Delhi District Court
M/S Technip Books International vs M/S Sandhya Enterprises on 30 August, 2012
In the Court of Sh. Manoj Kumar : Senior Civil JudgecumMetropolitan
Magistrate of New Delhi District at Patiala House Courts, New Delhi
C. C No. 1040/1/09
Unique ID No. 02403R0236822005
In the matter of:
M/s Technip Books International
Through its authorised Representative
Sh. Gurmit Singh,
4/12, Kalkajee Extn. (Opp. Nehru Place)
Kakajee, New Delhi110019 ....................Complainant
VERSUS
1. M/s Sandhya Enterprises
Through its proprietor
Sh. Rajesh Kumar
252, ground floor, Nazar Singh Place,
Sant Nagar, East of Kailash,
New Delhi110065.
2. Sh. Rajesh Kumar
Proprietor of M/s Sandhya Enterprises,
252, ground floor, Nazar Singh Place,
Sant Nagar, East of Kailash,
New Delhi110065. ....................Accused
C. C. No. 1040/1/09 Page no. 1 of 10
Date of Institution : 20.05.2005
Date of Arguments: 30.08.2012
Date of Judgment : 30.08.2012
COMPLAINT UNDER SECTIONS 138 AND 142 OF THE
NEGOTIABLE INSTRUMENTS ACT, 1881
JUDGMENT :
The present case was received by way of transfer as per the order no. 145192/01/F.3(4)/MM dated 02.01.2009 passed by the learned District JudgeI and Sessions Judge, Delhi in pursuance of order no. 25/DHC/Gaz./VI.E2(a) dated 22.10.2008 passed by the Hon'ble Delhi High Court. It shall be disposed of in compliance of the said orders.
2. This is a complaint under sections 138 and 142 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) made by complainant M/s Technip Books International through its authorised representative (AR) Mr. Gurmit Singh against accused M/s Sandhya Enterprises and its proprietor Mr. Rajesh Kumar stating that the complainant is a proprietorship firm run and managed by A. K. Parwanda (HUF) whose Karta is Mr. Ashok Kumar Parwanda and the firm is duly represented by Mr. Gurmit Singh who is power of attorney holder of the firm; that accused no. 2 is proprietor of accused no.1 which deals in the business of courier services and used to regularly pick up the parcels, documents, envelops and C. C. No. 1040/1/09 Page no. 2 of 10 other articles from the complainant firm to deliver the same at various places in India and abroad; that the complainant firm, as per the normal practice, had approached to the accused for sending two parcels through courier containing educational books to Mr. Azmi Macun, Vice President of AZE MUCHEN DISLIK A.S., TEZEL SOK, 2/34, Yukari Ayranci Ankara, Turkey; that two consignments were sent through Federal Express courier service vide Air Way bill no. FEDEX AWB NO.849855693851 and the complainant had paid the courier charges in the sum of Rs.18,510/ which was on the basis of the weight of the parcels which was 38 Kg; that the consignments were sent on 04.01.2005 and the parcels were to be delivered at Ankara, Turkey; that the accused did not carry out the instructions given by the complainant and instead of delivering them in Ankara, directed the consignee to come to Istanbul and collect the parcels after clearance from customs; that the Vice President of the consignee company had to travel to Istanbul to collect the parcels and had to pay VAT of around 230 USD and an additional 600 USD for various other reasons besides travel expenses by car to and fro to Istanbul; that it was informed by the consignee that the consignments were picked up by them on or around 11.01.2005 whereas shipments should had been delivered within 72 hours of pick up as per usual standard time of international courier service; that Vice President of the consignee company was put to extreme hardship, which affected the future business prospect of the complainant firm with C. C. No. 1040/1/09 Page no. 3 of 10 the consignee company; that the complainant had written a letter dated 03.2.2005 to the accused narrating the complete details about the two consignments and had informed the accused that they were responsible for the loss occurred; that the accused accepted their liability and had issued a cheque bearing no. 182158 dated 25.3.2005 in a sum of Rs.16,450/ towards their part liability drawn on the Punjab & Sind Bank, E/C.K.G.H. Secondary School, Delhi Cantt., New Delhi branch; that the complainant had presented the said cheque for encashment through its banker Oriental Bank but the same returned unpaid alongwith memo dated 31.3.2005 due to insufficient funds in the account of the accused; that after return of the cheque as dishonoured a demand notice dated 08.4.2005 was sent by the complainant to the accused whereby the accused was called upon to make payment against the cheque amount by D.D. or cash within fifteen days of the receipt of the notice and the said notice was received by the accused and replied by way of written reply dated 21.4.2005. It is further stated in the complaint that the accused have committed offence punishable under section 138 of Act 26 of 1881 and therefore, they be summoned, tried and punished as per law.
3. The complaint was made on 20.5.2005 and was received by way of assignment on 23.5.2005. On 23.5.2005 having taken cognizance of offence my learned predecessor had examined Mr. Gurmit Singh, the AR of the complainant under section 200 of the Code of Criminal Procedure, 1973 C. C. No. 1040/1/09 Page no. 4 of 10 (Cr.P.C.). During his examination under section 200 of Cr.P.C. the AR of the complainant had tendered his affidavit alongwith some documents. On the basis of the affidavit of the AR of the complainant, tendered during his examination, and the documents filed alongwith the affidavit an order was passed under section 204 of Cr.P.C. whereby the accused were summoned to face accusation under section 138 of Act 26 of 1881 only in respect of cheque no. 182158.
4. In pursuance of the process issued by the court, the accused no. 2 appeared and he was admitted to bail. Subsequently, on 09.8.2007 a notice of accusation under section 251 of Cr.P.C. was framed against the accused no. 2 whereby he was charged with the commission of offence punishable under section 138 of Act 26 of 1881 in respect of cheque no. 182158 dated 25.3.2005. The notice of accusation was read over and explained to the accused no. 2 to which he did not plead guilty.
5. In support of his case the complainant got examined CW1 Mr. Ashok Kumar Parwanda, claiming to be the proprietor of the complainant, who during his examination in chief tendered his affidavit Ex. CW1/A alongwith documents Ex. CW1/1 to Ex. CW1/10. CW1 Mr. Ashok Kumar Parwanda was cross examined on behalf of the accused and after his cross examination evidence on behalf of the complainant was closed and the accused was examined under section 313 of Cr.P.C.
6. During his examination under section 313 of Cr.P.C. the C. C. No. 1040/1/09 Page no. 5 of 10 accused no. 2 admitted that he was the proprietor of M/s Sandhya Enterprises and had been dealing in the business of courier service. The accused no. 2 further stated that the articles booked by the complainant against Ex. CW1/2 was duly delivered to the consignee but the complainant did not make payment of the charges against them to him. During his examination under section 313 of Cr.P.C. the accused no. 2 further stated that there was no contract between him and the complainant that the consignment would be delivered at Ankara and further added that as per the law of Turkey the consignee had to collect the parcels from Istanbul after completing other formalities. During his examination under section 313 of Cr.P.C. the accused no. 2 denied that the consignee company had correspondence with him and further stated that the consignee never made any complaint to him. During his examination under section 313 of Cr.P.C. the accused no. 2 further stated that he had performed his duties up to mark and did not commit any wrong and only for that reason the complainant had given further business to him and had its parcels consigned through him in the month of May, 2005. During his examination under section 313 of Cr.P.C. the accused no. 2 denied having issued cheque Ex. CW1/6 in favour of the complainant to discharge any legally enforceable debt or liability and further stated that cheque Ex. CW1/6 was taken by the complainant from him before dispatch of the two parcels to Turkey as security for delivery of two parcels. During his examination under section 313 of Cr.P.C. the C. C. No. 1040/1/09 Page no. 6 of 10 accused no. 2 admitted having received legal notice dated 08.4.2005, a copy of which is Ex. CW1/9, and further stated that the notice was replied by way of written reply Ex. CW1/10. During his examination under section 313 of Cr.P.C. the accused no. 2 further stated that CW1 Mr. Ashok Kumar Parwanda has deposed falsely against him to extort money from him and has falsely implicated him so that the consignee should not put any claim against the complainant.
7. In his defence having made an application under section 315 of Cr.P.C. the accused got examined himself as DW1 and closed defence evidence.
8. I have heard counsel for the accused and have gone through the material on record carefully. Despite waiting for considerable time none appeared on behalf of the complainant to advance arguments.
9. Having drawn my attention on the testimony of DW1 Mr. Rajesh Kumar and cheque Ex. CW1/6 it is submitted on behalf of the accused that the accused has been falsely implicated in this case and he is entitled to be acquitted. It is further submitted on behalf of the accused that cheque Ex. CW1/6 was not drawn by the accused in favour of the complainant to discharge any legally enforceable debt or liability and instead the same was given to the complainant as security against delivery of parcels to its client at Turkey. It is further submitted on behalf of the accused that the consignment sent by the complainant through the accused C. C. No. 1040/1/09 Page no. 7 of 10 was duly delivered at Turkey and therefore, there was no occasion for making any payment by the accused to the complainant. It is further submitted on behalf of the accused that instead of the accused, the complainant has been owing consignment charges to the accused which have not been paid. It is further submitted on behalf of the accused that since all the ingredients of offence punishable under section 138 of Act 26 of 1881 have not been proved, therefore, the accused be acquitted.
10. I have given my thoughtful consideration to the submissions made on behalf of the accused.
11. Section 138 of the Act 26 of 1881 which pertains to dishonour of cheque for insufficiency, etc., of funds in the account reads as follows:
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 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 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 C. C. No. 1040/1/09 Page no. 8 of 10 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.
12. From a reading of section 138 of Act 26 of 1881 it can be discerned that offence in respect of a cheque is committed only if the cheque in question is drawn to discharge any legally enforceable debt or liability.
13. It has been held by Hon'ble Supreme Court in M.S. Narayana Menon v. State of Kerala, AIR 2006 SC 3366 that if a cheque is issued for security or for any other purpose the same would not come within the purview of section 138 of Act 26 of 1881.
14. In the present case from the testimony of DW1 Mr. Rajesh Kumar, which remains unrebutted, it has been proved that cheque Ex. CW1/6 was drawn not to discharge any legally enforceable debt or liability and instead the same was given as security before consignment of parcels to Turkey. From the testimony of DW1 Mr. Rajesh Kumar it has also been proved that the parcels were duly delivered at Turkey and thus there was no occasion to use the security cheque by the complainant.
15. As the accused has succeeded in proving that cheque Ex.
C. C. No. 1040/1/09 Page no. 9 of 10 CW1/6 was not drawn to discharge any legally enforceable debt or liability and, in fact, the same was issued as security and thus, has rebutted the presumptions under sections 118 (a) and 139 of Act 26 of 1881, therefore, accused Mr. Rajesh Kumar, proprietor of accused no. 1 M/s Sandhya Enterprises, is not found guilty of the accusation made against him and consequently, he is acquitted of accusation under section 138 of Act 26 of 1881 in respect of cheque Ex. CW1/6. File be sent to records.
Announced in the open court (Manoj Kumar)
on this 30 day of August, 2012
th
Senior Civil Judgecum
Metropolitan Magistrate
New Delhi: 30.08.2012
C. C. No. 1040/1/09 Page no. 10 of 10