Delhi District Court
Mohd. Raseed vs M/S. Pkg Marketing Pvt. Ltd on 6 December, 2022
IN THE COURT OF MS. KIRAN BANSAL:
ADDITIONAL SESSIONS JUDGE-04; SHAHDARA:
KARKARDOOMA COURTS: DELHI.
Crl. (A) No. 40/2019
ID Crl. (A) No. 155/2019
Mohd. Raseed
Proprietor of M/s. R.S.M. Enterprises
A-6, Jaitpur Extension,
Kalindi Kunj Road,
New Delhi - 110044 ........... Appellant
Versus
1. M/s. PKG Marketing Pvt. Ltd.
Through its Authorized Representative
Sh. Tara Chand Joshi
Having its Registered Office at
A-142, Gali No. 1, Madhu Vihar,
Ist Floor, Delhi - 110092.
2. The State Govt.
of NCT Delhi ........... Respondents
Date of Institution : 14.08.2019
Order reserved on : 20.10.2022
Order delivered on : 06.12.2022
_________________________________________________________________________
CA No. 40/2019 Mohd. Raseed Vs. M/s. PKG Marketing Pvt. Ltd. Page 1 of 8
JUDGMENT
1. Present appeal is filed by the appellant Mohd. Raseed under Section 374 Cr.P.C for setting aside the impugned order/judgment dated 20.05.2019 and order on sentence dated 16.07.2019 passed by the Ld. Trial Court/Ld. MM, District Shahdara, Karkardooma Courts, Delhi in complaint case bearing No.11708/2016 under Section 138 NI Act whereby appellant was convicted under Section 138 N.I. Act and was sentenced for simple imprisonment of six months and was directed to pay Rs.90,000/- as compensation to the complainant/respondent no. 1 and in default of payment of compensation, convict was directed to undergo simple imprisonment for one month.
2. Brief facts of the case are that the complainant/respondent no. 1 herein has stated that he is in the business of trading electrical and electronic household goods and the appellant was having a shop of selling electronic items under the name and style of M/s. RSM Enterprises. The appellant had approached the respondent no. 1 to purchase the electronic items on credit basis to be sold by appellant in his shop and the respondent no. 1 had supplied the electronics items which were received and sold by appellant on various dates and a sum of Rs.91,233/- was outstanding against the appellant as per the ledger account maintained by the respondent no. 1. The appellant in order to discharge his part legal liability had issued a cheque for an amount of Rs.68,000/- which on presentation was returned back dishonored with the remarks 'Funds Insufficient'. Legal Notice dated 02.02.2016 was served upon the appellant but no payment made by the appellant despite the notice, thereafter, the complaint under Section 138 N.I Act was filed and cognizance of the offence was taken and complainant/respondent no. 1 examined himself in support of his case. No formal notice under Section 251 Cr.PC was given to the appellant and _________________________________________________________________________ CA No. 40/2019 Mohd. Raseed Vs. M/s. PKG Marketing Pvt. Ltd. Page 2 of 8 substance of accusation was explained to him.
3. In the instant case, the appellant has assailed the judgment/order on sentence on the following grounds:
(i) That the impugned judgment/order dated 20.05.2019 and 16.07.2019 passed by Ld. MM is based on surmises and conjuncture;
(ii) That the Ld. Trial court has failed to appreciate that the cheque in question was given as security dealing of business transaction on the basis of debit and credit dealing between the appellant and the respondent;
(iii) That the Ld. Trial Court failed to consider that the offence under Section 138 N.I. Act occurred only when there is legally enforceable debt, however, in the present case there is no legally enforceable debt;
(iv) That the Ld. Trial Court failed to consider that the person appeared on behalf of complainant is not authorized person and was no knowledge regarding the transaction with the appellant;
(v) That the Ld. Trial Court has erred in considering that no legal notice was served upon the appellant and the address mentioned in notice is incomplete;
(vi) That the Ld. Trial Court failed to appreciate that the complainant has not proved the basic requirement of Section 138 N.I. Act.
4. Notice of the appeal was served upon the respondent no. 1/complainant and vakalatnama was filed on his behalf, however, he did not prefer to file reply to the instant appeal.
5. Arguments have been advanced by Sh. Mohd. Zahid, Ld. Counsel for appellant and Sh. I.P. Saini, Ld. Counsel for respondent heard. Perused the record of the Trial Court as well as the order on sentence.
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6. For the application of the provisions of Section 138 of the NI Act, three ingredients are required to be satisfied i.e., (i) that there should be legally enforceable debt; (ii) that the cheque should have been drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) the cheque so issued is dishonoured for insufficiency of funds.
7. CW-1, Sh. Tara Chand Joshi had appeared on behalf of complainant, who is the AR of the complainant and had also signed and filed the complaint. The Board Resolution in his favour is Ex.CW1/A, which authorizes him to file the complaint and to depose on behalf of the complainant and therefore, it cannot be said that he was not duly authorized person.
8. Accused/appellant in his statement under Section 313 Cr.PC has admitted his signatures on the cheque. He has stated that all the particulars were also filled by him except the date, however, he has stated that he has not received any goods against the bill alleged by the complainant in lieu of abovesaid cheque. Though in answer to question as to why complainant has filed the case against him, he has stated that goods supplied by the complainant were of sub standard quality goods and that he had asked the complainant to take back the goods. Instead of taking back of the goods, the complainant had filed the present case.
9. Both the pleas are contradictory to each other in as much as on one hand appellant stated that he has not received any goods against the bill and on the other side he is saying that goods supplied by the complainant were of sub standard quality goods and that he had asked the complainant to take back the goods. Also, if this plea of appellant is considered, the onus was upon the appellant to prove that the goods supplied by the complainant/respondent no.1 were of sub standard quality goods. Also, the duty to return the sub standard _________________________________________________________________________ CA No. 40/2019 Mohd. Raseed Vs. M/s. PKG Marketing Pvt. Ltd. Page 4 of 8 quality goods was on the appellant.
10.Moreover, the accused/appellant, in his evidence by way of affidavit Ex.DW2/A, has not stated anything receiving of sub standard quality goods rather than he has only denied his liability and stated that the cheque was a security cheque and the balance amount of bill no. T-026, dated 12.05.2015 was already paid by NEFT. One document Mark D1 i.e. photocopy of a ledger account has been filed but the original of the same has not been proved and no evidence has been led to show the payment made of the said bill amount through NEFT to the complainant/respondent no. 1.
11.Under Section 139 of the NI Act, unless the contrary is proved, the holder of a cheque shall be presumed to have received the cheque in discharge of any debt or other liability.
12.Sub clause (a) of Section 118 of the NI Act, inter-alia provides that unless the contrary is proved, a drawn up negotiable instrument, if accepted, has to be presumed to be for consideration.
13.In Goa Plast (P) Ltd. vs. Chico Ursula D'souza & Anr., (2003) 3 SCC 232, Hon'ble Supreme Court has held that the provisions of Section 138 to 142 of the NI Act, is for the purpose of giving credibility to negotiable instruments in business transactions. In view of Section 139 of the NI Act, it had to be presumed that a cheque is always issued in discharge of any debt or other liability. The presumption could be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption.
14.In his statement under Section 313 Cr.PC, the accused/appellant had admitted that all the particulars of the cheque were filled by him except the date and the _________________________________________________________________________ CA No. 40/2019 Mohd. Raseed Vs. M/s. PKG Marketing Pvt. Ltd. Page 5 of 8 cheque was issued in lieu of bill of Rs.1,08,000/-. He further stated that the goods supplied by the complainant were of sub standard quality goods and also taken the stand that the cheque in question was presented without any intimation and permission of him. However, in his affidavit Ex.DW2/A he has not stated anything about receiving of sub standard quality goods rather than he has only denied his liability and stated that the cheque was a security cheque and the balance amount of bill no. T-026, dated 12.05.2015 was already paid by NEFT and has relied upon a photocopy of a ledger account without filing the original of the same. Even no evidence has been led by the accused/appellant which shows that the payment of the abovesaid bill amount was made through NEFT to the complainant/respondent no. 1.
15.Moreover, the accused/appellant has denied the receiving of Legal Notice dated 02.02.2016, however, the address on which the legal notice was served is substantially the same as mentioned on Invoices Ex.CW1/D1, Ex.CW1/D2 and his evidence by way of affidavit Ex.DW1/A also bears the same address. Even in his cross examination he admitted that NBWs were issued against him on the same address. During cross examination he admitted that he had not lodged any complaint with any authority after bouncing of cheque in question and volunteered that he called the salesman of the complainant, however, he did not give any response. He also admitted that cheque in question was given to the complainant against the part payment of outstanding amount mentioned in Ex.CW1/B and volunteered that cheque was given as security without date.
16. The accused has admitted that all the particulars were filled by him except the date, however, he has taken a contradictory stand that he has not received any goods against the bill alleged by the complainant in lieu of abovesaid cheque and that the goods supplied by the complainant were of sub standard quality _________________________________________________________________________ CA No. 40/2019 Mohd. Raseed Vs. M/s. PKG Marketing Pvt. Ltd. Page 6 of 8 goods. As far as his plea that cheque in question was presented without any intimation and permission of him is concerned, he has not lodged any complaint regarding misuse of the said cheque. Accused/appellant during his cross examination has specifically admitted that he had not lodged any complaint with any authority after bouncing of cheque in question and volunteered that he called the salesman of the complainant. Thus, the argument of ld. counsel for accused/appellant that the cheque in question was given as security dealing of business transactions on the basis of debit and credit dealing with respondent no.1 is of no value once the accused/convict had admitted that cheque in question was given to the complainant against the part payment of outstanding amount mentioned in Ex.CW1/B. As far as the argument that accused/appellant has not received any goods against the bill alleged by the complainant in lieu of abovesaid cheque is concerned, the onus was upon the accused/appellant to prove that the goods supplied by the complainant/respondent no.1 were of sub standard quality goods. The same also reflects the intention of the accused/appellant that he never intended to pay the outstanding amount of the goods taken from the complainant/respondent no.1.
17.The Appellant has miserably failed to rebut the presumption u/s. 138 of N.I Act that cheque in question was not issued to discharge legally recoverable debt. Thus, I do not find any illegality or material irregularity in the impugned judgment dated 20.05.2019 passed by Ld. Trial Court. Thus, order on sentence dated 16.07.2019 passed by Ld. Trial Court is also upheld. Appeal is dismissed. As far as sentence is concerned, complainant/respondent to take appropriate steps to get execute the sentence through Ld. Trial Court. Part payment of the compensation/fine is already made by the appellant. The same may be adjusted at the time of execution of sentence by Ld. Trial court.
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18.A copy of this order alongwith trial court record be sent to Ld. Trial Court.
Appeal file be consigned to record room. Digitally
signed by
KIRAN
KIRAN BANSAL
BANSAL Date:
2022.12.09
Announced in the open court 13:28:45
+0530
on 06.12.2022.
(KIRAN BANSAL)
ASJ-04/Shahdara/KKD Courts
Delhi/06.12.2022
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