Delhi District Court
M/S Champion Computers Pvt Ltd vs Rohit Wadhwa on 16 March, 2015
1
IN THE HON'BLE COURT OF SH.CHANDER MOHAN, MM-02 NI ACT (SED),
SAKET COURT, NEW DELHI.
Complaint Case No. 1836/14
UNIQUE ID CASE NO. 02406R037832011
In the matter of :
M/s Champion Computers Pvt Ltd
207, Madhuban, 55, Nehru Place
New Delhi. ...Complainant
Versus
Rohit Wadhwa
S/o Sh. Yog Ran Wadhwa
H. No. 536, Patel Nagar, Near Sector-9
Janoli, Ambala City
Haryana. ...Accused
Date of Institution : 03.06.2011
Date of Reserving Judgment / Order : 10.03.2015
Date of Pronouncement of Judgment/ Order : 16.03.2015
CASE OF THE COMPLAINANT
1.The complainant is a company registered under Companies Act and involved in business of computers and peripherals. The accused, who is resident of Ambala, was working with complainant company and managing its Chandigarh office and looking after the Chandigarh's dealing. In the month of September 2009, complainant discovered that various stocks and money belonging to the company could not be accounted for at its Chandigarh's office. On making enquiries, it was found that various stocks that should have been in the company's inventory had been delivered to various customers, but no records for such sales were maintained and no sale consideration for such were found to be recorded or received in the account of the complainant' s CC No. 1836/14 Champion Computers Pvt Ltd Vs. Rohit Wadhawa 1/1 2 company. Upon making further enquiries, it was found that considerations for various other sales made to some customers were received in cash and not handed over/accounted with the company. It was also found that company's fund were found to have been used for purchase of various products and their sale against cash.
2. Upon being confronted, accused admitted that the aforesaid acts of fraud, cheating and misappropriations were done by him. He also admitted that he had caused a loss amounting to Rs. 25,00,000/- ( Rs. Twenty Five lakhs) towards making unaccounted sales, Rs. 2,00,000/- ( Rs. Two Lakhs) for receiving the sale consideration in cash and Rs. 3,00,000/- ( Rs. Three Lakhs) for having misused funds belonging to the company. Further, accused also undertook to return the entire amount of Rs. 30,00,000/- (Rs. Thirty Lakhs) as soon as possible. However, no part of the amount was returned by the accused till December 2010. Accordingly, in the month of January 2011, the complainant wrote to the accused requiring him to repay the money owed to it. In response, accused requested for further time which was granted by the complainant. Eventually, in the month of February 2011, accused issued and delivered the following cheque for the entire amount to the complainant and requested that it be presented after 01.03.2011.
Cheque no. Dated Amount ( Rs.) Drawn on
30,00,000/- Bank of India, Ambala Cantt,
514052 01/03/11 Haryana
3. The above cheque has been dishonoured with the remarks " Insufficient Funds" vide memo dated 19.03.2011 and intimation of the same was received by the complainant at its office at Delhi on 21.03.2011. Legal CC No. 1836/14 Champion Computers Pvt Ltd Vs. Rohit Wadhawa 2/2 3 notice dated 18.04.2011 which was received by the accused on 20.04.2011 failed to secure the payment. Accused had however issued a reply dated 29.04.2011 to the above notice and denied his liability to pay the cheque amount. Since, accused has failed to make any payment, hence, complainant has instituted the present complaint.
DEFENCE OF THE ACCUSED
4. Accused was summoned by my Ld. Predecessor U/s 138 NI Act vide Summoning Order dated 30.06.2011 and he was put to notice U/s 251 Cr.P.C on 16.08.2012 to which he pleaded not guilty and claimed trial by disclosing the following defence.
" The cheque in question bears my signatures but other content of the cheque were not filled by me. The cheque in question was given by me to the complainant as security at the time of joining service with the complainant company. Thereafter, I left the job of the complainant company in the year 2010 and thereafter joined the another company M/s Nano Tech Pvt Ltd. The complainant nurtured grudge against me because I have joined the competitor of the complainant company and therefore the complainant company has filed this totally false case against me on the basis of security cheque detained by the company at the time of the joining of my company".
BREIF REASONS FOR THE JUDGMENT
5. To prove its case complainant tendered his pre-summoning affidavit by way of evidence Ex. CW1/A and documents i.e Indemnity bond Ex. CW1/3, Promissory Note Ex. CW1/4, Original cheque dated 01.03.2011 CC No. 1836/14 Champion Computers Pvt Ltd Vs. Rohit Wadhawa 3/3 4 Ex. CW1/6, Memo of dishonour of banker of the accused bearing remarks " Insufficient Funds" dated 19.03.2011 Ex. CW1/8, Return Statement issued by complainant's bankers dated 21.03.2011 Ex. CW1/9, Copy of the Legal notice of demand Ex. CW1/10, postal receipts Ex. CW1/11 and reply dated 29.04.2011 Ex. CW1/12 issued by the accused through his counsel to the above legal notice of demand.
6. On the other hand, accused cross-examined the complainant at length on 29.04.2011, 10.07.2013 and 07.01.2014 and on 06.08.2014 his SA U/s 313 Cr. P.C was recorded. On 19.11.2014, he suffered a statement that he does not intend to lead any defence evidence.
7. I have heard both the parties and traveled through the record with their able assistance.
8. Section 139 of the Negotiable Instruments Act read as under:-
Presumption in favour of the holder- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature refered to in section 138 for the discharge, in whole or in part, of any debt or other liability. Further, explanation to section 138 of the Act-For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
9. It is well settled that onus is upon the accused to rebut the above presumption. This court is of the opinion that accused has failed to prove his aforequoted defence and consequently failed to rebut the above presumption due to following reasons:-
CC No. 1836/14Champion Computers Pvt Ltd Vs. Rohit Wadhawa 4/4 5
1. As a prudent person, it was duty of the accused to issue stop payment instructions to his bankers, if the complainant company did not return his blank signed cheque after he joined a new company. The cheque in question has been dishonoured with the reasons "Insufficient Funds" and not "
Stop Payment" instructions thereby considerably weakening the stand taken by the accused.
2. He has not produced any documentary evidence eg., any letter etc., vide which he had asked the complainant company to return his blank security cheque .
3. To corroborate his case, complainant has placed on record Indemnity Bond Ex. CW1/3 purportedly executed by the accused admitting the fraud committed by him as well as mentioning the list of customers with whom he had the dealings. He has also placed on record the promissory note purportedly executed by the accused vide which he had undertaken to pay a sum of Rs. 30 lakhs. Except a bald suggestion to the complainant, while the complainant was under cross-examination, that the above documents were not executed by the accused, accused has not led any evidence to prove that same does not bear his signatures. It is not the case of the accused that same were procured from him on blank papers or by threat or coercion. This court is of the opinion that a bald suggestion in the cross-examination is not sufficient to rebut the above documentary evidence led by the complainant to fasten the liability upon the accused and consequently to rebut the presumption U/s 139 NI Act which is again in the CC No. 1836/14 Champion Computers Pvt Ltd Vs. Rohit Wadhawa 5/5 6 favour of the complainant.
4. Further, it is difficult to believe that if a blank signed cheque of a person is presented by some one by filling an amount of Rs. 30,00,000/-, he shall sit quietly. Accused has not whispered anything regarding taking any action against the complainant by lodging any complaint against him for the aforesaid act before the police, court or any other competent authority. Infact, there is no evidence of even protesting the misuse with the complainant.
5. It is defence of the accused that the complainant company has misused his blank signed security cheque since he joined a rival company. Accused has not led any evidence to show that he had joined any company, not to speak of rival company, after leaving the job of the complainant company. If, this would have been the case, accused could have easily examined or summoned any person from the new company he had joined or atleast made an attempt to this effect. No such step has been taken. To conclude, the defence raised by the accused merely remains a hoax and accused has failed to raise and prove any probable defence.
10. Accordingly, in view of the above discussions, the accused is held guilty and he is convicted for the commission of the offence under 138 NI Act. Let he be heard on the quantum of sentence.
Pronounced in the open court (Chander Mohan)
On 16.03.2015 MM-02 (NI ACT), South East, Saket
New Delhi
CC No. 1836/14
Champion Computers Pvt Ltd
Vs. Rohit Wadhawa 6/6