Delhi District Court
Ms Amazon Distributors P Ltd vs Parveen on 18 December, 2024
IN THE COURT OF MS. POONAM SINGH
JUDICIAL FIRST CLASS MAGISTRATE -01 (NI ACT),
NEW DELHI DISTRICT, PHC, NEW DELHI
1. Complaint Case : 14644/2019
number DLND020252052019
2. Name & address of the : M/s Amazon Distributors (P)
complainant Ltd.
234, Patparganj Industrial
Area, Delhi. Through its
authorized representative.
3. Name and address : Parveen
of the accused S/o Sh. Rishi Prakash
R/o 94/1, 1st Floor, Than
Singh Nagar, Anand Parvat,
New Delhi-110005.
4. Offence complained : Section 138, Negotiable
Instruments Act, 1881.
5. Plea of the guilt : Pleaded not guilty
6. Final Order : Convicted
7. Date of institution : 17.10.2019
8. Date on which : 29.11.2024
reserved for judgment
9. Date of judgment : 18.12.2024
CC No.14644/19 Page 1 of 15
Digitally
signed by
POONAM
POONAM SINGH
SINGH Date:
2024.12.18
17:04:12
+0530
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Vide this judgment, this court shall dispose of the aforementioned complaint case filed by the complainant namely, M/s Amazon Distributors (P) Ltd. against the Accused Parveen in respect of the dishonour of one cheque bearing no.000034 dated 03.07.2019 for an amount of Rs. 34,131/- (Rs. Thirty Four Thousand One Hundred & Thirty one only) drawn on Kotak Mahindra Bank, 51/1, D.B. Gupta Road, Karol Bagh, New Delhi (hereinafter referred to as the "Cheque in question").
2. Pithily put, it is the case of the complainant company that the complainant is distributor of products of Kellogs, P&G. It is further case of the complainant that the accused was working with the complainant as Sales Executive from 06.10.2018 and it was his duty to get the orders from the customers, to get delivered the booked goods to customers, to collect the payment of delivered goods from the customers and to deposit the payment with the complainant.
3. It is further the case of the complainant that the accused used to book fake orders in the name of different customers in order to cheat the complainant and used to put forged stamp on the invoices of delivered goods in order to prove the delivery of goods to the customers. It is further alleged that the accused has cheated a sum of Rs. 22,24,019/- from the complainant in conspiracy with his accomplices and has admitted that he has cheated a sum of Rs. 23,64,091/- out of which he got recovered goods of Rs. 2,23,000/-.
CC No.14644/19 Page 2 of 15
Digitally
signed by
POONAM
POONAM SINGH
SINGH Date:
2024.12.18
17:04:16
+0530
4. It is further the case of the complainant that in discharge of his aforesaid debt and liability, the accused had issued the cheque in question for an amount of Rs. 34,131/- in favour of the complainant company and when the same was presented for encashment, it was returned dishonored with remarks "payment stopped by drawer" and no payment was made to the complainant company even after 15 days of service of legal demand notice upon the accused and hence the complainant company moved this court with the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act").
5. In the pre-summoning evidence, AR of complainant company i.e. CW-1 examined himself on affidavit being Ex. CW1/A and placed on record certain documents i.e. complaint being Ex.CW1/Y, certificate of incorporation being Ex.CW1/1 (OSR), minutes of meeting of board resolution being Ex.CW1/2, Copy of DL of AR being Ex.CW1/3 (OSR), Copy of appointment letter of the accused being Ex.CW1/4 (OSR) (Colly), Copy of admission letter being Ex.CW1/6, Original cheque in question being Ex.CW1/7, Bank return memo being Ex.CW1/8, Copy of police complaints being Mark A (Colly), Legal demand notice being Ex.CW1/10 (Colly), Postal along with courier receipts being Ex.CW1/11 (Colly) and Tracking report being Ex.CW1/12.
6. Upon prima facie consideration of the pre-summoning evidence, the accused was summoned vide order dated 01.10.2021.
7. Upon appearance of the accused, notice under Section 251 Cr.P.C. was served upon him on 23.01.2023 to which he CC No.14644/19 Page 3 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date: 2024.12.18 17:04:20 +0530 pleaded not guilty and claimed trial. At this stage, he admitted being the drawer of the cheque in question as well as his signatures therein. He stated that the cheque in question was issued as a security cheque in favour of the complainant company when he was appointed as Sales Executive of the complainant company. He further stated that he had duly complied with the task given by the complainant and given all the orders/ goods to the complainant company. He denied his liability towards the complainant company. He denied the receipt of legal demand notice but admitted his address mentioned therein. He further stated that the complainant company has kept his scooty for the purpose of security.
8. At this stage, admission and denial of documents under Section 294 Cr.P.C was conducted whereby the accused admitted the genuineness and correctness of the cheque in question and bank return memo. Accordingly, two witnesses were dropped from the list of witnesses.
9. After an oral application under Section 145 (2) NI Act moved on behalf of the accused was allowed, the AR of the complainant was re-called for his examination. He adopted his evidence at the post summoning stage. He was duly cross-examined by Ld. Counsel for the accused and discharged. Since no other witness was sought to be examined by the complainant company, complainant evidence was closed vide separate statement of the AR of complainant company dated 19.07.2024.
10.Thereafter, statement of accused under Section 313 read with Section 281 Cr.P.C was recorded whereby the entire CC No.14644/19 Page 4 of 15 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.12.18 17:04:25 +0530 incriminating evidence was put to him. At this stage, the accused primarily maintained his plea of defence raised at the stage of framing of notice under Section 251 Cr.P.C. The accused stated that he was appointed as Sales Executive of the complainant company and he admitted his appointment letter i.e. Ex.CW1/4. He denied the receipt of legal demand notice but admitted his address mentioned therein. He further stated that Ex.CW1/6 was written by him under coercion and pressure imposed by the complainant company.
11.Since the accused chose not to lead defence evidence, the matter was adjourned for advancement of final arguments.
12.Final arguments were heard and concluded on behalf of both the parties on 29.11.2024 and written submissions were also filed on behalf of the accused.
13.Rival submissions have been considered and record of the case has been carefully perused.
14.Defence of the accused is two-fold. Firstly; that he did not receive the legal demand notice. Secondly; that there is no legally enforceable debt or liability to the tune of the amount of the cheque in question in favour of the complainant and against the accused as on the date of its drawl or presentation.
15.Before delving into the facts of the present case, it is relevant to discuss the law applicable to the present proceedings. To bring home a liability under Section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, which are:
CC No.14644/19 Page 5 of 15Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:04:30 +0530 "(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.
(c) The said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
(d) The aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
(e) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand."
16.Once the other ingredients mentioned in the foregoing paragraph are established by the complainant, then as soon as the execution of cheque in question is admitted by the accused, a factual base is established to invoke the presumption of cheque having been issued in discharge, in whole or in part, of any debt or other liability by virtue of Section 118(a) read with Section 139 of NI Act. This is a reverse onus clause, which means that unless the contrary is proved, it shall be presumed that the cheques in question were drawn by the accused for a consideration and that the complainant had received it in discharge of a debt/ liability from the accused. In the case titled Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, it was held by Hon'ble Supreme Court of India that once the accused has admitted the signatures on the cheque in question, then the court is bound to raise presumption under Section 139 NI Act.
17. In the present case, in order to discharge his initial burden to prove the aforementioned ingredients, AR of the CC No.14644/19 Page 6 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:04:34 +0530 complainant relied upon the complaint, his own evidence affidavit i.e. Ex.CW1/A and placed on record several documents being Ex.CW1/1 to Ex.CW1/4 & Ex.CW1/6 to Ex.CW1/8, Ex.CW1/10 to Ex.CW1/12 and Mark A. Ld. Counsel for the complainant submitted that the accused has already admitted his signatures on the cheque in question and hence presumption of the cheque in question having been issued in discharge of debt or other liability arises in favour of the complainant in terms of Section 118(a) read with Section 139 of NI Act. He further argued that the accused has also admitted the genuineness and correctness of the bank return memo i.e. Ex.CW1/8 and cheque in question being Ex. CW1/7 and his address on the legal demand notice being Ex. CW1/10. He argued that the fact that the complainant company received no payment within 15 days of the service of the legal demand notice coupled with the admission of the accused, duly proves all the ingredients of the offence under Section 138 NI Act. He thus submitted that since all the ingredients laid down under Section 138 NI Act are fulfilled, the accused should be convicted.
DEFENCE OF NON-RECEIPT OF LEGAL DEMAND NOTICE
18.Accused has raised his first defence that he did not receive the legal demand notice and hence the fifth and sixth ingredients of the offence are not fulfilled. It is submitted on behalf of the accused that the legal demand notice was deliberately not served by the complainant.
19.With respect to this defence, it is noteworthy that the CC No.14644/19 Page 7 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:04:38 +0530 address of the accused as mentioned on the legal demand notice being Ex. CW-1/10(Colly) and original postal receipt being Ex. CW-1/11(colly) has been admitted by him and the genuineness and correctness of these documents is not disputed by him. Therefore, it emerges that the legal demand notice, being properly addressed and posted by the complainant, as proved by the original postal receipts and tracking reports thereof is presumed to have been delivered to the accused in terms of Section 114 of the Indian Evidence Act, 1872 and the accused has failed to rebut this presumption.
20.Further, it is an admitted fact that payment was not made by the accused within 15 days of the deemed receipt of the legal demand notice. It was held by the Hon'ble Supreme Court of India in the decision cited as C.C. Alavi Haji vs. Palapetty Muhammed & Anr. (2007) 6 SCC 555 that 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 NI Act, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act. Thus, the plea of the accused that the legal demand notice was never received by him is not tenable on this ground as well and is accordingly rejected.
21.Hence, in the case at hand, since the complainant has discharged his initial burden on the basis of the documents mentioned hereinbefore and the admissions of the accused, CC No.14644/19 Page 8 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:04:42 +0530 all the ingredients of the offence under Section 138 of the NI Act stand successfully established. Further, since the accused has admitted his signatures on the impugned cheque and the fact of issuance of the cheque from his account, thus, the presumptions under Sections 118(a) and 139 of the NI Act arise against him. The onus is now upon the accused to rebut the mandatory presumptions under the NI Act by raising a probable defence to show that the impugned cheque was not issued in discharge of a debt/ liability.
DEFENCES OF NO LEGALLY ENFORCEABLE DEBT/LIABILITY
22.In order to rebut the mandatory presumptions, the accused has raised the plea that the cheque in question was issued as a security cheque at the inception of business relationship between the parties with a promise that the cheque shall be returned to the accused by the complainant at the end of the business relationship. It is further the case of the accused that instead of returning the cheque in question, the complainant has misused the cheque by fabricating a false story against him and further that he owes no legally enforceable debt or liability towards the complainant to the tune of cheque amount.
23.Per contra, Ld. Counsel for the complainant company argued that merely labelling the cheque in question as security cheque cannot absolve the accused from his liability under Section 138 NI Act. It is submitted on behalf of the complainant that the accused has admitted the business relationship between the parties. Further it is the CC No.14644/19 Page 9 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:04:46 +0530 case of the complainant that the accused used to book fake orders in the name of different customers with the complainant in order to cheat the complainant under deep conspiracy with other co-employees. It is further the case of the complainant that the accused with other co-employees of the complainant used to get delivery of booked goods at the accused godown etc. instead of customers shop and in order to show that the goods are delivered on credit, accused used to put forged stamp on the invoices of delivered goods in order to prove the delivery of goods to the customers. Further the accused used to collect fake stamped invoices under the garb of collection of credit amount from the customers, and used to hand over his own personal cheques with fake stamp of customers on the back side of the cheque to the complainant in order to show that the cheques are given by the customers. It is further argued on behalf of the complainant that the accused has also admitted his guilt in his own handwriting vide an admission letter dated 07.07.2019 which is Ex. CW1/6. Thus, it is the case of the complainant that the cheque in question was issued by the accused to the complainant against goods taken from the complainant by the accused by raising fake orders in name of different customers.
24.Further it is the case of the complainant that the accused is merely labelling the cheque in question as a security cheque as there were several cheques that were issued by the accused to the complainant and there are 17 connected cases between the same parties pending consideration before this court itself and that the accused has failed to explain as to how several cheques almost 17 in number CC No.14644/19 Page 10 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:04:50 +0530 were issued as security by the accused to the complainant. It is further submitted on behalf of the complainant that the accused has not taken any action whatsoever against the complainant against alleged misuse of cheque in questions. Rather the complainant has placed on record the admission letter dated 07.07.2019 wherein the accused has admitted his guilt which is Ex. CW1/6 and the copy of police complaints filed by the complainant against the accused and other co-employees/co-conspirators which is Mark A (Colly).
25.Ld. Counsel for the complainant further argued that the presumption under Section 139 NI Act cannot be rebutted on a mere evasive denial but by leading cogent evidence which the accused failed to bring on record. He lastly submitted that the accused is trying to raise a frivolous and moonshine defence in order to evade his liability and the accused has clearly failed to rebut the mandatory presumptions that exist in favour of the complainant company and hence he should be convicted.
26.Upon a careful perusal of the record and on patiently hearing the parties at length, apropos the defence of the accused that the cheque in question was issued as a security cheque, it is pertinent to note that in the case in hand prima facie, the accused has failed to establish that the cheque in question was issued as a security cheque. Secondly, even if the fact that the cheque in question was issued for security purposes is successfully established by the accused and accepted by this court, the same alone does not probablise his defence. Reliance in this regard is placed by this court on the judgments of Hon'ble Supreme Court of India in CC No.14644/19 Page 11 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:04:54 +0530 Sampelly Satyanarayana Rao Vs. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458, Sunil Todi Vs. State of Gujarat & Anr., 2021 SCC OnLine SC 1174, and Sripati Singh Vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 wherein the Hon'ble Apex Court has held that merely because a cheque has been given for security purposes does not mean that there is no legally enforceable debt or liability in favour of the complainant, however, it does mean that the court has to see whether there exists a legally enforceable debt or liability as on the date mentioned on the cheque or whether a legally enforceable debt or liability has arisen at the time of presentation of the cheque.
27.Hence the moot question before this court is whether there was a legally enforceable debt or liability equivalent to the amount of the cheque in question in favour of the complainant company and against the accused as on the date of its drawl or presentation.
28.Further the accused has not proved anything to show that the cheque in question was given as a security cheque and has been misused by the complainant. The accused has neither entered the witness box nor led any defence evidence to establish his defence. In written arguments filed on behalf of the accused, the counsel for accused has raised a new version by stating that the complainant at the time of appointment of the accused in the complainant company opened a salary account of the accused. Subsequently, it is argued by the counsel for accused that the complainant also opened five bank accounts- four in the name of the accused and one in the name of wife of the accused. Further it is CC No.14644/19 Page 12 of 15 POONAM SINGH Digitally signed by POONAM SINGH Date: 2024.12.18 17:04:59 +0530 argued that complainant also got issued cheque books on these accounts and got them signed by the accused. However it is again pertinent to mention that the accused has again failed to lead any evidence to prove the aforementioned version and only bald assertions have been made in the written arguments. The accused has neither chosen to lead evidence nor has put any question to the AR of the complainant in his entire cross-examination to establish that the cheque in question has been misused by the complainant against the accused.
29.As regards the rebuttal of mandatory presumptions, it is a settled law that the presumption under Section 139 of the NI Act cannot be rebutted upon a mere denial but only by leading cogent evidence. Same was held by the Hon'ble Supreme Court of India in the decision cited as K.N. Beena Vs. Muniyappan and Another; (2001) 8 SCC 458. Further, the presumptions may be rebutted by the accused either by leading direct evidence and in exceptional cases, from the case set out by the complainant himself i.e. from the averments in his complaint, in the statutory notice and even the evidence adduced by the complainant during the trial. The burden of proof is to be discharged by the accused on a scale of 'preponderance of probabilities'. Same was held by the Hon'ble Supreme Court in the decision cited as M/s Kumar Exports Vs. M/s Sharma Carpets; 2009 AIR (SC) 1518. It is also a settled law that the statements made by the accused in reply to notice under Section 251 Cr.P.C. or in his examination under Section 281 read with Section 313 Cr.P.C. are not on oath and hence are not substantive pieces of evidence. At best, they may be an explanation of the CC No.14644/19 Page 13 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:05:03 +0530 incriminating circumstances against the accused but are devoid of any presumption as to their truthfulness. Support is drawn from the decision of the Hon'ble High Court of Delhi cited as V.S. Yadav Vs. Reena; 172 (2010) DLT 561.
30.The accused has failed to support his plea of defence with cogent evidences and his plea are mere surmises and conjectures. There is nothing placed on record by the accused to show as to how several cheques almost 17 in number were given as security cheques to the complainant. Further there is nothing proved by accused to rebut that the alleged cheating/fraud was not committed by the accused. The accused has also failed to examine persons mentioned by the complainant as co-conspirators in order to prove his case. The accused has also not put on record anything to show that he has complaint about the alleged misuse of the cheque in questions by the complainant. With regard to the admission letter which is EX CW1/5, the accused has only made a vague assertion that it was signed by him under coercion and undue pressure of the complainant but he has failed to lead any cogent evidence as to why he remained silent and not made any complaint after such conduct of the complainant.
31.The entire defence of the accused is nothing but a set of bald, vague and self-contradictory assertions put together which are unsubstantiated by any cogent or reliable evidence. His oral assertions stand rebutted by documentary evidence brought forth on behalf of the complainant. Thus, there is nothing available on record for the court to believe that the defence plea disclosed by the accused in his reply to the notice under Section 251 Cr.P.C CC No.14644/19 Page 14 of 15 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.12.18 17:05:15 +0530 or in his statement under Section 313 read with Section 281 Cr.P.C is plausible.
32.Consequently, this court has come to an irresistible conclusion that the accused has failed to rebut the mandatory presumptions as per law and tilt the scales in his favour, even on a scale of preponderance of probabilities, while the complainant has clearly succeeded in proving his case beyond reasonable doubt.
FINAL ORDER
33.In view of the aforesaid discussion, this court finds the accused Parveen S/o Sh. Rishi Prakash guilty of the offence under Section 138 Negotiable Instruments Act, 1881 and convicts him accordingly.
This judgment contains 15 pages and each page has been signed by the Presiding Officer.
Digitally signed by POONAMPOONAM SINGH Date:
SINGH 2024.12.18 17:05:08 +0530 Announced in open (Poonam Singh) Court on 18.12.2024 JMFC(NI Act)-01/PHC/ND CC No.14644/19 Page 15 of 15