Delhi District Court
Usha Rani vs Sardar Moti Singh on 27 August, 2024
IN THE COURT OF SH. BHANU PRATAP SINGH
JMFC-02 EAST DISTRICT, KARKARDOOMA COURTS DELHI
Usha Rani Vs Sardar Moti Singh & Ors.
CIS No. 55876/2016
U/s. 138 N.I. Act
1. Name of the Complainant : Ms. Usha Rani
W/o Sh. Harish Kumar Kukreja
2. Name of the accused : Accused no. 03 Mrs. Jasmeet
Kaur
Accused no. 04 M/s. Raman
International
Accused no. 02 Baljeet Singh
(Absconder)
3. Offence Complained of : u/s. 138 N.I. Act
4. Plea of accused : Pleaded not guilty
5. Date of institution of the case : 25.01.2008
6. Final order : Acquitted
7. Date of final order : 27.08.2024
JUDGMENT
1. By way of the present Judgment, this Court shall dispose of the present complaint filed by Usha Rani (hereinafter referred to as 'complainant') against Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. P age 1 of 9 Digitally signed by BHANU BHANU PRATAP PRATAP SINGH Date:
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accused no. 03 Jasmeet Kaur, accused no. 04 Raman Interntional and accused no. 02 Baljeet Singh (Absconder) 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).
Brief facts:
2. The case of the complainant is that the complainant is the proprietor of M/s Usha Embroidery Jobwork and complainant is doing the jobwork of embroidery of ready-made garments for the last many years. That in the first week of October 2003, the accused persons had approached the complainant for jobwork of embroidery of ready-made garments, and the accused persons had introduced themselves as the partners of M/s Raman International as well as the partners of M/s Preety International and the accused persons had further told the complainant that the accused persons are engaged in the business of exports of all types of ready-made garments for many years and manage the day-to-day affairs of their firm namely M/s Raman International. That thereafter in the third week of October 2003, the accused persons had started giving the work of embroidery of ready-made garments of different patterns/design/sizes/Variety, etc. to the complainant from time to time and in this regard, the rate of the said work was also settled after approval of the required jobwork of embroidery of readymade garments with the complainant from time to time. That during the period from October 2003 in May 2006, the accused persons had got done a large number of jobwork of embroidery of readymade garments from the complainant and the complainant had always done the jobwork of embroidery as per their utmost satisfaction on time and Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. Page 2 of 9 Digitally signed by BHANU BHANU PRATAP PRATAP SINGH Date:
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delivered the same. That after receiving the delivery of required jobwork of embroidery of ready-made garments when the complainant asked for settling accounts of work so done by the complainant, then the accused persons had stated they are waiting for payments from their overseas as well as local clients. Therefore the accused persons had sought some time for settling the account of the complainant. However they had also sent some payments to the complainant as part payment against the due payment . That in the month of May 2006 and thereafter the accused no. 2 had given seven cheques as part payments on the instructions of their other partners, including the cheque in question bearing no. 593637 dated 22.05.2007 of Rs. 2,00,000/- drawn on Bank of Baroda overseas branch, New Delhi in favour of complainant. That at the time of giving the above said cheque, the accused persons had assured to the complainant that the cheque shall be honoured on its presentation. That due to false assurances and promises, the complainant has deferred to deposit the same from time to time and due to that some of the cheques became outdated and when the complainant deposited the same for encashment with the banker, they were returned unpaid by their banker. That whenever the complainant presented the above said cheques for encashment the same were returned unpaid due to insufficient fund and when the complainant approached the accused persons, then the accused persons had requested to present the said cheque again for encashment. That when the complainant presented the cheque in question bearing no. 593637 dated 22.05.2007 with the banker, namely State Bank of India, Krishna Nagar branch, the same was dishonoured due to the reason "instrument out dated/stale". Thereafter complainant has alleged that the accused persons had some connivance with their banker and due to that the Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. Page 3 of 9 Digitally signed by BHANU BHANU PRATAP PRATAP SINGH SINGH Date:
2024.08.27 18:03:03 +0530 accused persons had managed to send incorrect memo from their bank while dishonouring the cheque in question. That the complainant sent legal notice dated 19.12.2007 to all the accused persons but the accused persons did not pay the cheque within the stipulated period despite receiving the legal notice. Therefore, the present complaint was filed by the complainant.
Proceedings before the Court:
3. The cognizance of the complaint was taken, and the accused were summoned by order dated 25.01.2008. Thereafter notice was served under section 251 of CrPC to all the accused persons on 08.12.2009. Thereafter complainant evidence was recorded and complainant witnesses were examined, cross examined and discharged and CE was closed on 10.11.10. Thereafter accused Moti Singh had expired and proceedings against him were abated on 25.02.2013. Further, the accused Baljit Singh was declared as absconder firstly on 10.07.2012 and again on 21.11.2017. Thereafter Statement of accused Jasmeet Kaur and accused no. 4 M/s Raman International through Jasmeet Kaur under section 313 of CrPC was recorded on 26 April 2024 as accused Baljeet Singh remained absconder. Final arguments were heard behalf of the parties.
Arguments raised by parties:
4. Counsel for complainant argued that all the requirements of Section 138 NI Act have been fulfilled by the complainant in the present case and the complainant has proved his case beyond reasonable doubt. It was further argued by the counsel for the complainant that the accused has taken false Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. Page 4 of 9 Digitally signed by BHANU BHANU PRATAP PRATAP SINGH SINGH Date:
2024.08.27 18:03:10 +0530 defence in the present case. It has been further argued that the accused failed to rebut the presumption u/s 139 NI Act and raise any probable defence in her favour. The counsel for complainant in his written arguments stated that the complainant has successfully proved her case against the accused persons. The counsel for complainant has further stated that it is an admitted fact that accused persons never challenged that they are not the partners of the accused firm M/s. Raman international. Therefore, accused persons are guilty of offence punishable u/s 138 NI Act.
5. It has been argued by Counsel for the accused no. 03 Jasmeet Kaur that accused no. 03 was not a partner in M/s. Raman International and therefore, the present case is not maintainable against accused no. 03 Jasmeet Kaur. It has been further argued by Counsel for accused that the present complaint is not maintainable as cheque in question was returned unpaid as the cheque was stale. It has been further argued by Counsel for accused that complainant has failed to prove her case. Therefore, the accused no. 03 Jasmeet Kaur is not guilty for the offence punishable under Section 138 of NI Act.
Reasons for Decision:
6. For deciding the present case, it is essential to lay down the ingredients of the offence under Section 138 NI Act which are as follows:
(a) A person must have drawn a cheque on an account maintained by him in a bank.
(b) The cheque must be drawn for payment of certain amount of money to another person to discharge in whole or in part, any legal enforceable debt or Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. Page 5 of 9 Digitally signed by BHANU BHANU PRATAP PRATAP SINGH Date:
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other liability.
(c) The cheque has been presented to the bank within the period of validity and is returned unpaid by the bank either due to insufficiency of funds or it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
(d) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of cheque within stipulated period.
(e) The drawer fails to make payment within stipulated time after the receipt of the said notice. [Reference: Kusum Inglots & Alloys Ltd & Ors v. K Pennar Peterson Securities Ltd and Ors (2000) 2 SCC 745].
7. In order to prover her case, the complainant has relied upon her evidence affidavit Ex.CW1/A, cheque in question Ex. CW1/A, deposit slip exhibit CW1/A1, return memo ex. CW1/B, legal notice Ex.CW1/G, postal receipts Ex.CW1/H, UPC Ex. CW1/I and documents Ex. CW1/X1 to Ex. CW1/X5.
8. The accused no. 03 Jasmeet Kaur mentioned in her statement under Section 313 Cr.P.C. that she was neither a partner or nor an employee at M/s Raman International and she did not have any knowledge about the cheque in question and she did not sign the cheque in question.
9. CW-2 KC Pandey, Officer Bank of Baroda (Overseas Branch) in his testimony dated 10.11.2010 brought the record pertaining to the Bank Account maintained in the name of M/s Raman International that also contained the Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. Page 6 of 9 Digitally signed by BHANU BHANU PRATAP PRATAP SINGH SINGH Date:
2024.08.27 18:03:27 +0530 form of authorised signatory Ex. CW2/A, Account Opening Form Ex. CW2/B, copy of partnership deed Ex. CW2/C and Accounts Statement details from 01.05.2007 to 22.11.2007 Ex. CW2/G.
10. Perusal of the above documents shows that the authorised signatory form Ex.CW2/A does not mention the name of accused Jasmeet Kaur as an authorised signatory. Further, the account opening form Ex. CW2/B does not mention the name of Jasmeet Kaur as an account holder or a partner in M/S Raman International. Furthermore, the partnership deed Ex. CW2/C does not mention the name of Jasmeet Kaur as a partner in M/s Raman International. Further, accused Jasmeet Kaur is not even the signatory of the cheque in question.
11. CW-1 Usha Rani in her cross examination dated 02.08.2010, stated that " I do not have any document to show any connection between the accused and Raman international, except the cheque given by the accused persons" . Therefore, perusal of the testimony of CW-1 shows that no document has been placed on record to show that accused Jasmeet Kaur had any connection to the accused firm M/S Raman International.
12. Therefore, this Court is of the view that there is no evidence on record to establish that accused no. 03 Jasmeet Kaur was in charge of or responsible for the conduct of the business of the partnership firm M/s Raman International. To the contrary, all the documents placed on record by CW-2 show that accused no. 03 Jasmeet Kaur was neither the authorised signatory of the Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. Page 7 of 9 Digitally signed by BHANU BHANU PRATAP PRATAP SINGH SINGH Date:
2024.08.27 18:03:35 +0530 partnership firm M/S Raman International nor the partner in M/S Raman International.
13. Moreover, CW-1 Usha Rani in her cross-examination dated 02.08.2010 admitted that the cheque in question was dishonoured for the reason "outdated/stale". The dishonor memo Ex. CW2/B shows the reason for dishonour of cheque in question to be "instrument outdated/stale". The reply from Bank of Baroda Ex.CW1/F also shows that the cheque in question was dishonoured because the same was a stale instrument, and it is stated in the same reply Ex. CW-2/B that as per banking norms and rules, the cheque in question was stale and not valid, and that Bank of Baroda was bound to return the stale cheque.
14. Further, none of the bank witnesses who were examined during trial had disputed the above-mentioned reply Ex. CW2/B from Bank of Baroda or stated that the above reply from Bank of Baroda was incorrect. Further, the statement of account of M/s Raman international Ex. CW2/G also shows that the cheque in question was dishonoured due to the reason instrument outdated/stale.
15. Therefore, based on the above evidence, this Court is of the view that one of the essential conditions of section 138 of NI act that the cheque has to be presented within the period of validity has not been fulfilled in the present case. Therefore, the present case is not maintainable against all the accused persons.
Ct Case No. 55876/2016 Usha Rani Vs. Sardar Moti Singh Etc. Page 8 of 9
Digitally
signed by
BHANU
BHANU PRATAP
PRATAP SINGH
Date:
SINGH 2024.08.27
18:03:44
+0530
Conclusion:
16. Based on the evidence on record and the defence taken by the accused no. 03 Jasmeet Kaur, this Court has arrived to the conclusion that the accused no. 03 Jasmeet Kaur has proved her defence that she was not a partner in the partnership firm M/s Raman International. Further, complainant has failed to prove her case against all the accused persons. Therefore, the accused 03 Jasmeet Kaur, accused no. 04 Raman International and accused no. 02 Baljeet Singh (Absconder) are not guilty for the offence punishable u/s 138 of NI Act. Therefore, the 03 Jasmeet Kaur, accused no. 04 Raman Interntional and accused no. 02 Baljeet Singh (Absconder) stand acquitted.
BHANU Digitally signed by
BHANU PRATAP SINGH
PRATAP Date: 2024.08.27
SINGH 18:03:53 +0530
Announced in the open Court (BHANU PRATAP SINGH)
on 27.08.2024 JMFC-02 (East), KKD Courts, Delhi
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