Delhi District Court
M/S. Religare Securities Ltd vs Parmanand Das Malpani on 7 July, 2015
IN THE COURT OF SH. ASHU GARG,
Judge, Small Causes Court -cum- Addl. Senior Civil Judge -cum-
Guardian Judge -cum- Metropolitan Magistrate (New Delhi),
Patiala House Courts, New Delhi
CC No. 419/13
Unique Case ID No. 02403R0453912009
Date of Institution: 04.03.2009
Date of reserving judgement: 16.06.2015
Date of pronouncement: 07.07.2015
In re:
M/s. Religare Securities Ltd.
19, Nehru Place, New Delhi-110019 ... Complainant
versus
Parmanand Das Malpani
11, Film Colony, Jaipur,
Rajasthan- 302004 ... Accused
JUDGMENT:
1.The present is a complaint filed under section 138 NI Act with respect to a cheque no. 188835 dated 11.10.2008 for Rs. 78,300/- drawn on the Rajasthan Cooperative Bank Ltd., Jaipur by the accused in favour of the complainant company, that got dishonoured due to insufficiency of funds in his bank account.
2.As per the complaint, the accused Parmanand Das Malpani has been a beneficiary of facility of trading in shares through the complainant and had CC No. 419/13 Page 1 of 21 availed the facility at the expense of the complainant without updating his accounts despite being regularly reminded. It is averred that towards discharge of part of debts accrued on account of dues on the complainant, the accused issued the cheque in question. But when presented, the same returned unpaid with the remarks "insufficient funds" vide memo dated 30.12.2008. Thereafter, a demand notice dated 12.01.2009 was sent to the accused on 15.01.2009 but no payment was made despite expiry of the statutory period of fifteen days days from service thereof, and hence the present complaint was filed.
3.Based on the pre-summoning evidence, the accused was summoned vide order dated 22.11.2011. The accused appeared and notice of accusation under section 251 CrPC for commission of offence under section 138 NI Act was framed against him on 14.09.2012 to which he pleaded not guilty and claimed trial. In terms of the procedure recognized by the Hon'ble High Court of Delhi in Rajesh Agarwal v. State [171(2010) DLT 51], the accused disclosed his defence to the effect that the cheque was given as conditional payment and not towards any debt or liability. He stated that the complainant had charged exorbitant interest on the outstanding balance and when he contacted the complainant to reimburse the amount, they had assured to reimburse the same but did not reimburse and presented the cheque for encashment.
4.The accused then moved an application under section 145(2) NI Act and CW-1 was recalled for cross-examination. At this stage, it is seen that initially, the complaint was filed through one Sh. Prashant Gupta, CC No. 419/13 Page 2 of 21 authorised representative (AR) of the complainant but the said AR was subsequently changed and Sh. Sandeep Kumar was substituted as new AR of the complainant. He was therefore examined afresh as CW-1 who tendered his affidavit Ex. CW-1/1 reiterating the averments of the complaint and proving the necessary documents including his attorney, board resolution, the cheque in question (Ex. CW-1/C), cheque returning memo (Ex. CW-1/D), statement of accounts (Ex. CW-1/D1), legal notice (Ex. CW-1/E), and postal receipts. During cross-examination, he admitted that previously a complaint under section 138 NI Act was filed against the accused which was dismissed in default of appearance vide order dated 10.02.2011 (Ex. CW-1/D1), which was with respect to another cheque bearing no. 179746 dated 24.03.2008 for Rs. 78,300/- that had got dishonoured for which demand notice (Ex. CW-1/D2) had been issued. The accused put a letter dated 10.10.2008 Ex. CW-1/D3 to the witness claiming the same to be his reply to the said notice, but the witness denied the same on the ground that no such letter was there in their records. He could not admit or deny if the cheque in question had been sent to the complainant along with said reply Ex. CW-1/D3, reiterating that no such letter was there in their records and he had no idea how and when the complainant got the cheque in question. The accused also put letter dated 06.12.2008 (Mark-A), letter dated 20.12.2008 (Mark-E) and letter dated 02.02.2009 (Mark-H) to the witness but he failed to admit or deny the same on the same ground that such letters were not in their records.
5.Statement of the accused under section 313 CrPC was recorded on 18.08.2014 wherein he denied the allegations and pleaded innocence. He CC No. 419/13 Page 3 of 21 admitted that the cheque had been issued by him and bore his signatures and that all its contents were in his handwriting. He admitted the factum of dishonour of the cheque due to insufficiency of funds. He also accepted receipt of the legal notice dated 12.01.2009. He however took stand that he had issued a cheque to the complainant earlier but the same got dishonoured as the complainant had failed to comply certain terms. When he received the demand notice from the complainant with respect to the previous cheque, he issued the cheque in question in response to that notice and sent the same with his reply. He informed that when the complainant failed to present the cheque in question for 60 days, he wrote a letter to it stating that he could not keep the said amount idle in his account and requested them to inform him in advance about their intention to present the cheque. However, the cheque in question was presented by the complainant without any such information or instructions. He chose to lead evidence in defence.
6.The accused moved an application under section 315 CrPC that was allowed on 16.12.2014. He stepped into the witness box and examined himself as DW-1 and reiterated his stand on oath. He deposed about the issuance of previous cheque no. 179746 that had got dishonoured and that upon receipt of the demand notice with respect to the said cheque, he had tendered the cheque in question within the statutory period along with a covering letter. He also deposed about writing further letters to the complainant when the cheque was not presented for 55 days and his requesting them to inform him one week prior before presenting the cheque. He further stated that the complaint with respect to the previous cheque was dismissed in default and he stood acquitted. He proved the letter dated CC No. 419/13 Page 4 of 21 10.10.2008 as Ex. DW-1/D3 along with postal receipts (Ex. CW-1/D4), letter dated 06.12.2008 as Ex. DW-1/A (which was earlier Mark-A) along with postal receipts (Ex. DW-1/B, Ex. DW-1/C and Ex. DW-1/D), letter dated 20.12.2008 as Ex. DW-1/E (which was earlier Mark-E) along with postal receipts (Ex. DW-1/F and Ex. DW-1/G), and also letter dated 02.02.2009 as Ex. DW-1/I (which was earlier Mark-H) along with postal receipt (Ex. DW-1/J). During cross-examination, he denied that no such reply or letter was ever written by him. He further denied that he had created forged and blank envelopes and got the same registered with the postal department to create false evidence. He denied that he had placed on record the postal receipts upon mentioning incorrect address. He denied that the funds in his bank account were not insufficient to honour the cheque on the date when the same was issued or when he had written the letters.
7.It is in these circumstances that the Ld. Counsel for the complainant as argued that it has been able to prove its case against the accused on all counts. It is contended that the presumptions of law are in favour of the complainant and burden would be now upon the accused to rebut the same. It is submitted that it was the sweet will of the complainant to present the cheque issued in its favour during the period of its validity and the accused could not have refused to honour the cheque on the ground that the same was not presented for 55 / 60 days. It is pointed out that the accused has admitted his liability in his statement under section 313 CrPC and also receipt of the legal notice. It is therefore submitted that the accused has failed to raise and establish any defence.
CC No. 419/13 Page 5 of 218.On the other hand, Ld. Counsel for the accused has argued that no case is made out against him, primarily on the ground that mala fide on the part of the complainant is apparent on the face of the record. It is submitted that the cheque in question had been issued in response to dishonour of the previous cheque and not against any payment of debt arising out of share trading as claimed by the complainant. It is contended that when the complaint with respect to dishonour of the previous cheque had already been filed and was still pending, the present complaint could not have been filed with respect to the same liability. It is argued that once the accused stood acquitted upon dismissal of the complaint in default of appearance, he could not have been tried in the present complaint with respect to the same liability. It is further submitted that the cheque in question was presented despite the specific instructions of the accused whereby the complainant had been directed to inform the accused one week in advance before presenting the cheque. It is therefore argued that the accused is entitled to be acquitted.
9.I have heard the arguments advanced by the respective Ld. Counsel for the contesting sides and have carefully perused the material on record, including the written submissions filed on behalf of the complainant.
10.For the sake of convenience, the cheque no. 179746 dated 24.03.2008 for Rs. 78,300/- shall be hereinafter referred to as the 'previous cheque' and the impugned cheque no. 188835 dated 11.10.2008 for Rs. 78,300/- shall be referred to as the 'cheque in question'.
CC No. 419/13 Page 6 of 2111.The law with respect to offences punishable under section 138 of the Act is well settled. The law has been laid down by the Hon'ble Supreme Court of India, in the precedent titled as M/s. Kumar Exports v. M/s. Sharma Carpets [2009(2) SCC 513], wherein it has been held that:
The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the CC No. 419/13 Page 7 of 21 case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue".
12.The Hon'ble Court had reiterated its earlier view so laid down in case titled as M. S. Narayana Menon v. State of Kerala [AIR 2006 SC 3366].
13.Moving on to the merits of the case, it would be seen that the accused has not denied the factum of the issuance of the cheque in question by him, its bearing his signatures, drawn on a bank account maintained by him and CC No. 419/13 Page 8 of 21 the contents of the cheque to be in his handwriting. It is nowhere the defence of the accused that the cheque was not so drawn by him or the signatures thereupon had been forged or its contents were modified/altered subsequently or was given as blank. It is also not the case of the accused that the complainant was not in lawful possession of the cheque or that the same had been misplaced or the stolen or obtained unlawfully. The accused admitted that the cheque was given by him to the complainant. Similarly, the accused has not disputed the factum of dishonour of the cheque on the ground of insufficiency of funds. It is not his case that the cheque was not so dishonoured or had got dishonoured due to any other reason other than that mentioned on the cheque returning memo. No evidence is there on record to show that the funds in his bank account were otherwise sufficient to honour the cheque. Further, the accused has not denied the receipt of the demand notice from the complainant and rather admitted his signatures on the AD card Ex. CW-1/F3. He has also not denied the fact that the payment was not made by him within the statutory period of 15 days from the date of service of the said demand notice.
14.For that matter, there is no serious dispute with respect to the existence of debt or liability against the complainant in discharge of which the cheque in question had been issued. The correctness of statement of accounts Ex. CW-1/D1 filed by the complainant has not been disputed and it is nowhere the stand of the accused that the said statement is false or forged or fabricated (despite the fact that the same being an electronic record is technically not proved in accordance with section 65-B of the Evidence Act). This statement shows that as on 26.03.2008, there was an outstanding CC No. 419/13 Page 9 of 21 balance towards the accused to the tune of Rs. 1,07,534.36/-. On that day, the 'previous cheque' for Rs. 78,300/- was received and the outstanding balance came down to Rs. 29,234.36/-. However, the said cheque got dishonoured on the same day and the outstanding balance was again Rs. 1,07,534.36/-. Subsequently, the said 'previous cheque' was again presented on 30.08.2008 when the outstanding balance of Rs.1,13,551.68/- was reduced to Rs. 35,251.68/-, but the same again got dishonoured when the liability again stood to Rs. 1,13,551.68/-. The cheque in question is reflected at entry dated 13.12.2008 when the outstanding liability was Rs. 1,21,925.86/-. The cheque in question was credited and debited on 13.12.2008 as the same got dishonoured. It was again presented on 01.01.2009 when the outstanding liability was Rs. 1,21,925.86/- but was again returned unpaid on the same day. Therefore, on all such dates when the said cheque was presented, there was an outstanding liability more than the cheque amount and therefore, it cannot be said that the cheque had been issued without any liability. For that matter, even the accused admitted in his statement under section 313 CrPC that he was liable to pay this amount to the complainant, though subsequently in his deposition he claimed that he had no liability to pay anything with respect to the cheque in question.
15.It can be thus said that the complainant has been able to discharge its initial burden to attract the presumptions of law in its favour. It would be now upon the accused to rebut these presumptions and to raise a probable defence. Needless to say, the accused has only to raise the defence on the scale of preponderance of possibilities and not beyond reasonable doubt as in the other criminal cases.
CC No. 419/13 Page 10 of 2116.The fate of the case would depend on two questions: firstly, whether the accused had instructed the complainant not to present the cheque without giving one week advance intimation and if so, whether the complainant was not bound by any such instructions till the time the cheque was presented within its validity period; and secondly, if the complainant was justified in filing of the present complaint with respect to dishonour of the cheque in question when another complaint with respect to the dishonour of the 'previous cheque' was already pending, particularly when both the cheques had been drawn in discharge of the same liability and if so, what would be the effect of acquittal of the accused in the previous complaint that stood dismissed in default of appearance.
17.Record shows that the complainant in its complaint and even in the affidavit of CW-1 has chosen not to disclose anything with respect to the circumstances under which the cheque in question had been issued. It has been merely stated that the cheque in question had been issued towards discharge of part of debts accrued on account of dues on the complainant company. There was no whisper about the cheque in question having been issued in response of any previous cheque that might have been issued to discharge any particular debt or liability. It was only when the CW-1 stepped into the witness box that he admitted during cross-examination that the previous cheque had also got dishonoured and the complaint under section 138 NI Act was filed with respect to the same that stood dismissed in default of appearance.
CC No. 419/13 Page 11 of 2118.When the accused took specific stand about writing letters to the complainant, CW-1 denied the receipt of every such letter only on the ground that no such letter was there in their records. It is rather seen that he has not even categorically denied the receipt of those letters but has merely expressed his inability to admit or deny those letters on the ground that they were not in their records. On the contrary, the accused stepped into the witness box and proved those letters duly supported by the postal receipts. Exhibition of the postal receipts was however objected to by the Ld. Counsel for complainant as to mode of their proof.
19.However, when the original postal receipts were filed on record by the accused, no reason has been attributed as to how the genuineness of these postal receipts was disputed by the complainant and how they were termed as false or fabricated or forged. Postal receipts were issued by the post office in ordinary course of their business and when there is nothing on record to dispute those documents, the complainant cannot compel the accused to summon the postal authorities to prove the said documents, particularly when the matter is very old and there is every likelihood that no such record would be available. It is to be seen that the letters were sent by the accused himself and he is competent enough to prove the postal receipts through which the said letters had been dispatched.
20.The position would be the same in case of the complainant as well. Just as the presumption operates in favour of the complainant, the same would also operate in favour of the accused with respect to sending of letters at a correct and proper address through registered post. Thus, when the accused CC No. 419/13 Page 12 of 21 stepped into the witness box as DW-1 and proved his letters and the postal receipts, presumption under section 27 of the General Clauses Act would come in his favour, particularly when there is no dispute about the correctness of the address of the complainant (or its Ld. Counsel) thereupon. Merely because CW-1 stated that those letters were not in their records, that would not be sufficient to rebut the presumptions in favour of the accused. The burden was now upon the complainant to summon the record from the postal authorities to rebut the presumptions and to prove that such letters were not so received by it (or its Ld. Counsel) despite being sent at a correct address through registered post. But no such attempt was made by the complainant. Rather it was the accused who took steps and filed RTI applications with the postal department to ascertain if such letters were received on behalf of the complainant or not. However, no such record was available having been destroyed by the postal department being more than three years old. The accused also placed on record the said RTI application and the reply which support his stand. In view of the presumption in favour of the accused on this point, it cannot be said that the accused has not been able to establish the service of such letters on the complaint or its ld. counsel, irrespective of the fact that the RTI applications were filed at a very belated stage. These letters are therefore deemed to have been served in ordinary course of events.
21.Even otherwise, the stand of the complainant on this point is quite contradictory. During cross-examination of DW-1, it was suggested that no such letters were ever written by him. At the same time, it was suggested that the forged and blank envelopes were created and same were got CC No. 419/13 Page 13 of 21 registered with the postal authorities. By putting said suggestion, the complainant has admitted the registration and dispatch of such envelopes by the accused, though claiming that they were blank. If it was so, then the burden would be upon the accused to establish that it had received blank envelopes. But the complainant has denied the receipt of any such letter, blank or not.
22.Again contrary to the said stand, it was suggested to the DW-1 that he had obtained the postal receipt which mentioned the incorrect address. However, there is nothing on record to show that the envelopes were sent at any incorrect address. The letters were sent to the Ld. Counsel of the complainant Sh. Sunil Aggarwal from whom he had received the legal notice with respect to the previous cheque. The subsequent letters were sent to the Jaipur and Delhi offices of the complainant company. There is nothing on record to show that those addresses were incorrect addresses of the complainant so as to rebut the presumption of service on it. It therefore stands established that the complainant had in fact written such letters to the complainant. The effect of sending the said letters is now to be seen in the present case.
23.At this stage, it would also be appropriate to consider the stand of the accused that the funds in his bank account were sufficient on the date when the cheque had been issued. No such stand has been however proved on record and no bank statement has been placed on record by the accused so as to give credibility to any such version. Even otherwise, the court is not concerned if the amount was lying sufficient in the bank account when the CC No. 419/13 Page 14 of 21 cheque might have been issued. The court is concerned with the date when the cheque was presented for payment. In ordinary circumstances, it is the responsibility of the drawer of a cheque to keep sufficient amount in his bank account so as to honour the cheque drawn by him if presented at any time within the period of its validity. The drawer cannot escape from his liability on the ground that he had sufficient amount on the date when the cheque was issued and not on any subsequent day when the cheque was presented, despite the fact that the cheque was presented within the period of its validity.
24.The court is in agreement to the submissions of the Ld. Counsel for the complainant that it is the sweet-will of the complainant to present the cheque in its favour at any time during the period of its validity and it is the duty of the drawer to maintain sufficient balance in his bank account for entire such validity period. However, such a situation would operate only in ordinary circumstances and not in special circumstances where the drawer of a cheque gives special instructions to the payee as to the period when his cheque should be presented or for giving him advance intimation before presenting it.
25.In the present case, it is an admitted position that the cheque in question dated 11.10.2008 was valid for a period of six months. The CW-1 could not tell how the cheque was received from the complainant and on what date. On the contrary, the accused as DW-1 has been able to establish that the said cheque was tendered along with covering letter dated 10.10.2008 Ex. CW-1/D3 which was dispatched on 11.10.2008, vide Ex. CW-1/D4 CC No. 419/13 Page 15 of 21 (postal receipts of registered letter and UPC). The contents of the letter would clearly show that the cheque in question had been issued against the demand notice dated 12.09.2008 with respect to dishonour of the previous cheque for this amount dated 24.03.2008. Though the date of the cheque being so tendered had been mentioned as 11.10.2008, that would not make much difference, particularly considering the fact that the letter dated 10.10.2008 was dispatched on 11.10.2008 and the cheque in question was also issued on 11.08.2005 when the letter was actually dispatched. In view of the deposition of DW-1, considering that there is no contrary evidence to arrive at any other conclusion, it has to be held that the cheque in question had been issued in response to the legal notice qua previous cheque only. It therefore follows that there was no separate debt or liability existing for which the cheque in question had been issued and the liability being discharged through this cheque was the same liability qua which the previous cheque had been issued and dishonoured. It is apparent that the said letter was sent to Ld. Counsel for complainant Sh. Sunil Kr. Aggarwal at his correct address. The said letter is therefore deemed to be served upon the complainant itself. It is beyond apprehension that the Ld. Counsel would have handed over the cheque to the complainant but retained the letter with him.
26.Subsequently, when the notice with respect to dishonour of the cheque in question was sent to the accused, he wrote letter dated 06.12.2008 Ex. DW-1/A which was dispatched on 08.12.008 vide postal receipts Ex. DW-1/B, Ex. DW-1/C and Ex. DW-1/D at both the addresses of the complainant, that is, at Jaipur office and Delhi office. In the said letter, the CC No. 419/13 Page 16 of 21 accused reiterated that the cheque in question (mentioning the number, date, amount and the bank details clearly) had been sent to its Ld. Counsel and that the said cheque had not been presented for more than 55 days. The complainant stated that he could not keep huge amount idle for uncertain period in his bank and requested the complainant to inform him a week before the cheque was to be presented for encashment so that he could deposit the amount into the bank to ensure that the cheque was honoured. He specifically mentioned that if he was not so informed and the cheque was presented otherwise, he would not be responsible if the same returned unpaid.
27.In my considered view, when the accused had given specific instructions to the payee to present the cheque only after his being informed a week in advance so that he could ensure that sufficient amount is maintained, then the general rule, that sufficient amount was to be maintained during the entire period of validity of the cheque, has to be relaxed. The genuineness of the claim of the accused can be well ascertained from the fact that the cheque was not presented for more than 55 days after its issuance. There is no apparent reason for such an act. Though the complainant was not bound by any law to present the cheque immediately, yet not presenting the cheque in such a position would give reasonable justification to the accused in requesting the complainant to inform him a week in advance before the cheque is presented so that he could maintain sufficient balance to honour the cheque. There is nothing in law that bars the drawer of a cheque to give any such instructions to a payee. When the accused had specifically stated that the cheque should be presently only after his being given advance CC No. 419/13 Page 17 of 21 intimation, in my considered view, the complainant was bound by such instructions, particularly in view of the fact that the cheque had not been presented for 55 days and it was still having sufficient time to present the cheque even after it had given intimation to the accused as desired by him to ensure payment. The accused had not asked the complainant to seek his further 'permission' for presenting the cheque and the complainant was still having all the liberty to present the cheque at any time during its validity period, but he had only wanted an advance intimation so that he could ensure availability of funds. Thus, in view of such specific and categoric instructions, it cannot be said that the complainant still had the 'sweet will' to present the cheque contrary to the instructions.
28.There is nothing on record to show that any such intimation had been given to the accused. It is not even the stand of the complainant that any such information had been given by it before presenting the cheque in question. The complainant has failed to show as to why it chose not to give any such intimation before presenting the cheque on 30.12.2008. If the complainant was not to comply with such instructions of the accused, it could have replied to the letter dated 06.12.008 informing the accused that such a condition was not acceptable to them, so that the accused could have maintained sufficient balance during the entire period of validity of the cheque. But when no such reply was given to the accused, it was legitimate expectation on his part to assume that he would be given an advance intimation before the cheque was presented. The complainant could not have simply ignored this letter and presented the cheque without giving advance intimation or even reply to his letter clarifying its intention CC No. 419/13 Page 18 of 21 otherwise. This rather shows the bona fide on the part of the accused and mala fide on the part of the complainant.
29.The accused had again written the letter dated 30.12.2008 to the complainant at its Delhi and Jaipur offices when he was informed by his bank about dishonour of the cheque in question. He categorically stated that his instructions had not been taken before presenting the cheque despite his request. Even this letter was never replied by the complainant.
30.It is thus clear that the cheque in question had been presented in violation of the instructions of the accused and therefore it cannot be said to have been presented in a proper and lawful manner so as to attribute criminal liability on the accused. Failure on the part of the complainant to give advance intimation to the accused as instructed by him would make it apparent that the accused has been able to raise a probable defence so as to rebut the presumptions in favour of the complainant.
31.Moving ahead, it would be seen that the previous complaint was filed on 31.10.2008 with respect to dishonour of the previous cheque. It remained on judicial board till 08.06.2011 when it was dismissed in default under section 256 CrPC and consequently, the accused stood acquitted. The cheque in question was issued in response to the legal notice dated pertaining to the previous cheque. Therefore, once the complaint was in receipt of the cheque in question within the statutory period of 15 days from the date of receipt of demand notice by the accused, there was no cause of action for the complainant to file the present complaint on 31.10.2008. It CC No. 419/13 Page 19 of 21 could not have taken benefit of both the cheques with respect to the same liability. Irrespective of the fact if the complainant had presented the cheque in question before filing of the previous complaint or subsequent to such filing, the fact remains that it had received the payment through cheque. Therefore, once a new cheque had been accepted by the complainant for dishonour of the previous cheque, no occasion was there to file a complaint with respect to dishonour of previous cheque. If the cheque in question got dishonoured subsequently, it could have filed a fresh complaint on the basis of dishonour of the cheque in question and not both the complainants simultaneously.
32.But the cheque in question was presented on 30.12.2008 and the complaint in question was filed on 04.03.2009. It was being pursued regularly and the previous complaint with respect to previous cheque was never withdrawn. Till the time the previous complaint was dismissed on 08.06.2011 and the accused stood acquitted, it is clear that there was no justification on the part of the complainant to proceed with both the cases simultaneously.
33.However, that would not make much difference to the present case of the complainant. The stand of the accused that he could not have been proceeded in the present case consequent to his acquittal in the previous case has no force. Dishonour of the two cheques had given rise to separate causes of action. Filing of the previous complaint was not proper and if the accused was acquitted in that case, for any reason, that would not be a bar in proceeding against him with respect to dishonour of the cheque in CC No. 419/13 Page 20 of 21 question. He could be still proceeded against dishonour of the cheque that was given in response to the legal notice with respect to the dishonour of the previous cheque. Therefore, there is no force in such stand of the accused.
34.In view of the above discussion, the case of the complainant suffers a dent and is liable to fail. The accused is therefore acquitted of the charges. However, his bail bond shall remain in force for the next six months in terms of section 437-A, CrPC.
35.File be consigned to the record room.
Announced in the open court this 7th day of July 2015 ASHU GARG JSCC/ASCJ/GJ/MM (New Delhi), PHC CC No. 419/13 Page 21 of 21