Delhi District Court
Chhabi Jain vs Yogesh Goel on 30 July, 2024
IN THE COURT OF SH. VARUN CHANDRA,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT-04),
SAKET COURTS, NEW DELHI
CT Cases 6098/2018
CHHABI JAIN Vs. YOGESH GOEL
Chhabi Jain,
Proprietor of M/s Vaibhav Enterpries,
Having office at Shop No. 1, P-145,
Bihari Colony Extension,
Shahdara, Delhi-110032
......... Complainant
Vs.
Yogesh Goel
S/o Late Sh. Rattan Lal Gupta,
R/o 15, Triveni Apartment,
West Enclave, Pitampura,
Delhi-110034
......... Accused
1. Complainant : 6098/2018
Case Number
DLST020141702018
2. Offence : Under Section 138 of the
complained Negotiable Instruments Act, 1881
proved
3. Plea of the : Pleaded not guilty
accused
4. Final Order : Conviction
5. Date of : 03.05.2018
Institution
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6. Date on which : 29.06.2024
reserved for
Judgment
COMPLAINT UNDER SECTION 138 NEGOTIABLE INSTRUMENTS
ACT, 1881.
JUDGMENT
1. It is the case of the complainant that the accused purchased medicines from the complainant's firm on credit basis from June 2017 to November 2017 for a total sum of Rs. 15,13,779/-.
2. That the accused showed his financial difficulties and promised the complainant to make the payment of the medicines purchased very soon and never made any payment of the material purchased despite various requests and demand. That the complainant in good faith acceded to the request of the accused and supplied the medicines on credit to the accused.
3. That thereafter the accused in discharging the aforesaid liability issued 05 cheques in favour of the complainant and also requested for making the payment in installments as the accused were still suffering from financial crunch and the complainant agreed for the same.
4. That in discharging the aforesaid liability, the accused issued a cheque bearing No. 197977 dated 30.03.2018 for amounting to Rs. 3,00,000/- drawn on Post Office, Sansad Marg, New Delhi in favour of the complainant's firm.
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5. That at the time of issuance of the aforesaid cheque, the accused assured the complainant that the aforesaid cheque would be honoured/encashed on its presentation.
6. That the other 3 cheques were payable in the month of January, March and April 2018 and the accused also assured the complainant that the said cheque shall be duly cleared on its presentation.
7. It is the case of the complainant that on the assurances made by the accused, the complainant presented the aforesaid cheque bearing 197977 dated 30.03.2018 for amounting to Rs. 3,00,000/- in her banker i.e. IDBI Bank Ltd. Branch at E-29, Saket, New Delhi, but to the utter surprise of the complainant that the aforesaid cheque returned unpaid due to the reason "Funds Insufficient" vide cheque return memo dated 03.04.2018, and immediately thereafter the complainant contacted the accused and intimated the accused regarding the same, on that the accused apologized and requested the complainant to present the aforesaid cheque after some time on the pretext that the accused are facing some financial crises and the complainant keeping in view the past relations with the accused, agreed for the same and at this time, the accused again assured the complainant that this time the said cheque would be encashed on its presentation.
8. That the complainant thereafter served statutory legal notice dated 11.04.2018 and the same was posted on 11.04.2018 by way of Speed Post and Registered AD. That without prejudice to the rights and contentions of the complainant the accused is liable to be punished for the offence U/s. 138/141/142 of Negotiable Instruments Act. Hence, this complaint is preferred.
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9. In order to prove her case, the complainant had examined herself as CW-1 by way of affidavit CW-1/G and relied upon the following documents:
Ex.CW-1/A Cheque bearing no. 197977 dated 30.03.2018 for Rs.
3,00,000/-
Ex.CW-1/B Return Memo dated 03.04.2018 Ex.CW-1/C Legal demand notice dated 11.04.2018 Mark.CW-1/D Copy of postal receipts Ex.CW-1/E Postal receipts Ex.CW-1/F Tracking report Ex.CW-1/G Evidence by way of affidavit
10. After perusal of the complete complaint and the affidavit of evidence, sufficient material was found and summoning orders were passed against the accused under Section 204 Cr.PC Vide order dated 05.05.2018 by the Ld. Predecessor of the Court.
11. Thereafter vide order dated 05.10.2018, the notice u/s 251 Cr.PC served upon the accused wherein he stated that the cheques in question were never issued by him to the complainant. He further stated that the same were given to her husband Mr. Kapil Jain as advance for purchasing some medicines and the said medicines were never supplied by Mr. Kapil Jain. He further submitted that he did not return the cheques in question despite his request and the cheques in question were presented without his consent or knowledge. It is further submitted by the accused that the cheques in question bear his signatures and other details on the same are also in his handwriting. He stated that he did not receive the legal demand notice from the complainant. He further stated that he had issued stop payment instructions to his banker on 11.12.2017 regarding the cheque in CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 4/23 question after dishonor of earlier two cheques.
12. Thereafter vide order dated 05.10.2018, the application u/s 145(2) NI Act was orally allowed and the matter was put up for cross examination of complainant.
13. The cross examination of the complainant was conducted vide order dated 06.12.2018 and 17.05.2019 and complainant was discharged.
Subsequent vide order dated 24.02.2020, the CE was closed and the matter was put up for statement of accused u/s 313 Cr.PC.
14. The statement of accused u/s 313 Cr.PC was recorded VOD 28.10.2020 wherein he stated that he does not know the complainant and the cheques in question were given as advance cheques to the complainant as security against medicines stock which was supposed to be supplied by the complainant to him, however, the complainant never supplied the above stock to him. He further stated that he did not receive any intimation regarding the dishonor of cheque either from the Bank or the complainant. He stated that he had received the legal notice and upon receiving the said notice, he telephonically contacted Mr. Kapil Kumar who was the correspondent of Vaibhav Enterprises and told him that since he has not been supplied with the medicines stock as agreed, why his cheques were presented for encashment. He stated that said Mr. Kapil Kumar in turn responded that he had no idea of the same as the owner of Vaibhav Enterprises was one Ms. Chhabi Jain. He stated that his security cheques have been misused by the complainant. He stated that there is no question of making the payment as no medicines stock was ever delivered to him and he has no liability towards the complainant whatsoever. He further CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 5/23 submitted that he had never dealt with the complainant in the present case and do not know the complainant at all. He stated that he had a proposed business transactions with Vaibhav Enterprises through one Mr. Kapil Kumar who represented himself to be the owner/Manager of Vaibhav Enterprises. He further stated that it was on account of good relations with Mr. Kapil Kumar and consequent faith upon him that he had issued the cheques in question as security to him in respect of the above said deal of supply of medicine stock. He further submitted that since he was never supplied with the said stock, the cheques in question were misused by the complainant and false complaint has been executed against me.
15. Thereafter vide order dated 16.09.2021, an application u/s 315 Cr.PC was moved on behalf of accused and the same was supplied to the complainant and summons were issued against the concerned witnesses at serial no. 1 and 2 in the list of witnesses.
16. Thereafter vide order dated 26.11.2021, the accused was stepped into the witness box as DW-1 and witness namely Sanjay Saini as DW-2. DW- 2 was examined in chief, cross examined and discharged vide order dated 26.11.2021. DW-3/Vishal Sachan was examined in chief, cross examined and discharged vide order dated 08.03.2022.
17. Thereafter examination in chief of DW-1 was conducted vide order dated 26.11.2021, 08.03.2022 & 16.01.2023 and the cross examination of the DW-1 was conducted vide order dated 03.02.2023 & 12.05.2023. Thereafter, accused was discharged as DW-1 and DE was closed vide order dated 12.05.2023; the matter was put up for final arguments.
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18. Final arguments were heard in the present matter and the matter was put up for Judgment.
ARGUMENTS ADVANCED
19. Counsel for complainant argues that the complainant is sole proprietor of the Vaibhav Enterprises and the firm deals in business of medicines, lab equipments etc. It is further argued by the counsel for complainant that the accused purchased medicines from the complainant's firm on credit basis from June, 2017 to November, 2017 for a total sum of Rs. 15,13,779/-. He further submits that the accused showed his financial difficulties and promised the complainant to make the payment of the medicines purchased very soon and never made any payment of the material purchased despite various requests and demand.
20. It is further submitted by the counsel for complainant that the complainant in good faith acceded to the request and supplied the medicines on credit to the accused and in discharge of liability, the accused had issued 05 cheques in favour of the complainant and also requested for making the payment in installments as the accused were still suffering from financial crunch and the complainant agreed from the same.
21. Counsel for complainant further argues that in discharging the aforesaid liability, the accused issued cheques bearing no. 197974 dated 28.09.2017 for Rs. 3 Lakhs exhibited as Ex.CW-1/A and 197975 dated 30.11.2017 for Rs. 3 Lakhs exhibited as Ex.CW-1/B when the same were presented in the complainant's banker namely IDBI Bank Ltd, the same were got dishonored with the remarks "Funds Insufficient" vide return memos dated 29.11.2017, 05.12.2017 & 02.11.2017 respectively.
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22. It is further argued by the counsel for complainant that thereafter the complainant tried her level best to contact the accused, however, accused every time accused avoided the same on one pretext or the other and the accused have failed to make the payment of aforesaid cheque(s). He further submitted that thereafter a legal demand notice dated 14.12.2017 was sent on behalf of complainant and the same was delivered on 08.06.2018. He further submitted that despite the legal notice served upon the accused, however, no payments had been made by the accused the said dishonor cheque(s) till date and hence this complaint has preferred. He thereby prays that the accused should be punished u/s 138/141/142 of the Negotiable Instrument Act.
23. Counsel for complainant submitted that accused in his defence has stated as: "Cheque in question were never issued by me to the complainant as the same was given to the husband of complainant namely Mr. Kapil Jain as advance for purchasing some medicines. However, the said medicines were never supplied by Mr. Kapil Jain. He did not return the cheque in question despite my requests. Cheque in question was presented without my consent or knowledge. Cheque in question bears my signature. Other details on the same are also in my handwriting. I did not receive legal demand notice. I have issued stop payment instructions to my banker on 11.12.2017 regarding the cheque in question after dishonor of both abovesaid two cheques"
24. It is further argued by the counsel for complainant that notice u/s 251 Cr.PC was served upon the accused on 12.11.2018 by the Ld. Predecessor of this Court and thereafter the complainant led her post summoning evidence as CW-1 and was cross examined by the counsel for accused at CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 8/23 length. He further submits that thereafter the statement of accused u/s 313 Cr.PC was recorded and accused led his evidence by examining himself as DW-1. It is further submitted by the counsel for complainant that DW-1, DW-2 and DW-3 and the witnesses were cross examined by the counsel for accused.
25. Counsel for complainant further argues that the complainant successfully has proved her case and nothing has come adverse after her cross examination and the defence evidence of the accused also do not create any doubt over the complainant story and rather the evidence of the complainant stands fully corroborated.
26. Counsel for complainant argues that the accused has fairly admitted the signature and other details in the cheques in question in response to the notice u/s 251 Cr.PC and his statement u/s 294 Cr.PC. He further submits that complainant has successfully proved her case against the accused and thereby prays that accused in the present matter be punished u/s 138/141/142 NI Act.
27. Per contra, Counsel for accused argues that the complainant filed a complaint case u/s 138 NI Act against the accused. He further submitted that as per complainant she is sole proprietor of the Vaibhav Enterprises and the firms deals in business of Medicines, Lab Equipments etc. He further argues that the accused purchased medicines from the complainant's firm on credit basis from June, 2017 to November, 2017 for total sum of Rs. 15,13,779/- and the accused showed his financial difficulties and promised the complainant to make the payments of the medicines purchased very soon and never made any payment of the CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 9/23 material purchased despite requests and demand.
28. It is further argued by the counsel for accused that the complainant's is good faith and acceded to the request of the accused and supplied the medicines on credit basis to the accused. He further argues that in discharging the liability of accused, accused issued five cheques bearing no. 197974 to 197978 in favour of the complainant and also requested for making the payments in installments as the accused were still suffering from financial crunch and the complainant agreed for the same.
29. Counsel for accused argued that aforesaid payment the accused issued cheque bearing no. 197974 dated 28.09.2017 for Rs. 3 Lakhs and 197975 dated 30.11.2017 for Rs. 3 Lakhs drawn on Post Office Sansad Marg, New Delhi in favour of the complainant's firm and assured that the cheque would be encashed on its presentation and three other cheques were payable in the month of January, March and April, 2018 and accused also assured to the complainant that the said cheque shall be duly cleared on its presentation.
30. Counsel for accused further argued that complainant presented the aforesaid cheque bearing no. 197974 dated 28.09.2017 for Rs. 3 Lakhs in complainant' Banker i.e. IDBI Bank Branch, Saket, New Delhi and the same got dishonored on 29.11.2017 and that in the month of December, 2017, the complainant again presented the cheque bearing no. 197974 dated 28.09.2017 for encashment and the same was unpaid due to the reason "Funds Insufficient" vide return memo dated 05.12.2017.
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31. Counsel for accused argued that the complainant had also presented the another cheque bearing no. 197975 dated 30.11.2017 for Rs. 3 Lakhs and the same was also unpaid due to the reason "Funds Insufficient" vide return memo dated 02.12.2017.
32. Counsel for accused further argued that thereafter a legal demand notice dated 14.12.2017 was sent on behalf of the complainant to the accused and the same was not replied and thereafter the case u/s 138 NI Act had been filed by the complainant before this Court. He further argues that after receiving the court notice, notice was framed against the accused wherein the accused not plead guilty and claimed trial and thereafter the accused filed an application u/s 145(2) NI Act for cross examination of complainant and the same was allowed.
33. Counsel for accused argued that complainant being the star witness as CW-1 and has been examined and relied upon an examination in chief and later cross examination by him. He further submitted that the complainant stated that in her chief statement by way of affidavit that she is the sole proprietor of firm. Counsel for accused argues that no document has been filed by the complainant that she is the sole proprietor of the firm namely Vaibhav Enterprises.
34. It is further argued by the counsel for accused that as per statement of DW-3 namely Mr. Vishal Sachan, Drug Inspector, Drug Control Department, Karkardooma, Delhi, the documents filed by the witness I.e Ex.DW-3/1 (colly) and DW-3/2 (colly), the firm is partnership firm and Amit Kumar Jain & Chhabi Jain are the partner of the firm I.e Vaibhav Enterprises.
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35. Counsel for accused argued that cheques in question are taken by Mr. K.K. Jain (Kapil Kumar Jain) in advance as a security cheque and Mr. Kapil Kumar Jain has not supplied the medicine to accused and the same are misused by the wife of Mr. Kapil Kumar Jain. He further submits that no bill on record for proof for supplied the medicines to the accused.
36. It is further argued by the counsel for accused that the cheques amount are Rs. 14,94,000/- and photocopy of as mark Bill total amount are Rs. 15,13,779/-. He further argues that as per amount of the bill, the cheques are different. He argues that if the person read the bill, the person issued the cheque as per bill amount so it clear that the cheque in question are taken in advanced as a security and accused had not received the medicines from Mr. Kapil Kumar Jain and also not the Ms. Chhabi Jain. He further argues that cheque bearing no. 197974 and 197975 were presented in the bank by the complainant without supply the medicines and also not informed to the accused which are unpaid and the rest three cheques bearing no. 197976 to 197978 was stopped by the accused as complainant misused the cheques in question and rest cheques cases also filed by the complainant.
37. Counsel for accused further argued that the complainant stated in his cross examination that the cheques no. 197974 was issued after receiving the medicines and stated that the first bill was issued in June 2017 and cheque no. 197974 dated 28.09.2017 and the said cheque was presented in the Bank on 21.11.2017. Counsel for accused argued that if the cheque was issued after the first bill received the medicine how the complainant presented the said cheques after two months.
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38. It is further argued by counsel for accused that the firm of the complainant is not registered and no registration was filed by the complainant in the record. He further argued that if the firm is not registered, the complainant has no power to file the cause u/s 138 NI Act without registration of certificate of the firm and the Drug License of the firm is whole sale license. He stated that complainant firm has power to sell the medicines to the registered firm and not individual person as per case of the complainant. He further stated that the complainant namely Yogesh Goel is an individual person only and the service of legal notice are not affected upon the accused and the name of the father of accused mentioned in the complaint case i.e. Ratan Lal Gupta which is incorrect as the real name of the father of accused is Mr. S.C. Goel.
39. Counsel for accused further argued that the complainant had not filed the Income Tax regarding the amount of Rs. 15,13,779/- which are shown in the case and the Income Tax document filed by the complainant which is marked documents was the personal Income Tax of the Chhabi Jain and the cheques in question in the name of the firm and the ATR must be in the name of Firm. He further argued that the accused examined three witnesses i.e. DW-1/Accused himself, DW-2/Sanjay Saini, PRI, Post Office, DW-3/Vishal Sachin, Drug Inspector.
40. Counsel for accused aruged that the complaint cases filed by the complainant not maintainable as the complainant has not filed any documents regarding she is sole proprietor of the said firm and cheques in question in the name of said firm i.e. Vaibhav Enterprises and the cheques in question are not in the name of complainant so the cases of the complainant are not maintainable and is labile to deserve to be dismissed.
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41. Counsel for accused is relying upon the Judgments "Kumar Exports v. M/s Sharma Carpets in SLP Crl. 955/2007 by the Hon'ble Supreme Court of India; Milind Shripad Chandurkar v. Kalim M. Khan & Anr. SLP (Crl) No. 3045/2008 by the Hon'ble Supreme Court of India; Mr. Suresh Sharma v. M/s New Cool Well Industries & Ors in Crl.Appeal No. 745/2017 by the Hon'ble High Court of Delhi
42. It is pertinent to mention that to establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following ingredients reiterated in the Judgement of Hon'ble Supreme Court of India in Kusum Ingots and Alloys v. Pennar Peterson Securities Ltd. AIR 2000 SC954:-
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that 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;
(iii) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 14/23 information by him from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
43. The accused have accepted his signatures on cheque and thereby the presumptions available to the complainant under Section 118 and Section 139 NI Act apply in the present matter.
44. The Honorable Supreme Court of India in the case of Bir Singh v. Mukesh Kumar Criminal Appeal Nos. 230-231 OF 2019 held that :
"21. Section 139 of Negotiable Instruments Act, which mandates that unless the contrary is proved, it is to be presumed 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. Needless to mention that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque."
and;
"23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact."
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45. The Honorable Supreme Court of India in " Triyambak S Hegde v Sripad" (2022) 1 SCC 742 while relying upon the the constitution bench judgment of Basalingappa v Mudibasappa (2019) 5 SCC 418 , under para 14 of its judgment reiterated that once the cheque was issued and that the signatures are upon the cheque are accepted by the accused, the presumptions under section 118(a) and section 139 of the NI Act arise against the accused. That is, unless the contrary is proved, it shall be presumed that the cheques in question were drawn by the accused for a consideration and that the complainant had received the cheque in question in discharge of debt/liability from the accused.:
"25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
46. Further, The Honorable Supreme Court of India in "Rakesh Jain v. Ajay Singh" Crl. No. 12802 of 2022 has held under para 44 that:
"44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 16/23 complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well."
And further held under para 56 that;
"56. At the stage when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which accused has chosen to rebut the presumption): Has the accused led any defense evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the 'particular circumstances of the case'?"
47. Now, the defence taken by the accused against the presumptions available in favour of the complainant would be examined and decided upon.
48. The counsel for accused has primarily taken three defences. Firstly, that the complainant firm is not a proprietorship firm and is in fact a partnership firm and therefore has no locus in the present matter. Secondly, the license for distribution in favour of the complainant is for wholesale medicine and therefore, the complainant cannot sell said medicines to an individual and thirdly, the counsel for accused has denied the legally enforceable liability in its entirety stating that no medicines were ever CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 17/23 delivered by the complainant to the accused as the amounts specified on the cheque in question is different than the bill/invoice raised.
49. Counsel for accused has argued that the present complaint is not maintainable as no document regarding the proprietorship firm have been filed by the complainant in the present matter. However, the complainant has furnished various documents which were neither admitted nor specifically denied by the accused. Mark.CW-1/D2 which is a registration certificate issued on behalf of the Government of India reflects that the firm "Vaibhav Enterprises" is a proprietorship firm. Mark.CW-1/D4 is a self declaration form furnished to the Licensing Authority, Department of Drugs Control which reflects the declaration that Ms. Chhabi Jain is the proprietor of M/s Vaibhav Enterprises.
50. Further, the Court directed the bank of the complainant to furnish documents pertaining to the nature of account being maintained. The witness brought forth the account opening form wherein it reflects that it was an account in the name of M/s Vaibhav Enterprises being a proprietorship concern.
51. Secondly, Counsel for accused has questioned that the license granted to the complainant was for wholesale medicine and did not include sale to individuals. Ex.DW-3/1 (Colly) reflects the Form 20B wherein license was granted to the complainant with the condition that the Drug shall be sold under cash or credit memo from a duly license dealer or a duly licensed manufacturer. Furthermore, the accused had specifically denied that the medicines were duly delivered to him i.e. there was a contract of sale and purchase between the complainant and the accused.
CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 18/23 The accused cannot on one hand deny the liability by stating that the medicines were not delivered and on the other hand question the authority of the complainant to do so. These are contradictory stands and thereby the contention does not hold ground.
52. Thirdly, the counsel for accused has argued that the amount specified on the cheque(s) in question is different than the bill raised which reflects that the medicines were not delivered. The accused in the entire trial had accepted that the cheque(s) in question were duly filled by him before being given to the complainant. Thereby, the difference in the specified amount cannot be taken into consideration when accused has accepted the demand of medicines from the complainant as well as providing the cheque(s) in question in duly filled form.
53. Furthermore, the accused at the time of serving of notice u/s 251 Cr.PC had stated that the cheque(s) in question were given to the complainant as an "advance". However, at the time of recording of statement of accused u/s 313 Cr.PC, he had stated that the said cheque(s) in question were given as "Advance as security", whereas at the time of recording of his evidence, he had stated that the said cheque(s) in question were given as security to the complainant. That is to say the accused had been stating different reasons/ground at different stages of the trial and while same are not contradictory in nature, he had been improving on his previous made statements.
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54. The accused to prove his case had brought the Public Relation Inspector i.e. DW-2 to prove that he had issued the instruction for "Stop Payment" vide Ex.DW-2/1 and Ex.DW-2/2. The witness had stated vide Ex.DW-2/1, the cheque(s) in question presented were dishonored due to "Insufficient balance". No clarification was sought or brought on record against the evidence furnished by his own witness by the accused to his claim that he had issued the instruction for "Stop Payment" and the cheques were dishonored due to the same. The request for "Stop Payments" was made vide Ex.DW-1/1 and Ex.DW-2/2 vide letter dated 11.12.2017 qua the cheque(s) in question i.e. 197976, 197978 & 197979.
55. Time and again the accused has stated that it was the husband of the complainant who had represented himself to be the face of the complainant firm i.e. M/s Vaibhav Enterprises and the entire transactions were made with Mr. Kapil Jain, however, he was never called for his evidence for the duration of the trial. No proof for any complaint made against Mr. Kapil Jain for the said mischief was brought on record.
56. The accused while admitting that the cheque(s) were duly filled and provided to the complainant had no knowledge of the said cheque(s) in question being presented in the initial stage had given instructions for "Payment stop" for cheques no. 197976, 197977 & 197978 dated 11.12.2017, however, his own witness furnished the record wherein it reflects that the stated cheque(s) were dishonored due to insufficient balance in the account.
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57. Moreover, the license for sale of Drugs granted to the complainant was from a period 14.02.2012 to 13.02.2017, however, the payments for renewal made on 31.01.2017. The Drug Inspector, Drugs Control Department, GNCT, Delhi i.e. DW-3 vide his evidence had stated that one could continue their business during the period of renewal/retention of fees, thereby, validating the transaction of medicines at the requisite period.
58. The presumptions available in favour of the complainant shift the burden upon the accused and is a step away from the normal legal recourse as it is an example of reverse onus clause. The special onus of proof entails a presumption against the accused, wherein it is upon the accused to prove that the claim of the complainant is incorrect through preponderance of probability. The burden of proof through preponderance of probabilities is of a stricter nature than merely creating a doubt as the accused has to prove his case by leading cogent evidence. A mere denial as held by the Hon'ble Supreme Court of India in "M/s Kumar Exports v. M/s Sharma Carpets " in SLP Crl. 955/2007 by the Hon'ble Supreme Court of India is not sufficient to rebut the presumptions available in favour of the complainant or disprove his case.
59. In Kumar Exports, it was held that mere denial of existence of debt will not serve any purpose but accused may adduce evidence to rebut the presumption. This Court held as under:
"20. 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 CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 21/23 prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. 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 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".
Thus, accused has failed to rebut presumptions available in favour of the complainant.
60. In view of the above findings and analysis, it is concluded that the accused could not successfully rebut the mandatory presumptions under section 118(a) and 139 of the NI Act and the ingredients of offence under CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 22/23 Section 138 Negotiable Instruments Act has been fulfilled by the complainant.
61. Consequently, the accused Yogesh Goel, is held guilty and is hereby convicted of the offence under section 138 of the Negotiable Instruments Act, 1881.
Certified that this Judgment contains 23 pages and each page bears my signature.
Digitally
signed by
VARUN
VARUN CHANDRA
CHANDRA Date:
2024.07.31
15:36:26
+0530
Pronounced in open Court on (Varun Chandra)
30.07.2024 JMFC (NI Act)-04/Saket Courts,
South/New Delhi/30.07.2024
CT Cases 6098/2018 CHHABI JAIN Vs. YOGESH GOEL PAGE NO. 23/23