Delhi District Court
Sh. Raj Kumar Gupta vs Sh. Satender Pal Sharma on 11 March, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE,
MUNICIPAL01 (CENTRAL) KKD, EAST, NEW DELHI
Presided by: Sh. Gajender Singh Nagar
Complaint No. 2021/10
Unique ID No. 02402R0058612010
PS. Vivek Vihar
Sh. Raj Kumar Gupta,
S/o Sh. J.P. Gupta,
R/o A151, Vivek Vihar Phase1
Delhi95. ......... Complainant.
Versus
1. Sh. Satender Pal Sharma
S/o Sh. Kharak Singh,
R/o H.NO. 4A, Gali No.4,
Gurdwara Mohalla,
Maujpur, Delhi.
2. Sh. Kuldeep Singh,
S/o Late Sh. Preetam Singh,
R/o D31, Sector61,
Noida (U.P.).
3. Nandi Gas Distributors
193A DDA Flats, Jhilmil Colony,
Delhi95 ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Date of commission of offence : 11.02.2010
Plea of Accused : Not guilty
Complaint filed on : 02.03.2010
CC No. 2021/10 page no. 1 /14
Final Arguments heard & Concluded on : 22.02.2014
Date of decision of the case : 11.03.2014
Final order : Acquittal of all
accused persons.
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant Sh. Rajkumar Gupta, against the accused no.1 Sh. Satender Pal Sharma, accused no. 2. Sh. Kuldeep Singh & accused no. 3. Nandi Gas Distributors.
2. The prosecution story in brief necessary for the disposal of the present case is that, accused Satender Pal Sharma along with accused Kuldeep Singh have been engaged in the business of supply of L.P. Gas being distributor of M/s Indian Oil Corporation in the name and style M/s Nandi Gas Distributor and both the accused being partners were responsible for looking after day to day administration and control over the business of the accused no. 3 M/s Nandi Gas Distributor. Due to good relations with the complainant, accused Satender Pal Sharma along with accused Kuldeep Singh had approached the complainant in the month of July 2009 for financial assistance of Rs.2,00,000/ for their business. On that the complainant had gave Rs.2,00,000/ in cash for short period to the accused CC No. 2021/10 page no. 2 /14 Satender Pal Sharma & Kuldeep Singh on behalf of the accused no.3 M/s Nandi Gas Distributor. In September 2009 the accused persons again approached & requested the complainant for further loan of Rs.5,00,000/. On that the complainant had given the sum of Rs.4,00,000/ in cash. Thus accused Satender Pal Sharma and Kuldeep Singh had taken total loan of Rs. 6,00,000/ from the complainant. At the time of taking the second loan a promissory note Ex. CW1/A2 was also executed between the parties. Towards discharge of the said loan, a cheque bearing no. 245175 dated 20.12.2009 for the sum of Rs. 6,00,000/ drawn on SBI, Gandhi Nagar branch was issued in favour of the complainant but on presentation the said cheque was returned back dishonored with the remark "INSUFFICIENT FUND" vide dishonour memo dated 14.01.2009. Thereafter a legal notice was sent to the accused persons on 25.01.2010 by way of regd AD and UPC. It is further alleged that despite service of legal notice accused persons have not paid the cheque amount to the complainant till the filling of the case.
3. After the complaint was filed, summons were issued against the accused persons vide order dated 21.04.2010 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused persons notice U/s 251 Cr.P.C. dated 05.01.2013 was framed upon the accused persons to which they pleaded not guilty and claimed trial.
4. In order to prove the case, the complainant examined CC No. 2021/10 page no. 3 /14 himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. He also exhibited original cheque bearing No.245175 as Ex. CW1/A1, Pronote as Ex. CW1/A2, the cheque deposit slip as Ex. CW1/A3, the cheque returning memo as Ex. CW1/A3, the legal notice of demand dated 25.01.2010 as Ex. CW1/A4, The original receipts of registered post as Ex. CW1/A5 & U.P.C. as Ex. CW1/A5, registered AD as Ex. CW1/A6 (colly), Registered letter as Ex. CW1/A7, reply to the legal notice of the complainant as Ex. CW1/A7. Thereafter, the complainant evidence was closed at request.
5. After that on 10.05.2013 the statement of accused persons were recorded U/s 313 Cr.P.C in which all the incriminating evidence along with exhibited documents were put to the accused persons. In his statement accused Satender Pal Sharma stated that he was never been a partner in M/s Nandi Gas Distributor. It is further submitted by him that he had never taken loan of Rs.6,00,000/ from the complainant, infact he had taken a loan of Rs.2,00,000/ from the complainant and at the time of taking the loan of Rs.2,00,000/ he had issued three or four filled up cheques of Rs.18,500/ along with 2021 blank signed cheques as security to the complainant and the cheque in question is one of the blank signed cheque given by him to the complainant as security. It is further submitted by him that he know the complainant since year 2008 as he used to visit him for the CC No. 2021/10 page no. 4 /14 supply of Cylinders and they used to supply Cylinders to the complainant in the name and style of his firm Veena Enterprises. It is further submitted by him that since year 2007 to 2009 Mr. Rajkumar Gupta used to visit the godown of accused no. 1 and got the supply of cylinders from him. It is further submitted by him that the promissory note Ex. CW1/A2 bears his signature but it does not bear the stamp of M/s Nandi Gas Distributors. It is further submitted by him that he had repaid the loan of Rs. 2,00,000/ to the complainant and after repayment of loan he requested the complainant on a number of occasions to return his security cheques but he always assured him that he would return the cheques and also assured him about their good relations. Thereafter in the year 2009 the complainant had broken the business ties with accused no.1 and has misused his security cheques to file the present case. The complainant has also given his cheque to one Mr. Sushil Mishra who has also filed a case U/s 138 NI Act against him. It is further submitted by him that the cheque in question was of Nandi Gas Distributor and he has signed on the same in misunderstanding as the complainant had brought the cheque book of M/s Nandi Gas Distributor from the drawer. Further both the cheque books are of SBI and both the cheque books were kept in his drawer.
6. In his statement accused Kuldeep Singh stated that he is the sole proprietor of M/s Nandi Gas Distributor since it's formation and he can not change the constitution of this firm due to his agreement with Indian Oil Corporation. It is further CC No. 2021/10 page no. 5 /14 submitted by him that he was only a witness on promissory note Ex. CW1/A2. It is further submitted by him that he had not issued the cheque in question to the complainant and the cheque in question does not bear his signature as he had not taken any loan from the accused. It is further submitted by him that he had received the legal notice and duly replied the same. It is further submitted by him that he had entered into an agreement with the complainant, who had certain delivery boys through whom he used to deliver cylinders to the customers after taking the same from accused firm. In that transaction he had made certain payments to Veena Enterprises proprietorship firm of the complainant. The stamp on the cheque of Nandi Gas Distributor has been forged by the complainant as he had already seen the stamp of Nandi Gas Distributor which was put up on agreement dated 01.08.2007 executed between complainant and himself. The complainant had given some amount to his godown keeper Satender Pal Sharma and now they have implicated him in the present case just to harass him to recover the amount. It is further submitted by him that he had no need to take loan from the complainant as yearly turn over of his firm is around rupees Six Crore and he was not in financial need to take any loan from the complainant.
7. Thereafter the case was fixed for Defence evidence. The accused examined Sh. S.K. Sharma, Advocate as DW1. It is submitted by DW1 Sh. S.K. Shrma in his examination in Chief that in complaint CC no. 2021/2010 Document Ex. CW1/A4 CC No. 2021/10 page no. 6 /14 dated 25.01.2010 was drafted and sent by him on behalf of Mr. Raj Kumar Gupta and the same was posted on 27.01.2010 in respect of which he had received reply which is Ex. CW1/A7. It is further submitted by him that he has not received the reply on behalf of accused Satender Sharma. It is further submitted by him that Ex. DW1/1 dated 24.07.2010 is copy of a legal notice drafted and sent by him on behalf of one Mr. S.N. Pandey to Mr. Satender Pal Sharma, Nandi Gas Distributor and Kuldeep Singh. It is further submitted by him that Mr. Rajkumar Gupta, Mr. Sushil Mishra & Mr. S.N. Pandey never used to visit his office together and they had approached him separately. He did not file complaint case in furtherance of legal notice (Ex. DW1/1) sent on behalf of Mr. S.N. Pandey. Sh. K.S. Kaushal, Senior Manager UCO Bank, Shahdara branch examined as DW2. He has filed on record the balance confirmation record of Nandi Gas Distributors as Ex. DW2/1 (collectively for 04 pages) (OSR), Original agreement between Nandi Gas Distributors and Indian Oil Corporation filed by the Nandi Gas Distributors with their bank as Ex. DW2/2 (collectively for 14 pages) (OSR). In his examination in Chief it is submitted by DW2 that as far as he know Mr. Kuldeep Singh is the only authorized signatory of the account of Nandi Gas Distributors. He has also filed on record account opening form and specimen signature card pertaining to the account of Nandi Gas Distributor as Ex. DW2/3 (collectively for 2 pages) and documents annexed along with account opening CC No. 2021/10 page no. 7 /14 form Ex. DW2/4 (collectively for 17 pages). Sh. D.K. Gupta, Special Assistant, SBI, Gandhi Nagar branch examined as DW3. He has filed on record letter dated 20.11.2013 as Ex. DW3/A (OSR), photocopy of the cheque bearing no.248092 dated 22.07.2006 of Rs.84,870/, bearing no. 245108 dated 19.08.2006 of Rs.84,876/, bearing no. 245109 dated 21.08.2006 of Rs.84,876/ & bearing no.245112 dated 21.08.2006 of Rs.84,876/ collectively as Ex. DW3/B (OSR) (Colly), original screen shot of computer in which the signature of the proprietor of Nandi Gas Distributors and his photograph is shown as Ex. DW3/C, original copy of the statement of account of account as Ex. DW3/D(colly), the original letter dated 21.09.2013 filed by the branch manager SBI, Gandhi Nagar branch bearing signature of Mr. S.M. Saroha as Ex. DW3/E. No other witness was examined and Defence Evidence was closed and the matter was fixed for final arguments.
8. I have heard Ld. counsels and perused the entire record of the case file and the evidence on record. Both the counsel have referred to a number of cases, I have discussed them at the relevant place.
9. Before proceeding further let us go through the relevant provisions of law. The main ingredient of Section 138 of the Negotiable Instruments Act are as follows:
(a) The accused issued a cheque on an account maintained by him with a bank.
CC No. 2021/10 page no. 8 /14
(b) The said cheque has been issued in discharge of any legal debt or other liability.
(c) The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
(d) When the aforesaid cheque was presented for encashment, the same was returned unpaid/ dishonoured.
(e) The Payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the Bank regarding the return of the cheque.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 Negotiable Instruments Act.
10. Now let us deal with the each ingredient of the section 138 of Negotiable Instruments Act to see whether the case against the accused has been proved or not.
WHETHER THE ACCUSED PERSONS HAVE ISSUED THE CHEQUE ON AN ACCOUNT MAINTAINED BY THEM WITH THE BANK OR NOT:
11. CW1 has stated in his examine in chief that the cheque in question was signed by accused Satender Pal sharma, who was a partner and authorized signatory of M/s Nandi Gas Distributor. CC No. 2021/10 page no. 9 /14 However, the complainant has not filed on record any document to show that accused Satender Pal Sharma was a partner of M/s Nandi Gas Distributor. The complainant could not filed on record any document to show that the M/s Nandi Gas Distributor was actually a partnership firm. On the other hand bank witness DW2 has filed on record copy of original agreement between M/s Nandi Gas Distributor and Indian Oil Corporation (Ex. DW2/2) which shows that accused Kuldeep Singh has signed on the same as proprietor of M/s Nandi Gas Distributor, the agreement is also having phone bill of M/s Nandi Gas Distributor showing Mr. Kuldeep Singh as proprietor of the same. DW2 has also filed on record account opening form and specimen signature card pertaining to the account of M/s Nandi Gas Distributor as Ex. DW2/3 showing that M/s Nandi Gas Distributor was a proprietorship firm and Mr. Kuldeep Singh was its sole proprietor. These documents clearly established that M/s Nandi Gas Distributor was a proprietorship firm, and Mr. Kuldeep Singh is / was its sole proprietor. Once it is established positively that Nandi Gas Distributor was a proprietorship firm as per the bank record, then the concept of implied partnership will not be attracted in respect of the same for offence U/s 138 NI Act.
12. It is contended on behalf of the complainant that accused Satender Pal Sharma must have been authorized signatory of the accused no. 3 firm M/s Nandi Gas Distributor and in that capacity he issued the cheque in question and that is why the CC No. 2021/10 page no. 10 /14 cheque in question has been dishonored due the reason insufficient funds and not due to the reason signature differ. This is correct that the cheque was dishonored due to insufficiency of funds but the bank witness have positively submitted before the court that Mr. Kuldeep Singh was the only authorized signatory of M/s Nandi Gas Distributor (being sole proprietor of the same). Further in the letter written by branch manager SBI to the Court which is Ex. DW3/E it was submitted that though the account opening form of the concerned account is not traceable, however, it is advised that Sh. Kuldeep Singh proprietor of the firm is the only signatory of the account and there is no other authorized signatory / power of attorney, signatures are available with the bank. The bank has also filed the screen shots taken from the computer as Ex. DW3/C showing photograph of accused Kuldeep Singh as proprietor of M/s Nandi Gas Distributor as on 18.11.2013. the banker has also filed on record screen shots of a number of cheques of M/s Nandi Gas Distributor as Ex. DW3/B bearing signature of Mr. Kuldeep Singh as proprietor of M/s Nandi Gas Distributor. Thus it is established that even in respect of account maintained with SBI bank accused Kuldeep singh is/ was the authorized person to operate the accounts of M/s Nandi Gas Distributor being its proprietor. Thus there is a doubt if Mr. Satender Pal Sharma was the authorized signatory of M/s Nandi Gas Distributor or not. It is established principle of law that whenever there is a doubt the benefit of the same must go to the accused.
CC No. 2021/10 page no. 11 /14
13. Thus it is established that accused no.3 M/s Nandi Gas Distributor is a sole proprietorship firm and accused Kuldeep Singh is it's sole proprietor. Hence, accused Satender Pal Sharma can not be held liable for the cheque issued by the proprietorship firm being not its proprietor, even if he may be signatory of the cheque (reliance placed on M.M. Lal v. State NCT of Delhi 2012(4) JCC (NI) 284). It is also admitted that accused Kuldeep Singh is not the signatory of the cheque in question. The testimony of the bank witness from SBI raises a doubt if accused no.1 Satender Pal Sharma was authorized person to sign on behalf of M/s Nandi Gas Distributor, as bank witness categorically stated that as per the record contained in their computer Mr. Kuldeep Singh is the only person authorized on behalf of the accused no.3 firm. In Kulvinder Singh v. Kafil Ahmed 2013(1) DCR 417 it was held by Hon'ble High Court:
"The basic principle in criminal law is that the guilt of the accused must be proved beyond reasonable doubt and if there is a slightest doubt about the commission of an offence then the benefit has to occurred to him".
14. On the basis of above stated discussion it can be held that complainant has failed to prove beyond reasonable doubt that the cheque in question was issued by the authorized person on CC No. 2021/10 page no. 12 /14 the account maintained by accused no.3. The accused persons deserves acquittal on this ground alone. Apart from this following facts shows that the case of the complainant is not probable as the loan (Rs.6,00,000/) allegedly given by the complainant to the accused persons was given in cash and the same has not been shown by the complainant in his ITR. The complainant have also failed to prove the source from where he has got the amount. It is also not explained as to why such a huge loan was given without interest. All these factors taken together raises a doubt if any such loan as alleged by the complainant was actually given or not.
15. It is argued on behalf of the complainant that accused no.1 Satender Pal Sharma has admitted his signature on the cheque in question while the cheque belongs to M/s Nandi Gas Distributor of which he is not claiming to be an authorized signatory, thus Mr. Satender Pal Sharma has committed fraud by issuing the cheque of someone else under his own signatures. On the other hand it is explained on behalf of the accused Satender Pal Sharma that he done so under a mistake as he was also having account in the SBI and cheque book of M/s Nandi Gas Distributor and his own cheque book used to be kept in the same drawer. Be that as it may, the present complaint was filed U/s 138 NI Act read with Section 141 NI Act. Cognizance was also taken for offence U/s 138 NI Act only. On the basis of above stated discussion it has been positively held that the complainant has failed to prove his case U/s 138 NI Act against CC No. 2021/10 page no. 13 /14 the accused persons as the very first ingredient of offence U/s 138 NI Act has not been proved.
16. Accused persons are directed to furnish fresh bailbond and surety bond in the sum of Rs.10,000/ each as per Section 437 A of Cr. PC.
Announced in the open court today i.e. 11.03.2014 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:11.03.2014 Containing 14 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:.11.03.2014 CC No. 2021/10 page no. 14 /14