complainant submits that aforesaid payment was towards total outstanding liability of Rs. 92 Lakhs. However, accused failed to bring any evidence on record to prove any document of settlement, deed or receipt. Accused further failed to explain why she did not insist on returning of previously issued cheque in question even after payment of alleged settlement amount. It is admitted fact that accused did not take any action against complainant for alleged non returning of cheque in question and its misuse by the complainant, even after alleged repayment of alleged settlement amount to the complainant. It is noticeable that cheque in question was firstly returned unpaid with reason insufficient funds and lastly with remark payment stopped by drawer. Ld. Counsel for complainant contends that this is after thought action of accused.
11. Next submission raised by counsel for accused is that if complainant exported goods to the foreign buyer then liability goes to the buyer and not to the accused. However, for limited purpose of section 138 of NI Act it is pointed out Page No. 10 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 11 that there is no legal requirement for drawer to issue cheque in discharge of his own debt and liability as same could be of any other person (Vide decision of Hon'ble Supreme Court of India in Crl. Appeal no. 797 of 2002). Any other interpretation would defeat the intent of legislation which was to ensure credibility of cheque, which might have been issued in reference of other liability including that of any other person apart from drawer. In that case drawer is presumed to have undertaken burden voluntarily to discharge liability of other and he can not be allowed to back track later on. Moreover, issue of coextensive liability of guarantor and principal debtor does not call for any further discussion in this case. Moreover, accused herself admitted that complainant supplied goods in question at belated stage and she suffered loss. Even supplying of goods of substandard quality by the complainant to the drawer of cheque in question does not entitle her to get the same dishonoured. While trying the offences u/s 138 of NI Act, we have not to see the possible exactness of accounts of parties, which may be relevant in cases for civil recovery and proceedings under sales of goods act. It is admitted position that accused did not send any notice of defect under sales of goods act. Moreover, it was open to the accused to exercise his legal right to sue complainant for damages. Ld. Counsel for complainant submits that accused preferred not to raise such issue by replying legal demand notice of complainant. The court is also of considered opinion that plea of defects in goods in question would not exonerate accused from the culpability u/s 138 read with 141 of NI Act. Otherwise it would be open for any buyer to dishonoure his Page No. 11 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 12 cheque on ground of supplied material being of substandard quality at any exorbitantly delayed stage which involves subjective valuation of goods. The legislative intent behind carving of offence u/s 138 of NI Act was to enhance the efficacy of Negotiable Instruments in business transactions and same can not be frustrated by allowing such flimsy plea of accused. Accused had separate set of legal remedy u/s Sales of Goods Act for for any defect in supplied goods in question. Here, it is admitted that accused did not take any action including sending notice of alleged defect to the complainant within reasonable time. It would be relevant to cite some statutory provisions of sales of goods act 1930.
41. Buyer's right of examining the goods. (1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract.
(2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract,
42. Buyer not bound to return rejected goods. Unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right so to do, Page No. 12 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 13 he is not bound to return them to the seller, but it is sufficient it he intimates to the seller that he refuses to accept them.
43. Buyer not bound to return rejected goods. Unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is he intimates to the seller that he intimates to the seller that he refuses to accept them.
44. Liability of buyer for neglecting or refusing delivery of goods. When the seller is ready and willing to deliver the goods and requests the buyer to take delivery, and the buyer does not within a reasonable time after such request take delivery of the goods , he is liable to the seller for any loss occasioned by his neglect or refusal to take delivery and also for a reasonable charge for the care and custody of the goods. Provided that nothing in this section shall affect the rights of the seller where the neglect or refusal of the buyer to take delivery amounts to a repudiation of the contract.
Here it is admitted position of fact even on part of accused that material in question had been supplied by complainant to her and same had been further sold to third party.
Page No. 13 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari 14
12. Ld. Counsel for complainant also stated that it is important to note that agreement Y was signed on 05.02.2004 and first cheque is dt. 07.02.2004 which shows that all cheques including cheque in question dt. 19.05.2004 issued by the accused to the complainant were in reference to agreement marked Y dt. 05.02.2004 only. It is also noticeable that accused did not bring any evidence on record showing any previous transaction or issuance of any cheque between parties. Ld. Counsel for complainant further submits that complainant had filed written documentary evidence pertaining to transaction in question and accused had made artificial plea of defence out of wishful thinking devoid of any supportive documentary evidence or oral testimony of any credible witness. Here, the court is also mindful of section 92 of Indian Evidence Act which prohabbits admission of any oral evidence for the purpose of contradicting, varying, adding to, or subtracting from the terms of any documented contract.
13. In upshot of aforesaid discussion the court is of considered opinion that accused failed to rebut legal presumption by leading cogent and reliable evidence. Thus, I return finding of guilt of accused u/s 138 of NI Act. Accordingly, let convict be heard on point of sentence separately.
ANNOUNCED IN THE OPEN COURT (Rakesh Kumar Rampuri)
ON 18th Day of September , 2012 MM, NI Act, (East)
KKD Courts, Delhi.
Page No. 14 To 14 Ms. Zakia Tayyeb Vs. Mrs. Rajeshwari