Delhi District Court
Sujay Thapa vs . Ms Kasan Varnisha And Paint on 17 November, 2021
IN THE COURT OF MS. AAYUSHI SAXENA
METROPOLITAN MAGISTRATE (SOUTH) 01,
N.I. ACT, SAKET COURTS : NEW DELHI
IN THE MATTER OF
CC No. 1787/2015 & CIS No. 469091/2016
SUJAY THAPA VS. MS KASAN VARNISHA AND PAINT
INDUSTRIES, KASAN ALMORA
1.Complaint Case number : CC No. 1787/2015 & CIS No. 469091/2016 2 Name of the complainant : Sujay Thapa, S/o Late Sh. Bhupinder Thapa, R/o F22, Jawahar Park, Devli Road, Khanpur Near BRT Corridor, New Delhi110062.
3. Name and address of the : M/s Kasan Varnisha and accused Paint, Industries, Kasan Almora, Through its prop. Jeevan Kumar, S/o Sh. Ghushi Ram, R/o Kasanaband Dhoulchina, Almora, Uttrakhand263601.
4. Offence complained of or : Under Section 138 of the proved Negotiable Instruments Act, 1881.
CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 1 of 22
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Final Order : Conviction
7. Date of Institution : 08.04.2013
8. Date of Reserving the : 28.10.2021 Judgment
9. Date of pronouncement : 17.11.2021 Judgment:
1. The instant complaint dated 08.04.2013 is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act").
Initially it had been filed by the complainant on 08.04.2013 before Ld. C.M.M.(South), Saket, New Delhi.
2. The first document that has been filed by the Complainant is Certified Copy of the Order dated 27.10.2015 passed by Sh. Ashok Kumar, Judicial Magistrate, Almora whereby the entire documents were ordered to be returned to him with a direction to file the CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 2 of 22 same in the Court of competent jurisdiction at Saket, New Delhi.
3. From the endorsements appearing on the face of the instant Complaint, it appears that it was refiled on 21.11.2015 before Ld. A.C.M.M.(South) which was ordered to be put on 24.11.2015 before Ld. Predecessor of this Court. On 24.11.2015 this Complaint was ordered to be registered by Ld. Predecessor of this Court.
4. The brief facts of this case as carved out from the complaint are that in the month of February, 2010, the accused Jeevan Kumar approached the complainant and stated that he is running a business of chemicals in the name and style of M/S Kasan Varnisha and Paint Industries, Kasan Almora and he is the sole proprietor of the firm. On inducement by the accused, the complainant invested his money in the business of the accused and an agreement/partnership deed was prepared on 12.04.2010. Thereafter, the complainant, on different occasions between 20102012, gave Rs.20,00,000/ to the accused for expanding his business and the accused assured that he will pay his money back with some margin of profit in installments. Further, the accused paid some money to the CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 3 of 22 complainant but thereafter, from October,2012, he stopped making the payment. After repeated reminders, in the month of December, the accused issued three post dated cheques which had to be presented in the month of January, February and March,2013 to clear his dues. As per instructions of the accused, the complainant presented cheque bearing no. 502576 dated 30.01.2013 for a sum of Rs. 3,00,000/ drawn on Bank of Baroda Almora Branch to his banker Bank of Baroda, Saket, New Delhi on 30.01.2013. When the complainant visited its bank on 09.02.2013, he was informed by the bank staff that the cheque in question got bounced with remarks "Stop Payment". Thereafter, the complainant sent a legal demand notice, dated 10.02.2013, on 18.02.2013. Inspite of receipt of legal demand notice, the accused did not make the payment and hence, the complaint in question against the accused was filed for commission an offence under Section 138 of NI Act.
5. Pursuant to filing and registration of the said complaint before Ld. Predecessor of this Court, the complainant, filed his pre summoning evidence by way affidavit dated 06.04.2013 Ex.CW1/1 and he had relied upon various documents viz. Copy of agreement/partnership CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 4 of 22 deed Ex.CW1/A claimed to have been prepared on 12.04.2010, Original cheque dated 30.01.2013, Ex.CW1/B, Legal notice dated 10.02.2013, Ex.CW1/C1, postal receipt Ex. CW1/C2 and tracking report Ex. CW1/C3.
6. Ld. Predecessor of this Court took cognizance of the offence under section 138 NI Act vide order dated 15.12.2015 and ordered for issuance of summons for attendance of the Accused.
7. Thereafter, the Accused entered appearance on 07.04.2017 when he was admitted to bail.
8. On 18.04.2017, notice under Section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was given to the accused to which he pleaded not guilty and claimed trial. In his statement of defence recorded at that very time, he, interalia admitted his signatures on the cheque in question but claimed that he never issued the cheque in question to the complainant. He further stated that his cheque book was lost in the year 2013 and he had lodged a police complaint in this regard around one month before date of presentation of the cheque in question. He also stated that he had given instructions to his banker in this regard.
CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 5 of 22 He further stated that he and the complainant were partners of M/s Kasan Varnisha And Paints Industries and the complainant had invested some money in the said firm as a partner. He stated that he had already returned an amount of Rs.1213 lacs to the complainant. He admitted that the cheque in question bears his signatures. He further stated that he had received the legal demand notice and he had also replied to the same.
9. A perusal of the judicial file reveals that on 02.05.2017, right of accused to file application under Section 145(2) of NI Act was closed by Ld. Predecessor of this Court.
9.1 Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded on 23.08.2017 whereby circumstances appearing against him in evidence were put to him. While reiterating his said defence, additionally it was stated, interalia that the partnership deed dated 12.04.2010 was signed between him, the complainant and one Prashant Gupta. He further stated that he had returned an amount of Rs.12,00,000/ by way of various cash installments. The said amount was arranged by him by withdrawing the same from his bank CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 6 of 22 account. He further stated that as per their agreement, the profit and loss was to be divided equally between all the three partners, the partnership suffered some losses. He also reiterated the fact that the cheque in question was misplaced from his office in around December, 2012 and he had lodged a police complaint in PS Patwari Kshetra in this regard along with giving stop payment instructions to his banker. On that date itself the accused was directed to file his list of witnesses alongwith details of witnesses to be summoned within 10 days therefrom.
9.2 Pursuant thereto, the case was fixed for defence evidence on various dates but despite having been given various opportunities, accused failed to lead DE. Consequently on 01.07.2019, DE stood closed by Ld. Predecessor of this Court and the matter was listed for final arguments.
9.3 Thereafter on 07.08.2019 final arguments advanced on behalf of the complainant, were heard by Ld. Predecessor of this Court on 07.08.2019 and the case was adjourned to 31.08.2019 for clarification/judgment but on that an application dated 31.08.2019 under Section 311 Cr.P.C., was moved on behalf of the accused CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 7 of 22 wherein it was inter alia averred that neither the cheque in question was ever presented in the bank for encashment either in January, 2013 or thereafter nor the bank has ever issued any Return Memo. In the said application it was prayed by the accused that the Clerk concerned of Bank of Baroda, Almora Branch, Uttarakhand be summoned alongwith the statement of account for the period of 25.01.2013 to 28.02.2013 pertaining to Current A/c No. 32810200000026 of M/S Kasan Varnish and Paint Industries, Kasan Almora and he also sought recall of the complainant for his cross examination on that point. Vide order dated 17.01.2020, passed by Ld. Predecessor of this court, the said application was dismissed and was disposed of. However Ld. Predecessor of this Court in exercise of its power under Section 311 Cr.P.C. read with Section 165 of the Indian Evidence Act,1872, vide the said very order directed the summoning of the Manager, Bank of Baroda, Saket Branch along with the record pertaining to presentation of the cheque in question.
9.4 Pursuant thereto on 06.03.2020, Sh. Deepak Kumar, Officer, Joint Manager, Bank of Baroda, Saket CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 8 of 22 Branch, New Delhi and Sh. Bishan Giri, Officer Scale B, Bank of Baroda, Almora, Uttarakhand, were examined as Court witnesses and discharged. Documents Ex.C1 and Ex.C2 were also taken on record.
10. Thereafter, final arguments were heard at length on behalf of both the parties. I have also gone through the records carefully including the written submissions.
Discussion:
11. In order to ascertain whether or not, the offence under Section 138 of the NI Act, has been committed by the Accused, it is deemed fit to examine separately as to whether all the indispensable ingredients constituting the said offence have been proved by the complainant or not.
11.1 For conviction of an accused for commission of an offence under Section 138 of the NI Act, the following ingredients have to be proved by the Complainant:
(a) That the accused had issued to the complainant a cheque on account maintained by him with a bank and the said cheque has been issued in discharge, in whole or in part of said debt or other liability;
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(b) That the cheque in question had been presented to the bank within a period of 3 months from the date of cheque or within the period of its validity;
(c) That the aforesaid cheque during the said period of its validity, when presented for encashment, was returned unpaid due to insufficiency of funds etc.;
(d) That the payee of the said cheque, issued a legal demand notice to the accused/drawer within 30 days from the date of receipt of information by him from the bank regarding the return of cheque;
(e) That the nonpayment of cheque amount by accused/drawer of the cheque within fifteen days from the date of receipt of legal demand notice; and
(f) The filing of the complaint within one month from the date on which cause of action arises.
11.2 It is a settled legal principle that once the accused has admitted issuance of cheque which bears his signature, there is a presumption that there exists legally enforceable debt or liability under Section 139 'NI Act'. Such presumption of law as provided in the said provision would remain till it is rebutted. The said CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 10 of 22 relevant provision reads as follows: "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"
11.3 Section 139 NI Act is a type of reverse onus clause, which stipulates a presumption in the favour of the Complainant as to fact of a cheque being received in discharge of a legal debt or liability.
11.4 The other relevant provision in this regard is Section 118 (a) of the NI Act, which states as follows:
"Presumptions as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:
(a) of consideration 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;"
CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 11 of 22 11.5 The following propositions can be summarized on a perusal of the judgments of the Hon'ble SC in APS Forex Services Pvt. Ltd. v. Shakti International Fash ion Linkers and Ors., [AIR 2020 SC 945]; Rohitbhai Jivanlal Patel v. State of Gujarat and Ors., [AIR 2019 SC 1876]; Basalingappa v.Mudibasappa, [(2019) 5 SCC 418]; Kumar Exports v. Sharma Carpets, [(2009) 2 SCC 513]; K.N. Beena v. Muniyappan and Anr. , [(2001) 8 SCC 458]; and Dhanvantrai Balwantrai De sai v. State of Maharashtra, [1964 Cri. LJ 437]:
(i) Once the execution of cheque is admitted; Section 139 of the NI Act mandates a presumption that the cheque was for the discharge of any debt or other liabil ity;
(ii) 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;
(iii) To rebut the presumption, the accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 12 of 22 liability to be discharged by him. While direct evidence cannot be insisted upon in any every case; bare denial of the passing of the consideration and existence of debt, would not serve the purpose of the accused;
(iv) Something which is probable has to be brought on record by the accused for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and cir cumstances, upon consideration of which, the court may either believe that the consideration and debt did not ex ist or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist;
(v) The words "unless the contrary is proved" which occur in Section 139, make it clear that the presumption has to be rebutted by 'proof' and not by a bare explana tion which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the sup position that it exists. Unless, therefore, the explanation CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 13 of 22 is supported by proof, the presumption created by Sec tion 139 NI Act cannot be said to be rebutted;
(vi) To rebut the presumption, it is open for the ac cused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in or der to raise a probable defence. Inference of preponder ance of probabilities can be drawn not only from the ma terials brought on record by the parties but also by refer ence to the circumstances upon which they rely;
(vii) 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 bur den.
11.6 Adverting now to the facts of the present case, as per the case of the Complainant, inter alia the cheque in question bearing No. 502576 dated 30.01.2013 for a sum of Rs.3,00,000/ drawn on Bank Of Baroda, Almora Branch, was issued by the accused in favour of the com plainant and the same has been proved on record as Ex.CW1/B. As already mentioned above, when the ac cused was given notice under Section 251 Cr.P.C., he ad CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 14 of 22 mitted his signatures on the cheque in question. So once signatures on the cheque have been admitted by the ac cused, a presumption shall be raised under Section 139 of the NI Act, that the cheque was issued in discharge of debt or liability. Now, let us see whether any probable defence has raised by the accused to rebut the said pre sumption.
11.7 The said cheque Ex.CW1/B on a bare perusal thereof does not reveal either the constitution of M/S Kasan Varnisha and Paint Industries, Kasan Almora, namely whether the same was issued by the accused in the capacity thereof as 'Partner or as the Proprietor thereof'.
11.8 As far as the complainant is concerned, in the Memo of Parties as also in the title of the complainant, the accused has been described as the 'Proprietor of M/S Kasan Varnisha and Paint Industries, Kasan Almora'. Also in Para 3 of the complaint, the complainant has inter alia mentioned that the accused is the sole proprietor of the said firm.
CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 15 of 22 11.9 The complainant had sent a legal demand notice dated 10.02.2013, Ex. CW1/C1. The said legal demand notice was addressed to Kasan Varnisha and Paint Indus tries, Kasan Almora, Proprietor Jeewan Kumar. When notice under Section 251 Cr.P.C. was given to the ac cused, he stated to have received the same. He further stated that he had even replied to the same. For the best reasons known to him, the accused failed to bring the same on record. The legal demand notice contained seri ous allegations of facts against the accused like: accused is the proprietor of M/S Kasan Varnisha and Paint Indus tries, Kasan Almora, that the cheque in question had been issued by the accused to the complainant in discharge of his legal debt and liability. As the accused failed to bring the same on record, an adverse inference has to be drawn against him.
11.10 When Sh. Bishan Giri, Officer, Bank of Baroda, Almora, Uttarakhand was examined as court witness, the records pertaining to the cheque in question Ex. CW1/B, which he had brought, were exhibited as Ex. C1 and Ex. C2 at that time. .The said Ex. C2 is the Statement of ac count for the period 12.11.2010 to 03.03.2020. It is perti CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 16 of 22 nent to note here that the Account name mentioned therein is "M/S Kasan Warnish & and Paint Indus tries, Kasan Prop. Jeewan Kum". The said account was opened on 12.11.2010. Now, the partnership deed, Ex.CW1/A furnished by the complainant, was executed between the complainant and the accused on 01.04.2010. The account from which the cheque in question, Ex.CW1/B, was issued was opened only after the execu tion of the said partnership deed. Even the cheque in question is dated 30.01.2013. From the above discussion as also from the material on record, it becomes clear that the cheque in question was issued by the accused as a proprietor of M/S Kasan Varnisha and Paint Industries, Kasan Almora and not as a partner of the said firm.
11.11 It has been argued on behalf of the accused that that the complainant has admitted in evidence before the Ld. Court of C.J.M. Almora that the cheque in question was of the account of partnership firm and therefore, the accused does not have any legal enforceable liability to wards the accused. This argument also does not have any force in the eyes of law as the accused has only brought CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 17 of 22 certified copies of the said evidence. The evidence of those proceedings can, at best, be termed as 'previous statement' and in order to prove the same, they had to be put to the complainant. Despite several opportunities, the accused failed to do so.
11.12 Now, as per the defence taken by the accused un der Section 251 Cr.P.C., the cheque in question was never given by him to the complainant. He had lost his cheque book in the year 2013 and for that he had lodged a police complaint in that regard. It is pertinent to note here that the accused failed to produce the said police complaint. The accused should have produced the said police complaint in order to prove his defence. But the same was not done by him despite being granted several opportunities. So this defence of the accused seems to be an afterthought and musts be rejected outrightly.
11.13 It was stated by the accused at the stage of fram ing of notice under Section 251 Cr.P.C. that the com plainant had invested some money in M/S Kasan Var nisha and Paint Industries as a partner. He also stated that he had already returned an amount of Rs. 1213 lacs to the complainant. In his statement recorded under Section CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 18 of 22 313 Cr.PC., he, inter alia, stated that he had repaid the said amount of money to the complainant by withdraw ing it from his bank account and that he had receipts in that regard. So, as per his own admission, as regards the alleged return of money by him to the complainant, he had receipts with him. However, no such receipts were filed by the accused. If he wanted to prove that he had al ready repaid the abovementioned amount, he should have placed the relevant documentary evidence to prove the same. In absence of any documentary evidence, the story put forth by the accused does not seem to be reliable.
11.14 It has been submitted by the Ld. counsel for the ac cused that no return memo regarding the dishonored cheque has been placed on record by the complainant. Only the deposit slip has been filed and that too cannot be relied upon as there is no information in writing by the bank. In this regard he has placed reliance on judgment of Hon'ble Kerela High Court in Immanuel vs Rajappan (2003 (3) KLT 113) wherein it was held that "receipt of information means that receipt of information from the bank in writing, oral information is not sufficient". This submission is also unsustainable in light of the testimony CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 19 of 22 of the court witness namely, Sh. Deepak Kumar, Officer, Joint Manager, Bank of Baroda, Saket Branch. As per the deposition of the said witness, if a cheque drawn on Bank of Baroda is presented for encashment at another branch of Bank of Baroda, and the account of drawer has insuffi cient funds, then the cheque being presented, is not sent to the clearing branch and is returned to the payee then and there itself. Return memos were only generated if asked for. He further deposed that the cheque in question falls in the above category, i.e. the cheque in question, upon presentation, was returned unpaid for "Insufficient Funds" as noted on the deposit slip on record. He further stated that, as per statement of Almora Branch of the bank, payment of the said cheque was stopped by drawer.
11.15 So, what can be gathered from the said deposition, is, that the cheque in question was presented by the com plainant and was returned unpaid due to insufficient funds in the account of the drawer, i.e. the accused in the present case. The said witness has also duly acknowl edged that the deposit slip on record, contains the appro priate remark of "Insufficient Funds". In light of the de position of the court witness, the said deposit slip also CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 20 of 22 stands proved. Hence, at the time of writing the judg ment, this proved document has been given the identi fication Mark of Ex.X. 11.16 Another Court witness Sh. Bishan Giri was also examined and he deposed that the cheque book with se rial number 502575 to 502600 was reported as lost and stop payment instructions were issued regarding the same on 12.01.2013. He further stated that the cheque in ques tion belongs to the abovementioned cheque book.
11.17 In light of the above discussion, it becomes clear that the cheque in question Ex. CW1/B was returned un paid for twin reasons i.e. 'Insufficient Funds' and 'Pay ment Stopped by Drawer'.
Conclusion
12. In view of the above discussion, I am of the considered opinion that all the ingredients of offence punishable u/s 138 NI Act have been fulfilled with respect to the accused and he has been unable to rebut statutory presumptions arising against him. Accused Jeevan Kumar, proprietor of M/s Kasan Varnisha and Paint, Industries, CC N o. 1787/2015 & CIS No. 469091/2016 Sujay Thapa Vs. Ms Kasan Varnisha And Paint Industries, Kasan Almora Page 21 of 22 Kasan Almora, is hereby convicted for offence punishable under Section 138 NI Act. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict.
Digitally
signed by
AAYUSHI
AAYUSHI SAXENA
Announced in the open Court SAXENA Date:
2021.11.17
on 17.11.2021 16:05:51
+0530
(Aayushi Saxena)
Metropolitan Magistrate01 (South),
NI Act/Saket/New Delhi/17.11.2021
CC N o. 1787/2015 & CIS No. 469091/2016
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