Delhi District Court
Aneja Communications vs Sandeep Malik Cc 4319/2017 on 30 March, 2022
Aneja Communications vs Sandeep Malik CC 4319/2017
IN THE COURT OF MS AISHWARYA SINGH KASHYAP,
METROPOLITAN MAGISTRATE (NI ACT),
KARKARDOOMA COURTS, DELHI
Aneja Communications Vs Sandeep Malik
CC No 4319/2017 [Krishna Nagar]
CNR Number: DLET020085442017
Aneja Communications
Through its Proprietor Mr Sanjeev Aneja
F-3/33, Krishna Nagar, Vijay Chowk
Delhi-110051 .......... Complainant
Vs
Sh. Sandeep Malik
R/o 4/154 & 4/155 Old Tezab Mill, Opposite Vaishnu Devi
Mandir, Shahdara
New Delhi-110032 .......Accused
Date of Original Institution: 18.12.2017
Offence alleged: Section 138 Negotiable Instruments
Act, 1881
Plea of the accused: Pleaded not guilty
Final Order: Acquittal
Date of Decision: 30.03.2022
Argued By:
Ld. Counsel for the Complainant- Shri Hemant Shah
Ld. Counsel for the Accused- Shri Parveen Malik
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Digitally signed by AISHWARYA
AISHWARYA SINGH KASHYAP
SINGH KASHYAP Date: 2022.03.31 01:30:28
+05'30'
Aneja Communications vs Sandeep Malik CC 4319/2017
JUDGEMENT
Factual Matrix
1. The complaint is based on alleged facts that Mr Sanjeev Aneja proprietor of M/s Aneja Communications, distributor of inter-alia Apple Mobile Phones (I-Phones) (hereinafter 'the complainant') was approached by Mr Sandeep Malik (hereinafter 'the accused') for purchase of I-phones for further sale. Purchase orders were placed from time to time for supply of I-Phones and invoices were raised accordingly. Goods were supplied to the accused; they were also supplied at the address provided by the accused person. They were duly received and acknowledged by the accused person. In discharge of his legal liability, the accused issued a cheque in favour of the complainant bearing no. 250114 for an amount of Rs 12 lacs, dated 23.10.2017, drawn on ICICI Bank, Sadar Bazar Branch, Delhi-110006 (hereinafter, 'the cheque in question'). Upon presentment, the cheque in question was dishonoured with remarks "Drawer Signature Differs" vide return memo dated 24.10.2017. The complainant served the legal demand notice on the accused dated 08.11.2017. Reply to the Legal Demand Notice is dated 18.11.2017. On failure of the accused to pay the amount within 15 days, the complainant filed the instant complaint within the period of limitation for committing the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter 'The Act').
Pre-summoning Evidence, Cognizance and Notice
2. Pre-summoning evidence was led by the complainant and the Ld. Predecessor took cognizance and issued summons vide 2 of 15 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:31:01 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 order dated 16.02.2018. The accused entered appearance and notice under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter, 'CrPC') for the offence under Section 138 was served upon accused on 21.05.2019, to which he pleaded not guilty and claimed trial.
I do not plead guilty and claim trial.
Plea of defence of the accused.
1. It is correct that the cheque in question bears my bank account number. However, I had not filled the body of the cheque.
2. I had given the cheque in question to the complainant as I had demanded loan of Rs. 1,00,000/- from the complainant. Therefore, the complainant demanded a blank cheque from me for security purpose. However, neither the loan was provided to me nor my cheque was returned to me. I have no liability towards the complainant.
3. I received legal demand notice issued by the complainant and I had duly replied to the same.
Admission / denial of documents u/s 294 CrPC. I do not admit Ex. CW1/A.(Invoice).
Complainant's Evidence
3. During the trial, the complainant has led the following oral and documentary evidence against the accused to prove his case.
Oral Evidence
I. CW1: Complainant on 16.09.2019 and 25.02.2020
Documentary Evidence
I. Ex. CW1/A: Invoice
II. Ex. CW1/B: Cheque in Question
III. Ex. CW1/C: Return Memo
VI. Ex. CW1/D: Legal Demand Notice
V. Ex. CW1/E: Postal Receipt
VI. Ex. CW1/F: Copy of Tracking Report
VII. Ex. CW1/G/X: Reply to the Legal Demand Notice VIII. Ex. CW1/1: Evidence by way of Affidavit 3 of 15 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:31:15 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 Statement of Accused
4. Thereafter, in order to allow the accused to personally explain the circumstances appearing in evidence against him, his statement under Section 313 CrPC was recorded without oath on 18.01.2021. Therein, the accused denied all the allegations against him and stated as hereunder:
1. I have friendly relation with the complainant. I had a shop of Cosmetics in Sadar Bazar and used to frequent Krishna Nagar as well. My friend wanted to buy a mobile so I went to the shop of complainant and we developed friendly relation (myself and complainant).
2. I have nothing to do with mobile phones as business. I sought a loan of Rs.1 lakh from the complainant and complainant agreed to provide the same against the present cheque which I gave to them in blank and signed.
3. I received the legal demand notice and also replied to the same.
4. I gave the cheque in question as security.
5. When I demanded back the cheque, the complainant told me that I need not worry and I believed them. The chque in question was deposited with them around 5-6 years back which has been misused in the present case.
6. Yes, I want to lead defence evidence and want to enter the witness box.
Defence Evidence Oral Evidence I. DW1 Sandeep Malik on 19.03.2021 and 27.11.2021.
5. The accused lead the aforesaid evidence in his defence after his application under Section 315 CrPC was allowed and the matter was listed for final arguments. Ld. Counsel for the complainant advanced arguments placing reliance on the presumptions in his favour under Section 118 read with Section 139 of the Act. He further submitted that reply to the legal demand notice simply stated that the cheque in question was misused whereas an improved defence was taken during the trial that the cheque in question was given as security for loan 4 of 15 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:31:29 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 purposes. It is further contended that the accused has falsely submitted that the cheque was given as security in 2013 since the cheque itself bears the year 2014 on its face. He submitted that the defence is sham since the accused never instructed his bank to stop payment or filed a complaint against alleged misuse of cheque.
6. Per contra, Ld. Counsel for the accused has disputed the very factum of the complainant being a distributor of I-Phones in the absence of documentary evidence in this respect. He further questioned the existence of transaction and the claim of frequent business between the parties in the absence of corresponding bills/account statement. Delivery of the goods is disputed by the accused whilst questioning the furnishing of computer generated Transporter Bill Ex. CW1/A by the complainant without a 65B Certificate as per the Indian Evidence Act,1872. The matter was reserved for judgement after hearing rival submissions on both sides.
Legal Position
7. In order to establish the offence under Section 138 of the Act, the prosecution must fulfil all the essential ingredients of the offence, as highlighted hereunder.
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity; Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank 5 of 15 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:31:44 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank; Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of the cheque from the bank; Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
8. Further, all the conditions stipulated under Section 142 of the Act must be satisfied. The complainant claims in the present case that he prima facie satisfies all the aforesaid conditions. However, the accused has disputed the fulfilment of the second ingredient. The same is being considered hereinafter.
Appreciation of Evidence Standard of Proof
9. The scales of degree of proof required in a cheque dishonour case have been set by the Hon'ble Supreme Court in Rangappa vs Sri Mohan (2010) 11 SCC 441 holding that once the cheque and signatures are admitted, presumptions in favour of the complainant are raised. However, said presumptions are rebuttable in nature and the 'standard of proof' required on part of the accused is that of 'preponderance of probabilities'. This can be achieved either by adducing evidence in defence or by raising probable defence whilst relying on the evidence already on record. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the 6 of 15 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:31:57 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence. 1 The accused has raised a consistent and probable defence in the instant case by raising doubt over the existence of transaction/legally enforceable liability/ the version version put forth by the complainant. Absence of Legally Enforceable Debt/Liability and Adducing Probable Defence
10. The second ingredient is the primary point of contention in the present case wherein, the accused has denied the existence of any liability towards the complainant. Herein, the accused has raised a defence wherein he submitted that no transaction ever took place between him and the complainant i.e. no goods were supplied to him thus denying the existence of any liability. In- fact, he submitted that the cheque in question was given as security against proposed loan of Rs 1 lakh from the complainant although the loan amount was never disbursed. It is clear that a person cannot be compelled to produce negative evidence in his/her defence. Thus, the accused must rebut the statutory presumptions on the basis of preponderance of probabilities in order to raise doubt over the existence of debt/liability. This view was reinforced by the Hon'ble Supreme Court in M/s Kumar Exports vs M/s Sharma Carpets AIR 2009 SC 1518 wherein, the court held as under:
The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory 1 Basalingappa vs Mudibasappa (2019) 5 SCC 418.
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Digitally signed by
AISHWARYA AISHWARYA SINGH KASHYAP
SINGH KASHYAP Date: 2022.03.31 01:32:10 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the Complainant in a criminal trial...To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.2 This has further been elaborated in Rangappa (supra) holding that:
Under Section 118(a) of the NI Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."3 Therefore, the existence of legally enforceable liability has been challenged by the accused on several grounds discussed hereunder upon raising of probable defence. Admissibility of Ex. CW1/A i.e. Computer Generated Invoice
11. The proof of second ingredient i.e. existence of liability between the parties is hinged on the existence of transaction i.e. purchase of mobile phones by the accused against the alleged oral order reflected via a computer generated invoice i.e. Ex. CW1/A. The Ld. Counsel for the accused has raised objection to the admissibility of the Computer Generated Invoice Ex CW1/A on the ground that neither it is accompanied by a proper 65B Certificate as per the mandate of the Evidence Act nor it bears any receiving of the accused as proof of delivery. On the other hand, Ld. Counsel for the complainant has submitted that this objection with respect to the admissibility of the 2 Paras 11 and 12.
3 Para 23.
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Digitally signed by
AISHWARYA AISHWARYA SINGH KASHYAP
SINGH KASHYAP Date: 2022.03.31 01:32:25 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 document cannot be taken at a belated stage of final arguments, whilst placing reliance on the fact that the document has not been disputed by the accused. Firstly, the accused had indeed disputed/did not admit Ex. CW1/A whilst his admission/denial was recorded during serving of notice under Section 251 CrPC itself. Therefore, it cannot be said the computer generated invoice Ex. CW1/A is deemed admitted by the accused.
12. Secondly, on 10.03.2022, Ld. Counsel for the complainant filed "Further Written Submissions" along with "Annexure I" and their perusal reveals that said Annexure I is a 65B Certificate sought to be taken on record as per Section 311 CrPC. Said documents were e-mailed on the official e-mail ID of this court as well as furnished physically on 11.03.2022 - the physical copy is tagged on the judicial record (last page). However, in addition to the fact that a proper application under Section 311 CrPC has not been moved by the complainant in order to take on record the said certificate, it is important to highlight the fact that said 65B Certificate itself is not the original/is a printed/scanned copy of the original, not bearing the signature of the complainant in original, thus it is inadmissible at the very outset.
However, even assuming, arguendo, Ex. CW1/A as an admissible document, it is rendered an unreliable document and does not come to the aid of the accused for the reasons mentioned hereinafter.
No Proof of Supply of Goods/I-Phones to the Accused
13. Against the aforesaid backdrop wherein the accused has confronted the complainant with the existence of any 9 of 15 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:32:41 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 transaction/liability between them, the proof of supply of 44 I- Phones is germane to the existence of liability in the instant case. Evidently, the complaint itself is silent on details of the alleged order placed by the accused i.e. date and mode of delivery, or the statement of accounts or the proof of delivery. Whilst (the disputed) computer generated invoice Ex CW1/A was furnished by the complainant, it is admitted by the complainant himself that the same was not signed by either the accused or his representative. The relevant excerpt of his testimony is being reproduced hereunder:
I cannot produce the seller the copies pertaining to the previous transaction with the accused. The mobiles were supplied by hand as accused used to come to take the same. No receiving was ever taken against the handing over of mobile. The accused used to make the payment to me in cash against the mobile purchased that is why I cannot show any record to show that payment was made by the accused to me for previous transaction. It is correct that the bills raised do not bear the receiving of the accused...I do not have any other acknwledgment of the accused pertaining to the mobile purchased in question.4
14. Further, Ex. CW1/A reflects that it is a "DUPLICATE FOR TRANSPORTER" whereas the complainant in his cross-examination deposed as under:
I handed over the invoices which were issued to the accused against the mobile purchased. The record of these bills are with the accused only. The bills are generated in two copies. One is for the purchaser and other is for the seller. I cannot produce the seller the copies pertaining to the previous transaction with the accused. The mobiles were supplied by hand as accused used to come to take the same. No receiving was ever taken against the handing over of mobile.5 Therefore, in light of the fact that the 4 Cross Examination of CW1 on 25.02.2020.
5 Ibid.
10 of 15 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:32:56 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 complainant himself deposed that only two copies of the invoices were generated i.e. one the seller and purchaser each, and the goods were delivered to the accused by hand, no question arises for generation of an invoice duplicate for a transporter. Thus, the computer generated invoice Ex. CW1/A is an unreliable document and cannot be read in evidence.
15. For the aforesaid reasons, no reliance can be placed on the invoice Ex. CW1/A in the absence of other supporting cogent evidence. Once, the accused questioned the transaction/supply of I-Phones, it was imperative on the part of the complainant to bring on record such documents/evidence that could support his claim. In the absence of such evidence, the defence of the accused stands probablized as held in M/s Hi-Tech Automation vs J.K.Sharma6 wherein the court held as under:
When a person claims that no material has been supplied to him, it is impossible for him to give evidence of such a negative fact. The burden was upon the complainant to duly prove the supply of material to the accused qua invoice Ex.C2. In order to prove the same, he produced the copy of invoice dated 4.11.2008 Ex.C2. A bill is a document which is capable of being prepared unilaterally by one party and the mere production of a bill is not sufficient to prove the supply of material and some more evidence is required. The complainant has neither produced any purchase order nor any goods receipt in respect of their supply. In the complaint, he has categorically claimed that material qua invoice Ex.C2 was supplied to the accused along with form ST38 accompanied with the consignment. The said form ST38 has also not been produced on record. Furthermore, no stock register has been produced by the complainant in order to show that indeed he was in possession of the material shown in the bill Ex.C2 as on the relevant date i.e. 4.11.2008 and the stock register of subsequent dates to show that such material was taken out of his firm. However, this Court is mindful of the fact that in his cross examination, the complainant has stated that accused had himself taken the material in his own transportation vehicle. In this respect, it may be noted that apart from his own interested testimony, the complainant has not examined any other independent witness who 6 2014 SCC OnLine P&H 17317.
11 of 15 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:33:11 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 could have duly proved and corroborated the said fact. In such circumstances, it will not be safe to solely rely upon the copy of bill Ex.C2 itself to presume the supply of material to the accused.
Resultantly, the complainant has failed to duly establish the supply of material to the accused qua bill Ex. C2 and the accused has succeeded in rebutting the presumption under Section 139 of the Act and consequently, it cannot be said that the cheque in question had been issued by the accused in favour of the complainant in discharge of his existing debt or liability.7 Material Inconsistencies
16. It must be borne in mind that in conjunction with the fact that the existence of liability/transaction between the parties is in question, the version put forth by the complainant is riddled with material inconsistencies. Whilst the complaint states that the parties were engaged in business over a long duration and several transactions took place between them against several orders,8 the complainant failed to substantiate his claim during his cross- examination and expressed inability to produce a single document/account statement proving any previous transactions between the parties (other than disputed Ex. CW1/A).
Accused has been coming to me as a customer since 2004. He always used to purchase mobile phones from me from several years.
In October, 2017 accused approached me for purchase of I- phones. At that time, I was not awared what business the accused was doing. I do not remember the exact number of transaction took place between me and the accused because there were many transations. The purchase order by the accused was given orally. No purcahse order was given in writing. I do not have any record with respect to the transactions between me and the accused except the present transaction.
XXX I have the record of purchasing of mobile phones by me from the dealer. I am not sure whether I can produce the record or not as my shop is closed now. It is wrong to suggest that I had never purchased any mobile phones from the dealer that is why I am not sure to produce the record of the same. 7 Para 25.
8 Para 3 of the Complaint.
12 of 15 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:33:27 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 Being the proprietor of the complainant firm, I used to receive the payment of the goods in the name of my firm (vol. Sometimes, I used to receive payment in my name). I had not maintained any ledger with respect to transaction vis-a-vis me and other buyers.9 The witness further deposed as under:
The cheque in question was handed over by the accused to me against the mobile purchased. I do not have any other acknwledgment of the accused pertaining to the mobile purchased in question. I cannot show the purchase bills of any mobiles including mobile in question as my shop is already closed. The cheque in question was handed over to me at the time of delivery of mobile phone.10 Therefore, it is improbable to believe the version put forth by the complainant. Instead, the defence put forth by the accused is probable that no legally enforceable liability existed on the day of presentation of the cheque.
17. In the present case, after considering the totality of the facts and circumstances along with the evidence available on record, it becomes clear that the accused has successfully raised a probable defence in his favour by rebutting the assumed presumptions in favour of the complainant (keeping in mind that the second ingredient has not been fulfilled). The complainant has not been able to prove all the essential ingredients of the offence i.e. existence of transaction/purchase of forty four I- Phones/legally enforceable liability qua the accused.
18. After raising of probable defence based on material available on record, the onus shifted on the complainant to prove the existence of transaction/legally enforceable liability.
However, since the complainant has failed to discharge this 9 Cross Examination of CW1 on 16.09.2019. 10 Cross Examination of CW1 on 25.02.2020.
13 of 15 AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:33:44 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 burden, his objections with respect to the defence of the accused are inconsequential. Once the existence of transaction was questioned by the accused, it was incumbent upon the complainant to prove his claim on the basis of cogent documentary evidence. It is improbable to believe that an I- Phone distributor (as claimed by the complainant himself) would not carry a single documentary evidence to prove his distributorship or keep the record of sale of 44 I-Phones to an alleged repeat customer/patron. It is further improbable to believe that forty four brand new I-Phones along with their packaging would be delivered by hand without any receiving/acknowledgement. On account of the aforesaid, the complaint cannot be sustained in the eyes of law. No justification is forthcoming with respect to the failure of the complainant to bring on record cogent evidence in his support. On the contrary, glaring loopholes in the version of the complainant do not inspire any confidence before the court; his testimony rests on shaky grounds and his version cannot be relied upon. The complainant has not approached the court with clean hands.
19. Therefore, the complainant has failed to successfully prosecute his complaint under Section 138 of the Act as the complainant has failed to prove the existence of legally enforceable liability against the accused.
Decision
20. In view of the aforementioned discussion, the accused has successfully raised a probable defence on the touchstone of preponderance of probabilities and the complainant 14 of 15 Digitally signed by AISHWARYA AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:34:00 +05'30' Aneja Communications vs Sandeep Malik CC 4319/2017 has failed to prove the existence of legally enforceable liability/the second essential ingredient of Section 138 of the Act. Accordingly, the complaint is dismissed and the accused is hereby acquitted of the charge of the offence punishable under Section 138 of the Act.
ORDER: Acquitted Accused shall furnish personal bond and surety bond as per the mandate of Section 437A CrPC upon which previous bonds shall be cancelled and previous surety shall be discharged.
Announced in Open Court on 30.03.2022.
(This judgement contains 15/Fifteen signed pages.) AISHWARYA Digitally signed by AISHWARYA SINGH KASHYAP SINGH KASHYAP Date: 2022.03.31 01:34:17 +05'30' (Aishwarya Singh Kashyap) MM/NI Act(East)/KKD Courts/Delhi 30.03.2022 15 of 15