Delhi District Court
By Way Of The Present Judgment vs . Union Of India And Others ; Ii (1996) Ccr ... on 30 October, 2007
IN THE COURT OF MS. PREETI AGRAWAL GUPTA , METROPOLITAN
MAGISTRATE, DELHI
CASE NO.1596/97
P.S. KAROL BAGH
U/S 138 N.I.ACT
JUDGEMENT
1. Sl. No. of the case : 1596/97
2. Name of the complainant : Pratap Singh
3. Date of commission of offence : 25.08.89
4. Name of accused and Address : 1 M/s G.L.C.Leather Export
H 129, Karampura, New Moti
Nagar, New Delhi
2 Sh.Gurvinder Singh
3 Sh. Mahinder Singh (died)
Both Partners
H-129, Karampura, New Moti
Nagar, New Delhi
5 Offence complained of : U/s 138 N.I. Act
6 Plea of accused : Pleaded not guilty
7 Final order : Conviction
8 Date of such order : 23.10.07
Date of Institution of case : 17.10.89
Date of hearing Final Argument: 17.10.07
Date of decision of case : 23.10.07
BRIEF FACTS OF THE REASONS FOR THE DECISION
1. By way of the present judgment, the court shall adjudicate upon the complaint u/s 138 Negotiable Instruments Act filed by the complainant against the accused. The facts of the case stating briefly are that it is the case of the complainant that he is proprietor of M/s Virjash Leather has been doing the business of selling leather and leather goods and accused firm M/s G.L.C. Leather Export have been purchasing these goods from the complainant through its partners against accused no.2 Gurvinder Singh and accused no.3 Mahinder Singh (now deceased). The goods were supplied by the complainant to the accused against various orders placed by them on different dates and the total goods worth Rs. 1,71,797/- were received by the accused up to 27.04.89. It is further the case of the complainant that he made repeated requests and demand upon the accused for clearing the dues but the accused persons gave only three cheques for an amount of Rs. 30,000/- dt.04.05.89 , Rs. 11,591/- dt/ 25.07.89 and Rs. 5,827/- dt. 25.07.89 with the promise that they would clearing the entire remaining dues by 20.08.89. The three cheques were issued by the accused from the account maintained with their banks but all the three cheques when presented by the complainant with his bank for encashment were returned back by the bank unpaid on account of insufficiency of funds with the reasons 'payment stopped by drawer ' for cheque no.88421 and 88422 vide memo dt. 18.08.89 and for the remaining cheque bearing no.873607 with the reason 'Refer to the drawer' vide return memo dt. 18.08.89 of the banker of the complainant and the return memo of the State Bank of India, Padam Singh Road, Karol Bagh, New Delhi dt. 19.08.89. The complainant issued a legal notice dt. 25.08.89 which was stated to be duly served all the three accused persons through registered post on 30.08.89. However the accused is stated to have not returned the aforesaid amount against the cheques in question or paid the amount against the cheques in due discharge of legal liability pursuant to dishonourment of the cheques in question. The present complaint has been filed after the complainant has stated to have not received the money within the stipulated period of time despite legal notice on 12.10.89, for summoning, trying and punishing the accused in accordance with law for the offence committed by the accused mentioned in the complaint.
2. The complainant led his pre summoning complainant evidence as CW1 on oath. Thereafter the concerned court summoned all the three accused persons for the offence u/s 138 N.I. Act vide order of the concerned court dt. 06.02.93 for dishonouring of the cheque no. 873607 dt. 04.05.89 for Rs.30,000/- drawn on UCO Bank.
3. On appearance of the accused before the court by way of appropriate processes, both the accused were admitted on bail. During the proceedings accused no.3 avoided the due process of law and failed to participate in the proceedings so that appropriate processes for issuance of warrants and thereafter process u/s 82/83 Cr.pc was issued against the accused no.3. However, during the pendency of the complaint, Ld. Court of MM Delhi vide order dt. 09.07.96 was pleased to closed the case and discharge the accused with the finding that the case was squarely covered under the directions given under(e) of Para 2 of "Common Cause " judgment of Hon'ble Apex Court in Re : Director Vs. Union of India and others ; II (1996) CCR 180 (SC). However the case shall re opened after the modified judgment of the Hon'ble Supreme Court Common Cause Vs. Union of India and Others IV (1996) CCR 134 vide orders of the court dt. 28.02.97. Repeated processes for appearance of the accused were initiated. Accused no.2 presented himself before the court after appropriate processes and accused no.3 Mahender Singh since expired and proceedings abated against him. After due consideration of the arguments, notice u/s 251 Cr.PC has been framed against the accused no.2 , Gurvinder singh partner of M/S G.L.C. Leather Export vide orders of the court dt. 13.05.03 in respect of the three cheques in question to which accused pleaded not guilty and claimed trial. It shall be pertinent to mention here that as discussed above accused has been summoned vide order dt. 06.02.93 for dishonouring of the cheque no. 876389 dt. 04.05.89 for Rs. 30,000/- only . The complainant thereafter led its evidence and was duly cross examined by Ld. Counsel for accused at the post notice stage. Three bank witness one each from the State Bank of India, Padam Singh Road, Andhra Bank, Connaught Circus and UCO Bank Karol Bagh Delhi were summoned as complainant witness and examined on record. Testimony of CW3 who is the complainant himself, was, at length , recorded at the pre summoning stage. Same has been adopted by the complainant at the post notice stage for all practical purposes as the complainant has stood for cross examination by Ld. Counsel for the accused after framing of notice. The complainant as CW3 has got exhibited the impunged cheque as Ex.PW1/5 and cheque bearing no. 028421 dt. 27.01.89 for Rs. 11,591/-, cheque no. 088422 of Rs. 5,827/- dt. 25.07.99 as Ex/CW1/6 and Ex/CW1/7 respectively. The complainant has also tendered the copies of the bills by which bills of the orders placed by the accused for purchase of the goods on credit as Ex.CW3/A to Ex.CW3/F. The covering return memo of the banker in respect of the two cheques for which the present complaint has been filed as Ex.PW1/4 , namely State Bank of India, Padam Singh Road and the return memos in respect of the two cheques are exhibited as Ex.CW1/2 and Ex.CW1/3. The cheque return memo in respect of the impugned cheque dt. 18.08.89 issued by bank of accused UCO Bank Ex.CW1/1 wherein cheque bearing no. 873607 dt.04.05.89 for an amount of Rs. 30,000/- has been dishonoured on presentation with the reason "Refer to Drawer". The other two cheques for which the complaint has been filed have been unpaid on presentation with the remarks "Payment stopped by the drawer". The complainant has further led his evidence in respect of the legal notice sent through registered AD Ex.CW3/G and the receipt of the registree Ex.CW3/I, Ex.CW3/J and Ex.CW3/H . The acknowledgment cards in respect of the legal notice are exhibited on record as Ex.CW3/K, Ex.CW3/L and Ex.CW3/N and the complainant has deposed that the notice was duly served upon the accused on 30.08.89. It has been further deposed by the complainant that the accused failed to make any payment despite service of legal notice nor any reply of the same received. It has been deposed that there is deliberate and dishonest intention of the accused persons to avoid the payments against the three cheques. The complainant has been cross examined in detailed by Ld. Counsel for the accused on 05.11.03. Further the evidence of CW3 recorded at the post notice complainant stage was closed after examining three bank officials and their respective cross examination on 25.1.04. After the evidence of the complainant was completed, the statement of accused u/s 313 Cr.pc has been recorded after all the incriminating evidence in detail has been read over and explained to the accused Gurvinder Singh. The accused denied the allegations against him in toto and has stated that he was not involved in business tractions between the complainant and the accused company since he was the sleeping partner of the company and hence it is his case that there is no legally enforceable liability against him in respect of the cheque(s) in question. However, the accused desired to lead in his evidence in defence and has examined himself as DW1 by way of evidence tendered in the form of affidavit. The accused has raised a defence in his favour on the ground that he was the sleeping partner of the accused no.1, the partnership firm and did not participate in any day to day activities and that the other deceased accused Mohinder Singh was the active partner thereof. It is further stated in his evidence that the accused was not aware of issuance of any cheques in the name of the complainant at any stage before his appearance in the case as his brother never explained to him any business dealings between accused no.1 the firm and the complainant. The second defence which the accused has raised is that accused no.3 who was the deceased brother of the accused facing trial, had already made the payment to the complainant pertaining to the cheques involved in the present case vide receipt Ex.CW3/D1. The receipt was Ex.CW3/D1 confronted to the complainant as CW3 at the time of cross examination. It is defence of the accused put before the court that the receipt duly signed by the complainant was found by him after the death of his brother who was the active partner of the accused no.1 while searching documents left behind by him. It is the case of the accused that he never received any legal notice from the complainant and that there was any legal enforceable liability towards the complainant against him.
4. The court has heard the vehement arguments addressed by Ld. Counsel for the complainant Mr. G.K. Srivastava and that of accused Gurvinder Singh namely Mr. Rajesh Kumar Sharma advocate. The court has also perused the entire bulky and old record before proceeding with the adjudication on merits of the case. It shall be first important to examine the requisites of 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.
5. In the back drop of the aforesaid the following ingredients u/s 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.
6. The aforesaid ingredient are to be proved in light of the law governing the trial under the Negotiable Instruments Act which lays down the presumption in favour of the holder of the cheque to the fact that the cheque was received for the discharge "in whole or in part" of any debt or other liability by the drawer. This presumption has been laid down u/s 138 Negotiable Instruments Act and the same is to be read with Special rules of evidence under chapter (XIII) of Negotiable Instruments Act 1881, in particular Section 118 of the Act. It has been held by the Hon'ble Supreme Court of India in AIR SC 145 that "there is a legal presumption that the cheque was issued for the discharge of antecedents liability and that presumption can be rebutted only by the person who drew the cheque". It is accordingly the law of the land that the legal presumption of the cheque being issued in favour of the holder for due discharge of liability shifts the burden of proof upon the accused whereby it is for the accused to adduce rebuttal evidence to establish that the cheque was not issued towards any antecedent liability. The court is to accordingly appreciate the evidence in light of this applicable law regarding burden of proof.
7. In the facts of the present case, the main defence of the accused has been that the cheques in question were not issued in discharge in whole or part of any debt or liability by him. The court is to examine if the complainant/prosecution has been able to prove the legal enforceable liability of the accused in respect of any debt either in whole or in part. In the present case, the court is also to examine if the liability to pay the accused the cheques in question is legally enforceable against the accused Sh. Gurvinder Singh who is under going trial. Thirdly , another defence has been raised by the accused relying upon the receipt of payment purportedly issued by the complainant in favour of the accused no.1 stated to have been recovered by the accused facing trial from the business documents sifted by him after the death of his brother/accused no.3. It is the case of the accused that Mahender Singh who was the active partner of M/s G.L.C. Leather Export and that the accused before the court was the sleeping partner having no role over the business dealings between the complainant . It has been further the defence of the accused that the liability if any of the accused partnership firm stood discharged by way of payment against receipt exhibited on record as Ex.CW3/D1.
8. As discussed above the onus is entire upon the complainant to prove beyond the pales of reasonable doubt that the cheque(s) in question were issued by the accused in question in discharge of his liability and by virtue of operation of presumption u/s 139 Negotiable Instruments Act r/w 138 of the Act, the burden of disproving that the cheque was issued and drawn for consideration lies upon the accused. It has been held in Modi Cement Ltd Vs. Kuchil Kumar Nandi AIR 1998 SC 1057 as under "
"Once the cheque is issued by drawer the presumption u/s 139 of the Act must follow and merely because the drawer issues a notice to the drawer or to the bank for stoppage of payment , it will not preclude the action u/s 138 of the Act by the drawer or hold of the cheque in due course."
9. It has been further held in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and anr JT 1999(7) SC 558 that as the signature is 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 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 bear 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."
10. It is the case of the complainant in the present facts that the three cheques were issued on behalf of the partnership firm by two partners of the firm in discharge of their outstanding payment payable against goods supplied by the complainant to the accused firm. It has been further testified by the complainant that the accused before the court and the deceased partner were dealing in the business with the complainant vide various orders of the bills which have been duly exhibited as Ex.CW3/A to Ex.CW3/F. The validity or genuinety of the bills has not been challenged by the accused either in cross examination of the complainant or his own testimony which the accused has led. The complainant has testified that the three cheques were issued by the accused on behalf of the partnership firm to clear part of their dues and the same were dishonoured because of insufficient funds or short balance in the accounts of the accused. It has been a strong defence of the accused that he was a sleeping partner having no involvement or knowledge regarding any outstanding liability towards the complainant. It has been strongly contended by Ld. Defence counsel that the complainant had no business dealings with the accused Gurvinder Singh who is facing trial. The court shall examine the case on this aspect first. Ld. Counsel for the defence has relied upon the authority of Hon'ble Superior Courts given under:
(i) AIR 2004 SC 4274(Supreme Court)
(ii) 2007 II AD(Cr.) 33 (Supreme Court)
(iii) 2007 I AD (Cr.) (DHC) 505 (Delhi High Court)
11. It has been contended by Ld. Counsel for the accused that vicarious liability can be fastened only on those who are incharge and responsible for conduct of business of the company. It has been further argued that for the purpose of 141 Negotiable Instruments Act dealing with the offence by 'companies' , the firm comes within the ambit of company. It has been further argued that the complainant has failed to make any avernments that the accused Gurvinder Singh took active interest or participated in the business with the complainant. It has been further argued in defence that the complainant had failed to comply with the statutory requirement contain in 141 Negotiable Instruments Act by failing to aver that at the time , the offence was committed , the accused person was responsible for the conduct of business. The court has examined the complaint in this light. The complainant has specifically averred in the complaint that both the partners of the firm including the accused facing trial were involved in purchasing leather goods from the complainant. The complainant has been cross examined on this aspect who specifically averred that he used to deal with the deceased brother Mohinder singh in presence of accused Gurvinder Singh. The bank witness CW4 , CW5 and CW6 have also duly proved that all the three cheques in question were from the account of M/s G.L. C. Leather Export. Notice has been framed by the court vide order dt. 13.05.03 .At the time of serving the notice u/s 251 Cr.pc upon the accused Gurvinder Singh, the allegations have been duly explained to the accused as partner of the accused firm and that the accused Gurvinder Singh himself issue a cheque no. 873607 dt. 04.05.89 for Rs. 30,000/- and also another cheque no. 88422 dt. 25.07.89 of Rs. 5,827/- in favour of the complainant. These cheques are admittedly signed by the accused himself. The accused examined himself as defence witness DW1 and has been specifically cross examined on this aspect. The accused himself admitted that he was the partner of M/s G. L. C. Leather Export and despite opportunity he could not produce the partnership deed to show its constitution and opportunity so that his deceased brother was the active partner or that he was the sleeping partner as alleged. The accused also failed to state anything about the fact as to who closed the account of the firm . When confronted with the signatures on the cheques he has tendered an explanation that the same were got signed at home by his brother as he was sleeping partner.
12. As discussed in light of the law above, there is a specific avernment in the complaint as also in the testimonies and evidence of the complainant at the post notice stage that both the partners of the firm including the accused before the court were involved in business transaction with the complainant. It has also been proved on record that two of the three cheques for which the complaint has been filed were under the signatures of the accused himself. It is well settled preposition of law that as discussed u/s 139 N.I. Act r/w 118 of the Act that there is presumption that the cheque was issued for consideration and it is for the accused to rebut this presumption. The accused has relied upon catena of the judgments of Hon'ble Supreme Court of India and Hon'ble High Court of Delhi laying down the law on the aspect of 141 of the Negotiable Instruments Act and its applicability to the partner ship firm also. The accused tendered himself in evidence and by virtue of sec. 315 Cr.PC, took a voluntarily decision to give his testimony. The accused accordingly was cross examined on the aspect of his involvement in the business dealing with the complainant. The accused himself has admitted his signatures on two of the cheques and in particular bearing no. 873607 dt. 04.05.89 for Rs. 30,000/- and also cheque no. 88422 dt. 25.07.89. As has been discussed above, the rebuttal of presumption against the accused u/s 139 r/w 138 of Negotiable Instruments Act has to be not not of a bare plausible explanation but has to be of such fact or based on such material so that the court finds existence of such fact probable, the extent that a reasonable person would act on the supposition that the same exists. The fact that the cheques given to the complainant bearing the signatures of accused Gurvinder Singh in itself demolishs the case of the accused on this aspect. Further more, despite chosing to tender himself in evidence and availing the opportunity of producing the partnership deed to show his defence that he was the sleeping partner, the accused in question has casually replied that there was no such partnership deed any more because the firm was not existent. The surroundings circumstances reveal that even the account of the partnership firm was held with the bank with signature of both the parties of the firm and the fact that cheques of the firm could be issued under the signatures of either of the two partners. The accused has failed to discharge the burden of proof by any plausible fact or material to show that he was not involved in conduct of business of the complainant. The case has been filed by the complainant against the partnership firm as also both the accused having joint and severel liability though incidentally the other partner expired after the case was filed. The case of the accused does not get covered by the protection and even ambit stipulated and laid down by authorities and law laid down by the Superior Courts relied upon by the defence . It is also important to observe that the complainant who was examined as CW3 has not been confronted during the cross examination for the accused with the suggestion that the accused was a sleeping partner.
13. The court is now to examine the other material part of the defence of the accused for the purpose of discharging the onus laid upon him to rebut the presumption laid down by sec. 139 of the Act r/w 118 of the Act. The accused has produced the receipt dt. 15.05.90 purportedly to be signed by the complainant as Proprietor of the complainant company. The contents thereof reveal a typed written material stating that the payment has been received against the three cheques in question from the deceased accused Mahender Singh in cash. This receipt has been filed by the accused in question on 05.11.03. The same has been confronted to the complainant witness/CW3 during the cross examination. The witness CW3 has categorically denied that he has received the amount against the cheques involved in the case on 15.05.90 from the accused company. CW3 also denied his signatures on the documents/receipt dt. 15.05.90 which has been marked as Ex.CW3/D1. The accused in question has himself tendered his evidence by way of affidavit and subjected himself to be cross examined by Ld. Counsel for the complainant. In his examination in chief as DW1, he has deposed that he came to know that his brother/deceased partner of the accused firm namely Sh. Mahender Singh had made the payment to the complaint pertaining to the cheques involved in the present case as he had found the receipt duly signed by the complainant. It has been deposed that the accused in question submitted the said receipt before the court which is marked as Ex.CW3/D1 at the time of the cross examination of the complainant. It has been deposed by DW1 that the complainant has already received the payment of the cheques involved in this case on 15.05.90. The accused has been cross examined on this aspect by Ld. Counsel for the complainant. During cross examination the accused admitted that the complainant had not signed at point A on Ex.CW3/D1 in his presence. The defendant witness/accused explained that he could say that the signatures on Ex.CW3/D1 were that of the complainant by comparing the same with his signatures found on other papers in the file. The accused volunteered that he had gone through the file after death of his brother. DW1/Accused however, denied the suggestion that he had forged or fabricated Ex.DW3/D1 or that he had not received or found the same from possession of his deceased brother.
14. The court is now to determine whether the accused has been able to prove the document Ex.CW3/D1 in accordance with law. It is the statutory law as laid down in u/s 61 of Indian Evidence Act, 1872 that the contents of the documents may be proved by primary or secondary evidence. Section 62 of the Indian Evidence Act lays down that primary evidence in respect of the document mean production of the document itself for inspection of the court. The general rules, require primary evidence of litigated documents , is, commanly said to be based on "best evidence principle". The primary evidence par excellence of the contents of the documents is the original. This question however need not to be considered further at length , keeping in view that it is not the originality of the documents that needs to be proved in the facts of the present case but the accused is required to be prove the genuineness of the documents or the execution of the document by the complainant as alleged. As per section 67 of the Indian Evidence Act , the documents is required to be proved in the manner provided by section 45 and 47 or 73 of that Act or by internal proof afforded by its own contents. If section 47 and 67 of Evidence Act are read together what can reasonably be adduced is that a signatures of the person on a document can be proved either by examining the person in whose presence the signature was affixed by examining another person who is acquainted with the handwriting of the executant of the documents or the person alleged to have been written the document and is able to prove his signature by his opinion. Reliance placed on State Vs. Gavrang N.Leuva , 1999(3) Guj.L.R. 2325. It has been further held in Dhan and Co. Vs. Shib Narayan singha, 59, I.C. 188(Ca.) that whether "any executant denied that he wrote the document the original mode of proving the execution is by calling someone who saw such person write or who knows his hand writing by a comparison of his signature that his signature on the other documents and says this". Accordingly u/s 67 of the Evidence Act, when the document is alleged to be in handwriting of the person, it must be proved to be so. It has been further held that hand writing may in addition to the usual methods be proved on circumstantial evidence as sec. 67 of the Evidence Act prescribes no particular kind of proof(I.L.R. II Bom.690)
15. The scheme of Evidence Act inr egard to mode by which the disputed hand writing or signature can be proved is that of three fold character :
(1) By evidence of Expert u/s 45 of the Act (2) By opinion of any person acquainted with writing of person by whom itself supposed to have been written or signed u/s 45 of the Act. (3)By comparison made by the court of the hand writing or any signature in proof of admitted documents u/s 73 of the Indian Evidence Act. It is well established law by preponderance of authorities that a comparison of signatures by courts as a mode of ascertaining the truth should be used with great care and caution(AIR 1938 Bom.237).
It has been further held that any comparison of a disputed signatures will be only useful when it is done with a admitted signatures(AIR 1949 Mad. 41 A).
16. In the light of the above held law and discussion , it is to be seen if the genuineness of the documents Ex.CW3/D1 has been proved on record by the accused or not. The complainant outrightly denied his signatures at the relevant point Ex.CW3/D1. The complainant has also denied the facts pertaining to documents. The accused himself has testified that the complainant had not signed the documents in his presence. No witness who was present at the time the documents in question was alleged to have been executed has been examined before the court. There is no attesting witness on the document and even the accused had not sought opinion of any handwriting expert despite denial of the complainant regarding his signatures on the disputed document. The court has also in exercise of pwers u/s 73 of the Evidence Act compare the signature on Ex.CW3/D1 with the signatures on the complaint to reveal that the disputed signatures on the document in question with the admitted signature on the complaint do not appear to be bear executional similarity. As has been discussed above, the proof of a genuineness of a documents based on these guidelines where the signatures and handwriting is to be examined by various modes and requires to be proved by way of circumstantial evidence. The extent and proof by the accused regarding the genuineness of the document has to be such that a reasonable man would act on the supposition that the existence of the fact in question exists and stands directly established.(reliance placed on 2001 (2) AD CR SC 449). The examination of the entirity of the facts and application of law and facts in the present case show that the accused has been unable to prove the genuineness of documents on Ex.CW3/D1 as the execution thereof by the complainant does not stands proved in accordance with law. It shall now be necessary for the court to even otherwise considers the relevance of Ex.CW3/D1 in a present case.
17. The court shall now consider the legal sustainability of the defence put forward by the accused by way of Ex.CW3/D1. It is the own case of the accused that this document has been issued by the complainant on 15.05.90. Same has been filed before the court by way of list of documents on date of hearing 05.11.03 and has been confronted to the complainant witness CW3 on 0511.03. The present case arises of cause of action that arose on non payment within the stipulated period of legal notice dt. 25.08.89 duly despatched vide receipt dt. 28.08.89 and on failure to pay despite notice. The complaint has been filed before the court on 12.10.89. As per law , the cause of action arose on expiration of 15 days of the service of legal notice as per sec. 138 of the N.I. Act. It is not the case that any payment was made by either of the accused persons against the cheque(s) in question within the stipulated period of law. It is well settled principle of law as laid down by the numerous authorities of various Hon'ble High Courts as also Hon'ble Supreme Courts that ' so far as criminal liability is concerned once the offence is committed any payment made subsequent there ti will not absolve the accused of the liability of the criminal offence....'(held in Re: Rajnesh Aggarwal Vs. Amit J Bhalla 2001(1 AS(SC) 44. = AIR 2001 SC 518.
18. It is now a well settled principle of law u/s 138 Negotiable Instruments Act that once the cause of action in favour of the complainant against the accused has arisen on the basis of criminal liability of the accused, same does not cease to operate or absolve the accused even if part or full payment is made after the offence u/s 138 Negotiable Instruments Act is completed. It is further the law of the land that subsequent negotiations of accused with the complainant can utmost lead to withdrawl of the complaint by the complainant in view of the compromise which is not the case in the present complaint. In view of this discussion above it is clear operation of law that the defence of the accused on the basis of receipt Ex.CW3/D1 does not come to his rescue and fails to discharge the onus for rebuttal of presumption of u/s 139 Negotiable Instruments Act r/w 118 Negotiable Instruments Act that the cheque(s) were issued for consideration and further that the accused is criminally liable against the cheque(s) in question not honoured on presentation and unpaid within the stipulated period despite notice.
19. The court also finds its relevant now to examine the case in respect of guilt of the accused qua each of the three cheques for which the complaint has been filed. Where as the complaint has been filed by the complainant against the accused persons on the basis of the three cheques as above discussed, the court after the pre summoning complainant evidence was led and arguments on summoning heard passed a detailed summoning order after due appreciation of arguments and facts of the case vide order dt. 06.02.93. Vide order dt. 06.02.93, the court held that the complainant has "failed to prove its case regarding cheqye no. 88421 dt. 25.08.99 for Rs. 11,591/- and cheque no. 88422 dt. 25.07.89 for Rs. 5,827/- drawn on Andhra Bank". The court thereafter further held "accused persons be therefore summoned for the offence u/s 138 N.I. Act for dishonouring of cheque no. 873607 dt. 04.05.89 for Rs. 30,000/- drawn on UCO Bank". This order attained finality after the same is not challenged by any of the two parties and does not stands revised or modified by any subsequent orders of this court or the superior court. Therefore the complainant has failed to ignite the court process in respect of two cheques bearing no. 88422 and cheque no. 88421 both dt. 25.07.89 . It has been held and binding upon court as held by Hon'ble Supreme Court of India in Adalat Prasad Vs. RoopLal Jindal and others 113(2004) DLT 356(SC) that if Magistrate takes cognizance of the offence, issue process against the accused, the relief any aggrieved party can obtain is by invoking that remedy that lies in section 482 of the Code. The ratio if this case each has become the law of the land that the court of the Magistrate is bound by the summoning order passed by Magistrate at the time of appreciating the prima facie material placed before it by way of complainant evidence and other witnesses and court of the Magistrate cannot go behind the summoning order to review order or invoke any inherent power. Therefore this court would regard any subsequent proceedings in respect of two cheques bearing no. 88421 and 88422 dt. 25.07.89 for which no summons were issued in this case as "NULLITY". This court at the time of appreciating the law and facts for final disposal of the case is to guard against any error of fact that is apparent on the face of record and has to judiciously or conscientiously adjudicate upon the complaint before it. Accordingly notice that has been framed vide orders dt. 13.05.03 against the accused in respect of two cheques shall be irrelevent based on inadvertence having no force of law. The subsequent trial of the accused shall also be considered accordingly legally sustainable only in respect of cheque no. 873607 dt. 04.05.89 for Rs.30,000/- only.
20. The court is now to examine the last defence put forth by the accused in question to absolve his criminal liability in this case. It has been clear avernment of the defence of the accused that legal notice in respect of the cheque(s) in question has never been issued or served upon him so that no cause of action arose in favour of the complainant against the accused in question. The complainant has duly led his evidence and has duly proved on record the three cheques on the basis of which the present case has been filed as Ex.CW1/5 to Ex.CW1/7. The respective return memo also stands exhibited on record and duly proved by way of the evidence of the bank officials as CW5 and CW6. The cheques and return memos duly stands proved vide testimonies whereas CW5 has duly proved two cheques bearing no. 088422 and 088421 and their respective return memos, the relevent witness would be CW6 who has duly proved the cheque no. 873607 also exhibited as Ex.CW1/5 and Ex.CW6/A and the relevent return memo as EXCW6/B. The copy on record in this respect has also been presented before the court. CW6 was cross examined by Ld. Defence Counsel but no material cross examination was conducted in this respect. It is not out of place to observe that no suggestion to the bank witness was suggested in respect of drawer/signatory of the cheque which is accused in question himself. It accordingly stands duly proved on record th at the original cheques and return memos has been proved in accordance with law. Legal notice u/s 138 N.I. Act dt. 25.08.89 has been duly prove on record as Ex.CW3/G which has been despatched vide registered post against the accused in question vide receipt no. 4073 and has been proved on record as Ex.CW3/H. The duly acknowledged AD card has also been placed on record which is ex.CW3/L in respect of the accused in question and Ex.CW3/M in respect of the partnership firm. It is the case of the complainant based on his testimony that no payment was received within 15 days of the stipulated period despite legal notice and the present case has been filed within the 30 days of expiration of the stipulated period of legal notice, hence within the limitation. Even otherwise no question or dispute in respect of limitation has been raised before the court. It is also proved on record that the cheque has been presented within the validity period. In light of the above discussion , all the ingredient necessary be proved by the complainant u/s 138 N.I. Act stands duly proved against the accused beyond the pales of reasonable doubt. The accused has been unable to rebut the presumption u/s 139 r/w 118 N.I. Act and hence it stands duly proved on record that the cheque in question has been issued in due discharge of legally enforcible liability by the accused in question.
21. Under the light of the detailed discussion and appreciation of the case, the court is of the considered opinion that the complainant has been able to prove on record an unbroken chain of events that lead to the commission of actual offence by the accused beyond the pales of reasonable doubt in respect of cheque bearing no. 873607 dt. 04.05.89 of Rs. 30,000/- . The accused has not been able to create any doubt either in the case of the complainant or bring plausible defence which could puncture or fail the case of the complainant. Accused is accordingly convicted for the offence u/s 138 Negotiable Instruments Act.
22. Case now to come up for arguments and order on the point of sentence on 25.10.07. Copy of the judgment be given to the accused free of cost.
Announced in the open court (PREETI AGRAWAL GUPTA)
on 23.10.07 METROPOLITAN MAGISTRATE
(1+1 copy attached) DELHI
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