Delhi District Court
Dlsw020092842016 M/S R K Container ... vs Ajay Kumar Page 1 Of 24 on 5 March, 2022
IN THE COURT OF MS. JYOTI NAIN
METROPOLITAN MAGISTRATE (SOUTH WEST)
N I ACT10, DWARKA DISTRICT COURT : NEW DELHI
CC NO: 5003200/2016
CNR no. DLSW020092842016
M/s R K Container Line OPC Pvt. Ltd.
Through its Director/AR
Having office at
Room no. 418, Sunjeja Towers,
Janakpuri District Centre,
New Delhi110058
Also at
GH13/135,
SFS Flats Paschim Vihar,
New Delhi110063
.....Complainant
Versus
Sh Ajay Kumar,
R/o 13,19/1C,
Ground Floor Shipra Apartment,
Sector 35, Faridabad,
Haryana.
.....Accused
Offence Complained of or proved : U/s 138 of Negotiable
Instruments Act,
1881
Plea of the Accused : Pleaded not guilty
Date of filing : 09.08.2016
Date of Institution : 11.08.2016
Date of reserving judgment/order : 23.02.2022
Final Order/Judgment : Conviction Digitally
signed by
Date of pronouncement : 05.03.2022 JYOTI JYOTI NAIN
Date:
NAIN 2022.03.05
15:58:15
+0530
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 1 of 24 the complainant under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'N.I. Act ').
2. Briefly stated, case of the complainant is that the complainant was having business dealings with the accused through the firm of his wife i.e. Ahana Export and Import which was dealing with the complainant for the last couple of years. That the accused, who is in fact AR of Ahana Export and Import took the liabilities of that firm on his head and towards past liabilities gave a post dated cheque to the complainant bearing no 160071 dated 17.06.2016 for a sum of Rs.1,27,170/ from his account bearing no. 085701507241 drawn on ICICI Bank Sector 35, Faridabad, Haryana (hereinafter referred to as cheque in question). The said cheque was given by the accused in the mid of May 2016 with an assurance that the same will be honored on its presentation. That on being presented for encashment on 19.06.2016 with complainant banker Kotak Mahinder Bank Ltd. Janakpuri, the same returned dishonored with remarks "payment stopped". Complainant was informed by the banker of accused vide cheques returning memo dated 20.06.2016. That the complainant issued a legal demand notice dated 16.07.2016, which was sent by registered AD receipt bearing no. RLADA RD668125583IN sent from Tis Hazari Courts, Post Office on 16.07.2016 at the correct address of the accused and also by way of approved courier services having receipt no. Z94295563 on JYOTI 16.07.2016 at the correct address of the accused demanding NAIN Digitally signed payment of the cheque amount within 15 days of the receipt of by JYOTI NAIN Date: 2022.03.05 15:58:24 +0530 notice, but to no avail. That accused failed to pay the cheque DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 2 of 24 amount within the prescribed period. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881.
3. On 24.09.2016 presummoning evidence was led by the complainant and in his presummoning evidence, complainant examined himself on affidavit Ex. CW1/I. He reiterated the contents of complaint and placed on record following documents:
(i) The Resolution in favour of the complainant which is Ex.CW1/A,
(ii) Original cheque bearing no.160771 dated 17.06.2016 which is Ex.CW1/B,
(iii) Cheque returning memo dated 20.06.2016 which is Ex.CW1/C
(iv) Legal notice dated 16.07.2016 which is Ex.CW1/D
(v) Postal receipt which is Ex. CW1/E
(vi) Courier receipts is Ex. CW1/F
(vii) Tracking report are Ex. CW1/G and Ex. CW1/H
4. Upon appreciation of presummoning evidence, cognizance of offence under section 138 of The Negotiable Instruments act was taken and summons were issued to the accused. It was only upon issuance of bailable warrants, accused JYOTI entered appearance through his counsel on 06.05.2017. NAIN Digitally signed Thereafter, on 11.07.2017 accused was admitted to bail on by JYOTI NAIN Date: 2022.03.05 15:58:31 +0530 personal bond and surety bond in the sum of Rs.10,000/.
DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 3 of 245. On 05.08.2017, notice was served on the accused, to which he pleaded not guilty and claimed trial. In his defence, accused stated that the cheque in question was given as security cheque and the complainant was given the job of getting customs clearance for his goods which were sought to be imported. That the complainant did not complete the job and consequently because of the complainant, a penalty was imposed on him by the customs department. Later, he had to contact a different company for customs clearance and additional cost was paid. He admits his liabilities as Rs.37,500/ and states that he is ready and willing to pay the same. Further stated that the present complaint case is false and fabricated and he does not owe any legal liability qua the said cheque. He admits his signatures on the cheque, further admits that he filled in the particulars on the cheque in question including the date and name of the payee. Further states that he did not receive the legal demand notice, however, admitted that the address on the legal demand notice is his correct address.
6. Complainant evidence:
Complainant adopted his pre−summoning evidence as his post−summoning evidence and got himself examined as CW−1. He was subjected to crossexamination wherein he interalia admitted that he is the Director of complainant company and is running the company since 2014. That his company is a shipping JYOTI line agent and custom clearing agent. Further admits that the NAIN contract which was entered between his company and the Digitally signed by JYOTI NAIN Date: 2022.03.05 accused was not reduced to writing, however, certain mails were 15:58:42 +0530 DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 4 of 24 exchanged between them. Complainant further submits that his company was assigned the work of trasporting the machinery from China and to deliver the same to the accused at Patparganj, Delhi after taking clearance from customs department, Delhi Airport, again said that the delivery was not at Patparganj, Delhi. Complainant submits that one of the consignment of accused got cleared and was delivered to the accused at Delhi Airport and the other consignment was delivered to the accused at Patparganj Delhi, however, the clearance with respect to that consignment was obtained by the accused himself.
Complainant further stated that there was no agreement between the accused and the complainant company for getting clearance in respect of the consignment which was to be delivered at Patparganj, Delhi. Complainant denied the suggestion that the cheque in question was issued by the accused to the complainant company with respect to making payment for the service of getting clearance in respect of the second consignment which was delivered at Patparganj, Delhi and as the complainant company failed to get the clearance, therefore, the accused had issued "stop payment" instructions in respect of the cheque in question.
Complainant further denied the suggestion that because of JYOTI the default on behalf of the complainant company in respect of NAIN the consignment which was to be delivered at Patparganj, Delhi, Digitally signed by JYOTI NAIN Date: 2022.03.05 the accused suffered losses and the accused had to get the same 15:58:52 +0530 done from some other person/company.DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 5 of 24
Further, complainant denied the suggestion that the accused had not availed the services of the complainant company for getting the transportation of machinery from China to India. Further denied the suggestion that the accused had availed their services only for getting custom clearance in respect of goods.
Complainant further denied the suggestion that the complainant company had not fulfilled his obligations as per the contract entered into between the accused and the complainant company and therefore, the accused had issued "stop payment"
instructions in respect of the cheque in question.
7. Examination of the accused under section 313 Cr.P.C.:
Thereafter the accused was examined under section 313 Cr.P.C. by the court on 14.02.2019 wherein he inter alia stated that the firm of his wife namely Ahana Export and Import had availed the services of complainant company only on two occasions. Accused stated that he had issued the cheque in question as a security cheque towards the payment of the services which were to be rendered by the complainant in the month of May 2016, however, the complainant failed to render the services in terms of the agreement and therefore, he was constrained to avail services of M/s Nandi Logistics. Accused admitted the fact that at the time of handing over the cheque he had assured the Director of the complainant company and had taken the JYOTI responsibility of clearing the liabilities of the firm owned by his NAIN Digitally signed wife and also assured the Director of the complainant company by JYOTI NAIN Date: 2022.03.05 15:59:02 +0530 that the cheque shall be honored at the time of its presentation.DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 6 of 24
Accused admits to the fact that when the cheque in question was presented for its encashment the same was returned unpaid with remarks "payment stopped by drawer" vide return memo on 20.06.2016 (Ex. CW1/C).
Accused denied having received the legal demand notice sent by the complainant, however, admitted that the address mentioned on the legal demand notice is his correct address.
In his defence accused stated that the firm of his wife had engaged complainant company for custom clearing services and that no written agreement was executed between the complainant company and the firm of his wife. That the complainant company was under obligation to receive the machinery which was to be imported from China and after getting the same cleared from customs department, the same was to be delivered to him at his office address at Faridabad. Since, the complainant failed to honor its obligation therefore he had to avail the services of M/s Nandi Logistic for getting the custom clearance. Accused further stated that he was forced to pay an extra amount of Rs.15,000/ to Rs.20,000/ to the customs department due to the default and neglect of the complainant company. Accused further submitted that he had demanded the cheque in question back from the complainant but the complainant refused to return the same as according to the complainant accused was under legal liability to pay the cheque amount.
Digitally signed by JYOTI JYOTI
8. Defence Evidence:
NAIN NAIN Date:
2022.03.05 15:59:13 +0530 In his defence, accused examined himself as DW1. In his DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 7 of 24 examination, DW1 deposed that the complainant company is a clearing agent which assists in getting clearance from customs department of machine imported from China. That accused company imports machine. Sh. Pankaj Kumar Pandey, approached the accused on behalf of the complainant company for getting clearance from customs department regarding the machines imported from China. That the complainant company assisted him in importing that machine. The complainant company through Sh. Pankaj Kumar Pandey sent an email whereby he demanded a security cheque from accused for the services of assisting them in getting the machine imported from China and that Sh. Pankaj Kumar Pandey started demanding Rs.1,27,000/ in advance i.e. before getting clearance from the customs department. Accused stated that when he refused to make the payment in advance, Sh. Pankaj Kumar on behalf of the complainant did not get the clearance from the customs department and because of that he got some penalty from customs department and thereafter, he hired some one else for the customs clearance which was earlier promised by the complainant company. Accused stated that he received the bill from the complainant and the calculation details of the bill raised by the complainant company was not correct. Further submits that the terms agreed between him and the complainant company were not complied by the complainant and thus he does not owe any liability towards the complainant.
JYOTI NAIN On being cross examined, accused stated that he had dealt Digitally signed by JYOTI NAIN Date: 2022.03.05 with the complainant company once or twice till that date. On 15:59:23 +0530 DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 8 of 24 being shown the original cheque Ex. CW1/B, accused replied that the contents of the cheque in question including the amount in words, numerals and all other contents were filled up by him including the date in question. Accused admitted that the cheque in question pertains to his account and that it bears his signatures. Accused denied receiving of legal demand notice Ex. CW1/D but admitted that it bore his correct address and stated that he is residing at that address from 201415. Accused admits that he did not issue any legal notice to the complainant with regard to deficient services provided by the complainant company to him. Further stated that he had not initiated any civil or criminal proceedings against the complainant company till that date. Accused stated that he and his wife namely Anamika Verma, Proprietor of Ahana Exports have also not made any complaint against the complainant company before custom authority or any public authority till that date regarding the alleged misuse of the cheque in question and for rendering any deficient services. Accused denied the suggestion that the cheque in question was issued towards the liability owed by him towards the complainant company. Further denied the suggestion that he was deliberately making a false statement just to deprive the complainant of its charges which it is legally bound to recover for the services rendered. Further denied the suggestion that he deliberately did not reply to the legal demand notice. Accused denied that he had made any payment in cash or by any other mode to the Digitally signed by JYOTI JYOTI complainant company for the services rendered to him. Accused NAIN NAIN Date:
2022.03.05 15:59:32 +0530 denied the suggestion that complainant company provided DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 9 of 24 complete services to him and not deficient services as stated by him in his deposition. Further denied the suggestion that the penalty which was imposed upon him was not on account of the complainant's deficient services but on account of his fault.
On being reexamined, accused brought on record Ex.DW1/1 i.e. an email sent by the complainant and also Ex.DW1/2 i.e. bill sent through email. The same was objected to by the Ld. Counsel for the complainant on the ground of mode of proof. The accused was further cross examined on which accused denied the suggestion that he had not placed on record original of DW1/2 since there is no reference of any sender or receiver on Ex. DW1/1. Accused admitted that he had not placed on record any document like certificate under section 65B of Indian Evidence Act, 1872 in order to substantiate authenticity of Ex.DW1/1 and Ex.DW1/2. Accused stated that he had downloaded Ex.DW1/1 and Ex.DW1/2 from his office computer. Accused admitted that he had received certain goods through ships and certain goods by air. Accused denied the sugestion that goods delivered through ship as well as by Air are duly received by him after using the complete services of the complainant company. Accused further denied the suggestion that the amount covered by the cheque in question does not include the customs clearances charges of goods which he received by ship.
Accused denied the suggestion that he was deliberately not JYOTI filing any document in order to show the different break up NAIN Digitally signed by JYOTI NAIN charges of the above mentioned services. Further denied that he Date: 2022.03.05 15:59:41 +0530 DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 10 of 24 is liable to pay entire amount to the complainant company that he is taking a false defence. Accused admits that he had not placed any ledger account of the complainant since there were no multiple transactions between them.
9. Arguments heard at length on behalf of both the parties. 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 the Act to be made out against the accused, the complainant must prove the following ingredients that:
(i) the accused issued a cheque on account maintained by him with a bank and 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.
(ii) the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
(iii) the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(iv) 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.
(v) the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand. JYOTI NAIN Out of these five ingredients, accused has raised objections Digitally signed by JYOTI NAIN Date: 2022.03.05 15:59:49 +0530 regarding point number (ii) and (iv) only.
DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 11 of 2410. So far as contention is raised regarding point no. (iv) i.e. receipt of legal demand notice, since the accused has admitted that the address mentioned on the legal demand notice is his correct address, he cannot dispute the receipt of legal demand notice. Legal demand notice once sent on the correct address of the accused, there is a deemed presumption of service of legal demand notice as held by a three judges bench of the Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555: "Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."
11. As far as the contention regarding point number (ii) is concerned, the N I Act, itself raises two presumptions in favour JYOTI of the holder of the cheque i.e. Complainant in the present case; NAIN firstly, in regard to the passing of consideration as contained in Digitally signed by JYOTI NAIN Date: 2022.03.05 15:59:56 +0530 DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 12 of 24 Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 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: "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. Thus, for the offence under Section 138 of the Act, the presumptions under Secton 118 (a) and 139 have to be compulsorily 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 be rebutted 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 JYOTI evidence but only makes a prima facie case for a party for whose NAIN Digitally signed benefit it exists. Presumptions both under Section 118 and 139 by JYOTI NAIN Date: 2022.03.05 16:00:04 +0530 are rebuttable in nature. Same was held by the Hon'ble Supreme DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 13 of 24 Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
13. Since in the present case, accused has admitted his signatures on the cheque, the compulsory presumption is raised in favour of the complainant, but the same is rebuttable in nature on the standards of preponderance of probabilities as has been held by Hon'ble Supreme Court of India in the case of Basagappa v. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC On Line SC 491 at page 422 , where it has held as follows :
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
14. Now we have to see whether accused has been able to JYOTI rebut the compulsory presumption under section 118(a) and NAIN Digitally signed Section 139 NI Act raised in favour of the complainant on the by JYOTI NAIN Date: 2022.03.05 16:00:12 +0530 standards of preponderance of probabilities.
DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 14 of 2415. Ld. Counsel for the accused argued that the cheque in question was issued as security for getting clearance of consignment no. 1 & 2 and since complainant provided deficient services, the total liability was only that of Rs.37,500/ and accused had showed his intention to pay this sum of money against return of the security cheque. But since complainant did not return the cheque in question therefore, accused gave instructions to his banker to stop payment. Further argued that the complainant has misused the cheque in question. Also, Ld. Counsel for the accused has referred to Ex.DW1/1 i.e. an email sent by the complainant and also Ex.DW1/2 i.e. bill sent through email arguing that the calculation details of the bill raised by the complainant company is not correct.
16. To this, ld. Counsel for the complainant has argued that the cheque in question is that of an ascertained amount of money, where liability had already been decided before filling in the particulars by the accused. Further argued that it is not clear as to how the accused has arrived to a figure of Rs.37,500/, when the accused himself has admitted that he had to pay an extra amount of only Rs.15,000/ to Rs.20,000/ to the customs department due to the default of the complainant company. JYOTI Further argued that accused has not brought on record any cogent NAIN Digitally signed by JYOTI NAIN evidence to support the fact that deficient services were provided Date: 2022.03.05 16:00:19 +0530 to him by the complainant company.
DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 15 of 2417. To the argument that the cheque was issued as security, Ld. Counsel for the complainant has argued that merely stating that the cheque was issued as security, would not dispel the presumption under Section 139 NI Act as has been held by Hon'ble High Court of Delhi in Suresh Chandra Goyal v. Amit Singhal, 2015 SCC OnLine Del 9459 where it has observed that: "Section 138 of NI Act does not distinguish between cheque issued by the debtor in discharge of an existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract Section 138 of NI Act in case of its dishonour." (emphasis supplied)
18. Further, Ld. Counsel for the complainant to the contention of misuse of the cheque in question raised by accused has argued that the accused has not filed any complaint against the accused regarding misuse of the cheque, nor did reply to the legal demand notice issued by the complainant to the accused, same shows that the arguments of misuse of cheque raised on behalf of the accused lacks merit.
19. To this, Ld. Counsel for the accused has argued that accused did not receive any legal demand notice, thus no question of replying to legal demand notice arises.
JYOTI NAIN
20. Ld. Counsel for the complainant argued that since the legal Digitally signed by JYOTI NAIN Date: 2022.03.05 demand notice was sent by post on the correct address of the 16:00:37 +0530 DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 16 of 24 accused, there is deemed service in the eyes of law under section 27 of The General Clauses Act as has been held in the case of C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555.
21. This court is of the observation that Ex.DW1/2 and Ex.DW1/1 which are electronically generated documents but since are not accompanied by certificate under section 65 B of Indian Evidence Act 1872, thus, cannot be admitted in evidence. Thus, the argument pertaining to calculation mistakes in Ex.DW1/2 cannot be considered. Further accused has failed to bring on record any document to support the fact that because of deficient services provided by the complainant, accused owed a liability only Rs.37,500/ towards the complainant.
22. Also, the defence of security cheque will not help accused to dispel the presumption under section 139 N I Act as has already been argued by Ld. Counsel for the complainant that accused has not led any cogent evidence to show that debt/liability had not crystallized on the date of presentation of cheque. Mere averment that the cheque in question was issued as security cheque is not sufficient enough to rebut the compulsory JYOTI NAIN presumption in favour of complainant. Digitally signed by JYOTI NAIN Date: 2022.03.05 16:00:45 +0530
23. This court further observes that the contention of non receipt and thus, not replying of the legal demand notice does not hold much ground as there is a deemed service in the eyes of law when the legal demand notice is sent on the correct address of the DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 17 of 24 accused. Further, not filing any complaint against the complainant for the misuse of cheque in question goes against the defence of the accused, since any prudent man will make every effort to prevent the misue of his cheque.
24. Ld. Counsel for the accused further argued that complainant has not brought on record any document to show that accused owed a liability in the sum of Rs.1,27,170/.
25. To this, Ld. Counsel for the complainant has argued that it itself is admitted by the accused at the stage of recording statement under section 313 Cr.P.C. that no written agreement was executed between the complainant company and the firm of his wife. Also, at the stage of notice framing, accused has admitted filling in all the particulars of the cheque including date, name of payee and signatures. Further at the stage of cross examination of accused, he has admitted that the contents of the cheque in question including the amount in words, numerals and all other contents were filled up by him including the date in question. Thus, the liability in the sum of Rs.1,27,170/ was ascertained without undergoing any written agreement.
26. This court observes that since, it is admitted by both the parties that a written agreement was not executed between them, argument raised on behalf of the accused that no document has JYOTI been brought on the record by the complainant to show liability NAIN Digitally signed by JYOTI NAIN of Rs.1,27,170/, when all the particulars including the cheque Date: 2022.03.05 16:01:05 +0530 amount has been admittedly filled up by the accused, will not be DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 18 of 24 sufficient enough to rebut the mandatory presumption in favour of the complainant.
27. Ld. Counsel for the accused has argued that it was the complainant who had approached the accused for getting clearance of the freights and delivery of two consignments ordered by the accused from China. That the accused gave the cheque in question to the complainant for security purpose and had agreed to pay the service charges to the complainant after getting his services on the assurance of the complainant that he will not misuse the cheque in question and will return the same to the accused after receiving the charges against the purported services rendered to the accused. Ld. Counsel for the accused further argued that after receiving the cheque in question, complainant provided his services to the accused by way of getting his second consignment released and delivered. That thereafter complainant adopted delyaing tactics for getting the first consignment released from the customs authorities and delivery of the same to the accused despite timely reaching of the items to the container depot. Thus, the accused had to engage another logistic agent namely Nandi Logistics and got released the first consignment from the customs authorities.
28. To this, Ld. Counsel for the complainant has argued that the defence of the accused is that the complainant provided deficient services to the accused and because of that a penalty JYOTI NAIN was imposed on the accused by the customs department. Ld. Digitally signed by JYOTI NAIN Date: 2022.03.05 16:01:14 +0530 Counsel for complainant argued that it is ironical that no civil or DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 19 of 24 criminal complaint has been filed against the complainant nor has the accused summoned any witness from the customs department to substantiate his defence. Further, since the accused had stated in his defence that he had to avail the services of one Nandi Logistics due to the deficient services provided by the complainant company but the accused has not summoned any witness from Nandi Logistics nor has brought on record any bill generated by Nandi Logistics.
Ld. Counsel for the complainant has further argued that complainant company was assigned the work of transporting machinery from China. That in respect of consignment which was to be delivered to the accused at Patparganj, Delhi, clearance was obtained by accused himself. Since, there was no agreement between the accused and the complainant company in respect to the consignment which was delivered at Patparganj Delhi.
29. At the stage of final arguments, Ld. Counsel for the accused has referred to two different consignments with details but never before specific reference to first and second consignment in details was given during trial, thus, to that extent the argument is extraneous to pleading. Further, this court is of the opinion that not filing any civil or criminal complaint against the complainant for providing deficient services and not getting any witness examined from the customs department as well as Nandi Logistics goes against the defence of the accused, since JYOTI witnesses from customs department as well as Nandi Logistics NAIN Digitally signed by JYOTI NAIN could have been material defence witnesses and may have Date: 2022.03.05 16:01:53 +0530 supported the case of defence, had there been any.
DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 20 of 2430. Finally, Ld. Counsel for the accused, in his written submissions has raised a new point that the authority letter Ex.CW1/A issued in favour of Mr. Pramod Pandey for filing the present complaint case is signed by himself only and is not signed by any other Director of the complainant company. Further, complainant did not produce the register containing the resolution passed in the meeting of Directors of the complainant company to prove the fact that Mr. Pramod Pandey has been authorised to file the present complaint case.
31. To counter this arguments, Ld. Counsel for the complainant has filed additional written arguments whereby he has also filed copy of some additional documents i.e. Articles of Associations of R K Container Line Pvt. Ltd and Memorandum of Association of R K Container Line Pvt. Ltd to show that the company was incorporated on 18.08.2014 and that at the time of incorporation of the complainant company its name was M/s R K Container Line OPC Pvt. Ltd and in this "OPC" stands for one man company and same is permitted as per the statute of the Companies Act 2013 under section 2 (62). As per the provision, a company can be formed with just one Director and one member. It is a type of company where compliance requirement are lesser than that of a Pvt. Ltd. Company. Under this provision the Director and the member can be the same person. Thus, One Person Company means one individual who may be a resident or JYOTI NAIN an NRI opening a company. Ld. Counsel for the complainant has Digitally signed by JYOTI NAIN Date: 2022.03.05 argued that the present complaint case was filed in August 2016 16:02:02 +0530 DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 21 of 24 and at that time, the complainant was a One Person Company as mentioned in the name itself that is why the sole Director namely Pramod Pandey was responsible for the day to day affairs of the company and was authorized on behalf of the company as its sole Director to file the present complaint case against the accused person. That it was only during the pendency of present complaint case that complainant company M/s. R K Containder Line OPC Pvt. Ltd. inducted another person namely Sudhir Kumar Roy as its Director w.e.f. August 2020 and thereafter the company is named as M/s R K Container Line Pvt. Ltd which is no more a One Person Company (OPC). Thus, Ld. Counsel for the complainant has argued that the contentions raised on behalf of the accused challenging the authority of Director Pramod Pandey shall be outrightly rejected.
32. This Court is of the observation that documents can't be filed at the stage of final arguments without moving a requisite application to take the same on record but rejects the arguments raised on behalf of the accused challenging authority of Sh. Pramod Pandey, since the objection has not been raised at the relevant point of time so that complainant could have come up with explanation and requisite documents to prove his authority. Accused has never before the stage of final arguments has questioned the authority of Director Pramod Pandey, at this belated stage, when such a contention is raised, it cannot be JYOTI entertained and is liable to be rejected, since Pramod Pandey, NAIN Director of complainant company should have been given an Digitally signed by JYOTI NAIN Date: 2022.03.05 16:02:25 +0530 opportunity to prove his authority. Also, it has been held by DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 22 of 24 Hon'ble Supreme Court in the case of United Bank of India Vs Naresh Kumar 1996 (6) SCC 607 that the cases filed by the Companies should not be dismissed on technical ground with respect to the validity of the institution, and further went on to hold that as long as the case is contested to the hilt, it ought to be held that the case (Civil or Criminal) was validly instituted and filed. Thus, the objection raised by accused at the stage of final arguments regarding authority of Sh. Pramod Pandey, Director of complainant company is liable to be dismissed.
33. Further, Ld. Counsel for the accused along with his written submissions has filed and referred to certain documents which have never been referred before during the trial, thus are extraneous to pleadings and therefore cannot be read by this court.
34. Ld. Counsel for the complainant argued that it is for the accused to rebut the mandatory presumption under section 139 N I Act in favour of the complainant by leading cogent evidence which the accused has misreably failed to do.
35. This court is of the observation that in totality accused has not been able to rebut the compulsory presumption raised in favour of the complainant under section 118 and 139 of the N. I. Act as it has failed to bring any cogent evidence on the record in his defence.
Digitally
signed by
JYOTI JYOTI NAIN
Date:
NAIN 2022.03.05
16:02:35
+0530
DLSW020092842016 M/s R K Container Line OPC Pvt. Ltd. Vs Ajay Kumar Page 23 of 24
CONCLUSION:
36. In view of the aforesaid discussion, this court is of the considered opinion that the accused has failed to rebut the presumption under Section 139 of Negotiable Instruments Act, 1881 in favour of the complainant and ingredients of Section 138 of Negotiable Instruments Act, 1881 are proved. Therefore, accused is held guilty and convicted for commission of offence punishable under Section 138 of the Negotiable Instrument Act, 1881. Let he be heard on the quantum of sentence on 15.03.2022 at 2.30 PM.
Digitally signed JYOTI by JYOTI NAIN
Date:
NAIN 2022.03.05
16:02:42 +0530
Announced in the open court today (JYOTI NAIN)
i.e. 05th March, 2022 MM(NIAct)10/SW
Dwarka Courts, New Delhi
Note: This judgment contains 24 pages and each page has been signed by me.
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