Delhi District Court
M/S.Divita Entp vs Satish Mehra on 28 January, 2025
M/s Divita Ent'p vs Satish Mehra
IN THE COURT OF MS. SHIVANGI MANGLA,
JUDICIAL MAGISTRATE-FIRST CLASS (NI ACT)-05,
DWARKA COURTS, NEW DELHI
CNR NO.DLSW02-052155 - 2018
Ct. Cases No.50861/2018
M/s DIVITA ENT'P VS SATISH MEHRA
28.01.2025
1. Name of the complainant : M/s Divita Enterprises
RZ-61-A, X-3 Block,
New Roshanpuria, Najafgarh,
New Delhi - 110043 Through
its proprietor Ramotar
2. Name and address of the : Satish Mehra,
accused S/o Late Sh. S.L. Mehra,
Prop. Of M/s Bhumi Trader
(Bhumika Trading Co.)
Gali No.8, Sunday Bazar
Road, Nathupura, Burari,
Delhi - 110084
3. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
4. Plea of the accused : Pleaded not guilty and
claimed trial.
5. Final Order : Conviction
6. Date of Institution : 22.12.2018
7. Date of pronouncement : 28.01.2025
Ct. Case No 50861/2018
Page No. 1 of 9
M/s Divita Ent'p vs Satish Mehra
JUDGMENT
1. Vide this judgment, I shall decide the present matter, Ct. Cases No.50861/2018filed by complainant against the dishonour of cheque bearing no.007399 dated 30.10.2018 for Rs.5,41,246/- drawn on Union Bank of India, Burari Branch, Delhi-110084, (henceforth, the cheque in question).
2. Briefly stated, the facts that the complainant is engaged in business of sale and supply of Aata, Maida, Suji and Besan under the name and style of M/s Divita Ent'p. On order, the complainant supplied goods to the accused against bills worth Rs.5,41,246/-. Towards of liability towards complainant, accused issued the cheque in question. On presentation, the cheque was returned unpaid with remarks "fund Insufficient" on 01.11.2018.
3. Thereafter, complainant sent a legal notice dated 19.11.2018 to the accused through registered post calling upon him to pay the outstanding amount. It is the case of the complainant that despite service/receipt of the notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
4. The present complaint was filed within the limitation period.
5. Pre summoning evidence of complainant was recorded and the cognizance was taken u/s 138 NI Act on 02.09.2019 and summons were issued to accused thereupon. The complainant relied upon following documents :-
1. Copies of bill of supply Ex. CW 1/1 (colly.) OSR.
2. Original cheque Ex. CW 1/2.Ct. Case No 50861/2018 Page No. 2 of 9
M/s Divita Ent'p vs Satish Mehra
3. Original return memo Ex. CW 1/3.
4. Legal notice Ex. CW 1/4.
5. Postal receipts Ex. CW 1/5 (colly.)
6. Notice was framed against the accused on 23.11.2021 to which he pleaded not guilty and claimed trial. Application u/s 145(2) NI Act was filed, however, after considering the submissions, the same was dismissed vide order dated 25.07.2022.
7. Statement of accused u/s 313 Cr.P.C was recorded on 01.03.2023 and all the incriminating material was put before the accused. Accused chose to lead DE.
8. DW 1 / accused was examined and discharged on 19.10.2023 and the matter was listed for final arguments.
9. Thereafter, application u/s 311 Cr.P.C was moved by Ld. counsel for complainant and after perusal of the reply, the application was allowed. Pursuant thereof, CW 1/ complainant was examined under provisions of section 311 Cr.P.C and discharged on 04.10.2024. The complainant brought on record invoice dated 18.03.2018 Ex. CW 1/1A (OSR). Additional statement u/s 313 Cr.P.C was also recorded on the same date.
10. Subsequent opportunity was granted to furnish the arguments. Written submissions were filed by Ld. counsel for accused, while oral submissions given by Ld. counsel for complainant. Rebuttal submissions taken from both the counsels.
The submissions made on behalf of both the parties and the judgments relied on by the parties have been considered.
Ct. Case No 50861/2018 Page No. 3 of 9M/s Divita Ent'p vs Satish Mehra POINTS FOR DETERMINATION, APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
11. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following: -
i. the accused issued a cheque on account maintained by him with a bank.
ii. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
iii. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
iv. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
v. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
12. The accused admitted his signatures on the cheque in question at every stage; from notice under section 251 Cr.P.C. to his statement under section 313 Cr.P.C. Thus, presumption under section 118(a) and under section 139 of NI Act arises against the accused. Unless the contrary is proved, it shall be presumed that the cheque in question was drawn for a consideration and that the complainant received the cheques in question in discharge of a debt/ liability from the accused. In order to rebut the presumptions, the burden of proof shifts to the accused to prove Ct. Case No 50861/2018 Page No. 4 of 9 M/s Divita Ent'p vs Satish Mehra on a preponderance of probabilities that there was no liability for the amount of cheque in question.
(Reliance placed on Triyambak S. Hegde vs Sripad decided by 3 judge bench of Hon'ble SC on 23.09.2021 and Basalingappa vs Mudibasappa (2019) 5 SCC 418; Bir Singh Vs. Mukesh Kumar (2019) 4SCC; Kusum Ingots & Alloys vs. K Pennar Peterson 2000 SC)
13. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favour of the complainant (reliance placed on Rangappa Vs. Sri Mohan (2010) 11 SCC 441). It is now to be examined as to whether the accused has brought any material on record dislodging the presumption which meets the standard of preponderance of probabilities.
14. It is the defence of accused that the cheque in question was issued towards security and that for the material received on credit from the complainant, the maximum amount has already been repaid leaving balance of only around Rs.50,000-60,000/-, accordingly no liability exists towards cheque amount.
15. The accused has relied upon the judgment of B. Adhikari vs Ponraj ; C.S Madhusudhan vs. B. Eswaramma ; R.L. Verma & Sons vs P.C Sharma ; Engineering Control Vs. Banday Infratech Pvt. Ltd. In support of his submissions with regard to the non- receipt of the legal notice, thereby defeating the essential ingredients of section 138 N.I. Act. However, apart from blunt denial regarding the non-receipt of the legal notice, no evidence Ct. Case No 50861/2018 Page No. 5 of 9 M/s Divita Ent'p vs Satish Mehra has been furnished. The said plea has not been questioned during the course of the trial. Moreover, accused stated the same address at every stage of trial / proceedings and also filed appearance before the Court on the process being issued on the said address. Accordingly, the presumptions under the guidelines in the case of C.C. Alavi Haji vs Papetty Mohammad & Anr, Crl. Appeal No.767/2007 can be followed, further relying on provisions u/s 27 general clauses Act, accused shall be deemed to be in service of legal notice.
16. Accused admitted issuance of cheque in question. His only plea is that the cheque in question was issued towards security. Security cheques are covered u/s. 138 NIA provisions. (Reliance placed on Suresh Chandra Goyal v. Amit Singhal D.O.D 14 May 2015 DHC ; Sripati Singh vs. State of Jharkhand)
17. Accused further admitted the fact of taking material from complainant on credit basis. The transaction of supply of material has itself been admitted.
Here testimony of DW1 is relevant -" it is correct that the bills Ex.CW1/1 (running from page no. 16 to 62) belongs to Mrs Bhoomi traders, however, I have no liability to pay the bill amount to the complainant. It is correct that I have no proof to show that I have no liability towards the complainant and cheque in question you issued by me."
Accused admitted Bhumi Traders to be his proprietorship firm and further admitted bills Ex.CW1/1 to be made out against M/s Bhumi Traders. Accused admitted the purchase of material from complainant. Further there appears to be no dispute with regard to the worth or quantity of material supplied. No evidence, Ct. Case No 50861/2018 Page No. 6 of 9 M/s Divita Ent'p vs Satish Mehra oral or documentary, has been led disputing the quantity of goods supplied. Ex. CW1/1 (bills) has been duly admitted by accused. The mere plea taken is with respect to non existence of liability towards Ex.CW1/1, however the said averment has remained unsupported with evidence at all.
However, it is to be noted that the transaction regarding purchase of material has been duly admitted and in light of presumption raised u/s 139 NIA, the specific burden to prove his case on ground of preponderance of probability lies on accused. And as per deposition of DW1/ accused, admittedly no evidence has been furnished to prove the total value of goods supplied to him. No ledger has been furnished. No other piece of evidence brought or witness examined.
Attempt has been made to challenge the veracity of invoice Ex.CW1/1A (OSR), however, as per deposition of CW1/ Ramotar, the said bill was duly included while assessing the cheque amount liability. Apart from mere challenging the Ex.CW 1/1 (OSR) through testimony of CW1, no iota of evidence has been placed on record to fortify the fact that no goods were received on account of said bill by accused. The bringing of said evidence becomes material when the transaction in itself has not been disputed and mere dispute has been raised with regard to pendency of outstanding liability after payments towards deliveries received.
19. The only contention of defence raised in present matter is that maximum amount has been repaid and only liability of Rs.50,000-60,000/- is balance.
Ct. Case No 50861/2018 Page No. 7 of 9M/s Divita Ent'p vs Satish Mehra Firstly, the said defence of accused doesn't stand in line with defence pleaded via application u/s. 145(2) NIA, where it is mentioned-" The accused has already paid against the bills raised by complainant from time to time and the same has not been adjusted by the complainant and bills raised by complainant is false and fabricated."
Secondly, as per DW1, no proof has been furnished with regard to payments made to complainant. For first time, the DW1 mentioned about repayments being done to son of complainant, surprisingly said fact never asserted earlier. However, no proof has also been furnished in respect of same admittedly. Further, there is no proof with regard to weekly payments as deposed to be made by accused. Mere assertion has been given with regard to balance liability of Rs.50,000-60,000/- , while no proof has been furnished at all . No witness has been examined to corroborate the said defence of repayment. No details with regard to mode, date, or installment amount, number of installments paid , to repay balance liability leaving Rs.50-60,000/-. As such, the said defence has remained unproved.
20. In view of above reasoning, the transaction for purchase of material is duly admitted with no proof of repayment. Accordingly, the accused has failed to rebut the presumption arisen in favour of complainant u/s. 118/139 NIA.
21. Accordingly, accused Satish Mehra is convicted for offence u/s. 138 NIA.
22. Let the convict be heard on quantum of sentence.
23. Let the copy of this judgement be given to the convict free of Ct. Case No 50861/2018 Page No. 8 of 9 M/s Divita Ent'p vs Satish Mehra cost.
Note: This judgment contains 9 pages and each page is signed by the undersigned.
Digitally signed by SHIVANGI MANGLA SHIVANGI Announced in the open MANGLA Date: 2025.01.28 Court on 28.01.2025. 16:53:46 +0530 (Shivangi Mangla) (JMFC-05 (NI ACT) South West, Dwarka New Delhi/28.01.2025 Ct. Case No 50861/2018 Page No. 9 of 9