Carrara Marbles And Granite Industries vs Simplex Enterprises on 30 November, 2015

[Cites 17, Cited by 13]

Delhi High Court

Carrara Marbles And Granite Industries vs Simplex Enterprises on 30 November, 2015

1. The present appeal under Section 378 Cr PC is directed against the judgment and order dated 24.03.2012 passed by Sh. Nipun Awasthi, M.M.- 01 (NI Act) South, Saket Courts, New Delhi in CC. No. 1333/1, whereby the appellants/complainants complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was dismissed, and the accused/respondent was acquitted.

Crl. A. 874/2014 Page 1 of 41

2. The case of the complainant Carrara Marbles and Granite Industries, is that it is a proprietary concern of Sh. Ashok Mittal, son of Sh. Gurdas Rai Mittal, and deals in the business of Italian Marbles. The complainant supplied Italian Marbles to the accused and maintained a running account of the accused. The goods were supplied on the assurance of the accused that the price of the marbles would be remitted by them to the complainant by way of cheques. The complainant claimed that the outstanding liability of the accused was to the tune of Rs.1,78,00,000/-, and to discharge the said liability the accused issued the following three cheques in favour of the complainant, drawn on Punjab National Bank, PNB House, Fort, Bombay towards the price of Marbles. The details of the three cheques are as follows:

       Cheque No.     Date          Amount (Rs.)         Exhibit

       537520         08.10.1997    Rs. 1,00,00,000/-    Ex. PW1/A

       537542         08.10.1997    Rs. 50,00,000/-      Ex. PW1/B

       537541         08.10.1997    Rs. 28,00,000/-      Ex. PW1/C

3. The complainant presented the aforesaid cheques for encashment to their bank, viz. The Madura Bank, Connaught Place, New Delhi on the due date, but the cheques were returned dishonoured with the remarks 'refer to drawer' vide return memo dated 03.04.1998. The legal attorney of the complainant sent a legal notice dated 23.04.1998 to the accused. The accused failed to pay the amount of the three cheques within the statutory Crl. A. 874/2014 Page 2 of 41 period and, accordingly, a complaint under Section 138 of NI Act was preferred by the complainant/appellant.

4. The complainant filed the complaint against accused no. 1 - the firm Simplex Industries, accused no. 2 - Kirman K. Mistry and accused no. 3 - Mansoor Bhai. The proceedings against accused no. 3 Mansoor Bhai were abated on his death. The notice under Section 251 Cr PC for the offence punishable under Section 138 NI Act was issued vide order dated 08.06.1998. Upon being summoned, the accused entered appearance; pleaded not guilty, and claimed trial. The parties led their respective evidence.

5. The Ld. MM held, firstly, that the notice of demand was not issued within the statutory period of 15 days of notice of dishonour of the cheques, and the complainant did not explain the delay of 5 days. The notice of demand sent to the accused, is dated 23.04.1998, whereas the return memo is dated 03.04.1998. Thus, the notice was held to be time barred. Secondly, the Ld. MM concluded that the transactions were bogus, as the complainant did not produce any evidence - such as the bills; delivery receipt; account statements; quantity of marbles supplied - to establish that the marbles were delivered to the accused. Lastly, Ld. MM held that it was doubtful that the alleged transaction of sale of marbles did actually take place, as the cheques had been presented repeatedly to the bank for encashment. It was held that the instruments, i.e. the three cheques do not carry any consideration, as the transaction alleged by the complainant is proved to be manifestly bogus. Therefore, the complaint was dismissed.

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6. Learned counsel for the appellant submits that a perusal of the impugned judgment shows that the same is completely perverse. The learned Magistrate has, while dealing with the complaint, returned findings which are contrary to the evidence brought on record and taken into consideration aspects which have no material bearing on the case. Learned counsel submits that the findings returned by the learned Magistrate on all the aforesaid aspects- namely, of delay in filing the complaint; of the transaction being bogus; and that the transaction did not take place, are contrary to the evidence and material available on record.

7. On the aspect of the statutory notice under Section 138 Negotiable Instrument Act being issued in time, ld. Counsel submits that the cheques were presented to the Bank of the complainant three times, and each time the cheque was dishonoured and returned to the complainant. PW-4, Aditya Nag Jha, Officer, Bank of Madura deposed that:

"we have charged from our client i.e. Carrara Marbles Granite A Copy of the statement of charging is ex. PW4/A which is duly sign by and certified by by Officer /Manager whoses sign. Is at Point A of exPW4/A the same are signed before me and I recognised/identify the same."

8. He submits that the bank statement Ex. PW4/A establishes that the cheques were presented to the Bank and IFOBC charges of Rs.10590/- were debited into the account of the complainant/ appellant on 05/03/1998, and again on 11/04/1998, when the cheques in question were lastly returned unpaid. Learned counsel submits that it was not even suggested to PW-2 in his cross-examination by the accused that the dishonour memos had been received earlier, but the charges have been debited into the bank account of Crl. A. 874/2014 Page 4 of 41 the appellant later. Mr. Chaudhary submits that the intimation about dishonour of the cheques in question was given to the appellant/ complainant by its bank on 13.04.1998, i.e. two days after the account of the appellant had been debited with the IFOBC charges vide Ex.PW-1/A1, PW- 1/B1 & PW-1/C1. Learned counsel submits that the statutory/ legal notice Ex. CW-1/G (also Ex.PW-1/A4) was issued on 23.04.1998 through UPC vide UPC Receipt Ex. CW-1/H. Learned counsel submits that even if it were to be assumed that the return memos Ex.PW-1/A1, Ex.PW-1/B1 & Ex.PW-1/C1 were communicated to the appellant on 11.04.1998 - when the account of the appellant was debited with the IFOBC charges, the notice was issued within fifteen days of the said date. Thus, there was no basis for the learned Magistrate to doubt the issuance of the said notice within the period of limitation.

9. Ld. Counsel submits that the issuance of the three cheques is not denied by the accused. While recording the statement of the accuse No.2 under Section 313 Cr.P.C., he was specifically questioned:

"This is in evidence against you that you being the partner of accused no.1 M/s Sinplex Enterprises issued cheque no.537520 Ex.PW1/A, 537542 Ex.PW1/B and 537541 Ex.PW1/C all dtd. 8.10.97 worth Rs.1 crore, Rs.50 lacs and Rs.28 lacs respectively to complainant as payment for Italian marble supplied by the complainant to you. Do you have anything to say?"

10. While answering the said question, he merely stated that:

"It is wrong and denied. No Italian marble were supplied in lieu of these cheques and, therefore, there was no question of any payment."

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11. Thus, the accused No.2 did not deny the issuance of the said three cheques. However, he claimed that no Italian marble was supplied in relation to these cheques and therefore, there was no question of any payment. The second question put to the accused was that when the said cheques were presented by the complainant to their banker, the same were returned as dishonoured due to insufficiency of funds in your account. The accused No.2, in answer, merely stated that:

"It is wrong and denied. As a matter of fact, these cheques were not given to the complainant for the purposes of encashment and they were deposited for encashment wrongly."

12. Thus, once again, the accused did not deny issuance of the cheques to the complainant, but claimed that the cheques were not given to the complainant for the purposes of encashment. In answer to the question as to whether he has anything else to say, accused No.2, inter alia, stated that:

"The cheques were not issued for settlement of any dues but were given to complainant on his request and assurance that they will not be deposited by him for encashment. In fact, a complainant owes our firm Rs.8 Crores approx. plus interest. As a matter of fact, the cheques were not to be encashed for any purposes. The complainant has filed a false case against me in order to harass me and humiliate me. These cheques have been sent by the complainant to its banker against the assurances and promises. These cheques were never issued by me against any liability towards the complainant."

(Emphasis supplied).

13. Learned counsel for the appellant submits that while the issuance of the cheques in question is admitted, the accused has failed to disclose as to on what account they had been issued, if not to settle the outstanding debt Crl. A. 874/2014 Page 6 of 41 and liability of the accused owed to the appellant/ complainant towards supply of Italian marble. Even though the accused No.2 stated that these cheques were not given for the purpose of encashment, he has not disclosed the so-called purpose of the issuance of the cheques. Pertinently, it was not claimed by the accused that the cheques were given as security in respect of an anticipated transaction which did not fructify, or that they were issued 'blank', and subsequently filled up by the appellant.

14. He further submits that DW-4, Raj Kumar Mittal, a defence witness has fully supported the case of the complainant. DW-4, inter alia, deposed in his examination-in-chief:

"Prior to 1991 I worked in the Bombay office for three years. I never supplied marble to the accused co. while I was posted in Bombay. I supplied marbal to accused company from Delhi only twice".

15. In his cross examination, DW-4 had stated that:

"it is correct that the accused had a running account with the complainant company. It is correct that for several years in the past, there was a transaction between the complainant and the accused regarding supply of goods and making of payments. It is correct that as per practice of the complainant those parties which had business dealings with it, the goods were supplied even over a telephonic order."

16. Ld. Counsel submits that DW-4 was not re-examined by the counsel for the accused even though he supported the case of the complainant.

17. Thus, the presumption raised by Sections 118 (a) and 139 Negotiable Instrument Act, in favour of the appellant/complainant - that the Crl. A. 874/2014 Page 7 of 41 appellant/complainant received the cheques in question in discharge of debt or other liability, was not rebutted by the respondent by raising, much less proving, a probable defence.

18. On the other hand, Ms. Suruchi Agarwal, counsel for the respondent fully supports the impugned judgment. She submits that the complainant, upon dishonour of the cheque, was required to send a notice to the drawer of the cheque within 15 days, as the case relates to the period prior to the amendment of the NI Act in 2002. She submits that the return memos of the three cheques are dated 03.04.1998, whereas the notice is dated 23.04.1998, which is not within 15 days of the return memo and, thus, was barred by limitation.

19. Ms. Suruchi Aggarwal further submits that notice under Section 138 NI Act sent to the accused no. 2 Kirman K. Mistry, was not served. The address of accused no. 2 on the legal notice is stated to be - "Land End Building 11th Floor, Near Otris Club, Bandra, Bombay". The same address is also mentioned on the UPC. She submits that the said address is wrong, as it does not exist. There is no Land End Building near Otris Club, Bandra in Bombay. Vijay Balaram Sawant, DW-3, a postman at Bandra Post Office deposed in his examination-in-chief dated 18.09.2002 that;

"There is no building known as Land End BLdg. Near Ottris Club Bandara Bombay. I cover the area of about three kilometres near the Otris Club and within this area there is no such building known as Land End Bldg. No letter can reach at this address because there is no building known as Land End Bldg Near Ottris Club".

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20. She submits that even the postman of the said area, DW-3, has stated that there is no such building near the Otris Club, and therefore, the notice of demand could not be served upon accused no. 2. Consequently, the complaint against accused No. 2 was not maintainable.

21. Further, the other address of accused no. 2 Kirman K. Mistry on the legal notice was - 286, Shainaldas Gandhi Marg, Bombay. DW-2, Shri Parkash Tukaram Patil deposed in his statement dated 09.05.2002 that he verified from Nagar Pallika, Bombay about Shainaldas Gandhi Marg. He stated that:

"From the said verification there is no Shainal Das Marg in C Ward and F South. From the municipalities I also verified and found that no Shainal Das Marg is in existence".

22. Ld. Counsel submits that the second address of accused no. 2 was not contained in the notice, and it is only mentioned in the UPC Ex. CW1/H. Thus, the notice was not served upon the accused no. 2 on the second address as well. Learned counsel submits that the courts have looked upon UPC receipts with suspicion and have not accepted the same in several decisions. Reliance has been placed on Shiv Kumar Vs. State of Haryana, 1994 (4) SCC 445; M.S. Madhusoodhanan & Anr. Vs. Kerala Kaumudi (P) Ltd & Ors., (2004) 9 SCC 204; and Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil & Ors, (1994) 1 SCC 682, for the same.

23. Ld. Counsel further submits that the return memos (PW-1/AI, PW- 1/BI, PW-1/CI) are dated 03.04.1998 from Punjab National Bank, which is the Respondent's Bank. The statement of account (Ex. PW-4/A) reveals that Crl. A. 874/2014 Page 9 of 41 the IFOBC charges of Rs.10,590/- is dated 11.04.1998. She submits that if the cheque was dishonoured on 03.04.1998, then the IFOBC charges would also be deducted on 03.04.1998, and not 11.04.1998-thus raising a doubt over the claim of the appellant. Further, PW-4 Officer of Bank of Madura did not state that the return memos were given to the appellant.

24. Ld. Counsel submits that in question no. 2 put to the accused no. 2, Kirman K. Mistry, while recording his statement under Section 313 Cr.P.C., the date of the return memo is stated as 13.04.1998, whereas the date claimed by the complainant is 03.04.1998. Further, in question no. 3 the date of notice is stated to be 30.04.1998, whereas, according to the complainant, the notice is dated 23.04.1998. She submits that both the dates are at variance with the dates- as claimed by the complainant/appellant, and put to the accused.

25. Ld. Counsel further submits that Ashok Mittal, PW-1, the proprietor of the complainant company in his examination-in-chief and cross- examination could not tell when the orders for purchase of marble were placed; the quantity/quality of marble supplied, and; from where the marble was delivered to the accused. PW-1 has not relied on invoices or statements of accounts to substantiate the claim that marbles were supplied to the accused. Further, PW-1 deposed that he took the cheques personally from the accused, but he did not remember as to which accountant in his company he handed over the cheques to. She submits that PW-1 being the proprietor of the appellant should have been aware of the transactions taking place, or should produce evidence in his support his claim. However, he has failed to do so. Since the complainant has failed to provide any Crl. A. 874/2014 Page 10 of 41 evidence, the transactions were rightly held by the trial court to be bogus, in all probability.

26. Ms. Suruchi Aggarwal further submits that the bills produced by DW- 4 (Mark DW4/1 to DW-4/19) were of the years 1993-95. However, the bills have the new STD code, which was changed only in the year 2000. She submits that if the bills were original and authentic, then the STD code on them should be the pre-existing code, and not the changed/subsequent code. Further, PW-1 Ashok Mittal has stated that "We have been paying sales tax etc. on such delivery", but no documents were brought on record to establish the same. She submits that while the goods were claimed to have been supplied by the appellant, there are no receipts placed on record. The agreement which came about between the parties has also not been placed on record.

27. Ld. Counsel further submits that appellant has not led any evidence to establish that the transactions in relation to which the cheques had been issued. Further, she submits that though the appellant has claimed that the accused had not made payment and, thus, losses were incurred, the complainant/appellant has not initiated any civil proceedings for recovery against the accused/respondent.

28. Ld. Counsel submits the accused, Kirman K. Mistry, in his statement under Section 313 CrPC has stated that he is innocent and that a false complaint has been filed against him in order to harass and humiliate the accused. He further stated that the cheques were not issued against any outstanding liability towards the complainant.

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29. In his rejoinder, learned counsel for the appellant/complainant has submitted that the respondent/accused has not been able to rebut the presumption raised by Section 118(a) in Section 139 of the NI Act. He submits that the accused did not even step into the witness box and make a statement on oath. He submits that a mere statement under Section 313 Cr.P.C., not being on oath does not, tantamount to 'proof' in law. On the aspect that the respondent had not rebutted the presumption, learned counsel has placed reliance on K. Bhaskaran Vs. Sankaran Vaidhyan Balan, AIR 1999 SC 3762; M.S. Narayanan Menon Vs. State of Kerala, 2006 (6) SCC

39. On the aspect that the notice was sent in time, learned counsel for the appellant has submitted that notice of dishonour/return memos dated 03.04.1998 were received by the complainant on 13.04.1998. He submits that, in any event, the limitation for sending notice started on 12.04.1998 i.e. the following day, the date when the appellants bank received the notice of dishonour and debited the IFOBC charges into the account of the appellant/complainant on 11.04.1998, assuming that the information of dishonour was communicated to the appellant on the very same day on which the dishonour was communicated to the appellants bank. Therefore, the limitation commenced on 12.04.1998 and the notice was sent on 23.04.1998 i.e. well within the period of limitation. In this regard, reliance was placed on Sadanand Bhadran v. Madhavan Sunil Kumar, AIR 1998 SC 3043.

30. Learned counsel for the appellant submits that the notice sent by the appellant was duly served on the respondent. In this regard, learned counsel points out that on the same addresses of the accused, on which the notice Crl. A. 874/2014 Page 12 of 41 dated 23.04.1998 was sent, the summons of the complaint had been issued by the learned Magistrate. It is pointed out that the address of the accused in the statutory notice and in the complaint was identical. The accused were served with the summons at the addresses mentioned in the complaint. In this regard, the complaint has placed reliance on the summons served on accused No. 2 Kirman K. Mistry, partner of accused No. 1 - M/s Simplex Industries, which is found on the record of the trial court. The said summons shows that the accused was served on 03.09.1998 at 1.10 p.m., as it bears the signature of the said accused/respondent on the summons. At this stage, I may observe that the said summons have been perused, which are found at page 145 of part 3/4 of the trial court record, and this submission of the appellant appears to be correct. In fact, the order-sheet of the Magistrate's Court shows that even prior to the said date, the accused No. 2-Kirman K. Mistry, had moved the court of the learned Magistrate to seek bail, and on the said application, orders were passed on 21.08.1998. The said application to seek bail is found at page 123 of part 3/4 file of the trial court record. It was not claimed by the said accused that he had not been served with the summons in the case at his given address. The record also shows that in respect of accused No. 2-Kirman K. Mistry, the bailbond was furnished on 21.08.1998 in Form No. 48 which is found at page 117 of part 3/4 file the trial court record. It is also seen from the record that subsequently, the accused No. 2 Kirman K. Mistry and accused No. 3- Mansoor Bhai moved applications dated 16.01.1999 and 01.05.1999 for recalling of summoning order dated 08.06.1998 on the premise that no notice had been issued to the accused under Section 138 of the N.I.Act.

Crl. A. 874/2014 Page 13 of 41

Learned Magistrate, however, rejected both these applications vide order dated 05.06.1999.

31. Learned counsel also places reliance on the decision of the Supreme Court in C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., (2007) 6 SCC 555. He submits that in view of this decision, the submission of the respondent/accused with regard to the service of the statutory notice under Section 138 of the N.I. Act loses its force, as it was open to the respondent/accused even after receiving the summons of the complaint, to make payment within 15 days thereof. Not having made the payment, it is not open to the accused to say that they had not received the demand notice under Section 138 of the N.I. Act.

32. I have heard counsels of both the sides and perused the evidence, the case laws relied upon and the impugned judgment on record.

33. The Trial Court dismissed the complainant, mainly, on two grounds. First, that the notice was time barred and, second, the transactions appeared to be bogus. On perusal of the evidence on record, it is evident that the cheques dated 08.10.1997 were returned dishonoured vide return memo dated 03.04.1998, and the notice to the accused is dated 23.04.1998. The Trial Court held that the notice was time barred as it was not issued within the statutory limit of 15 days, and the said delay of 5 days was not explained by the complainant. The relevant part of Section 138 NI Act, before the amendment of 2002, is as follows:

"(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said Crl. A. 874/2014 Page 14 of 41 amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and"

(Emphasis Supplied)

34. The Section produced hereinabove clearly states notice of demand is to be sent "within fifteen days of the receipt of information"; it does not state that the notice has to be sent within fifteen days of the date on the return memo. The return memo from the drawer's bank will, normally, not be received by the drawee on the same day. The return memo is first sent by the drawer's bank to the drawee's bank and, thereafter, the drawee's bank sends it to the drawee. This transaction is bound to take a few days. In the present case, the drawers-viz. Respondent's bank is situated in Mumbai, whereas the drawee's viz. Appellant's bank is situated in Delhi. It has come in the evidence of the appellant/complaint that IFOBC charges were debited to the account of the appellant/complainant lastly on 11.04.1998. The said charges could be debited by the complainant's bank, only upon receipt of information of dishonour of the cheques by the drawer's bank. As rightly pointed out by the complaint, it was not even suggested to PW2 in his cross- examination by the accused that the dishonour memos had been received earlier, but the charges had been debited by the appellant's bank later on 11.04.1998. No evidence was produced by the accused to substantiate their claim that the dishonour memos were, indeed received by the drawee's bank, and thereafter the drawee on 03.04.1998 or soon thereafter. Therefore, there was no reason to disbelieve the evidence of the appellant that the notice of dishonour was received by the appellant/complainant on Crl. A. 874/2014 Page 15 of 41 13.04.1998. This defence set up by the accused is not even, otherwise, probable. Even if the date of receipt of intimation of dishonour by the appellant/complaint is taken as 11.04.1998, in view of the judgment of the Supreme Court in Sadanand Bhadran (supra), the limitation started to run against the appellant/complainant on 12.04.1998 and the notice was sent by the appellant on 23.04.1998 i.e. within the period of 15 days. In any event, the enquiry is not with regard to the date of receipt of information by the drawee bank of the dishonour of the cheque by the drawer's bank. Even if the drawee bank received the said intimation earlier i.e. soon after 03.04.1998, the time would not begin to run against the appellant/ complainant till the appellant is conveyed the dishonour. Thus, it could not be said that the notice dated 23.04.1998 was barred by limitation. The Trial Court has patently erred in finding that the notice to the accused was time barred.

35. The Trial Court has not decided on the question of the demand notice under Section 138 NI Act not being served to the accused persons, as it returned a finding that the demand was time barred. Hence, this question would have to be examined by this Court in light of all the evidence produced on record. Ld. Counsel for the accused argued that the demand notice addressed to the accused - on the addresses mentioned in the UPC (Ex.CW1/H) were never delivered as the said addresses are non-existent. In support of her contention, she has relied upon the statements of DW-2 and DW-3. In respect of the two addresses of accused No.2 Kirman K. Mistry on which the notice were purportedly sent - Land End Building 11th Floor, Near Otris Club, Bandra, Bombay; and 286, Shainaldas Gandhi Marg, Crl. A. 874/2014 Page 16 of 41 Bombay, ld. Counsel submits that the notices were not served to the accused. The complainant has contended that the accused persons were issued the summons by the Trial Court on the same address - Land End Bldg. 11th Floor, near Otris Club, Bandra, as the mentioned on the UPC. If the address was actually non-existent, the summons issued by the Court would have also returned as not served.

36. Firstly, it is noticed that the respondent accused has raised the issue with regard to the incorrect address found mentioned in the notice Ex.CW- 1/G (PW-1/A4), and the UPC Ex.CW-1/H-qua the notice issued to accused No.2 Kirman K. Mistry, at the aforesaid two addresses only. However, both the UPC and the notice show that the notice was sent to accused No.2 Kirman K. Mistry at another address, namely, Rajkamal Lane, Dr. S.S. Rao Road, Bombay. The accused is silent about the correctness of the said address. There is no evidence led by the accused to show that, either the said address is incorrect, or that it is not of the accused. Moreover, on perusal of the order sheets of the Trial Court, it is established that the summons were issued and sent on the same address as on the UPC i.e. "Land End Building, 11th Floor, Near Otris Club, Bandra, Bombay", and the same were served on the accused No.2 Kirman K. Mistry. Even if, for the sake of argument, it were to be accepted that there was some typographical error in the address in the notice issued to accused No.2 at one of the addresses, it is evident that the said error was not such as to prevent the service of notice on accused No.2, or even the other accused, on the said address. If that were so, the summons would not have been served on Crl. A. 874/2014 Page 17 of 41 Kirman K. Mistry accused No.2 at Land End Building, 11th Floor, Near Otris Club, Bandra, Bombay.

37. On perusal of the Trial Court record, it is further noticed that the counsel for the accused filed an application dated 16.01.1999 (a few months after institution of the complaint by the complainant) to dismiss the complaint on account of non-service of the statutory notice to accused no. 1, M/s Simplex Enterprises under Section 138 of the NI Act. At the same time, another application dated 01.05.1999 was filed for calling back of summons served upon accused no. 2 and accused no. 3, as the demand notice, sent by the complainant through UPC, was claimed to have not been served upon them. Both the applications were dismissed vide order dated 05.06.1999. In the application for calling back of summons served on accused no.2 and accused no. 3, the counsel for accused contended that "Under Postal Certificate" (UPC) can be procured very easily, and the same does not inspire confidence as a proof for service of notice. The Trial Court while dismissing the application held that:

"Every case has its own peculiar facts and circumstances and present case stands on totally different material facts and thus it is clearly distinguishable. From the perusal of UPC receipt, copy of which is Excw1/H, the date of posting is clearly visible and same is 23.04.98. In every case it is not necessary that Demand Notice has to be served by registered post only. Demand notice can also be served by UPC and it is for the court to judge whether in a particular case, court is satisfied with the service or not. The present complaint has been filed U/s 138 NI Act on dishonouring of the cheque. The complainant will certainly serve the Demand Notice as he is always interested in receiving the payment. Keeping in view Crl. A. 874/2014 Page 18 of 41 the totality of circumstances, I am satisfied that accused no. 2 and 3 were served by UPC."

(Emphasis supplied)

38. When the application dated 01.05.1999 was filed by the accused, the trial was at the very initial stage and the only contention raised by the accused, for the notice not being served, was that the UPC can be procured very easily. If, in fact, the addresses of the accused persons on the notice were wrong, the accused would have raised that contention as well, apart from pleading that UPC can be procured very easily. Thus, this contention of the accused persons, that the addresses on the notice are non-existent, seems to be an afterthought. Further, the accused no. 2 Kirman K. Mistry in two of his affidavits - one dated 26.09.1998 (at page 169 of the part 3/4 file of the Trial Court record) and the second dated 21.10.1998 (at page 183 of the part 3/4 file of the Trial Court record), has mentioned his address as "Land End Bldg. 11th Floor, near Otris Club, Bandra". This address is the same as the address on which the on notice was sent by UPC by the complainant. Thus, the accused are precluded from raising the said submission. This appears to be no more than a red herring.

39. As far as the second address - 286, Shainaldas Gandhi Marg, Bombay, is concerned, DW-2 Shri Parkash Tukaram Patil deposed that there is no road as Shainaldas Gandhi Marg in Bombay on verification from the Nagar Palika. As a matter of fact, the accused persons have mentioned the correct address on some documents produced before the Trial Court. As per the said documents, the correct address is - 286, Shamldas Gandhi Marg. The difference between the address on the notice sent by UPC and Crl. A. 874/2014 Page 19 of 41 the correct address of the accused persons is only a minute one. The only difference between the two addresses is that the letter 'm' in Shamldas was replaced by 'in' and became Shainaldas. It seems improbable that a postman whose job is to distribute mails on a daily basis, and a person who knows all the roads and addresses of the area, would not pick up the mistake/misprint and understand that the notice is meant to be issued to the address on Shamldas Gandhi Marg. The difference in the spelling seems to be an error, which can happen with anyone, especially a lawyer who works in Delhi. A person living in Delhi is not likely to know the names of road in Bombay, or any other part of the country. Thus, on account of a minute error, the notice cannot be held to be not served. Even otherwise, this is only one of the three addresses on which the notice was sent by the complainant.

40. Reliance placed on the line of decisions, including Shiv Kumar (supra), to say that the UPC (Ex.PW1/H) cannot be relied upon as it is doubtful, does not impress this Court, in the factual background of this case. As observed by the learned Trial Court in its order dated 05.06.1999 (the relevant portion whereof have been extracted hereinabove), there was no reason for the appellant/complainant not to serve the demand notice upon the respondent/accused upon receiving the notice of dishonor. The cheques were of a fairly large amount of Rs. 1.78 crores. They had been dishonoured on repeated presentations. Therefore, it did not stand to reason that the appellant-complainant would not initiate action under Section 138 of the N.I.Act when the said statutory remedy was available to it. The complainant produced Shri V.K. Sharma, Public Relation Inspector, Malviya Nagar Post Office, as PW2. He deposed upon seeing the UPC Crl. A. 874/2014 Page 20 of 41 certificate that the said document bears the stamp of Pushp Bhawan, Pushp Vihar, New Delhi - 110 062 (which he exhibited as Ex.PW1/A2). He also deposed that the UPC were duly sent to the persons duly addressed on the documents (Ex.PW1/A2) on 23.04.1988. He stated, "I have the documents EX 1/H photo copy which is also of the original and I have seen the stamp dt. 23.4.98 on UPC and the UPC were sent to the persons mentioned in the documents". Thus, the presumption under Section 114 of the Evidence Act came into play, and the same was not rebutted by the respondents/accused, as they failed to appear in the witness box to even claim on solemn affirmation, that they have not been served with the statutory notice.

41. Even if, for the sake of argument, it were to be accepted that the notice of demand was not served on them, the accused persons were served with the summons by the Court. They could have made the payment of the cheque amount within 15 days of the receipt of the summons but, instead, the accused no. 2 applied for bail. The decision of the Supreme Court in C.C. Alavi Hazi (supra), therefore, squarely applies in the facts of this case. In para 17 of this judgment, the Supreme Court observed:

"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days Crl. A. 874/2014 Page 21 of 41 of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the "giving of notice"

in the context of Clause (b) of the proviso was the same as the "receipt of notice" a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."

42. The respondent-accused, who did not pay the cheque amount within 15 days of the receipt of summons along with copy of the complaint under Section 138 of the NI Act, cannot be heard to say that there was no proper service of notice as required under Section 138, by ignoring the statutory presumption raised by, inter alia, Section 114 of the Evidence Act. Thus, the contention of the accused that the addresses on the UPC were non- existent and, thus, the accused persons were not served with the demand notice is rejected.

43. In Lafarge Aggregates & Concrete India P. Ltd. Vs. Sukarsh Azad & Anr., (2014) 13 SCC 779, the Supreme Court stressed upon the objective of Section 138 NI Act. It held as follows:

"8. The object of bringing Sections 138 to 142 of the Negotiable Instruments Act on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business of negotiable instruments. Despite several remedies, Section 138 of the Act is intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his Crl. A. 874/2014 Page 22 of 41 account maintained by him in a bank and induces the payee or holder in due course to act upon it. Therefore, once a cheque is drawn by a person of an account maintained by him for payment of any amount or discharge of liability or debt or is returned by a bank with endorsement like (i) refer to drawer,

(ii) exceeds arrangements and (iii) instruction for stop payment and like other usual endorsement, it amounts to dishonour within the meaning of Section 138 of the Act. Therefore, even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability."

(Emphasis supplied)

44. In K. Bhaskaran (supra), the Supreme Court held that since the signature on the cheque was, admittedly, that of the accused, on the basis of presumption envisaged in Section 118 of the NI Act, it could legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the NI Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of a debt or liability. The burden is on the accused to rebut the aforesaid presumption.

45. In the present case, admittedly, the respondent/accused had issued the cheques in question. Thus, the presumption envisaged by Section 118 of the NI Act would have to be invoked, namely, that the cheques were made or drawn for consideration. Pertinently, the defence set up by the respondent/accused is not premised on the proviso to Section 118. The accused has not alleged, much less proved-even on the basis of preponderance of probabilities, that the cheques in question had been obtained from the lawful owner or from the person in lawful custody Crl. A. 874/2014 Page 23 of 41 thereof, by means of an offence or fraud, or that they had been obtained from the maker i.e. the respondent/accused by means of an offence or fraud, or for unlawful consideration. The presumption raised by Section 139 of the NI Act also arises, to the effect that the cheques in question were received by the appellant for the discharge in whole, or in part, of the debt or other liability of the respondent/accused. It was for the respondent/accused to rebut the said presumption.

46. In M.S.Narayanan Menon (supra), the Supreme Court held in relation to Section 118(a) of the NI Act that the Court shall presume a negotiable instrument to be for consideration, unless and until after considering the matter before it, it either believes that the consideration does not exist, or considers the non-existence of the consideration so probable, that a prudent man ought under the circumstances of the particular case, to act upon the supposition that the consideration does not exist.

47. The Supreme Court referred to and quoted the earlier decision in Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Pyarelal, (1999) 3 SCC 35 - a decision rendered in a civil case, wherein the Supreme Court had observed that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise to the effect that it is supported by consideration. However, such a presumption is rebuttable. As to how the defendants/accused would rebut the presumption, was commented upon by the Supreme Court in Bharat Barrel (supra), in the following words:

The defendant can prove the non-existence of a consideration by raising a probable defence. .................. The burden upon Crl. A. 874/2014 Page 24 of 41 the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt."

(Emphasis supplied)

48. In M.S. Narayanan (supra), the Supreme Court also observed that the standard of proof required qua the defence set up by the defendant/accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record, but also by reference to the circumstances upon which the defendants/accused relies.

The Supreme Court also observed that, whether in the given facts and circumstances of a case, initial burden has been discharged by an accused would be a question of fact. It is a matter relating to appreciation of evidence. The Supreme Court in M.S. Narayanan (supra) quoted with approval extracts from a full Bench decision of Andhra Pradesh High Court in G.Vasu Vs. Syed Yaseen Sifuddin Quadri, AIR 1987 AP 139. In this decision, the Full Bench of the Andhra Pradesh High Court had, inter alia, observed that once the defendant adduces evidence to the satisfaction of the Court, that on preponderance of probabilities, there is no consideration in the manner pleaded in the plaint, or suit notice, or the plaintiff's evidence, Crl. A. 874/2014 Page 25 of 41 the burden shifts to the plaintiff and the presumption disappears and does not haunt the defendant any longer. The Full Bench also observed, ".......in a suit on a promissory note, the case of the defendant as to the circumstances under which the promissory note was executed is not accepted, it is open to the defendant to prove that the case set up by the plaintiff on the basis of the recitals in the promissory note, or the case set up in suit notice or in the plaint is not true and rebut the presumption under S. 118 by showing a preponderance of probabilities in his favour and against the plaintiff. He need not lead evidence on all conceivable modes of consideration for establishing that the promissory note is not supported by any consideration whatsoever. The words "until the contrary is proved" in S.118 do not mean that the defendant must necessarily show that the document is not supported by any form of consideration but the defendant has the option to ask the Court to consider the non-existence of consideration so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that consideration did not exist. Though the evidential burden is initially placed on the defendant by virtue of S. 118 it can be rebutted by the defendant by showing a preponderance of probabilities that such consideration as stated in the pro-note, or in the suit notice or in the plaint does not exist and once the presumption is so rebutted, the said presumption "disappears". For the purpose of rebutting the initial evidential burden, the defendant can rely on direct evidence or circumstantial evidence or on presumptions of law or fact. Once such convincing rebuttal evidence is adduced and accepted by the Court having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the plaintiff who has also the legal burden. Thereafter, the presumption under S. 118 does not again come to the plaintiff's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance."

(Emphasis supplied) Crl. A. 874/2014 Page 26 of 41

49. The Supreme Court in M.S. Narayanan (supra) observed that if for the purpose of a civil litigation, defendant need not adduce any evidence to discharge the initial burden placed on him, a 'fortiori' even an accused need not enter into the witness box and examine other witnesses in support of his defence.

50. The aforesaid being the position, was it enough for the respondent/accused to simply deny the fact that there had been transactions between the parties regarding supply of marble by the complainant to the respondent/accused to rebut the presumption under Section 118 and 139 of the NI Act? In my view, the answer to the aforesaid question is in the negative. If a mere denial of consideration for issuance of the cheque, or of the debt/existence of other liability while making a statement under Section 313 Cr.P.C., were to suffice - to rebut the presumption raised by Sections 118(a) and 139 of the NI Act, there would have been no purpose of enacting the said provisions. In every case, the drawer would simply deny that the cheque was issued for consideration, or in settlement of a debt or other liability (while not denying the factum of his issuing the cheque and delivering the same to the payee - and rather admitting it) and would thereby neutralize the presumption raised by Section 118(a) and 139 of the NI Act.

51. Pertinently, the accused did not appear as defence witness to depose in terms of the defence that no marble had been supplied, in respect whereof the cheques in question had been issued. On the other hand, the proprietor of the complainant/appellant Ashok Mittal appeared as CW-1/PW-1. He categorically deposed that he had supplied Italian marbles to the accused in Crl. A. 874/2014 Page 27 of 41 their running account, inter alia, to the value of Rs.1.78 Crores on the assurance that the accused persons would pay the price for the same by cheque. He deposed that the three cheques in question had been issued by the accused persons towards the price of the marble. Sh. Ashok Mittal was cross examined on behalf of the accused. In his cross examination, he stated that he was dealing with Simplex Industries accused no.1 for the last ten, or may be fifteen years. He was also visiting Simplex Industries. He stated that normally the bills were supplied for material supplied by the appellant/complainant company. However, no challans were prepared for the same. He stated that the orders were being placed by the accused telephonically or verbally, but not in writing. He did not personally deliver the goods to accused no.1. The supply was being made through the employees at different points of time. He named two of his employees who had supplied material to the accused, namely, one Sahid and his chachaji/uncle name Jagmohan Lal, a resident of Bombay.

52. He also stated that the complainant/appellant had been paying sales tax etc. on such delivery. From his cross examination, it is seen that a large part of the said cross examination pertained to the address of the accused on which the notices/summons had been sent - to claim that the statutory notice under section 138 NI Act was not sent at the correct address to the accused. It also shows that the accused were not strangers to the complainant/appellant, since he was, inter alia, asked -

"Question: - I put it to you that your company have account (sic) in Development Credit Bank Limited, Nariman (sic) Point.

Ans: - Must be more over it is a matter of record."

Crl. A. 874/2014 Page 28 of 41

53. Moreover, the accused gave the cheques on their own to the complainant. They would not deliver such high value cheques to the complainant, drawn in the name of the complainant, unless they were well acquainted to the complainant, and there was some reason/background to issuance of the said cheques. PW1 further stated that he delivered marbles as the parties had a running account. He stated that it was a matter of record as to how much marble was delivered by him to the accused. He stated that everything finds mention in the complainant's account books. He stated that it was not necessary to keep vouchers etc. of delivery of goods to the accused persons. He also stated that there was no necessity of issuing a gate pass when the truck entered the factory, or left the factory after taking the delivery. He stated that "the accused (sic) persons were regular clients and had good relations with me therefore their authorised agents would take delivery on my telephonic instructions because the business is run on the basis of trust".

54. DW-1, Sh. Salauddin Abdul Rehman Majgaongarh, SSP South Division; DW-2 Sh. Parkash Tukaram Patil, Social Worker, and; DW-3 Vijay Balaram Sawant, Postman, P&T Department were produced by the accused only to lead evidence on the aspect of statutory notice not being addressed correctly and not being sent - since it was claimed that it was sent through UPC. The record reveals that after the accused closed its evidence on 18.09.2002, an application was moved by the accused under section 311 Cr PC date 26.04.2003. In this application, the accused, inter alia, stated as follows:

Crl. A. 874/2014 Page 29 of 41

"1. That the above quoted case is fixed for arguments for 26.4.2003.

2. That the complainant alleged the sale of the marble to the value of Rs.1,78,00,000/- to the applicant/accused. The sale, if any can only be made by raising bills. It is mandatory as per law to keep and maintain lawful accounts against (sic) all the transactions of sales. The complainant has not brought on record the Bill(s) Excise Gate (Passes), the cash book and ledger account entries pertaining to the alleged sale of marble, sales tax return(s) and all other relevant documents to the sum of one crore seventy eight lacs(sic). During the cross examination of the complainant, he has answered all such questions on transactions, stating that the same to be a matter of record. Hence the bills, cash book, account books are necessary to be produced, before Hon'ble Court, in order to prove the liability, especially in the circumstances, when it is mentioned on the face of cheques that "Do Not Present" and it is not a negotiable instrument.

... .... .....

5. That the above referred documents, regarding the alleged sale transaction are vital for the just decision of the complaint.

6. That the summoning of the above referred record is essential for the just decision of the case and the petitioners/accused persons shall suffer loss and injury, if the present application is not allowed.

It is, therefore, prayed that the complainant be directed to produce the said bills, cash book, account books, excise gate (passes) ledger account books, all other relevant documents and the memo regarding the presentation of cheques at Bombay, in order to reach the justice decision of the case".

Crl. A. 874/2014 Page 30 of 41

55. The learned Magistrate allowed this application on 26.04.2003 itself, upon it being not opposed by the complainant. The order, inter alia, records:

"... ... ... The application is not opposed and it has been pointed out by the counsel for the complainant that the complainant has no objection in producing the available records with them and shall do so on the next date of hearing and that a short date may be given.

2. A perusal of the application, however, shows that the defence has not pin pointed out as to which witness they want to examine in their defence.

3. Heard.

4. At this stage, to cut-short the controversy the defence is allowed to name and summon any single person from the organisation of the complainant, who can they examine as their witness in support of their contentions".

56. Consequently, the accused examined Sh. Rajkumar Mittal as DW-4 who was earlier employed by the appellant/complainant. He deposed that he worked as General Manager of the complainant/appellant in Delhi Branch at 42, Sainik Farms, Khanpur, New Delhi. He stated that the head office of the complainant was at Bombay and the accounts were being maintained at Bombay. Prior to 1991, he worked at Bombay office for three years. He stated that he never supplied any marble to the accused company while posted at Bombay. However, he stated that he supplied marble to the accused company from Delhi on two occasions. He produced the statements of account attested by the Chartered Accountant, which were marked as A1 to A121. He stated that he had called for the aforesaid statements from Bombay when the same were required by this court. He stated that PW-1 Crl. A. 874/2014 Page 31 of 41 had brought the same to Delhi and Ashok Mittal had handed over the said documents to him at the Delhi office.

57. During his cross examination on 02.07.2003, this witness stated that the carbon copies of the documents produced by him had not been sent to him and they must be available in the office at Bombay. Pertinently, at the request of the defence/accused, the witness was directed to produce the original documents on the next date of hearing, and further examination of this witness was deferred. On the next date, i.e. 16.08.2003, DW-4 brought the carbon copies of the original bill book which were marked DW-4/1 to 4/39. He stated that he had not brought the challan pertaining to the aforesaid carbon copies of the bills as "once the bill is prepared, there is no value of the challan". He explained that the documents earlier marked A-8 to A-121 were not the photocopy of the carbon copies now produced as Ex. DW-4/1 to 4/39 by voluntarily stating that "whenever any parties demand a copy of the bill, copies separately were used to be prepared of this sort produced by me on the last occasion, i.e. Mark A-8 to A-121". He admitted that before preparation of the bill, the challan is prepared.

58. On the aspect as to whether the truck/lorry carrying goods also contained the delivery challan and excise gate passes before delivery to the customer, he expressed his lack of knowledge. He admitted that sale of marble is covered under the sales tax. He further stated that:

"I submit before this Hon'ble Court the original carbon copy of the bill books so that the same can be inspected and compared (sic) by the defence counsel".

Crl. A. 874/2014 Page 32 of 41

59. In view of the aforesaid statement, the learned Magistrate retained the bill book nos.22 to 26 with the Alhmed and Reader for a period of three days and further examination in chief of this witness was deferred.

60. During his further examination in chief, DW-4 stated that on asking of the Court, that he called the office of the complainant at Bombay to talk to Sh. Vinay Chaturvedi, accountant of the complainant to send the carbon copies of the original documents. He stated that he asked for the specified number of bills, i.e. bill no.103 dated 02.08.1993 onwards till 18.03.1995. He stated that he could not vouch for the correctness of Ex. DW-4/1 to 4/39. The said bills had not been prepared in his presence. He stated that in the bills produced by him, there is an indication that the goods were duly received and in token thereof, the signature of the person had been appended apparently. He also produced Ex. DW-4X1 to 4X19 (original seen and returned) which were photocopies of the carbon copies of bill nos.1050 dated 18.11.1997. He also similarly produced several other bills which were accepted.

61. DW-4 was cross examined by the complainant. In his cross examination, he admitted that Ex. DW-4/1 to 4/39 belonged to the complainant company and that the same must have been prepared contemporaneously. He stated that Ex. DW-4/1 to 4/39 contain the details of the goods supplied and the rate of goods and the total amount payable by the accused. He stated that Sh. Chaturvedi, accountant of the complainant company who had handed over the record was a responsible officer. He also stated that the accused had a running account with the complainant company and there had been transaction between the parties for several Crl. A. 874/2014 Page 33 of 41 years in the past. He also stated that as per practice of the complainant, those parties which had business dealing with it, were supplied goods even over a telephonic order. He stated that the goods were supplied by the complainant company on post dated cheques and that the documents produced by him pertained to the complainant company.

62. Pertinently, it was the accused who vide application dated 26.04.2003 sought the production of the record. This application was not opposed by the complainant, who gave his no objection for producing the available record. It is pertinent to note that even after the record available with the complainant was produced, the accused despite having sufficient opportunity did not seek to point out any discrepancy therein. The record was made available for perusal and inspection of the accused and the matter was adjourned for three days. In the aforesaid background, in my view, it could not be said that the accused had rebutted the presumption raised by section 118(a) and 139 of the NI Act.

63. Learned counsel for the appellant/respondent sought to raise a doubt about the genuineness of Ex. DW-4/1 to 4/39 by claiming that the STD code found on the bills was non-existent on the date that the bills bear, as the said STD code was introduced much later. Pertinently, the aforesaid aspect does not appear to have been raised either during the examination of DW-4, who produced Ex DW-4/1 to 4/39, nor at the stage of arguments before the learned Magistrate. The evidence led by the accused on the aforesaid aspect is nil. The accused did not seek to cross-examine the PWs on the said aspect at all. Thus, this submission does not lead to raising of any doubt about the Bills Ex. DW4/1 to Ex. DW4/39.

Crl. A. 874/2014 Page 34 of 41

64. The approach of the learned Magistrate while dealing with the evidence appears to be fundamentally flawed. Much has been made by the learned Magistrate of the fact that the complainant admitted that he had never delivered the goods personally to the accused. It is clear from the scale of transactions that the complainant claims to have been undertaking, that it was highly unlikely that he would personally get involved with the delivery of marble to his clients. The fact that the complainant/appellant was dealing in Italian marbles - which is an expensive commodity, has not even been disputed. Merely because he may not have personally delivered the goods to the accused, was no reason to doubt the transactions claimed to have been undertaken by the complainant with the accused. There is no basis to doubt the transactions, merely because the complainant stated that he had received the cheques in question from the accused personally.

65. The learned Magistrate doubted the complainant because he did not remember to whom he handed over the cheques in question in his company for being deposited in the bank account. He observed:

"It is unpalatable that in the year 1997 a person who received cheques worth Rs.1,78,00,000/- would be so casual in dealing with custody of the same that he does not remember as to whom he handed over the possession thereof. The complainant was cross-examined on 15.12.2000 whereas the cheques are dated 08.10.1997. There is a gap of about three years between the alleged issuance of cheques and cross examination of the complainant. Given the nature of transaction alleged, the amounts of cheques, period of three years cannot be taken to be that large so as to affect the memory of the complainant".

66. The line of reasoning adopted by the learned Magistrate appears to be completely misdirected. Pertinently, it was not even the defence of the Crl. A. 874/2014 Page 35 of 41 accused that the cheques in question had not been issued to the complainant. Therefore, to whom the complainant delivered the cheques for being deposited was wholly irrelevant. Though the amount of the cheques i.e. Rs.1.78 crores was, and continues to be a substantial amount even in today's time, it does not follow that the person to whom such cheques were issued would always remember the name of the person to whom they were delivered for being deposited in the bank account. A person who has large business set up; who is conducting business in several parts of the country (it has come on record that the complainant was having office in Bombay, Delhi and even Daman), and; who stated that he had not one but several accountants, may not ordinarily remember the person to whom he may have delivered the cheques for deposit in the bank account. The over emphasis on the aforesaid trivial aspect by the learned Magistrate was wholly uncalled for, particularly when the delivery of the cheques by the accused to the complainant was not even in dispute. The complainant may not have remembered the places from where the marbles was delivered to the accused, simply because he was having not one but several places from where the same could be delivered. This position has clearly emerged from the testimony of DW-4. Thus, there was nothing unusual in PW-1 not being able to remember the place from where the marble was delivered to the accused. From the evidence brought on record, it is evident that it was not a case of single shipment and marble was supplied on numerous occasions.

67. Similarly, the learned Magistrate has misdirected himself in doubting the transaction on the basis that no explanation had been furnished by the appellant as to why three cheques were issued on the same day aggregating Crl. A. 874/2014 Page 36 of 41 to Rs.1,78,00,000/- from the same account, and not a single cheque had been issued. The approach of the learned Magistrate, to say the least, is perverse for the reason that the issuance of the three cheques by the respondent/ accused aggregating to Rs.1,78,00,000/- is not even in dispute. Since the accused issued the said cheques, it was for them to explain as to why they issued three cheques and not one cheque aggregating to Rs.1,78,00,000/-. The complainant could not be bothered in the least as to whether the amount was covered in one cheque or three cheques. The complainant was only concerned with receiving his due amount. As to how this aspect could be used against the appellant, is difficult to understand.

68. Similarly, the re-presentation of the three cheques by the appellant/ complainant before the issuance of the notice and filing of the complaint has been adversely commented upon by the learned Magistrate. There is, once again, no merit in the observations made by the learned Magistrate. The complainant was entitled to present and re-present the cheques even after dishonour, if the said presentation was made during the validity period of the said cheques. The occasion to file the complaint arose only when upon dishonour of the said cheques, the statutory notice under Section 138 was issued by the complainant and the cheque amount not paid within time. The complainant was not obliged to disclose in the complaint the particulars of each and every occasion when the cheque was earlier presented and dishonoured. There was no question of any concealment by the complainant of the said facts, as they were wholly immaterial and irrelevant facts. What was relevant was the last presentation of the cheques by the Crl. A. 874/2014 Page 37 of 41 complainant and the last dishonour of the cheques, following which the statutory notice was issued by the complainant.

69. So far as the aspect of non production of delivery challan is concerned, both PW-1 and DW-4 had deposed that it was not relevant to maintain the same once the bill had been raised. Pertinently, the accused did not dispute the aforesaid statement of these witnesses by questioning them as to why it was not necessary to maintain the delivery challans. Had these witnesses been questioned on the aforesaid aspect, and had they failed to give a satisfactory response, the accused could have taken advantage of the said lacuna. However, it is seen that the accused was satisfied of the testimony of the said witnesses on the aforesaid aspect. DW-4 in his testimony had deposed that ExDW-4/1 to 4/39 i.e. carbon copies of the bills maintained by the complainant had the receiving of the goods endorsed on them.

70. On the aspect of non production of the sales tax record, it has come in the testimony of PW-1 that "We had been paying sales tax etc. on such delivery". DW-4 had also stated in his examination-in-chief "It is correct that the sale of marble is covered under the sale tax". The mere non production of the sales tax record by DW-4 - upon the application under section 311 of the accused being allowed, is not enough to throw reasonable doubt on the authenticity of the sale transactions. At the highest, what could be said is that the sales tax in respect of the transactions may, or may not have been deposited.

Crl. A. 874/2014 Page 38 of 41

71. Pertinently, even though there was no cross examination undertaken by the accused on the aspect of the handwriting in the said documents being of the same person, the learned Magistrate has, on his own, raised a doubt on Ex. DW-4/1 to 4/39 by observing that:

"the said bills are apparently prepared by the same person at the same time as evidently, the handwriting on all the documents mark DW 4/1 to DW 4/39 is of the same person. The copy of bills mark DW 4/1 to DW 4/39 are evidently prepared at the same time as there is absence of natural incongruence and inconformity in the scribing, which would result had the bills being prepared at different points of time. The said documents appear to be prepared to suit the complainant's claim and also indicate them being false documents".

72. The testimony of DW-4 has been discarded by the learned Magistrate by observing that he was employed by the complainant and had all the reason to depose in his favour. Here again, the approach of the learned Magistrate appears to be flawed for the reason that DW-4 was an ex- employee, and not a current employee of the complainant. Moreover, DW- 4 was the witness of the accused, and it was the accused, who was permitted to name the witness he sought to produce when his application under section 311 Cr PC was allowed on 26.04.2003. Pertinently, DW-4 was not declared as a hostile witness, and was not cross examined by the accused. The learned Magistrate while dealing with the testimony of DW-4 observed as follows:

"The witness DW4 was employed with the complainant and has all the reason to depose in his favour. The intent of the witness who appeared as Defence Witness, to corroborate the case of the complainant is evident from the nature of his cross Crl. A. 874/2014 Page 39 of 41 examination by the complainant wherein only suggestions are put to him which are in the nature of establishing the case of the complainant. DW4 in his examination in chief has categorically deposed that he was not privy to the transactions between the complainant and the accused as alleged by the complainant, in the following words:

"It is correct that no purchase was made in my presence and no documents was ever executed in my presence".

Though Raj Kumar Mittal appeared as defence witness, the perusal of his testimony indicates that his examination in chief is in the nature of his cross where as his cross examination is in the nature of his examination in chief, i.e. though called and examined by the defence, he appears to depose for the complainant and produced documents which, for reasons mentioned and discussed earlier, are untrustworthy and apparently false in nature".

73. In the light of the aforesaid discussion, I am of the view that the respondent/accused did not rebut the presumption under Section 118(a) and 139 NI Act, which arose in favour of the appellant/complainant. A mere denial of the underline transactions made, while making a statement under section 311 Cr PC - which is not on oath, and did not expose the accused to cross examination, cannot be considered as proof of rebuttal of the presumption. Secondly, the transactions were proved on record by the respondent/accused witness DW-4 by producing - at the instance of the accused, the bill books of the appellant pertaining to the supply of goods to the accused.

74. The submission of Ms. Agarwal premised on the wrong recording of dates of the return memo and the date of issue of the notice-when the Crl. A. 874/2014 Page 40 of 41 statement of accused No. 2 was recorded under Section 313 Cr.P.C. is of no avail since the date written on the return memo; the date of the notice; and the date on the UPC are a matter of record. Obviously, the incorrect dates were wrongly typed while recording the statement of accused No.2 under Section 313 Cr.P.C. and nothing turns on the same.

75. In view of the aforesaid discussion, I find the impugned judgment of the Ld. MM to be perverse and unsustainable. The impugned judgment of acquittal is, accordingly, set aside, and the accused/respondent is found guilty of the offence under Section 138 NI Act.

76. Accordingly, the appeal is allowed.

VIPIN SANGHI, J.

NOVEMBER 30, 2015 Sr/ B.S. Rohella Crl. A. 874/2014 Page 41 of 41

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