Delhi District Court
In Case Titled As M/S Kumar Exports vs . Sharma Carpets, Air (2009) on 21 April, 2012
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No.602/1
Sh. Madan Lal Goel,
Sole Proprietor of
M/s. Goel Metal & Strips Co.
D-6/2A, Rana Pratap Bagh,
Delhi-110007. ......Complainant
Versus
Jitender Soni and Munish Soni
Directors of Pearl Appliances (P) Ltd.
A-84, G.T. Karnal Road,
Delhi-110033. .........Accused
Date of Institution : 12.04.2006
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 16.04.2012
Date of Decision : 21.04.2012
Final Order : Acquitted / Held not
guilty
CC No.602/1 1/ 8
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. It is alleged by the complainant that accused persons towards part discharge of the liability issued the cheque bearing no. 388889 dated 30.07.2005 amounting of Rs. 50,000/- which is Ex.CW1/1 drawn on Dena Bank, Alipur Road, New Delhi in favour of the complainant. It is further alleged that on the presentation of the said cheque by the complainant with his bank the same was returned dishonored vide returning memo dated 23.01.2006 with remarks "Exceeds Arrangement" Ex. CW1/2.
2. It is further alleged by the complainant that the accused persons did not make the payment, consequently the complainant served legal demand notice dated 23.02.2006 upon the accused persons by way of registered AD which is Ex.CW1/4. As accused persons failed to make the payment within the statutory period after receiving the legal demand notice, the complainant filed the complaint.
3. Complainant filed his pre-summoning evidence. Considering the same, prima facie offence u/s 138 NI Act was made out. Consequently, CC No.602/1 2/ 8 the accused persons were summoned u/s 138 NI Act. On their appearance, the accused persons were granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr. P. C stating substance of accusation was served upon them on 25.08.2008 to which they pleaded not guilty and claimed trial.
Complainant Evidence:
4. Complainant has stepped into the witness box as CW1 tendering his evidence by way of an affidavit. Complainant has reiterated the same facts in his affidavit as that mentioned in the complaint.
5. Complainant has also got examined one witness namely Prem Kumar Asst. Manager of Indian Bank, Partap Bagh, New Delhi, as CW2. He is just a formal witness who has just proved the dishonourment of the cheque.
Statement of accused persons:
6. In the statement of accused u/s 313 Cr.PC r/w 281 Cr.PC, the accused Manish Soni has admitted his signature on the cheque in question and the issuance of the same to the complainant by his company as advanced payment against the goods to be supplied by the complainant. It is further stated by the accused Manish Soni that complainant did not supply the goods, therefore the liability towards the complainant is denied. The accused denied receiving legal demand CC No.602/1 3/ 8 notice and wished to lead defence evidence.
7. In the statement of accused u/s 313 Cr.PC r/w 281 Cr.PC, the accused Jitender Soni denied his signature on the cheque. It is further stated by the accused Jitender Soni that he has no knowledge about the issuance of the cheque nor he has visited the business place for last 12 years. Accused admitted that the signature on the cheque are of accused Manish Soni. It is further stated that he does not have concern with business dealings so he has no knowledge whether the cheque has been issued to the complainant in discharge of any liability.
Defence Evidence:
8. In order to prove his defence the accused Manish Soni stepped into the witness box as DW1 by taking the permission of this court under section 315 Cr.PC. In his examination in chief the accused relied upon the certified copy of the complainant case Ex.DW1/A and stated that he gave a cheque of Rs. 25,000/- to Harsh International whose proprietor is Surender Goel. It is further stated that the cheque bearing no. 389525 for Rs. 25,000/- was interpolated by him by adding in 9 digit to the amount of the Rs. 25,000/- totaling the sum of Rs. 9,25,000/-. Whereas the cheque was given only for Rs. 25,000/-. It is further stated that Surender Goel is the brother of the Madan Goel who is the complainant in present complaint.
CC No.602/1 4/ 8Reasons for Decision:
9. The accused Manish soni has admitted the signature on the cheque and issuance of the same to the complainant, therefore the execution of the cheque stands duly proved. Now, as the execution of the cheque has been duly proved the presumption of the law u/s 118 and 139 comes in favour of the complainant and the onus of the proof shifts upon the accused persons. Let use see whether the accused persons have been able to rebut the presumption of law of by adducing sufficient evidence on record or not.
10. The receiving of legal demand notice sent by the complainant is not specifically denied by the accused persons, whereas the record shows that accused persons have been duly served by way of registered Post on the address mentioned thereon. The accused persons appear before this court on service of the summons on the same address as well as, therefore in such eventuality the service of the legal notice can be presumed u/s 27 General Clause Act. Hence, the legal demand notice deemed to be duly served.
11. Ld. counsel for the accused persons argued that the complainant has not placed any documents on record to show the supply of goods by him to the accused persons. It is further argued that the copy of the statement of the account filed by the complainant on record which is Ex. CW1/A does not bear any stamp of the complainant firm nor the same has been attested by the accountant, therefore the documents cannot be said to have been proved according CC No.602/1 5/ 8 to law. It is further argued that accused persons issued the cheque as advance payment to the complainant against goods to be supplied by the complainant but as the goods were never supplied by the complainant. the cheque in question rendered without any consideration, hence no cause of action arises u/s 138 of the NI Act against the accused persons.
On the other hand ld. counsel for complainant argued that goods were supplied by the complainant against which the accused persons issued cheque in discharge of their liability. It is further argued that statement of accused persons filed by the complainant is a computer generated document which shows the outstanding liability on the part of accused persons. Hence, the accused persons are liable on the u/s 138 NI Act.
It is important to note that in the cross examination of the complainant, the complainant himself admitted that no documentary proof in the form of Bill/Invoice/Challan has been filed by him. It is also further important to note that the document relied upon by the complainant i.e. statement of the account although being the computer generated document is required to be proved according to law. There is no stamp on the document nor the same is attested to be correct/authentic document by the charted accountant. In the absence of any such proof the documents cannot be said to have been proved according to law, therefore it cannot be read into evidence. Though, it is relevant document but the liability cannot be showered upon the accused persons in absence of any corroborative evidence. The complainant has failed to brought any document on record to show that CC No.602/1 6/ 8 goods were in fact supplied to the accused persons.
12. As per judgment passed by the Hon'ble Supreme Court of India in case titled as M/s Kumar Exports Vs. Sharma Carpets, AIR (2009) 2, the accused persons are only expected to rebut the presumptions of law on the scale of preponderance of probabilities and are not required to prove their defence beyond reasonable doubt. In the present case the accused persons have adduced sufficient strong evidence probabilising their plea of defence which is enough to compel the court for believing in its existence. Accordingly, the accused persons have discharged their initial burden and the onus shifts back upon the complainant. Now the presumptions will not come again for the rescue of complainant and he has to prove its case beyond reasonable doubt. The complainant has miserably failed to discharge the burden of proof lying upon him.
Decision:
13. 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 persons have successfully rebutted the presumptions of law and raised a probable defence which can be believed by this court.
14. As the essential ingredient for the offence u/s 138 N.I.Act i.e. cheque must be issued in discharge of enforced debt/liability has not CC No.602/1 7/ 8 been made out, the accused persons are entitled to be acquitted. Hence, accused persons are hereby acquitted for the offence u/s 138 NI Act.
Announced today in the (Vishal Pahuja)
open court on 21.04.2012 MM NI ACT (WEST)/DELHI
21.04.2012
CC No.602/1 8/ 8