Delhi District Court
M/S Patel Integrated Logistics Ltd. vs . M/S Dart Air Services Pvt. Ltd. & Ors. on 24 November, 2014
IN THE COURT OF SH. GOPAL SINGH CHAUHAN
METROPOLITAN MAGISTRATE, DWARKA COURTS, NEW DELHI
M/s Patel Integrated Logistics Ltd.Vs. M/s Dart Air Services Pvt. Ltd. & Ors.
CC NO. : 163/14
P.S. : Dwarka
U/s : 138 Negotiable Instruments Act
J U D G M E N T
1. Date of the commission of offence : 04/03/2009 approx.
2. Name & address of the : M/s Patel Integrated Logistics Ltd., Complainant Through its Authorized Representative Sh. Ravinder S. Rautela Branch Office 301, Pocket6, Best Arcade, Plot No.3, Sector12, Dwarka, New Delhi110075.
3. Name of the accused and address : 1) M/s. Dart Air Services Pvt. Ltd.
A50/4, Mayapuri Industrial Area, New Delhi110064.
2) Mr. Vinod Nautiyal (Director) M/s. Dart Air Services Pvt. Ltd.
B5 & 6/4296, IInd Floor Vasant Kunj, New Delhi110070.
3) Ms. Anita Sharma (Director) M/s. Dart Air Services Pvt. Ltd.
RZD3/207, Gali No.9, Mahavir Enclave, New Delhi110045.
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4. Offence complained of : U/S 138 Negotiable Instruments Act
5. Plea of accused : Pleaded not guilty
6. Final order : Acquitted
7. Date of such order : 24/11/2014 Date of Institution of case : 19/03/2009.
Date of decision of the case : 24/11/2014.
JUDGMENT
1. By way of the present judgment, I shall decide the complaint case U/s 138 of Negotiable Instrument Act 1881 (as amended upto date) filed by the complainant M/s Patel Integrated Logistics, through its attorney Sh. Ravinder S. Rautela against the accused persons.
2. The brief facts of the case in hand are that the complainant company is registered under the Companies Act, 1956. That the accused no.2 and 3 being directors of the accused no.1 company, had approached the complainant company for doing business transaction on behalf of the accused no.1 company and thereafter, have been utilizing the services of the complainant for dispatch of courier bags to overseas locations. That in the course of business dealings and in discharge of one of the liability towards the complainant, the accused persons issued a cheque bearing number 115051, dt.03/02/2009, drawn on Bank of Baroda, Munirka Branch, New Delhi110017, amounting to Case No. :163/14 Page No.2/10 Rs.5,00,000/ in favour of the complainant. That the cheque was signed by accused no.3 in consultation with accused no.2. That accused no.2 and 3 both were responsible for the day to day business and affairs of the accused no.1 company. That on presentation the cheque got dishonored for the reasons "Insufficient Funds" and its intimation was received vide returning memo dated 04/02/2009. Thereafter, a legal demand notice dated 12/02/09 was sent to the accused persons by registered A.D. and UPC, both dt.14/02/2009, calling them to make the payment within 15 days of the receipt of the notice failing which an offence punishable U/s 138 Negotiable Instruments Act is deemed to have been committed. The accused persons have not made the payment within prescribed period, as demanded. As a result of which the complaint under consideration was filed.
3. After the complaint was filed, the Authorised Representative (AR) of the complainant led his presummoning evidence by way of an affidavit and thereafter hearing the counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused persons vide order dated 23/03/2009, for the offence U/s 138 Negotiable Instrument Act 1881. On appearance of the accused persons a separate notice U/s 251 Cr.P.C., dated 12/07/2011, was given to them (to the accused no.1 company through the accused no.2) to which they pleaded not guilty and claimed trial. Vide order dt.25/04/2013, the application moved on behalf of the Case No. :163/14 Page No.3/10 accused persons U/S 145 (2) of N. I. Act was allowed and liberty was granted for crossexamination of CWs.
4. Thereafter, Sh. Ravinder S. Rautela, A.R. of the complainant got himself examined as CW1 in postsummoning evidence and reiterated the contents of the complaint on oath before this court and led his evidence by way of affidavit, Ex.CW1/1. He got exhibited the documents Ex. CW1/A to Ex. CW1/F. Witness was crossexamined by counsel for the accused persons.
Thereafter, vide separate statement of the A.R., C.E. was closed and the matter was fixed for statement of the accused persons U/S 313 Cr.P.C. After recording of the statement, the matter was listed for final arguments as the accused persons opted not to lead defence evidence, however, in the meantime an application U/S 311 Cr. P.C. was moved on behalf of the complainant for seeking reexamination of the complainant's witness. The said application was dismissed by the Ld. Predecessor of this Court and that order was challenged before the Revisional Court. Vide order dt.02/09/2013, the Revisional Court after allowing the revision directed that one opportunity for recalling the witness be given to the complainant's side and documents be allowed to be placed on record during evidence, if permissible under law. Thereafter, CW1 Sh. Ravinder S. Rautela was reexamined, crossexamined and discharged. During his reexamination he has relied upon some more documents, which were exhibited as Ex.CW1/G, Ex.CW1/H and Mark A to Mark G. After re Case No. :163/14 Page No.4/10 examination of CW1, the supplementary statements of the accused persons were also recorded U/S 313 Cr. P.C.
5. In the statement U/S 313 Cr.P.C., in which all the incriminating evidence along with exhibited documents were put to the accused persons, it was stated that although the services of the complainant company were availed on behalf of the accused company, however, the cheque in question was not issued in discharge of the liability. That it was a security cheque which was supposed to be returned after payment of outstanding amount, which was due against the accused company. That an amount of Rs.2,46,410/ was paid to the complainant company on 29/02/2012 through a demand draft. It is also stated that now entire payment has been made to the complainant company. It is claimed that the cheque in question and some other cheques were given to the complainant company as security and the cheque in question has been misused.
After recording of supplementary statement U/S 313 Cr. P.C. of the accused persons, the matter was again listed for final arguments.
6. I have heard Ld. Counsels for both the parties. I have also perused the entire record of the case file and the evidence on record. In order to bring home the conviction of the accused persons, 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. Case No. :163/14 Page No.5/10
7. The first and foremost fact which had to be proved on record to held the accused liable for offence U/S 138 of N.I.Act and which is the basic ingredient of this offence, is that the cheque in question was issued for the discharge, in whole or in part, of any debt or any other liability and the cheque returned back dishonored.
8. It is claimed that services of complainant company were availed on behalf of accused no.1 company from time to time and thereafter, in partial discharge of the liability the cheque in question was issued in favour of the complainant whereas the main grounds of defences raised on behalf of the accused persons were that the liability of the accused no.1 company on the date of cheque was not extended upto the cheque amount and that the cheque was not issued as claimed on behalf of the complainant rather it was given in the form of security among several other cheques.
9. For proving the liability of the accused persons, initially no document was filed on record, however, lateron during reexamination of CW1, 2 invoices, Ex.CW1/G and Ex.CW1/H, amounting to Rs.82,704/ and Rs. 1,02,360/, respectively, were filed. Copy of ledger maintained in the office of the complainant, related to period from 01/04/2007 to 31/03/2008 and from 01/02/2008 to 31/03/2009 (running into 13 pages), was also filed and the same was marked as Mark A (colly.). Several documents related to several judicial Case No. :163/14 Page No.6/10 proceedings between the same parties, conducted before different Courts, were also filed. It is observed that the document, Mark C is the certified copy of the judgment and decree, dt.22/12/2011, passed in favour of the complainant herein and against the accused persons herein, whereby the defendants therein were directed to pay a sum of Rs.6,75,000/, alongwith interest 9% per annum from the date of filing of the suit till realization. Mark D is the certified copy of mediation proceedings, dt.30/04/2010, which were held after the matter was referred to mediation cell during a civil suit filed on behalf of accused no.1 company against the complainant company herein. It is mentioned therein that the plaintiff therein had agreed to pay a sum of Rs.4,84,931/ to the defendant in full and final settlement. Mark B is the certified copy of order dt.09/11/2012, passed during the execution proceedings, wherein the counsel for DH (complainant herein) was permitted to receive the DD of Rs.2,46,410/, earlier stated to be filed on behalf of JD (accused persons herein).
10. As far as the abovementioned documents are concerned, there are not found to be relevant to the proceedings of the matter under consideration as most of these proceedings were held after the alleged commission of the offence U/S 138 of the N. I. Act., on the basis of which the present complaint was filed. Moreover, if any civil decree was passed in favour of the complainant herein and against the accused persons herein or if the DD dt. 29/02/2012, amounting to Rs.2,46,410/, was given during the execution Case No. :163/14 Page No.7/10 proceedings, this does not amount to fasten the accused persons with liability U/S 138 of N. I. Act.
Even from the invoices, Ex.CW1/G and Ex.CW1/H and the statement of account for the relevant period, as reflected from the entry of ledger Mark A, it can be easily make out that the liability of the accused persons on 03/02/2009 i.e. the date of cheque, was not extended upto the cheque amount. The total amount reflected in the invoices, Ex.CW1/G and Ex.CW1/H is Rs.1,85,064/ and as per ledger Mark A, the last entry is of dt.31/03/2009 and the closing balance is being shown as Rs.4,84,931/. In the ledger the credit and debit entry of the cheque in question is also shown, as per which the amount of cheque was credited on 03/02/2009 and was debited on 05/02/2009. It is observed that in the statement of account reflected in ledger Mark A, like other statement of accounts, the column of balance amount is not shown against the each entry of credit or debit, hence, the total outstanding liability of the accused persons on the date of cheque cannot be specifically calculated. However, it is clear that the outstanding liability on the relevant date must be less than the cheque amount of Rs.5 lakhs as after the cheque in question was shown to be credited and debited to the account of accused persons, only one entry of dt.31/03/2009, whereby an amount of Rs.3,117/ was credited and as the closing balance is shown to be Rs.4,84,931/, it can be calculated that on the date of cheque only an amount of Rs.4,88,048/ (4,84,931+3117) was outstanding against the accused persons which is clearly less than the cheque amount of Rs.5 lakhs. Case No. :163/14 Page No.8/10
11. It is not claimed on behalf of the complainant that on the relevant date besides the amount shown as outstanding in the ledger Mark A, the accused persons were liable to pay some other amount also. Moreover, the CW1 during his crossexamination conducted on 20/05/2013, has admitted that the liability of the accused persons on the date of presentation of the cheque was Rs.4 lakhs approx., which is less than the cheque amount. He has also admitted that in the year 2005, 3 cheques of Rs. 5 lakhs were given by the accused persons to the complainant as security and in that regard he had filed copy of undertaking dated 24/08/2007, purported to be given on behalf of the accused persons to the complainant company. The same was marked as Mark X.
12. All the above discussed circumstances, create a serious doubt in the case of the complainant that the liability of the accused persons was extended upto the cheque amount on the date which it bears.
13. Although, under the provision of Section 138 of N.I.Act, presumption has been raised in favour of the holder of the cheque that the cheque was issued for discharge, in whole or in part, of any debt or other liability and onus to rebut this presumption is casted upon the accused but in the present matter the presumption is found to be rebutted since a reasonable doubt has been created in the case of the complainant.
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14. The basic ingredient of the offence U/S 138 of N.I.Act that the liability of the accused persons was extended upto the cheque amount, could not be proved on behalf of the complainant. Due to this reason, there is no need to delve further into other ingredients of Section 138 N.I.Act in this case.
15. In view of above discussion, the evidence, the facts and circumstances of the case, this court is of the considered opinion that the case of the complainant against the accused persons has not been proved beyond reasonable doubt.
Accordingly, the present complaint is hereby dismissed and all the accused persons i.e. M/s. Dart Air Services Pvt. Ltd., Mr. Vinod Nautiyal (Director) and Ms. Anita Sharma (Director), are acquitted of the offence U/s 138 Negotiable Instruments Act.
File be consigned to record room after necessary compliance.
Announced in the open court
today i.e. 24/11/2014 (GOPAL SINGH CHAUHAN)
MM : DWARKA
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