Delhi District Court
M/S Vidhur & Co. Pvt. Ltd. vs . Samta Jain on 31 March, 2015
IN THE COURT OF SHRI GAGANDEEP JINDAL: MM (N.I.ACT): SOUTH-
EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
M/s Vidhur & Co. Pvt. Ltd. Vs. Samta Jain
CC No.5302/1/2011
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification : 02406R0307302011
Number of the case
2. Name of the complainant : Vidhur & Co. Pvt. Ltd. a
company incorporated under the
Companies Act, 1956 having its
Registered Office at 307,
Bajaj House, 97, Nehru Place,
New Delhi - 110019
3. Name of the accused , : Smt. Samta Jain
parentage & residential Sole Proprietor,
address Clutec Solutions, 104,
Saraswati House, 27, Nehru
Place, New Delhi - 110019
Also at :
1. B-84, First Floor, Sector
49, Noida-201301
2. 1111, Hemkunt Tower, 98,
Nehru Place, New Delhi -19
4. Offence complained of or : U/s 138 of Negotiable
proved Instruments Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed
trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 31/03/15
Date of Institution : 02.12.2011
Date of Reserving Judgment/Order : 27.03.2015
Date of Pronouncement of Judgment/Order : 31.03.2015
JUDGMENT
1. By way of the present Judgment, I shall dispose off the present complaint filed by M/s Vidur & Co. Pvt. Ltd. (hereinafter referred to as 'complainant') against Samta Jain (hereinafter referred to as 'accused persons') u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short).
2. It is submitted by the complainant that complainant is an authorized distributor of Dell India (P) Ltd. for computer peripherals and accessories and accused is a retailer of computer peripherals for various brands and accused used to purchase Dell products on credit from the complainant against the invoices raised by the complainant. In March, 2010, complainant disconnected the arrangement and there was no further business transaction with the accused. On 31.03.10, there was a debit balance of Rs.85,97,238.95 paise in the account of the accused. It is further submitted that between 01.04.10 to 31.03.11, accused paid Rs.33,41,750/- to the complainant and an incentive credit of Rs.78 was also given to the accused. As per accounts on 01.04.11, a sum of Rs. 52,55,410/- was due from the accused. In April, 2011, accused paid a sum of Rs.1 Lakh by cheque no.737176 dated 05.04.11 to the complainant. Thereafter, Rs.51,55,410.95 paise remained due. After some time, accused gave cheque no.737187 dated 15.07.11 for Rs.51,55,410.95 paise towards discharge of her liability for the productions purchased on credit from the complainant. When the cheque in question was presented for encashment, the same was returned unpaid with the remarks "fund insufficient" vide returning memo dated 22.09.11. Thereafter, complainant got issued legal demand notice dated 19.10.11 through registered post but accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand notice. Hence, the present case was filed.
3. Notice u/s 251 Cr.P.C. was framed against the accused to which she pleaded not guilty and claimed trial.
4. To prove its case, complainant has examined Shri Madhur Madhav, Director of the complainant as CW-1 by way of affidavit Ex. CW-1/A who has relied upon the following documents:-
(a)Original invoices as Ex. CW-1/3 to Ex. CW-1/47,
(b)Books of accounts Ex. CW-1/48 to Ex. CW-1/50
(c)Auditor certificate is Ex. CW-1/51
(d)Original cheque in question Ex. CW-1/52,
(e)Returning memo is Ex. CW-1/53,
(f)Copy of legal demand notice Ex. CW-1/54,
(g)Registered post for sending legal demand notice, AD card and unserved envelope are Ex. CW-1/55 to Ex. CW-1/69 Following documents have been proved by CW-1 during his cross examination: -
1. Board Resolution of the company. EX. CW1/D1
2. Tax invoices, three pages, all dated 15.10.2009. EX.
CW1/D2 (3 pages).
3. Stock statement of Wazirpur Industrial Area branch, Starting from 01-Apr-2009 to 31-Mar-2010. EX. CW1/D3 (18 pages).
4. Stock statement of Nehru place branch, Starting from 01-
Apr-2009 to 31-Mar-2010. EX. CW1/D4 (216 pages).
5. Ledger account of Wazirpur Industrial Area branch, Starting from 01-Apr-2009 to 31-Mar-2010. EX. CW1/D5 (1 page).
6. Ledger account of Nehru place branch, Starting from 01- Apr-2011 to 31-Mar-2012. EX. CW1/D6 (1 page).
7. Ledger account of Nehru place branch, Starting from 01- Apr-2010 to 31-Mar-2011. EX. CW1/D7 (2 pages).
8. Ledger account of Nehru place branch, Starting from 01- Apr-2009 to 31-Mar-2010. EX. CW1/D8 (41 pages).
9. Form DVAT 16 for a period of Mar-2010. Mark-D9 (7 pages).
10. Form DVAT 16 along with deposit receipt for a period of 01.02.2010 to 28.02.2010.Mark-D10 (05 pages).
11.Form DVAT 16 along with deposit receipt for a period of 01.01.2010 to 31.01.2010.Mark-D11 (08 pages).
12.Form DVAT 16 along with deposit receipt for a period of 01.12.2009 to 31.12.2009.Mark-D12 (06 pages).
13.Form DVAT 16 along with deposit receipt for a period of 01.11.2009 to 30.11.2009. Mark-D13 (06 pages).
14.Form DVAT 16 along with deposit receipt for a period of 01.10.2009 to 31.10.2009. Mark-D14 (07 pages).
15.Form DVAT 16 along with deposit receipt for a period of 01.09.2009 to 30.09.2009.Mark-D15(06 pages).
16.Form DVAT 16 along with deposit receipt for a period of 01.08.2009 to 31.08.2009. Mark-D16 (09 pages).
17.Form DVAT 16 along with deposit receipt for a period of 01.07.2009 to 31.07.2009. Mark-D17 (06 pages).
18.Form DVAT 16 along with deposit receipt for a period of 01.06.2009 to 30.06.2009. Mark-D18 (05 pages).
19.Form DVAT 16 along with deposit receipt for a period of 01.05.2009 to 31.05.2009. Mark-D19 (05 pages).
20.Form DVAT 16 along with deposit receipt for a period of 01.04.2009 to 30.04.2009. Mark-D20 (06 pages).
21. Form DVAT 31 from 01.04.2009 to 30.04.2009. Mark-D21 (12 pages).
22. Form DVAT 31 from 01.05.2009 to 31.05.2009. Mark-D22 (14 pages).
23. Form DVAT 31 from 01.06.2009 to 30.06.2009. Mark-D23 (19 pages)
24. Form DVAT 31 from 01.07.2009 to 31.07.2009. Mark-D24 (22 pages).
25. Form DVAT 31 from 01.08.2009 to 31.08.2009. Mark-D25 (20 pages).
26. Form DVAT 31 from 01.09.2009 to 30.09.2009.Mark-D26 (23 pages).
27. Form DVAT 31 from 01.10.2009 to 31.10.2009.Mark-D27 (29 pages).
28. Form DVAT 31 from 01.11.2009 to 30.11.2009. Mark-D28 (23 pages).
29. Form DVAT 31 from 01.12.2009 to 31.12.2009.Mark-D29 (24 pages).
30. Form DVAT 31 from 01.01.2010 to 31.01.2010. Mark-D30 (25 pages).
31. Form DVAT 31 from 01.02.2010 to 28.02.2010.Mark-D31 (27 pages).
32.Form DVAT 31 from 01.03.2010 to 31.03.2010. Mark-D32 (29 pages).
1. Complainant also examined Brijesh Kumar, Branch Sales Officer, HDFC Bank, Nehru Place, New Delhi who has proved on record letter Ex. CW-2/1 and photocopy of the cheque is Ex. CW-2/2. His re-examination was deferred for want of statement of account, but thereafter, he left the service of the bank and Akhil Mehta was examined as CW-3 who has proved the statement of account No.00922790000050 in the name of M/s Vidhur and company private Limited as Ex. CW-3/2.
The witnesses were discharged after cross examination.
2. In the statement of accused recorded u/s 313 Cr.P.C., all the incriminating evidence were put to the accused to which accused has stated that neither she nor her husband nor her father in law used to sign the delivery challans after receiving the goods and her employees are not authorized to sign the delivery challans. She further stated that she made the payments to the complainant, but she does not remember the exact amount and she is not liable to pay Rs.52,55,410.95 paise as on 01.04.11. The cheque Ex. CW-1/52 was issued to the complainant in blank for security purpose for further business and it was not issued for payment of any liabilities. She further stated that she did not receive the first notice, however, she received the second notice. She chose not to lead any defence evidence in her favour.
3. Final arguments on behalf of both the parties heard.
4. Ld. Counsel for the accused firstly raised the defence that in statement of account Ex. CW-1/48 vide the entry dated 15.10.09, the complainant has debited the account of accused by Rs.11,39,250/- with remarks Vidhur & Co. Pvt. Ltd. (W.P.) - Journel 2842 whereas all other entires have been reflected with the remarks Sale DVAT -4 with voucher number. Therefore, the statement of account Ex. CW-1/48 cannot be relied upon.
5. Ld. Counsel for the complainant has argued that complainant sold the goods worth Rs.11,39,250/- to the accused vide invoice Ex. CW-1/D2 from its Wazirpur branch office which has been reflected in Ex. CW-1/D5 in the account maintained by the complainant in its Wazirpur branch and from that Wazirpur branch office, the amount was shifted to the ledger account of the accused as maintained in the Nehru Place branch office.
6. On perusal of documents Ex. CW-1/D2, Ex. CW-1/D5 and Ex.
CW-1/48, I find no merits in the arguments of Ld. Counsel for the accused that a wrong debit entry was made by the complainant. The said entry has been made by complainant because the complainant sold the goods worth Rs.11,39,250/- from Wazirpur branch office as mentioned in Ex. CW-1/D5 and the said amount of Rs.11,39,250/- was shifted from the account books of Wazirpur branch office to the account books of Nehru Place branch office.
7. Ld. Counsel for the accused further raised the defence that the complainant has not filed any document on record to prove the delivery of the accused allegedly sold to the accused vide Ex. CW-1/D2. Per contra, Ld. Counsel for the complainant has argued that sometimes, the goods were delivered to the employees of the accused and proper acknowledgment was taken and sometimes, the goods were delivered to the accused, or her husband or her father in law, no acknowledgment was taken from them in good faith. He further argued that goods against the invoices Ex. CW-1/D2 and D3 were delivered to the accused and no acknowledgment was taken from them in good faith. During the cross examination, DW-1 stated that :-
"Ex. CW-1/D2 does not bears sign of the accused or her representative for receiving goods. (Vol. When ever goods were received by the accused, her husband or her father in law we didn't obtained the sign for receiving the goods as a matter of trust.). It is wrong to suggest that neither the goods were collected by the accused or her representative nor delivered by any of my employees as mentioned in Ex. CW-1/D2."
The complainant has failed to file any document on record to prove the delivery of the goods sold to the accused vide invoice Ex. CW-1/D2. Hence, it is proved that goods worth Rs. 11,39,250/- allegedly sold vide invoice Ex. CW-1/D2 were not delivered to the accused.
8. Ld. Counsel for the accused further raised the defence that the complainant has failed to prove any authority given by the accused for making the payment to Dell against bill dated 14.04.09 for Rs.1,79,000.27 paise and bill dated 23.10.09 for Rs.40,800/-. Per contra, Ld. Counsel for the complainant has argued that these payments were made by the complainant on behalf of the accused to Dell as per the business terms with the accused.
9. In the complaint and evidence, the complainant has stated that accused used to take the products of Dell on credit basis from the complainant against invoices raised by the complainant but it is nowhere mentioned in the complaint and evidence that the complainant calculated the liability of the accused including the payments made by it to Dell company directly on behalf of the accused nor the complainant filed any document vide which the accused authorized the complainant to make the payment to Dell on behalf of the accused. The complainant has not examined any witness from Dell India Pvt. Ltd. to prove that there was agreed terms between the complainant, accused and Dell India Pvt. Ltd. for making the payment by the complainant to Dell India Pvt. Ltd. on behalf of the accused. Therefore, the complainant failed to prove that the accused is liable to make the payments of Rs. 1,79,000.27 paise and Rs.40,800/- to the complainant.
10. Ld. Counsel for the accused further raised the defence that Ex. CW-1/48, Ex. CW-1/49 and Ex. CW-1/50 and invoice Ex. CW-1/D2 cannot be read in evidence because these documents are not computer generated documents and are supported with certificate of section 65B of Indian Evidence Act and has relied upon the Judgments in the case tiled as "Anvar P.V. Vs. P.K. Basheer", 2014 (10) SCC 473 and "P.C. Thomas Vs. P.M. Ismail & Ors.", AIR 2010 SC 905. Per contra, Ld. Counsel for the complainant has argued that Ld. Counsel for the accused did not raise any objection to the mode of proof of documents Ex. CW-1/48, Ex. CW-1/49 and Ex. CW-1/50 and invoice Ex. CW-1/D2 at the time of tendering these documents in evidence and he cannot raise any objection to the mode of proof of these documents at the stage of final arguments. Ld. Counsel for the complainant has relied upon the Judgment in the case titled as "R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple & Anr.", AIR 2003 SC 4548.
11. In R.V.E. Venkatachala case (supra), the Hon'ble Apex Court has observed that: -
"Ordinarily an objection to admissibility of evidence should be taken when it is tendered and not subsequently. The objection to admissibility of documents in evidence may be classified in two two classes; (1) an objection that the document which is sought to be proved in itself is admissible in evidence and (2) where the objection does not dispute the admissibility of the documents in evidence and it is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because the documents has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at the later stage or even in appeal or revision......."
In Anvar P.V. case (supra), the Hon'ble Apex Court has observed :-
"22. The evidence relating to electronic record as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears the court ommitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu Case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
23. The Appellant admittedly has not produced any certificate in terms of Section 65 in respect of CDs, Exhibits-P4, P8, P9, P10, P12, P13, P15, P20 and P22. Therefore, the same cannot be admitted in evidence. Thus, the whole case set up regarding the corrupt practice using songs, announcements and speeched fall to the ground.
24. The situation would have been different had the Appellant adduced primary evidence, by making available in evidence, the CDs used for objectionable songs or announcements have been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeched, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification. Those CDs cannot be admitted in evidence since the mandatory requirements of Section 65B of the Evidence Act are not satisfied. It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence on electronic record with reference to Section 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence Under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance of the conditions in Section 65B of the Evidence Act."
12. In view of the observations of Hon'ble Apex Court in the case of Anvar P.V. (supra), the documents Ex. CW-1/48, Ex. CW-1/49 and Ex. CW-1/50 and Ex. CW-1/D2 to Ex. CW-1/D8 are not admissible in evidence because the same are not supported with certificate u/s 65B of Indian Evidence Act. I find no merits in the argument of Ld. Counsel for the complainant that the accused cannot raise the objection regarding the mode of proof of aforesaid documents because the objection to the admissibility of any evidence can be raised at any stage as held in "R.V.E. Venkatachala Gounder case (supra).
13. In view of the above discussion, the complainant has failed to prove that the accused is liable to pay an amount of Rs.11,39,250/-, Rs.1,79,000.27 paise and Rs.40,800/-. These amount includes in the cheque amount. It is settled proposition of law that the accused cannot be held liable for the offence u/s 138 of Negotiable Instruments Act if the accused is not liable to pay the cheque amount to the complainant at the time of its presentation. Moreover, the complainant has failed to prove the documents Ex. CW-1/48, Ex. CW-1/49 and Ex. CW-1/50 and Ex. CW-1/D2 to Ex. CW-1/D8 as per provisions of Indian Evidence Act which is the foundation of the entire case of the complainant.
14. Conclusion:
In view of the aforesaid findings, the court is of the considered opinion that the accused is able to adduce a probable defence in her favour and to rebut the presumption u/s 139 of Negotiable Instruments Act that accused is not liable to pay the cheque in question. In such a scenario, the onus to prove the legal liability of the accused shifts back to the complainant, which the complainant has failed to discharge. Hence, accused is acquitted for the offence u/s 138 of Negotiable Instruments Act.
Announced in the open court (Gagandeep Jindal) on 31.03.2015 MM(N.I. Act):SED: Saket Courts, New Delhi