Delhi District Court
Tajinder Pal Singh vs . on 26 May, 2014
1
IN THE COURT OF SH. BABRU BHAN, METROPOLITAN MAGISTRATE,
(SPL. NI COURT )14 DWARKA COURT, NEW DELHI
Tajinder Pal Singh
Vs.
M/s Rudraksha Apparels and ors.
C.C. No.541/14
P.S.: Dwarka Sector23 U/s 138 N.I. Act
JUDGEMENT
a) Date of commission of offence: 10.06.2011
b) Name of Complainant Tajinder Pal Singh, proprietor of
M/s. Nanak Fabrications, L225, 3rd
floor, Shashtri Nagar, Delhi.
c) Name of the accused and M/s Rudraksha Apparels, Flat No.
Address: 255, Sec.19B, Sanskriti Apartment,
Dwarka, New Delhi through its
partner Vishal Prashar & Bharat Rai.
d) Offence complained of: U/s 138 N.I. Act
e) Plea of accused: Pleaded not guilty
f) Final order: convicted
g) Date of order: 26.05.2014
h) Date of institution of case: 23.06.2011
i) Date of decision of case: 26.05.2014
CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 1 of 10 2 Brief facts and reasons for decision of the case:
1. Tajinder Pal Singh (hereinafter referred as 'the complainant') is the proprietor of M/s Nanak Fabrications, carrying on a business of marketing, trading, fabrication of garments and cloths on the name of above mentioned proprietorship firm. M/s Rudraksha Apparels (hereinafter referred as the 'accused no.1') used to purchase goods from the complainant and thus, was having good business dealings with the complainant. It is alleged that in OctoberNovember, 2010, the accused firm placed three purchase orders with the complainant. The goods were supplied to the accused in compliance of the said purchase orders. In discharge of the liability arising out of the same, the accused no.2 & 3, being the partner of accused no.1, issued three cheques bearing no.'500788' dated 23.11.2010 for sum of Rs.4,50,000/, '342546' dated 16.02.2011 for sum of Rs.1,00,000/ and '342547' dated 16.02.2011 for the sum of Rs.3,50,000/ all drawn on Andhra Bank, Dwarka, Delhi. On presentation, all the cheques were dishonoured vide separate bank memos dated 18.04.2011, 28.04.2011 and 07.05.2011 with the reasons and remarks 'Payment stopped by the drawer'. On receipt CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 2 of 10 3
of intimation of said dishonour, the complainant issued legal demand notice dated 03.05.2011 and 12.05.2011. It is alleged that the accused failed to make the payment despite service of notice. Thus, the present complaint.
2. During the complainant evidence, Tajinder Pal Singh (the complainant) was examined as sole witness. He filed his evidence by way of affidavit Ex.CW1/A. The other documents filed and relied upon by the complainant are mentioned as under:
(a) The impugned cheques (Ex.CW1/1 to Ex.CW1/3),
(b) Return Memos (Ex.CW1/4 to Ex.CW1/6),
(c)Legal demand notice dated 03.05.2011 alongwith postal receipts and reports on speed post etc. (Ex.CW1/7 to Ex.CW1/19),
(d) Legal demand notice dated 12.05.2011 alongwith postal receipts and delivery reports (Ex.CW1/20 to Ex.CW1/30),
(e) Purchase orders (Ex.CW1/DX1 to Ex.CW1/DX3), CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 3 of 10 4
(f) The statement of ledger account (Mark 'X'),
(g) Carbon copies of invoices {Ex.CW1/DX4 (colly.)},
3. The complainant was cross examined at length by ld. Counsel for the accused.
4. Complainant's evidence was followed by the statement of accused U/s. 313 CrPC, wherein, the entire incriminating evidence was put to the accused persons. During the statement, both the accused stated that they had placed purchase orders with the complainant, however, goods referred in invoice (Ex.CW1/DX4) were never supplied to them. It is further stated that impugned cheque Ex.CW1/2 was presented by the complainant in 2010, the payment was made on 01.12.2010 after dishonour of the said cheque through RTGS. It is stated that the remaining cheque were not issued towards any liability but were for on account payment. The service of demand notice has been accepted by the accused. CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 4 of 10 5
5. During the defence evidence, accused persons examined themselves as DW1 and DW2.
6. I have heard the arguments advanced by ld. Counsels appearing on behalf of both the parties. Now, I proceed with the judgment.
7. The defence of the accused qua cheque Ex.CW1/2 is that this cheque was presented twice, i.e., on 23.11.2010 and again on 15.04.2011. It is alleged that the payment of the cheque Ex.CW1/2 was made through RTGS on 01.12.2010 after its 1st dishonour.
8. CW1 deposed during his cross examination that accused has made the payment of Rs.4,50,000/ on 01.12.2010. This payment is also reflected in ledger account MarkX. The CW1 stated during his cross examination that the said payment was not made by the accused against the cheque Ex.CW1/2 but it was towards other liability outstanding in the account of the accused. As per the CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 5 of 10 6 statement of account MarkX, after dishonour of cheque Ex.CW1/2 on 25.11.2010, the amount of Rs.4,16,360/ and Rs.1,69,570/ was debited on 30.11.2010. It shows that the transactions were taking place between the complainant and the accused. It is nowhere mentioned that the payment of Rs.4.50 lacs made on 01.12.2010 was towards cheque Ex.CW1/2. Thus, no presumption can be drawn an amount of Rs.4.50 lacs was paid by the accused was towards cheque Ex.CW1/2.
9. As far as two presentations of the impugned cheque Ex.CW1/2 are concerned, a cheque can be presented for any number of times within the period of its validity.
10. The second argument advanced by ld. Counsel for the accused is that the goods reflected in invoice Ex.CW1/DX4 (colly.) were never supplied by the complainant to them. It is further argued that the address of the accused mentioned on invoice Ex.CW1/DX4 CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 6 of 10 7 (colly.) does not belong to the accused and thus, the goods were never delivered to them.
11. Per contra, in response to the above mentioned argument, ld. Counsel for the complainant argued that goods were supplied at M/s Rudraksha Apparels, B2/C, Street No.4, Bhagwati Garden Extn., Uttam Nagar, Delhi and not on the Shipping address mentioned in the purchase order because the accused had instructed so.
12. This argument, advanced by ld. Counsel for the accused that goods were never delivered to them due to wrong address is hardly impressive. The reason is, it is admitted that the complainant and the accused were having business dealings since long time, under these circumstances, the possibility cannot be ruled out that complainant knew the actual shipment address of the accused firm and the address mentioned on the invoice was a mere formality. CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 7 of 10 8
13. Further, the accused no.3 Bharat Rai has given his address as 'B32/C, Bhagwati Garden Extn. Street No.4, Uttam Nagar, Delhi'. This address is almost same, except the digit '3' to the address mentioned on Invoice Ex.CW1/DX4 (colly.). CW1 stated during his cross examination that as per instructions of accused, the goods were delivered by the complainant to the accused at 'B2/C, Bhagwati Garden Extn. Street No.4, Uttam Nagar, Delhi'. The address of accused no.3 and the address mentioned on Ex.CW1/DX4 are identical. The possibility cannot be ruled out that said address was mentioned as mere formalities on instructions of the accused no.3. The difference of 'B2/C' and 'B32/C' is apparently a clerical mistake.
14. If the complainant had to forge the invoice, he could have manipulated and mentioned the correct shipping address of the accused firm as he must be knowing the same in view of the previous business dealings between them. But same was not done. CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 8 of 10 9
15. Moreover, the accused has stated during his statement u/s.313 CrPC that goods were partially delivered to them. It means that the complainant was aware of the correct shipment address of the accused as they had delivered goods to them on earlier occasions also. Therefore, no person of ordinary prudence would deliberately mention a wrong shipment address on an invoice when he knows the correct address.
16. From the above discussions, this court draws a conclusion that under the given circumstances, merely because a different address has been mentioned on the invoice doesn't prove that the goods were not delivered to the accused persons. Thus, this argument is liable to be rejected.
17. The defence pleaded qua remaining cheques, i.e., Ex.CW1/1 & Ex.CW1/3 is that the accused had made the payment of the said cheques prior to the presentation of the same. However, nothing has been produced on record to show the said payment. CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 9 of 10 10
18. The dishonour of impugned cheques is proved by the return memos filed on record. The service of legal demand notice is not disputed.
19. Conclusion is that all the ingredients of offence u/s.138 N.I. Act are proved. Accused failed to establish any plausible defence in their favour. Accordingly, accused no.2 Vishal Prashar and accused no.3 Bharat Rai, partners of M/s Rudraksh apparels are hereby convicted for offence u/s.138 N.I. Act.
(Announced in the open court on 26.05.2014) This Judgment contains 10 pages.
and each paper is signed by me.
(BABRU BHAN) METROPOLITAN MAGISTRATE DWARKA COURTS /NEW DELHI CC No.541/14; Tajinder Pal Singh Vs.M/s Rudraksha Apparels and ors. Page 10 of 10