Delhi District Court
Complainant vs Sh. Naveen Tamta on 28 March, 2012
IN THE COURT OF SH. D.K.JANGALA : ADDL. RENT CONTROLLER: NORTHWEST:ROHINI: DELHI CC NO. 418/09/04 U/S 138 of Negotiable Instruments Act Sh.Bhupender Kumar Gupta, Proprietor of Firm, M/S Cosmic System, 201, Garg Plaza, Commercial Complex, Bhera Enclave, Paschim Vihar, Delhi110087. .............. Complainant Versus 1. Sh. Naveen Tamta, Proprietor of M/S Naveen Batteries Works, 12, New Janta Market, Paschim Puri Chowk, New Delhi110063. 2. M/S Naveen Batteries Works, through it's proprietor, Sh. Naveen Tamta, 12, New Janta Market, Paschim Puri Chowk, New Delhi110063. ................ Accused Date of Institution: 24.09.04 Date of final arguments: 28.03.12 Date of Decision: 28.03.12 JUDGEMENT:
1. The present complaint case U/S 138 of the Negotiable Instruments Act , 1881 is assigned to this Court for disposal vide order No. 145 Page 1 of 13 192/01 F.3(4) MM dated 2.1.09 of Learned District JudgeI & Sessions Judge, Delhi .
2. The complainant Sh. Bhupinder Kumar proprietor of M/S Cosmic System filed the present complaint case for commission of the offence punishable U/S 138 of Negotiable Instruments Act, 1881 ( herein after called as N.I. Act) against the accused . It is stated that the complainant Sh. Bhupinder Kumar Gupta is the proprietor of M/S Cosmic System, engaged in the business of distributor of industrial batteries. It is stated that the accused Naveen Tamta is the proprietor of firm M/S Naveen Batteries Works. It is stated that accused was the dealer of batteries , who used to purchase the batteries for resale from the complainant's firm. It is stated that the accused No.1 in discharge of his liabilities and towards part payment of bills raised by the complainant of the goods/ batteries delivered to the accused , issued 10 cheques of the total amount of Rs. 2,45,235/. The details of which are as under: Sl. No. Ch. No. Date Amount
1. 359637 05.08.04 Rs.27,299/
2. 359638 05.08.04 Rs.24,770/
3. 359639 05.08.04 Rs.22,600/
4. 359640 05.08.04 Rs.21,200/
5. 359641 05.08.04 Rs.28,930/
6. 359642 05.08.04 Rs.20,390/ Page 2 of 13
7. 359858 05.08.04 Rs.22,740/
8. 359860 05.08.04 Rs.33,033/
9. 357861 05.08.04 Rs.33,033/
10. 357862 05.08.04 Rs.11,240/ It is stated that all cheques were drawn on Canara Bank, Ganesh Nagar Branch, New Delhi, in discharge of legal liabilities. It is stated that the complainant presented the said cheques for encashment and the same were returned dishonoured by the banker of the accused on account of " insufficient balance", as per memo dated 06.08.2004 . It is stated that the complainant sent the legal demand notice dated 14.08.04 to the accused by registered post and UPC, however the accused has failed to make the payment of dishonoured cheques despite service of the legal demand notice. It is prayed that the accused may kindly be punished for commission of the offence punishable U/S 138 of N I Act and order of compensation U/S 357 C.P.C. may kindly be passed.
3. The complainant led presummoning evidence and the accused was summoned to face the trial . On 27.05.08 notice for commission of the offence punishable U/S 138 of N I Act was served upon the accused to which he pleaded not guilty and claimed trial.
4. The complainant to prove his case has examined himself as CW1 Page 3 of 13 and filed his evidence by way of affidavit EX CW 1/Q. The complained relied upon the documents EX CW 1/A to EX CW 1/P. The complainant proved the Special Power of Attorney given to Sh. Naveen Kumar Sharma as EX CW 1/A, the certified copy of all the 10 dishonoured cheques are proved as EX CW 1/B to EX CW 1/K, the memo dated 06.08.04 regarding dishonour of the cheques all dated 05.08.04, due to ' insufficient balance' is proved as EX CW 1/L to EX CW 1/M, the legal demand notice alongwith postal receipts are proved EX CW 1/N to EX CW 1/P. During cross examination the CW1 admitted that he is aware about the contents of the notice. It is stated that he had business dealings with M/S Naveen Batteries Works . It is admitted that he has not filed any bill regarding the transaction.It is voluntarily stated that he can produce the bills, if required. It is admitted that all the cheques were drawn on Canara Bank, Ganesh Nagar Branch, New Delhi and dates on all the cheques were same. It is denied that the cheques in dispute does not bear the signatures of the accused Naveen Tamta. It is stated that he do not know as to who wrote down the name of his company and amount on the cheques, however the same were issued by the accused. It is denied that he had no dealings with accused Naveen Tamta on behalf of M/S Naveen Batteries Works. It is stated that he had dealing with Sh. Sumant Kumar on behalf of M/S Naveen Batteries, who is brother of accused Naveen Tamta. Page 4 of 13
5. The complainant examined another witness Sh. Anil Taneja as CW2, officer of the Canara Bank , Ganesh Nagar Branch, banker of the accused. The CW2 produced the statement of account of the accused. The CW2 deposed that the account is in the name of M/S Naveen Batteries Works. The CW2 deposed that the cheques EX CW 1/B to EX CW 1/K is of their bank and returning memo slip EX CW 1/L is also of his bank. It is admitted that all the 10 cheques were dishonoured on the reason 'funds not provided'. It is admitted that on 05.08.04 the cheque amount was not available as balance in accused's account. The statement of account is proved as CW 2/A. During crossexamination CW2 stated that he cannot tell whether the cheques in question bears the signatures of the accused without looking the specimen signatures card of the accused. Even though it is voluntarily stated that the four cheques bearing No. 357858, 357860, 357861 and 357862 are having different signatures as compared to remaining cheques, however after seeing the specimen card he can tell the exact thing.
6. The Statement of the accused was recorded U/S 313 CrPC. It is stated by the accused that his elder brother Sh. Sumant Kumar Tamta gave his 10 cheques to the complainant and three cheques does not bear his signatures. It is admitted that he has received the legal demand notice. The accused submitted that he wants to lead defence evidence , however despite sufficient opportunity the Page 5 of 13 accused failed to lead the defence evidence.
7. I have carefully perused the material on record and have gone through the submissions of Ld.counsel for both parties.
8. It is submitted by Ld. counsel for the complainant that in the present case the complainant has proved the dishonoured cheques on record and the complainant has also examined the bank official , who proved the dishonouring of the cheques due to 'insufficient funds'. It is stated that there is a presumption U/S 139 of N.I. Act in favour of the complainant, therefore, accused is liable to be convicted.
9. On the other hand it is submitted by Ld. counsel for the accused that the cheques in dispute does not bear the signatures of the accused. It is stated that the accused was having no dealing with the complainant and the accused has not issued the cheques in dispute to the complainant. It is also stated that brother of the accused has misused the cheques of the accused.
10. The provision of section 138 of N.I. Act is reproduced as under: Section 138: Dishonour 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 Page 6 of 13 from that account by an agreement made with the bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment [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 contained in this section shall apply unless "(a) 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, as the case may be, 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 purpose of this Section, "debt or other liability" means a legally enforceable debt or other liability."
11. In the present case it is stated by the complainant that the accused has issued the 10 cheques bearing No.( 1) Ch No. 359637 dated 05.8.04 for a sum of Rs.27,299/ (2)Ch. No. 359638 dated 05.08.04 for a sum of Rs.24,770/,(3) Ch. No.359639 dated 05.08.04 for a sum of Rs.22,600/,(4)Ch. No. 359640 dated 05.08.04 for a sum of Page 7 of 13 Rs.21,200/, (5) Ch. No.359641 dated 05.08.04 for a sum of Rs.28,930/, (6) Ch. No. 359642 dated 05.08.04 for a sum of Rs.20,390/, (7) Ch. No. 359858 dated 05.08.04 for a sum of Rs.22,740/, (8) Ch. No. 359860 dated 05.08.04 for a sum of Rs.33,033/, (9) Ch. No. 357861 dated 05.08.04 for a sum of Rs.33,033/ and (10) Ch. No. 357862 dated 05.08.04 for a sum of Rs.11,240/, all drawn on Canara Bank, Ganesh Nagar Branch, New Delhi.
12. The complainant examined himself as CW1 and proved the all the dishonoured cheques as EX CW 1/B to EX CW 1/K. The complainant also examined the bank official of the bank of the accused. The bank official of the bank of the accused have also corroborated the testimony of the complainant that all the dishonoured cheques were issued from the account of the accused. The accused took the defence that three cheqeus does not bear his signatures. The complainant has categorically deposed that all the cheques bears the signatures of the accused. Even the cheque returning memo proved by the banker of the accused also nowhere reflects that these three cheques were dishonoured due to 'signatures differs' . Even though during crossexamination the CW 2 i.e. official of the banker of the accused stated that four cheques are having different signatures in comparison to the remaining cheques but CW2 has categorically stated that he cannot say Page 8 of 13 anything regarding the signatures of the accused without comparing the same with the specimen signatures card of the accused. The accused led no evidence to prove that the cheques in dispute does not bear his signatures. The complainant has specifically deposed that the cheques in dispute bears his signatures. The cheque returning memo also nowhere reflects that the cheques were dishonoured due to reason ' signatures differ', therefore, mere statement of the accused that the cheques in dispute does not bear his signatures is of no relevance without proving the same. Therefore, in the present facts and circumstances , I am of the considered opinion that the complainant is able to prove that the accused has issued all the dishonoured cheques EX CW 1/B to EX CW 1/K in favour of the complainant.
13. It is stated by the complainant that the accused has issued the cheques in dispute in discharge of his legal liabilities towards part payment of goods delivered to him. The complainant examined himself as CW1 and deposed on Oath that the accused issued the cheques in dispute in discharge of his legal liabilities. The complainant also stood the test of crossexamination on this account. The accused has stated that his elder brother Sh. Sumant Kumar Tamta gave 10 cheques to the complainant, however it is nowhere disputed by the accused that he is the proprietor of M/S Page 9 of 13 Naveen Batteries Works from whose account the cheques in dispute were issued. The accused led no evidence to prove his defence. Once the issuance of the cheques in dispute is proved by the complainant , the presumption U/S 139 of N.I. Act is raised in favour of the complainant .
14. The provision of section 139 of N.I. Act is reproduced as under: "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. In the present case the complainant has proved the issuance of the cheques in dispute which bears the signatures of the accused, therefore, the presumption of issuance of the cheques towards discharge of legal liabilities U/S 139 of N I Act is raised in favour of the complainant. The presumption U/S 139 of N I Act is a rebuttable presumption , however the accused led no evidence to rebut the presumption U/S 139 of N I Act. Even from the cross examination and from the material on record the accused has failed to rebut the presumption U/S 139 of N.I. Act. Therefore, on the basis of testimony of the complainant and relying upon the presumption U/S 139 of N I Act, I hold that the complainant is able to prove that the accused had issued all the cheques in discharge of his legal liabilities.
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16. It is stated by the accused that on receipt of information regarding dishonour of the cheques a legal demand notice dated 14.08.04 was issued to the accused through registered AD and UPC. The complainant proved the legal demand notice alongwith postal receipt and UPC as EX CW 1/N to EX CW 1/P. The accused in his statement recorded U/S 313 CrPC admitted the issuance of the legal notice. The testimony of the complainant regarding service of legal demand notice remained unrebutted and unchallenged and even the accused admitted the receipt of the legal demand notice. Therefore, I hold that the legal demand notice dated 14.08.04 was duly served upon the accused.
17. It is also stated by the complainant that all the 10 cheques issued by the accused in discharge of his legal liabilities were dishonoured on being presentation due to 'insufficient funds' and despite service of legal demand notice dated 14.08.04 the accused has failed to make the payment of cheques amount. The accused has admitted the receipt of the legal demand notice . The accused has failed to produce any proof of payment of dishonoured cheques on receipt of legal demand notice, nor the accused stated that he ever made payment of dishonoured cheques on receipt of the legal demand notice. Therefore, the complainant by examining himself is able to prove that the accused has failed to make the payment of dishonoured cheques within 15 days despite receipt of legal Page 11 of 13 demand notice dated 14.08.04.
18. In view of above discussions, I am of the considered opinion that the complainant is able to prove all the necessary ingredients for commission of offence punishable U/S 138 N.I. Act beyond reasonable doubt. The complainant is able to prove that the accused has issued all the 10 cheques bearing No.(1) Ch No. 359637 dated 05.8.04 for a sum of Rs.27,299/ (2)Ch. No. 359638 dated 05.08.04 for a sum of Rs.24,770/,(3) Ch. No.359639 dated 05.08.04 for a sum of Rs.22,600/,(4)Ch. No. 359640 dated 05.08.04 for a sum of Rs.21,200/, (5) Ch. No.359641 dated 05.08.04 for a sum of Rs.28,930/, (6) Ch. No. 359642 dated 05.08.04 for a sum of Rs.20,390/, (7) Ch. No. 359858 dated 05.08.04 for a sum of Rs.22,740/, (8) Ch. No. 359860 dated 05.08.04 for a sum of Rs.33,033/, (9) Ch. No. 357861 dated 05.08.04 for a sum of Rs.33,033/ and (10) Ch. No. 357862 dated 05.08.04 for a sum of Rs.11,240/, for a total sum of Rs. 2,45,235/ all drawn on Canara Bank, Ganesh Nagar Branch, New Delhi, which were dishonoured on being presentation due to 'insufficient funds' on 06.08.04 and despite service of legal demand notice dated 14.08.04 the accused has failed to make the payment of cheques amount to the complainant. Therefore, accused Naveen Tamta proprietor of M/S Naveen Batteries Works is convicted for commission of the offence punishable U/S 138 of N.I. Act. Page 12 of 13
Let he be heard on the point of sentence.
Announced in the open court ( Devender Kr. Jangala) on 28.03.12 Addl. Rent Controller: Rohini Page 13 of 13 Page 14 of 13