Delhi District Court
V L Estate Pvt Ltd vs . Rakesh Bhandari on 26 August, 2014
IN THE COURT OF MS. JASJEET KAUR
CIVIL JUDGEI/ METROPOLITAN MAGISTRATE
NEW DELHI
CC. No. 1038/11
Unique ID No.
V.L. Estate Pvt Ltd.
204, Neelgiri Apartment
Barakhamba Road,
Connaught Place,
New Delhi110001 ...Complainant
Versus
Rakesh Bhandari
Proprietor
Fine Fabricators,
730/13, Urban Estate
Karnal, Haryana ... Accused
Date of Institution: 01.09.2006
Date of Reserving Judgement: 26.08.2014
Date of Judgement: 26.08.2014
JUDGMENT
1. The brief facts of the present case from the perspective of the complainant as discernible from the complainant are that the complainant V.L. Estate Pvt Ltd is a private limited company, duly incorporated under the companies Act 1956 having its registered office at 204, Neelgiri Apartment Barakhamba Road, Connaught Place, New Delhi110001 and is engaged in the business of manufacturing of Aluminum and Plastic Sheet used for fabrication and construction purposes. The accused is the proprietor of Fine Fabricators, a proprietorship concern engaged in the business of fabrication and the accused had purchased goods from the complainant company vide invoice cum delivery challan dated 08.06.2006 CW1/D2.
2. It is the case of the complainant that the accused had issued CC No. 1038/11 1/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari a cheque bearing number 027351 dated 04.07.2006 drawn on ICICI Bank Limited, Karnal in the sum of Rs.1,54,000/ towards payment of the consideration amount for purchase of goods from the complainant company vide the above mentioned invoice cum delivery Challan dated 08.06.2006. However, the said cheque was dishonoured upon presentation due to insufficiency of funds in the account of the accused bearing no. 017305000754 vide cheque return memo dated 05.07.2006 and thereafter, the complainant company had issued the legal demand notice dated 13.07.2006 calling upon the accused to make payment of amount of Rs.1,54,000/ stipulated in the dishonoured cheque within 15 days of receipt of the legal notice. Consequent upon the failure of the accused to make payment of the amount stipulated in the dishonoured cheque within the statutory period of 15 days of receipt of legal notice, the present complaint for the alleged commission of offence punishable under section 138 of the Negotiable Instruments Act 1881( hereinafter referred to as NI Act) was filed against the accused by the complainant.
3. On receipt of the present complaint by way of assignment, the learned predecessor court had directed the complainant to lead pre summoning evidence. The complainant company examined Sh. J P Mishra as CW1 in presummoning evidence by way of affidavit Ex.CW1/10 whereby CW1 had proved on record certificate of incorporation of complainant company CW1/1, the Board Resolution authorising him to file the present complainant Ex. CW1/D1, the cheque bearing number 027351 in the sum of Rs.1,54,000/ issued by the accused Ex.CW1/3, the return memo dated 05.07.2006 Ex. CW1/4 issued by the banker of the accused in respect of dishonour of cheque Ex.CW1/3 due to insufficiency of funds in the account of the accused, the legal notice dated 13.07.2006 Ex. CW1/5 CC No. 1038/11 2/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari issued by the complainant for demanding payment of the cheque amount of the dishonoured cheque from the accused and the under postal certificate(UPC) receipt Ex. CW1/6 as well as courier receipt Ex.CW1/7 issued by Origin Express India North Limited Courier Service in respect of dispatch of the legal notice through UPC and courier respectively.
4. After the appreciation of oral and documentary evidence produced by the complainant, the accused was summoned to face trial for the commission of offence punishable under section 138 NI Act by the learned Predecessor Court vide order on summoning dated 22.12.2006.
5. During the course of trial, notice of accusation under section 251 of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.PC) was served upon the accused for the alleged commission of offence punishable under section 138 of Negotiable Instruments Act on 17.12.2011 to which the accused had pleaded not guilty and had claimed trial.
6. Upon the accused pleading not guilty to the notice under section 251 Cr.PC served upon him, an opportunity was given to complainant company to prove its case by leading evidence in support of the same. Complainant company examined two witnesses in order to prove its case. A brief account of the depositions made by the witnesses of the complainant is reproduced below:
7. CW1 S. K. Bansal tendered his evidence by way of affidavit dated 05.06.2012 Ex. CW1/A wherein he had reiterated the facts set out in the complaint by claiming that the cheque Ex.CW1/3 was issued by the accused in discharge of liability to pay the cheque amount for purchase of certain goods, that is, aluminum composite panel sheets from the complainant company vide invoice cum delivery challan dated 08.06.2006 Ex.CW1/D2. However, the cheque Ex. CW1/3 was dishonoured on CC No. 1038/11 3/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari presentation due to insufficiency of funds in the account of the accused vide return memo dated 05.07.2006 Ex. CW1/4 and thereafter, the complainant company had issued the legal demand notice dated 13.07.2006 Ex.CW1/5 calling upon the accused to make payment of the cheque amount stipulated in the dishonoured cheque and the said legal notice was dispatched to the residential address of the accused under postal certificate (UPC) receipt Ex.CW1/6 as well as through Origin Express India North Limited Courier Service vide courier vide receipt Ex.CW1/7. CW1 also relied upon Board Resolution Ex.CW1/2 authorizing him to institute the present complaint issued by the Boards of Directors of the complainant company as well as on return envelope Ex.CW1/8 in respect of postage of legal notice sent to the Karnal address of accused through registered AD. The complaint was also duly proved on record as CW1/9 in the testimony of CW1.
8. In his crossexamination by Sh. Trilok Chand, learned counsel for the accused CW1 admitted that the transaction between the complainant and the accused had not taken place in his presence. He, however, denied the suggestion that he had no personal knowledge about transaction between the complainant and the accused. He clarified that he was employed in the legal department of the complainant company and the previous authorised representative of the complainant company had apprised him about the entire transaction in respect of supply of goods to the accused by the complainant company as well as about the issuance of cheque in question by the accused in favour of the complainant company. He stated that there were two directors in the complainant company. On being confronted with Board Resolution Ex.CW1/D1, CW1 deposed that he was not sure whether there were two directors in the complainant company in August, 2006 or not. He, however, clarified that at the time of his cross CC No. 1038/11 4/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari examination on 17.11.2012, there were only two directors in the complainant company and he had been authorised by both directors Sh. Sumit Gupta and Ms. Roma Garg. He further clarified that the complainant company used to take orders for supply of goods in writing as well as verbally from the customers. He deposed that he had not personally seen the supply account of the complainant. He stated that previous AR of complainant Mr. J. P. Mishra had handed over to him delivery invoice dated 08.06.2006 Ex.CW1/D2 wherein the goods were shown to have been delivered to M/s. Fine Interior, the proprietorship concern of the accused. He clarified that there were no signatures of the receiver of goods on document Ex. CW1/D2 as the accused had personally visited the office of complainant company at Connaught Place and had handed over post dated cheque Ex. CW1/3 to the representative of the complainant while requesting the said representative of the complainant company to send the goods to Karnal. CW1 further deposed that the goods were dispatched from godown of the complainant company at Swaroop Nagar to one of the representatives of the complainant company, namely, Sh.Singla, from whom the accused had taken delivery of the goods at Karnal. He deposed that complainant company did not use to maintain any other record except delivery invoices for showing that the goods were dispatched from the godown of the complainant and according to the delivery invoice Ex.CW1/D2, the accused had been supplied twenty eight aluminum panel sheets having thickness of 4mm each. He denied the suggestion that the delivery invoice Ex.CW1/D2 was forged since the accused was not running any proprietorship concern in the name and style of Fine Interior. He expressed his inability to tell whether the accused was running his proprietorship firm in the name and style of Fine Fabricators or not. He deposed that he did not know any place CC No. 1038/11 5/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari known as Hotel New World, Karnal and was not aware about the name of the owner of the said hotel. He denied the suggestion that the goods in respect of invoice cum delivery challan Ex.CW1/D2 were in fact sold by the complainant to Hotel New World, for whom the accused had stood as a guarantor.
9. CW2 Kapil Malhotra, Manager ICICI Bank, Connaught Place produced the summoned record, that is, statement of account of complainant company V. L. Estate Pvt Ltd. bearing no. 630305005048 with effect from 28.06.2006 to 03.08.2006 Ex.CW2/A and deposed that as per the summoned record cheque no. 027351 dated 05.07.2006 in the sum of Rs.1,54,000/ Ex. CW1/3 had been dishonoured for want of sufficient funds in the account on which it was drawn.
10. In his cross examination by Sh. Trilok Chand, learned counsel for the accused, CW2 proved on record authority letter empowering him to depose in the present matter as Ex. CW2/B. He deposed that he had no knowledge of the fact as to why the cheque in question had been given to the complainant. He admitted that the entry of cheque no. 027351 contained in statement of account of complainant Ex. CW2/A had not been made in his presence. He clarified that being the Deputy Manager of his branch, he was a competent person to certify the statement of account of any account being managed at his branch as per the provisions of the Bankers' Books Evidence Act, 1891.
11. After the complainant closed its evidence, statement of accused Rakesh Bhandari under section 313 Cr.PC was recorded on 24.09.2013 wherein an opportunity was given to the accused to explain all the incriminating circumstances that had appeared against him in the testimonies of witnesses examined by complainant. The accused denied all CC No. 1038/11 6/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari the incriminating circumstances that were put to him and had claimed to have been falsely implicated in the present case. Accused Rakesh Bhandari claimed in his defence that he had never placed any purchase order with the complainant company and had issued the cheque in question as a guarantor for purchase orders placed by Hotel New World where the goods were supposed to be supplied by the complainant. He claimed that the cheque was issued by him in the blank condition. He further claimed that the representative of the complainant company had approached him for promotion of the business of his company and had delivered to him 17 aluminum panel sheets of 500 sq.feet area to promote the business of the complainant company. He also claimed that the complainant had not supplied any goods to Hotel New World and had misused the cheque in question in order to falsely implicate him in the present legal proceedings. The accused claimed that he had also not received any legal notice. He preferred to lead evidence in his defence and had examined himself as DW1 in his defence.
12. DW1 Rakesh Bhandari deposed that he was working as a Interior Consultant with Hotel New World, Karnal and in the year 2006, a representative of the complainant company belonging to Bihar had approached him to get the complainant company's product installed at the premises of Hotel New World, Karnal and he had given an assurance to the said representative of the complainant to make efforts for getting the product of the complainant company installed in the building of Hotel New World subject to approval of Mr. Sunil, the owner of Hotel New World He further deposed that initially the complainant company had demanded an advance security cheque from Mr. Sunil, the owner of Hotel New World, however, upon refusal by Mr. Sunil to hand over the advance security CC No. 1038/11 7/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari cheque to the complainant company, the representative of the complainant company had approached him for obtaining the said security cheque from him and he had accordingly issued a cheque bearing number 027351 Ex. CW1/3 in blank condition in favour of the complainant in the year 2006. He stated that the complainant company had got 16 to 17 aluminum composite panel sheets installed at the construction site of Hotel New World as a sample and since the said sample had failed, therefore, the order for the remaining aluminum composite panel sheets was given to some other company by the owner of Hotel New World. He further claimed that thereafter, the complainant company had misused the two cheques handed over by him to the representative of the complainant company as a security and had filed the present case as well as the another complaint under section 138 NI Act against him at Saket District Court.
13. In his cross examination by Sh. Mehul Singh, learned counsel for complainant, DW1 deposed that he had been residing at 730/13 Urban Estate, Karnal, Haryana since last 30 years with his children Mayank Bhandari and Reema Bhandari. He admitted that the signatures appearing at point X on registered AD Card Ex.CW1/7 as an acknowledgment of receipt of the legal notice issued by the complainant company were of his son. He admitted that legal notice Ex.CW1/5 had been received by his son. He, however, claimed in his defence that his son had never informed him about the receipt of legal notice. He clarified that he had been first associated with Hotel New World, Karnal in the year 2006 and had done the work of false ceiling and glass installation for them which he had continued for a period of about six months. He could not recall the name of the representative of the complainant company who had approached him for getting installed aluminum composite panels manufactured by his company CC No. 1038/11 8/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari at Hotel New World, Karnal. He deposed that no tenders had been invited by Hotel New World or himself in respect of work of installation of aluminum composite panels. He denied the suggestion that being the Interior Designer of the Hotel New World, it was his duty to select materials to be used in construction. He deposed that the complainant company had not directly approached the owner of Hotel New World as the staff of the said hotel had given them his details including phone number. He admitted that the cheque was issued when the order for mock up/sample was placed. He denied the suggestion that the cheque in question was issued only for mock up and deposed that the cheque in question was issued as a security cheque for the entire project and the mock up itself was not completely installed as out of 16 or 17 sheets supplied by the complainant only 12/13 sheets were installed and thereafter the representative of the complainant company had been informed that the project was being given to some other company by Hotel New World. He deposed that he had not told the representative of the complainant company to remove the sheets installed by the complainant company and rather Mr. Sunil, the owner of the Hotel New World had directed the complainant company to remove the said sheets. He stated that he had requested the representative of the complainant company to return the two cheques issued by him as security and had telephonically communicated his request for return of his cheques to Sh. Jha, the representative of the complainant company. Although the accused had managed to recall the name of the representative of the complainant company as Mr.Jha. However, he had expressed his inability to recall the phone number of Sh. Jha. He deposed that he had informed Mr. Sunil about the fact that the complainant company was not returning cheques issued by him. However, he had not given any notice in writing to CC No. 1038/11 9/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari Mr. Sunil telling him that the cheques issued by him were being misused by complainant because of the project of Mr.Sunil. He deposed that he was not an Interior Designer by profession and was rather working as a Consultant for fabrication work since the year 2002. He stated that he knew Mr. Sunil of Hotel New World Karnal since the year 199596 as he himself lived in the same city where Mr.Sunil used to reside, that is, Karnal. He deposed that he had given security cheques in relation to his business of fabrication on behalf of four or five parties who were neither his relatives nor neighbours and were not known to him in any manner. He, however, expressed his inability to recall the names of the said parties or to produce any of the said parties in the court on behalf of whom he had issued security cheques. He admitted his signatures on cheque Ex.CW1/3 but deposed that the cheque amount, the date and name of beneficiary had not been filled by him. He deposed that he had not sued Mr.Sunil for recovery of the cheque amount despite the fact that he had given the cheque in question to the complainant company on behalf of Mr.Sunil. He denied the suggestion that he himself had placed the order and received the materials for his project and had issued cheque in question towards the price of the material. On being confronted with bill (invoice) Ex.CW1/D2 raised by the complainant towards purchase of Aluminum Panels Sheets, DW1 deposed that the bill was not in the name of his firm Fine Fabricators but was instead in the name of a firm named, Fine Interior, which was not his firm. He, however, admitted that the address of his firm Fine Fabricators was the same as the address mentioned on Bill Ex. CW1/D2. He stated that he had neither issued any legal notice nor sent any email or any other written communication to the partners of the complainant company in respect of misuse of his cheque.
14. After the accused closed his defence evidence, final CC No. 1038/11 10/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari arguments have been heard from Sh. Mehul Singh learned counsel for the complainant and Sh. Trilok Chand learned counsel for the accused, on 19.08.2014 as well as today on 26.08.2014. Learned counsel for the complainant has argued that the complainant has successfully proved its case against the accused by examining CW1 S.K. Bansal who has fully supported the case of the complainant by deposing that the cheque Ex.CW1/3 was issued by the accused towards payment of consideration amount for purchase of aluminum panel sheets from the complainant company and the said cheque was dishonoured due to insufficiency of funds in the account of the accused. Learned counsel for complainant has further argued that the accused had failed to make payment of the cheque amount within 15 days from the receipt of legal notice served upon the accused. Hence, the accused deserves to be held guilty for the commission of offence punishable under section 138 NI Act.
15. Learned counsel for the accused has on the other hand, advanced following arguments in defence of the accused.
16. Firstly, learned counsel for the accused has argued that the accused had not received any legal demand notice from the complainant company whereby the officials of complainant company had called upon him (the accused) to make payment of the cheque amount. Learned defence counsel has further submitted that since the present complaint has been instituted without service of mandatory legal notice under section 138 NI Act upon the accused, therefore the present complaint is liable to be dismissed and the accused deserves to be acquitted.
17. Secondly, learned defence counsel has argued that no material was in fact ever supplied by the complainant company to the accused and the cheque in question was issued by the accused in favour of CC No. 1038/11 11/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari the complainant as a security cheque for installation of the entire project of installation of aluminum panel sheets at the Hotel New World, Karnal. However, the mock up or sample for the said project itself could not be completed and once the mock up of the complainant company had failed then the project of installation of aluminum panel sheets was given to some third party by the owners of Hotel New World, Karnal and thereafter complainant company had misused the security cheque given by the accused by presenting same for encashment instead of returning the same to the accused.
18. Learned defence counsel has also submitted in this context that that the cheque in question had been handed over by the accused to the representatives of the complainant company in blank condition and all the particulars on the cheque including the cheque amount, the date and the name of the beneficiary had been filled by the officials of the complainant company. Therefore, the particulars on the cheque in question have been forged by the officials of the complainant company and the accused cannot be held guilty for dishonour of a forged or tampered cheque.
19. Thirdly, learned defence Counsel has submitted the delivery invoice Ex.CW1/D2 relied upon by the complainant has been raised on a firm named, Fine Interiors and the accused has no relation with the said firm as the accused is the owner of a proprietorship concern being run in the name and style of Fine Fabricators and not Fine Interiors. Therefore, learned defence counsel has submitted that accused cannot be called upon to make payment of cheque amount to clear outstanding dues of an alien firm, named, Fine Interiors.
20. Hence, learned defence counsel has submitted that there is CC No. 1038/11 12/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari no incriminating evidence against the accused and the accused deserves to be acquitted. Learned counsel for accused has relied upon the judgement passed in the case of John K Abrahim v. Simon C. Abraham and another 2014 A CD 560 (SC) in support of his arguments.
21. I have considered the rival submissions of the parties and perused the entire evidence led by the parties. I shall now examine the arguments advanced by learned counsel for accused in defence of the accused in the light of evidence led by the parties.
22. Firstly, it has been argued on behalf of the accused that the accused had not received any legal notice from the complainant whereby the complainant had called upon him to pay the cheque amount. Hence, the complainant under section 138 NI Act is not maintainable as the complainant had failed to serve the notice of demand upon the accused, for calling upon the accused to make payment of the cheque amount which is mandatory pre requisite for initiating proceedings under section 138 NI Act against an accused person.
23. In this context, a perusal of court record shows that while being examined as DW1, accused Rakesh Bhandari had admitted that the legal notice Ex.CW1/5 was received by his son Mayank Bhandari at his residential address of 730/13, Urban Estate Karnal, Haryana where he was residing for the last 30 years. It is however, the defence of the accused that his son had not informed to him about receipt of any legal notice, and therefore, he was not aware whether the complainant company had issued any legal notice to him or not. However, it is not the defence of the accused that his son Mayank Bhandari was either not residing with him or was not communicating with him due to any kind of family dispute. Besides, it is also not the defence of the accused that the son of accused named, Mayank CC No. 1038/11 13/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari Bhandari was a minor and was not capable of understanding the significance of a legal notice. In this context, it is noteworthy that even as per the provisions of section 64 of the Code of Criminal Procedure, any summon issued by a court of law is deemed to be served upon the accused, if the same is received by any adult male member of his family. Although, legal notice is not a process of the court. However, in the present case the same has been served upon a male member of the family of accused who is not a minor as per the defence of the accused. Moreover, as per the provisions of section 27 of the General Clauses Act, a letter sent to the correct address is deemed to be served upon the addressee if not received back unserved within reasonable time from the day of its dispatch. Section 27 of the General Clauses Act is reproduced below in this context.
Section 27 Meaning of service by post where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression ''serve'' or either of the expressions ''give'' or ''send'' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
24. While giving mandate to the provisions of section 27 of the General Clauses Act, similar observations were made by Hon'ble Supreme Court of India in the decided case of C.C. Alavi Haji Vs Palapetty Muhammad & Anr decided on 18 May, 2007, Appeal (crl.) 767 of 2007 wherein the Hon'ble Apex Court had observed that when a legal notice sent at the correct address of the accused by registered post is not received back unserved within reasonable time, then the same can be deemed to have been served upon the accused. The Hon'ble Apex Court had further observed that the service of legal notice can also be deemed to have been CC No. 1038/11 14/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari effected upon the accused even where the same is received back unserved with endorsement of house locked, refused or addressee not in station etc. Observations made in para 14 of the judgement passed in this case of C .C. Alavi Haji vs Palapetty Muhammed & Anr decided on 18 May,2007 Criminal appeal no. 767 of 2007 are noteworthy in this context and are reproduced below:
14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
25. In view of the above cited provisions of General Clauses Act and above cited observations made by Hon'ble Supreme Court of India in the decided case of C.C. Alavi Haji Vs Palapetty Muhammad & Anr (Supra) the legal notice can be deemed to have been served upon accused Rakesh Bhandari through his son Mayank Bhandari as per the provisions of Section 27 of General Clause Act. Even otherwise the accused cannot claim in his defence that of non service of legal notice upon him is a ground for rejection of the entire case of the complainant at the fag end of the trial. In this context, it has been observed by Hon'ble Apex Court in the case of CC No. 1038/11 15/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari C.C. Alavi Vs Palapetty Muhammad & Anr that if the accused wishes to claim benefit of defence of non service of legal notice upon him then the accused must make payment of the cheque amount to the complainant within 15 days of service of summons of the court upon him. However, in the present case the accused had expressed no desire to make payment of the cheque amount to the complainant company till the conclusion of the trial. Therefore, the accused cannot claim benefit of the defence of non receipt of legal notice by him at the stage of final arguments as the accused had never offered to make payment of the cheque amount within 15 days of service of summons issued by the court. Observations made in para 17 of the judgement passed in this case of C.C. Alavi Haji vs Palapetty Muhammed & Anr decided on 18 May,2007 Criminal appeal no. 767 of 2007 (Supra) are noteworthy in this context and are reproduced below:
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 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 under Section 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 under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act.
26. In the light of aforecited observations made by Hon'ble Apex CC No. 1038/11 16/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari Court, in the case of C .C. Alavi Haji vs Palapetty Muhammed & Anr (Supra), it can be safely concluded that the accused who does not make any effort to make payment of the cheque amount within 15 days of receipt of summons of the court cannot claim the benefit of the defence of non service of legal notice upon him. Moreover, in the present case, it has been admitted by the accused that the legal notice had been duly received by his son Mayank Bhandari. In the light of my foregoing discussion, I am of the considered opinion that there is no merit in the first arguments advanced by learned defence counsel that the accused deserves to be acquitted as he had not been served with any legal notice issued by the complainant before the filing of the present complaint whereby the complainant company had called upon him to make payment of the cheque amount.
27. Secondly, it has been argued on behalf of the accused that the cheque in question was a security cheque on which the accused had merely put his signatures and the rest of the particulars including the cheque amount, the date and the name of the beneficiary were subsequently filled by the officials of the complainant company. Learned defence counsel has further submitted that the security cheques handed over by the accused on behalf of Mr.Sunil of Hotel New World has been misused by the officials of the complainant company to falsely implicate him in the present criminal case for the commission of offence punishable under section 138 of NI Act by forging the cheque in question, that is, by inserting the particulars including the name of the beneficiary, the cheque amount and the date on the cheque in question despite the fact the job of installation of aluminum composite panels sheets assigned to complainant had been cancelled by Hotel New World, Karnal due to failure of the mock up or sample installed by the complainant company.
CC No. 1038/11 17/33V L Estate Pvt Ltd Vs. Rakesh Bhandari
28. I am not in agreement with the above mentioned second argument advanced by learned defence counsel. In this context, a perusal of the court record shows that in his cross examination as DW1, accused Rakesh Bhandari has stated that the cheque in question was issued as a security cheque by him on behalf of Mr.Sunil, owner of Hotel New World and the same has been misused by the complainant. The accused has disputed his hand writing on the cheque by claiming that he has not filed the particulars on the cheque in question including the date, the cheque amount and the name of the beneficiary. However, it has been admitted by the accused that he has duly signed cheque Ex.CW1/3. Therefore, the presumption of section 139 NI Act can be drawn against the accused. The provision of section 139 NI Act is reproduced below in this context:
139. Presumption in favour of holderIt 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, of any debt or other liability.
29. A perusal of the above cited provision of section 139 of the N.I. Act reveals that the said section contains a presumption in favour of the holder of the cheque and against the drawer whereby it can be presumed that the drawer had issued the cheque in question in discharge of a debt or liability to pay the cheque amount to the holder of the cheque. However, the said presumption is a rebuttable presumption and it has been time and again reiterated by Hon'ble Supreme Court of India that it is upon the accused to raise a probable defence to challenge or demolish the presumption of the existence of a legally enforceable debt or liability against which the cheque in question had been issued by him. However, when an accused is called upon to rebut the presumption under section 139 N.I. Act, the standard of proof for doing so cannot be equivalent to the standard of CC No. 1038/11 18/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari proof which rests upon the prosecution in a criminal trial. The accused merely has to prove his defence on the scale of preponderance of probabilities whereas the complainant or prosecution are required to establish their case beyond reasonable doubt. Observations made by Hon'ble Supreme Court of India in Para14 of the judgement passed in case of Rangappa Vs Mohan, AIR 2010 SC 1898, are noteworthy in this context and are reproduced below: "In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clause usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the CC No. 1038/11 19/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
30. Applying the ratio of the aforecited judgement passed in the case of Rangappa Vs Mohan, AIR 2010 SC 1898 (Supra) to the fact of the present case, it can be safely concluded that since the accused has admitted his signatures on the cheque in question, therefore, a presumption can be drawn that the complainant had lawfully obtained the cheque from the accused who had issued the same in discharge of a legally enforceable debt or liability to pay the cheque amount. However, the said presumption is a rebuttable presumption and if the accused is able to disclose a probable defence, to the presumption under section 138 NI Act then it is the duty of the complainant to clarify how the cheque in question was issued in discharge of a legally enforceable debt or liability by the accused. The presumption under section 139 of Negotiable Instruments Act can be rebutted by an accused person by raising a probable defence. However, the standard of proof expected from the accused to establish the probability of his defence is not the same as the standard of proof expected from prosecution or complainant in a criminal trial. While the complainant or prosecution is expected to prove its case beyond reasonable doubt. The accused is on the other hand expected to merely prove his defence on the scale of preponderance of probabilities. Also, for the purpose of raising a probable defence to rebut the presumption contained in section 139 of NI Act, the accused can either lead evidence of his own or the accused can rely upon the evidence and materials placed on record by the complainant. In the light of this legal proposition, I shall now examine the probability of the above mentioned defence of the accused.
31. It is the defence of the accused that the cheque in question CC No. 1038/11 20/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari was issued by him along with another cheque as a security on behalf of Hotel New World, Karnal for whom he was working as a fabricator and since the deal between Mr.Sunil, the owner of Hotel New World and the complainant company could not be finalised, therefore he had no liability to pay the cheque amount. However instead of returning the cheque issued by the accused, the complainant company had misused the same by presenting the same for encashment. In this context, it has been further submitted on behalf of the accused is that the accused had merely signed the cheque when it was blank and the particulars including cheque amount, date and the name of beneficiary had been filled on the cheque in question by the officials of complainant company.
32. In this context, it is pertinent to mention that the accused has led no evidence to prove any of the defences taken by him. Although it is the main defence of the accused that the cheque in question was handed over by him in blank condition to the complainant and he had not filled the cheque amount, the date or the name of the beneficiary in the same. However, accused has not got the cheque in question examined from any handwriting expert in support of his claim that the handwriting on the cheque did not belong to him. It is therefore, noteworthy that the accused has merely alleged that the cheque in question had been forged by the officials of the complainant company but has not supported his allegations that the cheque in question was a forged or manipulated cheque either by leading independent evidence of his own or by pointing to any evidence led by the complainant or also by relying upon any material or document placed on record by the complaint whereby an inference can be drawn that the cheque amount, date and the name of the beneficiary on the cheque in question Ex. CW1/3 had not filled by the accused and the same had been CC No. 1038/11 21/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari filled or inserted by the employees of the complainant company on the cheque.
33. In this context, Hon'ble Supreme Court of India had observed in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 that as per the provisions of Section 45, 47 and 73 of the Indian Evidence Act 1872 there were three different modes of proving the handwriting of any person in a litigation. Firstly, the handwriting on any documents can be proved by the admission of person responsible for writing or executing the document in question. Also, the handwriting of any person on a document can be proved through the testimony of a witness in whose presence the executor of the document had written or signed the same. Secondly, the handwriting of a person on a document can be proved by the testimony of a person who is familiar with the handwriting of the person whose handwriting is in dispute. Besides, as per the provisions of Section 45 of the Indian Evidence Act the handwriting of a person on a document can be proved by the opinion of a handwriting expert Thirdly, Section 73 of the Indian Evidence Act also provides scope for comparison by the court concerned of a handwriting made in the presence of the court or of any admitted or duly proved handwriting of the person concerned with the handwriting in dispute. Observations made in this context by the Hon'ble Apex Court in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 in para 10 of the judgement are noteworthy in this context and are reproduced below:
"10. Evidence of the identity of handwriting receives treatment in three sections of the Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best CC No. 1038/11 22/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person."
34. Applying the ratio of the abovecited decided case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 to the facts of the present case, I am of the considered opinion that if there are three modes of proving the handwriting of any person on a document, then the same three modes can be used for disproving the hand writing of any person on any document. If the accused wanted to disprove his handwriting on the cheque in question, then he should have ideally got the cheque in question examined from a handwriting expert. In the alternative, the accused could have produced the person responsible for writing the particulars on the cheque in question along with the admitted handwriting of the said person responsible for writing the particulars of the cheque in question for a comparison by the Court during the recording of evidence. Even, if the accused was not aware about the identity of the third person or employee of the complainant company responsible for writing the particulars on the cheque in question then also accused should have at least produced his own admitted or duly proved hand writing for comparison with the questioned handwriting by this court or by an handwriting expert. However, accused has chosen neither to get the cheque in question examined from a handwriting expert to prove that the cheque in question had not been filled by him and the particulars on the cheque including the cheque amount, date and the name of the beneficiary were not in his handwriting nor has the accused produced any admitted handwriting of his own for comparison CC No. 1038/11 23/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari by the Court with the questioned handwriting of himself on the cheque in question.
35. In these circumstances, accused Rakesh Bhandari has made a bald assertion that he had signed a blank cheque and had handed over the same to the representative of the complainant, which is not substantiated by any oral, ocular or documentary evidence including the opinion of handwriting expert. Besides, the defence of the accused has also not been sustained or proved from the evidence led by the complainant. Therefore, neither any inference can be drawn from the evidence produced by the complainant that the particulars on the cheque in question were not filled by the accused nor the accused has led any independent evidence of his own in support of his claim that the particulars on the cheque in question had been filled by the officials of the complainant company. Hence, the probability of defence of the accused that the cheque in question was handed over by him in blank condition to the representative of the complainant who had filled in the particulars on the said cheque has not been proved on the scale of preponderance of probabilities.
36. It is the other defence of the accused that the cheque in question was handed over by him as a security cheque on behalf of his client Hotel New World, Karnal, however, the accused has not led any evidence in support of his above mentioned defence. Neither, the accused has examined Mr.Sunil, the owner of Hotel New World, Karnal in support of his claim that he had issued the cheque in question on behalf of Mr.Sunil, the owner of Hotel New World, Karnal. Nor has he produced any documents in support of his claim that the goods in respect of which cheque in question was issued were in fact purchased by Mr.Sunil, the owner of Hotel New World, Karnal. Moreover, as per the invoice CC No. 1038/11 24/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari Ex.CW1/D2, the goods, that is, 28 aluminum panel sheets were delivered at the address of the accused and not at Hotel New World, Karnal. Hence, neither from the evidence and documents produced by the complainant nor from the independent evidence led by the accused any conclusion or inference can be drawn that in question had been issued by the accused as a security for goods purchased by Hotel New World, Karnal. Hence, the bald assertion made by the accused that the cheque in question was issued by him as a security on behalf of his client Mr.Sunil is not of any help in raising a probable defence against the presumption of section 139 which can be drawn against the accused on the basis of his having admitted his signatures on the cheque in question.
37. In a similar case decided by Hon'ble High Court of Delhi in the case of Vijay Power Generators Ltd vs Annai Engineering Works & Anr decided on 22 April, 2014 Crl. Appeal No.1437 of 2013 and Crl. Appeal No. 1447 of 2013, wherein accused had examined himself as DW1 in his defence and had claimed that he had issued the cheque in question as a blank security cheque and since he had not received any generator from the complainant company in respect of purchase of which he had issued the cheque in question therefore the cheque in question had been misused by the complainant company, the Hon'ble High Court had rejected the defence of the accused on the ground that in his cross examination by the complainant, the accused had admitted that he had taken two generator sets from the complainant company whereas he had earlier taken a contrary stand in his statement u/s 313 Cr.PC by stating that he had issued cheque in question as a security for 7 generators to be purchased by him from the complainant company and therefore the onus was on the accused to prove that he had paid the consideration amount for the generator set CC No. 1038/11 25/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari supplied to the accused in view of mutually contradictory stands taken by the accused particularly when the accused had not sent any notice to the complainant calling upon the complainant to return his security cheques. Observations made in para 6 of the said judgement are noteworthy in this context and are reproduced below: "6. The only evidence led by the respondent to discharge the statutory onus placed on him is his own deposition as DW1. In the examinationin chief deposition the respondent inter alia stated that there was no outstanding liability of the complainant Company towards him and the cheques in question were signed as blank, as security in reference to purchase of generators. He also claimed that he had not received any generator from the complainant Company for which cheques in question had been issued. During cross examination by the learned counsel for the complainant, DW1 Mr. J. Stanishlaus, Proprietor of Annai Engineering Works stated that he had taken just 12 generator sets from the complainant Company. He specifically denied the suggestion that he had purchased seven (7) generator sets from the complainant Company. Thus, the case as set out by DW1 in his deposition is that he had purchased only 12 generator sets from the complainant Company. On the other hand, in his statement under Section 313 of Cr.P.C. the respondent expressly stated that he had handed over cheques in question as blank signed cheques for the purpose of security as he had to purchase seven (7) generator sets and the complainant supplied seven (7) generator sets to him. It is, thus, evident that the respondent/accused made a false statement on oath when he claimed that only 12 generator sets were supplied to him. Having admitted the delivery of seven (7) generator sets to him the onus was on the accused/respondent to prove that he had paid for the said generator sets. It has come in the cross examination of DW1 that he had issued demand drafts of Rs.7.75 lakh to the complainant/appellant as per Ex.DW1/6. However, a perusal of the letter Ex.DW1/6 would show that it refers to a demand draft of Rs.3.00 lakh sent on 7.11.1997, and not to one or more demand drafts of Rs.7.75 lakh. As per the statement of accounts filed by the appellant/complainant Company, it received only two (2) payments from the respondent in the financial year 19992000, i.e., between 1.4.1999 to 31.3.2000. Out of them one payment was for Rs.17,000/ and the other was for Rs.25,000/. The cheques for Rs.6,71,326/ which were deposited with the bank on 7.3.2000 were dishonoured and the amount of the aforesaid cheques was debited in the account of the respondent on 23.3.2000. The respondent/accused did not examine any bank official to prove any payment of Rs.7.75 lakh to the complainant by way of demand draft. In case any such payment was actually made, after the delivery of the generator sets was received, nothing prevented the respondent/accused from summoning the bank CC No. 1038/11 26/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari official(s) to prove the aforesaid payment. Moreover, no receipt evidencing payment of Rs.7.75 lakh has been filed by the respondent/accused. On receipt of notice from the complainant/appellant, admittedly no reply was sent by the respondent/accused, claiming payment of Rs.7.75 lakh by way of demand draft or alleging that the cheques in question were given as blank cheques, towards security. No notice was sent by the respondent/accused to the complainant/appellant Company at any point of time, asking for the return of the cheques in question on the ground that the payment had already been made by way of demand draft. In fact, in his examinationinchief DW1 did not even refer to any payment to the appellant/complainant by way of any demand draft and the plea of such payment cropped up only during the cross examination of the respondent/accused. The respondent did not file his own statement of account, to show that nothing was payable by him to the appellant."
38. The case in hand is similar to the above cited case decided by Hon'ble High Court of Delhi. In the present case also the accused has made mutually contradictory statement by claiming in statement u/s 313 Cr.PC that he had given the cheque in question as a a guarantor for the Hotel New World, Karnal as well as by stating in his deposition that the cheque in question had been issued as a security for the entire transaction for purchase of aluminium composite panel sheets from the complainant company. However, in his cross examination by the learned counsel for complainant accused has made a contradictory statement to the effect that cheque in question was issued when the order for mock up/sample was placed. His specific deposition is reproduced below in this context.
"It is correct that the cheque was issued when the order for mock up/sample was placed''.
39. From the aforementioned statement made by the accused in his cross examination, it appears that the cheque in question was issued towards the payment of mock up and not for the entire project.
40. Moreover, the defence taken by the accused is contrary to CC No. 1038/11 27/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari record because as per the invoice Ex.CW1/D2, the purchased goods were delivered at the address of accused Rakesh Bhandari and not at Hotel New World, Karnal. Therefore, the defence of the accused that the cheque in question was issued as a security cheque on behalf of Hotel New World, Karnal has neither been substantiated by the evidence of the complainant, nor proved by the accused by leading independent evidence of his own and is therefore liable to be rejected.
41. Lastly, it has been submitted by the accused in his defence that the invoice Ex.CW1/D2 vide which the complainant had claimed to have supplied the goods to the accused is raised in the name of one firm, named, Fine Interiors and the accused had no relation with any firm, named, Fine Interiors. It has been argued in defence of the accused that the accused is a proprietor of the proprietorship concern being run in the name and style of Fine Fabricators and, therefore, accused cannot be called upon to make payment of bill Ex.CW1/D2 raised by the complainant in the name of an alien firm, named, Fine Interiors with which the accused had no relation whatsoever.
42. Learned counsel for complainant has rebutted the above mentioned argument of learned counsel for the accused on the ground that although the invoice Ex.CW1/D2 is in the name of firm, named, Fine Interiors. However, the address of the said firm given on the invoice Ex.CW1/D2 is in fact the address of the accused, that is, 730/13, Urban Estate, Karnal, Haryana. Learned counsel for accused has further submitted in this context that perhaps due to inadvertent mistake of the staff of complainant company, the name of the firm of accused was wrongly written as Fine Interiors instead of Fine Fabricators.
43. The other contention raised by the learned counsel for CC No. 1038/11 28/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari accused for disputing authenticity of invoice Ex.CW1/D2 is that the same has not been duly signed by the receiver of goods. In this context, it has been submitted by the learned counsel for complainant that although no stamp of Fine Fabricators was affixed on Ex.CW1/D2 nor any person had signed the same as the receiver of goods on behalf of the accused. However, the amount of Rs.1,54,308/ mentioned in the delivery challan Ex.CW1/D2 almost matches with the amount mentioned in the cheque in question drawn by the accused in favour of the complainant. Learned counsel for the complainant has submitted that if the accused had not taken delivery of goods worth Rs.1,54,308/ from the complainant vide invoice cum delivery challan Ex.CW1/D2, then there was no occasion for the accused to draw the cheque in the sum of Rs.1,54,000/ in favour of the complainant. Learned counsel for the complainant has also submitted that since the accused had himself visited the office of the complainant to hand over the cheque Ex.CW1/3 in the sum of Rs 1,54,000/ against the invoice cum delivery challan Ex.CW1/D2 therefore it was not deemed necessary to get the invoice Ex.CW1/D2 signed from the accused. I have considered the rival submissions of parties in respect of the aforementioned last defence of the accused. I am of the considered opinion that the above mentioned third defence of the accused is frivolous on account of following reasons.
44. Firstly, it is pertinent to mention that although the invoice Ex.CW1/D2 is in the name of the a firm, named, Fine Interiors and is not in the name of the firm of the accused, that is, Fine Fabricators, However, the address on the invoice ExCW1/D2 is in fact the admitted address of the accused which is 730/13, Urban Estate Karnal, Haryana. Therefore, it is likely that due to a clerical mistake of the officials of the complainant company the name of the firm of accused Rakesh Bhandari has been CC No. 1038/11 29/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari wrongly mentioned as Fine Interior instead of Fine Fabricator. Hence, the accused cannot be allowed to take the undue advantage of the inadvertent mistake of the officials of complainant company in writing the name of the firm of accused on delivery challan Ex.CW1/D2.
45. Secondly, the cheque amount of the cheque in question Ex.CW1/3 is more or less same as the amount claimed by the complainant from the accused vide invoice Ex.CW1/D2, that is, the cheque in question is for a sum of Rs.1,54,000/ and the amount mentioned in the delivery challan cum invoice is almost similar to the same as the complainant has demanded payment of Rs.1,54,308/ vide invoice Ex.CW1/D2. Therefore, the cheque in question prime facie appears to have been issued by the accused towards payments of dues claimed in Ex.CW1/D2. Hence, the last defence taken by the accused that the invoice Ex.CW1/D2 has been raised by the complainant in respect of some alien company or firm named, Fine Interior with which the accused has no relation is also devoid of any merit. The judgement of Hon'ble Supreme Court of India passed in the case of John K Abrahim v. Simon C. Abraham and another 2014 A CD 560 (SC) relied upon by the counsel for accused does not support of the last defence of the accused as the said judgement is based on entirely different set of facts and circumstances. In the said case, there were several lacunae in the case of complainant who had failed to explain the source of income from which he had accumulated the cash amount of Rs.1,50,000/ to advance as loan to the accused. The complainant had also failed to tell the date on which he had advanced the said loan to the accused. However, in the present case, the case of complainant is based on a valid trade transaction carried out vide invoice Ex.CW1/D2 on which invoice number, date and the total amount due from the accused for purchase of aluminum panel sheets CC No. 1038/11 30/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari has been duly mentioned. Hence, there are no serious lacunae in the case of the complainant or in the testimonies of witnesses examined by the complainant which can in any way demolish the case of the complainant. Mere wrong mentioning of the name of the firm of the accused on the invoice Ex.CW1/D2 cannot demolish the entire case of prosecution.
46. In the light of my foregoing discussion, I am of the considered opinion that none of the three defences of accused have been proved on the scale of preponderance of probabilities. Accused has merely offered a series of explanations by claiming that he had issued the cheque in question in blank condition as a security cheque on behalf of a third party, namely, Mr.Sunil of Hotel New World, Karnal or by claiming that he had not received any legal notice. However, the said explanations of the accused have not been proved as per law by either relying upon the materials placed on record in the evidence of complainant or leading independent evidence of his own. Neither the owner of Hotel New World, Karnal has stepped into the witness box in defence of the accused nor the accused has placed on record any documentary evidence in support of his claim that the goods were in fact purchased by Hotel New World Karnal from the complainant company. In this context, it has been held in the case of V S Yadav Vs Reena 172 (2010) DLT561 wherein the accused had offered certain explanations in his statement u/s 281 Cr.PC which were not proved by the accused by examining himself in his defence, the Hon'ble High Court had rejected the explanation given by the accused and had observed that there is no presumption in law that the explanation given by the accused person is always truthful unless the same are proved by the accused by stepping into the witness box. Observations made in para 5 of the judgement are noteworthy in this context and are reproduced below: CC No. 1038/11 31/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari "5. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281 Cr. P.C., that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under Section 138 of N.I. Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence."
47. The present case is similar in facts to the abovecited case of V S Yadav Vs Reena 172 (2010) DLT561 decided by Hon'ble High Court. Although, in the present case, the accused has stepped into the witness box, however, as discussed above the accused has not managed to prove the three defences taken by him in his evidence on the scale of preponderance of possibilities. Hence, in view of the facts and circumstances detailed above, I am of the considered opinion that accused has failed to rebut the presumption under section 139 NI Act by raising any probable defence.
48. On the contrary, the complainant company has successfully proved its case by examining two witnesses including CW1 S. K. Bansal who had fully supported the case of the complainant on facts by deposing that the cheque in question was issued by the accused in discharge of liability to pay outstanding dues towards purchase of aluminum panel CC No. 1038/11 32/33 V L Estate Pvt Ltd Vs. Rakesh Bhandari sheets vide Ex.CW1/D2. He has further supported the case of complainant by deposing that the cheque in question was dishonoured upon presentation due to insufficiency of funds in the account of accused and thereafter the accused had failed to make payment of the cheque amount within 15 days of receipt of legal notice issued by the complainant calling upon the accused to make payment of the cheque amount. CW2 Kapil Malhotra has on the other hand proved the account statement of complainant company on record in order to establish that the cheque in question issued by the accused was in fact dishonoured due to insufficiency of funds in the account of the accused. The ingredients of offence punishable under section 138 NI Act have been duly proved by the complainant company, accused Rakesh Bhandari is accordingly held guilty for the commission of offence punishable under section 138 NI Act. At the joint request of learned counsel for complainant and learned counsel for accused, list for arguments on sentence on 03.09.2014.
Announced in the open Court (Jasjeet Kaur)
th
on 26 August, 2014 Civil JudgeI/MM/New Delhi
CC No. 1038/11 33/33
V L Estate Pvt Ltd Vs. Rakesh Bhandari