Delhi District Court
Ocean King Shipping Services Private ... vs . Naresh Bhatia on 12 May, 2016
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, NEW DELHI
Ocean King Shipping Services Private Ltd. Vs. Naresh Bhatia
CC No. : 136/2/14
U/s : 138 NI Act
JUDGMENT
a The Sl. No. of the case : 136/2/14
b The date of dishonor of cheque : 29.01.2010
( Payment stopped by Drawer )
c The date of Institution of the case : 27.03.2010
d The name of complainant : Ocean King Shipping Srvices
Private Limited
305306, Aggarwal Building,
3536, Nehru Place, New
Delhi110019. ( through its
Managing Director Sh. G.S.
Chawla).
e The name of accused : Sh. Naresh Bhatia
Proprietor, M/s Glamoiur Exports,
C2D/8A, Janakpuri, New
Delhi110058.
f The offence complained of :138 NI Act
g The plea of accused : Pleaded not guilty
h Arguments heard on : 28.04.2016
i The final order : Convicted
j The date of judgment : 12.05.2016
CC No. 136/2/14 1 of 13
BRIEF STATEMENT OF REASONS FOR DECISION (Metropolitan Magistrates Judgment U/s 355 Cr.P.C):
1 Facts of the case:
It is the case of the complainant that the accused in discharge of business transaction with the complainant, issued cheques bearing No. 969164 for a sum of Rs. 401063/ dated 27.10.201 drawn on Bank of Maharastra, 828/6, East patel Nagar, Delhi 110055 in favour of the complainant and the said cheque was returned dishonoured on presentation with remarks " Payment Stopped by Drawer" and despite service of notice dated 08.02.2010, he had not made the payment within the stipulated period. On these facts complainant has filed present complaint and predecessor court issued summoning orders on 02.12.2010. 2 Thereafter, notice was framed against the accused on 04.03.2011. As per the procedure laid down in Rajesh Agarwal Vs. State (Judgment of Delhi High Court) defence plea was recorded. Thereafter, application U/s 145(2) N.I Act filed which was allowed vide order dated 04.03.2011. Complainant was cross examined by accused and complainant evidence was closed vide order dated 19.04.2011. Thereafter, complainant has filed application u/s 311 Cr.PC for recalling CW1 for adducing additional evidence by way of affidavit, which application was allowed and additional affidavit of CW1 filed and he was duly cross examined on behalf of accused and CE was again closed on 31.01.2012. Thereafter statement of accused was recorded on 29.08.2012 wherein he showed his innocence and deposed that he CC No. 136/2/14 2 of 13 has been falsely implicated. The accused has preferred to lead defence evidence and examined Sh. Naresh Bhatia as DW1.
3 Complainant proved the following documents in his presummoning evidence : i The Copy of Board Resolution in favour of AR of complainant and copy of Multi Model Transport Document are Ex. CW1/1 and CW1/2.
ii The Copy of the debit Note No. 00641 dated 03.06.2009 for a Rs.
401063 vide Ex. CW1/3.
iii Cheque in question given by accused to complainant is Ex.
CW1/4.
iv Bank returning memo is Ex. CW1/5.
v The Legal notice, registered postal receipt and UPC receipt are
Ex. CW1/6 to CW1/8.
vi Reply of legal notice is Ex. CW1/9.
vii Affidavit of evidence of complainant is Ex. CW1/A.
viii Acknowledgment of the liability by the accused vide Ex. CW1/10. Relevant Law 4 The ingredients to prove the commission of offence under Sec. 138 NI Act have been laid down in Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (9) SCALE 455. The relevant portion of the said judgment reads as under:
CC No. 136/2/14 3 of 13 "9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the CC No. 136/2/14 4 of 13 receipt ofar the said notice"
Presumption in favour of the 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.
Further, explanation to section 138 of the ActFor the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
Section 73 Evidence Act inter alia provides that in order to ascertain whether a signature or writing is that of the person by whom it is supposed to be written, court may compare the admitted signature or writing of that person with the one which is to be proved although the admitted handwriting or signature has not been proved for any purpose.
5 ARGUMENTS HEARD AND DEALT WITH I have heard the submissions of both the Ld. Counsel for the complainant as well as the accused.
6 Let us now examine whether the complainant has proved the necessary ingredients of the offence under Section 138 of the Act or not. 6.1 The first ingredient of the offence stands proved as original cheque is placed on record as Ex. CW1/4 and signatures on the same are admitted by the accused in his defence plea to the notice framed u/s 251 Cr.P.C. It is settled law CC No. 136/2/14 5 of 13 that a signed cheque by the account holder is a complete instrument and the rest of the portions of the cheque can be filled by the complainant. Hence the first ingredient stands proved.
6.2 The second ingredient of the offence is that the cheque must have been issued in discharge of legal liability. As the signatures on the cheque are admitted, the presumptions raised under Section 139 of the Act become applicable and the issuance of cheque in discharge of the legal liability stands proved. The law on this point has been succinctly laid down by the Hon'ble Apex Court in Rangappa v. Sri Mohan AIR 2010 SC 1898.
In view of the aforesaid law, the presumption under Sec. 139 NI Act works in favour of the complainant once he files the necessary documents like the dishonored cheque, returning memo, legal notice and delivery proof and avers that the cheque were issued for legally enforceable debt or liability which the accused has failed to pay despite expiry of 15 days of the delivery of legal notice. In the present case not only the presumption u/s 139 N.I. Act that the cheque was issued in favour of the complainant company for a legally recoverable debt or liability lies in favour of the complainant but also other evidence oral and documentary adds to the strength of the presumption leading the court to believe that the cheque was issued by the accused to the complainant for a legally recoverable liability.
The defence of the accused that neither there is privity of contract between accused and the complainant nor the cheque was given to the CC No. 136/2/14 6 of 13 complainant but it was misplaced in the month of 2009 and complaint in this regard was filed before the police vide Ex. DW1/6, letter was written to the bank to stop payment vide Ex. DW1/4 to which the bank vide letter Ex. DW1/5 communicated the stoppage of the payment. Attention has been drawn by the counsel for the accused to the admission of the complainant in the cross examination wherein he admits that neither the complainant has filed the bill raised by him on the accused nor the payment made by his agent nor by the complainant. That is why the accused says that there is no privity of the contract between him and the complainant and hence there is no legally recoverable liability against him. Further it is stated by the accused in his statement u/s 313 Cr.P.C that the mobile numbers mentioned on the debit note do not belong to the accused. The accused states in his own evidence that the acknowledgment of liability Ex. CW1/10 does not bear his signatures and the same has been forged by the complainant.
However, this averment of the accused is belied by the documentary and oral evidence brought by the parties. The complainant has filed Ex. CW1/2 which is the Multimodal Transport Document ( hereinafter referred to as MTD), Ex. CW1/3 which is the debit note raised on the accused for payment of the warehouse charges raised on the agent of the complainant by the Dubai Custom Authorities for unclaimed goods. Not only this even the document filed by the accused Ex. DW1/1 which is the Sea Export Invoice shows that shipping details which mentions the MTD numbers which is the same as provided by the CC No. 136/2/14 7 of 13 complainant and consignee is ABJ Trading Company LLC. Hence, it is clear from the said documents wherein the MTD number mentioned as OKS/DEL/82362 which means Ocean King Shipping (name of the complainant company) that the bill was raised by the complainant on a the accused vide the debit note. Not only this there is Ex. CW1/10 placed on record by the complainant vide additional affidavit CW1/B which is in the alleged handwriting of the accused on the letterhead of the accused's entity M/s Glamor Exports acknowledging the liability against the accused and for repayment of the same vide the cheque in question. It is pertinent to mention that this debit note is on the letterhead of the accused and mentions the debit note number as well as BL/MTD No. OKS/DEL/82362. Also the accused has admitted that one mobile number is same in the Ex. CW1/10 as well as Ex. DW1/4 which the admitted letter of the accused written to the bank to stop the payment. The said fact is admitted in the cross examination dated 2.3.2015 of the accused. Hence this is contrary to the averment of the accused in his statement u/s 313 Cr.P.C. Further the accused has also admitted in his own documents vide Ex. DW1/3 that the consignment did reach the Dubai. What further pins down the accused is that he is not able to reconcile the apparently contradictory stand taken by him when it was put to him in cross examination dated 2.9.2014 vide specific question that earlier he stated that the goods reached to the consignee as mentioned in the Ex. CW1/2 which is ABJ Trading Company and if they reached the consignee that why he filed the claim before Export Credit Guarantee Corporation. The accused also admits in his cross examination dated CC No. 136/2/14 8 of 13 2.9.2014 that his goods were supplied through MTD Ex. CW1/2 to the consignee ABJ Trading Company. Regarding the most important piece of evidence in favour of the complainant Ex. CW1/10 contains acknowledgment of the accused towards the liability, though it has been rebutted by the accused and he states that it is not signed by him and the signatures are forged, the complainant has filed an application for referral of the same to handwriting expert. However in my view every time when such application is made, it is not necessary to refer the same to handwriting expert as the court has power u/s 73 Evidence Act to compare the questioned signature or handwriting with the admitted signature or handwriting and the said provision has been quoted above. When the handwriting or signature are so self evident in comparison that any layman can give a view, then it would be waste of time to refer the same for opinion to handwriting expert. To clarify it further, where even a novice is capable to express an opinion whether the handwriting or the signature match clearly or are different than a fortiori, there is no necessity for the court for referral to handwriting expert. In the present case it is clear that the accused has admitted signing the cheque in question Ex. CW1/4. On comparison the signatures on the Ex. CW1/10 match with the several court proceeding records like notice u/s 251 CrPC dated 04.03.2011, statement of accused 30.04.2012, evidence of accused dated 21.11.2013, 02.09.2014 and 02.03.2015. Not only this many other documents filed by the accused like Ex. DW1/4 which is the request letter for stop payment, Ex. DW1/6 which the complaint made by the accused regarding lose of cheques, application filed by the CC No. 136/2/14 9 of 13 accused u/s 145 (2) NI Act, clearly match with Ex. CW1/10 and it is clear that the same has been signed by the accused and is clearly a reliable document for the complainant. Hence the application filed by the complainant u/s 45 Evidence Act for referral of document Ex. CW1/10 for expert opinion is rendered infructuous for the said reason. Hence, it is proved that cheque was issued for a legally recoverable liability.
6.3 The third ingredient of the offence is that cheque must be presented to the bank within a period of six months from the date mentioned on it. The cheque is Ex. CW1/4 which were returned back unpaid on 29.01.2010 and the cheque is dated 27.01.2010. So it is evident that same were presented for payment within the statutory period of six months.
6.4 The fourth ingredient of the offence is that the cheque(s) must be returned unpaid. The cheque was returned unpaid for the reason " Payment Stopped by Drawer". The original bank returnmemo Ex CW1/5 placed on record proves dishonour of cheque by virtue of presumption raised under Section 146 of the Act and during the trial, Ex. CW1/5 went uncontroverted.
6.5 The fifth ingredient of the offence is that the demand notice must be issued to the accused within 30 days of the intimation of dishonour of cheque and same be served upon the accused. As the accused has filed the reply to the legal notice, hence, this ingredient also stand proved.
6.6 The last ingredient is that the accused must not have made the payment of the cheque amount within fifteen days of the receipt of legal notice. It is clear that the accused did not make the payment within 15 days and that is why the CC No. 136/2/14 10 of 13 complainant has filed the case.
7 In view of the foregoing discussion it is proved that the cheques were presented against a legally recoverable liability in favour of the complainant and the cheques got dishonoured for reason of insufficient funds, the cheques were drawn and issued on account of the accused and for which payment was not made within the period of 15 days of the receipt of legal notice. DECISION
8. In view of the aforesaid the accused is convicted for the offence under Sec. 138 NI Act and he be separately heard on the point of sentence.
Announced in the open (ASHOK KUMAR)
Court on 12.05.2016 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 136/2/14 11 of 13
IN THE COURT OF SH. ASHOK KUMAR, METROPOLITAN
MAGISTRATE (SOUTH EAST)07, NEW DELHI
CC No. : 136/2/14
U/s : 138 NI Act
Ocean King Shipping Services Private Ltd. Vs. Naresh Bhatia ORDER ON POINT OF SENTENCE Present : Complainant in person.
Convict in person with Counsel Sh. Vikran Gujral.
Vide separate judgement, the accused is convicted for commission of offence under Sec. 138 NI Act for nonpayment of cheque amounting to Rs. 4,01,063/ in total vide separate judgement of even date.
It is stated by the convict that he is doing a helper job at a Photostate Shop and has family consisting of old aged widow mother, wife and daughter aged about 16 years. It is also stated that the accused had developed clotting in the brain due to which he slightly disabled in speech and slow in understanding. It is stated that a lenient view may be taken against the convict while imposing the sentence and convict be not sentenced to imprisonment.
In view of the fact that the matter is pending since year 2010 and is more than 6 years old and keeping in view the fact that the cases under Sec. 138 NI Act are unduly clogging the dockets of the courts leading to docket explosion and extraction of judicial time which could have been given to other cases and on the CC No. 136/2/14 12 of 13 other hand due to the dishonest issuance of cheque, the same is eroding of credibility of such instruments, this court does not deem it necessary to extend the benefit of Probation of Offender Act to the accused. Such dishonest conduct leads not only to docket explosion which needs to be tackled with a heavy hand but also has resulted in harassment of the complainant holding up the valuable money belonging to him.
In view of the facts and circumstances, the convict is directed to suffer simple imprisonment of one year and fine of Rs 8,02,126/ (which is the double of the cheques amount) and in default of payment of the same, the convict shall suffer simple imprisonment for further six months for offence punishable u/s 138 NI Act. Hence, if the fine is not paid then the total period of simple imprisonment is one and half year. Since the complainant has suffered lot of harassment and has had to launch and sustain prosecution for a long period by denial of legally recoverable amount due to him, hence all of such fine be paid as recompense to him. Copy of judgment and order on sentence be given to the convict free of cost.
Announced in the open (ASHOK KUMAR)
Court on 12.05.2016 MM07, SOUTH EAST, SAKET
COURTS, NEW DELHI
CC No. 136/2/14 13 of 13