Document Fragment View

Matching Fragments

The present case was received by way of transfer as per the order no. 145­192/01/F.3(4)/MM dated 02.01.2009 passed by the learned District Judge­I and Sessions Judge, Delhi in pursuance of order no. 25/DHC/Gaz./VI.E2(a) dated 22.10.2008 passed by the Hon'ble Delhi High Court. It shall be disposed of in compliance of the said orders.

2. This is a complaint under sections 138 and 142 of the Negotiable Instruments Act, 1881 (Act 26 of 1881) made by complainant M/s Technip Books International through its authorised representative (AR) Mr. Gurmit Singh against accused M/s Sandhya Enterprises and its proprietor Mr. Rajesh Kumar stating that the complainant is a proprietorship firm run and managed by A. K. Parwanda (HUF) whose Karta is Mr. Ashok Kumar Parwanda and the firm is duly represented by Mr. Gurmit Singh who is power of attorney holder of the firm; that accused no. 2 is proprietor of accused no.1 which deals in the business of courier services and used to regularly pick up the parcels, documents, envelops and C. C. No. 1040/1/09 Page no. 2 of 10 other articles from the complainant firm to deliver the same at various places in India and abroad; that the complainant firm, as per the normal practice, had approached to the accused for sending two parcels through courier containing educational books to Mr. Azmi Macun, Vice President of AZE MUCHEN DISLIK A.S., TEZEL SOK, 2/3­4, Yukari Ayranci Ankara, Turkey; that two consignments were sent through Federal Express courier service vide Air Way bill no. FEDEX AWB NO.­849855693851 and the complainant had paid the courier charges in the sum of Rs.18,510/­ which was on the basis of the weight of the parcels which was 38 Kg; that the consignments were sent on 04.01.2005 and the parcels were to be delivered at Ankara, Turkey; that the accused did not carry out the instructions given by the complainant and instead of delivering them in Ankara, directed the consignee to come to Istanbul and collect the parcels after clearance from customs; that the Vice President of the consignee company had to travel to Istanbul to collect the parcels and had to pay VAT of around 230 USD and an additional 600 USD for various other reasons besides travel expenses by car to and fro to Istanbul; that it was informed by the consignee that the consignments were picked up by them on or around 11.01.2005 whereas shipments should had been delivered within 72 hours of pick up as per usual standard time of international courier service; that Vice President of the consignee company was put to extreme hardship, which affected the future business prospect of the complainant firm with C. C. No. 1040/1/09 Page no. 3 of 10 the consignee company; that the complainant had written a letter dated 03.2.2005 to the accused narrating the complete details about the two consignments and had informed the accused that they were responsible for the loss occurred; that the accused accepted their liability and had issued a cheque bearing no. 182158 dated 25.3.2005 in a sum of Rs.16,450/­ towards their part liability drawn on the Punjab & Sind Bank, E/C.K.G.H. Secondary School, Delhi Cantt., New Delhi branch; that the complainant had presented the said cheque for encashment through its banker Oriental Bank but the same returned unpaid alongwith memo dated 31.3.2005 due to insufficient funds in the account of the accused; that after return of the cheque as dishonoured a demand notice dated 08.4.2005 was sent by the complainant to the accused whereby the accused was called upon to make payment against the cheque amount by D.D. or cash within fifteen days of the receipt of the notice and the said notice was received by the accused and replied by way of written reply dated 21.4.2005. It is further stated in the complaint that the accused have committed offence punishable under section 138 of Act 26 of 1881 and therefore, they be summoned, tried and punished as per law.

5. In support of his case the complainant got examined CW1 Mr. Ashok Kumar Parwanda, claiming to be the proprietor of the complainant, who during his examination in chief tendered his affidavit Ex. CW1/A alongwith documents Ex. CW1/1 to Ex. CW1/10. CW1 Mr. Ashok Kumar Parwanda was cross examined on behalf of the accused and after his cross examination evidence on behalf of the complainant was closed and the accused was examined under section 313 of Cr.P.C.

6. During his examination under section 313 of Cr.P.C. the C. C. No. 1040/1/09 Page no. 5 of 10 accused no. 2 admitted that he was the proprietor of M/s Sandhya Enterprises and had been dealing in the business of courier service. The accused no. 2 further stated that the articles booked by the complainant against Ex. CW1/2 was duly delivered to the consignee but the complainant did not make payment of the charges against them to him. During his examination under section 313 of Cr.P.C. the accused no. 2 further stated that there was no contract between him and the complainant that the consignment would be delivered at Ankara and further added that as per the law of Turkey the consignee had to collect the parcels from Istanbul after completing other formalities. During his examination under section 313 of Cr.P.C. the accused no. 2 denied that the consignee company had correspondence with him and further stated that the consignee never made any complaint to him. During his examination under section 313 of Cr.P.C. the accused no. 2 further stated that he had performed his duties up to mark and did not commit any wrong and only for that reason the complainant had given further business to him and had its parcels consigned through him in the month of May, 2005. During his examination under section 313 of Cr.P.C. the accused no. 2 denied having issued cheque Ex. CW1/6 in favour of the complainant to discharge any legally enforceable debt or liability and further stated that cheque Ex. CW1/6 was taken by the complainant from him before dispatch of the two parcels to Turkey as security for delivery of two parcels. During his examination under section 313 of Cr.P.C. the C. C. No. 1040/1/09 Page no. 6 of 10 accused no. 2 admitted having received legal notice dated 08.4.2005, a copy of which is Ex. CW1/9, and further stated that the notice was replied by way of written reply Ex. CW1/10. During his examination under section 313 of Cr.P.C. the accused no. 2 further stated that CW1 Mr. Ashok Kumar Parwanda has deposed falsely against him to extort money from him and has falsely implicated him so that the consignee should not put any claim against the complainant.