Delhi District Court
Halonix Technologies Pvt. Ltd. vs . Sanjay Taneja on 17 August, 2022
IN THE COURT OF SH. PANKAJ RAI
METROPOLITAN MAGISTRATE 05 (N.I. ACT), ROUSE AVENUE
COURTS : NEW DELHI
CC No. 18539/16
Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja
1. Complaint Case number : 18539/16
2 Name and address of the : Halonix Technologies Private Limited
complainant Through its Authorized Representative
Registered Office at B31, PhaseII, Gautam Budh
Nagar, Noida,
Uttar Pradesh201305.
3. Name and address of the : Sanjay Taneja
accused S/o Sh. Jagdish Taneja
Sole proprietor of Sanjay Electricals Works India
31/9, Indra Vikas Colony near Nirakar Colony,
New Delhi110009.
R/o 10, Dr. Mukherjee Nagar West, New Delhi.
4. Offence complained of : Section 138 of the Negotiable Instruments Act,
1881.
5. Plea of the accused : Pleaded not guilty and claim trial.
6. Final Order : Convicted
7. Date of Institution : 21.04.2016
8. Date of Reserving the : 27.07.2022
Judgment
9. Date of pronouncement : 17.08.2022
Judgment:
1. It is the case of the complainant that the complainant company is a
private limited company (earlier known as Halonix Technologies Limited) duly
incorporated under the provisions of the Indian Companies Act, 1956, and is
engaged in the business of manufacturing, exporting and supplying L.E.D.
Lights, bulbs, street lights, tube lights, CFLs, LED bulbs, Halogens, Lamps,
C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 1/21
HID Lamps, luminaries, ballasts, LED lamps, home decorative lightings, etc.
As per the complaint, the accused after representing himself as sole proprietor
of M/s. Sanjay Electrical Works India, entered into a business relationship with
the complainant company and assured the complainant company to make
timely payment of any goods supplied to the accused. That the accused failed
to honor his assurance of making payments for the said goods supplied to the
accused by the complainant and defaulted in payment for an amount of
Rs.5,99,405/ which was due towards the accused.
2. As per the complaint, to discharge its liability, the accused issued one
cheque Ex.CW1/5 bearing cheque No.950206 dated 23.02.2016 for a sum of
Rs.5,99,405/ (Rupees Five Lakh Ninety Nine Thousand Four Hundred Five
Only) from his account in favor of the complainant. However, the cheque in
question got dishonored on presentation on account of "payment stopped by
drawer" vide returning memo dated 24.02.2016 Ex.CW1/6, constraining the
complainant to send a legal demand notice dated 29.02.2016 Ex.CW1/7 to the
accused, which was delivered to the accused vide postal and courier receipt
Ex.CW1/8 (colly) and its respective tracking report i.e. Ex.CW1/9 (colly).
However, no payment was made to the complainant in stipulated date. Hence,
the present complaint.
3. Being summoned, accused appeared before this court and notice was
framed on 27.02.2017, to which he pleaded not guilty and claimed trial. In his
plea of defence, the accused has submitted in a nutshell that he was the
distributor of the complainant and that he has given two blank signed cheques
to the complainant and that one of such cheque has been misused and that
the complainant has not given credit notes of half of the value of goods under
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replacement given by him to the complainant and that the cheque in question
was not issued in discharge of any liability.
4. To prove his case the complainant company has examined its
Authorized Representative Shashwat Gaur as CW1, who reiterated the
version of the complaint and relied upon the following documents to prove the
liability of the accused :
(a) Ex.CW1/A : Copy of evidence by way of affidavit
(b) Ex.CW1/1 : True copy of Certificate of incorporation of the complainant
company;
(c) Ex.CW1/2 : True copy of fresh certificate of incorporation consequent upon
change of name;
(c) Ex.CW1/3 (Colly) : Certified copy of board resolution, POA dated
23.10.2013 and 04.11.2015.
(d) Ex.CW1/4 (colly) : Computer generated copy of the ledger accounts of the
accused along with certificate under Section 65B of the Indian Evidence Act;
(e) Ex.CW1/5 : Original cheque in question dated 23.02.2016;
(f) Ex.CW1/6 : Original Return memo dated 24.02.2016;
(g) Ex.CW1/7 : Office copy of legal notice dated 29.02.2016;
(h) Ex.CW1/8 : Original postal and courier receipts; and
(i) Ex.CW1/9 : Extract of delivery tracking report;
5. Thereafter, statement of accused was recorded under section 313
Cr.P.C on 01.05.2018 and accused chose to lead DE. Accused examined one
Jasmeeet Ahuja as DW1 and himself as DW2, in his defence. Arguments
heard from both the sides. Case record and written submissions perused.
6. It would be apposite at the stage to briefly discuss law applicable to the
offence of dishonour of cheque. Before a finding of conviction for the offence
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punishable under Section 138 Negotiable Instruments Act (hereinafter, the N.I.
Act) can be returned against the accused, it has to be established,
cumulatively,
(i) that the cheque in question was issued by the accused in favour of
the complainant for the discharge of legally enforceable liability.
(ii) presentation of the cheque to the bank within three months from the
date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) a demand being made in writing by the payee or holder in due
course by the issuance of a notice in writing to the drawer of the cheque within
thirty days of the receipt of information from the bank of the return of the
cheques; and
(iv) the failure of the drawer to make payment of the amount of money to
the payee or the holder in due course within fifteen days of the receipt of the
notice.
7. In the case in hand, the facts of issuing the cheque, signature of
accused on the cheque and receipt of legal demand notice by the accused are
not disputed.
8. In a case under Negotiable Instrument Act, the complainant need not to
prove the existence of liability as once these facts that the cheque in question
belongs to the accused and the signature on the cheque in question are of the
accused are established, a presumption of the cheque having been issued in
discharge of a legally sustainable liability and drawn for good consideration,
arises by virtue of Section 118 (a) and Section 139 of the NI Act. Once
the Section 139 of NI Act comes into picture, the court presumes that the
cheque was issued in discharge, in whole or in part, of any debt or their
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liability. At this stage, with the help of the presumption under Section 139 of
the Act, the case of the complainant stand proved. Reliance is placed upon
judgment of Apex Court in Rangappa Vs. Sri Mohan (2010) 11 SCC 441
9. When the presumption is raised in favor of the complainant, the burden
shifts upon the accused to disprove the case of the complainant by rebutting
the presumption raised in favour of the complainant. Being the rule of reverse
onus, it is the duty on the accused to prove that he does not owe any liability
towards the complainant. The accused can displace this presumption on the
scale of preponderance of probabilities and the lack of consideration or a
legally enforceable debt need not be proved beyond all reasonable doubts.
The accused has to make out a fairly plausible defence which is acceptable to
the court. This the accused can do either by leading own evidence in his
defence, or by raising doubt on the material/evidence brought on the record by
the complainant as held by Apex Court in Kumar Exports Vs. Sharma
Carpets (2009) 2 SCC 513 in following words:
"18. Applying the definition of the word "proved" in Section 3
of the Evidence Act to the provisions of Sections 118 and
139 of the Act, it becomes evident that in a trial under
Section 138 of the Act a presumption will have to be made
that every negotiable instrument was made or drawn for
consideration and that it was executed for discharge of debt
or liability once the execution of negotiable instrument is
either proved or admitted. As soon as the complainant
discharges the burden to prove that the instrument, say a
note, was executed by the accused, the rules of
presumptions under Sections 118 and 139 of the Act help
him shift the burden on the accused. The presumptions will
live, exist and survive and 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. A
presumption is not in itself evidence, but only makes a prima
facie case for a party for whose benefit it exists.
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19. The use of the phrase "until the contrary is proved" in
Section 118 of the Act and use of the words "unless the
contrary is proved" in Section 139 of the Act read with
definitions of "may presume" and "shall presume" as given in
Section 4 of the Evidence Act, makes it at once clear that
presumptions to be raised under both the provisions are
rebuttable. When a presumption is rebuttable, it only points
out that the party on whom lies the duty of going forward
with evidence, on the fact presumed and when that party
has produced evidence fairly and reasonably tending to
show that the real fact is not as presumed, the purpose of
the presumption is over.
20. .....The accused may adduce direct evidence to prove
that the note in question was not supported by consideration
and that there was no debt or liability to be discharged by
him. However, the court need not insist in every case that
the accused should disprove the nonexistence of
consideration and debt by leading direct evidence because
the existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare denial of
the passing of the consideration and existence of debt,
apparently would not serve the purpose of the accused.
Something which is probable has to be brought on record for
getting the burden of proof shifted to the complainant. To
disprove the presumptions, the accused should bring on
record such facts and circumstances, upon consideration of
which, the court may either believe that the consideration
and debt did not exist or their nonexistence was so
probable that a prudent man would under the circumstances
of the case, act upon the plea that they did not exist....."
10. Therefore, the only question which is to be adjudicated by this court is
that whether the impugned cheque was issued in discharge of any liability or
not.
11. During the cross examination of AR of the complainant as CW1 he
interalia stated that he has been working with the complainant since
29.08.2017 and that the accused was their distributor in North Delhi area and
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that the complainant maintains ledger for every distributor on transaction basis
as well as monthly basis and that the same were also shared with the
distributors through area sales managers on monthly basis and that he do not
know since when the complainant company has transactions with the accused.
He stated that the complainant maintains ledger of the accused from
beginning. He stated that the complainant has not filed copy of free of cost
(FOC) and narrations during the period of 201314. He denied the suggestion
that the same was not filed because there was no liability of accused towards
the complainant. He further deposed that the complainant is responsible for
pending replacement from distributors and that he do not know as to who is
Javed Tyagi and Jasmeet Ahuja and that the complainant maintains all the
ledges regarding replacement in 201314 and 201415 and that their accounts
department settles the value of credit notes/FOC. He further denied the
suggestion that accused gave the cheque in question as a security cheque to
the complainant or that only the accused had made efforts to settle the
accounts with the complainant. He stated that he has no knowledge that rest
of the replacements as received from the accused were still pending and as to
whether the complainant does add rejected material to its ledger or not. He
denied the suggestion that complainant has misused the security cheque
given by the accused. Nothing could be extracted from the crossexamination
of the complainant which create any doubt in the version of the evidence of the
complainant, or create any inherent weakness in the case of the complainant.
12. At this stage, now I come to the defence of the accused. At the outset the
Court would like to deal with the defence of the security cheque as raised by
the accused multiple times during the trial. In order to decide the defence of
security cheque, we have to look whether the Negotiable Instruments
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Act makes any difference between the cheque or the security cheque. The
Act only uses the word "Where any cheque" and the language of the Section
itself makes it clear that the Act nowhere differentiates between the cheques
issued for different purposes. The only requirement of the section is that the
cheque must be issued in discharge of the debt or other liability.
13. In Suresh Chand Goyal Vs. Amit Singhal (Crl.A. 601/2015 decided on
14.05.2015) the concept of security cheques were discussed by Hon'ble Delhi
High Court. It was held in the aforesaid case:
"28. There is no magic in the word "security cheque", such
that, the moment the accused claims that the dishonoured
cheque (in respect whereof a complaint under Section
138 of the Act is preferred) was given as a "security
cheque", the Magistrate would acquit the accused. The
expression "security cheque" is not a statutorily defined
expression in the NI Act. The NI Act does not per se carve
out an exception in respect of a security cheque to say that
a complaint in respect of such a cheque would not be
maintainable. There can be myriad situations in which the
cheque issued by the accused may be called as security
cheque, or may have been issued by way of a security, i.e.
to provide an assurance or comfort to the drawee, that in
case of failure of the primary consideration on the due date,
or on the happening (or not happening) of a contingency,
the security may be enforced. While in some situations, the
dishonor of such a cheque may attract the penal provisions
contained in Section 138 of the Act, in others it may not."
14. Hon'ble Delhi high Court in Credential Leasing & Credits Ltd. vs.
Shruti Investments and Anr. 2015 (151) DRJ 147 observed as under:
"30. Thus, I am of the considered view that there is no merit
in the legal submission of the respondent accused that only
on account of the fact that the cheque in question was issued C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 8/21 as security in respect of a contingent liability, the complaint under Section 138 of the NI Act would not be maintainable. At the same time, I may add that it would need examination on a case to case basis as to whether, on the date of presentation of the dishonoured cheque the ascertained and crystallized debt or other liability did not exist. The onus to raise a probable defence would lie on the accused, as the law raises a presumption in favour of the holder of the cheque that the dishonoured cheque was issued in respect of a debt or other liability."
In reference to this, it becomes relevant to also discuss the recent judgment of the Apex Court in Sripati Singh vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 wherein the Hon'ble Court held as follows:
"17. A cheque issued 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.
18. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 9/21 if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on demand promissory note' and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation."
15. The ratio of above cases being that when the primary agreed mode of payment is not made, the security cheques can be enforced. Therefore, whenever a cheque is issued, it is presumed to be issued in discharge of a liability on part of the accused, though the liability may be an existing liability or it can be issued for the liability that may arise in future. If that were not so, there would be no purpose of obtaining a security cheque from the debtor. A security cheque is issued by the debtor so that the same may be presented for payment as or when the apprehended liability arises. Otherwise, it would not be a "security cheque." Accordingly, if a cheque is issued to secure any future liability which may arise toward the payee for the purpose of which the cheque was given by the drawer, the drawer cannot raise the defence that the cheque was issued for security purpose only. Therefore, when there is no liability and a cheque is issued as a security cheque with intention to discharge a particular C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 10/21 liability which may arise in future and some point of time in future that intended particular liability arise; the accused cannot escape for the consequences of dishonor of that cheque mere on saying that the cheque was not issued to discharge any liability. If the complainant has been handed over other security cheques by the accused then the complainant is free to present the same for payment as by such an act the complainant is only enforcing the security agreed upon between the parties. In other words, when the primary agreed mode of payment has not been made, the complainant is well within his rights to enforce the security cheque which is the agreed secondary mode of payment. Thus even if the cheques in question were handed over as security cheque, the same does not absolve the accused of the offence under section 138 of NI Act.
16. Considering this, now we have to judge whether, on the date mentioned on the cheque, or on the date of its presentation, there exists a legally recoverable debt/liability or not. If accused proved that on the date mentioned on the cheque there was no liability, then the cheque issued for the security purpose exonerate the drawer from the liability under Section 138 of the Act.
17. In the case in hand, it is the case of the complainant that in terms of its ledger, there was an outstanding balance of Rs.5,99,405/ against the accused, which clearly shows that there was a liability on the part of the accused, for which the cheque was issued.
18. It is an admitted factual position that accused was appointed as the distributor of the complainant's products. Further, the accused has not explicitly disputed the receiving of the goods from the complainant over a C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 11/21 period of time. He has stated in his defence that he had returned the goods to the complainant and that he was not given credit notes of the items returned to the complainant, therefore there is no liability for the amount shown in the cheque. It is implicit in this submission that the accused had received the goods from the complainant against which the payment was due from his part towards the complainant.
19. The accused has firstly examined Sh. Jasmeet Ahuja as DW1 who stated that he worked as sales executive with the complainant from junejuly 2013 and that he had left the complainant in 2014. He admitted that he had no information about the ledgers maintained by the complainant regarding the distributors as the same was maintained by other departments of the complainant. It is relevant to note that it was not his case that the accused has no liability towards the complainant as per his knowledge as derived from the records of the complainant. He further stated that usually a period of 40 days is given to the distributors for clearing the outstanding bills and that the complainant many a times takes advance cheques from the distributors even prior to raising of bills. This is also a vague and general statement by this witness. It was not his case that this has actually happened specifically in reference to the present accused and the cheque in question as well. He also deposed that in terms of Ex.DW1/1, the accused has informed that he has closed his previous bank account and had handed over certain new cheques. However. he cannot accept or deny that said cheques were security cheques. He stated that he had no knowledge as to whether all the replacement of goods of accused have been fully cleared by complainant as he got transferred to east Delhi. During his cross examination, he admitted that he cannot give exact details of the goods supplied to the accused and the C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 12/21 replacements taken from accused during his tenure. He also admitted that the concerned distributors had option to verify the accounts by visiting the accounts branch of the complainant. It is pertinent to note that DW1 has admitted that he never had firsthand information regarding the payments of the accused and that the same was with the accounts department. Throughout his evidence DW1 has made only vague and general statements in reference to other distributors and has rather depicted his lack of knowledge regarding facts which are specific to this case. He has also admitted that he never had firsthand information regarding the payments of the accused as noted above. There is nothing in the evidence of this witness which helps the cause of the accused in terms of projected defence of the accused that he was not given credit notes of a particular amount by the complainant or that the accused has no liability towards the complainant for the amount mentioned in the cheque in question.
20. The accused thereafter examined himself as DW2 on 11.05.2022 and he was cross examined by Ld. Counsel for the complainant on 09.06.2022. In his cross examination he stated that payments qua transaction with the complainant were made through cheques and RTGS and that he has approached the complainant to not to present the cheques for encashment without intimating him but there is no written intimation being ever sent to the complainant in this regard. He stated that the complainant used to take blank signed cheques from him at the time of billing and that in order to achieve the desired targets, the complainant used to deposit those cheques for encashment. He denied the suggestion that the cheques as referred to in DW1/DX1 were operative cheques and not security cheques. He further stated that he had issued four cheques to the complainant out of which the C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 13/21 complainant had encashed two cheques and that the other two cheques were kept as security cheques by the complainant. He admitted that he has not raised any grievance when those two cheques were encashed by the complainant and that he has not filed any criminal complaint in regard to misuse of cheque by the complainant as he was in settlement talks with the complainant and that one Amitesh Gupta and Awdhesh Kumar assured him that the complainant will not proceed against him.
21. The accused also admitted that in case of defective goods being supplied by the complainant to him, the complainant either used to replace those goods or issues credit note in his favour. The case of the accused is that the complainant has not given him the credit note of all the replacements and due to this factor dispute has arisen with the complainant. The accused has also filed the copy of warranty claim reports as Ex.DW1/DX2 (colly) to buttress his aforesaid submission. It is submitted by Ld. Counsel for the accused that the accused has returned defective goods to the complainant in terms of warranty claim reports Ex.DW1/DX2 (colly) but no credit was given by the complainant to the accused for the items mentioned therein. It is further submitted that hence there was no liability on the part of the accused to pay the cheque amount as the credit note as mentioned above was not adjusted by the complainant even after repeated demands from the accused.
22. The Ld. Counsel for the complainant has duly cross examined the accused on this crucial aspect as well by confronting the accused with the ledger of the complainant in terms of document Ex.DW1/DX3 to Ex.DW1/DX5 which shows that the complainant has issued credit notes to the accused in respect of all those warranty claim reports. The accused has simply denied the C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 14/21 receipt of any such credit notes from the complainant. The Ld. Counsel for the complainant has shown document Ex.DW1/DX3 to the accused thereafter during his cross examination to prove that the complainant has duly credited to the accused even credit note subsidy and FOC (free of cost) in his account. The accused again has simply denied the receipt of any such credit note subsidy and FOC (free of cost) from the complainant. Simply denying the receipt of the credit notes, credit note subsidy and FOC (free of cost) from the complainant is not sufficient for the accused to discharge his reverse onus of proof specifically when the Ld. Counsel for the complainant has produced the document on record to show that the allegations of the accused in this regard that he has not received credit notes etc. of the items mentioned in warranty claim report DW1/DX2 (colly) are not correct. As per Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. As the accused has claimed that he has not received those credit notes and the subsidy and FOC (free of cost) from the complainant, the burden of proof lies upon him to prove those facts as per Section 103 of Evidence Act and he has failed in proving this particular defence. Ld. Counsel for the accused has failed to elicit any meaningful admission from the AR of the complainant during the stage of his cross examination on this aspect. No specific question were put to CW1 i.e. AR of the complainant that the accused was entitled for an amount of Rs. 6,39,300/ from the complainant or that there is any discrepancy in the accounts of complainant and accused or that the complainant had wrongfully credited and debited the account of the accused on various occasions including questions pertaining to input tax credit and VAT reversal or contradiction in the amount of salesman subsidy claim and FOC value etc. The admissibility of document Ex.DW1/DX6 was challenged by Ld. Counsel for the complainant on the ground that it was a photocopy and not the original document. A perusal of C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 15/21 record shows that the accused had failed to lead any foundational evidence during the trial for tendering the secondary evidence in the form of photocopy of document Ex.DW1/DX6 and hence the same is not admissible in evidence. Further, the accused has not brought any evidence on record to show that he do not owe the amount as mentioned in the cheque in question. Therefore, the above contentions of the accused are merely his ipse dixit and have no legs to stand and are accordingly rejected.
23. Even assuming for the sake of arguments that goods supplied by the complainant were allegedly defective, the question which first arises for consideration is as to which was the first available opportunity for the accused to have raised the question of goods supplied being defective? Section 42 of the Sale of Goods Act, 1931 provides that a buyer is deemed to have accepted the goods when he intimates the seller that he has accepted them or when the goods have been delivered to him and he does any act in relation to them inconsistent with the ownership of the seller or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them.
24. There is nothing to show that the accused had raised any objection with the complainant about any defect of the goods at the time of their delivery. There is even no clarity in the case of accused with respect to the precise time period during which he has received the defective goods from the complainant and as to the particular date and the exact value of such goods. The accused could have made an attempt to return the defective goods but there is nothing on record to indicate that he ever took such step. The accused has not raised the dispute of the goods being defective within a reasonable time when the C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 16/21 same were received by him or even when he was served with the notice of demand sent by the complainant. He did not take any steps to return the same. In these circumstances, since the accused retained the goods in his possession, he is deemed to have accepted the goods supplied by the complainant within the meaning of Section 42 of the Sale of Goods Act. In other words, having received delivery and having retained the goods without raising any dispute, he is deemed to have accepted the same as provided under Section 42 of the Sale of Goods Act.
Reliance is also place upon judgment of Delhi High Court in M/S Klg Systel Ltd. vs M/S Fujitsu Icim Ltd 92 (2001) DLT 88 wherein it was held that:
"When a buyer such as the Defendant/Applicant asserts that the merchandise/goods were defective, it is not open to it to withhold payment once the delivery is accepted; since they are deemed to have been accepted by operation of law."
"...Sections 41 and 42 of the Act conjointly indicate that if defects in the goods are not recorded within a reasonable time, they will have been deemed to have been accepted."
25. If the accused had any grievance left regarding the defective nature of the goods or of the fact that the complainant is not taking back the defective goods subsequently, he could have instituted a civil suit in this regard regarding the breach of agreement by the complainant or for claiming damages from the complainant. The same has also been held in the above cited case of M/S Klg Systel Ltd. (supra) that :
C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 17/21"On a careful reading of the Act, it appears that the intendment is generally that the price of the goods must be paid and if there is a subsequent defect (in contradistinction to a defect detected within a reasonable time of the delivery) the remedy that is envisaged is for the Buyer to sue for damages. This is obviously impregnated with sound commonsense and business ethics....."
26. The accused could have also filed the suit for rendition of accounts against the complainant if he was genuinely claiming that the complainant has not given him credit note in respect of defective goods in its accounts so as to support his submissions. None of these steps were taken by the accused. There is nothing probable in his conduct. Under such fact situation, he cannot withhold the payment of the complainant on his sham plea that goods supplied by the complainant were defective.
27. It is a settled law that casting a doubt on the complainant's case merely on account of trivial inconsistencies is of no assistance to the accused as there is no need to go into evidence of complainant and it can't be considered until accused discharges its primary burden under section 139 of NI Act. Also, it must be remembered that once the presumption u/s 139 NI Act is drawn the complainant need not prove its case beyond reasonable doubt by leading further evidences etc., till accused discharges its burden as has been held by Apex Court in Rohit Bhai Jeevan Lal Patel Vs. State of Gujarat 2019 SCC OnLine SC 389 in following words:
"17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 18/21 Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accusedappellant. The aspect relevant for consideration had been as to whether the accused appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence."
28. Lastly it is contended by Ld. Counsel for the accused that consent of the accused was not taken by the complainant before presentation of the cheque for encashment. The accused has not produced any evidence to show that any such agreement was entered into by the parties. Nevertheless, whenever a drawer of cheque gives a signed cheque to a person, he gives him authority to fill any amount, any date in the cheque. It also includes the liberty to present the cheque at the wish of the payee or holder of the cheque. If any agreement to contrary is there, it is to be in writing only. Therefore, the accused again failed to prove that his consent was required to present the cheque in question.
C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 19/2129. It is well settled that the statement of accused under S. 251 Cr. P.C. or under S.313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. Mere pleading not guilty and stating that the cheque was issued as a security cheque would not amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 251 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. In order to rebut the presumption under Section 139 of N.I. Act, the accused has to lead cogent evidence in support of his probable defence. Reliance is placed upon judgment of Delhi High Court in V. S. Yadav v. Reena, 172 (2010) DLT 561.
30. Ld. Counsel for the complainant had submitted during his arguments that the accused has been unable to rebut the presumption raised against him. This Court, in the discussion above, has reached the same conclusion that the accused had duly issued the cheque in question in favour of complainant, in discharge of legally subsisting debt/liability and the cheque was presented to the bank for payment within the period of its validity, but the cheque was returned unpaid for the reason 'payment stopped by drawer' in respect of the account of the accused in the bank on which the cheque was drawn and that the statutory notice of dishonor was duly issued to the accused and the accused had failed to make the payment of the cheque amount within the prescribed time. The argument of the accused that the accused has adduced sufficient material on record to prove his case and reverse the onus of proof placed upon him, is liable to be dismissed, as discussed above.
C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 20/2131. This Court thus finds the accused Sanjay Taneja, proprietor of Sanjay Electricals Works India guilty for the offence punishable under Section 138 NI Act, and he accordingly stands convicted.
Let a copy of the judgment be given to the convict free of costs. Now to come up for arguments on the point of sentence.
Announced in the Open Court on 17th Day of August, 2022 (PANKAJ RAI) Metropolitan Magistrate05, NI Act RAC/New Delhi/17.08.2022 C.C. No. 18539/16 Halonix Technologies Pvt. Ltd. Vs. Sanjay Taneja Page No. 21/21