Delhi District Court
Cc No. 513439/2016 Tdi Marketing Pvt. ... vs . M/S Enkay Foam Pvt. Ltd 1 on 25 September, 2020
IN THE COURT OF MS. TAPASYA AGARWAL, MM-05 (NI ACT)/
CENTRAL/THC/DELHI
In case of:-
M/s TDI MARKETING PVT. LTD.
Regd. Office at
D-1, M-3, Virat Bhawan, Dr. Mukherjee Nagar,
Commercial Complex, Delhi -110009
through its Director Shri Sanjay Gupta .............. Complainant
VERSUS
1. M/s Enkay Foam Pvt. Ltd.
5/5777, Dev Nagar, Karol Bagh
Delhi
also at
Village Khekra, Delhi
Bagpat Road, Distt. Meerut (U.P)
2. Mr. Mayank Jain,
Director / Authorized Signatory
3. Mr. Bhushan Jain
Managing Director
4. Promila Jain
Director
5. Saurabh Jain
Director
also at :-
(1) 103, Sainik Vihar, Pitampura, Delhi-110034
(2) Village Khekra, Delhi
Bagpat Road, Distt. Meerut (U.P)
Digitally signed .............. Accused
by TAPASYA
TAPASYA AGARWAL
AGARWAL Date: 2020.09.25
14:04:18 +0530
CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 1
JUDGMENT
a) Sl. No. of the case : 513439/2016
b) CNR No. : DLCT02-000161-2010
c) Date of institution of the cases : 23/10/2010
d) Offence complained of : 138 NI Act
e) Plea of the accused : Pleaded not guilty
f) Arguments heard on : 17/08/2020
g) Final order : Convicted
h) Date of Judgment : 25/09/2020
BRIEF STATEMENT OF FACTS FOR THE DECISION:-
As mandated U/s 355 (i) of Code of Criminal Procedure, 1973
1. Vide this judgment, I shall decide the fate of the present complaint filed U/s 138 Ne- gotiable Instrument Act by the complainant against the accused. Factual Matrix:-
2. At the very outset, it deserves to be mentioned that a total of four complaints u/s 138 N.I. Act were filed by the complainant against the accused. The case of the com- plainant is that the complainant company and the accused company had long stand- ing business relations with each other. The complainant had been supplying Toulene Di Isocyanate to accused no.1 for the past 8-9 years before filing of the present complaint. In the course of transactions between the complainant and the accused, according to the complainant, by financial year 2009-10 the accused company had a Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date: 2020.09.25 14:04:55 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 2 total outstanding of Rs.55,00,964/- towards the material supplied by the complainant company. Then around 5th or 6th October, 2009, accused no. 2 and the complainant settled the interest on the entire outstanding amount at Rs.14.5 lacs. It was mutually decided that Rs.5,00,964/- would be paid by way of bank transfer by the accused and for the remaining amount of Rs.64,50,000/-, four cheques were issued being the subject matter of the present 4(four) complaints as all the 4 cheques were dis - honored with the remarks "account closed".
3. The present complaint case pertains to dishonor of cheque no. 420099 for an amount of Rs.4,50,000/- drawn on Syndicate Bank, Phase-1, Community Center, Mayapuri New Delhi. After the dishonor, complainant got served legal notice dated 10.02.2010 through Registered AD/UPC upon all accused, but no payment was made by the accused. As per the averments of the complainant, accused no. 2 to 5 namely Mayank Jain, Bhushan Jain, Promila Jain and Saurabh Jain are the direc- tors of accused no. 1 and were the persons in charge and responsible for carrying out day to day affairs of the company when the material was supplied to the ac - cused company by the complainant. It is pertinent to mention here that accused no. 3 Sh. Bhushan Jain expired during the pendency of the present proceed- ings and the matter stood abated against him. Accused no. 2 Sh. Mayank Jain is also the authorized signatory of accused no. 1 company. Digitally signed by TAPASYA
TAPASYA AGARWAL AGARWAL Date: 2020.09.25 14:05:22 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 3
4. Cognizance of offence U/s 138 Negotiable Instrument Act was taken accordingly. Accused was summoned. The complainant exhibited 10 documents Ex. CW1/A1 (Board Resolution), Ex. CW1/B (colly.) (copy of memorandum of Articles of Associa- tion including certificate of Incorporation), Ex. CW1/C (present complaint), Ex.CW1/D (colly) (copy of invoices), Ex.CW1/E (original cheque), Ex.CW1/F ( return memo), Ex.CW1/G (copy of legal notice), Ex. CW1/H (colly) (postal receipt), Ex.CW1/I (original AD cards). Thereafter, separate notices explaining accusation against the accused company through Director Mayank Jain, accused no. 2 Mayank Jain, accused Promila Jain and Saurabh Jain were put to them to which they pleaded not guilty and claimed trial.
5. Thereafter, on the basis of defence revealed by the accused, they were given the right to cross-examine the complainant's witnesses. The complainant examined him- self as CW1 and one other witness Sh. Sandeep Ahuja as CW2 in order to prove his version and he was cross-examined by counsel for accused.
6. Then statement of all accused U/s 313 Cr. PC read with S 281 Cr.P.C. was recorded, in which they reiterated the defence taken by they when notice was framed. The accused then led defence evidence. Sh. Mayank Jain Accused No.2 deposed as DW-1 and one bank witness DW-2 was also examined. Subsequently Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date:
2020.09.25 14:06:21 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 4 final arguments were heard via video conferencing and written submissions were submitted by both counsels.
7. I have gone through the record, perused the evidence, written submissions and au- thorities cited by both sides.
Legal Position:-
8. Before proceeding further to reflect upon the defence and evaluation of evidence, the foremost check point is whether the facts averred by the complainant fulfill the basic requirement of section 138 for constituting an offence U/s 138 NI Act. For the same a quick run through the legal provision becomes indispensable. The following elements come out on perusal of section 138 NI Act.
(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That 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; Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date:
2020.09.25 14:06:37 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 5
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
9. Being cumulative it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed offence U/s 138 NI Act.
10.Evaluating the facts of the present case in the light of the above provision this court first considers as to whether the complainant has prima facie proved the issuance of cheque by the accused towards the legal liability in favour of the complainant from the account maintained by him, so as to constitute an offence U/s 138 NI Act. To carve out a prima facie case the complainant has filed on record original cheque Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date:
2020.09.25 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 14:06:54 +0530 6 bearing Ex. CW1/E. The said cheque was presented to the bank within a period of three months from the date on which it was drawn and was returned dishonoured for the reason "account closed". The return memo bearing the fact of dishonour of cheque in question has been exhibited by the complainant as Ex. CW1/F. The com- plainant then sent a legal notice dated 31/08/2010 i.e. within the period of statutory requirement of 30 days from the date of receipt of information of dishonour which is Ex.CW1/G. The original postal receipt of the legal demand notice have been filed as Ex. CW1/ H (colly.). The original AD Cards of legal notice are Ex.CW1/I (colly.). De- spite this the accused failed to make payment of the cheque amount.
11.Further more the presumption under section 118(a) & 139 of the NI Act imperatively come into play as soon the execution of the cheque is admitted by the accused or is proved by the complainant. Coming to the case in hand the accused in defence and also in his statement U/s 313 Cr. PC has admitted having issued the cheque in question and also his signatures thereon. The above facts suffice in raising the pre- sumption U/s 118(a) & 139 NI Act in favour of the complainant. With these admis- sions i.e. the cheque in question belongs to the accused and the signatures on the cheque being admitted by the accused, the presumption of cheque having been is- sued in discharge of a legally sustainable liability and drawn for goods consideration arises in favour of the complainant by virtue of section 118(a) and section 139 of NI Act. Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date: 2020.09.25 14:07:09 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 7
12.In "Rangappa Vs Sri Mohan" 2010 V AD (SC), three Judge Bench of Hon'ble Supreme Court held that section 139 raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This pre- sumption is rebuttable presumption and it is open to the accused to raise a defence wherein the existence of legally enforceable debt or liability can be contested. Defence of accused and appreciation of evidence
13.First and foremost, it is important to state the defence taken by Accused no.2 in his statement u/s 251 Cr.P.C. as well as u/s 313 Cr.P.C. While admitting his signatures, the amount and name of payee in his handwriting, he has stated that the cheques had earlier been given to the complainant in 2006 in the course of business transac- tions and were then taken back from them. He does not know how the cheques reached the possession of the complainant, perhaps in collusion with some staff and there is no liability of the accused company towards the cheques. The defence taken by the accused No.2 seems to be concocted. Firstly, no FIR regarding any missing cheques has been filed by accused to support his statement. It does not seem prudent that a businessman whose signed cheques bearing amount to the tune of Rs.65,00,000(approx) would not notice that they are missing and not file an FIR regarding the same. Let alone an FIR, it is admitted by the accused no.2 that the amount, name of payee and signatures are in his own handwriting. Even if they were returned back to the accused by the complainant as per his own version, it is Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date:
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2020.09.25 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 14:07:23 +0530 difficult to believe that the accused did not immediately cancel or destroy them as they bore all material particulars and could have been misused by anyone. Thus, this submission of the Accused No.2 does not inspire the confidence of this Court. Once the accused has admitted the signatures and that the amount and name of payee were filled by him, little remains to be adjudicated unless cogent evidence is brought on record to the contrary. The accused has not been able to prove by way of any evidence that the cheques were returned by the complainant or that they went missing subsequently. Thus, it is safe to say that the accused no.2 has not been able to prove his defence by leading his own evidence.
14.As regards Accused no. 4 &5, they have simply stated in their statements u/s 251 and S. 313 CRPC that they are not aware of anything about the matter and that Ac- cused No.2 is looking after the matters. Complainant in his affidavit has stated on oath that Accused No. 4 & 5 are managing day to day affairs of the company and re - sponsible for its action and are hence liable under section 141 Negotiable Instru- ments Act. No evidence whatsoever has been led by the accused no.4& 5 to prove that they were not managing the day to day affairs of the company and were not aware of the transactions in question. Thus, they have not brought out any defence to disprove the statement of the complainant.
Digitally signed by TAPASYA
TAPASYA AGARWAL AGARWAL Date: 2020.09.25 14:07:38 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 9
15. As discussed above, the accused can prove his version by leading his own defence or by perforating the version of the complainant. In light of this statement, let me now deal with whether the accused has been able to demolish the complainant's version. Counsel for accused raised several arguments which are hereunder dealt with one by one.
16. Both the parties during the course of arguments have placed heavy reliance on Ex- hibit CW1/CX being the transcript of a recorded communication between the com- plainant and accused. This transcript is admitted by both the parties. Counsel for the accused has stated that Accused No.2, Sh. Mayank Jain called AR of the com- plainant Shri Sanjay Gupta the moment he received the first legal notice and ques- tioned him about the cheques and the liability thereon. on the other hand counsel for the complainant; inter alia has argued that the accused during the course of the en- tire communication has only disputed the date on the cheque and not the issuance. I have gone through the entire admitted transcript. From a reading of the text I find favour in the argument of counsel for complainant. Shri Mayank Jain has repeatedly asked the complainant about how he has put the date on the cheque like "कक यय डय ट ककसय आ गयय, कयय नहयह आ गयय इसकय कयय सय नस हक ......", "यय डय ट कहहह सय आ गयय, अगर डय ट आ सकतय हक तत ककछ भय आ सकतय हक कफर तत ऐसय " सय नस तत वहय हक कक यय डय ट कहहह सय आ गयय" among others. Thus it appears that the accused in his conversation has not disputed the is - suance of the cheques but was aware of the cheques being in the possession of the Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date: 2020.09.25 10 14:07:53 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd complainant. He seems surprised as to only the date on the cheques. The Hon'ble Apex court in the case of Bir Singh versus Mukesh Kumar AIR 2019 SC 2446 has held that :-
"39. if signed blank cheque is voluntarily presented to a payee, towards some payment, the Payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would Still Be On the accused to prove that the cheque was not in discharge of a debt or liability by adducing ev- idence."
17.Thus, even if the complainant put the date on the cheque but where legally recover- able liability existed in favour of the complainant, merely putting the date would not invalidate the worthiness of the cheque.
18. It has also been submitted by counsel for accused during the course of arguments that the accused did not owe the amount to the complainant as claimed by him. It is the submission of counsel for accused that sum of Rs. 5,00,964/- was given to the complainant by way of RTGS in Nov 2009 and thus, his liability cannot be to the ex - tent of the cumulative cheques amount. In support of his argument accused has placed on record Ex DW1/ 5 which is Bank letter confirming payment of Rs. 5,00,964 by the accused. Per contra; it is the case of the complainant that he had a running business account with the accused company. To further his case, the com- Digitally signed by TAPASYA
TAPASYA AGARWAL AGARWAL Date:
2020.09.25 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 14:08:06 +0530 11 plainant has relied upon Ex. CW2/C (colly) being invoices issued by the complainant against the accused company. The complainant during his arguments pointed out that the cheques in question have been tendered by the accused against Invoice Nos. 187, 214, 233, 254, 381 and part payment of Rs. 50,410/- against invoice num- ber 91 dated 06. 06. 2006 which brings the total outstanding to Rs. 55, 00,965. De- livery challans of the invoices have also been duly placed on record. The invoices as on record reflect that interest is chargeable at 21% per annum on account remaining unsettled beyond due date. It is the contention of Counsel for complainant that both parties , on or around 5th-6th October 2009 had settled at an interest of Rs. 14,50,000/- bringing the total outstanding to Rs. 69,50,965. As rupees 5,00,964 had been paid by the accused via RTGS, the remaining liability is still of Rs. 64,50,001 which is the total of all the four cheques in question.
19.First and foremost, it deserves to be mentioned that Section 34 of Indian Evidence Act provide that the entries in books of accounts shall be relevant but shall not be sufficient alone to charge a person with the liability. Such entries in the books of ac- counts have to be corroborated by other material particulars for the court to place reliance on them. In the present case at hand, the entries in the books of accounts submitted by the complainant company have been corroborated by the admitted in- voices and C forms and also the testimony of CW2. Hence, I deem it fit to place re- liance on them for the purposes of evidence among other documents. Digitally signed by TAPASYA
TAPASYA AGARWAL AGARWAL Date:
CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 2020.09.25 14:08:18 +0530 12
20.I have gone through Ex CW2/C (colly) along with the delivery challans and C Forms ( also admitted by accused no.2 in statement u/s 313, Cr. P.C.) , CW2/B (colly) being balance sheets of the complainant company from the year 2006-07 to 2013-14 and Ex CW2/D (colly) being the ledger account of the accused company as maintained by the complainant company. It can be seen that many transactions have been made between both the companies. It is evident that the accused company stands with a debit balance of Rs. 55,00,964.61 as on 31.03.2008. An amount of Rs. 14,50,000/- has been reflected as debit in the starting of financial year 2009-2010 as interest for the period 2006-2010. Moreover both the amounts of Rs. 1,00,000 /-and Rs. 4,00,964/- as claimed by the accused have been duly shown as credit and still the closing balance is Rs. 64,50,000.61. While it is true that whimsical interest can- not be charged, it is to be noted here that the invoices as per which material has been purchased from the complainant clearly mentioned that due payment shall at- tract interest of 21 percent for annum. Accused no.2 in his statement under section 313 Cr.P.C. has admitted that he has filled the amount on the cheques in question in his own handwriting. It can thus be safely inferred that the accused consented to the interest amount by issuing the cheques to the complainant.
21.Balance sheets of the complainant company placed on record by their Chartered Accountant CW-2 also mention the outstanding amount against the name of the ac- cused company in all consecutive years. On the contrary, accused has placed on Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date:
2020.09.25 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 14:08:33 +0530 13 record Ex DW1/1 which appears to be a ledger account showing just one entry of of Rs. 5,00,964/-. This amount is for all purposes, anyway admitted by the complainant company. Thus, in the absence of any any evidence to discredit these documents, I have no reason to doubt the genuineness and veracity of the amount arrived at by the complainant company. Moreover as discussed above once the com- plainant company has in its possession, cheques amounting to a certain amount, the presumption of an existing legally recoverable liability is in favour of the com- plainant and the onus to disprove the same is on the accused. In this case, in view of the amount as reflected in the invoices, delivery challans and accompanying C Forms, balance sheets and ledger account placed by the complainant company on record and in the absence of any cogent evidence relied upon by the accused, this Court does not find any fault with the liability fastened upon the accused by the com- plainant.
22. Counsel for accused has also argued that on the back of the cheques, it is clearly endorsed that they are merely for security purpose and not for clearing and thus, the cheques were never meant to be presented by the complainant. Without going into the validity of the argument and the bearing that the nature of security cheque would have on the case, I first deem it appropriate to point out that the writing as men- tioned above by counsel for accused has been cancelled/ crossed and signatures of Shri Mayank Jain, accused No.2 have been affixed thereon. It is the case of the ac- Digitally signed by TAPASYA
TAPASYA AGARWAL AGARWAL Date:
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2020.09.25 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 14:08:44 +0530 cused that signatures of Sh. Mayank Jain have been forged at the back of the cheque. However, mere submission without any evidence to that effect cannot erode the genuineness of the signatures of the accused No.2 on the back of the cheque. In the light of this discussion and on the basis of the record before this court, there is no reason to doubt that the writing was cancelled by Shri Mayank Jain himself who then affixed his signatures to that effect. Having said so, rest of the arguments on behalf of the accused in this respect do not merit discussion.
23. During the course of arguments, it was also contended by counsel for accused that the documents as filed by Shri Sandeep Ahuja CW2 are not credible as he has ad- mitted in his cross examination that the balance sheets have been signed by his wife and not by him. However, on a reading of the cross examination of CW-2, it can be observed that in the very same question he has further answered that he has ini- tiated all the pages which means that he has checked them. The purpose of putting one's initials on a document is evidence of his agreement with the document and also reflects that it has been checked by him. Thus, this contention of counsel for accused does not sustain.
24.Counsel for accused has also argued that the documents filed by CW2 are not sup- ported by affidavit under section 65-B Indian Evidence Act and hence, being print- outs cannot be read in evidence. While it is correct that Affidavit under section 65-B is a mandatory requirement for secondary electronic evidence, this objection has Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL Date:
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2020.09.25 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 14:08:56 +0530 only been raised now at the stage of final arguments. Even at the time of Exhibition of the documents, no objection was raised by counsel for accused regarding the mode of proof with regards to these documents.
It has been held in Sonu vs State of Haryana AIR 2017 SC 3441 as under-
"27. it is nobody's case that CDRs which are a form of electronic record are not inherently admissible in evidence. The objection is that they were marked before the trial court without a certificate as required by section 65B(4). it is clear from the judgements referred to supra that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit not later. The crucial test, as affirmed by this court is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.........".
25. Also, in order to buttress his argument, counsel for accused has sought to place re- liance on Arjun Pandit Rao Khotkar v Kailash Kushanrao Gorantyal, Civil Ap- peal Nos. 20825-20826, decided most recently by the Hon'ble Apex Court. However, the judgment does not deal with a scenario wherein no objection was raised during the entire trial but only at the stage of final arguments. In the case at hand, as the objection with regards to certificate under section 65B, Indian Evidence Act was not raised at the appropriate stage whereby the Court could have given a fair opportu- nity to the deficient party to produce the same, in my view, the argument cannot be Digitally signed by TAPASYA TAPASYA AGARWAL AGARWAL 16 Date:
CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 2020.09.25 14:09:07 +0530 sustained at this belated stage. I must, however hasten to add that even if the docu- ments produced by CW 2 were to be disregarded, the complainant's case stands on its own legs.
26. Counsel for accused has repeatedly raised the point that the complainant did not mention the total liability of the accused company in their first legal notice or com - plaint. I have gone through the requirements of Section 138 Negotiable Instruments Act. It is nowhere mandatory that the complainant is required to state the total liabil- ity that might accrue to the accused or the total number of cheques that the com- plainant might be in possession of. What is required is that the amount of the cheque in question only along with its details must be clearly mentioned in the legal notice to give the accused a fair opportunity to make the payment is due within 15 days on the rest of the notice. Thus, it was not incumbent upon the complainant to state the total amount due from the accused or the total number of cheques that the complainant was allegedly in possession of in his first legal notice/complaint and it is sufficient if the liability with regards to the cheque in question has been appropriately stated. There is no merit in this argument of counsel for accused.
27.Further counsel for accused has argued that the reason for the dishonour of the cheques was "account closed" which does not attract criminal liability. It is well set - tled law that the dishonour of a cheque with the reason "account closed" attracts lia - Digitally signed by TAPASYA
TAPASYA AGARWAL AGARWAL Date:
CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 2020.09.25 14:09:20 +0530 17 bility under section 138 Negotiable Instruments Act as held in NEPC Micon Ltd. v Magma Leasing Ltd., AIR 1999 SC 1952 among many other cases. Counsel for ac- cused has also stated that since the account of the accused company had been closed in March 2009, the accused company could not have issued the impugned cheques from that account as cheque book would not be in his possession. In order to further his argument, Counsel for accused has examined Bank witness as DW2. Whereas DW 2 has confirmed that account of the accused company was closed in March 2009 she further stated that "we collect back the cheques whatever are de- posited by client and we do not insist for deposition of all unused cheques. It is cor - rect that someone may issue cheque which are available with him if the same are available with him after closing of account." Considering the testimony of DW 2, it is apparent that even after closing of account, cheques may have remained with the customer. Mere closing of account cannot be a guarantee that no cheques have been issued from that account. In view of the discussion above, testimony of DW 2 does not rescue the case of the accused. Further accused has placed on record Ex CW1/D1 being the counter slip for the cheques in question wherein the cheques have been shown to be cancelled. However, counter slip cannot be held to have any evidentiary value for the purposes of this case as it is a record solely of the accused company with no corroboration.
Digitally signed by TAPASYA
TAPASYA AGARWAL AGARWAL Date:
2020.09.25 14:09:33 +0530 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 18
28. Moving forward, counsel for accused has argued that the complainant has not filed any recovery suit , neither registered any FIR against the accused and thus, his ver- sion must be disbelieved. when this question was put to the complainant in his cross examination, he has answered that his remedy lay in prosecuting complaint under section 138 Negotiable Instruments Act which he is pursuing. The fact that the com- plainant has not chosen to pursue multiple remedies cannot be held against him. He is at complete liberty to decide what remedy as per law serves him the best and this Court cannot let a bias be created in its mind due to the aforesaid reason. It would be a travesty of Justice if the complainant's version was to be quashed simply for this reason. Thus, this Court is not in agreement with this argument of counsel for accused.
29. In view of the aforesaid facts and circumstances, this Court is of the opinion that the complainant has proved his case beyond reasonable doubt and the accused has failed to rebut the presumption u/s 118(a) and 139 of N.I. Act. Accordingly, the ac- cused no. 1, 2, 4 and 5 stands convicted for the offences punishable u/s 138 r/w section 141 of Negotiable Instruments Act, 1881.
30. Copy of order be uploaded immediately. Further Reader is also directed to send a copy to all the accused persons and their counsel. Digitally signed by TAPASYA AGARWAL TAPASYA Date:
AGARWAL 2020.09.25 14:09:47 +0530 Announced via video conferencing (Tapasya Agarwal) in the presence of accused MM-05(NI Act), (C)/THC/DELHI on 25.09.2020 25.09.2020 CC no. 513439/2016 TDI Marketing Pvt. Ltd. Vs. M/s Enkay Foam Pvt. Ltd 19