Delhi District Court
M/S Kleanair Engineers vs M/S Tara Medicare India Pvt Ltd on 6 May, 2024
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IN THE COURT OF SH. KOMAL, MM (NI ACT)-08,
SOUTH DISTRICT, SAKET COURTS : NEW DELHI
CT Cases: 476348/2016
CNR No. -DLST020121222016
M/S KLEANAIR ENGINEERS
At - 475, SECTOR-23,
FARIDABAD, HARYANA.
THROUGH ITS PROPRIETOR SH. ASHOK KUMAR,
THROUGH SPA HOLDER HARISH GUPTA.
..................Complainant.
VERSUS
(1). M/S TARA MEDICARE INDIA PVT LTD.
AT- PLOT No. E41-H, RIICO INDUSTRIAL AREA,
KHUSHKHERA, BHIWADI, ALWAR,
RAJASTHAN.
THROUGH ITS DIRECTOR Dr. H.S. YADAV
(2). Dr. H.S. YADAV, DIRECTOR OF
M/S TARA MEDICARE INDIA PVT. LTD.
AT-PLOT No. E41-H, RIICO INDUSTRIAL AREA,
KHUSHKHERA, BHIWADI, ALWAR,
RAJASTHAN.
.....................Accused(s).
Date of Institution : 09.11.2016.
Offence complained of : u/s 138 N.I. Act
Date of final arguments : 06.05.2024
Date of decision : 06.05.2024.
Decision : Acquitted.
Digitally signed
by KOMAL
KOMAL Date:
2024.05.06
16:52:07 +0530
CT Cases 464338/2016 Page No. 1 of 13
Ms. Kleanair Engineers Vs Ms. Tara Medicare India Pvt. Ltd.
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Offence punishable under section 138 of Negotiable
Instruments Act, 1881
JUDGMENT
1. The instant complaint is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act").
2. The brief facts of this case as carved out from the complaint is that the accused no. 2 issued a cheque bearing number 893822 dated 15.05.2015 for a sum of Rs. 9,00,000/-(Rs. Nine Lacs Only) drawn on Corporation Bank, Shalimar Bagh Branch, New Delhi (hereinafter referred as 'cheque in question') in order to discharge his liability for the goods/components supplied regarding HVACs Clean Room by the complainant firm against various orders of different dates as the accused firm was having a running credit account in the account books of the complainant firm.
3. That the Cause of action for the present Complaint arose when the complainant(s) presented the aforesaid cheque to his banker for clearing but the same was returned unpaid with remarks 'Payment stopped by Drawer' vide cheque return memo dated 24.06.2015. Thereafter, the intimation of dishonouring of the cheque in question was duly communicated to the accused(s).
4. Thereafter, the complainant(s) sent the statutory legal Digitally signed by KOMAL KOMAL Date:
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demand notice dated 06.07.2015 to the accused firm and its director as required under the Negotiable Instruments Act, 1881 through his counsel by speed post AD and the same was duly acknowledged by the accused but to no avail. That all the compliances were done within the statutory limit of 30 (Thirty) days from the date of Return Memo dated 24.06.2015.
5. That despite the legal notice being served on the accused, the accused had failed to make the payment of the cheque amount to the complainant within the statutory period of 15 (Fifteen) days and therefore the present complaint was preferred.
6. Pursuant to filing of the present complaint, the complainant filed his pre-summoning evidence by way of Affidavit Ex.CW-1/A and has relied upon documents Ex.C-1 to Ex.C-6.
7. The Ld. Predecessor Court took cognizance of the offence under Section 138 NI Act and ordered for issuance of summons qua accused no. 1 and accused no. 2. The accused no.2 appeared before this Court for the first time on 19.07.2017. He was admitted to court bail subject to furnishing personal bond in sum of Rs. 40,000/- with one surety in the like amount and the notice u/s 251 Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.PC' for the sake of brevity), explaining the substance of accusation was served upon the accused(s) on the same date. The accused(s) had pleaded not guilty and claimed trial. In his reply to the notice u/s 251CrPC, inter-alia, accused no. 2 stated that he had given two cheques to the complainant for Rs.9 lacs each and out of which one was of the current date of that time got Digitally signed by KOMAL KOMAL Date:
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honored/encashed and the cheque in question was the PDC for 15 days which was issued on the assurance of the complainant that work shall be completed within 15 days. The complainant stopped the work in the middle after initial work of three days and thereafter, he had got the work done through some another contractor i.e. Sarmeet Enterprises and Dikon Air Conditioning Pvt. Ltd. and some local contractors. Therefore the payment qua the cheque in question was stopped. The complainant presented the cheque in question without any intimation either to him or the company, therefore he has no legal liability to pay the cheque in question amount.
8. Given the nature of the allegations and reply of the accused u/s 251 CrPC, this Court directed that the case shall be tried as a Summons case under Chapter XX of Cr.P.C.
9. As the defense of accused revealed specific defense, his oral request to cross examine the complainant's witness under section 145(2) NI Act was allowed.
10. The complainant examined two witnesses including himself in support of his case. In order to support his case, the complainant examined himself as CW-1 and Mr. Amar Nath @ Aman Bedwal, Accountant with the complainant firm as CW-2. He also relied upon the following evidence:
Oral Evidence CW-1 Mr. Harish Gupta, S/o- Sh. Lakhmi Chand Gupta.
CW-2 Mr. Amar Nath @ Aman Bedwal, S/o Sh.Digitally signed by KOMAL
KOMAL Date:
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Sampat Ram.
Documentary Evidence Ex.CW1/A Evidence by way of affidavit. Ex.C-1 Special Power of Attorney.
Ex.C-2 Cheque bearing No. 893822 dated 15.05.2015 for an amount of Rs.9,00,000/-.
Ex.C-3 Return Memo dated 24.06.2015. Ex.C-4 Legal demand notice dated 06.07.2015. Ex.C-5 Original postal receipt dated 14.07.2015. Ex.C-6 Original postal receipt dated 14.07.2015. Ex.CW-2/1 Evidence by way of affidavit.
Ex.CW-2/2 Authority Letter.
Ex.C-7 & Registration Certificate of the complainant firm
Ex.C-8
under VAT & GST.
Ex.C-9 to Invoices and delivery challans
Ex.C-53
Ex.C-54 to Ledger accounts of the accused maintained by
Ex.C-56
the complainant firm.
Ex.C-57 Bank Statement of complainant firm from 2012
to 2016.
Ex.C-58 to FORM VAT-D3(Challan outward) regarding the
Ex.C-74
material supplied to the accused.
Ex.C-75 & FORM-C against the invoices mentioned Ex.C-76 therein.
CW-1 and CW-2 were duly cross examined by the learned counsel for the accused. After due cross-examination, CW-1 & CW-2 were discharged and the matter was fixed for recording statement of the accused under Section 313 Cr.P.C.
11. Thereafter, on 27.09.2018, statement of the accused(s) under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was Digitally signed by KOMAL KOMAL Date:
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recorded whereby circumstances appearing against him in evidence were put to him. The accused no.2 pleaded that the cheque in question was given as an advance for the work to be done by the complainant. The payment was stopped because the complainant left the work in between and therefore he had no liability to make the payment towards the cheque in question. He accepted filling up of particulars including the signatures on the cheque in question. He further accepted the receiving of the legal demand notice. He further expressed his desire to lead defence evidence. However, on 09.12.2023 he submits that he does not wish to lead defence evidence and therefore, the same was closed by a separate statement of the accused. Thereafter, the matter was fixed for final arguments. Rival submissions were heard on behalf of both the parties.
ARGUMENTS -
12. Final arguments were advanced on behalf of both the parties.
13. Ld. Counsel for the complainant, has argued that all the ingredients of Section 138 NI Act have been fulfilled in the present case and the complainant has duly proved his case and hence prayed that the accused be convicted. He submitted that the legal liability has been proved by way of original cheque, return memo, legal notice and tracking receipt placed on record. Other contentions raised are summarized below:
Ld. counsel for the complainant submitted that the friendly loan of Rs.2 lakh was disbursed to the accused by Digitally signed by way of cash.
KOMAL KOMAL Date:
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He also stated that accused has accepted his liability in statement of accused u/s 313 CrPC and in his DE while appearing as DW-1.
It is further pointed out that there is discrepancy in the version of the accused, as in his reply to notice u/s 251 CrPC there was no mention that the cheque in question was kept in diary, however, it later appeared under statement of accused u/s 313 CrPC and DE. Per contra, Ld. counsel for the accused, has argued that the cheque in question was not issued by the accused in discharge of legal liability towards the complainant and the same was misused by the complainant. As such, it is prayed that the accused be acquitted for the alleged offence. Additional grounds raised are as follows:
Ld. counsel for the accused contended that it is stated in the complaint that the loan amount was Rs. 2 lacs, however, it is later stated by the complainant as CW-1 that the loan amount was Rs. 1.92 lacs.
It is further contended that accused has never received legal notice send by the complainant. He also pointed out that the bank statement Ex.CW1/7 filed by the complainant does not prove actual loan transfer to the accused.
It is further contended that accused has not filed any written agreement or produced any witnesses to prove actual loan transfer.
POINTS OF DETERMINATION:
Digitally
signed by
KOMAL
KOMAL Date:
2024.05.06
16:51:14
+0530
CT Cases 464338/2016 Page No. 7 of 13
Ms. Kleanair Engineers Vs Ms. Tara Medicare India Pvt. Ltd.
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14. The following points of determination arise in the present case:
a. Whether the complainant is successful in raising the presumptions under Section 118 read with Section 139 of NI Act?
b. If yes, whether the accused has been successful in raising a probable defence?
THE LAW APPLICABLE:
15. I have given my thoughtful consideration to the rival submissions of the Ld. counsels from both sides and have also perused the record. Before appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles relevant for adjudication of complaint under Section 138 of NI Act.
The Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491 at page 422 held as follows :
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or 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. Digitally signed by KOMAL KOMAL Date:
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(iv) 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.
The three-judge bench of the Hon'ble Supreme Court in Rangappa v. S. Mohan, (2010) 11 SCC 441 has ruled that existence of liability itself is a presumption of law. It held as under:
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section
139 of the Act does indeed include the existence of a legally enforceable debt or liability."
The Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri) 236 at page 565 held as follows:
"A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act."
APPRECIATION OF EVIDENCE AND FINDINGS POINT OF DETERMINATION NO. 1:
16. In this case, issuance of post-dated cheque, its presentation and dishonorment are not in dispute, inasmuch as the same have been duly proved on the basis of cogent evidence as well as admitted by the accused.
17. The signature on the cheque in question Ex.C-2 is admitted by the accused. The aforesaid cheque in question was returned Digitally signed by KOMAL KOMAL Date:
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vide return memo bearing Ex.C-3. The legal notice bearing Ex.C- 4 was sent to the accused vide postal receipt bearing Ex.C-5 and Ex.C-6. The tracking receipt Ex.CW1/6 indicates 'item received'.
Although no tracking report is filed on behalf of the complainant but the address mentioned in the bail bond and the address mentioned in the legal demand notice is the same. Thus, the presumption under Section 27 of General Clauses Act can be raised that the legal notice was received by the accused. The plea of the accused regarding the non-receipt of the legal notice is accordingly rejected as being inconsequential.
18. In view of the abovementioned circumstances, the presumptions under sections 139 and 118 NI Act that the cheque in question was for a legally recoverable debt/liability stand activated.
18. Accordingly, the point of determination no.1 is decided in affirmative.
POINT OF DETERMINATION NO. 2:
19. The burden to disprove the existence of legal liability is upon the accused. This may be done by poking holes in the case of the complainant or by leading positive evidence in defence.
20. As far as the defence evidence is concerned, the accused has not preferred to lead defence evidence.
Digitally signed by KOMAL KOMAL Date:
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21. From the reply to notice u/s 251 CrPC and statement u/s 313 CrPC, there is no doubt that the cheque in question belongs to accused and was signed by him. The case of the accused is that the cheque in question was issued as a post-dated cheque to the complainant, on the assurance that complainant will complete the given work within the stipulated time, as the complainant failed to do so the cheque was dishonoured by the accused. The reason for dishonour of cheque in question is 'stop payment'.
22. One of the defence of the accused is that, the complaint is filed through SPA holder and the SPA is exhibited as Ex.C- 1which states that the SPA holder is authorized to file and defend this case in courts of Faridabad, Haryana. Counsel for the accused has put reliance on Church Of Christ Charitable Trust & Edu vs M/S. Ponniamman Educational Trust, Nirav Deepak Modi vs Najoo Behram Bhiwandiwala, Prataprai Trumbaklal Mehta vs Jayant Nemchand Shah, M/S. Shankar Finance & Investments vs State Of A.P., and Smt. Rekha Rana And Ors. vs Smt. Ratnashree Jain. It is settled from these caselaws that power of attorney has to be strictly construed and power of attorney holder cannot go beyond his authorization. For the said reason, it is clear that SPA holder is not authorised to institute and proceed with the case.
23. Complainant had examined another witness CW-2, which had placed on record ledger account maintained by the complainant firm, the ledger is elaborate enough to record the entire business transaction between the complainant and accused.
Digitally signed by KOMALKOMAL Date:
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It is no where indicated through the ledger account that the outstanding liability of the accused is Rs. 9 lacs. The ledger also suggests that payments were made by the accused. The complainant had put reliance on ledger account without raising any particular bill which depicts the outstanding to be paid by the accused as Rs. 9 lacs.
24. Complainant had relied upon invoices as exhibited by CW- 2, there is acknowledgement on invoices Ex.C-9 and ExC-36. Moreover, there is no logo of the complainant on some bills like in Ex.C-31. It is possible that the bills are manipulated and are not genuine.
25. It is not patent that the accused is under legal liability to pay to the complainant, and therefore he has succeeded in discharging the burden of rebutting the statutory presumptions in the instant matter against the complainant.
26. Accordingly, in light of the aforesaid discussion, the point of determination no.2 is decided in affirmative.
Conclusion:
27. In the given overall circumstances, this court is of the view that the accused has been able to rebut the mandatory presumptions of law on the standard of preponderance of probabilities by discrediting the testimony of complainant as well as explaining the circumstances to prove his innocence.
Digitally signed by KOMALKOMAL Date: 2024.05.06 16:50:34 +0530 CT Cases 464338/2016 Page No. 12 of 13 Ms. Kleanair Engineers Vs Ms. Tara Medicare India Pvt. Ltd.
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28. In view of the above discussion, this court is of the considered opinion that the accused has successfully rebutted the presumptions arising against him under provisions of NI Act. Thus, accused no. 01 and 02 are hereby acquitted for the offence punishable under Section 138 NI Act qua the cheque in question in the present case.
ANNOUNCED IN THE OPEN COURT
ON 06.05.2024. Digitally signed
by KOMAL
KOMAL Date:
2024.05.06
16:50:09
+0530
(KOMAL)
MM-08(NI Act),South
Saket/NewDelhi/06.05.2024
Certified that this judgment contains 13 pages and each page bears my Digitally signed signature.
by KOMAL KOMAL Date:
2024.05.06 16:50:02 +0530 (KOMAL) MM-08(NI Act),South Saket/NewDelhi/06.05.2024 CT Cases 464338/2016 Page No. 13 of 13 Ms. Kleanair Engineers Vs Ms. Tara Medicare India Pvt. Ltd.