Delhi District Court
M/S Aggarwal Marbles vs . M/S Radha Marbles on 29 November, 2014
IN THE COURT OF SH. GOPAL SINGH CHAUHAN
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW
DELHI
M/s Aggarwal Marbles Vs. M/s Radha Marbles
CC NO. : 3056/14
P.S. : Dwarka Sector23
U/s : 138 Negotiable Instruments Act
J U D G M E N T
1 Date of the commission of offence : 19/11/2013 approx.
2 Name & address of the : M/s Aggarwal Marbles
Complainant Shop at Plot No.97, Sector20
Dwarka, New Delhi110 078.
Through its proprietor
Sh. Naresh Kumar
3 Name of the accused
and address : 1. M/s Radha Marbles
Plot No.135, Marble Market
Sector20, Dwarka
New Delhi110 075.
Through its Prop./Authorized
Representative Vikas Jajoo
2. Sh. Vikas Jajoo
Prop./ Authorized Representative
M/s Radha Marbles
Plot No.135, Marble Market
Sector20, Dwarka
New Delhi110 075.
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A) H. No.180, Gali No.7
East Azad Nagar
(Krishna Nagar)
Delhi110 031.
B) 5996, Gali No.12
Gandhi Nagar
Delhi110 031.
4 Offence complained of : U/S 138 Negotiable Instruments Act
5 Plea of accused : Pleaded not guilty
6 Final order : Acquitted
7 Date of such order : 29/11/2014
Date of Institution of case : 17/12/2013
Date of decision of the case : 29/11/2014
JUDGMENT
1. By way of the present judgment, I shall decide the complaint case U/s 138 of Negotiable Instrument Act 1881 (as amended upto date) filed by Sh. Naresh Kumar, proprietor of M/s Aggarwal Marbles, against the accused, Vikas Jajoo, proprietor of M/s Radha Marbles.
2. The brief facts of the case as per complaint are that the firm of the complainant was dealing in selling of building material of all kind and Case No. : 3056/14 Page No. 2 of 16 quality like granites, stones, floor tiles, etc. That the accused contacted the complainant and purchased building material from him, which was sold vide various retail estimates. That as per running account, the accused was liable to pay a sum of Rs.5,58,301/. That to make part payment, the accused issued a cheque bearing no.130935, dated 14/10/2013, amounting to Rs.5 lakhs, drawn on State Bank of Travancore, Manish Global Mall, Sector22, Dwarka, New Delhi (hereinafter referred to as the cheque), in favour of M/s Aggarwal Marbles from the account of his firm M/s Radha Marbles. However, on presentation the cheque got dishonored for the reasons "Payment stopped by drawer" and its intimation was received on 16/10/2013. Thereafter, a legal demand notice dated 28/10/2013 was sent to the accused at his residential and official addresses, by post and registered cover. That the accused has replied the notice through his counsel vide reply dt. 13/11/2013. That since the accused did not pay the cheque amount within the prescribed period, as demanded, the complaint was filed for prosecution of the accused U/s 138 Negotiable Instruments Act.
3. After the complaint was filed, the complainant led his pre summoning evidence by way of an affidavit and thereafter hearing the Case No. : 3056/14 Page No. 3 of 16 counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 17/12/2013 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. dated 25/03/2014 was given to him to which he pleaded not guilty and claimed trial. Vide order dt.29/04/2014, the application moved on behalf of accused U/S 145 (2) of N. I. Act was allowed and liberty was granted for crossexamination of CWs.
4. Thereafter, the complainant/CW1 was recalled for his examination. He adopted the previous evidence affidavit and has relied upon the documents already exhibited during presummoning evidence, i.e. Ex. CW1/A to Ex. CW1/F5 and Mark CW1 (colly.). Ex.CW1/A1 is the cheque dt.14/10/2013 amounting to Rs.5 lakhs. Ex.CW1/B1 is the returning memo dt.15/10/2013 with remarks "payment stopped by drawer". Ex.CW1/C1 is the legal demand notice, dt.28/10/2013. Ex.CW1/D1D6 are postal receipts. Ex.CW1/E1E2 are A.D. Cards. Ex.CW1/F1 to Ex.CW1/F4 are returned envelopes. Ex.CW1/F5 is the reply dt.13/11/2013, sent by the accused to the legal demand notice of the complainant and Mark CW1 (colly.) are office copy of the three invoices. Witness was crossexamined by counsel for the accused. Case No. : 3056/14 Page No. 4 of 16
Vide separate statement of the complainant., C.E. was closed.
5. Complainant evidence was followed by the statement of accused U/S 313 Cr.P.C. in which all the incriminating evidence along with exhibited documents were put to him, in which he has denied the claim of the complainant of having purchased any building material from him. He has also stated that the cheque in question was not signed and issued by him. After recording statement of accused U/S 313 Cr. P.C., the case was listed for defence evidence.
6. In defence evidence, the accused got examined himself as DW1 under the provisions of Section 315 Cr. P.C. He has relied upon the documents, Ex.DW1/1 which is bank statement of his account and Ex.DW1/2 sale tax return in respect of his firm. The DW1 was cross examined by counsel for the complainant.
7. I have heard Ld. Counsels for both the parties. I have also perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of. Case No. : 3056/14 Page No. 5 of 16
8. The first and foremost fact which had to be proved on record to held the accused liable for offence U/S 138 of N.I.Act and which is the basic ingredient of this offence, is that the cheque in question was issued by the accused for the discharge, in whole or in part, of any debt or any other liability and the cheque returned back dishonored.
9. The claim of the complainant was that some building material was supplied to the firm of the accused and in discharge of part liability the accused had issued the cheque in question on the account of his firm.
On the other hand, the main grounds of defence as emerged from the crossexamination of CW1, statement of the accused recorded U/S 313 Cr. P.C. and from defence evidence, was that no material was purchased by the accused from the complainant and in the month of February 2013, the cheque in question was lost alongwith several other cheques from the office of the accused i.e. much prior to the date of its dishonorment. That cheque was not signed by the accused and he has apprehension that the same was misused by the complainant in collusion with his office staff, after fabricating his signature and other particular details therein.
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10. In his examinationinchief, the accused/DW1 has stated that the cheque book containing several cheques including the cheque in question, was lost from his office and thereafter when he could not get satisfactory response from his office staff, the payment of the cheques was got stopped. That for the first time on or about 30/10/2013, he came to know that the cheque has been misused by the complainant when he received the notice, dt.20/10/2013. That he has replied the notice through reply, Ex.CW1/F5. That his signatures on the cheque were forged and fabricated. He has also stated that the shop where he was carrying the business of marble stones, was on rent and he has stopped his business in June, 2013. In that regard, sale tax return in respect of the firm of the accused, which is related to period from 01/10/2013 to 31/12/2013, was exhibited as DW1/2. In the said return, it was mentioned that no transaction took place during that period. That thereafter, the said shop was let out to Narian Marbles and Narian Marbles has been carrying on the business of marbles from the said premises.
11. In support of his case, among other documents, the complainant has also filed office copy of the 3 invoices vide which the alleged material was supplied to the accused and the same were marked as Mark Case No. : 3056/14 Page No. 7 of 16 C1(colly.). It was pointed out on behalf of the accused that no proof of delivery of the alleged material to the accused, was placed on record. The complainant/CW1 has admitted that no receiving was obtained for the delivery of the goods and claimed that the material used to be delivered without obtaining any acknowledgment. He has also admitted that the relevant running account was not placed on record in the present matter. During crossexamination, in response to the suggestions that the cheque in question was not handed over by the accused, the complainant/CW1 has stated that the cheque was delivered at his shop to some labourer in his absence and that he does not know whether the cheque was handed over by the accused or Harish Jajoo. He has also stated that the material was started to be dispatched after receiving the cheque and that till the date of receiving of the cheque, bills were also not raised.
12. The counsel for the accused has stated that the defence established by the accused during trial was already mentioned in the reply of the legal demand notice, which is exhibited by the complainant himself as Ex.CW1/F5, however, the ground of defences taken by the accused therein are not dealt with by the complainant either in the complaint or in the evidence affidavit and the position of complaint with regard to the defences has not been explained. He has also stated that the complainant Case No. : 3056/14 Page No. 8 of 16 has failed to prove that infact any material was ever supplied to the accused and that consequently, he was liable to pay the cheque amount, since he has not brought on record any material to prove the delivery of the goods. He has also stated that to prove the liability of the accused even the statement of running account referred to in the complaint, has not been filed on record. He has pointed to the crossexamination of CW1 conducted on 29/04/2014, wherein he has accepted that Mark CW1 (colly.) does not bear anything in writing of the accused. Also to the part of his examination, where he has voluntarily stated that when he used to dispatch material to the known person, he usually did not take the receipt of the consignee and also to the part, where he has also accepted that there is neither receipt nor acknowledgment of the goods as mentioned in Mark CW1 (colly.) by the accused or on his behalf. He has also pointed out to his examination, where he has stated that firstly he received the cheque and thereupon he started to dispatch the goods and that on the date of receipt of the cheque neither the bill was raised nor the goods were dispatched. The counsel for the accused has argued that in view of the defence taken by the accused a reasonable doubt has been created in the case of the complainant and the presumptions lying in favour of the complainant must be taken to have been rebutted. Case No. : 3056/14 Page No. 9 of 16
On the other hand, the counsel for the complainant has stated that although the accused has taken stand that the cheque alongwith some other cheques, was lost from his office premises and that the present complaint has been filed by the complainant after fabricating his signatures on the cheque in question in connivance with his office staff, however, it is surprising that till date the accused has not made any complaint against his staff or the complainant to any authority in this regard, and it is not expected from the accused who is a business man. He has argued that had the cheque was really misused, the accused would have definitely made some complaint in that regard. He has also argued that although the accused has claimed that the cheque was not signed by him and his signatures were forged and fabricated, however, no suggestion was put to the CW1 during his crossexamination in that regard. He has stated that the signatures of the accused has been duly proved by CW2 Prakash Mohan, who has filed the selfattested copy of the specimen signatures of the accused, which were taken for the current account maintained by him in the State Bank of Travancore, Dwarka Branch, New Delhi. He has argued that in the light of given facts, it can be assumed that the cheque was signed by the accused himself. He has also stated that presumptions are lying in favour of the complainant as per Case No. : 3056/14 Page No. 10 of 16 the relevant provisions of N. I. Act and the onus to rebut the presumptions was lying upon the accused, which he had failed.
13. Among other judgments, the counsel for complainant has relied upon the judgments cited as, Lokesh Singh Bohra Vs. State of Uttarakhand and Anr. 2014 ACD 110 (UTR), Ambika Baishya Vs. State of Assam and Anr. 2011 ACD 1219 (2) (GAU) and State of Madras Vs. A. Vaidyanatha Iyer AIR 1958 SC 61. In the abovementioned judgments, mainly the principles regarding the presumptions lying in favour of the complainant and the degree of onus lying upon the accused to rebut them, are discussed.
14. Sections 118(a) and 139 of N. I. Act provides that it will be presumed that every negotiable instruments was made or drawn for consideration and that the holder of the cheque received the same for the discharge of any debt or other liability. These presumptions are rebuttable in nature and the burden to rebut the same lies upon the accused. It is settled preposition that in order to discharge the burden the accused has to prove or disprove a particular fact on the scale of preponderance of probabilities.
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15. The consistent defence of the accused right from the reply to the legal demand notice, remained that no material was supplied to him and that the cheque was lost alongwith other cheques and thereafter, the same was misused by the complainant in connivance with office staff of the accused after forging and fabricating his signatures thereon. It is admitted position that the accused had sent reply to the legal demand notice of the complainant which was also filed by the complainant as Ex.CW1/F5. It is surprising that the complainant has not dealt with any of the defence of the accused either in his complaint or in the evidence affidavit despite the fact that he was aware about the probable defence of the accused since he has received the reply, Ex.CW1/F5.
16. One of the basic ingredients of the offence under consideration is that the cheque must have been issued in discharge of a debt or liability. In the present matter, the accused has denied the delivery of the alleged material and thereafter, it was incumbent upon the complainant to prove specifically that the material was in fact, supplied to the accused and the liability of the accused on the relevant date was extended upto the cheque amount.
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17. During his crossexamination, the complainant/CW1 has stated that the material was supplied to the accused after receipt of the cheque. He has also stated that on the date of the receipt of the cheque neither the bill was raised nor the goods were dispatched. The cheque, Ex.CW1/A, is dt.14/10/2013 whereas the three invoices, Mark CW1 (colly) through which the material was claimed to have been supplied to the accused, are dt.01/10/2013, 06/10/2013 and 13/10/2013 i.e. prior to the date of cheque. It has not come on record that the cheque was a postdated cheque. Section 118 (b) of N. I. Act raises a presumption that every negotiable instrument bearing a date was made or drawn on such date. Hence, it can be presumed that the cheque was drawn on 14/10/2013. As a matter of practice, generally the payment and delivery of the goods are done at the same time although as per the relevant provisions of Sales of Goods Act, 1930, in a contract of sale, the delivery of the goods can be deferred for future. In the circumstances of the present matter as the accused has specifically denied the receiving of goods from very beginning, it was obligatory on the part of the complainant to prove the delivery of goods to the accused. During his crossexamination, the complainant/CW1 has accepted that no acknowledgment regarding the delivery of the goods, was obtained on behalf of the accused and has claimed that the goods Case No. : 3056/14 Page No. 13 of 16 were used to be delivered without acknowledgment. If no acknowledgment had been obtained regarding the delivery of the goods, the delivery could have been proved by some other evidence but this has not been done in the present matter.
18. It was claimed on behalf of the complainant that as per the running account, the accused was liable to pay a sum of Rs.5,58,301/, however, he has not bothered to get the statement of account produced on record in the present matter, despite specific objections raised on behalf of the accused. Moreover, the accused has also created reasonable doubt in the case of the complainant by bringing on record the facts that after the month of September, 2013 he was not carrying on business of marbles from the given address and by claiming that the cheque in question does not bear his signatures. He has also claimed that the payment of the lost cheques including the cheque in question, which were stated to be lost in February, 2013, was got stopped by him much prior to date of dishonorment of the cheque. He has filed on record the statement of his account as Ex.DW1/1, wherein several entries of dated 06/02/2013 are reflected with remark "STOP CHQS". He has also filed on record the tax return related to his firm for the period from 01/10/2013 to 31/12/2013 as Case No. : 3056/14 Page No. 14 of 16 Ex.DW1/2, wherein no transaction is shown to have taken place during that period.
19. From the given facts, the claim of the complainant that some material was supplied to the accused and subsequently, in discharge of part liability the accused had issued the cheque in question, appears to be highly doubtful. It is settled preposition that where a reasonable doubt is found to be created in the case of the complainant, the presumptions lying in favour of the complainant are taken to have been rebutted. Also benefit of doubt must go to the accused since in order to secure conviction the case is required to be proved against the accused, beyond reasonable doubt.
20. In view of above discussion, the evidence, the facts and circumstances of the case, this court is of the considered opinion that the complainant has failed to prove his case against the accused beyond reasonable doubt and to prove that the accused was liable to pay the cheque amount to him.
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Accordingly, the present complaint is hereby dismissed and accused Vikas Jajoo, S/o Sh. Pawan Jajoo, proprietor of M/s Radha Marbles, is acquitted of the offence U/s 138 Negotiable Instruments Act.
File be consigned to record room after necessary compliance.
Announced in the open court
today i.e. 29/11/14 (GOPAL SINGH CHAUHAN)
MM : DWARKA
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