Delhi District Court
Noida Security Printers Pvt. Ltd. vs . Aggarwal Merchants Pvt. Ltd. Etc. Page ... on 3 August, 2016
IN THE COURT OF HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 06, NDD,
PATIALA HOUSE COURTS, NEW DELHI.
Noida Security Printers Pvt. Ltd. ....................Complainant
Versus
Aggarwal Merchants Pvt. Ltd. etc. ....................Accused
C.C.No.261/01/12 dated 13.07.1999
PS - Connaught Place
Under Section 138 of N. I. Act, 1881.
a) Sl. No. of the case : 43721/2016
b) Alleged date of commission of offence : 06.06.1999 Approximately
c) Name of the complainant : Noida Security Printers Pvt. Ltd.
Office at K - 9, Connaught Circus,
New Delhi also at W - 18 & 19,
Sector - XI, Noida, Uttar Pradesh.
d) Name of the accused : Tarun Aggarwal
Office at 4/5, Kalkaji Extension,
New Delhi - 110 0019.
e) Offence complained of : Under Section 138 of N. I. Act, 1881
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : August 3, 2016
i) Brief
statement of the reasons for the decision :
1. Vide this judgment, I shall dispose off complaint for offence punishable
under Section 138 of The Negotiable Instruments Act, 1881 filed by complainant
company Noida Security Printers Private Limited through its earlier Authorized
Representative (hereinafter referred to as AR) Sh. Shankar Joshi against accused
persons namely Aggarwal Merchants Pvt. Ltd. (hereinafter referred to as accused
Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.1 of 15
no.01), Tarun Aggarwal (hereinafter referred to as accused no.02) and M/s Maa
Durga Agency (Taj Group) (hereinafter referred to as accused no.03).
PRESUMMONING EVIDENCE AND NOTICE
2. Presummoning evidence was lead by the complainant company and
after hearing the Ld. Counsel for complainant, accused persons were summoned for
offence punishable under Section 138 of The Negotiable Instruments Act, 1881 vide
order dated 16.07.2001. After appearance of accused persons, it was ensured that
copies of complaint have been supplied. The proceedings against accused no.03 were
dropped by the complainant on 21.07.2005. Ld. Predecessor Court choose to put
notice only to accused no.02 for offence punishable under Section 138 of The
Negotiable Instruments Act, 1881 vide order dated 26.06.2006 to which he pleaded
not guilty and claimed trial and thereafter, matter was fixed for complainant evidence.
POST NOTICE EVIDENCE
3. During course of proceedings, Sh. V. K. Chibber, present AR of the
complainant company was substituted as new AR of the complainant company in
place of earlier one. Sh. V. K. Chibber was examined as CW1. He tendered his
affidavit as examinationinchief of postsummoning evidence wherein in gist, he
deposed that he is Manager Sales of the complainant company and has been
authorized vide resolution Ex.CW1/1 to depose and to do everything necessary in this
matter. Complainant company is engaged in business of security printing, printing of
lottery tickets and its incorporation certificate being Ex.CW1/2. In year around 1997,
accused persons no.01 and 02 vide communication dated 08.09.1997 Ex.CW1/3
Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.2 of 15
undertook to get valid orders from accused no.03 for lottery tickets to be printed by
complainant. Accused no.01 and 02 also stood as surety on behalf of accused no.03
and guaranteed payment of cheque in question issued by them stating that its payment
would not be stopped for any reason whatsoever. Complainant executed various
orders of accused persons, however, accused no.03 failed to fulfill its obligations.
Vide communication dated 14.09.1998 Ex.CW1/4, accused no.01 and 02
acknowledged the dues of the complainant, agreed to liquidate the outstanding dues of
the complainant, but failed and neglected to do so. The cheque in question Ex.CW1/5
was issued by the accused no.01 and 02 for and on behalf of accused no.03 as
guarantee for payment on behalf of accused no.03 if it fails to make payment. The
complainant presented the cheque, but was returned dishonored for reasons "Funds
Insufficient" vide memo Ex.CW1/6. Complainant issued legal demand notice
Ex.CW1/7 and sent it vide postal receipt Ex.CW1/7A. The complainant received
back post Ex.CW1/8 on 26.05.1999 with the endorsement "Refused". It was further
deposed that accused persons failed to make payment of cheque amount despite
service of legal demand notice and further cheque in question was issued by accused
no.01 and 02 towards partial payment of outstanding dues of accused no.03. CW1
was examined, crossexamined and was discharged.
4. CW2 Sh. Devender Kumar, Assistant Ahlmad has proved and exhibited
written statement filed by accused no.01 and 02 in civil suit bearing
C.C.No.261/01/12 titled as "Noida Security Printers Pvt. Ltd. Vs. M/s Maa Durga
Agency (Taj Group) (old suit no.3880/2002) as Ex.CW2/1. CW2 was not cross
Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.3 of 15
examined despite opportunity given and was discharged.
5. Postsummoning evidence was closed on 16.11.2015.
STATEMENT OF ACCUSED
6. The statement of accused no.02 was recorded under Section 313 of The
Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal
Procedure, 1973 separately. Incriminating evidence was put to him. Accused person
denied all the allegations and stated that he is innocent and has been falsely
implicated in this case. He has stated that he never stood as surety for accused no.03
and he issued cheque in question to complainant after signing and without filling the
name of payee, date and other particulars on behalf of accused no.03 as security. The
cheque in question was presented without any information and authorization.
Accused opted not to lead evidence in his defence, therefore, matter was fixed for
final arguments.
7. I have heard Ld. Counsels for both the sides and I have also perused the
entire record of the case file and evidence on record.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
8. To bring home conviction for offence punishable under Section 138 of
The Negotiable Instruments Act, 1881, the complainant is obliged to prove :
(a) The cheque was drawn/issued by the accused person to the
complainant on an account maintained by him/her/it with the bank for
discharge, in whole or in part, of any debt or other liability.
Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.4 of 15
(b) The cheque was presented to the bank within a period of six
months or within period of its validity.
(c) The cheque so presented for encashment was dishonored.
(d) The payee/complainant of the cheque issued a Legal Demand
Notice within 30 days from the receipt of information from the bank regarding
dishonourment of the cheque.
(e) The drawer of the cheque failed to make the payment within
15 days of receipt of aforesaid Legal Demand Notice.
(f) The complaint was presented within 30 days after the expiry
of above 15 days.
9. At the outset, it is pertinent to mention here that it is not in dispute that
cheque in question bears the signatures of accused no.02 and was issued on behalf of
accused no.01. It got dishonored as per the case of complainant. The complainant
issued notice to the accused persons and further payment was not made to the
complainant even after notice, so there is no need for consideration on said aspects.
10.1(a) First major contention which has been raised by the defence is that the
complaint in question is time barred, has not been presented within stipulated
statutory time period and since no application of condonation of delay was ever filed,
delay was never condoned, so cognizance is bad in this matter. The defence has
relied upon judgment of Hon'ble High Court of Delhi in matter of "Ashwani Kumar
Vs. Lt. Col. Parthojit Chaudhary" (2007) 136 DLT 241 and upon judgment of
Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.5 of 15
Hon'ble Supreme Court of India in matter of "Ekon Antri Vs. Rome Industries"
2014 (2) SCC 769 in support of its contentions.
10.1(b) On the other hand, it is contention of the complainant side that the
complaint was filed within period of limitation from the date on which complainant
received information of refusal of notice by the accused persons. The complainant
has relied upon judgment of Hon'ble High Court of Kerala in matter of
"Gopalakrishnan Vs. Noorjahan" ILR 2011 (3) Kerala and upon judgment of
Hon'ble Supreme Court of India in matter of "K. Bhaskaran Vs. S. V. Balan" AIR
1999 SC 3762.
10.2 In matter of "Ashwani Kumar Julka Vs. Lt. Col. Parthojit Choudhary
(Retd.)" (2007) 136 DLT 241, Hon'ble High Court of Delhi has held :
"13. It is clear from the above that 15 days' period is to be reckoned from the date when a
notice is returned by the sendee as unclaimed. A conjoint reading of the two judgments of the Supreme Court
in SIL Import USA (supra) and K. Bhaskaran (supra) would clearly establish that 15 days' period is to be
counted from the date when the notice is received by the drawer of the cheque and not when intimation of
receipt of this notice is received by the sender of the notice. In case the notice is actually received by the
addressee (drawer of the cheque) 15 days' period would be reckoned from that date. In those cases, where it is
a case of deemed service, namely, where the notice is despatched at correct address but returned by the
addressee and not accepted, it would be from the date when the addressee returned the notice as unclaimed.
Applying these principles, it is clear that as per the endorsement on the envelope, registered envelope was
lastly taken by the postman at the residential address of the accused on 29.11.1996 and at his official address
on 28.11.1996 and thereafter made his endorsement to the effect that on repeatedly going to him the receiver
(addressee) does not meet, hence, being returned. The period of 15 days cannot be calculated from 30.11.1996
when envelopes were received back by the respondent/complainant. If the limitation is to be counted from
28.11.1996/29.11.1996, the last date for filing the complaint would be 13/14.1.1997. The complaint was filed on 16.1.1997, which would be beyond the period limitation, though by two days only. Unfortunately, at that time there was no provision for condonation of delay. The result may be harsh to the complainant but that cannot be held in view of the legal position laid down by the Supreme Court and extracted above. The Courts would generally be liberal in condoning the period of limitation, particularly in such cases. But in the absence of provision authorising the Court to condone the delay, the Court would be helpless. Upshot of the discussion would be that the complaint filed by the respondent is timebarred. This petition accordingly succeeds. The summoning orders are quashed and the complaint is dismissed as timebarred. No costs."
In matter of "Subodh S. Salaskar Vs. Jayprakash M. Shah & Anr."
Criminal Appeal No.1190 of 2008 decided on 01.08.2008, Hon'ble Supreme Court Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.6 of 15 of India has held : "24. Ex facie, it was barred by limitation. No application for condonation of delay was filed. No application for condonation of delay was otherwise maintainable. The provisions of the Act being special in nature, in terms thereof the jurisdiction of the Court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto. The Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause
(b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the Court to condone the delay. It is, therefore, a substantive provision and not a procedural one.................................... If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is wellsettled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation." 10.3 In view of the above cited judgments in immediate above paragraph, it is clear that the limitation has to be reckoned from the date of service/refusal of notice upon the accused/by the accused and not from the date on which the complainant received information of service or refusal as the case may be. The judgment of Hon'ble High Court of Kerala cited by the complainant side on the said issue is only of persuasive value and further since there is a binding precedent as discussed above on the said issue of Hon'ble High Court of Delhi, therefore, this Court is bound by the same. The judgment of Hon'ble Supreme Court of India in matter of "K. Bhaskaran Vs. S. V. Balan" AIR 1999 SC 3762 which has been relied upon by defence as to general preposition of reckoning of period of limitation was also discussed by Hon'ble High Court of Delhi in its said decision. In view of the same, if we now consider the date of refusal of notice by the accused side then same is 22.05.1999 whereas the complaint was filed only on 10.07.1999. So, it was filed after delay of around 3 - 4 days. The amendment to Section 142 (b) of The Negotiable Instruments Act, 1881 thereby inserting proviso providing liberty to the Courts to condone the delay in filing of complaint was made only in the year 2002 and it came Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.7 of 15 into force only on 06.02.2003. Hence, on the date of filing of complaint, there was even no provision to condone the delay in filing of complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. It is not a disputed fact that no notice was issued to the accused side of condonation of delay in filing of complaint. It is well settled preposition of law that condonation of delay without giving notice to the accused side is bad in law and the notice has to be mandatorily given to the accused side before condoning delay in filing complaint. Reference can be made to the judgment of Hon'ble High Court of Delhi in matter of "Dinesh Vs. M/s Apsom Infotex Ltd." decided on 29.03.2011 specifically qua complaints of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 and upon judgment of Hon'ble High Court of Delhi in matter of "Shankar Vs. C.B.I." 2004 Cr. L. J 733 (Delhi) and of Hon'ble Supreme Court of India in matter of "Ram Chandra Rao Vs. State of Karnataka" AIR 2002 SC 1856 in general. Moreover, since the present matter pertains to year 1999 when there was no provision for condoning delay in filing of complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881, the amendment to Section 142 (b) of The Negotiable Instruments Act, 1881 which was made later on is not applicable to present case as per above cited judgment of "Subodh S. Salaskar Vs. Jayprakash M. Shah & Anr.", therefore, the delay in filing of the complaint cannot be condoned now at this stage. In view of these discussions, this Court is of the opinion that the complaint shall fail for being filed after the statutory period of limitation. Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.8 of 15 11.1(a) Another contention which has been raised by the defence is that there was no consideration for presentment of cheque in question even as per the best case of the complainant. As per document Ex.CW1/3 filed and relied upon by complainant, the cheque in question could have been presented only if the liability of accused no.03 had exceeded Rs.15,00,000/ whereas it is the case of the complainant itself that on the date of presentment, the liability of accused no.03 was around Rs.11,00,000/, hence complainant has misused the cheque in question. It is also contention of defence that nothing has been brought on record by complainant side to show that even liability of Rs.5,00,000/ of accused no.03 existed towards the complainant on the date of presentment of cheque in question. Complainant has failed to produce any order being placed by accused no.03 or any invoice of goods supplied. It is contention of the defence that complainant has miserably failed to prove any debt or liability of accused no.03 and accused side has been able to raise probable defence that no liability existed on date of presentment of cheque in question.
11.1(b) On the other hand, it is the contention of the complainant that the cheque in question was given by the present accused no.01 and 02 for the discharge of liability of accused no.03 as they stood as guarantors for it. It is further contention of the complainant side that the liability of accused persons no.01 and 02 is coextensive with the liability of accused no.03, therefore, accused persons are liable to make the payment to the complainant of cheque in question. It is the contention of the complainant that therefore there existed legally enforceable debt and liability of the Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.9 of 15 present accused persons on the date of presentment of cheque in question and accused persons have not been able to rebut the presumption of consideration in this matter. 11.2 Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under : "Section 118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumption shall be made:
(a) of consideration 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, was indorsed, negotiated or transferred for consideration;........."
Section 139 of The Negotiable Instruments Act, 1881 provides as under : "Section 139 Presumption in favour of holder. 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 matter of "Krishna Janardhan Bhat Vs. Dattatraya G. Hegde"
(2008) 4 SCC 54, Hon'ble Supreme Court of India has observed : "32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different."
"34. Furthermore, whereas prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of the accused is 'preponderance of probabilities'. 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 he relies."
In matter of "Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm" (2008) 7 SCC 655, Hon'ble Supreme Court of India (though it was a civil matter related to promissory note, but is relevant to refer herein) has held : "17. Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the nonexistence of consideration by brining on record such facts and circumstances which would lead the court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal." Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.10 of 15 In matter of "Bharat Barrel & Drum Mfg. Co. V. Amin Chand Payrelal" (1999) 3 SCC 35, Hon'ble Supreme Court of India (though it was also a civil matter related to promissory note, but is relevant to refer herein) has held : "12. Upon consideration of various judgments as noted hereinabove, 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 nonexistence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under the law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. 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. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
In matter of "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441 which is a three bench decision, Hon'ble Supreme Court of India while discussing above said provisions, judgments and other case law on the point has held : "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. To the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant".
"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard or proof." Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.11 of 15 "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". Therefore, if the accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. 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 his/her own."
So, precisely there is initial presumption of legally enforceable debt or liability against the accused person(s), but same is rebutable. The standard of proof for rebuttal is preponderance of probabilities. Accused side can rely on materials submitted by complainant, can rely upon circumstances to show nonexistence of consideration or it being improbable and need not adduce evidence of his/her own for the same.
11.3 It is the case of complainant side that accused persons no.01 and 02 were guarantors of accused no.03. Accused persons no.01 and 02 had guaranteed payment vide Ex.CW1/3 on behalf of accused no.03 for the work done by the complainant and gave post dated cheque in question assuring that its payment would not be stopped for any reason whatsoever. It is also the case of the complainant that the accused persons no.01 and 02 acknowledged their liability vide letter Ex.CW1/4. Now, if we go through document Ex.CW1/3, it is clear from clause '3' of the said document that accused no.01 stood as surety for payment on behalf of accused no.01. It is also stipulated vide its paragraph no.06 that the accused no.01 shall give post dated cheque of Rs.5,00,000/ in favour of complainant company which could be encashed to ensure that the outstanding against accused no.03 does not exceed the stipulated amount and accused no.01 guarantees that the cheque in question will not Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.12 of 15 be stopped from being encashed for any reason whatsoever if same is encashed to keep the outstanding against accused no.03 within the stipulated limits of Rs.16,00,000/.
11.4 At this stage, it will now be relevant to discuss some of the provisions of The Indian Contract Act, 1872 which governs the rules of guarantee provided in Chapter VIII of the said act under the heading of Indemnity and Guarantee.
Section 126 of The Indian Contract Act, 1881 provides as under : "Section 126 : Contract of guarantee", "surety", "principal debtor" and "creditor" A "contract of guarantee" is a contract to perform the promise, or discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the "surety", the person in respect of whose default the guarantee is given is called the "principal debtor", and the person to whom the guarantee is given is called the "creditor". A guarantee may be either oral or written."
Section 127 of The Indian Contract Act, 1881 provides as under : "Section 127 : Consideration for guarantee - Anything done, or any promise made, for the benefit of the principal debtor, may be a sufficient consideration to the surety for giving the guarantee."
Section 128 of The Indian Contract Act, 1881 provides as under : "Section 128 : Surety's liability - The liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided by the contract." 13.3 In view of above discussed provisions governing contracts of guarantee, it is clear that generally liability of surety in coextensive with principle debtor, however, where a contract provides otherwise, the liability of the surety would run according to contract between all sides. As per Ex.CW1/3, cheque in question of Rs.5,00,000/ which was given as post date cheque by accused no.01 and 02 could have been encahsed only if the liability of the principal debtor accused no.03 have exceeded stipulated limits of Rs.16,00,000/ to ensure that the liability/outstanding amount remains within said limit. Now, if we go through notice Ex.CW1/7 of the Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.13 of 15 complainant, the outstanding amount has been mentioned as Rs.11,15,000/ at the time of presentment of cheque in question. Hence, in given circumstances, it could be said that presentment of cheque in question by the complainant was in violation of contract of guarantee entered into between all sides and cheque in question was presented without there being any conditions validating its presentment as per contract between all sides. Now even if, we ignore the same and proceed further to consider the 2nd limb of arguments by defence and its counter arguments by complainant side then CW1 has admitted in his crossexamination that they have not filed on record even a single invoice issued by the complainant to accused no.03. They have also not filed on record any of the challan vide which the goods were received by accused no.03. They have not filed a single document showing any dealing with the accused no.03. It was also admitted by CW1 in his cross examination that complainant could not have printed the lottery tickets without any authorization letter. CW1 has further admitted in his crossexamination that he cannot tell the value of dealings between the complainant and accused no.03. It was suggested by the defence that the complainant has not filed on record any challan, invoice etc. on record as no dealing whatsoever took place between the complainant company and accused no.03. In totality of circumstances, accused has been able to raise probable defence that no legally enforceable debt or liability of the accused existed towards the complainant. The onus was therefore shifted upon the complainant that cheque in question was given for legally enforceable debt or liability, but, it has failed to prove it as a matter of fact, hence prosecution should fail Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.14 of 15 on that count also. In totality of circumstances, accused is therefore, entitled to benefit of doubt in this matter.
12. Though many other arguments and contentions have been raised by both sides, but any discussions and decision upon them would be futile academic exercise in view of the above findings. In view of above discussions, accused person is entitled to acquittal in this matter.
FINAL ORDER
15. In view of the aforesaid discussions, accused namely Tarun Aggarwal is hereby acquitted for offence punishable under under Section 138 of The Negotiable Instruments Act, 1881.
Announced in the open Court on August 03, 2016.
(HARVINDER SINGH) M.M.03/PHC (NDD), New Delhi/03.08.2016 Noida Security Printers Pvt. Ltd. Vs. Aggarwal Merchants Pvt. Ltd. etc. Page No.15 of 15