Delhi District Court
M/S Surya Cargo Forwarders vs . M/S K.S. Logistics on 17 November, 2022
1
IN THE COURT OF DR. SATINDER KUMAR GAUTAM
PRESIDING OFFICER SPECIAL COURT(NI ACT) SOUT WEST,
DWARKA
CC No. 4992428/16
M/s Surya Cargo Forwarders VS. M/s K.S. Logistics
U/s 138 The Negotiable Instruments Act, 1881
P S Delhi Cantt
1. Name & address of the complainant: M/s Surya Cargo Forwarders
Through Mr. Ashok Dogra
(AR), R/o. 8/10, 2nd Floor,
Mehram Nagar,
Palam Airport, New Delhi.
Also at Khasra No. 629,
Block-A, Rangpuri Extn.
Near Telco Service Station ,
New Delhi .
2. Name and address of accused : 1. M/s K.S. Logistics
Through Sh. M.M. Sajjan @
Goldy (Proprietor)
2. Sh. M.M. Sajjan @ Goldy
(Proprietor )
Office Shop no. 5, 4/53-54,
Victoria Building, Saraswati
Marg, Karol Bagh, New
Delhi-110005.
Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 1/15
2
Also At: 17/264, Opposite
Milan Cinema, 3rd Floor, New
Moti Nagar, Delhi-110015.
3. Offence complained of :138 & 142 of Negotiable
Instrument Act-1881
( Amended up to date)
4. Plea of accused : Pleaded not guilty
5. Final Order : Convicted
6. Date of such order : 17.11.2022
7. Date of Institution of case : 16.09.2014
JUDGMENT
1. Vide this judgment, I shall dispose off the above caption complaint case filed by the complainant M/S Surya Cargo Forwarders Pvt. Ltd Through Mr. Ashok Dogra (AR) (herein after referred to as the 'complainant' against the accused M/s K.S. Logistics Through Sh. M.M. Sajjan @ Goldy (hereinafter called accused).
FACTUAL MATRIX:
2. Brief facts as alleged in the complaint are that the complainant is engaged in the business of cargo freight forwarding and having business transaction with the accused. The accused no.1 through Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 2/15 3 accused no.2 was in the business transaction with the complainant from 15.6.2012 and the accused were not sincere and regular in the payment of the outstanding. During the course of the business, as per ledger on 31.03.2014, a sum of Rs. 17,35,395/ were outstanding due against the accused no. 1 and 2.
3. Accused person admitted its liability and to discharge it, issued three cheques in questions bearing no. 155744, of Rs.2,50,000/, cheque no. 155753 of Rs.1,50,000/ each ( one lakh fifty thousand) and cheque no. 155757 of Rs.1,00,000/ ( one lac) all dated 22.5.2014 drawn on J&K Bank 6/3233, Gurudwara Road WEA Karol Bagh, New Delhi 110005.
4. On presentation the above said cheques by the complainant received back as dishonoured with remarks "Account Blocked" vide returning memo dated 24.5.2014 and the fact of dishonour of cheques was brought into the knowledge of accused no.2, despite that accused persons failed to make the payment as such, the complainant sent a legal demand notice through registered post on 30.6.2014 which was received back with report "Locked". The present complaint was filed in Patiala House Court, but the present complaint was returned for want of jurisdiction in view of the judgment of Dashrath Rupsingh Vs. State of Maharashtra & Anr, Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 3/15 4 AIR 2014 SC 3519 and civil Appeal no. 2287 of 2009 passed on 01.08.2014. The above said complaint returned vide order dated 12.8.2014 court of Sh. Puneet Pahwa, the then Ld. MM (NI Act)/ PHC/ND. Thereafter, the said complaint was filed to the jurisdiction of the court concerned on 27.1.2016.
5. In order to prove the complaint, the complainant examined Sh. Vijay Verma, Authoriszed Representative and tendered in his evidence in affidavit in presummoning evidence. The accused was summoned vide order dated 27.02.2016.
6. On 21.12.2017, Notice u/s 251 cr.p.c was framed against the accused upon accused Sh. M.M Sajjan @ Goldy, being proprietor of accused no. 1 and on behalf of accused no.1 M/S K S Logistics to which, accused No.2, plead not guilty and claimed trial and further stated that he used to take services from the complainant. The complainant used to bring his shipment/consignments from Bombay by Air and the complainant was under the obligation to close the N Form and his customers had to take the shipment directly from custom/airport in Bombay after paying the auctri. He further stated that the complainant told him that there was no written agreement with the complainant for closing the N Form relating to auctri. Accused further stated that the complainant closed some N Forms Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 4/15 5 and did not close the remaining. As per the accounts of the complainant, he admit liability of Rs.17,35,395/ towards the complainant but the said account has also to be verified from his side. He has also to recover the payment from the complainant regarding the penalties paid by him to his customers due to the lapse on the part of the complainant. The cheques in question were not given by him to the complainant for discharging of his liability. His blank signed cheques were missing from his office against which he lodged a police complaint. The complainant has misused his cheques and he did not have any liability to the cheque amount. Accused further stated in reply to question no. 4 that he has also contacted the complainant owner and he was told that he can make payment in installments of Rs. 5000/ to Rs. 10000/ as he did not owe the amount, he did not agreed to the same. The complainant has also not given him the copies of N Form.
7. Post summoning Complainant Evidence. The complainant in his post summoning evidence examined Sh. Vijay Verma, He was not cross examined by the accused despite several opportunity granted after giving opportunity as 'Nil' and as such, complainant evidence was closed vide order dt. 18.7.2019 by new Authorized Representative of the complainant namely Sh. Ashok Dogra matter was listed for statement of accused.
Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 5/15 6
8. Thereafter, Statement of accused no.2 for himself and on behalf of accused no. 1 was recorded under Section 313 Cr.P.C by putting all incriminating evidence led by the complainant. Accused no.2 denied the same and reiterated the averments as stated in notice of accusation under Section 251 Cr.P.C stating that he used to keep blank signed cheques in his office. He sold his premises to his brother and from there the blank signed cheques might have been taken by the complainant. He has filed the complaint in this regard in PS Moti Nagar. The accused opted to lead defence evidence.
9. In his defence, he examined himself as defence witness No.1 and reiterated the version as stated in the notice under Section 251 Cr.P.C. and statement under Section 313 Cr.P.C. In addition to his averments, he further stated that has made the payment of more than Rs. 50 Lacs to get the shipment release. He used to carry out his business from his office situated in Karol Bagh where cheque book and other papers were kept and used to keep signed cheques in his premises. The cheque book got misplaced of which the cheques in question forms the part. He has also filed a complaint regarding misplacing his cheque book. He do not know how the cheque in question came into possession of the complainant. He has not taken Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 6/15 7 any amount from the complainant. He has no debt against the complainant.
10. In cross examination, DW1 Madan Mohan Sajjan admitted that he used to make payment against the invoices / bills to the complainant as per the directions of the complainant company. He admitted Ex.CW1/2, which which he was confronted, stating that the payment reflecting in EX CW1/2 under the heading of "credit" were made by him against the bills raised by the complainant under the heading of 'debit' and further, stated that certain payments were made through cash. He admitted that he has not filed any statement of account. He does not have the statement of accounts since it has been lost. He also admitted that there is no document on record to show that payment made by him on behalf of the complainant. The accused also admitted receiving of legal notice Ex.CW1/9. Once he stated that he replied to the legal notice and later on he denied the same stating that earlier, he had some different counsel who had issued the reply and he does not have the copy. He denied that an amount of Rs. 17,35,395/ is due towards him. However, stated that it is because of the dereliction on part of the complainant company on their part, repeated penalties were imposed upon him by the parties as the complainant company did not issued the N Form which is required for dispatch of the cargo and since despite his repeated Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 7/15 8 requests complainant company did not issue N Form and he decided to server his business relation with the complainant company as he had already paid more than Rs. 50 lakhs as penalty due to the default on part of complainant company. The penalty was made to BMC i.e. Bombay Muncipal Corporation which took only cash from him. He had approached the police authorities and such an old record is not traceable by them. He denied the suggestion made by the counsel for the complainant that amount of Rs.17,35,395/ is due against him or that the cheque in question was issued against the discharge of liability. Accused persons closed the defence evidence on 26.7.2022 as such, the matter was fixed for final arguments.
11. Having heard the submissions of Ld. counsel's and gone through the material on record. Ld counsel for the parties reiterated the facts and contentions raised as alleged in the examination of their witnesses as well as point out the legality/ illegality of the complaint, legal notice and reply to the legal notice, affidavit in evidence & other documents which have been exhibited during examination of witnesses and cross examination of witnesses and judgment cited. Ld. Counsel for the complainant has contended that It is contended by the complainant that in cross examination of accused as DW1, the accused admitted that he used to book the consignment with the complainant company and had availed the Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 8/15 9 services of complainant company and the fact that the payment reflecting in Ex. CW1/2 made under the heading of "credit" were made by the accused against the bills raised by the complainant under the heading of "debit". Hence, the accused had admitted the statement of account Ex CW1/2. The accused had admitted that he had not filed on record any statement of account maintained by him during the course of business with the complainant. Further, accused has also admitted that he had not filed any document on record to show that he had paid any amount to the complainant company in cash or that he had paid the penalties to the customers. The accused has also admitted that he has not filed any receipt on record to show that he had paid the penalties to the MBC and the fact that he has not filed any document to show that he had demanded N form from the complainant company. He also admitted that he has not filed on record the copy of police complaint regarding missing of the cheques in question.
12. On consider the submissions of the Ld. counsel's of the parties and perused the judgment as relied upon. To bring home a liability under section 138 of NI Act, 1881, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, viz.
1. A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 9/15 10 money to another person from out of that account for the discharge of any legally enforceable debt or liability;
2. The cheque has been presented to the bank within a period of three months from the date mentioned on the cheque or within the period of its validity, whichever is earlier;
3. The cheque is returned by the bank unpaid either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
4. The payee or the holder in due course of the cheque makes a demand for the payment of teh said maount of money by giving a notice in writing to the drawer of the cheque within 40 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
5. The drawer of such cheque fails to make the payment to the payee or the holder in due course of the cheque within 15 days of the receipt of the notice.
13. Accused took consistent plea that nothing is due towards the accused and used to keep signed cheque which were misplaced and not taken any amount from the complainant.
14. Unlike the prosecution, the accused has to prove his defence on probabilities by leading cogent evidence. The onus on the accused is not as stringent and rigorous as is on the prosecution even in case of a trial which proceeds on reverse onus of proof theory. The said Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 10/15 11 view is endorsed by the Hon'ble Apex court in a plethora of decisions, one being, Kali Ram v. State of Himachal Pradesh 91973) 2 SCC 808 wherein it been held that:
" ... The onus even in such cases upon the accused is nto as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal"
15. The accused has categorically admitted in his statement u/s 313 Cr.P.C , as well as in notice u/s 251 cr.p.c that the cheque in question was belongs to his bank and admitted his liability of Rs.17,35,395/. The accused also admitted that he had received legal notice and duly replied but no reply is place on record. He further stated in his statement as DW1 that he has paid more than 50 lakhs to get the shipment released. He did not filed any copy of police report for missing of cheuqe book or reply to the legal notice on record.
16. The accused has taken a consistent stand that he had repaid all the amount to the complainant and paid more than Rs.50 lakhs for release of shipment. The said contention has to prove by the accused by leading reliable cogent evidence & filing relevant documents Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 11/15 12 however, accused did not file any supporting documents to prove that he had paid the penalty amount of Rs.50 Lakhs for release of shipment, nor copy of missing report or reply to the legal notice. He has also not filed copy of the complaint sent to P S Moti Nagar nor examined any witness of P S Moti Nagar that his complaint was received with regard to the missing of cheques of accused No.2. The accused has also not explain about the outcome of his complaint lodge to police station regarding missing of signed cheque book.
17.Reliance can be placed on judgment Manesh Varghese Vs Sainulabudeen, 2019SCC Online Ker 2029 : 2019 (3) ILR (Ker) 146 Section 139 of NI Act 1881 says that "A presumption was to be made that every negotiable instrument was made or drawn for consideration and that it was executed for the discharge of debt or liability once the execution of negotiable instrument was either proved or admitted. When the complainant discharged the burden to prove that the cheque was executed by the accused, the rules of presumptions under section 118 and 139 were very much available to the complainant and the burden shifted on the accused."
18. In case titled as Bir Singh Vs Mukesh , (2019) 4 SCC 197 Section 20 NI Act 1981 it is observed that :
Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 12/15 13 " If a person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up he particulars in it and complete the cheque, thus making the drawer liable for the payment mentioned in it. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted."
19. Reliance can also be placed on judgment titled as NEPS Micon Ltd. And Others vs Magma Leasing Ltd. 1999 (1) Apex CJ-0624 :1999 AIR (SCW) 1637: AIR 1999 SC 1952: 1999 Crl L. J. 2883 1999 (4) scc 253, it was observed that "Closure of the account would be an eventuality after the entire amount in the account is withdrawn. It means that there was no amount in the credit of that account on the relevant date when the cheque was presented for honouring the same."
20. Also, in the case of Rangappa v. Sri Mohan, (2010) 11 SCC 441 it was held that "(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. (..)As noted in the citations, this is of course in Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 13/15 14 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.
21. It stand established on record in the form of evidence of the complainant, documents exhibited in evidence, admission of signature on cheque etc of the accused during accusations explained to him u/s 251 cr.pc & statement of accused recorded u/s 313 Cr.P.C. the accused was having business terms with the complainant and the cheque in question belongs to him. The accused has also admitted about receiving of legal demand notice and replied the same though , he has not filed copy of reply on record nor he produced any record to show that he has paid all the amount to the complainant as contended by him. The accused also did not produce any statement of account maintained by him during the course of business with the complainant. The accused has also admitted his liability in reply to notice u/s 251 cr.p.c. The accused has also nt produced any copy of complaint lodged in P S to show the cheque in questions were misused or were in fact they were missing nor he examined any other person in defence to whom he had given payment with regard to penalty on behalf of complainant nor produced receipt, as claimed, issued to him by BMC on record. The accused also admitted his signature on the cheques in question. hence, the foremost ingredients of offence punishable u/s 138 of NI Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 14/15 15 Act has been proved beyond all reasonable doubt against the accused. Rather the accused admitted his liability of Rs.17,35,395/- in notice u/s 251 cr.p.c and made contradicting stand regarding issuing cheque in question in favour of complainant. On the other hand, there is no consistent trustworthy occular evidence either oral or documentary filed by the accused to favour him.
22. In view of the aforementioned discussion and material on record, the court has come to the conclusion, that complainant has been able to prove its case u/s 138 of NI Act against the accused person i.e accused no. 1 & 2 Sh. M.M Sajjan @ Goldy and being proprietor of accused No.1 company beyond all reasonable doubt. Accordingly, accused persons are convicted for offence punishablew u/s 138 NI Act qua the cheques in question.
Announced in the open Court 17. 11.2022 (DR. SATINDER KUMAR GAUTAM) SPECIAL COURT (NI ACT) SOUTHWEST, DWARKA Cc No. 4992430/16 M/S Surya Cargo Vs M/S K.S Logistics 15/15