Delhi District Court
Ms Bharat Deep Traders vs Rajesh Gupta Ors on 6 October, 2023
IN THE COURT OF MR. VAIBHAV CHAURASIA
METROPOLITAN MAGISTRATE - 04 : NORTH WEST DISTRICT
ROHINI DISTRICT COURTS : NEW DELHI
M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
PS Keshav Puram/Budh Vihar
U/s 138 Negotiable Instruments Act
Date of Institution : 08.12.2015
Date of Judgment : 06.10.2023
JUDGMENT
(1) Serial number of the case : 15735/2016
(2) Name of the complainants : (1)M/s Bharat Deep Traders,
(Through its proprietor:Abhishek Jain)
(2) Mr. Abhishek Jain,
Proprietor: M/s Bharat Deep Traders,
Both at: 2029/158, Ground Floor,
Ganeshpura, Tri Nagar, Delhi110035.
(3) Name of the accused : (1) Rajesh Gupta
S/o Shri Raju Gupta,
R/o House No. 2618, First Floor,
Lambi Gali, Basti Punjabi, Subzi Mandi,
Delhi110007.
(2) Rajesh Gupta,
Proprietor: M/s R.R. Traders,
720, Muqim Pura, Sabzi Mandi,
Delhi110007.
(4)Offence complained of/ proved: U/S 138 Negotiable Instruments Act, 1881
(5) Plea of the accused : Pleaded not guilty
Case No. 15735/2016 1/28
M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
(6) Final Order : Acquittal
(7) Reserved for judgment on : 18.08.2023
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. In brief, it is the case of the complainant that M/s Bharat Deep Traders, the complainant no. 1 is the proprietorship enterprise/concern of Shri Abhishek Jain S/o Sh. Anil Kumar Jain, R/o 2029/158, Ground Floor, Ganeshpura, Tri Nagar, Delhi110035 who is the complainant no. 2 in the present case. The complainant no. 2 is running his business of selling packaged Haldirams Namkeens under the name and style of M/s Bharat Deep Traders at the address given in the memo of parties. The complainant No. 1/concern is an Authorized Distributor of Haldirams Namkeens. Hence Mr. Abhishek Jain, the complainant No. 2 being proprietor of complainant No. 1 is well conversant with the facts of the case and he is fully authorized and competent to file the present complaint case. That the accused has been representing himself as proprietor of M/s. R.R. Traders which is located at the address: 720, Muqim Pura, Subzi Mandi, Delhi 110007 and the accused was having business dealings Le. dealings of purchase of packaged Halidrams Namkeens from the complainants through his enterprise/concern: M/s. R.R. Traders and the accused person was having on going business dealings/transactions with the complainants with a running account. The various computer generated copies of Bills issued by the concern M/s. Bharat Deep Traders against M/s. R.R. Traders for the purchases made by M/s. RR. Traders from M/s. Bharat Deep Traders are annexed with the present complaint vide List of Documents. That in discharge of the part liability in respect of above said business dealings/transactions, the accused has issued the below noted cheques in favour of complainant No. 1. M/s. Bharat Deep Traders; a. Cheque No. 039738 dated 04.09.2015 drawn on Delhi Nagrik Case No. 15735/2016 2/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
Sehkari Bank Ltd, Branch: 720, Near Clock Tower, Subzi Mandi, Delhi110007 for Rs. 20,000/. b. Cheque No. 039734 dated 04.09.2015 drawn on Delhi Nagrik Sehkari Bank Ltd. Branch: 720, Near Clock Tower, Subzi Mandi, Delhi110007 for Rs 15,000/. c. Cheque No 040135 dated 06.09.2015 drawn on Delhi Nagrik Sehkari Bank Ltd. Branch: 720, Near Clock Tower, Subzi Mandi, Delhi110007 for Rs. 1,80,000/. d. Cheque No. 039739 dated 08.09.2015 drawn on Delhi Nagrik Sehkari Bank Ltd. Brunch: 720, Near Clock Tower, Subzi Mandi, Delhi110007 for Rs. 2,00,000/. That as per instructions of accused, the complainant No. 2 being proprietor of complainant No. I has sent the above said two cheques bearing No. 039738 for Rs. 20,000/00 and 039734 for Rs. 15,000/00 for collection firstly on 04.09.2015 and again on 22.09.2015 through the bankers: Syndicate Bank, Tri Nagar, Delhi110035 but the above said cheques have come back duly dishonoured and unpaid, which was duly intimated to the accused, who requested for some more time and told the complainant No. 2 that he is arranging money and next time whenever the cheques are sent by the complainants for collection upon his instructions, these cheques would be encashed on presentation. That again on 28.09.2015, on the instructions of accused, the complainant No. 2 being proprietor of complainant No. 1 has sent the above said cheques bearing Nos. 039738 for Rs. 20,000/, 039734 for Rs. 15,000/ and 040135 for Rs. 1,80,000/ for collection through their bankers: Syndicate Bank, Tri Nagar, Delhi110035 and also upon the instructions of accused, the complainant No. 2 being proprietor of complainant No. 1 has sent the above said cheque No. 039739 for Rs. 2,00,000/ for collection on 01.10.2015 through their bankers: Syndicate Bank, Tri Nagar, Delhi110035 but all these above said cheques have come back duly dishonored and unpaid with the remarks "Funds Insufficient" except for the cheque No. 040135 for Rs. 1,80,000/ which has been returned by the bankers of accused duly dishonoured with the remarks "Payment Stopped By Drawer". The intimation of dishonour of above said cheque Nos. 039738 for Rs. 20,000/00, Case No. 15735/2016 3/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
039734 for Rs. 15,000/ and 040135 for Rs. 1,80,000/ has been received by the complainants on 03.10.2015 from their bank while intimation of dishonour of above said cheque No. 039739 for Rs. 2,00,000/ is received by the complainants on 06.10.2015 from their bank. That thereafter, the complainant No. 2 being proprietor of complainant No. 1 has sent a legal notice dated 26.10.2015 through the counsel to the accused which has been posted on the same day to the accused under registered A/D wherebby calling upon the accused to make the payment of above noted dishonored cheques within prescribed time of 15 days from the receipt of said legal notice but the accused has failed to payment of above noted cheques to the complants despite the receipt of above said notice and no reply has been from the accused in this respect also. That the cause of action for the present complaint firstly arose to the complainant on 03.10.2015 and 06.10.2015 as written above when the intimation about the dishonour of cheques was given to the complainant by the Bank in respect of above noted cheques and the cause of action further arose after the expiry of 15 days statutory time from the receipt of said legal notice dated 26.10.2015 and the cause of action is still continuing as the accused has not paid the amount of dishonoured cheques till this date to the complainants, hence, the present complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the Act").
2. The complainant led presummoning evidence by way of affidavit (Ex CW1/1) and relied upon documents i.e., photocopy of Aadhar Card is Ex. CW 1/A; original cheques bearing no. 039738 and 039734, both dated 04.09.2015 drawn on Delhi Nagrik Sehkari Bank Ltd. Branch:720, Near Clock Tower, Sabzi Mandi for a sum of Rs. 20,000/ and Rs. 15,000/ are Ex. CW1/B and Ex. CW1/C respectively; the original cheque bearing no. 040135 dated 04.09.2015 for a sum Rs. 1,80,000/ drawn on drawn on Delhi Nagrik Sehkari Bank Ltd. Branch:720, Near Clock Tower, Sabzi Mandi is Ex. CW1/D; the Case No. 15735/2016 4/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
one common cheque dishonoured memo in respect of above said three cheques issued by Syndicate Bank is Ex. CW1/E; the original cheque no. 039739 dated 08.09.2015 drawn on Delhi Nagrik Sehkari Bank Ltd. Branch:720, Near Clock Tower, Sabzi Mandi for a sum of Rs. 2,00,000/ is Ex. CW1/F; the original cheque dishonored memo issued by Syndicate Bank in respect of said cheque bearing no. 039739 dated 08.09.2015 for Rs. 2,00,000/ is Ex. CW1/G; the photocopy of Legal Notice dated 26.10.2015 is Ex. CW1/H and the original two registered A/D postal receipts are Ex. CW1/I and Ex. CW1/J respectively; the certificate u/s 65 B of Indian Evidence Act is Ex. CW1/K. The copy of form DVAT is marked as Mark A (colly.); the application for registration u/s 7(1)/7(2) of Central Sales Tax is marked as Mark B; the copy of return verification form is marked as Mark C; the copies of retail invoices were marked as Mark D which were duly considered by the Ld Predecessor Judge and the accused was summoned vide order dated 08.12.2015 for offence u/s. 138 NI Act.
3. After the accused entered appearance, he was admitted to bail and notice was framed against him on 19.05.2016 by the Ld Predecessor wherein the accused stated his defence that the cheque bearing no. 040135 has been misplaced by him and the information regarding the same has been sent to his bank. When he misplaced the said cheque, it had only borne his signature and no other detail had been filed up. The cheque bearing no. 039738 and 039734 had been given as security to the complainant during the course of business. The cheque bearing no. 039739 had also been given as security and the amount for the same i.e. Rs. 20,000/ has been manipulated by the complainant by adding another digit i.e. Zero and making it two lacs. He did not owe any liability towards the complainant instead he has to recover money from the Case No. 15735/2016 5/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
complainant. The complainant misused the cheques in questioin and filed this false case against him. He did not receive any legal notice.
4. After the application of the accused under Section 145 (2) NI Act was allowed by the Ld Predecessor vide order dated 19.05.2016, the accused was permitted to crossexamine the complainant.
5. During his evidence, the complainant was duly cross examined by the counsel for accused in which he stated that he knew the address from where the accused was running his shop. The address is 720, Mukqimpura. When he had dealt with the accused at that time this was the address of the accused. He had made supplies to the accused at his shop at the abovesaid address. The witness has been shown the original cheques Ex. CW1/B, Ex. CW1/C, Ex. CW1/D and Ex. CW1/F and was asked that the address stated by him of the accused is the address of the bank of the accused and the accused states that the address 720, Mukqimpura, Subzi Mandi is not the address of the bank of the accused. The goods were supplied to the accused through Rickshaw. He used to hire rickshaw from the chowk and most of the times the rickshow puller used to be a new one. Though, he had permanent rickshaw paller but in the present case, the goods were supplied by hiring rick shaw from the chowk and not from his permanent rickshaw puller, they used to give two documents to the rickshaw puller i.e. one Kachi Parchi wherein address of the accused used to be written and the other document was the bill and they used to orally make the address of the accused understand to the rickshaw puller. They used to give two copy of the bill to the rickshaw puller. The first copy of the bill was for the accused/persons to whom the goods were sent and the second copy was endorsed by the accused / person to whom the goods are sent evidencing that he has received the goods. The endorsement on the bill was taken as the payment was not made to the rickshaw puller but was made afterwards after they show Case No. 15735/2016 6/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
the receiving to the accused / persons to whom the goods were sent. The signed copy was given to the person to whom the goods were sent and when he makes the payment by any mode of payment which is afterwards adjusted in his account. He further stated that he had have received endorsement on all the invoices through which goods have been supplied by him to the accused. The endorsement regarding receipts of goods by the accused was on the second copy of the invoices which was handed over to him by the rickshaw puller, the endorsement was made by the accused or his father or his mother or any of his family members. He was familiar with the signature of the accused and regarding signatures of rest of his family members, he used to recognize the same from their names. The endorsed copy of the bill as received back after supply of goods was kept in his office. Vol. The payment regarding the bills was received by us usually within one week. He could not state the precise number of bills in the present case since there are too many bills. Upon asking the specific question to the complainant/CW1, he stated that the payment was made in the present case by the accused on account and not billwise. He admitted that there is no receiving by the accused or by any of his family members on any of the bills regarding receipt of goods. He denied that no goods whatsoever have ever been supplied by him to the accused. Till the time, the dealing went on between him and the accused, he only knew one address of the accused i.e. 720, Mukimpura. After the dispute arose between him and the accused, he made inquiry from the neighbours (whose names he did know) and then came to know of the address of the residence of the accused some in the year 2015, however the month he could not specify. He did not recollect the proper precise address right now. The address must be Punjabi Basti. He had gone to the said address at Punjabi Basti, though He cannot not tell as to when he went there. He can not also tell as to whether it was in the morning, afternoon or evening. The address that he came to know of Punjabi Basti of accused was mentioned as address no. 1 of the accused in the complaint. He Case No. 15735/2016 7/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
denied that the accused was not residing at the address of Punjabi Basti and that it was not the residence address of the accused. The accused did not tell him his proper residence address, he had started dealing with the accused in the year 2015. He could not tell the precise date and month. At the time of dealing with the accused, he used to make the bills. The bills were computer generated. Two copies of bills were taken out which the bills were made. He signed both the bills. They did not keep physical copies of the bills for his record as it was not required and also as and when the was required and they took printout from the computer. Upon asking his specific question, he stated that no one as of now has ever come to his office for inspection or verification. The software used for preparation of bill is MARG ERP9. This is the full name of the software and there is no version in the software. The total dealing with the accused since beginning till date has been for an amount above Rs. 6 lacs: Tentatively the total dealing with the accused would have been for an amount of Rs. 7,50,000/. He had office cum godown cum house at the address mentioned in the complaint. He had not measured the size of the said office cum godown cum house and therefore, He could not tell the same. They did not maintain any stock register as they had started a new business, therefore they were not aware as to how to maintain stock. The goods that they purchased comes in truck. In the present case, the orders were placed telephonically by the accused to him or sometime when he or some other staff used to go to the accused to collect payments, the accused used to place orders to that person. He did not know the name of the mother of the accused. He knew the name of father of the accused which is Raju Gupta. He denied that Raju Gupta is not the name of the father of the accused. Vol. The father of the accused was known by name of Raju Gupta in the business circle. He further denied that father of the accused was not known by name of Raju Gupta in the business circle. He did not know the name of any other family member of the accused. He further stated that he can identify the signature of father of accused. The father of accused used to sign/ Case No. 15735/2016 8/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
initial starting with R and thereafter something alongwith that R. He further denied that father of accused used to sign in the said manner. The cheques for which the present complaint has been filed were given to him in gap of time and not together. The cheque bearing no. 040135 Ex. CW1/D drawn for a sum of Rs. 1,80,000/ was given to him on 06.09.2015. The said cheque was received by him from the accused from the shop of the accused. The said cheque when given to him by the accused had every detail duly filled in and nothing was filled in by him. He did not know as to who had filled in the details in the said cheque as when he was handed over the said cheque, it already had all the details filled in. He further stated that the cheque bearing no. 039739 Ex. CW1/F drawn for a sum of Rs. 2 lacs was given to him on 08.09.2015. The said cheque was received by him from the accused from the shop of the accused. The said cheque when given to him by the accused had every detail duly filled in and nothing was filled in by him. He did not know as to who had filled in the details in the said cheque as when he was handed over the said cheque, it already had all the details filled in. The cheque bearing no. 039738 Ex. CW1/B drawn for a sum of Rs. 20,000/ was given to him on 04.09.2015. The said cheque was received by him from the accused from the shop of the accused. The said cheque when given to him by the accused had every detail duly filled in and nothing was filled in by him. He did not know as to who had filled in the details in the said cheque as when he was handed over the said cheque, it already had all the details filled in. The cheque bearing no. 039734 Ex. CW1/C drawn for a sum of Rs. 15,000/ was given to him on 04.09.2015. The said cheque was received by him from the accused from the shop of the accused. The said cheque when given to him by the accused had every detail duly filled in and nothing was filled in by him. He did not know as to who had filled in the details in the said cheque as when he was handed over the said. cheque, it already had all the details filled in. The cheques Ex. CW1/B & Ex. CW1/C had been presented by him thrice in the bank for encashment. The said Case No. 15735/2016 9/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
cheques had been presented by him after obtaining confirmation from the accused on telephone. On first and second dishonour of the said cheques, the accused had stated that either he will pay in cash or he will instruct the complainant to present the cheque in some time for encashment. On dishon our of the cheques for the third time, the cheque could not be presented thereafter again for encashment. He did not have any conversation with the accused after dishonour of the cheque after third time. The cheques Ex. CW1/D and Ex. CW1/F had been presented for encashment only once and thereafter they were dishonoured. So far as Ex. CW1/D & Ex. CW1/F are concerned, he did not talk to the accused after their dishonour. He denied that cheque book with the leaf containing cheque no. 040135 Ex. CW1/D was issued by the bank to the accused on 07.09.2015 and therefore, the accused could not have issued the said cheque to him and he could not have received the said cheque on 06.09.2015. He further denied that the cheque Ex. CW1/F had only 20,000/ written on it in figure by the accused which forged and manipulated to 200000 in figure. The cheques in question had been issued to him by the accused towards on account payment and not towards any particular bill. He did not remember as to what was the liability which the accused was liable to pay to him when each of the said cheques Ex. CW. 1/B, Ex. CW1/C, Ex. CW1/D and Ex. CW1/F were issued to him. The accused had issued the cheques to him prior to the issuance of the four cheques in question, which had been encashed by him, however, he did not know the total amount of the cheques which had been honoured. He did not remember as to who had collected the other cheques issued by the accused which had been encashed by him. During asking him specific question i.e. as under as Please see cheque Ex. CW1/B and cheque Ex. CW1/C bearing no. 030738 & 039734 respectively which you had stated to have been aded over to you on the same date ie 04.09.2015. What do you have so say regarding the cheques bearing no. 039735, 039736 & 039737 which are the leafs in between the said cheques ? (objected to by the Ld. Counsel for the complainant).
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Specific question was asked as 'I put it to you that cheques bearing no. 039735 & 039736 have been honoured in your account and debited in the account of the accused on 01.09.2015. What you have to say? To which witness answered 'I can not say only by knowing the above said cheques number as to whether the said cheques have been honoured in my favour or not and similar is my reply with respect to the date of the cheques so asserted. He further stated that he had received certain payment in cash from the accused, however, he did not remember the amount so received. The ledger used to be maintained by his C.A Mr. Priyank Gour. Mr. Priyank Gaur would be knowing whether ledger has been maintained or not with respect to the accused. Upon asking him specific questions during his further crossexamination, he stated that "the number of staff members often fluctuate and therefore, I am not in a position to answer as to how many staff I had during that time. I am sure that there was one staff member except me but there might have been more person also, however, I am not sure". He denied that he had no stock to make any supplies of the goods to the accused during the period the invoices were raised. He further denied that the invoices filed by him were forged and fabricated. Upon asking him specific question, he further stated that the company has made CNF from whom we take goods during the period when the supplies were made to the accused. During the said period, he think there were two CNF's consecutively. The name of CNFS who were supplying previously was SB Mark Pvt Ltd. The exact address of said CNF. He did not remember, however, their office/work/ warehouse might have been in Mayur Vihar, PhaseIII. The second CNF was Vadaty Venture whose exact address, he did not remember, however, the address might be somewhere in Dwarka side. He denied that he had not received goods during the period when the supplies were made to the accused from any of the CNFs. He received bills from the CNFS whenever supplies were made to him by them. He could not tell either the exact time or whether it was morning, afternoon or evening when the four cheques in question i.e Ex. CW1/B, Ex.
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CW1/C, Ex. CW1/D and Ex. CW1/F were given to him by the accused as long time has elapsed since the issuance of the said cheques. He further denied that he was deliberately avoiding to answer the question regarding time of alleged issuance of the said cheques. He further denied that cheques Ex. CW 1/C and Ex. CW1/B were given to him as security and has been misused by him and filled up by him or by person known to him, except for the signatures and amount in figures, without the authority, knowledge, approval or consent of the accused. During Specific question asked to him that "can you tell the date and time regarding your talks with the accused for presentation of the four cheques in question?, he answered 'Regaring cheque Ex. CW1/B, I was told by the accused on 04.09.2015 in the morning to present the said cheque, I do not remember the date and time regarding having talks with the accused for presentation of said cheque to my bank for the second and third time." Regarding cheque Ex. CW1/C, he was told by the accused on 04.09.2015 in the morning to present the said cheque. he do not remember the date and time regarding having talks with the accused for presentation of said cheque to his bank for the second and third time. Regarding cheque Ex. CW1/D, he was told by the accused on 06.09.2015 to present the said cheque, however, he did not remember the exact time regarding having talks with the accused for presentation of said cheque to his bank. Regarding cheque Ex. CW1/F, he was told by the accused on 08.09.2015 to present the said cheque, however, he did not remember the exact time regarding having talks with the accused for presentation of said cheque to his bank. He denied that he had no talks with the accused at any time regarding presentation of the said cheques. He further denied that he had forged the cheque Ex. CW1/F to make it read as 2,00,000/ from 20,000/ without any authority, consent or approval from the accused. He further denied that the cheque Ex. CW1/F had been given blank as security by the accused by writing 20,000/ in figures and by putting his signatures in it. During futher specific questions asked to him that "what was the entire liability Case No. 15735/2016 12/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
for the part discharge of which you averred that the accused issued cheques in question as referred in para 4 of your affidavit? , witness answered 'It was approximately Rs. 4.5 to 4.75 lacs.' Witness further testified that the accused was asked to show the said receipt regarding update on the case file. After seeing the record, the witness stated that the registered AD. postal receipts Ex. CW1/1 and Ex. CW1/3 respectively. He denied that Ex. CW1/1 and Ex. CW 1/3 did not show delivery of any legal notice on the accused. He further denied that the accused did not receive any legal notice. He further denied that he had deliberately and knowingly not placed on record any proof of delivery of legal notice upon accused as the legal notice had not been served upon the accused. He further denied that no legal notice had been issued or served upon the accused. The documents marked as Mark A to Mark C are the print out that have been taken out by him through the printer from the official website of DVAT, however, the exact IP address he did not remember. The document marked as Mark C has been thereafter got stamped from the Department of VAT. He further denied that the documents marked as Mark A to Mark C have not been taken out by him through the printer from the official website of DVAT. He further denied that the document marked as Mark C has not been thereafter got stamped from the Department of VAT. He further denied that he did not know how to operate a computer. He did not remember as to what was the amount that has been received by him from the accused, however, the amount has been received by way of cheques. He maintained on his own his billing software. He further denied that he did not maintain his own billing software. The bills can not be added changed/modified/ altered in his billing software. He further denied that the bills can be added/ changed / modified/ altered in his billing software. He further denied that the certificate u/s 65 B of Indian Evidence Act is not in proper form. He further denied that the averments made in certificate u/s 65 B of Indian Evidence Act are all incorrect. He further denied that he did do not have or maintain any billing software. He further Case No. 15735/2016 13/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
denied that no goods have been supplied by him to the accused till date despite receipt of Rs. 1,60,000/. He further denied that present complaint has been filed by him only as an afterthought to avoid paying back the amount of Rs. 1,60,000/ to the accused. He further denied that H.No. 2618, First Floor, Lambi Gali Basti Punjabi Subzi Mandi, Delhi is not the address of the accused and the accused never resided there. He further denied that 720, Muqim Pura, Subzi Mandi Delhi is not the address of the accused. Upon asking him specific questions, he stated that the bank of the accused is on the first floor but his shop on the ground floor in the same building. He denied that the number 720 is not of the entire building. He further denied that cheque Ex. CW1/D had been misplaced and somehow he had managed to get hold of the said blank signed cheque and the same had been filled in by him or person known to him without the authority/ knowledge / approval or consent of accused. It is wrong to suggest that the invoices filed on record have no connection with the accused at all. He further denied that the invoices filed on record were not the true print outs. He further denied that no goods have ever been supplied by him to the accused. He further denied that there is no legal liability on the part of the accused. He further denied that the cheques in question were not issued in discharge of any legal liability. Upon asking him specific question, he stated that he did not know the exact figure, however, the turn over must be above Rs. 1 Crore. He did not know what VAT refund means and therefore, he not answer whether they have claimed any VAT refunds. He was not technically sound in this respect. He further denied that he was deposing falsely. Thereafter, CE was closed vide order dated 28.02.2018 on the statement of proprietor of complainant.
6. The statement of accused was thereafter recorded under Section 313 Cr.P.C.
on 17.05.2018 wherein the entire incriminating evidence was put to the accused and he reiterated his defence. He stated that he had already made payment to Case No. 15735/2016 14/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
the complainant for certain goods which have not been supplied to him. His shop number is 718 A, Muqimpura, Subzi Mandi, Clock Tower, Delhi110007 and his residential address since 2015 is 2929, 3 rd floor, Arya Pura, Subzi Mandi, Ghanta Ghar, Delhi110007. The accused however chose to lead evidence in his defence.
7. DW1/Sh. Hem Chand examined as a summoned witness and produced the authority letter whereby deputing him to depose on behalf of bank and the same is Ex.DW1/A (running in two pages). He had also brought the statement account of complainant's bank and the same is Ex.DW1/B (running in 5 pages). DW1 was duly crossexamined by the Ld. counsel for the complainant Sh. Pushpender Sehgal wherein DW1 deposed that he did not have any personal knowledge regarding the present case. He admitted that the bank statement Ex.DW1/B is not certified under the Bankers Book Evidence Act. He did not know what is the difference between date and value date as mentioned in page no. 4 at point A to A1.
8. DW2/Sh. Satish Anand was examined and produced the summoned record which is a rent agreement dated 06.03.2014 entered into between him and the accused copy of which is Ex.DW2/1, original of which he had brought that day. He also produced the rent agreement dated 24.04.2015 entered into between him and the accused copy of which is Ex.DW2/2, original of which he had brought that day. He also brought the rent agreement dated 12.06.2016 entered into between him and the accused copy of which is Ex.DW2/3, original of which he had brought that day. He also produced the rent agreement dated 29.01.2017 entered into between him and the accused copy of which is Ex.DW 2/4, original of which he had brought that day. He also produced the rent agreement dated 30.01.2018 entered into between him and the accused copy of which is Ex.DW2/5, original of which he had brought that day. He also Case No. 15735/2016 15/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
produced the rent agreement dated 20.05.2019 entered into between him and the accused copy of which is Ex.DW2/6, original of which he had brought that day, the tenancy thereof would expire on 07.03.2021. He further stated that the accused Rajesh was staying in the rented premises i.e., on 3 rd floor, H. NO. 2929, Arya Pura, Sabzi Mandi, Delhi07 since the execution of the first rent agreement till date. DW2 was duly crossexamined by the Ld. counsel for the complainant Sh. Pushpender Sehgal wherein DW2 deposed that he is the owner of the H. no. 2929, Arya Pura, Sabzi Mandi, Delhi07. He had not produced the ownership documents that day. He denied that he was neither the owner nor the landlord of the said premises. He had have not produced receipt book in respect of the rent paid by the accused to him. He further denied that all the rent agreements filed by him that day in the court were forged and fabricated and the same were not genuine. He further denied that the accused was not his tenant and he was not his tenant at any point of time. He did not remember whether the accused has any shop at premises no. 720, Mukim Pura, Sabzi Mandi. The accused was having business of selling of toffee (golies), biscuits and Haldiram Namkeens on wholesale as well as retails. He did not know whether any bank namely Delhi Nagarik Bank is located at the first floor of premises no. 720, Mukim Pura, Sabzi Mandi, Delhi. He is not personally aware about the facts of the present case. He did not know what is on the ground floor of premises no. 720, Mukim Pura, Sabzi Mandi, Delhi. He further denied that he did not reside at 29292932, Arya Pura, Sabzi Mandi, Delhi07 and for the reason he was unable to tell about the shops and houses in the vicinity of that area/Mukim Pur Sabzi Mandi. He further denied that he was tutored witness produced by the accused to depose in his favour. He further denied that he was deposing falsely.
9. DW3/Sh. Anirudh Sinha, Manager, Connection Managment Group, TPDDL, Lawrence Road, Keshav Puram, Delhi deposed that he produced the summoned Case No. 15735/2016 16/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
record ie., new connection file of CA no. 60004090324 in the name of Raj Babu Gupta address H. NO. 718A, Mukim Pura, Sabzi Mandi, Delhi07 which documents are Ex.DW3/1 (colly running into 14 pages). He had not produced the record in respect of property no. 720, Mukim Pura, Sabzi Mandi Clock tower, Delhi07 since the system does not pick up any details without a CA number and since the CA number has not been provided he had not produced the said record. DW3 was duly crossexamined by the Ld. counsel for the complainant Sh. Pushpender Sehgal wherein DW3 deposed that he had been authorized by the Head of his department to depose in the present matter that day. He had produced the authority letter dated 01.04.2018 which is Ex.DW3/2 (OSR). He admitted that in the present authority letter he had been designated as Assistant Manager. Vol. He had been promoted from Assistant Manager to Manager in the year 2019. He further admitted that in the present authority letter he had not been specifically authorized by his head to depose in the present case that day. He denied that he was duly authorized by his departmental head to depose in the present matter that day. He had only brought the record and he did not have any personal knowledge of the present case.
10. DW4/Sh. Rajinder Saini, Field Inspector, Delhi Nagrik Sehkari Bank Ltd., Sabzi Mandi Branch, Delhi deposed that he had been authorized by the Branch Manager which authority is Ex.DW4/1. He produced the summoned record in respect of saving account no. 8977 in the name of Rajesh S/o Sh. Raj Babu with address H. NO. 474, Sabzi Mandi, Delhi which is ExDW4/2 (colly running into 10 pages bearing no. 1 to 11). In terms of record produced by him page no. 7 at point A to A shows that the cheque book containing cheque leafs no. 40131 to 40140 was issued on 07.09.2015. The letter from Mr. Rajesh requesting for stopping the payment of the cheque no. 040135 is not traceable in our record. The address of Rajesh in terms of record produced by him, is 747 Sabzi Mandi Delhi07. The address of Delhi Nagrik Sehkari Bank Ltd., Sabzi Mandi Branch, Case No. 15735/2016 17/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
Delhi is 720, Ghanta Ghar, Sabzi Mandi, Delhi 07 which is mentioned on the authority letter. DW4 was duly crossexamined by the Ld. counsel for the complainant Sh. Pushpender Sehgal wherein DW4 deposed that his bank was located on the 1st and 2nd floor of property no. 720, Ghanta Ghar, Sabzi Mandi, Delhi 07. The ground floor of the said property consists of Jungli Dharam Shala and few shops. He cannot say whether any other documents were submitted by Mr. Rajesh at the time of opening this saving account. He got the letter in respect of stop payment of cheque no. 040135 searched through the peon, however the same was not traceable. Upon asking him specific question during his crossexamination, "Are you aware whether any such letter in respect of stopping the payment of cheque no. 040135 was given by Rajesh to the bank or not?, to which he answered that 'I am not aware since I was not posted in the particular branch at that time." He denied that no letter was given by Mr. Rajesh to the bank asking for stopping the payment the cheque no. 040135. The record at page no. 7 shows that cheque no. 40135 was dishonoured due to the reason stop payment. The system does not show the date of presentation of said cheque as the payment of the said cheque had been stopped. In terms of record the cheque no. 40131, 40132 and 40136 were cleared by his bank on 10.09.2015. In terms of record the cheque no. 40133 and 40134 were cleared by his bank on 14.09.2015. The cheque was generally cleared on the next day of the presentation of the cheque. The balance in the said saving account as on 24.09.2015 was Rs.143.49. The balance in the said saving account as on 13.10.2015 was Rs.4389.49. The balance in the said saving account as on 29.09.2015 was Rs.68.49. The balance in the said saving account as on 30.09.2015 was Rs.89.49. He did not have any personal knowledge of the present case.
11. DW5/Rajesh Sharma, Assistant Sanitary Inspector13N Civil Line Zone, Clock Tower, NDMC, Delhi deposed that the area of Mukimpura Sabzi Mandi Case No. 15735/2016 18/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
falls under him. He and other officers issues challan in the said area in respect of sanitation. That day, he produced a document dated 23.01.2020 showing details of payment made by the offenders / persons in whose name challans were issued by him for the month of November and December 2017. The document is Ex.DW5/1 bearing the signatures of Sh. Sudhir Kumar Chauhan, Chief Sanitary Inspector, Civil Line Zone at point A and bearing his signatures at point B. He had issued challan to Mr. Rajesh Gupta whose name appears at serial no. 162 on Ex.DW5/1 at point C. Two copies of challans were issued, one was given to the offender and the other was deposited by them with the NGT. He had seen the copy Mark A (objected to as to mode of proof admissibility) shown to him that day on which he identified the signature of Mr. Rajesh Mann, licensing Inspector of Ward No. 13N which is at point A. His signature appears as a witness of the challan at point B of the said document Mark A. The said document Mark A is also witnessed by Sh. Sanjeev Kumar, Sanitary Inspector, at point C. After seeing the document Mark A I say that the said challan was issued at address 718 Mukimpura, Subzi Mandi Clock Tower in the name of R.R Agency, Rajesh Gupta who was carrying the business of confectionery items. During special programme, a team was constituted to issue challans and in this case the team was constituted by Sh. Santosh Rai, IAS, Assistant Commissioner, Civil Line Zone, for issuing challan to the offenders using plastic bags. The amount as reflected at serial no. 162 of Ex.DW5/1 was deposited pursuant to the challan Mark A issued to R.R Agency, Rajesh Gupta. DW5 was duly crossexamined by the Ld. counsel for the complainant Sh. Pushpender Sehgal wherein DW5 deposed that the summons in regard to the present case to depose were issued not in his name but in the NDMC, Civil Line Zone. Inspector Sanjeev Kumar of NDMC, Ward No. 13N, Civil Line Zone has authorized him to depose in the present case. He had been authorized by the said Inspector to depose as well as to submit Ex.DW5/1 in the present case. No authority letter has been issued to him by the said Inspector in this regard. He Case No. 15735/2016 19/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
was received the summons in this regard as issued by this Hon'ble Court. Vol. He has been authorized by the inspector as the said area in regard to challan subject matter of his present deposition falls under him. He denied that he had not been authorized by the concerned Inspector to depose and to bring on record Ex.DW5/1 in the present case. He further stated that the area of Mukimpura comes under his jurisdiction since 2014. He did not have any document at present to prove that the said area falls under his jurisdiction since 2014. Vol. An office order was passed in 2014 wherein he had been appointed in the said area as ASI. He did not have any such order with him that time. He further stated that apart from him, Mr. Raj Kumar ASI and Mr. Sanjeev Kumar SI and area LI, area vetinory Inspector and Public Health Inspector, Malaria Inspector can issue challan. Thereafter, DE stands closed vide order dated 21.09.2023.
12. Final arguments advanced by Sh. Abhishek Jain, Ld counsel for the complainant and by Ms. Himanshu, Ld. Counsel for the accused have been carefully considered alongwith the entire evidence on record.
13. To prove an offence under Section 138 NI Act, it is required to be proved that:
(i) The accused issued a cheque on an account maintained by him/her with a bank for payment of money to another from out of that account;
(ii) That cheque has been issued for the discharge (either in whole or in part) of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour Case No. 15735/2016 20/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
the cheque or it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him/her from the bank regarding the return of the cheque as unpaid; and
(vi) The drawer of such cheque failed to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
14. In the case at hand, the accused has not disputed that the cheque in question has been issued on an account maintained by him with a bank and hence the ingredient (i) is deemed to proved as not disputed.
15. In respect of ingredient (iii) and (iv), the complainant has testified that the cheque in question ie Ex CW1/B, Ex. CW1/C and Ex. CW1/D was returned dishonoured on 29.09.2015 and cheque Ex. CW1/F was dishonoured on 30.10.2015. During his crossexamination, no questions were put to the complainant nor any suggestions were given to him as to the cheque not having been presented to the bank within the period of its validity. Hence the ingredient (iii) ie the factum of the cheque in question having been presented during the period of its validity is deemed to be proved as not disputed.
16. Further, with the factum of dishonour of the cheque in question being not disputed by the accused and rather as having been admitted by him in his statement under Sec 313 CrPC, the ingredient (iv) is also deemed to be admitted as not disputed.
Case No. 15735/2016 21/28M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
17. In respect of the legal notice, as CW1, the complainant has testified that upon dishonour of cheque in question, he sent notice dated 26.10.2015 (Ex CW1/H) to the accused for return of the cheque amount vide speed post and courier on 26.10.2015 ie within 30 days of dishonour of the cheque. The complainant also relied upon receipts (Ex CW1/I and Ex CW1/J). The accused has however denied receipt of the notice of demand at the stage of framing of notice as well as in his statement under Section 313 Cr.P.C.
18. It is pertinent to note that Section 114 of Evidence Act, 1872 is applicable to communications sent by post and it enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted, it is presumed to have been served unless rebuttal is given.
19. In the present case, it is not the case of the accused that the address on which the notice was sent is not her address, rather she has given the same address in the court when her statement under Section 281 r/w 313 Cr.PC was being recorded. Hence the notice was sent by the accused at her correct address. For reasons best known to her, the accused has not led any evidence in rebuttal to disprove the report given by the postal official either.
20. Further, in CC Alavi Haji Vs. Palapetty Muhammed & Anr. (Crl. Appeal No. 767 of 2007), the Hon'ble Apex Court has held that "Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s. 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a Case No. 15735/2016 22/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint u/s. 138 of the Act, cannot obviously contend that there was no proper service of notice as required u/s. 138, by ignoring statutory presumption to the contrary u/s. 27 of the General Clauses Act and Section 114 of the Evidence Act".
21. Thus, keeping in view that except mere denial of receipt of notice of demand, no evidence in rebuttal has been led by the accused, and though several questions were put up however also keeping in view the dictum of the Hon'ble Apex Court, merely on the account of non service of legal notice dated 26.10.2015 (Ex. CW1/H) the present complaint cannot be rejected and the same is presumed to have been duly served upon the accused.
22. In respect of ingredient (vi), it is pertinent to note that admittedly the accused has not made any payment to the complainant in respect of the cheque in question till date. Hence even the ingredient (vi) stands proved.
DEBT/LIABILITY
23. It is a well settled position of law that once execution of the negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is supported by a consideration. However, such presumption is rebuttable and the accused can prove the nonexistence of consideration by raising a probable defence. If the accused is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the complainant who will be obliged to prove it as a matter of fact and upon its Case No. 15735/2016 23/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the accused of proving the non existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon all the evidence led in the case including that of the complainant as well. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist. "(Reliance placed on Bharat Barrel & Drum Manufacturing Company v. Amin Chand Pyarelal, (1993) 3 SCC 35 ).
24. The NI Act also provides under Section 139 that it 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. Thus, 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. 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. 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. (Reliance placed on Rangappa vs Sri Mohan, (Criminal Appeal no 1020 of 2010 decided by the Hon'ble Supreme Court).
Case No. 15735/2016 24/28M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
25. In the present case, from the evidence on record, accused have been able to displace the case of the complainant upon preponderance of probablity.
26. Complainant has placed on record various bills i.e Mark D in the complaint filed by the complainant None of the bills bears the signature of the accused to signify the acknowledgment on part of accused or signatory on behalf of the complainant.
27. It is the testimony of the complainant in his cross examination dated 29/03/2017 at page no. 2 that "we used to give two documents to the rickshaw puller i.e. one kachiparchi wherein address of the accused used to be written and the other document was the bill and we used to orally make the address of accused understand to rickshaw puller. We used to give two copy of the bill to rickshaw puller. The first copy of the bill is for accused /persons to whom goods are sent and the second copy is endorsed by accused /person to whom the goods are sent evidencing that he has received the goods. The endorsement on the bill is taken as the payment is not made to the rickshaw puller but is made afterwards after we show the receiving to the accused persons to whom the goods are sent. The signed copy is given to the person to whom the goods are sent and when he makes the payment by any mode of payment which is afterwards adjusted in his account. I have received endorsement of all invoices through which the goods have been supply by me to the accused. The endorsement regarding the receipt of the goods by the accused was on second copy of invoices which was handed over to me by the rickshaw puller, the endorsement was made by the accused or his father or his mother or any of his family members". The Case No. 15735/2016 25/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
accused further says in 3rd line of the next para of the same page "that endorsed copy of the bill as received back after supply of good is kept in our office". No such endorsement copy has been placed on record despite the deposition of the complainant. This brings into serious doubt the delivery of the products to the accused and therefore this has to be interpreted against the complainant.
28. The complainant in his cross examination dated 23/03/2017 stated at page no. 2 that "the payment of the bill by the accused was adjusted in his account"
and at page no. 3 of the said cross examination the complainant has stated of the para no. 2 of answer of the question that "the payment was made in the present case by the accused on the account and not bill wise". it is clear from the statement of the complainant that an account must have been maintained by the complainant regarding the transaction with the accused. But the complainant has stated in his cross examination dated 22/05/2017 at page no. 4 in the last para that "I have received certain payment in cash from the accused, however I do not remember the amount so received. The ledger used to be maintained by our CA Mr. Priyank Gaur. Mr. Priyank gaur would be knowing whether the ledger maintain or not with respect to the accused". Further doubt has been created with respect to liability by the deposition of complainant as "the total dealing with the accused since beginning till date has been for amount above rate 6 lakhs tentatively. The total dealing with the accused would have been for amount of Rs. 7,50,000/. The complainant has not presented any ledger account which shows the amount of 6 lakhs or 7,50,000 as liability towards the accused. This particular piece of deposition creates doubt the whole case of complainant. When there is clear testimony on the part of the complainant that Case No. 15735/2016 26/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
some cash amount has been paid by the accused while its remains unascertainable as how much such amount was and no clarification has been given on the part of the complainant, the floating nature of liability in the present case which is not precise has to be interpreted against the complainant and benefit of doubt has to be given to the accused.
29. Further doubt has been created with respect to liability by the deposition of complainant as "the total dealing with the accused since beginning till date has been for amount above rate 6 lakhs tentatively. The total dealing with the accused would have been for amount of Rs. 7,50,000/. The complainant has not presented any ledger account which shows the amount of 6 lakhs or 7,50,000 as liability towards the accused.
30. It is a settled law that standard of proof on the part of an accused and that of the prosecution a criminal case is different and while prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities (Reliance placed on Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54).
31. In view of the above discussion and in the totality of the facts and circumstances of this case, the accused has miserably failed to prove his defenses, even upon the parameters of preponderance of probabilities.
32. Hence, with the presumptions arising in favour of the complainant under Sections 118 and 139 of the Act not having been rebutted by the accused by preponderance of probabilities, and with the accused failing to lead clear, cogent and credible evidence to prove that the cheques in question was not Case No. 15735/2016 27/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.
issued in discharge of any legally enforceable debt or liability, the accused Rajesh Gupta S/o Sh. Raj Babu Gupta is held not guilty for the offence punishable under Section 138 of the Negotiable Act and hence, he stands acquitted.
33. Accused Rajesh Gupta S/o Sh. Raj Babu Gupta is directed to furnish bail bond and surety bond in the sum of Rs.40,000/ under section 437(A) of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him.
File be consigned to Record Room after due compliance.
Announced in the Open Court on 06.10.2023.
(VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 28 pages and each page bears my signature.
(VAIBHAV CHAURASIA) Metropolitan Magistrate04/ North West District Rohini District Court/New Delhi Case No. 15735/2016 28/28 M/s Bharat Deep Traders Vs. Rajesh Gupta Ors.