Delhi District Court
M/S Primetime Communications vs . on 18 February, 2012
1
IN THE COURT OF SH. VIVEK KUMAR GULIA
METROPOLITAN MAGISTRATE - 02 [SW]
DWARKA COURTS, DELHI.
In the matter of:
M/s Primetime Communications
Vs.
M/s Media Masters & ors.
C.C. No. 539/1/05
Police Station: Inderpuri
JUDGMENT
1. The serial number of the case : 02405R1322312005
2. The date of institution : 05.09.2005
3. Name of the complainant : Sudeep Bhatia S/o Sh. Ram Parkash Bhatia, Partner of M/s Primetime Communication, A4, (Commercial) IInd Floor, Inder Puri, New Delhi12.
4. The name, parentage and residence of accused : 1) H. P. Raveendra S/o Sh.
Putdas and
2) Rajeev Kumar S/o Ashwath Narayan Both partners of M/s Media Masters, 825, Das Commercial Complex, 7th Block, Jayanagar, Kanakapura Road, Banglore560082.
5. Offence complained of : U/s. 138 N. I. Act
6. Plea of the accused : Pleaded not guilty
7. Final Order : Conviction
8. Final argument heard/ : 14.02.2012 Case reserved for Judgment
9. Date of such Judgment : 18.02.2012 Page 1 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 2 REASONS FOR THE DECISION OF THE CASE :
1. In the present complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (in short "the Act"), it has been alleged that accused entered into an agreement dated 12.01.2005 with the complainant for marketing television programme show "Yatra"
scheduled to be aired by Doordarshan Kendra in Malyalam with effect from 31.01.2005. However, for some reasons, accused persons failed to air the serial as per schedule and ultimately the accused persons terminated the contract and settled the accounts with the complainant. It was agreed that Rs. 10.80 lacs were to be paid to the complainant and in this regard three post dated cheques bearing no. '255666' dated 15.06.2005 for Rs. 3.50 lacs, no. '255664' dated 20.07.2005 for Rs. 3.50 lacs and no. '255665' dated 20.08.2005 for Rs. 3.80 lacs, all drawn on Corporation Bank, Basavanagudi Branch, Banglore560004 and a promissory note were executed by accused persons. On presentation of cheques bearing no. '255664 & 255666' (cheques in question), the same were dishonoured with the remarks "Payment stopped by the drawer". Thereafter, demand/legal notice dated 02.08.2005 was sent to accused but they failed to make any payment of the required amount within stipulated period. In view of above, it is prayed that accused persons be prosecuted and punished as per law.
2. Substance of accusation in the form of written notice u/s 251 Cr.P.C. was read over and explained to accused persons on 23.04.2008, to which they pleaded not guilty and claimed trial.
Page 2 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 33. In post summoning complainant evidence, complainant himself appeared as CW1 in the witness box and reiterated the facts mentioned in the complaint and proved the documents, i.e., Form A, B and FormC under the Indian Partnership Act, 1932 of the complainant firm Ex.CW1/1 & Ex.CW1/2, cheques Ex.CW1/3 and Ex.CW1/4, cheque returning memos Ex.CW1/5 and Ex.CW1/6, legal notice Ex.CW1/7, Regd. A.D. receipts Ex.CW1/8 (Colly), UPC receipt Ex.CW1/9 and acknowledgment card Ex.CW1/10.
4. The accused were questioned generally about the case put forward by the complainant against them and their statement was recorded U/s. 313 Cr.P.C., whereby they admitted the execution of agreement dated 12.01.2005, the cheques in question, promissory note and receipt of legal notice. However it is mentioned that the encashment of cheques were subject to certain conditions mentioned in the promissory note and since these conditions were not fulfilled, the encashment of the cheques were stopped.
5. Accused persons opted to lead defence evidence. Accused H. P. Raveendra (DW1) deposed by way of his affidavit that as per agreement dated 12.01.2005, the complainant had exclusive rights, title and interest with respect to marketing rights of the serial 'Yatra' and had full liberty to receive payments from the sponsors/advertising agency or from any other sources. Further, it is mentioned that as per clause 9 of the agreement, the complainant had to pay telecast fees and other charges to the Doordarshan for the said programme and as per clause 22, the dispute or differences related to the said agreement had to be referred to Page 3 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 4 Arbitration. Further, it is mentioned that on 02.05.2005, a letter was issued by Prasar Bharti Broadcasting Corporation of India, Doordashan Kendra, to the complainant demanding an amount of Rs.1,74,695/ and TDS of Rs. 1399/. Thereafter, vide letter dated 10.05.2005, the accused firm informed the complainant that they are not in a position to continue production of serial 'Yatra' and the firm issued three cheques subject to issuing of no dues certificate, complete clearance of Doordarshan dues and issuing of complete account of selling statement with release orders. Further, it is submitted that since the dues of Doordarshan Kendra were not cleared and the statement of account and no dues certificate were not furnished, encashment of cheques given to the complainant was stopped. DW1 was partly cross examined and thereafter the defence evidence was closed.
6. I have heard the contentions of Ld. Counsel for complainant and Ld. Defence Counsel. The record has been perused.
7. The most emphasized plea of accused in their defence is that the cheques in question were issued in favour of complainant to discharge the legal liability subject to certain conditions mentioned in promissory note and since these conditions were not fulfilled by the complainant, the liability of accused persons to pay the cheque amount does not arise. To substantiate their defence, the accused firstly cross examined the complainant (CW1). During his cross examination, it came on record that the complainant did not mention in the complaint about revenues generated from advertising agencies, media market and the marketing agencies. Further, he denied the suggestion that there is no Page 4 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 5 enforceable debt against the accused persons. Thereafter, accused mentioned in his statement u/s. 313 CrPC that the complainant had not fulfilled the conditions mentioned in the promissory note and therefore, the cheques were not encashed. During the defence evidence also, accused (DW1) testified that the complainant did not clear the dues of Doordarshan Kendra demanded vide letter Mark DW1/2 and moreover the no dues certificate and statement of account along with release orders were not furnished by the complainant. During unfinished cross examination, the accused mentioned that vide letters dated 30.06.2005 and 11.07.2005 Ex.DW1/9 and Ex.DW1/10 respectively, statement of account and release orders were demanded from the complainant and these were sent through courier but he doesn't possess the courier receipts. Further, the accused admitted that they had filed the petition in regard to dispute relating to the cheques in question before High Court but he did not submit the said letters with their petition. Further the accused denied the suggestion that the total outstanding amount was Rs. 12,58,367/ on the day of settlement dated 04.05.2005 and on that date complete statement of account along with telecast vouchers were handed over to him. Further, the accused mentioned that he was not informed by the complainant or Doordashan Kendra that vide letter dated 16.05.2005 Ex.DW1/C1, all the dues of Doordarshan Kendra were cleared and vide letter dated 16.08.2005 Ex.DW1/C2, the original bank guarantee furnished in regard to serial 'Yatra' was returned back by the Doordarshan Kendra.
8. Before appreciating the evidence led by both the sides, it would be pertinent to mention the conditions made in promissory note Page 5 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 6 Mark DW1/8. The relevant part of it is reproduced as under:
"........ However the liability to honour the above mentioned three cheques shall be subject to the complete clearance of the Doordarshan dues as and when the said amount falls due by M/s Primetime Communications and also subject to M/s Primetime Communications sending to M/s Media Masters the complete statement of accounts and upto date release orders, i.e., till 12.05.2005......".
Therefore, it is to be analyzed as to whether 1) Complainant cleared all the dues of the Doordarshan Kendra and 2) The complainant sent complete statement of accounts and upto date release orders to the accused till 12.05.2005.
9. During crossexamination of accused (DW1), it has come on record that vide letter Ex.DW1/C1 dated 16.05.2005, all the dues of Doordarshan Kendra were paid by complainant and further vide letter dated 16.08.2005 Ex.DW1/C2 Doordarshan office returned the original bank guarantee in regard to serial 'Yatra'. It is also pertinent to note that all the cheques in question were presented for encashment after clearance of all the dues Doordarshan Kendra and therefore defence of the accused cannot be accepted that the first condition of the promissory note was not fulfilled by the complainant.
10. As far as the second condition of promissory note is concerned, Ld. Counsel for the complainant has argued that on date of settlement, i.e., 04.05.2005, total outstanding amount was Rs.12.50 lacs and on that day complainant provided the complete statement of accounts and release orders to the accused. Though the accused pleaded that he sent letters Ex.DW1/9 and Ex.DW1/10 to the complainant Page 6 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 7 demanding statement of accounts and original release orders but the accused has failed to prove the fact that these letters were dispatched to the complainant. The accused has admitted in his crossexamination that he cannot produce the courier and fax receipt to show that the letters (Ex.DW1/9 and Ex.DW1/10) were sent to the complainant. Further no plausible explanation has been furnished by the accused side as to why they did not file the said letters with the petition presented in High Court of Delhi in connection with same dispute. On the other hand, Ld. Counsel for the complainant placed on record certain letters during the course of arguments to show that the accused requested the complainant several times for not presenting the cheques for encashment in the month of June and July, 2005 and never asked for statement of accounts and release orders since the matter was already settled.
11. It is also noticed that the accused side has not given any suggestion to the complainant in his crossexamination that the conditions of promissory note were not fulfilled by him before presenting the cheques for encashment. It is also argued by Ld. Counsel for the complainant that accused did not give opportunity to the complainant to complete his crossexamination and therefore his testimony should be rejected in toto. However, since unfinished crossexamination of the accused had covered all the important aspects of the case, I am of the view that testimony of the accused should not be rejected completely. In this regard, I have placed reliance on the decision given in the cases of "Maharaja of Kolhapur Vs. Sunderam Ayyar (AIR 1925 Mad. 497) and Ahmad Ali Vs. Jyoti Prasad (AIR 1944 All. 188)".
12. Now we come to the legal aspect of the case. Law is well settled Page 7 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 8 that the rebuttal cannot be done by way of mere denial of liability for issuance of cheque and it has to be in the form of evidence to the satisfaction of the Court. Therefore, the burden to prove that the negotiable instrument was not issued for consideration lies upon the accused in a prosecution under Section 138 of the Act. In the case of Dhanvantrai Balwantrai Desai Vs. State of Maharasthra, AIR 1964, SC 575, the Constitution Bench of Supreme Court, while clarifying the distinction between discretionary and mandatory presumption, held that, " In the case of a discretionary presumption the presumption if drawn may be rebutted by an explanation which "might reasonably be true and which is consistent with the innocence" of the accused. On the other hand in the case of a mandatory presumption "the burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision (Sections 118 and 139 of the Act) make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, the explanation is supported by proof, the mandatory presumption created by the provisions cannot be said to be rebutted."
13. Ld. defence counsel relied upon the case laws reported as (2006) 6 SCC 39, (2008) 1 SCC 258 and II (2007) BC 446 in support of plea of defence that complainant has failed to prove that the cheques were issued in discharge of subsisting debt. On going through the above mentioned decisions, I have come to the conclusion that these do not Page 8 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 9 come to the rescue of accused in this case since the accused has failed to discharge his initial burden of proof to rebut the presumptions u/s 118 and 139 of the Act.
14. In light of the discussion made above, this court is of the opinion that accused has failed to rebut the presumptions existing in favour of complainant. The defence appears to be improbable, insufficient and unconvincing. In the result, accused is convicted of the offence punishable u/s. 138 of the Act.
Announced in the open court ( Vivek Kumar Gulia ) On 18th day of February, 2012 MM02(SW), Dwarka Courts, Delhi (total nine pages) Page 9 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 10 IN THE COURT OF SH. VIVEK KUMAR GULIA METROPOLITAN MAGISTRATE - 02 [SW] DWARKA COURTS, DELHI. In the matter of: M/s Primetime Communications Vs. M/s Media Masters & ors. C.C. No. 539/1/05 Police Station: Inderpuri ORDER ON QUANTUM OF SENTENCE Present: Complainant with Ld. Counsel. Convict ______
Arguments heard on the point of sentence. It is submitted on behalf of complainant that since convict issued the cheque in discharge of his liability and his guilt has been established beyond any doubt, he be punished with maximum sentence provided and in this regard, Ld. Counsel referred to the decision of High Court of Delhi reported as 2011 (8) LRC 213 (Del).
On the other hand, Ld. defence counsel submitted that convict is the first offender and sole bread earner of his family and therefore, a lenient view may be taken.
Keeping in view the submissions made on behalf of convict and considering that offence u/s. 138 NI Act has been introduced to encourage greater vigilance to prevent usual callous attitude of drawer of cheque and to lend greater credibility to the greater transactions and lastly that the cases of dishonour of cheques are on the high rise in the society, convict is sentenced to simple imprisonment for three months alongwith fine of Rs.1,51,000/ as per section 143(1) (proviso) N.I. Act r/w section 357(1)(b) of Cr.P.C. Out of this amount, Rs. 1.50 Lacs (cheque amount being Rs. One lac) shall be payable to Page 10 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05 11 complainant as compensation and Rs. 1000/ to State within a month from today. In default of payment of any part of fine, convict shall further undergo simple imprisonment for two months.
Further, it is ordered that compensation amount, if not paid in time, shall be recovered as fine as per provisions of 421 Cr.P.C.
At this stage, an application u/s. 389(3) Cr.P.C. for suspension of sentence and grant of bail is moved by convict. Heard. Since the convict intends to present an appeal, he is hereby admitted to bail on furnishing personal bond in the sum of Rs.10,000/ with one surety in the like amount. Bail bond is furnished and accepted till 10.03.2012.
Announced in the open court ( Vivek Kumar Gulia )
On __________day of February, 2012 MM(02)/SW, Dwarka Courts, Delhi
Page 11 of 9 Primetime Communications Vs. Media Masters & ors; C.C. No.539/1/05