Delhi District Court
Court, Hiten P. Dalal vs . Bratindranath Banerjee (2001) 6 Scc ... on 18 February, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE (CENTRAL) NI ACT-
04, CENTRAL DISTRICT, TIS HAZARI COURT, DELHI.
Presided over by:- Ms. Kratika Chaturvedi
CC No. 526910/2016
Unique case ID No. DLCT020056692014
In the matter of:-
M/s V.J. Electro Sales,
Shop No. 223, 2nd Floor,
Gopal Market, Bhagirath Palace,
Chandni Chowk, Delhi-110006
......Complainant
Versus
Vinayak Electricals (India)
B-22, 1st Floor, Wazirpur Group Industrial Area,
Delhi
Through its authorized signatory
Sh. Ankit Jain
...... Accused
Date of Institution : 26.11.2014
Offence complained of : Section 138 Negotiable
or proved Instrument Act, 1881
Plea of Accused : Not guilty
Date of Filing : 18.11.2014
Date of Decision : 18.02.2021
Final Order : Acquittal
CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 1 of 15
Argued by:- Mr. Abhishek Vikram, Ld. Counsel for complainant.
Mr. Ankur Jain, Ld. Counsel for accused.
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION: -
FACTUAL MATRIX-
1. The present complaint has been filed by the complainant M/s V.J. Electro Sales, against the accused Vinayak Electricals under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). The substance of allegations and assertions of the complainant is that the accused purchased some electrical items from the complainant and in lieu of the said purchase, the accused issued two cheques bearing nos. 048047 and 048049 dated 27.08.2014 amounting to Rs. 25,000/- each drawn on Indusland Bank, Laxmi Niwas Building, Main Road, Chandni Chowk, Delhi- 110006 (hereinafter referred to as the "cheques in question") from the account no.
200999435474 which belongs to the accused. It is the case of the complainant that after due instructions and assurances from the accused, the complainant presented the cheques in question to ICICI Bank Ltd., E-4, Jhandewalan Extn, New Delhi. However, the cheques in question got dishonoured with the remarks, "funds insufficient" on 16.10.2014. The complainant thereafter issued a legal demand notice on 29.10.2014 which was duly served on the accused. Despite service, the accused failed to repay the cheque amount within the stipulated period and hence, the present complaint has been filed under section 138 of the NI Act.
APPEARANCE OF ACCUSED AND TRIAL
2. On finding a prima facie case against the accused, he was summoned to face trial and after his appearance, notice of accusation under Section 251, Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") was framed against the accused on 28.07.2015. In reply to the notice of accusation, the accused pleaded not guilty and claimed trial. He further stated, "Yes, the cheques in question were given to the complainant at the time of delivery of goods. However, it later turned out CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 2 of 15 that the goods were not as per specification and under value, low quality standards."
3. The accused was allowed to cross-examine the proprietor of the complainant vide order dated 28.07.2015 and the cross-examination of the complainant was closed vide order dated 20.01.2016.
4. During the trial, the complainant has led the following oral and documentary evidence against the accused to prove his case beyond reasonable doubt-:
ORAL EVIDENCE CW 1 : Vijay Saini (Proprietor of the Complainant) DOCUMENTARY EVIDENCE Ex. CW1/1 : Cheque bearing no. 048047 dated 27.08.2014 for a sum of Rs. 25,000/-
Ex. CW1/2 : Cheque bearing no. 048049 dated 27.08.2014 for a sum of Rs. 25,000/-
Ex. CW1/3 : Return Memo dated 16.10.2014
Ex. CW1/4 : Return Memo dated 16.10.2014
Ex. CW1/5 : Legal Demand Notice dated 29.10.2014
Ex. CW1/6 : Postal Receipt dated 29.10.2014
Ex. CW1/7 : Courier Receipt dated 29.10.2014
Ex. CW1/8 : Tracking report
Ex. CW1/9 : Ledger Account of the accused from the period
01.04.2014 to 29.11.2014
Ex. CW1/A : Pre-Summoning Evidence by way of affidavit
of complainant
5. Before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against it, the statement of the accused was recorded without oath under Section 313 on 31.03.2016. In reply, the accused stated that, "I have no legal liability as I had suffered huge loss due to CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 3 of 15 defective items and the cheque was given as a security to the firm and the firm was duly informed not to present the cheques."
6. Pursuant thereto, the accused has led the following oral evidence in its defence-:
ORAL EVIDENCE DW 1 : Mr. R.P. Garg, General Manager, Associated Electronics Research Foundation, C-53, Phase-II, Noida DOCUMENTARY EVIDENCE Ex. CW1/C1 : Copy of the email dated 28.08.2014 from the accused to the complainant Ex. CW1/D1 & : Copy of the Sale invoices dated Ex. CW1/D2 08.10.2014 Mark CW1/ D3 : Electrolyte capacitor of Sancon CD268+105 (degree) C, 63V 100mfd Ex. CW1/D4 : Test Report dated 17.11.2015 on fuse and capacitor issued by Associated Electronics Research Foundation, Noida, Uttar Pradesh
7. The final arguments were addressed by the Ld. Counsel for complainant and the Ld. Counsel for the accused via video conferencing. I have heard the Ld. counsel appearing for both the parties and have given my thoughtful consideration to the material appearing on record.
ARGUMENTS-
8. The Ld. Counsel for the complainant has argued that all the ingredients of the offence under section 138 NI Act are fulfilled and the complainant has duly proved its case. He argued that the complainant and accused had business relations for the sale purchase of the electrical items. The cheques in question were issued by the accused in discharge of his legal liability. He further argued that the complainant is a proprietorship firm as mentioned in the evidence by way of affidavit vide Ex. CW1/A CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 4 of 15 and Mr. Vijay Saini who is the proprietor of the complainant had deposed on behalf of the complainant. He further argued that the defence of the accused that the goods were defective is without any substance as the goods were tested from a private laboratory which cannot be relied upon. He submitted that the test report dated 17.11.2015 vide Ex. CW1/D4 cannot said to be the sole factor for deciding the low quality of the goods as according to the international standards, there can be a fluctuation of 20% of the approved value in the readings, and that the given observation readings shall be treated at par with the approved quality standard. He further submitted that the said test report could not have been produced in court without the written permission of the authorized signatory of the lab. He also submitted that the test report cannot be admitted in evidence as DW1 who was called to verify the report as he was not the part of the testing process rather dealt only with the accounts and finance department of the laboratory.
9. He further argued that email dated 28.8.2014 vide Ex. CW1/C1 issued by the accused to the complainant does not mention any debit note or invoice regarding the goods which were returned to the complainant and thus, the same cannot be relied upon.
10. As such, the Ld. Counsel for the complainant prays that the accused be convicted for the offence under section 138 of NI Act.
11. Per contra, the Ld. Counsel on behalf of the accused submitted that the complaint can only be filed either by a legal person or a natural person.
He argued that in the instant case, it is not clear as to in what capacity the complaint has been filed by the complainant and as such, no document, either board resolution or any authority letter had been placed on record to show the capacity of the complainant. He argued that the complaint is not maintainable in the present form.
12. The Ld. Counsel for the accused submitted that there is no legal liability of the accused as the goods supplied to the accused were not of the approved quality and were of low standard and that the accused had duly intimated to the complainant about the defective nature of the goods vide email dated 28.08.2014 vide Ex. CW1/C1. He further argued that the accused had also asked the complainant to take back the defective material from him and return the cheques in question issued by the accused in favour of the complainant. He also submitted that the said email had been placed on record by the accused in cross-
CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 5 of 15examination of the complainant i.e. CW1 which clearly showed that the complainant had no intention to disclose the fact of intimation by the accused about the defective goods before this court, which implies that the complainant had not approached the court with clean hands. He further submitted that the complainant was aware of the defective nature of the goods before the cheques in question were presented to the bank for encashment as the cheques in question were dishonoured vide return memos dated 16.10.2014 vide Ex. CW1/3 and Ex. CW1/4, which is the date after the complainant was duly informed about the defective nature of the goods via email dated 28.08.2014 vide Ex. CW1/C1.
13. The Ld. counsel for the accused submitted that the complainant had admitted in his cross-examination that the goods have been received back by the complainant from the accused under Ex. CW1/D1. He further submitted that the ledger account of the accused vide Ex. CW1/9 which is maintained by the complainant was forged and fabricated as the returned material of the goods were not reflected as entries.
14. He further argued that the accused had discharged his onus by placing the test report dated 17.11.2015 by Associated Electronics Research Foundation, Noida, Uttar Pradesh vide Ex. CW1/D4 on record which clearly showed that the goods were defective as the report for the fuse came out as "fail" and for electrolytic capacitor as "not satisfactory". He further submitted that argument of the complainant that there can be a fluctuation to the level of 20% plus or minus is vague and without any substance as no evidence had been led to substantiate his argument. He also submitted that the complainant could have produced his own test report to rebut the test report which is Ex. CW1/D4 , however, he has failed to produce the same.
15. As such, it is prayed that the accused be acquitted for the offence punishable under section 138 of the Negotiable Instruments Act.
INGREDIENTS OF OFFENCE AND DISCUSSION-
16. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 6 of 15 must fulfil all the essential ingredients of the offence. Perusal of the bare provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
APPRECIATION OF EVIDENCE-
17. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled.
18. Notably, there is no dispute at bar about the proof of first, third, fourth and fifth ingredient. The complainant has proved the original cheque, Ex. CW1/4 which the accused had not disputed as being drawn on the account of the accused. It was not disputed that the cheques in question was presented within its validity period. The cheques in question were returned unpaid vide return memos Ex. CW1/3 and Ex. CW1/4 due to the reason, "funds insufficient". The complainant has proved on record the legal notice dated 29.10.2014 vide Ex. CW1/5, postal receipts vide Ex. CW1/6, courier receipt vide Ex. CW1/7 and Tracking report vide Ex. CW1/8. As such, on the basis of the above, the first, third, fourth and fifth ingredient of the offence under Section 138 NI Act stands proved against the accused.
CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 7 of 1519. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. In the present case, the issuance of the cheques in question by the accused is not denied. As per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
20. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
21. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 8 of 15
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
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 they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
22. The presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumption are discussed below:
I. DEFENCE THAT THE COMPLAINT HAS NOT BEEN FILED BY THE AUTHORZED PERSON It is the case of the accused that the complaint was neither filed by any authorized person nor any document has been produced to show in what capacity the complaint has been filed by the complainant, and thus the complaint is liable to be dismissed on the ground that the complaint has not been filed by any authorized person.
In the present case, the complaint was filed through the proprietor of the complainant, Mr. Vijay Saini as mentioned in the evidence by way of affidavit vide Ex. CW1/A. It is pertinent to note that a proprietorship firm does not have any independent legal entity of its own and the case can be filed through its proprietor only. Perusal of the memo of parties filed by the complainant reveals that the name of the proprietor has not been mentioned therein, however, the same has been mentioned in the evidence by way of affidavit vide Ex. CW1/A which is not in dispute. Moreover, even if though no document has been placed on record to show that the said Mr. Vijay Saini is the proprietor of the complaint, there are sufficient evidences CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 9 of 15 on record to show that he was closely connected with the affairs of the firm and was well aware of the transactions that took place between the complainant and the accused.
It is a well settled law that the complaint is maintainable even though the same is filed without the authorization of the company if the representative who had brought the complaint was closely connected with the affairs of the company. A reliance be placed upon the judgment of the Hon'ble Madras High Court in S. Sankaran v. Emkay Aromatics Limited [2001] 107 Comp Cas 130 Mad wherein it has been held as under, ". . . that the complaint is maintainable even though filed without the authorization of the company, since the representative who had brought the complaint was closely connected with the affairs of the company. A Director or a Manager or any person connected with the affairs of the company on being aggrieved in respect of the offence under the NI Act, can approach the court even without any authorization to file the complaint on behalf of the company."
Therefore, the defence of the accused that the complaint was not filed by the authorized person does not hold good in the eyes of law as it is without any substance and merit.
II. DEFENCE THAT THERE IS NO LEGAL LIABILITY OF THE ACCUSED It is not in dispute that the goods were supplied to the accused by the complainant. It is the case of the accused that the goods supplied to the accused were not of the approved specification and were of low-quality standard and that the accused duly intimated to the complainant i.e. CW1 about the rejection of goods on the ground that their quality was not satisfactory.
At this stage, it is pertinent to note sections 42 and 43 of the Sales of Goods Act,1930 (hereinafter referred to as, "SOGA") which states as to when the buyer is deemed to have accepted the goods and that when the buyer is not bound to return the rejected goods. The same are reproduced as below:
" Section 42- Acceptance: The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him and he does any act in CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 10 of 15 relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. Section 43- Buyer not bound to return rejected goods: Unless otherwise agreed, where goods are delivered to the buyer and he refuses to accept them, having the right so to do, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them."
Now, coming to the present case, it is pertinent to note that the accused vide email dated 28.08.2014 which is Ex. CW1/C1, intimated the complainant that the material supplied by the complainant was not as per the approved quality and asked the complainant to take the defective material back and further demanded the return of the cheques in question issued by the accused in favour of the complainant for the goods supplied. Admittedly, the accused has not placed on record any certificate under section 65B of the Indian Evidence Act, 1872 along with the copy of the email which has been exhibited as Ex. CW1/C1 and also the complainant had not raised any objection with regard to either the admissibility or mode of proof of the copy of the said email at any stage of the trial. Moreover, CW1 in his cross-examination had admitted that the accused had given quality complaint with regard to the material sold to the accused by the complainant through the said email. As the genuineness of the email vide Ex. CW1/C1 is not in dispute, the same stands proved. Also, CW1 in his cross-examination had also admitted that the goods have been returned back to him vide Ex. CW1/D1. Further, it is to be noted that on the one hand, the witness had admitted the email which is Ex. CW1/C1 as produced by the accused which clearly specifies the reason for the rejection of the goods i.e. due to the low-quality of the goods while on the other hand, CW1 in his cross-examination had stated that the goods were returned to the complainant for the reason that the material had been received back by the complainant as the order of the accused had been cancelled from their customer. Thus, it clearly shows that the accused had intimated his intention to reject the goods before the cheques in question were presented in the bank vide Ex. CW1/C1 and the testimony of the complainant cannot be relied upon.
From a bare reading of section 42 of the SOGA, it is clear that the accused could be deemed to have accepted the goods only if he had intimated the seller about such acceptance or did any act which is inconsistent with the ownership of the seller or retained the good without intimating to the seller. In the instant case, the accused does not fall under any of the three CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 11 of 15 categories as mentioned in section 42 of SOGA as he had duly intimated the complainant about the rejection of goods and the same were returned as has been admitted by CW1 in his cross-examination vide Ex.DW1/D1. With regard to the goods which are exhibited under Ex.DW1/D2, the complainant refused to accept the goods as they were used. It has come on record from the testimony of CW1 that the material was supplied in a sealed pack and no testing could be done on the part of the complainant before the goods were supplied to the accused. Thus, it is clear that without using the goods, the same cannot be examined as to their quality. Now, only because the complainant refused to accept the defective goods, the liability cannot be imposed upon the accused for no fault of his. Even otherwise, if the goods would not have been returned to the complainant then also the accused was not liable to return the goods as mere intimation of the rejection of the goods is sufficient as per section 43 of the SOGA. Hence, it is clear that the accused had not accepted the goods which were supplied by the complainant as per section 42 of the SOGA. The next question which arises for consideration is whether this court has the power to decide that the goods supplied by the complainant were defective in nature or not? A reliance be placed on the judgment of the Hon'ble Delhi Court in Amit Poddar v. State 2011 I AD (Crl.) DHC 239 and TSN Marketing (India) Ltd. v. M/s Super Domestic Dust Busters (P) Ltd. 2009 (4) C.C. Cases (HC) 135, wherein it was observed that the Magistrate can go into the question whether the goods supplied were defective, inferior quality, short or not according to the specification as per contract to attract the legal liability under section 138 of the NI Act. In the present case, the accused had brought the test report dated 17.11.2015 by Associated Electronics Research Foundation, Noida, Uttar Pradesh vide Ex. CW1/D4, which shows that the goods were not at par with the approved quality of the goods. The complainant in his cross- examination stated that he can produce the test report to rebut the report produced by the accused, however, no cogent evidence has been led by the complainant to rebut the veracity of the report. The Ld. Counsel for the complainant has also made bald assertions that fluctuation of 20% is permissible in the readings as provided in the test report, however, he has not produced any substantive evidence with regard to the same. Moreover, the contention of the complainant that the test report cannot be relied upon as the goods were tested from a private laboratory does not hold good as the complainant has himself not produced any report which supports his plea.
CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 12 of 15The contention of the Ld. counsel for the complainant that the defence witness, DW1 who had brought the summoned test report, was not part of the testing process rather DW1 was from the account and finance department and thus the test report cannot be relied upon. It is pertinent to note that DW1 has deposed on oath that the test report was prepared in his laboratory and as per the test report, two electric components were tested wherein the report of the fuse was fail and the report on electrolytic capacitator was not satisfactory. The Ld. Counsel for the complainant cross-examined DW1, however, neither any question nor any suggestion was put to DW1 regarding his authority to testify about the genuineness of the report. Thus, since DW1 has verified the contents of the test report which has not been rebutted by the complainant, the same stands proved. Moreover, the complainant in his cross-examination has admitted that there can be a fluctuation in readings of the product but he has not led any cogent evidence to substantiate his argument. Thus, it can be said that on the basis of the evidences available on record and testimonies of the witness, the goods were defective in nature and were not at par with the required specifications.
In light of the aforesaid discussion, this court is of the considered view that the accused has led probable defence to prove that there was no legal liability which existed against the accused in favour of the complainant.
III. DEFENCE THAT THE CHEQUES IN QUESTION WERE NOT ISSUED FOR THE DISCHARGE OF THE LEGAL LIABILTY The accused in his statement under section 313 CrPC has stated that the cheques were given to the complainant as a security to the complainant and the complainant was informed not to present the same as the accused had no legal liability towards the complainant as the goods were found to be defective in nature. In the instant case, the accused has raised a probable defence that the accused had rightly rejected the goods as the same were found to be defective which the complainant has also not been able to rebut it. It is a well settled law that to attract the offence under section 138 of NI Act, the legal liability should exist on the date when the cheque is presented. A reliance be placed on the judgment of the Hon'ble Delhi High Court in the case of Credential Leasing & Credits Ltd. vs Shruti Investments & Anr. 2015 SCC OnLine Del 10061, wherein it was observed as under, CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 13 of 15 "28. In my view, therefore, the scope of Section 138 NI Act would cover cases where the ascertained and crystallised debt or other liability exists on the date that the cheque is presented, and not only to case where the debt or other liability exists on the date on which it was delivered to the seller as a post-dated cheque, or as a current cheque with credit period. The liability, though, should be in relation to the transaction in respect whereof the cheque is given, and cannot relate to some other independent liability. If, on the date that the cheque is presented, the ascertained and crystallised debt or other liability relatable to the dishonoured cheque exists, the dishonour of the cheque would invite action under Section 138 NI Act. There could be situations where, for example, an issue may be raised with regard to the quality, quantity, deficiency, specifications, etc. of the goods/services supplied, or accounting. It would have to be examined on a case-to-case basis, whether an ascertained or crystallised debt or other liability exists, which could be enforced by resort to Section 138 NI Act, or not."
In the present case, the complainant on the one hand had stated the complainant used to take security cheques for the goods sold by the complainant to the accused while on the other hand had stated that cheques in question were taken after the goods were supplied to the accused and checking of the goods. As CW1 had taken a contradictory stand as to whether the legal liability existed on the date when the cheques in question were given to the complainant, the testimony cannot be relied upon. It is also clear that the legal liability will deem to arise when the accused had accepted the goods after checking as to whether the goods are satisfactory. Further, as per the testimony of CW1, the cheques in question were issued in the month of July, 2014 and the accused had intimated in writing to the complainant about the rejection of goods in the month of August, 2014, thus, the accused rejected the goods within a period of reasonable time. Thus, it can be said that on the date when the cheques in question were presented to the bank, there was no legal liability as the accused had rightly rejected the goods on the ground that the same were found to be defective.
Therefore, the accused has been able to establish that the cheques in questions were not issued for the discharge of their legal liability on the standard of preponderance of probabilities.
CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 14 of 15CONCLUSION
23. To recapitulate the above discussion, the accused has been successful in establishing a probable defence on a standard of preponderance of probabilities and has successfully rebutted the presumption raised under section 118 and section 139 of the NI Act by punching holes in the case of the complainant and making the version of the complainant doubtful. It is a well settled law that cogent evidence is required to be proved beyond reasonable doubt to secure conviction in a criminal trial, which the complainant has miserably failed in the instant case. The accused has been successful in establishing a probable defence from the evidence of the complainant and the circumstances of the case that there was no legal liability of Rs. 25,000/- each i.e., total amounting to Rs.50,000/-.
24. As such, the complainant has failed to prove the offence beyond reasonable doubt and the accused has been able to raise a probable defence. Resultantly, the complaint of the complainant is dismissed and the accused, Vinayak Electricals (India) is hereby acquitted of the offence under section 138 of the NI Act.
Digitally signed by KRATIKAAnnounced in the open court KRATIKA CHATURVEDI
CHATURVEDI Date:
2021.02.19
on 18.02.2021 16:17:37 +0530
(Kratika Chaturvedi)
MM, NI Act-04, Central District, THC
18.02.2021
Note:-This judgment contains 15 pages and each page has been signed by me.
CC No. 526910/16 M/s V.J. Electro Sales v. Vinayak Electricals Page 15 of 15