Delhi District Court
4 vs . on 24 August, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR METROPOLITAN
MAGISTRATE1 (EAST) KARKARDOOMA COURTS, DELHI
In the matter of:
M/s Shiv Shakti Enterprises
Vs.
Gurdayal Shyam etc.
C. C. No.4830/07
under section: 138 N.I. Act
PS: Bhajan Pura
JUDGMENT
1. The serial number of the case : 4830/07
2. The date of institution : 29.03.2004
3. Name of the complainant : M/s Shiv Shakti Enterprises
Through its Proprietor
Ms. Reenu Sharma,
C12/312, Yamuna Vihar,
Delhi53.
4. The name, parentage 1. M/s Gurdayal Shyamlal (P)
and residence of accused : Ltd.,
54, Mile Stone, Delhi Mathura
Road, Village: Alahapur, Tehsil
Palwal, District Faridabad,
Haryana.
2. Mr. Rajesh Kumar, Director,
M/s Gurdayal Shyamlal (P)
Ltd.,
54, Mile Stone, Delhi Mathura
Road, Village: Alahapur, Tehsil
Palwal, District Faridabad,
Haryana.
Also at:
Page no. 1 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07
2
Mr. Rajesh Kumar, Director,
M/s Gurdayal Shyamlal (P)
Ltd.,
4854, Kata Subhash,
Chandni Chowk,
Delhi110006.
Also at:
Mr. Rajesh Kumar, Director,
M/s Gurdayal Shyamlal (P)
Ltd.,
H. No. 440, Sector15A,
Faridabad.
5. Offence complained of : Under section 138 N.I. Act
6. Plea of the accused : Pleaded not guilty
7. Final Order : Convicted accused No. 1 & 2
8. Final argument heard/ : 01.08.2012
Case reserved for Judgment
9. Date of such Judgment : 24.08.2012
1. As per the complainant, the chain of facts unfolded in the following manner. Complaint has been filed by M/s Shiv Shakti Enterprises, a proprietary concern concern, through its proprietor, against accused No.1 company and its two directors, accused No.2 & 3. Accused No.2, being the signatory of the cheques in question, and he along with accused No.3, being the directors of accused No.1 company, are responsible to the company for the conduct of the business and therefore are jointly and severally liable to be prosecuted and punished for the Page no. 2 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 3 offences committed by company. Complainant was having regular business transactions with the accused No.1 company and at the request and representation of it, the complainant supplied various goods from time to time as per the specifications and requirements and in partial discharge of its liability, accused No. 1, through accused No.2, issued cheque No. 014105 dated 29.12.2003 and Cheque No. 014106 dated 12.01.2004, both for Rs.50,000/ and both drawn on IDBI Bank, in favour of the complainant on account payment, which on presentation were dishonoured because of the reason "account closed" and despite service of legal notice dated 13.02.2004 on accused persons, they failed to take steps to discharge the liability and as such have committed an offence punishable under section 138/141 of the Act .
2. After recording presummoning evidence, prima facie case against the accused persons was made out under section 138/141 of the Act and consequently, summons were issued against them and thereafter, when accused persons put their appearance, substance of accusation in the form of notice under section 251 Code of Criminal Procedure, 1973 (Cr.P.C.) was served and explained to them who pleaded not guilty and claimed trial.
Page no. 3 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 4
3. In post summoning complainant evidence, complainant has examined four witnesses, namely, proprietor Renu Sharma as CW1; ٍSanjay Arora as CW2; Rajesh Kumar as CW3; K. L. Sharma as CW4.
4. Proprietor of complainant, CW1, reiterated the facts mentioned in the complaint by way of her affidavit.
5. CW2, Sanjay Arora, clerk from Khatri cooperative Bank, brought the statement of account in respect of dishonoured cheques Ex. CW1/A and CW1/B and the account opening form is Ex. CW2/C and copy of return memo is Ex. CW2/D and CW2/E.
6. Sh. Rajesh Kumar, brought the authority letter dated 23.04.2007 and same is Ex. CW3/1 and statement of accused company Ex. CW3/2. Further he deposed that entries are bracketed with blue ink (Ex. CW1/B1 to CW1/B3) which were issued from his bank.
7. Sh. K.L. Sharma, CW4, Taxation Inspector exhibited C Forms/Declarations under The Central Sales Tax pertaining to sale and purchase of goods between the parties as CW4/1 and CW4/2.
Page no. 4 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 5
8. Accused Rajesh Kumar, Director of M/s Gurdayal Shyamlal Pvt. Ltd., was examined under section 313 read with section 281 Cr.P.C., wherein it was stated by him that the chques in question are the stolen and forged property and no cheque was ever issued in favour of complainant for any amount for any date. It is also stated that they never purchased the goods from the complainant against the cheques in question and complainant witnesses have deposed falsely just to black mail them and to extort money in collusion with the other firm M/s Mahalaxmi Fabrics.
9. Accused persons opted to lead defence evidence and examined six witnesses namely, Sh. Sanjay Sharma as DW1; Sayyad Sarfaraj Ahmed as DW2; Deepak Kumar as DW3; P. K. Das as CW4; Ravi Seth as DW5 and Sandeep Aggarwal as DW6.
10. DW1 Sh. Sanjay Sharma, testified that the accused company had sent eight blank cheques (serial no. 14103 to 14110) to him at M. P., in November/December 2003 and same were returned to accused company within a week.
11. DW2, Sayyad Sarfaraz Ahemed filed his report in respect of signatures and handwritings on the cheques in question and same is marked as Ex. DW2/A and supporting 30 photographs Page no. 5 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 6 and negatives and same are marked as Ex. DW2/B (colly).
12. DW3, Deepak Kumar brought the case file no. CS349/09 titled as Renu Sharma Vs. M/s Gurdyal Shyamlal Pvt. Ltd. and same is Ex. DW3/1.
13. DW4, P. K. Das, brought the summoned record and photocopy of certificate of the bank Ex. DW4/1, Statement of account from 01.03.2004 to 31.03.2004 Ex. DW4/2 and photocopy of cheque bearing no. 679365 dated 20.03.2004 for Rs. 2 lacs Ex. DW4/3.
14. DW5, Ravi Seth, Clerk, Khatri Cooperative Urban Bank Ltd., brought the summoned record of M/s Shiv Shakti Enterprises having account bearing no. CA/2664 and photocopy of statement of account of said enterprises from 01.03.2004 to 31.3.2004 and same is Ex. DW5/1.
15. DW6, Sandeep Aggarwal, brought outward challan having number 1900512731 and same is Ex. DW6/1 and the counter filed is Ex. DW6/2.
16. I have heard Sh. Rajneesh Gaur Learned Counsel for complainant and Sh. Dilpreet Singh for accused no. 1 and 2 and perused the record carefully. Learned Counsel for the Page no. 6 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 7 complainant has submitted that the complainant has proved its case against the accused beyond reasonable doubts, therefore, both the accused persons may be convicted. Learned Counsel for the accused has submitted that present complaint has been filed in the name of proprietary concern and in the eyes of law proprietary concern firm has no legal entity for existence and it is only the proprietor who can sue or be sued in his name and propreitorship firm can neither sue nor be sued in its name even, through the proprietor; that the complaint has been filed without any cause of action as after the issuance of legal notice and prior to filing of the complaint the accused persons have returned goods amounting to Rs. 190380/ on 26.03.2004 and a sum of Rs. 2.00 lakh was given to the complainant in full and final satisfaction of the outstanding and these amount are not reflected in neither the complaint or any of the statement of accounts or documents placed on record by the complainant; that said amount have also not been acknowledged in her examination in chief and therefore, both the accused persons may be acquitted. Written submission has also been filed on behalf of accused persons.
17. Complaint has been filed by the proprietary concern through its proprietor Ms. Renu Sharma. In this regard, the defence of the accused is that complaint has been filed by M/s Page no. 7 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 8 Shiv Shakti Enterprises which is proprietary concern and as per law complaint cannot be filed by the proprietary concern concern and same should have been filed by the proprietor of the said proprietary concern. In this regard, Ld. Counsel for the accused persons has relied upon the decision Raghu Lakshminarayanan (supra). In M/s. Shankar Finance & Investments Vs. State of Andhra Pardesh & Ors. Criminal Appeal No. 1449 of 2003. Hon'ble Supreme Court has held at para no. 9 that where the payee is a proprietary concern, the complaint can be filed :(i) by the proprietary concern, describing himself as the sole proprietor of the 'payee'; (ii) the proprietary concern, describing itself as a sole proprietary concern, represented by its sole proprietor; and
(iii) the proprietor or the proprietary concern represented by the attorney holder under a power of attorney executed by the sole proprietor. This view has been reiterated by Hon'ble Supreme Court in Milind Shripad Chandurkar Vs. Kalim M. Khan & Anr. Criminal Appeal No. 643 of 2011. Hence, complaint can be filed proprietary concern through its proprietor. In the present case, complaint has been filed by proprietary concern through its proprietor Ms. Reena Sharma and same is permissible in the law and hence, defence of the accused is unsustainable.
18. Complainant has deposed that accused no. 1 is a company and accused no. 2 & 3 being the directors and accused Page no. 8 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 9 no. 2 also being the signatory of the cheques, are responsible to the company to the conduct the business and incharge of the day today affairs of the accused no. 1 company; that complainant was having regular business transactions with accused no. 1 company and maintaining regular and current account with respect to all the transactions between the parties; that at the request and representation of accused no. 1 company, complainant had supplied various goods from time to time as per specifications and requirement of the accused no.1 company; that towards partial discharge of abovesaid liability, accused n o. 1 through accused no. 2 issued the two cheques bearing no. 014105 Ex. CW1/A1 and 014106 Ex. CW1/A2. In respect of liability, defence of the accused is that after the issuance of the legal notice and prior to the filing of the complaints, the accused persons had returned the goods amounting to Rs.1,90,380/ on 26.03.2004 and a sum of Rs. 2,00,000/ was given to the complainant in full and final satisfaction of the outstanding and these amount are not reflected in either the complaint, or any of the statement of accounts or documents placed on record by the complainant and hence the cheques in dispute are without consideration. Accused persons have changed their defences in the present case. Accused Rajesh Kumar, in his statement under section 313 Cr.P.C., has taken defence that no such cheques were ever issued to the complainant and the said cheques are the Page no. 9 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 10 stolen property; that no cheques were issued in favour of complainant for any amount, for any name or for any date; that all the cheques are forged documents; that he never purchased the goods from the complainant against the said cheques and the complaint is bogus and false.
Under section 118 of N.I. Act, until the contrary is proved, there shall be presumptions that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration. Hence, there is presumption of consideration in respect of negotiable instrument.
Further under section 139 of the N.I. Act, 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. In Rangappa Vs. Shri Mohan, Criminal Appeal No. 1020 of 2010, Hon'ble Supreme Court has held that under section 139 of N.I. Act, there are presumption in favour of the holder of a cheque that there was a legally enforceable debt and that the cheque was drawn for the discharge in whole or in part of any debt or any other liability which presupposes a legally enforceable debt.
So far as return of the goods by the accused to the Page no. 10 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 11 complainant are concerned, the complainant has stated in his cross examination that the goods were supplied for Rs. 8 lacs in the month of February 2004 to accused no.1 and out of which approximately 50% goods were returned by accused no.1. It is clear from the case of complainant that there were regular business transactions between the complainant and accused no. 1 company and complainant was maintaining regular and current account with respect to all transactions between them and at the request of accused no.1 company, complainant supplied various goods from time to time as per specifications and requirements of the accused no.1 company. At one stage, accused raised defence to the effect that cheques were stolen property and same were not issued to the complainant but on another stage, they raised defence that half of the goods were returned to the complainant. In respect of stolen cheques, accused has examined Sh. Sanjay Sharma as DW1 who has deposed that the accused firm has sent eight blank cheques bearing no. 14103 to 14110 but he sent the cheques back to the accused persons within one week through Madhur Courier Service. This witness could not tell as to whether accused firm received the said cheques or not. No witness from the said courier service has been examined by the accused to show that said cheques were delivered to the accused firm. Case of the accused is that the cheques in question are stolen property. Page no. 11 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 12 Accused firm had not lodged any FIR etc. in respect of cheques if they were stolen. Further, during cross examination of CW1, it was suggested to the witness that the complainant made the polish with M/s Maha Laxmi Fabric and purchased the said cheque from said Maha Laxmi Fabric. This suggestion was denied by the complainant. The witness of accused (DW1) himself has deposed that the accused had issued the cheque to its firm but same was returned back to the accused company through courier service. Hence, at one stage, accused raised the defence that cheque was stolen by the complainant but at other stage, he takes the defence that cheques were purchased by the complainant from M/s Maha Laxmi Fabrics. Complainant has categorically deposed in his evidence that at the request and representation of accused no.1 company, complainant had supplied various goods from time to time to the accused no.1 company and towards partial discharge of abovesaid liability, the accused no.1 through accused no.2 issued the cheques in question in favour of the complainant as on account payment. Accused persons had examined handwriting expert Sayyed Sarfaraz Ahmed as DW2 but Ld. Counsel for the accused during the course of arguments has submitted that he is not relying upon the report of handwriting expert. Even otherwise, handwriting expert had admitted in his cross examination that accused no. 2 never gave the specimen handwriting in his Page no. 12 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 13 presence and the counsel for the accused gave the specimen handwriting and he do not know if the same is of accused no. 2 and accused no. 3. This being the case, when specimen handwriting of the accused no. 2 is not proved to be in his own handwriting beyond any doubt, the handwriting expert report cannot be relied upon. Said cheques have been proved as Ex. CW1/A1A2 by the complainant. Complainant by examining Sh. K. L. Sharma, Taxation Inspector, has proved that Ex. DW2/A1 and Ex. DW2/A2 were issued to accused company and same were entered into register of issue of Cform and copy of the same has been proved as Ex. CW4/1 and Ex. CW4/2.
In view of the above, it can be said that defence of the accused in respect of the cheques being without consideration is not sustainable; that the complainant has proved on record that cheques in questions Ex. CW1/A1A2 were issued by the accused no.1 company through its director accused no. 2 for discharge of its liability.
19. Complainant has deposed that said cheques in questions were presented but same were dishonoured by the bankers of the accused for the reason "account closed". Complainant has also examined Sanjay Arora, Clerk from Khatri Cooperative Bank, Krishna Nagar, Delhi, and has proved statement of accused in respect of dishonoured cheques as Ex. Page no. 13 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 14 CW1/A1, CW1/A2. From this evidence it has been proved that cheque in question were presented for encahsment but same were returned unpaid for the reason "Account Closed".
20. Complainant has also proved that the legal notice dated 14.05.2004 was served upon the accused but despite service of the notice, the accused persons have not taken any steps to liquidate their liability. Notice was sent through postal receipts Ex. CW1/D (colly.) and returned envelops have been marked as Ex. CW1/E (colly.). Hence, it has been proved by the complainant that legal notice Ex. CW1/C was served upon the accused persons.
21. On 16.05.2008, Ld. Predecessor of this court had passed judgment and convicted accused no. 1 and 2 for the offence under section 138 NI Act and order on sentence was passed on 22.05.2008 but accused no. 3 Ms. Seema Demla was acquitted. Thereafter, appeal was preferred by the accused no. 1 and 2 before Hon'ble Court of session and vide order dated 18.02.2012, the appeal was remanded back to this court by setting aside the judgment and order on sentence with the directions that Ld. Trial Court shall taken into consideration the evidence led by the accused/appellants in pursuance of order dated 20.10.2011 and shall rehear the arguments of the parties Page no. 14 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 15 and then passed a fresh judgment in the case. Vide order dated 20.10.2011, Ld. Court of Sessions had allowed the application of the accused persons under section 391 r/w 311 Cr.P.C. and accused persons were permitted to reexamine the witnesses as mentioned in the application. After that accused persons have examined only one witness namely Sandeep Aggarwal as DW6. In my view, by examining said additional witness accused could not prove his defence on record.
22. In view of above discussion, I am of the view that complainant has proved his case against the accused no. 1 and 2 beyond reasonable doubts for the offence under section 138 NI Act. Hence, accused no. 1 and 2 are convicted for the offence under section 138 N.I. Act.
Announced in the open court (Sanjeev Kumar) On 24th Day of August, 2012 Metropolitan Magistrate1 (East) (total fifteen pages) Karkardooma Courts, Delhi Page no. 15 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 16 CC No. 4830/07 PS : Bhajan Pura U/s. 138 N. I. Act 06.09.2012 ORDER ON THE POINT OF SENTENCE Present: Complainant alongwith counsel.
Accused/Convict Rajesh Kumar on bail for himself and on bahelf of accused no. 1 with Counsel Sh. Bhupesh Saini. Heard on the point of sentence. It is urged by the complainant that maximum sentence may be awarded to him as case is pending for the last eight years.
On the other hand, it is stated by Ld. counsel for convict that convict is not previously convict and having responsibility of his parents, one wife and three children, and he is the only bread winner of his family, therefore, lenient view may kindly be taken.
Considering the facts and circumstances of the case, and the fact that cheques were issued in February, 2004 convict company is sentenced to pay fine of Rs. 5,000/. Accused no. 2 Rajesh Kumar is sentenced to simple imprisonment for one year. Further, convict is directed to pay compensation of Rs. 2,00,000/ to complainant. In default of payment of compensation, convict no. 2 Rajesh Kumar shall further undergo to simple imprisonment for six month.
At this stage, application for bail of the accused filed u/s. 389 Page no. 16 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07 17 2 of the Cr.P.C. Heard arguments on this application. Ld. Counsel for accused submitted that accused intends to present an appeal and therefore, bail may kindly be granted. Accused is admitted to bail till 05.10.2012 on furnishing personal bond in the sum of Rs. 10,000/ with one surety in the like amount. Bail bond furnished and accepted till 05.10.2012. Fine of Rs.5000/ paid.
Copy of judgment and order be given to the accused free of cost.
File be consigned to Record Room.
Announced in the open court (Sanjeev Kumar) th On 06 Day, of September, 2012 Metropolitan Magistrate1 (East) Karkardooma Courts, Delhi Page no. 17 of 15 Shiv Shakti Ent. Vs. Gurdayal Shyam etc.; CC No. 4830/07