Delhi District Court
Pal News Media (P)Ltd vs Ansh Advertising 1 / 17 on 31 July, 2014
IN THE COURT OF MS. JASJEET KAUR
CIVIL JUDGEI/ METROPOLITAN MAGISTRATE
NEW DELHI
CS. No. 71/13
M/s. Pal News Media Pvt. Ltd.,
having regd. office at 710,
Inderprakash Building,
Barakhamba Road,
New Delhi110001.
Through its Authorized Representative/Special Power Attorney
Sh.Mohd. Waris ... Complainant
Versus
1. M/s. Ansh Advertising,
E41A, Kirti Nagar,
New Delhi110015.
Represented through its Proprietor/Authorized Signatory
Sh.Sanjeev Dang.
2. Sh.Sanjeev Dang,
Proprietor/Authorized Signatory of M/s. Ansh Advertising,
E41A, Kirti Nagar, New Delhi110015 ... Accused
Date of Institution: 15.03.2010
Date of Reserving Judgement: 31.07.2014
Date of Judgment: 31.07.2014
JUDGMENT
1. The brief facts of the case of the complainant are that complainant M/s Pal News Media Pvt. Ltd. is a company incorporated under the Companies Act, 1956 having its registered office at 710, Inderprakash Building, Barakhamba Road, New Delhi and is running two TV channels in the name and style of Channel No.1 and Lemon TV. The accused no.1 M/s. Ansh Advertising is a proprietorship firm of accused no.2 Sanjeev Dang who had approached the complainant for telecast of certain tele shopping CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 1 / 17 advertisements of different products on the two television channels of the complainant, namely, Channel no.1 and Lemon TV and on the basis of agreement between the parties, accused no.2 had issued cheque bearing no.805972 dt. 10.9.2009 in the sum of Rs.1,75,020/ drawn on ING Vysya Bank Ltd., Kirti Nagar branch in discharge of his part liability to make payment of the consideration amount for telecast of advertisements of the tele shopping products at the instance of accused. It is the case of the complainant that upon presentation the cheque issued by the accused no.2 was dishonoured vide return memo dated 12.01.2010 on account of stoppage of payment by the accused and thereafter the complainant had issued a legal notice dated 10.02.2010 calling upon the accused to make payment of the amount stipulated in the dishonoured cheque within 15 days of the receipt of said legal notice. Consequent upon failure of the accused to make payment of the cheque amount within the stipulated time, the present complaint was instituted against the accused for the alleged commission of offence punishable u/s 138 r/w section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act).
2. Upon the receipt of complaint by way of assignment, the learned Predecessor Court had directed the complainant to lead pre summoning evidence. Sh. Mohd. Waris, AR of the complainant had tendered his evidence by way of affidavit ExCW1/1 wherein he had reiterated the facts set out in his complaint and had relied upon the SPA executed in his favour ExCW1/A, cheque ExCW1/B issued by accused no.2 Sanjeev Dang, return memo ExCW1/C issued by the banker of the accused in respect of dishonour of the cheque of accused no.2, legal notice ExCW1/E whereby the complainant had demanded payment of the cheque amount and two acknowledgment cards in respect of delivery of legal notice to the accused ExCW1/F and ExCW1/G. After perusing the pre summoning evidence led by the complainant, the CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 2 / 17 accused was summoned to face trial for the commission of offence punishable u/s 138 read with section 142 of Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act) vide Order dated 01.02.2013.
3. During the course of trial notice of accusation u/s 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) was served upon the accused no.2 Sanjeev Dang, the proprietor of accused no.1 M/s Ansh Advertising for the alleged commission of aforementioned offence on 28.5.2013 to which the accused no.2 had pleaded not guilty and had claimed trial. Upon the accused pleading not guilty to the notice u/s 251 CrPC served upon him, an opportunity was given to the complainant to prove its case by leading evidence in support of the same. The complainant had examined one witness in order to prove its case. A brief account of the testimony of the witness of complainant is reproduced below.
4. CW1 Mohd. Waris tendered his evidence by way of affidavit ExCW1/1 wherein he had claimed that accused no.2 Sanjeev Dang on behalf of his proprietorship firm accused no.1 had entered into business relation with the complainant company and had requested the complainant to telecast certain advertisement of tele shopping products on its two television (TV) channels, namely, Channel No.1 and Lemon TV. He had reiterated the contents of the complaint by alleging that the cheque in question ExCW1/A was handed over by the accused no.2 to the complainant company in discharge of part liability to pay the consideration amount towards telecast of certain teleshopping advertisements on TV channels of the complainant company.
5. In his cross examination by Shri S.K. Grover, learned counsel for the accused, CW1 had expressed his inability to tell whether the accused was a partnership firm or a proprietorship concern as he had never personally met the proprietor/ partner/ owner of the accused firm. He admitted that the CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 3 / 17 cheque in question was not handed over to him personally and he had received the said cheque from the receptionist of his company to deposit the same in the account of his company as he was working as an office coordinator. He could not recall the name of the receptionist who had handed over the cheque to him. He expressed his inability to tell the name of the product for which advertisement was supposed to be telecasted but deposed that it was a tele shopping advertisement. He could not tell the date, month or year when the advertisement in question was telecasted. He admitted that he had no personal knowledge of the fact whether the advertisement sought to be telecasted by the accused firm was infact telecasted or not. He stated that he had no knowledge of the fact whether cheque in question was an advance cheque issued before the telecast of advertisement or not. He stated that he has no personal knowledge about the fact whether any agreement was signed by the complainant company and accused firm for telecast of the advertisement or not. He expressed his inability to tell full form of RO and deposed that he has no knowledge about the operational work of his company as his job was only to collect the cheques and deposit the same in the bank and to see whether they were honoured or not. He denied the suggestion that no payment was due from the accused company regarding the cheque in question. He denied the suggestion that the complainant company had misused the cheque in question. He admitted that the cheques were received by complainant company in advance before the telecast of advertisement. He, however, stated that the complainant company used to deposit the said cheques in bank after the telecast of advertisement. He expressed his inability to tell whether the complainant company was liable to return the cheque in question to the accused no.2 as his advertisements were never telecasted. He stated that his company did not maintain any record or CDs of advertisements telecasted by his company and CDs of telecasted CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 4 / 17 programme were retained by his company only for 3 months. He stated that his company was not registered with TAM rating which keeps the record and ratings of the various channels. He denied the suggestion that neither any release order was issued by the accused nor any agreement for telecasting of advertisement in consideration of cheque in question was signed by the complainant and the accused.
6. After the complainant company closed its evidence, statement of accused u/s 313 CrPC was recorded on 24.4.2014 wherein an opportunity was given to the accused to explain all the incriminating circumstances that had appeared against accused in the evidence of the complaint. The accused no.2 has denied all the incriminating circumstances that were put to him and had claimed that the cheque in question was a security cheque which he had handed over to the complainant company in September, 2009 for the telecast of certain advertisement. However, the advertisements were never telecasted by the complainant nor any cassette or CD containing advertisement was handed over to him by the complainant company. The accused further claimed that no agreement was executed between him and complainant company for telecast of the advertisement and no telecast certificate was ever issued by the complainant company. Accused no.2 Sanjeev Dang further claimed that the complainant company had misused the cheque after 4 months and since he had been informed by the representative of the complainant company about the likelihood of misuse (presentation) of the cheque in question by the complainant company. Therefore, he had directed his banker to stop the payment of cheque despite having sufficient funds in his account to honour the cheque. He claimed that he had not received any legal notice. Accused preferred to lead evidence in his defence and examined himself as DW1.
7. In his examination in chief, DW1 Sanjeev Dang deposed that he CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 5 / 17 was the proprietor of M/s. Ansh Advertising, that is, accused firm and had approached the representative of the complainant company for telecast of some advertisements on TV channels of the complainant and had issued undated cheque ExCW1/B on the request of representative of complainant company. However, subsequently the deal between himself and the complainant company for telecast of the advertisements in question could not be finalized and therefore he had not issued any release order nor signed any agreement with the complainant as a pre condition for the running of the advertisement. He deposed that he had demanded back his cheque from the representative of complainant company who had started delaying the matter on one pretext or other and the cheque in question was not returned to him till January, 2010 after which the representative of complainant company had informed him that he was about to leave the job of the complainant company and the employees of complainant were likely to misuse the cheque in question. DW1 further deposed that thereafter he had instructed his banker to stop payment of the cheque in question. He produced the copy of statement of account ExDW1/A in order to prove that he had sufficient balance in his account for clearance of cheque Ex.CW1/B.
8. In his cross examination by Shri Mrinal Kumar, learned counsel for complainant, DW1 denied the suggestion that he had concocted a false story regarding non telecast of his programmes. He deposed that he had not received any legal notice dated 9.2.2010 issued by advocate Mr. Abdul Saptah and had come to know about the present proceedings u/s 138 NI Act on receipt of Court summon at his residential address of E41A, Kirti Nagar, New Delhi15.
9. After the accused closed his evidence, final arguments were heard from learned counsel for the complainant as well as from the learned counsel for accused on 23.7.2014 as well as today on 31.07.2014.
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10. Learned counsel for the complainant has argued that the complainant company has proved its case beyond reasonable doubt by examining CW1 Mohd. Waris who has fully supported the case of the complainant by deposing that the cheque in question was issued by the accused in discharge of his liability to pay dues towards the telecast of certain teleshopping advertisement on the channel of complainant company at the request of the accused. However, the cheque in question was dishonoured on presentation due to stoppage of payment by the accused. Learned counsel for the complainant has further argued that the accused had failed to make payment of the dishonoured cheque within fifteen days of receipt of legal notice and even thereafter, during the pendency of trial and therefore, the accused deserves to be held guilty for the commission of offence punishable under Section 138 read with 142 of the NI Act.
11. Learned counsel for accused on the other hand argued that the complainant has failed to prove its case on account of the fact that the complainant company has failed to placed on record any proof of telecast of any advertisement on TV channels of the complainant company at the request of accused. Learned counsel for the accused has further submitted that cheque in question was a security cheque handed over by the accused for proposed telecast of certain teleshopping advertisements on TV channels of complainant company. However, thereafter the deal could not be finalised and instead of returning the advance cheque handed over by the accused for the said deal, the complainant company has misused the said cheque by presenting the same for encashment. However, subsequently the transaction between the parties could not be finalized and neither any agreement was signed by the complainant and the accused nor any release order for telecasting of advertisement was issued by the accused in favour of the complainant. Consequently, no advertisements of teleshopping products were CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 7 / 17 telecasted on any of the TV channels of the complainant company. However, instead of returning the security cheque submitted in advance by the accused, the complainant company had misused the said cheque by presenting the same for encashment. Hence, the present complaint is liable to be dismissed and the accused deserves to be acquitted in the present case for dishonour of cheque.
12. I have considered the rival submissions of learned counsel for the complainant as well as of the learned counsel for the accused and perused the entire evidence led by the parties in support of their case. Before embarking upon an appreciation of the evidence led by the parties, that is, the complainant and the accused, it is imperative to examine the provisions of Sections 138 & 139 of Negotiable Instruments Act in the light of law of precedents. In this context, it is noteworthy that section 138 of NI Act makes the drawer of cheque liable to make payment of the amount stipulated in the cheque drawn by him by incorporating a presumption in favour of the holder of the cheque and against the drawer of the cheque in section 139 of N.I. Act. The relevant provisions of sections 138 & 139 NI Act are reproduced below : Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the 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;CS No.71/13
Pal News Media (P)Ltd Vs Ansh Advertising 8 / 17
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
139. Presumption in favour of holderIt shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
13. From a perusal of the abovecited provisions of Section 138 & 139 NI Act, it can be safely concluded that in order to constitute an offence punishable under section 138 N.I. Act, the following ingredients must be specified :
(i) the cheque must be drawn or issued by an account holder in respect of his account maintained in any bank.
(ii) the cheque must be presented for encashment within the period of its validity computed from the date of issuance.
(iii) the cheque must be dishonoured either on account of insufficiency of funds to the credit of the drawer or on account of the fact that the cheque amount exceeded arrangements made by the drawer for encashment of cheque with his banker.
(iv) the holder of cheque or the beneficiary of the cheque must issue a legal demand notice, calling upon the accused or drawer to make the payment of the cheque amount.
(v) the drawer must fail to make payment of the cheque amount within 15 days or receipt of legal notice.
14. Section 139 of the N.I. Act on the other hand contains the presumption in favour of the holder of the cheque and against the drawer whereby it is presumed that the drawer had issued the chque in question in discharge of a debt or liability to pay the cheque amount to the holder of the cheque. However, the said presumption is a rebuttable presumption and it has been time and again reiterated by Hon'ble Supreme Court of India that it CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 9 / 17 is upon the accused to raise a defence to challenge or demolish the presumption of the existence of a legally enforceable debt or liability against which the cheque in question had been issued by him and when the accused is called upon to rebut the presumption under section 139 N.I. Act, the standard of proof for being so cannot be equivalent to the standard of proof which rests upon the prosecution in a criminal trial. The accused merely has to prove his defence on the scale of preponderance of probabilities whereas the complainant or prosecution is required to establish its case beyond reasonable doubt. Therefore, when the accused manages to rebut the presumption contained under section 139 N.I. Act by raising a probable defence, then the prosecution can fail and the accused need not even adduce evidence of his/ her own to prove his defence. Observations made by Hon'ble Supreme Court of India in Para14 of the judgment passed in case Rangappa Vs Mohan, AIR 2010 SC 1898, which is noteworthy in this case the ingredients are reproduced : "In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 10 / 17 parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clause usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
15. Applying the ratio of the aforesaid judgment to the facts of the present case, it can be safely concluded that although in the present case a presumption can be drawn that the complainant company had lawfully obtained the cheque in question from the accused no.2 in relation to trade transaction. However, the said presumption is a rebuttable presumption and if the accused is able to disclose a probable defence, then it is the duty of the complainant or prosecution to clarify how the cheque in question was issued in discharge of legally enforceable debt or liability. The presumption under Section 139 of Negotiable Instruments Act can be rebutted by an accused person through a probable defence which need not be supported by any separate evidence adduced by the accused. The defence of the accused can be raised by impeaching the creditworthiness of the evidence produced by the complainant to demolish the liability to pay the cheque amount. If in a case the witnesses of the complainant are unable to withstand their cross examination by defence in respect of the manner in which the accused is liable to pay the cheque amount, then the burden of proof once again shifts upon the complainant and the complainant is supposed to bring home the liability of the accused to pay the cheque amount by elaborating on the transaction in respect of which a cheque had been issued.
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16. In the present case also, the only witness of the complainant company, CW1 Mohd. Waris had failed to withstand his cross examination by the learned counsel for accused. In his cross examination by learned defence counsel, CW1 Mohd. Waris had failed to disclose the name of the product in respect of which the advertisements were supposed to be telecasted on the TV channels of the complainant company at the behest of the accused. He also failed to recall the date, month and year when the advertisements were supposed to be telecasted. He had also expressed his inability to tell whether any agreement for telecast of advertisement was entered into between the complainant and the accused or not. CW1 had further gone to the extent of admitting that the cheques were generally accepted by the complainant company in advance, that is, prior to telecast of advertisement and were encashed after the telecast of the advertisements. In view of abovementioned admission of CW1, it can be safely presumed the accused has infact managed to raise a probable defence that the cheque in question was issued by him as an advance or security cheque for telecast of certain advertisements and in these circumstances, it cannot be presumed that advertisement of the accused were in fact actually telecasted after the acceptance of advance cheque, in the absence of any direct or documentary evidence of telecast of the said advertisements at the behest of the accused.
17. A similar situation had come up for consideration before the Hon'ble Supreme Court of India in the case of John K. Abraham v. Simon C. Abraham and another 2014 A CD 560 (SC) wherein the complainant had been unable to tell the name of person who had written the cheque as well as the date, place and time at which the cheque in question was written. Besides, the complainant was also not aware about the date on which the transaction between the complainant and accused had taken place in which the complainant had advanced a loan of Rs.1,50,000/ to the accused. The CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 12 / 17 Hon'ble Apex Court had observed that the aforementioned defects in the testimony of the complainant had given a fatal below to the very root of the complaint under Section 138 NI Act. Observation made by Hon'ble Apex Court in para 10 of the judgement are noteworthy in this context and are reproduced below : "10. Keeping the said statutory requirements in mind, when we examine the facts as admitted by the respondent complainant, as rightly concluded by the learned trial Judge, the respondent was not even aware of the date when substantial amount of Rs.1,50,000/ was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. Apart from the said serious lacuna in the evidence of the complainant, he further admitted as PW.1 by stating once in the course of the crossexamination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. We find that the various defects in the evidence of respondent, as noted by the trial Court, which we have set out in paragraph 7 of the judgment, were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under Section 138, having been noted by the learned trial Judge, which factor was failed to be examined by the High Court while reversing the judgment of the trial Court, in our considered opinion would vitiate the ultimate conclusion reached by it. In effect, the conclusion of the learned Judge of the High Court would amount to a perverse one and, therefore, the said judgment of the High Court cannot be sustained."
18. In yet another similar case wherein the complainant had failed to specify the exact date on which the nine cheques in question were issued, the name of the person to whom the cheques in question were handed over. The complainant had also failed to elaborate the exact liability of the accused on any specific date and had failed to examine the person who had received purchase orders from the accused or raised invoices in respect of trade transaction with the accused. The Hon'ble High Court of Delhi had upheld the CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 13 / 17 acquittal of accused by the trial Court on account of failure of the accused to explain the liability of the accused to pay the cheque amount. Observations made in para 6 and 7 of the judgement passed in the case of Total Finaelf India Limited v. Smt. Rashmi Parnami 2014 A CD 470 Delhi are noteworthy in this context and are reproduced below : "6. On merits also, the appellant could not establish that the cheques in question were given in consideration of existing debt or liability. Soon after getting demand notice on 27.11.1997, in the reply (Ex.CW1/48), the respondent categorically denied that the cheques in question were given towards existing debt or liability. She pleaded that the cheques in question were given as security at the time of her appointment as distributor. The burden was heavily upon the appellant to prove that the cheques in question were towards the legal debt or liability. In the demand notice or in the complaint, the appellant did not specify the exact date when nine cheques in question were given at one go. It is unclear as to whom the cheques in question were handed over and at which place. These cheques are of different dates i.e. 30.04.1997 (four cheques), 30.05.1997 (four cheques) and 30.06.1997 (one cheque). The amount for which the cheques were issued is not in round figures but for a specific odd amount. In the complaint, it is mentioned that after great persuasion, the respondent issued these cheques drawn on Indian Overseas Banks towards 'overdue outstanding dues'. Inference can be drawn that when these cheques were issued, an amount of ` 11,08,546.78/ was due from the respondent. The appellant did not elaborate as to how much debt/ liability was there on any specific date prompting the respondent to issue the cheques in question. It is unbelievable that the respondent issued cheques in one sequence for different dates and different amount instead of issuing one cheque for the 'overdue outstanding liability' as on date. It is unclear as to why the appellant accepted cheques in the month of October or so for the dated 30.04.1997 or 30.05.1997. These cheques were not presented for encashment soon after issuance. Contrary to that, all the cheques in question were presented on the same date in the bank and were dishonoured. The appellant has admitted payment by way of bank drafts amounting to ` 60,500/ from the respondent after service of demand notice dated 23.11.1997. This fact does not find mention in the complaint. It appears that appellant has not examined the official who received the purchase orders or raised invoices. The distributor agreement (Ex.CW 1/4) came into existence on 17.04.1997. The invoices (Ex.CW1/5) pertain to the period from 31.11.1997 to 04.06.1998 showing balance due as 1103568.29. Credits given for incentives were reversed. Ex.CW1/5 further depicts that even after the issuance of the cheques in question, payments were CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 14 / 17 made by demand drafts and cheques.
7. The Trial Court has given detailed reasons to arrive at the conclusion that the respondent had rebutted the presumption under Section 139 Negotiable Instruments Act. The appellant could not prove that the cheques in dispute were issued against any debt or liability. Mere liability of the respondent to pay her dues towards purchase of goods (if any) is not enough to proceed under Section 138 Negotiable Instruments Act as the appellant has civil remedy to recover outstanding dues. No interference is called for in the reasoned impugned order."
19. The facts of present case are similar to the abovecited cases decided by Hon'ble Apex Court and Hon'ble High Court of Delhi. In the present case, it is the defence of the accused that the cheque in question was issued as an advance cheque towards a trade transaction. However, the transaction had subsequently not materialized and no agreement was infact entered into between the parties for the telecast of the advertisements. Therefore, no telecast of advertisements was ever made on any of the two TV channels being run by the complainant company. In fact the release order itself was never issued as per the defence of the accused. Hence, it is the defence of the accused that the cheque in question was a advance cheque issued by the accused for a transaction which could never materialized. The said defence taken by the accused seems probable on appreciation of evidence adduced by the complainant as the practice of taking advance cheques prior to the telecast of advertisements being followed by his company was admitted by CW1 Mohd. Waris. His specific deposition is reproduced below in this context : "It is correct that cheques are received by complainant company in advance before telecast of advertisement and they are deposited in bank after the telecast of advertisement."
20. It is also noteworthy that the complainant has led no evidence to prove that in fact any agreement was signed between the parties or the CS No.71/13 Pal News Media (P)Ltd Vs Ansh Advertising 15 / 17 complainant company had received any release order from the accused for telecasting certain teleshopping advertisements at the behest of the accused. Neither the complainant has placed on record any agreement signed between the parties nor the complainant has placed on record any such release orders in respect of which the cheque in question was in fact issued and encashed. Besides, the complainant has also not produced any compact disc (CD) containing the advertisements, which were actually telecasted on 2 TV channels of the complainant company.
21. In these circumstances, no direct or documentary or circumstantial evidence at all has been produced by the complainant company to show that in fact the trade transaction between the complainant and the accused had actually materialized and the cheque in question was issued in discharge of liability to pay amount due for the telecast of the said advertisements. In these circumstances, I am of the considered opinion that the accused has successfully rebutted the presumption contained under section 139 N.I. Act. The complainant company has on the contrary failed to produce any evidence to prove that the cheque in question had been issued by the accused to discharge his liability to pay a sum of Rs.1,75,0020/ for telecast of certain advertisement on the two TV channels being run by the complainant company in the name and style of Channel No.1 and Lemon TV. Accused no.2 Sanjeev Dang who is partner of accused no.1 is accordingly acquitted in respect of charges levelled against him for the commission of offence punishable under Section 138 read with 142 of NI Act for want of sufficient incriminating evidence against him on record.
22. In compliance of provisions of section 437A of Cr.P.C, accused no.2 Sanjeev Dang is admitted to bail on furnishing bail bond in the sum of Rs.50,000/ with one surety in the like amount. Accused no.2 Sanjeev Dang seeks some time to furnish sound surety.
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23. Personal bond furnished by accused no.2 Sanjeev Dang stands accepted till 02.08.2014. Accused no. 2 Sanjeev Dang is directed to furnish sound surety on 02.08.2014.
24. After compliance of provisions of Sec437 A of Cr.P.C and other necessary formalities, file be consigned to record room.
Announced in the open Court (Jasjeet Kaur)
on 31st July, 2014 Civil JudgeI, New Delhi District
New Delhi
CS No.71/13
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