Delhi District Court
Same Was Held In C.C. Alavi Haji vs . Palapetty Muhammed And on 30 March, 2012
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No. 378/1
M/s Continental Conductors Pvt. Ltd.
Through its Special Power of Attorney
Sh. Laxman Sharma,
S/o late Sh. Babu Ram Sharma
R/o DDA Flat No. 28, RPS, Mansarover Park,
Shahadra, Delhi. ......Complainant
Versus
1. Smt. Uma Gupta,
W/o of late Sh. Yogesh Gupta,
Authorized Signatory/ Director of M/s Yog System Pvt. Ltd., R/o
4A, Ram Chander Lane, Shankracharya Marg,
Civil Lines, Delhi-54.
2. M/s Yog System Pvt. Ltd.,
through its Director Sh. Parakh Gupta,
S/o late Sh. Yogesh Gupta, 632, Village Burari,
Delhi.
.........Accused persons
CC No. 378/1 1/16
Date of Institution : 09.07.2004.
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 26.03.2012
Date of Decision : 30.03.2012.
Final Order : Both accused
persons are
convicted/ held
guilty.
Judgment:
Vide this judgment, I shall dispose of the present complaint filed
u/s 138 N.I. Act. Before going further, it is necessary to dwell upon the
brief facts of the case.
Brief Facts:
1. Complainant company has filed the present complaint through its SPA Sh. Laxman Sharma. It is alleged by the complainant in his complaint that in the month of June, 2003 Copper Wire weighting 2848.750 Kg. was supplied to the accused vide bill no. 22 dt. 13.06.03 amounting Rs. 4,30,556/-. It is further alleged that in view of clearing the abovementioned amount accused handed over four posted dated cheques to the complainant out of which two cheques bearing nos. 056547 & 056548 both dt. 19.01.04 amounting Rs. 1,07,639/- each Ex.CW-1/4 and Ex.CW-1/5 Third cheque bearing no. 056544 dt. 16.014.04 amounting Rs. 1,07,639/- Ex.CW-1/3 and fourth cheque bearing no. 082351 amounting Rs. 1,07,639/- dt. 03.05.04 Ex.CW-1/6 CC No. 378/1 2/16 all drawn on Canara Bank, MCOCBJ Fountain, Delhi.
2. It is further alleged that out of the said cheques first three cheques when presented with the banker by the complainant returned back unpaid with the remarks "stopped payment" and the fourth cheque bearing no. 082351 when presented returned back unpaid with the remarks "Funds Insufficient" vide returning memo dt. 03.05.2004 Ex.CW-1/7. Thereafter, complainant got issued a legal notice dt. 24.05.04 to the accused persons Ex.CW1/9 vide registered AD as well as UPC demanding the payment of the aforesaid cheques amount. It is further alleged that despite service of the notice accused persons failed to make the payment within statutory period. Hence, the present complaint is filed.
3. Complainant filed its pre-summoning evidence. Considering the same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused persons were summoned u/s 138 NI Act. On their appearance, the accused persons were granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr.P.C stating substance of accusation was served upon the accused persons on 08.03.06 to which they pleaded not guilty and claimed trial.
Complainant Evidence:
4. In order to prove its case complainant company stepped into the witness box through its Director Satish Singhal as CW-2 by tendering its evidence by way of an affidavit Ex.C-2. In his affidavit, CW-2 has CC No. 378/1 3/16 reiterated the same facts as that mentioned in the complaint.
5. Complainant also got examined one witness i.e. CW-1, the Manager from ING Vyasya Bank, Tandon Chowk, Delhi who is just a formal witness who has prove the dishonourment of cheques. Nothing contradictory has come out in his cross-examination.
6. Complainant also got examined one more witness CW-3 Sh. Jai Pal Singh Official from Trade and Tax Department, Delhi. The witness filed the requisite account of declaration form Ex. CW-3/A and also the order of issue a form Ex. CW-3/B. He also filed true copy of application for issuance of form by the accused persons which is Ex. CW-3/C. He also acknowledged the ST 35 form Ex. CW-1/C have been issued by the department to the accused Statement of accused No. 1 u/s 313 Cr.P.C r/w 281 Cr.P.C.
7. Accused no. 1 stated in her statement that she did not have any knowledge whether the copper wire was supplied by the complainant in the month of June, 2003 since she does not look after the work of the company and is merely authorized signatory of the accused company. Accused admitted issuance of cheques in question to the complainant without putting dates on the same. Accused stated that the cheques in question might have issued in advance. Accused further stated that she has no idea whether legal notice was received by her or not. Accused further admitted that she is Director of the company. Also admitted that payment of the cheques in question has not been made to the CC No. 378/1 4/16 complainant and have further requested the complainant that she shall be making the payment against the aforesaid dishonourment of cheques and she want to lead defence evidence.
Statement of accused no.2 u/s 313 Cr.P.C r/w 281 Cr.P.C.
It is submitted by accused no. 2 that he has not received any copper wire vide bill no. 22 dt. 13.06.03 from the complainant company and the amount claimed thereof is not due against him. Accused admitted issuance of cheques in question in favour of the complainant after filling of amount but denied filling of date in it. Accused further stated that issuance of cheques in question were issued against the purchase order of specified quantity in the month of August to October, 2003. Accused further stated that he got his account converted from current account to over draft account in December, 2003 so the cheques in question became invalid but the complainant did not return the same stating that the same are not available with him. So the payment of these cheques were stopped. Accused admitted issuance of fresh cheque i.e. Ex. CW-1/6 in favour of the complainant out of new account which was completely blank except the signatures as the amount is to be decided as per the quantity to be supplied. Accused further stated that he might have received legal notice. He wish to lead defence evidence.
Defence Evidence:
8. Accused no. 2 in order to prove its defence stepped into witness CC No. 378/1 5/16 box as DW-1 by tendering evidence by way of affidavit Ex. DW-1/A after taking the permission of this Court under Section 315 Cr.PC. Accused deposed in his affidavit that his company used to purchase copper wire from the complainant. It is further deposed that computerized purchase register, balance sheet & ledger account are Ex. DW-1/1 to DW-1/3 (colly.) which are regularly maintained by the accused company. It is further deposed that accused has not received any material of copper wire weighting 2848.750 Kg. in the month of June, 2003 from the complainant company, neither accused placed any order against the same. It is further deposed that the material is always supplied against the order and no such order is placed by accused against the bill raised by the complainant. Accused further deposed that in the usual practice of trade blank cheques are used to be issued to the supplying in advance and thereafter the material is to be supplied and as per the same practice I issued four advance cheques to the complainant company which are cheques in question. Purchase order which is Ex. DW-1/4 as the material is to be supplied in four equal lots but no material was to be supplied by the complainant company. It is further deposed that account of the accused company was converted from current account to over drafting account and the complainant company asked to return the 4 cheques as the said account was no longer in existence but the director of the complainant company did not return the same on the pretext that the same have been misplaced and assured returning of the same as and when found by them. It is further deposed that the payment of the said cheques was stopped by the accused. Accused denied the liability as the material was never supplied by the complainant against the cheques.
CC No. 378/1 6/16Reasons for Decision:
9. The signatures on the cheques and issuance of the same to the complainant are admitted by the accused persons, therefore, the execution of the cheques stands duly proved. Once, the execution of cheques stands duly proved. The presumptions of law u/s 118 & 139 of N.I. Act come in favour of the complainant and the initial burden of proof shifts upon the accused persons. Let us see whether the accused persons have been able to rebut the presumptions of law by adducing evidence on record or not.
10. Ld. counsel for accused persons raised a contention that no legal notice was served by the complainant to the accused persons. Hence, no cause of action arises against the accused persons u/s 138 N.I. Act. On the other hand, ld. counsel for complainant argued that accused persons have been duly served upon with the legal demand notice through registered post as well as UPC.
Accused persons have stated in their statement of accused u/s 313 Cr.P.C. r/w 281 Cr.P.C. that legal notice sent by the complainant might have been received by them that means there is no specific denial. Moreover, the addresses mentioned on the postal receipt Ex. CW-1/10, Ex. CW-1/11, Ex. CW-1/12, are not disputed by the accused persons. They have appeared before this court after service of summons on the same addresses. Hence, the presumption of 27 of General Clauses Act can be drawn in favour of complainant as the same was held in C.C. Alavi Haji Vs. Palapetty Muhammed and another (2007) 6 SC 555 passed by Hon'ble Supreme Court of India CC No. 378/1 7/16 that the accused persons deemed to have been duly served. Hence, the plea taken by the accused persons stands rebutted.
11. Ld. counsel for accused persons has raised another contention that the special power of attorney of the complainant Mr. Laxman Sharma has never stepped into the witness box as complainant witness whereas the Director of the company Sh. Satish Singhal who has not been authorized by the company nor any resolution has been passed in his favour got himself examined as complainant witness so in absence of any valid authority of the Director Satish Singhal, the testimony given by him cannot be read in evidence. Hence, without any evidence the complaint is not maintainable and as such liable to be dismissed.
On the other hand, ld. counsel for complainant argued that there is no bar on the number of witnesses to be examined by the complainant to prove his case. It is further argued that although Mr. Laxman Sharma has been specifically authorized to file and prosecute the present complaint but the Director of the company have complete knowledge of facts and transactions pertaining to the present case so he cannot be barred from stepping into the witness box and giving his evidence. Ld. counsel of complainant while supporting his argument relied upon a judgment passed by Hon'ble Supreme Court of India in a case titled as Union of India Vs. Naresh Kumar and others, AIR 1997 SC 3.
It is a well settled law that a juristic person like company can file and prosecute the case by appointing its authorized representative by executing special power of attorney in his favour. The contention raised CC No. 378/1 8/16 by the ld. counsel for accused is only that the Director of the company in the absence of any resolution cannot step into the witness box and depose before the court. The director of the company is always aware about the transactions carried by the company. Hence, having full knowledge of the facts of the cases filed by their authorized representative the director cannot be barred from stepping into the witness box and lead his evidence. SPA is executed to keep representation of company and it does not debar any other person from deposing in favour of the complainant for proving its case. As per the provision of Section 118 I.N. Act any person can be examined as witness. Hence, the plea taken by the accused is without any force, therefore, stands rebutted.
12. Ld. counsel for accused persons has further raised a contention that the goods have never been supplied by the complainant to the accused against the bill no. 22 as alleged in the complaint so there is no consideration against the cheques in question as the same were issued in advance. Accused persons further argued that no copy of the bill or the ledger accounts have been produced by the complainant in support of his version. Hence, no cause of action arises u/s 138 N.I. Act against the accused persons.
On the other hand, ld. counsel for complainant relied upon the document Ex. DW-1/CA which is form ST-35 issued by the sales tax department in favour of the accused persons which further given to the complainant after filling it up for keeping in the record. It is further argued that the document bear the bill no. 22 alongwith other two other admitted bills by the accused persons on back of the document which CC No. 378/1 9/16 shows that goods have been supplied by the complainant to the accused persons so nothing is required to show that the goods have been delivered against the bill No. 22.
Countering the argument of the complainant ld. counsel for accused persons argued that the said form ST-35 was given by the accused persons to the complainant in blank and the complainant has manipulated the same by filling it up whereas there is no dispute that the goods against the goods no. 21 & 35 has been received and the payment has been made to the complainant but no bill no. 22 has been raised by the complainant its own neither the goods against the same has been received by us as the cheques were issued in advance the payment was stopped because of non delivery of the goods by the complainant. It is further argued that onus is upon the complainant to prove the document Ex. DW-1/C by supporting the delivery of goods by filing the bill which he has failed to do so. Hence, no liability against the accused persons.
On the other hand, ld. counsel for complainant further argued that the document Ex.CW-B/C, Ex.CW-B/A, Ex.CW-B/B proved by witness called from sales tax department shows that the goods against the bill no. 22 has been sold by the complainant and purchased by the accused and after the following transaction accused persons got issued the sales tax form 35. It is further argued that the form Ex. DW-1/CA is always issued by the sales tax department after the parties sent their requisition showing the details of the goods purchased by them during the assessment year and the same is the case in the present matter and the document has never been issued in blank to the complainant.
Ld. counsel for accused persons have failed to explain the CC No. 378/1 10/16 entries made in the document Ex. CW-3/A, Ex. CW-3/B and Ex. CW-3/C showing that the goods have been delivered by the complainant to the accused persons against the bill no. 22. The documents as such sales tax form 35 are never issued in blank by the sales tax dept they are only issued after the transaction purchase and sale of material is completed and then only the sales tax form no. 35 is issued to the concerned party. Moreover, the accused no. 2 has admitted his signatures on the document Ex. CW-1/CA at point B so he cannot dispute the document to have been forged. Secondly, the document has been duly proved by the witness CW-3 who has been called from the sales tax department. In absence of explanation to entries of purchase of goods by the accused person in documents Ex. CW-1/C, Ex. CW-1/B & Ex. CW-1/A the transaction of sale under bill no. 22 stands proved. In addition to this fact the accused no. 1 has also admitted liability in her statement u/s 313 r/w 281 Cr.P.C. qua the issuance of cheques in question.
13. Ld. counsel for accused persons argued that the complainant in his cross-examination as well as in his complaint have submitted that all the four cheques were issued by the accused persons in the month of January, 2003 whereas it has been proved that the first three cheques bearing nos. 056547, 056548 & 056544 were issued in the month of January, 2003 and the fourth cheque issued in the month of April, 2003 as the cheque pertains to the cheque book that has been issued in the month of April, 2003 itself. Ld. counsel further argued that each time complainant stated the same thing which shows that the plea taken by the accused is probable that fourth cheque was issued CC No. 378/1 11/16 against three cheques earlier issued whose payment was stopped as they were left invalid due to the conversion of the account from current account into over draft account but the complainant did not return the three cheques and also misused all the cheques without any consideration. On the other hand, ld. counsel for complainant argued that matter pertains to the year, 2003 and it is possible that there are number of transactions and it might have skipped out of the mind of the complainant and this infirmity is not material in fact to take away the case of the complainant and the benefit cannot be granted to the accused on the same ground.
The point highlighted by ld. counsel for accused persons is important to note but the same is not material enough for rebutting the presumption lying in favour of the complainant in absence of any ancillary evidence. The explanation given by the complainant is also plausible that the fact of issuance of the cheques either simultaneously or on the different dates may happen as there have been regular transaction for so many years between the parties. One more point raised by the accused persons is that the cheque is given as advance is rebutted by the complainant by pointing out the documents Ex.CW-3/A, Ex.CW-3/B, Ex.CW-3/C whereby the payment of the goods have been made subsequent to the delivery of the goods. So I do not find any force in the argument of the ld. counsel for accused persons. Hence, the same also stands rebutted.
14. As per the judgment passed by Hon'ble Supreme Court of India in a case titled as Rangappa Vs. Sri Mohan Criminal Appeal No. 1020 of 2010, although the accused persons are required to rebut the CC No. 378/1 12/16 presumption on the scale of preponderance of probabilities but the evidence for probablizing the plea of defence must be sufficient to compel the court to believe in its existence. In the present case accused persons have failed to raise any reasonable probable defence and could not discharge the initial burden of proof lying upon them. As the burden remained undischarged the onus never shifted upon the complainant. Hence, complainant has proved his case beyond reasonable doubt.
Decision:
15. I have gone through the material placed on record and arguments advanced by Ld. counsels. In view of the above discussion and detailed analysis of the evidence led by the parties, this court is of the view that accused persons have failed to rebut the presumption of Section 139 N.I. Act and could not raise any probable defence which can be believed by this court.
16. As the accused persons could not discharge the initial burden lying upon them the onus never shifted upon the complainant. Therefore, it can be said that complainant has successfully established his case beyond reasonable doubt. Hence, both the accused persons are found to be guilty and are hereby convicted by the offence under Section 138 N.I. Act.
Announced today in the (Vishal Pahuja)
open court on 30.03.2012 MM NI ACT (WEST)/DELHI
30.03.2012
CC No. 378/1 13/16
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No.378/1
M/s Continental Conductors Pvt. Ltd.
Through its Special Power of Attorney
Sh. Laxman Sharma,
S/o late Sh. Babu Ram Sharma
R/o DDA Flat No. 28, RPS, Mansarover Park,
Shahadra, Delhi. ......Complainant
Versus
1. Smt. Uma Gupta,
W/o of late Sh. Yogesh Gupta,
Authorized Signatory/ Director of M/s Yog System Pvt. Ltd., R/o 4A, Ram Chander Lane, Shankracharya Marg, Civil Lines, Delhi-54.
2. M/s Yog System Pvt. Ltd., through its Director Sh. Parakh Gupta, S/o late Sh. Yogesh Gupta, 632, Village Burari, Delhi. .........Accused persons CC No. 378/1 14/16 09.04.2012 Order on Sentence:-
Ld. counsel for the accused persons have submitted that the accused persons have been suffering from financial crises and are not in a position to pay heavy compensation to the complainant however they are ready to make the payment of reasonable amount as the court may order. It is further argued that as the accused no.1 being a lady and the accused no.2 being a young person, a lenient view may be taken against both the accused persons.
On the other hand ld. counsel for the complainant argued that the complainant has suffered heavy expenses on account of litigation. It if further argued that heavy compensation be awarded to the complainant in terms of money. It further submitted that no stringent punishment in terms of imprisonment be awarded to the accused persons but the complainant should be adequately compensated.
It is necessary to be mentioned here that the offences u/s 138 of N.I. Act are on high rise and in order to keep the spirit of the legislation, the accused cannot be released on probation as these offences have massive effect on the economic condition of the persons.
I have heard the arguments led by both the counsels on behalf of the parties and keeping in view, the points put forth by both the parties and considering the condition of the accused persons, I deem it to appropriate to sentence the accused persons till rising of the court and fine of Rs.5,000/-CC No. 378/1 15/16
each and they are further ordered to pay the compensation of Rs.7,00,000/- to the complainant within 30 days from today and in case of failure to pay the amount, the accused persons have to undergo two months simple imprisonment.
VISHAL PAHUJA MM NI ACT (WEST),DELHI 09.04.2012 CC No. 378/1 16/16