Delhi District Court
Ms Pro Yatra Ways P.Ltd vs Sh. Ashish Verma on 28 January, 2025
CC NO: 53173/2016 M/S PRO YATRA WAYS PVT. LTD. VS. ASHISH VERMA
IN THE COURT OF MS. NEHA SHARMA,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT) -04,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CRIMINAL COMPLAINT NO: 53173/2016
M/S. PRO YATRA WAYS PVT. LTD. ..............COMPLAINANT
VERSUS
SH. ASHISH VERMA ..............ACCUSED
1. CIS number : DLND020116652015
2. Name of the complainant : M/s. Pro Yatra Ways Pvt. Ltd.
through its Manager Sh. V.K. Kapil
Registered office at 5, First Floor,
Pusa Road, New Delhi
3. Name of the accused, : Sh. Ashish Verma
parentage & S/o Sh. Mukesh Kumar
residential address R/o B-69, Patel Nagar-II,
Ghaziabad, UP.
4. Offence complained of or : U/s 138 of Negotiable Instruments Act, 1881
proved
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Date of Institution : 28.09.2015
7. Date of judgment/order : 28.01.2025
8. Final Judgment/order : ACQUITTED
Digitally
Page no. 1 of 12 (Neha Sharma) signed by
NEHA
JMFC NI Act-04/NDD/PHC/ND NEHA SHARMA
SHARMA Date:
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JUDGMENT
1. By way of the present Judgment, this court shall dispose of the present complaint case filed by the complainant M/s. Pro Yatra Ways Pvt. Ltd. through its Manager/AR Sh. V.K. Kapil (hereinafter referred to as 'complainant') against Ashish Verma (hereinafter referred as the 'accused' u/s 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act').
CASE OF THE COMPLAINANT
2. Succinctly, the complainant's case is that the complainant is full-fledged money changer, IATA approved Travel Agent and service provider duly incorporated under the Companies Act. The accused was appointed on 29th September, 2014 as Head Trade Fairs in Pro Yatra Ways Pvt. which is sister concern of M/s Provestment Services Ltd. The accused used to travel, to attend the trade fairs and exhibitions in India and outside of India, on behalf of the complainant company as per the requirements of the customers/ clients from time to time. As per the record of the accounts maintained by the complainant, the accused is under the balance of Rs. 8,30,004/- including TBO plus outstanding plus loss to the company and the said amount is due on the account of accused.
3. Against the amount of Rs. 8,30,004/-, the accused issued six post-dated cheques bearing No. 068887 dated 29.07.2015 No. 068888 dated 01.08.2015 No.068884 dated 13.08.2015, No. 068885 dated 18.08.2015, 0658886 dated 18.08.2015, No. 068889 dated 18.08.2015 for a sum of Rs. 1,00,000/- each, drawn on Axis Bank Ltd, Sector-62, Noida, UP (hereinafter referred to as "cheques in question") against the total amount of Rs. 8,30,004/-. The accused also assured to pay Rs. 2,30,004/- in cash to the complainant, however, the accused did not appear in office since 01.06.2015 without intimation to the complainant company.
Digitally
signed by
Page no. 2 of 12 (Neha Sharma) NEHA
NEHA
SHARMA
JMFC NI Act-04/NDD/PHC/ND SHARMA Date:
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4. On the commitment/assurance of the accused, on 18.08.2015 the complainant presented cheque No. 068885, 068886, 068889, for a sum of Rs. 1,00,000/- but the said cheques were dishonoured by the bank of accused with remarks "Funds Insufficient" vide memo dated 19.08.2015. The complainant issued the legal demand notice to the accused through Regd. AD and Speed Post demanding the cheque amount and same was served upon the accused on 22.9.2015 but despite the service of legal demand notice, accused did not make any payment to discharge his liability. Hence, being aggrieved, the complainant has filed the present complaint and prayed that the accused be summoned, tried and punished under Section 138 of the NI Act.
SUMMONING OF ACCUSED
5. On the basis of complaint and evidence filed by the complainant, and on the basis of documents annexed with the complaint, cognizance of the offence U/s 138 NI Act was taken by Ld. Predecessor of this Court and process was issued against the accused on 22.04.2016. The accused entered appearance in the present case on 17.08.2016 and on the same day, he was admitted to bail.
NOTICE
6. The court framed notice of accusation under Section 251 of the Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.') against the accused on 20.07.2019. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea. The accused pleaded not guilty and claimed trial. The accused admitted his signatures and filling the particulars on the cheque in question. Upon being questioned regarding the legal demand notice, the accused also admitted receiving the legal demand notice.
7. In his plea of defence, the accused denied issuing the cheque in question to the complainant in discharge of any legal liability. The accused stated that the he used to work with the complainant company in the year 2014-15 and the said cheques were given as Digitally signed by Page no. 3 of 12 (Neha Sharma) NEHA NEHA SHARMA SHARMA Date:
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security cheques to the complainant as guarantee against the outstanding amount of the customers. It was stated to him that if the company faces any loss, same will recovered from him and he can recover the same from the customers. The accused further stated that the complainant did not pay his salary for about 3 months approximately Rs. 1,60,000/- and misused his security cheques. The matter was, thereafter, listed for the evidence of the complainant.
EVIDENCE OF THE COMPLAINANT
8. To prove its case prima facie, the complainant company examined its AR Mr. Dheeraj Kumar Pandey as CW-1 who filed his affidavit of evidence under Section 200 of the Cr.P.C. by way of an affidavit i.e. Ex. CW-1/A1 wherein he has reiterated the averments made in the complaint. He placed reliance upon the following documents:
EX. CW1/1A i.e. The Certificate of Incorporation; EX. CW1/2A i.e. Board of Resolution; EX. CW1/3A i.e. The statement of account from 01.04.2015 to 23.09.2015; EX. CW1/4A to Ex. CW1/6A i.e. The original cheques; EX. CW1/7A to Ex. CW1/9A i.e. The return memos; Ex. CW1/10A i.e. The legal demand notice; EX. CW1/11A (Colly) i.e. The postal receipt; EX. CW1/12A i.e. The A.D card.
9. CW-1 was cross examined by Ld. counsel for accused. Thereafter, CE was closed vide order dated 15.03.2024.
EXAMINATION OF THE ACCUSED UNDER SECTION 313 CR.P.C.
10. In his statement recorded under Section 313 Cr.P.C., the accused admitted being appointed as Head, Trade Fairs on 29.09.2014. He admitted that he used to take delegations on behalf of complainant both in India and abroad, however, he denied having any liability towards the complainant. He stated that the cheques in question had been Digitally signed by Page no. 4 of 12 (Neha Sharma) NEHA NEHA SHARMA JMFC NI Act-04/NDD/PHC/NDSHARMA Date:
2025.01.28 16:47:24 +0530 CC NO: 53173/2016 M/S PRO YATRA WAYS PVT. LTD. VS. ASHISH VERMA taken by the complainant company as security cheques from him at the time of his joining and similar cheques used to be taken from every employee. He stated that whatever amount had been taken from Mr. Ankur Sehgal had been paid to the complainant on the same day and the statement of account i.e. Ex. CW1/3 is a manipulated document. He admitted the signatures on the cheques in question but stated that he has no outstanding liability towards the complainant. Thereafter, since the accused expressed his willingness to lead DE, the matter was listed for defence evidence. DEFENCE EVIDENCE
11. The accused did not lead DE and the matter was listed for final arguments. FINAL ARGUMENTS
12. Both parties addressed their final arguments. Ld. counsel for the complainant, argued that the accused has admitted issuance of the cheque in question. He further argued that the accused has admitted his signatures on the cheque, the payments were made after the dishonour of the cheques in question but the accused failed to rebut the presumption U/S 139 NI Act. Accordingly, Ld. counsel prayed that the accused be convicted for the offence under section 138 NI Act.
13. Per contra, Ld. counsel for the accused, argued that the accused owes no legal liability for payment of amount of the cheques in question to the complainant as cheques have been misused by the complainant. He further argued that the statement of account filed by the complainant is a forged and fabricated documents as the payments made after the dishonour of the cheques have not been accounted for. He further argued that the accused has rebutted the presumption raised U/S 139 NI Act but complainant failed to prove the guilt of the accused beyond reasonable doubt, hence, accused is entitled to be acquitted. He placed reliance upon judgments in M/S Kumar Exports Vs. Sharma Carpets 2009(1) SCC (NI) 34, Krishna Janardhan Bhat Vs. Dattatraya G. Hegde 2008 (2) SCC (CRL.) 166, Shri John Fernandes Vs Smt. Noor Jahan Khan 2010 (1) DCR 59, Kapadvanj Digitally Page no. 5 of 12 (Neha Sharma) signed by NEHA JMFC NI Act-04/NDD/PHC/ND NEHA SHARMA SHARMA Date:
2025.01.28 16:47:27 +0530 CC NO: 53173/2016 M/S PRO YATRA WAYS PVT. LTD. VS. ASHISH VERMA Peoples Co-operatives Bank Ltd. Vs. Jayantibhai Talasaji Marawadi & Anr. 2013 (1) DCR 270, Kulvinder Singh Vs Kafeel Ahmed 2013 (1) DCR 417 and M/s. New Tech Pesticides Limited Vs M/s Pavan Commercial Corporation and Anr. 2005(2) DCR 675.
14. The record, written submissions and judgments filed have been perused and my issue-wise findings with reasons thereof are as under: -
FINDINGS
15. Before appreciating the facts of the case and evidences led by the both the sides for the purpose of decision, let us first discuss the relevant position of law which is embodied in section 138 of NI Act. In the case of Kusum Ingots and Alloys Ltd. vs. Pennar Peterson Securities Ltd. (2000) 2 SCC 745, the apex court has expounded the ingredients which are required to be fulfilled in order to constitute an offence under Section 138 of the NI Act. The relevant portion of the said judgment laying down the ingredients to be satisfied for making out a case under Section 138 of the NI Act is reproduced as under:
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and Digitally Page no. 6 of 12 (Neha Sharma) signed by NEHA NEHA SHARMA JMFC NI Act-04/NDD/PHC/ND SHARMA Date:
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e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
16. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. Having said that, it becomes imperative to mention Section 139 of NI Act which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
17. Having said that, what follows from the above is that the journey of evidence in a trial under section 138 NI Act, begins not from the home of the prosecution story but from the point of the defence. As rebuttal evidence, the accused merely has to prove that the cheque was not given for any consideration or that there was no legal liability in existence against him for which the negotiable instrument was given. In the backdrop of the factual narrative of the case, following points of determination arise in the present case:
A. Whether the complainant has been successful in raising the presumption un- der section 118 read with section 139 of the N.I Act, 1881? B. If yes, whether the accused has been successful in raising a probable defence to rebut the presumptions?
18. Since criminal liability can be attached by proving each element of the sec- tion under which liability is sought to be enforced, I shall now go on to appreciate the evi- dence- documentary and oral, in light of how compellingly it satisfies each of such ingre-
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NEHA
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dient, if at all. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally en- forceable debt or other liability. The complainant has proved the original cheques, original return memo i.e. Ex. CW1/4A to Ex. CW1/6A and Ex. CW1/7A to Ex. CW1/9A respec- tively which the accused has not disputed as being drawn on the account of the accused.
19. At the time of framing of Notice U/S 251 Cr.P.C., the accused admitted his signatures on the cheques in question. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. The principles pertaining to the presumptions and the onus of proof were summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 wherein it was held;
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the Digitally signed by Page no. 8 of 12 (Neha Sharma) NEHA NEHA SHARMA SHARMA Date:
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witness box to support his defence."
20. Thus, the presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. Now, the court shall go on to assess if the accused has been able to rebut the presumption U/S 139 NI Act. In the case in hand, the plea of defence taken by the accused is that the cheques were given as security cheques and the statement of account filed by the complainant i.e. Ex. CW1/3A is a manipulated document. The complainant has placed heavy reliance upon the statement of account from 01.04.2015 to 31.10.2015 i.e. Ex. CW1/3A to prove the liability of the accused to the tune of Rs. 8,30,004/-.
21. Ld. Counsel for the accused has submitted that Ex.CW1/3A being a com-
puter-generated document, a certificate u/s 65B of the Indian Evidence Act, 1872 (here- inafter referred to as "IEA") was required. The Hon'ble Delhi High Court has held in Samsung India Electronics (Pvt.) Ltd. v. MGR Enterprises and Others, 2019 SCC on- line DEL 8877;
"17. Further, the petitioner company has placed on record the customer/ledger statement of account of the respondent firm maintained by them from 1st January 2011 to 30th November 2011 in order to show the liability. The same has been produced in the form of a computer printout which is a secondary evidence of the electronic record of data purportedly stored in the computer of the petitioner company. The petitioner company has not provided a certificate under Section 65B of the Evidence Act to prove the same and hence the ledger is inadmissible in evidence. Learned counsel for the petitioner contends that since no objection was raised qua the mode of proof at the time of exhibiting the copies of the ledger account and the same are duly exhibited, proved and admissible in evidence. This Digitally signed by NEHA Page no. 9 of 12 (Neha Sharma) NEHA SHARMA SHARMA Date:
2025.01.28 JMFC NI Act-04/NDD/PHC/ND 16:47:38 +0530 CC NO: 53173/2016 M/S PRO YATRA WAYS PVT. LTD. VS. ASHISH VERMA contention of learned counsel deserves to be rejected as in the absence of a certificate under Section 65B of the Evidence Act a computer-generated document is inadmissible in evidence."
22. During cross examination, CW-1 admitted that the Ex. CW1/3A is a com- puter-generated statement, however, no certificate U/S 65B IEA has been filed with Ex. CW1/3A. Accordingly, the Complainant has been unable to prove the statement of account that, i.e., the ledger statement, Ex. CW1/3A. Be that as it may, Ld. Counsel for the Accused has in the alternative, further submitted that even if the ledger statement, Ex. CW1/3A, was to be considered, the same does not inspire credibility as certain payments made by the accused have not been reflected in Ex. CW1/3A. Upon cross examination on this, CW-1 admitted that amount of Rs. 99,000/- and Rs. 50,000/- transferred by accused through RTGS on 30.07.2015 and 01.08.2015 have not been mentioned in the ledger i.e. Ex. CW1/3A.
23. The complainant has failed to show as to why Ex. CW1/3A which is for the period from 01.04.2015 to 31.10.2015 does not reflect the amount of Rs. 99,000/- and Rs. 50,000/- transferred by accused on 30.07.2015 and 01.08.2015. It is trite law that the Ac- cused is required to rebut the presumption U/S 139 NI Act only by the standard of prepon- derance of probability and not against the standard of beyond reasonable doubt. Accord- ingly, the Accused has been able to rebut the presumption in the present case as he has raised a reasonable probability of the ledger account statement being manipulated or not reflective of the actual transactions between the parties. Hence, the burden now shifts to the Complainant to prove his case beyond all reasonable doubt.
24. It is the case of the Complainant company itself that s per the record of the ac- count maintained by the complainant, the accused is under the balance of Rs. 8,30,004/-. Thus, the liability of the Accused is based on a running account between the parties and not against any specific bills. Against this background, the admissibility of the ledger state-
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ment, Ex. CW1/3A becomes germane to the present case. As set out in the discussion above, in the absence of an appropriate certificate u/s 65B IEA, a computer generated statement of account will not be admissible. Further, reasonable doubt as to the correctness of the same has been raised by the accused by examination of CW1-. Hence, in the absence of the exact liability amount being admitted by the Accused; and in the absence of proof of liability by way of the ledger account statement, the Complainant has failed to prove the ingredient of "legal debt/liability" against the Accused beyond all reasonable doubt. Thus, I have no hesitation to hold that in the present case, the accused has successfully rebutted the presumption U/S 139.
25. From the bare reading of Section 43 of NI Act, it becomes clear that if a nego- tiable instrument is made or drawn without consideration, it creates no obligation of pay- ment between the parties to the transaction. The complainant has failed to establish the very basic ingredient of offence under Section 138 of the Act i.e. issuance of the cheque in question in discharge of any existing legally enforceable debt or liability. Thus, the facts and circumstances brought on record, rebuts the presumption raised in favour of the com- plainant that the cheque in question was issued by the accused in discharge of any existing liability but the complainant failed to prove his case beyond reasonable doubt.
26. Accordingly, in view of the discussion made above and having considered the entire evidence, I have no hesitation to hold that in the present case, the complainant has failed to establish the very basic ingredient of offence under Section 138 of the Act i.e. issuance of the cheques in question in discharge of any existing legally enforceable debt or liability, thus, accused ASHISH VERMA is acquitted of offence U/S 138 NI Act. Let copy of this judgment be uploaded on CIS and Layers.
Digitally signed by NEHA NEHA SHARMA SHARMA Date:
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CC NO: 53173/2016 M/S PRO YATRA WAYS PVT. LTD. VS. ASHISH VERMA
Announced in the open court on Digitally
on this 28th day of January, 2025
signed by
NEHA
NEHA SHARMA
SHARMA Date:
2025.01.28
16:47:48
+0530
(NEHA SHARMA)
JUDICIAL MAGISTRATE FIRST CLASS
NI ACT-04/NDD/PHC/ND/28.01.2025
Note :-This judgment contains twelve pages and all the pages have been checked and signed by me.
Digitally signed by NEHA NEHA SHARMA SHARMA Date:
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