Delhi District Court
Page No. 1 Of 12 M/S Sharma Electronics ... vs . Aarif Ali on 8 January, 2020
IN THE COURT OF SH. TUSHAR GUPTA, METROPOLITAN MAGISTRATE (NI ACT) (EAST), KARKARDOOMA COURTS:
SHAHDARA, DELHI.
JUDGMENT U/S 355 Cr.PC
a. New No. of the case : 49076/2016
b. Date of the commission of offence : 17.03.2012
c. Name of the Complainant : M/S Sharma Electricals
& Electronics
d. Name of Accused person and his : Aarif Ali
parentage and residence S/o Sh. Asif Ali
R/o H. No. 27/229,
Trilokpuri, Delhi.
e. Offence complained of : Dishonouring of
cheque for the reason "funds sufficient".
f. Plea of the Accused and : Not guilty
his examination (if any) because no goods were
purchased
g. Final Order : Held guilty (convicted).
h. Order reserved on : 11.10.2019.
i. Order pronounced on : 08.01.2020.
Page No. 1 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali
Brief reasons for decision:
1) The necessary facts for disposal of present case as reflected in the complaint are that complainant deals in sales of electronic goods such as TV, fridge etc. Accused approached the complainant and purchased four electronic items for a sum of Rs. 1,10,202/ vide bill No. 5186 book No. 104 dated 16.03.2012 and put his signatures on the bill as receiving. The present complaint case is filed through Sh. Anil Kumar Sharma, SPA/Manager. In discharge of this liability accused issued a cheque No. 229912 dated 16.03.2012 drawn on Punjab and Sindh Bank, Acharya Niketa, Mayur Vihar, Delhi for an amount of Rs. 1,10,202/ which is Ex.
CW1/3. The complainant accordingly, presented the aforesaid cheque and the same was returned unpaid by the banker for the reasons funds insufficient vide return memo Ex.CW1/4. Legal demand notice was sent on 28.03.2012 which is Ex.CW1/5. It is submitted by the complainant that the accused has failed to paid the amount of cheque in question within the stipulated period of 15 days. Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of the Negotiable Instruments Act, 1881 (in short NI Act) on 25.04.2012.
2) Cognizance of offense under section 138 NI act was taken against the accused and summons were issued. Notice of accusation u/s 251 Cr.PC was served upon the accused on 21.11.2012 and plea of defence of the accused was also recorded on the same day in which he had not pleaded guilty and claimed trial. Page No. 2 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali
3) In post summoning evidence Complainant (CW1) has been examined as sole complainant witness for proving his version of the case and thereafter memorandum of statement of accused u/s 313 r/w 281 of Cr.PC also recorded in the case wherein accused wanted to lead defence in his favor. Thereafter, Ld. Counsels for both the parties made detailed final oral submissions on behalf of respective parties.
4) In his defence, the accused choose not to lead any evidence in his defence. Accused admitted his signature and account number on his cheque in question. However, accused pleaded that he had not filled the body of cheque in question. It is pleaded by the accused that he had never purchased any goods from the complainant rather he had taken loan of Rs. 20,000/ from the complainant and out of which some money has been repaid. It is further submitted that he has no liability towards the complainant.
5) Ld. counsel for the complainant contended that the accused has admitted that his dishonored cheque in question bear his signature and legal presumption of consideration u/s 139 of NI Act would act against the accused. Ld. Counsel for the complainant further contended that the accused does not have any defence evidence in present case and he has taken false plea to avoid his liability towards the complainant.
Page No. 3 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali
6) This is the factual matrix of this case. Let us now examine the legal benchmark which is to be satisfied in order to constitute an offense under section 138 NI Act:
(i) that the persons must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) That the cheque should have been issued for discharge in whole or in party of any debt or other liability.
(iii) that the cheque has been presented to a bank within a period of three months from the date on which it was drawn.
(iv) that cheque is returned by the bank unpaid because of the amount of money standing to the credit of account is insufficient to honour the cheque or that it exceeds the amount arranged to to be paid from that account or any other reason.
(v) that the payee or the holder in due course of the cheque makes a demand for the payment of said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of cheque as unpaid.
(vi) that the drawer of the said cheque fails to make payment of the said amount to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
7) It is only when all the aforementioned ingredients are satisfied, that the person Page No. 4 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali who had drawn the cheque can be deemed to have committed an offense u/s 138 of NI Act.
8) Arguments heard of both the parties. File perused.
9) In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court, held as under:
"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 nonexistence 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 nonexistence 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 nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they Page No. 5 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali 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 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."
10) In M. S. Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39, the Apex Court dealing with the statutory presumption under Sections 118(a) and 139 of the N. I. Act inter alia held as under:
"29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "disproved" have been defined in Section 3 of the Evidence Act (the interpretation clause)......
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
XXX XXX XXX
32. The standard of proof evidently is preponderance of Page No. 6 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
XXX XXX XXX Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the s standard of reasonability being that of the 'prudent man'."
11) The gist of two above mentioned precedents is that the accused is in trial under Section 138 NI Act is left with two alternatives for his defence. He can either show that consideration and debt did not exist for which direct evidence could be adduced which is seldom available or he can show by relying upon circumstantial evidence that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that prudent man ought to suppose that no consideration and debt existed. It is evident that standard of proof to rebut the statutory presumption is not to prove it beyond the reasonable doubt as required in a criminal complaint. The onus to that effect on the accused is not onerous and what is required is a probable defence which could primarily find its foundation in preponderance of probabilities. In order to raise a probable defence, the accused can also rely on the evidence adduced by the complainant. However, a bare denial of the statutory presumption by the accused will not suffice.
12) In present case, accused has admitted his signature and account number with respect to cheque in question in notice u/s 251 of CrPC. However he did not Page No. 7 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali accept that he fills the body of cheque in question. Now, admission of signature and account number has itself creates the presumption u/s 139 of NI act in favor of the complainant. Now the burden of proof shifts upon the accused to rebut the presumption that such liability does not exist. In the present case the accused has taken the following defence to rebut the presumptions which are as follows.
13) In the present complaint case the complainant stated that goods worth of Rs. 1,10,202 were supplied to the accused for which the cheque in question was issued and same was dishonored. To this the accused in his notice and statement u/s 313 had taken the defence that he had not taken any goods from the complainant rather he took an amount of Rs. 20,000 from the complainant out of which some amount has been repaid and some amount is remains to be paid. Now the point which has to be determined in the present case is that whether the cheque was given for the purpose of security or it was given against the goods purchased. Accused has not produced any evidence in his defense two prove his contentions. An accused can rebut the presumption by leading any evidence in his defence or by creating loopholes in the story of the complainant. In present case no evidence was lead in his favor. Now let us examine whether there are loopholes in the story of the complainant. Learned counsel for accused had raised many arguments before this court and submitted that there are many loopholes in the testimony of the complainant and it has not passed the test of cross examination. Let us see whether the testimony of the complainant is reliable or Page No. 8 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali not. The first argument raised by the learned counsel for the accused that cheque in question was handed over on the same date on which the alleged goods were purchased which creates doubt over the genuineness of transaction. On perusal of the cheque in question and document Ex. CW1/2 which is bill by which the alleged goods were supplied this court finds that both are of same i.e. 16.03.2012. I do not find any merit in this argument as the cheque can be very well given on the same day on which the goods were purchased. Moreover CW1 in his cross examination deposed that accused had given the cheque in question to him at the time of supply of goods by him to the complainant. Further no suggestion was put by learned counsel for the accused that no such cheque was given at that time. To this the statement of the witness stand clear. The second argument which is raised by the learned counsel for accused is that the signature on bill Ex. CW1/2 and cheque in question are different. Now the burden of proof to this contention was upon the accused which he has totally failed to prove. A mere argument can not raise before the court without fulfilling the duty on one's own part. Merely putting suggestions in crossexamination of the complainant does not serve any purpose rather the party has to stand before the court and prove the fact which the party is alleging. Therefore I do not find any merit in this argument. The third argument raised by the learned counsel for accused is that CW1 in his cross examination had deposed that he and the accused were having previous dealings however this particular point has not been mentioned in the complainant. Now it is nowhere denied by the accused that he did not know the complainant rather it is Page No. 9 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali the defence of the accused that he had taken a loan of Rs. 20,000 from the complainant. From this fact it is clear that there was some acquaintance between the complainant and the accused and the point of not mentioning this fact in complainant does not make any difference. Therefore I do not find in merit in this argument. The fourth argument which is raised by the learned Counsel for accused is that it is stated by the witness CW1 in his crossexamination that the bill bears the signature of accountant Raj Chaudhary who has not been called as witness thus it raises doubt over the genuineness of the bill. I do not find any merit in this argument. The transaction is of the year 2012 and it is not always possible for any employer to produce his former employee after a gap of approximately 7 years. Merely the accountant was not produced does not make the story of the complainant doubtful in any aspect. Further, witness CW1 in his crossexamination deposed that accused was working as a tailor in the year 2012. To this the another argument which is led by learned counsel for the accused is that accused was an erickshaw driver in the year 2012 and complainant was not aware of the status of the accused at the time of transaction. I do not find any merit in this argument. Ld. counsel for the accused has failed to produce any evidence before this court to prove that accused was an erickshaw driver in the year 2012. Merely putting the suggestion to the witness does not serve any purpose. The other party must have to produce some cogent evidence before the court to contradict the testimony of the witness which the ld. Counsel for the accused fails to produce in the present case.
Page No. 10 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali
14) One another argument raised by the learned counsel for the accused is that witness CW1 was not having any knowledge with respect to the facts of the present case and he is not the owner of the complainant firm because he has not filed any proof pertaining to this. First of all by proving the fact that CW1 is not the owner of the complainant does not means that accused has no liability towards the complainant firm. Firstly the case was filed through the SPA of the proprietor firm and thereafter the proprietor himself steps into the witness box and deposed as the witness. The proprietor of a firm is always at liberty to pursue the case himself at any stage despite the fact that it was filed through its SPA. The complainant at all the stages is the firm only and in the end it is the firm who will be benefited through its Manager/SPA or the proprietor. Moreover the burden of proof to proving this particular fact was also upon the accused. Had the witness being not the proprietor of the firm then the accused would have placed on record any document to show that CW1 is not the owner or accused would have produce the original owner before this court to prove his contention which has accused fails to produce in the present case. Therefore By raising the contention that complainant is not the proprietor of the firm is of no use and accused can not evade his liability. Therefore this particular argument has no substance in it.
15) In the present case I do not find any loophole in the testimony of the complainant. In the crossexamination of the witness CW1 no such question was asked by the Page No. 11 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali learned counsel for accused which have made the transaction in question doubtful. I do not find even a single deposition in crossexamination of CW1 to raise a doubt over the transaction in question. Therefore from the above discussion it can be very well said there is no loophole in the case of the complainant and the cheque in question was given against the purchase of goods and not as security.
16) In above view this court conclude that statement of accused cannot be accepted. Serious doubts persists as to the credibility of the statement of accused.
17) In view of above discussions, this court is of considered view that accused has failed to create reasonable doubt over the veracity of story of complainant by balance of probabilities. It is noticeable that the complainant has to prove his case beyond reasonable doubt only when the accused has rebutted the presumption u/s 139 NI act which the accused has fails to do in present case.
18) In upshot of aforesaid discussion, I return finding of conviction of accused Aarif Ali for offense u/s 138 of NI Act in this case.
Digitally signed by TUSHAR GUPTA
19) Let the convict be heard on quantum of sentence. TUSHAR Location: Karkardooma
GUPTA Courts, East
District, Delhi
Announced in the open court (TUSHAR GUPTA )
Date: 2020.01.08
13:03:32 +0100
on 08th Day of Jaunary, 2020. MM (NI Act)/KKD/Delhi
Page No. 12 of 12 M/S Sharma Electronics and Electricals Vs. Aarif Ali