Delhi District Court
M/S Advance Computer Technologies vs M/S Srj Software Pvt Ltd & Others on 18 March, 2011
1
IN THE COURT OF SH ANUJ AGGARWAL : METROPOLITAN MAGISTRATE - 03
SOUTH : SAKET COURT : NEW DELHI
M/s Advance Computer Technologies vs M/s SRJ Software Pvt Ltd & others
CC No 1241/10
U/s 138 Negotiable Instruments Act
JUDGMENT
(1) Serial number of the case : 1241/10
(2) Name of the complainant : M/s Advance Computer
Technologies
(3) Name of the accused,
parentage & residential address : 1. M/s SRJ Software Pvt Ltd 1491, IInd Floor, Street No.5 Wazir Nagar, Defence Colony, New Delhi110003
2. Soumit Ranjan Jena Director, M/s SRJ Software Pvt Ltd 1491, IInd Floor, Street No.5 Wazir Nagar, Defence Colony, New Delhi110003
3. Preeti Jena, Director, M/s SRJ Software Pvt Ltd 1491, IInd Floor, Street No.5 Wazir Nagar, Defence Colony, New Delhi110003 (4) Offence complained of or proved : 138 Negotiable Instruments Act (5) Plea of the accused : Pleaded not guilty (6) Final order : Acquitted (7) Date of order : 18/03/2011
1. The material facts as carved out from the complaint are that accused nos. 2 & 3 being Directors of accused no. 1 approached the complainant and placed 2 orders for and on behalf of accused no.1. They lastly placed order dated 20/02/2003 vide No. SRJ/ACT/PO119/200203 for a sum of Rs. 5,44,800/ and paid advance sum of Rs.24,090/ in cash to the complainant. On the receipts of the purchase order and advance payment, the complainant supplied the goods to the accused vide Bill No. 130 dated 21/02/2003 for a sum of Rs. 3,59,000/ and bill No. 132 dated 22/02/2003 for a sum of Rs.1,85,000/ totalling the sum of Rs.5,44,800/ i.e. the amount of purchase order. The above said goods were received by accused persons in good condition on 21/02/2003 and 22/02/2003 respectively. During the course of business, a sum of Rs.5,20,710/ became due and against this the accused persons issued a cheque bearing no. 064782 dated 25/01/2003 for Rs.5,20,710/ drawn at UCO Bank, Defence Colony, New Delhi with an assurance that the same would be honoured by their banker as and when presented for clearance by the complainant. As per complainant, accused no. 2 & 3 gave this cheque dated 25/01/2003 by saying that they have only this cheque and put date as 25/01/2003 instead of 25/02/2003 and this cheque shall be honoured.
2. The above said cheque was deposited by the complainant with Canara Bank, Rohtas Nagar Branch, Delhi and the same was returned unpaid on presentation with remarks "Referred to Drawer" vide its return memo dated 18/07/2003. The complainant made a demand for payment of the said amount of money by giving a Demand Notice dated 24.07.2003 but the accused failed to make the payment of the said amount to complainant within stipulated time. Thereafter, the complainant has filed this complaint U/s 138 of Negotiable Instruments Act, 1881 (hereinafter "the Act") against the accused.
3. On 25.09.2003, the court took cognizance of the offence U/s 138 of the Act. On being satisfied that the complainant has a prima facie case against the accused, the court summoned the accused for offence U/s 138 of the Act.
4. Perusal of record reveals that accused no. 3 Preeti Jena never appeared before the court and consequently, she was declared PO vide order dated 15/01/2008 by my Ld. Predecessor.
35. Accused nos. 1 & 2 appeared pursuant to summons issued to them and notice U/s 251 CrPC was framed against accused nos. 1 & 2 on 07.02.2008, to which they pleaded not guilty and claimed trial.
6. In order to substantiate its case, the complainant examined three witnesses. P C Gupta, Assistant Manager, UCO Bank was examined as CW1, Sanjeev Gupta, partner of complainant firm was examined as CW2 and Jitender Bahadur Singh, the other partner of complainant firm was examined as CW3.
7. All the circumstances appearing in the evidence against the accused persons were put to them in order to enable them to offer them explanation.
8. In the statement U/s 313 CrPC recorded on 13/12/2010, it was stated by the accused that payments against cheque in question have already been made. Accused further stated that the bill and the purchase order relied upon by the complainant dated 20/02/2003 & 28/02/2003 respectively are forged documents and does not bear signatures of any of the accused or any authorized person. Accused further stated that the cash credit memo of the complainant dated 21/02/2003 and bill dated 22/02/2003 are fabricated.
9. Accused did not lead any evidence in defence.
10. I have heard both the parties at length, perused the record and gone through the written submissions filed on behalf of both the parties. Before looking into the factual issues involved herein, let us consider the provisions of Section 138 of the Act. For fastening liability U/s 138 N I Act, following are the requirements :
(1) drawing of a cheque by any person.
(2) the drawer of the cheque issued the cheque to discharge in whole or part any legally enforceable debt or other liability. (3) the cheque so issued has been returned due to insufficiency of funds.4
(4) the drawer fails to make the payment within stipulated time after receipt of demand notice.
11. Section 118 (A) of N I Act provides for presumptions regarding consideration for a Negotiable Instrument. It reads as under :
"That every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration".
12. Section 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as under :
"It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability".
13. Therefore, a combined reading of both the sections raises a presumption in favour of holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. It is a well settled principle of law that the presumption available U/s 139 N I Act is a rebuttable presumption however, the burden of proof is on the accused to rebut the same. The accused can prove the non existence of consideration by raising a probable defence and if he has proved, only then the onus would shift upon complainant, who has to prove it as a matter of fact and on his failure to prove would disentitle him to grant the relief.
14. In Hiten P Dalal vs Brstindranath Banerjeet AIR 2001 Supreme Court 3897, Hon'ble Supreme Court observed that the defence submission that the cheques were not drawn for the discharge in whole or in the part of any debt or other liability is answered by the third presumption available to the banks U/s 139 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, 5 in whole or in part, of any debt or other liability". The effect of these presumptions is to place the evidential burden on the defence of proving that the cheque was not received by the bank towards the discharge of any liability.
15. It is argued by counsel for the complainant that from evidence, complainant has proved that the cheque in question was signed by accused which was dishonoured and despite service of legal notice, accused did not make payment. It is argued that during cross examination of witnesses, nothing material has come out and the complainant has been able to prove his case to the hilt. It is argued that accused has failed to discharge the burden cast upon him to rebut the presumption in favour of complainant under the provisions of NI Act.
16. Per contra, it has been argued by Ld. counsel for accused with vehemence that payment against cheque in question has already been made as revealed from the testimony of CW2 i.e. Sanjeev Gupta and that the purchase order and the bills relied upon by complainant are false and fabricated. It has been argued by Ld. counsel for accused that the present complaint has been filed by complainant to harass the accused persons. Ld. counsel for accused has argued that there are material contradictions in the story of complainant and that from the evidence brought on record, accused have been able to discharge their burden successfully and guilt of accused persons have not been proved beyond reasonable doubt, hence they deserve to be acquitted.
17. Apex Court in Krishna Janardhan Bhatt vs Dattatraya G Hegde AIR 2008 Supreme Court 1325 has held as follows :
"23. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal 6 case is different".
"25. Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is "preponderance of probabilities". Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
18. Therefore, what has been upheld by Apex Court in the above noted case is that accused can discharge the burden on the basis of material already brought on record and he need not to examine himself for the purpose. The material already brought on record would indeed include the complainant evidence. Further, it has been held by Apex Court in the said case that accused can prove his defence by "preponderance of probabilities" whereas prosecution has to prove the guilt of accused beyond all reasonable doubts.
19. I shall now appreciate the testimony of complainant witnesses to see whether accused has proved his defence by preponderance of probabilities or whether the guilt of accused has been proved beyond reasonable doubt by the complainant in the present case.
20. CW1 is P C Gupta, Assistant Manager, UCO Bank, Defence Colony i.e. the banker of accused. In his cross examination, the witness has deposed that the cheque in question was returned unpaid on 01/02/2003 and then the same cheque was again returned on 05/03/2003 and again on 18/07/2003 and thereafter, the cheque was not presented.
21. Therefore, from the testimony of this witness, it has come on record that the cheque in question was dishonoured even prior to 20/02/2003 i.e. the date of alleged purchase order meaning thereby that the complainant was in possession of cheque in question even prior to 20/02/2003 though this fact 7 has nowhere been mentioned in the complaint.
22. CW2 is Sanjeev Gupta, partner of complainant company. The material part of his examination in chief is reproduced as follows :
"...................the accused no. 2 & 3 placed orders for and on behalf of accused no. 1. They lastly placed an order dated 20/02/2003 vide No. SRJ/ACT/PO119/200203 for a sum of Rs.5,44,800/ and they paid a sum of Rs.24,090/ in cash to the complainant towards the advance as mentioned in their purchase order. Along with the purchase order, they also issued a cheque vide No. 064782 dated 25/01/2003 for Rs. 5,20,710// drawn at UCO Bank, Defence Colony, New Delhi i.e. the balance amount of the purchase order after adjusting the payment of the amount made in cash with an assurance that the same shall be honoured by their banker as and when presented for clearance by our banker. Regarding the back date of the cheque, it was told to us that they have only this cheque and they have wrongly put the date 25/01/2003 instead of 25/02/2003 and once again assured us that this cheque shall be honoured by their banker...................."
"......................I say and submit that out of the supplied made against the above said purchase order dated 20/02/2003, a sum of Rs.5,20,710/ became due i.e. the amount of the cheque ExCW1/E..............."
23. The material part of cross examination of CW2 is reproduced as follows :
"..............On 20/02/2003 we got orders from the accused company regarding the present transaction. The cheque in question was handed over to me along with the order dated 20/02/2003. I have deposited the same cheque 8 twothree times in my bank.
Q. Have you deposited the same cheque in your bank even prior to 20/12/2003?
A. The same cheque has been deposited in our bank even prior to 20/02/2003. Vol : The same cheque was given to me towards earlier transaction for which the accused has already made the payment by cash but the same cheque was again sent to us with a new order dated 20/02/2003.
On the direction of accused present in court the order dated 20/02/2003 was given under the signature of some of his staff as Mr Sumit Ranjan Jena was out of station. That the document exhibited as CW2/B does not carry the signature of the accused at point B......................"
".....................On 20/02/2003, I have received full and final payment towards the cheque in question...................."
24. The witness in his examination as stated above has deposed that the cheque in question dated 25/012003 was issued to him along with purchase order dated 20/02/03 and regarding back date of cheque it was told to them by accused that that they have only this cheque and they have wrongly put the date 25/01/2003 in stead of 25/02/2003. Whereas from examination of CW1 i.e. bank witness and cross examination of CW2 also, it has come on record that the complainant was in possession of cheque prior to 20/02/2003 i.e date of alleged purchase order.
25. CW2 has tried to explain this contradiction by deposing that the same cheque was given to him towards earlier transaction for which the accused has already made the payment by cash but the same cheque was again sent to them with a new order dated 20/02/2003. In my considered view, this is a material contradiction and explanation of witness to the same is not 9 trustworthy because nowhere in the whole complaint and in affidavit of evidence of CW2, this fact (that the same cheque was given by accused in past to complainant towards earlier transaction also for which the accused has already made the payment by cash and the same cheque was again sent to complainant with a new purchase order dated 20/02/2003) has been mentioned. Therefore, the plea of complainant regarding earlier transaction seems to be an after thought and just to plug the holes that have crept from his deposition.
26. Be that as it may, this plea of earlier transaction of CW2 also falls flat in view of his examination in chief wherein he has deposed that regarding the back date of the cheque, it was told by accused that they have only this cheque and they have wrongly put the date 25/01/2003 instead of 25/02/2003.Whereas in his cross examination, as stated above, the witness has deposed that the same cheque was given to complainant for earlier transaction for which payment has already been made in cash and the same cheque was again sent to complainant with a new purchase order dated 20/02/2003. If the plea of witness regarding earlier transaction is to be believed then there could not have been any occasion or situation for accused to state to the complainant that they have wrongly put the date of 25/01/2003 instead of 25/02/2003 because it was already in the knowledge of both the parties that the same cheque dated 25/01/2003 which was given for earlier transaction has been sent with the new purchase order dated 20/02/2003.
27. Further, the admission by witness that he has received full & final payment towards cheque in question on 20/02/2003 has given a death blow to prosecution story because if the full & final payments were received on 20/02/2003 against cheque in question, then no liability can be said to be existing against the cheque. An argument that was raised by Ld. counsel for complainant was that witness had meant to say that the payments made on 20/02/2003 were towards earlier transaction for which the cheque in question was issued earlier. In my considered view, this argument of Ld. Counsel is not tenable and same seems to be an attempt to negate a clear 10 admission which has come from the mouth of witness.
28. Be that as it may, the argument of Ld. counsel for complainant is also not maintainable because if the payments were made on 20/02/2003 towards earlier transaction, then also, the cheque in question could not have been returned by complainant prior to 20/02/2003 i.e. the date of payment. It is highly improbable that on 20/02/2003 itself after receiving the payments, the same cheque would first be returned to the accused and then again on the same date, same shall be issued with the new purchase order dated 20/02/2003. Surprisingly, this argument raised by Ld. counsel is neither a part of complaint nor part of evidence of any complainant witnesses meaning thereby that it has been raised at a belated stage just to cover the gaps in complainant story.
29. CW3 is Jitender Bahadur Singh, one of the partners of the complainant firm who has also filed the present complaint. The material part of his examination in chief is reproduced as follows :
".............................The accused no. 2 & 3 placed orders for and on behalf of accused no. 1. It is submitted that the complainant sold the goods worth rs.7,43,900/ in January 2003 and against which the accused issued a cheque vide no. 064782 dated 25/01/2003 for a sum of Rs.5,20,710/ drawn at UCO Bank, Defence Colony, New Delhi. The payment of Rs.7,43,900/ was made in cash by the accused persons in two installments i.e. a sum of Rs.2,23,190/ on 30/12/2002 and a sum of Rs.5,20,710/ on 20/02/2003........."
"................Thereafter on 20/02/2003 the accused persons placed an order dated 20/02/2003 vide No. SRJ/ACT/PO119/200203 for a sum of Rs.5,44,800/ and they paid a sum of Rs.24,090/ in cash to the complainant towards the advance as mentioned in their purchase order. Along with the purchase order, they also issued a cheque vide no. 064782 dated 11 25/01/2003 for Rs.5,20,710/ drawn at UCO Bank, Defence Colony, New Delhi i.e. the balance amount of the purchase order after adjusting the payment of the amount made in cash with an assurance that the same shall be honoured by their banker as and when presented for clearance by our banker. For the balance amount of the purchase order, the accused persons requested me to accept the above said cheque dated 25/01/2009 of Rs. 5,20,710/ and assured me that this cheque shall be honoured by their banker. The purchase order dated 20/02/2003 is already ExCW1/B and the cheque is already ExCW1/E........."
30. In his cross examination, CW3 has deposed as follows :
"...................The purchase order ExCW1/B was given to me by person working in the office of accused no. 2 and same was signed by employee of accused no. 1 & 2. At present I do not remember the name of that employee but he must be Mr. Vinu......................."
".....................It is wrong that we have received the payment against the cheque in question at any point of time. It is wrong to suggest that I am deposing falsely.................."
31. I have gone through the testimony of CW3 in detail. His testimony is not believable as a lot of improvement has been made in complainant story by this witness and same is nothing but a desperate attempt to save the drowning boat of complainant case which otherwise seems to be going nowhere after the testimony of CW2. Surprisingly, the new facts which have been introduced by this witness by his examination in chief were never mentioned in the complaint or in the evidence of CW2 meaning thereby that they have been introduced to plug the gaps in the complainant story. Further his deposition that no payments against the cheque in question have been received by the complainant at any point of time is in material contradiction with the testimony of CW2 who has admitted receiving full and final 12 payments towards cheque in question on 20/02/2003.
32. Further from the cross examination of this witness, it has come on record that the purchase order dated 20/02/2003 was given by person working in the office of accused no. 2 and same was signed by employee of accused no. 2 which is also supportive of the defence of the accused that the purchase order was not placed by them. Complainant has not examined the said employee and signatory of purchase order to prove that he was authorized to place and sign purchase order on behalf of accused.
33. As quoted above in Krishna Janardhan Bhatt case (supra), the standard of proof so as to prove defence on part of the accused is "preponderance of probabilities" whereas prosecution has to prove guilt of accused beyond all reasonable doubt. It was also held by Apex Court in the said case that :
"26. A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In the case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration".
34. In totality of the facts and circumstances of the case and from the evidence brought on record, I am of the considered view that accused has successfully proved his defence and complainant has failed miserably to prove the guilt of accused beyond all reasonable doubts. Rather the doubts which are more than reasonable have crept in the whole story of complainant as discussed above.
35. In view of above discussion, accused no. 1 M/s SRJ Software Pvt Ltd. & 13 accused no. 2 Soumit Ranjan Jena stand acquitted of offence U/s 138 N I Act. Bail bond & surety bond of accused Soumit Ranjan shall remain intact for a period of 06 months for the purpose of Section 437(A) CrPC. File be consigned to record room with direction to retrieve the same as and when accused no. 3 ie. Preeti Jena who has been declared PO is arrested and brought before this court for facing trial.
Announced in the open court on 18/03/2011 (ANUJ AGGARWAL) Metropolitan Magistrate 03/N I Act/South Saket Court/New Delhi Certified that this judgment contains 13 pages and each page bears my signature.
(ANUJ AGGARWAL) Metropolitan Magistrate 03/N I Act/South Saket Court/New Delhi