Delhi District Court
Judgement Passed In Case Of Rangappa vs Mohan, Air 2010 Sc 1898, Are on 29 September, 2014
IN THE COURT OF MS. JASJEET KAUR
CIVIL JUDGEI/ METROPOLITAN MAGISTRATE
NEW DELHI
CC No. 170/12
Unique ID No.
M/s. Jindal Pipes Ltd.
Having its registered office at
22nd Miles, DelhiHapur Road,
Jindal Nagar, Ghaziabad, 201302 (UP)
Also at : Head Office at 1/23B,
Asaf Ali Road, New Delhi110006 ...Complainant
Versus
Naresh Goyal
S/o Shri Rajinder Goyal
Proprietor of M/s. Jai Jagdambe Wire Industries
Haluwas Village, Bhiwani, Haryana
Also at : Bichla Bazar,
Gali Baburam Bhajan,
Bhiwani, Haryana ...Accused
Date of Institution: 23.06.2009
Date of Reserving Judgement: 29.09.2014
Date of Judgement: 29.09.2014
JUDGEMENT
1. The brief facts of the present case from the perspective of the complainant as discernible from the complainant are that the complainant Jindal Pipes Ltd is a limited company, duly incorporated under the provisions of companies Act 1956 having its registered office at 22nd Miles, DelhiHapur Road, Jindal Nagar, Ghaziabad, Uttar Pradesh and head office at 1/23B Asaf Ali Road, New Delhi110006. It is the case of the complainant that the complainant company is engaged in the business of manufacturing and marketing of steel pipes and accused Naresh Goyal is the proprietor of M/s.
CC No. 170/12 1/22Jai Jagdambe Wire industries, a proprietorship concern engaged in the business of sale purchase of scrap. It is the alleged case of complainant that the complainant company had supplied 12.160 metric tonnes of MS. Scrap to the accused vide invoice number 473951 dated 28.03.2008 for a consideration amount of Rs. 4,68,835/. The accused had issued a cheque bearing number 978822 dated 06.04.2009 drawn on Punjab National Bank, Devsar branch, Haryana in the sum of Rs.4,68,835/ in favour of the complainant company in discharge of his liability to pay the consideration amount for purchase of 12.160 metric tonnes of MS. Scrap from the complainant.
2. However, upon presentation the said cheque was dishonoured vide return memo dated 25.04.2009 on account of the fact that the cheque amount exceeded arrangement made by the drawer, that is, accused Naresh Goyal for clearance of cheques with his bank and thereafter the complainant had issued a legal demand notice dated 27.05.2009 calling upon the accused to make payment of the cheque amount. Consequent upon the failure of the accused to make payment of the amount stipulated in the dishonoured cheque within 15 days of receipt of legal notice, the present complaint under section 138 of Negotiable Instruments Act 1881 (herein after referred to as NI Act) was filed by the complainant company.
3. Upon receipt of the complaint by way of assignment, the learned predecessor court had directed the complainant to lead pre summoning evidence. In compliance of the directions given by the learned Predecessor Court, the complainant company had examined one witness in support of its case, namely, Sh. Rajesh Bansal as CW1 who had tendered his evidence by way of affidavit and had relied upon cheque Ex.CW1/10 issued by the accused, return memo dated 25.04.2009 Ex.CW1/11 issued by the concerned bank in respect of dishonour of the cheque in question, legal CC No. 170/12 2/22 notice Ex.CW1/13 whereby the complainant had called upon the accused to make payment of the cheque amount, postal receipts Ex. CW1/14 and Ex.CW1/15 vide which legal notice was dispatched to the accused and the return envelope Ex.CW1/16 vide which the legal notice was received back unserved with remarks of refusal to accept the same by the accused.
4. After the appreciation of oral and documentary evidence led by the complainant company in support of its case, the learned Predecessor Court had summoned the accused to face trial for the commission of offence punishable under section 138 NI Act vide order on summoning dated 29.07.2009.
5. During the course of trial, notice of accusation under section 251 of the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.PC) for the alleged commission of offence punishable u/s 138 NI Act was served upon the accused on 02.02.2013 to which the accused had pleaded not guilty and had claimed trial.
6. Upon the accused pleading not guilty to the notice under section 251 Cr.PC served upon him, an opportunity was given to complainant company to prove its case by leading evidence in support of the same. Complainant company examined one witness in order to prove its case. A brief account of the deposition made by the witness of the complainant company is reproduced below:
7. CW1 Rajesh Bansal tendered his evidence by way of affidavit Ex. CW1/A wherein he had reiterated the facts enumerated in the complaint. He also proved the following documents on record including i. The certificate of incorporation of his company Ex.CW1/1. ii. The true copy of board resolution authorising him to institute the present case Ex.CW1/2.
iii. The minutes of Board Meeting Ex.CW2/A whereby the above mentioned board resolution has been passed.
iv. True copy of authority letter issued by Mr. Raghav Jindal, Managing CC No. 170/12 3/22 Director of complainant company in his favour Ex.CW1/3 v. Consignors copy of Bilti/GR 51243 dated 28.03.2008 in the sum of Rs.
5,410/ Ex.CW1/4 raised by the transporter Parivahan Road Carriers for dispatch of scrap purchased by the accused from the complainant company.
vi. Challan cum invoice bearing the signatures of driver Sh. Shushil Kumar in respect of delivery of material to the accused Ex.CW1/5. vii. Commercial invoice bearing number 473951 dated 28.03.2008 in the sum of Rs.4,68,835/ Ex.CW1/6 raised on the accused by the complainant company.
viii.Cheque bearing number 978727 Ex. CW1/7 drawn on Punjab National Bank dated 28.03.2008 initially issued by the accused towards payment of the sale price of above mentioned scrap material. ix. Letter dated 14.02.2009 Ex.CW1/8 whereby the complainant had called upon the accused to make payment of the first dishonoured cheque Ex.CW1/7.
x. Postal receipt of dispatch of letter dated 14.02.2009 Ex.CW1/9. xi. The second cheque bearing number 978822 dated 06.04.2009 for a sum of Rs.4,68,835/ Ex.CW1/10 issued by the accused in favour of the complainant, towards payment of sale price of scrap material purchased from the complainant.
xii. Return memo dated 25.04.2009. Ex.CW1/11 issued by the bank in respect of dishonour of cheque Ex. CW1/10.
xiii.Intimation slip Ex.CW1/12 in respect of dishonour of the cheque in question.
xiv.Legal notice dated 27.04.2009 Ex.CW1/13 whereby the complainant had called upon the accused to make payment of the cheque amount. xv. Original postal receipts of dispatch of legal notice Ex.CW1/14 and Ex.CW1/15 respectively.
xvi.The refusal of the accused to accept the legal notice vide endorsement on return envelope Ex.CW1/16.
xvii.Statement of account of the complainant company CW1/17 reflecting the sale of MS. Scrap worth Rs.4,68,835/ to the accused vide invoice date 28.03.2008.
xviii.The copy of relevant page of material out register Ex.CW1/D1 showing dispatch of 12.16 metric tonnes of MS. Scrap (strip side cutting) to Bhiwani, Haryana vide truck no. HR397399 at 19.50 hrs ( 7:50 pm) on 28.03.2008 xix.The documents in support of payment of filing of excise return by the complainant Ex.CW1/D2.
xx. Form 1 Ex.CW1/D3 pertaining to payment of commercial tax in respect of sale transaction between the parties.
CC No. 170/12 4/228. In his cross examination by Sh. Rajesh Jindal, learned counsel for accused, CW1 deposed that the commercial invoice can be issued either at the time of delivery or after the delivery of goods and the details of challan on the invoice and commercial invoice should match as per procedure. However, the number of invoice and commercial invoice are different. He clarified that 3 or 4 copies of invoices and commercial invoices are prepared at the time of raising the same and out of the four copies of invoices prepared by the complainant, the first and second copies are sent to the transporter and one copy of the same is supposed to be returned by the transporter whereas the second copy is supposed to be returned by the buyer. He further stated that the third copy of invoice and commercial invoice is sent at the factory of seller whereas the fourth copy is sent to the head office of the seller. He clarified that the original invoice is sent to the head office whereas second and third copy are meant respectively for the transporter and the buyer. He similarly explained the procedure of issuance and dispatch of commercial invoice by stating that the original commercial invoice is sent to the buyer and other copies of the same are retained by the seller. He deposed that the challan and the invoice are the same thing. He clarified that in the present case Ex.CW1/5 was a challan cum invoice and Ex.CW1/6 was a commercial invoice. He admitted that the complainant company used to take cheques as security from buyers. He, however, clarified that the security taken by the complainant company was in the sum of Rs.25,000/ and was generally debited from the account of the accused in the first transaction with the accused. He deposed that the security cheque was not taken in blank condition. He admitted that before the dishonour of cheque in question, the complainant and the accused were involved in trade transactions for a period of about one year. He, however, could not recall the exact number of transactions that had taken place between the complainant CC No. 170/12 5/22 and the accused. He stated that the scrap material was generally sent to accused after every 23 months. He admitted that no written request were made by the complainant company to its bank for return of original cheque bearing number 978727. He stated that the head office of his company was not informed about the dishonour of cheque bearing number 978727 as the collection report was received from the head office itself. He further admitted that after the dishonour of cheque no.978822, the complainant and the accused were still engaged in business transactions. He explained the procedure of supply of materials to the buyers by stating that the bilti is prepared by the transporter and the number of said bilti is mentioned on the challan cum invoice and the commercial invoices automatically take the details of original challan cum invoice. He deposed that a gate pass is also prepared to facilitate the dispatch of material from the factory of complainant through the concerned truck driver having gate pass. He stated that the complainant company also used to charge Central Sales Tax(herein after referred to as CST) and excise tax from its customers. However, the name of the customer from whose business account, excise tax and central sales tax are deducted is not sent to the excise department while depositing the excise duty. He expressed his inability to tell whether the name of the customer was sent to CST department or not at the time of deposit of CST. He also expressed his inability to tell the name of the person who had filled the particulars in cheque Ex. CW1/10. He clarified that the security of Rs. 25,000/ taken from the accused had been reflected in the ledger account maintained by the complainant company Ex.CW1/17. He stated that when a buyer or customer writes to the complainant company about his wish of no longer indulging in any trade transaction with the complainant company, the security amount of Rs.25,000/ is returned back to the said customer. He explained that in the present case, the security amount was not refunded to CC No. 170/12 6/22 the accused as accused had defaulted in making payment of the scrap purchased by the accused. CW1 denied the suggestion that the cheque Ex. CW1/10 was a security cheque which had been misused by the complainant. He further denied the suggestion that the previous cheque bearing number 978727 had not been deliberately filled by the complainant as the same was not presented for correct transaction. He also placed on record the relevant entry of gate pass bearing number 11934 in material out register Ex.CW1/D1, monthly excise return for the month of March,2008 Ex.CW1/D2, CST return for the year ending March, 2008 Ex.CW1/D3 and the certificate under section 65B Ex.CW1/18 regarding authenticity of computer generated print out of the ledger account.
9. After the complainant company closed its evidence, statement of accused Naresh Goyal under section 313 Cr.PC was recorded on 14.02.2013 wherein an opportunity was given to the accused to explain all the incriminating circumstances that had appeared against him in the testimonies of witnesses examined by complainant. The accused had denied all the incriminating circumstances that were put to him and had claimed to have been falsely implicated in the present case. Accused Naresh Goyal had claimed in his defence that no material was ever received by him and the cheque in question was issued by him in the beginning of year, 2008 while placing the first order with the complainant company however, he had no liability to pay the cheque amount as no material was ever supplied to him against the cheque in question. The accused further claimed that he had signed the cheque in question and had written the account number of the complainant. However, the rest of the particulars including cheque amount and the name of the beneficiary had been filled by the representative of the complainant. He also claimed that he had not received any legal notice. Accused had chosen to lead evidence in his defence and had examined one CC No. 170/12 7/22 witness in his defence.
10. DW1 Ram Goel deposed that document Ex. CW1/4 had been issued by his firm Parivahan Road Carriers on 28.03.2008 in respect of transfer of some material from Jindal Pipes Limited, Jindal Nagar Ghaziabad to Bhiwani, Haryana through lorry number HR397399. He deposed that the goods were delivered to Jai Jagdamba Wire Industry at Bhiwani, Haryana and the payment was directly made to the driver of lorry number HR397399. He further deposed that form ST 38 was issued to the complainant company by the accused in the above mentioned transaction.
11. In his cross examination by Sh. V.D'Costa learned counsel for the complainant, DW1 deposed that 12160 Kgs of MS Scrap was delivered to the accused.
12. After the accused closed his defence evidence, final arguments have been heard from Sh. V.D.Kosta learned counsel for the complainant and Sh. Rajesh Jindal learned counsel for the accused on 23.09.2014 as well as today on 28.09.2014. Learned counsel for the complainant has argued that the complainant has successfully proved its case against the accused by examining CW1 Sh. Rajesh Bansal who has fully supported the case of the complainant by deposing that on 28.03.2008 12160 kilograms of MS. Scrap was delivered to the accused and the accused had issued cheque Ex. CW1/10 in the sum of Rs. 4,68,835/ towards the sale price of said material. However, the cheque in question was dishonoured by the bank of the accused upon presentation on account of the fact that the cheque amount exceeded arrangement made by the accused for clearance of cheques with his banker. Thereafter the accused had failed to make payment of the cheque amount within 15 days of receipt of legal notice Ex.CW1/13. Learned counsel for complainant has therefore argued that the accused deserves to be held guilty for the commission of offence punishable under section 138 of CC No. 170/12 8/22 NI Act.
13. Learned counsel for accused has on the other hand, advanced following arguments in defence of the accused.
14. Firstly, it has been argued on behalf of the accused that the cheque Ex.CW1/10 was a security cheque given in blank condition by the accused after filling in his own account number as well as after signing the same. However, the said security cheque was misused by the representative of the complainant company who had falsely implicated him in the present case by filling in the cheque amount, the date and other particulars on the cheque despite the fact that the cheque in question was given as a security cheque by the accused at the time of placing first order with the complainant company by the accused and was supposed to be returned to the accused as no material was ever supplied to the accused by the complainant company.
15. Secondly, learned counsel for the accused has argued that no material was ever supplied to the accused by the complainant company and therefore the accused had no liability to pay the cheque amount.
16. I have considered the rival submissions of the parties and perused the entire evidence led by prosecution in support of its case. I shall now examine the two arguments advanced in defence of the accused.
17. Firstly, it has been argued in defence of the accused that the cheque in question was handed over by him in blank condition to the representative of the complainant company and the cheque amount as well as the date and name of beneficiary have been filled on the same by the officials of the complainant company who had misused the present security cheque given to them by the accused by forging or manipulating the contents of the said cheque, that is, by inserting the cheque amount, the date and the name of the beneficiary on the same and also by thereafter using the CC No. 170/12 9/22 cheque in question for the purpose of falsely implicated the accused in the present case.
18. From a perusal of the above mentioned argument advanced on behalf of accused it is evident that although the accused has disputed his handwriting on the cheque in question. However, he has admitted to having issued and signed the cheque Ex.CW1/10. In view of the admission made by the accused of having issued and signed the cheque in question the presumption of section 139 NI Act is raised against the accused and in favour of the complainant whereby it can be presumed that the accused or the drawer had issued the cheque in question in discharge of liability to pay the cheque amount to the holder of the cheque, that is, the complainant. The provision of section 139 of NI Act is reproduced below in this context:
139. Presumption in favour of holderIt 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. A perusal of the above cited provision of section 139 of the N.I. Act reveals that the said section contains a presumption in favour of the holder of the cheque and against the drawer whereby it can be presumed that the drawer had issued the cheque in question in discharge of a debt or liability to pay the cheque amount to the holder of the cheque. However, the said presumption is a rebuttable presumption and it has been time and again reiterated by Hon'ble Supreme Court of India that it is upon the accused to raise a probable defence to challenge or demolish the presumption of the existence of a legally enforceable debt or liability against which the cheque in question had been issued by him. However, when an accused is called upon to rebut the presumption under section 139 N.I. Act, the standard of proof for doing so cannot be equivalent to the standard of proof which rests upon prosecution in a criminal trial. The accused merely has to prove his defence CC No. 170/12 10/22 on the scale of preponderance of probabilities whereas the complainant or prosecution are required to establish their case beyond reasonable doubt. Observations made by Hon'ble Supreme Court of India in Para14 of the judgement passed in case of Rangappa Vs Mohan, AIR 2010 SC 1898, are noteworthy in this context and are reproduced below: "In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clause and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clause 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'. 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. 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."
20. Applying the ratio of the aforecited judgement passed in the case of Rangappa Vs Mohan, AIR 2010 SC 1898 (Supra) to the fact of the CC No. 170/12 11/22 present case, it can be safely concluded that since accused Naresh Goyal has admitted to having issued and signed the cheque in question in favour of the complainant therefore the presumption of section 139 of NI Act is raised against the accused despite the fact that the accused has disputed his handwriting on the other particulars filled in the cheque in question including the cheque in question amount, the name of the beneficiary and the date. However, the said presumption is a rebuttable presumption and if the accused is able to disclose a probable defence, to the presumption under section 139 NI Act then it is the duty of the complainant to clarify how the cheque in question was issued in discharge of a legally enforceable debt or liability by the accused. The presumption under section 139 of Negotiable Instruments Act can be rebutted by an accused person by raising a probable defence. However, the standard of proof expected from the accused to establish the probability of his defence is not the same as the standard of proof expected from prosecution or complainant in a criminal trial. While the complainant or prosecution is expected to prove its case beyond reasonable doubt, the accused is on the other hand expected to merely prove his defence on the scale of preponderance of probabilities. Also, for the purpose of proving the probability of his defence to rebut the presumption contained in section 139 of NI Act, the accused can either lead evidence of his own or the accused can rely upon the evidence and materials placed on record by the complainant. In the light of this legal proposition, I shall now examine the probability of the above mentioned defence of the accused.
21. In this context, it is pertinent to mention that the accused has led no evidence to prove any of the defences taken by him. Although it is the main defence of the accused that the cheque in question was handed over by him in blank condition to the complainant and he had not filled the cheque amount, the date or the name of the beneficiary in the same. However, the CC No. 170/12 12/22 accused has not got the cheque in question examined from any handwriting expert in support of his claim that the handwriting on the cheque in question did not belong to him. It is therefore, noteworthy that the accused has merely alleged that the cheque in question had been forged by the officials of the complainant company but has not supported his allegations that the cheque in question was a forged or manipulated cheque either by leading independent evidence of his own or by pointing to any evidence led by the complainant or by otherwise relying upon any material or document placed on record by the complaint whereby an inference can be drawn that the cheque amount, date and the name of the beneficiary on the cheque in question Ex. CW1/10 had not filled by the accused and the same had been filled or inserted by the employees of the complainant company on the cheque in question.
22. In this context, Hon'ble Supreme Court of India had observed in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 that as per the provisions of Section 45, 47 and 73 of the Indian Evidence Act 1872 there were three different modes of proving the handwriting of any person in a litigation. Firstly, the handwriting on any documents can be proved by the admission of person responsible for writing or executing the document in question. Also, the handwriting of any person on a document can be proved through the testimony of a witness in whose presence the executor of the document had written or signed the same. Secondly, the handwriting of a person on a document can be proved by the testimony of a person who is familiar with the handwriting of the person whose handwriting is in dispute. Besides, as per the provisions of Section 45 of the Indian Evidence Act the handwriting of a person on a document can be proved by the opinion of a handwriting expert Thirdly, Section 73 of the Indian Evidence Act also provides scope for comparison by the court concerned of a handwriting CC No. 170/12 13/22 made in the presence of the court or of any admitted or duly proved handwriting of the person concerned with the handwriting in dispute. Observations made in this context by the Hon'ble Apex Court in the case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 in para 10 of the judgement are noteworthy in this context and are reproduced below:
"10. Evidence of the identity of handwriting receives treatment in three sections of the Evidence Act. They are Sections 45, 47 and 73. Handwriting may be proved on admission of the writer, by the evidence of some witness in whose presence he wrote. This is direct evidence and if it is available the evidence of any other kind is rendered unnecessary. The Evidence Act also makes relevant the opinion of a handwriting expert (Section 45) or of one who is familiar with the writing of a person who is said to have written a particular writing. Thus besides direct evidence which is of course the best method of proof, the law makes relevant two other modes. A writing may be proved to be in the handwriting of a particular individual by the evidence of a person familiar with the handwriting of that individual or by the testimony of an expert compet/ent to the comparison of handwritings on a scientific basis. A third method (Section 73) is comparison by the Court with a writing made in the presence of the Court or admitted or proved to be the writing of the person."
23. Applying the ratio of the above cited decided case of Fakruddin Vs. State of M.P. AIR 1967 SC 1326 to the facts of the present case. I am of the considered opinion that if there are three modes of proving the handwriting of any person on a document, then the same three modes can be used for disproving the hand writing of any person on any document. If the accused wanted to disprove his handwriting on the cheque in question, then he should have ideally got the cheque in question examined from a handwriting expert. In the alternative, the accused could have produced the person responsible for writing the particulars on the cheque in question along with any admitted handwriting of the said person responsible for writing the particulars on the cheque in question for a comparison by the Court during the recording of evidence. Even, if the accused was not aware about the CC No. 170/12 14/22 identity of the third person or employee of the complainant responsible for writing the particulars on the cheque in question then also accused should have at least produced his own admitted or duly proved hand writing for comparison with the questioned handwriting by this court or by an handwriting expert. However, accused has chosen neither to get the cheque in question examined from a handwriting expert to prove that the cheque in question had not been filled by him and the particulars on the cheque including the cheque amount, date and the name of the beneficiary were not in his handwriting nor has the accused produced any admitted handwriting of his own for comparison with the questioned handwriting of himself on the cheque in question for comparison by the Court.
24. In these circumstances, accused Naresh Goyal has made a bald assertion that he had signed a blank cheque and had handed over the same to the representative of the complainant, after filling in his account number on the same which is not substantiated by any oral, ocular or documentary evidence including the opinion of the handwriting expert. Besides, the defence of the accused has also not been sustained or proved from the evidence led by the complainant company. Therefore, neither any inference can be drawn from the evidence produced by the complainant that the particulars on the cheque in question were not filled by the accused nor the accused has led any independent evidence of his own in support of his claim that the particulars on the cheque in question had been filled by the officials of the complainant company. Hence, the probability of defence of the accused that the cheque in question was handed over by him in blank condition to the representative of the complainant company who had filled in the particulars on the said cheque has not been proved on the scale of preponderance of probabilities.
25. Secondly, it has been argued on behalf of accused Naresh CC No. 170/12 15/22 Goyal that he had no liability to pay the cheque amount as no material had ever been supplied to him by the complainant company which had merely tried to encash a security cheque.
26. In the context of above mentioned second argument advanced in defence of the accused, it is noteworthy that complainant company has placed on record challan cum invoice Ex.CW1/5 and commercial invoice bearing number 473951 dated 28.03.2008 Ex.CW1/6 in the sum of Rs.4,68,835/ whereby 12.160 metric tonnes of MS. Scrap (strip side cuttings) had been supplied to the accused by the complainant company. Besides the company has also placed on record copies of relevant page of material out register Ex.CW1/D1 showing that the MS. Scrap (strip side cutting) weighing about 12.160 metric tonnes was dispatched to Bhiwani, Haryana vide truck no. HR 39 7399 at 19.50 hrs (7:50 pm) on 28.03.2008. Additionally the complainant company had also proved on record the consignors copy of Bilti/GR 51243 dated 28.03.2008 Ex.CW1/4 in the sum of Rs. 5,410/ raised by the transporter Parivahan Road Carriers whereby the said MS. Scrap was delivered to the accused at Bhiwani, Haryana. Moreover, the complainant company had also produced its statement of account Ex.CW1/17 reflecting the sale of MS. Scrap worth Rs.4,68,835/ to the accused vide invoice dated 28.03.2008. The complainant company has also relied upon form 1 Ex.CW1/D3 pertaining to payment of commercial sales tax in respect of transaction of sale of MS scrap to the accused and excise tax return Ex.CW1/D2 filed by the complainant. From the above mentioned documents relied upon by the complainant company, the complainant has duly proved that 12.160 metric tonnes of MS. Scrap was duly dispatched to the accused on 28.03.2008 at 07:50 pm vide material out register Ex.CW1/D1 and the same was delivered to the firm of the accused at Bhiwani, Haryana in accordance with the consignors copy of Bilti/GR 51243 dated 28.03.2008 CC No. 170/12 16/22 Ex.CW1/4 in the sum of Rs. 5,410/ raised by the transporter Parivahan Road Carriers.
27. Moreover the accused has examined one witness in his defence. However, even the said witness, namely, DW1 Ram Pratap Goyal has supported the case of complainant instead of supporting the case of the accused. DW1 has categorically deposed on 28.03.2008 some material from Jindal Pipes Limited was transported to firm of the accused Jai Jagdambe Wire Industries Bhiwani, Haryana by his lorry number HR 39 7399 on 28.03.2008. He has also stated that in respect of the above mentioned transaction Form ST 38 was issued to the complainant company by the accused. In his cross examination on behalf of the complainant, DW1 Ram Pratap Goel has further clarified that 12160 Kgs of MS. Scrap was delivered to the accused vide the above mentioned transaction. Therefore, from the materials placed on record by the complainant as well as from the independent evidence led by the accused it is evident that 12.160 metric tonnes (12160 kgs) of MS. Scrap was delivered to the accused on 28.03.2008 and from a perusal of the challan cum invoice Ex.CW1/5 as well as the commercial invoice Ex.CW1/6, it is evident that the sale price of above mentioned MS. Scrap was Rs.4,68,835/ and the accused had accordingly issued cheque bearing number 978822 Ex.CW1/10 of exactly same amount, that is, the amount of Rs.4,68,835 mentioned in the invoice.
28. Therefore, the cheque amount which is exactly equivalent to the amount mentioned on the invoice raised by the complainant company towards the sale of 12160 kilograms of MS. Scrap to the accused also supports the case of complainant that cheque in question was in fact issued towards the payment of sale price for the purchase of 12.160 metric tonnes of MS. Scrap purchased by the accused from the complainant vide challan cum invoice and commercial invoice Ex. CW1/5 and Ex.CW1/6 respectively.
CC No. 170/12 17/22Accused has made bald assertion that he had not received any material from the complainant company and the complainant company had misused a security cheque given by him to the said company, however, this defence of the accused has not been substantiated from the evidence led by the complainant as well as from the independent evidence led by the accused. In these circumstances there is no material on record to arrive at a finding that either the accused had not received any material from the complainant or the complainant company had misused the cheque in question which was a security cheque.
29. In a similar case decided by Hon'ble High Court of Delhi in the case of Vijay Power Generators Ltd vs Annai Engineering Works & Anr decided on 22 April, 2014 Crl. Appeal No.1437 of 2013 and Crl. Appeal No. 1447 of 2013, wherein the accused had examined himself as DW1 in his defence and had claimed that he had issued the cheque in question as a blank security cheque and since he had not received any generator from the complainant company in respect of purchase of which he had issued the cheque in question therefore the cheque in question had been misused by the complainant company, the Hon'ble High Court had rejected the defence of the accused on the ground that in his cross examination by the complainant, the accused had admitted that he had taken two generator sets from the complainant company whereas he had earlier taken a contrary stand in his statement u/s 313 Cr.PC by stating that he had issued cheque in question as a security for 7 generators to be purchased by him from the complainant company and therefore the onus was on the accused to prove that he had paid the consideration amount for the generator set supplied to the accused in view of mutually contradictory stands taken by the accused particularly when the accused had not sent any notice to the complainant calling upon the complainant to return his security cheques. Observations CC No. 170/12 18/22 made in para 6 of the said judgement are noteworthy in this context and are reproduced below: "6. The only evidence led by the respondent to discharge the statutory onus placed on him is his own deposition as DW1. In the examinationinchief deposition the respondent inter alia stated that there was no outstanding liability of the complainant Company towards him and the cheques in question were signed as blank, as security in reference to purchase of generators. He also claimed that he had not received any generator from the complainant Company for which cheques in question had been issued. During cross examination by the learned counsel for the complainant, DW1 Mr. J. Stanishlaus, Proprietor of Annai Engineering Works stated that he had taken just 12 generator sets from the complainant Company. He specifically denied the suggestion that he had purchased seven (7) generator sets from the complainant Company. Thus, the case as set out by DW1 in his deposition is that he had purchased only 12 generator sets from the complainant Company. On the other hand, in his statement under Section 313 of Cr.P.C. the respondent expressly stated that he had handed over cheques in question as blank signed cheques for the purpose of security as he had to purchase seven (7) generator sets and the complainant supplied seven (7) generator sets to him. It is, thus, evident that the respondent/accused made a false statement on oath when he claimed that only 12 generator sets were supplied to him. Having admitted the delivery of seven (7) generator sets to him the onus was on the accused/respondent to prove that he had paid for the said generator sets. It has come in the crossexamination of DW1 that he had issued demand drafts of Rs.7.75 lakh to the complainant/appellant as per Ex.DW1/6. However, a perusal of the letter Ex.DW1/6 would show that it refers to a demand draft of Rs.3.00 lakh sent on 7.11.1997, and not to one or more demand drafts of Rs.7.75 lakh. As per the statement of accounts filed by the appellant/complainant Company, it received only two (2) payments from the respondent in the financial year 19992000, i.e., between 1.4.1999 to 31.3.2000. Out of them one payment was for Rs.17,000/ and the other was for Rs.25,000/. The cheques for Rs.6,71,326/ which were deposited with the bank on 7.3.2000 were dishonoured and the amount of the aforesaid cheques was debited in the account of the respondent on 23.3.2000. The respondent/accused did not examine any bank official to prove any payment of Rs.7.75 lakh to the complainant by way of demand draft. In case any such payment was actually made, after the delivery of the generator sets was received, nothing prevented the respondent/accused from summoning the bank official(s) to prove the aforesaid payment. Moreover, no receipt evidencing payment of Rs.7.75 lakh has been filed by the respondent/accused. On receipt of notice from the complainant/appellant, admittedly no reply was sent by the respondent/accused, claiming payment of Rs.7.75 lakh by way of demand draft or alleging that the cheques in question were given as blank cheques, towards security. No notice was sent by the respondent/accused to the complainant/appellant Company at any point of time, asking for the return of the cheques in question on the ground that the payment had already been CC No. 170/12 19/22 made by way of demand draft. In fact, in his examinationinchief DW1 did not even refer to any payment to the appellant/complainant by way of any demand draft and the plea of such payment cropped up only during the crossexamination of the respondent/accused. The respondent did not file his own statement of account, to show that nothing was payable by him to the appellant."
30. The present case is similar in facts to the above cited case of Vijay Power Generators Ltd vs Annai Engineering Works & Anr (Supra) and in the present case also accused Naresh Goyal has taken a defence which is contrary to the facts proved on record from the evidence of the complainant as well as from the evidence of the accused. Although the accused has claimed that no material was delivered to him however, complainant has placed on record several documents including challan cum invoice Ex.CW1/5, commercial invoice Ex.CW1/6 towards sale of the material comprising of 12.160 metric tonnes of MS. Scrap to the accused and has led sufficient evidence to prove that the said material was not only dispatched to the accused by the complainant company by truck number HR 39 7399 vide material out register entry Ex.CW1/D1 at about 7:50 pm on 28.03.2008 but was also delivered at the address of the firm of the accused vide consignors copy of Bilti/GR 51243 dated 28.03.2008 Ex.CW1/4 in the sum of Rs. 5,410/ raised by the transporter Parivahan Road Carriers. Hence, the defence of the accused has not been substantiated either from the evidence and materials placed on record by the complainant or from the independent evidence led by the accused. It is also noteworthy that the only independent witness examined by the accused, namely, DW1 Ram Goel has not supported the defence of accused Naresh Goyal and has rather supported the case of complainant company by deposing that on 28.03.2008, 12160 kgs of M.S Scrap was delivered to the accused by his firm's lorry bearing number HR 39 7399. Hence, the accused has failed to prove his second defence that no CC No. 170/12 20/22 material was ever delivered to him on the scale of preponderance of probabilities.
31. In the light of my foregoing discussion, I am of the considered opinion that the accused has failed to prove the two defences taken by him on the scale of preponderance of probabilities either by relying upon any material evidence produced by the complainant or by producing any independent evidence of his own. Accused has led no evidence to prove that the cheque in question had not been filled by him in his own handwriting and the particulars of the same had been forged by some other person or employee of the complainant company. Besides, accused has not been able to establish that no material was ever supplied to him by the complainant company and therefore, he was not been liable to pay the cheque amount.
32. On the other hand, the complainant company has led sufficient evidence in support of its case. The complaint and documents placed on record have established beyond reasonable doubt that 12160 kgs of Ms. Scrap had been purchased by the accused from the complainant company vide challan cum invoice Ex. CW1/5 and commercial invoice Ex. CW1/6. The complainant has also led evidence to establish that the said material was dispatched to the address of the firm of the accused vide lorry number HR 39 7399 vide material out register Ex.CW1/D1 at 7:50pm on 28.03.2008. Besides, vide consignors copy of Bilti/GR 51243 dated 28.03.2008 Ex.CW1/4 in the sum of Rs. 5,410/ raised by the transporter Parivahan Road Carriers for dispatch of scrap purchased by the accused from the complainant company, it has been established that said MS. Scrap weighing about 12160 kgs had been delivered to the firm of the accused, namely, Jai Jagdambe Wire Industries at Bhiwani, Haryana on 28.03.2008. This fact has been corroborated by the testimony of transporter, DW1 Ram Pratap Goyal who has categorically deposed that the said 12160 kgs of MS. Scrap was CC No. 170/12 21/22 delivered to the firm of the accused on 28.03.2008.
33. Besides, CW1 Sh. Rajesh Bansal has also proved on record that the cheque Ex.CW1/10 issued by the accused towards payment of invoice Ex.CW1/5 and commercial invoice Ex. CW1/6 was dishonoured on presentation due to the fact that the cheque amount of the said cheque had exceeded arrangement made by the accused for payment of cheques with his banker. Complainant has also proved on record issuance of legal notice Ex.CW1/13 and its dispatch to the accused vide postal receipts Ex.CW1/14. The accused had failed to make payment of the cheque amount within 15 days of receipt of legal notice as well as till the conclusion of trial of present case.
34. Therefore, the ingredients of offence punishable under section 138 NI Act have been duly proved against the accused. Accused Naresh Goyal is accordingly held guilty for the commission of offence punishable under section 138 NI Act. At the joint request of learned counsel for the accused and learned counsel for complainant, list for arguments on the point of sentence on 17.10.2014.
Announced in the open Court (Jasjeet Kaur)
th
on 29 September, 2014 Civil JudgeI/ Metropolitan Magistrate
New Delhi
CC No. 170/12 22/22