Delhi District Court
Cc No.472/1 : "M/S Rapid Diagnostic vs M/S Rav Pharma Pvt. Ltd. & Anr." Page 1 Of ... on 3 December, 2012
IN THE COURT OF SHRI MANISH YADUVANSHI : ACMM0I
(CENTRAL) : TIS HAZARI COURTS, DELHI.
1. Case No. : 0472/1
2. Unique I.D. No. : 02401R0052752009
3. Title of the Case : M/s Rapid Diagnostic Pvt. Ltd. Vs
M/s Rav Pharma Pvt. Ltd. & Anr.
CC No.0472/1
PS : Paharganj
U/s 138 NI Act
4. Date of Institution : 13.02.2009
5. Date of reserving judgment : 30.11.2012
6. Date of pronouncement : 03.12.2012
J U D G M E N T :
a) The Sl. No. of the case : 0472/1
b) The name of complainant : M/s Rapid Diagnostic Pvt. Ltd.
(Through its Authorized Representative)
Sh. Abhinav Sharma
B159, Gujranwala TownI, Delhi110009
c) The name of accused :1) M/s Rav Pharma Pvt. Ltd.
218219, Samrat Enclave, Pitampura,
New Delhi
2) Sh. Ravi Pandey, Director
M/s Rav Pharma Pvt. Ltd.
218219, Samrat Enclave, Pitampura,
New Delhi
3) Sh. Vishal Chaudhary, Director
M/s Rav Pharma Pvt. Ltd.
218219, Samrat Enclave, Pitampura,
New Delhi
CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 1 of 11
d) The offence complained of : U/s 138/141/142 of the Negotiable
Instruments Act, 1881 & U/s 420 of IPC
e) The offence charged with : U/s 138 of of the Negotiable
Instruments Act, 1881
f) The plea of the accused : Pleaded not guilty
g) The final order : Convicted
h) The date of such order : 03.12.2012
i) Brief facts of the decision of the case :
1. The complainant's company has filed the present complaint through its authorized representative namely Abhinav Sharma, duly authorized by way of Board Resolution (Ex.CW1/1). Accused No.1 is a private limited company of which accused No.2 namely Ravi Pandey and accused No.2 namely Vishal Chaudhary are stated to be Directors and Incharge of day to day conduct, working and affairs of the accused No.1 company. The complainant and accused have business dealings. The complainant is the supplier of various testing and diagnostic kits/reagents and had been supplying such products to the accused from time to time on cash as well as credit basis against a running and current account maintained in normal course of its business. Towards the outstanding amount due, the accused No.2 issued eight cheques while accused No.3 issued two cheques in discharge of their part liability for and on behalf of accused No.1 company in favour of the complainant. CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 2 of 11
2. Accused No.2 issued following cheques : S.No. Cheque Cheque Amt. Drawn on In favour of Exhibited No. Date as
1. 953103 02.10.2008 13,228/ Bank of Maharashtra, M/s Rapid CW1/2 East Patel Nagar, Delhi Diagnostics (P) Ltd.
2. 953104 09.11.2008 30,888/ Bank of Maharashtra, M/s Rapid CW1/3 East Patel Nagar, Delhi Diagnostics (P) Ltd.
3. 951312 25.10.2008 18,000/ Bank of Maharashtra, M/s Rapid CW1/4 East Patel Nagar, Delhi Diagnostics (P) Ltd.
4. 951313 27.10.2008 15,072/ Bank of Maharashtra, M/s Rapid CW1/5 East Patel Nagar, Delhi Diagnostics (P) Ltd.
5. 951332 28.10.2008 19,968/ Bank of Maharashtra, M/s Rapid CW1/6 East Patel Nagar, Delhi Diagnostics (P) Ltd.
6. 951335 02.11.2008 23,920/ Bank of Maharashtra, M/s Rapid CW1/7 East Patel Nagar, Delhi Diagnostics (P) Ltd.
7. 951340 05.11.2008 29,016/ Bank of Maharashtra, M/s Rapid CW1/8 East Patel Nagar, Delhi Diagnostics (P) Ltd.
8. 951342 20.09.2008 25,000/ Bank of Maharashtra, M/s Rapid CW1/9 East Patel Nagar, Delhi Diagnostics (P) Ltd.
3. Accused No. 3 issued following cheques : S.No. Cheque Cheque Amt. Drawn on In favour of Exhibited No. Date as
1. 943285 13.10.2008 20,000/ Bank of Maharashtra, M/s Rapid CW1/10 East Patel Nagar, Delhi Diagnostics (P) Ltd.
2. 943286 16.10.2008 23,180/ Bank of Maharashtra, M/s Rapid CW1/11 East Patel Nagar, Delhi Diagnostics (P) Ltd.
4. On presentation, the cheques (Ex.CW1/7 & 1/8) returned unpaid upon remarks "payment stopped by drawer" vide return memo dated 30.12.2008 whereas CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 3 of 11 the remaining cheques also returned unpaid for the reasons "exceed arrangements"
vide return memo dated 30.12.2008 (Ex.CW/12 collectively). The intimation in this regard was received by the complainant on 01.01.2009 as per debit advice issued by Oriental Bank of Commerce (Ex.CW1/12 collectively). The complainant subsequently issued legal notice dated 07.01.2009 in respect of dishonour of the aforestated cheques and dispatched the same to the accused by Registered AD post dated 13.01.2009 (Ex.CW1/14 collectively) and UPC dated 13.01.2009 (Ex.CE1/15 collectively). As no payment was made despite service of legal notice, the present complaint case in respect of commission of offence punishable U/s 138 of 'The Negotiable Instruments Act, 1881 (hereinafter called 'NI Act') and Section 420 IPC was filed.
5. On 20.02.2009, the court took cognizance of offence punishable U/s 138 of the Act only. The accused were directed to be summoned. The notice for offence punishable U/s 138 read with Section 141 of NI Act was served upon accused persons namely Ravi Pandey and Vishal Chaudhary, Directors of accused No.1 company namely M/s Rav Pharma Pvt. Ltd in accordance with Section 251 Cr.P.C on 01.02.2010. They pleaded not guilty and claimed trial.
6. The complainant examined its AR namely Abihnav Sharma as CW1 who filed his affidavit in the evidence. He was duly cross examined by Ld. Defence Counsel. In his cross examination, the accused produced a letter dated 08.11.2008 issued by the complainant's company to the accused company in respect of CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 4 of 11 payments due and the said document is Ex.DW1/B. Another document dated 24.09.2008 addressed to the complainant and issued by the accused company was produced as Ex.DW1/C. During his cross examination, the court had given directions to CW1 to produce the statement of account vide order dated 18.08.2010. The same were produced and the CW1 was cross examined in that regard. However, the exhibit number was not put on the statement of account of the accused company maintained by the complainant for the period from 01.04.2008 upto 31.03.2009. However, it is receivable in evidence for the reasons aforegoing. The statement of accused U/s 313 Cr.P.C was not recorded for the reasons stated in order sheet dated 14.02.2011.
7. In defence evidence, the accused No.3 Vishal Chaudhary examined himself as his own witness after due permission from the court U/s 315 Cr.P.C. He appeared in the witness box submitting that no legal notice was received on account of incorrect address. He deposed that the summons issued by this court were also on incorrect address. He also deposed that the account statement of the complainant's company is manipulated. He was duly cross examined by Ld. Counsel for the complainant. No further DE was led.
8. I have heard Sh. Girish Gaur, Ld. Counsel for the complainant and Sh. Prabhash Chand, Ld. Counsel for accused persons.
9. The main arguments of the defence are on two counts. It is argued firstly, that the complainant has suppressed the fact that they had issued a notice CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 5 of 11 (Ex.DW1/B) dated 08.11.2008 which was duly received by the accused. It is argued that in view of issuance of aforestated notice, the complainant could not have represented the cheques mentioned therein and the said exercise would not create fresh cause of action in complainant's favour and therefore the issuance of second legal notice (Ex.CW1/13) is of no consequence. Consequently, Ld. Counsel argued that even the second legal notice (Ex.CW1/13) could not have been served upon the accused as it was issued to the accused company/accused persons for delivery at 218219, Samrat Enclave, Pitampura, Delhi which address is incorrect. On the strength of the address mentioned in document (Ex.DW1/C) i.e., 217218, Samrat Enclave, Pitampura, New Delhi110034, it was argued that the notice could not have been delivered being issued on incorrect address. Thirdly, it was argued that the statement of account maintained by the complainant was manipulated.
10. On the contrary, the complainant submits that the case of the complainant stands duly proved in view of the fact that the amount reflected in the statement of account and the issuance of cheques in question are sufficient to prove the existence of legally recoverable debt in favour of the complainant and against the accused. It is argued that admittedly the accused persons are the Directors of the accused company and are liable to its day to day conduct. It is argued that the cheques in question were issued toward discharging the liability of the accused company. It is argued that at the relevant time i.e. issuance of legal notice, the accused were very much present on the address provided on record as the legal notice was issued in the year 2009 whereas admittedly as per DW1, the accused CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 6 of 11 company was at 217218, Samrat Enclave, Pitampura, New Delhi in the year 2008 till 2009. It is submitted that in any case the premises No. 218 is common in both the addresses. Moreover, Ex.DW1/B produced by the accused and purportedly issued by the complainant was also issued at 218219, Samrat Enclave, Pitampura, New Delhi. If the same was received by the accused at the said address, then the said address was equally good for receipt of notice (Ex.CW1/13) issued at the same address.
11. I have perused the legal notice (Ex.CW1/13) in juxta position to document (Ex.CW1/B) which is projected as a legal notice giving cause of action to the complainant to file this case. The text relevant of the said document is as under : "xxxxxxxx Kind Attn.: Mr. Vishal Choudhary / Mr. Ravi Pandey Subject : Due payments.
Dear Sir, This has reference to you bounced cheques having following details.
S.No. Cheque No. Amount
1. 953103 13228/
2. 951312 18000/
3. 943286 23180/
4. 951313 15072/
5. 955021 25000/
Your total due payments as on date are Rs. 2,02,025.27 as per CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 7 of 11 our books.
You are not releasing the due payments of bounced cheques even after various verbal requests. This is your legal responsibility to honour issued post dated cheques.
We request you to kindly make arrangements to release the entire due payment within 15 days of this intimation letter otherwise we have to take legal help in this subject.
We Assure best of our services and mutual beneficial business relations.
xxxxxxxx"
12. The document makes mention of only five cheques out of which four cheques are Ex.CW1/2, 1/4, 1/11 & 1/5 respectively. It makes reference to total due payment as on that date i.e., Rs. 2,02,025.27/ as per account books. A request is made for release of the entire due payment failing which the complainant will take legal help. Even if the arguments of defence is taken to be correct, then also it still leaves the complainant with a fresh cause of action that would have accrued to them in the wake of dishonour of the remaining cheques which are Ex.CW1/3, 1/6, 1/7, 1/8, 1/9, 1/10. However, the contention of the defence is misplaced.
Similar circumstances were considered by the Hon'ble Supreme Court of India in case of "K.R.Indira Vs Dr. G.Aadi Narayana" 2003 (3) JCC (NI) 273. The Hon'ble Apex Court considered its earlier judgment in the case of "Suman Sethi Vs Ajay K Churiwal & Anr."(2000) 2 SCC 380 in which it was said that if a specific demand in respect of the amount covered by the cheque has been made, the fact that certain additional demands incidental to it in the form of expenses incurred CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 8 of 11 for clearance and notice charges were also made did not vitiate a notice. In the case of "Suman Sethi (supra)", the notice was a consolidated notice for several dis honoured cheques and the question was whether the notice is valid. It was found that not only the cheque amount were different from the alleged loan amount but the demand was made not of the cheque amount but only the loan amount as that it is a demand for the loan amount and not the demand for payment of the cheque amount and in addition thereto made further demands as well. The notice was found imperfect not because it had any further or additional claims as well but it did not specifically contain any demand for the payment of the cheque amount, the non compliance with such demand only being the incriminating circumstance which expose the drawer from being proceeded against U/s 138 of the Act.
The Hon'ble High Court of Delhi relied upon the aforestated observations of the Hon'ble Apex Court in case titled "Pramod Vijay Khullar Vs State and Anr." 2005 (1) JCC (NI) 97. In the said case also, the Hon'ble High Court had found that the notice related to amount due and not for the cheque amounts. Although, the cheques were described in the previous part of the notice, no demand in the cheque amount as such was made in the notice. The cheque were mentioned only by way of emphasizing the claim. The demand was found for the amount due under the business transactions. The notice was therefore found to be imperfect.
13. In the case before me, the document (Ex.DW1/B) can not be taken as legal notice U/s 138 of the Act. Though, it mentions five cheques but raises the CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 9 of 11 demand for the entire amount due as per business transactions, Therefore, it is rightly contended by the complainant that the document (Ex.DW1/B) is not a legal notice within the meaning of section 138 of the Act. Thus, the contention of the defence is misplaced.
So far as the contention that the legal notice could not have been received at the given address, I have already observed that the premises No. 218 is common in the address provided on Ex.DW1/C and the legal notice (Ex.CW1/13). Moreover, the accused relied on document (Ex.DW1/B) which they received on the same address as is indicated in the legal notice (Ex.CW1/13). There is no proof of delivery of legal notice (Ex.CW1/13) on record. However, the complainant has established that the same was dispatched at the correct address of the accused by way of registered AD post as well as by UPC. Thus, the presumption of delivery of the same is in favour of the complainant which is not rebutted by the accused.
14. There is no denial anywhere on the entire record that the parties were not having business dealings. The sanctity of the correctness of the statement of the amount maintained by the complainant is challenged, however, the accused have not produced any contrary evidence on record in order to prove that the entries reflected in the statement of account for the period from 01.04.2008 to 31.03.2009 were manipulated. They indicated a debit balance of rs. 2,07,025.27/ as on 31.03.2009. In the cross examination of CW1, the defence had given suggestion i.e., "it is correct that the amount due towards the accused is Rs. 2,07,025.27". It is not the case of the accused that no goods were supplied to them. It is not the case of the CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 10 of 11 accused that defective goods were supplied. It is not the case of the accused that amount reflected in the statement of account was not due as stated. In the given circumstances, there is absolutely no reason as to why veracity of statement of account relied upon by the complainant is to be challenged. Although, there is some cross examination of CW1 regarding nonmentioning of particular entry in respect of cheque No. 955021 of Rs. 25,000/ however, the accused did not contradict the veracity of the statement of account maintained by the complainant by producing their own statement of account. In the result, I am of the considered view that the complainant has been able to establish that the cheques (Ex.CW1/2, 1/3, 1/4, 1/5, 1/6, 1/7, 1/8 & 1/9) were issued by accused No.2 and cheques (Ex.CW1/10 & 1/11) were issued by accused No.3 towards legally recoverable debt of the accused No.1 company of which they liable for the day to day conducts and affairs. The accused have remained unable to displace the presumption U/s 139 of the Act. In the result, In the result, the accused persons are convicted for committing offence punishable U/s 138 of the Act. Be heard separately on point of sentence.
Announced in the open court (MANISH YADUVANSHI) on 03.12.2012 ACMM01 DELHI
It is certified that this judgment contains 11 (eleven) pages and each page bears my signature.
(MANISH YADUVANSHI) ACMM01 DELHI CC No.472/1 : "M/s Rapid Diagnostic Vs M/s Rav Pharma Pvt. Ltd. & Anr." Page 11 of 11