Delhi District Court
M/S Shree Bhagwati Enterprises vs . on 3 February, 2014
IN THE COURT OF SHRI SATVIR SINGH LAMBA, MM-01
( NEGOTIABLE INSTRUMENTS ACT) WEST DISTRICT,
TIS HAZARI COURTS, DELHI
M/s Shree Bhagwati Enterprises,
Through its Partner
Shri Ashwini Kumar Choudhary
1124, Kucha Natwan
Chandni Chowk, Delhi. ......Complainant
Vs.
1. Balaji Enterprises
Through its Proprietor,
208/A-1, Savitri Nagar,
Near Malviya Nagar,
New Delhi.
2. M/s J.M.D Exports,
208/A-1, Savitri Nagar,
Near Malviya Nagar,
New Delhi.
3. Shri Avinash Arora,
Partner, M/s J.M.D Exports,
43, Arjan Marg, DLF Phase I,
Gurgaon.
4. Shri Ajesh Arora,
Partner, M/s J.M.D Exports,
15 and 32, Jagannath Market,
Mathura Road, Ashram Chowk.
New Delhi.
........Accused Persons
JUDGMENT
Complainant Case No. : 1938/1
Date of institution : 18.09.2001 Offence alleged : Under Section 138 NI Act Plea of the accused : Not pleaded guilty Final order : Acquittal Date of Decision : 03.02.2014 CC No. 1938/1 of page no.1/11 Brief Facts
1. Brief facts of the case are that present case is filed by Ashwani Kumar Choudhary partner of complainant firm M/s Shree Bhagwati Enterprises who is duly authorized vide authority letter dated 10.08.2001 i.e Ex.CW1/1. The complainant firm is duly registered with Registrar of Firms Ex.CW1/2 is the certificate issued by the Registrar of Firms. The partnership deed is Ex.CW1/3. It is alleged that complainant is engaged in the business of cloths and the accused persons approached him for the purchase of dress material and fabrics. It is alleged that the accused no.1 is a sole proprietorship firm and the accused no.2 is a partnership firm. It is further alleged that accused no.3 and 4 are the partners of the accused no.2 and represented themselves as a manufacturer of ready made garments. It is further alleged that the accused no.3 have been responsible for the conducts of the affairs of the accused no. 1 and 2. It is alleged that accused no.1 and 2 are the sister companies and the accused no.3 and 4 are the real brother. It is further alleged that the purchase order were issued by the accused no.2 and the cheques were issued on behalf of accused no.1. It is further alleged that the complainant had sold the material to the accused for the first time on 15.01.2001 and last transaction was took place on 27.01.2001 for which the copies of bills are Ex.CW1/4A to Ex.CW1/4H. The statement of account pertaining is Ex.CW1/5. Copy of purchase order is Ex.CW1/6. Visiting card of accused no.3 and his employee Naresh Kumar is Ex.CW1/7A and Ex.CW1/7B respectively. It is alleged that out of total outstanding amount of 19,20,294.90, the accused had paid only Rs.2,60,224/- and there was a balance of Rs.16,60,071/- as on 27.01.2001. After a lot of pursuation and request accused no.1 issued a cheque bearing no.509912 dated 05.02.2001 for the sum of Rs.2,41,300/- drawn on State Bank of India, Kalkaji, New Delhi, same is Ex.CW1/8C as part payment to the complainant on behalf of all the accused persons. The complainant presented the cheques Ex.CW1/8C for encashment through his banker but the same was got dishonored by the bankers of accused with the remarks "Account closed" vide returning memo dated 25.07.2001 which is Ex.CW1/8B. Henceforth, the complainant issued the mandatory notice U/s 138 NI Act dated 09.08.2001 i. e. Ex.CW1/9A and the same was served upon the accused vide registered AD/U.P.C. i.e. Ex.CW1/9B to Ex.CW1/9F respectively.
CC No. 1938/1 of page no.2/112. When the accused failed to fulfill the conditions of the said legal notice Ex.CW1/9A within 15 days of its presumed service, then the complainant has filed the present complaint case U/s 138 of Negotiable Instrument Act 1881 (hereinafter the Act) against the accused.
Pre-Trial Procedure
3. After the institution of the present complaint, the complainant adduced his pre summoning evidence U/s 200 Cr. P.C. on which basis the accused no.1 and 4 were summoned via order dated 14.02.2003 to face trial for the offence U/s 138 NI Act. After the service of the summons, the accused no.1 and 4 entered their appearance whereupon the provisions of Sec. 207 Cr. P.C. were also complied.
4. The accused persons were admitted to bail then notice U/s 251 Cr. P.C. for the offence U/s 138 NI Act was served upon the accused no.1 and 4 on 18.05.2006 after hearing the contesting parties. Needless to say, the accused pleaded "Not Guilty" and claimed trial.
Trial
5. In order to substantiate his case, the complainant examined himself as the witness as CW-1 whose contents are a mere repetition of what had already been discussed under the "Brief Facts" and hence are not repeated for the sake of brevity. CW-1 i.e. complainant was duly cross-examined by the accused.
6. All the incriminating circumstances, appearing in the evidence against the accused was put in order to unable him to offer his explanation.
7. In his explanation u/sec 313 Cr.P.C r/w sec 281 Cr.P.C, the accused has stated that complainant is unknown to him. Accused further stated that he has neither visited the office of complainant nor promised the purchase material from the complainant on credit nor has placed any order to the complainant nor has purchased any material from the complainant. Accused denied the receiving of goods vide bill CC No. 1938/1 of page no.3/11 Ex.CW4/A to Ex.CW4/H. Accused also denied that there was any outstanding liability of Rs.19,20,294.90 and he has failed Rs.2,60,224/- since there was no transaction with the complainant. Accused further stated that neither he was the proprietor nor was the partner of the accused no.1 and has no concern with the issuance of cheque in question by the accused no.1 in favour of complainant. Accused denied the issuance of cheque in question in favour of complainant. Accused further stated that the accounts from which the cheque in question has been issued does not belonged to him. He lastly stated that he is innocent and is falsely implicated in the present case and the complainant is misusing the cheque in question.
8. In support of his Defence evidence accused examined bank official, SBI, Kalkaji Branch as DW1 and examined himself as DW2. Both the witnesses were duly cross examined by the complainant. Thereafter, DE was closed whereupon the trial came to a conclusion and the contesting parties were duly heard.
Facts in Issue
9. In order to have the positive outcome in his favour, the complainant was required to show that the cheque Ex.CW1/8C was given by the accused to discharge his liabilities which was dishonoured via returning memo whereafter the accused had also failed to comply with the requirements of the legal notice Ex. CW1/9A.
10. On the other hand, the accused no.3 was required to show his defence on the scale of preponderance of the probabilities that he is not liable to the amount involved to the complainant.
Legal Prepositions
11. The presumptions provided U/s 118 NI Act and 139 NI Act would come to the rescue of the complainant once the execution of the cheque in question is proved on record.
12. As per section 118 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was given against CC No. 1938/1 of page no.4/11 consideration by the accused and that the complainant was the holder of the said cheque in due course. Further as per Sec. 139 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was received by the complainant against a legally enforceable debt or liability (Refer :- "Rangappa Vs. Sri Mohan" SLP (Crl.) 407/06, Dated:- 07.05.2010).
13. It is well settled that both the aforesaid presumptions U/s 118 & 139 NI Act are rebuttable in nature and the onus to rebut the same squarely rests upon the accused.
14. The accused can rebut these presumptions not merely by examining his own witnesses but also through the cross examination of the complainant and his witnesses thereby bringing on record through the entire evidence available on record (inclusive of complainant's evidence and defence evidence, if any), that the complainant was a liar, that their was no existing liabilities between the parties and that the cheque in question was misused. It must be kept in mind that once evidence is brought on record from both sides, it becomes an evidence of the case and court can draw inferences from the said entire evidence either in favour or against any of the parties. Evidence is a complainant's evidence and accused's evidence only for the purposes of identifying it, but once it is adduced in the case, it becomes the evidence of the case and then the same has to be read as a whole. The court can not read the evidence of the complainant only to the extent it favours the complainant and overlook the remaining evidence which supports the accused merely on the ground that it is the complainant's evidence. Similarly, from the evidence adduced by the accused, the court can draw inferences either in favour of the complainant or against the accused. The accused has a right to argue his case even on the basis of the cross examination of the complainant & his witnesses to show to the court that there existed no legally recoverable debt or liability between the parties. In order to rebut the legal presumption in question, it emerges that the accused need not require direct evidence to disprove the existence of consideration.
15. Preponderance of probabilities is the standard of proof upon the accused to rebut the above presumptions, which is not as high as that of the prosecution whereby the accused is only required to show the existence of a CC No. 1938/1 of page no.5/11 probable defence so as to rebut the above presumptions. If the accused succeeds in raising a probable defence by referring to his own evidence (if any) and from the evidence of the complainant, then the onus would shift on to the complainant, who then would have to show beyond reasonable doubt the existence of consideration/existence of a legally recoverable debt or liability in respect of the cheque in question.
Appreciation of Evidence
16. In his cross examination AR of complainant stated that his evidence of affidavit is prepared on his instructions and the correction there upon are in his handwriting. AR of complainant admitted that he has seen and verified as to who is the proprietor of accused no.1. AR of complainant denied of any knowledge whether Sanjay Bhatia was the proprietor of accused no.1. AR of complainant admitted that he has not stated in the present complaint that the accused no.4 had signed the cheque in question and was the proprietor of accused no.1. AR of complainant further admitted that he had not seen the partnership of JMD Exports and Ex.CW1/7A and Ex.CW1/7B does not bears the handwriting of accused. AR of complainant admits that the signatures on bill no.9368, 9369, 9372, 9375. 9378, 9383, 9385, 9386, 9389, 9392 were not of accused no.4. AR of complainant further admits that he is not having any document to show that M/s Ganpati Overseas, M/s Balaji Enterprise, M/s JMD Exports are sister concerns. AR of complainant further admits that he has not made any averments against accused no.4 that the cheque in question was issued by him in his pre summoning evidence. AR of complainant further admits that the writing on Ex.CW1/8C is not of the accused no.4. AR of complainant stated that the cheque in question was not filled in his presence but explains in his voluntarily statement that the same was signed by accused no.4 in his presence. AR of complainant admitted that he has not aware in the legal notice Ex.CW1/9A that accused no.4 had signed the cheque in question. However, all the suggestions put to him by the accused were denied.
17. The defence set up by the accused in the present case is that neither he has signed the cheque in question nor issued the cheque in question to the complainant because he has no concerned with the accused firm. Further defence of CC No. 1938/1 of page no.6/11 the accused is that neither he has placed any purchase order to the complainant nor any goods supplied to him.
18. In order to prove his innocence accused examined the bank official Dilbagh Singh, record keeper, SBI, Kalkaji, New Delhi as DW1. DW1 has brought the summoned record i.e account opening form of current account bearing no.1/68 in the name of M/s Balaji Enterprises. The same is Ex.DW1/A. DW1 was duly cross examined. Nothing material has come out from the cross examination of DW1. However, all the suggestions put to him by the complainant were denied.
19. Accused examined himself as DW2 and denied the liability alleged in the present case. Accused stated in his examination in chief that he was neither the proprietor of M/s Balaji Enterprises nor the partner of JMD Exports. Accused stated that Avinash Arora is not his real brother. Accused further stated that the cheque in question neither bears his signatures nor is filled in his handwriting. Accused further stated that he has never dealt with the complainant as he is engaged in the business of cold drink only. Accused further stated that the account from which the cheque in question has been issued does not belonged to him. Accused further stated that he has neither purchased any goods from the complainant nor issued any purchase order to him. Accused further stated that he has duly replied the legal notice of the complainant.
20. In his cross examination accused stated that he do not know the Avinash Arora, the complainant firm as well as the accused firm Balaji Enterprises. Accused explained that name of his brother is Umesh. Accused further stated that he is engaged in the business of cold drinks from the year 1997 in the name and style of Lucky cold Drinks at Shop no.32, Jagan Nath Market, Ashram, New Delhi and is also having bank account in the name of his firm with Syndicate Bank, Okhla Deport, New Delhi. Accused further admit that he is also having a bank account in his name in State Bank of India, Friends Colony, New Delhi. However, all the suggestions put to him by the complainant were denied.
21. It is argued by the Ld. counsel for complainant that from evidence on record, the complainant has proved that cheque in question was signed by the CC No. 1938/1 of page no.7/11 accused which was dishonoured vide memo and despite the legal notice accused did not make the payment. It is argued that during the cross examination of complainant nothing material has come out and the complainant has been able to prove his case. It is further argued that accused has failed to discharge the burden upon him to rebutt the presumption in favour of the complainant under the Act.
22. Now the question is whether the complainant proved his case, that whether the amount was legally enforceable debt. Offence under Section 138 of the Act is a technical offence and the complainant is only supposed to prove that the cheque issued by the accused was dishonoured, his statement that cheque was issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the accused to show the circumstances under which the cheque was issued and this could be proved by the accused only by way of cogent evidence.
23. Ld. Counsel for accused has argued that accused is having no legal liability towards the complainant because he was neither the partner nor the proprietor of accused firm. It is further argued that the the cheque in question is not issued by the accused in favour of complainant at any point of time. Ld. Counsel for accused further argued that the accused has no concern with the accused no.1 firm and the account from which the cheque in question has been issued does not belongs to the accused. Ld. Counsel for accused further argued that neither the accused has placed any purchase order upon the complainant firm nor any goods were supplied to him at any point of time. Ld. Counsel for accused further submits that the complainant has misused the cheque in question with the malafide intent to harass the accused.
24. 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/evidence on preponderance of probabilities to prove that cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, there is no need 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 CC No. 1938/1 of page no.8/11 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.
25. From the material on record it is established that the cheque in question was issued to the complainant by the accused firm namely M/s Balaji Enterprises through its proprietor. It is further established on record that the cheques in question issued by the accused firm got dishonored vide bank memo. The signatures on the cheque in question is disputed by the accused stating that he has neither the proprietor of firm nor has any concern with the affairs of M/s Balaji Enterprises. The testimonies of DW1 vide Ex.DW1/A i.e a account opening form of accused firm M/s Balaji Enterprises reveals that Sanjay Bhatia is the proprietor of the firm. The deposition of DW1 established that the accused no.4 Ajesh Arora is neither the proprietor of the accused firm M/s Balaji Enterprises nor the signatory of cheque in question nor is the authorized signatory on behalf of M/s Balaji Enterprises.
26. During his cross examination, the AR of complainant admitted that he had not stated in the present complaint that the accused Ajesh Arora is the proprietor of accused no.1 firm. AR of complainant further admitted that he had not stated in the present complaint that the accused Ajesh Arora is the signatory of the cheque in question or has issued the cheque in question in favour of the complainant. It is pertinent to mention here that the complainant had alleged in the complaint that the cheque in question is signed by one of the accused i.e. Ajesh Arora/Avinash Arora meaning thereby the complainant is not sure by whom the cheque in question was issued. AR of complainant also admitted that the bills of the alleged transactions were not having any receiving or signatures or acknowledgment of the accused Ajesh Arora regarding delivery of goods. Accordingly, the explanation of AR of complainant that he had seen and verified the factum that the accused no.4 is the proprietor of the accused firm M/s Balaji Enterprises does not hold water, keeping in view the deposition of bank of official DW1. The AR of complainant has not been able to prove any relation of accused Ajesh Arora with the accused firm M/s Balaji Enterprises. Further, the complainant had failed to established on record by any iota of evidence that the accused Ajesh Arora is either the proprietor or the authorized CC No. 1938/1 of page no.9/11 person of the firm M/s Balaji Enterprises. The complainant had miserably failed to established on record that the accused Ajesh Arora was having any business dealings with the complainant firm at any point of time.
27. It is well settled law that in a criminal case, prosecution has to stand upon its own legs. The defence raised by the accused along with the evidence placed on record are cogent proof in support of the defence version makes it highly probable that the cheque in question was not issued towards the discharge of liability as alleged by the complainant and at the same time it weakens the foundation fabrics of the present complaint case. The suspicious circumstances rising in the present case will certainly give advantage to the accused. Moreover, the complainant has concealed the material facts from the court and had not come to the court with clean hands and his conduct is not of a prudent man. Hence, in the present case, the accused raises a cogent suspicious circumstances in the version of the complainant which belies the foundation of the present complaint case and same is sufficient to rebutt the presumption that the cheque in question was not for discharging the legal liability.
Conclusion
28. I have gone through the entire material on record carefully and heard the arguments advance by the counsel for parties at length. After analyzing the evidence led by the parties, I am of the opinion that accused has been successful in rebutting the presumptions under NI Act by raising cogent suspicion in the version of complainant and on the scale of preponderance of probabilities that the cheque in question may not be given to the complainant as alleged by him.
29. The rebuttal does not have to be conclusively established 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. In the present case accused has not only been able to raise a probable defence and adduced sufficient evidence to prove his defence but also been able to succeed in shaking the very foundation of the fabrics of the case of the complainant.
CC No. 1938/1 of page no.10/1130. Once the accused has discharged his initial burden of proving its defence the onus rebutted back on the complainant. However in the present case, complainant has miserably failed to prove the case beyond reasonable doubt.
31. Therefore, from the above discussions, this court is of considered view that in the circumstances appearing from the record of the case, the accused is entitled to be acquitted and hereby stands acquitted of the offence under Section 138 of Negotiable Instrument Act.
Announced in open court on SATVIR SINGH LAMBA
3rd February, 2014 MM-01(NI ACT)WEST/DELHI
CC No. 1938/1 of page no.11/11