Delhi District Court
Page No. 1 To 11 Sanchi Arora vs . Surya Bhan on 1 September, 2015
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IN THE COURT OF VIDHI GUPTA,
METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA
COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. Serial No. of the case : VK1691/2007
b. Date of the commission of the offence : 08.08.2007.
c. Name of the Complainant : Sanchi Arora
d. Name of Accused person and his parentage: Surya Bhan,
and residence S/o Late Sh. Kashmiri Lal,
R/o J50, Dilshad Colony, Delhi.
e. Offence complained of : Dishonouring of cheques for
"Account Closed".
f. Plea of the Accused and his examination (if any): Not guilty
because no commercial transaction
took place between the
complainant and accused.
g. Final Order : Acquitted.
h. Order reserved on : 11.08.2015.
i. Order pronounced on : 01.09.2015.
Page No. 1 To 11 Sanchi Arora Vs. Surya Bhan
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Brief reasons for decision:
1.Brief facts necessary for the disposal of this case are that on 27.08.2007, a complaint was filed by Ms. Sanchi Arora (hereinafter referred to as the Complainant) under section 138 of the Negotiable Instruments Act (NI Act) and u/s 415/417/420 IPC against Sh. Surya Bhan (hereinafter referred to as the Accused) proprietor of M/s Aditya Times, whereby cognizance was taken for the offence under section 138 of the NI Act, presummoning evidence was led by the complainant and vide order dt. 04.10.2007 the Accused was summoned before this Court.
2. It is the case of the complainant that the complainant is the proprietor of M/s Sai Distributors dealing in supply of wrist watches, time pieces, clocks and electronic goods Etc. and accused being one of the customers of the complainant had purchased goods of Rs. 1,51,702/ vide bill no. RI1 dt. 25.06.2007 (Ex. CW1/A). In order to discharge the liability for payment of goods, the accused had issued three post dated cheques in question as follows in favour of M/s Sai Distributors:
(a) cheque no. 203821 dt. 25.06.2007 for Rs. 50,000/ (Ex. CW1/B)
(b) cheque no. 203822 dt. 04.07.2007 for Rs. 50,000/ (Ex. CW1/C)
(c) cheque no. 203823 dt. 09.07.2007 for Rs. 50,000/ (Ex. CW1/D) all drawn on ICICI Bank Ltd., Mayur Vihar Branch, Delhi. When the said cheques Page No. 2 To 11 Sanchi Arora Vs. Surya Bhan 3 were presented by the complainant to her banker namely UCO Bank, Krishna Nagar, Delhi in July 2007, all the aforesaid three cheques were dishonoured with the remark "Account Closed" vide return memos (Ex. CW1/E to Ex. CW1/G).
Thereafter, the complainant served a legal demand notice (Ex. CW1/H) upon the accused vide registered post as well as UPC on 23.07.2007 (Receipts are Ex. CW1/I & Ex. CW1/J). Reply to the legal demand notice was also received back to the complainant (Ex. CW1/K). Since, despite receipt of legal notice, the accused did not make the payment of cheques in question to the complainant, the present complaint case has been filed.
3. Notice of accusation u/s 251 Cr. P.C was served upon the accused under Section 138 NI Act on 01.11.2010, to which he pleaded not guilty and claimed trial. Plea of defence of the accused was also recorded wherein the accused admitted to his signature on the cheques in question and also that he filled the column of amount on cheques in question but denied filling in the remaining contents of the same. He further stated that he had never purchased anything from the complainant and even denied knowing the complainant. He also stated that he knows the father in law of the complainant and never had any transaction of any type with the complainant or her family member. He added that he had lost several cheques including cheques in question during 2002 to 2004 and resultantly he had closed his bank account. Lastly, he admitted to receiving of legal demand notice and also that he had replied to the same.
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4. To prove her case, the Complainant adopted her presummoning evidence as her post summoning evidence and examined herself as CW1. Complainant also brought another witness to support her case i.e. CW2 namely Sh. Joginder Singh, father in law of the complainant. On an application u/s 145 (2) of NI Act, the accused was given an opportunity to cross examine the complainant and her witnesses and thereafter, CE was closed on 24.09.2013.
5. Statement of the accused had been recorded under Section 313 Cr. P.C on 26.11.2013 wherein the accused reiterated his plea of defence and stated that he wanted to lead evidence in his defence.
6. In order to prove his innocence, the accused examined only one witness i.e. Sh. Ashokan K., Bank Officer from ICICI Bank as DW1. After recording of testimony of DW1, DE was closed on 31.03.2015. During the testimony of DW1, he has filed two documents i.e. Ex. DW1/1 account statement of the bank account of the accused and Ex. DW1/2 i.e. letter from the bank with respect to closure of the bank account of the accused. Thereafter, the matter was listed for final arguments.
7. Both the parties argued the matter at length in support of their respective cases. Arguments heard. Record perused.
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8. This is a case pertaining to an alleged business transaction between the complainant and the accused which has outrightly been denied by the accused stating that the complainant has misused his three cheques in question. Nevertheless, the accused has admitted to his signatures on the cheques in question as well as filling in the amounts on the same and therefore, at the outset the presumptions u/s 118 & 139 of NI Act arise against the accused. From the evidence led by the parties and documents brought on record, it shall be now determined as to whether the complainant has been able to prove her case beyond reasonable doubts or the accused has rebutted the presumptions against him and raised a probable defence in his favour.
9. First and foremost the documents that this court shall examine are the basis of this case, i.e. the cheques in question. The perusal of cheques in question makes it apparent that the signatures on cheques in question as well as the amount on the same have been put by the accused himself. Both the parties i.e. the complainant and the accused have also endorsed the same. However, the complainant has changed her stand with respect to the filling in of the remaining contents on the same. In her cross examination dt. 27.11.2012, she stated that:
I can not tell as to who had written the date appearing on cheques in question. My father in law had written name of my firm on cheques in question. I can not say confirmly as to my father in law had written name of my firm on cheques in question in presence of Page No. 5 To 11 Sanchi Arora Vs. Surya Bhan 6 accused.
Later, in her cross examination dt. 09.04.2013, the complainant stated that:
My father in law filled name of firm and column of date appearing on cheques in question.
Hence, it is apparent that the complainant is not sure about the details of the transaction. From her clarification given on next date of hearing during her cross examination, it appears that she has improvised upon her previous testimony.
10. As far as handing over of cheques in question is concerned, various discrepancies have come up in the testimony of CW1 and CW2. In the complaint, it has been stated that in order to discharge the liability of Rs. 1,51,702/ the accused had issued the post dated cheques in question. However, in her cross examination dt. 27.11.2012, the complainant stated that: I do not remember year, month and date when cheques in question were given by accused to me. I can not say as to whether accused had given cheques in question at the time of supply of goods in question to him or subsequently. I do not remember as to where cheques in question were given to me by accused.
Later, in her cross examination dt. 09.04.2013, the complainant stated that: Cheques in question handed over to me by the accused on 25.07.2007.
Page No. 6 To 11 Sanchi Arora Vs. Surya Bhan 7 However, CW2 has stated in his cross examination that:
Accused had handed over cheques in question to the complainant at the time of purchasing of material in question from the complainant.
From the bare perusal of the complaint, it is clear that the transaction in question as per the allegations of the complainant had taken place on 25.06.2007. In these circumstances and in view of the aforesaid extracts of the testimonies of CW1 & CW2, it is clear that the complainant is unaware about the basics of her alleged transaction whereby firstly she completely denied having any knowledge as to when were the cheques in question handed over to her and later contradicted her own stand by stating that the cheques were handed over to her on 25.07.2007. Not only CW1 contradicted herself but CW2 also brought in a discrepancy by stating that the cheques in question were handed over at the time of transaction in question i.e. 25.06.2007.
11. Also, with respect to placing of order by the accused with the complainant, it is stated in the complaint that the accused placed the order on 25.06.2007. However, in her cross examination dt. 30.08.2012, the complainant has stated that accused alongwith her father in law visited her office for the first time on 25.01.2007 and put oral request for purchasing goods in question at the time of visit itself. Hence, again doubts come up in the story put forth by the complainant.
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12. Further, with respect to transaction in question, a retail invoice has been placed on record by the complainant wherein the total amount due from the buyer i.e the accused is Rs. 1,51,702/. Even though the bill mentions about the total products bought by the accused, but no proof of delivery of goods has been filed on record by the complainant. Even the bill placed on record by the complainant, does not bear the receiving from the accused. Further, with respect to terms of delivery, the bill is blank.
13. Another important point which deserves attention is the fact that the bill amount is Rs. 1,51,702/ but the cheques have been issued to discharge this liability for an amount of Rs. 1,50,000/ only. As far as the remaining amount of Rs. 1,702/ is concerned , again contradictory statements have been given by CW1 & CW2. While CW1 i.e. the complainant has stated that she accepted three cheques in question of Rs. 50,000/ each against total liability of Rs. 1,51,702/ because she deducted Rs. 1,702 as concession, CW2 had stated in his evidence by way of affidavit that the remaining amount of Rs. 1,702/ was promised to be paid by the accused to the complainant later in cash. Even in his cross examination, the CW2 has stated that the accused had promised the complainant for paying the surplus remaining amount in cash at his shop.
14. Further, with respect to the number of persons present at the time of transaction in question CW1 has stated that at the time of supply of goods in Page No. 8 To 11 Sanchi Arora Vs. Surya Bhan 9 question to the accused my father in law and some sales men were present, CW2 has stated that at the time of purchasing material of Rs. 1,50,000/ by the accused, the persons that were present included the accused, CW2, complainant, husband of the complainant and one labour. The presence of husband of the complainant is a material circumstance of this case as it has been stated by the complainant in her testimony that her husband used to maintain ledger account of her firm and also that the computer concerned in which the account maintained is in the custody of her husband. Moreover, CW2 has stated in his testimony that his son namely Sanjeev Kumar i.e. husband of the complainant was having business relationship with the son of the accused. In the aforesaid situation, the testimony of husband of the complainant would have certainly been material to the case of the complainant, however, neither his presence at the time of transaction in question has been acknowledged by the complainant in her testimony nor has he been brought as the witness to support the case.
15. As regards the packing and delivery of goods in question to the accused is concerned, again the complainant has taken varied stands. In her cross examination dt. 30.08.2012, the complainant has stated that her father in law i.e. CW2 had made shipment of goods in question. In her cross examination dt. 27.11.2012, the complainant had stated that goods in question were packed at her shop but she was not present at the time of packing and that she reached Page No. 9 To 11 Sanchi Arora Vs. Surya Bhan 10 back to office from her home after supply of goods. Surprisingly, later in her cross examination dt. 09.04.2013, the complainant has stated that the goods were packed in her presence but she left the office in the course of packing of goods in question.
16. On the other hand, the accused has consistently maintained the same stand in his reply to the legal demand notice issued by the complainant, his application u/s 145 (2) of NI Act, his plea of defence and his statement u/s 313 Cr.P.C.. The the accused has stated that he had closed his account in 2004 itself as he had lost his cheques and also that he never had any type of transaction with the complainant or her family members. Perusal of the record reveals that the legal demand notice as well as the complaint filed by the complainant have mentioned the accused as the proprietor of M/s Aditya Times. The accused has averred in his application u/s 145 (2) of NI Act as well as in his reply to the legal demand notice that he was never a proprietor of M/s Aditya Times. In fact the invoice Ex. CW1/A has not been issued in the name of Aditya Times nor has any document to the effect that the accused is the proprietor of M/s Aditya Times has been brought on record by the complainant. Moreover, DW1 i.e. the bank witness has also deposed that the account of the accused had been closed on 07.02.2004. In these circumstances, the defence of the accused that he had closed his bank account in year 2004 as he had lost certain cheques, does become probable.
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17. In the light of the discussion held above, it is apparent that the case of the complainant suffers from various loop holes which have only been broadened by the cross examination of the complainant. Even CW2 has contradicted the complainant several times during his testimony. It is a settled law that the complainant in a criminal case has to prove his / her case beyond reasonable doubt and in the present case the version of the complainant is reduced to nothing more than a doubtful story of which truthfulness is questioned with each averment of the complainant. As the case of the complainant is unable to stand on its own legs, it is only in the interest of justice that the accused be set free from the charges levelled against him u/s 138 of NI Act.
18. Therefore, it is hereby held that the accused has sufficiently rebutted the presumptions against him under the NI Act and hence, the accused is hereby acquitted of the offence u/s 138 of NI Act. The accused is hereby directed to furnish fresh bail bond u/s 437A Cr.P.C. In sum of Rs. 10,000/ with one surety in the like amount.
Announced in the open court (VIDHI GUPTA)
st
on 01 Day of September, 2015. MM/KKD/Delhi
This judgment contains 11 signed pages.
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