Delhi District Court
In Case Titled As M/S Kumar Exports vs . Sharma Carpets, Air (2009) on 9 October, 2012
IN THE COURT OF SH. VISHAL PAHUJA
MM NI ACT-02 (WEST), DELHI
CC No.2052/1/10
Sh. Mohd. Shamim
S/o Late Sh. Abdul Rauf,
R/o H. NO. 7885, Gali Haji Mehboob Wali,
Bara Hindu Rao, Delh-6. ......Complainant
Versus
Mrs. Meera Aggarwal
W/o Sh. Sandeep
Proprietor of AMARC Impex,
Head Office D-25, Sector-63, First Floor Noida
District Gautam Budh Nagar,U.P. .........Accused
Date of Institution : 16.11.2007
Offence complained of : U/s 138 N.I. Act.
Date on which the order was reserved : 04.10.2012
Date of Decision : 09.10.2012
Final Order : Acquitted / Held not
guilty
CC No.2052/1 1/ 8
Judgment:
Vide this judgment, I shall dispose of the present complaint filed
u/s 138 N.I. Act. Before going further, it is necessary to dwell upon the
brief facts of the case.
Brief Facts:
1. It is alleged by the complainant in his complaint that the accused issued a cheque bearing no. 000102 dated 01.08.07 amounting to Rs. 50,000/- Ex.CW1/1 in favour of complainant drawn on Yes Bank Limited Noida in discharge of legal liability. It is further alleged that on presentation of the said cheque by the complainant with his banker the same returned back unpaid with remarks "Funds Insufficient", vide returning memo dated 22.09.07 Ex.CW1/2.
2. It is further alleged that the complainant issued a legal demand notice dated 03.10.07 Ex.CW1/5 which was duly served upon the accused on 07.10.07 by way of registered A/D as well as UPC. However, the accused failed to make the payment within statutory period after receiving legal demand notice, hence the present case is filed.
3. Complainant filed his pre-summoning evidence. Considering the same, prima facie offence u/s 138 NI Act was made out. Consequently, the accused was summoned u/s 138 NI Act. On her appearance, the accused was granted bail on furnishing bail bonds and thereafter, the CC No.2052/1 2/ 8 notice u/s 251 Cr.P.C stating substance of accusation was served upon the accused on 13.07.11 to which she pleaded not guilty and claimed trial.
Complainant Evidence:
4. Complainant tendered his evidence by way of an affidavit Ex.CW1/A in which he reiterated the same facts as that mentioned in his complaint.
Statement of accused:
5. In her statement u/s 313 Cr.P.C read with section 281 Cr.P.C the accused admitted her signatures on the cheque. It is stated by the accused that she issued a cheque to the complainant as advance payment against the goods to be supplied by the complainant. It is further stated that complainant supplied part material and did not supply the remaining goods, however, she settled the matter with the complainant whereby some of the amount towards goods supplied were paid but the complainant did not return back the cheque in question to her. Accused denied receiving of legal demand notice issued by complainant and also denied having any legal liability towards the complainant.
Defence Evidence:
6. The accused did not wish to lead defence evidence, hence the CC No.2052/1 3/ 8 defence evidence was closed.
Reasons for Decision:
7. Accused has admitted his signatures on the cheque in question and issuance of the same to the complainant, therefore the execution of the cheque in question stands duly proved. Now once the execution of the cheque has been duly proved the presumption of law U/s 118 and 139 comes in favour of the complainant and the initial burden of proof shifts upon the accused. Let us see whether the accused has been able to rebut the presumption of law by adducing sufficient evidence on record or not.
8. Ld. Counsel for the accused has raised a contention that accused has never been served with the legal demand notice issued by the complainant therefore no cause of action arises. Hence the complaint is liable to be dismissed on this account. On the other hand, Ld. Counsel for the complainant has submitted that the legal demand notice has been duly served upon the accused by way of registered post as the acknowledgment card has received back with the receiving therefore, the service of the legal notice stands duly proved.
The returning of the AD card after service of the legal notice is itself a sufficient proof that the notice have been duly served upon the addressee. Moreover, the accused has not disputed the address written upon the AD Card on which the legal notice have been served upon so presumption u/s 27 of General Clauses Act can easily be drawn. Accordingly, the service of the legal notice stands proved.
CC No.2052/1 4/ 8Hence the contention raised by the accused stands rebutted.
9. Ld. Counsel for the accused raised a contention that the accused does not have any liability towards the complainant and the cheque in question was issued as advanced payment against the goods to be supplied by the complainant. It is further argued that the accused supplied part material and payment was made against the same by the accused therefore, the cheque in question is without any consideration. Hence, the accused cannot be held liable for the same. It is further argued that the complainant in his complaint has not mentioned even the liability on account of which the cheque was issued.
On the other hand, ld. Counsel for the complainant argued that the cheque was issued by the accused in discharge of liability on account of goods purchased by her and the accused was liable to pay the cheque amount which got dishonored. Hence, the accused is liable to be held u/s 138 of NI Act.
Countering the arguments, Ld. Counsel for the accused argued that the complainant has not placed any written document either in the form of written order or in the form of delivery receipts which can show that the goods have been delivered by the complainant. Moreover, the complainant has also not placed on record any other document which can show the supply of the goods to the accused. It is further argued that the complainant in his cross examination admitted document Ex.CW1/D1 which means the contents therein stands proved and as per the document the balance shown therein is 55,830/- out of which Rs.50,000/- has already been paid by the accused through his Jijaji CC No.2052/1 5/ 8 and the same has been admitted by the complainant in his cross examination so this shows that the payment against the goods supplied by the complainant has already been made and the cheque amount claimed by the complainant is without any consideration as no further goods have been supplied by the complainant therefore, the presumption lying in favour of the complainant stands rebutted.
10. As per judgment passed by the Hon'ble Supreme Court of India in case titled as M/s Kumar Exports Vs. Sharma Carpets, AIR (2009) 2, the accused is only expected to rebut the presumption of law on the scale preponderance of the probabilities and not by proving defence beyond reasonable doubts. The accused can rebut the presumption by adducing sufficient evidence which can compel the court to believe in its existence. It is also not mandatory that the accused should step into the witness box for leading any direct evidence rather the accused can rebut the presumption of law by referring the material placed on record and relying upon the circumstances.
In the present case the important fact has been proved by the accused by relying upon the document Ex.CW1/D1 which has been admitted as correct by the complainant. Now the document which has admitted as correct the contents of the same are also presumed to be correct. As per the document the balance has been shown as 55,830/- out of which the accused has paid Rs.50,000/- to the complainant which the complainant admittedly received from the Jijaji of the accused however the complainant failed to explain whether the same was received against any other transaction presuming thereby that the payment payment has been received on behalf of the accused herself.
CC No.2052/1 6/ 8Secondly, if we go by the version of the complainant that the cheque was issued against the goods by the accused to the complainant then I am failed to understand why the complainant has failed to produce any documentary proof in the form of written order placed by the accused, delivery receipt qua the goods supplied or any form no. 38 of sale tax which would have been issued in case of supply of the goods to UP from Delhi creating a strong doubt in the version of the complainant to the effect that the goods were delivered ever. Moreover, complainant does not have prepared any ledger account which was mandatorily required as transactions were being carried regularly between him and the accused.
11. Ld. Counsel for the accused has relied upon the judgment passed by the Hon'ble Supreme Court of India in case titled as P. Venugopal Vs. Madan P. Sarathi Crl. No. 1699 of 2008, whereby it was held that existence of debt or other liabilities have to be proved in the first instance by the complainant whereas in the present complaint the complainant has failed to prove the specific liability on the part of the accused as nothing has been mentioned in the complaint against which the cheque has been issued. The accused has taken same plea consistently in his statement u/s 313 r/w 281 Cr.PC also. In my view the evidence lead by the accused by referring to the material placed on record and by relying upon the circumstances is sufficient enough for rebutting the presumption of law lying in favour of the complainant. Hence, the presumption stands rebutted.
12. Once the presumption of law has been rebutted by the accused CC No.2052/1 7/ 8 the onus again shift back upon the complainant. Now the presumption does not again come in favour of the complainant for his rescue and he has to stand on his own legs by conclusively establishing his case. In the instant case complainant failed to discharge his burden of proof by bringing any independent evidence on record to show the liability of accused with respect to cheque issued.
Decision:
13. I have gone through the material placed on record as well as arguments advanced by the ld. Counsel at length. After the detailed analysis of evidence lead by the parties this court is of the view that accused has been successful in rebutting the presumption and raised a reasonable probable defence in his favour. The complainant could not prove its case beyond reasonable doubt as the burden of proof lying upon him remain undischarged. The essential ingredients for the offence u/s 138 of NI Act are not complied with. Hence, accused is entitled to be given benefit of doubt and therefore stands acquitted of the offence u/s 138 NI Act.
Announced today in the (Vishal Pahuja)
open court on 09.10.2012 MM NI ACT (WEST)/DELHI
09.10.2012
CC No.2052/1 8/ 8