Delhi District Court
M/S Rehan Non Woven Industry vs M/S Sanetity Packers on 28 May, 2025
IN THE COURT OF Ms. Kavita Bist: JMFC: MAHILA COURT-01 :
PATIALA HOUSE COURTS : NEW DELHI.
M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr.
Ct Case No. 46443/2016
u/s 138 Negotiable Instruments Act, 1881
1. CIS number : 46443/2016
2. Name of the Complainant : M/s Rehan Non Woven Industry
through its Partner Sh. Moti Lal,
S/o Late Dwarka Prasad,
address:- Nahan Road, Vill.
Moginand, Kala-Amb, District
Sirmour, H.P.
3. Name of the accused, : a.) M/s Sanetity Packers
parentage & residential address b.) Mohd Wasiq,(authorized
signatory of M/s Sanetity
Packers), S/o Sh. Salahuddin,
both at: T-279, Ahata Kidara,
Idgah Road, Near Gurdwara
Bhaiji Baba, Delhi-11006.
4. Offence complained of or : u/s 138 Negotiable Instruments
proved Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed
trial.
6. Final Judgement / order : Acquitted
7. Date of Judgement / order : 28.05.2025
Date of Institution : 14.09.2011
Date of Reserving Judgement / Order : 25.04.2025
Date of Pronouncement of Judgement / Order : 28.05.2025
Digitally
signed by
KAVITA
KAVITA BIST
BIST Date:
2025.05.28
16:09:40
+0530
Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 1/13
JUDGEMENT
1.) By way of the present Judgement, this court shall dispose off the present complaint filed by M/s Rehan Non Woven Industry through its partner Sh. Moti Lal (herein after referred to as 'Complainant') against M/s Sanetity Packers and Mohd. Wasiq (authorized signatory of M/s Sanetity Packers) (herein after referred to as 'accused') u/s 138 Negotiable Instruments Act, 1881 r/w section 142 Negotiable Instruments Act, 1881 (herein after referred to as "N.I. Act" in short).
Factual Matrix
2.) The brief facts as alleged by the complainant in the complaint are that the complainant is a partnership firm and has been carrying the business of selling of all kinds of Non-Woven Fabric etc and accused persons had approached the complainant for purchase of goods and after entire satisfaction in respect of quality, rate, measurement etc. of the goods, the accused persons have purchased the goods on credit basis from the complainant time to time and it has been settled between the complainant and accused that the accused persons would make the payment on the date of raising the bill and if the payment is not made within 30 days, then the accused persons would be liable to pay the interest @ 18% per annum from the due date till its realization, and thereafter, the accused persons would be liable to pay interest @ 24% per annum from the due date till its realization as per market trade and practice being the transaction commercial in nature and an amount of Rs. 15,49,375/- apart from the interest is still due towards the accused persons and thereafter on repeated demands and request of complainant, the accused persons in order to discharge part liability have Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 2/13 Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:09:45 +0530 issued two cheques bearing no. 204835 and 385983 (herein after referred to as 'cheques in question') dated 30.05.2011 and 09.07.2011 amounting to Rs. 5,18,218/- and 5,15,666/- both drawn on State Bank of Patiala, 1/3, Model Basti, New Colony Marg, New Delhi, Delhi in favour of the complainant.
When the complainant presented the said cheques (herein after referred to as 'cheques in question') through its banker HDFC Bank Limited, Hindustan Times House, 5th Floor, 18/20, KG Marg, New Delhi branch, the same were returned unpaid by the banker of the accused vide returning memos dated 21.07.2011 and 12.07.2011 with the remarks "Payment Stop by Drawer and Funds Insufficient" respectively.
The complainant thereafter issued a legal demand notice on 28.07.2011 through Counsel calling upon the accused persons to pay the said cheques amount within a period of 15 days from receipt thereof. The said notice was duly served upon the accused persons and the accused persons failed to pay the aforesaid cheques amount within the statutory period.
Hence, the present complaint u/s 138 N.I.Act was filed on 14.09.2011 by the complainant, praying for the accused persons to be summoned, tried and punished for commission of the offence u/s 138 N.I.Act. The complainant has averred that the present complaint is within the period of limitation and falls within the territorial limit of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the Court
3.) Pre-summoning evidence of the complainant: To prove prima-facie case, Sh. Moti Lal (partner of M/s Rehan Non Woven Industry i.e complainant) Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 3/13 Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:09:50 +0530 has examined himself before the court as CW1 and led pre-summoning evidence by way of affidavit, exhibit CW1/A.
4.) Documentary Evidence of the complainant: To prove his prima-facie case, the CW-1 has relied upon the following documents:
a.) Copy of Partnership deed of complainant dated 04.04.2006 exhibited as Ex. CW1/1.
b.) Copy of Invoices exhibited as Ex. CW1/2, Ex. CW1/3 and Ex. CW1/4.
c.) Copy of Statement of account exhibited as Ex. CW1/5.
d.) Original cheques bearing number 204835 and 385983 exhibited as Ex.
CW1/6 and Ex. CW1/7 respectively.
e.) Original returning memos dated 12.07.2011 and 21.07.2011 exhibited as Ex. CW1/8 and Ex. CW1/9 respectively.
f.) Legal demand notice dated 28.07.2011 exhibited as Ex. CW1/10.
g.) Speed postal receipts exhibited as Ex. CW1/11 to Ex. CW1/18. h.) Original acknowledgment cards regarding the service of legal demand notice exhibited as Ex. CW1/19 and Ex. CW1/20. i.) Tracking reports for the legal demand notice exhibited as Ex. CW1/21 and Ex. CW1/22.
5.) After perusing the complaint and hearing the argument of the Complainant on the point of summoning of the accused, prima-facie it appeared that the offence u/s 138 N.I.Act has been committed. Hence, cognizance of the offence u/s 138 N.I.Act was taken on 14.09.2011.
Digitally
signed by
KAVITA
KAVITA BIST
BIST Date:
2025.05.28
16:09:55
+0530
Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 4/13
6.) Framing of notice and plea of defence: Notice u/s 251 Cr.P.C was framed against the accused on 16.02.2012 to which he pleaded not guilty and claimed trial and has stated that he has neither issued the cheques in question nor signed the same. He further stated that he is not the owner, proprietor or authorized signatory of M/s Sanetity Packers i.e accused no. 1. He further stated that he has not received the legal demand notice issued by the complainant.
7.) Evidence of the complainant: After framing of notice, application u/s 145(2) N.I. Act was allowed by the Ld. Predecessor and hence, the case was tried as a summons case and accused was granted permission to cross- examine the complainant. After that one bank witness Sh. Mahinder Singh, from State Bank of Patiala, Model Basti has been examined by the complainant as CW-2 in its evidence and he was cross-examined and discharged. Thereafter, CW-1 Sh. Moti Lal (partner of M/s Rehan Non Woven Industry i.e complainant) was also cross-examined by the Ld. Counsel for the accused and discharged and after that no other witness was examined by the complainant and PE was closed and the matter was put up for statement of accused u/s 313 r/w Section 281 Cr.P.C.
8.) Statement of the accused: Statement of accused was recorded u/s 313 r/w Sections 281 Cr.P.C on 31.07.2017, wherein all the incriminating circumstances appearing in evidence against the accused were put to him to which, he denied his signature on the cheques in question and stated that it is a false complaint and he is not the owner of M/s Sanetity Packer i.e accused no. 1. He further stated that neither he had issued the cheques in question nor cheques in question bears his signature and he is not the authorized signatory of cheques in question. He further stated that he did not receive any legal Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 5/13 Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:10:00 +0530 demand notice issued by the complainant. He also stated that he wants to lead defence evidence.
9.) Defence evidence: The accused has examined a bank witness Sh. Devender Singh, Branch Manager, on behalf of SBI Bank, New Colony Model Basti, Karol Bagh, New Delhi before the court as DW-1 and accused Mohd Wasiq has also examined himself before the court as DW-2 in his defence. Thereafter, a separate statement of accused Mohd Wasiq closing defence evidence was recorded and defence evidence was closed and then the matter was fixed for final arguments.
10.) After closing of DE, an application u/s 319 Cr.P.C was moved by the complainant to implead Mohd Tahir as an accused in the present matter, however, the said application was dismissed by the Ld. Predecessor vide order dated 29.04.2024.
11.) Final Arguments: Final arguments was advanced by the Ld. Counsel for the accused, however, despite giving ample opportunities to the complainant to raise the final arguments, the complainant failed to raise the final arguments, and thereafter, on request of Ld. Counsel for the complainant, liberty was given to the complainant to file the written arguments and after that the matter was fixed for judgment. I have heard the submission of Ld. Counsel for the accused. I have also perused the record and written arguments filed by the complainant.
12.) Before deciding the present complaint case u/s 138 of N.I Act, 1881, the following legal requirements must be satisfied from the averments in the complaint as well as the evidence of complainant.
Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 6/13Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:10:05 +0530 a.) That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other 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 with in 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 be credit of that account is insufficient to honor 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 the 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 the receipt of the said notice;
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 u/s 138 of N.I Act.
The provision of section 138 N.I is buttressed by section 139 and section 118(a) of the N.I. Act. Section 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 7/13 Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:10:09 +0530 discharge, wholly or in part of any debt or other liability. Section 118(a) of the Act provides interalia 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, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
13.) It is a well settled principle of criminal jurisprudence that a criminal trial proceeds on the presumption of innocence of the accused i.e an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden to prove is on the complainant/prosecution to prove the guilt of the accused. Also, the standard of proof is beyond reasonable doubt. However, in offences u/s 138 of the N.I Act, there is a reverse onus clause contained in section 118(a) and section 139 of the N.I Act. The presumption u/s 139 and section 118(a) of the N.I 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.
In the case of Hiten P. Dayal Vs. Bratindranath Bannerjee (2001) 6 SCC 16, the Hon'ble Supreme Court had occasion to examine the confines of the presumptions u/s 139 of the Act wherein, it held as follows:
"because both section 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras Vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 8/13 Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:10:15 +0530 court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. The obligation on the prosecution may be discharged with the help of presumptions of law or facts unless the accused adduces the evidence showing the reasonable possibility of the non existence of the presumed fact. Therefore, the rebuttal does not have to be conclusive establish but such evidence must be adduced before the court in support of the defence that court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of 'prudent man'"
14.) It is a settled proposition of law that the standard of proof which is required from the accused to rebut the statutory presumption u/s 118(a) r/w section 139 of the N.I Act is preponderance of probabilities. The accused is not required to prove his case beyond reasonable doubt. This onus on the accused can be discharged from the materials available on record and from the circumstantial evidences. At this point, the Hon'ble Supreme Court in M.S Narayan Menon Vs. State of Kerala (2006) 6 SCC 39 has interalia held the following:
"The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from materials on record but also by reference to the circumstances upon which he relies."Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 9/13
Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:10:20 +0530
15.) It is not always mandatory for the accused to examine its own witness in order to rebut the said statutory presumption. At this point, reliance may be placed on the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde AIR 2008 SC 1325, wherein the Hon'ble Court has categorically held the following:
"Accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. As accused has a constitutional right to remain silent. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different."
16.) With regard to the factors taken into account for rebutting the presumption u/s 139 r/w Section 118(a) of the Act, the Judgment of Hon'ble Delhi High Court in V.S Yadav Vs. Reena, 172 (2010) DLT 561, 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 u/s 139 of N.I Act. The accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
17.) Now, I shall proceed with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredients in question or not:-
a.) "That a person has drawn a cheque, on an account maintained by him with the banker for payment of any amount of money in other person from Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 10/13 Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:10:24 +0530 out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability."
17.1) This condition pertains to the issuance of the cheque itself. It is pertinent to note that the accused Mohd Wasiq in his notice of accusation u/s 251 Cr.P.C and statement recorded u/s 313 r/w section 281 Cr.P.C has categorically stated that neither he has issued the cheques in question nor he has signed the same. He also stated that he is not the owner, proprietor or authorized signatory of M/s Sanetity Packers i.e accused no. 1.
In this regard, it is important to draw attention on the testimony of CW-2 Sh. Mahinder Singh i.e Bank Witness from State Bank of Patiala who has brought the document Ex. CW2/4 i.e account opening form of accused no. 1 M/s Sanctity Packer and as per Ex. CW2/4, accused no. 1 is a sole proprietorship firm and Mohd Tahir is a proprietor of M/s Sanctity Packer.
In this regard, accused has also examined DW1 Sh. Devender Singh, Branch Manager i.e Bank Witness from SBI, New Colony Model Basti, Karol Bagh, New Delhi and copy of account opening form Ex. DW1/A (OSR) of M/s Sanctity Packer by whom the cheques in question have been drawn was placed by the said witness and perusal of the same reveals that Mohd Tahir is the sole proprietor and authorized signatory of M/s Sanctity Packer and Mohd Wasiq i.e the accused no. 2 in the present matter is neither the proprietor nor the authorized signatory of the cheques in question.
Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 11/13
Digitally
signed by
KAVITA
KAVITA BIST
BIST Date:
2025.05.28
16:10:28
+0530
In this regard, it is impotant to place reliance on the judgment of Jugesh Sehgal vs Shamsher Singh Gogi AIR 2009 SC (SUPP) 2022, wherein the Hon'ble Supreme Court of India has held as follows:
"17. As already noted hereinbefore, in para 3 of the complaint, there is a clear averment that the cheque in question was issued from an account which was non-existent on the day it was issued or that the account from where the cheque was issued "pertained to someone else". As per complainant's own pleadings, the bank account from where the cheque had been issued, was not held in the name of the appellant and therefore, one of the requisite ingredients of Section 138 of the Act was not satisfied. Under the circumstances, continuance of further proceedings in the complaint under Section 138 of the Act against the appellant, would be an abuse of the process of the Court. In our judgment, therefore, the decision of the High Court cannot be sustained."
The complainant has not placed any document on record which shows that the accused Mohd Wasiq is the proprietor of M/s Sanetity Packer who is the drawer of the cheques in question in the present case rather the accused Mohd Wasiq has examined the bank witness and as per the account opening form of M/s Sanetity Packer, accused Mohd Wasiq was neither the proprietor nor the authorized signatory of M/s Sanetity Packer which shows Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 12/13 Digitally signed by KAVITA KAVITA BIST BIST Date:
2025.05.28 16:10:33 +0530 that the cheques in question were never issued by the accused Mohd Wasiq of the account maintained by him.
It is also pertinent to mention here that in the present matter the legal demand notice was never sent to the proprietor of M/s Sanetity Packer i.e Mohd Tahir rather it was sent to the accused Mohd Wasiq only who was neither the proprietor nor the authorized signatory of the drawer of cheques in question.
It is also pertinent to mention here that although an application u/s 319 Cr.P.C was moved by the complainant to implead Mohd Tahir as an accused in the present matter after closing of DE, however, the said application was dismissed by the Ld. Predecessor vide order dated 29.04.2024 and the said order was never challenged by the accused and as such attained finality.
In view of the above, as one of the requisite ingredient of section 138 of N.I. Act is not satisfied, therefore, it is unnecessary to burden the judgment by dealing the other ingredients of section 138 of N.I. Act.
18.) Decision:
As one of the requisite ingredient of section 138 of N.I.Act, which says that the cheque should be issued by the person on account maintained by him is not satisfied, the accused is hereby acquitted of the offence u/s 138 of N.I. Act.
Copy of the judgment is handed over to the accused free of cost.Digitally signed
KAVITA by KAVITA BIST Announced in open Date:
BIST 2025.05.28 Court on 28.05.2025 (Kavita Bist) 16:10:38 +0530 JMFC: MAHILA COURT-01 PHC/ND/ 28.05.2025 Ct Case No. 46443/2016 M/s Rehan Non Woven Industry Vs. M/s Sanetity Packers & Anr. Page No. 13/13