Delhi District Court
Court, Hiten P. Dalal vs . Bratindranath Banerjee (2001) 6 Scc ... on 22 March, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE (NI ACT),
NORTH-WEST, ROHINI, DELHI
Presided over by- Sh. Vikas Madaan, DJS
CNR No. DLNW020012302015
CC No. 3543-2016
Rohit Chauhan, S/o Sh. P.S Chauhan
CSC-1/16, DDA Market, Sector-6,
Rohini, Delhi- 110034
............Complainant
Versus
M/s Ramji Dass Darshan Kumar Ltd.
1st Floor, Shiva Tower 100/28 Rajapur,
Sector-9, Rohini, Delhi-110085
............Accused no. 1
Sh. Raj Kumar Bansal,
R/o Flat No. 144, Vasundhara Apartment,
Sector-9, Rohini, Delhi-110085
Pg. no. 1 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016
Delhi-110034
.............Accused no. 2
Sh. Satbir
1st Floor, Shiva Tower 100/28 Rajapur,
Sector-9, Rohini, Delhi-110085
.............Accused no. 5
JUDGMENT
(1) Name of the complainant, : Rohit Chauhan
parentage and address
(2) Name of accused :M/s Ramji Dass Darshan Kumar
Sh. Raj Kumar Bansal
Sh. Satbir
(3) Offence complained of or
proved : 138 N.I. Act
(4) Plea of accused : Pleaded not guilty
(5) Date of institution of case : 02.01.2015
(6) Date of reserve of order : 03.02.2023
Pg. no. 2 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016
(7) Date of Final Order : 22.03.2023
(8) Final Order : Acquittal
BRIEF FACTS RELEVANT FOR THE DECISION OF THE CASE A. FACTUAL MATRIX
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. The complaint was filed by Sh. Rohit Chauhan(complainant) against M/s Ramji Dass Darshan Kumar Ltd., (accused no. 1), Sh. Raj Kumar Bansal (accused no. 2), Sh. Deepak Bansal (respondent no. 3), Sh. Akshay Bansal (respondent no. 4) and Sh. Satbir (accused no.5). It is the case of the complainant that accused no. 1 is a company and remaining accused and respondents were its directors and persons responsible for the day-to-day affairs of accused no.1 and that they approached the complainant for purchasing raw materials and accordingly, complainant supplied to them goods and materials as per the demand of the accused persons.
3. In partial discharge of their liability in respect of the goods supplied, accused persons had issued a cheque bearing no. 001373 dated 31.07.2014 for an amount of Rs. 10,00,000/- drawn on Bank of India, Pg. no. 3 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 Community Centre, Ashok Vihar, Delhi, (hereinafter referred to as "cheque in question", for brevity) with the assurance that the said cheque would be honored upon its presentment. That upon presentment, the cheque in question got dishonored with the remarks "FUNDS INSUFFICIENT" vide return memo dated 28.10.2014. Thereupon, a legal demand notice dated 24.11.2014 was sent to the accused through registered courier and it is the case of the complainant that despite service of notice, accused persons failed to pay the cheques amount within stipulated time.
B. PRE-SUMMOING EVIDENCE & NOTICE
4. Pre-summoning evidence was led by the complainant and upon appreciation of pre-summoning evidence, accused no. 1, accused no. 2 and accused no. 5 were summoned for an offence Section 138 of the Act and notice under Section 251 Cr.P.C. for this offence was framed upon accused no. 1,2 and 3 on 01.12.2017 to which he pleaded not guilty and claimed trial. In his plea of defence, accused no. 2 (also on behalf of accused no.1) stated that "I had given the cheque in question as security for purchase of some material from the complainant. However, the said material was not supplied to us. I demanded the said cheque, however, It was not returned to us. The cheque in question bears my signature, however, the contents were not filled by me. I do not have any liability towards the complainant. I had not received the legal notice. The address mentioned in the legal notice was my address. I had sold the said flat one year ago." Accused no.5 stated that " I had signed the cheque in question on instruction of Rak Kumar Bansal i.e accused no. 2. I had filled the name and amount in words as well as in Pg. no. 4 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 figures in the cheque. I had not filled the date in the cheque in question. I do not have any liability towards the complainant. I had not received the legal notice as it was served at the office address and at that time I was not working with the company i.e accused no. 1."
5. Thereafter, the matter was fixed for complainant's evidence.
C. COMPLAINANT'S EVIDENCE
6. In its evidence, complainant examined himself as CW-1. He relied upon his pre-summoning evidence towards post-summoning evidence and the same is Ex. CW1/A. He relied upon the following documentary evidence against the accused to prove his case beyond reasonable doubt: -
Ex. CW1/1 Original cheque no. 001373
Ex. CW1/2 Cheque Returning memo
Ex. CW1/3 Legal demand notice
Ex. Original courier receipt
CW1/4(colly)
Ex. CW1/5 Present complaint
7. CW1 was further subjected to cross-examination by the Ld. counsel for the accused. Thereafter, the complainant's evidence was closed vide order dated 08.11.2017 at the request of the complainant.
Pg. no. 5 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 D. STATEMENT OF ACCUSED
8. Statement of the accused no.2 and 5 were recorded under section 313 Cr.P.C on 13.04.2018 and wherein all the incriminating evidences were put up before the accused persons and in reply, accused persons denied all the incriminating evidences appeared against them. They further wished to lead defence evidence.
E. DEFENCE'S EVIDENCE
9. In defence evidence, accused no. 2 examined as DW1 and accused no.
5 was examined as DW-2. DW1 and DW2 were further subjected to cross-examination by the Ld. counsel for the complainant. Thereafter defence evidence was closed vide order dated 10.12.2018.
10. Here it is pertinent to mention that, during the pendency of the proceedings, unfortunately, accused no. 2 has expired and consequently, proceedings w.r.t accused no.2 stands abated.
11. Thereafter final arguments heard on part of both the Ld. counsel for the complainant and accused. I have heard the rival contentions of both the counsel and given my thoughtful consideration to the material appearing on record.
Pg. no. 6 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 F. INGREDIENTS OF OFFENCE AND DISCUSSION
12. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence: -
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a Pg. no. 7 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 notice in writing given to the drawer within thirty days of the receipt of information of the dishonor of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
13. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. In addition to the above, the condition stipulated under section 141 and section 142 of the NI Act have to be fulfilled.
14. Notably, there is no dispute at bar about the proof of first, third, fourth and fifth ingredients. The complainant has proved the cheques bearing no. 001373 vide Ex. CW1/1. The dishonour of the said cheque is also duly proved vide Ex. CW1/2. The complainant has proved on record the legal notice vide Ex. CW1/3 and the notice was duly sent was proved vide Ex. CW1/4(colly) as duly proved by the fact that accused person had never disputed their correct address. As such, on the basis of above, the first, third, fourth and fifth ingredient of the offence under section 138 NI Act stands proved against the accused.
15. The controversy in the present complaint pertains to second ingredient.
Pg. no. 8 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 CONTENTIONS IN RELATION TO NON-FULFILMENT OF SECOND INGREDIENT
16. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the accused persons have admitted their signature upon the cheques in question. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
17. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
18. In case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court had held:
Pg. no. 9 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 "The accused under Section 138 NI Act has two options. He can either show that the consideration and debt did not exit or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as it is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which his probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probably that a prudent man under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question, was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon the circumstantial evidence and if the circumstances so relied upon are so compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Pg. no. 10 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 Act to rebut the presumptions arises under Section 118 and 139 of NI Act''.
19. So far as the facts of liability is concerned, in view of mandatory presumption of law as discussed above, if any cheque has been produced by the complainant bearing the signatures of the accused, there cannot be any inherent lacuna in the existence of the liability. But then definitely, accused can point loop holes in the story of the complainant by impeaching the credit of the witness during his cross- examination. The accused can discharge his burden by demonstrating the preponderance of probabilities coming in its way. In the present case, the defences raised by the accused to rebut the presumptions are discussed below:
a. Contention 1: No material was ever supplied by the complainant to the accused Arguments of the Accused:
20. It is contended by the Ld. counsel for the accused that complainant has failed to place on record any invoice or bill or challan to prove that goods were supplied by him to the accused. It is further contended that complainant has even failed to brought on record any document by which it could be proved that goods were ever supplied by the complainant to the accused. It is further argued that the cheque in question was given as a security to cheque as an advance against the future supply of the goods, but complainant had failed to supply any Pg. no. 11 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 goods to the accused. To buttress his arguments, Ld. counsel has relied upon the following judgments:
➢ K Prakashan vs. P.K Surenderan, 2007 S.C., ➢ M.S. Narayana Menon @ Mani vs. State of Kerela & anr, 2006 S.C., ➢ M/S Indus Airways Pvt. Ltd. and Ors vs. Magnum Aviation Pvt Ltd and anr, 2014 S.C Arguments of the Complainant:
21. Per contra, it is argued by the Ld. counsel for the complainant that burden to prove that goods were never supplied to them is upon the accused persons and it is a cardinal rule of law that accused cannot discharged its burden merely by making bald assertions. It is further contended by the Ld. counsel that during the cross-examination of the complainant, no suggestion or defence was ever put to the complainant with regard to the fact that cheque in question was issued as a security cheque. It is further argued that DW-1 has deposed that he was threatened by the complainant but no complaint or FIR was ever filed by him against the complainant. It is further argued that certain documents were filed by them as per the order of Ld. Predecessor Court to prove the transaction between the complainant and the accused and whereby the accused had acknowledged their liabilities towards the complainant. In support of his contentions, Ld. counsel has relied upon the following judgments:
Pg. no. 12 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 ➢ Bir Singh vs. Mukesh Kumar, 2019 S.C., ➢ Rohitbhai J Patel vs The State of Gujarat, 2019 S.C., ➢ M/S Kalamani Tex vs. P. Balasubramanian, 2021 S.C. Court's Observation:
22. In the present case, since the inception of the trial, the sole defence of the accused persons is that the goods were never supplied by the complainant to the accused. Here it is pertinent to note that no documents were brought on record by the complainant to show the quantity of goods or delivery of the goods upon the accused persons. In his cross-examination, complainant deposed that "... I used to supply the material at the site wherein the other companies used to issue a challan in respect to material supplied to them. I used to give invoice to the company also. The companies used to pay us in part payment and ledger account pertaining to the transaction is being maintained by both the parties...." Here the complainant itself deposed that he used to maintain a ledger account of the companies with whom he used to deal. Further, it is also evident from his testimony that he also used to invoice to the companies. Therefore, it is surprising that as to why no such documents were filed by the complainant to prove the alleged transaction with the accused. Even no witnesses were examined by the complainant to prove that he had sent the goods to the accused. Absence of any document or witness raise a shadow of doubt over the claim of the complainant that goods were ever supplied by him to the accused persons. Further, the documents which were later filed by the complainant cannot be relied upon in evidence as the same were never tendered in evidence on oath by the complainant. Consequently, the Pg. no. 13 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 said documents are inadmissible in evidence. Therefore, keeping in view the aforesaid discussion, this Court is of the opinion that accused person have succeeded in raising a probable defence in their favour to rebut the presumption of existence of a legal debt/liability vis-à-vis cheque in question on the touchstone of preponderance of probabilities.
G. CONCLUSION
23. Thus, in view of the totality of the circumstance 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, 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 it is of paramount importance to demand evidence of unambiguous, impeccable and of unimpeachable in nature so as to entail criminal conviction of the accused and which the complainant has failed to bring.
24. In the case of 'Kulvinder Singh vs Kafeel Ahmad'', Crl L. P. 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 accused / respondent, must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him.
25. At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the Pg. no. 14 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 accused ''must be'' guilty and not merely ''may be'' guilty. The mental distance between ''may be'' guilty to ''must be'' guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence. In this case, after the accused successfully rebutted the presumption of consideration by raising a doubt on the very factum of the transaction. The accused has clearly presented a case which is superior in way. And as per the settled law, this is all that what is required, as preponderance of probabilities is not a rigorous standard of proof, but only so much evidence as makes the court lean in, in favour of one side and not the other. Consequently, the benefit of doubt must go to the accused. The material on record does not suggest that the accused ''must be'' guilty whichever way one looks at it.
26. Moreover, the Hon'ble Supreme Court in the case of Laxmi Dyechem v. State of Gujarat (2012) 13 SCC 375, has held as under, ""Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If, however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act Pg. no. 15 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016 regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant...."
27. In view of the above discussions, the present case appears to be a fit case where benefit of doubt can be extended to the accused. Accordingly, in view of the above discussions, this court hold that the complainant has failed to prove his case.
28. In light of foregoing reasons, accused no. 1 M/s Ramji Dass Darshan Kumar and accused no. 5 Sh. Satbir stands acquitted from the offence u/s 138 r/w 141 of the NI Act.
ORDER: - Acquitted ANNOUNCED IN THE OPEN COURT TODAY 22.03.2023 (VIKAS MADAAN) METROPOLITAN MAGISTRATE, NI ACT, Note: This judgment contains 16 pages and NORTH-WEST, ROHINI, DELHI each page is signed by the under signed.
Pg. no. 16 of 16 Rohit Chauhan v. M/s Ramji Dass Darshan Kumar Ltd. & anr. CC No. 3543-2016