Delhi District Court
General Marketing Co vs Hariom Marketing India on 8 August, 2024
IN THE COURT OF MS. NEHA GOEL, JUDICIAL MAGISTRATE (FIRST
CLASS) NI ACT- 02, CENTRAL, TIS HAZARI COURT, DELHI.
CC No. 13828/2019
CNR No. DLCT020312962019
GENERAL MARKETING CO. Vs. M/s HARIOM MARKETING INDIA
U/s 138 N. I. Act
PS KOTWALI
JUDGMENT
1 Sl. No. of the case 13828/2019 2 Date of institution of the case 17.12.2019 3 Name of complainant General Marketing Co., (Partnership firm) Office at 76, Bapu Park Near Gyani Bazaar Kotla Mubarakpur, New Delhi-110003.
Through its Power of Attorney
Holder/Partner
4 Name of accused, parentage M/s Hariom Marketing India, Through its and address Sole Proprietor i.e. Shri Hariom Sharma Residence cum shop at:
D-62, Gali No. 5, Near Bada Gurudwara & Banke Bihari Mandir, Above Canara Bank ATM, Jaitpur, Badarpur, New Delhi Also at:
D-62, Ground Floor Hari Nagar Extension-II New Delhi-110044 Digitally CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 1 of 17 signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:49:25 +0530
5 Offence complained of Section 138 Negotiable Instruments Act 6 Plea of accused Accused pleaded not guilty 7 Final order Accused Hariom Sharma is convicted 8 Date of pronouncement 08.08.2024 Separate judgments are being passed in 03 connected matters viz. CC Nos. 1639/2020, CC No. 10286/2019 and CC No. 13828/2019 (present case).
1. The present complaint has been filed by the complainant against the accused for dishonour of 04 cheques bearing No. (1) 256924 dated 10.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049; (2) 256925 dated 24.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049; (3) 256927 dated 28.09.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049 and (4) 256928 dated 12.10.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049 in favour of the complainant which were unpaid due to the reason, "Account Closed" vide cheque returning memos dated 16.10.2019 u/s 138 Negotiable Instruments Act, 1881.
2. Factual Matrix: The brief facts as alleged by the complainant in the complaint are that the complainant is a registered partnership firm, having its registration under GST vide GSTIN/UIN No. 07AADFG0920G1ZW and is engaged in the business of redistribution stockiest of ITC Ltd, whole sale supplier of FMCG to retail shop keepers, sales man, buying agents in various parts of Delhi, especially South Delhi. It is further stated that accused engaged in retailing and/or acting as a buying agent or salesman in Delhi. It is further stated that accused is registered under GST vide Digitally CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 2 of 17 signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:49:41 +0530 GSTIN/UIN No. 07CZOPS3010D3ZG and has PAN Card No. CZOPS3010D3. It is further stated that accused has been buying FMCG products i.e. cigarette etc. of ITC Ltd from complainant for the last 4 years as a buying agent or salesman on behalf of various retailers of Delhi, on credit basis. It is further stated that accused has dealt in huge business with the complainant. It is further stated that father of the accused had been engaged as sales man or buying agent of FMCG of ITC Ltd with the complainant for the last 15 years. It is further stated that accused has not paid the dues of the complainant in a timely fashion despite several reminders. It is further stated that accused issued seven post-dated cheques worth Rs. 11,00,000/- in the month of May 2019 and they got bounced. Accused again issued post-dated cheques worth Rs. 11,00,000/-, and cheques in question are part of these post-dated cheques. It is further stated that accused has issued cheques in favour of complainant to discharge partial legal liability to repay debt incurred in due course of business qua regular purchase of FMCG products of ITC Ltd in the running account on credit basis. It is further stated that the complainant presented the cheques in question for encashment with its banker viz. RBL, Ground Floor, Kucha Brijnath, Chandni Chowk, Delhi-110006. It is further stated that cheques in question no. (1) 256924 dated 10.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi- 110049; (2) 256925 dated 24.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi- 110049; (3) 256927 dated 28.09.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi- 110049 and (4) 256928 dated 12.10.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi- 110049 in favour of the complainant returned unpaid due to the reason, "Account Closed" vide cheque returning memos dated 16.10.2019. It has CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 3 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:49:48 +0530 been further stated that thereafter, the complainant got served a legal notice dated 05.11.2019 to accused by Courier and Speed Post. It has been further stated that accused has avoided the service of the legal demand notice and did not make the payment of the aforesaid cheques to the complainant within 15 days of the receipt of the notice. Hence, the present complaint u/s 138 Negotiable Instrument Act 1881 was filed by the complainant, praying for the accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The complainant has averred that the present complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
3. Pre-summoning Evidence: To prove a prima-facie case, the complainant led pre-summoning evidence by way of affidavit Ex. CW1/A on 24.12.2019 wherein the complainant has affirmed the facts stated in the instant complaint.
4. Documentary Evidence: To prove the case, the complainant has relied upon the following documents:
i. Copy of Registered Partnership deed with certificate- Ex. CW1/1 colly.
ii. True copy of Authorization Letter on behalf of Partnership Firm- Ex. CW1/2.
iii. Copy of Permanent E- Account Number- Ex. CW1/3. iv. Copy of GST Registration Certificate- Ex. CW1/4. v. True Copy of Ledger Account of M/s Hariom Marketing India- Ex. CW1/5.
vi. Bank Statement of General Marketing Co.- Ex. CW1/6. vii. True Copy of Certificate u/s 65B of Indian Evidence Act, 1872- Ex. CW1/7.
Digitally signed by NEHA NEHA GOEL CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 4 of 17 GOEL Date:
2024.08.08 16:49:53 +0530 viii. Original cheque bearing (1) 256924 dated 10.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049; (2) 256925 dated 24.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-
operative Bank Ltd., Branch South Extn., New Delhi-110049; (3) 256927 dated 28.09.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049 and (4) 256928 dated 12.10.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049 (Cheque in question), 04 Original Return Memos dated 16.10.2019- Ex. CW1/8 colly.
ix. Invoices/Bills- Ex. CW1/9 colly.
x. Legal notice dated 05.11.2019- Ex. CW1/10. xi. Courier Receipt and Speed Post Receipt dated 05.11.2019- Ex. CW1/11 and Ex. CW1/12.
xii. Courier and Speed Post Track Record with returned envelope-
Ex. CW1/13 and Ex. CW1/14.
xiii. Memo of parties, Courier receipt and track record of courier of CC No. 10286 of 2019 (for proving that accused has been served on this address)-Ex. CW1/15 colly.
5. Summoning of the Accused: On finding of a prima-facie case against the accused, accused was summoned on 24.12.2019. Accused appeared on 23.10.2021.
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the accused on 23.10.2021 to which he pleaded not guilty and claimed trial. The plea of defence of the accused was recorded where the accused had stated that "The cheques in question are my cheques and bear my signatures. However, the particulars on the said cheques have not been CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 5 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:49:59 +0530 filled by me. I used to have business transactions with the complainant. The cheques in question were given as blank signed security cheques to the complainant during the course of business. However, around January, 2019, the complainant stopped his business and our business relations came to an end. I had also lost my business after that. However, the complainant did not return my security cheques. I do not have any outstanding liability towards the complainant and the cheques in question have been misused by the complainant." Matter was put up for filing application u/s 145(2) NI Act. Same was filed on 18.02.2022 and allowed on 04.06.2022. Matter was put up for CE. It is at this stage matter was received by undersigned having taken over the Court of the Ld. Predecessor.
7. Evidence of the Complainant: CW1 was examined, cross examined and discharged on 04.07.2024. CE was closed vide separate statement of complainant on 04.07.2024. Matter was put up for recording statement of accused u/s 281/313 CrPC.
8. Statement of the Accused: Statement of the accused was recorded u/s 281/313 Cr.P.C. on 04.07.2024 wherein all the incriminating circumstances appearing in evidence against the accused were put to her and he was asked to explain the same. He stated that " I am innocent. The cheques in question are my cheques and bear my signatures. However, the particulars on the said cheques have not been filled by me. I used to have business transactions with the complainant. The cheques in question were given as blank signed security cheques to the complainant during the course of business. However, around January, 2019, the complainant stopped his business and our business relations came to an end. I had also lost my business after that. However, the complainant did not return my security cheques. I do not have any outstanding liability towards the complainant and the cheques in question have been misused by the CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 6 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:50:05 +0530 complainant. I do not wish to say anything else. I have sufficient knowledge of the accusation against me".
9. Defence Evidence: Matter was put up for DE. DE was closed vide separate statement of accused on 04.07.2024. Matter was put up for final arguments.
10.I have heard the submissions of the Ld. Counsel for the complainant as well as the accused and gone through the record.
11.Appreciation of evidence: The legal requirements of Section 138 Negotiable Instruments Act, 1881 are cumulative in nature, i.e. only when all of the following ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under Section 138 of the Negotiable Instruments Act:
A. The first ingredient of Section 138 Negotiable Instrument Act, 1881 is that a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that for the discharge, in whole or in part, of any legally enforceable debt or other liability. B. The second ingredient of Section 138 Negotiable Instrument Act, 1881 is that the 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. Second ingredient stands satisfied on a perusal of the original cheques bearing (1) 256924 dated 10.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi- 110049; (2) 256925 dated 24.08.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049; (3) 256927 dated 28.09.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., Branch South Extn., New Delhi-110049 and (4) 256928 dated 12.10.2019 for Rs. 1,00,000/- drawn on The Delhi State Co-operative Bank Ltd., CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 7 of 17 Digitally signed by NEHA NEHA Date:
GOEL GOEL 16:50:15 2024.08.08 +0530 Branch South Extn., New Delhi-110049 in favour of the complainant which were returned unpaid due to the reason, "Account Closed" vide cheque returning memos dated 16.10.2019. The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused. C. The third ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque1 or that it exceeds the amount arranged to be paid from that account by agreement made with that bank. Third ingredient stands satisfied as S. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The cheque return memos on record state that the cheque in question has been returned dishonoured for the reason "Account Closed". The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused. D. The fourth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid. As regards the fourth ingredient, the complainant has stated that he has sent the legal demand notice dated 05.11.2019 to accused. The original postal receipt and courier receipt dated 05.11.2019 in 1 Expression "amount of money ...... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus as held in M/s Laxmi Dyechem Vs. State of Gujarat and Others (2012 SCC OnLine SC 970).
CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 8 of 17 Digitally
signed by
NEHA
NEHA GOEL
GOEL Date:
2024.08.08
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respect of the same are already on record. Accused has stated in notice u/s 251 CrPC that he does not remember whether or not he has received the legal demand notice but the same bears his correct residential address.
E. It has been held by the Hon'ble Supreme Court of India in 'C.C. Alavi Haji v. Palapetty Muhammed & Anr.' [(2007) 6 SCC 555]
-"8. ... It was observed that though Section 138 of the Act does not require that the notice should be given only by "post", yet in a case where the sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "G.C. Act") could profitably be imported in such a case. It was held that in this situation service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service".
17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint.
Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 9 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:50:26 +0530 27 of the G.C. Act and Section 114 of the Evidence Act. ...".
(emphasis supplied) F. In the evidence affidavit of the complainant, the legal demand notice has been stated to have been served upon the accused on the said address and for the proof of which, original postal receipt and courier receipt dated 05.11.2019 have been tendered in evidence on behalf of the complainant. Memo of parties, Courier receipt and track record of courier of CC No. 10286 of 2019 has also been filed for proving that accused has been served on this address. Further, no evidence whatsoever was led from the side of the accused to rebut the presumption of service. Therefore, the said ingredient stands fulfilled as against the accused.
G. The fifth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice. Fifth ingredient stands satisfied as accused has not paid the amount due under the cheque in question within the statutory period on the ground that he does not owe any liability towards the complainant, Hence, this ingredient stands fulfilled as against the accused.
12.Thus, the only ingredient which remains to be proved is the first ingredient which is the main bone of contention between the parties. The first ingredient relates to the issuance of the cheque itself. The provision of Section 138 Negotiable Instruments Act, 1881 is buttressed by Section 139 Negotiable Instruments Act 1881 and Section 118 of the Negotiable Instruments Act 1881. Section 139 of the Negotiable Instruments Act 1881 provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. Reliance is placed on Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 10 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:50:33 +0530 SCC 16. Section 118 of the Negotiable Instruments Act 1881 provides inter alia that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. Presumption mandated by Section 139 of the Negotiable Instruments Act, 1881 include the existence of a legally enforceable debt or liability. The presumptions u/s 139 of the Negotiable Instruments Act 1881 and Section 118 of the Negotiable Instrument Act 1881 mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume" used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary. When an Accused has to rebut the presumption under Section 139 Negotiable Instruments Act, 1881, the standard of proof for doing so is that of "preponderance of probabilities". The Accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own.
Reliance is placed on Rangappa v. Sri Mohan, (2010) 11 SCC 441. Similar has been held in Kalamani Tex Vs. P. Balasubramanian, (2021) 5 SCC 283. First condition pertains to the issuance of the cheque itself. It is pertinent to note that the accused in notice framed u/s 251 CrPC has admitted that cheques in question bear his signature. Further, the cheques have been drawn on the account of the accused. This leads to drawing of an inference u/s 139 Negotiable Instruments Act 1881 read with s.118 of the Negotiable Instruments Act 1881, that the cheque was issued in discharge of a legally CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 11 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:50:39 +0530 recoverable debt or other liability. Reliance is placed on Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal, (1999) 3 SCC 35.
13.The presumption now having been raised against the accused, it falls upon him to rebut it. The accused has cross examined CW1 to rebut the presumptions raised against him. The defences/contentions taken by accused have been discussed in following paragraphs.
14.Defence of security cheque: It is the contention of accused that cheques in question were given to complainant for security purpose as he was doing business with complainant since 2015. Per contra, CW1 has deposed that cheques in question were not given for security purpose. It has been held in Sripati Singh Vs. State of Jharkhand & Anr. (2021 SCC OnLine SC 1002) that "17. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow". Therefore, this contention of accused stands rejected.
15.Name of payee filled by complainant: Accused has contended that CW1 has filled the name of payee on the cheques in question. CW1 has deposed CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 12 of 17 Digitally signed by NEHA NEHA GOEL Date:
GOEL 2024.08.08 16:50:45 +0530 that he filled the name of payee on Ex. CW1/8 but date was filled by the accused. It has been held in Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197 that as per Section 20 NI Act, it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. Accused has already admitted his signatures on the cheques in question. He has admitted that he had handed over blank signed cheques to the complainant. In view of the above judgment, this contention of accused stands rejected.
16.Entire payment made to complainant: Accused has stated in notice u/s 251 CrPC/statement u/s 281/313 CrPC that he has no outstanding liability towards the complainant for the bills raised by the complainant and he stopped working with the complainant company in January 2019 as the complainant company stopped his business. It has been further contended that complainant has misused the cheques in question by raising fabricated invoices and CW1 has admitted in cross examination that he has not taken any receiving from the accused on the invoices Ex. CW1/9. The contention of accused does not hold water for the following reasons:
A. Perusal of the ledgers filed in all three complaints (Ex. CW1/5 in CC No. 1639/2020 and CC No. 13828/2019 and Ex. CW1/3 in CC No. 10286/2019 show the outstanding of accused as Rs. 12,33,619.69/- towards General Marketing Co. which is more than the total amount involved in 10 cheques in three cases (CC No. 1639/2020, 13828/2019 and 10286/2019) which is Rs. 10,00,000/-. Accused has not raised any question mark on the ledger during cross examination of CW1. The ledger is supported by certificate u/s 65B of Indian Evidence Act, 1872.
B. The Hon'ble Supreme Court of India has held in Laxmi Bai Through LRs and Another Vs Bhagwant Bua Through LRs and Others [2013 SCC OnLine SC 101]:"31. Furthermore, there cannot be any dispute CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 13 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:50:51 +0530 with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross- examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses."
C. Similarly, Hon'ble Delhi High Court has held in Ravinder Singh Vs State (NCT of Delhi) [2012 SCC OnLine Del 1869]: "146. We may also refer to the impact of failure to cross examine a witness at this stage. On this issue, the judgment of the Division Bench of the Calcutta High Court in para 10 of A.E.G. Carapiet v. A.Y. Derderian (supra) stated the principles as follows :-"10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 14 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:50:56 +0530 opportunity to put his essential and material case in cross- examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated." D. Therefore, the ledger Ex. CW1/5 stands proved in favour of CW1 and consequently, it can safely be said that accused has outstanding liability of Rs. 12,33,619.69/- towards the complainant qua which 10 cheques in question2 have been issued. Now, the question remains as to whether accused has been able to prove that he has discharged this liability or not. Accused has not led any evidence to prove that he has discharged this outstanding liability apart from stating in notice u/s 251 CrPC and statement u/s 281/313 CrPC that he has discharged all 2 It has been mentioned in the complaint that accused had issued cheques worth Rs. 11,00,000/-. On enquiry from Ld. Counsel for Complainant as to what was the fate of the 11th cheque of Rs. 1,00,000/- as present three cases have been filed for total amount of Rs. 10,00,000/- involving 10 cheques in total, he submitted that case has not been filed claiming the amount of 11th cheque of Rs. 1,00,000/- as there was some technical issue with that cheque.CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 15 of 17
Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:51:02 +0530 outstanding liability towards the complainant. Merely stating in notice u/s 251 CrPC and statement u/s 281/313 CrPC cannot take the place of evidence which is supposed to be positively led by the accused in case he wished to dislodge the presumption raised against him. No evidence has been brought forth to show how the invoices Ex. CW1/9 are fabricated just because they do not carry acknowledgment by accused. The invoices are having dates in between January to April 2019. It has been stated in the complaint that post-dated cheques in question were issued by accused after 07 cheques worth Rs. 11,00,000/- issued in May 2019 had already bounced. Even this fact mentioned in the complaint has not been questioned by the accused. The 10 cheques in question in 03 complaints are having dates in between June to November 2019. The sequence of dates also supports the fact that the cheques in question, in all probability, have been issued for payment of the outstanding bills. No DE has been led by accused to show that he has made all the payment to the complainant. Even though he had stated that he had received legal demand notice but he did not send any reply to the complainant. In view of the above discussion, it is hard to believe the version of accused that he has discharged all his dues towards the complainant as accused has failed to produce any evidence in that regard and on the contrary, complainant has produced bills and ledger in support of his case. Therefore, contention of accused stands rejected that he has no outstanding towards the complainant.
17.Considering the evidence affidavit of the complainant on the whole, this Court is of the considered opinion that complainant has been able to prove his case. Accused has not been able to dislodge the presumption of legally enforceable debt in favour of the complainant qua the cheques in question. CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 16 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:51:08 +0530
18.From the foregoing discussion, it is clear the accused has failed to rebut the presumptions under Sections 118 and 139 of NI Act. On the other hand, the complainant has been able to prove that the cheques in question were issued by the accused in discharge of a legally recoverable debt/liability owed to him, with the aid of presumptions of law raised in his favour. All the ingredients of Section 138 NI Act stand cumulatively satisfied against accused and in favour of the complainant. Therefore, in the considered opinion of this Court, accused Hariom Sharma is held guilty of offence punishable under Section 138 of NI Act and is hereby convicted for the same.
19.Let he be heard on the point of sentence separately.
ANNOUNCED IN OPEN COURT ON 08.08.2024. Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.08.08 16:51:14 +0530 (NEHA GOEL) JUDICIAL MAGISTRATE (FIRST CLASS) NI ACT-02, (CENTRAL), TIS HAZARI COURT, DELHI CC No. 13828/2019 General Marketing Co. Vs. M/s Hariom Marketing India Page 17 of 17