Delhi District Court
Taxcraft Trading Pvt Ltd vs . on 31 January, 2007
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IN THE COURT OF SH. AMIT KUMAR : M.M. KKD COURTS : DELHI
Taxcraft Trading Pvt Ltd
Vs.
Axis Cottex Pvt Ltd & Ors.
Case No. : 549/03
U/s : 138 N.I. Act
P.S : Dilshad Garden
JUDGEMENT
1. Name of the complainant : Rahul Kantor
2. Name of the accused : 1. Axis Cottex Pvt Ltd.
Parentage & address B-124, Sector, Noida,
Gautam Budh Nagar, UP
2. Ajay Rajgarhiya,
Director, Axis Cottex Pvt Ltd.
B-124, Sector, Noida,
Gautam Budh Nagar, UP
3. Aseem Sood,
Director, Axis Cottex Pvt Ltd.
B-124, Sector, Noida,
Gautam Budh Nagar, UP
3.Offence complained of : 138 N.I. Act
or proved
4.Plea of the accused : Pleaded not guilty.
5.Final order : Acquitted
6.Date of such order : 31/01/2007
BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The brief facts of the present case are that complainant is a Pvt. Ltd.
Company working as an agent on commission basis for supply of materials to the buyers from Indian exporters and as such complainant provided various services to the accused company and for which raised two bills in discharge of which liability, the cheque in question was issued by the accused in favour of the complainant. Further, the said cheque in question was returned back unpaid for the reasons 'payment stopped by the drawer'. Thereafter, a legal notice was sent to the accused persons who duly replied the same, but did not make any payment. Hence, the present prosecution. Both the accused persons as well as the company was summoned for the offence u/s 138 of Negotiable Instruments Act and notice u/s 251
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Cr.P.C. was served upon the accused persons who pleaded not guilty and claimed trial.
2. Before appreciating the evidence, the admitted facts between the parties which will curtail the controversy are - the signatures on the cheque in question are not disputed between the parties, service of legal notice and the reply is not disputed between the parties. The only disputed fact which is relevant for this case is liability. Keeping that in view, let us examine the evidence led by the parties. Complainant has examined CW-1 : Layak Ram, Clerk, Punjab National Bank who produced the record pertaining to the accused company. He is the formal witness since the dishonour of the cheque for the reasons 'payment stopped by the drawer' is not disputed.
3. CW-2 : Rahul Kantor who is the Managing Director of the complainant company who vide his statement dated 30.07.2003 has adopted his pre-summoning evidence as his after notice evidence which was proved on record vide Ex. CW-1/A. None of the accused persons has raised any objections on 30.07.2003 or thereafter regarding the complainant adopting the pre-summoning evidence. The complainant was cross examined at length by the Ld. Defence Counsel. In his examination in chief, the complainant has reiterated the contents of the complaint that complainant is a trader working on commission basis and as such accused availed services of complainant for procuring export orders and the complainant after giving services for procuring orders, raised two bills vide Ex. CW-1/1 & 2. In discharge of which liability, the cheque in question was issued, but the same was dishonoured for the reasons 'payment stopped by the drawer'. A legal notice vide Ex. CW-1/6 was duly sent and served to the accused and the complainant received a reply vide Ex. CW1- /14, but no payment was made by the accused. Hence, the present prosecution.
4. The complainant was cross examined at length by Ld. Defence Counsel
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and the basic defence of the accused is that this cheque in question was given by the accused persons to the complainant keeping in view the long business relationship as advance payment of commission/security for the future payments be received by them from the buyer which was the responsibility of the complainant and when no payment was received by the accused from the buyer, they stopped the payment of the cheque in question. The complainant, in the cross examination, however, has taken a different stand from the one taken in his examination in chief. Complainant, for the reasons best known to him, in his examination in chief, has not specified the details for which the bills in question were raised by the complainant. In para 3 & 4 of the affidavit, it is stated that the complainant provided services for procuring orders from the buyers for accused and then raised bills in question which shows that the bills were raised for the commission since it was for the services provided for procuring orders. However, in the cross examination, the complainant himself has specifically admitted that the cheque in question pertains for the inspection amount and not for the commission. He has specifically admitted that he received the entire commission and the present dispute is for the inspection amount only. He has further admitted in his cross examination that the inspection carried out to check the quality of the product, the representative of the buyers as well as the representative of the manufacturers (accused before me) should be present to sign the inspection record. This admission in the cross examination clearly points out two facts - (1) the complainant who has malafidely concealed the fact that the cheque pertains to inspection charges in the complaint as well as in his examination in chief and (2) the said inspection record which admittedly should be signed both by the buyer and manufacturer through their agents, has not been placed on record by the complainant intentionally though in the cross examination, he has admitted that such record is available with them.
5. Hon'ble Supreme Court in Hiten P. Dalal Vs. Bratindra Nath Banerjee 2001 (Crime) 220 has already held that the onus is on the accused to prove by
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leading cogent evidence that cheque in question was not issued in discharge of any debt or liability. Further, in the Judgment reported in 2004 Crl. L .J. 4107 it has been held that where the complainant failed to identify the accounts book, income tax reports and audit reports, it cannot be said that factual basis of raising presumption had been established and the dismissal of the complaint in that case was held to be proper. Further, in Judgment reported in 2004 (2) J.C.C. (NI) 127, it has been held that presumption in favour of the complainant was rebutted by the accused in reply sent to the notice of the dishonour of the cheque and it becomes the duty of the complainant to establish consideration and the debt due and therefore, it was incumbent upon the complainant to produce documents/oral evidence to prove that cheques, in fact, were issued in discharge of debt or liability. In the case before me, the notice was duly replied by the accused, but the complainant has failed to produce any documents or evidence to establish its case. Further, Hon'ble Supreme Court in Judgement reported in 2002 (4) RCR (Crl.) 75 has held that when the complainant has failed to examine important material witnesses in whose presence, money was advanced to the accused, the case is fit where the complaint should be dismissed. In the case before me, once the notice was duly replied by the accused, it was incumbent upon the complainant to specify and prove on record through his evidence that the cheque in question was issued in discharge of debt or liability. The accused, during the cross examination of complainant, has shown on record that material facts has been concealed by the complainant intentionally during evidence and the same has been exposed in the cross examination. When the complainant has admitted that cheque pertains of commission only, why this fact was not mentioned in the complaint and evidence and then, why the inspection record bearing the signatures of agent of both the parties, has not been placed on record. However, in the cross examination, the complainant has stated that these charges were raised for 100 per cent re-inspection which during the subsequent evidence, the accused has proved, was never carried out. The complainant, in the cross examination has admitted the execution of document vide Mark G which is later on proved on record
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as Ex. DW-1/11. In this document issued by the complainant himself, the transaction in question which was sent to the buyers abroad was cleared for shipment on 11.06.2001. If the shipment in question for which these bills vide Ex. CW-1/1 & 2, was cleared as early as on 11.06.2001, there was no question for the complainant to re-inspect the consignment again. Otherwise also, the certificate pertains to random inspection and it has been admitted by the complainant that if the consignment is cleared in random inspection, there is never any need to carry out 100 per cent re- inspection.
6. In the statement of the accused persons recorded u/s 313/281 Cr.P.C., they have taken the same defence that the aforesaid cheque was issued as advance payment for future obligations to be discharged by the complainant company, but when the complainant failed to discharge their obligation, the payment was stopped. Accused No.2 Ajay Rajgarhiya himself has appeared in his defence as DW-1 and has proved on record the documents which shows that consignment in question was cleared by the complainant and no 100 per cent re-inspection was ever carried out for which these alleged bills have been raised. The accused, in his defence, has proved on record the documents i.e. inspect report vide Ex. DW-1/1 to 8. All these inspection reports are issued by the complainant company and they were never challenged in the cross examination by the complainant. Further, the accused has proved on record the inspection certificates vide Ex. DW-1/9 to 11 for which the consignment in question was cleared without any 100 per cent re-inspection and the same were never challenged by the complainant in the cross examination which shows that no such 100 per cent re-inspection has ever taken place. Further, the accused, in his testimony, has placed on record the documents consisting of letters sent by the speed post, e-mails and U.P.C. to the complainant asking them to get the payment cleared from the buyers. The letter of the accused persons were served and also replied by the complainant wherein the complainant has admitted that payment is pending with the buyers and shall be released as soon as possible. The documents
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are Ex. DW-1/17 & 18 which were written by the complainant to the accused persons. Further, the accused has proved on record one document vide Ex. DW-1/12 which was sent to the complainant as soon as the bills Ex. CW-1/1 & 2 were raised by the complainant, but even in the cross examination, these documents were never challenged by the complainant. Accused was cross examined at length by the Ld. Counsel for complainant, but I do not find any material cross examination which supports the case of the complainant. In the entire cross examination, not even a single document proved on record by the accused, has been challenged by the complainant which shows that accused has discharged the onus which was upon him, but the complainant has failed to show the debt or liability regarding the cheque after the presumption was rebutted by the accused. Another important fact which requires mentioning is an application filed by the accused u/s 91 Cr.P.C. asking the complainant to place on record the document pertaining to 100 per cent re- inspection. That application was allowed by this Court vide order dated 31.01.2005 and in compliance of that order, complainant has placed on record the photocopies of certain re-inspection record. These are the photocopies of the documents though the same has not been proved on record, yet a judicial notice of these documents can always be taken, if they are the essential for just decision of this case.
7. I have perused these documents. 3 out of these 5 documents do not pertain to the transaction in question and the remaining 2 which are dated 16.06.2001 and 17.06.2001 only pertain to inspection for this consignment, but the same do not bear the signatures of agent of the accused which the complainant has admitted 'must bear the signature of the agent'. Hence, even these documents do not support the case of the complainant. During the course of the arguments, Ld. Counsel appearing for the complainant has laid much stress upon the documents vide Ex. DW-1/3 and has stated that these are the documents pertaining to 100 per cent re-inspection conducted on 17.06.2001 and 20.06.2001 and bills in question were raised for these inspections and as such, the complainant has proved his case.
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8. I have heard the submissions of Ld. Counsel for complainant in this regard and have perused these documents. These documents "appeared 100 per cent audit"
titled only for 220 pieces and another vide Ex. DW-1/4 for 280 pieces. Even, it is admitted that 100 per cent re-inspection was carried out for these small quantities, it is not clear that how a huge bill of Rs.3,90,000/- was raised for this small quantity of 100 per cent re-inspection. Otherwise also, if the submissions of the Ld. Counsel for the complainant is considered to be correct, why the complainant has been silent in this regard in the complaint as well as as in the evidence. The complainant in his examination in chief has stated that the cheque in question pertains to the services of the complainant for procuring the export orders from overseas customers which points out towards the commission and not 100 per cent re-inspection charges and if it was for 100 per cent re-inspection charge, the averments in this regard should be clear and loud in the complaint, and not concealed as is the case before me. However, Ld. Counsel for the complainant has submitted that as per accused, issued cheque No. 618270 to the complainant dated 11.07.2001 and then he issued cheque No. 618269 dated 07.07.2001 which is not possible as the cheques are aways issued in increasing sequence and not vice-versa and as such the defence of the accused is sham. I have given my considerable thought to this fact also and I am of the opinion that issuance of cheque in increasing sequence cannot be said to be a hard and fast rule and there can aways be exceptions to it like bonafide mistake or otherwise and keeping in view the fact that accused has proved on record all the inspection reports and record pertaining to the inspection carried out for the consignment which was never challenged in the cross examination. it does not lie in the mouth of the complainant to submit that the cheques were not issued in increasing sequence.
9. Ld. Counsel for the accused, on the other hand, has submitted that accused has communicated in time to the complainant to not to present the cheque in question as it was the duty of the complainant to get the payment released from the buyers to the accused and when such payment was not released, the complainant was asked to not to present the cheque and the present case does not fall within the
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section 138 of Negotiable instruments Act. He has further stated that all the original inspect reports and certificates have been placed on record by the accused persons which were never been challenged by the complainant and as such there was no liability in favour of the complainant.
10. I have heard his submissions and I find force in it since by these documents, accused has rebutted the presumption which was in favour of the complainant and the complainant, thereafter, has failed to prove that there was any liability regarding the cheque in question.
11. For the reason aforesaid, I am of the opinion that there was no liability as far as the cheque in question is concerned and the payment was stopped by the accused persons for the reasons which has been proved on record. Hence, both the accused persons are acquitted in this case. They are on bail. Their bail bonds/surety bonds are discharged. File be consigned to Record Room.
Announced in the open ( AMIT KUMAR )
Court on 31.01.2007 Metropolitan Magistrate,
KKD Courts, Delhi