Delhi District Court
1. Krishna Janardhan Bhat vs . Dattatraya G. Hedge 2008 (1) Jcc (Ni) 50 on 13 October, 2022
IN THE COURT OF SH. BHANU PRATAP SINGH: MM-01 (N.I.ACT): SOUTH-
EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
M/s SISL Infotech Private Limited v. Mighty Solutions
CC No.629570/16
U/s 138 Negotiable Instruments Act, 1881
1. CIS number : DLSE020035702016
629570/16
2. Name of the complainant : M/s SISL Infotech Private Limited,
Having its office at: Sector-4,
Near Post Office, R.K. Puram,
New Delhi-110022
Through its AR
Vimal Kr. Jha
3. Name of the accused , parentage & : Mighty Solutions,
residential address Through its prop. Himanshu Sharma,
Having its office at:
24/1, 2nd Floor, Govind Puri,
Kalka Ji, New Delhi-110019.
4. Offence complained of or proved : U/s 138 of Negotiable Instruments Act,
1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Acquitted
7. Date of judgment/order : 13.10.2022
Date of Institution : 27.01.2016
Date of Pronouncement of Judgment/Order : 13.10.2022
CC No.629570/16 M/s SISL Infotech Private Limited v. Mighty Solutions page 1 of 6
JUDGMENT
1. By way of the present Judgment, this court shall dispose of the present complaint filed by M/s SISL Infotech Private Limited (hereinafter referred to as 'complainant') against Mighty Solutions, through its proprietor Himanshu Sharma (hereinafter referred to as 'accused') u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short).
Brief facts:
2. The case of the complainant is that the accused is proprietorship firm and controlling all the business affairs, funds and liabilities of the firm. That the accused purchased goods from the complainant and against the same, the complainant raised a bill dated 27.03.2015 amounting to Rs.2,09,605/- to the accused. That against the said bill, the accused issued a cheque bearing no.309284 dated 18.11.2015 drawn on Oriental Bank of Commerce, Chirag Delhi Branch, amounting to Rs.2,09,605/- in favour of the complainant. That the complainant presented the above mentioned cheque with its banker but the same was dishonoured with remarks 'Funds Insufficient' vide returning memo dated 19.11.2015. Thereafter, complainant sent a legal notice dated 05.12.2015 u/s 138 of NI Act calling upon the accused to make the payment of the aforesaid dishonoured cheque within 15 days of the receipt of the legal notice as prescribed u/s 138 of the N.I. Act. Even after the expiry of 15 days stipulated period, the accused did not make the payment, hence, the present case was filed by the complainant.
Proceedings before the Court:
3. The cognizance of the complainant was taken and accused was summoned vide order dated 29.01.2016. The notice u/s 251 Cr.P.C was served upon the accused on 11.09.2017 to which accused pleaded not guilty and claimed trial. Thereafter, application u/s 145 (2) of NI Act filed on behalf of the accused which was allowed vide order dated 27.08.2018.
CC No.629570/16 M/s SISL Infotech Private Limited v. Mighty Solutions page 2 of 6 Thereafter, complainant witness was examined, cross examined and discharged on 23.04.2019. Thereafter, statement of accused was recorded on 02.09.2019 and accused chose to lead defence evidence. Thereafter, the counsel for accused submitted that no witnesses are to be examined on behalf of the defence. Defence Evidence was closed after recording the statement of the counsel for the accused to this effect. Thereafter, the matter was listed for final arguments. Final arguments were heard on behalf of both the parties.
Arguments raised by parties:
4. Complainant has argued that all the requirements of Section 138 of NI Act have been fulfilled by the complainant in the present case and he has proved his case beyond reasonable doubt. It has been further argued that the accused failed to prove his defence. It has been further argued that the accused did not file any document to prove his defence and did not examine any witness in his defence. It has been further argued by the counsel for the complainant that the accused also failed to rebut the presumption u/s 139 of NI Act, therefore, accused is guilty of offence punishable u/s 138 of NI Act. In support of his contentions, the counsel for complainant relied upon the following judgment:
1. Krishna Janardhan Bhat Vs. Dattatraya G. Hedge 2008 (1) JCC (NI) 50
5. Counsel for accused has argued that the accused is not the signatory to the cheque in question and is not the proprietor of Mighty Solutions. It has been further argued by the counsel for the accused that the accused is not liable to pay the amount of cheque in question. It has been further argued by the counsel for accused that the complainant has filed a false case against the accused . Therefore, accused is not guilty of offence punishable u/s 138 of NI Act. In support of her contentions, the counsel for accused relied upon the following judgment:
1. Dilip Hariramani Vs. Bank of Baroda Criminal Appeal No.767/2022.
CC No.629570/16 M/s SISL Infotech Private Limited v. Mighty Solutions page 3 of 6 Reasons for Decision:
6. For deciding the present case, it is essential to lay down the ingredients of the offence under Section 138 of NI Act which are as follows:
(a) A person must have drawn a cheque on an account maintained by him in a bank.
(b) The cheque must be drawn for payment of certain amount of money to another person to discharge in whole or in part, any legal enforceable debt or other liability.
(c) The cheque has been presented to the bank and is returned unpaid by the bank either due to insufficiency of funds or it exceeds the amount arranged to be paid from that account by an agreement made with that bank.
(d) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of cheque within stipulated period.
(e) The drawer fails to make payment within stipulated time after the receipt of the said notice. [Reference: Kusum Inglots & Alloys Ltd & Ors v. K Pennar Peterson Securities Ltd and Ors (2000) 2 SCC 745].
7. Coming to the present case, the complainant has relied upon his Evidence Affidavit Ex.CW1/A, bill Ex.CW1/2 cheque Ex.CW1/3, return memo Ex.CW1/4, legal demand notice Ex.CW1/5, postal receipt Ex. CW1/6 and returned envelope Ex.CW1/7 in order to prove essential ingredients of Section 138 of NI Act.
8. The accused took the defence in his statement u/s 251 Cr.P.C that "I am not the proprietor of Mighty Solutions. I am an employee of Mighty Solutions. The proprietorship firm has already made payment to the complainant by way of NEFT". In his statement u/s 251 Cr.PC, the accused denied that the cheque in question bears his signatures and further denied that he issued the cheque in question to the complainant.
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9. In his statement u/s 313 Cr.P.C, the accused stated that "The cheque in question has not been issued by me neither I have signed the same. The cheque in question was issued on behalf of the company Mighty Solutions. The complainant was paid the due amount except of Rs.30,000/-. Upon making the payment, the company demanded back a cheque of Rs.2,09,605/- from the complainant but the complainant refused to return the same. If the complainant would have returned the cheque, the balance amount of Rs.30,000/- would have also been paid". The accused further stated in his statement u/s 313 Cr.P.C that "it is a false case as I am not the signatory to the cheque in question".
10. In order to prove his defence, the accused cross examined the AR of the complainant. The AR of the complainant was cross examined as CW-1 by the counsel for the accused on 23.04.2019. CW-1 in his cross examination stated that "It is correct that the payment left to be paid by the accused was Rs.30,000/- only". CW-1 further stated in his cross examination that "I do not know as to who has signed the cheque in question".
11. On perusal of the above testimony of CW-1, this court is of the view that the accused has been able to raise a reasonable doubt on the case of the complainant as CW-1 is not aware as to the signatory of the cheque in question.
12. The AR of the complainant was examined u/s 165 of Indian Evidence Act in which the AR of the complainant produced the computer generated copy of the ledger account of Mighty Solutions maintained by the complainant for the period from 01.04.2015 to 31.03.2016 and 01.04.2016 to 31.03.2017 which is Ex.C-1 (colly.). Perusal of the ledger account for the period from 01.04.2015 to 31.03.2016 shows that the opening balance as on 01.04.2015 was Rs.2,09,605/-. Thereafter, on 31.08.2015 there was receipt of amount of Rs.50,000/- through NEFT which is shown as credit in the ledger account. Thus, it can be concluded that on the date which is mentioned on the cheque in question i.e. CC No.629570/16 M/s SISL Infotech Private Limited v. Mighty Solutions page 5 of 6 28.11.2015 the amount due as per the ledger account was less than Rs.2,09,605/-. Perusal of the complaint and the testimony of CW-1 shows that it is not the case of the complainant that the cheque in question was a post dated cheque which was issued at the time of raising the bill Ex.CW1/2. Thus, it is evident that on the date which is mentioned on the cheque in question, the accused was not liable to pay the amount of Rs.2,09,605/-. Therefore, the liability of accused for the amount mentioned on cheque in question is not established.
Conclusion:
13. Based on the evidence led by the complainant and the defence taken by the accused, this court has arrived to the conclusion that the accused has been successful in raising a probable defence in his favour on a scale of preponderance of probabilities and consequently, a reasonable doubt is created on the case of the complainant. Since, the complainant has failed to prove the essential ingredients of Section 138 of NI Act beyond reasonable doubt, this court finds the accused Mighty Solutions, through its proprietor Himanshu Sharma not guilty for the offence punishable U/s 138 of NI Act. Therefore, accused Mighty Solutions, through its proprietor Himanshu Sharma stands acquitted.
Announced in the open court (Bhanu Pratap Singh)
on 13.10.2022 MM(N.I.Act):SED:
Saket Courts, New Delhi
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