Delhi District Court
V. Connect International vs . Dts Relocation Worldwide on 24 November, 2018
1
IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
V. CONNECT INTERNATIONAL Vs. DTS RELOCATION WORLDWIDE
CC NO. 461388/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : CC No. 461388/2016 (2) Name of the complainant : V. Connect International, Regd. Office T-88C, 2nd Floor, Khirki Market, Main Pres Enclave Road, New Delhi-110017.
Through AR Sh. H.R. Sharma.
(3) Name of the accused, : DTS Relocation Worldwide, Manish Bedi (Proprietor), C/o Sher Singh, DTS Relocation Worldwide, Office at: H.No. 1065, Bazar Mohalla, Tugalkabad Village, New Delhi (4) Offence complained of or proved : 138 Negotiable Instruments Act, 1881 (5) Plea of the accused : Pleaded not guilty (6) Final Order : CONVICTION (7) Date of Institution : 02.07.2016 (8) Date on which reserved for judgment : 04.10.2018 (9) Date of Judgment : 24.11.2018 V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 1 of 14 2 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
01. The brief facts of this case as carved out from the complaint are that in the year 2015, the complainant provided the service for sending the shipment to USA and Cuba vide invoices on the assurance of accused to make timely payment. The complainant sent the shipment of the accused persons to the destination i.e. USA and Cuba without delay as per accused direction/instructions. After delivering of consignment to the consignee, accused issued 05 post date cheques bearing nos. 025739, 025741, 025737, 025738, 025740 all dated 02.04.2016 and all amounting to Rs. 40,000/- against the bill raised by the complainant. On presentation these cheqaues got dishonoured with remarks "payment stop by drawer" vide returning memos dated 13.05.2016. Thereafter, on failure of accused to pay the said amount, a legal demand notice dated 27.05.2016 was sent to the accused through registered post which was deemed to be duly served upon the accused. Despite that payment of the cheque in question was not made by the accused within the stipulated time of 15 days. Hence, the instant complaint.
02. In the pre-summoning evidence, affidavit by way of evidence ExCW1/1 was filed by the AR of complainant. In his affidavit of evidence ExCW1/1, the complainant reiterated all the averments made in his complaint and relied on documents which are original authority letter dated 02.07.2016 Ex.CW-1/A, true copy of bills dated 27.11.2015 & 12.12.2015 Ex. CW-1/B1 (02 pages) & Ex. CW-1/B2 (02 pages) respectively, original cheques in question Ex. CW-1/C to Ex. CW-1/C5, their return memos Ex. CW-1/D1 to Ex. CW-1/D5, copy V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 2 of 14 3 of legal notice Ex. CW-1/E, postal receipts Ex. CW-1/F1 & Ex. CW-1/F2 and the tracking reports Ex. CW-1/G1 & Ex. CW-1/G2.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 05.07.2016.
03. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 27.06.2017 to which the accused persons pleaded not guilty and claimed trial. Accused stated that the cheques were given as undated as security towards the invoices. The dates on the cheques have been written in his handwriting. Accused stated that they always make the payment by cash. They have the business terms with the complainant from the last six years. Generally as and when the payment is made in cash, the cheque is being returned in lieu of cash payment. But the complainant has not returned the cheques in question despite receiving the payment.
04. Thereafter, oral request of accused U/s 145(2) N I Act to cross examine complainant and his witnesses was allowed vide order dated 27.06.2017 and the accused was given an opportunity to cross examine the complainant and his witnesses.
The accused failed to cross examine the complainant despite opportunities being given, therefore the opportunity of the accused to cross examine the complainant was closed vide order dated 04.01.2018. No other complainant witness was produced by the complainant and CE was closed vide V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 3 of 14 4 order dated 04.01.2018.
05. Thereafter, the plea of the accused no. 2 Manish Bedi s/o Late Sh. Harbans Lal Bedi u/s 313 r/w 281 CrPC was recorded vide order dated 03.02.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that he has already made the payments to the complainant in lieu of cheques but complainant has not returned my cheques. All the 05 cheques have been issued as undated cheques wherein he has not written the date and the same is apparent from the perusal of cheques. The complainant has not given him proper documents before delivery of consignment to consignee and even after delivery of consignment complainant delayed in issuance of POD because of which after delivery of consignment, consignee has suffered loss of 1600 dollars which were borne by him from his end. These charges have not been paid by the complainant and he reserves his rights to claim these charges from the complainant. They used to make cash payments to the complainant as per mutual understanding but complainant has never issued any receipt to us till date. After payment to complainant in cash, he had given hand written letter to bank for stop payment instructions stating that he has already made the payments to the complainant towards the cheques in question. He wants to summon the bank record regarding this. Apart from the transaction in question, they have given one service to complainant for which complainant has not paid even a single penny to us till date and complainant is liable to pay approx. Rs36000/- towards those services. Accused further stated that the cheques in question were issued V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 4 of 14 5 undated before the delivery of consignment. He has no legal liability to pay the cheques amount to the complainant. Accused stated that he did not receive the legal notice as at that time they have changed their warehouse to some other address.
Accused further expressed his desire to lead defence evidence.
06. Thereafter, matter was listed for DE and accused examined himself as DW-1 in his defence evidence. DW-1 was cross examined by Sh. Sumit Kumar, Ld. Counsel for complainant. No other defence witness was produced by the accused and thus, DE was closed vide order dated 25.08.2018 and matter was fixed for final arguments.
07. Sh. Sunil Kumar, Ld. Counsel for complainant and Sh. Shailender Singh, Ld. Counsel for accused no. 2 have addressed oral arguments.
By way of oral arguments, ld. Counsel for complainant has reiterated the written submissions filed on 12.10.2017.
On the other hand, Ld. Counsel for accused has argued that the accused has entered into witness box to prove his defence. The email mark X2 is on record to prove that complainant used to take the payment before release of shipment and accordingly all the payments have already been made to the complainant and complainant has intentionally misused the blank signed cheques given for the purpose of security at the time of shipment. The testimony of accused has remained unrebutted while complainant has failed to prove his case. The accused is required to show only a probable defence and accused has been able to discharge his part of burden of proof while V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 5 of 14 6 complainant failed to prove his own case, therefore, the accused is liable to be acquitted.
08. Arguments advanced by both parties heard. Case file perused meticulously.
09. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. A proprietary concerned is not a company within the meaning of Section 141 of the Act, both the proprietor and the proprietary concerned cannot be prosecuted u/s 138 of the NI Act. Therefore, the instant complaint is dismissed against accused no. 1 M/s DTS Relocation Worldwide, Proprietorship Firm.
11. In the case at hand, the issuance of cheques in question and their dishonour are not in dispute. Accused no. 2 has taken two defences, one he has not received the legal notice and second, he did not have the legal liability to pay the cheques amount to the complainant.
12. Now, this Court shall deal with the defences of the accused no. 2 one by one.
12A. FIRST DEFENCE - NON RECEIPT OF LEGAL NOTICE V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 6 of 14 7 A1. One line of defence taken by the accused no. 2 is that he did not receive the legal notice of demand dated 27.05.2016 Ex. CW-1/E. One of the essential ingredients for proving an offence U/s 138 N I Act is the sending the legal notice of demand. The complainant has deposed that the legal notice of demand dated 27.05.2016 Ex. CW-1/E was sent to the accused through registered speed post on 28.05.2016, receipts of which is Ex.-CW1/F1 and Ex. CW-1/F2.
A2. Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given. In the present case, no evidence in rebuttal has been led by the accused no. 2.
A3. In CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held --
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along-with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 7 of 14 8 statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
The accused no. 2 has nowhere disputed that his office was situated at the address on which legal notice has been sent rather accused no. 2 has taken defence that they have shifted the office to somewhere else. However, there is no denial to the correctness of address. Further, accused no. 2 had mentioned the same address on the bail bond furnished on 03.02.2018 on which legal notice has been sent.
Thus, in view of the above said dictum of the Hon'ble Apex Court, this court holds that the legal notice dated 27.05.2016 Ex. CW-1/E was served on the accused no. 2.
12B. SECOND DEFENCE - CHEQUE IN QUESTION NOT BEING GIVEN AGAINST ANY CONSIDERATION B1. It is the case of the complainant that accused no. 2 had availed the services of the complainant for sending shipment to USA and Cuba and cheques in question were issued to make the payments towards these shipments.
On the other hand as per accused no. 2, cheques were given only for the purpose of security and accused had already made entire payment by way of cash and only after the payment by the accused no. 1, shipments were released.
B2. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complaint, one under Section 139 NI Act and another under Section 118 (a) of V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 8 of 14 9 the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39). B3. In the present case, admittedly the accused no. 2 has availed the services of complainant for shipment at USA & Cuba. The testimony of complainant has remained unrebutted as accused has not availed the opportunity to cross examine the complainant. The defence of accused no. 2 is that he had already made payments to the complainant, therefore, the onus to prove the same is upon the accused no. 2. The accused no. 2 has taken different stands at different stages of trial. In the defence to notice U/s 251 CrPC as well as at the stage of plea recorded U/s 313 r/w 281 CrPC, the accused no. 2 had taken defence that he had given undated cheques as security towards the invoices. However, when accused no. 2 entered into witness box as DW1, he deposed that :
"Against the said 3 shipments, I had issued 5 security cheques to the complainant company which all were undated, as requested by the complainant company. I have not written the particulars of cheque and I have given only blank signed cheques towards security...................................I had handed over 5 cheques V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 9 of 14 10 to an employee of the complainant company at my old office ie HR-250, 60 foota road, Pul Prahladpur, New Delhi-44. I did not take any receiving against delivery of the aforesaid 5 cheques. The said cheques were only signed by me and does not bear any other particulars. Generaaly, cheques were issued for the purpose of security at the time of deal and after making payment, complainant used to return the security cheques".
Thus, as DW1 accused no. 2 had taken entirely different stand that he had given blank signed cheques as security though no such stand was taken by the accused no. 2 previously.
B4. Further, throughout the trial till defence evidence, accused no. 2 has not disputed the quantum of liability, however, when accused no. 2 entered into witness box as DW1, he disputed the quantum of liability for the first time by deposing that :
"I had liability to make payment of Rs1,66,000/- only but complainant has arbitrarily written the amount as Rs 2 lacs in the blank signed cheques given by me and thus misused the same".
However, accused no. 2 has not filed any document to corroborate his averment despite the fact that complainant had filed invoices/debit notes along with bill of lading to corroborate the liability of accused no. 2. B5. Further, accused no. 2 has deposed that :
"The shipment was in the month of January, February and March 2016 but they refused to give me the documents on the basis of which I could have taken the delivery of shipment. The shipment reached the destination but I could not collect the delivery because complainant had not given me necessary documents and had insisted payment in advance. I made the payment and got the documents and thereafter I collected the delivery through my client. In between, V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 10 of 14 11 the USA shipment was hold by the complainant company and was lying at destination port. My client has to make payment of US $ 1600 for which we had made the payment".
The accused no. 2 has also filed e mail dated 07.01.2016 Mark X2 to corroborate his averments that the consignment was delivered only after payments by the accused no. 2 because as per accused no. 2, payment was condition precedent for the delivery of consignment. The complainant had also filed e mail communications which are Mark X1 and the e mail dated 07.01.2016 Mark X2 is part of that e mail communication Mark X1. Though the accused no. 2 has denied receiving of e mail Mark X1 except the e mail Mark X2 but no reason is coming forward why accused no. 2 would receive only one e mail sent by the complainant on the same e mail address and not the other e mails. Moreover, the e mail communication Mark X2 shows that there were continuous e mail communications between parties but accused no. 2 has not filed the entire chain of communications and has filed two e mails arbitrarily which cannot be considered as a gospel truth.
B6. Further, as per accused no. 2, he has already made the payments to the complainant because payment was condition precedent for delivery of consignment. However, accused no. 2 has not disclosed the exact date, month or year of the payments nor accused no. 2 has filed the documents which complainant might have handed over to accused no. 2 for the release of shipment because as per accused no. 2, complainant retained the documents of consignment till payment was made. Admittedly, the transaction in question is V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 11 of 14 12 international business transaction and it is highly improbable that accused no. 2 would make the payment to the complainant without taking any receipt or acknowledgment from the complainant.
B7. Further, as per accused no. 2, his client had to make the payment of US 1600 $ for which accused made the payment. However, when accused no. 2 was asked to produce the receipt of the same, accused no. 2 deposed during cross examination that :
"I will produce the mail to show that my client has paid 1600 US $ to the Portal authorities for releasing shipments by complainant company. I do not remember the date of that e mail. I cannot produce the receipt of 1600 US $ paid by my client".
B8. Further, as per accused no. 2 the shipment had taken place from January to March 2016 and considering the averments of accused no. 2, he might have made the payments to the complainant by April 2016 and cheque in question has been presented in May 2016. Therefore, clearly accused no. 2 had the opportunity to atleast serve a legal notice or send an e mail to the complainant thereby demanding the return of his security cheques. However, accused no. 2 had not taken any steps as an ordinary prudent person to corroborate his averments that he had already made the payments to the complainant.
The oral averments of the accused no. 2 without any corroborative piece of evidence are of no help to the accused no. 2. B9. Further as far as the plea regarding issuance of blank signed cheques is concerned, the accused no. 2 cannot escape his liability only on this V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 12 of 14 13 ground because no law provides that in case of any negotiable instrument, entire body has to be written by the maker or drawer only. What is material is the signature of the drawer or maker and not the writing on the instrument. Hence, question of body writing/other contents except signatures is almost of no significance. In Ravi Chopra vs State 2008 (2) CC Cases (HC) 341, Delhi High Court rejected the application for obtaining opinion of the handwriting expert on the point whether particulars of name, date etc. were filled up at different times by testing the ink used and handwriting appearing though signatures on the cheque were admitted. Court while discussing various provisions of Negotiable Instrument Act held that giving of blank signed cheque is not barred under the Act and filling of material particulars in it even by the complainant subsequently would not amount to material alteration. The court also held that opinion of the expert, if received, that particulars of cheque were filled up at different times from that of signatures, itself would not prove that accused no. 2 had no legal liability on the date of presentation of cheque, as alleged in defence.
It was further held by the Hon'ble High Court of Delhi in the case of Jammu & Kashmir Bank vs Abhishek Mittal (Crl. A No. 294/2001 decided on 26.05.2011 that :
"there is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Once a blank cheque is signed and handed over, it means that a person signing it has given implied authority to the holder of the cheque to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 13 of 14 14 had been issued by him".
Moreover, no reason is coming forward why complainant would fill the cheques arbitrarily with an amount of Rs02 lacs only when admittedly the transaction was for higher amount.
13. In view of above dictum and in view of above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have not been rebutted by the accused and complainant has been able to prove his case beyond reasonable doubts.
Resultantly, this court finds the accused no. 2 Manish Bedi, Proprietor of DTS Relocation Worldwide guilty for the offence punishable U/s138 N I Act. Hence, he stands convicted.
14. Let accused be heard on the quantum of sentence on 15.01.2019. Copy of the judgment be given dasti to the convict free of cost. Announced in the open court on 24.11.2018 (PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 14 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi V. Connect International Vs. DTS Relocation Worldwide CC No. 461388/2016 Page 14 of 14