Delhi District Court
I) Dashrathbhai Trikambhai Patel vs . Hitesh Mahendrabhai Patel (Sc) (2022 ... on 14 August, 2023
In the Court of Ms. Isra Zaidi Metropolitan Magistrate (Mahila Court- 02),
Shahdara District, Karkardooma Court
Criminal Complaint No.: 393/2020
PS: Anand Vihar
Date of institution of the case: 04.11.2020
Date for which judgment is reserved: 31.07.2022
Date on which judgment is delivered:14.08.2022
Alok Gupta .............. Complainant
Versus
M/S AM Cool Engineering Pvt. Ltd ............ Accused
1.Name & address of the complainant: Alok Gupta S/o Sh. Subhash Gupta,
R/o 455 Gali no. 10 Krishna Nagar,
Delhi-110095.
2.Name & address of the accused: M/S AM Cool Engineering Pvt. Ltd.
through its Managing Director.
R/o 303 III floor Neelkanth Tower, S524,
School Block, Shakarpur, Vikas Marg,
Delhi -92.
3.Offence complained of: Section 138 Negotiable Instruments
Act, 1881
4.Plea of accused: Pleaded not guilty.
5.Final order: Acquitted
6.Date of Institution of case: 04.11.2020
7.Date of decision of the case: 14.08.2023
1
Judgment
1. Vide this judgment, I shall dispose of the complaint case filed by the complainant Alok Gupta (hereinafter,
referred to as the 'complainant') against accused M/S AM Cool Engineering Pvt. Ltd, under Section 138 of
the Negotiable Instruments Act 1881(herein after, referred as NI Act).
Facts of the case
2. Whereas speaking succinctly, the gravamen of the complainant is that the complainant was working with accused's company since 2011. However, the salary and incentives of the complainant were often not paid in time and were delayed. Accused had fired the complainant on 20.09.2018 and accused had not paid the complainant, his salary, incentives, and other dues since April 2018. Complainant had asked for his full and final settlement amounting to Rs. 1,90,908/- but accused has not paid the same to the complainant. Thereafter, complainant opened a firm under the name and style M/s D.P Enterprises and accused also purchased goods from his firm. In order to discharge his liability, the accused handed over one cheque bearing no. 894008 dated 17.09.2020 drawn on Punjab National Bank, Dilshad Garden, Delhi amounting to Rs. 5,45,014/- (hereinafter referred to as the 'cheque in question') in favor of the complainant with an assurance that the same will be honored on presentation. But the cheque in question got dishonored and was returned to the complainant vide return memo dated 19.09.2020 with the remarks " Funds Insufficient". The complainant thereafter, sent a legal demand notice dated 26.09.2020 to the accused through his counsel.
3. The same was duly received by the accused on 11.03.2017. However, the accused did not come forward to repay debt within the prescribed period of fifteen days. Hence, being an aggrieved, the complainant filed the present complaint under section 138 of NI Act, 1881 on 17.03.2020. The complainant has averred that the complaint is within the period of limitation as is prescribed under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 and the same falls within the territorial jurisdiction of this Court, thus, being tenable at law. Hence, the complainant invoked the jurisdiction of this court to summon the accused try and punish him as per the provision under Section 138 of the NI Act, 1881.
Pre-summoning Evidence
4. To prove his case prima facie, the complainant led the pre summoning evidence by way of an affidavit which is Ex. CW1/A wherein the complainant avouched the same facts as are averred in the complaint and the same was tendered.
2 S. No. Exhibit Nature of documents
1. Ex CW1/A Evidence by way of an affidavit
2. Ex. CW1/1 Cheque in question
3. Ex. CW1/2 Cheque return memo
4. Ex. CW1/3 Legal Demand notice
5. Ex. CW1/4 Postal receipt
6. Ex. CW1/5 Tracking report
7. Ex. CW1/6 Track consignment
8. Ex. CW1/7 Track consignment
9. Ex. CW1/8 Speed post/Email
10. Ex. CW1/9 Offer of appointment dt. 01.04.2014
11. Ex. CW1/10 (colly) Tax Invoice
5. The accused was summoned by the Learned Predecessor of this court order vide dated 10.02.2021 and the accused entered appearance in the present case on 05.05.2021. Notice against the accused was framed under section 251 Cr.P.C on 06.09.2022 against the accused to which he pleaded not guilty and claimed the trial. Thereafter, the matter was posted for arguments under Section 145(2) NI Act and the same was allowed and the case was tried as a summons triable case.
6. The accused pleaded not guilty and claimed trial. He stated in his defence that the complainant used to work with him as an employee, till 31.03.2018, accused had paid all the wages which were due. Complainant used to visit to his office. He further stated that the complainant was very aware that accused keeps certain signed cheques for emergencies. Complainant had stolen the said cheque from his table in the office. When accused came to know regarding the same, accused had complained to the bank. Accused has stated that the complainant had forged the documents dated 20.03.2018 as no goods were received through said bill. He further stated that he has no legal liability towards the complainant.
7. To prove his case, the complainant adopted his pre-summoning evidence as post-summoning evidence and got himself examined as CW1. He was subjected to cross examination at length by the counsel for accused on 07.02.2023 and complainant's evidence was closed on 14.03.2023 3 Statement of the accused under Section 313 Cr.P.C
8. Written statement u/s 313(5) Cr.P.C on behalf of the accused was filed wherein, accused stated that complainant has deposed against him to extort money from him by exerting the pressure by filing the present false criminal case. Complainant has deliberately withheld and not stated factum of issuing of earlier legal notice dated 28.03.2019 to AM Cool Engineers & Consultants Pvt. Ltd. It was further stated that reply dated 06.04.2019 was sent by AM Cool Engineers & Consultant Pvt. Ltd. through counsel to the said legal notice of the complainant. He further stated in his statement that notice dt. 28.03.2019 of the complainant shows that the present case is false, self-contradictory, and filed on a cock and bull story and is a blatant example of filing false case, and amounted to gross abuse of the process of law by using the stolen cheque in question for filing false criminal case u/s 138 of NI Act by the complainant. Accused further stated in his statement u/s 313 Cr.P.C that he has no liability towards the complainant as he has admitted in his cross-examination that as per the complainant's case the alleged liability is only of AM Cool Engineers & Consultants Pvt. Ltd. and there is no liability of accused Ravinder Kumar Gupta. He also stated that firm M/s D.P Enterprises had received, inter alia, payment of Rs. 25,000/- on 21.05.2018 and Rs. 17,000 on 22.05.2018 from AM Cool Engineers & Consultants Pvt. Ltd. through bank transfer. The complainant has duly admitted in his cross- examination that the said payments were not reduced from the total alleged amount mentioned in the cheque in question of Rs. 5,45,014. The total liability as stated in the present complaint by the complainant and the cheque in question does not take into account or reduce those payments made through bank transfers. However, as the complainant was well aware and not oblivious that those payments were received from AM Cool Engineers & Consultants Pvt. Ltd in the bank account of M/s D.P Enterprises.
Evidence of the Defence
9. Thereafter, the matter was listed for DE. Accused person lead the DE and examined the following witnesses.
S. No. Name of the Witness Role in the present case
1. DW1 Mr. Ashish Kumar
Documents relied upon by the Defence Witness
S. No. Exhibit/Mark Nature of documents
1. Ex. DW1/1 Statement of the account from 21.05.2018 to 22.05.2018 of M/s
4
AM Cool Engineers and Consultant Pvt. Ltd (account no.
20395008782)
2. Ex. DW1/2 Statement of account from 20.05.2018 to 23.05.2018 of M/s D.P
Enterprises (account no. 50441233952)
3. Ex. DW1/3 Identity card of Indian Bank
4. Ex. DW1/4 Certificate u/s 2A of the Bankers Book Evidence Act, 1891 along
with certificate u/s 65 B of the Indian Evidence Act.
5. Ex. DW1/5 Authority letter by Indian Bank
10. DE closed vide separate order dated 28.04.2023 and the matter was listed for final argument on 26.08.2022.
Final Arguments
11. Learned counsel for the complainant has argued that complainant has proved the case beyond reasonable doubt supported with the cheque in question, return memo, legal demand notice, postal receipts and tax invoices. He further submits that legal demand notice was duly served upon the accused. Accused has also not taken the plea in reply to legal demand notice that an amount of Rs. 25,000/- and Rs. 17,000/- were credited to the account of the complainant. Detailed written submissions have also been filed by the Ld. Counsel for the complainant. He prays that accused be convicted. He has relied upon the following judgments.
i) Mainuddin Abdul Sattar Shekh V. Vijay.D.Salvi (Crl. Appeal no. 1472/2009)
ii) Rangappa V. Shri Mohan (2010) 11 SCC 441
iii) Rohit Jeevan Lal Patel V. State of Gujarat (Crl. Appeal no. 508/2019)
iv) Hiten P Dalal V. Badrinath Banerjee (Crl Appeal no. 688/1995)
v) Y.S Yadav V. Reena (Crl. Appeal no. 1136/2010)
12. Ld. Counsel for the accused argued that accused has successfully discharged the burden on the basis of preponderance of probabilities. Ld. Counsel for the accused submitted that cheque is presented on the basis of two different liabilities. The cheque in question does not represent legally enforceable debt. Ld. Counsel for the accused further argued that no liability of accused Ravinder Kumar Gupta is made out as the cheque was not issued by AM Cool Engineers. Vicarious liability of the accused is not attracted in the present case as the cheque was not issued by AM Cool Engineers or Ravinder Kumar Gupta in the capacity of the director of the company. Further, the credibility of the witness has also been targeted by the accused as the defence set up in his earlier legal demand notice is contradiction to the legal demand notice sent in the present case. He further submitted that the accused has successfully rebutted the presumption under section 139 of the NI Act. He prays that accused be acquitted. He has filed comprehensive written submissions.
513. Ld. Counsel for the accused has relied upon the following judgments-
i) Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel (SC) (2022 SCC OnLine DC 1736)
ii) Dilip Hiraramani V. Bank of Baroda (SC) (Crl Appeal no. 767/2022)
iii) Hiten Sagar V. Imc. Ltd. (Hon'ble Bom HC)
iv) Suresh Jindal V. State (Hon'ble Delhi HC) ( Crl. M.C no. 1514/2007)
v) Basalingappa V. Mudibasappa (SC) (2019) 5 SCC 418
vi) John K. Abraham Vs. Simon C. Abraham & Anr. (Hon'ble Supreme Court of India) (2014) 2SCC 236
vii) Vijay Vs. Laxman & Anr. (Hon'ble Supreme Court of India) (Crl Appeal no. 261/2013)
viii) Vipul Kumar Gupta Vs. Vipin Gupta (Hon'ble High Court of Delhi) (Crl L.P no. 461/2021)
ix) Ram Yudhishthir Vs. Jai Prakash (Hon'ble High Court of Delhi )(Crl L.P no. 305/2018)
x) Bijender Sharma Vs. Anil Sabharwal (Hon'ble High Court of Delhi) (Crl. Rev. P no. 388/2017)
xi) Rev. Mother Vs. Reni C Kottaram (SC) (Crl. Appeal no. 1594/2012)
xii) S.K Jain Vs. Vijay Kalra (Hon'ble High Court of Delhi) (Crl. Appeal No. 1011/2013)
xiii) K. Prakashan Vs. P. K Surenderan (SC) (Crl. Appeal No. 1410/2007)
xiv) Satish Kumar Vs. State Nct of Delhi & Anr. (Hon'ble High Court of Delhi) (Crl. L.P 95/2006)
xv) Sri. M. Gopalappa Vs. Sri M.D Basavanna (Hon'ble High Court of Karnataka) (Crl. Appeal No. 428/2006) xvi) Samsung India Vs. Mgr Enterprises & Ors. (Hon'ble High Court of Delhi) (Crl. L.P No. 344/2019) xvii) M/s Kumar Exports Vs. M/s Sharma Carpets (Crl. Appeal No. 2045/2008) xviii) S.S Chauhan V. State of Anr. (Hon'ble High Court of Delhi) (Crl. L.P no. 164/2012) xix) M.S Narayan Vs. State of Kerala (SC) (Crl. Appeal No. 1012/1999) xx) Luminous Power Vs. Vinay Aggarwal (Hon'ble High Court of Delhi) (Crl. L.P 268/2014) Law pertaining to Section 138 NI Act relating to dishonor of cheque Dishonor of cheque for insufficiency, etc., of funds in the account.
--"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing 6 contained in this Section shall apply unless-- The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. -- For the purposes of this Section, "debt or other liability" means a legally enforceable debt or other liability."
14. At this juncture, it becomes germane to reproduce the statutory presumptions entailed under Negotiable Instruments Act, 1881 Section 118 of the NI Act Presumptions as to negotiable instruments:- Until the contrary is provided, the following presumptions shall be made:
(a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
(b) as to date - that every negotiable instrument bearing a date was made or drawn on such date
(c) as to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity
(d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity 7
(e) as to order of endorsements - that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon
(f) as to stamps - that a lost promissory note, bill of exchange or cheque was duly stamped
(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
Section 139 NI Act Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
15. Two presumptions in favor of the holder of the cheque are raised in favor of the holder of cheque. Firstly, regarding the passing of consideration as contained in Section 118 (a) and secondly, a presumption under Section 139 of the Act, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability Appreciation of evidence
16. CW1 adopted his pre summoning evidence as his post summoning evidence. Witness admitted that he had not filed an original tax invoice Ex. CW1/10 (colly) along with his complaint Ex. CW1/A. He had also not brought the original tax invoices. He testified that he could not tell the exact amount of conveyance charges and incentives. His incentive was 0.25% of sale and 0.5% of maintenance. He used to receive his 8 salary by way of cheque. He again said that he used to receive his salary by way of RTGS which was used to be paid by AM cool engineers and consultants Pvt. Ltd. Complainant further testified that he did not receive any incentive of sale and service along with his salary received in his bank account till date. Complainant admitted that as per Ex. CW1/9, he was appointed in AM cool engineers and consultants Pvt. Ltd on 01.04.2014 and from 01.04.2018, he started running his own business in the name of M/s D.P. Enterprises. He admitted that gratuity amount was not payable to him. Complainant also admitted that he had received entire salary till 31.03.2018 and no payment has been made by the accused to him on behalf of AM cool engineers and consultants Pvt. Ltd when he was working. Complainant also admitted that he had opened the bank a/c in the name of his firm M/s D.P. Enterprises. Complainant also admitted that as per his complaint, he had filed present case in respect of two different liabilities, one is allegedly payable to complainant and other to M/s D.P. Enterprises. M/s D.P. Enterprises did not receive any cash payment from AM cool engineers and consultants Pvt. Ltd. Complainant admitted that he had not received payment of Rs. 25,000/- from AM cool engineers and consultants Pvt. Ltd on 21.05.2018 in the A/c of M/s D.P. Enterprises.
17. Complainant testified that as per Ex.CW1/9 the incentive is payable at the time of achieving billing of Rs.17 lakhs. He could not tell the exact amount of sale or incentive payable to him. Complainant admitted that payment of Rs.25,000 dated 21.5.2018 and Rs.17,000 dated 22.05.2018 were not credited in the ledger account maintained by M/s D.P Enterprises in the name of AM Cool Engineers and consultants PVT. Ltd. He admitted that amount of Rs.25,000 dated 21.5.2018 and Rs.17,000 dated 22.05.2018 were not reduced from the total amount as reflected in the cheque in question. He admitted that as per case the alleged liability is only of AM Cool engineers and Consultants Pvt. Ltd. and there is no liability of accused Ravinder Kumar Gupta. Complainant voluntarily stated that as Ravinder Kumar Gupta is the director of the company.
18. He denied the suggestion that he did not get any order in the name of AM Cool engineers and Consultants Pvt. Ltd. He denied the suggestion that he had never called the accused as no amount was due towards him and no amount of Rs.1,90,908/- was payable to him. Complainant further denied the suggestion that no amount of Rs.3,54,106/- was payable to M/S DP Enterprises. He also denied the suggestion that no amount as filled in cheque in question was payable to him and the cheque in question was never issued by Ravinder Kumar Gupta to him. He denied the suggestion that no debt is recoverable by him from AM Cool engineers and Consultants Pvt. Ltd. He denied the suggestion that as certain blank signed cheques of personal saving joint account of Ravinder Kumar Gupta with his wife were kept in the file in the office of AM Cool engineers and Consultants Pvt. Ltd. Complainant denied the suggestion that he had stolen one of the blank signed cheque and illegally presented the said stolen cheque to the bank after filling the contents of the cheque illegally as he had an unhindered access to the office of AM Cool engineers and Consultants Pvt. Ltd. He denied the suggestion that the cheque in question was never issued to the complainant. He denied the suggestion that only goods in respect of three invoices dated 11.05.2018 of Rs.33,245 and Rs.7800 and another invoice dated 17.05.2018 of Rs.34,106 were received by AM Cool engineers and Consultants Pvt.
9Ltd from M/s DP Enterprise and no other goods were received. He denied the suggestion that M/S DP Enterprise had received cash payment of Rs.10,000 on 11.05.2018, Rs.25,000(through bank) and Rs.17,000(through bank) on 21.05.2018 and 22.05.2018, Rs.10,000(in cash) on 22.05.2018, Rs.10,000(in cash) on 22.06.2018 and lastly payment of Rs.3151(in cash) on 28.6.2018 in full and final settlement of accounts by AM Cool engineers and Consultants Pvt. Ltd. Complainant denied the suggestion that no goods as stated in invoice dated 20.03.2018 was received by AM Cool engineers and Consultants Pvt. Ltd. from M/s DP Enterprise and no order was placed in respect there to. As per his complaint, the liability of Rs.3,54,106 is based on invoices only. Thereafter, witness was confronted with his ledger account statement for the period dated 1.04.2018 till 8.03.2020. He deposed that the entries in the ledger account was unclear.
19. DW1 was a summoned witness. He had brought summoned record. He had brought the statement of the account from 21.05.2018 to 22.05.2018 of M/s AM Cool Engineers and Consultant Pvt. Ltd (account no. 20395008782) and the statement of account from 20.05.2018 to 23.05.2018 of M/s D.P Enterprises (account no. 50441233952) Ex. DW1/1 and Ex. DW1/2 respectively. As per the account statement the payment of Rs. 25,000/- on 21.05.2018 and the payment of Rs. 17,000/- on 22.05.2018 was transferred from M/s AM Cool Engineers and Consultant Pvt. Ltd (account no. 20395008782) to M/s D.P Enterprises (account no. 50441233952).
20. DW1 testified in his cross-examination that he had not brought any authority from Indian Bank to depose before the court. He had also not brought any banker certificate along with record. He produced the bankers book certificate from the bank on re-examination by the Ld. Defence Counsel.
Brief reasons for the just decision of the case
21. In order to ascertain whether the accused has committed the present offence, it is necessary to ascertain if the indispensable ingredients constituting the offence have been proved by the complainant. The ingredients of the offence under section 138 NI Act are as follows:
a) Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
b) Dishonour of cheque in question which must have been drawn on an account maintained by the accused;
c) Service of demand notice seeking payment of cheque amount within fifteen days from the date of service;
d) Non-payment of cheque amount within fifteen days from the date of service of notice; and
e) Filing of complaint within one month from the date on which cause of action arises.
22. In the present case, the presentation of the cheque in question for encashment and dishonour of the cheque for the reason "Funds Insufficient" is not disputed as it is a matter of record proved by the return 10 memo Ex. CW1/2 dated 19.09.2020. Therefore, it has been proved that the cheque was presented within its validity period and dishonored by the banker of the accused. It is also not disputed that the cheque in question was issued by the accused and was drawn on his personal bank account as he has not denied his signatures on the cheque. Thus, the presentation of the cheque in question, the fact that it is dishonored and service of legal demand notice is not under question as the reply to the legal notice was also given on behalf of the accused wherein, he denied his liability and the same has been relied upon by the complainant is Ex. CW1/8.
23. Now the moot question to be ascertained is whether the accused has successfully rebutted the presumption under Section 139 of the NI Act.
24. At the cost of repetition, it is again pertinent to note that Section 139 NI Act read with Section 118 of the Act creates a rebuttable presumption in favour of the complainant as the same has been discussed above. According to Section 118 of the NI Act, until the contrary is proved, it shall be presumed inter alia that every negotiable instrument was made, drawn, accepted or endorsed for consideration. It is also presumed that consideration is present in every negotiable instrument until the contrary is proved. It is also trite that Section 139 NI Act is an example of reverse onus clause and the accused cannot be expected to disprove the existence of legally recoverable debt or liability by direct evidence also, it's conceivable that in some cases, the accused may not need to adduce evidence of his or her own.
Material Inconsistencies in the version of the complainant
25. The case of the complainant is that he was a permanent employee since 2011 in the company of the accused namely AM Cool Engineers and his PF was also deducted. Accused fired the complainant from the services on 20.09.2019 without giving any notice and did not pay his salary and other incentives from April 2018 till August 2018 amounting to a sum of Rs. 1,90,908/. Further, when the accused did not pay the salary to the complainant, he opened his own firm in the name of M/s D.P Enterprises. Accused purchased the goods from the complainant on the credit basis and promised to pay the amount. Complainant delivered the goods to the accused and Rs. 3,54,000/- became due from accused to him. After repeated demands accused no. 2 issued a cheque from his personal account vide cheque bearing no. 894008 dated 17.09.2020 for a sum of Rs. 5,45,014/- and the cheque was dishonored due to insufficiency of funds dated 19.09.2020. Thereafter, despite the issuance of legal demand notice, accused failed to make payment within the stipulated time. On a cumulative reading of the complaint and the evidence, several discrepancies are found in the complainant's case.
26. The complainant has stated that an amount of Rs. 5,45,014 was due on part of the accused. The liability of the accused was on two different accounts i.e., Rs. 1,90,908/ and Rs. 3,54,106/ payable by AM Cool 11 Engineers as salary of the complainant and against the goods on credit by M/s DP Enterprises respectively. During the course of cross-examination, CW1 has admitted that he has received Rs. 25,000/ and Rs. 17,000/ from AM Cool Engineers Pvt. Ltd on 21.05.2018 and 22.05.2018 which were not reduced by the complainant while calculating the amount. CW1 was specifically asked in the cross-examination if he had received payment of Rs. 25,000/- and Rs. 17,000/- from AM Cool Engineers Pvt. Ltd. on 21.05,2018 and on 25.02.2018. The complainant had denied the suggestion that he did not receive any such amount. However, in his cross examination dated 14.03.2023, he admitted that he received payment of Rs. 25,000/- dated 21.05.2018 and Rs. 17,000 dated 22.05.2018, and the same was not credited in ledger account maintained by DP Enterprises. He also admitted that Rs. 17,000 and Rs. 25,000 were not reduced.
27. At this stage, it is pertinent to note the Judgment by Hon'ble Supreme Court of India in Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr. (2022 SCC OnLine DC 1736) wherein it was held that-
" If the drawer of cheque pays a part of whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque. When a part of whole of the sum represented on the cheque is paid by the drawer of the cheque, it must be endorsed on the cheque as prescribed in Section 56 of the Act. The cheque endorsed with the payment made may be used to negotiate the balance, if any. If the cheque that is endorsed is dishonored when it is sought to be encashed upon maturity, then the offence under Section 138 will stand attracted. The first respondent was made part-payments after the debt was incurred and before the cheque was encashed upon maturity. The sum of rupees twenty lakhs represented on the cheque was not the "Legally enforceable debt" on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence u/s 138 of the Act when the cheque was dishonored for insufficiency funds".
28. The accused had called defence witness in support of his contention that he has paid an amount of Rs. 25,000/ and Rs. 17,000 on 21.05.2018 and 22.05.2018. The statement of account of M/s AM Cool Engineering Pvt. Ltd. was called for a period from 21.05.2018 to 22.05.2018. As per the account statement, payments of Rs. 25,000/ and Rs. 17,000/ were transferred from M/s AM Cool Engineering Pvt. Ltd. to M/s 12 DP Enterprises. He has also filed certificate under section 2A of Bankers Books Evidence Act, 1891. The accused made part payment after the debt was incurred but before the cheque was encashed. The sum of Rs. 5,45,014/ represented on the cheque does not represent a legally enforceable debt. The complainant has stated in his evidence by way of affidavit that the accused has not paid an amount of Rs. 3,54,106/ against the goods on credit by DP Enterprises. Even for the sake of assumption, assuming his version to be true, the amount which has been paid by AM Cool Engineers of Rs. 25,000/ and Rs. 17,000/ on 21.05.2018 and 22.05.2018 were not reduced. After considering the evidence and material on record, it appears that accused was able to raise probable defence which creates doubt about the legally enforceable debt and the version of the complainant.
29. The complainant has stated that the total amount of Rs. 5,45,014 was due from the accused. Rs. 1,90,908/- was stated to be the amount due on an account of salary and other incentives. Rs. 85,279 was his salary and other statutory dues amounting to Rs. 1,05,630/- including the conveyance charges and incentives. Rs. 3,54,106/- were due on part of the accused as accused purchased goods from the complainant on credit basis. He admitted that he has filed present case in respect of two liabilities, one payable to DP Enterprises and other payable to him. He also admitted that no amount of gratuity was payable to him. No explanation has been adduced by the complainant as to how he arrived at a sum of Rs. 1,05,630. Complainant did not file original tax invoice along with the complaint, he did not even produce the original tax invoices. He was unable to tell conveyance charges. No explanation was adduced by the complainant as to the sum arrived at. When the complainant was confronted with his ledger account statement of AM Cool Engineers Pvt. Ltd. for the period from 01.04.2018 to 08.03.2020 which was Mark X. The payments that is credit were not disputed by the complainant. He merely stated that entry in the ledger account is unclear. However, perusal of Mark X reveals that entries are clear and legible. Accused has evasively answered the questions. Accused has stated in his statement u/s 313 Cr.P.C that he has already paid Rs. 17,000 and Rs. 25,000/- to the complainant and payment in cash of Rs. 10,000 each and Rs. 3,151/- was made on 22.05.2018, 22.06.2018 and 28.06.2018 and same is reflected in ledger account of AM Cool Engineers Pvt. Ltd Mark X.
30. Moreover, complainant in his original complaint has stated that his salary was due for the month of April 2018, May 2018, June 2018, July 2018, and August 2018. However, he admitted in his cross-examination that from 01.04.2018, he started running his own business in the name of M/s DP Enterprises. This also appears to be an inconsistency. Complainant has admitted in his cross examination that he has received his entire salary till 31.03.2018 and he started running his own firm from 01.04.2018. No explanation has been given by the complainant in that regard as to how the salary from 01.04.2018 till August, 2018 became due when he opened his own firm on 01.04.2018. Complainant has admitted that he started running his own business from 01.04.2018 then no question of working with AM Cool Engineers Pvt. Ltd arises after opening his own firm in the name of M/s DP Enterprises. In his evidence by way of affidavit he stated that when 13 complainant was not paid his salary, he opened his new firm, still, he was dealing with the AM Cool Engineers Pvt. Ltd. Testimony of the witness does not appear to be reliable and credible.
31. In the case of John K Abraham V. Simon C. Abraham & Anr (2014) 2SCC 236 it was held that "Keeping the said statutory requirements in mind, when we examine the facts as admitted by the respondent-complainant, as rightly concluded by the learned trial Judge, the respondent was not even aware of the date when substantial amount of Rs. 1,50,000/- was advanced by him to the appellant, that he was not sure as to who wrote the cheque, that he was not even aware when exactly and where exactly the transaction took place for which the cheque came to be issued by the appellant. Apart from the said serious lacuna in the evidence of the complainant, he further admitted as PW1 by stating once in the course of the cross-examination that the cheque was in the handwriting of the accused and the very next moment taking a diametrically opposite stand that it is not in the handwriting of the accused and that it was written by the complainant himself, by further reiterating that the amount in words was written by him. We find that the various defects in the evidence of respondent, as noted by the trial Court, which we have set out in paragraph 7 of the judgement, were simply brushed aside by the High Court without assigning any valid reason. Such a serious lacuna in the evidence of the complainant, which strikes at the root of a complaint under section 138, having been noted by the learned trial Judge, which factor was failed to be examined by the High Court while reversing the Judgment of the trial Court, in our considered opinion would vitiate the ultimate conclusion reached by it. In effect, the conclusion of the Ld. Judge of the High Court would amount to a perverse one and, therefore, the said judgment of the High Court cannot be sustained."
32. Complainant in the present case too has neither in his complaint nor in evidence by way of an affidavit has specified the date, time and place of handling over the cheque to him by the accused person. Circumstances have not been explained by the complainant regarding the issuance of cheque or handling ovr the cheque to him.
1433. The effect of the presumption has been explained in a catena of judgments, including the judgments by the Hon'ble Supreme Court passed in Rangappa v. Sri Mohan (2010) 11 SCC 441 and Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal 1999 (3) SCC 35.
"It has been held time and again that the said presumption is a rebuttable one and its only effect is to shift the initial burden of proof on the accused. It is also well settled that in order to rebut the presumption and shift back the burden of proof on the complainant, the accused is only required to raise a probable defence and he cannot be expected to discharge an unduly high standard of proof i.e. standard of proof for rebutting the presumption raised under section 139 NI Act is preponderance of probabilities. It is also well settled that the accused can rebut the said presumption either directly or by bringing on record preponderance of probabilities by reference to the circumstances upon which he relies. The accused, for this purpose, is also entitled under law to rely upon all the evidence led in the case including that of the complainant as well. It is trite law that section 138 NI Act is an example of reverse onus clause and the accused cannot be expected to disprove the existence of legally recoverable debt or liability by direct evidence also, it's conceivable that in some cases, the accused may not need to adduce evidence of his or her own. However, at the same time it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the onus back to the complainant."
34. In the case of Basalingappa v. Mudibasappa (2019) 5 SCC 418, it was held that "The presumption u/s 139 of NI Act is a rebuttable presumption and onus is upon the accused to raise a probable defence. To rebutt the presumtion, it is open for the accused to rely on evidence led by him or he can also rely upon the materials submitted by the complainant in order to raise a probable defence".
35. Perusal of the cheque Ex. CW1/1 reveals that the same was issued by Ravinder Kumar Gupta from his 15 joint account with Saroj Gupta. Complainant has testified in his cross examination that the liability of the AM Cool Engineers Pvt. Ltd and not of Ravinder Kumar Gupta. Perusal of the cheque reveals that it was not issued by AM Cool Engineers Pvt. Ltd. Hence, section 141 of NI Act is not applicable to the fact of the present case. As per Section 141 (1) of the Act if any person committing an offence under this section is a company every person who at the time offence was committed, was in charge of and responsible to, the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded u/s 138 of the NI Act. Offender in section 138 of the NI Act is the drawer of the cheque. The same was held in the case of Himanshu Vs. B. Shivamurthy AIR 2019 SC 3052. Further, it was held that in absence of company being arraigned as an accused complaint against the director is not maintainable. The drawer is the person who makes the cheque as per Section 7 of the NI Act. It is only the drawer of the cheque who can be held responsible for an offence u/s 138 of the NI Act. Now, in the present case, drawer of the cheque is not AM Cool Engineers Pvt. Ltd. Hence, AM Cool Engineers Pvt. Ltd cannot be held liable for the offence u/s 138 of the NI Act. Since the company has not committed an offence under Section 138 of NI Act occasion to attract section 141 of the NI Act does not arise.
36. Complainant testified in his cross examination that he received salary from AM Cool Engineers Pvt. Ltd by way of cash and then he again said that he received salary by way of RTGS. Complainant in his evidence by way of an affidavit has stated that he was fired from service on 20.09.2018. However, in his cross- examination he testified that he opened his own firm in the name of DP Enterprises on 01.04.2018. The above two statements does not go in consonance with each other. However, during the course of cross examination, CW1 was confronted with Ex. CW1/D2 (colly) legal notice issued to AM Cool Engineers Pvt. Ltd on behalf of the complainant. He admitted that Ex. CW1/D2.i.e legal notice was sent to him by AM Cool Engineers Pvt. Ltd. through Samm Jurist Law Firm. Perusal of Ex. CW1/D2 reveals that it was stated that employee benefit including gratuity were paid by AM Cool Engineers to the complainant but complainant has himself testified in the cross examination dated 23.01.2023 that gratuity was not payable to him. Further, it was stated in the above-mentioned notice that AM Cool Engineers Pvt. Ltd opened a company in the name of DP Enterprises and made the complainant the owner of the same and accused used to purchase goods on credit through the complainant. However, in his cross-examination he testified that he opened his own firm in the name of DP Enterprises on 01.04.2018. The above two statements are mutually inconsistent with each other. Legal notice Ex. CW1/D2 was not even placed by the complainant on record. The present case of the complainant is based on a story distinct from Ex. CW1/D2 (colly).
37. This certainty makes complainant an unreliable witness as time and again, he had made contradictory statements. This goes well with the innocence of accused. The accused had a consistent stand. Accused stated in his defence in the notice u/s 251 Cr.P.C that complainant used to work with his as an employee. Till 16 31.03.2018, he worked with him and accused had paid all the wages which were due. The fact that complainant has also admitted in his cross-examination that wages were paid till 31.03.2018 goes in line with the version of accused. Accused has further stated in his written statement u/s 313(5) Cr.P.C that he has no liability as complainant has himself admitted in the cross-examination. The complainant also concealed this fact in the complaint that he received a sum of Rs.17,000/- and Rs. 25,000/- from the accused and in his cross-examination, he firstly denied the factum of receiving any amount from the accused and then he admitted the factum of receiving the amount. Several doubts and glaring inconsistencies arose in version of the complainant.
38. It was held in the case of Bihari Nath Goswami V. Shiv Kumar (2004) 9 SCC 186, the Hon'ble Supreme Court examined the issue and held:
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
39. At this juncture it's also relevant to note a Judgment by the Hon'ble Supreme Court of India in the matter of M/s Kumar Exports v. M/s Sharma Carpets (2009) 2 SCC 513 wherein, it was held that "The accused in a trial under Section 138 of the NI 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 17 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 case, act upon the plea that they did not exist."
40. As it has already been discussed, the burden of proof on the accused is only to raise a probable defence by showing a preponderance of probabilities. In the present case, the accused has successfully discharged the burden of proof placed upon him by adducing evidence and confronting the complainant with the same rendering his version as feeble. Also, by showing lacunae and inconsistencies in the complainant's case by means of cross examination and has discharged the burden of proof placed upon him. Accordingly, the presumption raised under Section 118 and Section 139 of NI Act in favour of the complainant stands rebutted. Complainant has miserably failed to prove the existence of a legally enforceable debt or liability thereby, failing to satisfy an essential ingredient for constituting an offence under section 138 NI Act.
41. Therefore, upon due circumspection of the totality of foregoing facts and circumstances and on the basis of material available on record also in the light of the legal position governing the field, this Court is of the considered opinion that the accused has been able to cast plausible suspicions on the touchstone of preponderance of probabilities thereby, impeaching the credibility of version put forth by the Complainant vide his complaint. That said, this Court hereby, acquits the accused for the alleged commission of offence
42. Consequently, accused person is acquitted of the crime charged.
43. Bail bond under section 437A of the Code furnished. Perused and accepted for a period of six months from today.
44. File be consigned to record room after due compliance.
45. Announced in open Court on 14.08.2023.
(Isra Zaidi) MM/Mahila Court-02 /SHD/KKD/Delhi 14.08.2023 18