Delhi District Court
Arunachal Timber Traders Pvt Ltd vs Alfa Pacific Engineers Pvt Ltd on 28 February, 2024
In the Court of Ms. Neha Goel, Metropolitan Magistrate, N.I. Act-02,
Central, Tis Hazari Courts, Delhi.
CC No. 531879/2016
CNR No. DLCT020067892016
ARUNACHAL TIMBER TRADERS PVT. LTD. Vs. ALFA PECIFIC
ENGINEERS PVT. LTD.
U/s 138 N. I. Act
PS PRASAD NAGAR
JUDGMENT
1 Sl. No. of the case 531879/2016
2 Date of institution of the 04.04.2015
case
3 Name of complainant Arunachal Timber Traders Pvt. Ltd. B-116
Mansarovar Garden New Delhi 110015
Through AR Mayur Aggarwal
4 Name of accused, parentage 1. M/s Alpha Pecific Engineers Pvt. Ltd. and address through Director Pradeep Kumar.
2. Pradeep Kumar, Director, M/s Alpha Pecific Engineers Pvt. Ltd.
3. Pramod Kumar, Director, M/s Alpha Pecific Engineers Pvt. Ltd.
5 Offence complained of Section 138 Negotiable Instruments Act 6 Plea of accused All accused pleaded not guilty 7 Final order Accused M/s Alpha Pecific Engineers Pvt.
Ltd., Pradeep Kumar and Pramod Kumar are convicted 8 Date of pronouncement 28.02.2024 NEHA CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 1 of 16 GOEL Digitally signed by NEHA GOEL Date: 2024.02.28 15:45:05 +0530
1. The present complaint has been filed by the complainant against the accused under Section 138 Negotiable Instruments Act, 1881.
2. Factual Matrix: The brief facts as alleged by the complainant in the complaint are that the complainant is a Private Limited Company incorporated under the Companies Act, 1956 having its registered office at B-116, Mansarovar Garden, New Delhi-110015. Accused persons no. 2 and 3 on behalf of accused no. 1 approached the complainant for purchase of Timber and Plywood to be delivered at site of accused persons at C/o Epitome Real Tech Pvt. Ltd. at Meerut One, 70 KM Milestone, NH-58 Bypass, Modipuram, Meerut (UP). Complainant supplied the timber and Plywood which were delivered at site of accused persons at C/o Epitome Real tech Pvt. Ltd at Meerut One, 70 KM Milestone, NH-58 Bypass, Modipuram, Meerut (U.P.) vide invoices no. 072 dated 30.07.2014, 073 dated 30.07.2014 and 118 dated 12.08.2014. In order to discharge its liability of purchasing Timber and Plywood, the accused persons had issued cheques bearing nos. 1. 622726 dated 22.10.2014 drawn on Indian Bank, Hauz Khas, Delhi -110016 amounting to Rs. 2,86,145/- 2. 622727 dated 02.11.2014 drawn on Indian Bank, Hauz Khas, Delhi -110016 amounting to Rs. 2,64,384/- and 3. 622736 dated 27.10.2014 drawn on Indian Bank, Hauz Khas, Delhi -110016 amounting to Rs. 7,70,945/- in favour of complainant towards part payment of amount due and outstanding with assurance that same will be honoured on their presentation. All cheques were presented on 21.01.2015 by complainant to his banker at Indian Overseas Bank, Branch Rajender Place, New Delhi. All the cheques were returned unpaid due to the reasons "Payment Stopped" vide return memos dated 22.01.2015. Accused no. 2 and 3 are signatories of these cheques and also directors of Accused no.1 and in charge and responsible for the conduct of the business of Accused no. 1 and were supposed to ensure the Digitally CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 2 of 16 signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:45:14 +0530 encashment of said cheques. Complainant got issued legal notice dated 20.02.2015 to the accused persons vide Registered AD, demanding the Accused persons to pay the amount of the dishonored cheques totaling Rs.13,21,474/-. The notice was duly delivered on 24.02.2015 to the accused persons and acknowledged by the accused persons but they still did not pay up the said amount. Accused no. 2&3 had acted as Director of Accused No.1 and personally dealt with this matter at all stages hence, they are personally liable for all the acts of Accused No.1. Hence, the present complaint u/s 138 Negotiable Instrument Act 1881 was filed by the complainant, praying for the accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The complainant has averred that the present complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
3. Pre-summoning Evidence: To prove a prima-facie case, the complainant led pre-summoning evidence by way of affidavit Ex. CW1/A on 07.04.2015 wherein the complainant has affirmed the facts stated in the instant complaint.
4. Documentary Evidence: To prove the case, the complainant has relied upon the following documents:
a. Copy of Certificate of Incorporation- Ex. CW1/1. b. Copy of the Board Resolution dated 18.02.2015- Ex. CW1/2. c. Invoices and statement of accounts maintained by complainant of company of accused persons- Ex. CW1/3 colly. d. Original cheque bearing no. 622726 dated 22.10.2014 for an amount of Rs. 2,86,145/- drawn on Indian Bank, branch Hauz Khas (Cheque in question)- Ex. CW1/4.
NEHA GOEL CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 3 of 16 Digitally signed by NEHA GOEL Date: 2024.02.28 15:45:23 +0530 e. Original cheque bearing no. 622727 dated 02.11.2014 for an amount of Rs. 2,64,384/- drawn on Indian Bank, branch Hauz Khas (Cheque in question)- Ex. CW1/5.
f. Original cheque bearing no. 622736 dated 27.10.2014 for an amount of Rs. 7,70,945/- drawn on Indian Bank, branch Hauz Khas (Cheque in question)- Ex. CW1/6.
g. 03 Original return memos dated 22.01.2015- Ex. CW1/7 colly. h. Office copy of legal demand notice dated 20.02.2015- Ex. CW1/8. i. 03 Original postal receipts dated 20.02.2015- Ex. CW1/9 colly. j. 03 Tracking reports- Ex. CW1/10 colly.
5. Summoning of the Accused: On finding of a prima-facie case against the accused persons, accused no. 1 company M/s Alpha Pecific Engineers Pvt. Ltd., accused no. 2 Pradeep Kumar and accused no. 3 Pramod Kumar were summoned on 07.04.2015. Accused persons appeared through counsel on 17.05.2018.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against all accused on 07.12.2019 to which he pleaded not guilty and claimed trial.
a. The plea of defence of the accused was recorded where the accused no. 1 through accused no. 2 had stated that "I have signed the cheques in question. The cheques in dispute were handed over to the complainant from our accounts department. None of the particulars in the cheques in question were filled by me. They were filled by our accountant. Address mentioned on the legal demand notice is our office address. I did not receive the legal demand notice from the complainant. I have no liability towards the complainant. I purchased goods from the complainant company to manufacture wooden door frames. However, 80% of goods Digitally CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 4 of 16 signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:45:31 +0530 supplied by the complainant was bent wood. Therefore, we issued stop payment instructions to our bank. We tried to contact the complainant many times. I suffered huge losses since the complainant did not replace the wood".
b. The plea of defence of the accused was recorded where the accused no. 2 had stated that "The cheques in question bear my signatures. The cheques in dispute were handed over to the complainant from our accounts department. None of the particulars in the cheques in question were filled by me. They were filled by our accountant. Address mentioned on the legal demand notice is our office's address. I did not receive the legal demand notice from the complainant. I have no liability towards the complainant. I purchased goods from the complainant company to manufacture wooden door frames. However, 80% of goods supplied by the complainant was bent wood. Therefore, we issued stop payment instructions to our bank. We tried to contact the complainant many times. I suffered huge losses since the complainant did not replace the wood".
c. The plea of defence of the accused was recorded where the accused no. 3 had stated that "The cheques in question bear my signatures. The cheques in dispute were handed over to the complainant from our accounts department. None of the particulars, in the cheques in question were filled by me. They were filled by our accountant. Address mentioned on the legal demand notice is our office's address. I did not receive the legal demand notice from the complainant. I have no liability towards the complainant. I purchased goods from the complainant company to manufacture wooden door frames. However, 80% of goods supplied by the complainant was bent wood. Therefore, we issued stop payment CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 5 of 16 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:45:38 +0530 instructions to our bank. We tried to contact the complainant many times. I suffered huge losses since the complainant did not replace the wood".
7. Evidence of the Complainant: Matter was put up for CE. Right to CE was closed vide order dated 05.03.2022 as accused persons failed to conduct CE despite multiple opportunities. Matter was put for recording statement of accused u/s 281/313 CrPC.
8. Statement of the Accused: Statement of the accused persons were recorded u/s 313 Cr.P.C. on 22.04.2022 wherein all the incriminating circumstances appearing in evidence against the accused persons were put to them and they were asked to explain the same.
a. Accused no. 1 through accused no. 2 has stated that "The cheque(s) in question bears my signatures but I have not filled up the other particulars in the cheque(s) in question. I have not received the legal demand notice from the complainant. The address mentioned on the legal demand notice is my correct address. We had purchased wooden frame from the complainant. The cheque was issued as security for the same. The 80% of the goods were defective and bent. The complainant refused to replace the defective goods so I issued stop payment instructions to my bank. I have some liability towards the complainant". b. Accused no. 2 has stated that "The cheque(s) in question bears my signatures but I have not filled up the other particulars in the cheque(s) in question. I have not received the legal demand notice from the complainant. The address mentioned on the legal demand notice is my correct address. We had purchased wooden frame from the complainant. The cheque was issued as security for the same. The 80% of the goods were defective and bent. The Digitally CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 6 of 16 signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:45:46 +0530 complainant refused to replace the defective goods so I issued stop payment instructions to my bank. I have some liability towards the complainant".
c. Accused no. 3 has stated that "The cheque(s) in question bears my signatures but I have not filled up the other particulars in the cheque(s) in question. I have not received the legal demand notice from the complainant. The address mentioned on the legal demand notice is my correct address. We had purchased wooden frame from the complainant. The cheque was issued as security for the same. The 80% of the goods were defective and bent. The complainant refused to replace the defective goods so I issued stop payment instructions to my bank. I have some liability towards the complainant".
9. Defence Evidence: Matter was put up for DE. DE was closed vide order dated 07.09.20222 as no DE was led by accused persons. Matter was put up for final arguments. At this stage, matter was received by way of transfer by the Court of undersigned on 09.10.2023 from the Court of Sh. Chandra Bose, Special Court, NI Act, Central District, Tis Hazari Court, Delhi vide Order dated 19.09.2023 of Sh. Siddhartha Malik, Ld. CMM, Central District, Tis Hazari Court, Delhi.
10. I have heard the submissions of the Ld. Counsel for the complainant as well as the accused. Ld. Counsel for complainant has placed reliance on Guneet Bhasin Vs. State NCT of Delhi and Anr. (2022 SCC OnLine Del 3967). Ld. Counsel for accused has placed reliance on Ravinder Singh @Kaku Vs. State of Punjab, Criminal Appeal No. 1307 of 2019, decided by Hon'ble Apex Court on 04.05.2022 and Rajinder Singh Verma Vs. Haji B.K. Hanchnmani, Cr. Appeal No. 582 of 2017 decided by Hon'ble High Court of Himachal Pradesh on 30.04.2019. Digitally signed by NEHA CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 7 of 16 NEHA GOEL GOEL Date:
2024.02.28 15:45:53 +0530 Appreciation of evidence
11. The legal requirements of Section 138 Negotiable Instruments Act, 1881 are cumulative in nature, i.e. only when all of the following ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under Section 138 of the Negotiable Instruments Act.
12. The first ingredient of Section 138 Negotiable Instrument Act, 1881 is that a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that for the discharge, in whole or in part, of any legally enforceable debt or other liability.
13. The second ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. Second ingredient stands satisfied on a perusal of the original cheque bearing no. 1. 622726 dated 22.10.2014 drawn on Indian Bank, Hauz Khas, Delhi -110016 amounting to Rs. 2,86,145/- 2. 622727 dated 02.11.2014 drawn on Indian Bank, Hauz Khas, Delhi -110016 amounting to Rs. 2,64,384/- and 3.
622736 dated 27.10.2014 drawn on Indian Bank, Hauz Khas, Delhi -110016 amounting to Rs. 7,70,945/- (Cheques in question) and Original Cheque return memos dated 22.01.2015. The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused.
14. The third ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank. Third ingredient stands satisfied as S. 146 of Digitally signed by CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 8 of 16 NEHA NEHA GOEL GOEL Date:
2024.02.28 15:46:00 +0530 the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The cheque return memo on record state that the cheque in question has been returned dishonoured for the reason "payment stopped". Ld. Counsel for accused has argued that cheque return memo is unstamped and cannot be read in evidence. It has been held by Hon'ble High Court of Delhi in Guneet Bhasin (supra) that "9. The cheque return memo is a memo informing the payee's banker and the payee about the dishonour of a cheque. When the cheque is dishonoured, the drawee bank immediately issues a cheque return memo to the payee's banker mentioning the reason for non- payment. The purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo. As per the section 146 of the NI act, the cheque return memo on presentation presumed the fact of dishonour of the cheque unless and until such fact is disapproved. Neither section 138 nor the section 146 of the NI act has prescribed any particular form of cheque return memo. The section 138 of the NI Act does not mandate any particular form of cheque return memo which is nothing but a mere information given by the Banker of the due holder of a cheque that the cheque has been returned as unpaid. If the cheque return memo is not bearing any official stamp of the bank, it does not render the cheque return memo as invalid or illegal. The cheque return memo is not a document which is not required to be covered under section 4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the cheque return memo, it does not render entire trial under section 138 of the NI Act as nullity". In view of the above judgment, reliance placed by accused on Rajinder Singh Verma (supra) will not aid the accused. The defence has led no evidence to controvert the presumption u/s 146 NI Act. Hence, this ingredient is also fulfilled as against the accused.
Digitally CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 9 of 16 signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:46:08 +0530
15. The fourth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid. As regards the fourth ingredient, the complainant has stated that he has sent the legal demand notice dated 20.02.2015 to accused. The original postal receipt dated 20.02.2015 in respect of the same is already on record. All accused persons have stated in notice u/s 251 CrPC that they have not received legal demand notice but the address mentioned on the notice is their office address. It has been held by the Hon'ble Supreme Court of India in 'C.C. Alavi Haji v. Palapetty Muhammed & Anr.' [(2007) 6 SCC 555] -
"8. ... It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "G.C. Act") could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service".
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 under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not Digitally CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 10 of 16 signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:46:16 +0530 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. ...". (emphasis supplied)
16. In the evidence affidavit of the complainant, the legal demand notice has been stated to have been served upon the accused on the said address and for the proof of which, original postal receipt dated 20.02.2015 has been tendered in evidence on behalf of the complainant. Further, no evidence whatsoever was led from the side of the accused to rebut the presumption of service. Therefore, the said ingredient stands fulfilled as against the accused.
17. The fifth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice. Fifth ingredient stands satisfied as accused has not paid the amount due under the cheque in question within the statutory period on the ground that he does not owe any liability towards the complainant, Hence, this ingredient stands fulfilled as against the accused.
18. Thus, the only ingredient which remains to be proved is the first ingredient which is the main bone of contention between the parties. The first ingredient relates to the issuance of the cheque itself. The provision of Section 138 Negotiable Instruments Act, 1881 is buttressed by Section 139 Negotiable Instruments Act 1881 and Section 118 of the Negotiable Instruments Act 1881.
NEHA CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 11 of 16 GOEL Digitally signed by NEHA GOEL Date: 2024.02.28 15:46:23 +0530
19. Section 139 of the Negotiable Instruments Act 1881 provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. Reliance is placed on Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16.
20. Section 118 of the Negotiable Instruments Act 1881 provides inter alia that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
21. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. Presumption mandated by Section 139 of the Negotiable Instruments Act, 1881 include the existence of a legally enforceable debt or liability. The presumptions u/s 139 of the Negotiable Instruments Act 1881 and Section 118 of the Negotiable Instrument Act 1881 mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume" used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary. When an Accused has to rebut the presumption under Section 139 Negotiable Instruments Act, 1881, the standard of proof for doing so is that of "preponderance of probabilities". The Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own. Reliance is placed on Rangappa v. Sri Mohan, (2010) 11 SCC 441. Similar has been held in Kalamani Tex Vs. P. Balasubramanian, (2021) 5 SCC 283.
Digitally signed by CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 12 of 16 NEHA NEHA GOEL GOEL Date:
2024.02.28 15:46:30 +0530
22. First condition pertains to the issuance of the cheque itself. It is pertinent to note that the accused persons in notice framed u/s 251 CrPC have stated that cheques in question bear their signature. Further, the cheques have been drawn on the account of the accused. This leads to drawing of an inference u/s 139 Negotiable Instruments Act 1881 read with s.118 of the Negotiable Instruments Act 1881, that the cheque was issued in discharge of a legally recoverable debt or other liability.
Reliance is placed on Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal, (1999) 3 SCC 35.
23. The presumption now having been raised against the accused persons, it falls upon them to rebut it. The accused persons have not led any evidence to rebut the presumptions raised against them.
24. All accused have stated in notice u/s 251 CrPC and statement u/s 281/313 CrPC that the cheques in dispute were handed over to the complainant from accounts department as security cheques. They purchased goods from the complainant company to manufacture wooden door frames. However, 80% of goods supplied by the complainant was bent wood. Therefore, they issued stop payment instructions to their bank. They tried to contact the complainant many times but the complainant refused to replace the defective goods. They suffered huge losses since the complainant did not replace the wood. While it has been stated in notice u/s 251 CrPC that there exists no liability towards the complainant, it has been stated in statement u/s 281/3131 CrPC that they have some liability towards the complainant.
25. Ld. Counsel for accused has argued that return memos (Ex. CW1/7 colly) cannot be relied upon as the same is unstamped, does not mention name of branch and appears to be forged as signature of bank official is in red ball pen whereas all other particulars upon it are written in blue ink Digitally CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 13 of 16 signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:46:36 +0530 pen. It has been further argued that bank official has not been examined by the complainant to prove the return memo. The aspect of validity of unstamped return memo has already been discussed above and found untenable. Perusal of return memos show no infirmity as the same are original and all requisite particulars are clearly stated in the return memos. All return memos have been filled in blue ink. There is no requirement of calling bank official to prove return memos in each and every case. Accused persons never made any efforts to examine bank official to disprove the bank return memos despite the burden of presumptions upon them. Therefore, all contentions of accused persons qua validity of return memos are rejected.
26. Ld. Counsel for accused has argued that original of invoice no. 118 and original of transportation bill bearing GC No. 4277 have not been filed by complainant and, therefore, cannot be relied upon. No objection as to mode of proof has been taken by Ld. Counsel for accused qua these documents as he failed to lead evidence despite opportunities. Therefore, it will amount to admission of the said documents as have been filed by the complainant.
27. Ld. Counsel for accused has argued that tracking report and ledger cannot be relied upon as Certificate u/s 65 B of the Evidence Act, 1872 has not been filed. Reliance has been placed on Ravinder Singh (supra). No objection as to mode of proof has been taken by Ld. Counsel for accused qua these documents as he failed to lead evidence despite opportunities. Therefore, it will amount to admission of the said documents as have been filed by the complainant.
28. Ld. Counsel for accused has argued that the cheques in question were issued as security cheques. It has been held in Sripati Singh Vs. State of Jharkhand & Anr. (2021 SCC OnLine SC 1002) that "17. A cheque issued Digitally CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 14 of 16 signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:46:43 +0530 as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow". In view of the above judgment, this contention stands rejected.
29. On a combined reading of statement made by accused persons u/s 251 CrPC and 313 CrPC, it is clear that accused persons have admitted that they had entered into the transaction as alleged by the complainant. At the same time, they have failed to lead any evidence regarding the fact that defective goods were supplied to them to rebut the presumption raised against them. Prima facie, there is nothing in the complaint of the complainant which arises doubt upon the case of the complainant. Accused persons have, thus, failed to rebut the presumption raised against them.
30. Considering the evidence affidavit of the complainant on the whole, this Court is of the considered opinion that complainant has been able to prove his case. Accused persons have not been able to dislodge the Digitally signed by CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 15 of 16 NEHA NEHA GOEL GOEL Date:
2024.02.28 15:46:54 +0530 presumption of legally enforceable debt in favour of the complainant qua the cheques in question.
31. From the foregoing discussion, it is clear the accused persons have failed to rebut the presumptions under Sections 118 and 139 of NI Act. On the other hand, the complainant has been able to prove that the cheque in questions were issued by the accused persons in discharge of a legally recoverable debt/liability owed to him, with the aid of presumptions of law raised in his favour. All the ingredients of Section 138 NI Act stand cumulatively satisfied against accused persons and in favour of the complainant. Therefore, in the considered opinion of this Court, accused no. 1 company M/s Alpha Pecific Engineers Pvt. Ltd., accused no. 2 Pradeep Kumar and accused no. 3 Pramod Kumar are held guilty of offence punishable under Section 138 of NI Act and are hereby convicted for the same.
32. Let they be heard on the point of sentence separately.
Digitally ANNOUNCED IN OPEN COURT ON 28.02.2024. signed by NEHA NEHA GOEL GOEL Date:
2024.02.28 15:47:01 +0530 (NEHA GOEL) MM (NI ACT)-02, (CENTRAL) TIS HAZARI COURTS/ DELHI CC No. 531879/2016 Arunachal Timber Traders Pvt. Ltd. Vs. M/s Alpha Pecific Engineers Pvt. Ltd. Page 16 of 16