Delhi District Court
M/S. Hellmann Worldwide Logistics Pvt. ... vs . M/S. P C Global Merchandising Pvt. Ltd. ... on 18 November, 2019
IN THE COURT OF SH. BHUPINDER SINGH, SENIOR CIVIL
JUDGE-CUM-RENT CONTROLLER, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
CC No. 1425/17
M/s. Hellmann Worldwide Logistics Pvt. Ltd.
A company duly registered
under the Companies Act, 1956
having its Registered Office at
Plot No. 8, Pocket No. 2, Rangpuri Extension,
Block-A, N. H. 8, New Delhi -110037
........ Complainant
Versus
1. M/s. P C Global Merchandising Pvt. Ltd.
A Company incorporated under Companies Act, 1956
Having its registered office at-
B-24, Panchsheel Enclave,
New Delhi-110017
2. Sh. Sudeep Ranjan Goel
Director , P C Global Merchandising Pvt. Ltd.
B-24, Panchsheel Enclave,
New Delhi - 110017
3. Smt. Ruchi Goel
Director, P C Global Merchandising Pvt. Ltd.
B-24, Panchsheel Enclave,
New Delhi - 110017 ..... Accused(s)
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors
Page 1 of 35
Date of institution : 21.11.2017
Date of final arguments : 24.10.2019
Date of Judgment : 18.11.2019
JUDGMENT
1 Present complaint under Section 138 Negotiable Instruments Act (hereinafter referred to as N.I Act) has been filed by the complainant M/s. Hellmann Worldwide Logistics Pvt. Ltd, against the accused M/s. P C Global Merchandising Pvt. Ltd. and its Directors Sh. Sudeep Ranjan Goel & Ms. Ruchi Goel.
2 Brief facts as alleged by the complainant is that the complainant is a company registered under the Companies Act, 1956 and is engaged in the business of International freight forwarding, cargo handling and other allied services. That the accused no. 1 is a private limited company registered under the Companies Act, 1956 and accused no. 2 and 3 are the directors of the accused no. 1 and are responsible for day to day conduct of the accused no. 1 company. It is averred that accused no. 1 through accused no. 2 and 3 availed the services of complainant company for freight forwarding of its various import and export consignments M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 2 of 35 on credit basis. That the complainant company provided the desired services and arranged for the freight forwarding of the said consignment and paid the incidental freight and other charges and for such transaction, raised invoice upon the accused and each of them was payable by the accused immediately or within the credit period of 30 days, if any , agreed by the complainant company. The complainant has raised the invoices bearing no. DELA071191, DELA071239 & DELA071298 dt. 11.05.2017, 16.05.2017 & 20.05.2017 amounting to Rs. 81,416/-, 2,38,645.73 & 3,46,484.23 respectively from Delhi to Madrid, Spain and invoices bearing no. DELF026547 & DELF026561 dt. 13.05.2017 & dt. 15.05.2017 amounting to Rs. 15,178.94 & 17,888.60 respectively from Hong Kong to Delhi, upon the accused. That the abovesaid invoices were duly delivered to the accused for payment alongwith all the related documents and accused was liable to pay full value of the said invoices to the complainant as per the agreed understanding.
3 It is averred that the accused(s) in partial discharge of their legal liability to pay the above said invoices, handed over the three cheques bearing no. 135067, 135068 & 135069 all dt. 31.08.2017 amounting to Rs. 1,12,193/-, Rs. 2,33,881/- & Rs. 3,39,554/- respectively all drawn on Punjab National Bank, Sheikh M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 3 of 35 Sarai, Phase-1, New Delhi -110017. The said cheques were signed by the accused no. 2 as authorize signatory thereof. However, all the cheques on presentation was dishonoured with the remarks "Insufficient Funds" vide cheque return memo dt. 07.09.2017. A legal notice dt. 03.10.2017 was served upon the accused(s). Despite service of notice through speed post and courier, accused(s) did not make any payment.
4 After filing of complaint, pre-summoning was led by the complainant. That evidence was considered by the court and it was found that there were sufficient grounds to proceed against accused and summons were issued upon the accused for the trial for the offence under Section 138 NI Act.
5 Notice under Section 251 Cr.PC was framed against the accused to which they pleaded not guilty and claimed trial. The plea of defence taken by the accused 2 was that he used to handover the export shipment to the complainant for clearance and give them 60 days (or more) PDCs security cheques to the complainant at the time of handing over of the original documents by the complainant to the shipper. At the date specified in the PDC cheques, they used to make payment through RTGS and take the cheques back. He M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 4 of 35 further stated that, this time the complainant had taken all the original cheques but did not hand over any original document to us which created financial loss to us. He further stated that even after several intimations when complainant did not sent the original documents, they sent mail to the complainant informing them that we are stopping the payment of the cheques in question.
The plea of defence taken by the accused 3 was that the cheques do not bear her signatures.
6 During evidence Sh. Sunil Kumar Sharma, AR of the complainant adopted his pre-summoning evidence as his post summoning evidence and has relied upon the documents already exhibited as CW 1/1 to Ex. CW 1/31. He was duly cross examined by Ld counsel for the accused(s) wherein he stated that the complainant is conducting business with the accused no. 1 since last four years but cannot say whether the business is being conducted since 2013-14 exactly. He admitted that no written agreement was ever executed between the complainant and the accused. He further deposed that it was not as per mutual understanding between the complainant and the accused but it was due the instructions of the buyers that the shipment of garments of the accused were M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 5 of 35 dispatched by the complainant through air cargo acting as freight forwarders. He further deposed that the that original shipping document such as shipping bills, exchange control copy, EP copy, Bills of lading and air bills were handed over to the accused after the dispatch of shipment. He further deposed that the post dated cheques of the exact bill amount were taken from the accused after handing over the original documents to them. He denied the suggestion that 60 days of security cheques were taken but admitted that from the very beginning it was a practice that after the dispatch of shipment the PDCs were taken back and RTGS payment was made on the date of PDC to the complainant. He showed his ignorance whether the original documents were deposited by the accused in the bank to get the export incentives. He further admitted that the original shipping documents were necessary for the statutory compliance of regulations of RBI. He denied the suggestion that the accused could not have procured export incentive without these original documents. He further denied the suggestion that the accused had sent repeated reminders to complainant for submitting original shipping documents. He admitted that they had received mail from the accused dated 05.09.2017 and 07.09.2017 in this context. However, he can not say whether any mail dated 04.10.2017 was received. He admitted that as per these mails the M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 6 of 35 accused had requested them not to present the cheques without handing over the original shipping documents.
The witness was confronted with the mails to which he stated that he would have to check whether they are the same mails or not. He further deposed that on 05.09.2017 the accused had informed them that as per the buyer, short shipment has been received and the debit notes were issued to them by the accused on the ground that short shipment has been sent by them to the buyer. He further deposed that he cannot say whether due to short shipment and non supply of original documents, the accused has suffered huge losses in business. He deposed that on 05.09.2017 the accused has informed them orally and in writing that they had overcharged freight charges and requested them to settle the matter. He denied the suggestion that the accused after intimating them had stopped the payment of security cheques through their banks.
He further deposed the accused had not informed them that the facility of bank OD and CC are available with their bank through which payment can be made to the complainant if they have legal due liability towards the complainant. He admitted that Ms M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 7 of 35 Ruchi Goel has not issued the cheques in question. He denied the suggestion that he has deliberately not filed his employee identity as he is no more the employee and had resigned from the complainant company on 14.08.2018. He deposed that he is serving three months notice period in the complainant company but has not filed any document to prove that he is serving the said notice period. He denied the suggestion that the accused has not received the legal demand notice. He further denied the suggestion that the accused had handed over in good faith PDCs to them and they misused these impugned cheques prior to handing over the original documents to him. He further denied the suggestion that accused has no legal liability to make payment of the impugned cheques.
He denied the suggestion that due to non availability of original shipping documents, documents could not be handed over to accused banker and RBI and there was violation of statutory compliance. He further denied the suggestion that the complainant acknowledged the shipment in proper condition and full quantity or that the complainant company did not supply full material to the buyer of PC Global. He admitted that the original documents were not handed over to the complainant but volunteered that the complainant did not approach them for taking those documents. He M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 8 of 35 denied the suggestion that the PDCs were handed over earlier to complainant in good faith prior to the receipt of original documents. He denied the suggestion that they have deliberately not filed the board resolution as Mr. Subender Das is neither the MD of the complainant company nor he has authorized him to file the present complaint. He denied the suggestion that they have deliberately got remark Refusal written on the envelope. Thereafter the CE was closed and the matter was fixed for statement of accused.
7 While recording the statement of accused no. 2 and 3, all the incriminating evidence brought on record by complainant was put to the accused(s) which were denied by them.
Accused no. 2 in his statement under section 313 Cr.PC has stated that he has issued these cheques but these cheques were security cheques. The cheques were dishonoured since he had stopped the payment with pre-intimation to the complainant. He further stated that accused no. 1 received the legal notice. He further stated that the complainant has mischievously presented the security cheques which were returned unpaid. He stated that the complainant was a buyer nominated. He further stated that the complainant till date has not returned the original documents due to which he M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 9 of 35 suffered the monetary loss since he did not receive drawback or focus licence.
Accused no. 3 in her statement under section 313 Cr.PC stated that she had not issued any cheque. She further stated that she does not know whether any legal notice was received or not. She stated that complainant has mischievously presented the security cheques which were returned unpaid. She further stated that she is not the authorized signatory and has no concern with the day to day affairs and accounts of accused no. 1.
8 Accused(s) in support of their defence have examined accused no. 2 as DW 1 who relied upon the following documents:
1. Copy of board Resolution is Ex. DW 1/1
2. Copy of cheques alongwith bank statements returned as per business practice are Ex. DW 1/2
3. Letter dt. 28.01.2019 issued by Punjab National Bank is Ex. DW 1/3
4. E-mail dt. 26.03.2019 is Ex. DW 1/4 He was cross examined at length by Ld counsel for the M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 10 of 35 complainant. He deposed that he does not remember the name of the buyer company and further do not know when the complainant was nominated by the buyer company. He admitted that all shipments were export shipments from India to Spain but do not remember whether services of complainant were availed in addition to the jobs of the buyer company. He deposed that they might had availed the services of the complainant for three import shipments as well which were not related to the said buyer company. He further admitted that those import shipments were not sent by the buyer company, it might be that services of the complainant were availed for one export shipment to M/s. J Corp. Inc. Canada. He deposed that the legality of all the export shipments depends upon the original documents since only original documents are accepted by banks and other govt. departments and therefore, the original documents were required from the complainant. He stated that he was required to deposit original documents in P N B , Chirag Delhi for all financial and statutory purposes e.g. RBI and Indian Customs Department and they are supposed to supply original documents to RBI etc on demand through our bank or in case of failure, directly within 15 days of the dispatch of the shipment. He showed his ignorance whether he used to sent his person to the complainant company for collection of documents or that whether he got collected the original documents of certain shipments from the complainant on 17.08.2017 and 18.08.2017.
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 11 of 35 He deposed that their bank sent them various letters demanding the original documents since they were asked by the statutory bodies to deposit the same. He further deposed that he suffered financial losses due to non submission of original documents in the form of incentives received from the government on the export of goods. He stated that the incentives are in the form of duty drawback, ROSL etc. He further stated that the incentives are received consignment wise but a number of consignments are joint together while crediting those incentives in their account. He further stated that he does remember the shipments on which incentives have not been received by them but volunteered that details have been sent through notice. He showed his ignorance whether for certain shipments of the complainant, incentives have already received by them or the date of the notice but the notice has been placed on record. He further showed his ignorance whether all the import shipments were duly received by the complainant company.
He further deposed that since he does not know the foreign procedure, he cannot say whether an export delivery order is required from the counterpart of the complainant in the foreign country for receipt of all the export shipments. He admitted that all the export shipments were duly delivered to their buyer through the complainant. He further deposed that they had exported ready made M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 12 of 35 garments after packing them in our factory in boxes and invoice and packing list was duly sent to the complainant after being approved from the buyer before handing over the shipment to the complainant containing the details of the number of boxes , pieces in each box as well as the weight of the box. He showed his ignorance whether the complainant used to count those boxes or not before receiving the consignment. He further deposed that he does not remember whether the buyer has pointed out shortage in the number of boxes of any of the shipments but volunteered that they pointed out the shortage in the number of pieces.
He deposed that they have not raised any debit note on the complainant for the shortage of shipment. He stated that he does not remember the airway bills of those shipments, where there was shortage but can submit the details of the airway bills af ter checking his records. He further deposed that he does not remember the date on which the debit notes of the buyer were sent to the complainant or that whether they were sent all at once or in regular intervals. He further deposed that he does not remember when the debit notes were received by them from the buyer.
He denied the suggestion that the usual mode of M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 13 of 35 communication with the complainant was only through mail but volunteered that it was also on phone also due to long business relationship. He further deposed that the email ID ie. plaza123@airtel belonging to them is used for communicating with the complainant. He admitted that they had received all the invoices from the complainant but does not know whether the trail of mails Mark A (colly) were sent / received by their office to/from the complainant. He further deposed that the email dt. 23.08.2017 Ex. DW 1/C-1 was sent on his behalf from his office to the complainant.
He further stated that he cannot state the airway bills of the short shipments but volunteered that they are always provided to them by pattern number mentioned in the debit note of the buyer. He further stated that he cannot state the airway bill number of those shipments for which no incentives have been received by them. He admitted that he had received the email dt. 25.08.2017 Ex. DW 1/C-
2. He further admitted that the cheques in question were issued by them after the receipt of invoices against specific invoice number. He showed his ignorance towards the date or the month of handing over of these cheques and therefore cannot state whether the cheques in question were handed over after 25.08.2017.
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 14 of 35 The witness was confronted with the document Ex. CW 1/3 and Ex. CW 1/4 to which witness states that he cannot say whether these are invoices of export or import. He admitted that no incentives are received against the import shipments. He showed his ignorance towards the requirement of delivery order for taking delivery of import shipments from freight forwarders. He further deposed that he cannot say whether we have received duty drawback against various invoice number stated below:
Invoice number Duty Drawback/scroll Date
number
DELA 071191 19939/2017 23.05.2017
DELA 071239 20028/2017 31.05.2017
DELA 071298 20797/2017 01.08.2017
He denied the suggestion that they did not receive any demand letter from any statutory authority demanding original documents. He further denied the suggestion that they did not suffer any financial loss or that duty drawback was the only incentive which the accused was entitle to receive for export shipment. He further denied the suggestion that the original shipping documents were not required for receiving duty drawback/ export incentives. He further denied the suggestion that the duty drawback for all the M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 15 of 35 export shipments sent through the complainant have already been received by them but volunteered that they have received only some. He further denied the suggestion that no notice was sent to the complainant by them specifying the shipments for which no export incentives have been received according to them. He further denied the suggestion that the email Ex. CW 1/X-1 was only an afterthought and contain false averments. He further denied the suggestion that the cheques were not issued as security cheques or that they were issued for the payment of specific invoice. He showed his ignorance whether there was no agreement between the complainant and the accused to make payment by first giving PDCs to the complainant and later making payment of those cheques through RTGS and taking those PDC back or that on several earlier occasion such PDCs were returned back by the complainant on the request of the accused after receiving payment through RTGS .
He denied the suggestion that their buyer never reported any short shipment in any of the shipment sent through complainant company. He admitted that the buyer never made any complaint against the complainant. He further deposed that he cannot say whether the complainant issued invoices at the agreed rate only.
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 16 of 35 He further deposed that the documents exhibited as DW1/3 and DW1/4 were in possession of Mr. Vijay one of the employee of accused no. 1 who is still working in the company and has handed over these documents to him around three to four weeks back. He stated that he had not seen these documents before he handed over the same to him. He denied the suggestion that the document Ex DW1/4 is not related to the present case at all but volunteered that it transpired that the buyer is not happy with the service of the Hellmann the service was withdrawn from Hellmann and given to new clearing and forwarding agent. He further denied the suggestion that Ex. DW1/4 has not been sent by his buyer to him. He further denied the suggestion that Ex DW1/3 is not related to the present case at all. He further deposed that the remittances shown in the list attached with EX DW1/4 are the remittances made by the foreign buyers in the account of the accused company and these are not remittances of any export incentives/duty drawbacks. These remittances have been made after dispatch of the related shipment. He again said that it is done once the shipments is handed over to their forwarder and forwarder gets approval from the buyer of invoice and packing list submitted by us to the forwarder. He further deposed that by "dispatch" he mean once the goods are handed over by us to the forwarder for clearing and handing over to M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 17 of 35 the concerned airline for shipping. He further deposed that he cannot say whether the remittances shown in the list relates a distinct export invoice as sometime remittances are made by clubbing more than export together. He further deposed that he cannot tell which of the remittances shown in the list is related to which of the invoices placed on record by the complainant. He further stated that he can neither admit nor deny the suggestion that none of the remittances as per Ex. DW 1/3 relate to the export transaction under the complainant invoices filed in the present case but volunteered that he can not tell the same in the absence of original shipping documents. However, most of them are pertaining to the complainant company. He further stated that he can not say whether any reply to the EX DW1/3 was sent by the accused no. 1 and whether any other letter except DW1/3 was received from the bank. He admitted that the accused no. 1 did not comply with Ex DW1/3 and the export shipping documents related to any remittances shown in the list were submitted to the bank but volunteered that original export shipping documents mainly and importantly original shipping bill, original EP copy and original airway bill which is the most important document that gives authenticity and legality of the shipment in question be handed over properly. He further stated that he cannot say whether RBI or PNB had taken any action against the accused no. 1 for not M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 18 of 35 submitting the shipping documents required vide Ex DW1/3 which were required to be submitted within 15 to 20 days of the particular remittance. He further deposed that the letter Ex DW1/3 has been handed over by the bank to the office boy of the accused no. 1 company by hand. He further deposed that for the time being there is no work is being carried out with the buyer for whom the services of the complainant company were being availed. He deposed that accused no. 1 company has not sent any export consignment to the said buyer through any other freight forwarder since this case is started.
9 After hearing final arguments, matter was fixed for judgment.
10 In order to bring home the conviction of the accused, the complainant has to show not only unbroken chain of events leading to commission of actual offence on record but also the ingredients of the offence complained of.
11 Before proceeding further, let us go through the relevant provisions of law. The main ingredient of Section 138 of N I Act are as follows:-
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 19 of 35
(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The cheque has been presented to the bank within the period of three months from the date of the cheque or within the period of its validity.
(c) When the aforesaid cheque was presented for encashment, the same was returned unpaid/dishonored.
(d) The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(e) The said cheque has been issued in discharge of any legal debt or other liability.
(f) The Drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice demand.
12 If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/s 138 N I Act.
13 Now, let us deal with the each ingredient of the Section 138 of N I Act to see whether the case against the accused has been M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 20 of 35 proved or not.
WHETHER THE CHEQUE WAS ISSUED OR NOT 14 The accused persons have not disputed the issuance of the cheques in favour of the complainant company. Accused / Sudeep Ranjan Goel in his plea of defence at the time of service of notice under section 251 Cr.PC stated that he had issued only security cheques in favour of the complainant. The cheques in question Ex. CW 1/7 to CW 1/9 have been signed by accused no. 2, the signatures upon which is not disputed. Accused no. 3 Ms. Ruchi Goel has denied execution of the cheques in question and stated in her plea of defence at the time of service of notice under section 251 Cr.PC that she was not the authorized signatory. However, she did not disputed the issuance of the cheques in question by accused no. 2 on behalf of accused no. 1 / M/s. P C Global Merchandising Pvt. Ltd. of which she is also one of the directors.
In view of the evidence on record, it stands proved that the cheques in question Ex. PW 1/7 to Ex. PW 1/9 were issued by the accused no. 2, being authorized signatory of accused no. 1, of which accused no. 3 is one of directors.
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 21 of 35 WHETHER THE CHEQUE WAS PRESENTED WITHIN THE PERIOD OF ITS VALIDITY 15 Perusal of the record reveals that the cheques in question Ex.CW-1/7 to Ex. CW 1/9 all bears the date 31.08.2017 and the same were got dishonored vide cheque returning memos dated 07.09.2017 Ex. CW-1/10 to Ex. CW 1/12 for the reason 'insufficient funds'. The cheque returning memos are not disputed by the accused persons and it clearly shows that the cheque(s) in question were presented within the period of its validity i.e. within three months from the date of issuance of the cheques.
DISHONOUR OF THE CHEQUES IN QUESTION 16 In this case, the complainant has exhibited the cheque returning memos as Ex. CW-1/10 to Ex. CW 1/12 vide which the cheques in question got dishonored. The cheque returning memos have not been challenged by the accused(s) and the accused(s) have also not disputed the dishonour of the impugned cheques due to reasons "insufficient funds".
Therefore, it stands proved that the cheques in question got dishonored vide cheque returning memos Ex. CW-1/10 to Ex.
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 22 of 35 CW 1/12.
SERVICE OF LEGAL NOTICE OF DEMAND UPON THE ACCUSED 17 In the instant case, Ld counsel for the accused(s) have denied receiving any legal notice. The legal notice Ex. CW 1/13 has been addressed to the accused (s) at B 24, Panchsheel Enclave, New Delhi -110017, the address of which is not disputed by the accused(s). The receipts of courier and speed post Ex. CW 1/14 to CW 1/19 vide which notices were sent to the accused (s) and the track report Ex. CW 1/20 to Ex. CW 1/22 have been duly proved and have not been challenged. As per tracking report Ex. CW 1/20 to Ex. CW 1/22, the item i.e the notice was delivered to the consignee. The envelopes containing notices sent by speed post Ex. CW 1/23 to CW 1/25 reflects that the same were refused to be accepted and as such the same were returned to the sender.
18 In CC Alvi Hazi Vs. Palapetty Muhammed & Anr.
(2007) 6 SCC 555 Hon'ble Supreme Court observed that section 27 of the General Clauses Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by a registered post. Further, that when it is the case of the accused M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 23 of 35 that he did not receive the legal notice sent by the complainant then the accused can pay the amount to the complainant within fifteen days of the receiving of the summons from the court.
19 As observed above that the address mentioned on the notice Ex. CW 1/13 has not been disputed by the accused persons, the same is deemed to be served in view of the said judgment. Moreso, no payment has been made by the accused persons even after the receipt of the summons of the court .
20 Even otherwise accused no. 2 Sh. Sudeep Ranjan Goel in his statement under section 313 Cr.PC admitted the receipt of the legal notice by accused no. 1 , of which accused no. 2 and 3 are the directors. In these circumstances, it stands proved that the legal notice Ex. CW-1/13 was served upon the accused(s).
WHETHER THE CHEQUE IN QUESTION HAS BEEN ISSUED IN DISCHARGE OF ANY LEGAL DEBT OR OTHER LIABILITY 21 In the case in hand, the complainant has examined AR of the complainant as CW-1 and he stated in his evidence by way of M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 24 of 35 affidavit that the complainant company is engaged in the business of International freight forwarding, cargo handling and other allied services. Further, that accused no. 1 acting through accused no. 2 and 3 who are its active directors have time to time availed the services of the complainant company for freight forwarding of its various export consignments on credit basis which were duly provided.
22 It has been deposed that for each of such transactions the complainant company raised its invoice upon the accused(s) and it was to be paid within credit period of thirty days. He proved the original office copy of the invoice no. DELA 071191 dt. 11.05.2017 as Ex. CW 1/2 , invoice No. DELF 026547 dt. 13.05.2017 as Ex. CW 1/3, invoice No. DELF 026561 dt. 15.05.2017 as Ex. CW 1/4 invoice no. DELA 071239 dt. 16.05.2017 as Ex. CW 1/5 and invoice no. DELA 071298 dt. 20.05.2017 as Ex. CW 1/6. He deposed that in partial discharge of their liability against the said invoices, the accused persons issued the cheques in question Ex. CW 1/7 to Ex. CW 1/9 which when presented for clearance were dishonoured vide cheque returning memo Ex. CW 1/10 to Ex. CW 1/12 all dt. 07.09.2017 for the reasons funds insufficient.
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 25 of 35 23 It has been argued by Ld counsel for the accused persons that the cheques in question were not to be presented as they were merely security cheques. He has relied upon following judgments to assert that provision of section 138 NI Act are attracted only on account of dishonour of the cheques issued in discharge of liability or that but not on account of security charges.
1 Sudhir Kumar Bhalla V Jagadish Chand (2008) 7SCC 137 2 Laxmi Niwas V Andhra Semiconductors (P) Ltd. 2006 Cr LJ 2648 (All.) 3 Goa Handicrafts Vs Samudra Ropes II (2006) BC 278 (Bom.) 4 M S Narayana V State of Kerala AIR 2006 SC 3366 It is argued that the transaction between the parties at best be attributed to that of breach of contract and is civil in nature. It has been argued that freight charges and other charges were paid by the accused persons but the complainant company failed to provide the original shipping documents to the accused and that the charges levied by the complainant is in excess compared to the market rates. It is also argued that the buyers had informed the accused that there was a short receipt of shipment and raised debit note on the accused leading them to bear a loss of Rs. 6.50 lacs, apart from the interest thereupon. It is further argued that the cheques in question were given by the accused without taking the M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 26 of 35 original shipment documents on the verbal assurance of the complainant but the same were not provided to the accused which consequently could not be handed over to its bankers/ RBI and as such could not get the export incentives amounting to Rs. 20 lacs approx. apart from the usual interest. Lastly, it is argued that the PDCs were not to be presented to the bank due to non delivery of original documents and reminders for delivering the original shipping documents were sent to the complainant by way of email dt. 05.09.2017, 06.09.2017 and 04.10.2017.
24 As per the evidence and documents on record it is established that the freight services were provided to the accused persons by the complainant company and the shipments were duly delivered to the buyer as mentioned by the accused persons, through the complainant company. Invoices issued in consequence of such delivery of goods and issuance of cheques in question by accused no. 2 against such invoices is not disputed. It is not the case of the accused persons that the payment towards the invoices raised against the delivery of goods has been made. As per the accused persons only, as per trade practice the complainant company after dispatching the shipments was to hand over the original shipping documents such as shipping bills, exchange control M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 27 of 35 copy, EP Copy etc to the accused persons whereby PDCs as security towards freight charges was to be given by the accused persons. As per the accused persons, there was mutual consensus between the parties that such PDCs were to be returned after payments were made through NEFT /RTGS. However, no such agreement / consensus has been proved in evidence. DW 1/ Sh Sudeep Ranjan Goel in his cross examination dt. 23.03.2019 deposed that he did not know whether there was an agreement between the complainant and accused to make payment by first giving PDCs to the complainant and later making payment of those cheques through RTGS and taking those PDCs back.
25 Even otherwise the accused persons have not proved that any payment towards the cheques in question against the invoices raised by the complainant company has been made by way of NEFT /RTGS. The cheques in question were to be returned only after payment was received by way of NEFT/ RTGS and the purpose of giving the said cheques was only to secure the payment in case the same was not made by way of NEFT/RTGS which happened in the present case. The judgments relied upon by Ld counsel for the accused persons are of no help to them since the cheques in question were to be used towards discharge of the debt / liability if M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 28 of 35 the same was not satisfied by way of RTGS/NEFT.
26 As far as the plea of short delivery of export shipments has been taken by Ld. Counsel for the accused persons during arguments is concerned, the said fact has not been substantiated during evidence. No specific instance of any short delivery of shipment has been provided which otherwise is not relevant for the purpose of present complaint case. DW 1/ Sh. Sudeep Ranjan Goel in his cross examination conducted on 15.03.2019 admitted that all export shipments were duly delivered to their buyer through the complainant. After such admission, there was no occasion to raise such plea of short delivery of shipment. It is not the case of the accused persons that blank signed cheques were handed over to the complainant. As such, it can be validly interpreted that the amount in the cheques in question was filled in by the accused persons themselves or through their staff / agents against the particular invoice which is rather an admission on behalf of the accused persons of their legal liability towards the invoices raised by the complainant company.
27 Though the plea of the accused persons that for non supply of the original shipping documents, they could not get the M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 29 of 35 incentives and as such suffered losses has not been proved, even otherwise such fact is of no help to them as they could have initiated separate proceedings against the complainant for providing such shipping documents or for damages allegedly incurred. Admitted, no such proceedings have been initiated by the accused persons till date. No details of any shipment for which duty drawback has not been received by the accused persons has been provided. Further, the payment of freight charges to the complainant company was not incumbent upon receiving of duty drawback incentives by the accused persons. Ld counsel for the accused persons during cross examination of CW 1 gave suggestions that original shipping documents such as shipping bills, exchange control copy, EP Copy , bills of lading and Air bills were handed over to the accused after the dispatch of shipment and that PDCs were taken from the accused after handing over the original documents to them of the exact bill amount. Both such suggestions were admitted by the witness , meaning thereby it has been admitted on behalf of accused persons that the original shipping documents were received by the accused persons and that PDCs were given by the accused persons only after receipt of such documents.
28 Hon'ble Supreme Court in Sampelly Satyanarayna Rao M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 30 of 35 Vs Indian Renewable Energy (2016) 10 SCC 458 has held that if the liability was existing on the date of presentation of the cheque, section 138 NI Act would still be attracted even if the cheque was originally given as PDC / security cheque.
29 In the judgment of 'T Vasanthakumar vs. Vijaykumari, 2015 (2) DCR 11', Division Bench of Hon'ble Supreme Court of India held that if the cheque as well as the signatures thereupon had been accepted by the accused, the presumption u/s 139 of NI Act would operate and burden would be upon the accused to disprove the cheque or the existence of any legally recoverable debt or liability. Hon'ble Supreme Court relied upon the three Judge Bench Judgment of the Apex Court in 'Rangappa vs. Sri Mohan, (2010)11 SCC 441', wherein it was held that "The presumption mandated by Section 139 includes a presumption that there exists a legally enforceable debt or liability. This is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the respondent complainant."
30 In the case in hand, the accused (s) have not disputed the M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 31 of 35 delivery of the cheques to the complainant by them/ on their behalf or signatures thereupon. Therefore, in these circumstances, the presumption u/s 139 NI Act would operate and the burden is upon the accused (s) to disprove the existence of any legally recoverable debt or liability.
31 However, in the case in hand, the accused (s) have failed to discharge the said burden and they have failed to disprove the existence of legally recoverable debt or liability of the cheques amount in question. On the other hand, the complainant has successfully proved the facts alleged in the complaint.
32 Moreso, accused no. 2 vide email dt. 23.08.2017 Ex. DW 1/C-1 had sought time till 30.08.2017 for clearing the overdue payment which has been admitted in his cross examination. No such defences as argued in the present case have been taken therein. It reflects the admission on the part of the accused (s) of their liability towards the complainant for which cheques in question were issued. No contents of emails dated 05.09.2017 that the payments are incumbent upon delivery of original documents finds mention in the said email Ex. D 1/C-2.
M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 32 of 35 33 Hence, in view of the above said discussions, it stands proved that the accused no. 2 issued the cheques in question Ex. CW-1/7 to Ex. PW 1/9 on behalf of accused no. 1 in discharge of legal liability.
34 Accused no. 3 / Ruchi Goel, director of accused no. 1 in her plea of defence at the time of service of notice under section 251 Cr.PC as well as in her statement under section 313 Cr.PC have stated that she is not the authorized signatory and has no say in the day today affairs and accounts of the company. however, no evidence was led by the accused persons to prove the same. DW 1/ Sudeep Ranjan Goel , the other director of accused no. 1 did not depose about this fact in his affidavit of evidence Ex. DW1/B. CW 1 in his affidavit Ex. CW1/B has deposed that accused no. 2 and 3 are in-charge of and responsible for the day to day conduct of the business of accused no.1 and they transacted business with the complainant on behalf of accused no. 1. The said averments were not challenged by Ld counsel for the accused persons while cross examining CW1 except putting a question whether accused no. 3 is an authorized signatory or has issued the impugned cheques. CW 1 deposed that he is not aware whether accused no. 3/ Ruchi Goel is neither the authorized Signatory nor M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 33 of 35 has singed the impugned cheques. No questions were put to the witness / CW1 regarding the accused no.3/Ruchi Goel having no involvement in the day to day affairs of the accused no. 1. As such, she is liable along with other directors for the purpose of the present complaint.
THE DRAWER OF CHEQUE HAS FAILED TO MAKE THE PAYMENT WITHIN 15 DAYS OF THE RECEIPT OF LEGAL NOTICE OF DEMAND.
35 In the instant case, CW1 Sh Sunil Kumar Sharma, the AR of complainant has stated in his evidence that despite service of legal notice of demand, the accused have failed to pay the cheques amount. The accused no. 2 and 3 , who are Directors of accused no. 1 have not alleged having paid the cheques amount and have denied the liability to pay the same.
36 In view of the facts and circumstances and evidence on record, it stands proved that accused(s) have not made the payment of the cheque (s) amount after service of legal notice of demand.
37 In view of the findings of this court, the complainant has duly proved all the ingredients of offence punishable u/s 138 NI Act M/s. Hellmann Worldwide Logistics Pvt. Ltd. Vs. M/s. P C Global Merchandising Pvt. Ltd. & Ors Page 34 of 35 and the accused are liable to be convicted for the offence u/s 138 NI Act.
38 Accordingly, accused no. 1 M/s. P C Global Merchandising Pvt. Ltd. through its Director Sh. Sudeep Goel/ accused no. 2 and Ms. Ruchi Goel/ accused no. 3 stand convicted for the offence u/s 138 N I Act.
Announced in the open ( BHUPINDER SINGH) court on 18.11.2019 SCJ-CUM-RC:PHC:NEW DELHI
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