Delhi District Court
Cc No. 9679/2019 Gac Logistics Pvt Ltd vs . Safariya Mohd. Rafeek Humsa & Ors. Page ... on 9 March, 2021
IN THE COURT OF ANSHUL SINGHAL
MM03 (NI ACT): PHC: NEW DELHI
In the matter of: CC No.: 9679/19
CNR NO.: DLND02-016780-2019
GAC Logistics Pvt Ltd,
B301, Ansal Chamber1, 3rd floor,
Bhikaji Cama Place, New Delhi110066 ......Complainant
versus
1. Ms. Safariya Mohammed Rafeek
Humsa
partner, Globo Trading
Pthiya Veetil House, Thalikulam
Chavakkad
Thrissur
Pin680569
2. Ms. Hyrunisa Mohammed Anas
Shahul Hammed
Partner, Globo Trading
Thalikulam
Chavakkad
Thrissur
Pin680569
3. Globo Trading
Through its Partners
XI/404, Pallimukku
Thalikulum,
Thrissur
Kerala
Pin680569 ........Accused
CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 1 of 16
ANSHUL Digitally signed by
ANSHUL SINGHAL
SINGHAL Date: 2021.03.09
15:46:44 +05'30'
Date of Institution of Complaint : 07.04.2018
Offence Complained of : u/s 138 N.I. Ac
Plea of Accused : Not Guilty
Date of Final Arguments Heard : 26.02.2021
Decision : Convicted
Date of Decision : 09.03.21
JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By this judgment, I will dispose of the present complaint U/s 138 of N.I.Act, 1881 filed by the complainant against accused on account of dishonour of cheque bearing no. 030554 dated 11.12.2017 for a sum of Rs. 84,65,648/ drawn on the Federal Bank Ltd., Vadanappally Branch, Vadanappally, Kerala 680614 issued by the accused in favour of the complainant(hereinafter referred to as the cheque in question).
2. Brief facts of the case as per the complaint are that complainant is in the business of providing international freight forwarding of Cargo services to various airlines for its customers and the accused partnership firm approached the complainant company in 2016 for availing the said services. Further a rate was agreed upon between the parties as per which services were provided and invoices were raised and it was agreed that the accused persons would make account running payments. It is further stated that as on December, 2017 a total of Rs. 84,65,648/ was due from the accused to the complainant. It is further the case of the complainant that the cheque in question was issued in discharge CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 2 of 16 Digitally signed ANSHUL by ANSHUL SINGHAL SINGHAL 15:47:16 Date: 2021.03.09 +05'30' of this liability only. It is admitted position in this case that after the issuance of cheque till today a total of Rs. 8,00,000/ has been paid by the accused to the complainant.
3. A notice explaining the accusation to the accused U/s 138 of N.I. Act was served on 04.04.2019 and his plea was recorded. Accused did not plead guilty and he claimed trial. Accused no.1 & 3 had taken the defence that the cheque was issued as a security cheque and no such amount as mentioned in the cheque was due on the date of drawal of cheque. Accused no.2 had taken the defence that she is not a signatory to the cheque and also not involved in the day to day affairs of the accused partnership firm. Thereafter, an application was moved on behalf of the accused U/s 145(2) of the N.I.Act for the cross examination of the complainant which was allowed vide order dated 04.04.2019. During CE, AR of the complainant adopted the affidavit which was submitted at the time of presummoning and relied upon the following documents:
(i) A print of Master Data of the complainant is ExCW1/A.
(ii) Copy of Board Resolution dated 04.04.2018 is ExCW1/B.
(iii) Ledger account of accused no.3 from 01.04.2016 upto 31.03.2018 is ExCW1/C.
(iv) Copies of invoices are ExCW1/D(colly).
(v) Copy of Return Memo dated 11.12.2017 is ExCW1/E.
(vi) Copy of return memo dated 17.01.2018 is ExCW1/F.
(vii) Copy of emails dated 30.01.2018 are ExCW1/G.
(viii) Return memo dated 05.02.2018 are ExCW1/H. CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 3 of 16 ANSHUL Digitally signed by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:47:35 +05'30'
(ix) Original Cheque bearing No. 030554 dated 11.12.2017 is Ex CW1/I.
(x) Copy of legal notice dated 19.12.2018 is ExCW1/J.
(xi) Speed post receipts are ExCW1/K.
(xii) Copy of letter dated 19.02.2018 is ExCW1/L.
(xiii) Letter issued by Embassy of India, Doha dated 13.03.2018 is Ex CW1/M.
(xiv) A print of online Tracking and Delivery reports are ExCW1/N.
(xv) The Importer Exporter Code is ExCW1/O. (xvi) The Certificate under Importer Exporter Code is ExCW1/P. (xvii) A photocopy of cheque leaf of the complainant company is Ex.
CW1/Q. (xviii) Certificate u/s. 65B of Indian Evidence Act, 1872 is Ex. CW1/R. (xix) A rough calculation chart submitted by the complainant is Mark A.
4. CW1 was duly crossexamined by counsel for accused and vide separate statement of the AR of the complainant dated 06.08.2019 the CE was closed.
5. Accused was thereafter examined U/s 281 r/w Sec 313 Cr.P.C on 17.10.2019, putting entire incriminating evidence against him. During examination of accused no. 1 & 3 U/s 281 r/w Sec 313 Cr.P.C he has once again taken a stand similar to stand taken by him during his plea U/s 251 Cr.P.C and accused no.2 has taken a similar stand as that of accused no.1 & 3. Since the accused chose to lead evidence in his defence, matter was adjourned for DE.
CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 4 of 16 ANSHUL Digitally signed by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:48:00 +05'30'
6. Accused No.2 has examined herself as DW1 after her application U/s 315 Cr.P.C was allowed by this court vide order dated 17.10.2019. The following documents were placed on record by DW1 in support of accused persons case:
(i) Original receipt is ExDW1/1
(ii) Transaction statement of GAC Logistics alongwith bill number
from 01.02.2016 to 31.10.2018 is ExDW1/2.
(iii) Bank statement of accused from 13.02.2015 to 29.08.2019 is Ex
DW1/3.
(iv) Email correspondence between complainant and accused are Ex
DW1/4.
(v) Certificate U/s 65B of Indian Evidence Act is ExDW1/5
(vi) Statement showing an amount of GST illegally collected by
complainant is ExDW1/6.
(vii) Proof of delivery of cargo by the complainant is MarkA by the
accused. Accused states that the delivery was made at the wrong destination.
(viii) Notification No. 12/2017 by Department of Revenue, Ministry of Finance, Government of India is MarkB.
(ix) Email correspondence between Federal Bank and the complainant is MarkC.
7. DE was closed on 19.02.2020 and the matter was adjourned for final arguments. Final arguments were heard by this court on 04.02.21 and 26.02.21.
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8. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
9. At the very outset, it is pertinent to lay down the ingredients of the offence under section 138 of NI Act. The following are the components of the offence punishable under Section 138 of Negotiable Instrument Act: (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability, (2) presentation of the cheque by the payee or the holder in due course to the bank, (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
The complainant has tried to satisfy the ingredients of the offence u/s 138 NI Act by leading evidence which is Ex. CW1/C which is account ledger CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 6 of 16 Digitally signed ANSHUL by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:48:40 +05'30' of the complainant company maintained for the running account of the accused, Ex. CW1/D which are various invoices raised on the accused by the complainant company, Ex. CW1/G which are email correspondences between the accused and the complainant, Ex. CW1/I which is the cheque in question, Ex. CW1/H which is the return memo, Ex. CW1/J which is the legal notice and CW1/K which are the postal receipts. Ex. CW1/C, CW1/D and CW1/G show that there was existence of legally enforceable debt or liability. Ingredients listed at point (2), (3), (4) and (5) are stated to be proved by Ex. CW1/I, Ex. CW1/H, Ex. CW1/J and Ex. CW1/K. Defence of the accused
10.The first defence raised by the accused was that the cheque in question was given only for security purposes. Second defence raised by the accused was that the total liability as stated by the complainant is not calculated properly and the actual liability is much less than that stated by the complainant on the date of drawal of the cheque in question. The third defence that was raised only on behalf of accused no. 2 was that accused no. 2 is not in charge of the day to day affairs of the partnership firm, which is accused no. 3 and hence, cannot be held to be liable under section 138 r/w section 141 of NI Act.
Defence of Cheque being a security cheque
11.Ld. Counsel for the accused has relied on Ex. DW1/1, which is admission on behalf of the complainant that the complainant company has received two cheques from Globo Trading for security purposes, which are cheque nos. 030554 and 030553, both drawn on Federal Bank. Cheque No. 030554, which is one of the cheques given for security purposes is the cheque in question.
CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 7 of 16 Digitally signed ANSHUL by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:49:00 +05'30' DW1/1 is purportedly signed by representatives of both the complainant as well as the accused and is filed in original. Ld. Counsel for the accused has further stated that there has been no crossexamination by the complainant on this document. Ld. Counsel for the complainant on the other hand argued that merely because a cheque was given for security purposes does not mean that a complaint is not maintainable under section 138 of NI Act.
12.It is pertinent to mention section 20 of the NI Act which deals with inchoate stamped instruments:
"20. Inchoate stamped instruments Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount; provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."
13.The above provision makes it clear that if the instrument is signed and the particulars are not filled, then it will be presumed in every case that the person who has signed the cheque has given prima facie authority to the holder of the cheque to fill the particulars or in other words, make the instrument complete.
CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 8 of 16 Digitally signed ANSHUL by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:49:21 +05'30'
14.In the case of ICDS Ltd. vs. Beena Shabeer, (2002) 2 SCC 426, the Hon'ble Supreme Court of India held that security cheques would fall within the purview of Section 138 NI Act, and a person cannot escape his liability merely because the cheque issued was for security purposes. As such, when there is an existing liability on the date of presentation of the cheque, and the 'security cheques' issued are be dishonoured, the accused will be liable under Section 138 NI Act.
15.The abovequoted judgment of the Hon'ble Supreme Court of India in Beena Shabeer (supra) was then followed by the Hon'ble High Court of Delhi in Credential Leasing and Credits Ltd. vs. Shruti Investments and Anr., (2015) 223 DLT 343, wherein it has been held that the scope of S. 138 would cover cases where ascertained and crystallized debt or other liability exists on the date when the cheque is presented and not only to the cases where ascertained and crystallized debt or other liability exists on the date on which it was delivered to the seller as a post dated cheque or as a current cheque with a credit period.
16. In view of the above judgments of the superior Courts, the defence of the accused that the cheque was issued for security purposes is without any merits. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank or undated cheque is supposed to understand the consequences of doing so. He CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 9 of 16 ANSHUL Digitally signed by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:49:39 +05'30' cannot escape his liability only on the ground that blank or undated cheque had been issued by him. Since accused no. 1 has already admitted the signatures on the cheque and the accused cannot take the defence that the cheque was not filled by him in view of the provisions of section 20 of the NI Act and various judgments of the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi.
Defence of nonexistence of legally enforceable debt
17.Section 139 NI Act read with Section 118, NI Act creates a rebuttable presumption in favour of the complainant. According to Section 118 NI Act, until the contrary is proved, it shall be presumed inter alia that every negotiable instrument was made, drawn, accepted or endorsed for consideration. It is also presumed that, consideration is present in every negotiable instrument until the contrary is proved.
18.Furthermore, once the issuance of cheque is admitted by the accused/drawer, the presumption under Section 139 of the NI Act comes into play. As per the said Section 139 NI Act, 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.
19.At the very outset, it is pertinent to discuss the law laid down in Rangappa vs. Sri Mohan, (2010) 11 SCC 411, by the Hon'ble Supreme Court of India. It held that the presumption mandated by section 139 of NI Act does indeed include the existence of a legally enforceable debt or liability. It was further CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 10 of 16 ANSHUL Digitally signed by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:49:58 +05'30' held that this is a rebuttable presumption. It was further held that the standard of proof required for rebutting this presumption is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. 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.
20.The complainant has produced Account Ledger which is ExCW1/C and various invoices which is ExCW1/D. It is the case of the complainant that a total of Rs. 84,65,648/ were remaining as on the date of drawal of the cheque. After the date of drawal of cheque, the complainant has received Rs. 3,00,000/ towards the payment of liability by the accused which is reflected in entry dated 18012018 and 19012018 on page 43 of the documents appended with the complaint in the account ledger which is ExCW1/C at Point 'A' and 'B'. It is further the case of the complainant that they had written an email dated 30.01.2018 to the accused for payment of the balance amount which is Rs. 81,65,648/ which is ExCW1/G and the reply of the accused to this email dated 30.01.2018 from point C to D in ExCW1/G states, "expect a payment of by the middle of February Please cooperate with us". Even in the subsequent email sent by the accused dated 06.02.2018, accused had not disputed the liability of Rs. 81,65,648/ but has stated that the accused is not responsible for Rs. 84,65,648/ as they have already made a payment of Rs. 3,00,000/.
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21.It has already been established by way of DW1/1 that the cheque was given as a security cheque by the accused to the complainant. Now the established legal position is that the complainant cannot fill in any amount which is more than for which the accused is liable.
22.It is the defence of the accused that the actual amount due for payment is less than the amount of cheque in question and hence, accused persons cannot be convicted under section 138 of NI Act.
23.In support of this defence, the accused has produced Ex. DW1/2, which is a statement of account of the transactions that took place between both the parties. It is to be noted here that the DW1 has admitted during cross examination that DW1/2 has been prepared by the accused partnership firm and the accused in June 2019 and that it is an internal calculation. This document runs into 25 pages. 84,65,648/. The summary of amount outstanding has been given at page number 25 of DW1/2 and it states that as per the complainant the total amount outstanding is Rs. 76,77,235/ and according to the accused the amount is somewhere around Rs. 33,82,697/. It is to be noted here that the statement has been prepared in June 2019 and by then the accused firm had already paid Rs. 8,00,000/ to the Complainant.
24.Ld. Counsel for the complainant has conducted elaborate crossexamination on this document. During crossexamination, DW1 has stated that the transaction statement has been prepared as per the rates communicated by the complainant vide email dated 23082016. Ld. Counsel for the complainant put one document to DW1 which was Ex. CW1/D1 and contained the email dated CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 12 of 16 ANSHUL Digitally signed by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:50:38 +05'30' 23.03.2017 sent by the complainant to the accused, whereby new rates were communicated to the accused firm and DW1 has admitted receiving the said e mail. She has further admitted that the transaction statement, i.e., DW1/2 is not based on the communicated new rates and is based on the old rates only.
25.The complainant has been able to prove the existence of legally enforceable debt or liability and raise the presumption under section 139 of NI Act. The burden of proof was then on the accused to rebut the presumption. The accused has not been able to rebut the presumption as there is an admission of the accused to the liability vide email dated 30.01.2018 from point C to D in Ex CW1/G and also because ExDW1/2 cannot be considered as it is based on the old rates and not on the new rates as were communicated by the complainant vide email dated 23082016 which is ExCW1/D1. DW1 has even admitted receiving this email.
26.Ld. counsel for the accused has further disputed the quantum of liability on the ground that the services provided by the complainant company are not subject to levy of GST, however, the same has been levied by the complainant. In support of this defence, the accused has produced Notification no. 12/2017 by the Department of Revenue, Ministry of Finance, Government of India which is Mark B by the accused and provides as to which goods and services are exempted from central tax. Ld. Counsel for the accused has relied on point no. 57, Heading 9988 of the above stated notification. Ld. Counsel for the complainant has stated the services of logistics and transportation which are provided by the complainant are not exempt from tax as it has been no where mentioned in the notification. I find merit in the submissions made by Ld. CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 13 of 16 Digitally signed ANSHUL by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:51:01 +05'30' Counsel of the complainant. It is established law that taxing statutes have to be interpreted strictly. It is clear that the services provided by the complainant are not exempted from tax under Heading 9988 of the above stated notification and hence, accused is liable to pay GST.
27.On the basis of above stated discussion, it can be concluded that there was an existence of legally enforceable liability to be paid by the accused to the complainant and the accused has not been able to rebut the presumption under section 139 of NI Act. The accused has not been able to raise a probable defence casting a doubt on the case of the complainant.
Defence of Accused No. 2 that she was not incharge of the affairs of the partnership firm
28.Accused no. 2 has taken a stance during framing of notice that she was not incharge of the day to day affairs of the company. However, she has not taken a similar stance at the time of statement u/s. 281 r/w 313 CrPC. Moreover, except the stand taken while framing of notice, nothing has been brought on record to suggest that accused no. 2 was not incharge of the affairs of the partnership firm which is accused no. 3. Moreover, it is accused no. 2 who has deposed as defence witness in this case.
29.The AR of the complainant has stated in paragraph 4 of the affidavit that the accused no. 1 and 2 were looking after the daytoday affairs of the partnership firm at the relevant point in time and date and were incharge of and responsible for the conduct of business of the accused no. 3. It is further stated to the best CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 14 of 16 Digitally signed ANSHUL by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:51:21 +05'30' knowledge of the AR that both the accused no. 1 and 2 are authorized signatories of the accused no. 3 partnership firm. Hence, there was a specific averment on behalf of the complainant in the affidavit itself.
30.The above paragraph of the affidavit has remained uncontroverted and hence, proved, in view of the fact that neither any crossexamination has been done in regard to the same nor any evidence has been led in defence.
31.In view of the above, I find that that both accused no. 1 and 2 were involved in the looking after the daytoday affairs of the accused no. 3 partnership firm at the relevant point in time and date and were incharge of and responsible for the conduct of business of the accused no. 3.
Findings of this Court
32.It stands established on record in the form of evidence of the complainant given vide affidavit, documents exhibited in evidence, plea of defence of accused during notice/accusations explained to him and statement of accused recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 that the accused owed a sum of Rs. 84,65,648/ to the complainant as on the date of drawal of the cheque, cheque got dishonored on presentment, complainant served legal demand notice upon accused demanding the cheque amount in question, however, accused failed to make the said payment within statutory period despite service. The cheque in question which is Ex. CW1/I is signed by accused no. 1. The accused no.3 Globo Trading is guilty of the offence and the accused no.1 Ms. Safariya Mohammed Rafeek and accused no. 2 Ms. Hyrunisa CC No. 9679/2019 GAC Logistics Pvt Ltd Vs. Safariya Mohd. Rafeek Humsa & Ors. Page No. 15 of 16 Digitally signed ANSHUL by ANSHUL SINGHAL SINGHAL Date: 2021.03.09 15:51:46 +05'30' Mohammed Anas were in charge of, and were responsible to, the firm for the conduct of the business of the firm, the same has not been rebutted by the accused during the entire trial. So, all the ingredients of offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 stands established on record.
33.In view of the aforementioned facts and circumstances, this Court is of the opinion that complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt.
34.Accordingly, accused no. 3 Globo Trading is convicted for offence punishable under Section 138 of the Negotiable Instruments Act, 1881. And the management of the accused no.3 was being carried out by the accused no.1 accused no.1 Ms. Safariya Mohammed Rafeek and accused no. 2 Ms. Hyrunisa Mohammed Anas. Accordingly, accused no. 1 and 2 stand convicted for offence punishable under section 138 read with 141 of Negotiable Instruments Act, 1881.
ANSHUL Digitally signed by
ANSHUL SINGHAL
Announced in Open Court SINGHAL Date: 2021.03.09
15:52:12 +05'30'
on 09.03.21 (Anshul Singhal)
MM(N.I. Act)03/NDD/PHC/ND
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