Delhi District Court
Delhi High Court In Case Court On Its Own ... vs . Kanwaljit S. on 17 January, 2013
IN THE COURT OF SH. LALIT KUMAR : ASCJ / JSCC / GJ/
METROPOLITAN MAGISTRATE (NEW DELHI DISTRICT)
PATIALA HOUSE COURTS: NEW DELHI
Unique case ID No. 02403R0248972002
CC No: 387/09
PS: Connaught Place
U/s 138 Negotiable Instruments Act
IN THE MATTER OF:
M/s Kishan Lal Jewels Pvt. Ltd.
Through its Directors
Sh. Ajay Gupta
1224 (Opp. Bldg. No. 1170)
Kucha Mahajani
chandani Chowk
Delhi - 110006. ..... Complainant
VERSUS
1. M/s Enchante Jewellery Ltd.
Through its Director,
Chand Mehra,
C11, Connaught Place,
New Delhi - 110001.
2. Chand Mehra,
Director,
M/s Enchante Jewellery Ltd.,
C11, Connaught Place,
New Delhi.
3. C. L. Mehra
Managing Director
M/s Enchante Jewellery Ltd.,
C11, Connaught Place,
New Delhi - 110001. ..... Accused
CC No. 387/09 Page 1 of 27
COMPLAINT U/s 138 OF NEGOTIABLE INSTRUMENTS ACT, 1881
Date of institution of the case : 19/10/2002
Date of Judgment : 17/01/2013
Final Order : Acquitted
JUDGMENT:
1. Complainant had filed the present complaint case u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N. I. Act") against the accused.
2. Brief facts necessary for just adjudication of the present case as stated in the present complaint are that the complainant is a private limited company and is filing the present complaint through its director Sh. Ajay Gupta. The accused is a Pvt. Ltd. Company and the respondent no.2 has been dealing on behalf of accused no.1 with complainant and has been buying gold from complainant from the last 3 to 4 years. The accused had been buying gold from complainant from time to time and had been making payments by cheques.
3. The accused had purchased std. gold bars of weight 3201/510 gms. @ Rs. 5310/ and in total the gold was purchased for a sum of Rs. Rs. 17 lacs on 18.06.2002 vide bill no. 2050 and accused had issued a cheque no. 575874 dated 20.06.2002 drawn on Standard CC No. 387/09 Page 2 of 27 Chartered Grindlays Bank, Connaught Place, New Delhi on behalf of accused no.1, however, accused no.2 told the complainants, that they have some financial problem and requested complainants to deposit the said cheque in the month of August, 2002. Since complainant has been dealing with accused from long time he, as desired by accused deposited the said cheque with his bankers Karnataka Bank Ltd. on 20.08.2002 on 20.08.2002. However, said cheque was returned unpaid with remarks "funds not arranged for". Since the said cheque was dishonoured, the complainant sent a legal notice dated 03.09.2002 to the accused through registered post and the accused duly received the said legal notice on 06.09.2002. Complainant has been calling the accused on telephone and has been requesting them to pay the said amount, however, accused have been promising to pay the amount but till date has not cleared the dues against the aforesaid cheque. It is further submitted that the accused no.2 and 3 are incharge of day to day affairs of the business of accused no.1 M/s Enchante Jewellery Ltd. Hence, the present complaint is filed against the accused.
4. Vide order dated 19.10.2002, accused were summoned for the offence u/s 138 N.I. Act.
5. Finding a primafacie case against the accused persons, notice u/s 251 Cr.P.C. for the offence u/s 138 of the Act no. 26 of 1881 was given to both accused to which they pleaded not guilty and claimed trial.
CC No. 387/09 Page 3 of 276. In support of his case, complainant has examined Sh. Ajay Gupta as CW1.
7. In his evidence by way of affidavit, CW1 has reiterated and reaffirmed the contents of the present complaint. CW1 in his testimony had relied upon documents i.e. resolution Ex. CW1/A1A, memorandum and Article of Association of the company Ex. CW1/A1B (exhibition of above documents were objected by counsel for the accused), invoices Ex. CW1/A1, statements of account Ex. CW1/A2, invoice dated 18.06.2002 Ex. CW1/A3, original cheque bearing no. 575874 Ex. CW1/A4, memo of standard Grindlays Bank and Karnataka Bank Ltd. Ex. CW1/A5 and Ex. CW1/A6, legal notice Ex. CW1/A7, postal and UPC receipts Ex. CW1/A8(colly), acknowledgment Ex. CW1/A9. This witness was cross examined by counsel for the accused.
8. In his cross examination CW1 deposed that the resolution Ex. CW1/A1A was never filed before him prior to the day of examination nor it has been mentioned in the complaint. The order of the transaction was placed by one Mr. Chand Mehra. They purchased gold from market, banks and MMTC. Whenever gold was purchased by them from MMTC or banks, it was always paid for by way of cheques or bank drafts. He admitted that in the statement of account filed by them on record, all the transactions with the accused have been shown to have happened by way of cheques or bank drafts. There was no written purchase order with regard to the CC No. 387/09 Page 4 of 27 transaction which was in issue in the present case. Voluntarily deposed that the orders were placed on phone. The order in present case was placed on phone by Sh. Chand Mehra. The rate was fixed as per market price. They did not purchase gold from MMTC at market price because the MMTC purchases gold on their behalf, imports it, clears it and gave it to them after charging for its services. The gold was purchased by MMTC on their behalf on the basis of market price of the country where it was purchased. He did not remember exactly but the transaction might have taken place somewhere in June, 2002. He did not know therefore, he could not admit or deny whether the accused Chand Mehra was not in India on 18.06.2002. He denied that on 18.06.2002, Chand Mehra had never contacted him or placed the order. He did not remember the full name but the gold was delivered to one of the employees of the accused namely Sh. Yadav, who always used to take the delivery. No acknowledgment or receipt was signed by the said Yadav. Voluntarily deposed that he had delivered the goods on receiving the cheque. He did not remember exactly but the gold was around 3 kg. Simultaneous to the delivery of gold, the original invoice was delivered. He admitted that Sanjay Gupta is his brother and he runs a firm by the name of Sh. Krishna Traders which deals in gold. He did not know, therefore, could not admit or deny whether the accused was having any business transaction with his brother or not. As of now, they were residing in the same house. He was in talking terms with his brother. He did not know whether Krishna Traders was started prior to his firm or later to his firm. He did not CC No. 387/09 Page 5 of 27 know the sales tax for gold in Gurgaon. He did not know the sales tax for gold in Delhi in the year 2002 and therefore, he could not admit or deny that the sales tax for gold in Gurgaon was 0.3% and in Delhi was 01 % in the year 2002.
9. He further deposed that it was not fixed in the year 2002 that how much stock of gold he would keep with him at a particular time. He admitted that prior to the present transaction, Rs. 5 lacs in credit were lying in the account of the accused. After the present transaction, the account of the accused was in debit to the tune of Rs. 12 lacs. He denied that the cheque in question was inadvertently issued in the name of the complainant whereas it should have been issued in the name of Krishna Traders. He denied that when the cheque was demanded back by the staff of the accused, he asked them to issue a fresh cheque for Krishna Traders. He did not know therefore could not admit or deny that the accused on 21.06.2002, issued a cheque of Rs. 17 lacs to Krishna Traders. He denied that in his balance sheet of the year 2002, he had declared Krishna Traders to be his sister concern or that he had control over the same.
10. He further deposed that he had received the letter Ex. CW1/D1. He did not remember the date on which he had received it. He could not say whether he received it one day, two days, a week or ten days later than the date on Ex. CW1/D1. Voluntarily deposed that he had replied it. He admitted that he had received Ex. CW1/D1 before filing the present complaint case. He had no explanation why CC No. 387/09 Page 6 of 27 this fact was not mentioned in his examination in chief or his complaint. He admitted that letter Ex. CW1/D2 was issued by him and he stand by the contents. He had no explanation why this fact was not mentioned in his examination in chief or his complaint. Ex. CW1/D3 is the balance sheet of his company. He denied that in the said balance sheet he had stated that he had influence and control over Sh. Krishna Traders . Voluntarily deposed that this fact was stated in order to show that his other family members are carrying the same business. He admitted that as per his statement of account Ex. CW1/D4, a lot of time, the goods were only sold to the accused after receiving the advance payment. He admitted that on 18.06.2002, the account of the accused was having a credit balance of Rs. 5 lacs. He denied that accused did not have any paucity of funds or that the accused never asked him to present the cheque three months after the delivery.
11. He further admitted that he had filed a statement of account of Sh. Krishna Traders along with his file filed before Hon'ble High Court in Crl. M.C. No. 5468/2005 Ex. CW1/D5 was the said statement. He had obtained the statement from his brother. He had understood the statement before filing the same. He admitted that on 21.06.2002, a cheque of Rs. 17 lacs had been credited in the account of his brother's concern. Against the payment dated 25.06.2002 as reflected in Ex. CW1/D5, the accused had purchased gold worth Rs. 34 lacs the very next day. He admitted that after the entry of Rs. 20 lacs, no delivery of gold was shown to have been made CC No. 387/09 Page 7 of 27 for one month. He denied that accused did not have any paucity of funds or that the accused did not ask him not to present the cheque for a period of two months as the accused had paucity of funds. He further deposed that the letter of the accused dated 21.08.2002 was replied by him vide reply dated 31.08.2002. Again said 21.08.2002 and again said, he did not remember the date. He had the postal receipts to show that the reply was sent to the accused. He could produce the same. The reply was sent to the accused twice. He had no explanation why the fact of receiving the letter dated 21.08.2002 and replying the same has not been mentioned in legal notice. He denied that after receiving the reply of notice under Section 138 N.I. Act, he had fabricated letter dated 07.09.2002 and the reply of the letter of the accused dated 21.08.2002 Ex. CW1/D6 was the letter dated 07.09.2002. He could produce the documentary evidence that this letter was dispatched to the accused. He did not remember the mode by which Ex. CW1/D6 was dispatched. He had the copy of the bill Ex.CW1/A3. He could produce the same in court. He denied that Ex. CW1/A3 was a forged and fabricated document. In the statement of account filed by him the column of balance was not available because his computer system did not show it. He had no explanation why the fact that the gold was supplied to Veer Singh Yadav and the cheque was handed over by him has not been mentioned either in his complaint or in his examination in chief and reply dated 28.08.2002. He denied that the name of Sh. C.L. Mehra has been arrayed as accused only to put presence on other accused persons although there was no cause of action against him. He CC No. 387/09 Page 8 of 27 further deposed that Veer Singh had called from his mobile and put Chand Mehra on line. He did not know what number he had called. Where Mr. Chand Mehra was at the time of said call or whether he was in India or not.
12. CW1 admitted that he had not brought the documents sought by the court in the case on 28.07.2011. Voluntarily deposed that as the record was not traceable as it was a very old record. He denied that he could not bring the record asked for as the same never existed or that the letter was never posted on the dates alleged by him. He had not taken any authority letter from the person to whom the gold was allegedly delivered. Voluntarily deposed that they had received cheque. He denied that the resolution, authorizing him to file the present complaint, has been antidated and forged later on. He admitted that apart from the cheque inn question, no other cheque of the accused was ever dishonoured for any reason. Again said, he did not remember. He had not filed any police complaint alleging that after letter dated 21.08.2002, it appeared that the accused had fraudulently obtained and misappropriated his gold. He did not know who had signed the cheque in question. He denied that he was deposing falsely or that the cheque was not issued for any liability. Thereafter, complainant evidence was closed by AR for the complainant.
13. Statement of accused C.L. Mehra and Chand Mehra were recorded u/s 313 Cr.P.C. wherein they denied the allegations CC No. 387/09 Page 9 of 27 against them and rebutted the complainant evidence against them. Accused C.L. Mehra stated that the cheque in question had been erroneously issued and therefore, at the request of the complainant, they sent a fresh cheque which was received by the sister concern of the complainant and encashed. When the cheque in question was demanded, it was informed by the complainant that it had been destroyed and he did not prefer to lead defence evidence. However, accused Chand Mehra stated that no gold worth Rs. 17 lacs as alleged had been purchased from the complainant. The cheque in question was erroneously issued in the name of the complainant whereas, it was to be issued in the name of its sister concern namely Shri Krishna Traders. The company's Manager (Accounts) received a call from Sanjay Gupta, the owner of Krishna Trader who informed that the cheque had been wrongly issued in the name of the complainant, whereas it should have been issued in t he name of Krishna Traders. A fresh cheque was thus prepared in the name of Shri Krishna Traders and was delivered to Sh. Sanjay Gupta. At the same time, the cheque in question was demanded but it was informed that the same had been destroyed. The fresh cheque of Rs. 17 lacs which was issued in the name of Shri Krishan Traders was duly encashed. It has been falsely alleged that the cheque in question was issued by him because at that time. He was not in India. Thus, the cheque does not bear his signatures. He further stated that it is falsely alleged that the transaction was done with him or that he had received the gold because, at that time, he was not in India. He had no liability qua the cheque in question and the complainant has misused the cheque, CC No. 387/09 Page 10 of 27 which was inadvertently issued in its favour. The cheque is without consideration. It was also stated by the accused Chand Mehra that he wanted to lead defence evidence.
14. In his defence evidence accused Chand Mehra has examined himself as DW1. He deposed that in June 2002, his company purchased gold from M/s Shri Krishna Traders against wich a cheque of Rs. 17 lacs was to be issued in favour of Shri Krishna Traders. M/s Shri Krishna Traders was a sister concern of the complainant company. The cheque in question was erroneously issued in the name of the complainant whereas the same was to be issue din favour of M/s Shri Krishna Traders. The proprietor of M/s Shri Krishna Traders namely Sh. Sanjay Gupta called the accused company and poin5ted to this error. The accused company then issued a fresh cheque of Rs. 17 lacs in favour of M/s Shri Krishna Traders, the cheque was sent to the M/s Shri Krishna Traders with request to return the cheque in question which was erroneously issued in the name of the complainant. However, Sh. Sanjay Gupta informed the accused that the cheque in question had been destroyed. The said cheque of Rs. 17 lacs was duly encashed by M/s Shri Krishna Traders. The certificate of his banker in this regard is Ex. DW1/1. The statement of account of M/s Shri Krishna Traders is Ex. CW1/D5. On 21.08.2002, they received a call from their bank informing them the cheque of Rs. 17 lacs had been presented for encashment. They immediately sent a fax to the complainant and also sent a registered letter dated 21.08.2002 and the complainant was CC No. 387/09 Page 11 of 27 informed that the cheque in question was erroneously issued in the name of the complainant. The said letter is Ex. CW1/D1. That letter was not replied by the complainant. However, he thereafter issued a legal notice to the accused. The legal notice was duly replied. The copy of the reply is Ex. DW1/2. After receiving that reply, the complainant fabricated an antedated letter putting a date of 28.08.2002 and sent the same another antedated letter dated 07.09.2002.
15. He further deposed that in order to substantiate that the complainant is a sister concern of M/s Shri Krishna Traders, they have filed and proved a balance sheet of the complainant Ex. CW1/D3. He further deposed that the copy of alleged bill of supplying the gold worth Rs. 17 lacs is a false and fabricated document. Whenever the accused company received any precious metal or stones the accused always issued receipt of the same, the receipt book containing the receipts is Ex. DW1/3 issued by the complainant to the various suppliers during the relevant period. That receipt book clearly reflects during the relevant period that there was no receipt voucher alleged issued by the complainant company. After the goods were received, the entries of the same were made in this stock register. He had brought the original stock register for the relevant period which did not reflect any receipt of gold worth Rs. 17 lacs on the alleged date. The copy of the same Ex. DW1/4. At the end of the year, the accused company submitted to the Sales Tax Department, the list of transactions done by it with the registered dealers. The copy of form CC No. 387/09 Page 12 of 27 ST2A reflecting the transaction done with the complainant in the year 200203 Ex. DW1/5. The order of the Sales Tax Department for issuing forms as based on Ex. DW1/5 is Ex. DW1/6. After passing of the order Ex. DW1/6, the Sales Tax Department issued STI Form wherein the transactions with the complainant were listed, the same were supplied to the complainant, the receipt of the same Ex. DW1/7. The signatures of the complainant along with its stamp appear overleaf Ex. DW1/7 and are at point A. He used to maintain a ledger account of the complainant. The copy of statement of account of the accused for the relevant period Ex. DW1/8.
16. He further deposed that the complainant claims that the entire transaction in respect of which the cheque in question was done with him. However, at the relevant time, he was not in India. The certified copies of his tickets and boarding passes Ex. DW1/9. The entries of his passport reflect that at the relevant time he was not in India. The copy of entries in his passport showing the same Ex. DW1/10.
17. He further deposed that on coming to know that he was not in India, the complainant before this court in another case claimed that the gold was supplied to one Veer Singh. He had brought the salary register of his company for the month of June 2002 which clearly reflected that the he did not had any employee by the name of the Veer Singh. The copy of relevant entries Ex. DW1/11. Ex. DW1/12 was the form 6A submitted by the accused to the provident CC No. 387/09 Page 13 of 27 fund authorities which clearly shows that the Veer Singh had never been its employee. The complainant has alleged that the accused requested the complainant not to present the cheque because the accused was in financial distress. However, the statement of account Ex. CW1/D5 clearly reflects that the complainant had been giving advance payments of the bullion to be supplied by the complainant or its sister concerns. The annual report of the accused company for the year 200203 Ex. DW1/13 which clearly shows that C.L. Mehra was only an honorary chairman of the company and was not responsible for its conduct of day to day affairs.
18. He further deposed that although he had no liability against the complainant and the complainant had never supplied the alleged gold to the accused. The complainant took advantage of the cheque being erroneously issued in its name and misused the same in connivance with its sister concern M/s Shri Krishna Traders. The complainant had filed a false case.
19. In his cross examination, DW1 deposed that the accused company always had sufficient funds to honour its cheques. He admitted that at the relevant time, the accused company had been declared a sick company and was registered with BIFR. Voluntarily deposed that they still had adequate funds to honour their liabilities. His company also had litigations with Citi Bank and SBI. Voluntarily deposed that the litigation with the Citi Bank commenced after deposition of the entire claim of the Citi Bank with the Delhi High CC No. 387/09 Page 14 of 27 Court and with regard to SBI, the DRT ruled in their favour stated that the bank had acted unfairly. He admitted that after the transaction subject matter of the present case, the accused company had another transaction with the complainant. Voluntarily deposed that it was a delivery made by the complainant upon the advance paid by him. He did not have the bill of Rs. 17 lacs against which the cheque of Rs. 17 lacs was to be issued to M/s Shri Krishna Traders. It was a bill for a higher amount against which the cheque of Rs. 17 lacs was to be issued to M/s Shri Krishna Traders. The payment of Rs. 17 lacs to M/s Shri Krishna Traders was on account payment. He admitted that the payment of Rs. 17 lacs to M/s Shri Krishna Traders would not have cleared the entire outstanding which they owed to it. He further admitted that no specific demand of Rs. 17 lacs was made by M/s Shri Krishna Traders. He denied that he was not to issue a cheque of Rs. 17 lacs in favour of M/s Shri Krishna Traders. He had stated that M/s Shri Krishna Traders was a sister concern of the complainant on the basis of declaration in the balance sheet of the complainant which stated that Krishna traders was its related party concern He admitted that M/s Shri Krishna Traders was a proprietorship concern of Sh. Sanjay Gupta. He did not know and therefore, he could not admit or deny whether Sanjay Gupta was a shareholder or director of the complainant company. He denied that complainant and M/s Shri Krishna Traders were independent and separate entities. Sister concern means related party concern. Cheque in question did not bear his signatures. The signatures on the cheque are of Sh. C.L. Mehra. The cheque in question was collected by the complainant.
CC No. 387/09 Page 15 of 27Again said, it was delivered by the his company but he did not know who had delivered it on behalf of the accused because at the relevant time, he was not in India. He did not know the date of delivery of the cheque because at the relevant time, he was not in India. He did not know where this cheque was delivered to the complainant. He denied that the cheque in question was not erroneously issued in the name of the complainant. He denied that the cheque in question was not to be issue din the name of M/s Shri Krishna Traders but in the name of the complainant. He denied that a transaction of gold worth Rs. 17 lacs had taken place between the complainant and the accused or that a bill against the same was issued or that the cheque in question was to be issued in consideration of that transaction. He denied that the transaction in question had happened or that it was different from the transaction in consideration of which the payment was to be made to M/s Shri Krishna Traders. Immediately after coming to know that a cheque had been erroneously issued in the name of the complainant, they had not written any letter to the complainant. They had also not informed their bank that the cheque had been erroneously issued in the name of the complainant. Voluntarily deposed that they believed Sanjay Gupta that the cheque which was erroneously issued i.e. the cheque in question had been destroyed They had not filed any police complaint. He denied that Sanjay Gupta did not call the accused company and pointed out the error that the cheque had been erroneously issue din the name of the complainant. In the letter Ex. CW1/D1, the word "you" had been mentioned as the name of informer with regard to the error in issuing the cheque CC No. 387/09 Page 16 of 27 because they treated the complainant and M/s Shri Krishna Traders to be a part of the same group of entities and acted together. He was not in the country and therefore, he did not know the date on which Sanjay Gupta had called the accused and pointed out towards the error. He was informed by Sh. Anuj Gupta, Manager Accounts and his father Sh. C.L. Mehra that Sh. Sanjay Gupta had given a call to the accused company and pointed out to the error in issuing the cheque. He admitted that he had no pe3rsonal knowledge of the fact that Sh. Sanjay Gupta had called up him and pointed out the error. On 21.08.2002, he came to know that the cheque was erroneously issued and on the error being pointed out by Sh. Sanjay Gupta, a new cheque was issued with correct particulars and that Sh. Sanjay Gupta had assured that the cheque in question had been destroyed. However, the same has been presented for encashment. The fresh cheque of Rs. 17 lacs was issued in favour of M/s Shri Krishna Traders on 20.06.2002 i.e. on the same date on which the cheque in question was issued. The fresh cheque was also signed by Sh. C.L. Mehra. He did not know who had gone to deliver the cheque to M/s Shri Krishna Traders or to whom or where it was given. The authorized signatories upon the cheques of accused no.1 were Sh. Vinay Mehra, Chand Mehra and Sh. C.L. Mehra. The gold used to be delivered by the complainant and therefore, there was no specific person on behalf of the accused who would go to accept the gold. There was no specific person who would be sent to deliver the cheque to the complainant. He denied that Sh. Veer Singh Yadav used to go to the complainant's place and receive the gold on behalf of the accused no.1 and delivered CC No. 387/09 Page 17 of 27 the cheque in lieu thereof. He denied that the gold was not delivered by the complainant at the place of the accused. No entry / exit register was being maintained by the accused company. He denied that such a register was being maintained. He denied that whenever the gold was delivered at the premises of the person buying it, the said person was required to issue a CForm there and then or by the end of the year. The complainant used to deliver gold at the Karol Bagh office of the accused. He did not know who made the request to Sanjay Gupta to return the cheque or how the request was being made. He did not know who was the person who went to deliver the fresh cheque to Sanjay Gupta. The fact that the cheque in question was destroyed was informed by Sanjay Gupta to the person who went to deliver the fresh cheque.
He further denied that it was not the practice between the parties that the gold would be delivered at the working place of the accused. He denied that the cheque in question was intended for and delivered to the complainant on 18.06.2002 by his employee Sh. Veer Sigh Yadav or that on the said date, Sh. Veer Singh Yadav had received gold on behalf of accused no.1 He denied that Sh. Veer Singh Yadav made the complainant talked to him and he asked the complainant not to present the cheque. He denied that the cheque was not presented upto August 2002 because, they had requested the complainant not to present the cheque as their financial condition was not good. He remained outside India from 29.05.2002 to 29.06.2002. He did not remember who had received the call from the CC No. 387/09 Page 18 of 27 bank that the cheque in question had been presented for encashment. He was called by his manager accounts and informed that the bank had given a call with regard to the cheque in question. A letter with regard to the cheque in question was also issued to their banker. He had the copy of the same in his record. The copy of the same Ex. DW1/P1. He did not remember whether they had sent any fax to the bank or not. Before the noon of 21.08.2002, they had sent the letter Ex. DW1/P1 to the bank. It was dispatched through post as well as by hand. There was no receiving from the bank upon the letter which was sent by hand. The letter Ex. DW1/P1 bears his signatures. He denied that the letter Ex. DW1/D1 was an afterthought and that is way it was posted at 02.25 pm. He further deposed that it was not the case that on presentation of every cheque for encashment in their account, they would be informed by the bank. They were informed about the cheque in question because the funds in account were not provided for and the cheque was for a very high amount. He denied that the bank had informed the accused after the dishonour of the cheque and thereafter, the letter Ex. DW1/D1 was prepared as an afterthought. There was nothing on record to show that letter Ex.CW1/D1 was faxed to the complainant. He denied that Ex. CW1/D1 was replied vide letter dated 28.08.2002. He further denied that Ex. CW1/D1 was neither antedated nor fabricated. He did not write any letter to the complainant saying that letter Ex. CW1/D1 or Ex. CW1/D2 were antedated. He could not produce the envelope in which Ex. CW1/D1 and Ex. CW1/D2 were delivered. He could not produce any documentary evidence apart from his oral testimony CC No. 387/09 Page 19 of 27 that the letter Ex. CW1/D1 and Ex. CW1/D2 were antedated. He denied that the bill Ex. CW1/A3 was not a forged or fabricated document or that the accused company had received gold against the same. He denied that the entire receipt book containing document Ex. DW1/3 was not a forged or fabricated document or that the accused company had received gold against the same. He denied that the entire receipt book containing document Ex. DW1/3 was fabricated and manipulated. He denied that there was no procedure followed by the accused whereby whenever the accused received gold from any party, a voucher would be issued for the same. However, he admitted that Ex. DW1/3 was an internal document of the accused. Vouchers were issued for all the metals received by the accused company. The entires of the goods delivered by the complainant to the accused on 09.03.2002 and 26.03.2002 were not reflected in the voucher book Ex. DW1/3 because, they pertained to the previous financial years.
On court question that how could he explain the vouchers in Ex. DW1/3 which were for January 2002, the same being of the same financial years as that of 09.03.2002 and 26.03.2002?, the DW1 replied that he did not know whether that transaction pertain to previous financial year and he did not bring it because he did not expect that question.
He further deposed that STI forms filed by him on last date of hearing were issued from Delhi. All the gold from M/s Shri CC No. 387/09 Page 20 of 27 Krishna Traders was received at Gurgaon. They never took any receipt of the vouchers such as Ex. DW1/3. Voluntarily deposed that these vouchers were given in exchange of goods. He denied that the register Ex. DW1/4 was a manipulated and fabricated document. He denied that the document pertaining to Sales Tax were manipulated documents. He denied that the document Ex. DW1/8 was a fabricated and manipulated document. His stock registers, voucher books and the ledgers did not bear the signatures of the auditor at any place. Voluntarily deposed that it was not required. He denied that Sh. Veer Singh Yadav was an employee of a company in which any of the directors was a shareholder. He denied that all the documents filed on record and which pertained to the record of employees were manipulated documents. He denied that Sh. C.L. Mehra was a person who actively involved in responsible for the day to day affairs of the accused no.1. He denied that accused no.1 was liable to pay Rs. 17 lacs to the complainant and that the cheque in question was issued in discharge of that liability. He denied that the cheque in question has not been misused in connivance with M/s Shri Krishna Traders. He denied that he was deposing falsely. Thereafter accused has closed his defence evidence.
20. This court heard the final arguments advanced on behalf of the parties and carefully perused the entire record including the testimony on record.
CC No. 387/09 Page 21 of 2721. During the course of arguments it is submitted by counsel for the complainant that the complainant has proved on record that accused had issued cheque in question for Rs. 17 lacs against purchase of gold from the complainant. However, said cheque was returned unpaid with remarks "funds not arranged for", and accused has failed to pay the amount of cheque in question despite issuance of legal notice dated 03.09.2002 which was duly received by the accused on 06.09.2002 and accused no.2 and 3 are incharge of day to day affairs of the business of accused no.1 M/s Enchante Jewellery Ltd. Counsel for the complainant relied upon judgment of Hon'ble Supreme Court of India reported as 2001 CRI. L.J. 708 in case titled as Rajneesh Aggarwal V. Amit J. Bhalla.
22. On the other hand, counsel for the accused submitted that complainant has failed to prove its case as the complainant did not file or produce the alleged Original Bill Book or the carbon copy vide which the alleged gold worth Rs. 17 lacs was sold and the cheque in question was allegedly issued in consideration thereof as in the cross examination the complainant stated that the original bill along with some postal receipts were in his possession and he could produce the same, however, he could not produce the same and moved application seeking exemption from filing the same stating that the same were not required. However, accused persons duly filed a reply to the said application on which the complainant withdrew his application. Lateron complainant stated that he did not have the original bill as it was an old record. Counsel for the accused relied CC No. 387/09 Page 22 of 27 upon judgment of Hon'ble Mr. Justice Manmohan Sareen of Hon'ble Delhi High Court in case Court on its Own Motion Vs. Kanwaljit S. Sareen, Dr. Dewan C.. on 9th February, 2007.
23. It may be seen from the record that the complainant in his legal notice, complaint, affidavit and examination in chief affidavit stated that the gold was sold on 18.06.2002 and the cheque for Rs. 17 lacs dated 20.06.2002 was issued and handed over on 20.06.2002. However, during cross examination the complainant stated that the person came with the cheque to collect the gold on 18.06.2002. Even, during cross examination of accused a suggestion was put to him that an employee of accused company went with the cheque on 18.06.2002 to collect the gold. Further complainant in his ante dated reply to the letter dated 21.08.2002, legal notice, complaint, affidavit and examination in chief affidavit that Sh. Chand Mehra issued the cheque in question. The cheque was not issued by Chand Mehra. However, in the cross examination complainant stated that he did not know who had signed the cheque in question and transaction could not have been done with Chand Mehra as Chand Mehra was not in the country. The complainant did not refer to the letter dated 21.08.2002 in his legal notice, complaint, affidavit or examination in chief affidavit. The complainant was unable to explain as to why he concealed the letter dated 21.08.2002 sent by the accused to the complainant and why he concealed the ante dated letters dated 28.08.2002 and 07.09.2002 from his legal notice, complaint, affidavit and examination in chief affidavit.
CC No. 387/09 Page 23 of 2724. Further it is to be seen that the complainant failed to prove the person to whom he delivered the gold as sometime he told that his name was Mr. Yadav, then changed his name to Chand Mehra and then changed to Vir Singh and during cross examination of accused complainant put the suggestion to the accused that the name of the person who collected the gold was Vir Singh Yadav. There was no mention of Vir Singh or Mr. Yadav in the antedated reply to the letter dated 21.08.2002, legal notice, complaint, affidavit or examination in chief affidavit. In the cross examination the complainant was unable to tender any explanation for not mentioning that he did the alleged transaction with Mr. Yadav in his aforesaid documents. Neither the complainant has produced any documentary evidence to show that the delivery was made to Mr. Vir Singh or Mr. Yadav nor any ID proof of Vir Singh or Mr. Yadav was taken by the complainant to show as to who he allegedly delivered the gold. The complainant has not produced any delivery receipt or authority letter etc. from Mr. Yadav to prove that the alleged gold was given to the said person.
Further it has been admitted by the complainant that he has an advance of Rs. 5 lacs from the accused company then the question of issuing a cheque of Rs. 17 lacs towards the alleged liability did not arise as the complainant admitted in his cross examination that after the entry of the alleged present transaction the accused was in debit of Rs. 12 lacs. Further the declaration of balance sheet of complainant company clearly shows that Shri Krishna Traders is his CC No. 387/09 Page 24 of 27 sister concern. It is admitted by the complainant in his cross examination that as per the statement of account of his brother's concern, namely Sri Krishna Traders, on 21.06.2002 a cheque of Rs. 17 lacs had been credited in their account which shows that accused was not having any financial problem and that the defence of accused that the present cheque in question of Rs. 17 lacs had been erroneously issued to the complainant stands proved. The letter dated 21.08.2002 written by accused to the complainant clearly shows that accused pointed out that the cheque of Rs. 17 lacs was issued by mistake and without any consideration. The complainant sent antedated letters dated 28.08.2002 and 07.09.2002 in reply to the said letter dated 21.08.2002. Admittedly no other cheque of the accused was ever dishonoured for any reason. Further the complainant has not placed on record any purchase order for the purchase of the alleged gold worth Rs. 17 lacs. On the contrary he has admitted that there was no written purchase order with regard to the transaction in issue.
25. I have gone through the judgments relied upon by counsel for both the parties. So far as judgment relied by counsel for the complainant distinguished in the facts and circumstances of the present case.
26. Moreover, it is pertinent to mention that no suggestion has been given to the witness that the testimony of this witness to the effect that he did not receive the notice has gone unchallenged. It is CC No. 387/09 Page 25 of 27 settled law that what has not been challenged by a party is deemed to have been admitted by that party. As such in this case, the stand of the accused that the complainant had received the cheque as security and also the non receipt of the notice by the accused has gone unchallenged and shall be deemed to have been admitted by the complainant.
27. It is a settled position that the complainant under Section 138 N.I. Act is not maintainable of the cheques which are not issued against the legally enforceable debt and in the present complaint, the complainant has failed to establish that the cheque of Rs. 17 lac was given to the complainant for the alleged purchase of jewellery by the accused.
28. In view of the above, it can be said that the accused had been successful to rebut the presumptions u/s 118 and 139 N.I. Act in his favour and complainant had failed to established its case against the accused beyond reasonable doubts.
29. Applying a priori and a posteriori reasonings, this court is held that the complainant has failed to prove its complaint against the accused persons. Accordingly, present complaint of the complainant u/s 138 N.I. Act is dismissed and accused M/s Enchante Jewellery Ltd., Chand Mehra and C.L. Mehra are acquitted for the offence u/s 138 N.I. Act. Bail bonds / Surety bonds stand CC No. 387/09 Page 26 of 27 cancelled. Documents of sureties, if any, be returned and endorsement, if any, be cancelled. File be consigned to recordroom after due compliance.
Announced in the open court (LALIT KUMAR)
on 17.01.2013 ASCJ/JSCC/GJ/ MM
New Delhi District,PHC,
New Delhi
CC No. 387/09 Page 27 of 27