Delhi District Court
Cc No. 589/2018 Aneja Communication vs . Laxmi Communication on 27 March, 2023
CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
IN THE COURT OF MS POOJA YADAV,
METROPOLITAN MAGISTRATE (NI ACT),
KARKARDOOMA COURTS, DELHI
Aneja Communications Vs. Laxmi Communication
CC NO. 589/2018 [Krishna Nagar]
CNR Number: DLET020008852018
Aneja Communications
Through its Proprietor
Mr. Sanjeev
F3/33, Krishna Nagar,
Vijay Chowk, Delhi110 051.
...............Complainant
Vs.
Laxmi Communication
Through its Proprietor
Sh. Chetan Aggarwal,
S/o Sh. Hukum Chand,
R/o: 13/483,Trilok Puri,
Delhi110 091.
....................Accused
Digitally
Page no. 1 of 34 POOJA
signed by
POOJA
YADAV
YADAV Date:
2023.03.27
15:09:03
+0530
CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
Complaint Case No. : 589/2018
Date of Institution : 05.02.2018
Offence alleged : Section 138 Negotiable Instruments
Act, 1881.
Plea of the Accused : Pleaded not guilty.
Final Order : 27.03.2023.
Date of reservation : 02.03.2023.
Date of Decision : 27.03.2023.
Argued by:
Sh.Hemant Shah and Sh. Akshay Rana, Ld. Counsels for the
Complainant.
Sh. Saurabh Sharma,Ld. Counsel for the Accused.
JUDGEMENT
1. The Complainant has filed the present Complaint against the Accused under section 138 Negotiable Instruments Act, 1881.
FACTUAL MATRIX
2. The brief facts as alleged by Sh. Sanjeev Aneja (hereinafter referred to as 'the Complainant') is that he is engaged in the distributorship of interalia Apple mobile phones (IPhones) since last many years. It is further Digitally signed by Page no. 2 of 34 POOJA POOJA YADAV YADAV Date:
2023.03.27 15:09:10 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication averred that Sh. Chetan Aggarwal (hereinafter referred to as 'the Accused') approached the Complainant for purchasing the iPhones to be sold further; accordingly, the Complainant agreed to supply the iPhones to the Accused and hence, developed a business relationship amongst them. It has been further averred that the Accused used to place purchase orders from time to time and the requisite goods were supplied as per the purchase orders and accordingly invoices were raised. Further, it is averred that the Complainant supplied the requisite goods at the address provided by the Accused, and the same were duly received and acknowledged by the Accused.
3. It is further averred that the Accused in discharge of his legal liabilities issued three postdated cheques bearing numbers 002195, 002192 & 002203 dated 12.10.17, 11.10.17 & 14.10.2017 respectively for their respective amount of Rs. 7,36,000/, 10,16,000/ & 10,16,000/ , all drawn on City Union Bank Ltd., Mayur Vihar Branch, Delhi in favour of the Complainant with the assurance that the said cheques would be honored on its presentation for encashment.
4. That when the Complainant presented the said cheques through his banker in his bank i.e., Axis Bank Ltd. Krishna Nagar Branch, New Delhi for encashment on the instructions of the Accused, same were returned with Digitally signed by POOJA Page no. 3 of 34 POOJA YADAV YADAV Date:
2023.03.27 15:09:18 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication remarks "payment stopped by the drawer" insufficient along with the returning memos all dated 26.12.2017.
5. That, thereafter, the Complainant through his legal Counsel sent a legal demand notice dated 09.01.2018 via speed post to the Accused which allegedly got served upon the Accused as the Accused thereafter, contacted the Complainant on phone and sought some time for making the payment of the cheque amount, however, did not make the payment within the stipulated period.
6. Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (for short "the NI Act") was filed on 05.02.2018 by the Complainant, praying for the Accused to be summoned, tried and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has further averred that the matter falls within the territorial jurisdiction of this Court; thus, being tenable at law.
PROCEEDINGS BEFORE THE COURT PRESUMMONING EVIDENCE:
7. That in order to prove a primafacie case, the Complainant led presummoning evidence by way of affidavit i.e., Ex. CW1/1 on 29.08.2018 wherein the Digitally signed by POOJA POOJA Page no. 4 of 34 YADAV YADAV Date:
2023.03.27 15:09:27 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication Complainant affirmed the facts stated in the present Complaint and relied upon the following documents:
a. Ex. CW 1/A: Original Invoice No. TI/209/2017 18 dt. 29.09.2017 for Rs. 7,36,600.28/ b. Ex.CW 1/B: Original Invoice No. TI/215/201718 dt. 03.10.2017 for Rs. 10,16,00.38/ c. Ex. CW 1/C: Original Invoice No. TI/225/2017 18 dt. 06.10.2017 for Rs. 10,15,999.94/ d. Ex. CW1/D: Original Cheque No. 002195 dt.12.10.2017.
e. Ex. CW1/E: Original cheque No. 002192 dt. 11.10.2017.
f. Ex. CW1/F: Original cheque No. 002203 dt. 14.10.2017.
g. Ex. CW1/G: Original Return Memo dt. 26.12.2017.
h. Ex. CW1/H: Original Legal Demand Notice dt. 09.01.2018 ( running into 5 pages).
i. Ex. CW1/J: Tracking report.
j. Ex. CW1/K: Postal receipt dt. 09.01.2018. k. Ex. CW1/L: Complaint dt. 05.02.2018. l. Ex. CW1/M: Reply to Legal demand notice dt.
08.02.2018.
COGNIZANCE & SUMMONING OF THE ACCUSED:
8. That, after considering the Presummoning evidence led by the Complainant and the submissions made by him, POOJA Page no. 5 of 34 YADAV Digitally signed by POOJA YADAV Date: 2023.03.27 15:09:35 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication the Ld. Predecessor took cognizance and issued summons to the Accused vide order dated 29.08.2018.
9. That the Accused entered his first appearance on 16.08.2019 and was admitted to bail on furnishing of bail bonds and a surety bond in the sum of Rs. 10,000/.
NOTICE U/S 251 CR.P.C:
10. That on 16.08.2019, Notice u/s 251 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') containing the substance of accusation, for the offence under Section 138 of the Act was served upon the Accused to which he pleaded not guilty and claimed trial. The plea of defence of the Accused is reproduced hereinunder for reference:
Plea of Defence of the Accused:
1. It is correct that cheques in question belong my bank account number. However, it does not bear my signature nor I have filled the body of the cheques in question.
2. My present cheques were misplaced from my shop in the year 2017. I had stopped the payment with respect to the cheques in question. I do not know the Complainant. I do not know how the cheques in question came in possession of the Complainant. I do not have any liability towards the Complainant.
Digitally signed by POOJA POOJA Page no. 6 of 34 YADAV YADAV Date:
2023.03.27 15:09:44 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
3. I did not receive legal demand notice issued by the Complainant. I do not admit documents Ex. CW1/A to Ex. CW1/C. EVIDENCE OF THE COMPLAINANT:
11. That after the Notice u/s 251 Cr.P.C containing the substance of accusation was served upon the Accused on 16.08.2019, one opportunity to crossexamine the Complainant was granted to the Accused considering the defence taken by the Accused. Thereafter, the matter was heard as a summons trial case.
12. That afterwards, the Complainant was examined as CW 1, who adopted the presummoning evidence as post summoning evidence as it is including the documents relied upon for his examinationinchief. The Complainant i.e., CW1 was then cross examined and discharged on 11.03.2020. No other witnesses were examined by the Complainant.
13. That thereafter, evidence of the Complainant was closed vide order dt. 11.03.2020. That being the case, the matter was then listed for statement of the Accused u/s 313 Cr.P.C read with Section 281 Cr.P.C.
POOJA YADAV Digitally signed by POOJA YADAV Page no. 7 of 34 Date: 2023.03.27 15:09:53 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication STATEMENT OF THE ACCUSED:
14. That in order to give an opportunity to the Accused to personally explain all the incriminating circumstances appearing in evidence against him, statement of the Accused under Section 313 Cr.P.C read with Section 281 Cr.P.C was recorded without oath on 04.04.2022 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him. The Accused denied all the allegations against him and stated as under:
1. The cheques in question bear my signatures. They are drawn on the bank account of my proprietorship. I did not fill the particulars of the cheques in question. I do not know the Complainant. I never purchased any I phones from the Complainant. The complaint is entirely false.
2. I did not receive any such invoice. I did not receive any Iphone. I do not admit Ex. CW1/A, Ex. CW1/B and Ex. CW1/C. They do not bear any receiving either mine or of my employee.
3. I did not place any order on the phone. I do not know the Complainant. No delivering was made at my shop. I did not sign any bill/ the bills do not bear my signatures. There is no proof of receiving.
4. I do not remember whether I received the legal demand notice however, address mentioned on it is correct.
POOJA YADAV Page no. 8 of 34 Digitally signed by POOJA YADAV Date: 2023.03.27 15:10:02 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
5. I never gave the cheques in question to the Complainant. My entire cheque book was lost around 2017. It contained my signatures on the cheque leaves which I used to keep at the shop. I instructed the bank to stop payment of all the related cheques online. I filed a police complaint of loss of cheque book. I have to trace the same.
6. There is no GST input in favour of Complainant firm nor GST input was given by the firm. I am falsely implicated in the present case. Even the seal, stamp and signature on the invoice are false and fabricated.
7.Yes, I want to lead evidence and want to enter the witness box.
DEFENCE EVIDENCE:
15. DW1 was examinedinchief on 25.04.2022. DW2 was examined in chief on 25.05.2022. On 26.11.2022, DW1 and DW2 were crossexamined and discharged. No other witnesses were examined on behalf of the Accused. Vide separate statement of Accused, DE stood closed on 26.11.2022.
16. The matter was then fixed for final arguments.
FINAL ARGUMENTS:
17. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused at length. Written Digitally Page no. 9 of 34 signed by POOJA POOJA YADAV YADAV Date:
2023.03.27 15:10:13 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication arguments on behalf of both the parties were also filed and taken on record.
18. That the Counsel for Complainant had reiterated the facts of the complaint and has largely placed reliance upon the reply given by the Accused to the legal demand notice issued by the Complainant subsequent to dishonouring of the cheques in question. The crux of the submissions made by the Ld. Counsel for Complainant is that the Accused has already admitted his liability in the reply dated 08.02.2018 to the legal demand notice dated 12.01.2018 of the Complainant. Further, it was submitted, inter alia, that the Accused has not been consistent in his story pertaining to loss of cheques and has not even whispered about the alleged complaint qua loss of cheques with the PS Mayur Vihar in the reply dated 08.2.2018 as stated in evidence. It was submitted that the Accused has made contradictory statements and has not been able to rebut the presumption raised in favour of the Accused.
19. The Ld. Counsel for the Accused has placed reliance upon the following judgments to buttress his contentions:
a. Krishna Janardhan Bhat V. Dattatraya G. Hegde AIR 2008 SC 1325.
b. Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513. c. Basalingappa Vs. Mudibasappa (2019) 5 SCC 418. d. Chandrakant Jha vs. State 229(2016) DLT 398.
Digitally
signed by
Page no. 10 of 34 POOJA
POOJA YADAV
YADAV Date:
2023.03.27
15:10:21
+0530
CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
20. Per contra, Ld. Counsel for the Accused had submitted ,inter alia, that there is no legal liability of the Accused.
The gist of the submissions made by the Ld. Counsel for Accused is that the goods were delivered by the employee of the Complainant and not the Complainant himself; no such employee was ever examined on behalf of the Complainant to prove the delivery of the goods. Further, it was submitted that the Accused has denied sending reply to the legal demand notice of the Complainant and even the signature of the Accused does not match with the signature on the invoices. Further, it was submitted that no reasonable prudent person would ever supply further goods without clearing the prior dues that too when the dues are running in lakhs. NO GST as alleged by the Complainant was ever paid qua the alleged transaction with the Accused. At last, it was submitted that it is a false and fabricated case against the Accused.
21. I have also minutely gone through the written submissions filed on behalf of both the parties and the authorities relied upon by the Ld. Counsel for Complainant in support of his contentions.
LEGAL POSITION:
22. Before proceeding to the merits of the case, it is imperative to lay down the provisions of law with respect POOJA YADAV Page no. 11 of 34 Digitally signed by POOJA YADAV Date: 2023.03.27 15:10:29 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication to Sec138 NI Act and Sce139 NI Act, which are set out herein below for convenience:
Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless
(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by Digitally signed by Page no. 12 of 34 POOJA POOJA YADAV YADAV Date:
2023.03.27 15:10:38 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
Section 139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
23. In order to constitute an offence u/s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the Complaint as well as the evidence of the Complainant 1:
(a) a person must have drawn a cheque, on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge, in 1 *Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. AIR 2000 SC 954, Delivered by Honorable Division Bench of Justice K.T.Thomas & Justice D.P.Mohapatra, Supreme Court of India on 3003 2011.*modified in consonance with the amendments brought subsequent to the judgement dated 23.02.2000 in the NI Act.
POOJA YADAV Page no. 13 of 34 Digitally signed by POOJA YADAV Date: 2023.03.27 15:10:47 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication whole or in part, of any legally enforceable debt or other liability;
(b) that the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) that the cheque has been returned by the drawee bank unpaid, either for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank;
(d) that the payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the return of the cheque as unpaid;
(e) that the drawer of such cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice.
24. That the legal requirements mentioned hereinabove are cumulative in nature, i.e. only upon fulfilment of all the aforementioned ingredients, the drawer of the cheque is Digitally signed by POOJA Page no. 14 of 34 POOJA YADAV YADAV Date:
2023.03.27 15:10:56 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
25. The provision of Sec.138 is further supported by Sec.139 and Sec.118 of the Act. Sec. 139 of the Act provides presumption in favour of the Complainant and mandates that the court shall presume, that the holder of a cheque received the cheque of the nature referred to in Sec.138 for the discharge, wholly or in part of any debt or other liability. Sec.118 of the Act provides presumptions as to negotiable instruments; that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
26. In the case of Hiten P. Dalal v. Bratindranath Banerjee2, the Hon'ble Supreme Court had examined the confines of the presumption u/s 139 of the Act, wherein it held as follows:
"22. Because both Sections 138 and 139 (..) "introduce an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the 2 (2001) 6 SCC 16 Digitally signed by POOJA POOJA YADAV YADAV Date:
2023.03.27 Page no. 15 of 34 15:11:04 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication Accused." (Ibid. at p. 65, para 14.) (...) The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non existence of the presumed fact. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
(...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. ........ Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted".
(emphasis supplied).
27. Also, in the case of Rangappa v. Sri Mohan3, it was held that:
"(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the 3 (2010) 11 SCC 441 POOJA YADAV Page no. 16 of 34 Digitally signed by POOJA YADAV Date: 2023.03.27 15:11:12 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication existence of a legally enforceable debt or liability. (..)
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". (...) As clarified in the citations, the Accused can rely on the materials submitted by the Complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own(...)"
(emphasis supplied)
28. Elaborating further on this point, the Apex Court in Basalingappa v. Mudibasappa4 summarised the law. The following was laid down in para 25: (SCC p. 433434) "25. We have noticed the ratio laid down by this Court in the above cases on sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:
4 (2019) 5 SCC 418; Delivered by Honorable Division Bench of Justice Ashok Bhushan & Justice K.M.Joseph, Supreme Court of India on 0904 2019.
Digitally signed by POOJA POOJA YADAV Page no. 17 of 34 YADAV Date:
2023.03.27 15:11:21 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication 25.1. Once the execution of cheque is admitted section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2 The presumption under section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the Accused to rely on evidence led by him or the Accused can also rely on the materials submitted by the Complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4 That it is not necessary for the Accused to come in the witness box in support of his defence, section 139 imposed an evidentiary burden and not a persuasive burden.
25.5 It is not necessary for the Accused to come in the witness box to support his defence.
29. What emerges from the abovesaid discussion is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory; once a given set of facts are shown to exist, the presumptions u/s 139 and Sec.118 of the Act mandate the court to draw them. The same is evident by the language used, i.e., "Shall Digitally signed by POOJA Page no. 18 of 34 POOJA YADAV YADAV Date:
2023.03.27 15:11:31 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication Presume". However, the said presumptions are in the nature of rebuttable presumptions, i.e. it is open for the defence to shift the onus on the Complainant by raising a probable/ plausible defence.
APPRECIATION OF EVIDENCE AND FINDINGS:
30. Now, I shall proceed to deal with the legal ingredients one by one and give my finding on whether the evidence both oral as well as documentary on record satisfy the legal ingredients in question or not.
First Ingredient: a person must have drawn a cheque, on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability;
31. This ingredient pertains to the issuance of the cheques in question itself. At the outset, the alleged liability of the Accused stems from the issuance of the cheques in question, allegedly against the invoices raised by the Complainant for goods supplied by him. It is pertinent to note that the Accused, in his notice of accusation has not admitted his signatures and denied filling the body of the cheques in question. However, it was admitted that the Digitally Page no. 19 of 34 signed by POOJA POOJA YADAV YADAV Date:
2023.03.27 15:11:39 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication cheques have been drawn on the account of the Accused. The defence taken by the Accused is that the present cheques were misplaced from his shop in the year 2017 and he had stopped the payment qua the cheques. The Accused had further stated that he does not know the Complainant. He is not aware as to how the cheques in question came into the possession of the Complainant. He has no liability, whatsoever, towards the Complainant.
32. That the Complainant has been examined as the sole witness, i.e., CW1. To depose in support of the complaint, what is required is that CW - 1 be able to depose consistently in respect of the material aspects of the transaction with the Accused. The Complainant has remain unshakeable throughout his testimony. It is to be kept in mind that the testimony of CW - 1 qua the transaction is not mere ipse dixit but corroborated by the documentary evidence on record, i.e., the Invoices, Ex.CW1/A, Ex.CW1/B and Ex.CW1/C. The Accused has merely denied having received any iPhones against those Invoices without bringing anything on record to substantiate the denial, however, The Invoices Ex.CW1/A, Ex.CW1/B and Ex.CW1/C contain the seal/stamp of the proprietorship firm of the Accused. The complaint is not only supported by the original Invoices qua the transactions out of which the liability of the Accused has Digitally signed by Page no. 20 of 34 POOJA POOJA YADAV YADAV Date:
2023.03.27 15:11:46 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication arisen but also with the reply dated 08.02.2018 whereby the Accused has clearly admitted his liability qua the cheques in question and has also acknowledged the Invoices, Ex.CW1/A, Ex.CW1/B and Ex.CW1/C which have been denied herein. It is further admitted in the reply that the Accused had regular money and business transactions with the Complainant and such incident occurred for the first time when the cheques got dishonoured. It was further admitted that the payment qua the cheques in question had got stopped unintentionally as the Accused had lost his cheque book of City Union Bank Ltd., Mayur Vihar, Delhi which contained blank signed cheques; owing to the same he had instructed his banker to stop the payment qua all the cheques belonging to that account which led to bouncing of the cheques in question as well. Hence, the payment was not stopped deliberately but due to above said reasons and liability was admitted in clear terms of Rs. 27,68,600.60/. Time was sought to make the payment of the admitted liability. The reply was sent by the Ld.Counsel of the Accused and the original reply along with the original envelope addressed to the Ld. Counsel of the Complainant was proved as Ex.CW1/M. When viewed this way as indicated herein above, the testimony of CW - 1 inspires the confidence of the court on material aspects of the Complaint.
POOJA YADAV Page no. 21 of 34 Digitally signed by POOJA YADAV Date: 2023.03.27 15:11:52 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
33. Contrary to the stand taken by the Accused qua signatures on the cheques in question during service of notice u/s251 Cr.P.C, the signatures on the cheques in question were admitted during the statement recorded under sec313 Cr.P.C read with sec281 Cr.P.C. At the time of recording of statement under sec313 Cr.P.C read with sec281 Cr.P.C, the Accused denied receiving invoices Ex.CW1/A, Ex.CW1/B and Ex.CW1/C. It was further stated that he does not know the Complainant and never placed any verbal order with the Complainant. It was further stated that he does not remember that whether he received the legal demand notice or not however, the address mentioned on the same is correct.
34. Thereafter, the Accused himself entered the witness box and deposed in his defence. He deposed that he had lodged a complaint qua the loss of the present cheques in question and his complaint lodged vide DD no.195/17 dt.10.10.2017 was exhibited as Ex. DW1/1. He also deposed that he does not know the Complainant personally and has never placed any order with the Complainant and never had any business transaction with the Complainant. However, in his crossexamination he stated that he had business relationship with the Complainant firm regarding sale and purchase of the mobile phones in the year 2015 and 2016. Further, on Digitally signed by POOJA Page no. 22 of 34 POOJA YADAV YADAV Date:
2023.03.27 15:12:00 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication specific questions as to when his cheque book was allegedly lost and when he got the complaint qua the same lodged, he stated that he does not remember. The Accused has not been able to tell even the year when the cheque book was lost. He could not depose as to when he had lodged the complaint qua the loss of cheque book. A specific question regarding the reply, Ex.CW1/M, after showing the same to the Accused was asked, to which, the Accused replied that he does not remember. The Accused has not even been consistent about whether the cheques in question or the entire cheque book or just few cheques apart from the cheques in question were lost. Be that as it may, the lone factum of loss of present cheques/cheque book/ few cheques does not prove that there existed no liability for which the cheques in question were issued in view of the unambiguous admission in the reply dated 08.02.2018, Ex.CW1/M. Reading of the entire evidence of the Accused reveals that he has been evasive in his replies and inconsistent, hence, his testimony cannot be relied upon.
35. The brother of the Accused,i.e., DW2, had also entered the witness box to defend the Accused. In his deposition, he simply denied having received any goods from the Complainant. He further denied having received any legal demand notice dated 09.01.2018 and replying to the Digitally signed by POOJA POOJA YADAV Page no. 23 of 34 YADAV Date:
2023.03.27 15:12:09 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication same. His testimony remains unsupported by any cogent evidence and, he, being the brother of the Accused cannot be called an independent witness. In such circumstances, his testimony requires more scrutiny to be accepted in evidence and to inspire confidence. In view of the documentary evidence, Ex.CW1/M, the oral testimony of an interested witness uncorroborated by any cogent evidence cannot be relied upon.
36. The reply dated 08.02.2018 proved by the Complainant remains unrebutted as not even a shred of evidence has been brought on record by the Accused to disprove the same.
37. Although, the Accused had denied his signatures initially on the cheques in question when notice under section 251 Cr.P.C was served upon him, however, the same were later admitted while recording the statement under sec 313 Cr.P.C read with Sec281 Cr.P.C. In such circumstances coupled with the above discussion, this court is of the considered opinion that the Complainant has been able to prove his case and is entitled of the benefit of the presumption which arises under section 139 of the NI Act.
38. It was also stated by the Accused in his defence that he did not fill the particulars on the cheques in question. The law in this regard is well established that mere filling of Digitally signed by Page no. 24 of 34 POOJA POOJA YADAV YADAV Date:
2023.03.27 15:12:17 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication the particulars on the cheque by some other person would not invalidate the same if the cheque is duly signed by the drawer.5
39. That in a criminal prosecution u/s 138 of the Negotiable Instruments Act, 1881, the burden of proof always rests upon the Complainant, though he is aided by the presumptions existing in his favour. The Accused is not required to establish his defence beyond reasonable doubt. The Accused can establish his defence on a preponderance of probabilities and his burden may be discharged. It is sufficient if he establishes his defence on preponderance of probabilities.
40. In the case of Kumar Exports Vs. Sharma Carpets6, it was held:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
The Accused in a trial under Section 138 of the Act has two options. He can either show that 5 Bir Singh v. Mukesh Kumar (2019) 4 SCC 197 6 2009 (2) SCC 513 Digitally signed by POOJA POOJA YADAV YADAV Date:
2023.03.27 Page no. 25 of 34 15:12:26 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. (...) To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the Complainant. The Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act . The Accused has also an option to prove the nonexistence of Digitally signed by Page no. 26 of 34 POOJA POOJA YADAV YADAV Date:
2023.03.27 15:12:34 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the Complainant, that is, the averments in the Complaint, the case set out in the statutory notice and evidence adduced by the Complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the Complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the Complainant's rescue."
(emphasis supplied)
41. In view of the proposition of law as discussed above, when applied to the facts of the present case, the presumption having been raised against the Accused; it is for the Accused to rebut the same by raising a probable defence. A mere denial by the Accused of issuing the cheques in question for legally enforceable debt or liability would not suffice.7 7 K.N. Beena vs Muniyappan And Another;(2001) 8 SCC 458 POOJA Page no. 27 of 34 YADAV Digitally signed by POOJA YADAV Date: 2023.03.27 15:12:42 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
42. In view of the above, the Accused has failed to prove his defence by his oral testimony or even otherwise. The Accused has not produced any document to show that the reply dated 08.02.2018, Ex.CW1/M was not issued by his Counsel. Bare perusal of the name of the Counsel and his details on the envelope of the reply by whom the same was sent to the Counsel of the Complainant reveals that it is of the same Counsel who had filed his Vakaltnama for the Accused and has represented the Accused throughout the trial. In such circumstances, where the reply dated 08.02.2018, Ex.CW1/M whereby the issuance of the cheques in question towards the discharge of the legally enforceable liability of the Accused has been admitted in clear words and it is also unambiguously admitted that the cheques in question got dishonoured unfortunately as the Accused had to instruct his banker to stop payment qua all the cheques belonging to that chequebook which got lost and time was sought to make the payment of the due amount, shall prevail over oral testimony of the Accused,DW1 and his brother DW
2.
43. Ultimately, far from establishing his line of defence taken throughout the trial, the Accused has not even been able to shake the case of the Complainant or cast any reasonable doubt upon it. When the liability and the Digitally signed by POOJA POOJA Page no. 28 of 34 YADAV YADAV Date:
2023.03.27 15:12:49 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication issuance of the cheques in question itself is well admitted in reply dated 08.02.2018, it would be quite fallacious to hold that the case of the Complainant would fall only on the ground of mere denial by the Accused of the entire case of the Complainant without any probable evidence. The version attempted to be established by the Accused suffers from inconsistencies and contradictions as discussed above. The defence has failed to satisfy the test of preponderance of probabilities and the presumption raised against the Accused remains unrebutted.
44. Thus, what emerges from the above is that despite specific questions and suggestions to the Accused, the Accused could not substantiate his version by giving either direct cogent evidence in his favour or showing such circumstances which could create aspersions on the story of the Complainant.
45. The upshot of the above discussion is that the Accused has not been able to rebut the presumption raised against him. Hence, the said ingredient stands fulfilled as against the Accused.
Second Ingredient: that the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
POOJA
Page no. 29 of 34 YADAV
Digitally signed by
POOJA YADAV
Date: 2023.03.27
15:12:57 +0530
CC No. 589/2018 Aneja Communication Vs. Laxmi Communication
46. This ingredient stands satisfied on a bare perusal of the cheques in question which are Ex. CW1/D, Ex. CW1/E and Ex. CW1/F bearing date 12.10.2017, 11.10.2017 and 14.10.2017 respectively and their composite return memo Ex. CW1/G which bears the date of 26.12.2017. The defence has led no evidence to controvert the same and hence, this ingredient stands fulfilled as against the Accused.
Third Ingredient: that the cheque has been returned by the drawee bank unpaid, either for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank;
47. The composite bank return memo Ex. CW1/G dated 26.12.2017 on record states that the cheques in question have been returned dishonoured for the reason "Payment stopped by Drawer". The Accused has merely stated in his statement under sec313 Cr.P.C read with sec281 Cr.P.C that he had instructed his banker to stop the payment however, no bank witness was ever examined on behalf of the Accused in his defence, the return memo remains Digitally signed by Page no. 30 of 34 POOJA POOJA YADAV YADAV Date:
2023.03.27 15:13:04 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication undisputed and hence, this ingredient also stands satisfied as against the Accused.
Fourth Ingredient: that the payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information from the bank regarding the return of the cheque as unpaid;
48. That it is a trite law that in order to maintain a complaint u/s138 NI Act, serving of legal demand notice to the Accused before filing the case is imperative. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/H to the Accused. The original postal receipt dated 09.01.2018 & tracking report in respect of the same are already on record as Ex. CW1/J to Ex. CW1/K.
49. That the Accused has in his notice of accusation u/s 251 Cr.P.C denied receiving the legal demand notice. Also, in the statement of Accused u/s 313 Cr.P.C read with Sec 281 Cr.P.C, the Accused has denied receiving the legal demand notice. However, in the statement of Accused u/s 313 Cr.P.C read with Sec281 Cr.P.C, the Accused has admitted that the address mentioned on the legal demand Digitally signed by Page no. 31 of 34 POOJA POOJA YADAV YADAV Date:
2023.03.27 15:13:12 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication notice is correct. Further, the Complainant has placed on record the reply dated 08.02.2018 given by the Accused to the legal demand notice, which is ExCW 1/M; the reply has simply been denied by the Accused without proving to the contrary.
50. That section 27 of the General Clauses Act,1897 provides that service of any document sent by post shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document unless the contrary is proved. A like presumption is also provided under section 114 Indian Evidence Act, 1872 which when applied to communication sent by Post, enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee.
51. That a bare denial by the Accused in his notice of accusation and in his examination under Sec313 Cr.P.C read with Sec281 Cr.P.C would not assume the character of defence evidence as held in V.S Yadav v. Reena . Hence, the Accused has not been able to rebut the presumption of service of legal demand notice. Resultantly, the said ingredient stands fulfilled as against the Accused.
Digitally signed by POOJA POOJA YADAV YADAV Date:
2023.03.27 15:13:21 +0530 Page no. 32 of 34 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication Fifth Ingredient: that the drawer of such cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice.
52. In the instant case, the Accused has denied having received the legal notice in his notice u/s251 Cr.P.C however, he has stated in his examination under Sec313 Cr.P.C read with Sec281 Cr.P.C that he does not remember whether he had received the legal demand notice or not. It is an admitted position that the Accused has failed to pay the amount due under the cheques in question, on the ground that he did not issue the cheques in question to the Complainant as the same had got misplaced and he is not aware as to how the same came into the possession of the Complainant. Hence, this ingredient stands fulfilled as against the Accused.
DECISION
53. In view of the abovediscussion, considering all the facts and circumstances, material/ evidence on record, as all the ingredients of the offence have been cumulatively satisfied against the Accused, the Accused, Chetan Kumar, proprietor of M/S Laxmi Communications is hereby convicted of the offence u/s 138 of the Negotiable Digitally Page no. 33 of 34 signed by POOJA POOJA YADAV YADAV Date:
2023.03.27 15:13:33 +0530 CC No. 589/2018 Aneja Communication Vs. Laxmi Communication Instruments Act, 1881. Let the convict be heard separately on the quantum of sentence.
ORDER: CONVICTED A copy of this judgment be given free of cost to the convict.
The judgement has been dictated to Ms. Shalu, PA attached with the undersigned. Announced in open court in the presence of the Accused 27.03.2023.
(This judgment contains 34/thirtyfour signed pages) Digitally signed POOJA by POOJA YADAV YADAV 2023.03.27 Date:
15:13:45 +0530 (Pooja Yadav) MM/NI Act(East)/KKD Courts/Delhi 27.03.2023 Page no. 34 of 34