Delhi District Court
Criminal Revision No.10/07 1 Subhash ... vs M/S Tanuk Pharma (India) Ltd on 31 August, 2007
Criminal Revision No.10/07 1 Subhash Sahni Vs
M/s Tanuk Pharma (India) Ltd.
IN THE COURT OF SH. VINOD KUMAR
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Criminal Revision No. 10/07
Sh. Subhash Sahni
S/o Sh. Ram Lal Sahni
R/o Sahni Farms,
Behind D-1, Vasant Kunj,
New Delhi. .....Revisionist
Versus
1.M/s Tanuk Pharma (India)Ltd.
Service to be effected through
it Director/Secretary/Manager
A-11, Kailash Apartments,
Lala Lajpat Rai Marg,
New Delhi-110048.
2.M/s Bhiwani Denim & Apparels Ltd.
(Now in liquidation under the order
of Punjab & Haryana High Court)
Service to be effected through its
Official Liquidator SCO-9,
Second Floor, Sector-26,
Chandigarh. .....Respondents
Date of arguments : 18.8.2007
Date of order : 31.8.2007
ORDER
1. This is a revision petition directed against the judgement dated 28.9.2005 and order on sentence dated Criminal Revision No.10/07 2 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
16.3.2006 passed by Ms Anuradha Shukla, Ld. Metropolitan Magistrate, New Delhi vide which she was pleased to convict the revisionist under Section 138 Negotiable Instruments Act and was sentenced by Ms Anu Grover, Ld. Metropolitan Magistrate to imprisonment till rising of the court. Revisionist was also directed to pay compensation in the sum of Rs.30,00,000/- to the complainant/respondent and in default to pay compensation the revisionist was directed to go imprisonment for six months.
2. Briefly stated the complainant's case is that the respondent is a manufacturer and dealer of chemical products who had business dealing with the accused revisionist. The respondent had advanced Rs.30 lacs to the revisionist vide cheque number 060054 drawn on Punjab National Bank. The revisionist repaid Rs.15 lacs vide cheque no. 113445 dated 18.10.96 drawn on Fedral Bank Limited however balance of Rs.15 lacs remains Criminal Revision No.10/07 3 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
unpaid. Thereafter revisionist issued another cheque of Rs.15 lacs bearing no. 388950 drawn on Federal Bank Limited which got dishonoured with remarks 'Payment stopped by drawer'. Revisionist was informed about the dishonour vide notice under Section 138 (b) of the N. I. Act. The notice was duly served upon the revisionist. However, he did not make the payment despite passage of 15 days time and thereafter the complaint was filed.
3. Notice under Section 251 CrPC was framed to which the revisionist pleaded not guilty.
4. In order to prove its case the respondent examined PW1 Dr. Tarun Bhalla, the Managing Director of M/s Tanuk Pharma Ltd. the respondent. PW2 Kamleshwar Yadav an official from Federal Bank proved the account no. 807 in the name of Bhawani Denim and Apparel Ltd. at 13/7 Mathura Road, Faridabad. This is the company of revisionist. This witness proved that cheque no. 388950 was presented to their bank on 31.7.1998 and the same Criminal Revision No.10/07 4 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
was returned unpaid vide memo Ex.PW1/F dated 1.7.97 due to "stop payment by drawee". He also brought the certified copy of the bank account Ex.PW2/A and B. The cheque in question is worth Rs.15,00,000/-. As per the bank account produced by PW2, after 30.7.1997 till 4.8.1997 the maximum balance in the account of the revisionist's company was Rs.2.46,824/-. Therefore it is clear that the cheque in question was dishonoured due to insufficient funds in the account of the revisionist's company. PW3 Chunni Lal Clerk from Punjab National Bank brought the certified copy of cheque returning memo pertaining to the account of M/s Tanuk Pharma in respect of cheque no. 388950 dated 31.7.1997, which was returned vide memo Ex.PW1/E issued by Punjab National Bank. Complainant examined Sh. Hardeep Singh advocate, who issued the legal notice to the revisionist.
5. In statement under Section 313 CrPC revisionist admitted that he was a Director of M/s Bhiwani Denim and Criminal Revision No.10/07 5 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
Apparels Ltd. but he was only a salaried employee of this company. He feigned ignorance as to whether this company manufactures drugs like cipro floxin etc. He also stated that accounts of complainant were cleared by paying Rs.15,00,000/- plus Rs.1,35,000/-. He took the defence that in fact he had no liability as he had supplied the material demanded form his company.
6. He also took the defence that he never received any legal notice.
7. The revisionist examined DW1 Ramesh Kawra, the accountant of the company of the accused namely Bhiwani Denim. DW2 Gulshan Chopra, Assistant from Punjab & Haryana High Court testified that the petition no. 315 of the year 1998 titled as M/s Tanuk Pharma Ltd. Vs M/s Bhiwani Denim & Apparel Ltd. was finally disposed of on 11.3.1999 and no winding up order was passed in the present case. DW3 Tarkeshwar Shah, Tax Assistant brought the file of M/s Tanuk Pharma and proved balance Criminal Revision No.10/07 6 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
sheet for the year ending 31.3.1997 Ex.DW3/1 and balance sheet of the year ending on 31.3.1998 Ex.DW3/2. DW4 K. G. Mathur Senior Technical Assistant from the office of Registrar of Companies brought the file of M/s Tanuk Pharma Ltd. and proved the copy of balance sheet at 31.3.1997 Ex.DW3/1.
8. It is argued by Ld. Counsel for revisionist that the company of the appellant is under liquidation and therefore he has no control over the working of the company and that since the cheque had been issued by the revisionist on behalf of the company only, the said company is liable to be convicted. It is argued by Ld. Counsel that perusal of cheque Ex.PW1/1 would show that revisionist has signed as an authorized signatory and not as a Director of the company. Therefore revisionist had not signed as the person responsible for the acts of the company. It is further argued by ld. Counsel that Bhiwani Denim & Apparels Ltd. carries on the business of Criminal Revision No.10/07 7 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
making garments as the name suggests and does not deal in pharmaceuticals. Ld. Counsel for revisionist drawn my attention to the cross examination dated 2.6.2001 of PW1 Dr. Tarun Bhalla in which it is admitted by him that M/s Bhiwani Denim & Apparels Ltd. are dealing in cloth. It is argued that the respondent has not proved as to what was the correct transaction between the parties. On the other hand accused has taken a specific defence in cross examination of PW1 that the respondent/complainant had purchased 124 bales of cotton fabrics from the revisionist's company and revisionist had paid Rs.1,35,000/- by cheque on account of non delivery of supply of the clothes.
9. Ld. Counsel for revisionist further argues that there was no service of the legal notice upon him. He has drawn my attention to the receipt Ex.PW1/H1 of the registered letter vide which the legal notice was sent to the revisionist. It is argued that this receipt shows that the Criminal Revision No.10/07 8 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
legal notice was sent at M/s Bhiwani Denim at Mathura Road, Faridabad. It is argued that the registered letter was posted at this address which is an incomplete address of the revisionist's company.
10. I have considered submissions of Ld. Counsel for revisionist. PW1 Tarun Bhalla, the Managing Director of M/s Tanuk Pharma Ltd. testified that they advanced a sum of Rs.30,00,000/- to revisionist's company towards procurement of five tonnes of acetophenone. The same was not supplied by the revisionist and agreed to return the money with interest. Accordingly revisionist gave a cheque dated 18.10.1996 worth Rs.15,00,000/- which was duly honoured. Revisionist also paid interest of Rs.1,35,000/- to complainant in the year 1996 itself. However revisionist issued a cheque Ex.PW1/D for the balance amount of Rs.15,00,000/-. However on presentation the same was dishonoured. Accordingly his Counsel Sh. Hardeep Singh Anand, adv. sent a legal notice Criminal Revision No.10/07 9 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
Ex.PW1/G through registered post UPC and through courier on 12.8.1997. I have seen this legal notice and I find that the correct address of the company of revisionist is written on it. The receipt Ex.PW1/H is very small and therefore it is understandable that the official at post office could not write full address on it. However when the complete address is written on the legal notice Ex.PW1/G, there is no reason to presume that complete and correct address would not have been written on the registered envelope. This has to be considered in light of the fact that the receipt of UPC Ex.PW1/H and receipt of the courier letter Ex.PW1/H3 bear the full and complete address of the company of revisionist. Therefore I do not find any substance in the arguments of revisionist that due to incomplete address, the presumption cannot be raised that revisionist received the legal notice. I have perused the findings of Ld. Metropolitan Magistrate on this point and I do not find any ground to set aside the findings on Criminal Revision No.10/07 10 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
this point.
11. It is argued by Ld. Counsel that the revisionist's company was dealing in the business of garments and never supplied drugs. Ld. Metropolitan Magistrate has dealt with this argument at page 18 and 19 of the impugned judgement. Apart from the reasons given by Ld. Metropolitan Magistrate with which I fully agree, I am of the opinion that it is an admitted case of the revisionist that there was business transaction between his company and complainant's company. Payment of Rs,30,00,000/- in favour of revisionist company by cheque is an admitted fact. Repayment of Rs.15,00,000/- and Rs.1,35,000/- by cheque and cash by revisionist to complainant is also an admitted fact. Issuance of the cheque in question by the revisionist in discharge of the above stated liability is also an admitted fact. The revisionist however submits that he had supplied the material to the complainant and had discharged his liability. He took the defence in his Criminal Revision No.10/07 11 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
statement under Section 313 CrPC in answer to question no.10 that although the fabric was supplied to the complainant and all the accounts were settled between the parties, however, despite receiving the material, the complainant did not return the cheque in question on the ground that the cheque has been misplaced. Therefore in view of the transaction between the parties and the defence of the revisionist, the burden was upon the revisionist/accused to prove that he had actually supplied the material worth Rs.15,00,000/- against the cheque in question to the complainant. Revisionist examined DW1 Ramesh Kawra the accountant of his company. He also admitted that they had received payment of Rs.30,00,000/- from the complainant and had issued two cheques of Rs.15,00,000/- each to the complainant company. He testified that as against the first cheque, the payment was made by the revisionist's company to complainant's company and that they had supplied the Criminal Revision No.10/07 12 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
material worth Rs.13.65,000/- against the cheque to the complainant. However no document has been proved by this witness to show that the material in question was supplied to the complainant's company against the said cheque. Although he has taken a defence that the office is lying sealed and entire relevant record is lying there. He also brought on record one photocopy of Ex.DW1/A but original was never produced in the court. If the company was under liquidation, the revisionist could have brought the official liquidator with the relevant record in the court to prove as to what material was sent to the complainant's company against the cheque in question. Further more the complainant had an opportunity to answer the legal notice in which the transaction in question has been specified. Therefore the testimony of DW1 is not corroborated by any official record of the revisionist's company. Therefore his testimony regarding the nature of transaction and the supply of material is unworthy of Criminal Revision No.10/07 13 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
credence. The complainant's case regarding the nature of the transaction is corroborated by non sending of reply by the revisionist's company to the legal notice. The same is further corroborated by non production of the record of the revisionist's company by the revisionist in his defence. It is pertinent to note that burden to disprove the liability is upon the revisionist. In the present case he has failed ti discharge this burden.
12. Ld. Counsel for revisionist has referred to (2006) 6 Supreme Court Cases 39 and argues that initial burden of proof is upon the accused to rebut the presumption by raising a probable defence. If he discharges this burden, the onus thereafter shifts on to the complainant to prove his case. It is argued by Ld. Counsel that in the present case by giving appropriate suggestions and by examining DW1, the initial burden has been discharged by the revisionist and now the onus has shifted upon the complainant to prove his case. Ld. Counsel for Criminal Revision No.10/07 14 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
revisionist has drawn my attention to this authority in which Supreme Court has held that the burden of proof upon accused is not heavy and he can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence.
13. I fully agree with Ld. Counsel for revisionist on the point of law. However I am of the opinion that the initial burden could have been discharged by the revisionist by showing that some material amounting to Rs.15,00,000/- was given to the complainant company after issuing the cheque in question but before its dishonourment. The revisionist has brought nothing on record rather has withheld the record of company and has not produced the same in the court. Therefore the revisionist was unable to discharge his initial burden. In the judgement referred by Ld. Defence Counsel, the defence accused was that the cheque in question was issued as a security. The self defence was found probable because the complainant Criminal Revision No.10/07 15 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
could not show by producing the prescribed books accounts. In the present case however the situation is totally different. The revisionist admits that the cheque in question was issued by the complainant to him and that as a consideration he had even supplied the material. As soon as the revisionist/accused produces any proof of supply of material worth Rs.15,00,000/-, the burden would shift upon the complainant/respondent to prove his case by producing his own record.
14. Further more the respondent's testimony is corroborated by non sending of reply to the legal notice by revisionist, whereby he could take the defence in the very beginning about the nature of the transaction and about misusing the cheque. It is pertinent to note that in the above quoted judgement of the Supreme Court, the accused had given a reply to the legal notice. More over the revisionist has also failed to discharge his initial burden, whereas the complainant has proved that cheque Criminal Revision No.10/07 16 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
in question was issued against a liability and for a consideration to the revisionist which was dishonoured for want of sufficient funds in the bank account of the revisionist.
15. It is argued by Ld. Counsel for the revisionist that revisionist is not the person responsible for day to day working of M/s Bhiwani Denim & Apparels Ltd. I disagree with Ld. Counsel for revisionist. In his testimony PW1 has testified that revisionist is the Managing Director of M/s Bhiwani Denim & Apparels Ltd. In cross examination this fact has not been controverted. In statement under Section 313 CrPC he admitted that he was a Director of this company. DW1 the accountant of this company produced by the revisionist nowhere states that revisionist was not the person responsible for day to day working of the accused company. Therefore I do not find any force in this argument.
Criminal Revision No.10/07 17 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
16. It is argued by Ld. Counsel for revisionist that there are no minutes of Board of Directors of the complainant's company which authorizes the authorize representative to prosecute the case. I am of the opinion that this objection should have been taken at the very initial stages. Further more extract from the minutes of the Board of Directors Ex.PW2/A authorizes one Dharmender Kumar to file the criminal complaint. Even if there is some defect in this authorization, the same cannot be looked into at revisional stage. It is not the case that complainant company is not prosecuting the revisionist.
17. In view of the above discussions, I do not find any illegality or infirmity in the impugned judgement and order on sentence passed by Ld. Metropolitan Magistrate. The revisionist was sentenced to imprisonment till rising of the court and a compensation in the sum of Rs.30,00,000/-. It was ordered that in default of payment of compensation the convict shall undergo imprisonment for six months. Criminal Revision No.10/07 18 Subhash Sahni Vs M/s Tanuk Pharma (India) Ltd.
Since the compensation has not been paid till date, the revisionist is taken to custody to undergo the simple imprisonment for six months.
18. Copy of order along with trial court record be returned. Revision file be also consigned to record room. Announced in the open court on 31.8.2007.
(VINOD KUMAR) Additional Session Judge Patiala House Courts New Delhi