Delhi District Court
Parentage Address : 1. M/S vs Technologies on 30 August, 2018
IN THE COURT OF RAKESH KUMAR RAMPURI,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS: SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : 54716/16
b. Date of the commission of the offence :
c. Name of the Complainant: : Dee Dee Techno System Pvt. Ltd.
d. Name of Accused person and their
parentage address : 1. M/s Versus Technologies
2. Vibha Basu Bambroo, Partner
All the above at:
42B, Pocket6, MIG Flats, Mayur
Vihar, PhaseIII, Delhi110096.
e. Offence complained of : Dishonouring of cheques for the
the reason "Funds Insufficient".
f. Plea of the Accused and his examination (if any): Not guilty because
blank security cheques
was given for supply of
electrical goods and
full material was not
supplied by the
complainant.
g. Final Order : Held guilty.
Convicted.
h. Order reserved on : 13.08.2018
i. Order pronounced on : 30.08.2018.
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Brief reasons for decision:
1. Briefly stated, the relevant facts of the case are that accused no. 2 Vibha
Basu also representing accused firm as being partner has been served with the notice of
accusation u/s 251 Cr. PC as to he had issued sixteen cheques Ex. CW1/2 to Ex.
CW1/17 for a sum of Rs. 6,40,000/ drawn on Central Bank of India, Okhla, New Delhi,
in favour of complainant in order to discharge his liability toward supply of electrical
goods on credit by the complainant and they failed to pay the demanded amount to the
complainant within stipulated time after receiving legal demand notice issued by the
complainant subsequent to dishonouring of said cheque for insufficiency of funds in their
bank account.
2. On the other hand, accused no. 2 Vibha Basu admitted that he had signed his
cheques in question. Accused Vibha Basu also admitted that he had given cheques in
question to the complainant as security because his firm had to purchase electrical
material from complainant company. Accused Vibha Basu also accepted that he was
partner of accused firm and he had not filled the body of cheque in question. Accused
also claimed that he had not received legal demand notice issued by the complainant
(referred to plea of defence dated 31.11.2013). Accused admitted purchase order and
document Ex. CW1/42 in his statement u/s 313 Cr.P.C.
3. In T. Vasanthakumar vs. Vijayakumari (Crl. Appeal No. 728 of 2015), the
Hon'ble Apex Court of the land, while dealing with presumptions u/s 139 of NI Act,
observed as under:
"There has been some controversy before us with respect to Section
139 of Negotiable Instruments Act as to whether complainant has to
prove existence of a legally enforceable debt before the presumption
under Section 139 of the Negotiable Instruments Act starts operating
and burden shifts to the accused. Section 139 reads as follows:
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"139. Presumption in favour of the holder It shall be presumed, unless
the contrary is proved, that the holder of a cheque received the cheque
of the nature referred to in Section 138 for the discharge, in whole or
in part, of any debt or other liability."
9. This Court has held in its three judge bench judgment in Rangappa
v. Sri Mohan (2010) 11 SCC 441:
"The presumption mandated by Section 139
includes a presumption that there exists a legally
enforceable debt or liability. This is of course in
the nature of a rebuttable presumption and it is
open to the accused to raise a defence wherein the
existence of a legally enforceable debt or liability
can be contested. However, there can be no doubt
that there is an initial presumption which favours
the respondent complainant."
10. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability.
4. Keeping in view of above mentioned settled legal proposition and peculiarity of hypertechnical offence u/s 138 of NI Act and legislative intent behind the same to curb the menace of dishonouring of cheques by unscrupulous drawer for smooth functioning of business activities, the court has to appreciate the material on the record. In instant case the accused persons admitted that cheque in question belongs to the bank account of his firm. In these circumstance, presumption u/s 139 of NI Act would operate against the accused, who has to rebut the same by leading cogent and reliable evidence or by exposing material contradiction in the case of complainant amounting to reasonable doubt by way of crossexamination of complainant & his witness.
5. Accused claimed that they had not received legal demand notice. However, complainant filed copy of legal demand notice, postal receipts. Accused had not claimed Page No. 3 of 7 Dee Dee Techno System Pvt Ltd Vs Ansh Technologies etc that the given address on the legal demand notice is not his correct address. Moreover, reference may be made to the judgment of Hon'ble Supreme Court of India passed in C. C. Alavi Haji Vs. P. Muhammed (2007) 6 SCC 555 and relevant para of the same is reproduced as under:
17. "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s 138 of NI Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons, therefore, complaint is liable to be rejected. Any person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G. C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium of avoid receiving the notice by adopting different strategies and Page No. 4 of 7 Dee Dee Techno System Pvt Ltd Vs Ansh Technologies etc escape from legal consequences of Section 138 of the Act."
X X
18. "In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on 04.08.2001, the same was returned on 10.08.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgement due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgement due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of Section 138 of the Act had been sufficiently complied with and the decision of the High Court does not call for interference." .
In view of aforesaid observation of Hon'ble Supreme Court of India non service of legal demand notice is also of no great legal importance for accused.
6. Another plea of accused was that he had given security cheque in question to the complainant against the loan taken from the complainant. However, even security cheque becomes enforcible once liability became due and quantifiable at the time of dishonoring of cheque even if it was not so at the time of handing over post dated or blank cheque to the complainant.
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7. Ld. Counsel for accused also contended that accused had not filled the body of cheque in question and it was just blank signed cheque given to the complainant. Even blank cheque could be legitimately filled by the holder of the same and same can be presented for encashment. Hon'ble Delhi High Court in a case titled as Ravi Chopra vs State And Anr. dt. 13 March, 2008 observed as under: "18. Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." Section 49 permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, it makes it clear that by doing that the holder does not thereby incurred the responsibility of an endorser." Likewise Section 86 states that where the holder acquiesces in a qualified acceptance, or one limited to part of the sum mentioned in the bill, or which substitutes a different place or time for payment, or which, where the drawees are not partners, is not signed by all the drawees, all previous parties whose consent has not been obtained to such acceptance would stand discharged as against the holder and those claiming under him, unless on notice given by the holder they assent to such acceptance. Section 125 NI Act permits the holder of an uncrossed cheque to cross it and that would not render the cheque invalid for the purposes of presentation for payment.
Page No. 6 of 7 Dee Dee Techno System Pvt Ltd Vs Ansh Technologies etc These provisions indicate that under the scheme of the NI Act an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course".
8. Perusal of record shows that right of accused Vibha Basu to cross examine the complainant was closed vide order dt. 31.05.2016 as despite various opportunities afforded to him for the same, he did not choose to crossexamine the complainant. In view of unchallenged testimony/claim of complainant and admission of accused as to issuance of cheque in question in favour of the complainant for supply of electrical materials, the various order of accused firm Ex. CW1/43 to Ex. CW1/45, invoices Ex. CW1/38 to Ex. CW1/41, account statement of complainant company Ex. CW1/43 to Ex. CW1/45 and that of accused firm Ex. CW1/46 to Ex. CW1/47 and mandatory legal presumption of consideration u/s 118 and 139 of NI Act, the accused no. 1 and accused no. 2 are hereby convicted for offence u/s 138 r/w 141 of NI Act in present case. Convict be heard on point of sentence separately. RAKESH Digitally signed by RAKESH KUMAR RAMPURI KUMAR Location: Karkardooma Courts, East District, Delhi Date: 2018.08.30 17:38:56 RAMPURI +0530 Announced in the open court (RAKESH KUMAR RAMPURI) on 30th Day of August, 2018. MM/KKD/Delhi This judgment contains 7 signed pages.
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