Delhi District Court
M/S Akanksha Architects vs M/S Supertech India Pvt Ltd on 30 October, 2023
IN THE COURT OF SHRI ARUL VARMA, ASJ-04 AND
SPECIAL JUDGE (NDPS) SOUTH-EAST: SAKET COURTS:
NEW DELHI
CA 145 of 2023
M/S Akanksha Architects
Through Its Authorised Signatory
Paragtish
Office At Plot no 89-90
Shop No 1&2 Nehru Market
Patera, Badarpur,
New Delhi-44
Devender Gupta
Prop of Akansha Architects
Office At Plot no 89-90
Shop No 1&2 Nehru Market
Patera, Badarpur,
New Delhi-44
..........Appellant
Vs.
1 STATE
(Govt of NCT of Delhi)
2 M/s Supertech India Pvt Ltd
Through Sh. Shailendra Kumar Mishra
Authorized Representative
Office At K-1/116, EPOP
C.R Park, New Delhi-44
...........Respondents
Instituted on : 06.05.2023
Argued on : 24.08.2023
Decided on : 30.10.2023
JUDGMENT
1. Vide this order, this Court shall adjudicate the Criminal Appeal filed by appellant seeking to set aside impugned judgment dated 09.12.2022 and CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 1/10 order on sentence dated 11.01.2023, passed by the Ld. Trial Court whereby the appellant was sentenced with fine of Rs 65,000/- out of which Rs 5,000/- was ostensibly to be deposited with State, and Rs 60,000/- to be given as compensation to respondent complainant and in default of payment whereof, the appellant would undergo rigorous imprisonment for period of 3 months.
IMPUGNED ORDER FACTS
2. The facts of the case are hereby succinctly recapitulated: It was alleged that there was a commercial transaction between the parties qua purchase of chairs, ordered by the appellant from the complainant company, which dealt in furniture business. The appellant is a contractor, who had contracted with SBI to supply chairs for a new branch of SBI. The respondent company was not ready with the ordered chairs ( new chairs), and it only supplied standby chairs to SBI Branch, to facilitate the opening of the branch, and as and when the new chairs came from its factory, it replaced the standby chairs with the new ones. It was alleged that in total, 44 chairs were ordered, break up whereof is as follows: 30 chairs vide Ex CW1 i.e invoice dtd 30.03.2013 for Rs 1,83,071/-, and rest 14 chairs vide invoice dtd 18.07.2013 for Rs 1,02,663/- . It was basically alleged by the complainant that the appellant, to discharge part of his liability, issued the cheque in question. It was alleged that the appellant CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 2/10 herein had committed offence u/s 138 of NI Act as cheque issued by its proprietor Devender Gupta, for Rs. 1,00,000/- drawn in favour of respondent was returned with remark of 'payment stopped'. It was further alleged that thereafter the appellant herein was served with a legal demand notice to pay sum of dishonoured cheque, however, despite being served with notice, the appellant did not pay the same. Thus, a complaint u/s 138 of NI Act was filed.
FINDINGS OF THE LD TRIAL COURT
3. After hearing the appellant and upon perusing the records, the Ld Trial Court vide order on sentence dated 11.01.2023, sentenced the appellant to a fine of Rs 65,000/- out of which Rs 5,000/- to be deposited with State and Rs 60,000/- to be given as compensation to respondent and in default of payment whereof the appellant would undergo rigorous imprisonment for period of 3 months. The judgment and order on sentence passed by the Ld. Trial Court has been assailed in the present Criminal Appeal proceedings.
CONTENTIONS OF LD. COUNSELS FOR THE APPELLANT AND RESPONDENTS
4. Ld. Counsel for the appellant submitted the appellant did not owe any liability to the respondent at the time of dishonour of cheque, and that the respondent had concealed from the Court that the respondent had already received money from the appellant. It was submitted that the Ld Trial CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 3/10 Court had itself opined that the respondent had received the entire amount due yet it failed to appreciate that on the first date of appearance it was informed to the Ld Trial Court that payment has already been made to the respondent. It was vehemently argued that the cheque in question was given as a security cheque and was not given for the discharge of any existing legally enforceable debt or other liability. Ld. Counsel thus submitted that impugned judgment passed by Ld. Trial Court ought to be set aside.
5. Per contra, Ld. Counsel for respondent submitted that the Ld. Trial Court has correctly passed the orders and has right sentenced the appellant herein. It was submitted that the appellant had admitted his liability and the appellant could have filed statement of accounts of his bank in order to demonstrate that the liability had indeed been paid off.
6. Submissions heard. Records perused.
DECISION
7. In order to adjudicate upon the issue, it would be apposite to carefully scrutinise the transaction entered into between the parties. The following chronology would make the position pellucid:-
2013: Order placed by appellant with the respondent for 44 chairs 24.01.2013: Advance of Rs 85,000/- paid by appellant to respondent vide Ex DW1/A 30.03.2013: 1st Invoice for 30 chairs for Rs. 1,83,071/-i.e Ex CW1/1 (colly) CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 4/10 15.04.2013: Date when the cheque in question 414387 for Rs 1,00,000/-was drawn.
04.07.2013: Cheque got dishonoured.
05.07.2013: Complainant respondent received information of dishonour. 10.07.2013: Statutory demand notice issued to the appellant. 11.07.2013: Legal notice served upon the appellant, as per Ex CW1/8 i.e India Post Tracking Report.
18.07.2013: 2nd Invoice for 14 chairs for Rs. 1,02,663/- (Ex CW1/1 (colly) 27.08.2013: Payment of Rs. 98,071/- made by appellant to respondent vide Ex DW1/B 23.08.2013: Present complaint u/s 138 NI Act filed. 08.10.2013: Summons issued qua the appellant.
19.12.2013: Payment of Rs. 1,02,633/- made by appellant to respondent vide Ex DW1/C. 09.05.2014: Matter received by way of transfer. Ld PO was on half day leave.
11.07.2014: Accused present. He submitted that he has already made the payment of the cheque amount in question. AR of the respondent company sought some time to verify.
26.09.2014: Ld Counsel for the respondent informed the Court that no payment was made qua the cheque in question.
8. At the outset, it is pertinent to note that the 2 nd invoice of Rs 1,02,663/- is not the subject matter of the present case as the same was raised after the cheque in question was issued. CW1, when cross-examined, had averred that it was correct that there are only the above two invoices Ex CW1/1 (collectively) that were submitted on record showing liability. Therefore, since the 2nd invoice was raised on 18.07.2013, that is, after the 1 st CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 5/10 invoice was raised, and after the cheque in question was presented, the 2nd invoice cannot be the subject matter of the present case.
9. Be that as it may, the above delineation of facts as adduced by both sides, make it explicit that the 1st invoice for 30 chairs for an amount was raised for a sum of Rs.1,83,071/-. The said sum was paid by the appellant in two tranches: Rs 85,000/- as advance on 24.01.2013 vide Ex DW1/A, and Rs.98,071/- on 27.08.2013 vide Ex. DW1/B. The appellant examined himself as DW1 and averred on oath that he had made the abovesaid payments through bank to the respondent. Ex DW1/A and Ex DW1/B, which bear the stamp of SBI, contain an endorsement that the cheques no. 414349 & 414420, were presented in the said account, and the words 'TO CLEARING' are conspicuously mentioned. The definition1 as per business dictionary of cheque clearing is as follows: "Movement of a check from the bank in which it was deposited to the bank on which it was drawn, and the movement of its face amount in the opposite direction. This process (called 'clearing cycle') normally results in a credit to the account at the bank of deposit, and an equivalent debit to the account at the bank on which it was drawn. Also called clearing."
10. It has thus not been disputed that the said cheques were not presented, or were dishonoured. Had that been the case, then more cases would have 1 https://web.archive.org/web/20140821201945/http://www.businessdictionary.com/definition/ checkclearing.html (accessed on 20.10.2023) CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 6/10 been instituted qua the appellant with respect to the aforementioned two cheques as mentioned in Ex DW1/A & Ex DW1/B. The complainant did not even cross examine DW1 in this regard and ultimately the right to cross examine the witness was closed on 31.10.2022.
11.On the other hand, the complainant, despite specific directions of the Court, did not adduce proof of payments received from the appellant. In this context, it would be apposite to reproduce the following extracts of cross-examination of CW1 dated 26.06.2019:
"Further cross-examination is deferred and the witness is also directed to produce details of payment made by the accused side, specifically for 19.12.2013, 27.08.2013 and 24.01.2013."
12.The above directions were also noted in the order sheet of that day. Yet, on the next date of hearing slated for cross-examination, the complainant witness CW1 did not bring the aforementioned details, and prevaricated as thus:
"It is wrong to suggest that I deliberately not brought(sic) the record or bank statement qua dated 24.01.2013, 27.08.2013. 19.12.2013 on which payment has been made by the accused person."
13.Throughout the trial, the appellant had been crying hoarse that he had already made the payment to the complainant and that he had no liability qua the complainant. He stuck to his stance that the cheque in question was issued for security purposes as the chairs were not being delivered on time.
CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 7/10
14. A perusal of the record would make it explicit that 1st invoice for a sum of Rs.1,83,071/- was paid by the appellant in two tranches: Rs 85,000/- as advance on 24.01.2013 vide Ex DW1/A, and Rs.98,071/- on 27.08.2013 vide Ex. DW1/B. In other words, no liability existed on 27.08.2013. The present complaint case was filed on 23.08.2013 and summons were issued to the appellant only on 08.10.2013. On 11.07.2014 when the accused appeared for the first time in court, he averred that he has already made the payment of the cheque amount in question. Despite the above uncontroverted proof of payment by the appellant, the complainant kept denying the receipt of payment.
15.At this juncture, it would be pertinent to refer to C C Alavi Haji v Palappetty Muhammad (2007) 6 SCC 555 wherein it was observed as thus:
"It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act".CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 8/10
16. The above verdict thus makes it explicit that in case the drawer makes good the payment within 15 days of receipt of summons, the complaint is liable to be rejected. In the present case, the payment was made on 27.08.2013, much before the appellant was even summoned on 08.10.2013. Therefore, the mandate of CC Alavi Haji (supra) will apply with full force even in the present case. When the matter was settled ex curia, where arose the need of continuing with the prosecution, rather persecution of the appellant. The respondent complainant has persistently demonstrated its contumacious conduct by needlessly prosecuting the complaint, with wanton disregard of the loss and mortification caused to the appellant who had already paid his dues. It is writ large that despite receiving payment by the appellant, the respondent company denied receipt of payment, and frittered away precious time of the court, for which it deserves the strictest condemnation.
CONCLUSION
17. Ergo, in view of the aforesaid discussion, this Court deems it fit to set aside the impugned judgment dated 09.12.2022 order on sentence dated 11.01.2023 passed by Ld. MM, South-East, Saket Courts New Delhi, and thus the present Criminal Appeal filed by appellant is hereby allowed and appellant hereby stands acquitted.
18.TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 9/10 necessary information/ compliance.
19.Revision file be consigned to record room after due compliance.
20. Order be uploaded on official website of District Courts. Announced in the open court on 30th October, 2023 (ARUL VARMA) ASJ-04 & Spl. Judge (NDPS) South-East District Saket Courts, New Delhi CA 145/2023 M/S Akansha Architects Vs Supertech India Pvt Ltd Page No. 10/10