Delhi District Court
In A Case Titled As Rangappa vs . Sri Mohan Criminal Appeal No. on 20 April, 2013
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No.1768/1
Kapoor Leather Co. Pvt. Ltd.
Through its Director Shri Rajeev Kapoor
4/5942, Hardhian Singh Road, Dev Nagar,
Karol Bagh, New Delhi. ......Complainant
Versus
Sh. Jairam Sharma & Ors.
Prop. M/s. Sharma Leather Store
31-A, MIG Flats, Motia Khan,
Paharganj, New Delhi-110055. .........Accused
Date of Institution : 23.08.2004
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 16.04.2013
Date of Decision : 20.04.2013
Final Order : Convicted / Held
Guilty
CC No.1768/1 1/ 10
Judgment:
Vide this judgment, I shall dispose of the present complaint filed
u/s 138 N.I. Act. Before going further, it is necessary to dwell upon the
brief facts of the case.
Brief Facts:
1. Complainant has alleged in his complaint that the accused purchased goods from the complainant and in discharge of the dues accused issued cheques bearing no. 412921 Ex.C-3, 412919 Ex.C-4 and 412920 Ex.C-2 dated 28.05.2004, 25.06.2004 and 08.07.2004 for sum of Rs. 1,04,533/-, 3,77,506/- and 4,58,180/- respectively, all drawn on the Nainital Bank Ltd. Branch Office, Panchkuian Road, New Delhi in favour of the complainant.
2. On presentation of the aforesaid cheques by the complainant with his bank the same got dishonoured vide bank returning memos dated 10.07.2004 Ex.C-5 to C-8 for the reasons "funds insufficient". It is further alleged that on failure of the accused to make the payment, a legal demand notice Ex.C-9 was sent to the accused on 29.07.2004 vide registered AD as well as UPC. The accused has neither responded to the notice nor made the demanded payment within statutory period of receiving the legal notice, hence, this complaint is filed.
3. Complainant filed his pre-summoning evidence. Considering the CC No.1768/1 2/ 10 same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused was summoned u/s 138 NI Act. On his appearance, the accused was granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr.P.C stating substance of accusation was served upon the accused on 25.01.2006 to which he pleaded not guilty and claimed trial.
Complainant Evidence:
4. In order to substantiate his case complainant has got examined three witnesses. Complainant has stepped into the witness box through its Director Mr. Rajeev Kapoor as CW3 by tendering his evidence by way of an affidavit Ex.CW3/A. In his affidavit complainant has reiterated the same facts as that mentioned in the complaint.
Official from ABN Amro Bank sh. Anupam Goyal has been got examined as CW2. He has brought the relevant record with respect to dishonourment of the cheques in question for the reasons "insufficient funds".
Official from Nainital Bank Sh. Dhirender Chaudhary has also been got examined. He has stated that the cheques in question has been issued by his bank from the current account of the accused. He has also placed on record the specimen signatures of the accused.
Statement of accused u/s 313 Cr.PC r/w 281 Cr.PC:
5. In his statement accused admitted his signatures on the cheques in question and issuance of the same to the complainant.
CC No.1768/1 3/ 10Accused further stated that the present cheques were issued in blank as security along with the documents of his property against the goods to be supplied by the complainant. Accused further stated that payment was made by way of cash to the complainant against the supply of goods and bill raised thereon and he has already paid cash amount of Rs.8,60,000/- along with cheques of Rs.2,00,000/- to the accused. Accused has admitted the supply of goods against all the three bills placed on record by the complainant but he refused to admit his signatures on bills bearing no. 1512 and 1514. Legal notice has been admitted by the accused. Accused denied the liability with respect to cheques in question towards the complainant.
Defence Evidence:
6. Accused has stepped into witness box by tendering his evidence by way of an affidavit Ex.DW1/A by taking the permission of the court u/s 315 Cr.PC. In his affidavit accused admitted purchasing of goods against the invoices raised by the complainant placed on record. He has further stated that he has made a payment of Rs.8,60,000/- which has been received by the complainant by endorsing the document Ex.DW1/1. It is further stated by the accused that the cheques in question were signed by him and issued in blank to the complainant as advance. It is further stated by the accused that complainant was under obligation to return the said cheques after receiving the cash amount but he fail to return the same and have misused them by filing them up and presenting the same for encashment.
CC No.1768/1 4/ 10Reasons for Decision:
7. Accused admitted his signatures on the cheques in question and the issuance of the same to the complainant, therefore, execution of the cheques stands duly proved. Once, the execution is proved, the presumptions of law u/s 118 and 139 N.I Act comes in favour of the complainant and the initial burden of proof shifts upon the accused. The presumptions of law are rebuttable. Let us see whether the accused has been able to rebutt the same by adducing sufficient evidence on record or not.
8. Accused admitted receiving of statutory legal demand notice issued by the complainant, therefore, the service of the legal notice also stands proved.
9. Ld. Counsel for the accused raised a contention that the cheques in question were issued as security and not for discharge of any liability. Counsel for the accused further argued that the payment against bills raised by the complainant has already been made by the accused by way of cash but complainant failed to return back the cheques which were kept as security with him. Therefore, no cause of action arises u/s 138 NI Act hence, accused cannot be held guilty.
Ld. Counsel for the complainant argued that the goods supplied against the invoices raised by the complainant company are admittedly received by the accused and the cheques issued against the same are also admitted. It is further argued that the accused failed to make the payment and the cheques got dishonoured for the reasons CC No.1768/1 5/ 10 "insufficient funds" therefore the accused is liable to be held guilty for the offence u/s 138 NI Act.
10. Now in order to substantiate his plea of defence, accused relied upon a document Ex.DW1/1 that is the Kaccha receipt claimed to have been issued by the complainant company after receiving the cash amount. During the trial the disputed signatures / handwriting of the complainant witness Mr. Rajeev Kapoor were sent to the CFSL along with the admitted signatures and handwriting for examination which returned back with no specific opinion by the experts. In his cross examination accused stated that the payment was always made by him in cash to the complainant and simultaneously in the subsequent part of cross examination accused admitted that earlier he made payment of Rs.2,00,000/- to the complainant by way of three cheques. It is highly improbable to believe that a person dealing with private limited company does not procure a valid receipt against the huge payments being made in cash. Moreover, the complainant has specifically stated that the complainant company always used to accept the payment by way of cheque and never maintained any kaccha record for which no suggestion has been put by accused. On the contrary the contradictory statement of the accused with respect to mode of payment in his cross examination make the testimony of the accused unreliable and cannot be solely relied in absence of any substantial documentary proof.
The complainant has produced on record the statement of account Ex.CW1/D1 showing outstanding balance on the part of accused along with bills exhibited as CW3/A1 to CW3/A3 against the goods which are admittedly received by the accused. Complainant CC No.1768/1 6/ 10 also produced S.T.- 1 Forms exhibited as DW1/C1 & DW1/C2 which bears the signatures of the accused that have been issued to the complainant which again shows that the goods have been delivered against the invoices placed on record. The documents relied upon by the complainant remained urebutted and stood duly proved. On the contrary the accused has not produced a single documentary proof of payment except the Kachcha receipt which is disputed by the complainant and could not be proved by the accused by bringing some independent evidence. The plea taken by the accused that the signatures on the bills are not of him or these are fabricated is of no use as the goods supplied against the invoices are admittedly received by him.
It is highly improbable to believe that a private limited company will casually receive the cash payment by signing small kacha receipts as shown in document DW1/1 where small small transaction are being reduced in writing in a Limited Company. The accused has drastically failed to prove that cash payments have been made to the complainant company. Where transactions running into lacs of Rupees are carried between the parties that too when on one side there is private limited company and on the other side a proprietorship firm, no books of account or ledger books are maintained by the accused to record the transactions that again creates a doubt in the version of the accused hence his testimony cannot be relied upon. No contradiction came out in the cross examination of the complainant witnesses. Thereby establishing the case beyond reasonable doubt.
11. As per the judgment passed by Hon'ble Supreme Court of India CC No.1768/1 7/ 10 in a case titled as Rangappa Vs. Sri Mohan Criminal Appeal No. 1020 of 2010, the accused is only expected to rebut the presumptions of law on the scale of preponderance of probabilities by adducing sufficient evidence on record but the evidence should be cogent enough to compel the court to believe in non existence of the consideration. In the present case, no cogent evidence has been adduced by the accused to probablise his plea of defence, therefore, accused failed to rebut the presumptions of law lying in favour of the complainant and the onus never shifted back upon the complainant.
Decision:
12. I have gone through the material placed on record and arguments advanced by Ld. counsels. In view of the above discussion and detailed analysis of the evidence led by the parties, this court is of the view that accused has failed to rebut the presumption of Section 139 N.I. Act and could not raise any reasonable probable defence which can be believed by this court.
13. All the essential ingredients of offence u/s 138 are made out. As the accused could not discharge the initial burden lying upon him the onus never shifted upon the complainant. Therefore, it can be said that complainant has successfully established his case beyond reasonable doubt. Hence, accused is found to be guilty and is hereby convicted for the offence under Section 138 N.I. Act.
Announced today in the (Vishal Pahuja) open court on 20.04.2013 MM NI ACT (WEST)/DELHI/20.04.2013 CC No.1768/1 8/ 10 IN THE COURT OF SH. VISHAL PAHUJA MM NI ACT-02 (WEST), DELHI CC No.1768/1 Kapoor Leather Co. Pvt. Ltd. Through its Director Shri Rajeev Kapoor 4/5942, Hardhian Singh Road, Dev Nagar, Karol Bagh, New Delhi. ......Complainant Versus Sh. Jairam Sharma & Ors. Prop. M/s. Sharma Leather Store 31-A, MIG Flats, Motia Khan,
Paharganj, New Delhi-110055. .........Accused 20.04.2013 Order on Sentence:-
Ld. counsel for the accused has submitted that accused is a poor person who has been victim of circumstances. It is further submitted that the accused is only earning member of his family who has to look after his wife and children. It is further submitted that accused considering the above facts and good conduct of the accused, a lenient view may be taken against him.
On the other hand ld. counsel for the complainant has argued that the complainant has been running from pillar to post to recover his CC No.1768/1 9/ 10 amount for last 10 years. It is further argued that there had been a commercial transaction and the accused deliberately did not pay the amount against the goods supplied by the complainant. It if further submitted that complainant has spent heavy litigation expenses for pursuing the present complaint, so it is prayed that accused be punished stringently in terms of imprisonment as well as heavy compensation be awarded to the complainant.
It is necessary to be mentioned here that the offences u/s 138 of N.I. Act are on high rise and in order to keep the spirit of the legislation, the accused cannot be released on probation as these offences have massive effect on the economic condition of the persons.
I have heard the arguments led by both the counsels on behalf of the parties. The cheques in question have been issued on account of commercial transaction and the Negotiable Instrument Act has been enacted to uphold the sanctity of business transactions enabling the payment to be made by way Negotiable Instruments like that of cheques to secure the faith of parties dealing with each other and when the drawer of the cheque could not fulfill his commitment he should be dealt with iron hand.
Keeping in view, the points put forth by both the parties and considering the condition of the accused and sufferings of the complainant, I feel the ends of justice will meet if the accused is sentenced to undergo simple imprisonment for one year and is ordered to pay the compensation of Rs.15,00,000/- to the complainant within 30 days from today and in case of failure to pay the amount, the accused shall undergo two months simple imprisonment in addition to one year simple imprisonment. Accordingly, sentence stands passed.
VISHAL PAHUJA MM NI ACT (WEST),DELHI 20.04.2013 CC No.1768/1 10/ 10