Ms Shri Krishna Polyurethane ... vs Ms Jyoti Handloom And Mattress And Anr on 8 December, 2023

[Cites 36, Cited by 0]

Delhi District Court

Ms Shri Krishna Polyurethane ... vs Ms Jyoti Handloom And Mattress And Anr on 8 December, 2023

CC No. 518798/2016
CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 1 of 39

IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
CNR DLCT020036742016

CC No. 518798/2016
M/s Shri Krishna Polyurethane Industries Pvt. Ltd.
Through its Director Mr. Deepak Mukim
Having its Registered Office at
E-812, DSIDC Industrial Complex,
Narela, Delhi - 110040 ...... Complainant

Vs.

1. M/s Jyoti Handloom & Mattress
Through its Proprietor
Mr. Surender Shekhawat
Shop No. 1, Khasra No. 23/13, 14
Opp. Bharat Petrol Pump
Main Road,
Sant Nagar, Burari, Delhi 110084
2. Mr. Surender Shekhawat
Proprietor of M/s Jyoti Handloom & Mattress
Balaji Apartment, First Floor
Upkaar Colony, Sant Nagar, Burari
Delhi - 110084 ...... Accused

Date of Institution : 02.05.2016
Offence complained of : s.138 of The Negotiable Instruments
Act,1881

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Plea of the Accused : Not Guilty
Final Order : Convicted
Date of Decision : 08.12.2023

Appearance:
Ms. Namrata Mukim, Ld. Counsel for the Complainant
Sh. DPS Guliyani, Ld. Counsel for the Accused

JUDGEMENT

1. The present Complaint has been filed by the Complainant against the Accused under section 138 Negotiable Instruments Act, 1881.

Factual Matrix

2. The brief facts as alleged by the Complainant in the Complaint are that the Complainant company is registered under the Indian Companies Act and the Complainant is the director of the Complainant company being fully conversant with the facts of the present Complaint whereas the Accused is a proprietorship concern operated by Accused No. 2 2.1 It is also alleged that the Complainant is dealing in the manufacture and sale of polyurethane sheets, blocks and various other products for furniture and automobile industry. Further, it is alleged that in response to the orders placed by the Accused, the Complainant had supplied polyurethane sheets from time-to-time along with maintaining a running statement of account wherein as on 4th of December 2015, a sum of ₹ 79,494 was found outstanding from the side of the Accused.

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Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 3 of 39 2.2 It is alleged that against the said outstanding dues, the Accused issued a cheque bearing number 665374 dated 10th of January 2016 for an amount of ₹ 39,858 and another cheque bearing number 688415 dated 15th of January 2016 for an amount of ₹ 39,636 both drawn on Kangra Cooperative Bank, Burari.

2.3 When the Complainant presented the former cheque through his banker, HDFC Bank, Kashmiri Gate branch, the same was returned dishonoured on account of insufficient funds on 26th of February 2016 wherein the Complainant notified the same to the Accused and the Accused issued the latter cheque with instructions to present both the said cheques, which on presentation were returned dishonoured on account of "payment stopped by the drawer" by the return memos dated 22nd of March 2016. Both the aforesaid cheques are hereinafter referred to as the cheques in question for the purposes of convenience.

2.4 The Complainant thereafter issued a legal demand notice on 4th of April 2016 through counsel calling upon the Accused to pay the said cheque amount within a period of 15 days from receipt thereof. The said notice is averred to have been duly served upon the Accused and it is alleged that the Accused failed to pay the aforesaid cheque amount within the statutory period.

2.5 Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (hereinafter the NI Act) was filed on 2nd of May 2016 by the Complainant, praying for the Accused to be summoned, tried, and Page 3 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 4 of 39 punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.

Proceedings before the Court

3. Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit Ex. CW-1/A wherein the Complainant has affirmed the facts stated in the instant Complaint.

4. Documentary Evidence: To prove the case, the Complainant has relied upon the following documents:

a) True copy of incorporation certificate, Ex. CW1/1.

b) Board resolution in favour of Mr. Deepak Mukim, Ex.

CW1/2 (later de-exhibited and board resolution in favour of Mr. Pramod Gupta exhibited as Ex. CW1/2)

c) Copy of Invoices, Ex. CW1/3 (Colly)

d) Ledger Account, Ex. CW1/4 (Colly)

e) Original cheques bearing no. 665374 and 688415 dated 10th of January 2016 and 15th of September 2016 for a sum of ₹ 39,858 and ₹ 39,636 respectively and both drawn on Kangra cooperative bank, Burari Branch, Ex. CW1/5 & 7.

f) Bank account statement of the Complainant, Ex. CW1/6.

g) Original cheque return memos dated 22nd of March 2016, Ex. CW1/8 (Colly).

h) Office Copy of legal notice dated 4th of April 2018, Ex.

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i) Extract of dealer credentials from department of trade and taxes, Ex. CW1/10.

j) Postal receipts and track report Ex. CW1/11-12 (Colly).

5. Summoning of the Accused: On finding of a prima-facie case against the Accused, the Accused was summoned on 7th of February 2017 where the Accused appeared before the Court on 14th of March 2018.

6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused on 14th of March 2018 to which he pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused had stated that the cheques in question were bearing his signature and they were dishonoured as the Accused had instructed the banker to stop the payment on account of the goods supplied by the Complainant being inferior in nature. Receipt of the legal demand notice was denied by the address was stated to be the correct address. Liability was denied on the ground that the Complainant had supplied defective goods.

7. Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the Complainant. Thereafter, the Complainant was examined as CW1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged. Thereafter, Complainant evidence was closed, and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.

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8. Statement of the Accused: Statement of the Accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 20th of February 2021 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused stated that he used to buy goods from the Complainant and the Complainant did not send the goods to him as per the satisfaction and they were found to be defective. The Accused stated that he had issued the cheque as security for the payment of the same but due to defective goods, he issued stop payment instructions to his banker. The bills exhibited by the Complainant were stated to be referring to the same goods and the Accused stated that he had asked them to change their defective goods but the Complainant did not do so and presented the cheque for encashment. It was stated that one of the cheques regarding some other business transaction which was issued by the Accused was duly encashed and that the Accused was willing to pay the cheque amount to the Complainant if he changes the defective goods and supplies goods of good quality.

9. Defence Evidence: The Accused has examined as DW - 1. thereafter, a separate statement of the Accused to that effect was recorded and defence evidence was closed. The matter was then fixed for final arguments.

10. Final Arguments: Final arguments were advanced by both sides. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused. I have also perused the record.

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11. For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant: -

(a) That a person has drawn a cheque, 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 legally enforceable debt or other liability;

(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(c) That the cheque has been returned by the drawee bank unpaid, for the reason that 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 agreement made with that bank;

(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;

(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice;

11.1. The aforesaid legal requirements are cumulative in nature, i.e. only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.

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s. 139 of the Act provides that the Court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. s.118 of the Act provides inter alia that the Court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.

11.3. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 and s. 118 of the Act mandate the Court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume"

used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary.

11.4. In the case of Hiten P. Dalal v. Bratindranath Banerjee 1, the Hon'ble Supreme Court had occasion to examine the confines of the presumption u/s 139 of the Act, wherein it held as follows:

"22. Because both Sections 138 and 139 (..) "introduce an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused."

(Ibid. at p. 65, para 14.) (...) The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non-

(2001) 6 SCC 16 Page 8 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 9 of 39 existence of the presumed fact.

Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".

(...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).

11.5. Also, in the case of Rangappa v. Sri Mohan 2, it was held that:

"(..)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. (..)

28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities".

(...) As clarified in the citations, the Accused can rely on the materials submitted by the Complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of 2 (2010) 11 SCC 441 Page 9 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 10 of 39 his/her own(...)"(emphasis supplied) 11.6. With regard to the factors taken into account for rebutting the presumption u/s 139 read with s.118 of the Act, the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena 3 assumes importance, wherein it was held that:

"Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. (...) The Accused, by cogent evidence, has to prove the circumstance under which cheques were issued". (emphasis supplied) Appreciation of evidence

12. Now I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence on record satisfies the legal ingredient in question or not.

(a) That a person has drawn a cheque, 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 legally enforceable debt or other liability 12.1.This condition pertains to the issuance of the cheque itself. It is pertinent to note that the Accused, in his notice of accusation has admitted his signature on the cheques in question. Further, the cheques have been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 read with s.118 of the Act, that the cheque was issued in discharge of a legally recoverable debt or 3 CRL. A. No. 1136 Of 2010 Page 10 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 11 of 39 other liability.

12.2.In the case of Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal 4, it was held:

"12. (...) the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. The Court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. (emphasis supplied)"

12.3. Also, in the case of Kumar Exports Vs. Sharma Carpets 5, it was held:

"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.

The Accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of 4 (1999) 3 SCC 35 5 2009 (2) SCC 513 Page 11 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 12 of 39 consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. (...) To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the Complainant. The Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the Complainant, that is, the averments in the Complaint, the case set out in the statutory notice and evidence adduced by the Complainant during the trial. Once such rebuttal evidence is adduced and accepted by the Court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the Complainant's rescue.

(emphasis supplied)"

12.4.The presumption, having been raised against the Accused, it falls upon the Accused to rebut it. The Accused has chosen to do so by cross-examining CW - 1 and by appearing in the defence as DW -

1. Page 12 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 13 of 39 12.5.The defence has adopted a two-pronged strategy wherein at the outset, certain legal aspects of the Complaint are being questioned and secondly, the inconsistencies in the testimony of CW - 1 are being pointed out to buttress the case of the defence.

12.6.The learned counsel for the Accused has vehemently contended that the instant Complaint filed on 2nd of May 2016 is not proved at all and the Complainant Deepak Mukim has not been called in Court. Similarly, he states that certificate of incorporation Ex. CW1/1 and the board resolution Ex. CW1/2 were also not proved by calling the Complainant/director in Court. It is also stated that the application for substitution of AR preferred on 6th of January 2017 was not signed by the Complainant and the wrong affidavit of appeal was filed with the application. It is also stated that the board resolution annexed in support of the said application was signed on 2nd of January 2017 whereas the Complainant is dated 2nd of May 2016. It is also stated that the said application was not proved by calling the Complainant/director in Court and the evidence of the Complainant which were filed with the Complaint and bearing the signature of Deepak Mukim was not proved before the Court.

12.7.To answer the said contentions, it is required briefly recapitulate the events that took place in the course of the proceedings in the instant case. The instant case came to be filed on 2nd of May 2016 and at the initial stage, the said Complaint was accompanied with the pre- summoning affidavit of Sh. Deepak Mukim, stated to be one of the directors of the Complainant along with board resolution dated 21st Page 13 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 14 of 39 of April 2016 in his favour (Ex. CW1/2, later de-exhibited) wherein on 6 of January 2017, an application for substitution of AR came to be filed along with the board resolution dated 2nd of January 2017 in favour of one Mr. Pramod Gupta (later exhibited as Ex. CW1/2). Another similar resolution dated 3rd of January 2017 in favour of Mr. Pramod Gupta is also present on record but the same was not exhibited/relied upon by the Complainant.

12.8.The said application for substitution of AR was allowed and the substituted AR Mr. Pramod Gupta was allowed to file his evidence affidavit and the summoning order dated 7th of February 2017 was passed on the basis of the pre-summoning affidavit of the substituted AR. It is Mr. Pramod Gupta who was eventually examined in support of the case of the Complainant as CW - 1 and his evidence affidavit was re-exhibited, the earlier board resolution in favour of Mr. Deepak Mukim de-exhibited and the resolution in favour of Mr. Pramod Gupta exhibited as Ex. CW1/2. Thereafter, on 16th of July 2022 i.e., at the stage of DE, another application for substitution of AR was moved along with board resolution dated 27th of June 2022 in favour of Mr. Kundan Kumar Singh. The said application was also allowed.

12.9.It must be kept in mind that the instant Complaint has been filed by the payee which happens to be a company. A company or body corporate is a creation of statute and is a juristic person having perpetual succession irrespective of the death, insolvency, resignation, retirement etc. of any natural persons constituting it.

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Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 15 of 39 The said juristic person interacts with the physical world by way of certain authorized natural persons who do acts and things in the name of and on behalf of the body corporate, exercising that authority and agency.

12.10. The defence seems to have mixed up the concept of a juristic person appearing through a natural person with a payee who happens to be a natural person and appears to have regarded the natural person itself as a Complainant/payee whereas the same is not the case. The source of the confusion appears to be in para 1 and 2 of the Complaint wherein, in para 1 the Complainant company is described in its entirety whereas in para 2, it is stated that "the Complainant is the director of the Complainant company and fully conversant with the facts of the present Complaint. The Complainant, Mr. Deepak Mukim...", thereby tending to create a complexion as if Mr. Deepak Mukim is the Complainant/payee. However, reading the Complaint as a whole along with the supporting documents on record is able to dispel all manner of doubt. It is seen that the cheque in question itself has been issued in favour of Sri Krishna Polyurethane Private Limited as the payee and it is this company which is filed the instant case against the drawer, initially through its director Mr. Deepak Mukim.

12.11. It is also seen that even though the pre-summoning evidence affidavit of Mr. Deepak Mukim as AR (who is also one of the directors of the Complainant) is on record along with board resolution Ex. CW1/2 (later de-exhibited) in his favour, the said Page 15 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 16 of 39 person was eventually substituted by Mr. Pramod Kumar pursuant to the application for substitution of AR and the summoning order was passed upon the pre-summoning evidence tendered by the substituted AR alongwith the board resolution dated 2nd of January 2017 (exhibited later as Ex. CW1/2 upon de-exhibition of the previous resolution in favour of Mr. Deepak Mukim).

12.12. It is quite well settled by way of a catena of judgements that a Complaint can be filed by company appearing through its authorized representative. The said aspect already stands well settled by the authoritative pronouncement the case of A.C. Narayanan Vs. State of Maharashtra 6 where the divergence of views expressed in the judgements of M.M.T.C. Ltd. and Anr. vs. Medchl Chemicals and Pharma (P) Ltd. and Anr. 7, and Janki Vashdeo Bhojwani and Anr. vs. Indusind Bank Ltd. and Ors. 8, was considered, reconciled and it was held as follows:

"19) As noticed hereinabove, though Janki Vashdeo Bhojwani 9, relates to powers of Power of Attorney holder under CPC but it was concluded therein that a plaint by a Power of Attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question. In a way, it is an exception to a well settled position that criminal law can be put in motion by anyone [vide Vishwa Mitter 10] and under the Statute, one stranger to transaction in question, namely, legal heir etc., can also carry forward 6 2013 AIR SCW 6807 7 (2002) 1 SCC 234 8 (2005) 2 SCC 217 9 supra 10 Vishwa Mitter v. O.P. Poddar, 1983 4 SCC 701 Page 16 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 17 of 39 the pending criminal Complaint or initiate the criminal action if the original Complainant dies [Vide Ashwin Nanubhai Vyas vs. State of Maharashtra 11]. Keeping in mind various situations like inability as a result of sickness, old age or death or staying abroad of the payee or holder in due course to appear and depose before the Court in order to prove the Complaint, it is permissible for the Power of Attorney holder or for the legal representative(s) to file a Complaint and/or continue with the pending criminal Complaint for and on behalf of payee or holder in due course. However, it is expected that such power of attorney holder or legal representative(s) should have knowledge about the transaction in question so as to able to bring on record the truth of the grievance/offence, otherwise, no criminal justice could be achieved in case payee or holder in due course, is unable to sign, appear or depose as Complainant due the above quoted reasons.

(..)we clarify the position and answer the questions in the following manner:

(i) Filing of Complaint petition under Section 138 of N.I Act through power of attorney is perfectly legal and competent.

(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the Complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.

(iii) It is required by the Complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the Complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case.

(1967) 1 SCR 807 Page 17 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 18 of 39 12.13. A consideration of the aforesaid decision reveals that the general principle that anyone can set the criminal law in motion enunciated in Vishwa Mitter v. O.P. Poddar 12, was departed from and it was held that where a Complaint is filed under section 138 of the NI Act, it must be filed either by the payee or the holder in due course within the meaning of section 142 of the NI Act.

12.14. It was also held therein that a Complaint can also be filed by the power of attorney holder on behalf of the payee/holder in due course but for him to be a competent witness, such holder must have knowledge of the transaction in question and necessary averment to that effect should be present in the Complaint.

12.15. Applying the aforesaid decision to the facts of this case, it is an admitted position that the instant case has been filed by a company. A company being a juristic person and a creation of law, is required to represent itself through a natural person who can appear and depose on its behalf as its agent. Surely a company, when appearing as the Complainant or the Accused in a criminal trial, would be required to be expressly bound by the actions of the natural persons appearing on its behalf. For this purpose, it is necessary that such persons possess and produce express authority in writing on behalf of the company, because otherwise, the company can easily escape the consequences of the trial (both as a Complainant or the Accused) on the ground that the persons representing it were not duly 12 1983 4 SCC 701 Page 18 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 19 of 39 authorized in its behalf. It is in this context that the decision in A.C. Narayanan Vs. State of Maharashtra 13 was passed.

12.16. There is another reason as to why a Complaint filed on behalf of a company without requisite authorization in favour cannot be entertained and that is because a Complaint u/s 138 of the NI Act has to be filed either by the payee or the holder in due course. If such payee or holder in due course is a company, it is required that the person appearing and deposing on its behalf has the requisite authority to prosecute the case on behalf of the payee or holder in due course as its agent and no other Tom, Dick or Harry can go about filing Complaints against the drawer claiming the amount under the cheque on behalf of the company. In this regard, the observations in National Small Industries Corporation Vs. State14 are quite material and are quoted below:

(..)The requirement of section 142 of NI Act that payee should be the Complainant, is met if the Complaint is in the name of the payee. If the payee is a company, necessarily the Complaint should be filed in the name of the company. Section 142 of NI Act does not specify who should represent the company, if a company is the Complainant. A company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power of attorney.

(11)Section 138 NI Act mandates that payee alone, whether a corporeal person or incorporeal person, shall be the Complainant. Section 200 of the Code 13 supra 14 supra Page 19 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 20 of 39 contemplates only a corporeal person being a Complainant. It mandatorily requires the examination of the Complainant and the sworn statement being signed by the Complainant. If section 142 of NI Act and section 200 of the Code are read literally, the result will be : (a) the Complainant should be the payee of the cheque; and (b) the Complainant should be examined before issuing process and the Complainant's signature should be obtained on the deposition. Therefore, if the payee is a company, an incorporeal body, the said incorporeal body can alone be the Complainant. The mandatory requirement of section 200 of the Code is that a Magistrate taking cognizance of an offence on Complaint, shall examine upon oath the Complainant, and that the substance of such examination reduced to writing shall be signed by the Complainant. An incorporeal body can obviously neither give evidence nor sign the deposition. If literal interpretation is applied, it would lead to an impossibility as an incorporeal body is incapable of being examined. In the circumstances, a harmonious and purposive interpretation of section 142 of NI Act and section 200 of the Code becomes necessary. Section 142 only requires that the Complaint should be in the name of the payee. Where the Complainant is a company, who will represent the company and how the company will be represented in such proceedings, is not governed by the Code but by the relevant law relating to companies.

Section 200 of the Code mandatorily requires an examination of the Complainant; and where the Complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. As a result, the company becomes a de jure Complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto Complainant. Thus in every Complaint, where the Complainant is an incorporeal body, there is a Complainant -- de jure, and a Complainant -- de facto.

Page 20 of 39

Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 21 of 39 12.17. Thus, an authorized person or AR is merely a natural person who is representing the payee company in the course of the proceedings. It is also quite well settled that a company can appear through any of its authorized representatives of its choosing and cannot be compelled to appear through any specific person. The Court has to only see that the person appearing before it and being examined as a witness is duly authorized by company and as such is competent to depose on behalf of the company and nothing else.

12.18. Thus, when there is a subsequent board resolution on record authorizing Mr. Pramod Kumar and the earlier pre-summoning evidence of Mr. Deepak Mukim was not relied upon at the stage of taking cognizance and issuance of summons, there was no requirement to call Mr. Deepak Mukim or examine him in Court. Similarly, the objection that the Complainant was filed on 2nd of May 2016 and the board resolution of AR Mr. Pramod Gupta was signed on 2nd of January 2017 also does not hold much water as it is nobody's case that the company was not existing on the date of filing of the case. Merely because the board resolution bears the date subsequent to the date of filing of the Complaint, it would not ipso facto mean that the Complainant company had no authority at any time prior to take relevant action against the drawer.

12.19. Even though the first application for substitution of AR in favour of Mr. Pramod Kumar was allowed and the pre-summoning stage Page 21 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 22 of 39 wherein the Accused did not have any locus standi to object 15, it is seen that the defence took no objection to the subsequent board resolution Ex. CW1/2 and the certificate of incorporation exhibited by CW - 1 in the course of CE on 8th of March 2019 and as such, it does not lie in the mouth of the defence to contend that the said documents were not duly proved or that the signatory was to be called in proof of the same. Objections as to mode of proof must be taken at the initial stage failing which they have to be deemed to be waived 16. The judgement of Sudir Engineering Company vs Nitco Roadways Ltd 17 relied upon by the defence dealt with a materially different situation.

12.20. Further, it must be kept in mind that an application for substitution of AR moved in a case wherein either party to the lis is a company is essentially an application moved by the body corporate to substitute the previous natural person for another natural person which it has now authorised to represent its interests in the concerned case. What is relevant as a document in support of the application is not an affidavit or the phraseology used but the board resolution or any letter conferring authority on the natural person. The objection of the defence that the application itself has not been signed by the Complainant but by the learned counsel and the supporting affidavit uses the word "appeal" are of no significance 15 As no summoning order was passed against him yet 16 See R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami, Appeal (civil) 10585 of 1996 (SC) 17 1995 (34) DRJ 86 Page 22 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 23 of 39 at all when it is seen that the board resolution itself specifically authorized Mr. Pramod Gupta to appear on behalf of the Complainant company and his evidence affidavit specifically discloses that he is fully conversant with the facts of the present Complaint (as opposed to any appeal; in any case nobody is misled).

12.21. The learned counsel for the Accused has also questioned the competence of Mr. Pramod Kumar to depose on behalf of the Complainant. It is stated that CW - 1 cannot give evidence on behalf of the principal as the acts have been done by the principal and he has to step into the witness box. It is also stated that the evidence affidavit of the AR Mr. Pramod Kumar and his testimony is not admissible in law. Lastly, it is stated that owing to the aforesaid reasons, Mr. Pramod Kumar can't stand in the witness box to depose on behalf of Mr. Deepak Mukim (principal).

12.22. The said objection can be dealt with briefly. As the result of the discussion in the preceding paragraphs shall show, it is perfectly legal for a Complaint to be filed to a power of attorney/AR and what is required to be seen by the Court is that the said person must be competent to depose as a witness on behalf of the Complainant i.e., he must be aware of the transaction in question and there must be specific averment in the Complaint as to the awareness of the AR. In the instant matter, the principal is a juristic person i.e., a company and not a natural person i.e., Mr. Deepak Mukim and the board resolution dated 2nd of January 2017 in favour of Mr. Pramod Gupta is not a sub-delegation of authority from Mr. Deepak Mukim to Mr. Page 23 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 24 of 39 Pramod Gupta (as per the suggestion given to CW-1 on 3rd August 2019 by the defence) but is a delegation of authority proceeding from the body corporate, i.e., Shri Krishna Polyurethane Industries Pvt. Ltd. in favour of Mr. Pramod Gupta.

12.23. Merely because Mr. Deepak Mukim has certified the said resolution would not make any difference as the legal character under which the certification was given was that of being the director of the Complainant, which has not been disputed by the defence at any stage and the judgement in John K. Abraham Vs. Simon C. Abraham 18 relied upon by the defence is distinguishable on facts. Similarly, merely because Mr. Deepak Mukim was not called as a witness and the AR was substituted will not mean that relevant evidence was designedly prevented from being brought before the Court. The judgement of Sh. Rajesh Kumar Aggarwal vs Sh. Pavneet Singh 19 & Kalli Ram Vs. State of HP 20 cited on behalf of the defence is not applicable in the present matter and no adverse inference can be drawn.

12.24. The Ld. Counsel for the Accused has stated that the Complaint mentions that the director of the Complainant through whom the Complaint is being filed (i.e., Mr. Deepak Mukim) is fully conversant with the facts of the case but there is no such averment in the board resolution dated 21st of April 2016. The evidence 18 Criminal Appeal No. 2043/2013 (SC) 19 152 (2008) DLT 121 20 1973 SC 2773 Page 24 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 25 of 39 affidavit Ex. CW1/A of Mr. Pramod Gupta also contains similar averments but the same is absent in the board resolution Ex. CW1/2 and it is stated that CW-1 is not competent to depose on the said ground by placing reliance on the judgement of A.C. Narayanan Vs. State of Maharashtra 21.

12.25. It must be remembered that the judgement must not be read as a statute and has to be read in context with the underlying facts and applied to the fact situation obtaining in any other case with necessary adaptation. The superior Courts have time and again stated that the judgement of a Court is not an attempt to device a straitjacket formula of universal applicability, rather to set forth certain guiding principles which serve as lighthouses in the course of navigation through the realm of facts and evidence to reach just conclusion. A narrow and pedantic approach, as suggested by the learned counsel for the Accused has to be eschewed in favour of a pragmatic approach and the matter has to be seen as a whole rather than tripping up on technicalities.

12.26. It cannot be said that merely because a specific averment in terms of the aforesaid judgement is absent in the board resolution though the general averment towards being "empowered to swear affidavit, make statement" is present, the case of the Complainant is to fall completely. It is pertinent to note at this stage that the instant matter is filed by a body corporate who acts through its employees, 21 supra Page 25 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 26 of 39 servants, clerks etc. in the course of its business and it is well-nigh possible that more than multiple people would be having the knowledge of the transaction in question. The matter must also be analyzed from the point of view of the cross-examination of the AR to see if he is otherwise able to in fact depose about the material aspects of the transaction or not 22.

12.27. The testimony of CW - 1 has stood the test of cross-examination save and except the aspects highlighted from the side of the defence which are being discussed in the succeeding paragraphs and the evidence of CW-1, though considered in toto, is not being reproduced here for the sake of brevity.

12.28. At the outset, the learned counsel for the Accused has stated that CW - 1, when under cross examination on 8th of March 2019, is not able to state as to who was the agent of the company responsible for accepting the cheques in question and when were they given to the Complainant. It is stated that subsequently on 3rd of August 2019, CW - 1 has deposed that they might have been delivered to transporter or they might have been sent on their own. It is also stated that CW - 1 has admitted that he was not the one who had telephonically called the Accused and told him about the dishonour but it was someone else. Next, it is stated that on the same date, CW

- 1 later admits the suggestion that the cheques in question were given by the Accused in December.

See TRL Krosaki Refractories Ltd. Vs. SMS Asia Pvt. Ltd. SLP(Crl.) No. 3113/2018 (SC) Page 26 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 27 of 39 12.29. The aforesaid ground is wholly without merit. It was never the case of the Accused that the cheques in question were either given as blank signed or misused by the Complainant after wrongfully coming to the possession. As far back as notice of accusation itself, the Accused has admitted that the cheques in question belong to him and were given duly filled up against supply of material by the Complainant and the same version is reiterated in the statement of Accused and also when appearing as DW - 1. The line of defence of the Accused is that the material supplied was defective and as such stop payment instructions were issued. Even if the contention regarding issuance of postdated/advance security cheques is accepted for the sake of argument, the fact still remains that the Accused has not been able to bring any cogent evidence on record to rebut the existence of crystallized liability on the date of presentation on account of due delivery of goods.

12.30. In addition to the aforesaid, it must be remembered that there is all likelihood that multiple employees in multiple departments of the company would be dealing with multiple parties/clients and as such the failure of CW - 1 to state the name of the person to whom the cheque was handed over or the name of the person who placed the telephonic call is not a material aspect of the transaction and the same can be attributed to lapse of memory as well. Law does not mandate the payee to take consent of the drawer prior to presenting a cheque against due liability. Neither the issuance of the cheques in question duly filled up nor their handing over or presentation or Page 27 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 28 of 39 sequence thereof has been disputed by the Accused in the present case and the aspect of the testimony of CW-1 highlighted by the defence pales into irrelevance.

12.31. The next aspect relied upon by the defence is in regard to the statement of the account Ex. CW1/4 wherein it is stated that the same has not been proved by calling the accountant in Court and even CW - 1 is not able to depose in respect of the entries appearing therein. The said aspect is also not of much relevance to the instant matter. The instant matter is a criminal prosecution u/s 138 of the NI Act and in such a case, the Complainant is entitled to the benefit of the presumption raised against the Accused.

12.32. The production or proof of account books/cash books/ledger is not of much relevance in such a case, as held in DK Chandel Vs. Wockhardt Ltd. 23. Even otherwise, at best, and the reason books of accounts would be relevant but not themselves sufficient to cast liability upon any person as per s.33 of the Indian Evidence Act, 1872. On the other hand, the Accused has duly admitted in his statement u/s 313 r/w s.281 Cr.P.C., the bills exhibited by the Complainant and even when appearing as DW - 1, admitted receipt of the goods. In this backdrop, any entry in the statement of account would scarcely be of any relevance when the facts germane to the matter under enquiry have been admitted by the defence. All in all, CW-1 has been able to depose consistently about the material 23 Crl. App. 132/2020 (SC) Page 28 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 29 of 39 aspects of the transaction and his knowledge cannot be said to be materially defective with regard to any of the important facets. The rest of the cross-examination proceeds solely with regard to the address appearing on the legal demand notice and which aspect shall be dealt with in the succeeding paragraphs under the appropriate heading.

12.33. Accused has, when appearing as DW - 1 beautifully brought down his farcical defence. While admitting to having business dealings with the Complainant from September 2015 of January 2016 and clearing some dues, DW - 1 goes on to state that the cheques in question were returned dishonoured as the Complainant had supplied defective goods in the transaction relating to the cheques in question but on the same date, another cheque bearing number 688404 for ₹ 46,770 was encashed. Even though DW - 1 states that he had informed the manager of the Complainant about the defective goods and the Complainant did not replace them, no independent/documentary evidence is forthcoming in support of the said plea. On the other hand, suggestion was given to CW-1 on 3rd of August 2019 that the Accused had sent a notice complaining about the defective goods even before the dishonour of the cheques, but no such notice is ever brought on record.

12.34. The only notice brought on record from the side of the Accused is a copy of legal notice dated 18th of December 2021 denoted as Mark A which is not even accompanied by any postal receipt etc. To add insult to injury, DW - 1 deposes that the defective goods but Page 29 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 30 of 39 thereafter sold to a "kabadi 24".

12.35. S.41 of the Sale of Goods Act, 1930 enacts that the buyer has the right to examine the goods. But such right has to be exercised within a reasonable time. Similarly, s.43 enacts that the buyer is not bound to return rejected goods, but it is sufficient if he intimates the seller of his refusal. None of these things have been done by the Accused in the present case and DW - 1 admits that the goods were received by the staff and were kept in the godown without first checking them. Even though it is stated that the goods were checked later on (without disclosing any definite timeframe) and that the goods were not checked till handing over of the aforesaid cheques, no inspection report/quality report has been furnished by the Accused detailing the nature of the defect or as to how many articles out of the consignment sent by the Complainant turned out to be defective. A mere blanket statement is made by DW - 1 that the goods are checked whenever the need arises, thereby impliedly admitting that not all goods are liable to be checked, even later on, displaying a shocking lack of diligence.

12.36. Now, what is reasonable opportunity within the meaning of s.41 of the Sale of Goods Act, 1930 is a justiciable term and has reference to the facts and circumstances of each case. In the instant matter, DW - 1 has not able to show any cogent notice/Complaint unequivocally rejecting the goods and asking them to be taken back 24 Scrap dealer Page 30 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 31 of 39 by the Complainant or even any examination/test report indicating the specific defect. Even if Mark A is considered in favour of the Accused, it is seen that the said notice has been sent after retention of the goods for an admitted period of close to 5 years after the delivery.

12.37. Such a long period cannot be said to be a reasonable period for examining the goods or indicating the rejection. It is a matter of record that the goods supplied by the Complainant were intended for use as cushioning on furniture etc. and their retention for 5 long years without communicating any rejection would certainly amount to acceptance within the meaning of s.42 of the Sale of Goods Act, 1930. Moreover, the act of DW - 1 in admittedly disposing of the goods by selling them to a scrap dealer is also inconsistent with the ownership of the seller within the meaning of s.42 of the Act and as such, the aforesaid factors clearly point towards deemed acceptance of the goods by the Accused and not otherwise. In this backdrop, Mark A clearly appears to be an afterthought manufacture to favour the plea of the defence in the defence of the Accused fails to inspire any confidence of the Court. The judgement of K. Prakashan vs P.K. Surenderan 25 cited by the defence actually favours the case of the Complainant.

12.38. The upshot of the above is that the Accused has been unsuccessful in rebutting the initial presumption raised against him and the said 25 Criminal Appeal No. 1410/2007 (SC) Page 31 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 32 of 39 ingredient remains fulfilled as against the Accused.

(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;

12.39. This requirement is satisfied on a perusal of the cheque in question Ex. CW1/5 & 7 which bear date of 10th of January 2016 and 15th of January 2016 respectively and the return memo Ex. CW1/8 which bear the date of 22nd March 2016. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused.

(c) That the cheque has been returned by the drawee bank unpaid, for the reason that 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 agreement made with that bank 12.40. s. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The bank return memos Ex. CW1/8 on record states that the cheque in question have been returned dishonoured for the reason "Payment Stopped by the Drawer". The defence has led no evidence to controvert the same and hence, this ingredient is also fulfilled as against the Accused.

(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information Page 32 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 33 of 39 from the bank regarding the return of the cheque as unpaid 12.41. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/9 to the Accused. The original postal receipts in respect of the same are already on record as Ex. CW1/11 and 12 which indicate due delivery on the Accused. The extract from department of trade and taxes to the effect of address of proprietorship of the Accused is on record as Ex. CW1/10. However, the Accused has denied receiving any legal demand notice in his notice of accusation but has admitted the address appearing therein to be correct. While appearing as DW-1 also, the Accused has admitted the address to be correct but, in his cross- examination, he has changed his stance and stated that the address mentioned on Ex. CW1/9 is incorrect and the address mentioned in Ex. CW1/10 is correct.

12.42. The following two addresses of the Accused appear on the legal demand notice Ex. CW1/9:

(a) M/s Jyoti Handloom & Mattress Through its Proprietor Mr. Surender Shekhawat Shop No. 1, Khasra No. 23/13, 14 Opp. Bharat Petrol Pump Main Road, Sant Nagar, Burari, Delhi 110084

(b) Mr. Surender Shekhawat Proprietor M/s Jyoti Handloom & Mattress Balaji Apartment, First Floor Upkaar Colony, Sant Nagar, Burari Delhi - 110084 Page 33 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 34 of 39 12.43. The following address appears on the extract from department of trade and taxes Ex. CW1/10 (difference in bold italic):

Shop No. Pvt. No. 1, Kh. No. 23/13.14, Ground Floor, Vill Burari, Himgiri Enclave, Village Mukandpur Delhi -

110084 12.44. The following address of the Accused appears on the bail bonds (difference in bold italic)::

FF-6, Balaji Apartment, Upkar Colony, Burari, Delhi - 110084 12.45. section 27 of the General Clauses Act provides that service of any document sent by post, shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document unless the contrary is proved. A like presumption is also carved out under section 114 Indian Evidence Act, 1872 which when applied to communications sent by post, enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. A bare denial by the Accused in his notice of accusation and in his examination u/s 313 read with s.281 Cr.P.C. would not assume the character of defence evidence, as held in V.S. Yadav v. Reena 26.

supra Page 34 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 35 of 39 12.46. In this backdrop, it must be seen as to what is the scope and effect of Ex. CW1/10 and the address appearing on the bail bonds. So far as Ex. CW1/10 is concerned, the defence has taken a contrary stance whereby on the one hand, DW-1 has admitted the address appearing on Ex. CW1/10 to be correct whereas on the other hand, it is contended that Ex. CW1/10 is inadmissible sans a requisite certificate u/s 65B of the Indian Evidence Act, 1872. Regardless of whichever way the controversy is decided, the fact remains that "Himgiri Enclave, Village Mukandpur" present additionally on Ex. CW1/10 and not mentioned in the legal demand notice is a minor and inconsequential detail which has not affected the service of notice and even the summons of the case have been served upon the Accused at the same address as that mentioned in the legal demand notice.

12.47. Moreover, the invoices Ex. CW1/3 under which the Accused has admitted receipt of material, also note the address of the proprietorship as identical to the one appearing on the legal demand notice. So far as the address appearing on the bail bonds are concerned, the only difference is that of "FF-6" instead of First Floor. Neither the Accused has brought any cogent proof in support of the address appearing on the bail bonds nor any evidence has been led that the said omission was so substantial so as to hold that the postman/Accused was in fact misled. Needless to say, the summons of the case were duly received by the Accused at this address as well. The contents of the internet generated track reports Page 35 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 36 of 39 are objected due to lack of certificate u/s 65B of the Indian Evidence Act, 1872 but it is seen that even otherwise, the material supplied under the invoices and even the summons of the case were duly received by the Accused at the same address as that appearing on the legal demand notice which go to establish that the address appearing on the notice is substantially correct and on the other hand the Accused has failed to establish that the minor discrepancy has caused misinformation/wrong delivery. No postal witness has been examined by the defence 12.48. Thus, the discrepancy (if any) is not a material one to dislodge the presumption u/s 27 of the General Clauses Act or s. 114 of the Indian Evidence Act, 1872. Hence, the Accused has not been able to rebut the presumption of service of legal demand notice. Resultantly, the benefit of the presumption accrues in the favour of the Complainant and this ingredient is fulfilled as against the Accused. So far as the address appearing on Ex. CW1/11 postal receipt is concerned, it is a known fact of which judicial notice can be taken that for the sake of brevity and to reduce the size of the receipt, a truncated address of the parties appears on the postal receipt and the objection from the side of the defence that the same is incomplete cannot be sustained. The judgement of Tony Jacob Vs. Thomas 27 is distinguishable on facts.

12.49. The next objection from the side of the defence is with respect to 27 Crl. A. No. 705-706/1997 (SC) Page 36 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 37 of 39 the statement of CW-1 that he had authorized his advocate to issue legal demand notice which was sent on 4th of April 2016 and it is contended that the board resolution in favour of CW-1 was executed on 2nd January 2017, i.e., much later than that of the legal demand notice and as such, the notice has been sent without authority. The said submission again suffers from the vice of misconception and adopting a hyper technical approach. A legal demand notice is an intimation of the dishonour of the cheque coupled with a specific demand of the cheque amount to be paid within the statutory period. The superior Courts have held that the same must be read as a whole and any minor inconsistency/irregularity disregarded. The legal demand notice was sent on behalf of the company and not the AR personally. The same is bearing the signature of the advocate of the Complainant in token authentication. It must also be recalled that even de hors the board resolution dated 21st of April 2016, Mr. Deepak Mukim is also the director of the Complainant company and has executed Vakalatnama in favour of the same advocate. Even if it be taken for the sake of argument that no specific authority is present on record in favour of Mr. Deepak Mukim or any other AR on the date of issuance of legal demand notice, the fact remains that it has been unequivocally issued on behalf of the Complainant company and not otherwise and the subsequent conduct of the Complainant company in not objecting to or otherwise recanting can be regarded as deemed ratification of the acts of its agent.

Page 37 of 39

(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice 12.50. In the instant case, the Accused has denied receiving legal demand notice, both in the notice of accusation u/s 251 Cr.P.C. and when appearing as DW-1.

12.51. In C.C.Alavi Haji vs Palapetty Muhammad 28 it was held by the Hon'ble Supreme Court:

"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a Complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the Court in respect of the Complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of Complaint with the summons) and, therefore, the Complaint is liable to be rejected. 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 G.C. Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation."

12.52. Hence, regardless of the said averment in respect of non-receipt of legal notice, it was open to the Accused to make the payment due 28 (2007) 6 SCC 555 Page 38 of 39 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 518798/2016 CNR. DLCT020036742016 M/s Shri Krishna Polyurethane V/s M/s Jyoti Handloom Page 39 of 39 under the cheque within 15 days of service of summons of the instant case. However, the Accused has failed so to do, on the ground that he does not owe any liability towards the Complainant. Hence, this ingredient stands fulfilled as against the Accused.

Decision

13. Before proceeding to give the final verdict, this Court deems it fit to bring on record its gratitude to both Ld. Counsel for their able assistance throughout.

14. As all the ingredients of the offence are cumulatively satisfied against the Accused, the Accused Surender Shekhawat is hereby Convicted of the offence u/s 138 of the Negotiable Instruments Act, 1881.

VISVESH                                                     Digitally signed by VISVESH
                                                            Date: 2023.12.08 11:03:13 +05'30'
ANNOUNCED IN OPEN                                                          (VISVESH)
COURT ON 08.12.2023                                                MM, NI ACT-06, CENTRAL
                                                                      TIS HAZARI COURTS,
                                                                             DELHI




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