Delhi District Court
M/S Prachi (India) Pvt. Ltd. vs . Chandan Kumar Jha Page No. 1 Of 18 on 9 May, 2023
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE - 04 : NORTH WEST
DISTRICT, ROHINI COURTS : NEW DELHI
M/s Prachi (India) Pvt. Ltd.
Vs.
Chandan Kumar Jha
PS Keshav Puram
U/s 138 Negotiable Instruments Act
Date of Institution : 27.08.2016
Date of Judgment : 09.05.2023
JUDGMENT
(1) Serial number of the case : 20151/2016 (2) Name of the complainant : M/s Prachi (India) Pvt. Ltd.
309, Allied House, Inder Lok, Delhi110035 Through its Sr. Accountant & Authorised Representaive Sh. Praveen Lakhera.
(3) Name of the accused : Sh. Chandan Kumar Jha S/o Sh. Prabhakar Jha, R/o Locoshed Para Purulia Municipality Ward11, PuruliaI, Namopara Bengal Office of father at Pravakar Pustak, Sadan Barakar Road, Sadar Para, Purulia723101, West Bengal.
(4) Offence complained of / : U/s: 138 N.I. Act proved (5) Plea of the accused : Pleaded not guilty Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 1 of 18 (6) Final Order : Acquittal
(7) Reserved for judgment on : 09.05.2023 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that the complainant is engaged in the business of publication and trading of textbooks and other books to intending purchasers at agreed prices. That accused is carrying business under the name and style of M/s. Pravakar Pustak Bhandar alongwith Sh. Pravakar Jha at the address given hereinabove and is managing its day to day affairs. The Complainant has been supplying books to the said firm against invoices/bills prepared at mutually agreed prices/rates. The books was duly accepted by the accused and the bills were also accepted for payment. The payment of the books had been agreed to be made at Delhi. The complainant has been maintaining regular computerized accounts in ordinary course of business in electronic form and the said transactions/dealings were also entered by the complainant in its ledgers. It is further stated that as aforesaid, the complainant supplied material to M/s. Pravakar Pustak Bhandar but the accused failed to make timely payments to the complainant despite repeated demands and reminders from the complainant. The statement of account showed a debit balance of Rs. 6,94,07350p as on 31122015 payable by M/s. Pravakar Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 2 of 18 Pustak Bhandar to the Complainant. The said firm had become liable to pay interest to the complainant because of the delay in making payment of the outstanding; that in due course of the business, the accused issued a cheque bearing no. 050849 dated 21.03.2016, drawn on Axis Bank, Purulia for a sum of Rs. 6,94,073/ in favour of the complainant. The cheque was dishonoured on presentation by his banker vide bank memo dated 14.06.2016 on account of 'Account Closed' and therefrom the legal notice was issued dated 11.07.2016 and despite the legal notice the accused did not make the payment of the cheque. Hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led presummoning evidence by way of affidavit (Ex CW1/A) and relied upon documents i.e., :
Resolution dated 21.12.2015 is Ex. CW1/1; the statement of account is Ex. CW1/2; Computer copy of 4 invoices, amongst others, vide which books were supplied by the complainant to the said firm are Ex. CW1/3 to CW1/6 respectively; certificate u/s 65B of Indian Evidence Act is Ex. CW1/7; the cheque dated 21.03.2016 is Ex. CW1/8; the cheque was dishonored vide memo Ex. CW1/9; legal notice Ex. CW1/10 and postal receipt Ex. CW1/11, speed post, receipt and 2 envelopes are Ex. CW1/12 to Ex. CW 1/14 respectively which were duly considered by the Ld Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 3 of 18 Predecessor and the accused was summoned vide order dated 09.02.2017 for offence u/s. 138 NI Act.
3. After that, accused entered appearance, accused was admitted to bail vide order dated 04.10.2018 and on the same day, matter was referred referred to mediation and nothing on record to indicate whether the matter was settled in Mediation. Thereafter, notice was framed against the accused on 24.02.2020 by the Ld. Predecessor wherein the accused stated the defence that "The cheque in question bears only my signature and rest of the contents of the cheque were not filled in my handwriting. For opening of the account, the representative of the company asked for a cheque, I had given the cheque in question to the representative of the company namely Deepak around year 201314 for the same. The company filled the cheque and presented it without giving me any notice. I do not owe any legal liabilitiy towards the complainant in respect of the cheque in question. I did not receive any legal notice but the same was received by my father."
4. Vide order dated 24.02.2020, accused was permitted to crossexamine the complainant.
5. During the evidence, the complainant was duly cross examined by the Counsel for accused in which complainant stated that he is working senior accountant in Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 4 of 18 the company for the last 1516 years. He admitted that the board meeting held on 21.12.2015, he was present. He further admitted that his company is a registered company. Complainant's company having three directors namely, Sh. Rakesh Tyagi, Sh. Mukesh Tyagi, Smt. Savitri Tyagi. It is correct that Ex. CW1/1 i.e. 21.12.2015 bears only one signature i.e. Sh. Rakesh Tyagi who is one of the directors. He denied that Ex. CW1/1 i.e. board resolution is false. He further denied that he is not the authorized representative of the complainant company. During cross examination of complainant, question was put to him as under 'As you have mentioned in your complaint that you are carrying the business with M/s Pravakar Pustak Sadan. What kind of business you are carrying with M/s Pravakar Pustak Sadan.?' to which he answered 'the above said M/s Pravakar Pustak Sadan had purchased the educational books from the complainant.' He admitted that M/s Pravakar Pustak Sadan is a proprietor firm/ sole proprietor firm. The Proprietor of the said firm is Sh. Chandan Kumar Jha. He denied that Sh. Chandan Kumar Jha is not sole proprietor of the said proprietorship firm. He further denied that the sole proprietor is the father of the accused namely Sh. Pravakar Jha. He further stated that he is not aware that whether Sh. Chandan Kumar Jha has issued any cheque to the complainant prior to the cheque in question. He admitted that the business relations with the complainant company and M/s Pravaker Pustak Sadan runs Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 5 of 18 in years. He further admitted that in prior transaction, the cheque has been issued by Chandan Kumar Jha on behalf of M/s Pravakar Pustak Sadan and same has been duly encashed. He could bring his bank statement which could reflect that the cheque issued by Chandan Kumar Jha on behalf M/s pravarar Pustak Sadan has been encashed. He further admitted that the invoices which were raised in the present complaint were issued to M/s Pravakar Pustak Sadan. He further admitted that he had not issued any invoices in the name of Sh. Chandan Kumar Jha individually. He denied to suggest that the cheque issued by Chandan Kumar Jha was not duly filled by him. He further denied to suggest that cheque in question was handed over to the complainant company in the year 2014. He further denied that the cheque in question issued to the complainant company for different purpose and for different transaction. He further denied that the legal notice never been served upon Mr. Chandan Kumar Jha. He further denied that complainant company has falsely implicated Mr. Chandan Kumar Jha in the present case. He further denied that he has not been duly authorized by the complainant company as per the company act. He denied that he was deposing falsely.
6. The statement of accused was thereafter recorded under Sec 313 CrPC on 02.09.2022 wherein the entire incriminating evidence was put to the accused and accused Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 6 of 18 reiterated the defence taken already. Accused stated that "the cheque is mine and my signatures is impressed upon it however the cheque has not been duly filled by me. I do not owe liability towards the complainant company. The liability may be towards M/s Pravakar Pustak Sadan. I am not the proprietor of the said firm. My father is the one who is the sole proprietor and files ITR with respect to the proprietorship firm. I have separate dealing with the complainant company. My father's business and mine business is separate. I have not received any legal notice"
He further stated in his defence that Ex.CW1/2 to Ex.CW1/4 are not my documents and I cannot say anything about it, the ledger account is fabricated. The complainant company owes liability towards me."
7. The accused however chose to lead evidence qua defence and examined himself as DW1, wherein he deposed that Pravakar Pustak Sadan is a proprietorship firm and it belongs to Sh. Pravakar Jha. Pravakar Jha is his father. He further stated that he has brought Audit report of Pravakar Pustak Sadan which is MarkA, Certificate of enlistment is Mark B, Electricity Bill is MarkC, ITR is MarkD, Bank Statement of MarkE and Trade License is MarkF. Further, he said that in the above proprietorship firm, he did not have any connection neither he run the abovesaid firm business, the same was solely run by his father. He further stated that his firms name is M/s Chandan Kumar Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 7 of 18 Jha and having address at 632, Loco Shed Para, Purulia, West Bengal and he has brought the CST certificate Ex.DW1/1 (OSR), VAT registration is Ex.DW1/2 (OSR) and Certificate of enrollment is Ex.DW1/3 (OSR). (objected to by the counsel for the complainant with respect to mode of proof). He was crossexamined by Sh. D.R. Jain, Ld. counsel for the complainant. During his crossexamination, he denied that Ex.DW1/1 to Ex. DW1/3 are forged and fabricated documents. He further denied that he has no concern/ connection with the Pravakar Pustak Sadan. He further denied that he is looking after the business of abovesaid firm. He further denied that the abovesaid business was solely run by his father. He further denied that he has right and interest in the abovesaid firm. He further denied that he was deposing falsely.
8. Final arguments advanced by Sh. D.R.Jain, Ld counsel for the complainant and by Sh. Niraj Jha, Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
9. To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;Case No. 20151/2016
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(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) That cheque has been 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 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/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed 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.
10. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by accused with a bank and hence the ingredient (i) is deemed to proved as not disputed.
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11. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Ex CW1/8 dated 21.03.2016 was returned dishonoured on 14.06.2016 During the crossexamination of complainant, no questions were put to the complainant nor any suggestions were given to the complainant as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.
12. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by accused in statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
13. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, complainant sent notice dated 11.07.2016 (Ex CW1/10) to the accused for return of the cheque amount vide speed post and courier on 11.07.2016 ie within 30 days of dishonour of the cheque. The complainant also relied upon postal receipt Ex. CW1/11, speed post, receipt and 2 envelopes are Ex. CW1/12 to Ex. CW1/14 respectively. The accused has however denied receipt of the notice of demand.
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14. It is pertinent to note that Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given.
15. In the present case, it is not the case of the accused that the address on which the notice was sent is not accused's address, rather accused has given the same address in the court when accused's statement under Section 281 r/w 313 CrPC was being recorded. Hence the notice was sent by the complainant at accused's correct address. For reasons best known to accused, the accused has not led any evidence in rebuttal to disprove the report given by the postal official either.
16. Further, in CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held that " 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 u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 11 of 18 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 alongwith the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
17. Thus, keeping in view that except mere denial of receipt of notice of demand, no evidence in rebuttal has been led by the accused as also keeping in view the dictum of the Hon'ble Apex Court, merely on the account of non service of legal notice dated 11.07.2016 (Ex. CW1/10) the present complaint cannot be rejected and the same is presumed to have been duly served upon the accused.
18. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
DEBT / LIABILITY Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 12 of 18
19. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the nonexistence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist." (Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35).
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20. The NI Act also provides under Section 139 that 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, of any debt or other liability. Thus, Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It is a settled position that when an accused has to rebut the presumption under Section 139 , the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. 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 placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
21. In the present case, from the evidence on record, the accused has been able to bring on record certain facts which make the case of the complainant improbable.
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22. In the present case, the complainant himself have stated in his complaint that the books were supplied to proprietorship concern and accused used to work with Sh. Pravakar Jha. It is not in controversy that Sh. Pravakar Jha is father of the accused and further in paragraph 4 of the complaint, it has been specifically stated by the complainant that the books were supplied to the proprietorship concern and the debit balance was also found on behalf of proprietorship concern. The defence that have been taken on the part of the accused have been that he is not the proprietor of the proprietorship concern rather his father is the one who is the sole proprietor of the firm. To prove the same, accused have relied upon Mark A, Mark B, Mark C, Mark D, Mark E and Mark F, whose original were produced before the court. Further the accused has deposed that he is running another proprietorship firm and have relied upon Ex. DW1/1(OSR), Ex. DW1/2(OSR), Ex. DW1/3(OSR). This Court has no hesitation to hold that the sole proprietor of M/s Pravakar Pustak Sadan is the father of the accused. Further since the document that have been placed on record reveals that the proprietorship concerns belongs to father of the accused, in criminal law, which is subject to the strict proof, the accused herein cannot be held liable towards any debt/consideration that have been owed by the proprietorship concern of the father of the accused towards the complainant firm.
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23. Further it has also been proved that there were prior transactions by the accused and the complainant, therefore it cannot be ruled out that there is impossibility on the part of the complainant to acquire the cheque on behalf of the accused. It has also been admitted by the complainant that they have not issued any invoice in the name of the accused individually and henceforth no liability/consideration on the part of the accused could be found. Therefore benefit of doubt has to be given to the accused in these circumstances as upon the preponderance of probability, the accused have been able to prove that he is not the Proprietor of the M/s Pravakar Pustak Sadan, rather his father.
24. Hence, by bring forth the circumstances as enumerated above, the accused has discharged the initial onus of proof showing that the existence of debt/liability/consideration was improbable/doubtful and hence the onus shifted back to the complainant to prove it as a matter of fact.
25. However, the complainant herein has miserably failed to do so.
26. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must prove the guilt of an Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 16 of 18 accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
27. In view of the above discussion and in the totality of the facts and circumstances of this case, the complainant has miserably failed to prove that the cheque in question was issued in discharge of any existing legally enforceable debt or other liability.
28. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act having been rebutted by the accused by preponderance of probabilities, and with the complainant failing to lead clear, cogent and credible evidence to prove that the cheques in question were issued in discharge of any legally enforceable debt or liability, the accused Sh. Chandan Kumar Jha S/o Sh. Pravakar Kumar Jha is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, accused stands acquitted.
29. Accused Sh. Chandan Kumar Jha S/o Sh. Pravakar Kumar Jha is directed to furnish bail bond and surety bond in the sum of Rs. 25,000/ under section 437(A) of Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 17 of 18 the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon the accused.
30. File be consigned to Record Room after due compliance.
Announced in the open court on 09.05.2023 (VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 18 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Case No. 20151/2016 M/S Prachi (India) Pvt. Ltd. Vs. Chandan Kumar Jha Page No. 18 of 18