Delhi District Court
M/S. The Great Indian Craft vs . Vakil Khan Cc No. 5002848/16 Page No. ... on 30 April, 2019
IN THE COURT OF MS. PRIYANKA RAJPOOT, METROPOLITAN MAGISTRATE,
SOUTH-WEST DISTRICT/DWARKA COURT/DELHI
CC No.5002848/16
M/s. The Great Indian Craft
Through its Proprietor
Akhilesh Kumar Singh
Plot No. 78, 2nd Floor, Amar Plaza,
Bijwasan
Delhi-110061
............Complainant
Versus
Vakil Khan
E-241, Street No. 9,
Shastri Park,
New Delhi .............Accused
JUDGMENT
(1) Name of the complainant, : M/s. The Great Indian Craft
parentage and address Through its Proprietor
Akhilesh Kumar Singh
Plot No. 78, 2nd Floor, Amar Plaza,
Bijwasan
Delhi-110061
(2) Name of accused, : Vakil Khan
parentage and address E-241, Street No. 9,
Shastri Park,
New Delhi
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 26.07.2016
M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 1/10
(6) Date of reserve of order : 18.04.2019
(7) Date of Final Order : 30.04.2019
(8) Final Order : Conviction
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
That the complainant is the proprietorship concern of Sh. Akhilesh Kumar Singh and it is engaged in the business of sale and installation of various interior and exterior flooring, s.s work, cladding, wooden and glass work etc. The accused approached the complainant for supply of high pressure laminates (HPL) and placed the order @ Rs.370/- per sq. feet and also paid Rs.50,000/- as booking amount. The complainant had supplied 880 sq. feet HPL to the accused, which was duly received by the accused and/or his representative. The complainant had also issued invoice of Rs.3,66,300/- for the material supplied to him. In discharge of part liability, the accused issued a cheque bearing no. 018299 dated 05.03.2016 for a sum of Rs.50,000/- drawn on Central Bank of India. On presentation, the cheque was returned unpaid with the remarks "funds insufficient" vide returning memo dated 02.05.2016. Thereafter, the accused had sought time to arrange money. On the instruction of the accused, the complainant again presented the cheque but it was returned unpaid for the reasons 'funds insufficient' by the banker alongwith returning memo dated 01.06.2016. The complainant issued a legal notice dated 10.06.2016 to the accused through his counsel by way of speed post. Despite service of the legal notice, the accused neither gave reply to the same nor paid the cheque amount within stipulated time. Thereafter, complainant filed the present case with the submission that accused be summoned, tried and punished according to law.
M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 2/10
3. In his pre-summoning evidence, complainant examined himself on affidavit Ex. CW-1/1. Hereiterated the contents of complaint and placed on record, cheque bearing no. 018299 dated 05.03.2016 for a sum of Rs.50,000/- drawn on Central Bank of India as Ex. CW-1/A, cheque returning memos dated 02.05.2016 & 01.06.2016 Ex. CW1/B & Ex. CW-1/B1 respectively, legal notice Ex. CW-1/C, postal receipt as Ex. CW-1/D, tracking report as Ex. CW-1/E, quotation/order form Ex. CW1/F, delivery challans Ex. CW1/G (colly), retail invoices Ex. CW1/H (colly) and copy of certificate of registration of sales tax is Mark-A.
4. Upon appreciation of pre-summoning evidence, accused was summoned for an offence punishable under Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused on 21.02.2017 to which he pleaded not guilty and claimed trial. He took the defence that the cheque in question was given by him to the complainant as advance payment for purchase of timber/HPL. He further stated that the complainant did not supply the said material to him and misused his cheque. He denied his liability towards the complainant. He admitted his signatures on the cheque in question. However, he denied having filled in the contents therein. He denied receiving of legal notice.
5. Thereafter, the complainant was examined, cross-examined and discharged. The complainant deposed that on 19.02.2016, the accused gave a cheque of Rs.50,000/- which was cleared in his account and the entry of the same is reflected in his statement of account i.e. Mark-A (filed by him on 19.02.2016 alongwith certificate u/s 65-B of Indian Evidence Act Ex. CW1/A1). During cross-examination, the complainant stated that the cheque as shown in entry dated 19.02.2016 in Mark-A was given to him by the accused against the goods supplied by him to the accused. He stated that he is the proprietor of M/s Great Indian Craft. He stated that the material was supplied to the accused as per the written agreement Ex. CW1/F which was a quotation supplied to the accused. He stated that material was supplied to the accused in February 2016 but he could not recall the exact date. He stated that the material was supplied through a transporter. He stated that he does not know the name of the transporter of the vehicle. He stated that the delivery challan Ex. CW1/G (colly) was signed by the recipient. He stated that the cheque in question was handed over by the M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 3/10 accused at his residence in March 2016 but he could not recall the exact date. He stated that it was given on the date mentioned in the cheque. He again said that it was given before the date mentioned therein. He stated that the particulars in cheque in question were filled by the son of the accused as the accused does not know how to write in English. He denied the suggestion that the cheque in question was given as security. He denied the suggestion that he has misused the cheque in question. He denied the suggestion that Rs. 50,000/- was given to him in cash.
6. On 29.08.2017, statement of accused under Section 281 Cr.P.C. read with Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to him to which he took the same defence was taken by him at the time of framing of notice. He also stated that there is a liability of Rs.50,000/- towards the complainant and he is ready and willing to pay the said amount. He further stated that apart from Rs. 50,000/- he does not have any liability towards the complainant. He admitted receiving of legal notice. The accused preferred to lead defence evidence.
7. In defence evidence, the accused examined himself as DW-1 and deposed that the complainant had approached him through Rattan Singh and they had a discussion with regard to installation of sheets in front of Sh. Rattan Singh and Sh. Abrar. He deposed that the complainant had taken measurement of front area of his house and had given a quotation of Rs.1.80 lakhs. He deposed that he had made the aforesaid payment in entirety. He deposed that he had paid the aforesaid payment in part and the same was duly entered into his diary in the writing of the complainant. He placed on record the copy of said diary as Ex. DW1/A (OSR) (colly). He deposed that as per the entries in the diary, he had given two cheques to the complainant. The first was given on 18.02.2016 and another was on 05.03.2016. He deposed that the complainant proposed to do further construction work in his house and the cheque in question was given towards the payment of said amount. He deposed that the complainant did not supply the material and did not do the work. He deposed that he tried to negotiate with the complainant but the complainant presented the cheque in question. He deposed that since there was no liability towards the complainant, he had instructed his bank to stop the payment of the same. During his cross- examination, he deposed that the quotation of Rs.1.8 lakhs given by the complainant M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 4/10 is Ex. CW1/F. He admitted that the work agreed to be done was extended beyond what is mentioned in Ex. CW1/F. He stated that the complainant was required to supply the material and to perform the installation. He denied the suggestion that as per quotation, the complainant had to supply material. He admitted that as per Ex. DW1/A, the work was done worth Rs.2,78,240/-. He stated that he does not know whether the calculation entered in his diary was without sales tax. He admitted that on the second page of the calculation sheet Ex.DW1/A (OSR) (colly), it is mentioned that the cheque of Rs.50,000/- was given by him on 05.03.2016. He admitted that according to Ex. DW1/A an amount of Rs. 42,440/- was outstanding, if the complainant had supplied the material. He deposed that the complainant had supplied the material twice. He could not recall whether the complainant had supplied 23.5 sheets on one occasion and 4 sheets on second occasion. He denied the suggestion that the material apart from the material mentioned in the quotation was supplied by the complainant. He stated that the material was supplied by the complainant on two different dates. He stated that the material supplied on the first date was defective and the same was completely replaced by the complainant. He could not say whether the material was supplied vide delivery challan dated 02.02.2016 and 20.02.2016. He denied the suggestion that the material supplied by the complainant was not defective and was never replaced. He denied the suggestion that he is liable to pay billing amount of Ex. CW1/4 (colly).
8. Thereafter, final arguments were addressed on behalf of both the parties.
9. I have considered the rival submissions of the parties and perused the entire evidence led by the complainant as well as by the accused.
10. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 5/10
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
11. The Act raises two presumptions in favour of the holder of the cheque i.e. complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides : "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
12. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 6/10 under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
14. In the present case, the accused has admitted in the notice under Section 251 Cr.P.C. that the cheque in question bears his signatures and he issued the same in favour of the complainant. Reference can be made to judgment of Apex Court in Rangappa v. Mohan, [AIR 2010 SC 1898] that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
15. It means that in the present case the onus is upon the accused to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was given by him to the complainant as advance payment and not in discharge of liability is not sufficient to rebut the presumption.
16. This court is of the opinion that the accused has failed to rebut the presumption of law arising in favour of complainant. The accused has taken contradictory stand at different stages. At the time of framing of notice u/s 251 Cr.PC, it was stated by him that the complainant did not supply the material i.e. timber/HPL whereas during his cross-examination dated 23.10.2018, he deposed that the complainant had supplied him material two times but alleged that the goods were defective goods. At the time of recording of statement u/s 313 Cr.PC, he admitted his liability of Rs. 50,000/-
M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 7/10 towards the complainant whereas at the time of defence evidence, he deposed that he had made the entire payment i.e. Rs.1.8 lakhs to the complainant and there is no liability toward the complainant. Thus, the inconsistent pleas taken by the accused at different stages is sufficient enough to infer that he has failed to rebut the presumption. Another fact which is to be noted is that the cheque in question was presented by the complainant twice i.e. on 02.05.2016 and on 01.06.2016. The reason for dishonour of the cheque both the times was "Funds Insufficient". Thus, the accused ought to have become aware of dishonor of cheque after first presentation and if his version is true, he ought to have taken some action against the complainant regarding the same. No explanation has been given by the accused as to why he did not issue stop payment instruction, if the cheque was retained by the complainant unlawfully. There is no explanation given by the accused as to why no notice was sent by the accused when the complainant did not return his cheque. There is also no explanation as to why no complaint was filed against the complainant for alleged misuse. The accused has not also stated any reason for not taking any acknowledgment of the cheque which were allegedly given by him in advance. It is unbelievable that a person would remain mum without taking any action against the person who has misused his cheque. Thus, the version of the accused does not inspire confidence of the court. In the absence of cogent evidence to support the same, it can not be accepted.
17. It was argued by Ld. Counsel for the complainant that there is no document on record to show that the complainant had supplied the material as alleged in the complaint. He further submits that the invoices and delivery challans filed by the complainant do not bear signatures of the accused and thus, there is no proof that goods were supplied to the accused. I do not find any substance in the submission of Ld. Counsel for the accused. In the case of B.M. Basavaraj v. Srinivas S. Datta (IV(2016) SLT 155), Hon'ble Supreme Court of India has set aside the order of trial court and the Hon'ble High Court that had acquitted the accused primarily on the ground that the complainant had not furnished any document to prove that it had actually supplied the material to the accused as per the agreement. It was held by Hon'ble Supreme Court of India that "it is not even necessary for the appellant/complainant to produce any document to the effect that it had fulfilled the M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 8/10 obligation under the agreement which was entered into between the parties. The case was found on the dishonour of two cheques and not on the basis of the said agreement. Further, it was a civil suit which was filed on the basis of said agreement or any demand was raised for money on the ground that the agreement had been fulfilled. The case is that the payment was not released. In the legal notice, specific averment made by the appellant/complainant that appellant/complainant had discharged his obligation under the contract and only thereupon the cheque was issued and the respondent/accused had not even replied to the said notice".
In the instant case also, it is specifically averred in the complaint, affidavit Ex. CW-1/1 and legal notice Ex. CW-1/C that the complainant firm had supplied goods to the accused vide invoice Ex. CW1/H. Thus, there is no requirement for the complainant to place on record bills, invoices, ledger account or delivery challans in support of his complaint. The claim of the complainant can not be discarded merely because bills, invoices, ledger account or delivery challans are not filed alongwith the complaint. Further, the complainant had placed on record invoices Ex. CW-1/H (colly) and delivery challans Ex. CW-1/G (colly). The accused, during his cross-examination, has admitted that the goods were supplied to him on two occasions. The accused has not asked the witness to produce previous bills/delivery challans where there is an indication that the goods were duly received by the accused or his employees. The accused has not confronted the complainant with delivery challans signed by him or his employees in the past. Had the witness been questioned on the aforesaid aspects and had he failed to give cogent explanation, the accused could have taken the advantage of the same. However, it appears that the accused was satisfied with the deposition of CW-1 on aforesaid aspect.
18. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
19. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under Section 138 of Negotiable Instruments Act.
M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 9/10
20. Let the accused be heard on quantum of sentence.
21. Copy of Judgment be supplied to the convict free of cost.
Digitally signed by PRIYANKA PRIYANKA RAJPOOT RAJPOOT Date: 2019.05.02 13:52:07 +0530 ANNOUNCED IN THE OPEN COURT (PRIYANKA RAJPOOT) TODAY i.e. 30th APRIL 2019 METROPOLITAN MAGISTRATE DWARKA DISTRICT COURTS/ DELHI 30.04.2019 M/s. The Great Indian Craft vs. Vakil Khan CC No. 5002848/16 Page no. 10/10