Delhi District Court
Ms. Neeti Sharma vs Shri Kamal Kumar on 6 January, 2022
IN THE COURT OF MS AISHWARYA SINGH
KASHYAP, METROPOLITAN MAGISTRATE (NI
ACT), KARKARDOOMA COURTS, DELHI
Ms. Neeti Sharma Vs Shri Kamal Kumar
CC NO. 4138/2017 [Preet Vihar]
CNR Number: DLET020080692017
Ms. Neeti Sharma,
Sole Prop: Solitairre Creations, Having its office at: 13, Second Floor,
Shankar Vihar, Delhi ....... Complainant
Vs
Shri Kamal Kumar,
Sole Prop: of M/s Yogayata Diamonds & Gems Stones, Having its
office at: P-130, Block-B, Ground Floor, Lake Town, Kolkata-700089
(W.B.)
Also at
Room No. 109, First Floor, Diamond Arcade 1/72, Jassore Road,
Shyam Nagar, Satgachi, South Dum Dum, Kolkata-700055 (W.B.)
Also at
Block 5, Flat No. 1-D, Diamond City North, Jassore Road, Shyam
Nagar, Satgachi, South Dum Dum,
Kolkata-700055 (W.B.) ......Accused
Complaint Case No.: 4138/2017
Date of Institution: 30.11.2017
Offence alleged: Section 138 Negotiable Instruments
Act, 1881
Plea of the accused: Pleaded not guilty (Security Cheque)
Final Order: Convicted
Date of Decision: 06.01.2022
Argued By:
Ld. Counsel for the Complainant- Shri Vinay Gupta
Digitally signed by
Ld. Counsel for the Accused- Shri Manish Kumar AISHWARYA AISHWARYA SINGH
KASHYAP
SINGH KASHYAP Date: 2022.01.10 14:23:07
+05'30'
1 of 18
Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017
JUDGEMENT
Factual Matrix
1. The complaint is based on alleged facts that around February/March 2017 Ms. Neeti Sharma, sole proprietor of M/s Solitairre Creations-based in Delhi (hereinafter 'the complainant') was approached for purchase of diamonds in Delhi by Mr. Kamal Kumar, sole proprietor of M/s Yogayata Diamonds & Gems Stones - based in Kolkata (hereinafter 'the accused'). The accused is said to have assured the complainant that delay, if any, in payment beyond 30 days of invoice date would be compensated with interest @18% p.a for the delayed period. Prior to the instant transaction, the parties had one successful transaction of Rs 20,29,239.68 in March 2017 wherein the accused cleared the bill timely. Thereafter, the accused placed another order in April, 2017 for diamonds worth Rs. 58,79,141.53/-; the goods were supplied to the accused against Invoice/Bill No LD/APL/001/2016-17 dated 19.04.2017 and received and duly acknowledged by the accused. The accused issued a cheque in favour of the complainant bearing no. 039456, dated 20.05.2017, for the aforesaid amount, drawn on Axis Bank, Branch- Kolkata. However, the same was dishonoured with remarks 'Payment Stopped by Drawer' vide return memo dated 23.05.2017. Upon being confronted and served a legal notice by the complainant, the accused is said to have sent an Apology Letter/Acknowledgement of Debt dated 03.07.2017 to the complainant, seeking time for payment on account of financial distress. This letter was accompanied with a fresh cheque issued by the accused in favour of the complainant bearing no. 039463, AISHWARYA Digitally signed by AISHWARYA SINGH SINGH KASHYAP KASHYAP Date: 2022.01.10 2 of 18 14:25:27 +05'30' Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 dated 20.09.2017, for the aforesaid/bill amount of Rs. 58,79, 141/-, drawn on Axis Bank, Branch- Kolkata-700055 (hereinafter, 'the cheque in question'). However, yet again, the cheque was dishonoured with remarks "Payment Stopped by Drawer" vide return memo dated 21.09.2017. The accused sought more time for payment upon being confronted however, the complainant served the legal demand notice on the accused dated 10.10.2017 on all the given addresses, and on failure of the accused to pay the amount within 15 days, filed the instant complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, 'the Act').
Pre-summoning Evidence, Cognizance and Notice
2. Pre-summoning evidence was lead by the complainant and after consideration, the Ld. Predecessor took cognizance and issued summons vide order dated 30.11.2017. The accused entered appearance and notice under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter, 'CrPC') for the offence under Section 138 of the Act was served upon the accused on 17.07.2018 to which he pleaded not guilty and claimed trial. In his plea of defence, the accused pleaded as under:-
Plea of defence of the accused.
1.It is correct that cheque in question bears my signature, name of my bank and my account number. However, I did not fill the body of cheque in question.
2.I handed over cheque in question to the complainant as security for purchasing jewellery articles from the complainant. However complainant did not supply any jewellery articles to me. I had one previous transaction with complainant wherein I had already paid entire amount due to her through RTGS.
3. I received legal demand notice issued by the complainant.
However, I did not reply to the same in writing. I talked to complainant in that respect.
Digitally signed by AISHWARYA AISHWARYA SINGH
KASHYAP
SINGH KASHYAP Date: 2022.01.10 14:25:48 +05'30' 3 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 Complainant Evidence
3. During the trial, the complainant has led the following oral and documentary evidence against the accused to prove his case beyond reasonable doubt.
Oral Evidence I. CW1: Complainant on 30.11.2017, 18.09.2018, 18.12.2018, 23.02.2019, 27.08.2019 and 27.11.2021 Documentary Evidence I. Ex. CW1/1: Original cheque in question II. Ex. CW1/2: Return Memo III. Ex. CW1/3: Bank Statement IV. Ex. CW1/4: Legal Demand Notice V. Ex. CW1/15 (colly): Postal receipts VI. Ex. CW1/16: Copy of Tax Invoice/Delivery Proof VII. Ex. CW1/17: Copy Provisional Registration Certificate of Complainant Firm VIII. Ex. CW1/18: Certificate of Registration of Accused Firm dated 11.03.20217 IX. Ex. CW1/19: Copy of address & Identity Proof Viz, the Aadhar Card of accused X. Ex. CW1/20: Original (earlier) cheque dated 20.05.2017 XI. Ex. CW1/21: Original (earlier) return memo dated 23.05.2017 XII. Ex. CW1/22: Apology/Debt Acknowledgment letter dated 03.07.2017 w.r.t. earlier bounced cheque dated 20.05.2017 AISHWARYA Digitally signed by AISHWARYA SINGH SINGH KASHYAP Date: 2022.01.10 14:26:01 KASHYAP +05'30' 4 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 XIII. Ex. CW1/23: Subsequent Apology/Debt Acknowledgement letter dated 18.09.2017 XIV. Ex. CW1/A: Evidence by way of Affidavit XV. Ex. Z: 65B Certificate, Indian Evidence Act, 1872 Statement of Accused
4. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the circumstances appearing in evidence against him, his statement under Section 313 CrPC was recorded without oath on 17.09.2019. In response, the accused denied all the allegations against him and pleaded as under:-
1. It is correct that cheque in question bears my signature, name of my bank and my account number. However, I did not fill the body of cheque in question. I had given the cheque in question to the complainant.
2. No, I had not purchased any diamonds from the complainant. I admit my signature on document Ex. CW1/16 as the complainant told me that I should sign the invoice and thereafter she will deliver the goods to me. However, no goods were supplied to me.
3. The present cheque in question was given to the complainant for the purpose of security. The transaction in question was never executed by the complainant. I did not issue document Ex CW1/22 and Ex. CW1/23. I do not have any liability towards the complainant.
4. Yes, I received legal demand notice issued by the complainant.
5. Yes, I want to lead evidence in my defence.
Defence Evidence.
5. The accused moved an application under Section 315 CrPC seeking permission to depose as defence witness.
However on 04.12.2019, the accused stated that he did not wish to enter step into the witness box. AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:26:14 +05'30' 5 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 "I am the accused in the present case. I do not want to appear as a defence witness in this case. This is my true statement without any force or coercion."
6. In the meanwhile, an application under Section 311 CrPC filed by the complainant to take on record certain documents (copies of e-mail correspondence between the parties with e-attachment of invoice and apology/debt acknowledgement letters along with original envelops) was withdrawn on 05.03.2020 and vide the same order, DE was closed by the court wherein no defence evidence was led by the accused. However, the accused relied on the following documentary evidence furnished during cross-examination of the complainant.
Documentary Evidence I. Ex. CW1/D1: Copy of Flight Ticket dated 20.04.2017 II. Ex. CW1/D2: Copy of ITR of Complainant
7. Matter was listed for final arguments on 05.03.2020. The undersigned took charge on 17.11.2020 wherein arguments on behalf of partied were heard on 04.03.2021. However, thereafter, matter was adjourned en bloc on account of suspended court functioning during the second wave of Covid-19 pandemic. During the stage of final arguments, upon direction of this court, the complainant filed her 65B Certificate under the Evidence Act and also produced her original mobile device wherein she operated her relevant e-mail account and deposed under oath on 27.11.2021. Despite being present, ld. Counsel for the accused did not choose to cross-examine the witness.
8. Ld. Counsel for the complainant advanced arguments placing reliance on all the oral and documentary Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:26:27 +05'30' 6 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 evidence of the complainant thereby invoking the presumption under Section 139 of the Act and claiming absence of any probable defence. He further relied on the following authorities:
K. Bhaskaran vs Sankaran Balan 1999 (7) SCC 510; Rangappa vs Sri Mohan 2010 (11) SCC 441 and APS Forex Services Pvt Ltd vs Shakti International Fashion Linkers & Ors (Para 7).
Per contra, the main defence of the accused is the non-delivery of goods by the complainant and ld. Counsel for the accused relies on Ghanshyamdas Lalchand Chandak vs Sheikh Hamid Sheikh Gulab 2018 (4) LRC 488 (Bom). Further, ld. Counsel contended that complainant's testimony is inconsistent and cannot be relied upon. He further submitted that the date and place wherein Ex. CW1/16 is said to have been given to the accused are not clear and that the Debt Acknowledgement/Apology Letters Ex. CW1/22 and Ex. CW1/23 are printed copies and inadmissible in the absence of certificate under Section 65B of the Indian Evidence Act, 1872 (hereinafter 'Evidence Act'). After hearing the rival submissions on behalf of the parties, case was reserved for judgement.
Legal Position
9. In order to establish the offence under Section 138 of the Act, the prosecution must fulfil all the essential ingredients of the offence, as highlighted hereunder.
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Digitally signed byAISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:26:46 +05'30' 7 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank; Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of the cheque from the bank; Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
10. Further, all the conditions stipulated under Section 142 of the Act must be satisfied. The complainant in the present case prima facie satisfies all the aforesaid conditions. However, the accused has disputed the fulfilment of the second ingredient on the ground of non-delivery of goods. The same is being considered hereinafter.
Appreciation of Evidence Not Filling the Particulars of the Cheques
11. The accused admits his signatures on his cheque however, claims that he did not fill the other particulars. It is no longer res integra that once the signature on the cheque is admitted by the accused, presumptions under Section 118 read with Section 139 of the Act arise in favour of the complainant. The Hon'ble Supreme Court in Bir Singh vs Mukesh Kumar Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:27:02 +05'30' 8 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 (2019) 4 SCC 197 held that it is immaterial that another person filled the cheque if the cheque is duly signed by the drawer and particulars of cheque being filled by someone else do not invalidate the cheque. Recently, the Full Bench of the Hon'ble Apex Court in Triyambak S Hegde vs Sripad 2021 SCC OnLine SC 788 held that once the signature on the cheque is admitted or is not in dispute, the presumptions in favour of the complainant are raised and remain in force until rebutted.1
12. The scales of degree of proof required, in a cheque dishonour case, have been set by the Hon'ble Supreme Court in Rangappa vs Sri Mohan (2010) 11 SCC 441 holding that once the cheque and signatures are admitted, presumptions in favour of the complainant are raised. However, said presumptions are rebuttable in nature and the 'standard of proof' required on part of the accused is that of 'preponderance of probabilities'. This can be achieved either by adducing evidence in defence or by raising probable defence whilst relying on the evidence already on record.
Presence of Legally Enforceable Debt/Liability
13. In the present case, since the accused has failed to adduce evidence in his defence, therefore he must raise a probable defence in his favour qua evidence already on record. The second ingredient is the primary contention of the accused wherein, the accused has denied existence of a legally enforceable debt in discharge of which the cheque in question is said to be issued as security on the ground of 'non-delivery of goods'. The Hon'ble Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP 1 Para 17. SINGH KASHYAP Date: 2022.01.10 14:27:17 +05'30' 9 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 Apex Court in Kumar Exports vs Sharma Carpets (2009) 2 SCC 513 held that there exists a presumption that every negotiable instrument duly executed, is for discharge of a debt or legally enforceable liability but this presumption is rebuttable on the touchstone of preponderance of probabilities. In the present case, the accused has failed to substantiate his defence by eliciting contradictions in the complainant's evidence to cast any iota of doubt over the existence of aforesaid legally enforceable liability.
Adducing Probable Defence
14. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence.2This has further been elaborated in Rangappa (supra) holding that:
"Under Secion 118(a) of the NI Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."3
15. However, in the instant case the accused has failed to prove the non-existence of such consideration or even rending its existence improbable. In-fact, the accused himself has not been able to put forth a probable defence wherein his claim of cheque 2 Basalingappa vs Mudibasappa (2019) 5 SCC 418. AISHWARYA Digitally signed by AISHWARYA SINGH 3 Para 23. SINGH KASHYAP Date: 2022.01.10 14:27:32 KASHYAP +05'30' 10 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 in question being a security cheque remains a sham defence wholly unsubstantiated for the reasons discussed hereinafter.
Security Cheque/Non-Delivery of Goods (Diamonds)
16. The accused, during the serving of notice and recording of statement of accused and complainant's evidence has claimed that the cheque in question was given as 'security' to the complainant. It is relevant to underscore the fact that the accused has not claimed that he never placed an order for purchase of diamonds with the complainant. On the contrary, his defence is non-delivery of the goods whereby cheque was given as security.
2.I handed over cheque in question to the complainant as security for purchasing jewellery articles from the complainant. However complainant did not supply any jewellery articles to me. I had one previous transaction with complainant wherein I had already paid entire amount due to her through RTGS.4
17. There are a retinue of precedents on the issue of 'security cheques' rendered by the Hon'ble Supreme Court wherein no kernel of doubt remains that the bare defence of 'security cheque' cannot be raised in a cheque dishonour case until it is proved that no liability existed at the time of presentment of cheque either because presentment was premature and liability had not yet arisen or that no liability existed on account of payment/ cancellation of transaction. Most recently, the Hon'ble Division Bench of the Apex Court 5 in the case of Sripati Singh (since deceased) Through His Son Gaurav Singh vs the State of Jharkhand & Anr, 2021 SCC OnLine SC 1002 held as under:
4 Notice under Section 251 CrPC. Digitally signed by 5 Justice M R Shah and Justice A S Bopanna. AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:27:47 +05'30' 11 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 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 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 under Section 138 and the other provisions of NI Act would flow."6
18. Thus, it is unequivocally crystal clear that there is no magic in the word 'security' nor the Act carves any exception for security cheques as discussed in great detail by the Hon'ble High Court of Delhi in Suresh Chandra Goyal vs Amit Singhal 2015 SCC OnLine Del 9459. The accused cannot simply claim the defence of the cheques in question being issued as 'security cheques' without proving that liability did not exist/prove repayment of loan amount prior to the presentation of the cheque. Further, in Credential Leasing & Credits Ltd v Shruti Investments 2015 SCC OnLine Del 10061, the Hon'ble Delhi High Court reiterated its stance as under:
"If, on the date that the cheque is presented, the ascertained and crystallised debt or other liability relatable to the dishonoured cheque exists, the dishonour of the cheque would invite action under Section 138 NI Act. There could be situations where, for example, an issue may be raised with regard to the quality, quantity, deficiency, specifications, etc of the goods/services supplied or account. It would have to be examined on a case to case basis, whether an ascertained or crystallised debt or other liability exists, which could be enforced by resort to Section 138 NI Act, or not.7 Digitally signed by 6 Para 16. AISHWARYA AISHWARYA SINGH KASHYAP 7 Para 28. SINGH KASHYAP Date: 2022.01.10 14:28:05 +05'30' 12 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 However, in the present case, defence is not based on deficiency of goods but upon non-delivery of diamonds of significant value.
Signature of Accused Admitted on Ex. CW1/16
19. Interestingly, the accused has admitted his signature on the Invoice Ex CW1/16 dated 19.04.2017 despite claiming non- delivery of goods by the complainant as again recorded in his statement under Section 313 CrPC as under:
2. ... I admit my signature on document Ex. CW1/16 as the complainant told me that I should sign the invoice and thereafter she will deliver the goods to me. However, no goods were supplied to me.
3. The present cheque in question was given to the complainant for the purpose of security. The transaction in question was never executed by the complainant. I did not issue document Ex CW1/22 and Ex. CW1/23. I do not have any liability towards the complainant.
20. Further, the complainant during her cross-examination has categorically deposed that the diamonds were delivered in-hand to the accused whereby he also signed and acknowledged Ex. CW1/16 thus dispensing with the need of furnishing any transport documents for proof of delivery.
I have filed the Tax invoice Ex. CW1/16 showing receiving of the goods by the accused. I have not filed any approval form regarding transportation of goods supplied by me to the accused showing movement of goods from one state to another one. Vol. Accused had received the goods from me at my office at Shankar Vihar, Delhi and same is also reflecting in my said invoices Ex. CW1/6 and therefore, I had not issued any approval form. 8 The witness also unequivocally denied the suggestion that goods were not delivered to the accused as hereunder:
Digitally signed by8 Cross Examination of CW1/Complainant on 18.09.2018. AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:28:21 +05'30' 13 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 It is wrong to suggest that goods/diamond were not delivered to the accused. It is wrong to suggest that after acknowledging the tax invoice Ex. CW1/16, I have not delivered the goods to the accused and pressurized the accused to give me the cheque amount before the community of Bengal.9
21. At this stage, it is pertinent to mention that Ex. CW1/16 clearly mentions "GOODS SOLD AND DELIVERED AT DELHI" on its face and bears the signature of the accused along with the seal/stamp of his proprietorship concern namely M/s Yogayata Diamonds & Gem Stones. The transaction at hand involved the sale-purchase of diamonds which are obviously high-priced items and it is extremely improbable to believe that a prudent man in the business of dealing with diamonds and other precious stones would sign such an invoice of Rs. 58,79, 141/- without prior delivery of such diamonds/goods being to his professional satisfaction. It is also an admitted fact that the accused only had one prior transaction with the complainant therefore, in the absence of any long standing business dealing with the complainant, there was no reason for the accused to sign Ex CW1/16 without prior delivery of diamonds/goods, thus making his defence of security cheque/non-delivery of goods completely unreliable. Mere oral statement that goods were not delivered without any other cogent evidence to prove the same will not rebut the presumption in favour of the complainant under Section 139 of the Act.
22. The reliance placed by the accused on Ghanshyamdad Lalchand Chandak vs Sheikh Hamid Sheikh Gulab 2018 (4) LRC 488 (Bom) does not come to the aid of the accused since the case is distinguishable on facts.10 In the said case, the complainant 9 Cross Examination of CW1/Complainant on 27.08.2019. 10 Paras 7 and 15. AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:28:36 +05'30' 14 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 failed to furnish any relevant documents claiming their destruction which is not the case in the instant matter at hand. Further, the accused in the cited authority had not admitted signing any invoice (unlike the present case). Most importantly, the clear defence of the accused in this authority had been sustained since the very inception i.e. Reply to the Legal Notice which is conspicuously missing in the present case despite admitted receipt of the Legal Demand Notice by the accused.
Non Reply of Legal Demand Notice & Non Filing of Police Complaint
23. The most curious fact in the present case is the failure of the accused to reply to the legal demand notice despite its receipt as admitted during serving of notice as well as recording his statement under Section 313 CrPC. It is unusual on the part of the accused to not reply to the legal demand notice (despite receiving it) especially when his defence is based on the fact that goods were not delivered to him despite signing Ex. CW1/16. Further, when the transaction at stake is worth over 58 lacs, it is again improbable to believe that a prudent man, under the aforesaid circumstances, would not file a police complaint or a complaint case against the complainant for alleged misuse of cheque/cheating against the backdrop of earlier dishonoured cheque.
Digitally signed by AISHWARYA AISHWARYA SINGH
KASHYAP
SINGH KASHYAP Date: 2022.01.10 14:28:49 +05'30' 15 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 Existence of Earlier Dishonoured Cheque and Return Memo of the Same Amount
24. What clinches the evidence in favour of the complainant furthermore is the existence of a prior dishonoured cheque and return memo of the exact same amount i.e. Ex. CW1/20 dated 20.05.2017 and Ex. CW1/21 dated 23.05.2017 respectively. No cogent explanation is forthcoming in this regard. To escape liability, the accused had subsequently, in order to improve his defence, during cross examination of complainant claimed that the cheque in question was given to the complainant as security at the time of their first/initial transaction prior to the present transaction.
It is wrong to suggest that the cheque in question was given to me as security at the time of first transaction i.e. on 08.03.2017 as a trade policy to cover the credit period.11
25. However, this suggestion was denied by the complainant. The credit period (for payment) was for a period of 30 days as also mentioned on the face of Ex. CW1/16 we well as in the complaint. This explains the date on the earlier cheque i.e. 20.05.2017 which is dated thirty days after the date mentioned on Ex. CW1/16 i.e. 19.04.2017 thus corroborating the version of the complainant that cheque was given for payment of goods/diamonds delivered to the accused. Further, during the aforesaid cross-examination, the accused remained silent on the dishonour of earlier cheque CW1/20 and failed to confront the witness therefore adverse inference is liable to be drawn against the accused. Thus, the complainant has rightly placed reliance on 11 Cross examination of complainant/CW1 on 27.08.2019. AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:29:06 +05'30' 16 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 APS Forex Services Pvt. Ltd vs Shakti International Fashion Linkers & ors 2020 SCC OnLine SC 193 wherein akin to the present case, after dishonour twice and failure on the part of the accused to reply to the legal demand notice, the Hon'ble Supreme Court rejected the bald defence of 'security cheque'.
26. Against the aforesaid backdrop, there is no requirement to delve into the admissibility of the Debt Acknowledgement/Apology letters i.e. Ex. CW1/22 and Ex. CW1/23 or the requirement of 65B Certificate mandated by the Evidence Act. The complainant has successfully invoked presumption in her favour under Section 139 of the Act and the accused has been unable to raise any probable defence in the instant case. Although the accused has raised questions on the reliability of the complainant's testimony on the ground that place and time of delivery are unclear vis-a-vis Ex. CW1/16, the fact remains that accused has admitted his signature upon the document which also bears his seal. Thus, reliance on Ex. CW1/D1 (Air Ticket) and Ex. CW1/D2 (ITR) is pointless as the same do not elicit any material discrepancy in the version of the complainant. The complainant deposed that said flight/journey was in relation to a separate independent transaction. Her testimony remains unimpeached throughout the trial and the accused has miserably failed to rebut the presumption in her favour or raise a probable defence.
Decision
27. In view of the aforementioned discussion, the accused has failed to raise any probable defence in the instant case and the complainant has successfully proved the commission of offence Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:29:23 +05'30' 17 of 18 Neeti Sharma vs Kamal Kumar CC No. 4138 of 2017 by the accused under Section 138 of the Act by satisfying all the essential ingredients of the offence. Accordingly, the accused is held guilty for committing the offence punishable under Section 138 of the Act. The accused, Sh. Kamal Kumar is hereby convicted. Let the convict be heard separately on the quantum of sentence.
ORDER: Convicted A copy of this judgement be given free of cost to the convict.
Announced in Open Court on VC in the presence of the accused on 06.01.2022.
(This judgement contains 18/Eighteen signed pages.) Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.01.10 14:29:51 +05'30' (Aishwarya Singh Kashyap) MM/NI Act(East)/KKD Courts/Delhi 06.01.2022 18 of 18