Delhi District Court
Sanjeev Kumar vs The State (Nct Of Delhi) on 15 November, 2021
Sanjeev Kumar V. The State etc.
IN THE COURT OF SH. ARUN SUKHIJA,
Ld. ADDL. SESSIONS JUDGE-03 (EAST DISTRICT),
KARKARDOOMA COURTS, DELHI.
Criminal Appeal No. - 62/2020
In the matter of :
Sanjeev Kumar
S/o Sh. Panna Lal
R/o F-43, Radjey Puri,
Delhi-51. ...Appellant
Versus
1. The State (NCT OF DELHI)
2. M/s. FABRIC INTERNATIONAL
Through its proprietor
6105, Basement, Block-1,
Padam Singh Road,
Karol Bagh, New Delhi. ...Respondents
::- J U D G M E N T -::
By way of present appeal, the accused/appellant Sanjeev Kumar has
challenged the judgment of conviction dated 20.02.2020 and order of
sentence dated 27.02.2020. The respondent No.2 was the complainant before
Ld. Trial Court and the appellant was accused before the Ld. Trial Court and
they are referred according to their original status before the Ld. Trial Court.
Respondent No.1 is only the proforma party as it was the private complaint
filed complainant against the accused person. The complainant has filed a
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complaint under Section 138 of the Negotiable Instruments Act, 1881 (in
short referred to as "N.I. Act"), inter alia on the following facts:-
1. The accused place two orders for purchase of cotton fabrics with the
complainant for which invoice bearing no. 121, dated 19.07.2015 and
invoice bearing no. 162, dated 20.09.2015 were issued and the goods
were duly supplied and delivered to the accused.
2. At the time of payment of the delivery of the first order in the month
of September 2015, the accused issued a cheque bearing no. 114629,
dated 23.09.2015 in the sum of Rs.1,75,988/-, drawn on ICICI Bank,
Karol Bagh Branch and the second order was also placed during that
time.
3. Towards the payment of second order, the accused again issued three
post-dated cheques bearing no. 114653, 114654 and 114655 (two
cheques in the sums of Rs.1,50,000/- and third cheque in the sum of
Rs.1,25,400/-) dated 15.11.2015, 28.11.2015 and 15.12.2015
respectively, all drawn on ICICI Bank, Karol Bagh.
4. The first cheque bearing no. 114629 got dishonoured on presentation
on 24.09.2015. Thereafter, when the complainant again presented the
said cheque along with the remaining three cheques for their
encashment, all of them again got dishonoured vide return memo
dated 16.12.2015 for reasons "Funds Insufficient".
5. Despite the service of Legal Demand Notice, the accused failed to
make the payment of the cheques in question.
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Vide sentence order dated 27.02.2020, the accused/appellant was
sentenced to simple imprisonment for a period of two years and it was also
directed to the accused person to pay Rs.10,00,000/- to the complainant as
compensation within a period of one month. The Ld. Trial Court has also
held that in case the accused failed to pay the compensation is not paid
within the said time, then, the accused/ appellant is liable to undergo simple
imprisonment for a period of one year.
The Ld. Counsel for the accused/appellant has inter-alia vehemently
argued as under:-
(a) The complaint was filed by the complainant without stating about the
legally enforceability of the debts due towards the accused.
(b) The debt whatever due remained was towards the transactions related
to the sale purchase of goods in a grey clothes market of Delhi namely
Tank Road where the 80-90% trading happened in an illegal manner.
The two bills filed by the complainant nowhere bear any of the Tax
GST/TIN/DVAT number. The two bills are actually not legally tenable
in law because of the void ab initio system of raising of invoice.
(c) Mr. Hanuman (Manager) of the complainant was the only person who
dealt with the accused and the same has been explained in the cross-
examination of complainant as well as in the evidence of the accused.
The accused had already paid an amount of Rs.1,75,000/- which was
neither adjusted or accounted by the complainant. The complainant
has not proved or produced any of the books of accounts related to the
transaction. The complainant nowhere in the legal notice (Ex.PW-
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Sanjeev Kumar V. The State etc.
1/20) has disclosed that the transaction was done through Mr.
Hanuman, Manager. The Ld. Trial Court has not considered that the
accused had made complaint about the defect in the fabric and about
the factum of cash payment to Mr. Hanuman, which was also come on
record vide DW-1.
(d) As per para No.4 of the complaint, it is the case of the complainant
itself that three cheques issued by accused person included the amount
of first Cheque No.114629 dated 23.09.2015 for Rs.1,75,988/-.
Further, as per para No.4 of the complaint, all the three cheques were
promised to be honoured on their dates, whereas, it is an admitted
version of the complainant that the said cheques were dishonoured on
16.12.2015, all on the same date despite of them bearing a specific
date for their presentation.
(e) The accused has nowhere admitted that accused is liable to make the
payment or the said cheques were issued in discharge of any legally
enforceable debt or liability. The case of the accused is that the
complainant dealt with him through Mr. Hanuman Ji and he has
supplied textiles. The accused has also made cash payment of
Rs.1,75,000/- to him and thereafter, the accused made complaint about
the defect in textile to Mr. Hanuman Ji. To prove the innocence of the
accused, the accused has filed the application under Section 391
Cr.P.C. to examine Mr. Hanuman and for directing the complainant to
produce books of accounts with regard to the said transaction and the
said application is pending.
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(f) The exhibition of documents i.e. bills were objected by the accused
person and the Ld. Trial Court has not adjudicated the said issue in
terms of "Practice in trial of Criminal Cases" in Part E of the High
Court Rules. The Ld. Trial Court in a routine and mechanical manner
passed the Judgment without looking into the principles of criminal
jurisprudence.
The Ld. Counsel for accused has relied upon the following
Judgments:-
1) The following principles are relied upon after referring upon the
Judgment of Kali Ram Vs. State of H.P., Manu/SC/0121/1973:
(1973) 2 SCC 808 :-
"....There are certain cases in which statutory presumptions
arise regarding the guilt of the accused, but the burden even in
those cases is upon the prosecution to prove the existence of
facts which have to be present before the presumption can be
drawn. Once those facts are shown by the prosecution to exist,
the Court can raise the statutory presumption and it would, in
such an event, be for the Accused to rebut the presumption. The
onus even in such cases upon the Accused is not as heavy as is
normally upon the prosecution to prove the guilt of the
Accused. If some material is brought on the record consistent
with the innocence of the Accused which may reasonably be
true, even though it is not positively to be true, the Accused
would be entitled to acquittal...."
2) The Hon'ble Supreme Court in Bharat Barrel & Drum
Manufacturing Co. V. Amin Chand Pyarelal, M
Manu/SC/0123/1999: (1999) 3 SCC 35 has held as under:-
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"32. The standard of proof evidently is preponderance of
probabilities. Inference of preponderance or probabilities can
be drawn not only from materials on record but also by
reference to the circumstances upon which he relies."
3) The Hon'ble Supreme Court in Krishna Janardhan Bhat V.
Dattatraya G. Hegde, Manu/SC/0503/2008: (2008) 4 SCC 54 has
held that an accused for discharging the burden of proof placed upon
him under a statute need not to examine himself.
4) The Hon'ble Supreme Court in Kumar Exports V. Sharma Carpets,
Manu/SC/8414/2008: (2009) 2 SCC 513 has held that 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.
5) The Hon'ble Supreme Court in Sunil Kundu and Ors. V. State of
Jharkhand, Manu/SC/0340/2013 has held that when the prosecution
is not able to prove its case beyond reasonable doubt, it cannot take
advantage of the fact that the accused have not been able to
probabilise their defence.
6) The Hon'ble Supreme Court in Basanlingappa V. Mudibasappa,
Manu/SC/0502/2019 , has summarized the principles of Sections
118(a) and Section 139 of Negotiable Instruments Act.
7) The Hon'ble Bombay High Court in matter titled as Sanjay Mishra
Vs. Ms. Kanishka Kapoor @ Nikki in Criminal Application
No.4694 of 2008 has held that non-producing of books of the
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Sanjeev Kumar V. The State etc.
account by the complainant, thereby, the accused may rebut the
presumption under Section 139 of the NI Act.
8) The Hon'ble Telanga and Andhra Pradesh High Court in matter titled
as Kanakamedala Venkata Krishna Prasad Vs. Peram Sai
Swarupa and Ors., Manu/AP/1134/2016 reiterated the dicta of
Hon'ble Bombay High Court and held that non-producing the income
tax returns is fatal to the case of the complainant.
9) The Hon'ble Delhi High Court in matter titled as M/s. Alliance
Infrastructure Projects Pvt. Ltd. and Ors. Vs. Vinay Mittal Crl.
M.C. No. 2224/2009 has held that where part payment has been
made by the accused and complainant presents the cheque for the
encashment of whole amount, the accused is liable to be acquitted if
no endorsement is made by the complainant on the cheque as per
Section-56 of the Negotiable Instruments Act, 1881.
10) The Hon'ble Court of Kerala at Erankulam/Ernakulam in matter
titled as K.K. Divakaran Vs. State of Kerala and Anr., Crl. Rev.
Pet. No.1689 of 2009 , that if the complainant suppresses the facts, it
is sufficient alone for the acquittal of the accused.
The Ld. Counsel for the complainant has assiduously argued that the
Ld. Trial Court, after perusing the entire record, has passed the impugned
Judgment and rightly convicted the accused. The Ld. Trial Court has further
argued that at the relevant time, no GST was even in existence and the items
in transaction were not amenable to Sale Tax/VAT.
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This Court has considered the rival contentions of Ld. Counsels for the
parties and perused the record carefully.
FINDINGS & CONCLUSIONS OF THE COURT
Ld. Counsel for the accused/appellant has argued that the bills in
question are illegal and void ab initio as the bills in question do not reflect
GST/VAT/TIN number and the transactions were done in grey market. The
Ld. Counsel for the complainant/ respondent no.2 has argued that the articles
in question were not even covered under the Sales Tax Act/VAT.
The transaction pertains to July, 2015 and September, 2015 and this
Court can take cognizance of the fact that at that time, no law for GST has
come into operation.
The perusal of trial court record reveals that the bills in question were
admitted by the accused person and it is admitted by the accused person that
the goods were received by him. The complainant has given a notice dated
29.12.2015 (Ex.PW-1/11) and in para no.3 of the said notice, it is clearly
mentioned that the accused has placed two orders for cotton fabrics of shirts
with the complainant and accordingly, the complainant has arranged and
delivered the said fabrics on different dates through invoices. The said notice
was duly replied by the accused person vide reply dated 08.01.2016 (Ex.
PW-1/16) and in reply to para no.3, it is categorically mentioned by the
accused person that "para no.3 of the notice is a matter of record,
hence, needs no comments" . The said invoices were never disputed by the
accused person. The articles were the raw material of cotton shirts/ fabrics
and there is no law which says that the said articles are contraband /illegal
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articles or the same is not allowed to be traded or in case, any person deals
with such kinds of articles, then, the same are illegal in the eyes of law.
There is no such law. The sale and purchase of raw material of cotton
fabrics/shirts is a legal transaction and admittedly, the complainant has
supplied it and the accused has received it. Whether the goods were of a
superior quality or of a fine quality or of a bad quality that was a question
which was to be adjudicated upon and which has been adjudicated by the Ld.
Trial Court, however, the transaction was totally legal and it was not illegal
at all. The question arises, whether the said articles were covered under the
Sales Tax Act or not, was the question of trial. The reply dated 08.01.2016
(Ex.PW-1/16) reveals that the accused person has not even raised such a
defence. The accused person has also not even put a single question during
the cross-examination of the complainant that the goods in question were
covered under the Sales Tax Act/VAT and further the complainant was
required to obtain a TIN/VAT number for that. Even in his own evidence, the
accused person has not raised such an issue. It is, for the first time in the
Appeal that the accused has raised the said issue and the same appears to be
totally an afterthought. However, the accused has failed to show to the Court
that the articles in question were, in fact, covered under the Sales Tax
Act/VAT at the relevant time. There is nothing on the record to show that the
said articles were covered under the Sales Tax Act or VAT.
Even if, this Court, for the sake of arguments, considers that the
articles in question were covered under the Sales Tax Act/ VAT, then also, the
transaction does not become illegal as the articles in question were the legal
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articles which can be sold in the market and there is no restriction which was
imposed by any law for selling the same. The only question which arises is
that whether the complainant and/or accused person have flouted the
payment of Sales Tax Act or VAT and who was actually liable to pay the
same. The said aspect has to be considered by the relevant authorities and
even if, for the sake of arguments, it is presumed that the said articles were
covered under the VAT/Sales Tax Act then also this Court is of the
considered opinion that it does not ipso facto bring the contract of sale and
purchase of the fabrics as illegal in the eyes of law or void ab initio. In case,
there is violation of any payment of sales tax or VAT to the concerned
department, then, the concerned department was liable to take appropriate
action against the defaulting party but that cannot be a ground for nullifying
the legal transaction, which was done between the complainant and accused
person. Considered from any view point, the argument of Ld. Counsel for the
accused person that bills/transactions in question are illegal or void ab initio
sans merit and the same is hereby rejected.
The Ld. Counsel for the accused person, after relying upon the certain
portion of cross-examination of the complainant, has assiduously argued that
the entire transaction was done through Mr. Hanuman Ji, who was/is the
Manager of the complainant and the complaint is liable to be dismissed on
account of suppression of facts as the complainant has not disclosed that the
transactions were done through Manager.
The first cause of action i.e. initiation of the entire proceedings was
done after the dishonour of the cheques in question on 16.12.2015. The
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complainant has sent a legal notice dated 29.12.2015 (Exhibit PW-1/11) to
the accused person. The legal notice dated 29.12.2015 (Ex.PW-1/11) reveals
that the said notice was given by Shri Yogesh Moolchand Dhiran, who is the
proprietor of M/s. Fabric International. The reply dated 08.01.2016 (Ex.PW-
1/16) nowhere reveals that transaction was done through Sh. Hanuman Ji,
who is Manager of the complainant. The accused person has not even set up
the said case in the reply dated 08.01.2016 (Ex.PW-1/16). On the contrary, in
para no.3 of the pre-objection, it is mentioned that the complainant had
supplied the shirting textiles to the accused person and at the time of
transaction, it was the agreement between the parties that in case, the
supplied fabrics/articles would not be as per the fine quality, then, the same
will be returned back to the complainant and further, the case is set up by the
accused that complainant had not picked-up the defective material. The
perusal of said reply given by the accused person clearly shows that
transactions in question were done by the complainant and accused person
and there is no mention of Shri Hanuman Ji, Manager of the complainant.
The perusal of the cross-examination of the complainant reveals that the
complainant had submitted that sometimes the transactions were done
through the Manager and this Court is of the considered view that the
Manager is no one but the employee of the complainant.
The question arises that whether the complainant is required to
mention that he has done the transactions through it employee(s). The
Manager of the complainant can be, at best, is the employee of the
complainant and the entire transaction, if any, done through the Manager or
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Sanjeev Kumar V. The State etc.
any of his employee(s), was done for the complainant and not for employee
of the complainant. This Court is of the considered view that the complainant
is not required at all to mention either in the legal notice or in the complaint
the names of the employee(s) through which the complaint has dealt with the
accused person.
The accused person himself in the reply dated 08.01.2016 (Ex.PW-
1/16) has not come out with the case that the entire transactions/agreement
was done through the Manager. In-fact, in the entire reply, the accused
person has not even set up the case of Manager. The said defence was taken
for the first time in the evidence of the complainant. There is no question of
suppression of any material by the complainant and more so, disclosing the
name of the Manager either in the legal notice or in the complaint that the
complainant has done some dealings through his Manager. The said
argument of Ld. Counsel for the accused person is totally devoid of merits
and the same is hereby rejected.
Ld. Counsel for the accused person has argued that in terms of paras
nos.4 and 5 of the complaint, the three cheques - (1) Rs.1.50 Lakhs, dated
15.11.2015; (2) Rs.1.50 Lakhs, dated 28.11.2015 and (3) Rs.1,25,400/-, dated
15.12.2015 includes the amount of Rs.1,75,988/-, for which a cheque no.
114629, dated 23.09.2015 was given and earlier dishonoured on 24.09.2015.
The interpretation, which is given by Ld. Counsel for the accused
person to paras nos.4 and 5, is not at all the correct interpretation. In order to
give meaningful interpretation, the complaint, including para nos. 4 and 5,
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has to be read as whole and not in bits and pieces and thereafter, the meaning
is to be attached to the said paragraph.
As per paras nos.4 and 5 of the complaint, it is the case of the
complainant that the accused has placed firstly an order of cotton fabrics on
16.07.2015, whereby an estimate was prepared and the same was
acknowledged by the accused person and the said goods were supplied
through invoice bearing no. 121, dated 19.07.2015. The second order was
placed on 19.09.2015 and the estimate was prepared and the same was
acknowledged by the accused person and the invoice dated 20.09.2015 was
issued for the second order. At the second order, the accused person had
given cheque bearing no. 114629, for a sum of Rs.1,75,988/-, dated
23.09.2015, which was dishonoured on 24.09.2015. Since the said cheque
was dishonoured, therefore, the complainant had asked for PDCs for the
second order and the accused person had issued three PDC's, as mentioned
in para no. 4 of the complaint, for the second order.
Ld. Counsel for the accused has also argued that as per para no.4 of
the complaint, cheques in question were required to be cleared on the dates,
as mentioned on the cheques, but the same were presented only on or after
15.12.2015 and admittedly dishonoured on 16.12.2015. Therefore, the entire
averment in para no.4 regarding the clearance of the cheques, on the dates
mentioned in the cheques, is a manipulated and fabricated one.
Again, the complaint has to be read as a whole and not in bits and
pieces. Para no. 6 of the complaint clearly reveals that at the request of the
accused, the complainant presented all four cheques with the banker within
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the statutory period from the date, on which they were drawn by the accused
and within the period of their validity but the said chques were dishonoured
on 16.12.2015. Admittedly, the last cheque was dated 15.12.2015 for
Rs.1,25,400/- and in terms of paras nos. 4 to 6 of the complaint, all the four
cheques were presented on the request of the accused person, however, the
same were dishonoured on 16.12.2015 with the remarks "funds insufficient".
The entire arguments, as raised by Ld. Counsel, for interpreting para no. 4 of
the complaint are also devoid of any merits and the same are hereby rejected.
The accused has filed an application under Section 391 Cr.P.C. and in
the said application, the accused wanted to examine Mr. Hanuman Ji, who is
stated to be the Manager of the complainant and also sought directions to the
complainant to produce the books of accounts with regard to the cheque
transactions. It is also alleged by the accused person that an amount of
Rs.1.75 Lakhs in cash was given to Mr. Hanuman, Manager of the
complainant.
Before adverting to the application under Section 391 Cr.P.C., it is
apposite to reproduce relevant portion of Section 391 Cr.P.C. and the same is
as under:-
"391. Appellate Court may take further evidence or direct
it to be taken.- (1) In dealing with any appeal under this
Chapter, the Appellate Court, if it thinks additional evidence to
be necessary, shall record its reasons and may either take such
evidence itself, or direct it to be taken by a Magistrate, or when
the Appellate Court is a High Court, by a Court of Session or a
Magistrate.
(2) to (4) XXX"
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The bare perusal of the aforesaid Section reveals that the aforesaid
Section is with respect to the additional evidence. I have profit to refer the
judgment of Vijay Kumar & Anr. Vs. The State of Himachal Pradesh
(2011) 9 SCC Online HP 3113 . The Hon'ble High Court of HP has held
that the additional evidence is that evidence which was not existed at the
time of trial or the same could not be brought despite due diligence.
The Hon'ble Supreme Court in the case of State (NCT of Delhi) Vs.
Pankaj Chaudhary & Ors. 2019 (11) SCC 575 has held as under:-
"25......... The power conferred under Section 391 Cr.P.C. is
to be exercised with great care and caution.... Any material
produced before the appellate Court to fill-up the gaps by
either side cannot be considered by the appellate Court; more
so, to reverse the judgment of Ld. Trial Court."
It is not the case of the accused person that Mr. Hanuman Ji, the
Manager of the complainant was not available during the course of trial. It is
also not the case of the accused person that despite due diligence, the
accused has failed to bring the said witness in the witness box. The perusal
of Ld. Trial Court record reveals that it is for the first time that during the
cross-examination of complainant, the accused has set up the case of the
Manager i.e. Mr. Hanuman Ji and he has further towed this defence while
recording the statement of accused under Section 313 Cr.P.C. and further,
when he entered into witness box after invoking the provision of Section 315
Cr.P.C. Despite the same, the accused has neither called nor summoned Mr.
Hanuman Ji during the course of trial before the Ld. Trial Court. Even, the
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accused person has not filed list of witnesses that he wants to examine Mr.
Hanuman Ji.
The Trial Court further reveals that after complying with the
provisions of Section 313 Cr.P.C., Ld. Trial Court has given the opportunity
to the accused person to lead defence evidence and the matter was fixed for
15.02.2019. On 15.02.2019 and 22.04.2019, Ld. P.O. was on leave and the
matter was fixed on 28.05.2019. The matter was fixed for DE on 28.05.2019,
however, the accused has not led any evidence and the cost of Rs.2500/- was
imposed upon the accused person and the accused was given an opportunity
to lead evidence. On 02.09.2019, the accused was absent and NBWs was
issued against the accused person and notice against the surety. On
20.09.2019, an application for cancellation of NBWs was taken-up and the
same was allowed, subject to cost of Rs.1,000/- and the matter was fixed for
02.12.2019. On 02.12.2019, the evidence of accused was recorded. He was
examined, cross-examined and discharged. The accused has voluntarily
given his statement to close the evidence. The accused has neither filed any
list of witnesses before the Ld. Trial Court nor shown his intention to
examine Mr. Hanumanji as witness before the Ld. Trial Court. It is only for
the first time by way of application under Section 391 Cr.P.C., the accused
has intended to examine Mr. Hanuman, however, no foundation and basis
have even been averred in the said application that why he was not able to
examine Mr. Hanuman during the course of trial. The story of Mr. Hanuman
Ji has already been dealt hereinabove by this Court in detail and in the garb
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of application under Section 391 Cr.P.C. the accused cannot be allowed to
examine the said witness.
Now, this Court will examine the second limb of request i.e. giving
directions to the complainant for producing the accounts by the complainant.
The perusal of entire cross-examination reveals that the accused has not put a
single question to the complainant for production of the books of accounts.
One fails to understand, why the accused has not even put a question if he
was so eager to call upon the books of accounts/documents of the
complainant. The complainant has proved on record the basic mandatory
facts and documentary evidence, which are required to be proved on record
for invoking the provision of Section 138 Negotiable Instruments Act, 1881.
The complainant has firstly proved that he has supplied the goods to the
accused person and admittedly, those goods were received by the accused
person through invoices. At no point of time, the said invoices were objected.
The perusal of post summoning evidence reveals that the accused has not
raised the objections regarding the estimate and invoices i.e. Ex.PW-1/1 to
Ex.PW-1/4. I have profit to refer the judgment of Durgesh Saini Versus
Premwati Saini And Ors. passed in RFA No.48/2017 decided on
07.12.2018 , wherein, after referring to the Judgment of Hon'ble Supreme
Court, our own Hon'ble High Court has held that ".....Once no objection
is raised to the exhibition of the documents before commencement of
cross-examination of the witness, then in such a case any objection to
the exhibition of documents is waived in view of the judgment of the
Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder
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Sanjeev Kumar V. The State etc.
v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8
SCC 752....."
In view of the facts and circumstances of the present case and also the
aforesaid judgment, the accused cannot be allowed to raise the objection
regarding exhibition of invoices and more so, at the appellate stage when he
has not raised the objections prior to cross-examination of the complainant.
The complainant has proved on record that the cheques in question
were dishonoured on account of "insufficient funds" and this fact is
undisputed fact. The complainant has also proved the legal notice dated
29.12.2015 (Ex.PW-1/11) as admittedly, the reply dated 08.01.2016 (Ex.PW-
1/16) was given by the accused person to the said legal notice. All the
fundamental requirements for instituting the complaint have been fulfilled
and proved on record by the complainant. This Court has already held that a
legal transaction was done by the parties and against the said transactions,
the cheques in question were given by the accused person. The presumption
under Section 139 as well as 118(a) N.I. Act is pressed into service as the
complainant has proved on record the basic fundamental facts and
documents, which were required to be proved in terms of Section 138 of the
N.I. Act.
If, the accused wants to rebut the presumption and wants to rely upon
the books of accounts of the complainant, then, he ought to have called upon
the complainant during the cross-examination and during cross-examination,
the Court could have asked the complainant to produce the books of
accounts, if so, desired by the Ld. Trial Court, however, no foundation has
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been laid by the accused person during cross-examination of the
complainant. Non-production of the documents cannot be treated as fatal in
the present case. Non-production of documents by any party is basically
taken into consideration to draw the inference against the person, who has
not produced those documents. In the peculiar facts and circumstances of the
present case, no adverse inference can be raised against the complainant for
non-production of account books.
This Court is of the considered view that in the light of facts &
circumstances of the present case, it was the duty of the accused person to
call upon the complainant to produce the documents during the cross-
examination, if the accused so desired and it was not incumbent upon the
complainant to produce the books of accounts when the complainant has
proved on record the basic fundamental requirements to invoke the
provisions of Section 138 of the N.I. Act.
The judgments, as relied upon by the accused person regarding the
non-production of documents, are of no help to the accused person in the
facts & circumstances of the present case. In the said judgments, there was a
dispute regarding even lending of the amount, however, in the present case,
there is no dispute with respect to the supply of goods by the complainant
and receipt of the articles by the accused person. There is a candid
admission on the part of accused person that he has received the goods in
respect of invoices in question and invoices in question have not been
challenged at any point of time.
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Sanjeev Kumar V. The State etc.
In the garb of the application under Section 391 Cr.P.C., the accused
person cannot be allowed to begin the trial de novo. Such a situation is not
permissible in the eyes of law. The application under Section 391 Cr.P.C. is
totally an afterthought. The accused was given sufficient opportunities before
the Ld. Trial Court to lead the evidence. The accused has voluntarily given a
statement of closing the evidence after leading his own evidence under
Section 315 Cr.P.C. and accused has not even cared to lead the evidence
before the Ld. Trial Court, which was, otherwise, available at that time. The
accused person cannot be allowed to do so after invoking the provisions of
Section 391 Cr.P.C.
Considered form any view point, the application under Section 391
Cr.P.C. filed by the accused person has no merits and the same is accordingly
dismissed.
Ld. Counsel for the accused has relied upon the various judgments in
which various principles are laid down. There is no dispute to the said
principles, however, the principles have to be applied in the light of facts &
circumstances existing in each and every case. In the present case, the
complainant has already proved on record that the goods were supplied. The
accused has failed to prove on record that goods were of inferior quality or
the accused has paid a sum of Rs.1.75 Lakhs in cash either to the
complainant (as alleged in reply dated 08.01.2016) or to the Manager (as
alleged subsequently during the proceedings of the complainant). The
accused has agitated in the reply dated 08.01.2016 (Ex.PW-1/16) that he has
paid an amount of Rs.1.75 Lakhs to the complainant in cash and in the
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Sanjeev Kumar V. The State etc.
appeal and arguments, it is submitted by the accused that the amount has
been paid to the Manager of the complainant. Firstly, a cheque of
Rs.1,75,988/- was dishonoured on 24.09.2015. The cheque was in the
possession of the complainant. No prudent person will allow a person to
retain the said cheque despite giving an amount of Rs.1.75 Lakhs in cash and
furthermore, the accused person ought to have taken a receipt in case he has
paid an amount of Rs.1.75 Lakhs either to the complainant or for the sake of
arguments to Mr. Hanuman, Manager of the complainant, however, no such
receipt was taken and even the accused person has not called upon the
complainant by writing a letter to give back the cheque, for which he alleges
to have made payment in cash. The accused person was to rebut the
presumption and to prove his defence that an amount of Rs.1.75 Lakhs was
paid, but this Court is of the considered view that the accused has utterly
failed to do so.
The second defence regarding defective and inferior quality of goods,
as raised by the accused person, also appears to be an eye wash and it was
raised in order to wriggle-out from the liability. The goods were supplied to
the accused person in the months of July, 2015 and September, 2015 but the
accused person has not written even a single letter to the complainant that the
goods are either defective or of inferior quality. There is no documentary
evidence in the nature of expert opinion that the goods were of inferior
quality. In terms of Sections 40 and 41 of the Sale of Goods Act, the goods
were required to be rejected within a reasonable period of time. However, it
is only after service of the legal notice dated 29.12.2015 (Exhibit PW-1/11),
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Sanjeev Kumar V. The State etc.
the accused person in his reply dated 08.01.2016 (Exhibit PW-1/16) has
come out with the case of inferior quality of goods and agreement for return
of the goods. The Ld. Trial Court has also dealt with the said issue in the
Judgment of conviction and this Court is in complete agreement with the
findings of Ld. Trial Court.
There is another aspect of the matter, the Compromise Deed was filed
on record and as per the said Compromise Deed dated 05.03.2021, executed
between the accused and the complainant, it was agreed between the accused
and the complainant that the accused shall pay a sum of Rs.10.00 Lakhs
towards full and final settlement and the same was required to be paid to the
complainant in various installments starting from 05/06.03.2021 through
RTGS/NEFT/DD till 30.07.2021. It is also recorded that in case, the accused
makes default in the said payments, the accused person shall also be liable to
pay 10% of the defaulted amount for each 30 days on each default to the
complainant. The accused has filed the affidavit, whereby, it is submitted that
the said settlement was a forced or pressurized settlement. The said
settlement is already on the record and as per the accused himself, he has
paid an amount of Rs.2.00 Lakhs through NEFT/RTGS to the complainant,
however, without going into the question whether the said
compromise/settlement was forced or pressurized one, this Court has dealt
with the appeal on its merits and also the application under Section 391
Cr.P.C. This Court does not find any infirmity as far as the Judgment of
conviction of the accused person under Section 138 N.I. Act.
Criminal Appeal No. 62/2020 Page - 22 of 24
Sanjeev Kumar V. The State etc.
Considering the conduct of the accused person, this Court also does
not find any infirmity or perversity in the impugned sentence dated
27.02.2020 passed by the Ld. Trial Court, however, the imprisonment in de-
fault of payment of compensation is not in accordance with Section 30 of
Cr.P.C.
As per proviso (b) to sub-rule (1) of Section 30 of Cr.P.C, the Magis-
trate, in default of payment of fine, shall not pass more than one-fourth of the
term of imprisonment, which the Magistrate is competent to inflict as
punishment for the offence, otherwise, than as imprisonment in default of
payment of the fine. The maximum punishment, which the Magistrate was
competent to impose for the offence of Section 138 N.I. Act, 1881, is two
years and one fourth of the same comes to 6 months and the Ld. magistrate
has imposed one year in default of payment of fine/compensation.
Accordingly, the said part of the order is required to be modified.
FINAL ORDER:
In view of the above observations, this Court is passing the following
final order:
ORDER
(a) The application under Section 391 Cr.P.C. is hereby dismissed.
(b) The impugned Judgment of Conviction dated 20.02.2020 and Order of Sentence dated 27.02.2020 are hereby confirmed except with only modification that in case of default of payment of compensation within one month from passing of this Judgment, the appellant/accused is liable to undergo simple imprisonment for a period of six months. The Criminal Appeal No. 62/2020 Page - 23 of 24 Sanjeev Kumar V. The State etc. appeal of the appellant/accused is dismissed except aforesaid modification of sentence in default of compensation/fine.
(c) If, the amount of Rs.2,00,000/- was received by the complainant under the said settlement, then, the same shall remain with the complainant and the same be adjusted towards the compensation/fine, as imposed by the Ld. Trial Court.
(d) As the appellant is absent, ld. trial court is directed to take appropriate steps, as available under law, so that appellant may appear before the Court and serve the sentence, in terms of judgment.
(e) The copy of this Judgment along with the Trial Court record be sent to the Ld. Trial Court forthwith.
Appeal File be consigned to Record Room after due compliance. The Judgment is pronounced in open Court on this 15 th day of November, 2021 under my hand and seal.
(ARUN SUKHIJA) Additional Session Judge-03 (East District) Karkardooma Courts, Delhi.
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