Delhi District Court
M/S Twenty Second Miles vs Mr. Brij Bhusan Aggarwal on 16 November, 2012
IN THE COURT OF SH. LALIT KUMAR : ASCJ / JSCC / GJ/
METROPOLITAN MAGISTRATE (NEW DELHI DISTRICT)
PATIALA HOUSE COURTS: NEW DELHI
Unique case ID No. 02403R0573572005
CC No: 2031/09
PS: Tilak Marg
U/s 138 Negotiable Instruments Act
IN THE MATTER OF:
M/s Twenty Second Miles,
D51, Sector6,
Noida, U.P.
Through:
Pawan Mittal, Authorised representative ..... Complainant
VERSUS
Mr. Brij Bhusan Aggarwal,
Proprietor of:
M/s. Alankan International,
D508, Crystal Plaza, New Link Road,
Andheri West Mumbai.
Also at:
102D, Block ACII,
Shalimar Bagh, Delhi,
R/o Arcade Silver, 56, Shop 105. ..... Accused
COMPLAINT U/s 138 OF NEGOTIABLE INSTRUMENTS ACT, 1881
Date of institution of the case : 15/11/2008
Date on which Judgment was reserved : 16/10/2012
Date of Judgment : 16/11/2012
Final Order : Acquitted
CC No. 2031/09 Page 1 of 13
JUDGMENT:
1. Complainant had filed the present complaint case u/s 138, 141 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N. I. Act") against the accused.
Brief facts necessary for just adjudication of the present case as stated in the present complaint are that the complainant is a proprietorship firm and deals in export of garments to various countries and the present complaint is being filed through Sh. Pawan Mittal, S/o Sh. B.D. Mittal, D51, Sector6, Noida, U.P. and working as a account manager in this firm who has been duly authorised and empower to file the present complaint vide power of attorney. It is further submitted that in order to discharge the legal liability towards the complainant, accused person had issued one cheque bearing cheque no. 110160 amounting to Rs. 6,58,000/ dated 21.06.05 drawn on IDBI Bank, Marigold House MIDC, Andheri (East), Mumbai, with the assurance that the same would be encashed positively on presentation. The complainant firm believing the same to be true presented the aforesaid for encashment to their banker and to the utter surprise and shock of complainant firm the same was returned by the bankers of the accused i.e. Syndicate Bank, New Delhi, with the remark "INSUFFICIENT FUNDS" on dated 17.08.2005 and the intimation to that effect was received by the complainant firm through its bankers later on. It is further averred that on returning of the cheque in the CC No. 2031/09 Page 2 of 13 aforesaid manner the complainant firm got issued a legal notice dated 03.09.2005 upon the accused under Regd. AD/UPC which was duly served but despite the same the payment has not been made till date and therefore, the accused responsible for the daytoday working of the company are equally liable for the offence u/s 138 N.I.Act.
Therefore, by such illegal, fraudulent, mischievous actions, the accused have rendered themselves liable to prosecution for the criminal offences under provisions of section 138 N.I. Act, 1881, as amended and have also caused wrongful loss to the complaint and wrongful gain to themselves. The said cheque has been dishonoured by the banker of the accused for the reasons contemplated by section 138 N.I. Act, 1881, and the complaint is being filed under due compliance with the conditions prescribed under the Act.
That the cause of the action for the purpose of filling the present complaint has arisen on various dates, when the information regarding the dishonour of the cheque was given by the bankers of the complainant, or when the legal notice was sent to the accused, and further when the accused received the notice, and finally upon the expiry of the fifteen days period during which the accused was to make payment. The cause of action is still continuing as the accused person have failed to make payment till date. Hence, the present complaint is filed against the accused.
CC No. 2031/09 Page 3 of 132. The complainant had led its presummoning evidence and examined Sh. Pawan Mittal as CW1. Evidence by way of affidavit of CW Pawan Mittal had been filed wherein he reiterated and reaffirmed the contents of the present complaint. CW1 in his testimony had relied upon copy of Power of Attorney Ex. CW1/A, cheque Ex. CW1/B, legal notice dated 03.09.2005 Ex. CW1/C, Regd. AD /UPC Ex. CW1/D and complaint Ex. CW1/E. Vide order dated 08.11.05, accused was summoned for the offence u/s 138 N.I. Act.
3. Finding a primafacie case against the accused, Notice u/s 251 Cr.P.C. for the offence u/s 138 N.I. Act was given to accused on 23.03.2011 to which he pleaded not guilty and claimed trial. It was also stated by the accused that he had not received any notice under section 138 NI Act.
4. Accused had filed an application u/s 145(2) N.I. Act and the application was allowed and CW1 was summoned for cross examination.
5. Complainant in support of its case and in post summoning evidence had examined Sh. Pawan Mittal as CW1 and was crossexamined by the counsel for the accused. During the cross examination CW1 deposed that he was attorney holder and CC No. 2031/09 Page 4 of 13 the Manager with the plaintiff. He denied that attorney was forged and fabricated documents. He deposed that the accused had approached the complainant stating that the accused was having hold with one multi national corporation and on the basis of the commission being paid to the accused, he would procure orders for the complainant. The payment of Rs. 6,58,000/ was made to the accused in advance for anticipated commission of the orders that the accused would procure. However, the accused did not procure any orders for the complainant and the complainant thus demanded its money back. In discharge of that liability the cheque in question was issued. He denied that no deal as aforesaid had been entered into between the plaintiff and complainant or that no advance commission as alleged was ever paid by the complainant to the accused. He further denied that the cheque in question was given by the accused as a security. He further denied that the accused had not received any legal notice because at the time of issuance of legal notice and the alleged service thereof the accused was in judicial custody. He denied that he was deposing falsely.
6. Thereafter, statement of accused Brij Bhushan Aggarwal was recorded u/s 313 Cr.P.C. wherein he denied the allegations against him and rebutted the complainant evidence against him. He further stated that in the year 2005, he had met the complainant through Sh. Ajay Garg. The complainant wanted to do some black money transactions. In pursuant thereto, he had given him a cheque CC No. 2031/09 Page 5 of 13 of Rs. 6,58,000/ and in return He was to pay this money to the complainant in cash. The cheque in question was given by him as a security for the repayment of the amount in cash. After encashing the cheque of the complainant, he had handed over the amount in cash to Sh. Ajay Garg, however, still the complainant misused this cheque and presented it for encashment knowing fully well the he had no liability towards the cheque in question. It was also stated by the accused that he wants to lead defence evidence.
7. In the present case, the accused had filed an application u/s 315 Cr.P.C. for examining himself as defence witness and the application was allowed. Accused in his defence had examined himself as DW1 and Sh. John Tigga as DW2.
8. DW1 in his testimony had reiterated and reaffirmed the contentions as raised by him in his statement recorded u/s 313 Cr.P.C. During his cross examination DW1 deposed that he could not admit or deny that Ajay Garg had never been a proprietor of the complainant. He had not produced any record to show that from August 2005 to April 2006, he was lodged in Tihar Jail and Dasna Jail. He voluntarily deposed that he could produce the same. He could not tell the particular period during which he was lodged in Tihar Jail and during which he was in Dasna Jail. He denied that he had received the legal notice. He denied that the cheque in question was not given as security. He denied that the cheque in question was CC No. 2031/09 Page 6 of 13 given in discharge of a liability arising out of a business transaction.
DW2 Sh. Johan Tigga, Head Warden, Tihar Jail, New Delhi had brought the summoned record regarding the admission of the accused in jail. The accused was admitted in jail on 09.08.2005 in Tihar Jail. On 16.09.2005, the accused was transferred to Ghaziabad Jail. The letter issued by the Dy. Suptd. In this regard as Ex. DW2/A. In his cross examination he deposed that he had not brought any record from Ghaziabad Jail after 16.09.2005.
9. Vide separate statement accused had closed his evidence on 03.01.12.
10. This court heard the final arguments advanced on behalf of the parties and carefully perused the entire record including the testimony on record.
11. Section 138 of the N.I. Act has prescribed the punishment for the offence of Dishonour of Cheque. Following facts are required to be proved to successfully prosecute the drawer for an offence under Section 138 of the Act:
(a) that the cheque was drawn for payment of an amount of money for discharge of a debt/ liability and the cheque was dishonoured;
(b) that the cheque was presented within the
prescribed period;
(c) that the payee made a demand for payment of
CC No. 2031/09 Page 7 of 13
the money by giving a notice in writing to the
drawer within the stipulated period;
(d) that the drawer failed to make the payment
within 15 days of the receipt of the notice;
(e) that the complaint case should have been filed
within one month from the date of receipt of
legal notice.
12. Section 6 of the N.I. Act has prescribed the definition of cheque and cheque is Negotiable Instrument within the meaning of section 13 of the Act. Section 30 of the N.I. Act talks about the liability of the drawer.
Section 118 of the N.I. Act talks about presumptions as to consideration, date, time of acceptance, time of transfer, order of endorsement, stamps and holder in due course. Section 139 of the N.I. Act talks about presumption in favour of holder.
Section 139 of the N.I. Act deals with presumption of law in favour of the holder of the cheque. It provides that unless the contrary is proved, it shall be presumed that the holder of a cheque received the cheque for the discharge, in whole or in part, or any debt or other liability. It is a rebuttable presumption of law and the burden of proving that a cheque has not been issued for a debt or liability is on the accused.
The presumptions u/s 118 and 139 of the N.I. Act are rebuttable and burden is on the accused to rebut the presumption CC No. 2031/09 Page 8 of 13 which can be discharged by the accused by preponderance of probabilities.
13. In order to bring home conviction the complainant has to show on record an unbroken chain of events leading to commission of actual offence. Further, it is the duty of the complainant to prove its case subject to provisions of N.I. Act and in such a manner so as to bring it outside the pale of any reasonable doubt.
14. It is the contention of the complainant that he had given Rs. 6,58,000/ to the accused for securing business for export of garments to the foreign countries and when the accused failed to secure the business, he returned the money by issuing a cheque bearing no. 110160 dated 21.06.2005, however, same was dismissed on presentation due to "Funds Insufficient".
15. On the other hand, it is the contention of the accused that complainant had filed the present case u/s 138 NI Act through attorney holder. The said complainant M/s Twenty Second Miles is proprietorship firm and according to the witness CW1 Sh. Pawan Mittal is only attorney holder of the said complaint. Nether the complainant nor any affidavit on behalf of proprietor of the said firm was signed filed or executed by the complainant. The person Pwan Mittal who was pursuing the said case and examined himself as CW1 has not a valid authorization i the eyes of law because the said CC No. 2031/09 Page 9 of 13 power of attorney has not being attested by the Notary Public. The power of attorney is attested by Oath Commissioner which is not a valid document / valid authorization and has no value in the eye of law. The complainant neither in complaint nor in examination in chief, disclosed any legal liability towards the accused. The witness examined by the complainant neither holder of valid power of attorney nor has any personal knowledge of the liability of said cheque or any transaction. In the cross examination CW1 stated that proprietor of the firm was Sh. Lalit Kukreja. Further identity of the said firm was not proved by the complainant with regard to who is proprietor of the said firm. On the other hand, accused, examined as DW1 deposed that proprietor of the firm was Sh. Ajay Garg. The said cheque was issued as security to Sh. Ajay Garg. He further contended that postal receipt dated 03.09.05 was manipulated by the complainant as there was no evidence of the proof of the service of legal notice. Further, accused has examined DW2 Sh. Sohan Tigga, Head Warden Tihar Jail who said that "the accused was admitted in jail on 09.08.05 till 16.09.2005 in Tihar Jail. On 16.09.2005 the accused was transferred to Dasna Jail Ghaziabad. The letter issued by Dy. Superintendent is proved as Ex. DW2/A in this regard. During the course of final arguments, it was also contended by counsel for the accused that case of the complainant suffers from material contradictions and complainant had failed to proved on record relevant documentary evidence showing the liability of the accused.
16. It is settled preposition of law that if a person has to be CC No. 2031/09 Page 10 of 13 punished under criminal law, then the prosecution has to prove its case beyond reasonable doubt. In the present case, the complainant has failed to prove that the accused was under liability to discharge a legal debt towards complainant. The accused has already disputed his liability and burden is upon the complainant to prove its case. In support of submission, the accused relied upon the judgment delivered by the Hon'ble High Court of Madras in the case titled as "T. Muthukaruppan Vs. G. Raghavan" reported as 2006(3) JCC(NI)223.
17. It is further contented by counsel for accused that complaint instituted in the name of M/s Twenty Second Miles is otherwise liable to be dismissed considering ratio of judgment delivered by the Apex Court in case titled as reported as 2006(3) JCC(NI)223 because the complainant has been filed in the name of M/s Twenty Second Miles and it has been mentioned that the same has been filed through one Sh. Pawan Mittal, authorised representative. The named persons Sh. Pawan Mittal was not competent to represent M/s Twenty Second Miles and also not competent to depose on behalf of M/s Twenty Second Miles, and as such, complaint deserves dismissal. It is the case of the complainant that person named as Sh. Lalit Kukreja is a proprietor of M/s Twenty Second Miles and he has authorized another person named as Sh. Pawan Mittal to represent M/s Twenty Second Miles. There is not a single document on record to show that Mr. Lalit Kukreja is proprietor of M/s Twenty Second Miles or he is CC No. 2031/09 Page 11 of 13 competent to delegate power to Sh. Pawan Mittal.
18. Moreover, since the cheque was not issued in Delhi as it was issued at Noida (UP), therefore, this court has no jurisdiction. In this regard, I am supported by Judgment titled as Dushyant Verma Vs. Tek Chand passed by Hon'ble High Court of Delhi in Crl. M.C. No. 3531/2010 and Crl. M.A. No. 17037/2010, which are as under: "In the instant case, undisputedly the petitioner is resident of Faridabad. The cheques, which are subject matter of the complaint under Section 138 N.I. Act, are also drawn on Punjab & Sind Bank, Ajronda, Faridabad where the petitioner is maintaining its account. The cheques in question, though were deposited for collection by the respondent through its bankers Canara Bank in Kamla Nagar, Delhi, were sent for collection to the drawee bank at Ajronda, Faridabad where they were allegedly dishonoured. Even the notice of demand was served on the petitioner at the address of Faridabad. Thus, in view of the law laid down by the Supreme Court in the matter of M/s Harman Electronics (P) Ltd. (supra) and Shri Ishar Alloy Sales Ltd. (supra), the entire cause of action for filing the complaint under Section 138 N.I. Act has arisen at Faridabad. Thus, no part of cause having arisen in Delhi Courts. The result of above discussion is that no part of cause of action having arisen within the territory of Delhi, the court in Delhi have no jurisdiction to try the complaint in question.
19. I am further supported by Judgment titled as Shree Raj CC No. 2031/09 Page 12 of 13 Travels & Tours Ltd. Vs. Destination of the World passed by Hon'ble High Court of Delhi in Crl. M.C. No. 1056/2011 wherein it was held that: "...that on the pleadings in the complaint(s), no part of cause of action can be said to have accrued to the complainant at Delhi; that the notice demanding payment was posted from Delhi and that the cheque was deposited with the payee bank at Delhi would not constitute the acts contemplated as ingredients of an offence.."
20. In view of the above discussion, no part of cause of action having arisen within the territory of Delhi, the court in Delhi have no jurisdiction to try the complaint in question. Apart from it complainant has also failed to prove his case. Hence, in the facts and circumstances of the case complaint is liable to be dismissed and same is accordingly dismissed. Accused Brij Bhusan Aggarwal is acquitted for the offence u/s 138 N.I. Act. Surety stands discharged. Bail bond / Surety bond stands cancelled. Document of surety, if any, be returned and endorsement, if any, be cancelled.
File be consigned to recordroom after due compliance.
Announced in the open court (LALIT KUMAR)
on 16/11/2012 ASCJ/JSCC/GJ/ MM
New Delhi District,PHC,
New Delhi
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