Delhi District Court
M/S Hare Krishna Enterprises vs M/S Ganesh Food Sales on 26 September, 2015
IN THE COURT OF MS.MEENU KAUSHIK, METROPOLITAN MAGISTRATE,
NORTHWEST, ROHINI, DELHI
Unique ID No. 02404R0340752009
CC No. 644/1/09
M/s Hare Krishna Enterprises
Through its proprietor Sh. Shyam Singh
A55, 1st Floor, Sanjay Market, Pkt3, Sec2,
Rohini, Delhi110085. ............Complainant
Versus
M/s Ganesh Food Sales
Through its Proprietor Sh. Vinod Kumar Singh
Karna Dari Kashipur
Mohan Saria, Varanasi, U.P. .............Accused
JUDGMENT
(1) Name of the complainant, M/s Hare Krishna Enterprises parentage & address Through its proprietor Shyam Singh A55, 1st Floor, Sanjay Market, Pkt3, Sec2, Rohini, Delhi110085.
(2) Name of accused, M/s Ganesh Food Sales
parentage & address Through its proprietor Sh. Vinod Kumar
Singh, Karna Dari Kashipur,
Mohan Saria, Varanasi, U.P
(3) Offence complained of or
proved: 138 N.I. Act
(4) Plea of accused: Pleaded not guilty
(5) Date of institution of case: 08.12.2009
(6) Date of reserve of order: 19.09.2015
(7) Date of Final Order: 26.09.2015
M/s Hare Krishna Enterprises v. M/s Ganesh Food Sales CC No. 644/1/09 1
(8) Final Order: Acquitted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: Accused purchased Fruit bear from the complainant for total amount of Rs. 13,00,000/ and issued one cheque bearing number 777561 dated 12.03.2009 for Rs.6,00,000/ and five cheques bearing numbers 777556, 777557, 777558, 777559, 777560 dated 22.08.2009 for Rs.1,40,000/ each, all drawn on Allahabad Bank, Kachnar, Varanasi, U.P. The complainant presented the said cheques for clearing in his account with ICICI Bank, Rohini Branch, Delhi. The said cheques got dishonoured with the reasons "Funds Insufficient" vide return memo dated 08.10.2009. Thereafter, the complainant asked the accused for payment of due amount to which accused did not pay attention towards his dishonoured cheques. Mandatory legal notice in this regard was issued by the complainant to the accused on 26.10.2009 by way of Registered AD and UPC post. However, no payment was made by accused pursuant to issuance of legal notice. Therefore, complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre summoning evidence, complainant examined himself on affidavit. He reiterated the contents of complaint and placed on record, original cheque bearing no. 777561 dated 12.03.2009 for Rs.6,00,000/ as Ex.CW1/A, cheques bearing no. 777556, 777557, 777558, 777559, 777560 dated 22.03.2009 for Rs.1,40,000/ each all drawn on Allahabad Bank, Kachnar, Varanasi, U.P, as Ex. CW1/B to Ex.CW1/F, Cheque return memos dated 08.10.2009 as Ex. CW1/G to G2, legal notice dated 26.10.2009 as Ex. CW1/H, postal receipt as Ex. CW1/I, UPC receipt as Ex.CW1/J and return envelope as Ex. CW1/K. M/s Hare Krishna Enterprises v. M/s Ganesh Food Sales CC No. 644/1/09 2
4. Accused was summoned upon appreciation of pre summoning evidence. Notice under Section 251 Cr. P.C. for offence under Section 138 N.I. Act was framed upon accused on 14.09.2012 to which he pleaded not guilty and claimed trial.
5. Complainant examined only himself in post notice evidence. He adopted his affidavit of presummoning evidence in postnotice evidence and during his cross examination, he stated that he does not remember the date on which he sent the material to the accused but the last material was sent to the accused in the month of February, 2009. According to him accused is liable for sum of Rs. 12,75,000/. He accepted that this fact is not mentioned in the legal notice, complaint and in his affidavit. He admitted that date on five cheques were filled by him. As per him he himself filled the contents in cheque for sum of Rs. 6,00,000/. He stated he has not filed any paper regarding supply of material, invoice, bills etc.
6. Thereafter, his statement under Section 313 Cr. P.C. was recorded in which all the incriminating evidence were put to him to which he took defence the the cheques in question were not issued by him to the complainant. As per him some of his cheques were lost for which he gave intimation to his bank also. After that, the matter was fixed for defence evidence.
7. In his defence evidence, he examined only himself as witness. He as DW 1 stated in his examination in chief that in the year 2007, he started the business of fruit bear under the name of M/s Ganesh Food Sales. He and Complainant carried business together since March 2007 to JulyAugust, 2008. As complainant failed to supply the sufficient goods, said business was closed with complainant in August, 2008. He further stated that his cheques bearing numbers 777556 to 777561 were lost. He also lodged written complaint to his bank regarding those cheques and prayed to stop payment for those cheques. Relevant bank complaint is Ex.DW1/A. M/s Hare Krishna Enterprises v. M/s Ganesh Food Sales CC No. 644/1/09 3
8. Thereafter, oral arguments tendered on behalf of both the parties were heard at length.
9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first: For the offence under Section 138 NI Act to be made out against the accused, the complainant must prove the following points, that:
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
10. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118(a) and Section 139 of the said act are read as under:
Section 118 Presumption as to Negotiable Instruments : Until the contrary is proved, the following presumptions shall be made:
(a) of consideration that every negotiable instrument was made or drawn for M/s Hare Krishna Enterprises v. M/s Ganesh Food Sales CC No. 644/1/09 4 consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transfered, was accepted, endorsed, negotiated or transferred for consideration;
Section 139. presumption in favour of holder: It 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.
11. For the offence under Section 138 N.I. Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
12. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. In the present case, as per the complainant he supplied fruit bear to the accused worth Rs.12,75,000/, for which accused issued cheques in question to him. Six cheques in the present case are total amounting to Rs.13,00,000/. During cross examination, complainant failed to give explanation as to how come total cheque amount is Rs. 13,00,000/ instead of Rs.12,75,000/. Learned counsel for accused contended that as complainant has mentioned wrong amount in his legal notice, hence no case under Section 138 N.I.Act is made out against the accused. Moreover complainant did not place on record any document regarding business transaction between them. In absence of any invoice and delivery receipt of goods, it is difficult to believe the business transaction between the parties for M/s Hare Krishna Enterprises v. M/s Ganesh Food Sales CC No. 644/1/09 5 amount in question. Furthermore, as per the complainant dates in all the cheques were filled by him and one cheque for Rs.6,00,000/ was given by accused in blank. It is not understandable as to why accused would have given blank chaeqe to the complainant for the supply of goods for particular amount. As a matter of prudence, if cheques are issued for payment towards supply of goods, then exact amount is generally filled in the same to avoid any dispute. Contention of complainant that one cheque in question was given by accused in blank raises further doubts over the case of complainant. It is also pertinent to mention that complainant has not mentioned the details of transaction in his complaint, affidavit or legal notice and this fact further caste shadow over the case of the complainant.
On the other hand, accused admitted his signatures in two cheques in question i.e.Ex.CW1/E and Ex/CW1/F but he did not accept his signatures in rest of four cheques i.e.Ex.CW1/A to Ex.CW1/D. As per accused his few cheques were lost and he gave intimation regarding the same to his bank. In this regard he placed on record communication letters between him and bank as Ex.DW1/A amd Ex.DW1/B. Complainant during trial did not take steps to prove that all the cheques in question were issued by accused and all bear the signatures of accused. Learned counsel of the complainant made contention that accused gave contradictory statement as to number of cheques lost and as he did not made any police complaint, thus defence of the accused cannot be relied upon.
To this, point to be considered that defence of accused remained consistent through out. It is settled law that prosecution has to stand on its own legs to prove its case and it cannot derive any benefit from the weaknesses of the accused. Thus non filing of complaint to police or mentioning different figure of cheques lost are of little consequence.
13. Hence in the light of above discussion it comes out that the complainant has failed to prove his case beyond all the reasonable doubts and accused has successfully rebut the presumption in favour of the complainant as the standard of proof so as to prove a defence on the part of accused is only 'preponderance of M/s Hare Krishna Enterprises v. M/s Ganesh Food Sales CC No. 644/1/09 6 probabilities' and inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies as the same was held by Hon'ble Supreme Court in Krishnajanardhan Bhat v. Dattatraya G. Hegde 2008crl.L.J. 1172. Accordingly accused is acquitted for the offence under section 138 of Negotiable Instruments Act. Bail bond and Surety bond stands discharged. Original documents of surety, if any, be released as per rules. File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT (MEENU KAUSHIK)
TODAY i.e, 26th SEPTEMBER, 2015 METROPOLITAN MAGISTRATE
ROHINI DISTRICT COURTS/ DELHI
M/s Hare Krishna Enterprises v. M/s Ganesh Food Sales CC No. 644/1/09 7