Delhi District Court
K. K. Sehgal vs . Vijay Khanna Cc No. 2274/1 1/ 10 on 30 June, 2011
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No. 2274/1
Sh. K. K. Sehgal,
Prop. Of M/s. Dhani Ram Charan Dass Jewellers
At shop No. 1220, Chandni Chowk,
New Delhi-110006.
.......Complainant
Versus
Sh. Vijay Khanna,
Prop. Of M/s. Vijay Khanna & Sons,
Add.: N-9/B-1, First Floor,
Opposite Surasa Nursing Home,
Dilshad Garden, New Delhi-110095. .........Accused
Date of Institution : 11.05.2010
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 30.06.2011
Date of Decision : 30.06.2011
Final Order : Acquitted/ Held not guilty.
K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 1/ 10
Judgment:
Vide this judgment, I shall dispose of the present complaint filed u/s 138
N.I. Act. Before going further, it is necessary to dwell upon the brief facts of the
case.
Brief Facts:
1. It is alleged by the complainant that he supplied two gold chains, two diamond rings and one pair Kante estimated value of Rs.1,05,000/- in the month of August, 2009 to the accused. It is further alleged by the complainant that accused agreed to sale the goods on commission basis. When the complainant approached the accused and demanded the money, accused avoided liability on one pretext or the other following which complainant lodged one complaint with the police station Chandni Chowk on 24.11.2009.
2. It is further alleged by the complainant that on filing of police complaint, accused felt sorry and assured the payment as earliest as possible and in view of the same accused issued the post dated cheque bearing no. 407104 dated 07.03.2010 for a sum of Rs. 1,05,808/- drawn on Union Bank of India, Branch Sarrafa Bazar, Delhi-110006 which is Ex.CW1/2. When the complainant presented the above said cheque in his bank the same returned back unpaid with the remarks "rejected" vide returning memo dated 15.03.2010. On the request of the accused complainant re-presented the said cheque for encashment on 16.03.2010 but the same again returned back unpaid with the K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 2/ 10 remarks "rejected" vide returning memo dated 19.03.2010 which is Ex.CW1/4.
3. Accused failed to make the payment following which complainant sent legal demand notice to the accused on 06.04.2010 which is Ex.CW1/5 by way of speed post which is Ex.CW1/6 and UPC which is Ex.CW1/7. Accused failed to make the payment within the stipulated period after receiving the notice. Hence, this complaint is filed.
4. Complainant filed his pre-summoning evidence. Considering the same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused was summoned u/s 138 NI Act. On his appearance, the accused was granted bail on furnishing bail bonds and thereafter, the notice u/s 251 Cr. P. C stating substance of accusation was served upon him on 21.12.2010 to which he pleaded not guilty and claimed trial.
Complainant Evidence:
5. Complainant stepped into the witness box as CW-1 and tendered his evidence by way of an affidavit Ex.CW-1/A whereby complainant reiterated the same facts as that mentioned in his complaint.
Statement of accused:
6. In his statement u/s 313 Cr.PC r/w u/s 281 Cr.PC, accused has stated K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 3/ 10 that the cheque in question bears my signatures but the particulars have not been filled up by me and he issued the same to the complainant for repayment of the loan of Rs.10,000/- advanced by the complainant 18 years ago. He further stated that the has already paid the amount to the complainant but the cheque was not returned by the complainant giving the reason that it is misplaced and will be returned as and when discovered. He further denied any liability with respect to cheque in question towards the complainant and does not wish to lead defence evidence.
Reasons for Decision:
7. Before proceeding further, I would like to reproduce Section 139 of NI Act which says that "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". This presumption lies in favour of the complainant. Once the accused discharges the initial burden of proving its defence the onus shifts back to the complainant and thereafter the presumption under law does not again come in favour of the complainant and he has to prove its case beyond reasonable doubt.
8. Accused has raised a contention that cheque in question was never issued in discharge of any legal debt or liability rather the same was issued in blank though duly signed to the complainant as a security against the loan K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 4/ 10 borrowed from the complainant for a sum of Rs.10,000/- 18 years ago. The cheque was issued as security and the payment was made in cash but the cheque was never returned by the complainant stating the reasons of its being misplaced. On the other hand, complainant argued that accused issued the cheque in discharge of legal liability towards the complainant with respect to sale of jewellery items. Complainant has relied upon the judgment passed by Hon'ble High court of Delhi in a case titled as Raj Kumar Bhati & Ors Vs. Sher Singh Saini 2011 (2) LRC 313 (Del) which says that plea of accused that loan repaid by the accused in cash without obtaining receipt can not be believed without adducing any evidence.
9. In order to demolish the case of the complainant, accused established some vital points while cross examining the complainant and pointed out some material infirmities and contradictions in the cross examination of the complainant.
Infirmities in the statement/ version of the complainant:
(i). Complainant admitted in his cross examination that transaction which is the subject matter of the case has not been disclosed in his income tax as well as his sale tax.
Accused has relied upon a judgment passed by Hon'ble Bombay High court in a case titled as Sanjay Mishra Vs. Kanishka Kapoor @ Nikki K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 5/ 10 & Anr. 2009(3) Civil Court Cases 563 (Bombay) which says that liability to repay unaccounted cash amount is not a legally recoverable liability.
(ii). Complainant admitted in his cross examination that he handed over the jewellery items without taking any receiving or without preparing the voucher.
(iii). Complainant further stated that there is no permanent address of the accused and he is always found in market here and there. An important question arises that how a person who is dealing in Jewellery items for last 50 years could hand over the jewellery items to person who does not have any permanent address. That too without executing any written document in the form of receipt or voucher. This aspect makes the version of complainant highly improbable and difficult to be believed.
(iv). Complainant admits that he does not maintained any stock register in his shop and at the same time admits that every shop keeper required to maintained the stock register of jewellery items and the sale transactions.
Contradiction in the statement of the complainant in his cross examination as compared to the affidavit filed by him:
(i). Complainant further admitted that he has not placed any K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 6/ 10 documentary proof to show that accused works as a commission agent.
Whereas the complainant has alleged in his complaint that accused is a commission agent.
(ii). Complainant himself admitted that he has sent the legal demand notice to the accused at the wrong address.
It is argued by the Ld. counsel for the accused that once the complainant has admitted that he has sent the legal demand notice to the accused at the wrong address, it is established that accused has never been served with the legal demand notice which is the essential ingredient for an offence u/s 138 NI Act. Therefore, it is proved that no cause of action has ever arisen against the accused. This contention of the accused stands unrebutted in view of the admission of the complainant.
10. Accused has further brought out one material contradiction in the statement of the complainant in his cross examination. In his cross examination complainant stated that "I have drawn the bill around 1 ½ months after the goods have been supplied" whereas in his affidavit as well as his complaint in para no.1 complainant has stated that the goods were supplied to the accused in the month of August, 2009. Now, if we count 45 days back from the date of bill i.e. 07.01.2010 the tentative date will come out in November, 2009. The above contradictory statement given by the complainant clearly shows that there is some big flaw which transpires doubt regarding the occurrence of any K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 7/ 10 such transaction between the parties.
11. Accused has further contended that although while making a contradictory statement in his cross examination the complainant volunteered that he has shown the transaction in the sale tax returns but he failed to produce the document bearing the details of the above said bill bearing no. 34 dated 07.01.2010 which was allegedly drawn in the name of accused. It is further pointed out by the accused that the complainant himself admitted that detail of the said bill has not been even mentioned in his vat receipts whereas it is the duty of every businessman to pay vat and disclose each and every transaction.
12. It is further argued by the accused that complainant admitted in his cross examination that copy of bill no. 34 does not bears the signature of the accused. It is argued by the accused that bill is fabricated. As per the normal course of business whenever a bill is drawn and material is supplied the signature of the purchaser is taken on the carbon copy/ second copy of the bill which are absent on the bill alleged by the complainant. Complainant has failed to prove the authencity of bill and allegation of accused that bill is fabricated stands unrebutted.
13. Keeping in view all the infirmities and material contradictions in the statement made by the complainant, a strong doubt has been formed in the K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 8/ 10 story of the complainant. The allegations made by the complainant becomes baseless and without any proof in view of the material infirmities/ contradictions in his version at different point of time. In a criminal trial, complainant has to stand on its own legs and has to prove its case beyond reasonable doubts. However, in cases pertaining section 138 NI Act, once the execution on the cheque is proved the presumption u/s 118 & 139 of NI Act comes in favour of the complainant and the burden shifts on the accused to rebut the presumption and discharge the burden of proof. However, the scale on which it is to proved is preponderance of probabilities and not a strong proof and it was held in judgment passed by Hon'ble Supreme Court of India in case title Ranagappa Vs. Sri Mohan Criminal Appeal No. 1020 of 2010 the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that Court must either believe the defence to exist or consider its existence to be reasonably probable.
14. To raise a probable defence it is not required that accused should lead defence evidence rather he can establish its defence by cross examining the complainant and demolishing its case. Once the accused has raised a probable defence on scale of preponderance of probabilities the presumption u/s 139 stands rebutted and the onus again shift back to the complainant to prove its case beyond reasonable doubts. By bringing out material infirmities and material contradictions in the version of complainant the accused has been successful in demolishing the stand of the complainant. K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 9/ 10
Decision:
15. I have gone through the material placed on record, written arguments filed by the Ld. counsels and oral arguments advanced at length by Ld. Counsels on behalf of both the parties. In view of the above discussion and detailed analysis of the evidence led by the parties, this court is of the view that accused has successfully rebutted the presumption and raised a probable defence which can be believed by this court.
16. It is also proved in the present case that notice was not served upon the accused short falling of the legal requirement for an offence u/s 138 of NI Act. Secondly, complainant has failed to conclusively establish that the cheque in question was issued for discharge of legally recoverable debt/ liability.
17. As the prosecution has failed to prove its case beyond reasonable doubt the accused is entitled to be given benefit of doubt. He is therefore, acquitted of the offence u/s 138 NI Act.
Announced today in the (Vishal Pahuja)
open court on 30.06.2011 MM NI ACT (WEST),DELHI
30.06.2011
K. K. Sehgal vs. Vijay Khanna CC No. 2274/1 10/ 10