Delhi District Court
Cnr. Dlct020131162016 M/S Hr ... vs M/S Vikas Vidyutikaran & Anr. Page 1 Of 24 on 28 May, 2022
CC No. 538180/2016
CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 1 of 24
IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
CNR DLCT020131162016
CC No. 538180/2016
M/s HR Maheshwari & Co.
1767-68, S Pal Building, 3rd Floor
Bhagirath Place, Delhi -110006
Through its authorized representative
Sh. Brajesh Dubey
S/o Late Sh. Subedar Dubey ...... Complainant
Vs.
1. M/s Vikas Vidyutikaran Pvt. Ltd.
93/12, Gali No. 1, (A-19)
Near Sentak Tank Factory
Industrial Area Mundka, Delhi -110041
Through its director Sh. Abhay Ram Sharma
2. Sh. Abhay Ram Sharma
Director of Accused No. 1 company
93/12, Gali No. 1, (A-19)
Near Sentak Tank Factory
Industrial Area Mundka, Delhi -110041
Also, at:
WZ-96, Gali No.-14, H.No. 257,
Ram Garh Colony, Ratan Park
New Delhi -110015 ...... Accused persons
Date of Institution : 25.07.2016
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the Accused : Not Guilty
Final Order : Both Accused No. 1 & 2 are
Acquitted
Date of Decision : 28.05.2022
Page 1 of 24
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CC No. 538180/2016
CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 2 of 24
JUDGEMENT
1. The present Complaint has been filed by the Complainant against the Accused under section 138 Negotiable Instruments Act, 1881.
Factual Matrix
2. The brief facts as alleged by the Complainant in the Complaint are that the Complainant is a proprietorship firm supplying electrical goods. It is also alleged that the Accused persons had dealings regarding purchase of electric goods the Complainant since 2009 and used to purchase the same on credit and made subsequent payment by way of cheque or cash.
2.1 It is alleged that in the course of the dealings, the Accused persons became liable for an amount of ₹ 2,488,252 as on 1st of April 2016. It is also alleged that in discharge of their liability, the Accused persons issued the cheque bearing No. 000004 dated 17th of May 2016 for ₹ 302,000 drawn on Punjab and Sindh bank, H-Block, Connaught Place, New Delhi - 110001 in favour of the Complainant are duly filled up and signed as part payment.
2.2 When the Complainant presented the said cheque, hereinafter referred to as the cheque in question through his banker Kotak Mahindra Bank, Chandni Chowk branch, the same was returned unpaid by the banker of the Accused vide returning memo dated 18th of May 2016 with the remarks "Funds Insufficient".
2.3 The Complainant thereafter issued a legal demand notice on 11th of Page 2 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 3 of 24 June 2016 through counsel calling upon the Accused to pay the said cheque amount within a period of 15 days from receipt thereof. The said notice is alleged to have been duly served upon the Accused, and it is alleged that the Accused persons failed to pay the aforesaid cheque amount within the statutory period.
2.4 Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (hereinafter the NI Act) was filed on 25th of July 2016 by the Complainant, praying for the Accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the Court
3. Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit Ex. CW-1/A wherein the Complainant has affirmed the facts stated in the instant Complaint.
4. Documentary Evidence: To prove the case, the Complainant has relied upon the following documents:
a) Original cheque bearing no. 00004 dated 17th of May 2016 for a sum of ₹ 302,000 drawn on Punjab and Sindh bank, Connaught Place Branch, Ex. CW1/1.
b) Original cheque return memo dated 18th of May 2016, Ex.Page 3 of 24
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c) Office Copy of legal notice dated 11th of June 2016, Ex. CW1/3.
d) Postal receipts & track report, Ex. CW1/4-9.
e) Copy of power of attorney in favour of Sh. Brijesh Dubey, Ex. CW1/10.
5. Summoning of the Accused: On finding of a prima-facie case against the Accused, the Accused was summoned on 4th of August 2016 where the Accused appeared before the Court on 17th of January 2017.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused persons on 23rd of September 2017 to which they pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused had admitted the signature on the cheque in question but denied receiving the legal demand notice. The Accused stated that he has already made the entire payment in respect of the cheque in question and that he shall duly prove the same during trial. The Accused also stated that he used to issue PDCs as security for the goods to be purchased and that the cheque has been misused.
7. Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the Complainant. Thereafter, the Complainant was examined as CW1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged. Thereafter, Complainant evidence Page 4 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 5 of 24 was closed, and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
8. Statement of the Accused: Statement of the Accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 6th of August 2018 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused reiterated the stance taken by him in the notice of accusation.
9. Defence Evidence: The Accused has not examined any witness in his defence. Thereafter, a separate statement of the Accused to that effect was recorded and defence evidence was closed. The matter was then fixed for final arguments.
10. Final Arguments: Final arguments were advanced by both sides. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused. I have also perused the record.
Legal Position
11. For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant: -
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
(b) That the cheque has been presented to the bank Page 5 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 6 of 24 within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank;
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice;
11.1. The aforesaid legal requirements are cumulative in nature, i.e., only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
11.2. The provision of s.138 is buttressed by s.139 and s.118 of the Act.
s. 139 of the Act provides that the Court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. s.118 of the Act provides inter alia that the Court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
Page 6 of 24Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 7 of 24 11.3. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 and s. 118 of the Act mandate the Court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume"
used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary.
11.4. In the case of Hiten P. Dalal v. Bratindranath Banerjee 1, the Hon'ble Supreme Court had occasion to examine the confines of the presumption u/s 139 of the Act, wherein it held as follows:
"22. Because both Sections 138 and 139 (..) "introduce an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused."
(Ibid. at p. 65, para 14.) (...) The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact.
Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
(...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the 1 (2001) 6 SCC 16 Page 7 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 8 of 24 explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).
11.5. Also, in the case of Rangappa v. Sri Mohan 2, it was held that:
"(..)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. (..)
28. In the absence of compelling justifications, reverse onus clauses 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".
(...) As clarified in the citations, the Accused can rely on the materials submitted by the 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(...)"(emphasis supplied) 11.6. With regard to the factors taken into account for rebutting the presumption u/s 139 read with s.118 of the Act, the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena 3 assumes importance, wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. (...) The Accused, by cogent evidence, has to prove the circumstance under which cheques were 2 (2010) 11 SCC 441 3 CRL. A. No. 1136 Of 2010 Page 8 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 9 of 24 issued". (emphasis supplied) Appreciation of evidence
12. Now I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredient in question or not.
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability 12.1.This condition pertains to the issuance of the cheque itself. It is pertinent to note that the Accused, in his notice of accusation has admitted his signature on the cheque in question. Further, the cheque has been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 read with s.118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or other liability.
12.2.In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal 4, it was held:
"12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as 4 (1999) 3 SCC 35 Page 9 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 10 of 24 the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.
The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. (emphasis supplied)"
12.3. Also, in the case of Kumar Exports Vs. Sharma Carpets 5, it was held:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
The Accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. (...) To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the Complainant. The Accused may 5 2009 (2) SCC 513 Page 10 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 11 of 24 also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the Complainant, that is, the averments in the Complaint, the case set out in the statutory notice and evidence adduced by the Complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the Complainant's rescue. (emphasis supplied)"
12.4.The presumption, having been raised against the Accused persons, it falls upon them to rebut it. They have chosen to do so by cross- examining CW - 1.
12.5.The first ground of attack to the case of the Complainant is that it has not been averred anywhere in the Complaint, Ex. CW1/10 or Ex. CW1/A that the AR has personal knowledge of the facts forming subject matter of the present matter as well as the transactions therein. It is stated that lack of the said averment would make the AR incompetent to depose as a witness in support of the case of the Complainant and reliance is placed upon the decision of A.C. Narayanan Vs. State of Maharashtra 6 to buttress the said submission. It is seen that even though the Complainant or the 6 2013 (4) JCC 214 (NI) Page 11 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 12 of 24 Power of Attorney does not contain an averment that the AR is personally aware of the material facts of the instant case, the evidence by way of affidavit, Ex. CW1/A In para 1 duly states that "the deponent.... is well conversant with the facts and circumstances of the case". Hence, it cannot be said that merely because a formal averment to that effect is absent in the SPA, the case of the Complainant is to fall completely. The matter must also be analyzed from the point of view of the cross-examination of the AR to see if he is otherwise able to in fact depose about the material aspects of the transaction or not.
12.6.However, when the said averment of the AR in the evidence affidavit is juxtaposed with his cross examination as CW - 1, it is seen that the knowledge of the AR is lacking and is quite materially defective. Even though the AR states that along with Sh. R.S. Maheshwari were dealing with the Accused persons and the transactions took place through e-mail, he admits that no purchase order was placed by the Accused company. He states that the orders were noted down by the company on the register but no such register has been placed on record or agreed to be brought by the AR at the time of evidence.
12.7.When specifically quizzed about the VAT raised on the bills against the Accused company and the maintenance of ledger account, CW- 1 admits that even though the Complainant maintains account books, there is no ledger account of the Accused placed on record. He further goes on to admit that there are no such alleged bills raised Page 12 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 13 of 24 by the Complainant against the Accused present on record. CW - 1 also admits that he does not remember the address of the Accused company but later states that it was someplace near Moti Nagar while, at the same time admits that the address of the company as stated in the instant matter is of Mundka. This submission is quite surprisingly made on the same date when CW-1 has gone on to depose that at times, goods were dispatched by the Complainant and at other times, they were taken by the Accused company. He has also admitted that except the cheque in question, there is no document on record which shows as to how the amount is outstanding and payable by the Accused company.
12.8.While it is true that in a prosecution u/s 138 of the NI Act, that it is not incumbent on the Complainant to produce account books or cash books in support of his own case 7 but it must also be remembered that the Complainant must back his own case with something more than his mere ipse dixit when specifically questioned and disputed by the Accused. In the instant matter, even though it has been averred that the Accused company became liable for a total sum of ₹ 2,488,252, there is no document or independent evidence which corroborates the case of the Complainant, despite having been given due opportunity to produce the same. Further, CW - 1 has specifically denied the suggestion that the goods were never supplied on credit, impliedly accepting that there would have been certain instances that the goods would have been supplied on 7 See D.K. Chandel Vs. M/s Wockhardt, Crl. A. 132/2020 (SC) Page 13 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 14 of 24 credit as well. CW - 1 has admitted that the Complainant has not disclosed the amount of credit limit and the terms thereof in the Complaint.
12.9.When the said admission is juxtaposed against the fact that the Complainant has averred that the Accused company also used to pay in cash as well, it was incumbent on the Complainant to show as to how the cash amount was adjusted against the outstanding liability and how the liability under the cheque in question was made out. This is especially true when it is seen that more than one person on behalf of the Complainant was admittedly dealing with the Accused company at the same time. CW - 1 is, overall, not able to depose as to how the figure of ₹ 24,88,252 or the figure of ₹ 302,000 was arrived at by the Complainant as liability in favour of the Accused.
12.10. Hence, CW-1 is not able to depose about the material aspects of the transaction viz the terms of credit facility and its adjustment, place of supply and terms thereof and the computation of liability foisted upon the Accused. In addition, no independent documentary or other evidence whatsoever is brought in support of the case of the Complainant, despite being pointed out by the Accused.
12.11. The next ground taken from the side of the Accused is that the power of attorney, Ex.CW1/10 has neither been properly notarized nor attested by any witness is ex facie, unreliable as evidence. The learned counsel for the Accused has pointed out the fact that it does not bear any noting or endorsement to the effect that the requisite Page 14 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 15 of 24 entry has been made in the Notarial register by the concerned Notary as per law 8. The said fact was also brought to the knowledge of CW - 1 wherein he has admitted the same. Despite the same, the Complainant has not cared to either examine the said Notary or duly prove the execution of the document by examining the proprietor, especially when the Accused has taken a pointed objection to the authority of CW - 1 to appear on behalf of the Complainant.
12.12. As far as the objection qua witnesses is concerned, it has already been held in K.A. Pradeep vs Branch Manager, Nedungadi Bank 9 that in case of a properly notarized power of attorney, the presence of attesting witnesses is not a precondition for its validity. However, in the instant matter, the presumption u/s 85 of the Indian Evidence Act, 1872 10 cannot properly so be drawn because the said document cannot be said to be "authenticated by a Notary Public"
within the meaning of the said provision.
12.13. Authentication would take into its purview the due and thorough compliance of business by the concerned Notary, which includes making an entry of the attestation/authentication in the register of Notaries are in addition to affixation of the seal of Notary. The Notarial act of attestation is inextricably intertwined with the act of making entry in the requisite registers in compliance with the 8 See Notaries Act, 1952 and rule 11 of the Notaries Rules, 1956 9 AIR 2007 Ker 269 10
85. Presumption as to powers-of-attorney.--The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, 1[Indian] Consul or Vice-Consul, or representative 2 [***] of the 3[Central Government], was so executed and authenticated.Page 15 of 24
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12.14. Upon similar facts, it has been held in Prataprai Trumbaklal Mehta vs Jayant Nemchand Shah 11 that it would not be possible to raise the presumption u/s 85 of the Indian Evidence Act, 1872 or lay any evidentiary/probative value on a document bearing the seal of Notary if it is ex facie apparent therein that the same was not affixed after taking due care by the concerned Notary, which includes inter alia making an entry in the register of Notaries.
12.15. From the foregoing discussion, it can be safely concluded that CW-
1 is incompetent to depose on behalf of the Complainant as his knowledge about the material aspects of the transaction is materially defective. Further, the document purportedly granting authority to CW-1 is also devoid of probative value and cannot be relied upon. CW-1's deposition casts a lot of doubt upon the case of the Complainant and manifestly demonstrates that it is doubtful and at variance to the standard of a reasonable man. The complainant ceases to be maintainable on this ground alone.
12.16. The Ld. Counsel for the Complainant has stated at the close of final 11 1991 (4) Bom CR 89 Page 16 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 17 of 24 arguments that the Accused has not proved his defence at any point in the trial. He also contends that even if the version of the Accused is to be believed, he has not adduced any evidence/document to establish discharge of liability. He states that the Accused has not even cared to reply to the legal demand notice. It is also submitted that the Accused has evidently not filed any complaint/issued stop payment instructions, which is at variance to the standard of a reasonable man, considering that it is the defence of the Accused that the cheque was misused. It is stated that adverse inference is required to be drawn against the Accused 12 on that score.
12.17. To examine the aforesaid contentions in the right perspective, it must first be realized that the burden to establish all the ingredients of the offence and that too beyond reasonable doubt lies upon the Complainant and never shifts. Though the case of the Complainant is initially aided by the presumptions existing in his favour, ultimately the case of the Complainant must stand on its own legs. The Complainant cannot call to his aid and assistance, any inconsistencies, irregularities or infirmities in the defence to support his own case.
12.18. Further, the standard of proof upon an Accused to prove his defence is not as heavy as that on the Complainant. The Accused is not necessarily required to adduce any oral/documentary evidence in his defence. The Accused can very well rely upon the material 12 u/s 114 of the Indian Evidence Act, 1872 Page 17 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 18 of 24 placed on record by the Complainant or on the cross examination of the Complainant witnesses to probabilize his defence. It is not necessary for the Accused to establish each and every line of his defence to the hilt. It is sufficient if the Accused establishes any of his pleas of defence on a preponderance of probabilities.
12.19. In the instant case, the Accused has cast sufficient doubt upon the case of the Complainant and the authority (or lack thereof) of CW- 1 to depose on behalf of the Complainant. The Accused has also brought forth the material inconsistencies and gaps in the testimony of CW-1. The aforesaid factors alone are enough to hold that the presumption raised against the Accused stands rebutted.
12.20. Even if an adverse inference is drawn against the Accused based on certain parameters including not stopping payment of the cheque in question, not filing any Complaint, not replying to the legal demand notice, the fact remains that the same is an inference and not evidence. An adverse inference cannot operate to tilt the scales in favour of the Complainant when the Accused has, from the materials already on record and by way of leading independent evidence, established his defence and has been able to show that the case of the Complainant is improbable, when looked at from the standard of a reasonable man.
12.21. The upshot of the above is that the presumption raised against the Accused stands rebutted. Consequently, the onus of proof falls back upon the Complainant to establish that the cheque in question was Page 18 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 19 of 24 issued in discharge of a legally enforceable debt or other liability. Considering the materials on record, the Complainant has miserably failed to discharge the said onus and the instant ingredient remains unfulfilled as against the Accused persons.
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
12.22. This requirement is satisfied on a perusal of the cheque in question Ex. CW1/1 which bears date of 17th of May 2016 and the return memo Ex. CW1/2 which bears the date of 18th of May 2016. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused persons.
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank 12.23. s. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The bank return memo Ex. CW1/2 on record states that the cheque in question has been returned dishonoured for the reason "Funds Insufficient". At the stage of final arguments, the learned counsel for the Accused has taken exception to the fact that the bank return memo has not been stamped and signed. He Page 19 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 20 of 24 states that absence of stamping and signature would prevent this Court from drawing the statutory presumption of dishonour u/s 146 of the NI Act and as such the said ingredient has not been sufficiently established by the Complainant.
12.24. In this aspect, the judgement of the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami, Appeal (civil) 10585 of 1996 assumes importance wherein it was held "Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:-
(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit....The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, Page 20 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 21 of 24 a prompt objection does not prejudice.... Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence...."
12.25. In light of the abovesaid judgement and on a perusal of the statutory provision, it is apparent that the objection taken by the accused is an objection regarding mode of proof and not the inherent admissibility of the document. Further, the AR of the Complainant was specifically questioned at the stage of his cross-examination and the said fact was pointed out to the AR. Merely because the pre- summoning evidence of the Complainant already stood adopted in post-summoning on 26th of May 2018 would not amount to the said objection being waived as it is apparent from the record that the Accused has promptly and timely taken the objection at the stage of cross-examination of the AR. Further, denoting a document as 'Mark' or 'Exhibit' would not amount to irrebuttable proof 13. Hence, it was incumbent on the Complainant to remedy the defect and adduce are duly stamped and signed cheque return memo at the stage of Complainant's evidence. However, he has not done so despite grant of opportunity. Accordingly, the said objection is decided in favour of the Accused and resultantly, the said ingredient remains unfulfilled as against the Accused persons.
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing 13 See Sudhir Engineering Vs. Nitco Roadways, 1995 RLR 286 Page 21 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 22 of 24 to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid 12.26. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/3 to the Accused. The original postal receipts and track report in respect of the same are already on record as Ex. CW1/4-9. However, the Accused has denied receiving any legal demand notice in his notice of accusation.
12.27. At the stage of final arguments, the learned counsel for the Accused has also argued that the legal demand notice has made a demand of interest in addition to the cheque amount and the same is not in compliance with s.138 of the NI Act. The said objection is without merit considering that the said situation has already been examined in United Credit Vs. Agro Sales India 14, wherein a legal demand notice claiming the cheque amount as well as the interest and costs has been upheld as valid.
12.28. Perusal of the record reveals that one of the addresses (residence address) mentioned in the legal demand notice is identical to the address informed by the Accused No.2 and in bail bonds.
12.1. section 27 of the General Clauses Act provides that service of any document sent by post, shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document unless the contrary is proved. A like presumption is also carved out under section 114 14 2001 (10) SCC 763 Page 22 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 23 of 24 Indian Evidence Act, 1872 which when applied to communications sent by post, 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. A bare denial by the Accused in his notice of accusation and in his examination u/s 313 read with s.281 Cr.P.C. would not assume the character of defence evidence, as held in V.S. Yadav v. Reena 15. Hence, the Accused has not been able to rebut the presumption of service of legal demand notice. Resultantly, the benefit of the presumption accrues in the favour of the Complainant and this ingredient is fulfilled as against the Accused persons.
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice 12.29. In the instant case, the Accused has denied receiving legal demand notice, in the notice of accusation u/s 251 Cr.P.C.
12.30. In C.C.Alavi Haji vs Palapetty Muhammad 16 it was held by the Hon'ble Supreme Court:
"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 15 supra 16 (2007) 6 SCC 555 Page 23 of 24 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 538180/2016 CNR. DLCT020131162016 M/s HR Maheshwari & Co. V/s M/s Vikas Vidyutikaran & Anr. Page 24 of 24 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."
12.31. Hence, regardless of the said averment in respect of non-receipt of legal notice, it was open to the Accused to make the payment due under the cheque within 15 days of service of summons of the instant case. However, the Accused has failed so to do, on the ground that he does not owe any liability towards the Complainant. Hence, this ingredient stands fulfilled as against the Accused persons.
Decision
13. As all the ingredients of the offence are not cumulatively satisfied against the Accused, the Accused No. 1 M/s Vikas Vidyutikaran Pvt. Ltd. and Accused No. 2 Abhay Ram Sharma are both hereby Acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
VISVESH Digitally signed by VISVESH
Date: 2022.05.28 14:04:42 +05'30'
ANNOUNCED IN OPEN (VISVESH)
COURT ON 28.05.2022 MM, NI ACT-06, CENTRAL
TIS HAZARI COURTS,
DELHI
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