Delhi District Court
Diesel Auto Parts Co. Pvt Ltd vs Rightway Motors on 24 December, 2024
IN THE COURT OF MS. NEHA GOEL, JUDICIAL MAGISTRATE (FIRST
CLASS) NI ACT- 02, CENTRAL, TIS HAZARI COURT, DELHI.
CC No. 518831/2016
CNR No. DLCT020019322013
M/S DIESEL AUTO PARTS CO. PVT. LTD. VS. M/S RIGHTWAY
MOTORS
U/s 138 N. I. Act
PS KASHMERE GATE
JUDGMENT
1. Sl. No. of the case 518831/2016
2. Date of institution of the case 16.01.2013
3. Name of the Complainant M/s Diesel Auto Parts Co. Pvt. Ltd having its office at 2798, Bara Bazar, Kashmere Gate, Delhi-110006 Through its Director Sh. Lalit Sabharwal
4. Name of Accused, parentage 1. M/s Rightway Motors, 56, Sehgal and address Market, Kashmere Gate, New Delhi-110006 Through its Partners
2. Harjeet Singh
3. Gurcharan Singh
4. Jasdeep Singh Addressee no. 2 to 4 are partners of M/s Rightway Motors, 56, Sehgal Market, Kashmere Gate, New Delhi-110006 and Also at:
R/o E-1/11, Model Town-II, New CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 1 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date: 2024.12.24 15:36:06 +0530 Delhi-110009. 5. Offence complained of Section 138 Negotiable Instruments Act, 1881. 6. Plea of Accused Accused 1. M/s Rightway Motors pleaded not guilty
2. Harjeet Singh- trial abated vide order dated 28.06.2023
3. Gurcharan Singh- trial abated vide order dated 07.01.2019
4. Jasdeep Singh pleaded not guilty
7. Final Order Accused 1 Partnership Firm M/s Rightway Motors is convicted.
Accused no. 4 Jasdeep Singh is acquitted.
8. Date of pronouncement 24.12.2024
1. The present complaint (CC No. 518831/2016) is one of the 17 connected matter having CC Numbers - Ct. Cases 520346/2016, Ct. Cases 521284/2016, Ct. Cases 521285/2016, Ct. Cases 522408/2016, Ct. Cases 523754/2016, Ct. Cases 524142/2016, Ct. Cases 524143/2016, Ct. Cases 524192/2016, Ct. Cases 524193/2016, Ct. Cases 524194/2016, Ct. Cases 518830/2016, Ct. Cases 518831/2016, Ct. Cases 522232/2016, Ct. Cases 522233/2016, Ct. Cases 522234/2016, Ct. Cases 531043/2016 and Ct. Cases 531047/2016 and separate judgments are being passed in these connected matters.
2. Factual Matrix: The brief facts as alleged by the complainant in the complaint are that the complainant is a Private Limited Company duly incorporated under the Companies Act under the name and style of M/s CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 2 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:10 +0530 Diesel Auto Parts Co. Pvt. Ltd. of which Sh. Lalit Sabharwal is one of the Director and he has been duly authorized to file, sign and verify the present complaint against the accused persons vide resolution dated 01.10.12 and otherwise also he is well conversant with the facts and circumstances of the present case and thus competent to file and institute the present complaint. The complainant Company is engaged in the business of sale and purchase of auto parts/bearings and has been operating from the above mentioned address. However the complainant company was earlier a partnership firm of which Sh. Lalit Sabharwal was one of the partner. The accused no. 1 through it's Directors i.e. accused no. 2, 3 and 4 who are responsible for day to day affairs, management, control and supervision of accused no. 1, had been purchasing bearings/autoparts and the complainant company had been maintaining all records of all the transactions between the accused persons and the complainant. As per record maintained by the complainant company, a sum of Rs. 3261741 is liable to be paid by the accused persons to the complainant company. Accused persons no. 2 to 4 who are responsible for date to day affairs, management, control and supervision of accused no. 1, had issued certain cheques including three cheques bearing No. 529807 dated 22.09.2012, 529808 dated 24.09.2012 and 529809 dated 27.09.2012 for Rs. 5,00,000/- each all drawn on Punjab & Sind Bank, Lothian Road, Kashmere Gate, Delhi-110006. The complainant presented the above said cheques with its banker i.e. Citi Bank for their encashment, however the same got dishonored on account of "Funds Insufficient" vide return memo dated 23.11.2012. The complainant immediately apprised the accused persons about the fate of the said cheques however the accused initially avoided the one or the other pretext CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 3 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:14 +0530 and finally refused to make the payment of the said dishonored cheques. Thereafter the complainant issued a legal notice dated 19.12.2012 through its counsel by Regd. Post which was duly served upon the accused persons, thereby calling upon the accused to make the payment of cheques amount within 15 days from the date of receipt of that notice but the accused failed to make the payment despite service of legal notice. Hence, the present complaint u/s 138 Negotiable Instrument Act 1881 was filed by the Complainant, praying for the Accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
3. Pre-summoning Evidence: To prove a prima-facie case, the complainant led pre-summoning evidence by way of affidavit Ex. CW1/A on 24.01.2013 wherein the complainant has affirmed the facts stated in the instant complaint. To prove the case, the complainant has relied upon the following documents:
S. No. Description of document Exhibit No. 1 Copy of Board Resolution Ex. CW1/1
2. Statement of account Ex. CW1/2 3 Original cheque bearing no. 529807 dated Ex. CW1/3 22.09.2012 for sum of Rs. 5,00,000/- drawn on Punjab & Sind Bank, Kashmere Gate Branch, New Delhi.
4 Original cheque bearing no. 529808 dated Ex. CW1/4 24.09.2012 for sum of Rs. 5,00,000/- drawn on CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 4 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:18 +0530 Punjab & Sind Bank, Kashmere Gate Branch, New Delhi.
5. Original cheque bearing no. 529809 dated Ex. CW1/5 27.09.2012 for sum of Rs. 5,00,000/- drawn on Punjab & Sind Bank, Kashmere Gate Branch, New Delhi.
6 Original Return Memo dated 23.11.2012 Ex. CW1/6 7 Original Return Memo dated 23.11.2012 Ex. CW1/7 8 Original Return Memo dated 23.11.2012 Ex. CW1/8 9 Copy of legal notice dated 19.12.2012 Ex. CW1/9 10 Original Speed Post receipts dated 20.12.2012 and Ex. CW1/10 Tracking reports (colly)
4. Summoning of the Accused: On finding of a prima-facie case against the accused, accused persons were summoned on 24.01.2013. All Accused appeared through counsel on 02.04.2013. Vide order dated 07.01.2019, trial against accused no. 3 Gurcharan Singh was abated. Vide order dated 28.06.2023, trial against accused no. 2 Harjeet Singh was abated.
5. Framing of notice & plea of defence 1: Notice u/s 251 Cr.P.C. was framed against the accused no. 2 Harjeet Singh on 07.01.2019 to which it pleaded not guilty and claimed trial. The plea of defence of the accused no. 2 Harjeet Singh was recorded where the accused had stated that " The cheques in question do not bear my signature. I did not receive legal 1 Perusal of record revealed that on 07.01.2019, three notices u/s 251 CrPC were framed out of which two notices were framed against accused no. 4 Jasdeep Singh and accused no. 2 Harjeet Singh (trial abated) each in their individual capacities mentioning correct particulars of the cheques in question, return memos and legal demand notice. On the third notice, name of CC Number was correctly mentioned therein but same was framed upon Harjeet Singh and Jasdeep Singh as AR/partner/director of Kripa Automotive Pvt. Ltd.
who is not an accused in the present matter. Furthermore, the details of cheques and return memos mentioned on the said notice are those of CC No. 518830/2016 in which Kirpa Automotive Pvt. Ltd is accused no. 1 company. Thus, no notice u/s 251 CrPC was ever framed against M/s Rightway Motors (accused no. 1 partnership firm) in this case.
CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 5 of 18Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:22 +0530 demand notice. Address on legal demand notice is correct. I am not aware anything about this case. I have no concern with M/s Rightway Motors. I do not have outstanding liability". Notice u/s 251 Cr.P.C. was framed against no. 4 Jasdeep Singh on 07.01.2019 to which he pleaded not guilty and claimed trial. The plea of defence of the accused no. 4 was recorded where the accused had stated that "The cheques in question do not bear my signature. I did not receive legal demand notice. Address on legal demand notice is correct. I am not aware anything about this case. I have no concern with M/s Rightway Motors. I have no outstanding liability."
6. Notice u/s 251 Cr.P.C. was framed against accused no. 4 Jasdeep Singh on 12.07.2023 by Sh. Chandra Bose, Special Judge (NI Act), Central District, THC, Delhi to which he pleaded not guilty and claimed trial. The plea of defence of the accused no. 4 was recorded where the accused had stated that "My grandfather used to look after the business of the M/s Rightway Motors. The cheques do not bear my signature. I was never a partner of M/s Rightway Motors. I was not doing business of M/s Rightway Motors at the relevant time. I was doing separate business of trading of Autoparts by the name of M/s Rightway Enterprises and I was its proprietor between 2012 to 2015. I am not liable to pay the amount of cheques".
7. Evidence of the Complainant: Matter was put up for CE. It is at this stage that the matter was received by way of transfer by the Court of undersigned.
8. On 27.07.2024, CW1 was further cross examined, discharged and CE was closed.
9. Thereafter, Jasdeep Singh (accused no. 4) refused to represent M/s Rightway Motors (accused no. 1 partnership firm). Vide detailed order CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 6 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:27 +0530 dated 03.08.2024, M/s Rightway Motors (accused no. 1 partnership firm) was proceeded ex-parte u/s 305 (4) CrPC. Matter was put up for recording statement of accused Jasdeep Singh (accused no. 4) u/s 281/313 CrPC.
10. Statement of the Accused: Statement of the accused no. 4 Jasdeep Singh was recorded u/s 281/313 Cr.P.C. on 03.08.2024 wherein all the incriminating circumstances appearing in evidence against the accused were put to them and they were asked to explain the same. They stated that "I am innocent. Legal demand notice was not received by me. My grand-father used to look after the business of M/s Rightway Motors. The cheques do not bear my signature. I was never a partner of M/s Rightway Motors. I was not doing business of M/s Rightway Motors at the relevant time. I was doing separate business of trading of autoparts by the name of M/s Rightway Enterprises and I was its proprietor between 2012-2015. I am not liable to pay the amount of cheques. I never did any business with complainant firm. I do not wish to say anything else. I have sufficient knowledge of the accusation against me."
11. Defence Evidence: Matter was put up for DE. All 17 matters were settled for combined settlement amount of Rs. 50,00,000/- on 05.09.2024 but accused did not make any payment under the settlement. DW1 was examined in chief, cross examined, discharged and DE was closed on 09.12.2024. Matter was put up for final arguments.
12. Ld counsel for the complainant has placed reliance upon - Ved Prakash Gupta vs. Anchon Chemplast Pvt. Ltd., 2013 (2) JCC 97 (NI), Unique Info Ways Pvt. Ltd. & Ors vs. M/s MPS Telecom Pvt. Ltd., 2019 (2) JCC 959, Subhash Chandra Aggarwal vs. Planet Media Services Ltd & Ors, 2023 (4) JCC 2433, K.S. Mehta vs. M/s Morgan Securities & Credit Pvt.CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 7 of 18
Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:31 +0530 Ltd., 2023 (305) DLT 167 and Mohit Shah vs. State & Anr, 2023 (2) JCC
864.
13. Ld. counsel for the accused has placed reliance upon Ashok Shewakramani & Ors. vs. State of Andra Pradesh & Anr. (Crl Appeal No. 879 of 2023, decided by Hon'ble Supreme Court of India on 03.08.2023).
14. I have heard the submissions of the Ld. Counsel for the complainant as well as the accused and gone through the record and judgments.
15. The legal requirements of Section 138 Negotiable Instruments Act, 1881 are cumulative in nature, i.e. only when all of the following ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under Section 138 of the Negotiable Instruments Act.
16. First ingredient: The first ingredient of Section 138 Negotiable Instrument Act, 1881 is that a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that for the discharge, in whole or in part, of any legally enforceable debt or other liability.
17. Section 138 NI Act is supported by presumptions u/s 118 and 139 NI Act.
U/s 118 NI Act, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. The initial presumption mandated by Section 139 of the Act is rebuttable in nature and includes the existence of a legally enforceable debt or liability. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. Section 139 of the Act is an example of a reverse onus clause CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 8 of 18 Digitally signed by NEHA NEHA GOEL Date:
GOEL 2024.12.24 15:36:35 +0530 and it favours the complainant. The accused cannot be expected to discharge an unduly high standard or proof to rebut the presumption u/s 139 NI Act. The standard of proof for doing so is that of 'preponderance of probabilities' meaning thereby that if accused is able to raise a probable defence creating doubt 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. (Reliance is placed on K.N. Beena V. Maniyappan, AIR 2001 SUPREME COURT 2895; Rangappa V. Mohan, (AIR 2010 SUPREME COURT 1898); M/s Kalamani Tex V. P. Balasubramanian, AIRONLINE 2021 SC 82; and Rajesh Jain V. Ajay Singh, [2023] 13 S.C.R. 788).
18. Role of M/s Rightway Motors (Accused no. 1 partnership firm):
A. As per complaint, M/s Diesel Auto Parts Co. Pvt. Ltd. (Complainant Company from here on) has been stated to have supplied bearings/auto parts to accused no. 1 partnership firm acting through Harjeet Singh (Accused no. 2, trial abated), Gurcharan Singh (Accused no. 3, trial abated) and Jasdeep Singh (Accused No. 4).
B. The only averment that has been made in the complaint as to the role of accused no. 2 to 4 is that they are responsible for day-to-day affairs, management, control and supervision of accused no. 1 partnership firm and they issued the cheques in question to complainant company.
C. The liability of accused no. 1 partnership firm towards the complainant company has been stated to be Rs. 32,61,741/- for the CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 9 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:40 +0530 proof of which statement of account (Ex. CW1/2) has been filed alongwith the complaint.
D. Accused no. 1 partnership firm through accused no. 4 has taken defence in notice u/s 251 CrPC that accused no. 4 does not admit his signature on the cheques in question, he was never a partner in this firm, he has not issued the cheques in question and he has no knowledge about the transactions of this firm. After framing of notice against accused no. 1 partnership firm, accused no. 4 refused to represent accused no. 1 partnership firm and vide detailed order dated 03.08.2024, accused no. 1 partnership firm has already been proceeded ex-parte u/s 305 (4) CrPC. The contents are not repeated here for the sake of brevity.
E. Complainant was asked in cross examination as to who issued him the cheques in question to which complainant responded by saying accused no. 2 has issued the cheques in question. No suggestion was given by Ld. Counsel for accused that cheques in question were not issued by accused no. 2, thus, accepting the proposition that accused no. 2 who is the father of accused no. 4 has issued the cheques in question. However, accused no. 4 did a U-Turn in his cross examination by stating that the signatures on the cheques in question seems to be of his father but are not the real signature of his father and the signature on these cheques are forged. Despite this alleged forgery, a claim which has been made for the first time during cross examination, no action has been initiated against the complainant during all these years by accused no. 4 and he has no idea if his father initiated any action in his lifetime. In these circumstances, this Court is disinclined to believe that forgery has CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 10 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:44 +0530 been committed with respect to signatures of accused no. 2 on the cheques in question. Death of the drawer of the cheque cannot and will not efface presumption u/s 139 NI Act, as the cheque is issued on behalf of the firm. The court deems it fit to invoke presumption u/s 139/118 NI Act against accused no. 1 partnership firm. Therefore, it is for the firm or its partner to rebut such presumption before the Court which it has failed to do since it stopped making appearance as has already been observed above. F. This complaint is filed alongwith evidence on affidavit. Section 145(1) of the NI Act provides that "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code". Therefore, the affidavit filed with complaint shall be read against the partnership firm for all purposes. The defence taken by accused no. 4 on behalf of accused no. 1 partnership firm does not state anything qua the liability of accused no. 1 partnership firm and has no force so as to dislodge the presumption u/s 139/118 NI Act.
G. In view of the above discussion, ingredient no. 1 stands fulfilled as against accused no. 1 partnership firm.
19. Role of Jasdeep Singh (Accused No. 4):
A. Complainant has stated that cheques in question were issued by accused no. 2 in presence of accused no. 4. No presumption u/s 139/118 NI Act has been raised against accused no. 4 as he is not the signatory of the cheques in question.CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 11 of 18
Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:49 +0530 B. Defence of accused no. 4 is mainly that his grandfather used to look after the business of accused no. 1 partnership firm, he was never a partner of accused no. 1 partnership firm and not involved in any of its transactions and he had a separate firm by the name of M/s Rightway Enterprises between 2012 and 2015. C. Section 141 (1) NI Act provides that if the person committing an offence under section 138 is a company/partnership firm, every person who, at the time the offence was committed, was in charge of, and was responsible to the company/partnership firm for the conduct of the business of the company/ partnership firm, as well as the company/ partnership firm, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
D. Section 141 does not make all the Directors/partners liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company/ partnership firm. This expression means `a person in overall control of the day-to-day business of the company or the firm'. Furthermore, there must be a specific, clear and unambiguous allegation in the complaint as to the part played by them in the transaction as to how the Directors/partners are incharge and responsible for the conduct of the business of the company/ partnership firm. If a mere reproduction of the wording of section 141(1) in the complaint is sufficient to make a person liable to face prosecution, virtually every officer/employee of a company/ partnership firm without exception could be impleaded as accused CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 12 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:54 +0530 simply by making an averment to that effect. If the accused is not one of the persons who falls under the category of "persons who are responsible to the company/ partnership firm for the conduct of the business of the company/ partnership firm " then merely by stating that "he was in-charge of the business of the company/ partnership firm " or by stating that "he was in-charge of the day- to-day management of the company/ partnership firm " or by stating that "he was in-charge of, and was responsible to the company/ partnership firm for the conduct of the business of the company/ partnership firm ", he cannot be made vicariously liable under Section 141(1) of the Act.
E. The only averment made in the complaint against accused no. 4 (alongwith accused no. 2 and 3) is that he was responsible for day- to-day affairs, management, control and supervision of accused no. 1 partnership firm.
F. The only role of accused no. 4 that has been stated by complainant in his cross examination is that he has dealt with accused no. 4 and accused no. 2.
G. Even in cross examination of accused no. 4, nothing could be elicited from him as to his involvement in the accused no. 1 partnership firm or his awareness about the firm itself. H. No document has been filed to show that accused no. 4 was partner in accused no. 1 partnership firm.
I. Ld. Counsel for complainant has argued that accused no. 4 has deliberately not shown awareness as to affairs of accused no. 1 partnership firm and not produced ITRs/partnership deed as it would have revealed his involvement in the firm. Per contra, Ld. CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 13 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:36:58 +0530 Counsel for accused no. 4 has argued that burden of proof to bring evidence as to complicity of accused no. 4 in the affairs of accused no. 1 partnership firm is on the complainant and it is impossible for accused no. 4 to depose as to the transactions of accused no. 1 partnership firm as he was never involved in them. He has further argued that accused no. 4 has already stated that he is not in possession of any ITRs/partnership deed as he never dealt with the accused no. 1 partnership firm and the business of accused no. 1 partnership firm was being run by accused no. 3. J. There is force in the submissions of Ld. Counsel for accused no. 4.
Accused no. 4 did not issue any cheque. There is no averment in the complaint as to how and in what manner he was responsible for the conduct of the business of accused no. 1 partnership firm or otherwise responsible to it in regard to its functioning. How is he responsible for dishonour of the cheque has not been stated. The allegations made in the complaint do not satisfy the requirements of Section 141 of the Act.
K. In view of the above discussion, ingredient no. 1 does not stand fulfilled as against accused no. 4.
20. The decision rendered in cases relied upon by Ld. Counsel for Complainant are in their own facts and cannot aid the complainant in the present facts and circumstances of the case at hand in view of the detailed discussion above. The undersigned has remained cognizant of the legal principles established in these judgments.
21. Second ingredient: The second ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been presented to the bank within a period of three months from the date on which it is drawn or CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 14 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:37:02 +0530 within the period of its validity, whichever is earlier. Second ingredient stands satisfied on a perusal of the original three cheques bearing No. 529807 dated 22.09.2012 for Rs. 5,00,000/-, 529808 dated 24.09.2012 for Rs. 5,00,000/- and 529809 dated 27.09.2012 for Rs. 5,00,000/- each both drawn on Punjab & Sind Bank, Lothian Road, Kashmere Gate, Delhi-110006 in favour of the complainant which were returned unpaid due to the reason, "Funds Insufficient" vide cheque returning memos dated 23.11.2012. The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused.
22. Third ingredient: The third ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque 2 or that it exceeds the amount arranged to be paid from that account by agreement made with that bank. Third ingredient stands satisfied as S. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The cheque return memo on record state that the cheque in question has been returned dishonoured for the reason "Funds Insufficient". The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused.
2 Expression "amount of money ...... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus as held in M/s Laxmi Dyechem Vs. State of Gujarat and Others (2012 SCC OnLine SC
970).
CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 15 of 18
Digitally
signed by
NEHA
NEHA GOEL
GOEL Date:
2024.12.24
15:37:08
+0530
23. Fourth ingredient: The fourth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid. A. As regards the fourth ingredient, the complainant has stated that he has sent the legal demand notice dated 19.12.2012 to accused. The original postal receipt of Speed Post dated 20.12.2012 and tracking report in respect of the same is already on record. Accused has stated in notice u/s 251 CrPC that he has not received the legal demand notice.
B. It has been held by the Hon'ble Supreme Court of India in 'C.C. Alavi Haji v. Palapetty Muhammed & Anr.' [(2007) 6 SCC 555] that if sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "G.C. Act") could profitably be imported in such a case and service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. It was further held that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 16 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:37:13 +0530 copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act.
C. In the evidence affidavit of the complainant, the legal demand notice has been stated to have been served upon the accused on the said address and for the proof of which, original postal receipt of Speed Post dated 20.12.2012 and tracking report have been tendered in evidence on behalf of the complainant. Further, no evidence whatsoever was led from the side of the accused to rebut the presumption of service. Therefore, the said ingredient stands fulfilled as against the accused.
24. Fifth ingredient: The fifth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice. Fifth ingredient stands satisfied as accused has not paid the amount due under the cheque in question within the statutory period on the ground that he does not owe any liability towards the complainant, Hence, this ingredient stands fulfilled as against the accused.
25. Considering the evidence affidavit of the complainant on the whole, this Court is of the considered opinion that complainant has been able to prove his case against M/s Rightway Motors (Accused no. 1 partnership CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 17 of 18 Digitally signed by NEHA NEHA GOEL GOEL Date:
2024.12.24 15:37:18 +0530 firm). M/s Rightway Motors (Accused no. 1 partnership firm) has not been able to dislodge the presumption of legally enforceable debt under Sections 118 and 139 of NI Act in favour of the complainant qua the cheque in question. On the other hand, the complainant has been able to prove that the cheque in question was issued by M/s Rightway Motors (Accused no. 1 partnership firm) in discharge of a legally recoverable debt/liability owed to him, with the aid of presumptions of law raised in his favour. All the ingredients of Section 138 NI Act stand cumulatively satisfied against M/s Rightway Motors (Accused no. 1 partnership firm) and in favour of the complainant. Therefore, in the considered opinion of this Court, M/s Rightway Motors (Accused no. 1 partnership firm) is held guilty of offence punishable under Section 138 of NI Act and is hereby convicted for the same.
26. Jasdeep Singh (Accused no. 4) stands acquitted from the present case.
ANNOUNCED IN OPEN COURT ON 24.12.2024 Digitally signed by NEHA NEHA GOEL Date:
GOEL 2024.12.24 15:37:23 +0530 (NEHA GOEL) JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-02, CENTRAL DISTRICT, TIS HAZARI COURTS/ DELHI CC No. 518831/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Rightway Motors Page 18 of 18