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[Cites 20, Cited by 0]

Delhi District Court

Of Rangappa vs Mohan, Air 2010 Sc 1898, Are Noteworthy ... on 30 September, 2014

                  IN THE  COURT  OF MS. JASJEET KAUR
               CIVIL JUDGE­I/ METROPOLITAN MAGISTRATE
                               NEW DELHI

CC. No. 69/13
Unique ID No. 
Vardhman Cloths Stores Pvt Ltd.
Through its directors
Mr. Rakesh Kumar Jain and Mr. Jai Pal Jain
R/o 4015 Main Road, Shanti Mohalla,
Gandhi Nagar, Delhi­110031                                        ...Complainant
                                                              
                                     Versus
(i) Sanvi Weavetx Ltd
Through its directors
Mr. Sanjay Gupta and Mr. Vijay Gupta
301 to 304 Aditya Complex II,
D Block Flat no­7,
Prashant Vihar, New Delhi­85.

(ii) Sanjay Gupta
Director of M/s Sanvi Weavetex Ltd.
R/o 426, Dipali Pritam Pura,
New Delhi.

(iii) Vijay Gupta
Director of M/s Sanvi Weavetex Ltd.
R/o 426, Dipali Pritam Pura,
New Delhi.                                                        ... Accused 

                                               Date of Institution: 20.08.2009
                                  Date of Reserving Judgement: 30.09.2014
                                              Date of Judgement: 30.09.2014
                                     JUDGEMENT

1. The brief facts of the present case from the perspective of the complainant as discernible from the complainant are that the complainant is a private limited company duly incorporated under the Companies Act and is engaged in the business of manufacture and sale of clothes and textiles CC No. 69/13 1/32 under the name and style of Vardhman Cloths Pvt. Ltd. and the accused company Sanvi Weavetx Ltd was a regular customer of the complainant company. It is the case of the complainant that accused Sanjeev Gupta and Vijay Kumar Gupta were responsible for all acts of the accused company being directors of the accused company and the accused company had purchased clothes and textiles materials from the complainant company from time to time in respect of which bills and invoices were raised by the complainant company.

2. It is further the case of the complainant that during the ordinary course of business the accused company had incurred liability to pay outstanding dues of Rs.4,60,648/­ to the complainant and had issued two cheques bearing number 002408 and 002409 both drawn on Bank of India, Barakhamba Road, Delhi in the sum of Rs.2,00,000/­ each as part payment towards the said outstanding dues. However, the said cheques were dishonoured upon presentation. While the cheque bearing number 002408 was dishonoured due to stoppage of payment by the drawer, that is, by accused Sanjeev Kumar Gupta (name of the accused is mentioned as Sanjay Gupta in the complaint and the accused had disclosed his correct name as Sanjeev Kumar Gupta at the stage of recording of statement under Section 313 Cr.PC), whereas the cheque bearing number 002409 was dishonoured upon presentation due to insufficiency of funds in the account of the accused company vide return memos dated 04.07.2009. Thereafter, the complainant has claimed to have issued legal notice dated 17.07.2009 calling upon the accused persons to make payment of the cheque amount of the two dishonoured cheques. Consequent upon the failure of the accused persons to make payment of the amount stipulated in the two dishonoured cheques within 15 days of receipt of legal notice, the CC No. 69/13 2/32 complainant was compelled to file the present complaint against the accused company and the two accused persons for the alleged commission of offence punishable under section 138 of Negotiable Instruments Act 1881 (herein after referred to as NI Act).

3. Upon receipt of the complaint by way of assignment, the learned predecessor court had directed the complainant to lead pre­ summoning evidence. The complainant company had examined one witness in support of its case, namely, CW1 Rakesh Kumar Jain who had deposed by way of affidavit Ex.CW1/1 and had relied upon the following documents in support of his case including the two dishonoured cheques Ex.CW1/A and Ex.CW1/B issued by the accused Sanjeev Kumar Gupta towards payment of outstanding dues, the return memos Ex.CW1/C and Ex.CW1/D issued by the concerned bank in respect of dishonour of the above mentioned cheques, legal notice dated 17.04.2009 Ex.CW1/E whereby the complainant had called upon the accused to make payment of the cheque amount stipulated in the two dishonoured cheques postal receipts Ex.CW1/F and Under Postal Certificate (UPC) receipt Ex. CW1/G as the proof of dispatch of legal notice as well as the return envelope Ex.CW1/H and Acknowledgment card Ex.CW1/I. After a perusal of oral and documentary evidence produced by the complainant, the learned Predecessor Court had summoned the accused persons to face trial for the commission of offence punishable under section 138 of NI Act vide order on summoning dated 22.08.2009.

4. During the course of trial, notice of accusation under section 251 of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.PC) was served upon the two accused persons for the alleged commission of offence punishable u/s 138 NI Act on 07.05.2012 to which CC No. 69/13 3/32 the accused persons had pleaded not guilty and had claimed trial. Accused no. 2 Sanjeev Kumar Gupta had admitted that he had signed the cheque in question. He had however claimed in his defence that the particulars on the cheque in question had not been filled by him and the amounts mentioned on the cheques in question had already been paid to the complainant. He further claimed that a sum of Rs.2,00,000/­ had been paid to the complainant by means of a cheque and another sum of Rs.1,00,000/­ had been paid to the complainant by way of a demand draft and whereas material worth Rs. 1,00,000/­ had been returned to the complainant by the accused company. Accused no. 3 Vijay Gupta had on the other hand claimed that he had neither signed the cheques in question nor filed the particulars of the said cheques. He had also claimed that the payment of amount mentioned on the two cheques had also been duly made to the complainant company and the accused company was not liable to pay anything to the complainant company. Accused no. 3 had also claimed in his defence that a sum of Rs.200000/­ had been paid to the complainant company by means of another cheque whereas a sum of Rs.1,00,000/­ had been paid to the complainant company by a demand draft and goods worth Rs.1,00,000/­ had been returned to the complainant company.

5. Upon the accused persons pleading not guilty to the notice under section 251 Cr.PC served upon them, an opportunity was given to the complainant company to prove its case by leading evidence in support of the same. Complainant company examined two witness in order to prove its case. A brief account of the depositions made by the witnesses of the complainant is reproduced below.

6. CW1 Rakesh Kumar Jain deposed by way of affidavit Ex.Cw1/1 wherein he had reiterated the facts narrated in the complaint.

CC No. 69/13 4/32

CW1 proved on record the following documents including the two cheques in question Ex. CW1/A and Ex.CW1/B respectively, return memos Ex.CW1/C and Ex.CW1/D issued by the bank of the complainant in respect of dishonour of the said two cheques Ex.CW1/A and Ex.Cw1/B respectively, legal notice dated 17.07.2009 Ex.CW1/E, postal receipts and UPC receipt in respect of dispatch of legal notice Ex.CW1/F and Ex.CW1/G respectively, return envelop Ex.CW1/H in respect of return of legal notice unserved and acknowledgment card Ex.CW1/I respectively in respect of service of legal notice to the accused persons.

7. In his cross examination by Sh. Satish Bhatti, learned counsel for the accused persons, CW1 deposed that he had joined the complainant company as a Director in the year 2007 after the death of his father. He denied the suggestion that there was no business dealing between the complainant and the accused for the last 10 years. He deposed that the two accused persons were the directors of the accused company and were in the habit of changing their companies. He produced bills and invoices in respect of transactions with the accused company Ex.CW1/D1 (running into 10 pages) and clarified that delivery of the goods had been made to the accused persons against the said bills. He, however, stated that on some occasions challans were sent along with the bills. He denied the suggestion that page number 1 of bills Ex.CW1/D1 was not issued against the accused company and therefore, the said bill did not contain the name of the accused company. He clarified that there was merely a spelling mistake in writing the name of the accused company on page number 1 of Ex.CW1/D1. He admitted that whenever goods were supplied to the accused company, it used to make endorsement on the back side of bill by affixing stamp of receipt of goods. He, however, clarified that sometimes the CC No. 69/13 5/32 Directors of the accused company used to receive the goods personally and on all such occasions no stamp was affixed by the accused company on the back side of the bill. He denied the suggestion that complainant company had taken stamp of receipt of goods mentioned in the bill number 1622 at page 8 of CW1/D1 without supplying the goods to the accused company and subsequently also no goods were supplied to the accused company. He could not tell whether the accused company used to receive all the goods on one day and issue receipt of goods on next day or not. He, however, clarified that the receiving was generally given to the tempo driver and therefore, he was not in a position to tell as to when the receiving was given by the accused persons. He denied the suggestion that bills on page no. 1,5,6,7,9 and 10 of Ex.CW1/D1 were forged and fabricated bills. He expressed his inability to tell whether any reconciliation of accounts between the parties used to take place half yearly or annually. He, however, voluntarily stated that accountant used to tell the balance amount due from the accused and he used to go to the accused company to demand payment of the outstanding dues. He denied the suggestion that the cheque in question was a security cheque given by the accused company at the time of commencement of transactions between the complainant and the accused company. He proved on record the statement of account of complainant company Ex.CW1/D2 (colly), the certificate issued by the chartered accountant of complainant company Ex.CW1/D3 and statement of ledger account of complainant company Ex.CW1/D4. He deposed that he had not received any payment from the accused company after 04.07.2009 either through cheque or in cash or by way of any demand draft. He denied the suggestion that payment in respect of bills raised for the period between 01.04.2008 and 31.03.2012 was more than the amount of CC No. 69/13 6/32 the bills raised and therefore, the accused company had no liability towards the complainant company. He stated that on the contrary, there was a previous debit balance of Rs.9,90,104/­ for the period ending on 10.03.2008 and therefore, there was still outstanding liability against the accused. He claimed that he had not annexed bills in respect of voucher number 120 dated 21.07.2008 in the sum of Rs.2,48,593/­ because the accused had handed over to him a demand draft in the sum of Rs.2,00,000/­ against the above mentioned transaction of Rs.2,48,593/­ and the same had been reflected in the ledger account of his company vide entry dated 27.03.2009. He stated that he had not agreed to accept the payment of Rs.2,00,000/­ against due amount of Rs.2,48,593/­ but had merely accepted the demand draft in the sum of Rs.2,00,000/­ as the accused had made a request that the accused had made payment from some other account of his company and wanted the same to be adjusted as part payment towards the liability to repay a sum of Rs.2,48,593/­. He admitted that his company had not supplied any goods or material to the accused or his company after December 2008. He expressed his inability to tell whether any pay order bearing number 014435 dated 23.03.2010 in the sum of Rs.1,00,000/­ was received by his company on 23.03.2010 or not on the ground that no such demand draft had been reflected in the ledger account of his company. He denied the suggestion that he had subsequently prepared bills Ex.CW1/J to Ex.CW1/T. He further denied the suggestion that the stamp of accused company affixed on Ex.CW1/P and Ex.CW1/D1 (collectively) were different because stamps affixed on said documents Ex.CW1/P and Ex.CW1/D1 were fake and did not belong to the accused company.

8. CW2 Jagdish Salvan, Manager Citi Bank, Jeevan Bharti Building, Connaught Place, New Delhi produced the statement of account CC No. 69/13 7/32 of complainant company Vardhman Cloth Store Pvt. Ltd Ex.CW2/1 bearing account number 0433066227 and certified copies of cheque bearing number 002408 dated 15.01.2009 Ex.CW2/3 and cheque bearing number 002409 dated 25.01.2009 Ex.CW2/4 in the sum of Rs. 2 lacs each along with a certificate under section 2A of Bankers Bank Evidence Act 1891 Ex.CW2/2. Both accused persons had not availed the opportunity given to them by the Court to cross examine CW2.

9. After the complainant closed its evidence, statement of both accused persons, namely, Sanjeev Gupta and Vijay Gupta under section 313 Cr.PC was recorded on 16.04.2013 wherein an opportunity was given to both the accused persons to explain all the incriminating circumstances that had appeared against them in the evidence of complainant company. The accused persons had denied all the incriminating circumstances that were put to them and had claimed to have been falsely implicated in the present case. Accused Sanjeev Gupta claimed in his defence that he was not liable to pay the sum of Rs.4,60,648/­ to the complainant company and on the contrary, the complainant company was liable to pay a sum of Rs.40,000/­ or Rs.50,000/­ to the accused company because an advance of Rs.3,00,000/­ had been given by way of two cheques to the complainant company and they had received material of lessor value therefore, the complainant company was liable to pay Rs.40,000/­ to Rs.50,000/­ to the accused company. He further claimed that the cheques in question were issued as a security cheques in undated condition without filing the contents of the same and had been misused by the complainant company. He claimed that he had not received any legal notice. Accused Vijay Gupta had also claimed in his statement u/s 313 Cr.PC that although he used to deal with the complainant company however, he was working in the sales CC No. 69/13 8/32 department of his company and was not aware about the nature of transactions of the accused company with the complainant company as he used to sit at the Prashant Vihar office of accused company in Delhi whereas the transaction between the complainant and the accused had been carried out from Kundli, Haryana office of the accused company. He also claimed in his defence that the cheques in question had been issued as security cheques by his brother Sanjeev Gupta and the same had been misused by the complainant company. Accused Vijay Gupta also claimed in defence that he had not received any legal notice. Both accused persons had preferred to lead evidence in their defence. Accused Vijay Gupta had examined himself as DW1 in the defence of two accused persons.

10. DW1 Vijay Gupta deposed in his examination in chief the accused company had not been functioning for the last three years and had been declared a non performing asset (NPA) by principal borrower bank, that is, Bank of India which had taken over the accused company under the provision of section 13 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (herein after referred to as SARFAESI Act). He deposed that the cheques in question Ex.CW1/A and Ex.CW1/B were not signed by him and the complainant company had taken the said cheques as advance security cheques from the accused company because the accused company used to purchase clothes from the complainant company. He stated that complainant company used to procure clothes from Southern states of India. However, the complainant company had pointed out that due to strike in South India, the delivery of cloth would be delayed and the same would be available at a premium. He stated that since the complainant and the accused were in trade regularly therefore the advance payment made by the accused company had CC No. 69/13 9/32 remained with the complainant company which had assured to supply the material to the accused company subsequently. However, since the delivery of material was delayed therefore they had stopped the payment of the cheques in question and the complainant company had assured to return the cheques of the accused persons. However, the complainant company had presented the cheques in January 2009. He further claimed that the complainant company had assured the delivery of material and therefore, they had paid a sum of Rs.2 lacs in March, 2009 by way of cheque in anticipation of delivery. However, no material was received by them. He stated that thereafter complainant company had informed them that supplier was asking for complete payment of Rs. 4 lacs and only then the material would be released and therefore they had given a sum of Rs. 1 lac by way of bank draft drawn on Central Bank of India to the complainant company. However, even thereafter no material was received by them. He stated that there were many bills pertaining to previous accounts in respect of which no material was received by them. He further stated that on 04.06.2010, premises of his company was taken over by the borrower bank and therefore, they could not take any action against the complainant company. He deposed that they had no liability to pay to the complainant and on the contrary, they had to recover a sum of Rs.7­8 lacs from the complainant as no material of equivalent value was supplied to them.

11. In his cross examination by Sh. Ajay Sahni, learned counsel for complainant, DW1 deposed that he was a director of the accused company. He stated that the company, named, Weavetex India Limited was in existence from 2003 to 2005 and he was a Managing Director in the same. However, subsequently the name of the said company was changed to Sanvi Weavetex Ltd. He deposed that he was a Director of RCG CC No. 69/13 10/32 Weavetax Pvt Ltd in the year 2006­07. However, the said company was no longer in operation and its assets had been taken over by Bank of India under SARFAESI Act. He further deposed that he was not related to Weavetex Global Industries and Weavetex Exporters. He stated that he was not a sleeping director in the accused company but was only looking after Overseas department of the accused company and except for knowing about quality products and products sales, he was not involved in domestic transaction. He, however, stated that he used to participate in the meetings of Board of directors related to domestic transactions. He claimed that Rs. 1 lacs had been given to the complainant by way of a demand draft and remaining amount of Rs.1 lacs had also been adjusted as goods of same value had been returned to the complainant. He stated that without looking at the books of accounts, he was not in a position to tell whether Rs.7 or 8 lacs were supposed to be recovered from the complainant or not. He denied the suggestion that he had no personal knowledge about the rates and quality of cloth material agreed to in the transactions between the complainant and the accused. He claimed that the same used to be discussed in the meetings of Board of directors. He stated that while operating from Prashant Vihar Office of the accused company he had knowledge about the details of deliveries received by the factory of the accused company at Kundli, Haryana. He expressed his inability to produce minutes of board meetings of the accused company as well as account statement of his company showing outstanding dues of Rs.7­8 lacs payable by the complainant company on the ground that same were in the possession of Bank of India, Barakhamba Road which had sealed the premises of the accused company situated at Kundli, Haryana. He expressed his inability to tell whether any degraded material was returned CC No. 69/13 11/32 to the complainant company at any point of time or not. He stated that he had not received any legal notice prior to the filing of the present complaint. He also stated that 301 to 304, Aditya Complex Second, D­Block, Plot No. 7, Prashant Vihar, New Delhi­85 was the registered office of his company during the year 2008­09.

12. After the accused persons closed their evidence, final arguments have been heard from Sh. Ajay Saini, learned counsel for the complainant and Sh. Satish Bhatti, learned counsel for the accused persons on 30.09.2014.

13. Learned counsel for the complainant has argued that the complainant company has successfully proved its case against the accused company and the two accused persons by examining two witnesses. It has been submitted by the learned counsel for the complainant that CW1 Rakesh Kumar Jain has fully supported the case of complainant company by deposing that accused company had purchased clothes and other textile materials from the complainant company against the bills and invoices raised by the complainant and accused Sanjeev Kumar Gupta had issued two cheques bearing no. 002408 dated 15.01.2009 and 002409 dated 25.01.2009 Ex.CW1/A and Ex.CW1/B respectively in discharge of his liability to pay outstanding dues towards the sale price of textile materials purchased by the accused company. Learned counsel for the complainant has further argued that the cheques Ex.CW1/A and Ex.CW1/B were dishonoured on account of stoppage of payment by the accused and insufficiency of funds in the account of the accused respectively vide return memos Ex.CW1/C and Ex.CW1/D respectively. It has been further submitted by counsel for the complainant that the accused persons had failed to pay the cheque amount within 15 days of service of legal notice CC No. 69/13 12/32 upon them and therefore, the accused persons deserved to be held guilty for the commission of offence punishable under section 138 NI Act.

14. Learned counsel for accused persons has on the other hand advanced following arguments in defence of the accused persons.

15. Firstly, learned counsel for accused persons has argued that the cheques in question were handed over by the accused Sanjeev Gupta to the representative of the complainant company as security cheques for purchase of textile materials from the complainant company however due to strike in South India, the complainant company could not supply any clothes to the accused company and therefore, accused persons were not liable to pay the cheque amount to the complainant company. However, the representative of the complainant had misused the cheques in question by filing the particulars including the cheque amount, the date and name of the beneficiary on their own. Therefore, learned defence counsel has submitted that the two accused persons cannot be held guilty on the basis of forged or manipulated cheques on which the particulars had been filled by the employees of the complainant company.

16. Secondly, it has been argued in defence of the accused persons that the complainant company has failed to produce bills in respect of transaction worth Rs.2,48,593/­ dated 27.07.2008 vide sale voucher no. 120 as per Ex.CW1/D4. Therefore, learned defence counsel has submitted that complainant company has failed to prove the liability of the accused to pay a part of the total amount of the two cheques, that is, a sum of Rs.2,48,593/­ because no bills corresponding to the said amount of Rs.2,48,593/­ had been placed on record by the complainant. Hence, when a part of the liability to pay the cheque amount has not been duly proved by the complainant, then the accused persons cannot be held guilty for the CC No. 69/13 13/32 commission of offence punishable under section 138 NI Act in respect of liability to pay the cheque amount because the offence u/s 138 NI Act pertains to liability of the accused to repay the exact cheque amount to the complainant and does not pertain to the liability to pay any part of the cheque amount. Hence, the accused persons deserves to be acquitted on account of failure of the complainant company to produce bill of transaction of Rs.2,48,593/­. Learned counsel for accused has relied upon following judgements in support of his second argument, viz, John K Abrahim v. Simon C. Abraham and another 2014 A CD 560 (SC) and M/s. Total Finaelf India Limited V Smt. Rashmi Parnami 2014 ACD 470 (DEL).

17. I have considered the rival submissions of the parties in respect of above mentioned arguments of the accused persons. I shall now examine the two arguments advanced by the learned counsel for the accused persons in defence of the accused.

18. Firstly, it has been argued in defence of the accused persons that accused Sanjeev Gupta had not filled the particulars including the cheque amount, the date and the name of the beneficiary on the cheques Ex.CW1/A and Ex.CW1/B and had given the cheques in question as blank security cheques to the representative of the company who had misused the said cheques by filling in the cheque amount date and other particulars on the same and therefore the accused persons cannot be held guilty on the basis of forged or manipulated cheques in which particulars have been filled by the representative of the complainant company.

19. I am not in agreement with the above­mentioned first argument advanced by learned defence counsel. In this context, a perusal of the Court record shows that both accused persons have in their statements under Section 313 Cr.PC stated that the cheques in question CC No. 69/13 14/32 were issued and signed by accused Sanjeev Gupta as security cheques in the year 2008. However, subsequently, no material equivalent to the cheque amount of the cheques in question had been supplied by the complainant company and the officials of the complainant company had misused the un­ dated blank security cheque issued by accused Sanjeev Gupta by filling the contents in the cheques in question. A similar statement was made by accused Vijay Gupta in his examination­in­chief as DW1 wherein he had reiterated that the cheques in question were issued as security cheques for purchase of clothes. Therefore, the accused persons have disputed the handwriting of accused Sanjeev Gupta on the two cheques in question by claiming that accused Sanjeev Gupta had not filled the particulars on the cheque in question including the date, the cheque amount and the name of the beneficiary. However, it has been admitted by the accused persons that accused Sanjeev Gupta had duly signed cheques Ex.CW1/A and Ex.CW1/B. Therefore, the presumption of section 139 NI Act can be drawn against the accused. The provision of section 139 NI Act is reproduced below in this context:­

139. Presumption in favour of holder­It 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.

20. A perusal of the above­cited provision of section 139 of the N.I. Act reveals that the said section contains a presumption in favour of the holder of the cheque and against the drawer whereby it can be presumed that the drawer had issued the cheque in question in discharge of a debt or liability to pay the cheque amount to the holder of the cheque. However, the said presumption is a rebuttable presumption and it has been time and again reiterated by Hon'ble Supreme Court of India that it is upon the CC No. 69/13 15/32 accused to raise a probable defence to challenge or demolish the presumption of the existence of a legally enforceable debt or liability against which the cheque in question had been issued by him. However, when an accused is called upon to rebut the presumption under section 139 N.I. Act, the standard of proof for doing so cannot be equivalent to the standard of proof which rests upon the prosecution in a criminal trial. The accused merely has to prove his defence on the scale of preponderance of probabilities whereas the complainant or prosecution are required to establish their case beyond reasonable doubt. Observations made by Hon'ble Supreme Court of India in Para­14 of the judgement passed in case of Rangappa Vs Mohan, AIR 2010 SC 1898, are noteworthy in this context and are reproduced below:­ "In light of these extracts, we are in agreement with the respondent­ claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused/defendant cannot be expected to discharge an unduly CC No. 69/13 16/32 high standard or proof. In the absence of compelling justifications, reverse onus clause usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."

21. Applying the ratio of the aforecited judgement passed in the case of Rangappa Vs Mohan (Supra) to the fact of the present case, it can be safely concluded that since both accused have admitted that accused Sanjeev Gupta had issued and signed the cheques in question, therefore, a presumption can be drawn that the complainant company had lawfully obtained the cheques from the accused persons and the cheques in question had been issued by accused Sanjeev Gupta in discharge of a legally enforceable debt or liability to pay the cheques amount. However, the said presumption is a rebuttable presumption and if the accused persons are able to disclose a probable defence to the presumption under section 138 NI Act, then it is the duty of the complainant to clarify how the cheques in question were issued in discharge of a legally enforceable debt or liability by the accused persons. The presumption under section 139 of Negotiable Instruments Act can be rebutted by an accused person by raising a probable defence. However, the standard of proof expected from the accused to establish the probability of his defence is not the same as the standard of proof expected from prosecution or complainant in a criminal trial. While the complainant or prosecution is expected to prove its case beyond reasonable doubt. The accused is on the other hand expected to merely prove his defence on the scale of preponderance of probabilities.

CC No. 69/13 17/32

Also, for the purpose of raising a probable defence to rebut the presumption contained in section 139 of NI Act, the accused can either lead evidence of his own or the accused can rely upon the evidence and materials placed on record by the complainant. In the light of this legal proposition, I shall now examine the probability of the above mentioned defence of the accused.

22. It is the defence of the accused persons that the cheques in question were issued by accused Sanjeev Gupta as security cheques for purchase of clothes and textile materials from the complainant company. However, since no material was supplied to the accused company by the complainant company, therefore the accused persons had no liability to pay the cheques amount stipulated in the two cheques in question. However, instead of returning the cheques issued by accused Sanjeev Gupta, the complainant company had misused the same by presenting the same for encashment. In this context, it has been further submitted on behalf of the accused persons that accused Sanjeev Gupta had merely signed the cheques in question when they were blank and the particulars including cheque amount, the date and the name of beneficiary had been filled on the cheque in question by the officials of complainant company.

23. In this context, it is pertinent to mention that the accused persons have led no evidence to prove the defence taken by them. Although, it is the main defence of the accused persons that the cheques in question were issued by accused Sanjeev Gupta in blank condition in favour of the complainant and accused Sanjeev Gupta had not filled the cheques amount, the date or the name of the beneficiary in the same. However, accused persons had not got the cheques in question examined from any handwriting expert in support of their claim that the handwriting on the cheques did not belong to accused Sanjeev Gupta. It is therefore, CC No. 69/13 18/32 noteworthy that the accused persons have merely alleged that the cheques in question had been forged by the officials of the complainant company but have not supported their allegations that the cheques in question were forged or manipulated cheques either by leading independent evidence of their own or by pointing to any evidence led by the complainant or also by relying upon any material or document placed on record by the complaint whereby an inference can be drawn that the cheque amount, date and the name of the beneficiary on the cheques in question Ex. CW1/A and Ex.CW1/B had not filled by the accused persons and the same had been filled or inserted by the employees of the complainant company on the said cheques.

24. In this context, Hon'ble Supreme Court of India had observed in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 that as per the provisions of Section 45, 47 and 73 of the Indian Evidence Act 1872 there were three different modes of proving the handwriting of any person in a litigation. Firstly, the handwriting on any documents can be proved by the admission of the person responsible for writing or executing the document in question. Also, the handwriting of any person on a document can be proved through the testimony of a witness in whose presence the executor of the document had written or signed the same. Secondly, the handwriting of a person on a document can be proved by the testimony of a person who is familiar with the handwriting of the person whose handwriting is in dispute. Besides, as per the provisions of Section 45 of the Indian Evidence Act, the handwriting of a person on a document can be proved by the opinion of a handwriting expert Thirdly, Section 73 of the Indian Evidence Act also provides scope for comparison by the court concerned of a handwriting made in the presence of the court or of any admitted or duly CC No. 69/13 19/32 proved handwriting of the person concerned with the handwriting in dispute. Observations made in this context by the Hon'ble Apex Court in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 in para 10 of the judgement are noteworthy in this context and are reproduced below:

"10. Evidence of the identity of handwriting receives treatment in three sections of the Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert competent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person."

25. Applying the ratio of the abovecited decided case of Fakruddin Vs. State of M.P. (Supra) to the facts of the present case, I am of the considered opinion that if there are three modes of proving the handwriting of any person on a document, then the same three modes can be used for disproving the hand writing of any person on any document. If the accused persons wanted to disprove the handwriting of accused Sanjeev Gupta on the cheques in question, then they should have ideally got the cheques in question examined from a handwriting expert. In the alternative, the accused persons could have produced the person responsible for writing the particulars on the cheques in question along with the admitted handwriting of the said person responsible for writing the particulars of the cheque in question for a comparison by the Court during CC No. 69/13 20/32 the recording of evidence. Even, if the accused persons were not aware about the identity of the third person or employee of the complainant company responsible for writing the particulars on the cheques in question then also accused persons should have at least produced admitted or duly proved hand writing of accused Sanjeev Gupta for comparison with his questioned handwriting by this Court or by any handwriting expert. However, accused persons have chosen neither to get the cheques in question examined from a handwriting expert to prove that the cheques in question had not been filled by accused Sanjeev Gupta and the particulars on the cheques including the cheque amount, date and the name of the beneficiary were not in handwriting of accused Sanjeev Gupta nor have the accused persons had produced any admitted handwriting of accused Sanjeev Gupta for comparison by the Court with the questioned handwriting of accused Sanjeev Gupta on the cheques in question.

26. In these circumstances, accused persons have made a bald assertion that accused Sanjeev Gupta had signed blank cheques and had handed over the same to the representative of the complainant company, which has not been substantiated by any oral, ocular or documentary evidence including the opinion of handwriting expert. Besides, the defence of the accused persons has also not been sustained or proved from the evidence led by the complainant. Therefore, neither any inference can be drawn from the evidence produced by the complainant that the particulars on the cheques in question were not filled by accused Sanjeev Gupta nor the accused persons have led any independent evidence of their own in support of their claim that the particulars on the cheques in question had been filled by the officials of the complainant company. Hence, the probability of defence of the accused persons that the cheques in question CC No. 69/13 21/32 were handed over by them in blank condition to the representative of the complainant who had filled in the particulars on the said cheques has not been proved on the scale of preponderance of probabilities.

27. Secondly, it has been argued on behalf of the accused persons that the complainant company had failed to produce bills in respect of transaction worth Rs.2,48,593/­ dated 21.07.2008 vide sale voucher no. 120 as per the Ex.CW1/D4. Therefore, learned defence counsel has submitted that complainant company has failed to prove the liability of the accused persons to pay a part of the total amount of the two cheques, that is, a sum of Rs.2,48,593/­ because no bills corresponding to the said amount of Rs.2,48,593/­ had been placed on record by the complainant. Hence, when a part of the liability to pay the cheque amount has not been duly proved by the complainant, then the accused persons cannot be held guilty for the commission of offence punishable under section 138 NI Act in respect of liability to pay the cheques amount because the offence u/s 138 NI Act pertains to liability of the accused to repay the exact cheque amount to the complainant and does not pertain to the liability to pay any part of the cheque amount. Therefore, the accused persons deserve to be acquitted because complainant company has not prove the liability of accused persons to pay exact amount mentioned in the two cheques in question.

28. The above mentioned argument of learned defence counsel has been strongly rebutted by the learned counsel for complainant who has submitted that the bill of transaction dated 21.07.2008 has not been placed on record as accused Sanjeev Gupta had made part payment of Rs. 2,00,000/­ in respect of the said transaction from some other account of the accused company and the said amount has also been deducted from the total liability of the accused in the ledger account statement Ex.CW1/D4.

CC No. 69/13 22/32

Therefore, it has been argued by counsel for complainant that the liability of the accused persons to pay Rs.4 lacs towards the two cheques in question is apart from receipt of a sum of Rs.2 lacs from the accused company on 27.03.2009 against the transaction dated 21.07.2008 of Rs. 2,48,593/­.

29. I have considered the rival submissions of the parties in respect of second argument advanced in defence of the accused persons in the light of evidence led by the parties. A perusal of Court record shows that the main witness of complainant CW1 Rakesh Kumar Jain has been cross examined at length by learned counsel for accused persons and during his cross examination by learned defence counsel, CW1 Rakesh Kumar Jain has explained that he had not furnished the bill in respect of transaction dated 21.07.2008 of Rs.2,48,593/­ as accused Sanjeev Gupta had made part payment of Rs.2 lacs in respect of the said transaction from other account of the accused company against voucher no. 120 which had been duly reflected in the ledger account of complainant company vide entry dated 27.03.2009. The specific deposition of CW1 is reproduced below in this context:­ I have not annexed the said bill because the accused had handed over demand draft in the sum of Rs.2,00,000/­ for the said transaction of Rs.2,48,000/­ which is reflected in the ledger account entry dated 27.03.2009. I had not agreed to make payment of Rs.2,00,000/­ against the voucher no. 120 of Rs. 2,48,593/­ however I have accepted the said DD in the sum of Rs. 2,00,000/­ vide voucher no. 518 dated 27.03.2009 as the accused had requested that he was making payment from some other account and had asked me to adjust the same as part payment towards total sum of Rs.2,48,593/­.

30. Moreover, a perusal of the above mentioned defence of the accused persons shows that the same is contradictory to other defences taken by the two accused persons at various stages of trial. At the time of service of notice of accusation u/s 251 Cr.PC upon the two accused persons, the accused persons had claimed in their defence that they were CC No. 69/13 23/32 not liable to pay any amount to the complainant as they had paid a sum of Rs. 2 lacs to the complainant by means of another cheque and had paid the sum of Rs. one lacs to the complainant by way of demand draft apart from the returning the material worth Rs. one lacs to the complainant. Therefore, the entire cheque amount of the two cheques amounting to Rs.4 lacs had been duly paid to the complainant either by way of cheque or demand draft or in the form of return of material. Thereafter, at the time of recording of their statement u/s 313 Cr.PC the two accused persons had claimed that they were not liable to pay the sum of Rs.4,60,468/­ to the complainant company and were rather supposed to recover a sum of Rs.40,000/­ to 50,000/­ from the complainant company as they had paid the advance amount of Rs.3 lacs by two cheques to the complainant and in lieu of that they had received material of lessor amount and therefore, the complainant was supposed to refund a sum of Rs.40,000­50,000/­ to them. This second defence of the accused persons is in contradiction of the first defence of having paid the cheque amount by way of draft and another cheque as well as of having adjusted the cheque amount of the two cheque in question by returning goods worth Rs. 1 lacs to the complainant company. In a striking contradiction to their above mentioned two defences, the accused persons had taken yet another defence of a new kind at the time of examination in chief of accused Vijay Gupta as DW1, who had claimed that the accused company was not liable to pay the cheque amounts of the dishonoured cheques to the complainant company and rather the accused company was entitled to recover a sum of Rs. 7 or 8 lacs from the complainant. This specific deposition of DW1 is reproduced below in this context:­ "we have no liability to pay against these cheques rather we are due to recover sum of Rs.7­8 lacs from complainant as no material of equivalent value is supplied by them."

CC No. 69/13 24/32

31. The above mentioned third contradictory defence taken by the accused persons has yet again contradicted by the learned counsel for accused persons by a novel defence taken at the stage of final arguments whereby the learned defence counsel has admitted that although accused persons were liable to pay some dues to the complainant company. However, they were liable to pay only a part of cheque amount stipulated in the two dishonoured cheques as the complainant company had failed to furnish bills in respect of transaction of Rs.2,48,593/­. Therefore, accused persons had the liability to pay remaining cheque amount only out of the total cheque amount of Rs.4 lacs after deducting a sum of Rs.2,48,593/­ from the same. However, this defence of accused persons is contrary to the earlier three defences taken by the accused persons and does not appear to be trustworthy as the same has not been proved by the accused by leading any independent evidence of his own or by relying upon any evidence produced by the complainant company. Since the accused persons have taken four strikingly contradictory defence in respect of liability to pay the cheque amount at various stages of trial, without substantiating said defences with any legally admissible evidence. Therefore, the defence of the accused persons have not been proved on the scale of preponderance of probabilities.

32. A similar situation had come up for consideration before the Hon'ble High Court of Delhi in the case of Vijay Power Generators Ltd vs Annai Engineering Works & Anr decided on 22 April, 2014 Crl. Appeal No.1437 of 2013 and Crl. Appeal No. 1447 of 2013, wherein the accused had examined himself as DW1 in his defence and had claimed that he had issued the cheque in question as a blank security cheque and since he had not received any generator from the complainant company in respect of CC No. 69/13 25/32 purchase of which he had issued the cheque in question therefore the cheque in question had been misused by the complainant company, the Hon'ble High Court had rejected the defence of the accused on the ground that in his cross examination by the complainant, the accused had admitted that he had taken two generator sets from the complainant company whereas he had earlier taken a contrary stand in his statement u/s 313 Cr.PC by stating that he had issued cheque in question as a security for 7 generators to be purchased by him from the complainant company and therefore the onus was on the accused to prove that the accused had paid the consideration amount for the generator sets supplied to him in view of mutually contradictory stands taken by the accused particularly when the accused had not sent any notice to the complainant calling upon the complainant to return his security cheques. Observations made in para 6 of the said judgement are noteworthy in this context and are reproduced below:­ "6. The only evidence led by the respondent to discharge the statutory onus placed on him is his own deposition as DW1. In the examination­in­ chief deposition the respondent inter alia stated that there was no outstanding liability of the complainant Company towards him and the cheques in question were signed as blank, as security in reference to purchase of generators. He also claimed that he had not received any generator from the complainant Company for which cheques in question had been issued. During cross­ examination by the learned counsel for the complainant, DW1 Mr. J. Stanishlaus, Proprietor of Annai Engineering Works stated that he had taken just 1­2 generator sets from the complainant Company. He specifically denied the suggestion that he had purchased seven (7) generator sets from the complainant Company. Thus, the case as set out by DW1 in his deposition is that he had purchased only 1­2 generator sets from the complainant Company. On the other hand, in his statement under Section 313 of Cr.P.C. the respondent expressly stated that he had handed over cheques in question as blank signed cheques for the purpose of security as he had to purchase seven (7) generator sets and the complainant supplied seven (7) generator sets to him. It is, thus, evident that the respondent/accused made a false statement on oath when he claimed that only 1­2 generator sets were supplied to him. Having admitted the delivery of seven (7) generator sets to him the onus was on CC No. 69/13 26/32 the accused/respondent to prove that he had paid for the said generator sets. It has come in the cross­examination of DW1 that he had issued demand drafts of Rs.7.75 lakh to the complainant/appellant as per Ex.DW1/6. However, a perusal of the letter Ex.DW1/6 would show that it refers to a demand draft of Rs.3.00 lakh sent on 7.11.1997, and not to one or more demand drafts of Rs.7.75 lakh. As per the statement of accounts filed by the appellant/complainant Company, it received only two (2) payments from the respondent in the financial year 1999­2000, i.e., between 1.4.1999 to 31.3.2000. Out of them one payment was for Rs.17,000/­ and the other was for Rs.25,000/­. The cheques for Rs.6,71,326/­ which were deposited with the bank on 7.3.2000 were dishonoured and the amount of the aforesaid cheques was debited in the account of the respondent on 23.3.2000. The respondent/accused did not examine any bank official to prove any payment of Rs.7.75 lakh to the complainant by way of demand draft. In case any such payment was actually made, after the delivery of the generator sets was received, nothing prevented the respondent/accused from summoning the bank official(s) to prove the aforesaid payment. Moreover, no receipt evidencing payment of Rs.7.75 lakh has been filed by the respondent/accused. On receipt of notice from the complainant/appellant, admittedly no reply was sent by the respondent/accused, claiming payment of Rs.7.75 lakh by way of demand draft or alleging that the cheques in question were given as blank cheques, towards security. No notice was sent by the respondent/accused to the complainant/appellant Company at any point of time, asking for the return of the cheques in question on the ground that the payment had already been made by way of demand draft. In fact, in his examination­in­ chief DW1 did not even refer to any payment to the appellant/complainant by way of any demand draft and the plea of such payment cropped up only during the cross­examination of the respondent/accused. The respondent did not file his own statement of account, to show that nothing was payable by him to the appellant."

33. The case in hand is similar to the above cited case decided by Hon'ble High Court of Delhi. In the present case also the accused persons have made mutually contradictory statements by claiming in their reply to notice u/s 251 Cr.PC served upon them that they had already repaid the cheque amount to the complainant company by paying an amount of Rs.2 lacs by way of another cheque and another amount of Rs.1 lacs by way of demand draft. Apart from this the accused persons had claimed that they had also returned goods worth Rs.1 lacs to the complainant company and in this way repaid entire sum of Rs. 4 lacs due to the complainant company CC No. 69/13 27/32 towards the cheque in question. In their statements u/s 313 Cr.PC the accused persons had taken another contradictory defences by claiming that they were not liable to pay any amount to the complainant company and on the contrary the complainant company was supposed to refund a sum of Rs.40,000/­ to Rs.50,000/­ taken from the accused company. The accused persons have taken yet another defence in examination in chief of DW1 Vijay Gupta by claiming that the complainant company was liable to refund the sum of Rs. 7,00,000/­ to Rs.8,00,000/­ (Seven to Eight lacs) to the accused company as no material was supplied to the accused company for the said sum of Rs.7,00,000/­ to Rs. 8,00,000/­. This third defence of accused persons has yet again been contradicted by the accused persons at the stage of final arguments when learned counsel for accused persons had admitted that although the accused persons had the liability to repay a part of the total cheque amount, however, the complainant company had failed to produce bills in respect of a transaction worth Rs.2,48,593/­ and therefore, the accused company was not liable to repay entire sum of Rs.4 lacs to the complainant company and was rather supposed to pay only the remaining amount of cheques Ex.CW1/A and Ex.CW1/B respectively after deducting a sum of Rs.2,48,593/­ from the entire cheque amount of Rs. 4 lacs. These four mutually contradictory defences of accused persons have not been substantiated by either any evidence or material placed on record by the complainant or from the independent evidence led by the complainant and are therefore not trustworthy. Hence, the above mentioned defence of the accused persons that the complainant company had failed to produce the bill worth Rs.2,48,593/­ and therefore, the accused persons cannot be held guilty for the commission of offence of failure to repay the cheque amount of two cheques amounting to Rs.4 lacs has no merit as the CC No. 69/13 28/32 same has not been proved by the accused persons. Moreover, the two judgements relied upon by learned counsel for accused persons in the cases of John K Abrahim v. Simon C. Abraham and another 2014 A CD 560 (SC) and M/s. Total Finaelf India Limited V Smt. Rashmi Parnami 2014 ACD 470 (DEL) do not support the case of accused persons as in the first case of John K Abrahim v. Simon C. Abraham and another 2014 A CD 560 (SC) the complainant was not able to disclose the date which he had extended the loan amount of Rs.1,50,000/­ to the accused as well as the source of his income from which he had procured the said amount to advance the same as a loan to the accused. Likewise, in the case of M/s. Total Finaelf India Limited V Smt. Rashmi Parnami 2014 ACD 470 (DEL) the witness examined by the complainant company had failed to disclose the dept liability of the accused persons on any specific date and had failed to explain why the accused had issued several cheques in one sequence for different dates and different amounts instead of issuing one cheque for the entire outstanding liability. Besides, in the said case, it was not clear as to why the complainant had accepted cheques in the month of October for the dates 30.04.1997 and 30.05.1997. However, there are no such discrepancies in the present case and the complainant company has not only placed on record bills and invoices in respect of sale of material to the accused company on various dates but also had placed a detailed ledger account statement Ex.CW1/D4 to substantiate the liability of the accused to pay the cheque amount of Rs. 4 lacs.

34. In the light of my foregoing discussion, I am of the considered opinion that none of the defence of accused persons have been proved on the scale of preponderance of probabilities. Accused persons have merely offered a series of explanations by claiming that accused Sanjeev Gupta CC No. 69/13 29/32 had issued the cheque in question in blank condition as a security cheque for purchase of clothes which were never supplied to the accused company by the complainant company or by claiming that the accused company had already paid the outstanding dues of the complainant and the complainant company was on the contrary liable to pay a sum of Rs.40,000/­ to 50,000/­ to the accused company and by subsequently changing their stand again by claiming that the complainant company was liable to pay a sum of Rs. 7 lacs or 8 lacs to the accused company. However, the said explanations of the accused persons have not been proved as per law by either relying upon the materials placed on record in the evidence of complainant or by leading independent evidence of their own. Neither the accused persons have placed on record any documentary evidence including statement of account of their company in support of their claim that they had duly repaid the cheque amount nor the accused has placed on record any proof of having returned goods worth Rs.1 lacs from the complainant company. In this context, it has been held in the case of V S Yadav Vs Reena 172 (2010) DLT561 wherein the accused had offered certain explanations in his statement u/s 281 Cr.PC which were not proved by the accused by examining himself as a witness in his defence. The Hon'ble High Court had rejected the explanation given by the accused and had observed that there is no presumption in law that the explanations given by the accused person is always truthful unless the same are proved by the accused by leading admissible evidence in support of the same. Observations made in para 5 of the judgement are noteworthy in this context and are reproduced below:­ "5. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques CC No. 69/13 30/32 as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281 Cr. P.C., that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under Section 138 of N.I. Act was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence."

35. The present case is similar in facts to the abovecited case of VS Yadav Vs Reena (Supra) decided by Hon'ble High Court. Although, in the present case, the accused has stepped into the witness box, however, as discussed above the accused has not managed to prove any of the four defences taken by him in his defence evidence on the scale of preponderance of possibilities. The accused persons have merely offered bald mutually contradicted defences by stating that the accused persons had duly repaid the cheque amount to the complainant company or that the complainant company was supposed to refund a sum of Rs. 7 lacs to 8 lacs to accused which have not been substantiated or proved by the accused persons by leading any evidence of their own or by relying upon the materials placed on record in the evidence of the complainant. Besides, the defence of the accused persons that cheques in question were handed over by them to the representative of the complainant company as blank security cheques has also not been proved by the accused persons by getting the cheques in question examined from any handwriting expert or by producing any admitted handwriting of accused Sanjeev Gupta for comparison by the CC No. 69/13 31/32 Court with the questioned handwriting of the accused on the cheques in question. Hence, in view of the facts and circumstances detailed above, I am of the considered opinion that accused persons have failed to rebut the presumption under section 139 NI Act by raising any probable defence.

36. On the contrary, the complainant company has duly proved its case against the accused persons by examining CW1 Rakesh Kumar Jain who has fully supported the case of complainant by deposing that textile materials and clothes were supplied to the accused company from time to time during the ordinary course of business and the accused persons had outstanding liability of Rs. 4,60,648/­ towards the complainant company in partial discharge of which the accused persons had issued two cheques Ex.CW1/A and Ex.CW1/B for a total sum of Rs.4 lacs in favour of the complainant company, which were dishonoured upon presentation due to stoppage of payment by accused Sanjeev Gupta and due to insufficiency of funds in the account of the accused company vide return memos Ex.CW1/C and Ex.CW1/D respectively. The liability of the accused persons to pay the cheque amount has been proved through a detailed statement of ledger account of the complainant company Ex.CW1/D4 and bills Ex.CW1/D1 (collectively) and Ex. CW1/J and Ex.CW1/T. The ingredients of offence punishable under section 138 NI Act have been duly proved by the complainant company. Accused Vijay Gupta and Sanjeev Gupta are accordingly held guilty for the commission of offence punishable under section 138 NI Act. At the joint request of learned counsel for complainant and learned counsel for accused persons, list for arguments on sentence on 15.10.2014. 

Announced in the open Court                            (Jasjeet Kaur)
     th           
on 30  September, 2014                     Civil Judge­I/MM/New Delhi


CC No. 69/13                                                                      32/32