Delhi District Court
M/S. Tci Web Gate vs . on 23 December, 2020
IN THE COURT OF MS. SALONI SINGH METROPOLITAN
MAGISTRATE- 01 (SHAHDARA) KARKARDOOMA COURTS
DELHI
Complaint Case no. 2887/2020
CNR No. DLSH020019312015
Police Station Madhu Vihar
M/s. TCI Web Gate,
Through its Proprietor Mr. Gulshan Kumar Khatri,
Office at: - F-7, 1st Floor, Madhu Vihar, Service Lane,
Main Fly Over, I.P. Extension, Patpar Ganj,
Delhi -110092 ...Complainant
Vs.
1.M/s. Encore Digitech Pvt. Ltd., 3, Canal Street, 1st Floor, Lokenath Apartment, Kolkata -700014.
2. Mr. Tushar Datta, Managing Director, M/s. Encore Digitech Pvt. Ltd., 3, Canal Street, 1st Floor, Lokenath Apartment, Kolkata -700014.
3. Mr. Suman Jha, Authorized Signatory, M/s. Encore Digitech Pvt. Ltd., 3, Canal Street, 1st Floor, Lokenath Apartment, Kolkata -700014 ...Accused COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 Date of Institution: 03.12.2014 Date of Reserving Judgment: 17.12.2020 Date of Judgment: 23.12.2020 Final Order: Acquittal Page 1 of 14 CC no. 2887/2020 Judgment: -
In the present complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, "N.I. Act"), the complainant has prayed that the accused be summoned and punished for offence under Section 138 of the said Act and be tried for offence of cheating in accordance with law.
1. The facts, as given in the complaint, are briefly stated hereunder: - The accused company engaged the services of the complainant for carrying out scanning work as per work order bearing no. EDPL/33/2013-2014 dated 10.03.2014.
The complainant completed the work to the satisfaction of the accused in June 2014 and raised bills dated 30.04.2014, 30.05.2014 and 30.06.2014, which were received by the accused on 19.08.2014. The accused issued a postdated cheque bearing no. 000002 for an amount of Rs. 1,06,452/- (One Lakh Six Thousand Four Hundred and Fifty-Two Only) dated 20.10.2014 drawn on Kotak Mahindra Bank, Khasra no. 65, Harphool Singh Market, Main Dwarka- Janak Puri Road, New Delhi-110045 (hereinafter referred to as, "cheque in question"). The cheque in question was presented by the complainant to his banker South Indian Bank, I.P. Extension, New Delhi, and the cheque in question was returned with remarks, "funds insufficient", vide bank return memo dated 21.10.2014. The complainant sent legal notice dated 13.11.2014 to the accused through speed post requesting the accused to clear the due amount. The notice was duly served upon the accused and acknowledged via email dated 19.11.2014 sent to the complainant. Despite service of the legal notice, the accused failed to make payment of the cheque in question to the complainant within 15 days of receipt of the said legal notice.
2. On filing of the present complaint, the complainant was examined on oath and he tendered his examination-in-chief, by way of an affidavit, Exhibit CW-1/1 Page 2 of 14 CC no. 2887/2020 relying upon the following documents including work order bearing no. EDPL/33/2013-2014 dated 10.03.2014 as Exhibit CW-1/A, the copy of agreement dated 19.08.2014 as Mark A, the cheque in question as Exhibit CW-1/C, bills dated 30.06.2014, 30.05.2014 and 30.04.2014 as Exhibit CW- 1/D, Exhibit CW-1/E and Exhibit CW-1/F respectively, bank return memo dated 21.10.2014 as Exhibit CW-1/G, copy of legal notice sent to the accused dated 13.11.2014 as Exhibit CW-1/H, speed post receipts as Exhibit CW-1/I to Exhibit CW-1/L, print out of e-mail dated 19.11.2014 sent by accused to the complainant as Exhibit CW-1/M, the speed post envelope sent at address A-16/1E, Sector 16, Noida, Uttar Pradesh and received back unserved as Exhibit CW-1/N, reply dated 01.12.2014 to legal notice sent by accused no. 2 with the speed post envelope as Exhibit CW-1/P (Colly), receipts of the indexing of the scanned images/quality control report as Exhibit CW-1/Q, copy of challan dated 16.05.2014 as Mark A, challan dated 04.12.2013 to show previous installation of scanner by complainant at another destination as Exhibit CW-1/R, and ten vouchers of the employee (Rakesh) issued by the complainant as Exhibit CW-1/S (Colly), and based on which sufficient grounds were found for proceeding against all the accused and they were summoned for 29.01.2015.
3. All the accused appeared on the said date and the accused no. 2 and 3 were admitted to bail on furnishing bail bonds in the sum of Rs. 10,000/- (Ten Thousand Only) each with surety of like amount. Thereafter, notice of accusation was framed and served upon all the accused for the offence under Section 138 of N.I. Act, to which all the accused pleaded not guilty and claimed trial. An application under Section 145 (2) of N. I. Act was filed on behalf of accused, wherein the defence raised by the accused was that the complainant had not completed the work as per the work order no. EDPL/33/2013-2014 dated 10.03.2014 and because of which only 2900 (Two Page 3 of 14 CC no. 2887/2020 Thousand Nine Hundred) out of 9669 (Nine Thousand Six Hundred Sixty-Nine Only) were approved by the accused and on the three bills dated 30.04.2014, 30.05.2014 and 30.06.2014, a payment of Rs. 35,472/- (Thirty-Five Thousand Four Hundred Seventy-Two only) had been made to the complainant for 2900 (Two Thousand Nine Hundred) scanned images. Further, it was submitted that in July 2014 the complainant had stopped the work and another agreement dated 19.08.2014 had been reached between the parties as per which it had been agreed that the complainant shall complete the work by 20.09.2014 and get all the images approved by the accused on daily basis. Further, it was submitted that as per the said agreement, the accused had handed over the cheque in question to the complainant as a security cheque for the remaining work to be done by the complainant. It was also submitted that despite execution of the said agreement, the complainant had failed to start the work and the accused were compelled to hire services of one Mr. Rakesh Kumar, who completed the work and received remuneration of Rs. 40,000/- (Rupees Forty Thousand Only) by way of four cheques and remaining balance of Rs. 36,000/- (Thirty-Six Thousand Only) was to be paid to Mr. Rakesh Kumar after release of payment by CWC. It was also submitted that the cheque in question was not a valid negotiable instrument at the time of its execution on 19.08.2014 as the cheque was to be encashed only after completion of work by the complainant and that the complainant had misused the cheque in question to extort money from the accused.
4. Submissions on the said application under Section 145 (2) of N. I. Act were made on behalf of parties. Vide order dated 29.01.2015, the said application was allowed by the court and complainant was recalled for cross-examination on behalf of accused. The complainant was cross- examined by Learned Advocate for the accused and no other witness was examined by the complainant. On completion of complainant's evidence, the accused were Page 4 of 14 CC no. 2887/2020 examined under Section 313 read with Section 281 Code of Criminal Procedure (for short, "CrPC"). During the examination of the accused under Section 313 of CrPC, all the accused stated that the cheque in question was not a valid instrument at the time of execution of agreement dated 19.08.2014 and the cheque in question was misused by the complainant as he had not completed the work of 6789 (Six Thousand Seven Hundred and Eighty-Nine Only) images. An application under Section 315 of CrPC was filed on behalf of accused no. 3, which was considered and allowed on which the accused no. 3 stepped into the witness as DW-1 and tendered his examination-in-chief relying upon twelve original vouchers of the payments made to Mr. Rakesh Kumar for the completion of work as Exhibit DW-1/A and was cross- examined by Learned Advocate for the complainant. No other witness was examined on behalf of accused and defence evidence was closed.
5. Final arguments were advanced on behalf of the complainant and the accused. Learned Advocate for complainant submitted that the ingredients of Section 138 of N.I. Act have been proved by the complainant and that the accused have raised a defence contrary to their reply sent to the legal notice of the complainant. Further, it is argued that the accused/DW-1 has admitted that the work had been completed by Mr. Rakesh, who was an employee of the complainant, and that the accused have not examined Mr. Rakesh to prove that he had been employed by accused independently to complete the work. Learned Advocate for the complainant further submitted that the agreement, Exhibit CW-1/D1 (Mark A), has been admitted by the parties and as per which the work had been completed by the complainant. Lastly, it is submitted that the scanner machine and the computer systems are still at the site for which the complainant is entitled to rent @ Rs. 30,000/- (Rupees Thirty Thousand Only) and Rs. 800/- (Rupees Eight Hundred Only) per month with effect from 20.10.2014 till the possession of the same is returned to the complainant.
Page 5 of 14 CC no. 2887/20206. Learned Advocate for the accused submitted that as per the settlement, Exhibit CW-1/D1, three conditions had to be complied by the complainant for receiving the payment for the work done and that the complainant had failed to complete the entire work. He argued that as per Exhibit DW-1/D2 the complainant had completed scanning of 2932 documents for which the complainant had already been paid. Learned Advocate for the accused further submitted that the complainant had not completed the work for which the accused had hired the services of Mr. Rakesh and to prove the same the accused has placed on record the vouchers/payments that had been issued to Mr. Rakesh for completion of the remaining work. It is also argued that the scanner machine had been installed by the complainant in the month of May 2014 and it was not possible for the complainant to have started work in the month of March 2014. Learned Advocate for the accused further submitted that the accused had not received the legal notice and the reply on record is not of the accused. Lastly, it is submitted that the complainant has already removed the scanner and the computer systems from the site and even otherwise complainant has not filed any complaint to any authority for the alleged illegal retention of the scanner/computer systems belonging to the complainant. In rebuttal, Learned Advocate for the complainant submitted that the complainant has already filed a complaint against illegal retention of his scanner/computer system to the concerned authority and that all the scanned images had been approved by CWC, which is evident from Exhibit CW-1/Q.
7. The submissions made on behalf of both the parties have been considered and the entire record of the case has been thoroughly perused. The only consideration before this Court is to determine as to whether the accused are guilty of committing an offence under Section 138 of the N.I. Act, for which the essential ingredients are as follows:- (1) The cheque was drawn by a person Page 6 of 14 CC no. 2887/2020 on an account maintained by him with a banker; (2) The cheque drawn was for payment of money to another person from out of that account in discharge, in whole or part, of any debt or other liability; (3) On presentation of the cheque, it is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank; (4) The cheque was 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; (5) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (6) The drawer of the cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course, within fifteen days of the receipt of said notice.
8. The case of the complainant is that the accused no. 1 had engaged the services of the complainant for scanning of documents, vide a work order no. EDP/33/2013-2014 dated 10.03.2014, Exhibit CW-1/A, and pursuant to which the complainant had commenced work on site after installation of scanners and computer systems and had completed the entire work in June 2014 for which the complainant had raised three bills dated 30.06.2015, 30.05.2014 and 30.04.2014, Exhibit CW-1/D to Exhibit CW-1/F respectively. It is further submitted that the accused had made payment of the first bill dated 30.04.2014 (Exhibit CW-1/F) in two parts, one on 08.07.2014 of Rs. 10,000/- (Rupees Ten Thousand Only) in cash and the second on 19.08.2014 of Rs. 35,472/- (Rupees Thirty-Five Thousand Four Hundred and Seventy-Two Only) in cash and had issued the cheque in question for the remaining said two bills dated 30.05.2014 and 30.06.2014 and assured the complainant that the cheque would be Page 7 of 14 CC no. 2887/2020 honoured on presentation, however, the same was dishonoured and on which the present case was filed. It is not disputed that the cheque in question, Exhibit CW-1/C, was drawn by the accused no. 3 on an account maintained by the accused no. 1 company with their banker. It is also not disputed that the cheque in question was issued by the accused no. 3 for the work of 6789 (Six Thousand Seven Hundred and Eighty-Nine Only) images as per the said work order, Exhibit CW-1/A. It is also not disputed that the cheque in question was presented by the complainant to his banker, which was returned by his bank, vide the return memo dated 21.10.2014 (Exhibit CW-1/G), with remarks, "funds insufficient".
9. Next, as per the complainant, within a period of thirty days of receipt of said information from his bank, he had sent the legal notice dated 13.11.2014, Exhibit CW-1/H, to the accused at their addresses at 3, Canal Street, 1 st Floor, Lokenath Apartment, Kolkata-700014 and at A-16/1E, Sector 16, Noida, Uttar Pradesh (U.P.), by way of speed posts AD, which had been delivered to the accused at their said address at Kolkata and the speed post sent at their address at Noida had been returned with endorsement, 'no such person'. It is further the case of the complainant that in response to the said legal notice, the accused had sent the email dated 19.11.2014, Exhibit CW-1/M, and sent the reply dated 01.12.2014, through their counsel, to the counsel of the complainant via speed post AD. To prove the delivery of the said legal notice to the accused at their Kolkata address, the complainant has relied upon and placed on record the original speed post AD receipts as Exhibit CW-1/I, Exhibit CW-1/J and Exhibit CW-1/L, and the returned envelope from the Noida address as Exhibit CW-1/N. The said email dated 19.11.2014, Exhibit CW-1/M, is an electronic document and has not been filed with a certificate mandated under Section 65-B (4) of the Indian Evidence Act, 1872 (for short, "Evidence Act") and would, thus, be inadmissible in evidence. Reference in Page 8 of 14 CC no. 2887/2020 this regard is made to the recent decision of the Hon'ble Supreme Court in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal., 2020 SCC OnLine SC 571.
10.At the same time, it is pertinent to mention here that the said legal notice, Exhibit CW-1/H, had been sent by way of speed posts AD at both addresses of the accused. The envelope sent at the Noida address had been received back with endorsement, 'no such person', while the envelopes sent at the Kolkata address via speed posts AD had not been received back by the sender/complainant and the accused have not disputed their Kolkata address of 3, Canal Street, 1st Floor, Lokenath Apartment, Kolkata-700014. On one hand, the accused no. 3, at the time of framing of notice of accusation against them, admitted having received the legal notice, Exhibit CW-1/H, and of even having replied to the same, while on the other hand it was suggested to the complainant/CW-1 during his cross-examination that the accused had not been served with the legal notice and that the reply dated 01.12.2014 to the legal notice, Exhibit CW-1/P, is a forged and fabricated document. Interestingly, the accused no. 3 during his cross-examination having denied receipt of the legal notice, Exhibit CW-1/H, has at the same time stated that in case the accused no. 1 company received the legal notice, Exhibit CW-1/H, he did not have anything to say in this regard. The accused no. 3 is admittedly one of the directors of the accused no. 1 company and the said statement of accused no. 3 during his cross-examination clearly indicates an attempt on the part of the accused no. 3 to evade the said suggestion by neither specifically admitting nor denying receipt of the legal notice, Exhibit CW-1/H and it can be inferred that the accused had received the legal notice or at least were aware of the same. In view thereof, it can be considered as admitted that the accused had received the legal notice, Exhibit CW-1/H. Lastly, it is not disputed that the accused failed Page 9 of 14 CC no. 2887/2020 to pay the cheque amount to the complainant within fifteen days of receipt of the legal notice.
11.From the above, it is stated that the very issuance of the cheque in question by the accused is not disputed, which gives rise to the presumptions under Sections 118 (a) and 139 of the said Act i.e., the cheque in question was drawn for a consideration and that the holder of the cheque received the same in discharge of a legally enforceable debt or liability. The said presumptions are rebuttable. The onus now shifts on the accused to establish a probable defence to rebut the said presumptions. The defence of the accused is that the cheque in question had been issued as an advance payment for the scanning work to be done of the remaining 6789 (Six Thousand Seven Hundred and Eighty-Nine Only) drawings/images, which the complainant had failed to complete as per the work order, Exhibit CW-1/A, and the settlement agreement dated 19.08.2014, Exhibit CW-1/D1, and, thus, the said cheque in question was without consideration at the time when it was drawn and presented to the complainant's bank.
12.The work order, Exhibit CW-1/A, and the terms of the settlement agreement dated 19.08.2014, Exhibit CW-1/D1, are not disputed by the parties. As per the said settlement agreement, Exhibit CW-1/D1, it was agreed that '1. the images should be approved by client (CWC) 2. Work should be completed Dt 20.09.2014. 3. Work will be executed on daily basis without any gap or leave." Further, as per the said agreement, the complainant had received cash amount of Rs. 35,472/- (Rupees Thirty-Five Thousand Four Hundred and Seventy-Two Only) for work done of 2900 (Two Thousand and Nine Hundred Only) images and that the complainant had received the cheque in question for work of 6789 (Six Thousand Seven Hundred and Eighty-Nine Only) images. Initially, in his examination-in-chief (at pre-summoning stage), Exhibit CW-1/X, and in the Page 10 of 14 CC no. 2887/2020 present complaint, the complainant has taken the plea that he had already completed the said job work to the satisfaction of the accused without any complaints in June 2014 for which the complainant had raised three bills, (Exhibit CW-1/D to Exhibit CW-1/E), and for completion of the work the accused had issued the cheque in question. In the legal notice, Exhibit CW- 1/H, it is stated that the complainant had completed the said job work to the satisfaction of the accused and without any complaints on 20.09.2014 and there is no mention of completion of the work (or any part of the work) in June 2014. Then in the examination-in-chief (at post summoning stage), Exhibit CW-1/1, the complainant has raised a new plea that the cheque in question, which had been issued on 19.08.2014 by the accused, was for completion of the work and further indexing work and that the complainant had deputed his employee one Mr. Rakesh Kumar for executing the indexing work, which had been completed on 20.09.2014 to the satisfaction of the accused without any complaints. The complainant with his affidavit, Exhibit CW-1/1, also brought on record the receipts issued by the accused for the indexed work as Exhibit CW-1/Q. The complainant in Exhibit CW-1/1 has also stated for the first time that whenever the complainant completed the said scanning work till 30.06.2014, the accused had illegally withheld the payment and it is on persistent demands that the accused had released the payment of Rs. 35,472/- (Rupees Thirty-Five Thousand Four Hundred and Seventy-Two Only) and had issued the cheque in question pressurising the complainant to further complete the indexing work of the scanned documents, which the complainant had completed by 20.09.2014.
13.Evidently, as per the version of the complainant in Exhibit CW-1/1, the entire work as agreed had not been completed by him in either June 2014 or as on 19.08.2014. This hints at the probability of the cheque in question having been issued on 19.08.2014 with date of 20.10.2014 as an advance payment Page 11 of 14 CC no. 2887/2020 conditional on completion of the work as had been agreed between the parties. It is not disputed that, as per terms of settlement, the payments were to be released only after the quality check/approval by CWC of the images scanned by the complainant. It is also not disputed that 2900 (Two Thousand and Nine Hundred Only) images had been scanned by the complainant and approved by the client/CWC and for which on 19.08.2014 the complainant had received payment of Rs. 35,472/- (Rupees Thirty-Five Thousand Four Hundred and Seventy-Two Only). In this regard, attention is drawn to the cross-examination of CW-1, wherein he has specifically admitted that as agreed the images needed to be approved by CWC and that on 19.08.2014 the complainant had received Rs. 35,472/- (Rupees Thirty-Five Thousand Four Hundred and Seventy-Two Only) for the scanning work done of 2900 (Two Thousand and Nine Hundred Only) images. There also seems to be no dispute between the parties that the complainant had scanned a total of 9689 (Nine Thousand Six Hundred and Eighty-Nine Only) images, however, the complainant has denied that out of the said scanned images, only 2900 images had been approved by CWC.
14.The only point of dispute between the parties seems to be whether the remaining scanned images had been approved by CWC or not by 20.09.2014. The complainant has relied upon Exhibit DW-1/D2 and Exhibit CW-1/Q to prove that all the said 9689 (Nine Thousand Six Hundred and Eighty-Nine Only) scanned images had been approved by CWC by 20.09.2014 i.e., the agreed date of completion of the work. The accused no. 3 during his cross- examination was confronted with the said document, Exhibit DW-1/D2, and on which he has admitted his signatures at point A dated 16.05.2014. The said document also contains remarks by one Mr. Manoj as 'recvd data' and 'quality ok' dated 15.05.2014. The accused have not denied the document, Exhibit DW-1/D2, which seems to be a report of the work completed by the Page 12 of 14 CC no. 2887/2020 complainant in March-April of 2932 (Two Thousand Nine Hundred and Thirty- Two Only) images. Next, Exhibit CW-1/Q (running into 54 pages) is stated to be a quality check report approved by CWC. The complainant claims that the said report, Exhibit CW-1/Q, is the approved quality report of 2900 images, which has been admitted by the accused/DW-1 in her cross-examination. The said report, Exhibit CW-1/Q, is not disputed by either of the parties and it seems to contain the quality check approval of 604 (Six Hundred and Four Only) scanned images on 19.09.2014 (pages 25 to 36 of Exhibit CW-1/Q), 419 (Four Hundred and Nineteen Only) scanned images on 16.09.2014 (pages 37 to 43 of Exhibit CW-1/Q), and 951 (Nine Hundred and Fifty-One Only) scanned images on 19.09.2014 (pages 44 to 54 of Exhibit CW-1/Q), amounting to a total of 1974 (One Thousand Nine Hundred and Seventy-Four Only) scanned and approved images as on 19.09.2014. Even assuming 2932 (Two Thousand Nine Hundred and Thirty-Two Only) scanned images had been approved in May 2014 (16.05.2014) and 1974 (One Thousand Nine Hundred and Seventy-Four Only) scanned images had been approved in September 2014 (by 19.09.2014), the total scanned images that had been approved are only (2932+1974) 4906 (Four Thousand Nine Hundred and Six Only) as opposed to the claim of the complainant of approval of 9689 (Nine Thousand Six Hundred and Eighty-Nine Only) scanned images as on 20.09.2014.
15. Further, the complainant in Exhibit CW-1/1, claims that he had engaged the services of his employee, Mr. Rakesh Kumar, to complete the further indexing work, which had been completed by 20.09.2014. The complainant in his cross- examination has stated that Mr. Rakesh Kumar had been employed with him till August-September 2014 and has placed on record vouchers issued by him in favour of his employee Rakesh including of the month of August and September 2014 as Exhibit CW-1/S. At the same time, the accused claims that the complainant had not carried out any work after 19.08.2014 and because of Page 13 of 14 CC no. 2887/2020 which they were compelled to hire Mr. Rakesh Kumar to complete the work and in proof thereof have placed on record vouchers issued by the accused in favour of Rakesh Kumar of the years 2015-2016 as Exhibit DW-1/A. Neither the complainant nor the accused have filed any documentary evidence to prove that their employee Rakesh Kumar had completed the work as per the work order, Exhibit CW-1/A, and the settlement agreement, Exhibit CW-1/D1. Merely placing on record the said vouchers does not substantiate the case of the complainant or the accused.
16.From the above analysis, it is evident that the work had not been completed by the complainant by 20.09.2014 or 20.10.2014, as per the terms agreed between the parties. Therefore, it can be stated that the cheque in question was without any consideration on the date it was issued (19.08.2014) and/or when it was presented to the banker of the complainant on 20.10.2014. The accused has been able to rebut the presumption arising under Sections 118 (a) and 139 of the N.I. Act.
17.Considering the aforesaid findings, this Court is of the view that the complainant has been unable to prove beyond all reasonable doubt the ingredients of the offence under Section 138 of the N.I. Act against the accused persons. Accordingly, the accused persons are acquitted of the offence under Section 138 of the N.I. Act.
Pronounced in Open Court on Twenty Third of December of Two Thousand and Twenty.
(Saloni Singh) MM-01/Shahdara/KKD.
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