Delhi District Court
M/S Balaji Tarders Through Its ... vs . Yogesh Kumar on 28 January, 2020
M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar
PS : Preet Vihar
CC no. 51256/16
IN THE COURT OF ACMM (EAST DISTRICT)
KARKARDOOMA COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
M/s BALAJI TRADERS
VS.
YOGESH KUMAR,
CC No. 51256/2016
PS : Preet Vihar
U/s 138 NI Act
Date of Institution : 29.09.2011
Date of reserving of order : 10.01.2020
Date of Order : 28.01.2020
JUDGMENT
CNR No. DLET020008712011
1. Serial No. of the case : 51256/2016
2. Name of the Complainant :
M/s BALAJI TRADERS THROUGH ITS PROPRIETOR SH. SAILESH PANDEY HAVING OFFICE AT :
35, GAGAN VIHAR EXTN.
DELHI92.Page 1 of 19 ACMM EAST/KKD/Delhi/28.01.2020
M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16
3. Name of accused person :
YOGESH KUMAR, PROPRIETOR OF M/S SHREE ANJANAY TEXTILES AND M/S SAURABH TRADING COMPANY H.NO. 2474, SECTOR16, OLD FARIDABAD, HARYANA
4. Offence for which complaint was made : 138 N.I. Act
5. Offence for which notice has been framed : 138 N.I. Act
6. Plea of accused : Not guilty
7. Final Order : Acquitted
8. Date of Judgment : 28.01.2020 BRIEF REASONS FOR THE ORDER.
1. Sh. Sailesh Pandey, the proprietor of M/s Balaji Traders the complainant herein, has filed the present complaint under Section 138 NI Act against the accused. The complainant has stated his case as under:
1.1. The complainant is engaged in the business of trading of various types of Denim fabrics.Page 2 of 19 ACMM EAST/KKD/Delhi/28.01.2020
M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 1.2. The accused is proprietor of proprietorship firm namely M/s Shree Anjanay Textiles and M/s Saurabh Trading Company. The complainant had supplied and delivered the denim fabrics to the accused on credit basis. The accused had received the goods and consumed them without any objection. The complainant had raised various invoices in lieu of the supplies made by the complainant to the accused. As per the statement of account maintained by the complainant a sum of Rs.14,78,000/ was due and outstanding. The accused had admitted a sum of Rs.13,00,000/ as on 31.12.2010 vide acknowledgement letter dt. 22.02.2011.
1.3. The accused issued two cheque bearing no.539974 dated 26.03.2011 for Rs. 2,00,000/, 539975 dated 30.03.2011 for Rs. 1,65,000/, both drawn on Axis Bank Ltd, Krishna Nagar, Delhi110051, in favour of the complainant to discharge his liability.
1.4. The complainant had presented the cheques for encashment. However, they were dishonored with Page 3 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 remarks "Account Blocked" vide memo dated 20.07.2010.
1.5. The complainant had served legal notice of demand dated 12.08.2010 calling upon the accused to make payment for the aforesaid cheques. The notice were duly served. Despite service of the statutory notice the accused has failed to pay the amount within the statutory period. Hence, the present complaint was filed in the Court.
2. After perusing the material available on record, Ld. Predecessor took the cognizance and process was issued against the accused. Accused appeared in the Court. He was released on bail. The copies of documents and complaint were supplied to him. Notice under Section 251 Cr.P.C was served upon the accused to which he pleaded not guilty. His plea of defence was recorded. Considering his defence he was allowed to cross examine the witnesses of the complainant.
3. The complainant examined himself as CW1, by leading evidence through affidavit, to prove his Page 4 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 case. The CW1 has reiterated the facts stated in the complaint. He has relied upon the following documents:
a)Statement of account of the firm of accused is Ex.CW1/1;
b)The copy of acknowledgement letter is Ex.CW1/2;
c) cheque bearing no. 539974 dated 26.03.2011 for Rs. 2,00,000/, 539975 dated 30.03.2011 for Rs. 1,65,000/, both drawn on Axis Bank Ltd, Krishna Nagar, Delhi110051 are Ex.CW1/3 & Ex.CW1/4;
d) Bank return memo dt. 20.07.2011 is Ex.CW1/5;
e) Copy of legal notice dated 12.08.2011 is Ex.CW1/6;
f) Postal receipts of speed post is Ex.CW1/7.
g) Courier receipt are Ex.CW1/8 & Ex.CW1/9.
4. The witness was cross examined. The Page 5 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 complainant did not examine any other witness. Therefore, CE was closed.
5. The accused was examined under Section 313 Cr.P.C. by putting all the incriminating circumstances to him, and his statement was recorded. He would state that he used to take fabrics from the complainant of which the payment was made by him in cash to the complainant. Nothing was due. The cheques were not in his handwriting. Neither he had signed them. The cheques were misplaced in the month of June July 2011 and he had even lodged the police complaint regarding the same. He had no liability towards complainant. He had received the legal notice and had replied the same vide reply dt. 11.09.2011.
6. The accused led defence evidence. He examined himself as DW1. He reiterated his defence as abovementioned. He would also state that he had never entered into transactions as mentioned in Ex. CW1/1. He had not written any confirmation letter. It does not bear his signatures. It has been forged by the complainant. He Page 6 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 used to visit the office of the complainant with one Shyam Sunder alongwith one bag wherein he used to keep his cheque book. Either the complainant or Shyam Sunder or both in collusion with each other had committed the theft of the cheques from the bag. He had come to know about missing of those cheques when he received a phone call from his bank to deposit the cheque book and passbook in the bank as the account was to be closed. He had lodged a complaint to the PS which is Ex.DW1/2 (OSR). He had never issued any cheque to the complainant. The cheques do not bear his handwriting or signatures. He did not have any legal liability to make any payment to the complainant. The accused also relied upon copy of his PAN card which is Ex.DW1/1 (OSR). He has also relied upon copy of reply to legal notice which is Ex.DW1/3.
7. The accused also examined a handwriting expert Sh. B.N. Srivastava who submitted his report Ex.DW2/1 (colly.). He also proved the photographs Ex.DW2/2 to Ex.DW2/7 and negatives CD Ex. DW2/8.
8. Both the witnesses were cross examined.
Page 7 of 19 ACMM EAST/KKD/Delhi/28.01.2020M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 The defence evidence was closed and the matter was fixed for final arguments.
9. Ld. counsel for the complainant would argue that the complainant has proved his case beyond reasonable doubts and therefore, the guilt of the accused has been proved as per law. It is proved that the accused was liable to make the payment, however, he did not make the payment within stipulated time. The accused is running the day today affairs of his firm. The accused has taken false defence. The accused had made a false complaint at PS Old Faridabad after receiving the legal notice of the complainant. The accused has however admitted that he had business dealing with the complainant. There are various contradictions in his testimony recorded at DW1. The report of the handwriting expert should not be believed as there is nothing on record to show that he is an expert of handwriting as required under Section 45 of the Indian Evidence Act. The liability of the accused has been proved beyond reasonable doubt. It is also proved that all the steps were taken by the Page 8 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 complainant within the time provided by the law. Hence, the accused may be convicted for the offence U/s 138, NI Act. Ld. counsel has relied upon the following judgments in support of his submissions.
a)Bir Singh Vs. Mukesh Kumar, AIR 2019 SC 2446
b)Shree Daneshwari Traders Vs. Sanjay Jain & Ors AIR 2019 SC 4003
c) Bal Krishna Das Agarwal Vs. Radha Devi and ors, AIR 1989 All 133.
d) Vandavasi Karthikeya Vs. S. Kamalamma and Ors AIR 1994 AP 102.
10. Per contra, Ld. counsel for the accused would argue that the complainant has failed to prove his case against the accused beyond reasonable doubts. The accused has discharged the initial burden. He has been falsely implicated. He never issued any cheque to the complainant. His cheques were stolen from his bag. None of the accused bear handwriting of the accused. Even the Page 9 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 alleged settlement letter does not any handwriting or signature of the accused. The report of handwriting expert has proved the same. The accused has shown his bonafide by approaching the PS Old Faridabad about missing of his cheques. The complainant has not brought on record any bills/invoices to show that he had supplied the material to the complainant as contended by him. The accused was not liable to make any payment to the complainant. Hence it is prayed that the accused may be acquitted. Ld. counsel has relied upon the following judgments.
a)M.S. Narayana Menon @ Mani Vs State of Kerala and (Anr) Criminal appeal no.
1012/1999, decided by Supreme Court of India on 04.07.2006.
b)Kumar Export Vs. Sharma carpets 2009 (2) SCC 513
c) Raj Kumar Khurana Vs. State of NCT of Delhi, criminal appeal no.913/2009 decided by Supreme Court of India on 05.05.2009.
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d) T.Nagappa Vs Y.R. Murlidhar AIR 2008 SC 2010.
11. I have heard the rival submissions of the Ld. counsels of the parties and carefully perused the material available on record including the written submissions filed by the ld. counsels for the parties. I have also studied the judgments relied upon by the ld. counsels.
12. The law as laid down in relation to Negotiable Instrument Act is discussed in various judgments. It is settled position of law that there is a presumption in favour of the complainant and against the accused. However, the presumption is rebuttable. Hon'ble Supreme Court of India in Rangappa vs Sri Mohan (2010) 11 SCC 441 has discussed the law in detail. The Hon'ble Supreme Court has held as under:
"14. In light of these extracts, we are in agreement with the respondentclaimant 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) Page 11 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 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 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 clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, Page 12 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 reverse onus clauses 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."
13. Thus, it has been settled that there is a presumption in favour of the complainant and against the accused, that the cheque was issued for consideration. However, the presumption is rebuttable. The accused can prove that the cheque was not issued for consideration and that the accused did not have any liability to pay the amount. It has also been held that the accused need not lead evidence in support of his defence. He can prove it on the balance of probabilities by showing the contradictions in the material produced by the complainant.
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14. In the present case, the accused has denied his signatures or handwriting on cheques. He has also denied his handwriting or signatures on the settlement letter Ex.CW1/2. He has also denied receiving of material as mentioned in Ex.CW1/1. However he has admitted receiving of legal notice. He has stated that he had replied the legal notice.
15. In this case the accused has examined himself as DW1 in defence. He has entered into witness box and he has deposed on oath that he had not received the material from the complainant as mentioned in the statement of account Ex.CW1/1. He has also deposed on oath that he had not issued any cheques to the complainant and that the cheques Ex.CW1/3 & Ex.CW1/4 and the letter Ex.CW1/2 do not bear his signatures or handwriting. He has also examined DW2 Sh. B.N. Srivastava as a handwriting expert who has opined in his report Ex.DW2/1 that the signatures on the cheques Ex.CW1/3 & Ex.CW1/4 are not in the handwriting of the accused.
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16. The first objection of the ld. counsel for complainant is that the report of handwriting expert should not be believed as he has not produced any document to show that he is an expert. Ld. counsel has relied upon the judgment of the High Court of Allahabad titled Balkrishan Das Agarwal Vs. Radha Devi and Ors (supra).
17. I have considered the submissions. I have also studied the judgment of Hon'ble High Court. The Hon'ble High Court has discussed the law in detail in relation to the opinion of a handwriting expert. It has been observed that the expert should be subjected to cross examination because an expert like any other witness is fallible and the real value of his evidence consists in the rightful inference which he draws from what he has himself observed and not from what he merely surmises. Thus, the Hon'ble High Court has not held that evidence of a handwriting expert should not be believed by court in all cases. As per evidence Act also, testimony of an expert is mere an opinion and not an evidence. The court is Page 15 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 required to consider the opinion in the light of facts and circumstances and the material of each case. The Court is not bound to accept the opinion of an expert in all the cases. However the court can also not discard the opinion of an expert only because the other party says so.
18. In the present case the accused himself has deposed on oath that none of the cheque bear his handwriting or signatures. The handwriting expert has also given his opinion to the same effect. DW2 the handwriting expert was cross examined by ld. counsel for the complainant. Nothing has come in his cross examination which create doubt on his report. The complainant himself did not examine any handwriting expert to show that the signatures on the cheques are in handwriting of the accused.
19. In view of the statement of the accused made by him on oath, corroborated by the report of the DW2, I am of the opinion that the accused has shown that none of the cheque bear his signatures. Even if there is delay in making the complaint regarding missing of the Page 16 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 cheques, it is not such a material fact which makes the statement of the DW1 unreliable that the cheques did not bear his signatures or handwriting.
20. It is settled position of law that the accused has to discharge the initial burden by proving his defence on the balance of probabilities only. He is not required to prove his defence beyond reasonable doubts. However once the accused has rebutted the initial presumption of law, the complainant has to prove his case beyond reasonable doubts against the accused. In the present case, in the light of discussion of hereinabove, I am of the opinion that the accused has successfully discharge the initially burden and he has rebutted the presumption. Thereafter it is for the accused to prove his case beyond reasonable doubts.
21. I have studied the judgments relied upon by the complainant. However they are distinguishable on facts. As already discussed the accused has rebutted the presumptions on the preponderance of probabilities.
22. The complainant has contended that he Page 17 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 had supplied denim fabrics to the accused and against the said liability the accused had issued the cheques in question. Thus, as per the case of the complainant the relationship between him and the accused was that of seller and purchaser respectively. If the complainant had supplied the material to the accused as contended by him, he must have raised the bills /invoices in relation to the said material. He must have obtained the endorsement of the receiving of material from the accused or from any of his employee. However the complainant has not produced any such evidence in the Court to prove that he had supplied material to the accused as claimed by him. The bills /invoices were the best evidence in possession of the complainant in relation to the material supplied to the accused. However he has not produced the same. In such circumstances a reasonable doubt has been raised on the case of the complainant in relation to supplying the material to the accused as claimed by him. The complainant has therefore failed to prove beyond reasonable doubts that there was any legally enforceable Page 18 of 19 ACMM EAST/KKD/Delhi/28.01.2020 M/s Balaji Tarders through its proprietor Sailesh Pandey Vs. Yogesh Kumar PS : Preet Vihar CC no. 51256/16 debt or liability as claimed by him. In such circumstances, the accused cannot be held liable for an offence punishable under Section 138 NI Act. The accused is therefore acquitted.
23. The accused has already furnished bond under Section 437A, Cr.P.C. along with one surety, photographs and ID proof.
Digitally
signed by
DINESH
DINESH KUMAR
KUMAR Date:
2020.01.28
04:39:42
+0530
Pronounced in the open Court on (Dinesh Kumar)
this 28th day of January 2020 ACMM (East)
KKD Courts, Delhi.
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