Delhi District Court
M/S Vrajlal Manilal & Company vs . on 24 May, 2012
IN THE COURT OF SHRI SATVIR SINGH LAMBA, MM-01
( NEGOTIABLE INSTRUMENTS ACT) WEST DISTRICT,
TIS HAZARI COURTS, DELHI
M/s Vrajlal Manilal & Company,
544 - Lahori Gate,
Delhi 110006.
Through Shri Ratti Lal Shah
Constituted Attorney. .........Complainant
Vs.
1. M/s Mathra Parshad & Sons,
Through its Partner/Partners
Shri Anil Kumar Gupta,
Railway Road,
Rohtak.
2. Smt. Shakuntla Devi (Partner)
607/23, D.L.F Colony,
Rohtak.
3. Shri Ashok Kumar Gupta (Partner)
607/23, D.L.F. Colony,
Rohtak.
4. Shri Vijay Kumar Gupta (Partner)
607/23, D.L.F Colony,
Rohtak.
5. Shri Anil Kumar Gupta (Partner)
607/23, D.L.F Colony,
Rohtak.
6. Shri Sunil Kumar Gupta (Partner)
607/23, D.L.F Colony,
Rohtak.
7. Shri Manoj Kumar Gupta (Partner)
607/23, D.L.F Colony,
Rohtak. ........Accused persons
JUDGMENT
Complainant Case No. : 449/1
Date of institution : 06.06.2001 Date of commission of offence : 21.05.2001 Offence alleged : Under Section 138 NI Act Plea of the accused : Not pleaded guilty Final order : Conviction Date of Decision : 24.05.2012 Brief Facts
1. Brief facts of the case are that the complainant firm is engaged in the business of manufacturing and marketing of ''Bidis''. The present case is filed by the AR of the complainant Shri Ratti Lal Shah who is authorized by a General Power of Attorney i.e. Ex.CW1/1. It is alleged that M/s Ram Chander Gupta & Co. at Gohana had running account with the firm of the complainant and during the period from 01.04.2001 to 03.05.2001, it purchased the bidis from the complainant firm on credit. As per the Ex.CW1/2 i.e. the account books of the complainant firm maintained by him in the ordinary course of business and assessed by the income tax Department, a sum of Rs.1,70,694/- is due towards M/s Ram Chander Gupta & Co. It is further alleged that M/s Mathura Prasad & Sons, Railway Road, Rohtak took the responsibility being common family concerns (common partners) and issued the cheque in question Ex.CW1/3 in order to discharge above said part liability in the name of the complainant firm vide covering letter dated 17.04.2001 which is Ex.CW1/4. It is further alleged that the said covering letter is duly signed and also bears the mentioning the name of M/s Ram Chander Gupta & Co. At present the said firm M/s Ram Chander Gupta & Co. is closed.
2. It is further alleged that the goods were supplied to M/s Ram Chander Gupta & Co. which is the sister concern of accused no.1 and the partners of both the firms are common and same. It is further alleged that accused no.2 to 7 are the partners of accused no.1 firm and all of them are incharge and responsible to conduct the day to day affairs of the said firm and are accountable to it. The accused no.1 acknowledged, confirmed and admitted the liabilities of said amount and issued the cheque in question bearing no.001100 dated 17.04.2001 drawn on Central Bank of India, Bahadurgarh for a sum of Rs.1,40,000/- as a part payment in favour of complainant towards the above said debt/liability and same was signed by accused no.5. Complainant deposited the cheque in question in his bank for encashment through his banker but the same got dishonored by the bankers of accused with the remarks "Payment stopped by drawer" vide returning memo dated 21.04.2006.
3. Henceforth the complainant issued the mandatory notice U/s 138 NI Act dated 05.05.201 ie. Ex.CW1/7 vide registered AD/UPC to the accused and the same were duly served upon the accused by all ways.
4. When the accused failed to fulfill the conditions of the said legal notice i.e. Ex.CW1/7 within 15 days of its presumed service, then the complainant has filed the present complaint case U/s 138 of Negotiable Instrument Act 1881 (hereinafter the Act) against the accused.
Pre-Trial Procedure
5. After the institution of the present complaint, the complainant adduced his pre summoning evidence U/s 200 Cr.P.C. on which basis the accused persons were summoned via order dated 03.04.2002 to face trial for the offence U/s 138 NI Act. After the service of the summons the accused persons entered their appearance whereupon the provisions of sec. 207 Cr. P.C. were also complied.
6. All the accused persons were admitted to bail then notice U/s 251 Cr. P.C. for the offence U/s 138 NI Act was served upon them on 07.09.2002 after hearing the contesting parties. Needless to say, the accused pleaded "Not Guilty"
and claimed trial.
Trial
7. In order to substantiate his case, the AR of complainant examined himself as the witness as CW3 whose contents are a mere repetition of what had already been discussed under the "Brief Facts" and hence are not repeated for the sake of brevity. In addition to CW3, the complainant examined Shri O.P.Bharti, Assistant Manager, Central Bank of India and Shri Sanjay Aneja, CTO, Clerk, Central Bank of India, in support of his claim. All the witnesses were cross examined by the accused persons.
8. All the incriminating circumstances, appearing in the evidence against the accused persons were put in order to unable them to offer their explanation.
9. In their explanation u/sec 313 Cr.P.C r/w sec 281 Cr.P.C, all the accused stated that they are innocent and have no liability towards the complainant as alleged by him. It is further stated that they had no such sister concern in the name of M/s Ram Chander Gupta & Co. All the accused persons admitted the receiving legal notice and stated that same was duly replied by them through their counsel jointly. Accused Ashok Kumar Gupta and Vijay Kumar Gupta stated that they are not the partners of the accused firm, however, accused Shakuntla Devi and Sunil Kumar Gupta stated that they are sleeping partners of the accused firm. Accused Manoj Kumar Gupta and Anil Kumar Gupta admitted the issuance of cheque in question which bears the signature of Accused Anil Kumar Gupta. The above said accused persons admitted the business dealing with the complainant firm viz. purchasing the bidis on credit basis and further stated that cheque in question was given as a advance payment for the future supply of goods but, the goods were not supplied by the complainant on which the payment of cheque in question was stopped by giving instructions to the banker.
10. All the accused persons examined themselves in their defence evidence by way of affidavit viz. Vijay Kumar Gupta as DW1, Sunil Kumar Gupta as DW2, Ashok Kumar Gupta as DW3, Shakuntla Devi as DW4, Anil Kumar Gupta as DW5 and Manoj Kumar as DW6. All the defence witnesses were duly cross examined by the complainant. The DE was then closed whereupon the trial came to a conclusion and the contesting parties were duly heard.
Facts in Issue
11. In order to have the positive outcome in his favour, the complainant was required to show that the cheque in question was given by the accused towards discharge of their liabilities which was dishonoured via returning memo's whereafter the accused persons had also failed to comply with the requirements of the legal notice Ex. CW1/7.
12. On the other hand, the accused persons were required to show their defence on the scale of preponderance of the probabilities that they are not liable to pay the amount involved in the present case to the complainant.
Legal Prepositions
13. The presumptions provided U/s 118 NI Act and 139 NI Act would come to the rescue of the complainant once the execution of the cheque in question is proved on record.
14. As per section 118 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was given against consideration by the accused and that the complainant was the holder of the said cheque in due course. Further as per Sec. 139 NI Act, it is to be presumed in favour of the complainant during the trial that the cheque in question was received by the complainant against a legally enforceable debt or liability (Refer :- "Rangappa Vs. Sri Mohan" SLP (Crl.) 407/06, Dated:- 07.05.2010).
15. It is well settled that both the aforesaid presumptions U/s 118 & 139 NI Act are rebuttable in nature and the onus to rebut the same squarely rests upon the accused.
16. The accused can rebut these presumptions not merely by examining his own witnesses but also through the cross examination of the complainant and his witnesses thereby bringing on record through the entire evidence available on record (inclusive of complainant's evidence and defence evidence, if any), that the complainant was a liar, that their was no existing liabilities between the parties and that the cheque in question was misused. It must be kept in mind that once evidence is brought on record from both sides, it becomes an evidence of the case and court can draw inferences from the said entire evidence either in favour or against any of the parties. Evidence is a complainant's evidence and accused's evidence only for the purposes of identifying it, but once it is adduced in the case, it becomes the evidence of the case and then the same has to be read as a whole. The court can not read the evidence of the complainant only to the extent it favours the complainant and overlook the remaining evidence which supports the accused merely on the ground that it is the complainant's evidence. Similarly, from the evidence adduced by the accused, the court can draw inferences either in favour of the complainant or against the accused. The accused has a right to argue his case even on the basis of the cross examination of the complainant & his witnesses to show to the court that there existed no legally recoverable debt or liability between the parties. In order to rebut the legal presumption in question, it emerges that the accused need not require direct evidence to disprove the existence of consideration.
17. Preponderance of probabilities is the standard of proof upon the accused to rebut the above presumptions, which is not as high as that of the prosecution whereby the accused is only required to show the existence of a probable defence so as to rebut the above presumptions. If the accused succeeds in raising a probable defence by referring to his own evidence (if any) and from the evidence of the complainant, then the onus would shift on to the complainant, who then would have to show beyond reasonable doubt the existence of consideration/existence of a legally recoverable debt or liability in respect of the cheque in question.
Appreciation of Evidence
18. In his cross examination AR of the complainant, CW3 admitted that he do not know English language however, before the institution of the present complaint, all the contents of the complaint were translated to him in Hindi by his counsel and after understanding the same he put his signatures on the complaint. CW3 denied the knowledge about the dissolution deed dated 31.08.1999 of M/s Mathura Prasad & Sons. CW3 further denied the knowledge about the fact that accused no.3 and 4 had already left the partnership firm by the said deed dated 31.08.1999. CW3 reiterated that he had made the accused no.1 as a party because it had given the cheque in question on behalf of M/s Ram Chander Gupta & Company. The business dealings among the complainant and the accused firm were confirmed during the cross examination of CW3. CW3 further stated that as per account statement of complainant company which is Ex.CW1/2 the outstanding amount towards the accused firm is approximate 1.70 lacs. However, all the suggestions put to him by the accused were denied.
19. CW1 Assistant Manager, Central Bank of India, Chandni Chowk, Delhi admitted the bank memo dated 21.04.2001 i.e. Ex.CW1/A issued by the bank vide which the cheque in question was returned bank dishonored with the remarks ''stop payment''. CW1 also identified the signatures of Shri Prem Chand, Assistant Manager on the above said bank memo. The statement of account of the complainant company is Ex.CW1/B. CW2, CTO Clerk, Central Bank of India, Bahadurgarh, Haryana admitted the bank memo i.e. Ex.CW2/A issued by the bank vide which the cheque in question was returned bank dishonored with the remarks ''stop payment''. CW2 also identified the signatures of Shri R.S.Dalal, Assistant Manager on the above said bank memo. The statement of account of the complainant company is Ex.CW2/B. As per Ex.CW2/B the balance amount of the account holder was Rs. 95,000.25/-. Despite the opportunity, the cross examination of CW1 and CW2 was NIL.
20. The defence set up by the accused persons through the cross- examination of the AR of complainant is that the cheque in question was not issued on behalf of M/s Ram Chandra Gupta & Co. Another defence of the accused is that the AR of the complainant is not validly authorized to file and institute the present complaint case against the accused persons. It is further defence of the accused no. 3 and 4 that they are not the partners. Further defence of the accused persons is that cheque in question was issued on behalf of accused firm which bears signatures of accused partner Anil Kumar Gupta as advance cheque for the supply of goods and the statement of account Ex.CW1/2 is forged and fabricated.
21. DW1 Vijay Kumar examined himself by way of affidavit Ex.DW/A. DW1 stated that he ceased to be partner of the accused no.1 firm w.e.f 31.08.1999 vide dissolution of deed and relied for same upon Ex.DW2/A and Ex.DW3/B (objected to mode of proof). However, in his cross examination he admitted his name as a partner in the partnership deed 01.04.1995. DW1 further admitted that his share of capital in the partnership firm still remained with the firm as deposit. DW1 denied the receiving of the legal notice sent by the complainant however, admitted the reply of the legal notice sent by all the accused persons jointly. He denied the knowledge whether the registration of partnership deed or dissolution deed is necessary.
22. DW2 Sunil Kumar examined himself by way of affidavit Ex.DW/B. DW2 stated that complainant firm is not registered and has no locus standi to file the present complaint case. He further stated that complainant company failed to produce any of the bill of the goods supplied to M/s Ram Chandra Gupta & Co. in support of his claim. DW2 further stated that he is sleeping partner of accused no.1 and not in charge and responsible for the conduct and affairs of the accused firm and denied the receiving of legal notice sent by the complainant. However, in his cross examination he admitted that he had invested money in the firm and used to receive interest on his deposit in the accused firm i.e. accused no.1 instead of the share of the loss and profit. DW2 also admitted that he was partner of the accused firm for the last 4-5 years and affirmed that as per partnership deed his share was of 25% of the loss and profit of the partnership business and he used to receive the salary from the accused firm.
23. DW3 Ashok Kumar Gupta examined himself by way of affidavit Ex.DW/C. DW3 stated that he is neither the partner nor having any concern with the accused no.1 firm. DW3 also stated that complainant firm is not registered and has no locus standi to file the present complaint case. He further stated that he ceased to be parter of the accused firm w.e.f. 31.08.1999 vide dissolution of deed. He further stated that complainant company failed to produce any of the bill of the goods supplied to M/s Ram Chandra Gupta & Co. in support of his claim. He further stated that he is not in charge and responsible for the conduct and affairs of the accused firm and denied the receiving of legal notice sent by the complainant. However, in his cross examination he admitted the business relations with the complainant firm as well as receiving of legal notice.
24. DW4 Smt Shakuntla Devi examined herself by way of affidavit Ex.DW/D. DW4 stated that she was not responsible for the affairs and conduct of the partnership firm as she was sleeping partner at the time of dishonoring of cheque in question and denied the receiving of legal notice sent by the complainant and stated that the present complaint case is false and fabricated. However, in her cross examination DW4 admitted that she is one of the partner of the accused firm and denied of having knowledge about the cheque in question.
25. DW5 Shri Anil Kumar Gupta examined himself by way of affidavit Ex.DW5/1. In his examination in chief DW5 stated that the legal notice sent by the complainant was duly replied vide Ex.CW1/9 stating that they were not working as a distributor of complainant firm in the area of Gohana, District Sonipat and no amount is due towards the complainant company but infact, the complainant company have a outstanding liability of Rs.4,11,225.60/- towards the accused firm and denied the issuance of cheque in question against any legal use for the discharge of any debt/liability of their firm. He further stated that the accused firm had never acknowledged, confirmed and admitted the liability of amount of Rs.1,70,000/- on behalf of firm M/s Ram Chander Gupta & Company. DW5 further stated that the accused firm was the distributor of complainant firm and in order to supply of goods the accused firm had given advance payment of Rs.1,40,000/- through cheque in question to the complainant firm. At that time the complainant firm had assured the accused firm that they will supply the goods from their other firm namely M/s Ram Chander Gupta & Co., therefore, told that some letters must be addressed to both the firms for the supply of goods to the accused firm but the goods were not supplied to the accused firm and cheque in question was not returned to the accused firm despite demand. DW5 alleged that M/s Ram Chander Gupta & Co. is benami/sister concern of complainant firm and in order to extort money and to cheat the accused firm, the present false case is filed by the complainant company against the accused firm. However, in his cross examination DW5 admitted his signatures on the cheque in question as well as its handing over to the complainant firm. DW5 further admitted that cheque in question was issued to the complainant firm because there was outstanding amount to be paid to the complainant. DW5 further admitted that he had not taken any action for getting back his money from the complainant.
26. DW6 Shri Manoj Kumar examined himself by way of affidavit Ex.DW6/1. In his affidavit DW6 repeated the similar facts as per the deposition of DW5. However, in his cross examination he admitted himself as partner of accused no.1 firm and stated that cheque in question was issued on account of advance payment. DW5 admitted the business transaction with the complainant firm. DW6 stated that the accused firm has sent a notice to the complainant for the recovery of a sum of Rs.4,11,255.60/- but do not have any knowledge whether any legal proceedings have been started for the recovery of the said amount.
27. It is argued by the Ld. counsel for complainant that from evidence on record, the complainant has proved that cheque in question was signed by the accused which was dishonoured vide memo and despite the legal notice accused did not make the payment. It is argued that during the cross examination of complainant nothing material has come out and the complainant has been able to prove his case. It is further argued that accused persons have failed to discharge the burden upon them to rebutt the presumption in favour of the complainant under the Act.
28. Ld. Counsel for accused persons have argued that accused firm as well as all other accused are having no legal liability towards the complainant. Ld. Counsel for accused persons further argued that the accused persons have no concern with the M/s Ram Chander Gupta & Co. and the said firm is a benami/sister concer of the complainant company. It is further argued that the complainant company has failed to prove any liability of M/s Ram Chander Gupta & Co. and did not produce any of the bills of the goods supplied to the M/s Ram Chander Gupta & Co. Ld. Counsel for accused persons further argued that cheque in question was never issued for the discharge of any liability but the same was issued towards the advance payment for the supply of goods which were never supplied by the complainant to the accused firm. Hence, there is no legal liability towards the complainant as alleged. Ld. Counsel for accused persons further submits that the complainant has misused the cheque in question with the malafide intent to harass the accused persons.
29. Now the question is whether the complainant proved his case, that whether the amount was legally enforceable debt. Offence under Section 138 of the Act is a technical offence and the complainant is only supposed to prove that the cheque issued by the accused was dishonoured, his statement that cheque was issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the accused to show the circumstances under which the cheque was issued and this could be proved by the accused only by way of cogent evidence.
30. Accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence/evidence on preponderance of probabilities to prove that cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, there is no need that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.
31. The first defence taken by the accused is that the present complaint has not been filed by the competent person because the complainant firm is not registered and it has no authority/locus standi to file the present case and same is liable to be dismissed. On the other hand, it is argued by Ld. counsel for complainant that the complainant firm is competent to file the criminal complaint u/s 138 N.I. Act. Therefore, the first question raised by the Ld. counsel for the accused before the court is that the complaint has not been filed by a proper person. After hearing the arguments of Ld. counsel for both the parties on this issue, it is the view of the court that the locus standi is a foreign word to the criminal jurisprudence. Anybody can brought the criminal justice into motion. Here in the present case AR of the complainant is duly authorized by way of General Power of attorney Ex.CW1/1 to file the present case. There is no bar on filing of the criminal complaint by the authorized representative of the complainant firm which is not registered. Nothing contrary is proved on record that the authorized representative of the complainant firm is not having any authority to file the present complaint case. From the evidence of the complainant and the accused it was also proved that both the parties had previous business dealings in the supply of goods and are known to each other very well. Moreover AR of the complainant is having complete knowledge the facts of the case. Hence, the present complaint has been filed by a competent person.
32. Another defence taken up by the accused persons that they have not received the statutory legal notice issued by the complainant is futile because the accused persons have admitted the receiving of legal notice in their examination u/s 313 r/w 281 Cr.P.C. Moreover, the reply dated 22.05.2001 sent by the accused persons to the complainant is already on record and same is Ex.CW1/9. From the material on record it is established that complainant and accused are known to each other and were involved in the business of supply of bidis. Complainant lays foundation of his case on the ground that the accused no.1 i.e firm took the responsibility being common family concerns of M/s Ram Chander Gupta & Co. at Gohana and issued the cheque in question in the name of the complainant firm for the part liability of M/s Ram Chander Gupta & Co., vide original covering letter dated 17.04.2001, who had running account with the complainant firm and during the period of 01.04.2001 to 03.05.2001 purchased the bidis on credit for which a sum of Rs. 1,70,694/- was due. Ex.CW1/5 i.e original covering letter bears the entire details of the cheque in question, Ex.CW1/2 is the statement of account of the accused maintained in the account book of the complainant. Same remains unrebutted during the entire course of trial of the present case. The issuance of the cheque is not disputed. The signatures on the cheque in question is also not disputed.
33. The accused persons Shakuntla Devi and Sunil Kumar Gupta have taken specific defence that they were not the active partners of the accused firm. The accused persons Ashok Kumar Gupta and Vijay Kumar Gupta have taken specific defence that they were not the partner of the accused no.1 i.e accused firm at the time of transaction in question. In order to prove their defence the above said accused persons relied upon the partnership deed dated 01.04.2000 01.04.2001, 01.09.1999, 31.08.1999, 01.04.1995 same are Ex.DW2/B (colly) and copy of dissolution of deed dated 31.08.1999 Ex.DW2/A. It is not in dispute that all the accused persons are the partners of the accused no.1 accused firm at the time of its existence. Moreover, it is also admitted that the accused no.1 firm is not registered and all the above said partnership deeds as well as the dissolution deed are not registered as per the requirement of the law, hence, can not be taken into consideration for any purpose. Therefore, the defence taken by the accused Ashok Kumar Gupta and Vijay Kumar Gupta is not sustainable and is liable to be rejected in the facts and circumstances of the present case. Ashok Kumar Gupta and Vijay Kumar Gupta are deemed to the partners of the accused firm by virtue of partnership laws.
34. Accused Sunil Kumar Gupta admitted in his examination in chief that he had invested money in the accused firm and is receiving the salary from the accused firm meaning thereby the accused Sunil Kumar Gupta is neither the sleeping partner nor the dormant partner of the accused firm i.e accused no.1. On the other hand accused Shakuntla Devi also failed to brought on record cogent evidence that she is sleeping partner of the accused firm. Moreover, mere denial of having knowledge about the issuance of cheque in question is not sufficient to prove her specific defence.
35. From the perusal of the record, it is revealed that accused Anil Kumar Gupta had taken the defence on the two different dimenssions. One of his defence is that there is no legal liability of the accused firm towards the complainant and the cheque in question was issued in advance for the supply of the goods which were not supplied by the complainant. Instead the complainant is liable to pay the accused firm the amount of Rs.4,11,255.60/-. On the other hand, in his cross examination he admitted the liability of accused firm towards the complainant as well as the issuance of cheque in question and handing over the same to the complainant towards the liability of the firm of the accused persons. It is pertinent to mention here that accused Anil Kumar Gupta is the signatory of the cheque in question. The accused Manoj Kumar Gupta also affirms the deposition of the accused Anil Kumar Gupta and further stated that the accused firm has given a legal notice to the complainant firm for the recovery of the due amount for Rs.4,11,255.60/-. However, perusal of the entire record does not find the support of the above said submissions of the accused. The accused persons failed to brought on record the notice sent to the complainant for the recovery of the above said amount. In the first plea of defence, the accused is denying any kind of liability towards the complainant company and simultaneously admitting the alleged liability during his cross examination. Both the defences taken by the accused are contrary as well as inconsistent with each other and fatal to the foundation of the defence version.
36. It is not disputed that the accused has neither lodged any complaint/report against the complainant nor has filed any civil or criminal case against the complainant pertaining to the misuse of the cheque in question. It is very material fact and ought to have been brought to the knowledge of appropriate authorities. It is pertinent to mention herein that in the present case the reason of dishonor of cheque is due to Payment stopped by the drawer. Even otherwise, it may be seen that no complaint has been made to any authority against the alleged misuse of the cheque in question nor matter has been brought to the notice of the complainant at any point of time further weakens the reliability of the defence taken by the accused in the eyes of the prudent man. Therefore the plea as set up is only after thought and is having no factual basis. Moreover, all the accused persons failed to brought on record and iota of evidence in order to support his contention that M/s Ram Chander Gupta & Co. is the benami/sister concern of the complainant firm and the present complaint case was malafidely filed for extorting money and to cheat the accused firm. Moreso, all the accused persons merely denied the knowledge of the existence of the M/s Ram Chander Gupta & Co. however, the accused no. 4 admitted that she is widow of Late Shri Ram Chander Gupta and all other admitted that Late Shri Ram Chander Gupta is their father. The accused Ashok Kumar Gupta further admitted in his cross examination that all the accounts as well as loss and profits accounts were dealt by their deceased father. He further admitted that their livelihood was governed by late Shri Ram Chander Gupta.
37. In the present case, accused failed to prove on record that Ex.CW1/4 is false, fabricated or manipulated. The details of cheques in question were explicitly mentioned in the Ex.CW1/4. The word "any debt or liability" in Section 138 of N.I. Act would include a cheque drawn by one person towards legally enforceable debt or liability of another. Under the scheme of the N.I. Act, the offence is committed by the person who issues the cheque and not by the perosn on whose behalf the cheque is issued. If the cheque issued by drawer is dishonored then the drawer of the cheque can not escape from his liability merely on the ground that there was no relationship of "debtor" and "creditor" between the complainant and him. It is also not necessary that cheque should be issued in the name of the person with whom transaction has taken place or against whom debt or liability is owned. The law does not require that cheque is to be issued in the name of that person only to whom the liability is incurred by the accused.
38. The N.I. Act has not envisaged any specific penal provision for conspiracy, abetment and attempt to commit the said offence. The expression used in Section 138 of N.I.Act, viz, "by a person", "on an account maintained by him" and "such person" leaves no place of doubt and manifest that the person who has drawn the cheque on an account maintained by him alone is liable in the event of bouncing of cheque. Hence, in the present case the cheque in question issued on behalf of accused firm towards the liability of M/s Ram Chander Gupta & Co. is lawful qua consideration regarding the transaction in dispute.
39. However, in the present case accused has not produced any cogent proof in support of the defence version by way of leading defence evidence, which makes it improbable that the cheque in question was not issued towards the discharge of legal liability as alleged by the complainant but at the same time strengthens the foundation fabrics of the present complaint case. In the present case, the accused failed to raise a cogent suspicious circumstances in the version of the complainant which belies the foundation of the present complaint case that the cheque in question was not for discharging the legal liability. Further, nothing has been proved by the accused persons to show that the cheque in question was given to the complainant in advance for the supply of goods and that he did not have the legally enforceable liability towards the complainant.
Conclusion
40. I have analyzed the deposition of the complainant. Having considering the testimonies the issuance of cheque is not in dispute which were dishonored for the reason 'Payment stopped by the drawer'. Accused persons are served with legal notice through registered post within the stipulated period and despite that no pay- ment has been made by him.
41. Reading of the evidence on record in its entirety, would show that the evidence is not supportive with the innocence of the accused and as such same is li- able to be dismissed out rightly. Secondly, accused persons have not produced any cogent proof in support of their defence on record. This court is of the opinion that the defence set up is neither definitive nor consistent with innocence of the accused per- sons. It is liability of the accused persons to bring positive evidence, in the wake of denying the liability by bringing evidence showing that accused persons have no lia- bility towards complainant in the present complaint. It was sole burden and duty of the accused persons to prove no liability by raising probable defence when they were defending presumption, which was supporting the dishonoured cheque. The accused persons have failed to discharge the onus.
42. For rebutting the presumptions under the 'Act', a just need is to raise a probable defence. However, in the present case accused persons not only failed to show preponderance of probability in their favour but also not succeeded in their ini- tial burden for rebutting the presumption under the NI Act by not leading any cogent evidence in their support. Thus, this court unhesitatingly holds that the accused per- sons have not been able to rebut the presumptions under section 139 and 118 NI Act standing in favour of complainant.
43. Having considered the entire evidence, complainant successfully proved all the essential requirements of Section 138 of the Act i.e. :
(a) The cheque for an amount is issued by the accused
to the complainant on a bank account maintained by
him.
(b) The said cheque is issued for the discharge, in whole
or in part of any debt or other liability by the ac-
cused.
(c) The cheque is returned by the bank unpaid on ac-
count of insufficient amount to honour the cheque.
(d) The cheque is presented to the bank within 6 months
from the date on which it is drawn and is within the
period of its validity.
(e) 30 days demand notice is issued by the complainant
on receipt of information by him from the bank regard-
ing the dishonour of the cheque.
(f) The drawer of said cheque / accused fails to make
the payment of the said amount of the money to the
complainant within 15 days of the said notice.
(g) The debt or liability against which the cheque was is-
sued is legally enforceable.
44. Accordingly, all the accused persons were guilty for committing the of- fence punishable u/s 138 of the Act, they are hereby convicted for the offence under section 138 of the Act. Let they be heard on point of sentence separately.
Announced in open court on SATVIR SINGH LAMBA
24th Day of May 2012 MM-01(NI ACT)WEST
DELHI