Delhi District Court
Deepak Aggarwal vs Guru Kirpa Trading Company on 22 July, 2024
IN THE COURT OF JMIC (NI04), WEST, TIS HAZARI COURTS, NEW DELHI
(Presided Over by SH. KARANBIR SINGH)
Case No. Ct. Cases/7550/2018
Unique Case ID No. DLWT020013582018
In the matter of :
Deepak Aggarwal ...Complainant
VS.
Guru Kirpa Trading Company (Proprietor Sh. Rahul Chabbra)
... Accused
Name of Complainant : Deepak Aggarwal
Guru Kirpa Trading Company
Name of Accused : (Proprietor Sh. Rahul Chabbra)
Section 138, Negotiable Instruments Act,
Offence complained of or proved :
1881.
Plea of Accused : Not Guilty
Date of Filing : 25.01.2018.
Date of Reserving Order : 05.06.2024.
Date of Pronouncement : 22.07.2024.
Final Order : Convicted.
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date: 1/11
2024.07.22
15:26:28
+0530
Argued by: Sh. Rishabh Gulati, Ld. Counsel for the complainant.
Sh. Siddhant Jain, Ld. Counsel for the accused.
A. FACTUAL MATRIX
1. The present complaint has been filed under section 138 of the Negotiable Instruments
Act, 1881 (hereinafter "NI Act") by Sh. Deepak Aggarwal (hereinafter "complainant")
against Guru Kirpa Trading Company (Proprietor Sh. Rahul Chabbra) (hereinafter
"accused").
2. The substance of allegations, as contained in the complaint, are as follows:
1. That the complainant is running business under the name and style of M/s Goyal
Agency. The complainant is proprietor thereof and the complainant is stockiest/ wholesaler
and distributor of products M/s Parie Agro Complainant being stockiest/ wholesaler are
supplying the goods of M/s Parie Agro products. The accused no. 1 is doing business under
name and style of M/s Guru Kirpa Trading Company.
2. That the accused no. 1 approached the complainant and placed orders to supply
cartons containing Tetra packs of Frooti and Appy at whole sale rates. The order were orally
placed the complainant. The complainant had supplied the cartons containing Tetra packs of
Grooti and Appy vide invoice no. 1043, 1211 and 1398 dt. 02.12.201, 06.12.2017 and
08.12.2017 respectively. The accused requested the complainant to supply the supply the
goods and requested to handed over and issue cheques towards the supply of goods. The
complainant acceded the request of the accused and accepted containing Tetra Packs of
Frooti and Appy were supplied to the accused.
3. That in lieu to the goods supplied as started above, the accused persons in order to
discharge his liability issued cheque bearing no. 044462 dt. 02.12.2017 for the sum of Rs.
31700 towards the invoice no. 1043 dt. 02.12.2017 another cheque bearing no. 04446 dt.
07.12.2017 for the sum of Rs. 47550 towards the invoice no. 1211 dt. 06.12.17 and the
cheque bearing no. 044471 dt. 08.12.17 and the cheque bearing no. towards the invoice no.
1398 dt. 08.12.17. All the cheques were drawn on Allahabad Bank, CBlock, Main Road,
Vikas puri Delhi in favour of the complainant. The said cheques were issued and handed over
by the accused no. 2 with the assurance that the same will be encashed when presented. The
cheque were signed and handed over by the accused no. 1.
4. That on the assurances of the accused no. 2 to present the cheques, complainant have
presented the above mentioned cheques for encashment with their bank I.e, Axis Bank having
branch at Guru Harishan Nagar Paschim Vihar, Delhi and the same was dishonoured due to
the reason and the same was dishonoured due to the reason and "exceeds arrangement" vide
cheque return advice dt. 05.12.2017, 08.12.2017 and 12.12.2017 respectively.
5. That it seems the aforesaid cheques have been issued with mala fide intentions and
further simply to defraud the complainant as the accused persons knowingly and willfully
issued the false cheques in favour of the complainant which will not be honoured when
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.07.22
2/11
15:26:38
+0530
presented for encashment. It seems that the accused persons had no sufficient funds in his
bank account. It is made clear that the accused persons is unable to pay off the debts.
6. That inspite of the assurances given by the accused persons to the complainant that
they will make sufficient arrangements of the funds of the clearance of the cheques, the
cheques has been returned unencashed due to malafides of the accused persons.
7. That the accused person has deliberately knowingly intentionally and malfidely with
the intention to cheat the complainant issued the false cheque. The accused persons was fully
aware with the fact that on presentation of the cheques it would never be honoured.
8. That the accused persons was served with a legal notice dt. 20.12.2017 through the
complainant's advocate by speed post. The complainant by means of that notice has called
upon the accused to make the payment of the cheques. The accused was further informed that
in the event of failure, the complainant would take necessary legal action at the risk
responsibility and costs of the accused persons.
9. That inspite of the notice having been issued and served upon the accused persons
they has failed and neglected to pay the cheques amount.
B. PRESUMMONING EVIDENCE & NOTICE
3. Presummoning evidence was led by the complainant and on finding a prima facie case,
the accused was summoned to face trial vide order dated 05.02.2018. Notice against the
accused was framed on 13.08.2018. He took the following plea of defence at the stage of
framing of notice:
I am proprietor of accused no. 1 firm. I started work of wholesale business. I have
already made payment of goods supplied by the complainant. No goods have been supplied
under invoice no. 1211 and 1043. I have already made payment under invoice no. 1398 and
only an amount of Rs. 2000/ is due under this invoice. The payment was made in cash.
Complainant has misused the cheque in question.
He admitted the signatures on the cheque in question and also admitted the receipt of legal
demand notice at this stage.
C. COMPLAINANT'S EVIDENCE
4. During the trial, the complainant has led the following oral and documentary evidence
against the accused to prove its case beyond reasonable doubt:
Oral & Documentary Evidence
Ex.CW1/1 GST registration form of complainant
Ex. CW1/2 (OSR) Aadhar Card of complainant
Ex. CW1/3 to Ex. CW1/5 Cheques in question
Ex. CW1/6 Legal demand notice dt. 20.12.2017
Digitally
signed by
KARANBIR
3/11
KARANBIR SINGH
SINGH Date:
2024.07.22
15:26:45
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Ex. CW1/7 to Ex. CW1/18 Postal receipt, courier receipts and tracking report.
Ex. CW1/19 to Ex. CW1/23 Speed post envelopes of legal demand notice
Ex. CW1/24 Certificate u/s 65B IEA
Ex. CW1/25 to Ex. CW1/27 Cheque return memo dt. 05.12.2017, 08.12.2017 and
12.12.2017
Ex. CW1/28 to Ex. CW1/30 (OSR) Invoices
Ex. CW1/X1 (colly) (2 pages) GST R1 form alongwith certificate u/s 65B IEA
(exhibited during crossexamination of complainant)
Ex. CW1/A Evidence by way of affidavit
CW1 Testimony of complainant
D. STATEMENT OF ACCUSED
6. Thereafter, before the start of defence evidence, in order to allow the accused to
personally explain the circumstances appearing in evidence against him, his statement under
Section 313 CrPC was recorded without oath. In reply, the accused denied all the allegations
against him. The accused submitted the following in his statement under section 313 CrPC:
I know Mr. Deepak Aggarwal, proprietor of M/s Goel Agency. I had business
relations with the complainant. I do not admit Ex. CW1/28 (OSR), Ex.
CW1/29 (OSR) and Ex. CW1/30 (OSR) as I never received any material from
the complainant. I have never placed any oral order through telephone. The
salesman namely Abhishek of complainant used to visit and the order was
placed through him.
The cheques belong to my account and bear my signatures. The other
particulars have not been filled by me.
The complainant himself had told me about the return of the cheques after few
days.
I did not receive legal notice. However, the address mentioned of the shop on
the legal notice was the correct address in the year 2017. The residential
address mentioned on the legal notice is mine.
The cheques were given as security deposit. I have never received any
material from the complainant. The complainant has misused the cheque in
question. Initially, the complainant had supplied me some stock of Frooty
which was expired. The complainant agreed to return the said goods and
supply the same again. The cheques in question were given before the said
return. The complainant did not supply the material again but presented the
cheques.
Digitally
signed by
KARANBIR 4/11
KARANBIR SINGH
SINGH Date:
2024.07.22
15:26:51
+0530
7. The accused did not lead his DE and thereafter, the matter was listed for final
arguments. After listening to final arguments from both sides, the matter was reserved for
pronouncement. I have heard the learned counsels on both the sides and have given my
thoughtful consideration to the material appearing on record.
E. INGREDIENTS OF OFFENCE UNDER SECTION 138 OF NI ACT
8. Before dwelling into the facts of the present case, it would be pertinent to discuss the
legal standards required to be met by both sides. In order to establish the offence under
Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence,
as highlighted below:
• The cheque was drawn by a person on an account maintained by him/her for payment
of money and the same is presented for payment within a period of 3 months from the date on
which it is drawn or within the period of its validity;
• The cheque was drawn by the drawer for discharge of any legally enforceable debt or
other liability;
• The cheque was returned unpaid by the bank due to either insufficiency of funds in
the account to honour the cheque or that it exceeds the amount arranged to be paid from that
account on an agreement made with that bank;
• A demand of the said amount has been made by the payee or holder in due course of
the cheque by a notice in writing given to the drawer within thirty days of the receipt of
information of the dishonour of cheque from the bank.
• The drawer fails to make payment of the said amount of money within fifteen days
from the date of receipt of notice.
9. In addition to the above, the conditions stipulated under Section 142 NI Act have to
be fulfilled.
10. ANALYSIS OF VARIOUS INGREDIENTS OF THE OFFENCE
• The complainant has proved the original cheques, Ex.CW1/3 to Ex. CW1/5, which the
accused has not disputed as being drawn on the account of the accused. He has also admitted
his signatures on the cheque.
• The cheque in question was returned unpaid vide Ex. CW1/25 to Ex. CW1/27. The
same has also been proved by the complainant. As per Section 146 of NI Act, Bank's slip is
prima facie evidence of proof of dishonor. The accused has not disputed the same.
• The complainant has proved on record legal notice Ex. CW1/6. The same has been
admitted by the accused at the stage of framing of notice u/s 251 Cr.P.C.
• The fact that the payment was not made within 15 days of the receipt of the legal
notice is also not disputed. As such, on the basis of the above, the first, fourth and fifth
ingredient of the offence under Section 138 NI Act stands proved against the accused.
Digitally 5/11
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.07.22
15:26:55
+0530
11. The controversy in the present complaint case pertains to second ingredient.
PRESUMPTIONS UNDER NI ACT
12. As far as the proof of second ingredient is concerned, the complainant is required to
prove that the cheque in question was drawn by the drawer for discharging a legally
enforceable debt. As per the scheme of the NI Act, once the accused admits signature on the
cheque in question, certain presumptions are drawn, which result in shifting of onus on the
accused.
13. The combined effect of section 118(a) NI Act and section 139 of the NI Act is that a
presumption exists that the cheque was drawn for consideration and given by the accused for
the discharge of debt or other liability. In Hiten P. Dalal v. Bratindranath Banerjee (2001)
6 SCC 16), their Lordships of Hon'ble Supreme Court observed as follows:
Because both Sections 138 and 139 require that the Court "shall presume" the liability of the
drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of
Madras vs. A. Vaidyanatha Iyer AR 1958 SC 61, it is obligatory on the Court to raise this
presumption in every case where the factual basis for the raising of the presumption had
been established. "It introduces an exception to the general rule as to the burden of proof in
criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a
presumption of law, as distinguished from a presumption of fact which describes provisions
by which the court "may presume" a certain state of affairs. Presumptions are rules of
evidence and do not conflict with the presumption of innocence, because by the latter all that
is meant is that the prosecution is obliged to prove the case against the accused beyond
reasonable doubt.
In this regard, the Hon'ble Apex Court, having analysed all the concerned provisions in
Basalingappa Vs. Mudibasappa, (2019) 5 SCC 418 : 2019 SCC OnLine SC 491 at page
432, came down to the following conclusion:
"25. We having noticed the ratio laid down by this Court in the above cases on Section
118(a) and 139, we now summarise the principles enumerated by this Court in the following
manner:
25.1. Once the execution of cheque is admitted Section 139 of theAct mandates a
presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the
accused to raise probable defence. The standard of proof for rebutting the presumption is
that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or
the 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.
6/11
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
2024.07.22
15:26:59
+0530
25.4. 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.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
Further, it has been held by the Hon'ble Apex Court in Rangappa v. Sri Mohan,
(2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes
the presumption of existence of a legally enforceable debt.
14. In order to discharge the aforesaid burden, it has been contended by learned counsel
for the accused that there are inherent inconsistencies in the version of the complainant, as
listed below, which lead to a probable defence in favour of the accused:
Contention I That the supply of goods and delivery of goods has not been proved by the
complainant.
15. Ld. Counsel for the accused has submitted that the complainant has not mentioned
anything about the delivery of goods in the complaint. It has been submitted that during the
crossexamination of complainant he submitted that he supplied the goods from his own van
and he also went in person to supply the goods. However, no documents have been produced
by him to show the delivery of goods. The aforesaid argument was rebutted by the Ld.
Counsel for the complainant on the ground that the accused has admitted the delivery with
respect to one invoice bearing no. 1398 Ex. CW1/28 (OSR) and it is his plea of defence that
he has not received the goods with respect to other two invoices. It was further submitted the
in the statement u/s 313 Cr.P.C., the accused took a somersault and he denied all the goods
and invoices. It was further submitted that the complainant has duly explained the delivery in
his crossexamination and as such the onus was on the accused to prove that the goods have
not been supplied.
16. During the crossexamination dt. 09.09.2022, the complainant deposed that the
accused placed a bulk order and that the complainant himself went at the office of accused to
verify the order and for supply of the same. He further deposed that he went with the delivery
van to supply the goods at the office of the accused. He further deposed that he does not
remember the registration no. and the name of owner of delivery van, however, he undertook
to cheque the details and submit the same on the NDOH. During crossexamination dt.
07.11.2022, he deposed that the delivery van from which he delivered the goods to the
accused bears the number DL4CAM 3259 and the same is registered on the name of his
father i.e. Umesh Chand Aggarwal. He further deposed that he sold the vehicle in the year
20192020. Suggestions were given to the complainant that no goods have been supplied to
the accused under the invoice no. 1211 and 1043 and that only a payment of Rs. 2000/ is due
under the invoice 1398. The suggestions were denied by the complainant. A further
suggestion was given to him on 14.09.23, that he has intentionally not brought on record the
details of delivery.
17. Thus, the defence of accused is that he has not received the goods only with respect to
two invoices i.e. Ex. CW1/29 and Ex. CW1/30 (OSR). He has not denied the delivery of
Digitally
signed by
KARANBIR 7/11
KARANBIR SINGH
SINGH Date:
2024.07.22
15:27:04
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goods qua the invoice Ex. CW1/28 (OSR). Rather, it is his case that a payment of only Rs.
2000/ is remaining to be left. Perusal of the invoices reveals that all the invoices have been
sent at the same address bearing same GST no. and bearing the same signatures at the column
receivers signature. There is nothing different in the invoices and hence, the Court has no
reason to believe that if the goods were delivered qua one invoice in the usual course of
business, the same could not have been delivered qua the remaining invoices. The Court
presumes existence of delivery by drawing the presumption u/s 114 IEA as if the goods have
been delivered in the usual course of business with respect to one invoice. The same can
safely be presumed to be delivered with respect to the remaining two invoices. Further, the
accused in his statement u/s 313 has denied all the goods received by him and the Court finds
itself in agreement with the Ld. Counsel for the complainant that the accused has changed his
defence and hence, an adverse inference has to be drawn against him. Accordingly, the
present contention stands decided in the favour of complainant against the accused.
Contention II That the invoices filed by the complainant have not been proved.
18. Ld. Counsel for the accused has submitted that the invoices filed by the complainant
are generated by him on his computer and that the same is not accompanied with certificate
u/s 65B IEA. It was submitted that the invoices have not been proved by the complainant in
accordance with law. The same was rebutted by the Ld. Counsel for the complainant on the
ground that the accused has already admitted one invoice. It was further submitted that the
invoices are signed by the complainant and as such the invoices do not need certificate u/s
65B IEA.
19. During the crossexamination of complainant on 07.11.2022, the complainant deposed
that the invoices have been generated in his office from his computer. While he deposed that
the invoices do not bear his signatures or the stamp of his firm, the record shows that the
invoices duly bear his signatures and the invoices have been exhibited in OSR form. Thus,
during the presummoning evidence, the original invoices were produced in the Court and
copy thereof was annexed on the record. Further, during the crossexamination, the
complainant was crossexamined on the aspect if he has filed the GST return. On 14.09.23,
the complainant placed on record the GST returns alongwith certificate u/s 65B IEA. It is
pertinent to note here that the date of invoice, invoice no. and the value of invoices is duly
mentioned in the GST return and as such the invoices stand proved by way of the GST return
Ex. CW1/X1 (colly). The said GST return is duly accompanied with certificate u/s 65B IEA.
It is pertinent to note here that accused has not crossexamined the complainant on the GST
return and in fact no suggestion has been given that the GST return is forged. Thus the
aforesaid GST return and its contents have gone unchallenged by the accused and are deemed
to be admitted.
20. The law is well settled that where the evidence of a witness is allowed to go
unchallenged with Regard to any particular point, it may safely be accepted as true. The said
position of Law was explained by the Hon'ble High Court of Delhi in Srichand and Shivan
Das v. State, 1985 SCC OnLine Del 210 : (1985) 28 DLT 360:
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date:
8/11
2024.07.22
15:27:10
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6. The principal submission made by the learned counsel for the PetitionerShivan Dass is
that there is no iota of evidence on record to Establish that Shivan Dass was owner of the
factory mentioned above And further that his son Sri Chand was conducting the business on
behalf Of Shivan Dass. . . However, on going through the evidence on record I Am not
persuaded to accept this contention, it is for the reason that Food Inspector Arun Kumar has
deposed in unequivocal terms that the Proprietor of the factory was Shivan Dass. This
statement of his was Allowed to go unchallenged and no question was put to him with regard
To the same during the course of crossexamination by the defence Counsel. Thus, there is no
reason to disbelieve Food inspectorArun Kumar on this aspect of the matter. The law is well
settled that where The evidence of a witness is allowed to go unchallenged with regard To
any particular point it may safely be accepted as true. So, the Contention of counsel for the
petitioner Shivan Dass that were ipse dixit Of Food Inspector Arun Kumar cannot be
accepted as gospel truth is Absolutely devoid of any merit. It was certainly open to the
defence to Elicit information from Arun Kumar with regard to the source of his Knowledge
on the basis of which he had made the above statement but Unfortunately for the petitioner
no such attempt was ever made. (emphasis added)
21. Based on above discussion, the court is of the view that the GST return can be safely
be accepted as true and hence, it stands proved that the said invoices were issued and the GST
return was filed on them. Further, the onus to prove that the invoices were bogus and
fabricated was on the accused which he has failed to discharge. Not only the complainant has
presumption in his favour but also he produced sufficient evidence by way of Ex. CW1/X1
(colly) which further fortifies the presumption. Hence, this argument of accused also stands
rejected as the invoices stand proved by way of GST return. In any case, the invoices bear the
signatures of complainant.
22. Further, Ld. Counsel for the accused also pointed out that there are contradictions in
the statement of complainant as in para no. 2 of complaint, it has been averred that the
accused approached the complainant whereas in his crossexamination he has deposed that
the agents of the Frooty company approached the accused and took the orders. Further,
another argument taken by the Ld. Counsel for the accused was the delivery man has not
been made as a witness or that the complainant has not brought his ledger. The Court is of the
view that the inconsistency with respect to who place the order or that when the order was
placed is a minor inconsistency and the same is not sufficient to rebut the presumption.
Secondly, the nonexamination of delivery boy is not fatal to the case of complainant as the
defence of accused is that he has already made the payment with respect to the goods
received qua one invoice and only Rs. 2000/ is remaining to be paid. Further, the accused
could have produced his own ledger to show that he has already made the payments as the
Digitally
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KARANBIR 9/11
KARANBIR SINGH
SINGH Date:
2024.07.22
15:27:15
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onus to rebut the presumption was on the accused. The accused has failed to do the same. He
has failed to raise a doubt in the mind of the Court that the invoices are forged.
23. In Kumar Exports v. Sharma Carpets,(2009) 2 SCC 513], the Hon'ble Apex
Court had held as follows:
"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 that by leading direct evidence because the existence of
negative evidence is entirely possible nor contemplated. At the same time it is clear that bare
denial of the passing of the consideration and existence of that, 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 presumption 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. 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."
CONCLUSION
24. In conclusion, I am of the view that accused has not been able to raise probable
defence in the present case.
25. Accordingly, in light of the scheme of the NI Act, a statutory presumption exists in
favour of the complainant. The statutory presumption cannot be rebutted in such a casual
manner. There must be something concrete on record to rebut the same.
26. Hence, in view of the discussion in the foregoing paragraphs, the inevitable
conclusion is that the accused has failed to rebut the onus put on him by virtue of the
presumptions enshrined in Section 118 and 139 of the NI Act. Therefore, the second
ingredient also stands proved against the accused.
27. To recapitulate the above discussion, the complainant has been successful in
establishing his case beyond reasonable doubt that the accused had issued the cheque in
question in discharge of his legally enforceable liability. The presumptions under Section 118
and Section 139 of NI Act were drawn against the accused. The accused has miserably failed
to rebut the said presumption by raising a probable defence.
28. Resultantly, the complaint of the complainant is allowed and the accused, Sh. Rahul
Chabbra is hereby convicted of the offence under Section 138 of the Negotiable Instruments
Act, 1881. Let the convict be heard separately on quantum of sentence.
Digitally
signed by
KARANBIR
KARANBIR SINGH
SINGH Date: 10/11
2024.07.22
15:27:21
+0530
29. A copy of this judgment be given free of cost to the convict.
30. This judgment bears 11 pages and each page bears my digital signatures.
Judgment be uploaded on the website forthwith.
Pronounced in open court.
Digitally signed
ORDER : Convicted. by KARANBIR KARANBIR SINGH Date: 22.07.24. SINGH Date: 2024.07.22 15:27:35 +0530 (SH. KARANBIR SINGH) JUDICIAL MAGISTRATE FIRST CLASS (NI ACT) - 04 West DELHI 11/11