Indian Kanoon - Search engine for Indian Law

Delhi District Court

Hon'Ble Delhi High Court In Montari ... vs . State & on 7 November, 2012

      IN THE COURT OF SH. LALIT KUMAR :  ASCJ / JSCC / GJ/ 
      METROPOLITAN MAGISTRATE (NEW DELHI DISTRICT)
                               PATIALA HOUSE COURTS:  NEW DELHI


                              Unique case ID No. 02403R0136222005
                              CC No:  194/09
                              PS:   Connaught Place
                              U/s 138 /142 Negotiable Instruments Act

IN THE MATTER OF:­

      Pradeep Kumar Sharma, Sole Prop. of M/s Sharma Binder, 
      B­1163, Gali Classic Sweets,
      Main Bazar, Shastri Nagar,
      Delhi ­110052.                                                     ..... Complainant

                                      VERSUS

      Smt. Babita Gopalia, Prop. of  M/s  Samrat Marketing,
      CK­61/62, Karan Ghanta,
      Varanasi (Uttar Pradesh)

      Also at:
      K­63/18, Bhut Bhairav Gali,
      Kasipura, 
      Varanasi (Uttar Pradesh).                            ..... Accused


 COMPLAINT  U/s  138 OF NEGOTIABLE INSTRUMENTS ACT, 1881

Date of institution of the case                               :        19/03/2005

Date on which Judgment  was reserved                          :        05/10/2012

Date of Judgment                                              :        07/11/2012

Final Order                                                   :        Acquitted

CC No.  194/09                                                                   Page  1  of  14
 JUDGMENT:

­

1. Complainant had filed the present complaint case u/s 138 & 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N. I. Act") against the accused.

Brief facts necessary for just adjudication of the present case as stated in the present complaint are that the complainant was carrying on business as a Book­binder under his sole proprietorship firm and the accused was carrying on business under his sole proprietorship firm in the trade of notebooks, copies, stationery items etc. During the month of July & August, 2004, the accused approached the complainant at his aforesaid premises in Delhi and got the job works of book binding and cover pasting done from the complainant vide bill no. 014, 016, 017 dated 07.04.2004 for Rs. 30,000/­, Rs. 35,000/­ and Rs. 35,000/­ respectively and bill no. 020 dated 15.08.2004 for Rs. 30,000/­. The said job works were completed and delivered to the accused by the complainant to the entire satisfaction of the accused. In partial discharge of her aforesaid liability of Rs. 1,30,000/­ towards the complainant, the accused issued four cheques bearing no. 463398, 463399, 463395 and 463400 dated 15.08.04, 30.08.04, 30.09.04 and 15.10.04 respectively for Rs. 30,0000/­, Rs. 35,000/­, Rs. 35,000/­ and Rs. 20,000/­ respectively. All cheques drawn upon ICICI Bank Ltd. CK­28/13, Gyanvapi Chowk, Varanasi ­2210001 and all drawn in favour of the complainant.

CC No. 194/09 Page 2 of 14

The aforesaid cheques were firstly presented by the complainant to his banker for encashement but were returned dishonoured by the draweee bank vide return memo dated 04.11.2004 showing the reason as "Fuhnds Insufficient". Thereafter, the aforesaid four cheques were again presented by the complainant to his banker for encashement but same were again returned dishonoured vide return memo dated 25.01.04 showing the reason as "Funds Insufficient". Finally, complainant presented the aforesaid four cheques to its banker ICICI Bank Ltd, New Delhi but to utter shock and surprise of the complainant all the cheques were again returned unpaid vide return memo dated 12.02.05 showing the reason "Fund Insufficient". Thereafter, complainant sent legal notice dated 26.02.05 to the accused to called upon the accused to make payment of the dishonoured cheques. The legal notice served upon the accused on 03.03.2005 as might well be ascertained from the signatures of acknowledgment on the AD cards received back. But despite the service of notice upon the accused, accused has grossly failed to make the payment of the dishonoured cheques. Therefore, from the above stated stated illegal and malafide acts and intents of accused to cheat and to defraud the complainant herein, the accused has rendered herself liable to be prosecuted according to the criminal laws of the land, including under the provision of the Negotiable Instruments Act. Hence, the present complaint is filed against the accused.

2. Vide order dated 22.07.05, accused was summoned for CC No. 194/09 Page 3 of 14 the offence u/s 138 N.I. Act.

3. Finding a prima­facie case against the accused, Notice u/s 251 Cr.P.C. for the offence u/s 138 N.I. Act was given to accused to which she pleaded not guilty and claimed trial as above said cheques were given as security.

4. In support of his case, complainant has examined two witness. He examined himself as CW1 and Sh. Surender Mohan Mahajan as CW2.

In his evidence by way of affidavit, CW1 has reiterated and reaffirmed the contents of the present complaint. CW­1 in his testimony had relied upon documents as Ex. CW1/1 to Ex.CW1/26. However, counsel for the defendant has objected the mode of proof of documents Ex. CW1/1 to CW1/4 and Ex.CW1/9 to Ex.CW1/12. This witness was cross examined by counsel for the accused.

In his cross examination CW­1 deposed that the account in which he lodged the cheque was in joint name of his and one Sh. Nand Kishore Sharma. He deposed that it was not a partnership firm. His firm was engaged in the business of book binding job work. The job work of the firm was procured by way of customer directly coming to them. The accused Babita Gopalia approached them directly but he did not recollect the date when she approached them. She approached them in the year 2004 but he did not CC No. 194/09 Page 4 of 14 recollect the month and date. He did not recollect what was the job work as it was four years old transaction. He never went to Varanasi with the work of the accused, however, he did not visit as his relatives were living over there. In reply to court question, whether has he brought the book from which he had allegedly issued the invoices to the accused, he replied that he had not brought the book.

He deposed that original carbon copies were not on court record. He had seen all the four photocopies placed by him on judicial record and they did not bear anywhere the signatures of the accused. He denied that he had not brought the original invoice book as there exist none and these invoices were false, forged and manufactured invoices. He presented the cheques in question thrice in the bank. He did not remember whether he had issued any notice under the provisions of Section 138 N.I. Act to the accused vide notice dated 08.12.2004. He denied that he had received any reply dated 01.01.2005 to the said notice. The notice dated 26.02.2005 had been issued at his instructions by Sh. Paban Kumar Sharma, Advocate and he vouch the content of the same. He could say whey he had not placed the notice dated 08.12.2004 and the reply dated 01.01.2005 in the court file. He denied that he had deliberately not filed it as his case would not have been maintainable otherwise. His workshop was at B­1163, Gali Classics Sweets, Main Bazar, Shastri Nagar, Delhi­ 110050. The goods were collected from the workshop by the accused herself. He could not say the invoice number 15 was of which date. He issued three invoices on the asking of the accused as she said the CC No. 194/09 Page 5 of 14 amount of each invoice should correlate and coincide with the cheques amount, respectively. He did not exactly remember the dates of the cheques. He knew Sh. Kishan Kumar Sharma. Again said, he did not know any Kishan Kumar Sharma but know Kishan Kumar Mishra. He had previous dealings with the accused only on cash transaction basis. He admitted that money had been received by him in his bank account from Varanasi from the accused on previous occasions. He further denied that he had received the full payment of all the transactions as one in question were entered between the accused and him.

The accused had stated and claimed to be the sole proprietor of her firm M/s Samarat Marketing. He did not exactly remember when dealing between him and the accused started. He vouch that the contents of the affidavit tenders by him in evidence was as per the instructions given by him to the counsel. He further deposed that in para 4, it had been mentioned by him that the transaction had taken place only in the month of July and August 2004 and the affirmation made in para number 6 that the cheques were dishonoured vide cheque return memo dated 25.01.04 was because of typographical error. The portion confronted by the witness was marked point A to A and was stated by the witness typographical error. The witness was confronted with para number 5 marked point B to B. The complaint bears his signature at point C. He denied that Sharma Binder was a partnership firm and he himself and Sh. Nand Kumar Sharma was its partners.

CC No. 194/09 Page 6 of 14

After looking at the AD cards received by him on the point whether they bears the signatures of the accused or not. He denied that legal notices were never received by the accused. He further denied that he had manipulated the AD Cards. He denied that he was introduced to the accused by Sh. K.K. Sharma and the business transactions between him and the accused took place through Sh. K.K. Sharma. He denied that the goods were not picked by the accused and delivered by him. The witness was confronted with portion marked C to C of the affidavit. He denied that he had filed a false case just to extort money on the basis of cheques issued towards security and he was deposing falsely.

CW­2 Sh. Surender Mohan Mahajan, Manager, ICICI Bank Ltd., Connaught Place Branch, New Delhi was a summoned witness who had brought certified copy of statement of account of the complainant maintained with his bank bearing saving account no. 000701060226 and proved the same as Ex. CW2/1, which shows that four cheques Ex. CW1/5 to Ex.CW1/8 were presented in his bank for encashment but the same were returned dishonoured due to reason as insufficiency of funds vide four cheque return memo Ex. CW1/9 to Ex. CW1/12. This witness was also cross examined by counsel for the accused.

In his cross examination, CW2 deposed that cheques Ex. CW1/5 to Ex.CW1/8 were presented only for once on 20.11.2004 and return memo Ex. CW1/9 to Ex.CW1/12, the cheque numbers were CC No. 194/09 Page 7 of 14 mentioned and only on the basis of the same, the same were identified that the return memos were issued against those cheques. As per record brought by him, the account in question was a joint account in the name of Nand Kishore Sharma and Pradeep Kumar Sharma in their joint names. He denied that the account in question was a partnership account. He denied that the return memo Ex. CW1/9 to Ex.CW1/12 were forged and fabricated documents. He denied that he was deposing falsely.

5. Vide order dated 10.08.2011, evidence of complainant was closed.

6. Statement of accused Babita Gopalia w/o Sh.

Shanteshwar Gopalia was recorded u/s 313 Cr.P.C. wherein she denied the allegations against her and rebutted the complainant evidence against her and stated that the business of copies, stationery etc. was being run by her husband and his husband had business transactions with the complainant. The complainant had demanded a security and therefore, the cheques in question were given to the complainant as security. The dues of the complainant had been cleared despite the same the complainant misused the cheques and presented them despite there being no liability on her part. It was also stated by the accused that she wants to lead defence evidence. However, despite given ample opportunities accused failed to lead DE. Therefore, vide order dated 02.02.2012 DE was closed.

CC No. 194/09 Page 8 of 14

7. This court heard the final arguments advanced on behalf of the parties and carefully perused the entire record including the testimony on record.

8. During the course of arguments it is submitted by counsel for the complainant that complainant proved in his evidence that the order placed by the accused in Delhi, bill raised in Delhi, cheques were issued in Delhi. The bank of the complainant is in New Delhi, he presented the cheque in his bank at New Delhi. The cheques were dishonoured and thereafter notice was issued from Delhi. The complainant has only bank account in Delhi and he deposited the cheque in Delhi. The transaction was done in Delhi, therefore this court has jurisdiction to entertain the case. In support of his contention, counsel for the complainant has relied upon judgment of Hon'ble Delhi High Court in Montari Industries Ltd. & Anr. Vs. State & Anr. 114 (2004) DLT 416 held that " if admission/denial to be done at fag end of trial, party which has completed its evidence may be seriously prejudiced. This course cannot be adopted."

The complainant has not been unable to prove that there was any legal enforceable debt which the accused ought to pay to him. A bare perusal of complaint shows that the complainant filed four photocopies of carbon copies of alleged invoices and nomenclatured them as Ex. CW­1/1 to Ex. CW1/4 and neither filed his statement of account nor produced the book allegedly contained CC No. 194/09 Page 9 of 14 the carbon copies of the invoices either in pre­summoning evidence or thereafter. It is pertinent to mention here that the complainant was examined and during his cross examination the complainant gave evasive answer and from that his falsehood was apparent.

"... he did not recollect that the date when she approached to them. She approached them in the year 2004 but he did not recollect the month and date. He did not recollect what was the job work as it was a four years old transaction." During cross examination a question was put to the complainant that had he brought the book from which he had allegedly issued the invoices to the accused. In answer to that question, he deposed that he had not brought the book.

Further, the original carbon copies are not on court record. Not only that the complainant further stated that he has seen all the four photocopies placed by him on the judicial record and they did not bear anywhere the signatures of the accused. A suggestion was put to the complainant that he has not brought the original invoices book as there exist none and these invoices were false forged and manufactured. Further, no permission was sought from the court to lead evidence on the basis of alleged photocopies of the alleged invoices allegedly marked as Ex. CW1/1 to Ex. CW1/4.

It is well settled principle of law that a photocopy of a copy is not admissible in evidence under Section 65 of Evidence Act. As CC No. 194/09 Page 10 of 14 held by the Hon'ble High Court in Ms. Arati Bhargava Vs. Kavi Kumar Bhargava reported as 79 (19990 DLT 563.

It is a settled position that the complainant under Section 138 N.I. Act is not maintainable of the cheques which are not issued against the legally enforceable debt and in the present complaint, the complainant has failed to prove that all these cheques were given to the complainant for the alleged job work done by the complainant, and the story of the job work is all false having no basis.

On the other hand, counsel for accused argued that the complainant filed a false complaint case under the provisions of section 138 N.I. Act wherein falsely alleging that the cheques of the accused which the complainant is holding has been allegedly given to him in Delhi and the bank of the complainant is in Delhi. He presented the cheque in Delhi and notice was issued from Delhi. The judgment relied upon by the complainant captioned as GE Capital Transportation Financial Services Ltd. Vs. Rahisuddin Khan is distinguishable on facts as the judgment relied upon by the complainant is in respect of cheques payable at par whereas in the present case, the cheques are not at par and are payable by they Varanasi Branch only. The judgment relied upon by the complainant is not applicable to the facts and therefore, does not have the binding precedent.

The judgment relied upon by the complainant is CC No. 194/09 Page 11 of 14 distinguishable on the facts and is not applicable to the present case.

9. Moreover, since the cheques were not issued and encashed in Delhi, therefore, this court has no jurisdiction. In this regard, I am supported by Judgment titled as Dushyant Verma Vs. Tek Chand passed by Hon'ble High Court of Delhi in Crl. M.C. No. 3531/2010 and Crl. M.A. No. 17037/2010, which are as under:­ "In the instant case, undisputedly the petitioner is resident of Faridabad. The cheques, which are subject matter of the complaint under Section 138 N.I. Act, are also drawn on Punjab & Sind Bank, Ajronda, Faridabad where the petitioner is maintaining its account. The cheques in question, though were deposited for collection by the respondent through its bankers Canara Bank in Kamla Nagar, Delhi, were sent for collection to the drawee bank at Ajronda, Faridabad where they were allegedly dishonoured. Even the notice of demand was served on the petitioner at the address of Faridabad. Thus, in view of the law laid down by the Supreme Court in the matter of M/s Harman Electronics (P) Ltd. (supra) and Shri Ishar Alloy Sales Ltd. (supra), the entire cause of action for filing the complaint under Section 138 N.I. Act has arisen at Faridabad. Thus, no part of cause having CC No. 194/09 Page 12 of 14 arisen in Delhi Courts. The result of above discussion is that no part of cause of action having arisen within the territory of Delhi, the court in Delhi have no jurisdiction to try the complaint in question.

I am further supported by Judgment titled as Shree Raj Travels & Tours Ltd. Vs. Destination of the World passed by Hon'ble High Court of Delhi in Crl. M.C. No. 1056/2011 wherein it was held that:­ "...that on the pleadings in the complaint(s), no part of cause of action can be said to have accrued to the complainant at Delhi; that the notice demanding payment was posted from Delhi and that the cheque was deposited with the payee bank at Delhi would not constitute the acts contemplated as ingredients of an offence.."

10. In view of the above said discussion, no part of cause of action having arisen within the territory of Delhi, the Courts in Delhi have no jurisdiction to try the complaint in question. Apart from it, there are other material contradiction in the deposition of complainant which also goes against the complainant, therefore, complainant has also failed to prove his case. Hence, in the facts CC No. 194/09 Page 13 of 14 and circumstances of the case complaint is liable to be dismissed and same is accordingly dismissed. Accused Babita Gopalia is acquitted. Her bail bonds are cancelled, surety discharged.

File be consigned to record room after due compliance.

Announced in the open court                                (LALIT KUMAR)
on  07/11/2012                                              ASCJ/JSCC/GJ/ MM 
                                                        New Delhi District,PHC,
                                                                   New Delhi 




CC No.  194/09                                                    Page  14  of  14