Delhi District Court
Cc No. 33/09/12 Kanjimull vs Radeka Chaudary Page 1 Of 26 on 26 August, 2013
IN THE COURT OF SH. LALIT KUMAR: ADDL. SENIOR CIVIL
JUDGE / JUDGE SMALL CAUSE COURT / GUARDIAN JUDGE/
METROPOLITAN MAGISTRATE: NEW DELHI DISTRICT:
PATIALA HOUSE COURTS: NEW DELHI.
CC No: 33/09/12
U/s 138 Negotiable Instruments Act
PS Connaught Place
IN THE MATTER OF:-
M/s Kanjimull & Sons
(Through its partner Mr. Vijay Kumar Khanna)
Scindia House, Janpath,
New Delhi - 110001. ..... Complainant
VERSUS
Radeka Chaudary
3/1, Club Road Drive,
Ghitorni, M.G. Road,
New Delhi - 110030.
Also at:
339, Church Road ( Behind Pocket D-3)
Vasant Kunj,
New Delhi - 110070. ..... Accused
COMPLAINT U/s 138 OF NEGOTIABLE INSTRUMENTS ACT, 1881
Date of institution of the case : 17.08.2009
Date of Judgment : 26.08.2013
Final Order : Convicted
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 1 of 26
JUDGMENT:-
Complainant had filed the present complaint case u/s 138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N. I. Act") against the accused through its partner Sh. Vijay Kumar Khanna.
2. Brief facts necessary for just adjudication of the present case as stated in the present complaint are that M/s Kanjimull and Sons is a partnership firm having its office at Scindia House, Janpath, New Delhi. The complainant is in business of manufacturing, trading and dealing of all types of Jewellery relating to precious and semi- precious stones as well as trading and dealing in all varieties. Accused Radeka Chaudary was his customer. Accused and her daughter Ms. Shraeyaa Radeka Chaudhary had purchased the goods from the complainant worth Rs.1,69,07,400/- vide two invoices dated 18.09.2008 and 16.10.2008 and complainant had given a credit period to the accused to pay the aforesaid debt. The accused to discharge the aforesaid debt and towards the part payment of goods, issued a cheque bearing no. 226542 dated 02.12.2008 drawn on HDFC Bank Ltd. Complainant had presented the said cheque for encashment to its banker but same was dishonoured vide bank return memo dated 16.12.2008 with remarks "Funds Insufficient".Complainant immediately contacted the accused in this regard and consequently to discharge part payment of the above said debt, the accused has issued two cheques bearing no. 063831 of Rs. 1,06,80,750/- and cheque no.
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 2 of 26063832 of Rs.50,00,000/- both dated 21.01.2009 in favour of complainant. The complainant presented the second cheque which was also dishonoured for the reason "Funds Insufficient". The complainant again requested the accused to make the payment of the aforesaid debts and also since more than six months had elapsed and since the time the accused had taken the goods, the complainant charged interest thereon for delaying in payment. The accused has accepted the aforesaid offer of the complainant to make the payment of the aforesaid debts and interest thereon, to the complainant. Consequently, the accused issued three cheques bearing no. 063834 for Rs.75,00,000/- dated 13.03.2009, cheque no. 063835 for Rs. 50,00,000/- dated 14.03.2009 and cheque no.063836 for Rs. 50,00,000/- dated 15.03.2009 in favour of the complainant towards discharge of the aforesaid debts. Complainant presented the above said cheques with its banker but the said cheques were also dishonoured with the remark "Funds Insufficient". Thereafter, complainant sent legal notice dated 06.07.2009 to the accused which was received by the accused on 10.07.2009 but same was not replied. The accused has not paid the aforesaid debt of Rs. 1,75,00,000/- till date. Hence, the present complaint.
3. The complainant had led its pre-summoning evidence and examined Sh. Vijay Kumar Khanna, Authorised Representative as CW-1. Evidence by way of affidavit of AR for the complainant had been filed wherein he reiterated and reaffirmed the contents of the present complaint.
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 3 of 264. CW-1 in his testimony had relied upon documents i.e. certified copy of the partnership deed Ex. CW1/1, copy of invoices Ex. CW1/2, copy of statement of account Ex. CW1/3, original cheques bearing no. 063834, 063835 & 063836 Ex. CW1/4, Ex.CW1/5 and Ex.CW1/6 respectively, return memo Ex. CW1/7 (colly), copy of legal notice along with original postal receipts Ex. CW1/8 (colly), original acknowledgment cards Ex. CW1/9, complaint Ex. CW1/A and affidavit Ex. CW1/B.
5. Thereafter accused was summoned vide order dated 17.08.2009 and on being served, notice u/s 251 Cr.P.C. for the offence u/s 138 N.I. Act was given to accused on 01.04.2010 to which she pleaded not guilty and claimed trial.
6. In post summoning evidence, complainant has examined two witnesses. CW1 is the AR for the complainant who tendered his examination in chief by way of affidavit dated 12.08.2009 which was already exhibited as Ex.CW1/B and relied on the documents already exhibited as Ex.CW1/1 to Ex.CW1/9 respectively and was cross examined by counsel for the accused.
CW2 Sh. Surya, Manager HDFC Bank was also examined and he proved statement of account Ex.CW2/A which belongs to accused Radheka Choudhary. This witness was not cross examined.
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 4 of 267. In cross examination, it was admitted by CW1 that he was one of the partner in the complainant firm and was aware of the facts stated in the affidavit. There was one more partner in the complainant firm. He did not remember as to where was the affidavit Ex. CW1/B attested after he had signed the same. His firm was engaged in the business of manufacturing and trading of jewellery and also did the retail business. They grant credit facilities to their clients depending upon who the client was. Accused was known to him as she used to visit his shop regularly as she had bought jewellery in the past. He did not remember the exact time period however, accused had been visiting his shop for the past three years. He further deposed that prior to the subject transaction, the question of giving any credit facility to the accused did not arise as accused did not ask for it and she had paid promptly. When accused approached his shop and asked for credit facility for purchase of jeweleries, he agreed to the same for the reason that accused used to pay him promptly in the past. He did not remember the exact quantity of jewellery purchased by the accused that time however, stated that he could say so after going through the invoices placed on record. He further stated that the entry of the subject transaction after the invoices issued goes to the cash book and the ledger where the particulars are maintained. The ledgers and cash books are maintained on computers as such only the print outs can be produced and which was being produced. There was no register maintained in his shop except the copies of invoices which were placed on record. The ledger accounts of the accused for the period from 01.04.2007 to 31.03.2010 had been audited till the period CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 5 of 26 31.03.2009. The copy of ledger account of Mrs. Radhika Choudhary is Ex.CW3A and copy of ledger account of Ms. Shraeya Radheka Chaudhary is Ex.CW3/A1 and he stated that he could produce the certified copies of the said ledgers audited by his auditors. He admitted that ledgers account of accused Radheka Chaudhary and her daughter were maintained separately. The invoices were issued in the name of accused Radheka Chaudhary and her daughter. After seen invoice dated 18.09.2008 Ex.CW1/2, the witness stated that the price of the item shown was a composite price as in precious jewellery unlike gold they did not go by rate as it was general practice of trade that the regular clients with whom they were dealing, they did not get invoices signed by the client. They just hand over the original invoice to the client and retain the copy of the same. The invoices placed on record of 18.09.2008 and 16.10.2008 were of different dates as the purchased were made on those dates. The credit facility granted to the accused on 16.10.2008 in spite of payments not made in respect of invoices 18.09.2008 as she was having a good reputation with them being their regular client. Volunteered there was no indication in this transaction that she would not pay. There was no hard and fast rule as to the period of credit facility granted to the client. It depends on the individual client and their reputation with the client. In regard to the invoices issued in the name of Shraeya Chaudhary, the items were chosen by the accused and she asked them to raise invoice in the name of her daughter. On payments not being made by the accused, he made telephone calls and visited the house of accused to pursue the payments. She assured him that she would make payment very soon.
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 6 of 26He did not remember the exact amount of the first cheque given by the accused. However, the same was dishonoured on presentation. The first cheque was not in his possession as on dishonour of the same, he again pursued the accused who after taking the first cheque back issued two other cheques. Other two cheques were issued sometime in January, 2009, however, he did not remember the exact dates. Those cheques on presentations were also dishonoured. Thereafter, they again pursued the accused and demanded the money towards the said cheques. Then in March, 2009, the accused issued three cheques of amount of Rs.75 lacs, Rs.50 lacs and Rs.50 lacs respectively. The said amount included the interest with the principle. However, he did not remember the rate of interest charged. He denied that they secured blank cheques from the accused in lieu of grant of credit facility to the accused. The cheques Ex.CW1/4 to Ex.CW1/6 were filled in the hand writing of the accused. He did not remember the exact date and said cheques were given by the accused, however, they were given few days prior to the dates of the cheques. The complainant firm was registered. The transactions with accused were done by him personally and the signatures on the invoices were of him.
8. CW1 in his further cross examination, denied that no jewellery was delivered to the accused and complainant does not maintain any stock register about the stock of the jewellery. However, he admitted that no written purchase order was placed by the accused. Accused selected the jewellery from their shop and the jewellery was delivered to the accused. He further admitted that accused purchased CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 7 of 26 designer jewellery. In their shop, they kept designers jewellery which was selected by the accused. He denied that the jewellery was delivered on earlier occasions were given to accused only after clearance of the cheques. Volunteered sometimes cheques were given along with the jewellery and sometime the cheques were given after the delivery of the jewellery. He denied that jewellery worth Rs. 1 crore 75 lacs was not present in the shop. Volunteered it was available in the shop and the accused selected the same. He further denied that any part of the jewellery was made by the complainant after taking order from the accused. He admitted that in the stated transaction the complainant did not take any cheque from the accused at the time of delivery of the jewellery. He did not remember the date of receiving of cheque from the accused but the cheque were given to the complainant after the delivery of jewellery. The cheque in question were handed over to him. The cheques in question were handed over to him by the accused Ms. Radeka Chaudhary. The delivery of jewellery was made by the complainant to the accused in the month of September and October, 2008. He did not remember in which month the cheques in question were received by him from the accused but it was only after October, 2008. He did not remember the approximate value of previous jewellery, prior to September, 2008, sold to the accused. He was not sure where the first set of cheques were delivered to him. The second set of cheques were delivered to him personally at the home of the accused. The third set of cheques which was the subject matter of the present complaint were delivered to him at the home of the accused. He did not get his stock register audited CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 8 of 26 every year. He denied that the jewellery appearing in the invoices in question was not mentioned in his stock register. He denied that the cheques in question were given to him against orders of jewellery to be delivered in future. He admitted that he did not take any acknowledgment or receipt from the accused regarding the delivery of jewellery to the accused. Volunteered as there was no such trade practice. There was no provision in the invoice for charging the interest on late payment. He had not filed any civil suit for the recovery of the said amount.
9. After closing of complainant's evidence, statement of accused u/s 313 Cr.P.C. was recorded wherein she denied all the incriminating evidence against her and stated that she is innocent and has been falsely implicated in this case. She did not prefer to lead defence evidence. However lateron her application filed u/s 315 Cr.P.C. for allowing herself as defence witness was allowed and she examined herself in defence evidence as DW1.
10. In her examination in chief, she deposed that she had past dealings with Kanjimul (the complainant) and she had purchased in the past some small amounts of jewellary from them and the normal procedure that she had with them was that she would see the jewellary and give the designs since mostly the jewellary she wanted was not available off the shelf. Then on acceptance of order she would give her cheque and after the cheque got cleared they gave the jewellary to her. This was the usual practice with them. She further deposed that CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 9 of 26 around August- Sept. 2008, she had placed an order with them giving them the designs of what she wanted and since it was a very large order, they said they would make the jewellary and the price was quoted and she issued the PDC for the December, 2008 specifying clearly that there was no money in the account and to present on that date only. Unfortunately the money which had to come to her, since, she was doing a property transaction and people owed to her the money never came. So, Mr. Kanjimul, the complainant approached her because he had already presented the cheque in the bank and did not go through. So she told him that she did not have the money and would not be able to make payment but he said that since, the jewellary was specially made for, she had to pick it up. On his insistence and with the hope that money owed to her would come, she issued a second cheque. Since, complainant said that the bank would not accept the earlier cheqaue. So, she issued the new cheque and complainant told her that he had incurred loss and would charge certain amount of interest on the amount, therefore, if she remember correctly, the second cheque given by her was an enhanced figure. The exact amount she did not remember. She further deposed that unfortunately, it did not go through since, the money owed to her still did not come. For the designer jewellary she gave photographs from the magazine. She did not see the jewellary after it was prepared. She never ever received the jewellary or took delivery. She did issue the cheques in question and she had given the design but the jewellary was never given to her. She had not received it till date. She did request to Mr. Kanjimul, the complainant to please sold or gave it to CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 10 of 26 any other customer since, she did not have the capacity to pay because she did not know when the money owed to her would come. After that she did not hear from Kanjimul, the complainant with due respect to them, she only heard when a summon was sent to her residence.
11. During her cross examination, DW1 admitted that the name of her daughter is Shraeya Radeka Chaudhary but the original name is Shraeya Chaudhary and her date of birth is 09.09.1991. She admitted that in September- October 2008, her daughter was minor. She further admitted that she had an account in HDFC Bank, Vasant Vihar, New Delhi. She could not admit or deny the suggestion that she had issued cheque no. 226542 dated 02.12.2008 in a sum of Rs. 62,26,650/- drawn on HDFC Bank, Vasant Vihar in favour of the complainant as she did not remember the exact amount but affirmatively she had issued the cheque in favour of the complainant. The witness was confronted with the document. The witness replied that on that day she was not having her spectacles hence, she could not see the documents.
12. During further cross examination, she stated that probably she purchased jewellery from the complainant firm prior to the transaction in question. Volunteered prior to death of her husband she had not memory regarding the purchase. She did not remember when was the first purchase was made by her. After death of her husband in 2007 she made purchase for which she had the invoices and she CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 11 of 26 issued the cheques. She did not have those invoices but she was carrying ledger statements. She had reflected her ledger statements for the year 2007 in her income tax return but she was not having the income tax return at that time. Her husband died in the year 1999. She further stated that no purchase order was ever made and designs given by her, were torn from the magazine provided by her to the complainant firm but she was not having any proof of the same. Always the purchase order was made on the chit. She denied that there was no normal procedure of placing any order or providing any designs to the complainant while purchasing the jewellery and the jewellery which was purchased by her was picked up from the shelf and was readily available with the complainant. She further deposed that she inadvertently stated that she could show the ledger but it was actually statement of accounts. She had been shown a document Mark D-1 which she admitted that it was detail of three payments made by her to the complainant and not the statement of account. The witness has been confronted with the document Ex.CW3/A. She admitted that the document correctly reflected the purchase of jewellery made by her in the year 2007. She denied that she had neither placed any order nor provided any designs; no chits have ever been provided by her to the complainant; the jewellery which she purchased in September and October 2008 were readily available in the shop of the complainant; she had selected the jewellery available in the shop of the complainant; the invoices were raised on her after she had selected and purchased the jewellery. She did not remember whether the jewellery purchased by her were mentioned in the invoices which are CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 12 of 26 collectively Ex.CW1/2. She denied that she never received delivery of the articles mentioned in the invoices Ex.CW1/2. She was not aware of invoice dated 18.09.2008. She did not know whether the said cheque was issued by her in respect of two invoices no. 113 dated 18.09.2008 and 136 dated 16.10.2008 Ex.CW1/2, the collective amount of which was Rs.62,26,650/-. She admitted that the cheque was returned unpaid by her bank with remark "Funds insufficient" on 16.12.2008. She admitted that she had owed. She maintained that what cheques she had issued to the complainant were issued in good intention. She further deposed that cheques in question were not issued in discharge of any liability. She admitted that the cheques in question were returned unpaid on 26.06.2009 with remarks funds insufficient and that facts was came to her knowledge when complainant told her. She further admitted that she represented to the complainant that her daughter was minor and some amount to be raised in her name. She admitted that she called up Mr. Vijay Kumar Khanna, partner of the complainant and made personal visits requesting not to immediately present the cheques in question and Mr. Vijay Kumar Khanna was already aware of her financial position. She also admitted that Mr. Vijay Kumar Khanna visited her house and she assured him that the payment of cheques in question would be made but subject to realization of her funds from another person. She stated that she had not issued any notice to the complainant conveying that since she had not received the articles mentioned in invoices Ex.CW1/2, therefore did not present the cheques for encashment.
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 13 of 2613. This court heard the final arguments advanced on behalf of the parties and carefully perused the entire record including the testimonies on record as well as also gone through the case law cited by both the sides.
Ld. Counsel for the complainant relied upon judgment cited as AIR 1998 SC 1328 "State of UP Vs. Nahar Singh (Dead) & Others"; 2011 (178) DLT 689 "J.C. Enterprises Vs. Ranganatha Enterprises"; (2004) 4 SCC 399 "State of A.P. Vs. C. Uma Maheswara Rao & Anr."; (2007) 6 SCC 555 "C.C. Alavi Haji Vs. Palapetty Muhammed & Anr"; (2002) 6 SCC 426 "ICDS Ltd. Vs. Beena Shabeer & Anr."; 2011 (3) JCC [NI] 186 " Anil Sachar & Anr. V. Shree Nath Spinners P. ltd. & Ors."; 2010 (4) JCC [NI] 323, "V.S. Yadav Vs. Reena"; (2010) 11 SCC 441 " Rangappa Vs. Sri Mohan"
and 199 (2005) DLT 585 (DB) "Alacs Finanz Ltd. Vs. M/s Oksh Technologies" whereas Ld. Counsel for the accused relied upon the judgment AIR 2006 SC 3366 "M.S. Narayana Menon Alias Mani V. State of Kerala & Anr."; Ishwar Dass Jain (Dead) Through LRs Vs. Sohan Lal (Dead) by LRs, dated 29.11.1999 by Hon'ble Supreme Court and The National Textile Corporation Vs. K.L. Kapadia & Ors. dated 11.05.2012 by Hon'ble Bombay High Court.
14. Section 138 of the N.I. Act has prescribed the punishment for the offence of Dishonour of Cheque. Following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act:-
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 14 of 26 (a) that the cheque was drawn for payment of an
amount of money for discharge of a debt /
liability and the cheque was dishonoured;
(b) that the cheque was presented within the
prescribed period;
(c) that the payee made a demand for payment of
the money by giving a notice in writing to the
drawer within the stipulated period;
(d) that the drawer failed to make the payment
within 15 days of the receipt of the notice.
(e) that the complaint case should have been filed
within one month from the date of receipt of
legal notice.
15. It was held by Hon'ble Supreme Court of India in case titled as M/s Dalmia Cement (Bharat) Ltd. V. M/s. Galaxy Traders and Agencies Ltd., (2001(1) R.C.R. (Criminal) 646) that:-
"The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instrument is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, the trade and commerce activities, in the present-day world, are likely to be adversely affected as it is impracticable for the trading community to carry on with it the bulk of the currency in force. The negotiable instruments are in fact the instruments of credit being convertible on account of legality of being CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 15 of 26 negotiated and are easily passable from one hand to another. To achieve the objectives of the Act, the legislature has, in its wisdom, thought it proper to make such provisions in the Act, for conferring such privileges to the mercantile instruments contemplated under it and provide special penalties and procedure in case the obligations under the instruments are not discharged. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged, lest it may affect the commercial and mercantile activities in a smooth and healthy manner, ultimately affecting the economy of the country".
16. Section 6 of the N.I. Act has prescribed the definition of cheque and cheque is Negotiable Instrument within the meaning of section 13 of the Act. Section 30 of the N.I. Act talks about the liability of the drawer.
17. Section 118 of the N.I. Act talks about presumptions as to consideration, date, time of acceptance, time of transfer, order of endorsement, stamps and holder in due course. Section 139 of the N.I. Act talks about presumption in favour of holder.
18. Section 139 of the N.I. Act deals with presumption of law in CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 16 of 26 favour of the holder of the cheque. It provides that unless the contrary is proved, it shall be presumed that the holder of a cheque received the cheque for the discharge, in whole or in part, or any debt or other liability. It is a rebuttable presumption of law and the burden of proving that a cheque has not been issued for a debt or liability is on the accused.
19. The presumptions u/s 118 and 139 of the N.I. Act are rebuttable and burden is on the accused to rebut the presumption which can be discharged by the accused by preponderance of probabilities. It is well settled law that presumptions u/s 118 and 139 of the N.I. Act have to be rebutted by cogent evidence and mere plausible explanation is not enough.
20. In order to bring home conviction the complainant has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the complainant to prove its case subject to provisions of N.I. Act and in such a manner so as to bring it outside the pale of any reasonable doubt.
21. In the present case, it is the stand of the accused that she had dealings with Kanjimul with regard to purchase of some small amounts of jewellery and the procedure which she adopted was that she would see the jewellery and give the designs, mostly the jewellery she wanted was not available / off the shelf, then on acceptance of order she would give cheque and after encashed the cheque CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 17 of 26 complainant gave the jewellery to her. Around August -September 2008, she had placed an order with complainant giving the designs of what she wanted and since it was a very large order, complainant said they would make the jewellery and the price was quoted and she issued the post dated cheque for the December, 2008 specifying clearly that there was no money in the account and to present on that date only. Unfortunately the money which had to come to her, since, she was doing a property transaction and people owed to her the money never came. Mr. Kanjimul, the complainant approached her because he had already presented the cheque in the bank and did not go through. She told him that she does not have the money and would not be able to make payment but he said that since, the jewellery was specially made for, she had to pick it up. On his insistence and with the hope that money owed to her would come, she issued a second cheque. Since, complainant said that the bank would not accept the earlier cheqaue. So, she issued the new cheque and complainant told her that he had incurred loss and would charge certain amount of interest on the amount, therefore, if she remember correctly, the second cheque given by her was an enhanced figure. However, exact amount she did not remember. She has further taken the stand that unfortunately the money owed to her still did not come and she did not see the designer jewellery after it was prepared for which she gave photographs from magazine and she never received the jewellery or took delivery.
22. It may be seen that during cross examination CW1 CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 18 of 26 produced requisite records i.e. ledger account of Mrs. Radhika Chaudhary Ex.CW3/A, copies of ledger account of Ms. Shraeya Radheka Choudhary Ex.CW3/A1, invoices Ex.CW1/2, cheques Ex. CW1/4 to Ex.CW1/6 which established the delivery of jewellery articles upon the accused.
23. It may be seen that CW1 deposed that accused has purchased designer jewellery and in their shop the complainant keeps designer jewellery, which was selected by the accused and the complainant did not take any cheque from the accused at the time of delivery of the jewellery. Witness also deposed that no acknowledgment or receipt of delivery of jewellery was taken from the accused as there is no such trade practice.
24. It is evident from the record that ledgers and cash books are maintained by the complainant which he could produce but was not asked to produce them. Thus same are presumed to be correct and copies of same are proved as Ex.CW3/A and Ex.CWA1. Further no question of genuineness of invoices Ex.CW1/2 raised at any point of time. Even no suggestions that the details of jewellery contained therein is not correct or the rates mentioned are not the agreed rates or the VAT has not been paid/deposited by the complainant as mentioned in invoices. Hence, authenticity and genuineness of the invoices are proved. Further CW1 stated that the precious jewellery items do not go by the rate but go by a composite price but he was not cross examine on this aspect. It is also proved that the invoices in the name of Ms. CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 19 of 26 Shraeya Radeka Chaudhary were made at the asking and instance of the accused, since Ms. Shraeya Radeka Chaudhary was a minor at that time. It is also admitted fact that the cheques have been filed in the handwriting of the accused and the cheques amount was inclusive of the principal as well as the amount of interest accrued thereupon and handing over the cheques to the complainant by the accused is admitted. CW1 was also not cross examined by the accused on the point that as per the trade practice no acknowledgment or receipt was obtained at the time of delivery of jewellery articles. Selection and delivery of jewellery has been proved and except bald suggestion on delivery of jewellery articles, there has been no cross examination of the witness, rather the answers in affirmative have come in the cross examination, which prove that the delivery of jewellery articles was taken by the accused. The suggestion that cheques were not given at the time of delivery of the jewellery proves the fact that the delivery of the jewellery had actually taken place and answer by CW1 during cross examination dated 13.02.2012 that the delivery of jewellery had taken place in September-October, 2008 has gone unrebutted and controverted.
25. It may be seen that accused in her examination in chief as dated 21.02.2012 admitted issuance of the cheques. She admitted that the cheques were presented in the bank but did not go through. She further admitted that there was no money to make the payment whereas in her examination in chief she deposed that she had given the designs in the photographs of the magazines to the complainant to CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 20 of 26 prepare the jewellery and that the practice between the parties was that on acceptance of order she would give the cheque and after the cheque got cleared, the complainant would give jewellery to her.
26. In her cross examination accused / DW1 admits that she was making purchases in the past, her husband had died in the year 1999 which prove that the accused was making purchases of jewellery prior to the death of her husband and thus an old customer of the complainant. It is stated by the accused that she did not remember whether the jewellery items purchased by her are mentioned in Ex. CW1/2. She admitted that her daughter was a minor in September- October, 2008. She further admitted that she had given instructions to the complainant that part of the invoices should be raised in the name of her daughter. She further admitted that whatever cheques, have been issued by her, signed by her and given to the complainant are genuine. She further admitted that she 'owed the money. She also admitted that CW1 made personal visits to her after dishonour of the cheques.
27. It may be seen that the accused had issued three successive set of cheques i.e. series of cheques to the complainant, one after the another in lieu of the dishonoured cheques, fresh cheques were issued and after the first cheques was dishonoured, accused issued two fresh cheques and after its dishonoured the accused issued further three fresh cheques, which were also dishonoured and the same are subject matter of this complaint.
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 21 of 2628. It may be further seen that if the cheques were not good, valid or for consideration, there was no question of the accused issuing fresh cheques in lieu of the previously dishonured cheques. No normal or prudent person would issue series of cheques in succession, if there was no transaction between the parties and if there was no liability or debt to be discharged. If the cheques were not meant to be presented and were presented by some mischief, by the holder of the cheque, then the first reaction of any prudent person, being drawer of the cheque, would be to immediately issue some notice or letter, seeking explanation from the holder of the cheque as to why the cheque was presented, immaturely or before the contingency of presentation of the cheque had arrived. In such situations, instead of issuing fresh cheques, the normal reaction would be to ask the holder of the cheque to return the cheque to the drawer. However, no action was taken by the accused by issuing any notice to complaint or filing of any case which inaction of the accused is contrary to the common course of human conduct. Reliance is placed on the judgment reported in (2004) 4 SCC 399 "State of A.P. Vs. C. Uma Maheswara Rao and Another", wherein it was held by the Hon'ble Supreme Court that :-
"14. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moultion, L.J. In Hawkins Vs. Powells Tillery Steam Coal Co. Ltd. observed as follows:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 22 of 26 would induce a reasonable man to come to a particular conclusion."
15. The said observation .....
16. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled."
29. In the case in hand, the complainant had presented all the successive cheques issued by the accused in discharge of a liability, for encashment, which cheques got dishonoured and thereafter, the matter was taken up by the complainant with the accused and the accused was informed of dishonur of the cheques. If the cheques were not meant to be encashed, then the accused would have reacted and taken some recourse to process of law and would have sought her cheques back, but in the present case, there was no reaction by the accused. Such conduct and behaviour of the complainant of having not taken any action, which any prudent person would have done, raises presumption that she had taken the delivery of the articles of jewellery and that she had a liability towards the complainant and the cheques in question were issued in discharge of such liability. As accused CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 23 of 26 admitted that she had not issued any notice conveying to the complainant that she has not received the articles mentioned in the invoices or that the complainant was not supposed to present the cheques for encashment. She did not file any complaint or any case against the complainant when she came to know that the cheque were presented for encashment and have been returned dishonured by her bank. Accused in her cross examination admitted that there was good relationship between the parties and there was a trust and such good relation and trust did not require any acknowledgment and endorsement on the invoice.
30. Further accused has taken the stand that the complainant has misused cheques in question. This stand of the accused is not tenable as she has neither proved her contention nor approached any police station, official or the court of justice for any complaint against the alleged act of complainant. She neither intimated the said fact to her banker nor stopped the payment of the cheques in question with the said alleged reason. Therefore, said stand taken by accused seems to be an after thought and not helping to the accused in any manner.
31. Further, it is the stand of accused that she had not received legal notice whereas in her cross examination dated 17.05.2012 she admitted that her two addresses on the legal notice are correct and it is settled law that when a notice was sent by registered post, by correctly addressing the drawer of the cheque therefore in view of the provisions CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 24 of 26 of Section 27 of Evidence Act the accused shall presume to be served. Moreover, mandatory requirement of issue of notice in terms of Clause
(b) of proviso to Section 138 of the N.I. Act stands complied with. In this regard I am supported with judgment reported as (2007) 6 SCC 555 "C.C. Alavi Haji Vs. Palapetty Muhammed and Another".
32. Further the accused had taken over the liability of payment in respect of invoice raised in favour of her daughter Ms. Shraeya Radeka Chaudhary, at her asking and on her insistence and in the present case the accused had taken over the liability of her minor daughter. In this regard, I am also supported with judgment relied on by counsel for complainant reported as (2002) 6 SCC 426 "ICDS Ltd. Vs. Beena Shabeer and Anr.", wherein it was held by the Hon'ble Supreme Court that the liability u/s 138 includes other liability as well.
33. In the present case, the complainant has led cogent, reliable and convincing evidence; the liability of the accused has been proved; the issuance of cheques in discharge of liability has been proved; the cheques were dishonoured and notice was duly sent upon the accused. The accused failed to pay the cheques amount within the stipulated period. The accused on the other hand, has not been able to rebut the presumption. So far as judgment relied by counsel for the accused are distinguished in the facts and circumstances of the present case.
34. Since, CW-1 in his evidence by way of affidavit CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 25 of 26 categorically and elaborately described as to how offence u/s 138 of the N.I. Act had been committed by the accused. The complainant has duly proved on record the cheques, returning memos and legal notice. In the cross-examination of CW-1, no material inconsistency has been surfaced except some minor ones which are but natural. The present complaint of the complainant is well within the period of limitation as prescribed in the N.I. Act.
35. In view of the aforesaid discussion, this court is of considered opinion that the complainant has successful in establishing its case against the accused beyond reasonable doubt.
36. Hence, in view of the aforesaid back ground, this court is held that accused Radeka Chaudhary has committed the offence punishable under Section 138 of the Negotiable Instruments Act. Accordingly, I hold accused Radeka Chaudhary guilty for the offence punishable u/s 138 Negotiable Instruments Act. Let she be heard on the point of sentence.
Announced in the open court (LALIT KUMAR)
on 26.08.2013 ASCJ/JSCC/GJ/ MM
(This judgment contains twenty six pages New Delhi District,PHC,
and each page bears my signatures) New Delhi
CC No. 33/09/12 Kanjimull Vs Radeka Chaudary Page 26 of 26