Delhi District Court
Arise India Ltd. vs . M/S Raj Electronics & Electricals Page ... on 28 November, 2015
IN THE COURT OF SHRI DEEPAK KUMAR, MM03 (NI ACT)
SOUTHWEST DISTRICT: NEW DELHI
C.C No. 606/14
Unique case ID No. 02405R0168352013
In the matter of :
Arise India Limited
Through its Authorized Representative
Having its Registered Office At:
B38, Jain Chowk,
Mangla Puri, Palam, New Delhi.
...Complainant
Versus
1. M/s Raj Electronics & Electricals,
Through its Proprietor
Shri Gajraj Singh
Padyal House, Near Khadi Bhandar,
Bandikui, Jaipur, Rajasthan.
2. Shri Gajraj Singh,
Proprietor of M/s Raj Electronics & Electricals,
Padyal House, Near Khadi Bhandar,
Bandikui, Jaipur, Rajasthan. ...Accused
CC No.606/14
Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 1/28
Date of Institution : 21.06.2013
Date of judgment : 28.11.2015
J U D G E M E N T:
1. Vide this judgment, I shall dispose off the present complaint under section 138 Negotiable Instruments Act (hereinafter referred to as N I Act) filed by the complainant against the accused.
2. The brief facts of the case as averred by the complainant in its complaint are that complainant company is a reputed name as a leading manufacturer and marketing/trading for various electrical products for industrial and household use having its registered office at B38, Jain Chowk, Mangala Puri, Palam, New Delhi and having its branch office at 139, City Centre, SC Road, Jaipur and Godown at F62, Kalidas Marg, Bani Park, Jaipur, Rajasthan. It is further averred in the complaint that accused no. l is a proprietorship concern and the accused no. 2 is its Proprietor who approached the complainant company for supply of the goods. Accordingly, the said goods were supplied to the accused concern as per the order placed upon the complainant company. In the complaint, it is further stated by complainant that accused was maintaining a running account with the complainant and liable to pay as CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 2/28 per the ledger account maintained by the complainant as on date.
3. In the complaint, it is further stated by complainant that in order to discharge his liability accused issued a cheque bearing no. 500640 dated 15.03.2013 for a sum of Rs. 3,87,000/ drawn on Bank of Baroda, Bandikui303313 in favor of the complainant company which was returned unpaid vide returning memo dated 05.04.2013 with the remarks "FUNDS INSUFFICIENT". It is mentioned in the complaint that thereafter, the complainant sent a legal demand notice dated 03.05.2013 to the accused through his counsel by way of registered post AD and Speed Post. However, as per the complaint, despite service of the said legal notice of the demand, the accused failed to pay the aforesaid dishonored cheque amount. Hence, the present complaint.
4. The cognizance of offence u/s 138 Negotiable Instrument Act, was taken by the Ld. Predecessor Court and accused was summoned vide order dated 21.06.2013. Thereafter, separate notice u/s 251 Cr. P.C., explaining accusations against the accused u/s 138 was framed on 24.01.2014 to which he did not plead guilty and claimed trial.
5. An application filed on behalf of the accused u/s 145(2) NI Act seeking to crossexamine CW was allowed. Vide order dated 28.06.2014, CE was closed. On 17.10.2014, statement of accused u/s 313 Cr.P.C was recorded. Accused opted to lead DE. An application u/s 315 CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 3/28 Cr.P.C, seeking to examine accused as a defence witness, was allowed. Vide order dated 11.09.2015, DE was closed.
6. It is well settled position of law that to constitute an offence under S. 138 N.I. Act, the following ingredients are required to be fulfilled:
(i)A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii)The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv)That cheque is 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 CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 4/28 to be paid from that account by an agreement made with the bank;
(v)The payee or the holder in due course of the cheque makes 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;
(vi) 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.
7. Being cumulative, 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.
8. I have heard both the parties and gone through the record.
9. At the outset it is pertinent to discuss the provisions of Section 118 of the NI Act which inter alia provides that it shall be presumed, until the contrary is proved, that every negotiable instrument CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 5/28 was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque , for the discharge of, whole or part of any debt or liability. The said presumptions are rebuttable in nature.
10. In Rangappa vs. Sri Mohan 2010 V AD(SC), three Judge Bench of Hon'ble Supreme Court held that section 139 raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This presumption is rebuttable presumption and it is open to the accused to raise a defense wherein the existence of legally enforceable debt or liability can be contested.
11. It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, 2009 A.I.R. (SC) 1518 that the accused may rebut these presumptions by leading direct evidence and in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case.
12. As, discussed above, it becomes amply clear that the CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 6/28 accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. Or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed. In the first situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant.
13. So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above if an accepted signed cheque has been produced by the complainant, then there cannot be any inherent lacuna in the existence of liability. But then definitely accused can create some loopholes in the story of the complainant by impeaching the credit of witness during the cross examination. The strength of standards on the accused is not as high as placed and desired from the complainant. Accused can discharge its burden by demonstrating the preponderance of probabilities coming in its way.
14. Coming to the present case in hand, it has been the defense of the accused that AR of the complainant is not competent person to depose on behalf of accused and thus his deposition cannot be read in evidence. Ld. Counsel for accused has argued that AR has stated his CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 7/28 complete ignorance and lack of knowledge regarding the transaction between the parties. However the same has been countered by the Ld. counsel of the complainant by submitting that the factum of supply of goods and liability for the same has been admitted by the accused during various stage of trial proceedings and thus in view of the same, the arguments advanced by the Ld. Counsel for accused does not hold good.
15. Let me proceed to appreciate and examine the same by discussing the settled legal positions in reference of the facts and circumstances of the present case in question. Hon'ble Supreme Court in A.C Narayanan vs. State of Maharashtra 2014 (1) DCR 135 has laid down following authoritative guidelines: "......................................................... .............................
ii) The Power of Attorney holder can depose and verify on oath before the court in order to prove the contents of the complainant. However the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
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iii) It is required by the complainant to make
specific assertion as to the knowledge of the
attorney holder in the said transaction explicitly in the complaint and the power of the attorney holder who has no knowledge the transactions cannot be examined as a witness in the case."
16. AR of the complainant has admitted that he has not witnessed the transactions in question. He further demonstrated his complete ignorance regarding details of the transaction in question. Thus in view of the Judgment of Hon'ble Supreme Court, the AR evidently appears not to be competent to depose in the matter as a witness. However, in view of the admissions made by the accused regarding supply of some goods made by the complainant coupling with certain documentary evidences on record, I deem it to fit to discuss, examine and appreciate the case on merits. It is also important considering the fact that documentary evidences play the vital role in proving or disproving the case u/s 138 NI Act.
17. First I proceed to decide the objection raised by Ld. Counsel for complainant during evidence and final arguments that accused has traveled beyond the scope and ambit of application section 145(2) N.I Act by introducing and inventing evidence not contemplated and CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 9/28 incorporated in the said application which formed the basis for entitling him to cross examine the complainant's witness. Refuge in this regard has been sought in the judgment delivered by Hon'ble Delhi High Court in the matter titled as Rajesh Agarwal vs State & Anr. Decided on 28 July, 2010 and Santosh Mittal Vs. Sudha Dayal Crl. A. 1262/2013 decided on 02.09.2014. Same has been contradicted by the opposite counsel by arguing that there is no such embargo. I have heard both the parties and gone through the record. Let me decide the same in the light of the settled legal positions.
18. Section 145 of N.I.Act reads as under:
145. Evidence on affidavit (1) Notwithstanding anything contained in the Code of Criminal Pro cedure, 1973 (2 of 1974), the evidence of the com plainant may be given by him on affidavit and may, subject to all just exceptions be read in evi dence in any enquiry, trial or other proceedings under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution of the accused, CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 10/28 summon and examine any person giving evidence on affidavit as to the facts contained therein.
19. The express provision of section 145(2) nowhere restricts the accused from taking defense not disclosed in the application. Similarly the judgment of Rajesh Aggrawal and Santosh Mittal (Supra) relied upon nowhere chains the accused from travelling beyond the scope of application moved under Section 145(2) N. I Act. Hon'ble Delhi High Court in the said judgment has just held that the complainant is not required to be recalled and reexamined after summoning of accused unless the MM passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under section 145(2) of N.I. Act suo moto by the Court. In Para 8 of the Judgment of Rajesh Aggrawal(supra), Hon'ble Delhi High Court has further held that only after disclosing the plea of defense accused can make an application that the case should not be tried summarily but as a summon trial case. This application must disclose the defense of the accused and the reasons why he wants the case to be tried as a summon trial.
20. Moreover, in criminal trial, accused cannot be circumscribed and censured from raising valid defense at later stage if the complainant does not get deprived from countering the same by CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 11/28 effectively using the opportunities available to him or her. Complainant should not shy away from offering reasonable explanation to the defense raised by the accused by taking the shield of technicalities as criminal conviction affects one's right of personal life and liberty which have been universally accepted as one of the most cherished human rights.
21. It has been also the defense of the accused that the complainant has not disclosed the complete details of the transaction in question in his complaint and withheld many material documents on which they relied upon and produced incurably defective and inadmissible documents.
22. The same now may be examined in the light of facts and circumstances of the present case in hand. While subjecting the complaint a careful examination, it becomes quite clear that complainant has failed to aver or explain as to how liability against the cheque in question has been arrived upon. Complaint is deadly silent in respect of the vital points of the transactions in question i.e. how the liability against the cheque in question has been calculated, the details of supply made, the dates on which supply made etc. The conspicuous absence of any plausible explanation regarding said fatal omissions makes the entire case of the complainant doubtful.
23. In M/s Pine product Industries & Anr. vs. R.P Gupta & CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 12/28 Sons & Anr. 2007(10 JCC (NI) 28, when accused pleaded that his cheque was misused and he had no liability to pay any amount, then keeping in view the fact that complainant had given no details what were the liabilities of the accused, what was the amount for which cheque was issued as a part payment, on which date and what amount was given to the accused at what rate, what was the extent of the goods which were adjusted against some payments, Hon'ble Delhi High court held that presumption of liability has been rebutted by the accused so he is liable to be acquitted.
24. Ld. Counsel for accused has also vehemently assailed the admissibility of Ex.CW1/2 (colly) by submitting that same being electronic evidence does not satisfy the mandatory provisions of Section 65B of Evidence Act. Reliance in this regard has been placed upon Judgment of Hon'ble Kerala High Court in the case titled as A.M. Perumal vs. M/s. Star Tours and Travels Crl.Rev.Pet.No. 1667 of 2007 decided on 15 March, 2010. However same has been attempted to be assailed by the Ld. Counsel for complainant by submitting that accused has admitted the said document and thus in view of the Section 58 of Evidence Act, same need not to be proved. To which Ld. Counsel for accused downrightly denied of accused having admitted the said document at any point of time. Let's examine the rival contentions of CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 13/28 both the parties.
25. First it appears pertinent to discuss the relevant provisions of Section 65B and Section 58 of Evidence Act.
26. Section 65 B of Evidence Act reads as follows: 65B. Admissibility of electronic records.--
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evi dence of any contents of the original or of any fact stated therein of which direct evidence would be ad missible.
(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely:--
CC No.606/14
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(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activ ities regularly carried on over that period by the per son having lawful control over the use of the comput er;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.CC No.606/14
Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 15/28 (3) Where over any period, the function of storing or processing information for the purposes of any activ ities regularly carried on over that period as men tioned in clause (a) of subsection (2) was regularly performed by computers, whether--
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive op eration over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be con strued accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a cer CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 16/28 tificate doing any of the following things, that is to say,--
(a) Identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the elec tronic record was produced by a computer;
(c) dealing with any of the matters to which the con ditions mentioned in subsection (2) relate, and pur porting to be signed by a person occupying a respon sible official position in relation to the operation of the relevant device or the management of the rele vant activities (whichever is appropriate) shall be ev idence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,--
(a) Information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 17/28 form and whether it is so supplied directly or (with or without human intervention) by means of any ap propriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.--
For the purposes of this section any reference to in formation being derived from other information shall be a reference to its being derived therefrom by cal culation, comparison or any other process.
27. Section 58 of the Evidence Act reads as under:
"58. Facts admitted need not be proved.No fact need be proved in any proceeding which the parties CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 18/28 thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
28. The proviso to the Section 58 of Evidence Act specifically gives discretion to the court to require the facts admitted to be proved otherwise than by such admission. Thus the court cannot be left handicapped so as to act blindly and mechanically even if there is admission. Now coming to the facts of the present case in hand. Going by the evidence on record, it is plainly clear that complainant had not preferred to satisfy the conditions under Sec.65B (2) of Evidence Act. Neither Ex.CW1/2 (colly) contains a certificate as contemplated under Sec.65B (4) of the Indian Evidence Act. Neither the person who took out the print copy was examined nor was Ex.CW1/2 (colly) authenticated by any person. Even the said document does not bear the seal and signature of the concerned authority so as to accord some sort of sanctity. CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 19/28
29. In the Judgment of A.M.Perumal vs M/s. Star Tours And Travels(supra) Hon'ble Kerala High Court has held as follows: " 10.........A careful reading of Sec.65B(1) would show that, electronic record would be admissible in evidence only if the record produced satisfies the conditions laid down under Sec.65B(2) and contains a certificate as contemplated by Sec.65B(4). If the document doesn't satisfy the conditions under Sec.65B (2) or if it is not certified as contemplated under Sec.65B (4), it is inadmissible. Merely because the production of the accounts was sought by the revision petitioner, the record so produced cannot be accepted in evidence so long as it didn't satisfy the conditions stipulated under Sec.65B(2) or doesn't contain the certificate as contemplated under Sec.65B(4)......."
30. In view of the above, Ex.CW1/2 (colly) appears to be suffering from incurable defect as far as its admissibility is concerned. Thus, being inadmissible, same cannot be relied upon. Now coming to the contention of the Ld. Counsel for complainant regarding documents CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 20/28 Ex.CW1/2 (colly) being admitted need not be proved. First, as held above, the proviso of the section 58 of Evidence Act specifically gives discretion to the court to require the facts admitted to be proved otherwise than by such admission.
31. In the case titled as Egon Zhender International Pvt. Ltd vs. M/S Namgayal Institute for Research, decided on 25 October, 2013 Hon'ble Delhi High Court while appreciating the provision of section 58 of Evidence Act has held as follows: "19.2 In my view, this argument is flawed for more than one reason.
(i) While Section 58 of the Evidence Act absolves a party from proving admissions in pleadings or judicial admissions made by the opposite party or their counterpart or their agents at or before the hearing of the case, which then can form the foundation of a right claimed by a party, it does not preclude the court from asking the party to prove its case despite such admissions. (See proviso to Section 58 of the Evidence Act).
(ii) The provisions of Section 58 of the Evidence Act CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 21/28 cannot be invoked to override the provisions of Section 17(1) of the Registration Act, which as a matter of public policy require registration of documents which affect immovable properties as described in sub clauses (a) to (d) of the said Section. As a matter of fact, the proviso to Section 58 of the Evidence Act, amongst other situations, would oblige the court to render inadmissible, such like, unregistered documents, in evidence as they would militate against public policy"
32. Having discussed the legal positions, now coming to the facts of the present case in hand. Ld counsel for complainant has passionately endeavored hard to argue that Ex.CW1/2 (colly) have been admitted by the accused during cross examination and thus need not to be proved as mandated by the section 58 of the Evidence Act. Let me proceed to inquire if the admission, as alleged, has been made and if so, does it defy and despoil the entire evidence of the accused.
33. Going by evidence on record, it is revealed that during cross examination, accused has never been asked about the genuineness of the alleged documents. Neither accused has been asked about the liability arrived upon in the said document purported to be ledger document. CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 22/28 While responding to question asked about the invoices, accused simply deposed that "it is correct to suggest that goods were sent to me vide Ex.CW1/2 (colly) i.e invoices of complainant company". Now the question arises if the same can be identified and stretched as to the admissions of the said documents so as to materially contradict and prevent him from escaping the liability. First it appears pertinent to mention here that accused has deposed about the invoices and not about the ledger account. Second the said invoices have never been placed on record for the reasons best known to the complainant. Secondly, manifestly, accused has not admitted the liability as stated in the said document. At most it can be said to be admission of supply of goods of certain quantity; however the same is not sufficient.
34. In criminal trial where accused is subjected to intense scrutiny and his life and liberty is placed under scanner, it is all necessary that the alleged admission should be candid, categorical and complete in itself and the same should be shown to have been made after full appreciation of the questions put to him. However, evidently complainant failed to extract any such admission so to substantiate his claim. In view of the same, arguments of Ld. Counsel for complainant regarding admission does not hold good and thus same cannot be relied upon. CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 23/28
35. The documents i.e. Ex.CW1/2 (colly) are material as the same has been referred as foundation on which entire liability has been sought to be arrived upon. No invoices mentioned therein have been placed on record. It has been said that the cheque in question has been given in the discharge of partial liability. However complaint is silent as to the period during which alleged supplies have been made and the relevant date on which the liability in question has been ascertained. The question becomes relevant in reference of the defense of the accused regarding cheque in question being issued for security purpose. The simple denial of AR of the complainant cannot be regarded as gospel truth so as to be found fit to discard the claim of the accused in its entirety as AR of the complainant, as decided above, is not competent witness in the present case.
36. In M/S Indus Airways Pvt. Ltd And Ors vs. M/S Mag num Aviation Pvt Ltd And Anr CRIMINAL APPEAL NO. 830 OF 2014 (Arising out of SLP (Crl.) No.9752 of 2010 decided on 7 April, 2014, Hon'ble Supreme Court of India while deciding whether post dated cheque issued by the accused as an advance payment in respect of purchase orders could be considered in discharge of legally enforceable debt or other liability, has held as under: CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 24/28 "13. The explanation appended to Section 138 explains the meaning of the expression 'debt or other liability' for the purpose of Section 138. This expression means a legally enforceable debt or other liability. Section 138 treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138. If a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, in our considered view, the cheque cannot be held to have been drawn for an existing debt or liability. The payment by cheque CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 25/28 in the nature of advance payment indicates that at the time of drawal of cheque, there was no existing liability."
37. It has been also the defence of the accused that certain goods worth around 2 lakh to 2.5 lakh supplied by the complainant company were returned back. To substantiate his claim, accused has filed on record certain receipts/documents i.e. Ex.CW1/D1 to Ex.CW1/D3, Ex.DW1/1 to Ex.DW1/4 vide which it has been claimed that certain goods were returned back to the complainant company. Same has been disputed by the complainant. However, the simple denial cannot disparage the sanctity and authenticity of the said documents in its entirety, as decided above, the AR for the complainant is not the competent witness in the present case as admittedly the transaction in question has not been witnessed by him, so his denial of the documents regarding goods being returned cannot be simply relied upon. No other competent witness has been examined by the complainant. To fasten criminal liability u/s 138 NI Act, liability of the accused on the date of the cheque alone is material and it can not to permitted to be increased based on conjectures and surmises. Thus, in the aforesaid attending circumstances, doubts loom large and thus adverse conclusion becomes necessary to be drawn against the complainant.
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38. It is all more significant that presumption can only be raised in furtherance of prosecution case and not in derogation of the same. The three judge bench of Hon'ble Supreme Court in a case while dealing with Prevention of Corruption Act has observed in respect of presumption of law in 'Trilok Chand Jain v. State of Delhi' AIR 666 as under: "......the presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception"
39. Thus in view of the totality of circumstances and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so that it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that the criminal conviction entails enigmatic and stigmatic exposures and experiences and thus it becomes of paramount importance to demand evidence of unimpeachable character and of unambiguous nature.
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40. In the case of 'Kulwinder Singh Vs. Kafeel Ahmad' Cr. L.P. No. 478 of 2011, decided on 04.01.2013 Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the respondent/accused must be proved beyond reasonable doubt and if there is any slightest doubt about the commission of an offence then the benefit has to accrue him.
41. The present case appears to be fit case where benefit of doubt can be extended to the accused. Accordingly, in view of the above discussion, I hold that the complainant has failed to prove his case. Accused has been able to rebut presumptions u/s 118 and 139 NI Act arising in favour of the Complainant.
42. As the ingredients of the Section 138 N.I. Act are not fulfilled, the offence under Section 138 N.I. Act is not made out against the accused. Accordingly, the accused Shri Gajraj Singh, Proprietor of M/s Raj Electronics & Electricals is acquitted.
43. Bail Bond filed u/s 437A Cr. P.C is already on record. Announced in the open Court On 28th Day of November, 2015 (Deepak Kumar) MM03 (NI Act)/SouthWest Dwarka/ New Delhi CC No.606/14 Arise India Ltd. Vs. M/s Raj Electronics & Electricals Page 28/28