Delhi District Court
Cc No.334/1 Sumat Prasad vs A.B.I.Overseas Ltd. & Anr. Page 1 Of 15 on 27 March, 2015
IN THE COURT OF SHRI SUDHANSHU KAUSHIK : ACMM-0I :
CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
Case No. : 334/1/2004
Unique ID No. : 02401R5419142004
Title of the Case : M/s Sumat Prasad
Vs
M/s A.B.I.Overseas & Anr.
Police Station : Jama Masjid
Date of Institution : 17.05.2002
Date of reserving judgment : 21.03.2015
Date of pronouncement : 27.03.2015
JUDGMENT :
a) The Sl. No. of the case : 334/1/2004
b) The name of complainant : M/s Sumat Parshad & Sons,
355, Chawri Bazar,
Delhi-110006
Through its partners : -
Sh. Sudhir Kumar Jain &
Sh. Sanjay Kumar Jain
c) The name of accused : (1) M/s A.B.I.Overseas Ltd.
B-2, Bhandari House,
91, Nehru Place, New Delhi-110016
(2) Sh. Vipin Parwanda
Managing Director,
M/s A.B.I.Overseas Ltd.
139, Lower Ground Floor,
Pocket A-8, Swapan Kunj, Kalkaji
Extension, New Delhi-110019
d) The offence complained of : Under Section 138/141 of
Negotiable Instrument Act 1881
read with Section 420/406/34 IPC
CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 1 of 15
e) The offence charged with : Under Section 138 of Negotiable
Instrument Act 1881
f) The plea of the accused : Pleaded not guilty
g) The final order : Acquitted
h) The date of such order : 27.03.2015
Judgment
Sudhir Kumar Jain and Sanjay Kumar Jain, partners of M/s Sumat Parshad & Sons (partnership firm), have instituted the present criminal complaint under section 138 of Negotiable Instrument Act (hereinafter referred to as ' the Act' ) on the basis of four dishonoured cheques bearing number 412430, 412431, 412432 & 412433, each for an amount of Rs.75,000/- (Rupees Seventy-Five Thousands only) but bearing different dates.
Brief facts as mentioned in the complainant.
2. M/s Sumat Parshad & Sons (hereinafter referred to as ' the firm' ) is stated to be a partnership firm registered under the Indian Partnership Act having two partners Sudhir Kumar Jain and Sanjay Kumar Jain. Vipin Parbanda (hereinafter referred to as ' accused' ) is stated to be the Managing Director of M/s A.B.I.Overseas Ltd.(hereinafter referred to as ' the company' ) which is a company registered under the Companies Act 1956. It has been mentioned that accused is in-charge of affairs of the company and responsible for its day-to-day transactions. On 17.10.1998, the firm supplied goods to the company with an understanding that the payment would CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 2 of 15 be made subsequently. Towards discharge of its liability, the company issued two cheques but both the cheques were dishonoured on 12.06.2000 on account of ' insufficient funds' in the bank account of the company. Subsequently, the company issued four new cheques for discharging this liability but these cheques were also dishonoured on presentation and returned back with same remarks of insufficient funds. A legal notice dated 13.01.2001 was served upon the accused calling him to make the payment of dishonoured cheques within a period of 15 days but in-spite of lapse of statutory period, no payment was made, hence, the present complaint was filed.
3. Initially, accused was summoned by the Court of Sh. Sanjeev Jain, the then Ld. ACMM but pursuant to the orders of Hon' ble High Court, various criminal complaints under Section 138 of the Act, including the present case, were transferred to the court of Sh. S.N.Gupta, the then Ld. ASJ, Delhi. Subsequently, the matters under Section 138 of the Act were re-transferred to the court of Sh. Sanjeev Jain, who was predecessor of this court. Record shows that vide order dated 08.04.2003, notice under section 138 of the Act was framed against the accused as well as his company to which they pleaded not guilty and claimed trial.
Witness Examined
4. Complainant only examined one witness i.e. himself as CW-1. He deposed by way of an affidavit and supported the contents of his complaint. He was CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 3 of 15 cross examined at length by the defence counsel. On the other hand, accused stepped into the witness box as DW-1 and denied his liability stating that the cheques were issued as security without any subsisting liability. He mentioned that the alleged goods were never supplied to the company. He admitted the execution of cheques but narrated a different version. He stated that complainant supplied goods to M/s Ganpati Spin Fab Ltd. and in the said transaction, the cheques in question were issued by his company as security. He stated that towards payment of the goods supplied to it, M/s Ganpati Spin Fab Ltd. issued two cheques but those cheques were dishonoured on presentation. He disclosed the details of those cheques by confronting the complainant during cross examination that the cheques were received by him. He stated that two cheques (bearing number 710578 dated 28.03.2000 for an amount of Rs.1,23,871/- and cheque No.710579 dated 30.04.2000 for an amount of Rs. 2,00,000/-) were issued by M/s Ganpati Spin Fab Ltd. It has been his line of defence that complainant has already taken legal recourse in respect of those two cheques by filing a complaint under Section 138 of the Act. He has mentioned that in view of this fact, the present criminal complaint is not maintainable. Similar defence has been taken by him in his statement recorded under Section 313 Cr.P.C.
Arguments
5. I have heard the arguments advanced by the respective counsels. CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 4 of 15
6. Ld. Counsel for complainant has argued that there is abundant evidence on record to demonstrate beyond reasonable doubt that accused committed an offence punishable under Section 138 of the Act. He argued that accused has admitted the execution of cheques. He stated that un-rebutted testimony of complainant, read in light of the presumptions provided under Sections 118 & 139 of the Act, leaves no scope for doubt that the offence has been committed by the accused. It has been argued by the counsel that the defence raised by the accused is improbable and unbelievable. Counsel has relied upon the judgments in ' M/s Dalmia Cement (Bharat) Ltd. Vs M/s Galaxy Traders & Agencies Ltd. & Ors.' JT 2001 (2) SC 1, ' Central Bank of India & Anr. Vs M/s Saxon Farms & Ors.' JT 1999(8) SC 58, ' K.Bhaskaran Vs Sankaran Vaidhyan Balan & Anr.' JT 1999(7) SC 558, ' M/s SIL Import, USA Vs M/s Exim Aides Silk Exports' JT 1999(3) SC 325, ' Rangappa Vs Sri Mohan' Crl. Appeal No.1020/2010 dated 07.05.2010, ' State of H.P. Vs Tara Dutt & Anr.' 2000(1) JCC (SC) 121, ' Sir N.Munireddy Vs Smt. Lala' M.C.Crl.Rev. Petition No.326/2009 dated 15.06.2012 and ' Prashant Goel Vs State & Anr.' Crl. M.C.1660/2007 dated 13.10.2009.
7. On the other hand, Ld. Defence Counsel argued that testimony of complainant is not reliable. He contended that the cheques were issued by the accused only as security and there was no existing liability on the date when the same were issued. He stated that the criminal complaint is time barred and the legal CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 5 of 15 notice is defective. He mentioned that complainant has already instituted a criminal complaint in respect of cheques issued by M/s Ganpati Spin Fab Ltd. and in these circumstances, complaint on the basis of cheques issued as security was not maintainable. He mentioned that complainant has lodged a false complaint and manipulated various documents. On the force of these contentions, counsel has prayed that the accused should be acquitted. Defence Counsel has relied upon the judgments in ' Kumar Exports Vs Sharma Carpets' IX (2008) SLT 674, ' Kamala S Vs Vidhyadharan M.J. & Ors.' (2007) 2 SCC (Crl.) 498, ' M.S.Narayana Menon Vs State of Kerala & Sons' III(2006) CCR 76 (SC), ' N.Chirag Travels (P) Ltd. Vs Ashwani Kumar & Ors.' 152 (2008) DLT 637, ' Veena Rani Chhabra Vs Manju Rohida' 155(2008) DLT 447, ' Pratap Singh Yadav & Ors. Vs Atal Behari Pandey' IV(2002) CCR 424, ' Pramod Vijay Khullar vs State & Ors.' 2005(1) JCC (NI) 97, ' Gaurav Singh Rathor Vs M/s Tai Pan Trades Ltd.' 2009(1) Crimes 291 (P&H), ' Prem Chand Vijay Kumar Vs Yash Pal Singh & Ors.' II(2005) CCR 210 (SC), ' SIL Import, USA Vs Exim Aides Silk Exporters' (1999) 4 SCC 567, ' T.R.V.Electronics Co.Pvt. Ltd Vs M.G.Electronics' 138(2007) DLT 630, ' R.S.Sood Vs Rajender Prasad' 2004(I) JCC (NI) 66, ' Mahesh Kumar Vs Adi Nath Exports' 2009(1) Crimes 61 (Mad), ' Mercantile Finance House Pvt. Ltd. Vs MAC Enterprises & Ors.' 2007 (4) LRC 385 (Bom) and ' Sanji Ram Vs Nand Kishore Mehta' 2003 (4) Crimes 169 . CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 6 of 15
Reasons for decision
8. I have gone through the record as well as testimony of witnesses. The testimony of witnesses is to be read in the light of arguments advanced by the respective counsels.
9. It is the complainant' s case that certain goods were supplied to the company by his firm and the cheques were issued towards payment of those goods. He deposed that the goods were supplied on 17.10.1998 vide an invoice No.1161 for an amount of Rs.3,23,871/- (Rupees Three Lac Twenty-Three Thousands Eight Hundred and Seventy-One only). He clarified during his cross examination that the invoice as well as its date has been wrongly mentioned by him as 1161 dated 17.10.1998 instead of 1611 dated 15.10.1998. Record shows that even in the legal notice (Ex.CW-1/14), complainant mentioned that goods were supplied vide invoice No.1161. Neither the original invoice nor its carbon copy was produced during the trial. During pendency of trial, complainant filed a photocopy of the invoice No. 1611 alongwith other documents but this copy has not been proved. One of the main line of arguments of defence has been that the cheques were issued as security and not towards existing liability. In view of the defence taken by the accused, complainant was under an obligation to establish that the cheques were issued in respect of existing legally recoverable liability. He should have produced some material which may have suggested that the cheques were issued against subsisting CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 7 of 15 liability. There is no evidence to demonstrate that the goods were supplied to the company. Neither the invoice nor the delivery challans have been produced.
10. Ld. Counsel for the complainant has argued that even if the original invoice and delivery challans have not been produced, still, there is a presumption that the cheques were drawn towards legally recoverable debt and the liability was subsisting. I do not find force in the said line of argument. Although, Section 118 and 139 of the act provide presumptions about legally recoverable debt but the said presumption is rebuttable. Section 118 and 139 of the Act provides for presumptions as to Negotiable Instruments. Presumption under section 118 is one of law and it provides that a court shall presume,inter-alia, that the Negotiable Instrument or the endorsement was made or endorsed for consideration. In effect, this presumption throws the burden of proof of failure of consideration on the maker of the note or the endorser, as the case may be. Similarly, under Section 139 of the Act, there is a legal presumption that the cheque was issued for discharging an antecedent liability and this presumption can be rebutted only by the person who drew the cheque. The presumption can be rebutted by the accused by adducing evidence. Referring to the standard of proof required for rebutting these presumptions, Hon' ble Supreme Court has held in " Vijay Vs Laxam & Ors." II(2013) SLT 140 that under Section 139 & 118 of the act, existence of debt and other liabilities has to be proved in the first instance by the complainant and thereafter, the burden of proof to the contrary shifts CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 8 of 15 to the accused. Court observed that the standard of proof required for rebutting these presumption is not as high as that required of the prosecution. So long as the accused can make his version reasonably probable, the burden of rebutting the presumption stands discharged. It was observed that the court can take into consideration the circumstances appearing in the evidence to determine whether the presumption should be held to be sufficiently rebutted. In " Ms Narayan Mennon Vs State of Kerala" 2006(6) SCC 39 while dealing with this aspect, court held that the standard of proof required for such rebuttal is preponderance of probabilities and not proof beyond reasonable doubt. It was held that, for rebutting such presumption, what is needed is to raise a probable defence and for that purpose, even the evidence adduced on behalf of the complainant could be relied on.
11. Coming to the present case, complainant did not produce any evidence to demonstrate that goods were supplied to the company. As observed earlier, he failed to produce any document to demonstrate the delivery of goods. Admittedly, the invoice number and its date has been wrongly mentioned by the complainant not only in the legal notice but also in his deposition. It was only during his cross examination that he clarified that in-fact invoice number was 1611 dated 17.10.1998 instead of 1611 dated 15.10.1998. Record shows that complainant deliberately concealed the details about the previous transaction that took place between his firm and M/s Ganpati Spin Fab Ltd. It was mentioned by him in para-6 of his complaint CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 9 of 15 that on a previous occasion, accused and his company delivered two cheques towards their liability in respect of goods supplied to them but those cheques were dishonoured on account of insufficient funds. He mentioned in para-8 of his complaint that criminal complaint in respect of those dishonoured cheques is pending before some other court. Although, the fate of this complaint has not been explicitly mentioned by him but it appears from his cross examination that the said criminal complaint has been dismissed. During cross examination, complainant was confronted with the previous transaction but he went to the extent of denying his knowledge about the existence of company named M/s Ganpati Spin Fab Ltd. He seems to have contradicted his own stand. In his complaint, he mentioned that towards repayment of its liability, accused and his company delivered him two cheques which were dishonoured but stated in his cross examination that he had not accepted any cheque in respect of invoice No.1611. During his cross examination, at one place, he denied that cheques of Rs.3,23,871/- (Rupees Three Lac Twenty-Three Thousand Eight Hundred and Seventy-One only) were issued to him by M/s Ganpati Spin Fab Ltd. while subsequently he admitted that M/s Ganpati Spin Fab Ltd. delivered two cheques bearing No.710578 dated 28.03.2000 for an amount of Rs. 1,23,871/- (Rupees One Lac Twenty-Three Thousand Eight Hundred and Seventy- One only) and cheque No.710579 dated 30.04.2004 for an amount of Rs.2,00,000/- (Rupees Two Lac only). These contradictions have raised serious question mark over CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 10 of 15 the veracity of complainant.
12. Record shows that complainant has continuously changed his stands. During cross examination, at times, he denied a particular fact but subsequently admitted it. His testimony does not inspire confidence. There is no documentary evidence to corroborate his version that the goods were delivered to the company. On the other hand, the defence taken by the accused is probable and believable. Accused has taken a stand that complainant supplied the goods against invoice No. 1611 to M/s Ganpati Spin Fab Ltd. and at that time, the cheques in question were issued by him as security. He has further stated that the signed blank cheques were handed over and the details therein have been filed by the complainant. It has been his stand that the cheques were issued by him only as security and not towards an existing liability. In case, a cheque has been issued as security for due performance of a contract, then, on its dishonour, no offence under Section 138 of the Act is made out. The cheque issued for a debt which may become liable in future, is a cheque issued as security and no complaint under Section 138 of the Act is maintainable on the basis of such cheque. Reliance in this regard can be placed on the judgment in ' Sanku Concrete Pvt. Ltd. Vs State of Gujarat' 2000 CLJ 1988 and ' M/s Collage Culture Vs Apparel Export Promotion Council' 2007(4) JCC (NI) 388. The fact that complainant admitted during his cross examination that two cheques (earlier dishonoured) were issued to him by M/s Ganpati Spin Fab Ltd. makes the version of CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 11 of 15 accused probable. Earlier cheques issued by M/s Ganpati Spin Fab Ltd. were exactly of the same amount which was mentioned in the invoice No.1611. This further increases the probability of defence taken by the accused that the goods were supplied to M/s Ganpati Spin Fab Ltd. and the earlier cheques were handed over towards payment of those goods. Thus, the defence taken by the accused can not be rejected as improbable or unbelievable. In respect of earlier two dishonoured cheques, complainant preferred a criminal complaint under Section 138 of the Act which appears to have been dismissed. In these circumstances, a fresh criminal complaint in respect of the cheques issued as security was not maintainable. I am of the considered opinion that accused has successfully rebutted the presumptions provided under Section 118 and 139 of the Act by establishing his defence by preponderance of probabilities.
13. One of the main line of defence is that the complaint has been filed beyond the period of limitation. It has been argued by the defence counsel that the present complaint was instituted beyond the prescribed period of limitation and under no circumstances, the delay can be condoned. This argument finds support from the record. The legal notice dated 13.01.2001 was served upon the accused on 17.01.2001. In order to establish the service of legal notice, complainant himself has placed on record certificates (Ex.CW-1/18 & CW-1/19) wherein it has been mentioned that the notice was delivered on 17.01.2001. The present complaint has CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 12 of 15 been filed on 09.03.2001 i.e. beyond the prescribed period of limitation. It has been held in ' Ashwani Kumar Julka Vs Lt. Col Parthojit Choudhary (Retd.)' 136(2007) DLT 241 that for computing the period of limitation, 15 days limitation period should be reckoned from the date when the legal notice is returned by the sendee as unclaimed and not when the intimation of receipt of this notice is received by the sender of notice. It is not the case of complainant that notice was returned by the sendee as unclaimed. He has mentioned that the notice was duly served upon the accused. Applying the principle laid down in ' Ashwani Kumar Julka' s case (supra) ' , it becomes evident that present criminal complaint was filed beyond the period of limitation. It was observed by the court in the said judgment that in case, a notice is actually received by the addressee (drawer of the cheque) then 15 days period would be reckoned from that date i.e. date of receipt of notice. Applying the principle laid down in the judgment, the period of 15 days from the date of service of notice (after excluding the date on which it was served) lapsed on 01.02.2001 and the limitation for filing the complaint expired on 03.03.2001 but the complaint has been filed on 09.03.2001. Thus, it is a time barred complaint.
14. It has been argued by the counsel for complainant that, even if, the complaint is time barred, still, it would not make any difference since the delay has already been condoned by the Ld. Predecessor and the matter has been put to trial. He has placed reliance upon the judgment in ' State of Himachal Pradesh Vs Tara CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 13 of 15 Dutt & Ors.' 2001 (JCC) SCC 121 wherein the provisions of Section 468(3) Cr.P.C were interpreted for extending the period of limitation. I do not find any merit in the said argument. There can not be any deemed condonation of delay merely because the matter was put to trial and it was not dismissed at the first instance. The delay in filing of complaint under Section 138 of the Act could have been condoned under Section 142 of the Act and this provision of condonoation was incorporated by way of amendment in the year 2002 but the present complaint was instituted in the year 2001. It has been held by the Hon' ble Supreme Court in ' Anil Kumar Goel Vs Kishan Chand' 2008 CLJ 1386 that amendment incorporated in Section 142(b) of the Act regarding extension of period of limitation shall not operate retrospectively. The present criminal complaint was filed prior to the amendment and at that time, there was no provision for condonation of delay. The act is a special act and there is no scope of invoking the provision of Section 468 Cr.P.C for condonation of delay in institution of any complaint under Section 138 of the Act. Reference in this regard may be made in ' Barun Pharmaceuticals Pvt. Ltd. Vs Shilpi Packaging' Crl. Misc Main No.3122/93 dated 15.11.1994.
15. In view of discussions made in the afore-stated paras, I have reached a conclusion that in totality of these circumstances, complainant has failed to make out a case against the accused while on the other hand, accused has been successful in rebutting the presumptions provided under Section 118 and 139 of the Act. The CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 14 of 15 defence of the accused has raised doubts over the version of complainant. The accused has been successful in raising a probable defence which has created doubt about the existence of legally enforceable debt or liability. The complaint is barred by limitation. The result is obvious. Accused Vipin Parwanda and the company stand acquitted in the present case.
File be consigned to Record Room.
Announced in the open court (SUDHANSHU KAUSHIK) on 27.03.2015 ACMM-01/(CENTRAL)/DELHI
It is certified that this judgment contains 15 (Fifteen) pages and each page bears my signature.
(SUDHANSHU KAUSHIK) ACMM-01/(CENTRAL)/DELHI CC No.334/1 Sumat Prasad Vs A.B.I.Overseas Ltd. & Anr. Page 15 of 15