Delhi District Court
Cc No 250/1/13 R.N.Bhatia vs . Sanjay Arora Page 1 Of 9 on 1 November, 2014
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
CC No. : 250/1/13
Unique ID No. : 0240R0039202011
R.N.Bhatia
Proprietor of M/s. Libra Traders,
9, DDA Market, BN-West,
Shalimar Bagh
Delhi-110 088 .........Complainant
Vs.
Sh. Sanjay Arora
Proprietor of M/s. Ronak Enterprises,
I-7A, Kailash Park,
Near Metro Pillar No. 33 ..........Accused
Date of institution of case : 18.02.2011
Date of reserving the judgment : 27.10.2014
Date of pronouncement of judgment : 01.11.2014
JUDGMENT
1. S. No. of the Case: 250/1/13 2. Date of Commission of Offence: After 29.12.10 3. Date of institution of the case: 18.02.2011 4. Name of the complainant: R. N. Bhatia 5. Name of the accused: Sanjay Arora 6. Offence complained or proved: S.138 N. I. Act, 1881 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 01.11.2014 CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 1 of 9 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The present complaint under section 138 of Negotiable Instruments Act,1881 (hereinafter referred to as "NI Act") is filed by the complainant Sh. R.N.Bhatia against the accused Sanjay Arora.
2. Succinctly, the facts which has led to the culmination of the present complaint as per the complainant are that the complainant is the proprietor of M/s. Libra Traders and is doing the business of selling inverters, batteries etc. The accused approached the complainant in their business premises and purchased batteries worth Rs. 20,038 vide invoice no. 1316 dated 01.09.2009 of Rs. 5640 and invoice no. 1370 dated 01.10.2009 for Rs. 14,390 on credit. Accused issued cheque no. 175674 dated 11.12.2010 for Rs. 20,000/- drawn on ICICI Bank, C-5, Vishal Enclave, Main Najafgarh Road, New Delhi. The said cheque was not honoured and was returned back dis-honoured by the bankers of the accused with the remarks "Insufficient Funds" vide returning memo dated 14.12.2010. The cheque was again represented but the same was again returned back dishonored by the banker with the same remarks. Complainant issued a legal notice dated 29.12.2010 through his lawyer and called upon the accused to make the payment of the aforesaid cheques. The said notices were sent to the accused through registered AD cover and UPC. Despite service the accused did not return the cheque amount to the complainant and the present complaint was filed against the accused by the complainant.
3. After being satisfied that prima facie ingredients of Section 138 NI Act are made out, cognizance was taken and accused was summoned under section 204 CrPC whereupon the accused appeared and the notice under section 251 CrPC was served on the accused to which he pleaded not guilty and claimed trial.
CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 2 of 94. In Complainant's evidence, the complainant(CW 1) adopted his pre-summoning affidavit in post summoning evidence as Ex CW1/A and relied on documents:
Ex. CW1/1 & 2 -Copy of Invoices
Ex CW 1/3 -Impugned cheque
Ex CW1/4 & 5 -Returning memos
Ex. CW 1/6 -Legal notice
Ex. CW 1/7 & 8 -Postal receipts
Ex. CW 1/9 -UPC
Ex. CW-1/10 -Return Envelope
5. The complainant evidence was closed and the accused was examined under section 313 r/w 281 Cr.P.C on 25.06.2014 where all the incriminating evidence was put to the accused. The accused stated that he had already made the payments towards both the invoices as stated above. The amount of Rs. 5620/- was paid by cash against the invoice no. 1316 and the other amount of Rs. 14,398/- was paid by way of cheque dated 24.11.2009 bearing no. 300098 against the invoice no. 1370. The impugned cheque was given in the year 2008 without name and date and only bearing his signatures towards the scheme launched for the tour. He does not have liability under the impugned cheque. The accused wished to lead defence evidence and accused has examined M. Rajnish as DW-1 and Sh. Ravi Rathore as DW-2.
DW-1 M.Rajnish deposed that he had brought the Bank Statement of Libra Traders, Current account no. 860 for the period of 01.11.2009 to 30.11.2009 and as per CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 3 of 9 the statement, the cheque no. 300098 of Rs. 14398 was encashed on 24.11.2009. The statement is Ex. DW 1/1.
DW-2 Sh. Ravi Rathore deposed that he had brought the Bank statement of M/s. Raunak Enterprises for current account no. 630105005524 for the period of 04.11.2009 to 30.11.2009. As per the statement the cheque no. 300098 of Rs. 14398/- was encashed on 24.11.2009. The statement is Ex. DW 2/1.
6. I have heard the rival contentions from both sides and have perused the judicial record.
7. The question in the present case revolves around as to whether the impugned cheque was issued towards the discharge in whole or in part of legally enforceable liability or debt as envisaged under section 138 NI Act. Thus it becomes apposite at this juncture to reproduce section 138 NI Act:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for "a term which may extend to two year", or with fine which may extend to twice the amount of the cheque, or with both:....CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 4 of 9
Explanation: For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability."
8. It is a sine qua non for constitution of the offence u/s 138 NI Act that the cheque must have been issued for the discharge in whole or in part of legally enforceable liability or debt. Section 138 NI Act has to be read with the legal presumptions u/s 139 and 118 NI Act in favour of the payee or holder in due course. The said sections are reproduced below:
"139. Presumption in favour of holder It shall be presumed, unless the Contrary is proved, 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, or any debt or other liability."
"118. Presumptions as to negotiable instruments of consideration Until the contrary is proved, the following presumptions shall be made: -
(a) Of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has bee accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) As to date that every negotiable instrument bearing a date was made or drawn on such date;....................."
9. These presumptions in favour or complainant are rebuttable in nature and it is no more res integra that the burden lies on the shoulder of the accused to rebut the same. It CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 5 of 9 is now well established that the accused can prove the non-existence of any debt or any other liability by raising a probable defence or by demolishing or discrediting the case of the complainant in cross-examination of witness adduced by the complainant.
10. The Hon'ble Apex Court in M.S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39 laid down the law in the given terms:
"Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
The standard of proof evidently is pre-ponderance of probabilities. Inference of pre- ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies."
11. The present case has been filed by the complainant R. N. Bhatia, Prop. of M/s. Libra Traders which is involved in the business of selling inverters, batteries etc. It is alleged that accused approached the complainant and purchased batteries worth Rs. 20038 vide two invoices -
CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 6 of 9(1) invoice no. 1316 dated 01.09.2009 for Rs. 5640 and (2) invoice no. 1370 dated 01.10.2009 for Rs. 14398/- on credit .
It is alleged that to pay the amount due, the accused issued the impugned cheque of Rs. 20,000/- to the complainant which got dishonored on presentation and despite service of legal notice the accused has not paid the cheque amount.
12. The accused has assailed the present complaint and has taken the plea that he has already made the payments due to the complainant. He defended his case by stating that the amount of Rs. 5620/- was paid by cash and the other amount of Rs. 13498/- was paid by cheque and therefore he does not have any liability towards the complainant. He further defended his case by pleading that the impugned cheque was taken by the complainant blank and signed towards the scheme launched for one tour.
13. To prove its case, the complainant has examined himself as CW-1 and during cross-examination the complainant showed his lack of knowledge regarding the receiving of Rs. 5640 by way of cash from the accused on 12.09.2002. CW 1 did not state that he has not received the amount, but rather stated that he does not remember whether he has received Rs. 5620 by way of cash or not. The complainant CW-1 also denied the suggestion of the accused that the amount of Rs. 14398/- was paid by way of cheque bearing no. 300098 encashed on 24.11.2009 in favour of the complainant. The accused has produced the photocopy of the register showing the entry with respect to the payment of 5640/- to the complainant which is mark X-1. The accused also produced the statement of ICICI Bank of the accused showing the entry with respect to the payment of Rs. 14398/- by way of cheque to the complainant, which is at point A in the statement mark X-1.
CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 7 of 914. In defence evidence, the accused examined the bank witness DW-1 from Indian Overseas Bank (complainant's bank) and proved the statement of account belonging to the complainant Libra Traders and also proved the encashment of cheque bearing no. 300098 of amount 14398/- on 24.11.2009 in favour of the complainant. The accused also examined the bank witness DW-2 of ICICI Bank (accused's bank) and proved the Bank statement of his account and also proved the encashment of the cheque bearing no. 300098 of Rs. 14398/- on 24.11.2009 in favour of the complainant.
15. The sole basis of the present case as per the complainant himself is that the accused had issued the impugned cheque towards the payment of two invoices of amount 5640/- and 14398/- respectively. The accused has proved that he has made the payment of Rs. 14398/- to the complainant by way of cheque and he has examined the bank witnesses of the complainant's bank as well as the accused's bank to prove the statements. The accused has also produced the photocopy of the register showing the entry of the payment of Rs. 5640/- to the complainant. The burden on the accused is not as heavy as that of the complainant. The burden of accused is only to show the preponderance of probabilities in his favour. The accused has shown that he has made the due payments to the complainant. The onus to prove shifts upon the complainant to show that towards which liability the accused had issued the impugned cheque. The complainant has not been able to show the outstanding liability of Rs. 20,000/- towards the accused. No statement of account or ledger has been produced by the complainant to show the outstanding liability of the accused. It is also not explained as to why the accused had issued the cheque of Rs. 20,000/- when the outstanding liability was Rs. 20038 as per the complainant. The accused has pleaded the cheque was given not for outstanding liability but for the scheme of the tour, is not a vague or baseless defence. It is important to prove the offence u/sec. 138 N.I.Act that the impugned cheque must have CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 8 of 9 been issued towards some legally enforceable liability. No legally enforceable liability has been proved on record by the complainant. The complainant has miserably failed to prove its case against the accused. The accused is entitled to be exonerated.
FINAL ORDER
16. In the light of the above discussions and observations, this court has no hitch to hold that the complainant has failed in proving their case beyond the shadow of reasonable doubts. This court exonerates the accused Sanjay Arora for the offence under section 138 NI Act. The accused is hereby acquitted. Bail bonds are cancelled and sureties stands discharged. Endorsements, if any, stands cancelled.
Announced in open court (SUSHIL ANUJ TYAGI)
1st day of November, 2014 Metropolitan Magistrate,
Rohini Courts: Delhi
CC no 250/1/13 R.N.Bhatia Vs. Sanjay Arora Page 9 of 9