Delhi District Court
Cc No. 531353/2016 Kavinder Singh Sons vs . Mukesh Kumar. Page No. 1/13 on 16 January, 2020
IN THE COURT OF MS. NAINA
METROPOLITAN MAGISTRATE (N.I. Act) -07
TIS HAZARI COURTS, CENTRAL DISTRICT, NEW DELHI
1. Sh. Kavinder Singh
R/o House. no. 11, Gali no.1, B- Block,
Parwatiya Anchal, Sant Nagar, Burari
Delhi-110086,
2. Shri Gurdeep Singh,
R/o House no. 123/2018, Gali no. 15,
Sant Nagar, Main Market, Delhi-110084
3. Shri Ravinder Kumar,
R/o 1073/14, Krishan Colony,
Gohan Road, Rohtak, Haryana.
.............. Complainants
VERSUS
Shri Mukesh Kumar,
S/o Sh. Sukhbir Singh
R/o D-374, Gali no. 15,
Part-1, Jharoda, Burari,
Delhi-84.
.......... Accused
New Case Number. : 531353-2016
Date of Institution of Case : 21.01.2013
Offence Complained Of. : 138 NI Act
Plea of the Accused. : Pleaded not guilty
Arguments Heard On. : 01.10.2019
Date of Judgment. : 16.01.2020
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:: JUDGMENT ::
Facts
1. The case of the complainants is that the accused entered into an oral agreement with the complainants on 13.08.2012 for supply of crackers amounting to Rs. 7 lakh. It is stated that it was also agreed between them that the accused will also provide a license in respect to selling of the fire crackers on the eve of Depawali and for this agreement complainants had paid Rs.
7,00,000/- to the accused. It is stated that it was also agreed between them that the accused shall provide a shop opposite Filmistan, Model Basti, Delhi which was to be used for selling fire crackers. It is further stated that the accused failed to comply with the conditions of the oral agreement and he did not provide even a single fire cracker or the license or the shop to the complainants. It is stated that after non fulfillment of the agreement, the accused had issued two cheques bearing no. 414474 dated 21.11.2012 for a sum of Rs. 3,00,000/- and another cheque bearing no. 414475 dated 10.12.2012 for a sum of Rs.3,50,000/- both drawn on Syndicate Bank, Kingsway, GTB Nagar, Delhi-09. It is stated that both the cheques were issued in the name of one of the complainants, Sh. Kavinder Singh, after discussion with the other two complainants with an assurance that the same will be honoured at the time of their presentation in the bank for encashment. CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 2/13
2. The complainant Kavinder Singh presented the above said cheques on the assurance of the accused. The cheque no. 410074 was presented on 21.11.2012 and the same was dishonored for the reason funds Insufficient. The cheque was again presented on 26.11.2012 but the cheque was again dishonoured for the reason funds Insufficient vide memo dated 27.11.2012. Cheque No. 417745 dated 10.12.2012 was presented on 11.12.2012 and the same was returned unpaid by the bank for the reason funds insufficient on 12.12.2012. Thereafter, complainant has sent legal notice dated 19.12.2012 to the accused calling for payment of the amount of the cheque but despite service of notice, payment was not made. Hence, the complaint was filed.
3. To prove his case, the complainants have examined themselves; Sh. Kavinder Singh as CW1, Sh. Gurudeep Singh as CW-2 and Sh. Ravinder Kumar as CW-3 and led on record the following documents to prove the liability of the accused :-
a) Ex. CW-1/A : Evidence by way of affidavit.
b) Ex. CW-1/1 &
Ex. CW-1/2 : Original cheques.
c) Ex. CW-1/3 to
Ex. CW-1/5 : Returning memos
d) Ex. CW-1/6 : Copy of legal notice.
e) Ex. CW-1/7 (colly) : Postal receipt and acknowledgment.
4. On summoning, the accused entered his appearance and notice was framed on 19.08.2014, to which he pleaded not guilty and claimed trial. The CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 3/13 accused took the defence that cheques in question were issued to the complainant for security for goods. He stated that he has to take goods from the complainant but neither the complainant had supplied the goods nor he returned back his security cheques.
5. After the framing of notice, CW-1, CW-2 and CW-3 were recalled for cross examination and their cross examination was completed on 12.10.2018.
6. After the completion of complainant evidence, the accused was examined u/s 313 Cr.P.C. In his examination u/s 313 CrPC, the accused stated that the chques in question were issued as a security to complainant no. 1 for purchase of fire crackers, however, no goods or crackers were supplied to him by the complainant during Diwali. After Diwali, he had asked for his cheques from the complainant but he did not return the same on one pretext or the other. It is stated that the complainant asked for money and said on receiving of money he will return back his cheques.
7. The accused has examined himself as DW-1 and Sh. Suresh Kumar as DW-2 in his defence.
8. I have heard arguments led on behalf of both the sides.
9. To make any person liable under Section 138 Negotiable Instruments Act (hereinafter to be read as 'The Act'), the following ingredients are required to be proved by the complainant:
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(i) Person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii)That 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;
(iv)That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) The payee or the holder in due course of the cheque 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
10. The complainant has filed on record cheques no. 414474 and 414475 (hereinafter cheques in question) dated 21.12.2012 and 10.12.2012 for a sum of Rs. 3,00,000/- and Rs. 3,50,000/-. He has also filed return memos dated 27.11.2012 and 12.12.2012 which are Ex. CW-1/4 and Ex. CW-1/5 as per which cheque bearing no. 414474 and 414475 were returned back unpaid with the remarks "Funds Insufficient". The complainant sent a legal notice to the accused dated 19.12.2012 within 30 days of the knowledge of the return of the cheque but no payment was made as per the legal notice. Accordingly, cause of action arose in favour of the complainant and the present complaint was filed. All the ingredients of Section 138 of NI Act as discussed above have been met with in this case.
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11. The accused in his examination under section 313 Cr.P.C. has admitted the issuance of the cheques in question to the complainant and has also admitted that all the particulars in the cheques have been filled by him in his own handwriting. Once these facts that the cheques in question belong to the accused and the signatures on the cheques in question are of the accused are established, a presumption of the cheques having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises by virtue of Section 118 (a) and Section 139 of the NI Act. Once the Section 139 of NI Act comes into picture, the court presumes that the cheques were issued in discharge, in whole or in part, of any debt or other liability. At this stage, with the help of the presumption under Section 139 of the Act, the case of the complainant stands proved.
12. When the presumption is raised in favor of the complainant, the burden shifts upon the accused to disprove the case of the complainant by rebutting the presumption raised in favour of the complainant. Being the rule of reverse onus, it is the duty on the accused to prove that he does not owe any liability towards the complainant. The accused can displace this presumption on the scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved beyond all reasonable doubts. The accused has to make out a fairly plausible defence which is acceptable to the court. This the accused can do either by leading own evidence in his CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 6/13 defence or by raising doubt on the material/evidence brought on the record by the complainant.
13. The defence of the accused is that he is a temporary license holder of fire crackers during Deepawali and he does seasonal work in Deepawali and Holi. He has stated that the temporary license is given for 600 Kg of fire crackers and for duration of 24-25 days. He has further stated that 600/- Kg of fire crackers is very small for the duration of 24-25 days so he used to purchase the fire crackers from the local market. He has stated that he had contacted the complainant regarding purchase of fire crackers whenever there is shortage of fire crackers in his shop. He had contacted the complainant for the purchase of fire cracker for around sum of Rs. 6,50,000/- and the complainant had agreed to provide the fire crackers as per the demand by him but on the condition that he has to give security cheques for the supply of fire crackers. It is stated that it was agreed that after Deepawali, after the settlement of account with regard to supply of fire crackers, the security cheques shall be returned to him. It is stated that the complainant failed to supply him fire cracker during Deepawali 2012 and after Deepawali he had contacted the complainant for return of security cheques but the complainant told him that the cheques are not traceable. It is stated that the complainant did not return the cheques to the accused and presented the cheques without any information to the accused.
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14. The accused has raised the defence that the cheques in question were issued as security only prior to Diwali for purchase of fire crackers during Diwali but the complainants did not supply him any fire crackers during Diwali. On the other hand, the case of the complainants is that the accused had to sell fire crackers to the complainants during Diwali for which they had paid Rs. 7 lacs in cash to the accused. The complainants' case is that the accused failed to supply the fire crackers to the complainants during Diwali and also failed to arrange for a license and shop for selling them. It is contended that cheques in question were issued after the non fulfillment of the agreement between them.
15. In this case, the accused has admitted that all the particulars in the cheques in question including the date, payee name and amount have been filled by him in his own handwriting. In his cross examination the accused has stated that the cheques in question have been issued 18-20 days prior to Diwali. It is to be noted that in 2012, Diwali fell on 13 th of November. The court can take judicial notice of this fact under section 56 of the Indian Evidence Act. The cheques in question are dated 21.11.2012 and 10.12.2012. This means that the cheques in question have been issued after Diwali. The accused person has nowhere stated that the cheques in question were given as post dated cheques to the complainant. Thus, there is an apparent contradiction in the case of the accused and it is not believable that the cheques in question have been issued prior to Diwali. CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 8/13
16. The accused has stated that he is a temporary license holder for 600 k.g of fire crackers only for a duration of 24 to 25 days. He has also stated that he had contacted the complainants for supply of fire crackers worth Rs. 6,50,000/- during Diwali in case of shortage. It has been suggested by the Ld. Counsel for the accused many times that the total worth of 600 kgs of crackers is only Rs. 1.5 to 2 lacs. As per the accused, he had contacted the complainant for crackers worth Rs. 6,50,000/- and for this purpose he had issued the cheques in question. If, the entire case of the accused is considered, he had contacted the complainant for supply of crackers, three times more than what he could sell at a point of time. It is also alleged by him that the complainant did not supply him ant crackers during Diwali, therefore he has no liability towards the complainant. However, the accused was found in possession of 2300 k.g. of fire crackers and an FIR was registered against him on 19.12.2012. The accused has admitted to this in his cross examination by Ld. Counsel for the complainant. Thus, the stance of the accused that he used to keep about 600 k. g. of fire crackers only and he used to purchase the deficient fire crackers from others stands falsified. It is also not believable that the accused who could keep only 600 kg of fire crackers will place an order for 3-4 more times of the fire crackers he could keep. Also, if the accused was to keep only 600 kg of fire crackers, how he CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 9/13 was found in possession of 2300 kg of fire crackers on 19.12.12 i.e. even one month after Diwali.
17. It is stated by the accused that the cheques in question were given as security prior to Diwali for purchase of crackers during Diwali but the complainants did not supply any crackers to him during Diwali. The accused took no steps against the complainants for the return of the cheques or for stopping payment against the cheques in question. As per return memos Ex. CW-1/4 and Ex. CW-1/5, the cheques have been returned unpaid for the reason 'fund insufficient'. If the cheques in question were issued prior to Diwali only as security, the accused would have taken steps for stopping payment against the cheques in question due to non supply of crackers during Diwali. But the accused has done no such thing.
18. The Ld. Counsel for the accused has cross examined all the complainants at length. In the cross examination, CW-1 has stated that all the complainants have given Rs. 7,00,000/- to the accused after collecting the same, but there is no mention of the same in the complaint as to the contribution by each complainant. CW-2 has stated that he had given Rs. 2,00,000/- to the accused and CW-3 has stated that he alongwith CW-2, Gurdeep Singh had given Rs. 2,00,000/- each and CW-1, Kavinder had given Rs. 3,00,000/-. All the complainants have stated that the cheques were issued in the name of Kavinder Singh as they had faith in him and there was no dispute regarding the same. The complainants have stated it with CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 10/13 consistency that Rs. 7,00,000/- were given by them collectively to the accused for purchase of fire crackers. There is no contradiction in the cross examination of the complainants regarding the transaction as alleged by them in their complaint. In the complaint also it is stated that the complainants gave Rs. 7 lakhs to the accused and the cheques were issued in the name of one of the complainants, Sh. Kavinder Singh, after discussion with the other complainants.
19. There is nothing coming in the cross examination of the complainant to support the defence of the accused that they are whole sellers of fire crackers and the accused had approached them for purchase of crackers. All the suggestions put by the Ld. Counsel for the accused regarding the business of the complainants have been denied by them. The accused has not brought any material on record other than the suggestions put to the complainants to show that the complainants are involved in whole sale business of crackers. On the other hand, admittedly the accused was found in possession of 2300 k.gs. of crackers on 19.12.2012 and an FIR was registered against him which is Ex. DW-1/C1. Thus, the defence of the accused that he wanted to purchase crackers from the complainants during Diwali and the complainants failed to supply crackers to him during Diwali is not believable.
20. The accused has also taken the defence that he did not receive the legal notice u/s 138 NI Act. During his cross examination he has stated that the address mentioned on the legal demand notice and AD Card are his CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 11/13 addresses and are correct. Where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the General Clauses Act would be attracted and with this the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. Section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. Further, in light of the judgment C.C. Alavi Haji Vs Palapetty Muhammed & Anr on 18.05.2007 passed by Hon'ble Apex court, the defence of not receiving the notice is not maintainable if the accused does not pay amount of the cheque to the complainant within 15 days of receiving the summons from the court.
21. In view of the aforesaid reasons, the court finds that the accused has not been able to prove any probable defence that there was no legal liability or debt against the accused. The accused has failed to rebut the presumption raised U/s. 139 of the NI Act, there is no need to go into complainant's evidence for proving the complainant's case. There is nothing coming out in the cross examination of complainant which would probablise the defence raised by the accused or falsify the case of the complainant. Therefore, the complainant has been able to prove his case beyond reasonable doubt CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 12/13
22. Therefore, the accused Mukesh Kumar is convicted for the offence punishable U/s. 138 of the Negotiable Instruments Act in respect of cheque Ex CW1/1 and Ex. CW-1/2.
Announced in the Open (NAINA) Court on 16.01.2020 MM(N.I Act)/THC/ND CC No. 531353/2016 Kavinder Singh Sons Vs. Mukesh Kumar. Page no. 13/13