Delhi District Court
13 It Has Been Further Held In K. ... vs . Sankaran Vaidhyan on 27 July, 2010
IN THE COURT OF MS. TWINKLE WADHWA , METROPOLITAN
MAGISTRATE, MAHILLA COURT, CENTRAL DISTRICT
DELHI
CC no. 1615/1/06
P.S. Patel Nagar
U/S 138 N.I. Act
Case ID NO. 02401R131922206
JUDGEMENT
1. Sl. No. of the case : 1615/1/06
2. Name of the complainant : Sh. Sanjay Suri
3. Date of commission of offence : 29.07.06
4. Name of accused and Address : Sarwat Alam
Proprietor
M/S JLB Fashions
8/19, Sarvpriya Vihar
Opp. Panchseel Club,
New Delhi - 110 019
5. Offence complained of : U/s 138 N.I. Act
6. Plea of accused : Pleaded not guilty
7. Final order : Convicted
8. Date of such order : 26.07.10
Date of Institution of case : 09.10.06
Date of hearing Final Argument: 16.07.10
CC no. 1615/1/06 1/13
Date of decision of case : 27.07.10
BRIEF FACTS OF THE REASONS FOR THE DECISION
1 The case of the complainant is that he is the proprietor of M/s Akash
Agencies and deals in the purchase of Import and Export license, DEPB and incentives against the exports. On 18.08.03, he made an advance deal for purchase of ready DEPB and incentive against exports already done by accused and her associate company as represented by her husband Shane Alam. He made an advance payment of Rs. 7.50 lacs on 18.08.03 and Rs. 10 lakhs on 27.08.03 by way of DD no. 258062 and 218386 drawn on ABN Amro Bank. Further, as per contract between the parties, accused was to supply all export documents including license to the complainant which they failed to do. After repeated requests, accused issued two cheques ie cheque no. 272240 dt. 29.07.06 for Rs. 7,50,000/ and cheque no. 272241 dt. 29.07.06 for Rs. 10 lakhs , both drawn on Allahabad Bank as refund of the advance payment received by them and when same were presented, they were dishonoured on 03.08.06 with the remarks Insufficient Funds. CC no. 1615/1/06 2/13 Legal notice was duly sent but accused did not reply nor made payment. All the documents are duly exhibited on record.
2 In support of his case, the complainant has examined himself as CW1 before the court and duly exhibited his affidavit by way of evidence reiterating the contents of his complaint. In his cross examination, he has deposed that the cheques was signed by accused Sarwat Alam who is proprietor of JLB Fashions. He denied that there was no date on the cheques. He further deposed that the cheques were filled by Jag Mohan Rawat who was Manager of accused and same were filled up in his presence but he stated that he does not remember whether accused signed on the cheques in his presence. He further deposed that in this case, there were dealings regarding the present transaction and the same was through Shane Alam, husband of accused. He further deposed that there was no written contract between the parties. He further deposed that he received documents, but he did not receive shipping documents. He further deposed that he did not lodge any complaint to Economic Offence Wing against the CC no. 1615/1/06 3/13 accused. He further denied that the license of Import and Export worth Rs. 10 lakhs was given to him in the present matter. He further denied that the present cheques were given as security. He further denied that the cheques were undated. He further deposed that he cannot tell who had received the two bank drafts and signed the receipt.
3 The case of the accused (as stated in S/A recorded u/s 313 Cr.PC )is that she is Proprietor of J.L.B. Fashion. She admitted her signatures on cheque no. 272240 and 272241. She further deposed that she signed the cheques, they were blank and she did not receive the legal demand notice. She handed over both the cheques to her husband but who later on told her t hat all the relevant documents have been handed over to the complainant. 4 She has deposed before the court as DW1. In her cross examination, she has deposed that she is having very good relations with her husband. She could not tell the date on which she handed over these cheques to her husband. She further admitted that the bank account of J.L.B. Fashion is in her name. She further deposed that she is not doing any business herself but CC no. 1615/1/06 4/13 her husband does business on her behalf. She has not filed any complaint against her husband with regard to above cheques. She further admitted that the address on the receipts through which legal notice was sent which are Ex.CW1/16(colly) is the correct address.
5 Accused further in her defence has examined one Sh. Jag Mohan Rawat as DW2 who has deposed that the two drafts were given by the complainant to J.L.B. Fashions in his presence. Against these drafts, several cheques were given by accused which were filled by him. The same were not dated but every column was duly filled. The cheques were handed over on the same day when the drafts were taken and the documents pertaining to license were already given to the complainant. In his cross examination he has deposed that he is not a summoned witness and has come to the court at the request of accused. He further deposed that he used to look after the work of J.L.B. Fashion though he did not have any designation or post and he was working on consultancy basis with J.LB. Fashion. He further admitted in his cross examination that it is correct that CC no. 1615/1/06 5/13 the accused had supplied in complete set of documents. 6 Accused further in her defence has examined DW3 who is her husband who has deposed that the cheques in dispute were handed over to the complainant on the same day when drafts were taken by them. The present cheques were given as security and were not dated. The cheques were filled by DW2 Jag Mohan Rawat and were undated. These two drafts were taken from the complainant in lieu of DEPB , license agreement. However, there was no written contract and documents worth Rs. 40 to Rs. 50 lakhs were delivered to the complainant. In his cross examination, he has deposed that he is not summoned witness and has come at the request of accused and he was looking after the work of J.L.B. Fashion as per authority letter given to him by accused. He further deposed that the cheques were given as advance at the time of DEPB license. He further deposed that he had supplied the complete set of documents. He further deposed t hat no intimation in writing was given regarding the delivery of documents worth Rs. 40 to Rs. 50 lacs.
CC no. 1615/1/06 6/13 7 I have heard both the parties and gone through the record. 8 It is submitted by the counsel for the complainant t hat he is agent for sale and purchase of Import and Export Incentive. Further, sale and purchase of import incentive is completely legal work and is clearly mentioned in the Hand Book of procedures of Ministry of Commerce and Industry. Relevant photo state of the rules filed on record and original hand book shown to the court.
9 It is submitted by the counsel for accused that it is not mentioned by complainant anywhere that accused Sarwat Alam is involved in day to day business of J.L.B. Fashions. Further, it is admitted by CW1 that he had dealings with the husband of accused and not accused herself. Further, all day to day affairs and dealings were used to be done by the husband of accused. DW2 has admitted that he had filled the cheques. Further, these cheques were given as security and there was no written contract between the parties. Complainant did not produce the documents which accused gave to the complainant and did not specify documents which accused did CC no. 1615/1/06 7/13 not give.
10 I have heard the arguments and gone through the record. 11 It shall be first important to examine the requisites for bringing home the conviction of the accused out of the present criminal prosecution initiated by the complainant. As in any other criminal proceedings or trial, the nature and extent of proof required against the accused is that of "proving the commission of offence in question by the accused beyond the pales of reasonable doubt." To prove the same, the onus lies upon the complainant to show on record an unbroken chain of events leading to commission of offence by way of proving the necessary ingredients of the offence in question. If there is any discrepancy or lack of creditability of the testimonies of the complainant witnesses, the accused shall be entitle to benefit there of. However , it is to be borne in mind that the present prosecution arises out of the criminal complaint in a summons triable case arising out of a special enactment of Negotiable Instruments Act, 1881 as amended and notified by the Act 55, 2002. Accordingly the rules of evidence shall be governed by cardinal rules of evidence laid down by Indian Evidence Act 1872 subject to law laid down by Special enactment of Negotiable Instruments Act.
12 In the back drop of the aforesaid the following ingredients u/s CC no. 1615/1/06 8/13 138 Negotiable Instruments Act are required to be proved :
1 The cheque should have been issued by the accused in discharge in whole or in part of any debt or any other liability. 2 The cheque should have been presented to the bank within a period of 6 months from date of its being drawn or period of validity which is earlier.
3 The cheque should have been dishonoured either because of insufficient funds or for the remarks Exceeds Arrangements. 4 The payee or holder in due course of cheque as the case may be makes the demand for payment of cheque amount by demand notice which has to be given in writing to the drawer of cheque within 30 days from the receipt of such information.
5 The drawer of cheque fails to make payment within 15 days of the receipt of such notice.
6 That the complaint has been filed within one month of the cause of action being arisen in favour of the complainant. 13 It has been further held in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and anr JT 1999(7) SC 558 that as the signature in the cheque is admitted to be that of the accused , the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn CC no. 1615/1/06 9/13 for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The law in this regard stands fortified by another Apex Decision in 2001(2) AD (CR) SCC 449 in case title Hiten P Dalal Vs. Batinder Nath Banerjee wherein Hon'ble Supreme Court of India has held "presumption u/s 139 Negotiable Instruments Act is to be rebutted by proof and not by mere explanation which is merely plausible.
The fact is said to be proved when its existence is established or when upon the material before it, the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by prove, the presumption created by the provision cannot be said to be rebutted."
14 It was further held in M.S. Narayan Menon Vs. State of Kerala (S.Court) AIR 2006 SC 3366 that "applying the said definition of 'proved' or 'disproved' to the principle behind S.118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the CC no. 1615/1/06 10/13 consideration does not exist or considers the non existence of the consideration so probable that a prudent man ought under th e circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting the presumption, what is needed is to raise a probable defence".
15 In this case, the complainant had given two drafts to the accused which have been admitted by all t he defence witnesses. The only defence of accused persons is that the present cheques were given as security but admittedly there was no written contract between the parties. None of the defence witness have clearly deposed before the court that the present cheques were given as security towards which particular transaction. Further, it was deposed by DW2 that against these two drafts, several cheques were given but no description or cheque numbers have been specified. Further, it is not stated bt DW2 that how many cheques were given as security. The avernment that those were given as security is a mere verbal avernment not supported with any evidence. When it is the CC no. 1615/1/06 11/13 case of accused that complete documents pertaining to the export were already given to the complainant then, handing over of cheques as security does not arise. Further, it is not the case of accused that as per business practice, such cheques were given as security. Accused has failed to bring before the court the export documents which he had already given to the complainant against two drafts of Rs. 17.50 lacs and benefit of which has already been availed by the complainant. On the other hand, complainant has clearly deposed that since he was not given complete documents, hence he could not avail benefits of export license of the accused. Though it is stated by DW3 that the documents worth Rs. 40 to Rs. 50 lakhs were given to the complainant but he failed to file any document in this regard. All the allegations on the part of accused are mere verbal allegations. 16 In the case u/s 138 N.I. Act, there is presumption of consideration and legal enforcibility of debt in favour of complainant. The onus was on the accused to create a probable defence in her favour which she has failed to do so. The defence of the accused is mere verbal assertion without any CC no. 1615/1/06 12/13 documents on record. Further, accused has admitted that the drafts were received. She admitted her signatures on the cheque and her Manager DW2 filled up the cheques ie signatures and delivery both are admitted. 17 In view of the aforesaid discussion and findings of the court, the court is of the considered opinion that the complainant has been successful in establishing all the ingredients of section 138 Negotiable Instruments Act against the accused in respect of the cheques beyond the pales of reasonable doubt. Accused is accordingly convicted for the offence u/s 138 Negotiable Instruments Act.
Announced in the open court ( Twinkle Wadhwa)
on 27.07.10 Metropolitan Magistrate, Delhi
CC no. 1615/1/06 13/13