Delhi District Court
M/S Aarcee Tradecom Llp vs Prem Singh on 29 November, 2024
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DLST020103032020
Registered on : 30.09.2020
Presented on : 16.10.2020
Decided on : 29.11.2024
Decision : Acquitted
IN THE COURT OF JUDICIAL MAGISTRATE
FIRST CLASS (NI ACT)-08 SOUTH,
SAKET DISTRICT COURT, DELHI
(PRESIDED OVER BY SH. KOMAL)
CT Cases 5524/2020
CNR NO. DLST-02-010303-2020
JUDGMENT
M/s AarCee Tradecom Private Limited. Office at- LIG 1, LGF, Gayatri Enclave, Khanpur T Point, Nr. RPS Colony, New Delhi-110062. .........Complainant VERSUS Prem Singh.
S/o Mr. Ganesh, R/o C- 1st , 964, 1st Floor, Madangir, Dr. Ambedkar Nagar, New Delhi-110062. ..........Accused Offence punishable under section 138 of Negotiable Instruments Act, 1881 Digitally signed by komal komal Date:
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JUDGMENT FACTUAL MATRIX:
1. The instant proceedings have originated out of a complaint filed by the complainant firm through its partner Mr. Vinod Aggarwal who is authorised to appear and contest the present complaint on behalf of the complainant firm i.e. M/s AarCee Tradecom Private Limited against the accused for the offense under Section 138, Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). Before going further, it is necessary to dwell upon the brief facts of the case.
2. Briefly stated, the case of the complainant is that the complainant is a Limited Liability Partnership duly incorporated and registered and having its registered office at LIG 1, LGF, Gayatri Enclave, Khanpur T Point, Nr. RPS Colony, New Delhi-110062. The accused approached the partner namely Mr. Vinod Aggarwal of the complainant on 28.09.2016 for taking a loan of Rs.2 lacs for a period of 18 months. The loan of Rs.2 lacs was advanced to the accused by the complainant vide cheque bearing no. 256428 dated 28.09.2016 and the same was acknowledged by the accused through a receipt dated 28.09.2016 bearing Ex.CW1/B. A demand promissory note dated 28.09.2016 bearing Ex.CW1/C of the value received in favour of the complainant was also executed by the accused. Accused had agreed to pay initially only the interest portion for the first six months i.e. till 28.03.2017 and had agreed to thereafter repay the loan in equal monthly installments of Rs.22,667/- for 12 months, first installment commencing from 28.04.2017. After availing the loan, the accused initially had paid the interest for the first six months, as agreed and had also paid two installments for the Digitally signed by komal CT Case No.:- 5522/2020 Page No. 2 of 12 komal Date:
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months of April 2017 and May 2017 in time. Accused thereafter started defaulting the same and had paid two more installments for the month of June 2017 and July 2017 belatedly. However, after the payment of 4th installment, accused completely failed to pay the remaining installments despite various requests and reminders by the complainant. Thereafter, the accused informed the complainant that he is facing downfall in his business and requires time of approximately two years to repay the amount. Even after two years, accused, however, kept on seeking time from complainant on one pretext or the other and kept on giving assurances to complainant to pay the outstanding amounts as soon as possible. Thereafter, after persistent follow ups of the complainant, the accused issued a cheque bearing no.115850 dated 01.02.2020 for Rs.3,20,000/- drawn on Central Bank of India, Greater Kailash-II Branch (hereinafter referred as 'cheques in question') in respect of the aforesaid outstanding amount drawn in favour of complainant and promised to honor the cheque when presented on the due date for collection.
3. Thereafter, the complainant presented the cheque in question to his banker for encashment, however, the same was dishonoured due to reason "Insufficient Funds" vide its return memo dated 04.02.2020.
4. Thereafter, the complainant through its counsel served Legal Demand Notice dated 17.02.2020 to the accused by way of Speed Post and Courier instructing the accused to make the payment of Rs.3.20 lacs in lieu of the dishonored cheque. The legal notice was duly served to the accused and was also replied.
Digitally signed by komal komal Date:
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5. Aggrieved by the non-receipt of the payment within the stipulated period of 15 days, the complainant was constrained to file the present complaint case.
APPEARANCE OF ACCUSED AND TRIAL:
6. After institution of the present case, summons were issued to the accused vide order dated 15.03.2021. The accused through his counsel appeared before the Court on 27.07.2021 in response to the summons. The accused appeared on 07.10.2021 before the learned Predecessor Court and was admitted to bail subject to furnishing of personal bond in the sum of Rs.30,000/- with one surety of like amount.
7. Notice u/s 251 Cr.P.C for the offence of Section 138 NI Act was served upon accused. He pleaded not guilty and claimed trial. In his reply to the notice u/s 251 Cr.PC, inter-alia, he stated that he had taken loan of Rs.6 lacs from Mr. Vinod Aggarwal, Director of M/s AarCee Tradecom as well as of M/s Protect Securities Pvt. Ltd. and at that time, the cheque in question was given to Mr. Vinod Aggarwal for security purpose which was later on misused by the complainant by presenting the same in the year 2020. He admitted execution of receipt dated 28.09.2016 bearing Ex.CW1/B and the demand promissory note dated 28.09.2016 bearing Ex.CW1/C. He further admitted receiving of the legal notice sent on behalf of the complainant. He further pleaded that the cheques in question only bears his signatures and the particulars are not filled by him.
Digitally signed by komal komal Date:
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8. Given the nature of the allegations and reply of the accused u/s 251 Cr.P.C, this Court directed that the case shall be tried as a Summons case under Chapter XX of Cr.P.C.
9. As the statement of defense of accused revealed specific defense, oral request made on behalf of the accused was allowed to cross examine the complainant's witness under section 145(2) NI Act. Thereafter, the matter was fixed for CE.
EVIDENCE LED BY THE COMPLAINANT:
10. The complainant, in support of its case, has placed on record affidavit of its Partner, Sh. Vinod Aggarwal, in evidence vide Ex. CW1/1 and relied upon the following documents:
Sl. No. Exhibits/Mark Details of Documents
1. Ex.CW1/A Resolution dated 09.03.2020 in favour of Mr. Vinod Aggarwal;
2. Ex.CW1/B Receipt dated 28.09.2016;
3. Ex.CW1/C Promissory note dated 28.09.2016;
4. Ex.CW1/D Cheque in question;
5. Ex.CW1/E Bank Return memo dt.04.02.2020;
6. Ex.CW1/F Legal demand notice dt.
17.02.2020;
7. Ex.CW1/G Postal receipt dated 17.02.2020;
8. Ex.CW1/H Courierreceiptdated17.02.2020;
9. Ex.CW1/I Reply dated 04.03.2020 to legal notice dated 17.02.2020.
11. After examination-in-chief of CW-1, he was duly cross-
examined by the learned counsel for the accused. During cross-
Digitally signed by komal komal Date:
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examination, CW-1 produced ITR of the complainant firm for the F.Y. 2016-17 and F.Y. 2017-18 vide MarkCW1/J(colly) and stated to have shown the loan amount advanced to the accused at Point-A on Page 6 of ITR for A.Y. 2017-18. CW-1 further admitted to have received Rs.6,000/- per month for 6 months as interest and 4 EMIs of Rs.22,667/-(including interest) each. He further stated that 8 EMIs for a total sum of Rs.1,81,336/- to be pending. CW-1 further produced the following documents:
1. MarkCW1/D1 Copy of RBI Certificate.
2. MarkCW1/D2 Copy of Company Data.
3. MarkCW1/D3 Counter foil of the cheque books.
4. MarkCW1/D4 Copy of bank statement.
12. After due cross-examination, CW-1 was discharged and CE was closed. Thereafter, the matter was fixed for recording statement of the accused u/S 313 Cr.P.C. read with Section 281 Cr.P.C.
13. The statement of the accused under Section 313 Cr.P.C.
read with Section 281 Cr.P.C. was recorded whereby circumstances appearing against her in evidence were put to him. He took the defence that the complainant is demanding interest over and above the agreed amount and is misusing his security cheques despite the repayment of the entire loan amount.
EVIDENCE LED BY THE ACCUSED:
14. Accused, in support of its case, examined himself as defence witness and his testimony was recorded as DW-1. In his examination-in-chief, he tendered his evidence by way of Digitally signed by komal komal Date:
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affidavit bearing Ex.DW1/A. He further relied upon documents which are Mark.DW1/1 is the Copy of mediation order dated 03.05.2019, Mark.DW1/2 is the Copy of handwritten statement of payment, Mark.DW1/3 is the Copy of bank statement, Mark.DW1/4 is the Copy of cheque leaf, Mark.DW1/5 is the Copy of statement of complainant as CW-1 dated 02.06.2022 and Mark.DW1/6 is the Copy of Company Master Data.
15. The defence witness DW-1 was duly cross-examined by the ld. Counsel of the complainant and was discharged.
Thereafter, evidence on behalf of the accused was closed.
16. Thereafter, the matter was fixed for final arguments.
ARGUMENTS:
17. Final arguments were advanced on behalf of both the parties. Rival submissions were heard on behalf of both the parties.
18. The following points of determination arise in the present case:
a. Whether the complainant is successful in raising the presumptions under Section 118 read with Section 139 of NI Act?
b. If yes, whether the accused has been successful in raising a probable defence?
Digitally
signed by
THE LAW APPLICABLE: komal
komal Date:
2024.11.29
16:21:58
+0530
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19. I have given my thoughtful consideration to the rival submissions of the Ld. counsels from both sides and have also perused the record. Before appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles relevant for adjudication of complaint under Section 138 of NI Act.
20. The Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491 at page 422 held as follows :
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
21. The three-judge bench of the Hon'ble Supreme Court in Rangappa v. S. Mohan, (2010) 11 SCC 441 has ruled that existence of liability itself is a presumption of law. It held as under:
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability." Digitally signed by komal komal Date:
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22. The Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri) 236 at page 565 held as follows:
"A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act."
APPRECIATION OF EVIDENCE AND FINDINGS:
POINT OF DETERMINATION NO. 1:
23. In this case issuance of cheque, its presentation and dishonorment is not in dispute, inasmuch as the same have been duly proved on the basis of cogent evidence.
24. The signature on the cheque in question bearing Ex.CW1/D is admitted by the accused. The aforesaid cheque in question was returned vide return memo bearing Ex.CW1/E. The legal demand notice bearing Ex.CW1/F was sent to the accused vide postal receipt bearing Ex.CW1/G. The accused had accepted the receipt of legal demand notice.
25. In view of the abovementioned circumstances, the presumptions under sections 139 and 118 NI Act that the cheque in question was for a legally recoverable debt/liability stand activated.
26. Accordingly, the point of determination no.1 is decided in affirmative.
Digitally signed by komal komal Date:
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POINT OF DETERMINATION NO. 2:
27. The burden to disprove the existence of legal liability is upon the accused. This may be done by poking holes in the case of the complainant or by leading positive evidence in defence.
28. As far as the defence evidence is concerned, the accused had examined himself as DW-1. It is stated by DW-1 that entire cheque amount is repaid, however, the complainant had not withdrawn the cases. He had further relied on MarkDW1/1 which is the mediation settlement between the parties. The settlement was declared null and void by Court through order dated 10.01.2020, and in such circumstance, this document cannot be relied upon. The accused had produced a record of payment MarkDW1/2 showing date, cheque number, and amount paid to complainant. The complainant had never suggested in cross- examination that amount of Rs.1,97,351/- is not paid to him, as mentioned on Point X. Further, accused had produced bank statement Ex.DW1/3 showing payment made to the complainant, but the said payments are never suggested as not received by the complainant. Further, the said document being a well maintained bank account statement, authenticity of bank statement is beyond question. In such an event, the fact of accused making constant payments to complainant cannot be denied.
29. The director of complainant had appeared as CW1. The outstanding loan in the present loan is stated to be Rs. 2 lacs. It is further stated that the accused had paid EMIs of Rs. 6,000/- for six months and four more EMIs of Rs. 22,667/-. The complainant Digitally signed by komal CT Case No.:- 5522/2020 Page No. 10 of 12 komal Date:
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was confronted with bank statement Mark-CW1/D4, it was never denied by complainant that he had received Rs.8,50,000/- from accused. It was stated that the said amount of Rs.8,50,000/- was received for other business transactions between the parties. The other business transactions between the parties are never disclosed, the total loan amount outstanding in all cases is not mentioned, and no documentation of said transactions is put on record. In such a circumstance, the statement of accused that payments of Rs.1,82,668/- and Rs.8,50,000/- were received by complainant can be relied upon. Further, the burden of proof is on complainant to disclose other transactions with the accused, which he never proved.
30. The statement of accused is consistent in reply to notice u/s 251 Cr.P.C and statement u/s 313 Cr.P.C. The accused had proved paying installments by way of bank statement and cross- examination of CW-1. The burden of proof now lies on complainant to disclose the outstanding dues of accused in which he has desperately failed.
31. Thus, by way of cross-examination of complainant and leading his defence, accused has been able to dilute the credibility of complainant's testimony and has been able to raise probable doubt over the averments of complainant.
32. Accordingly, in light of the aforesaid discussion, the point of determination no.2 is decided in affirmative.
Digitally
Conclusion: signed by
komal
komal Date:
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16:22:18
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33. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s 118 & 139 of the Act have been rebutted by the accused by proving his defence, whereas the complainant has failed to prove his case beyond all reasonable doubts. Resultantly, this court finds the accused Prem Singh not guilty for the punishable U/s 138 N I Act. Hence, he stands acquitted.
ANNOUNCED IN THE OPEN COURT Digitally signed by ON 29.11.2024.
komal komal Date:
2024.11.29 16:22:23 +0530 (KOMAL) JMFC(NI Act)-08,South Saket/NewDelhi/29.11.2024 Certified that this judgment contains 12 pages and each Digitally page bears my digital signature. signed by komal komal Date:
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