Delhi District Court
Anand Duplex Ltd vs . Raj Art Printing Press (P) Ltd Page No. 1 ... on 6 December, 2012
ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 1 of Pages 21
IN THE COURT OF SH. GAJENDER SINGH NAGAR
METROPOLITAN MAGISTRATE, KKD, EAST, NEW DELHI
Complaint No. 2585/10, 2586/10, 2587/10, 2588/10,
2589/10, 2590/10, 2591/10, 2592/10, 2604/10, 7018/10,
7019/10, 7020/10, 7021/10, 7022/10, 7023/10, 7024/10,
7025/10, 7026/10, 7027/10 & 7028/10.
PS. Preet Vihar
M/s Anand Duplex
through its AR
Sh. Dinesh Kumar Sharma,
S/o Late Sh. Hukum Singh,
Office at 52, Mausam Viihar,
Delhi51 ......... Complainant.
Versus
M/s Raj Art Printing Press (P) Ltd,
through its proprietor
Brij Mohan Gupta,
S/o Late Sh. M.L. Gupta,
R/o 9728, Gaushala Road,
Kishan Ganj, Delhi6 ......... Accused.
COMPLAINT U/s 138 OF THE NEGOTIABLE INSTRUMENTS ACT
Offence complained of : U/s 138 N.I. Act
Plea of Accused : Not guilty
Complaint filed on : 19.12.2008
Final Arguments heard & Concluded on : 30.10.2012
Date of decision of the case : 06.12.2012
Final order : Conviction
ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 2 of Pages 21
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide 20 complaint cases U/s 138 Negotiable Instrument Act 1881 (as amended up to date) filed by the complainant Anand Duplex (P) Ltd, against the accused Raj Art Printing Press (P) Ltd through its director Brij Mohan Gupta. The 20 cases were filed on the basis of 20 separate cheques issued by the accused on account i.e. under same transaction in favour of the complainant, hence the trial of the cases was clubbed for all practical purposes and all the documents filed at the stage of cross examination of the complainant witnesses were filed in original only in CC no. 2604/10 which were accepted to be read in all the cases by both the parties, therefore it's in the interest of justice that the present 20 cases should be decided by way of a common Judgment.
2. The facts in brief necessary for the disposal of the present cases as stated in the complaint are that complainant is / was the manufacturer of Duplex Boards which has filed the present cases through its authorized representative Mr. Dinesh Kumar Sharma. That the accused was having business terms with the complainant and placed order for supply of Duplex papers on different dates and accordingly same were supplied to the accused and to discharg that liability accused has issued a number of cheques which are subject matter of present 20 cases. The details of the cheques and reason for dishonor and date of ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 3 of Pages 21 legal notice sent are as under:
i) Cheque bearing no. 446500 dated 30.05.2008 for a sum of Rs.55,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no. 1863. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no.
7019/10 as Ex. CW1/A to Ex. CW1/I, including the authority of the AR and other documents.
ii) Cheque bearing no. 446502 dated 14.06.2008 for a sum of Rs.45,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1864. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7024/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
iii) Cheque bearing no. 446503 dated 20.06.2008 for a sum of Rs.60,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1865. dishonored due to "insufficiency of funds" vide cheque returning memo dated ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 4 of Pages 21 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7025/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
iv) Cheque bearing no. 446504 dated 27.06.2008 for a sum of Rs.55,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1866. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7023/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
v) Cheque bearing no. 446505 dated 04.07.2008 for a sum of Rs.60,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1867. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7018/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
vi) Cheque bearing no. 446506 dated 12.07.2008 for a ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 5 of Pages 21 sum of Rs.50,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1868. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7020/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
vii) Cheque bearing no. 446507 dated 18.07.2008 for a sum of Rs.40,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1869. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7026/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
viii) Cheque bearing no. 446508 dated 25.07.2008 for a sum of Rs.55,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1870. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 6 of Pages 21 UPC. All the above stated documents are exhibited in CC no. 7021/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
ix) Cheque bearing no. 446509 dated 31.07.2008 for a sum of Rs.50,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1871. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7022/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
x) Cheque bearing no. 446510 dated 07.08.2008 for a sum of Rs.60,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the goods supplied vide voucher no.1872. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7028/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
xi) Cheque bearing no. 446511 dated 14.08.2008 for a sum of Rs.55,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of liability for the ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 7 of Pages 21 goods supplied vide voucher no.1873. dishonored due to "insufficiency of funds" vide cheque returning memo dated 14.08.2008. Thereafter a legal notice dated 27.08.2008 which was sent to the accused on 28.08.2008 by registered AD and UPC. All the above stated documents are exhibited in CC no. 7027/10 as Ex. CW1/A to Ex. CW1/G, including the authority of the AR and other documents.
In respect of following cheques legal notice was issued on 03.11.2008.
i) Cheque bearing no. 446512 dated 22.08.2008 for a sum of Rs.60,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2604/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
ii) Cheque bearing no. 446513 dated 29.08.2008 for a sum of Rs.70,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 8 of Pages 21 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2587/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
iii) Cheque bearing no. 446514 dated 05.09.2008 for a sum of Rs.60,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2585/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
iv) Cheque bearing no. 446515 dated 13.09.2008 for a sum of Rs.65,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2592/10 as Ex. CW1/A to Ex. CW1/F, including the authority of ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 9 of Pages 21 the AR and other documents.
v) Cheque bearing no. 446516 dated 20.09.2008 for a sum of Rs.70,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2589/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
vi) Cheque bearing no. 446517 dated 26.09.2008 for a sum of Rs.60,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2591/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
vii) Cheque bearing no. 446518 dated 03.10.2008 for a sum of Rs.65,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 10 of Pages 21 liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2586/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
viii) Cheque bearing no. 446519 dated 05.10.2008 for a sum of Rs.60,000/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2590/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
ix) Cheque bearing no. 446520 dated 06.10.2008 for a sum of Rs.54,987/ drawn on Standared & Chartared Bank, Karol Bagh, Delhi branch issued in discharge of outstanding liability towards purchases which comes to Rs.17,44,387/ as on 22.08.2008. The cheque was dishonored due to " Payment Stopped by Drawer" vide cheque returning memo dated 08.10.2008. Thereafter a legal notice dated 03.11.2008 which ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 11 of Pages 21 was sent to the accused on the same day by registered AD and UPC. All the above stated documents are exhibited in CC no. 2588/10 as Ex. CW1/A to Ex. CW1/F, including the authority of the AR and other documents.
It is further alleged that despite service of legal notice accused has not paid any thing to the complainant till the filling of the case.
3. After the complaint was filed, the AR of the complainant led the presummoning evidence by way of an affidavit and after hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused vide order dated 25.02.2009 for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused a separate notice U/s 251 Cr.P.C. Dated 27.11.2010 was framed upon the accused to which he pleaded not guilty and claimed trial.
4. In order to prove the case, the AR of the complainant namely Mr. Dinesh Kumar Sharma examined himself as CW1 and reiterated the contents of the complaint on oath before this court and filed an affidavit in evidence. This witness was partly cross examined and thereafter he did not turn up as he had left the Job of the complainant and thereafter Mr. Subhash Chand Sharma was examined as CW. He also exhibited his Authority as Ex. CW1/X, the authority of earlier AR was also reexhibited as Ex. CW1/A, cheque in question, cheque returning memo, legal ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 12 of Pages 21 notice, AD & UPC slips were also exhibited by him. During his cross examination he had exhibited following documents (which are in the file bearing no. 2604/10 matters being clubbed for the purpose of trial the same can be read in all the files): Copy of resolution as Ex. CW2/H, he had also brought copy of 34 bills raised on the accused for goods supplied in year 2006 exhibited as Ex. CW2/I(OSR), he had also exhibited another set of 37 bills raised on the accused for the supplies in the year 2007 same are exhibited as Ex. CW1/J(OSR). He accepted the receipt of legal notices sent by the accused and the same were exhibited as Ex. CW2/D1(single reply dated 07.11.2007 for 09 notices in respect of cheques bearing no. 446512 to 446520) and Ex. CW2/D2 (single reply dated 09.09.2008 for 11 notices in respect of cheques bearing no. 446500, 446502 to 446511). Copy of receipt whereby VAT and excise duty was paid are exhibited as Ex. CW2/K (OSR) (collectively for 13 pages) & Ex. CW2/L (OSR) (collectively for 13 pages). He had also exhibited certified copies of the Audit Annual report for the year 200506, 200607 & 200708 as Ex. CW2/M, Ex. CW2/N & Ex. CW2/O. Copy of the account of the accused prepared by the complainant in its books for the year 200506, 200607 & 200708 are exhibited as Ex. CW2/P(OSR), Ex. CW2/Q(OSR) & Ex. CW2/R(OSR). Thereafter, the complainant evidence was closed at request.
5. After that the statement of accused was recorded U/s 313 Cr.P.C in which all the incriminating evidence along with ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 13 of Pages 21 exhibited documents were put to the accused. In his statement accused stated that all the cheques in question in present 20 cases were given by him as security. He accepted the receipt of legal notice and also submitted that he duly replied the same. Thereafter the case was fixed for Defence evidence. It is submitted by the accused that he does not want to lead DE hence the matter was fixed for final arguments.
6. 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.
7. 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.
(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 ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 14 of Pages 21 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.
8. In the present case the accused accepted his signature on the cheques in question. In his statement U/s 263(g) Cr. PC recorded at the time of framing notice U/s 251 Cr. PC it was submitted by the accused that all the particulars on the cheque were also filled by him. He also accepted presentation of the cheques and their dishonor. However with respect to nine cheques from 446512 to 446520 the ground of dishonor mentioned in dishonor memo exhibited U/s 146 N.I.Act is "payment stopped by the drawer" but it is submitted by the accused that he never got the payment of these cheques stopped, in any case the dishonor of these cheques is not disputed. The accused accepted the receipt of legal notice and the fact that he had not made the payment within 15 days, infact it is submitted by him that he had duly replied the legal notice. The only defence raised on behalf of the accused is that all the 20 cheques involved in present 20 cases were issued to the complainant as security and were not issued towards any legal debt or liability. WHETHER THE CHEQUES IN QUESTION HAVE BEEN ISSUED ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 15 of Pages 21 IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY:
09. It is submitted by the complainant witness that the cheques in question were issued to repay the liability against purchases made by the accused from the complainant. The issuance of the cheque in favour of the complainant is not disputed.
10. At this stage let us go through the relevant provisions of law. There is a presumption in favour of the complainant u/s 118 (a) Negotiable Instruments Act that until the contrary is proved, it will be presumed that every negotiable instrument was drawn for consideration and every such instrument when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration.
11. Further Section 139 of the Negotiable Instruments Act, 1881 provides that it shall be presumed until the contrary is proved that the holder of the cheque received the cheque of the nature referred in the Section 138 for the discharge in whole or in part of his debt or liability.
12. Now it will have to be examined whether the accused has rebutted the presumption as contemplated by Section 118
(b) and Section 139 of Negotiable Instruments Act.
13. It has been observed by the Hon'ble High Court of Delhi in V.S. Yadav Vs. Reena 172(2010) DLT 561 that the offence u/s 138 NI Act is a technical offence and the complainant ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 16 of Pages 21 is only supposed to prove that the cheques issued by the respondent were dishonored, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent / accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence. It was further observed that in order to rebut the presumption u/s 139 of the NI Act, the accused, by cogent evidence, has to prove the circumstance under which the cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheques. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a contract he could not have rebutted the presumption u/s 139 NI Act. If no loan was given but cheques were retained he immediately would have protested and asked the cheques to be return and still cheques were not returned he would have served a notice as complainant.
14. Similarly in the present case it was for the accused to prove why he did not write a letter to the complainant for return of the cheques in question. Unless the accused had proved that he acted like a normal businessman / prudent person entering into a transaction he could not have rebutted the presumption u/s 139 NI Act. It was for the accused to have protested and asked the complainant to return the cheques and if still cheques were not returned he would have served a notice as complainant. ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 17 of Pages 21
15. Therefore after the establishment of the fact that the cheques were issued by the accused and specific statement of the complainant as stated above regarding liability of the accused the burden to rebut the presumption shifted to the accused. It is established principle of law that presumption of law as raised Under sections 138 & 118 of the N.I. Act can be rebutted only by cogent evidence and not by mere plea taken in the statement of the accused recorded under section 313 r.w section 281 of Cr.P.C. Further such cogent evidence can be the cross examination of the complainant or his witnesses (as held in Birender Singh V. state (NCT of Delhi) 2008(1)JCC (NI) 15).
16. In a similar case, Jose Vs. P.C. Joy 2008 (4) RCR (Crl) 251( Kerala HC), it was submitted by the accused that the cheque in question was given by the accused to the complainant as a security. Though the liability was settled as evidenced by Ex. D1 & Ex. D1(a) the cheque was not returned, inspite of requests. Therefore a stop memo was issued to the bank by the accused. He also gave a criminal complaint against the complainant which was taken on file as C.M.P 281/01 ( Ex. D2).
17. On these cogent evidences and the fact of issuing stop memo to the bank and filling a criminal complaint against the complainant the presumption under NI Act stood rebutted. However in the present case there is no cogent evidence whatsoever has been adduced by the accused to support his plea that the cheques in question were given to the complainant as ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 18 of Pages 21 security only. No stop memo has been issued by him to his bank, though the cheques bearing no. 446512 to 446520 were dishonored due to "payment stopped by the drawer" but the accused never claimed that their payment was got stopped by him. Further the cheques bearing no. 446500, 446502 to 446511 were dishonored due to insufficiency of funds. The accused has not taken any other legal remedy against complainant. He has not made any complaint against the complainant. Thus the bald plea of the accused having not been substantiated by any cogent, convincing and clear evidence would not be sufficient to rebut the presumption of law.
18. The Ld. Defence counsel had argued that accused had paid the complainant in advance for whatever goods supplied to him vide invoice no. 933, 939, 945, 951 & 957. It is further submitted by him that none of the invoices exhibited as Ex. CW2/I and Ex. CW2/J bears the signatures of the accused, hence the complainant failed to prove that any goods were delivered to the accused. It is further argued by him that it was the policy of complainant to take advance payment of full amount before supplying goods. It is further argued by him that the 20 cheques in question along with one more cheque bearing no. 446501 were given to the complainant as security but the same are misused by the complainant.
19. I have heard the above stated arguments of the Defence Counsel, these arguments appears to be self ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 19 of Pages 21 contradictory as the Ld. Counsel has accepted that goods were delivered to the accused vide bill no. 933, 939, 945, 951 & 957 but he had not received goods by way of other bills as those bills does not contain any receiving from the accused. At this point it is to be noted that even the bill no. 933, 939, 945, 951 & 957 do not bear any receiving made by the accused which shows that the accused used to receive goods without any receiving. The other arguments of the Ld. Defence Counsel is also contradictory as if the complainant used to take all the payment in advance then what was the need to give these security cheques, as security cheques could be given only when payment is to be made after passing of some time after delivery. Further the contentions of Ld. Defence counsel that the goods in huge quantity can not be supplied to the accused by Vikram Auto as alleged or that there is no auditor note to collect money from the accused are not significant enough to rebut the statutory presumption arisen in favor of the complainant. The presumption U/s 118 & 139 of NI Act are mandatory presumptions in favor of the complainant and the same can not be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. A fact is said to be proved when its existence is directly established or when upon the material before it Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists.
ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 20 of Pages 21
20. The counsel for the accused cited the decision of the Supreme court in his favour titled as Krishna Janardhan Bhat v. Dattataraya G. Hegde (2008) 4 SCC 54, however the ratio of this case that existence of legally recoverable debt is not a matter of presumption under section 139 of the NI Act, has been overruled by the Hon'ble Supreme Court itself in Rangappa Vs Mohan 2010TLPRE0300 (A Three Judges Bench Judgement) where in it was held:
We are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct.
21. Thus from the above stated discussion it is clear that the accused has failed to rebut the presumptions U/s 118 (b) and 139 of Negotiable Instruments Act.
22. Considering the entire evidence on record, it stands duly proved that the cheques in question which are exhibited CW1/A in all the present 20 cases were issued and drawn in discharge of legal liability of the accused and for consideration.
23. In view of the aforesaid discussion, I am of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All ANAND DUPLEX LTD Vs. RAJ ART PRINTING PRESS (P) LTD Page no. 21 of Pages 21 the ingredients of Section 138 of Negotiable Instruments Act have been duly proved on record. Accordingly, accused M/s Raj Art Printing Press (P) Ltd, through its proprietor Brij Mohan Gupta, S/o Late Sh. M.L. Gupta, R/o 9728, Gaushala Road, Kishan Ganj, Delhi6 stands Convicted of the offence U/s 138 Negotiable Instruments Act. Let the copy of this judgment be supplied to the accused free of cost.
Announced in the open court today i.e. 06.12.2012 (GAJENDER SINGH NAGAR) MM:KKD:DELHI:06.12.2012 Containing 21 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM:KKD:DELHI:06.12.2012