Delhi District Court
Sh. Sanjay Jain (Proprietor) vs M/S Prakash Chand Gopal Kishan on 25 January, 2014
IN THE COURT OF MS. SAVITA RAO
ADDITIONAL SESSIONS JUDGE-02, CENTRAL, DELHI
CRIMINAL APPEAL No. 91/13
C.C. No. 1664/10
PS : Kotwali
U/s : 138 NI Act
IN THE MATTER OF :
Sh. Sanjay Jain (Proprietor)
M/s Aman Deep Dresses
C-6/399, Yamuna Vihar
Delhi-110053 ............PETITIONER
versus
M/s Prakash Chand Gopal Kishan
652, 2nd Floor, Gali Ghanteshwar
Katra Neel, Chandni Chowk
Delhi-110006 ........RESPONDENT
DATE OF FILING : 26.07.2013
DATE OF ARGUMENT : 22.01.2014
DATE OF ORDER : 25.01.2014
ORDER
1. This is a criminal appeal filed by the appellant aggrieved by the Judgment and Order on sentence dated 24.05.2013 and 28.06.2013 respectively passed by Ld. Trial Court whereby the appellant was convicted and sentenced to undergo SI for three months and payment of compensation of Rs. 60,000/- to the complainant within two months and in default of payment of compensation, was further sentenced to undergo SI for three months.
2. The complaint was filed U/s 138 of NI Act, by the complainant on the allegations that appellant herein had issued 10 cheques aggregating to Rs. 39,664/- against the payment for purchase of goods from the complainant firm, which cheques were returned unpaid with the remarks 1/8 "insufficient funds". Despite sending the legal demand notice, the appellant failed to pay the said amount and the complainant was constrained to file the complaint against the appellant herein. It remained admitted fact on record that the goods were purchased by the accused from the complainant firm for a total sum of Rs. 1,25,000/- approximately. However, according to the appellant, goods worth about Rs. 57,500/- were returned to the complainant whereas the amount due had been paid by him in cash with the receiving on the backside of bills, thereby leaving the balance amount of Rs. 4,600/- which was payable to the complainant. It was also submitted that the returned goods were received by one Sh. Amar and Bhupinder, who were the employees of complainant. Bhupinder had also executed a receipt in this respect whereas receipt with respect to the receipt/cash amount on the backside of the bills was given by Umesh on behalf of complainant firm but the cheques given as security were not returned to him and as stated were misappropriated by the complainant. However, Ld. Trial Court after examination of the witnesses, rejected the plea of defence with the observation that the defence taken by the accused is not substantiated by evidence as Bhupender who was examined as DW 2 had denied his signature on any such receipt i.e. Ex. CW 1/A9 whereas the receipt of any cash amount was also denied by the other witness Umesh who was examined from the defence side. While holding that the said cheque was issued for discharge of liability by the accused, which had been returned by the bank unpaid and since the accused failed to return the said amount despite the issuance of demand notice, hence, held him guilty and sentenced accordingly.
3. Another objection taken by Counsel for appellant was that the complaint was filed by M/s Prakash Chand Gopal Krishan but nowhere in 2/8 the title of the complaint or in the entire complaint, it is stated that whether it is a proprietorship firm or partnership firm or a Company. Besides that, no documentary evidence has been placed on record to show with respect to the status of the complainant firm. As argued, the complaint should be filed either through proprietor or partner as the case may be, but in the instant matter, the complaint has been filed in the name of firm, which is not maintainable under the law and the complaint is liable to be dismissed. Ld. Counsel for appellant placed reliance upon VI (2008) SLT 641 Shankar Finance & Investments vs. State of A.P. & Ors. & II (2011) SLT 626 Milind Shripad Chandurkar vs. Kalim M. Khan & Anr. wherein inter-alia, it was observed that "there are twin requirements of Section 142 of Act, that the complaint should be in writing and complainant should be payee (or holder in due course) U/s 142 of NI act, complaint shall be maintainable in the name of 'Payee', proprietory concern itself or in the name of proprietor of said concern." Though, it is correct that the complainant who has been examined as CW 1 has admitted that he did not mention that he is the proprietor of the complainant firm, in the complaint or in his affidavit, nor filed any document to show that he is proprietor of the complainant firm but the fact remains that the complaint has been filed by the complainant M/s Prakash Chand Gopal Krishan who is the Payee of the cheques which were also deposited in the account of the complainant and were returned back dishonored. Though, it would have been appropriate, had the person representing the complainant, filed on record the documents to show his status in the firm but merely, that this technicality has not been taken care of by the complainant, the entire complaint need not be thrown for the said reason, since the initial requirement has been fulfilled when the complaint has been filed by the Payee itself, which was also the ratio 3/8 decindi in authorities relied upon by the appellant himself.
4. The other objection taken by Counsel for appellant is that the complainant has not exhibited any documents filed by him, therefore, cannot be considered, read and relied by the Court, is not sustainable since the documents filed by the complainant have been duly executed by him as Ex. CW 1/1 to CW 1/33.
5. The other objection was concerning the filing of the complaint through GPA Holder which according to Counsel for appellant, is not permissible under the law. For the aforesaid, he placed reliance upon 2009 (1) DCR 86 Raj. High Coutrt, Lalita Hundiya vs. Govind Narayan Khteta and Anr. where the complaint had not been filed in accordance with Section 142(2) of NI Act and was held to be not maintainable. It has not been clarified by Counsel for appellant as to how there is no compliance of Section 142(2) of NI Act, by filing of the complaint through GPA Holder, rather in the other authority relied upon by Counsel for appellant himself i.e. Shankar Finance & Investments vs. State of A.P. & Ors. (supra), it was observed that complaint can be filed through attorney holder who can also be examined, if he is in knowledge of transaction. In the instant matter, though the complaint was filed through attorney holder of the concern itself, yet CW 1 who claimed himself to be the proprietor of the firm was examined. Therefore, the case of the complaint stands rather on the better footing since, the transaction between the parties was within the knowledge of CW 1 who had deposed in this respect before the Court.
6. The other objection raised by Counsel for appellant was concerning the requirement of service of notice upon the accused. According to him, the complainant had not proved the service of legal notice upon the accused which notice sent through registered post had been returned as 4/8 unclaimed and the accused was stated to be served with notice sent through UPC but as submitted, appellant never received the legal notice whereas Trial Court went by presuming the same to be a proper service. In terms of the report on registered AD, despite the intimation delivered, the addressee did not meet and therefore, the envelope was returned unclaimed whereas notice was sent through UPC and in these circumstances, when the notice was sent at the correct address of the appellant which was also served through UPC but by registered post remained unclaimed despite intimation delivered, it amounted to proper service of the notice upon the appellant which plea was also rightly taken up and rejected by Trial Court. It was further submitted on behalf of the appellant that in terms of Section 139 of the Act, Section 139 merely raises a presumption with regard to issuance of cheque in discharge of recoverable debt or other liability but does not give any presumption about the existence of legally recoverable debt. It was submitted that the complainant despite its claim that it had maintained an open and running account for the purchase but no books of account was produced by the complainant to show existence of any enforceable debt or liability against the appellant/accused, therefore, as the complainant failed to discharge initial onus to prove existence of any enforceable debt or liability against the appellant/accused. It was also submitted that complainant had put no question to the appellant with respect to default in return of any goods, therefore, same was also deemed to be admitted and non return of the chequs after receipt of payment in cash was indicative of mala-fide intention of the complainant. Counsel for appellant also placed reliance upon AIR 2008 SC 1325 Kishna Janardhan Bhat vs. Dattatraya G. Hege ; 2004 CRL. L.J. 4107 Nagisetty Nagaiah vs. State of A.P. ; 2009 CRL. L.J. 3777 Sanjay Mishra vs. Kanishka Kapoor @ Nikki 5/8 andAnr. ; 2009 CRL. L.J. 3781 Satnam Singh Puransing Gill vs. The State of Maharashtra, wherein inter-alia, it was observed that the position of law which emerges is that once holder of the cheque receives the cheqe of nature mentioned U/s 138 of NI Act, the presumption U/s 139 of NI Act would arise that it is for the discharge, in whole or in part, of any debt or other liability. But such a presumption is rebuttable and the accused can prove the non existence of any debut or other liability by raising a probable defence or by demolishing or discrediting the case of the complainant. There can not be any dispute with regard to proposition of law as laid down in authorities as relied by Counsel for appellant but here is the case where there is no dispute with respect to the fact and is rather admitted fact by the appellant himself that the goods were supplied to him and he had issued the cheques except the payment of goods delivered. The defence taken by him that he had returned some of the goods and made payment against the retained goods in cash but the cheques were not returned to him, was to be proved by him. According to him, he had made the payment in cash against the cheque amount leaving the balance only for sum of Rs. 4,600/- to the broker of the complainant, namely, Umesh. Appellant himself examined the said Umesh as DW 3 who categorically denied the receipt of any payment as mentioned on the backside of the bills, rather it was stated by him that the payment mentioned by him on the backside was not received by him nor the same was written in his handwriting. Similarly, DW 2 i.e. own witness of the appellant, also denied his signatures on receipt Ex. CW1/A9, so much so, there was a clause printed on the invoice brought to the notice of the appellant that no cash payment would be payable against the goods sold for which he showed his unawareness. The witnesses examined by the appellant as already observed, denied having received any such payment 6/8 in cash against the cheque amount and the appellant himself admitted having not taken any action against Umesh, broker of the complainant and, therefore, appellant miserably failed to rebut the presumption as well as to prove his own defence and accordingly, was rightly held guilty by Ld. Trial Court. Accordingly, Judgment dated 24.05.2013 passed by Ld. Trial Court is upheld. Appeal filed by the appellant is dismissed. Announced in Open Court on 25.01.2014 (SAVITA RAO) Additional Sessions Judge-02 (Central) Tis Hazari Courts, Delhi 7/8