Delhi District Court
Cnr. Dlct020118622018 Ishmeet Kaur vs Aman Kapoor Page 1 Of 34 on 30 November, 2022
CC No. 7824/2018
CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 1 of 34
IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
CNR DLCT020118622018
CC No. 7824/2018
Mrs. Ishmeet Kaur
Prop of M/s H.S. Tapes
(Through GPA Sh. Rahul Sehgal)
Gali No. 17, Chandan Vihar
A-2 Block, West Sant Nagar,
Vill. Burari, Delhi -84 ...... Complainant
Vs.
Sh. Aman Kapoor
House No. 6, Shyam Bhawan
Faiz Bazar, behind Golcha Cinema
Daryaganj
New Delhi ...... Accused
Date of Institution : 31.03.2018
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the Accused : Not Guilty
Final Order : Acquitted
Date of Decision : 30.11.2022
Arguments in this matter were advanced by:
Sh. A.K. Dhupar, Ld. Counsel for the Complainant
Sh. Triloki Pandit, Ld. Counsel for the Accused
Page 1 of 34
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CC No. 7824/2018
CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 2 of 34
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 is the proprietor of M/s H.S. Tapes and running the business of manufacturing/trading of insulation tape. It is alleged that on 12th of February 2018, the Accused had placed an order for 50 bags of insulation tape at the rate of ₹ 2240 per bag and the Complainant had supplied and delivered the said items to the Accused and raised invoice No. HST/049 dated 12th of April 2018 for an amount of ₹ 132,160 which includes ₹ 112,000 as price of goods and IGST at the rate of 18% that is ₹ 20,160. It is also alleged that out of the said bill amount, the Accused had paid a sum of ₹ 30,160 in cash and issued a cheque bearing number 078140 dated 26th of December 2017 for the remaining amount, i.e., ₹ 102,000 drawn on Union Bank of India, Ansari Road New Delhi - 110002.
2.1 It is also alleged that at the time of issuing the above said cheque, the Accused assured the Complainant that since only the said cheque was with him, with the date previously filed by the Accused and therefore requested the Complainant to accept the said cheque for the remaining bill payment of ₹ 102,000 with already filled up date of 26th of December 2017.
Page 2 of 34Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 3 of 34 2.2 Further, it is alleged that thereafter the Accused placed another order on 13th of February 2018 with the Complainant for purchase of 100 bags of insulation tape and accordingly the Complainant had supplied and delivered the same and raised invoice No. HST/050 dated 13th of February 2018 for an amount of ₹ 264,320, i.e., ₹ 224,000 as price of goods and IGST at the rate of 18% amounting to ₹ 40,320. It is alleged that out of this bill amount of ₹ 264,320, the Accused had paid ₹ 30,000 in cash to the Complainant and assured to make the payment of the balance Bill amount of ₹ 234,320.
2.3 When the Complainant presented the said cheque, hereinafter referred to as the cheque in question towards the due amount of invoice No. HST/049 through his banker i.e., ICICI bank, Burari branch, the same was returned unpaid by the banker of the Accused vide returning memo dated 16th of February 2018 with the remarks "Funds Insufficient".
2.4 The Complainant thereafter issued a legal demand notice on 7th of March 2018 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 alleged to have been deemed to be 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 31st of March 2018 by the Complainant, praying for the Accused to be summoned, tried, and Page 3 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 4 of 34 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) Copy of GPA executed in favour of Sh. Rahul Sehgal (AR), Ex. CW1/A (OSR).
b) Invoice HST/049 dated 12th of February 2018 along with delivery challan, Ex. CW1/B-C.
c) Original cheque bearing no. 078140 dated 26th of December 2017 for a sum of ₹ 102,000 drawn on Union Bank of India, Ansari Road Branch, Ex. CW1/D.
d) Original cheque return memo dated 16th of February 2018 Ex. CW1/E.
e) Ledger account statement for the period 01st of February 2018 till 28th of February 2018, Ex. CW1/F.
f) Office Copy of legal notice dated 7th of March 2018 Ex.
CW1/G.
g) Postal receipts and returned envelopes bearing remarks "addressee is not available despite repeated visits" Ex.
Page 4 of 34Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 5 of 34 CW1/H & I (Colly).
5. Summoning of the Accused: On finding of a prima-facie case against the Accused, the Accused was summoned on 13th of April 2018 where the Accused appeared before the Court on 22nd of November 2019
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused on 27th of November 2019 to which he pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused had stated that he had asked the Complainant for samples of PVC tapes and the son/employee of the Complainant (exact relation not known) had come to his office along with samples around two years back. Subsequently, after 2 - 3 days the Accused stated that he had placed an order with the said person who had asked the Accused for the cheque and he had given the cheque in question duly filled up and signed by (sic - to) the above said person. Thereafter, the Accused stated that he did not receive any goods from the Complainant and that he did not owe any liability to the Complainant. Receipt of the legal demand notice was denied by the Accused but the address appearing therein was admitted to be the correct address.
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 CW-1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged. Thereafter, Complainant evidence Page 5 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 6 of 34 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.
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 18th of December 2020 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused stated that the cheque in question was duly filled by him in all particulars. The Accused denied any knowledge about the dishonour of the cheque and stated that the return memo bears the number of his cheque. Ex. CW1/B and C were denied as erroneous and it was stated that no goods were received therein. Ex. CW1/F was stated to be matter of record being maintained by the Complainant. Receipt of legal demand notice was denied but the address appearing therein was admitted as correct. It was stated by the Accused that he had received an intimation of the instant case when the summons of the case was served upon him and that he did not owe any liability towards the Complainant. The Accused stated that he had placed the order for electrical tapes on sample basis when the supplier of the Complainant had come to his office. He then stated that the samples were given to him and after 3 - 4 days he had talked to the Complainant about placing of order to which the Complainant had asked him to make the advance payment. It is stated that it is for this advance payment, the cheque in question was issued in December 2017. It was also stated that the Complainant asked for 10 days' time for delivery of goods but the same was on the condition that the Page 6 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 7 of 34 cheque in question has to be cleared first and only then the delivery can commence. Lastly, it was stated that the cheque in question was given as security and has no goods were supplied to the Accused, the Complainant has wrongfully presented the cheque and deposed against the Accused falsely.
9. Defence Evidence: The Accused has examined himself 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.
Legal Position
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 Page 7 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 8 of 34 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.
11.2. The provision of s.138 is buttressed by s.139 and s.118 of the Act.
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 Page 8 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 9 of 34 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- 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 1 (2001) 6 SCC 16 Page 9 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 10 of 34 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 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 2 (2010) 11 SCC 441 3 CRL. A. No. 1136 Of 2010 Page 10 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 11 of 34
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 cheque in question. Further, the cheque has 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 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 4 (1999) 3 SCC 35 Page 11 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 12 of 34 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 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 5 2009 (2) SCC 513 Page 12 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 13 of 34 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 deposing in his defence as DW-1.
12.5.The defence of the Accused, encapsulated in a nutshell is that the cheque in question was given duly filled up and signed to the representative of the Complainant pursuant to an order placed for electrical tapes but the said goods were never delivered to the Accused. It is also the defence of the Accused that due to such non- delivery, the cheque in question remained an advance/security cheque which has been presented without there being any underlying liability whatsoever accruing against the Accused on the date of presentation. In addition to the aforesaid, certain other points were adverted to by the Ld. Counsel for the Accused at the time of final arguments which are discussed in the succeeding paragraphs.
12.6.The first ground of attack to the case of the Complainant is that Ex.
CW1/B bears the heading "Duplicate" which has not been Page 13 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 14 of 34 explained by the Complainant. Secondly, it is stated that neither Ex. CW1/B nor Ex. CW1/C bear any acknowledgement of receipt by the Accused. Thirdly, it is stated that both these documents have been signed by CW-1 who has claimed himself to be only an 'authorized signatory' in his testimony but has signed as proprietor under the seal "For H.S. Tapes ________ Prop." (sic Proprietor). Relying on the aforesaid, it is stated that the documents itself are unreliable. It is submitted that the clinching fact which is subject matter of intense controversy is the proof of delivery of goods and it is stated that once the finger of suspicion is raised against the documents purporting to effect alleged delivery of goods, the presumption raised against the Accused would stand rebutted.
12.7.Per contra, the Ld. Counsel for the Complainant has stated that Ex.
CW1/B is a duplicate copy because the original is meant for the consignee, i.e., the Accused and the consignor only retains a duplicate copy. He has also stated that the delivery challan Ex. CW1/C bears the name of one Rakesh, who had accepted delivery of goods on behalf of the Accused, being his driver who had come to collect them. Lastly, he states that as per the GPA filed alongwith the instant case, Ex. CW1/A, CW - 1 has been empowered by clause 7 "to do any other acts or deeds which are not specifically mentioned herein above and is deemed fit and him (sic things) which shall be ratified by the executant unconditionally".
12.8.To examine these contentions, Ex. CW1/B & C must be analyzed in detail along with the oral testimony of CW-1 on record vis-à-vis Page 14 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 15 of 34 the same. In this regard, CW - 1 admits that the invoice, Ex. CW1/B does not bear any signature/acknowledgement by the Accused but states the delivery challan, Ex. CW1/C had been signed by one alleged Rakesh, the driver of the Accused who had come to his office for taking delivery of the goods. CW - 1 then goes on to admit that he had not taken any copy of driving license or identity proof of the said driver and states that the driver had visited his shop in order for delivery of goods while carrying a duly filled cheque.
12.9.When specifically quizzed about his authority to sign on behalf of the proprietor, CW - 1 states that the bills and challans are prepared by his accountant and are either signed by himself or his accountant. He discloses the name of his accountant as one Mr. Rajender. CW
- 1 admits that neither Ex. CW1/C nor Ex. CW1/B had been signed by Mr. Rajender and the same have been signed by him (CW-1) since he has authority to do so and that in this challan and bill, there is no option of "prepared by and signed by". Further, CW - 1 states that he signs upon bills and challans in his capacity as an authorised signatory and not as a proprietor while at the same time admits that the seal affixed upon Ex. CW1/B & C is that of the proprietor but it is he (CW-1) who has signed in the middle of the impression. He then states that there is no separate seal of the authorised signatory.
12.10. The aspects discussed in the preceding paragraph are sufficient to cast preliminary aspersions on the case of the Complainant and raise a modicum of suspicion on these documents. While the version of Page 15 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 16 of 34 the Complainant and the explanation as to why Ex. CW1/B is in duplicate can be believed, the fact remains that Ex. CW1/B, Ex. CW1/C and F are not derived from any independent record. They are documents which have been prepared by the Complainant out of a record upon which the Complainant maintains and would ordinarily have complete dominion to create/modify or destroy. Even it be regarded that the said documents have been properly prepared and derived out of records kept in the ordinary course of business, the said documents, though relevant to the matter at hand, would not be ipso facto sufficient 6 to fasten liability upon the Accused.
12.11. Ex. CW1/B & C have also admittedly been signed by CW-1, who has signed in the column of proprietor while deposing himself (as CW-1) to be the authorized signatory of the proprietor in his cross- examination. No reasonable explanation whatsoever is forthcoming as to how and by what authority, CW - 1 has signed in the capacity of the proprietor. The 'General Power of Attorney', Ex. CW1/A annexed along with the present Complaint contains preliminary recitals about the transaction in question and the inability of the Complainant, who is the proprietor and the payee of the cheque in question, to appear in Court. It is also seen that the recitals as well as conferment of authority are in respect claims against the Accused 6 See s. 34 of the Indian Evidence Act:. Entries in books of account when relevant. -- 1[Entries in books of account, including those maintained in an electronic from], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability Page 16 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 17 of 34 arising out of invoices bearing Nos. HST/049 and HST/050 only. The claim under invoice No. HST/049 is the foundation of the instant case.
12.12. The authority bestowed upon CW - 1 is particular and defined in clauses 1 to 6. When the said clauses are considered and juxtaposed with clause 7, clause 7 cannot be interpreted so as to give CW - 1 so wide and expansive authority to do "any other acts or deeds which are not specifically mentioned herein and are deemed fit". Clause 7 has to necessarily be interpreted noscitur a sociis 7 along with clauses 1 to 6 and the "other acts or deeds" mentioned in clause 7 have necessarily take the colour of and be suitably confined only to those ancillary an incidental matters which are in pursuance of the object of clauses 1 to 6 and necessary to give effect to the authority enumerated therein.
12.13. If a wide and expansive interpretation is given to clause 7, as suggested by the Ld. Counsel for the Complainant, so as to subsume within itself the right to conduct business on behalf of the proprietor and stand in the shoes of the proprietor himself, clauses 1 to 6 and the preceding recitals would be rendered otiose and reduced to useless lumber. For that would mean that CW-1 can stand in as a payee instead of the Complainant to recover the debt, which is clearly not in contemplation either by the words of Ex. CW1/A or the testimony of CW-1.
7Known from its associates Page 17 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 18 of 34 12.14. The mere bald explanation of CW - 1 that he had signed on the seal in the space meant for the proprietor as there was only one seal of proprietor and no separate seal of authorised signatory fails to inspire any confidence. If such a situation or necessity was really the case and CW - 1 was merely the authorised signatory of the proprietorship, nothing stopped CW - 1 to clearly spell out his name and capacity or to add the words "for and on behalf of" or "authorized signatory on behalf of" by hand before the word "Prop." appearing on the impression created by the seal. The fact that CW - 1 has not done so and has instead signed as a proprietor without furnishing any document of authority which even prima facie empowers him so to do, render Ex. CW1/B and Ex CW1/C quite unreliable.
12.15. The Ld. Counsel for the Complainant has stated that no suggestion questioning the authority of CW - 1 in this matter was posed by the Accused at the time of cross examination. The said submission can be briefly dealt with when it is seen that in the present matter, there is no question of acquiescence or estoppel. CW - 1 has himself stated that he signed upon the bills and challans only as authorised signatory and not the proprietor. Considering the same, CW - 1 has not been able to give any reasonable explanation as to why he signed in the space meant for the proprietor, when in fact he was not the proprietor. The said aspect was already made glaringly obvious to CW - 1 during the course of his cross-examination and has gone unexplained from his side and no authority was furnished in this Page 18 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 19 of 34 regard till date.
12.16. The fact that both Ex. CW1/B & C have admittedly been issued/shipped at the residence address of the Accused as opposed to the place of business of the Accused also raises eyebrows. Initially, CW - 1 admits that the Accused was running his business from Sadar Bazar and also that Ex. CW1/B was not issued at the address of Sadar Bazar. CW - 1 also states that he had not sent the legal demand notice, Ex. CW1/G at the business address of the Accused on the ground that the Accused had already left his business address when the legal demand notice was to be issued. CW - 1 further stated that he had visited the business address of the Accused after the cheque in question had got dishonoured and at that time there was nobody present and no business was being carried on from that address. He also stated that he had visited once at the business address of the Accused and once at his residential address and the order itself was placed telephonically.
12.17. It is also seen that on the one hand, Ex. CW1/B & C are both dated 12th of February 2018 whereas CW - 1 has deposed that the alleged goods were delivered on 13th of February 2018. When specifically quizzed about the glaringly apparent inconsistency, he stated that he had received a call from the Accused on 12th of February 2018 regarding delivery but his driver did not come till evening and due to no-entry of commercial vehicles and goods could not be delivered on 12th of February 2018 but they were delivered on 13th of February 2018. If this is taken as the true position, nothing Page 19 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 20 of 34 stopped the Complainant from suitably modifying the delivery challan or preparing a supplementary challan to reflect the correct date and time of alleged delivery. This fact is especially important as the Complainant claims to have raised another bill and challan against the Accused on the same date, i.e., 13th of February 2018 purporting to have invoice No. HST/050 for ₹ 264,320 but the same is conspicuously not produced despite the said fact being pointed out to CW-1 at the time of his cross-examination. The said bill and the delivery challan would have been quite relevant, having had close nexus with the transaction in question 8 and having been generated on the same date when the goods under invoice No. HST/049 were allegedly delivered.
12.18. Moreover, CW-1 has admitted that there is no record whatsoever, regarding the alleged cash payment received in part from the Accused (save and except the endorsement on Ex. CW1/B, which is itself an unreliable document). It is seen that as per the allegations in the complaint, such payments by way of cash were received twice. This aspect also bolsters the defence plea that some deviation from the ordinary course of business in fact occurred in the alleged transaction. Considering the documents available on record, CW - 1 has also deposed contrary to them. Without going into the question as to which version is correct, there is sufficient ground to hold that 8 See s. 6.of the Indian Evidence Act, 1872: Relevancy of facts forming part of same transaction.
-- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
Page 20 of 34Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 21 of 34 the matter concerning the due delivery of goods is itself mired in grave suspicion.
12.19. It is seen that out of Ex. CW1/B, Ex. CW1/C and Ex. CW1/F, only Ex. CW1/F purportedly bears the signature of the Complainant, i.e., Mrs. Ishmeet Kaur. Ex. CW1/C bears at its foot "Downloaded from SemiOffice.com" and Ex. CW1/F has also been produced from electronic account books/ledger. Neither Ex. CW1/C nor Ex. CW1/F are accompanied by certificate u/s 65B of the Indian Evidence Act, 1872 and are rendered inherently inadmissible 9 and the mere marking them as exhibits does not cure such defect 10. When this level of contradiction and suspicion already present regarding Ex. CW1/C, in addition to its inherent inadmissibility, the version of the Accused that the said document is a self-styled document manufactured by the Complainant to bolster up his case appears to be more plausible than any aspect of actual delivery of goods.
12.20. When all of the aforesaid aspects as discussed in the preceding paragraphs are considered together, an elaborate web of inconsistencies and falsehoods is woven by CW - 1 in the case of the Complainant. On the one hand, CW - 1 has stated that only twice, the dealings had taken place between him and the Accused 9 See the judgement of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, 2020 SCC OnLine SC 571 10 As 'Mark' and 'Exhibit' denote documents for identification and do not amount to irrebutable proof; see Sudir Engg. Vs. NITCO Roadways, 1995 IIAD Delhi 189 Page 21 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 22 of 34 whereas on the other hand, CW - 1, when purporting to deliver goods under the very first dealing between the parties, did not even care to note the contact details/identity proof of the alleged driver who had come to receive the goods on behalf of the consignee.
12.21. The Ld. Counsel for the Complainant has, at the time of final arguments, stated that as per prevailing business practice, the copy of ID proof/driving license of the driver is only taken in case of outstation delivery and not in case of intrastate delivery., No evidence of such special practice was led in the course of the trial, leading this Court to hark back to the standard of reasonable man. A reasonable man would, when dealing for the very first time with a stranger pursuant to an order placed telephonically, be careful and cautious with regard to delivery of possession of a bulk quantity of goods to another stranger who states himself to be the driver of the first mentioned stranger. He would at least try to obtain/verify the identity of such person for at least take his mobile number before taking the risk of granting possession of goods, and would obtain due and proper acknowledgement from the consignee, which has not been done in this case.
12.22. When CW - 1 has stated that he had visited both the place of business and the place of residence of the Accused, it is quite unnatural for the goods to have been dispatched at the residence address of the Accused. It is opposed to reason as to why a supplier would note the residence address of the trader/intermediate stockist as the place of supply when the place of business is already known Page 22 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 23 of 34 to the supplier and wherein goods would have been usually received in the ordinary course of business.
12.23. It is also quite unreasonable as to why a trader would accept delivery of goods in bulk quantity for storage/business at his own residence as opposed to his place of business. The only submission made in this behalf by the Ld. Counsel for the Complainant is that as per general practices of the trade, the goods are delivered wherever it is comfortable to the consignee to take delivery. However, there is no evidence forthcoming to support any such 'general' practice of trade let alone any particular practice between the parties as the alleged dealings took place only twice. Even if the submission of the Ld. Counsel be tested for the sake of argument, when the volume of goods as per the testimony of CW - 1 is such that they require a vehicle and driver to transport by commercial vehicle, it is not quite hard to imagine that they would also require support staff for unloading as well as appropriate space for safekeeping.
12.24. In all of these aspects, ordinarily, the trader would be better placed at his business address rather than his residence address. It is an admitted position that the alleged dealings between the Complainant and the Accused were in the nature of business-to- business dealings (B2B), wherein the goods delivered to the consignee would have been used for resale and not business to consumer dealings (B2C), wherein such goods would be used for personal use. In these circumstances, the alleged delivery of the goods at the residence address of the Accused clearly raises a big Page 23 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 24 of 34 question mark on the veracity of the case of the Complainant.
12.25. The aspect as to why the legal demand notice was sent at the residence of the Accused is quite telling. The reason given by CW
- 1 about the same is that he had visited the place of business of the Accused after the cheque in question was dishonoured and he saw that there was nobody present there and no business was being carried on and the notice was issued at the residence address for this reason. Naturally, CW - 1 would not have been privy to such developments at the time of generation of invoice and alleged delivery of goods under Ex. CW1/B and C, which is much prior to the dishonour of the cheque in question.
12.26. Another aspect which concerns Ex. CW1/B is that CW - 1 has stated in his cross examination that no dealings had taken place between the parties in the year 2017 and that the cheque in question not given in 2017 but was given at the time of delivery of goods when the alleged driver of the Accused had visited the shop of the Complainant carrying the cheque in question which was duly filled up. Again, if this is the true position, it would not have been possible for the Complainant to note in advance in Ex. CW1/B, which is dated a day prior to the alleged handing over of the cheque in question, the exact details of the cheque in question on the said invoice. This aspect further helps the version of the defence that Ex. CW1/B and C were manufactured to favour the case of the Complainant. When Ex. CW1/B and C are themselves highly suspect in nature, it is well-nigh possible that the endorsement of Page 24 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 25 of 34 alleged driver of the Accused appearing on Ex. CW1/C would have been manufactured to be deliberately shorn of necessary details. Overall, the Accused has been able to rebut the factum of delivery of goods and as a sequitur, existence of liability on the date of presentation of the cheque in question.
12.27. Much controversy has arisen over the date appearing on the cheque in question vis-à-vis the alleged date of delivery. It is an admitted position that while the cheque in question is dated 26th of December 2017, the alleged delivery of goods took place on 13th of February 2018. The Ld. Counsel for the Complainant states that it is immaterial as to whether the cheque in question was issued antedated on the date of delivery or whether it was issued a postdated and allegedly as a security on 26th of December 2017 and reliance is placed on the decision of Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel & Anr 11 to support the well settled proposition that the only factum that is required to be determined is that whether or not there existed any liability on the date of presentation of the cheque in question. While the Ld. Counsel for Accused has submitted that it is the case of the Accused that the cheque in question was issued as security and in advance for the supply of goods on 26th of December 2017, which were never so supplied, he fairly admits the general proposition that the liability of the Accused must be determined on the date of presentation of 11 2022 Livelaw (SC) 830 Page 25 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 26 of 34 the cheque in question.
12.28. The case of the Complainant and the Accused diverge from this point onwards. While it is the case of the Complainant that the liability against the Accused accrued upon delivery of the goods on 13th of February 2018, it is the case of the Accused that no such liability accrued on the said date is no goods whatsoever had been supplied to the Accused.
12.29. The Ld. Counsel for the Complainant has stated that DW - 1 has deposed quite inconsistently in respect of his defence. he states that DW - 1 has deposed that the cheque in question was given duly filled up to one salesman in the market on 26th of December 2017 whereby the delivery was promised within 10 to 15 days thereafter. It is stated that DW-1 could not even give the details of this alleged salesman. It is further stated that DW - 1 was not able to produce any independent evidence regarding his attempts to contact the Complainant in respect of the alleged non-delivery and the return of the cheque in question. It is stated that DW - 1 neither issued stop payment instructions to his banker nor even replied to the legal demand notice. Further, DW-1 is stated to have quoted a wrong figure in his testimony respect of computation of 750 boxes of tape at unit price of ₹ 135 per box which would total to ₹ 101,250 whereas the cheque in question has been issued for ₹ 102,000, which again makes the defence inconsistent. In addition, it is submitted that the application u/s 315 Cr.P.C. filed by the Accused also contains some incorrect and contrary averments.
Page 26 of 34Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 27 of 34 12.30. The decision in M/s Shree Daneshwari Traders vs Sanjay Jain 12 and Rangappa v. Sri Mohan 13 is relied upon by the Ld. Counsel for the Complainant to support the proposition that the liability accrued upon delivery of the goods and in case it was the case of the Accused that the advance security cheque had been misused, the Accused did not, at any point of time asked for the return of the cheque or even issue stop payment instructions to his banker. It is stated that the Accused did not even care to reply to the legal demand notice or institute any Complaint/proceedings against the Complainant after filing of the instant case and when the alleged misuse became apparent to the Accused.
12.31. The aspect as to the existence of liability against the Accused on the date of presentation of the cheque in question, i.e., 16th of February 2018 must necessarily embrace some credible proof of factum of delivery goods. This is because the liability that is sought to be foisted upon the Accused is arising out of alleged delivery of goods to the Accused on 13th of February 2018 and the payment of cost thereof. As the discussion in the preceding paragraphs would show, the Accused has been able to cast more than a shadow of doubt upon the due delivery of goods and has successfully rebutted the initial presumption of existence of legally enforceable debt or other liability against him. The Accused has been able to show albeit on a preponderance of probabilities that when the case of the 12 AIR 2019 SC 4003 13 supra Page 27 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 28 of 34 Complainant is looked at from the standpoint of a reasonable man, there are more than enough reasons to doubt the due delivery of goods by the Complainant. The Accused has been able to successfully question and raise suspicion on the veracity of Ex. CW1/B & Ex. CW1/C vis-à-vis the case of the Complainant and the testimony of CW - 1.
12.32. The Accused has been able to bring the attention of this Court to glaring inconsistencies and major contradictions in the case of the Complainant, the annexed documents as well as the testimony of CW - 1, which shake the very foundations and render the whole case of the Complainant quite improbable. When the case of the Complainant proceeds upon the premise of order and due delivery of goods resulting in liability, the burden upon the Accused is not to adduce negative evidence 14 to disprove delivery. The Accused can very well rely upon materials already on record and the cross examination of the Complainant to probabilize his defence to the extent that he is able to cast doubt upon the due delivery of goods. The Accused can manage to rebut the presumption relying on the aforesaid material only and it is not necessary in each and every case for the Accused to enter the witness box in support of his plea. It is well settled that in case the Accused wishes to examine himself in his defence, the special privilege of filing his evidence by way of affidavit is unavailable to the Accused 15. Considering this position, 14 see Bharat Barrel & Drum Mfg. Co. v. Amin Chand Pyarelal (supra) 15 See Mandvi Co.Op. Bank Vs. Nimesh B. Thakore 2010 (1) DCR 177 Page 28 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 29 of 34 the averments in the application u/s 315 Cr.P.C. and the inconsistencies (if any) cannot be taken into account by the Complainant so as to support his own case.
12.33. The fact that the Accused has entered the witness box and deposed as DW - 1 will not give any handle to the Complainant to support his own crumbling case on the crutches of the alleged inconsistencies in the defence. At best, adverse inference 16 may be drawn against the Accused for not stopping payment/demanding return of the cheque in question or not making any Complaint against the Complainant/not replying to the legal demand notice when the goods were not supplied within 10 to 15 days of 26th of December 2017. Similar would be the outcome of the inconsistency in the figure quoted by DW - 1 vis-à-vis the amount on the cheque in question and the lack of details of the alleged salesman.
12.34. It must be realized that the burden to establish all the ingredients of the offence and that too beyond reasonable doubt lies upon the Complainant and never shifts. Though the case of the Complainant is initially aided by the presumptions existing in his favour, ultimately the case of the Complainant must stand on its own legs. When the Accused has dislodged the case of the Complainant and rebutted the presumption raised against him upon a preponderance of probabilities and manifestly shown that the case of the 16 See s.114 of the Indian Evidence Act, 1872: Court may presume existence of certain facts. -
- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Page 29 of 34Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 30 of 34 Complainant is at variance to the standard of reasonable man, the onus to prove the existence of a legally enforceable debt or other liability falls squarely on the head of the Complainant. The Complainant cannot, now, shy away from bearing the same and instead construct a case in his favour by only relying upon the inconsistencies in the defence and not substantively discharging his own duty.
12.35. Considering the evidence already available on record, the Complainant has miserably failed to discharge the said onus. Accordingly the said ingredient remains unfulfilled 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;
12.36. This requirement is satisfied on a perusal of the cheque in question Ex. CW1/D which bears date of 26th of December 2017 and the return memo Ex. CW1/E which bears the date of 16th of February 2018. 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 12.37. s. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein Page 30 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 31 of 34 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 memo Ex. CW1/E on record states that the cheque in question has been returned dishonoured for the reason "Funds Insufficient". 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 from the bank regarding the return of the cheque as unpaid 12.38. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/G to the Accused. The original postal receipts in respect of the same are already on record along with returned envelope, Ex. CW1/H & I. However, the Accused has denied receiving any legal demand notice in his notice of accusation. Further, in his examination u/s 313 read with s.281 Cr.P.C., the Accused has denied receipt of legal demand notice. However, he has admitted that the address appearing on the legal demand notice is his correct address.
12.39. Perusal of the record reveals that the address mentioned in the legal demand notice is identical to the address informed by the Accused in his examination u/s 313 read with s.281 of the Cr.P.C and the very same address appears on the notice of accusation as well. When appearing as DW-1 the Accused stated that 2nd Floor is not mentioned on the address, all else being correct. However, it is quite Page 31 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 32 of 34 pertinent to note that the same address as that on the legal demand notice appears on the bail bonds on record without any mention of floor number.
12.40. 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 17.
12.41. Considering the admission of the Accused of the correctness of the address, the Accused could not bring any credible evidence on record that absence of floor number has necessitated the endorsement on the return envelopes to the effect that "the addressee is not available despite repeated visits". No postal witness was examined and on the material already on record as adverted to above, it appears that the Accused had kept himself out of the way to avoid service. Hence, this ingredient is fulfilled as 17 supra Page 32 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 33 of 34 against the Accused.
(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 12.42.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 the statement of the Accused u/s 313 read with s.281 Cr.P.C. but admitted the address appearing therein to be his correct address.
12.43. In C.C.Alavi Haji vs Palapetty Muhammad 18 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."18
(2007) 6 SCC 555 Page 33 of 34 Visit eCourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 7824/2018 CNR. DLCT020118622018 Ishmeet Kaur V/s Aman Kapoor Page 34 of 34 12.44.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 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. The Complainant has not been able to satisfy all the ingredients of the offence u/s 138 of the Negotiable Instruments Act, 1881 against the Accused. Accordingly, the Accused Aman Kapoor is hereby Acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
VISVESH Digitally signed by VISVESH
Date: 2022.11.30 15:08:14 +05'30'
ANNOUNCED IN OPEN (VISVESH)
COURT ON 30.11.2022 MM, NI ACT-06, CENTRAL
TIS HAZARI COURTS,
DELHI
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