Delhi District Court
Presently At vs M/S B.D. Jain Trading Company on 4 September, 2019
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL SESSIONS JUDGE
ROHINI COURT: DELHI.
CA No. 56/2019
Ajay Marwah
S/o Sh. Sudershan Marwah
R/o E10A, 3rd floor,
Opp. Royal Orchid, Rajouri Garden,
New Delhi110027.
Presently At:
H. No. 16/69, Punjabi Bagh,
New Delhi. Appellant
Vs
M/s B.D. Jain Trading Company
At C1/9, Basement
Rana Pratap Bagh, Delhi110007.
Through its Proprietor
Sh. Satish Chand Jain. Respondent
Date of Institution : 05.04.2019
Date of Arguments : 02.09.2019
Date of Judgment : 04.09.2019
Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 1 of 17
CA No. 56/19
JUDGMENT:
1. This appeal is filed against the judgment dated 28.02.2019 and order on sentence dated 06.03.2019, passed by learned MM, Rohini, Delhi, whereby appellant was convicted under section 138 Negotiable Instruments Act (NI Act) and sentenced for simple imprisonment for a period of one month and further ordered to pay compensation to respondent for an amount of Rs.7.00 lakhs u/s 357(3) Cr.PC. In default of payment of compensation appellant was further directed to undergo simple imprisonment for a period of two months.
2. Impugned judgment and order on sentence was passed in a complaint case u/s 138 NI Act filed by respondent.
3. Respondent (complainant in the trial court) had filed complaint before learned trial court as proprietor of M/s B.D. Jain Trading Company alleging that appellant (accused in the trial court) purchased 2000 meters of cloth from him and issued cheque bearing no. 356166 dated 28.06.2013 for Rs.5.00 lakhs drawn on HDFC bank, Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 2 of 17 CA No. 56/19 17, Central Market, Punjabi Bagh, New Delhi110026 towards the price of cloth against the invoices issued by respondent. It was alleged that cheque issued by appellant was dishonored with remarks "funds insufficient" vide cheque return memo dated 01.07.2013. Thereafter, respondent sent legal notice dated 26.07.2013 through speed post on 29.07.2013 to the appellant through his Advocate and demanded amount of dishonored cheque. Despite service of legal notice upon appellant, appellant failed to pay the amount. Hence, the complaint u/s 138 NI Act.
4. In response to notice u/s 251 Cr.PC, appellant stated in his defence "The cheque in question was not issued by me to the complainant. The cheque in question bears my signatures, however, the contents in the same were not filled by me. About 67 years back, I had business transaction with the complainant. However, I do not have any liability towards the complainant. About 23 years back, my few cheques were misplaced regarding which I filed police complaint in PS Mukherjee Nagar. Cheque in question is out of these cheques which were Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 3 of 17 CA No. 56/19 misplaced from my office. Complainant has misused two cheques against myself and my wife by filing false cases. Legal notice regarding the cheque in question was not received by me".
5. In his evidence respondent examined himself as CW1 and proved his complaint as Ex.CW1/1; copy of bills/invoices for supply of cloth as Ex.CW1/A and Ex.CW1/B; cheque bearing no. 356166 as Ex.CW1/C; return memo as Ex.CW1/D; legal notice dated 26.07.2013 as Ex.CW1/E; postal receipt and its tracking report as Ex.CW1/F and Ex.CW1/G respectively.
6. Respondent was crossexamined by appellant.
During crossexamination, respondent stated that his firm deals in the business of unstitched clothes/garments and he supplies stitched garments to his customers as per the purchase order. He stated that the appellant had purchased more than 2000 meters of cloth and the cost of one meter of cloth was Rs.120/. He stated that the stock supplied to the appellant was of different types of fabrics, patterns and designs. He stated that he did not give any discount to the appellant. He was confronted with para 4 Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 4 of 17 CA No. 56/19 of the complaint where it is stated that he had given discount of Rs.1375/ to the appellant and to this, he stated he had deducted Rs.1375/ towards the defect in goods. He denied the suggestion that the he had not brought original bill book since he had placed on record false and fabricated bills Ex.CW1/A and Ex.CW1/B in order to extort money from the appellant. He stated that he had signed the invoices but when he was shown the same, he admitted that the invoices do not bear his signatures. He stated that the post dated cheque was issued by appellant when the goods were delivered to him. He denied the suggestion that he had misused the lost cheque of appellant.
7. Thereafter, on 12.02.2018 statement of accused (appellant) u/s 281 Cr.PC r/w section 313 Cr.PC was recorded by learned Metropolitan Magistrate in which all the incriminating evidence were put to him to which he took the same defence as was taken by him at the time of framing of notice u/s 251 Cr.PC. He stated that he had never purchased any cloth from the complainant and bills Ex.CW1/A and Ex.CW1/B are false documents. In his Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 5 of 17 CA No. 56/19 statement, he stated that he would lead defence evidence but did not examine any witness in defence evidence. At his request, defence evidence was closed vide order dated 21.05.2018.
8. Thereafter, final arguments were addressed on behalf of both the parties.
9. After considering rival contentions of the parties, learned MM held that appellant admitted his signatures on the cheque. Therefore presumption u/s 118 and 139 NI Act was to be raised against him that the cheque was issued for consideration. Learned MM further held that appellant failed to rebut the presumption in favour of respondent either on the basis of material available on record or by leading any defence evidence. Learned MM thus convicted appellant.
10. It is argued by learned Ms. Poonam Mahajan, that judgment and order on sentence passed by learned MM is based on presumptions, conjectures and surmises; and that there are material discrepancies in the testimony of respondent. She has further argued that learned MM did not appreciate that appellant had not taken any cloth Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 6 of 17 CA No. 56/19 because respondent had himself mentioned in the complaint that he was dealing with ready made clothes and at no point of time mentioned that he was dealing in unstitched clothes as well. Learned Ms. Mahajan further argued that bills and invoices placed on record by the respondent were not original and were having different address on the bill then the address of the respondent as mentioned in the complaint.
11. Learned Ms. Mahajan has further argued that appellant never received any legal notice and that there was huge cutting in the legal notice. In the beginning Rs.1.00 lakh was mentioned in the legal notice which was cut to Rs.5.00 lakhs and no signatures were put by counsel for respondent upon that cutting. Learned Ms. Mahajan has referred to case titled as Arif Vs Venu Gopalan in her appeal in which Hon'ble Supreme Court held that legal notice was not valid because wrong cheque number was mentioned in the same. She has further argued that in the complaint, respondent stated that he had given discount of Rs.1375/ but no such discount was mentioned in the invoice of the bill and that in his cross Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 7 of 17 CA No. 56/19 examination respondent stated that amount of Rs.1375/ was deducted for defect in goods.
12. She has further argued that bills in question did not bear the signature of complainant which fact was not appreciated by learned trial court. She has also argued that respondent had not placed his ITR/ledger book on record to show any outstanding demand from appellant. It is further argued that appellant could not avail opportunity to rebut allegations or to produce any witness before learned trial court in his defence. She therefore prayed for settingaside the impugned judgment and order on sentence.
13. No formal reply to appeal was filed by respondent and learned Sh. Vinod Kumar Gupta, straightaway argued on the appeal and submitted that the sentence passed by learned trial court be enhanced. Learned Sh. Gupta argued that appellant is a habitual defaulter and had taken a false defence before the learned trial court. He argued that the a penalty of the double of cheque amount and the imprisonment for a period of two years should have been passed by the learned trial court Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 8 of 17 CA No. 56/19 considering the conduct of the appellant.
14. Arguments considered. TCR perused.
15. All the points now raised by the appellant in the present appeal, have already been dealt by the learned trial court in the impugned judgment dated 28.02.2019.
16. After quoting section 118 and 139 of NI Act, learned trial court observed that presumptions u/s 118(a) and section 139 NI Act have to be raised as soon as the execution of cheque by appellant is admitted or proved by the respondent and thereafter burden is shifted to appellant to prove that the cheque was not issued for consideration.
17. The trial court relied upon the judgments passed by Hon'ble Supreme Court in Hiten P. Dalal Vs Bratindranath Banerjee (2001) 6 SCC 16 and M/s Kumar Exports Vs M/s Sharma Carpets AIR 2009 (SC) 1518 observing that accused may rebut the presumptions arising under section 118(a) and 139 NI Act. Learned trial court further relied upon the judgment of Apex court in Rangappa Vs Mohan AIR 2010 SC 1898, wherein the Apex court observed "Once the cheque Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 9 of 17 CA No. 56/19 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".
18. Thereafter, learned trial court dealt with the defence taken by accused that the cheque in question, along with other cheques was misplaced by him and he had lodged police complaint in police station Mukherjee Nagar. Learned trial court observed that no evidence was led by appellant in support of his claim. It further noted that appellant did not give any instruction for stopping the payment of cheque and that the cheque was dishonored for funds insufficient.
19. In the facts and circumstances, it appears to be rightly submitted by learned counsel for respondent that defence of misplacement of cheque of appellant is an afterthought otherwise appellant would have at least instructed his bank to stop payment.
20. Learned trial court also dealt with the submissions of counsel for appellant that legal notice Ex.CW1/E was Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 10 of 17 CA No. 56/19 not valid notice as there were certain corrections/cuttings therein. Trial court did not find merit in the submissions on behalf of appellant and observed that bare perusal of legal notice reflected that corrections were initialled by counsel for the respondent. It further observed that as regards the correction in the demand paragraph where the word "one" lakh was struck off to "five" lakh, no question was asked from the respondent during his cross examination; no evidence was led by appellant to show that he had been prejudiced due to such correction. Court further observed that it was not the case of appellant that there was a liability of Rs.1.00 lakh only and he was willing to pay the said amount. The trial court concluded that correct cheque number was written in the legal notice and a typographical error in the demand paragraph was corrected by striking off word "one" and writing word "five".
21. Court do not find any fault in the findings of learned trial court. Reliance placed by learned counsel for appellant in the judgment of Arif Vs Venugopalan, referred in her appeal is misplaced. There is no Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 11 of 17 CA No. 56/19 vagueness in the notice. Correct cheque number and transaction details have been mentioned. The amount of cheque has also been corrected. There is nothing to suggest that because of corrections made, the notice would be invalidated. It is rightly observed by learned trial court that no prejudice was caused to the appellant for making any correction in the notice.
22. On the submissions of nonreceipt of notice by appellant, learned trial court observed that appellant did not dispute the address mentioned in the legal notice. This court, has also perused the legal notice Ex.CW1/E, postal receipt Ex.CW1/F and tracking report Ex.CW1/G. It is seen that the vakalatnama executed by appellant before the trial court in favour of his lawyer Ms. Kavita Kapil, bears the same address, to which legal notice was sent. The vakalatnama was purportedly executed on 23.05.2014. Hence, the legal notice was duly sent at the correct address of appellant through pre paid post. Tracking report reflect that article booked through postal receipt Ex.CW1/F was duly delivered to appellant on 30.07.2013. Hence, the trial court has rightly rejected the Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 12 of 17 CA No. 56/19 submissions on behalf of appellant that legal notice was not served upon him.
23. Similarly, the trial court has considered submissions of appellant regarding absence of signatures of respondent on the invoices and had relied upon the case of B.M. Basavaraj Vs Srinivas S. Datta IV (2016) SLT 155, wherein it was held "It is not even necessary for the appellant/complainant to produce any document to the effect that it had fulfilled the 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". Hence trial court rightly observed Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 13 of 17 CA No. 56/19 that absence of signatures of complainant on invoices does not rebut presumption under section 118 and 139 NI Act.
24. Merely mentioning a different address in the invoices then the address mentioned in the complaint, does not render the transactions between the parties as doubtful. The respondent might be issuing the bills from his business address, whereas in the complaint he may mention his residential address. There may be more than one business address of the respondent. This point could have been clarified only during crossexamination of respondent. Neither this point is material nor appellant is allowed to raise it at this stage.
25. Regarding other inconsistencies in the statement, referred by learned Ms. Poonam Mahajan, learned trial court observed in para no. 18 "It was also argued by learned counsel for the accused that there are inconsistencies in the statements of the complainant which throw doubt over his version. It was pointed out by Ld. Counsel for the accused that in the complaint, the complainant stated that he deals in the business of Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 14 of 17 CA No. 56/19 readymade garments whereas during his cross examination, he stated that he deals in unstitched clothes. Ld. Counsel for the accused also pointed out that in the invoices Ex.CW1/A and Ex.CW1/B it is written that cotton fabrics were supplied to the accused whereas during crossexamination, the complainant stated that cotton clothes were supplied to the accused. She further contended that in the complaint, it is mentioned that a discount of Rs.1375/ was given to the accused whereas during crossexamination, he stated that Rs.1375/ was deducted towards the defect of goods. Again I do not find any substance in the submission of the Ld. Counsel for the accused. The inconsistencies pointed out by ld. Counsel for the accused are minor discrepancies which do not go to the root of the matter. Further, the complainant was crossexamined in the year 2017 with respect to the transaction of the year 2013. Thus, some lapses are bound to occur in the testimony of the witness. Considering the overall fact and circumstances of the case and considering the presumption of law under Section 139 & 118 of the Act, the scale of balance tilts in favur of the complainant".
Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 15 of 17 CA No. 56/19
26. Learned trial court has rightly observed that inconsistencies pointed out by learned counsel for appellant are only minor discrepancies which do not go to the root of the matter.
27. Court do not find any substance in the submissions that appellant could not avail opportunity to lead defence. Trial court could not have compelled appellant to lead defence. Trial court had given opportunity to appellant and had fixed the case for DE. Appellant himself closed his evidence. Even in this appeal no prayer for leading evidence is made. Hence, this ground is frivolous.
28. This court do not find any illegality or impropriety in the learned trial court judgment. A well reasoned order has been passed after dealing with contentions and discussing the law and citations. There are no merits in appeal. Appeal is accordingly dismissed.
29. There is no counter appeal nor any reply for enhancement of sentence was filed, when the notice was first served upon the respondent. Hence, this court do not find any reason for enhancement of sentence.
Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 16 of 17 CA No. 56/19
30. Appeal is accordingly dismissed. The judgment and order on sentence passed by learned trial court is upheld.
31. TCR be sent back along with copy of this judgment.
32. Appeal file be consigned to record room.
Announced in the open court Digitally
signed by
on the 04th day of September, 2019 AJAY AJAY PANDEY
Date:
PANDEY 2019.09.04
16:18:41 -
0500
(Ajay Pandey)
Additional Sessions Judge (NW)
Rohini Court/Delhi
Ajay Marwah Vs M/s B.D. Jain Trading Company Page no. 17 of 17
CA No. 56/19