Delhi District Court
M/S. South India Trading Company vs . M/S. Shaurya Impex on 18 August, 2022
IN THE COURT OF SH. PANKAJ RAI
METROPOLITAN MAGISTRATE 05 (N.I. ACT), ROUSE AVENUE COURT:
NEW DELHI
CC No.1622/19
M/s. South India Trading Company Vs. M/s. Shaurya Impex
1. Complaint Case number : 1622/19
2 Name and address of the : M/s. South India Trading Company
through its partners
complainant
having office at : 2734, 1st Palace Naya
Bazaar, Delhi110006.
3. Name and address of the : M/s. Shaurya Impex
through its proprietor Sh. Rishu Goel @ Bittoo
accused
Goel
having office at 4064, 2nd Floor
Naya Bazaar, Delhi110006.
Also At: Room No. 308, Modi Tower, 2746
2748 Naya Bazaar, Delhi110006.
4. Offence complained of : Section 138 of the Negotiable Instruments Act,
1881.
5. Plea of the accused : Pleaded not guilty and claim trial.
6. Final Order : Acquitted
7. Date of Institution : 22.01.2019
8. Date of Reserving the : 26.07.2022
Judgment
9. Date of pronouncement : 18.08.2022
Judgment:
1. The complainant has filed the present complaint under Section 138,
Negotiable Instruments Act, 1881 (hereinafter called the NI Act). The complainant
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has stated its case as under:
2. The complainant is a partnership firm engaged in the business of trading all
kinds of pulses / grains etc. It is also averred in the complaint that the present
complaint has been filed by the partner of the complainant namely Mr. Ankur Goyal,
who has all the knowledge of the day to day affairs of the complainant. That the
accused has been purchasing goods from the complainant and that the
complainant has been maintaining the open, regular, current account in the name of
the accused in its ordinary course of business with regard to all the business
dealings and purchases made by the accused from time to time. It is the specific
case of the complainant that accused approached the complainant and expressed
its desire of purchasing the material from the complainant and pursuant thereto the
accused purchased 434 katta imported chick peas (chana) amounting to Rs.
15,93,440.90/ from the complainant vide invoice n.o.1632N dated 27.12.2016 for
total amount of Rs.15,93,440.90/. The said material was duly supply to the
accused. Towards the payment of the said amount, the accused had issued cheque
bearing no.001384 dated 22.09.2018 for Rs. 3,00,000/ drawn on HDFC Bank,
Naya Bazar Branch, Delhi, in favour of the complainant. The complainant presented
the said cheques for encashment with its banker. However, it got dishonoured and
returned unpaid due to the banker's reason "payment stopped by drawer" vide
memo dated 05.12.2018. Thereafter, the complainant issued a legal notice dated
19.12.2018 upon accused under Section 138 NI Act calling upon the accused to
make payment of the cheques amount within 15 days. The notice was duly served.
However, no payment has been made. Hence, the present complaint has been
filed.
3. The complainant has been examined on oath. After perusing the material
available on record, the Court took the cognizance and process was issued against
the accused Rishu Goel @ Bittu Goel who is the proprietor of M/s. Shaurya Impex.
Accused appeared in the Court. Accused was released on bail.
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4. The notice under Section 251 Cr.P.C. was served upon the accused and his
proprietorship firm. He pleaded not guilty and claimed trial. His plea of defence was
recorded. He admitted that the cheque bears his signatures. He had taken the
defence that he used to work as a broker for the complainant and that the cheque
has been given as a security. He further stated that since the complainant did not
receive the payment from the buyer, the complainant presented said security
cheque for encashment without informing him.
5. Accused moved application under Section 145 (2) NI Act to cross examine
the complaint's witness. The application was allowed.
6. The complainant has examined Sh. Ankur Goyal as CW1 to prove its case.
The CW1 has reiterated the facts stated in the complaint. CW1 has relied upon the
following documents:
a) ID proof of the complainant is Ex. CW1/1 (OSR);
b) copy of ledger account is Mark A;
c) copy of invoice dated 27.12.2016 is Ex.CW1/2;
d) cheque bearing no.001384 is Ex.CW1/3;
e) cheque return memo is Ex.CW1/4;
f) copy of legal notice is Ex.CW1/5;
g) postal receipt is Ex.CW1/6 (colly);
h) copy of postal tracking report is Ex.CW1/7 (colly);
Document Ex.CW1/2 stood deexhibited as the same was a photocopy
and for not being mentioned in the affidavit in evidence of CW1.
7. The accused was examined and his statement was recorded under Section
313 Cr.P.C, by putting all the incriminating circumstances to him, on 22.11.2019.
The accused had stated that he was working as a broker for the complainant and
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that he and the complainant have been in touch more than ten years professionally.
That since 2015, M/s. Shaurya Impex have business dealings worth more than
Rs.17 crores till 12.07.2016 with the complainant. He denied that he approached
the complainant and express the desire of purchasing goods and having purchased
goods on credit basis. He stated that it is incorrect that the goods were delivered to
him by the complainant and that neither he purchased the goods on credit basis nor
he ever got the delivery of the same. He also stated that it is incorrect that M/s.
Shaurya Impex purchased 434 katta Imported Chick Peas (Chana) amounting of
Rs. 15,93,440.90/ from the complainant vide invoice no.1632N dated 27.12.2016.
Rather the complainant company approached him to get 434 katta Imported Chick
Peas (Chana) amounting of Rs. 15,93,440.90/ sold in the market as he works with
the complainant as a broker also. That he introduced M/s. Guru Raghvendra Fried
Gram Mill of Andhra Pradesh who was interested in purchasing 434 katta Imported
Chick Peas (Chana) from the complainant. That the complainant issued invoice
no.1632N dated 27.12.2016 in the name of M/s. Guru Raghvendra Fried Gram Mill.
The copy of invoice was also sent by the complainant company to the purchaser
M/s. Guru Raghvendra Fried Gram Mill through email. That the copy of the said
invoice attached with the present complaint is forged. He stated that it is incorrect
that he issued the cheque in question towards the payment of the said invoice and
in discharge of part liability towards the price of goods purchased by him from the
complainant. That he never purchased 434 katta Imported Chick Peas (Chana)
from the complainant. That his firm M/s. Shaurya Impex have been in the business
with the complainant since long and that he being a proprietor of M/s. Shaurya
Impex, issued the blank signed cheque in question for security purpose in other
various deals. That the cheque amount and date were not filled by him. That the
complainant deposited the cheque in question without informing him and that the
cheque in question was never issued in the present deal. That the cheque in
question was issued in other business dealings to the complainant by the accused
which were matured way back. That it was a clear understanding between the
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complainant and the accused that the said cheque in question will be destroyed by
the complainant company as the deals were mature way back but the complainant
deposited the cheque in question without informing him with the malafide intention.
That as per the ledger account of the accused, the said ledger account was nil
between the accused and complainant and that the complainant despite of the nil
account deposited the cheque in question without informing the accused. He
admitted the receipt of demand notice from the complainant.
8. In the present case, followings are the admitted facts: (a) cheque bears
signature of the accused (b) the cheques have been drawn on account of the
accused (c) the receipt of legal notice by the accused (d) past business dealings
between the parties. The Ld. Counsel for the accused has submitted that no legally
recoverable debt/liability exists against the accused and that the entire story has
been falsely concocted by the complainant.
9. The accused chose not to lead DE at the time of recording of his statement
under section 313 of Cr.P.C. However, later on an application was moved by the
accused under section 311 of Cr.P.C. to examine his banker as witness. The said
application was allowed and thereupon the accused has examined his banker as
DW1 to prove the fact that he has already stopped the payment of the cheque in
question as said cheque was lost. Sh. Ankit Kumar, Deputy Manager from HDFC
Bank, Naya Bazar Branch, New Delhi was examined as DW1 and he has brought
with himself certificate pertaining to stop payment instruction as given by the
accused and the same was exhibited on behalf of the accused. The said witness
was not cross examined and he was discharged and the matter was fixed for final
arguments.
10. Argument heard. Case record and written submissions perused.
11. For the offence under Section 138 of the Act to be made out against the
accused, the complainant must prove the following points, that:
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(i) the accused issued a cheque on account maintained by him with a
bank.
(ii) the said cheque had been issued in discharge, in whole or in part,
of any legal debt or other liability.
(iii) the said cheque has been presented to the bank within a period
of three months from the date of cheque or within the period of its
validity.
(iv) the aforesaid cheque, when presented for encashment, was
returned unpaid/dishonoured.
(v) the payee of the cheque issued a legal notice of demand to the
drawer within 30 days from the receipt of information by him from the
bank regarding the return of the cheque.
(vi) the drawer of the cheque failed to make the payment within 15
days of the receipt of aforesaid legal notice of demand.
12. The Act raises two presumptions in favour of the holder of the cheque i.e.
Complainant in the present case; firstly, in regard to the passing of consideration as
contained in Section 118 (a) and secondly, a presumption that the holder of cheque
receiving the same of the nature referred to in Section 139 discharged in whole or
in part any debt or other liability.
Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is
proved, the following presumptions shall be made: (a) of
consideration that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it
has been accepted, indorsed, negotiated or transferred was
accepted, indorsed, negotiated or transferred for consideration;"
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Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder it shall be presumed, unless
the contrary is proved, that the holder of a cheque received the
cheque of the nature referred to in Section 138 for the
discharge, in whole or in part, of any debt or other liability".
13. For the offence under Section 138 of the Act, the presumptions under
Sections 118(a) and 139 have to be compulsory raised as soon as execution of
cheque by accused is admitted or proved by the complainant and thereafter burden
is shifted to accused to prove otherwise. These presumptions shall be rebutted only
when the contrary is proved by the accused, that is, the cheque was not issued for
consideration and in discharge of any debt or liability etc. A presumption is not in
itself evidence but only makes a prima facie case for a party for whose benefit it
exists. Presumptions both under Sections 118 and 139 are rebuttable in nature.
Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v.
Bratindranath Banerjee [(2001) 6 SCC 16].
14. Section 139 NI Act deals with reverse onus of proof as casted upon the
accused as soon as he admits the signatures on the cheque. In the present case,
accused has admitted his signatures on the cheque in question, in answer to notice
under Section 251 Cr.P.C. and in his statement u/s 313 CrP.C. He did not deny his
signature on the cheque in crossexamination of complainant. Reference can be
made to Judgment of Apex Court in Rangappa v. Sri Mohan, AIR 2010 SC 1898
that:
"Once the cheque relates to the account of the accused and he
accepts and admits the signatures on the said cheque, then initial
presumption as contemplated under Section 139 of the Negotiable
Instruments Act has to be raised by the Court in favour of the
complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR
Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 7/20
(Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the
accused, the presumption envisaged in Section 118 of the Act can
legally be inferred that the cheque was made or drawn for
consideration on the date which the cheque bears. Section 139 of
the Act enjoins on the court to presume that the holder of the
cheque received it for the discharge of any debt or liability."
Thus, there is a presumption in favour of the complainant and against the accused
that the cheque was issued for consideration. However, the presumption is
rebuttable. The accused can prove that the cheque was not issued for
consideration and that the accused did not have any liability to pay the amount. It
has also been held that the accused need not lead evidence in support of his
defence. He can prove it on the balance of probabilities by showing the
contradictions in the material produced by the complainant. Apex court in
Rangappa vs Sri Mohan (2010) 11 SCC 441 has held as under:
"14. 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 Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 8/20 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 clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses 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."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the presumptions both under Sections 118 and 139 are rebuttable in nature. It was held:
"...To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 9/20 case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue"
Thus the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
15. As per Ld. Counsel for the accused, the complainant has not filed anything on record to show that he has been duly authorised by the firm to prosecute the present complaint. Ld. Counsel for the accused further submits that it is also Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 10/20 strange that despite authority of CW1 being challenged by the accused during cross examination, CW1 has not filed any GPA or any partnership deed to prove that he is partner in the firm. Further, no other partner has been cited or examined by the complainant on its behalf to show that CW1 has the authority from the firm to proceed with this complaint. Ld. Counsel for accused has argued that the present complaint is not maintainable as the complainant has no locus standi and no proof of authorisation of the complainant has been placed on record. Reliance has been placed upon Bhai Manjit Singh Vs. Sangam India Private Ltd. 2001(92) DLT
269. On the other hand, it has been argued by the complainant that partner of complainant firm has deposed as CW1 and he is well acquainted with the facts of the case and there is no contradiction in the stand of CW1 as he has the authority to file the present complaint. Further, as per the definition of partnership, each and every partner is an agent of partnership firm as well as of other partners and therefore CW1 is having authority as a partner. Further, no suggestion has been put to CW1 during cross examination that partnership firm is not having intention to prosecute the case.
16. At the outset it is to be noted that the past business dealings between the parties was never in dispute during the trial. The accused himself has admitted in his statement under section 313 Cr.P.C that he and the complainant were in touch for more than 10 years professionally and that since 2015 they have business dealings of more than Rs.17 crores till 12.07.2016. It is not the case of the accused that CW1 is not the partner of complainant firm. No such suggestion was given during the cross examination of CW1. Simply stated, the objection of Ld. Counsel for the accused is that CW1 has not furnished on record any authority letter which authorises him to file and prosecute the present complaint. In this regard the terms an 'act of the firm' in Section 2(a) of the Indian Partnership Act, 'implied authority of partner as agent of the firm' in Section 19 of the Indian Partnership Act and 'mode Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 11/20 of doing act to bind the firm' in Section 22 of the Indian Partnership Act are relevant.
17. It is a settled law that the test of Partnership firm is mutual agency. Mutual agency is the right of all partners to represent the firm's business and the authority to bind it to mutual contracts and agreements i.e a partner can be an agent for all other partners. Section 2(a), 19 and 22 of the Partnership Act when read together suggests this deeming fiction of mutual agency. Therefore, once it has been established that a person is a partner in the firm, then he/she is automatically an agent for all the partners and can represent them in binding agreements. In the present case, the fact that the complainant is not a partner of the firm has never been challenged rather the authority of the complainant to file the present complaint has been challenged as noted above. Once the fact that the complainant firm is a partnership firm and the complainant is a partner is established, the person representing the firm and the other partners does not need any explicit authorization in his behalf. Therefore, the complainant represented through CW1 has the authority to represent the firm and the other partner even without any express authority letter in his favour and the complaint is maintainable. Hence, the objection of Ld. Counsel for the accused in this regards is without any substance. The factual matrix of case law relied upon by Ld. Counsel for the accused on this point was entirely different and is not applicable herein.
18. The main defence taken by Ld. Counsel for accused is that the accused was a broker for the complainant company and the present cheque was issued as a security cheque. It is the case of the accused that he had brokered a deal for the complainant and when the said deal did not materialise, the complainant presented the security cheques of the accused for encashment without informing him.
19. In the evidence by way of affidavit of the complainant i.e Ex. CW1/A in para 5, the complainant has stated that the accused approached the complainant and expressed his desire for purchasing goods from the complainant and pursuant thereto goods were purchased by the accused on credit basis and were duly Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 12/20 delivered to them. The complainant has relied upon the copy of the ledger account i.e. Mark 'A' and the invoice bearing no. 1632N dated 27.12.2016 marked as annexure 3.
20. In the cross examination of the complainant i.e. CW1 dated 14.10.2019, the complainant accepts that the accused is their broker and he knows the accused firm M/s Shaurya Impex through its broker, however he has no knowledge as to who owns the accused firm. He has further stated that his company had business dealings with the accused firm M/s Shaurya Impex from 2014 till 2017. For the transaction in question, the complainant has stated that he informed the broker accused who brought his transport and collected the goods from the port. He has also stated that invoice no. 1632 dated 27.12.2016 was raised in the name of M/s Shaurya Impex on instructions of the accused and there is only a single bill for an invoice.
21. The witness was then confronted with a copy of invoice bearing no. 1632 issued in the name of M/s Shree Guru Raghvendra Fried Gram Mill i.e. Mark A which he accepts to be the bill issued by him. On being specifically asked as to how two different bills have been raised by the complainant on the same invoice number, the complainant has stated that for both the firms i.e. M/s Shaurya Impex and M/s Shree Guru Raghvendra Fried Gram Mill, the accused was his broker and the bill was first raised in the name of M/s Shree Guru Raghvendra Fried Gram Mill and when the accused informed the complainant that M/s Shree Guru Raghvendra Fried Gram Mill refused to accept the goods and the bill be raised in the name of M/s Shaurya Impex. The complainant has explained that he did not cancel the earlier bill as the dates would have changed and altered the bill in the name of M/s Shaurya Impex.
22. It is pertinent to note here that the fact the goods were not ordered originally by the accused or that two different bills were generated on the same invoice number came for the first time when Mark A i.e. Copy of the bill was confronted to the complainant in his cross examination by Ld. Counsel for the accused. These facts Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 13/20 were not mentioned anywhere in the complaint or in the evidentiary affidavit. According to the complainant, as stated in his evidentiary affidavit, it was accused who approached the complainant and desired of purchasing the goods on credit basis and the same was supplied to them. Therefore, the credibility of the version of complainant suffers.
23. Also, as per the complainant in his cross examination as CW1 he has stated that the invoices are issues to the clients through the brokers either by hand or through email depending on the location. When confronted with document 'Mark B' printout of email sent by the complainant to M/s Shree Guru Raghvendra Fried Gram Mill, the witness acknowledged the email and stated that the same was sent by him and the accused broker was added as a carbon copy. The complainant has stated that he does not remember as to how the bill was sent to M/s Shaurya Impex, the accused firm. This again does not inspire confidence as sending of the invoice to the client is very material for a businessman in order to receive payments. Suggestion that no bill was ever sent to M/s Shaurya Impex even though denied becomes relevant. There is no explanation from the complainant that when as per the averments in the complaint it was the accused who approached it and expressed his desire to purchase goods on credit basis then why the bill pertaining to the same transaction was generated in the name of Shree Guru Raghvendra Fried Gram Mill in the first place and as to why there is correspondence with Shree Guru Raghvendra Fried Gram Mill by way of email in terms of Mark B if the entire case of the complainant in that only the accused has purchased the imported chana from it. This collectively casts serious cloud on the overall story of the complainant regarding the transaction in question with the accused.
24. Even the perusal of the copy of ledger account AnnexureA2 filed on record by the complainant so as to prove the liability of the accused shows that it is simply a computer generated document/printout. It does not even bear any signature or official seal of the complainant. No one has been examined on behalf of the complainant to prove the authencity or veracity of this document. Moreover, the Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 14/20 complainant did not file any certificate fulfilling conditions contemplated under Section 65 B of Evidence Act, 1872 to show that the ledger account has been maintained in the regular course of business and there is no tampering, which rendered AnnexureA2 inadmissible in evidence. In this regard reliance can be placed upon recent judgment of three judge bench Hon'ble Supreme Court of India in the case of "Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others" (2020) 7 SCC 1 which approved the law as laid down in the case of "Anvar P.V. Vs. P.K. Basheer", 2014 (10) SCC 473 to the effect that production of certificate under section 65B (4) of Evidence Act, 1872, is mandatory in case secondary evidence of electronic document is led and that special provisions of Section 65A and 65B of Evidence Act, 1872 are a complete code in themselves when it comes to admissibility of evidence of information contained in the electronic record and that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under section 65B are satisfied.
25. Reliance is also placed upon the judgment of Hon'ble Delhi High Court in the case of Samsung India Electronics Pvt Ltd vs MGR Enterprises and Others 2019 SCC OnLine Del 8877 wherein it was observed as follows:
"20. Further, the petitioner company has placed on record the customer/ledger statement of account of the respondent firm maintained by them from 1st January 2011 to 30th November 2011 in order to show the liability. The same has been produced in the form of a computer printout which is a secondary evidence of the electronic record of data purportedly stored in the computer of the petitioner company. The petitioner company has not provided a certificate under Section 65B of the Evidence Act to prove the same and hence the ledger is inadmissible in evidence. Learned counsel for the petitioner contends that since no objection was raised qua the mode of proof at the time of exhibiting the copies of the ledger account and the same are duly exhibited, proved and admissible in evidence. This contention of learned counsel deserves to be rejected as in the absence of a certificate under Section 65B of the Evidence Act a computer generated Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 15/20 document is inadmissible in evidence.
21. Section 65B of the Indian Evidence Act came up for consideration before the Supreme Court in the decision Anvar P.V. (supra) wherein it was held that a computer generated document would be admissible only when accompanied by a certificate under Section 65B Indian Evidence Act and in the absence thereof it would be inadmissible ....."
Therefore, the upshot of the above discussion is that AnnexureA2 is not admissible in evidence and accordingly it cannot be relied upon by the complainant to fasten the liability upon the accused to pay the cheque amount on its basis.
26. The following are the other additional circumstances which are against the complainant and in favour of probable defence of the accused which creates a credible doubt over the existence of the alleged transaction:
a) During the stage of cross examination of CW1 on 14.10.2019, he was confronted with document Mark A which is a copy of retail invoice as generated against Shree Guru Raghvendra Fried Gram Mill. In this document the name of accused has been mentioned in the category of "broker" and not as a customer or consignee. There is no explanation from CW1 as to how it is possible that one person is the customer as well as the broker at the same time in one transaction. It is not the case of complainant that document Mark A is a forged and fabricated document. CW1 does not deny the authenticity of said bill. Rather he has brought up altogether a new version that for both the firms the accused was broker and that on the instructions of accused the said bill was firstly made made in the name of Shree Guru Raghvendra Fried Gram Mill and later on again on the instructions of the accused the same bill was generated in the name of M/. Shaurya Impex without cancelling the earlier bill. There is no evidence on record regarding receipt of any such Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 16/20 instructions from the accused. The complainant should have raised a separate bill/invoice if any such instruction was received from the accused. Hence, this narration of events by CW1 does not inspire any confidence.
b) The complainant has not filed on record any correspondence or intimation being sent by it to Shree Guru Raghvendra Fried Gram Mill regarding the cancellation of transaction of supply of 434 kattas of chick peas (chana) by complainant and later on delivering the same to the accused.
c) The complainant has not filed on record any lorry receipt, transport receipt, sales tax receipt or original invoice on record to show the existence of alleged transaction in question.
d) Even the perusal of cheque in question by naked eye shows that the date of cheque, name of payee, amount in figures and words and signatures of the accused, all have been filled with a different pen and ink. During cross examination of CW1, he has admitted that only date has been filled in his handwriting and that the amount was filled by accused. This also raises further suspicion on the version of the complainant regarding the alleged circumstances in which the cheque in question was received by the complainant from the accused. If the cheque was really issued by accused to the complainant against the alleged transaction in question at the relevant point of time as claimed in the complaint, then it is surprising as to why he will use different pen for putting his signatures on the cheque and for filling the name of payee and amount in figures and words at the same point of time. On the contrary it supports the inference in favour of the accused that the cheque in question may have been issued by the accused much prior to the transaction as a security cheque and not for discharging any alleged liability Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 17/20 in favour of the complainant.
e) As per the averments in the complaint, the transaction with the accused arose on 27.12.2016 and the accused had issued the cheque in question to partly discharge this liability. If this is correct narration of state of things, then there is no explanation from the complainant as to why it had waited for almost two years to deposit the cheque in question for encashment with its banker. There is merit in the contention of Ld. Counsel for the accused that the conduct of a prudent person in such a situation would have been to deposit the cheque for realization as early as possible as the alleged amount is substantial. Therefore, there is nothing probable in the conduct of the complainant. This also goes on to show that the cheque in question was never issued by the accused at the point of time as claimed by complainant in the year 2018.
f) It has further come out in the evidence of banker witness as DW1 that the payment of cheque in question was already been stopped by the accused by giving stop payment instructions to its banker on 27.09.2017 on the ground that cheque has been lost. It is highly unbelievable that the accused would issue the same cheque to the complainant later on in the year 2018 towards discharging any liability.
g) CW1 has stated during his cross examination that he do not know as to who owns the accused firm M/s. Shaurya Impex and that the complainant knows Shaurya Impex through Mr. Bittu who is their broker. Throughout the cross examination, the accused has been mentioned only as a "broker" by CW1 multiple times. It was never the case of CW1 that accused is the proprietor or authorised signatory of M/s. Shaurya Impex. On the other hand, in the Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 18/20 complaint the accused has been described as proprietor/authorised signatory of M/s. Shaurya Impex and not as a broker. Therefore, there is contradiction in the evidence of the complainant itself on this count.
h) CW1 during his cross examination on 14.12.2019 has stated that around "30 tonnes" of imported chana was supplied to the accused. However, in the copy of invoice Mark A as filed on record by accused, the quantity is mentioned as 23 tonnes only which goes on to show that the even CW1 himself was not sure about the facts of the present case for which the complainant is prosecuting the accused.
i) There is nothing in the complaint or in the evidentiary affidavit as to who approached the complainant on behalf of M/s. Shaurya Impex for the purchase of above material. CW1 has himself admitted in his cross examination that he has no knowledge as to who owns M/s. Shaurya Impex.
j) It has been claimed by CW1 during his cross examination the complainant maintains bill books. However, during the entire trial no such bill books were ever produced by complainant to even remotely establish the transaction of alleged supply and delivery of 434 kattas of chick peas (chana) to the accused on 27.12.2016. An adverse inference be drawn against the complainant for not producing the best evidence.
27. The above inconsistencies and contradictions in the case of the complainant as projected in the complaint and in deposition in the cross examination as noted above casted a serious cloud on the entire case of the complainant against the accused. In order to rebut the presumption of Section 139 of the Act accused is not required to bring direct evidence but should adduce sufficient cogent evidence or Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 19/20 can rely upon the circumstances which shows the probability of non existence of consideration. Accused has to prove his defence on the scale of preponderance of possibilities as held in Kumar Exports v. Sharma Carpets (supra). In present matter, the accused has been able to raise a reasonable probable defence by punching holes in the case of the complainant itself on the basis of the materials already brought on record by way of cross examination of the complainant, which has created doubt about the existence of a legally enforceable debt or liability, and has been able to rebut the presumptions under sections 118 and 139 of the Act and the reverse onus cast upon him has been discharged.
28. Since the accused has rebutted the statutory presumptions, the onus again shifts back upon the complainant. Now the presumptions under Sections 118 and 139 of the Act will not again come for the rescue of the complainant and case of complainant has to stands on his own legs. In the instant case, complainant has failed to discharge the burden of proof and could not prove the case beyond reasonable doubt.
29. Accordingly, the accused Rishu Goel @ Bittoo Goel, proprietor/authorised signatory of M/s. Shaurya Impex is acquitted of the offence under section 138 of the N.I. Act. Bail bonds stands cancelled and surety, if any, stands discharged.
File be consigned to record room after due compliance.
Announced in the Open Court
on 18th Day of August, 2022 (PANKAJ RAI)
Metropolitan Magistrate05, NI Act
RAC/New Delhi/18.08.2022
Case No. 1622/19 M/s. South India Trading Company Vs. M/s. Shaurya Impex Page No. 20/20