Delhi District Court
Rajeev Aggarwal vs . M/S Pashupati on 8 August, 2014
IN THE COURT OF MS. MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
NORTHWEST, ROHINI: DELHI
Unique ID No. 02404R0451142006
CC No. 234/1/06
Rajeev Aggarwal
Proprietor of
M/s Aarti Agro Industries,
O/o 99/3, G.T.K. Road,
Shree Ram Dharm Kanta,
Alipur,
Delhi110036.
Through its Authorised Representative
Sanjeev Aggarwal S/o Sh. MC Aggarwal ............Complainant
V/s
1. M/s Pashupati Poultries
Village Ram Nagar,
Via Pipli Khera More,
Sonipat, Haryana
2. Anil Anand (Partner)
R/o F22/57, Sector3,
Rohini, Delhi85. ................Accused
JUDGMENT
(1) Name of complainant, Rajeev Aggarwal
parentage & address Proprietor of
Rajeev Aggarwal V. M/s Pashupati Poultries
M/s Aarti Agro Industries,
O/o 99/3, G.T.K. Road,
Shree Ram Dharm Kanta,
Alipur,
Delhi110036.
(2) Name of accused persons, 1. M/s Pashupati Poultries
Parentage and address Village Ram Nagar,
Via Pipli Khera More,
Sonipat, Haryana
2. Anil Anand (Partner)
R/o F22/57, Sector3,
Rohini, Delhi85.
(3) Offence complained of or proved: 138 N. I Act
(4)Plea of accused: Pleaded not guilty
(5) Date of institution of case: 04.05.2006
(6)Date of reserve of order: 24.07.2014
(7)Date of Final Order: 08.08.2014
(8) Final Order: Convicted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: That the complainant had supplied the Poultry feeds ingredients to the accused. Accused were paying their liabilities/dues time to time to the Rajeev Aggarwal V. M/s Pashupati Poultries complainant. Accused no. 2 issued the cheques in question from his personal account of HDFC Bank, Branch Community Center, Janakpuri, Delhi, in discharge of the liability on behalf of the accused no. 1, cheque bearing no. 647862 dated 15.02.2006 for sum of Rs. 35,000/, cheque bearing no. 647863 dated 20.02.2006 for sum of Rs. 35,000/, cheque bearing no. 647857 dated 26.10.2005 for sum of Rs. 35,000/, cheque bearing no. 647860 dated 20.02.2006 for sum of Rs. 35,000/ and cheque bearing no. 647861 dated 18.02.2006 for sum of Rs. 35,000/. The complainant presented the above said cheques in his bank as per the direction of accused, but the same were dishonoured with remarks "Account Closed" vide bank return memo dated 21.02.2006. The complainant was having no option except to serve the legal notice. Legal notice has been served to the accused by the complainant on 23.03.2006 through Registered post and UPC. The legal notice sent to accused no. 1 returned back with the remarks "firm is closed, nothing is on this address". The notice sent to the accused no. 2 was duly served upon the accused and the acknowledgment card was received back by the Ld. Counsel of the complainant but accused has failed to make the payment of dishonoured cheques despite service of legal notice. Thereafter complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished accordingly to law.
3. In his presummoning evidence, complainant has examined himself on affidavit. He reiterated the contents of complaint and placed on record the original cheque bearing no. 647862 dated 15.02.2006 for sum of Rs. 35,000/ as Ex. CW1/1, cheque bearing no. 647863 dated 20.02.2006 for sum of Rs. 35,000/ as Ex. CW1/2, cheque bearing no. 647857 dated 26.10.2005 for sum of Rs. 35,000/ as Ex. CW1/3, cheque bearing no. 647860 dated 20.02.2006 for sum of Rs. 35,000/ as Ex. CW1/4 and cheque bearing no. 647861 dated 18.02.2006 for sum of Rs. 35,000/ as Ex. CW1/5, original cheque returning memo dated 21.02.2006 as Ex. CW1/6, Legal demand notice dated 23.03.2006 as Ex. CW1/7, postal receipt as Ex. CW1/8, UPC receipt as Ex. CW1/9, legal notice returning envelope as Ex. CW1/10 and acknowledgment card as Ex. CW1/11.
Rajeev Aggarwal V. M/s Pashupati Poultries
4. Accused was summoned for an offence punishable u/s 138 of Negotiable Instruments Act and notice u/s 251 Cr.PC for this offence was framed upon him to which he pleaded not guilty and claimed trial.
5. In his post notice evidence, complainant filed an affidavit Ex. PW1/A towards his examination in chief and during cross examination he deposed that he was dealing with the accused since the death of the brother of the accused namely Sh. Ajay Anand but he does not remember the exact date, month and year. He further stated that the cheques in question were issued by the accused no.2 being the partner of accused no.1. and he does not remember the highest cheque amount issued by the accused. He accepted that he issued the notice for a cheque of Rs.20 lacs to the accused and the cheque for Rs.20 lacs was prior to the cheque dates of the present complaint. He also accepted that no litigation has been filed in respect of the said cheque and he voluntarily stated that as the cheque was signed by the deceased Ajay Anand and for that reason, no litigation was instituted. He further stated that the accused was not informed prior to the presenting the cheques in three complaints. He also stated that the alteration in cheque Ex. CW1/3 has not been made by him and the amounts of the cheques in question have been mentioned in the relevant Income Tax Returns. He accepted that he has not mentioned the details of bills, the amount due and their date in the legal notice and stated that the dates in the cheques were not filled by him. He also accepted that the total amount of bills is Rs.23,09,480.04 for the year 200405 and the cheques in question are not mentioned in the bill brought by him and further stated that in his audited balance sheet, Rs.29,44,907/ is due against Pashupati Poultries. He further stated that he had not filed any civil or criminal case against the Pashupati Poultries for Rs.29,44,907/ and present three cases are also against Rs.29,44,907/ and accepted that there is a difference between the outstanding amount includes the previous outstanding balance as on 30.03.2002. He also accepted that there are no signatures of the accused on the bills brought by him in the court and voluntarily stated that bills are signed by the carrier/ Rajeev Aggarwal V. M/s Pashupati Poultries transporter.
6. Thereafter, statement of accused under section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to the accused to which he has stated that the cheques in question bear his signatures and same were given towards security as undated cheques and payment of few cheques given to the complainant were cleared and cash was also given in lieu of cheques to the complainant subsequently.
7. Accused no.2 examined himself as defence witnesses in his defence. Anil Anand deposed that he became a partner in the firm M/s Pashupati Poultries after the death of his brother in the year 2003 and he does not have any personal liability against the complainant.
During his crossexamination, he accepted that the undated cheques were issued by him in discharge of liability of firm as the principle account of the firm was blocked temporarily, thus the said cheques were issued from personal account and the five cheques which were not honoured by his bank were bearing no. 647857, 647860, 647861, 647862 & 647863. He further submitted that against cheques bearing no. 647857 & 647860 cash amount of Rs. 70000/ were paid to the complainant but he does not have any cash receipt of the same. He also accepted that the amount of 03 cheques is due on his part/the firm.
8. After closing of Defence Evidence, oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
9. Following submissions were made on behalf of complainant: • That the complainant had supplied the poultry feeds ingredients to the accused and in discharge of their liability accused had issued the cheques in question to the complainant which were dishonoured.
• That the main defence of the accused was that the cheques were issued in Rajeev Aggarwal V. M/s Pashupati Poultries 2004 and the cheques were given as a security and payment of few cheques given to the complainant were cleared and cash and cheques in lieu of the cheques were also given to the complainant subsequently. • That accused also took defence that cheque bearing number 647857 has been altered in the year of date and the accused has no personal liability towards the complainant for any of the cheque.
• That in cross examination of the complainant the accused failed to brought any relevant fact on record in regard to this matter or in their defence.
• That during the cross examination of the accused he accepted that all the ten cheques were issued by him and the amount in the cheques were filled by him.
• That the accused had failed to produce any cash receipt regarding the payment towards the cheques bearing number 647857 and 647860. • That in these facts and circumstances the accused have admitted their liability against the cheques in question and onus is upon the accused to prove that amount of the cheque in question was either paid or their there is no such liability to pay such amount.
• That in the present case the accused has already accepted the liability of the three cheques further accused has failed to prove the payment made regarding the cheques bearing number 647857 and 647860 in cash. • That the alteration in the cheque Ex. CW1/3 was not the defence of the accused, however this was not the reason for the dishonour of the said cheque.
• That once the accused has submitted that the cheques were given undated then it is immaterial that the alteration in the date was made. • That it comes in evidence of the complainant that the bills brought in the court and income tax return/ balance sheet of the complainant shows that there are dues of Rs.29,44,907/ against the Pashupati Poultries that is the accused firm.
Rajeev Aggarwal V. M/s Pashupati Poultries
10. Per contra, following submissions were made on behalf of accused: • That all the cheques were materially altered.
• That all the cheques were undated and were deposited without knowledge of the accused persons after approximately one year of closing of the firm. • That out of total ten cheques given in the month of September and October,2004, five cheques were encashed by the accused bank and two were paid in cash at the time of balance payment of three cheques was encashed through principal account of the firm.
• That the accused demanded all the cheques returned at that time, but the complainant linger on the matter and told that he was searching the said cheques and whenever he will find the same, he will return the same. • That one another notice for unknown cheques of Rs.20 lacs was served to the accused which he later admitted in his cross examination that the said cheque was lying with him since year 2000 which was issued by Ajay Anand and was not in the knowledge of Anil Anand.
• That the ink and writing on the dates of all the cheques is different. • That the cheque number 64787 was altered by complainant making the year 200405.
• That all the cheques were deposited without any information to accused. • That no confirmation from the accused qua the amount of Rs.29 lacs claimed by the complainant in his balance sheet although the complainant has not mentioned this fact in any of his notices, complaints or statements, so this is a totally a false and fabricated story.
• That the alterations on the dates of the cheques, can be verified by the expert opinion.
11. Before appreciating the facts of the case in detail for the purpose of decision let relevant position of law be discussed first: As present complaint is under section 138 of Negotiable Instrument Act, there are three ingredients as follows held by the Hon'ble Supreme Court of India in Krishna Janardhan Bhat v. Dattatraya G. Hegde : AIR 2008 SC 1325.
Rajeev Aggarwal V. M/s Pashupati Poultries Section 138 of the Act three ingredients, viz.:
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
12. When the above ingredients are fulfilled, the Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118(a) and section 139 of the said act are read as under:
Sec. 118 Presumption as to Negotiable Instruments : Untill the contrary is proved, the following presumptions shall be made:
(a) of consideration that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transfered, was accepted, endorsed, negotiated or transferred for consideration;
Rajeev Aggarwal V. M/s Pashupati Poultries Sec. 139. presumption in favour of 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.
13. For the offence under sec. 138 N.I. Act, the presumptions under section 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under section 118 and 138 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
14. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. Hon'ble Supreme Court in Krishnajanardhan Bhat (supra) held that standard of proof on the part of an accused and that of the prosecution in a criminal case is different. Court also held that prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies.
15. I have perused the entire record and have given due considerations to the submissions made on behalf of the parties. In the present case the signatures on the cheques in question have been accepted by the accused. The defence of the Rajeev Aggarwal V. M/s Pashupati Poultries accused is that out of the five cheques in question he has made payment towards two cheques bearing number 647857 & 647860, however he has failed to show any receipt for the payment. Regarding the remaining three cheques he himself has accepted his liability. One more defence raised by the accused is that there is alteration in date in cheque Ex. CW1/3. However during trial he himself has stated that he gave undated cheques. Hence no question of alteration in date arises.
16. In addition to this, law regarding the blank signed cheque is very clear. Section 20 of Negotiable Instrument Act, 1881, is quoted herewith: Section 20 of N.I. Act declares that inchoate instruments are also valid and legal enforceable. In the case of a signed blank cheque, the drawer gives authority to the drawee to fill up the agreed liability.
17. In view of the above, this court is of the considered opinion that accused has not rebutted the presumption in favour of complainant as he has taken contradictory defences in his trial and hence, his version is not believable in toto. Therefore, complainant has proved his case beyond reasonable doubt.
18. As the complainant has proved its case beyond reasonable doubt, therefore, accused is being convicted for the offence under section 138 of Negotiable Instrument Act on behalf of himself and on behalf of accused number 1.
19. Let the accused be heard on point of sentence.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
th
TODAY i.e, 8 day of August, 2014 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
Rajeev Aggarwal V. M/s Pashupati Poultries
IN THE COURT OF Ms. MEENU KAUSHIK, MM, NORTHWEST,
ROHINI COURTS, DELHI.
CC No. 234/1/06
Rajeev Aggarwal Vs. M/s Pashupati
19.08.2014
ORDER ON SENTENCE
Present: Complainant with Ld. Counsel Sh. SK Saha.
Accused no. 1 is partnership firm.
Accused no. 2 with Ld. counsel Sh. Vinod Kumar and Sh. Sanjay.
Arguments heard on the point on sentence. It is stated by the counsel for the convict that convict is the only breadwinner in his family and suffering from physical disabilities after accident and is suffering from various ailments. Therefore lenient view may be taken.
Ld. Counsel for the complainant has submitted that the matter pertains to the year 2006 and relates to business transaction and the accused has defrauded him as cheques in question were dishonored.
I have heard the submissions and carefully perused the record. Complaint regarding present cheques in question is pending since 2006 and the same relates to business transaction between the parties. I am not inclined to grant the benefit of probation of Offenders Act as the matter pertains to the year 2006 and cheque bouncing cases are on high rises and releasing the accused on probation would not have deterrent effect in the society.
Considering the totality of circumstances, convict is sentenced for simple imprisonment for six months and is further ordered to pay compensation to the complainant for an amount of Rs. 3,00,000/ (Rs. three lakhs Only) u/s. 357(3) Cr. P.C. In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 3 months.
Rajeev Aggarwal V. M/s Pashupati Poultries 2 At this stage, an application u/s. 389(3) of Code of Criminal Procedure has been filed on behalf of the convict for suspension of the sentence for a period of one month and for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of one month from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs. 25,000/ with surety of like amount. Requisite bail bonds furnished. Same is accepted till 19.09.14.
Copy of this order be given to the accused free of cost.
Announced in the open (Meenu Kaushik) court on 19.08.14 MM (N/W)/Rohini Courts, Delhi. Rajeev Aggarwal V. M/s Pashupati Poultries