IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, NORTH-WEST, ROHINI, DELHI Unique ID No. 02404R0390432010 [CASE NUMBER] Pentagon Rubber Pvt. Ltd. Through its Director Sh. [ENTITY] Office at 51, Rani Jhansi Road, New Delhi-110055 Complainant Versus 1. [ENTITY] Accused no. 1 2. [ENTITY] (Managing Director) [ENTITY] Accused no. 2 3. [ENTITY] (Director) [ENTITY] Accused no. 3 Registered Office at:- 3-B, Pocket-A, Vikas Puri Extension, New Delhi-110018 JUDGMENT
(1) Name of the complainant, Pentagon Rubber Pvt. Ltd. parentage and address Through its Director Sh. [ENTITY] Office at 51, Rani Jhansi Road, New Delhi-110055
(2) Name of accused persons, 1. [ENTITY]
parentage and addresses 2. [ENTITY] (Managing Director) [ENTITY]
3. [ENTITY] (Director) [ENTITY]
Registered Office at:-
3-B, Pocket-A, Vikas Puri Extension, New Delhi-110018 (3) Offence complained of or proved: 138 [ACT] Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 1 of 8 (4) Plea of accused: Pleaded not guilty (5) Date of institution of case: 11.11.2010 (6) Date of reserve of order: 05.10.2016 (7) Date of Final Order: 15.11.2016 (8) Final Order: Accused no. 1 deleted from array of accused vide order dated 13.05.2016 as no company in the name of R.P.P.L. Convotech Projects Ltd.
Accused no. 2 is convicted.
Accused no. 3 dropped by complainant on 09.05.2014.
1. Vide this judgment I shall dispose of the complaint filed by the complainant under [SECTION] of the [ACT] (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
That complainant is the company engaged in the business of manufacturing and processing of Rubber. The complainant and the accused had been involved commercial transaction. The complainant had supplied to accused persons "Conveyer Rubber Belts"
in bulk quantity being manufactured by the complainant and thereafter, complainant sent the consignment of the said product to accused alongwith invoice no. 29 dated 29.03.2010 amounting Rs.4,47,414/- and another invoice no. 23 dated 28.04.2010 amounting Rs.55,631/-. Hence, the total bills were raised to the tune of Rs. 5,03,045/-. Against the aforesaid transaction, accused initially issued a cheque bearing no. 486840 dated 05.06.2010 drawn on Punjab National Bank, Chanakyapuri, New Delhi-110021 for the partial payment of Rs. 2,00,000/-. The said cheque returned dishonoured and after that complainant informed the accused regarding fate of cheque and they accepted their fault and accused no. 3 came to the office of complainant and handed over a fresh cheque bearing no. 486876 dated 09.07.2010 drawn on Punjab National Bank, Chanakyapuri, New Delhi-110021, for the same amount i.e. Rs. 2,00,000/- to complainant. Apart from the said cheque, another cheque bearing no. 486877 dated 15.07.2010 for Rs. 1,03,045/- drawn on Punjab National Bank, Chanakyapuri, New Delhi-110021 was also handed over Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 2 of 8 to complainant at his office with the instructions to deposit the same on or after the dates mentioned on the said cheques. As requested by accused persons, complainant submitted the second cheque for its due encashment with its banker i.e. ICICI Bank, but the said cheque was returned as dishonoured/unpaid with the reason of "payment stopped by the drawer" by its banker vide returning memo dated 16.09.2010. The complainant informed the factum of dishonour of the above said cheque to accused. Complainant has received the balance payment of Rs. 4,00,000/- but accused persons kept constantly prolonging the payment of the cheque amount of Rs. 1,03,045/-. Thereafter, complainant had sent a legal notice dated 24.09.2010 through Speed Post and Courier on 27.09.2010 to make the payment of Rs. 1,03,045/- within stipulated period. The service of aforesaid legal notice has duly been affected through Speed Post and Courier, however, despite that accused persons did not make said payment. Thereafter, complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished according to law.
3. In his pre-summoning evidence, AR for complainant examined himself on affidavit Ex.CW-1/1. He reiterated the contents of complaint and placed on record, copy of board resolution as Ex. CW-1/A, copy of purchase orders as Ex. CW-1/B & Ex. CW-1/C(colly), cheque bearing no. 486877 dated 15.07.2010 for Rs. 1,03,045/- drawn on Punjab National Bank, Chanakyapuri, New Delhi-110021, as Ex. CW-1/D, cheque returning memo dated 16.09.2010 as Ex. CW-1/E, legal demand notice dated 24.09.2010 as Ex. CW-1/F, postal receipts & Courier receipts as Ex. CW-1/G(colly) and tracking reports as Ex. CW- 1/H(colly).
4. Upon appreciation of pre-summoning evidence, accused persons were summoned for an offence punishable under [SECTION] of [ACT]. Accused number 3 namely [ENTITY] was dropped by the complainant from the array of accused persons on 09.05.2014. Hence, notice under [SECTION] [ACT] for this offence was framed upon accused no. 2 on 09.05.2014 to which he pleaded not guilty and claimed trial.
5. No application under [SECTION] [ACT] moved by the accused despite given sufficient opportunities and finally, opportunity of accused to move application under [SECTION] [ACT] was closed. Complainant's evidence was also closed vide order dated 16.02.2015. Thereafter, the matter was listed for defence evidence.
6. In defence evidence, accused [ENTITY] examined only himself as DW Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 3 of 8
-1. In his examination in chief, he stated that he is managing director of Convotech Projects and there is no such company in existence namely R.P.P.L. Convotech Projects Ltd. He stated that complainant has filed false case against him. During cross- examination, he stated that cheque in question bears his signature and same was issued on behalf of Convotech Projects. As per him, document Ex. CW-1/B was not issued by him but the same might be issued by one of his employee. He accepted that Convotech Projects has liability of Rs.1,03,045/- towards the complainant company. He also accepted that as per entry at point A Ex.DW-1/C1, there is liability of Rs.1,03,045/- towards the complainant. He also accepted that he settled the matter in the mediation center in the capacity of proprietor of M/s. Convotech Projects. After concluding of defence evidence, accused no. 1 i.e. R.P.P.L. Convotech Projects Ltd. was deleted from array of accused persons upon application of complainant vide order dated 13.05.2016 as during defence evidence, it came out that there is no company in existence namely R.P.P.L. Convotech Projects Ltd.
7. Thereafter, oral arguments tendered on behalf of both the parties were heard at length.
8. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under [SECTION] [ACT] to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. 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.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. 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.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
9. The Act raises two presumptions in favour of the holder of the cheque i.e. Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 4 of 8 Complainant in the present case; firstly, in regard to the passing of consideration as contained in [SECTION] therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in [SECTION] discharged in whole or in part any debt or other liability.
10. For the offence under [SECTION] [ACT], the presumptions under [SECTION] and [SECTION] 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 end 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 [SECTION] and [SECTION] are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in [PRECEDENT].
11. I have perused the entire record and have given due considerations to the submissions made on behalf of the parties. The court has to first see as to whether the complainant has proved that the accused issued the cheque in question towards a legal liability in favour of the complainant or not from the account maintained by him. To prove this, AR for the complainant has relied upon his affidavit Ex. CW-1/1. Accused has also accepted his signature in cheque in question during trial. As per complainant, the cheque in question Ex. CW-1/D got dishonoured. Return memo Ex. CW-1/E of cheque is placed on record by AR for the complainant in this regard. To prove that mandatory legal notice Ex. CW-1/F was sent by him, he has relied upon documents Ex.CW1/G(colly) & Ex. CW- 1/H(colly). Hence, initial presumption is raised in favour of the complainant. Reference has been made to Judgment of Apex Court in [PRECEDENT], "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] of the [ACT] has to be raised by the Court in favour of the complainant."
Defence of the accused to the case of the complainant is that legal notice was not issued personally to him and the same was issued to him in the capacity of director of R.P.P.L. Convotech Projects Ltd. It is contended by Ld. Counsel for the accused that legal notice was not duly served upon the accused hence, case under [SECTION] [ACT] is not made out against him. As per accused, false case is filed by the complainant against Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 5 of 8 him and company namely R.P.P.L. Convotech Projects Ltd. did not purchase any material from the complainant. In the present case, the legal notice was issued to R.P.P.L. Convotech Projects Ltd., accused [ENTITY] and accused [ENTITY]. Accused no. 3 namely [ENTITY] was dropped by the complainant on 09.05.2014 before the framing of notice. During trial, it came into knowledge of complainant that Convotech Projects is a proprietorship concern and accused no. 2 is sole proprietor of the same. The purpose of legal demand notice is only to make the accused aware regarding dishonour of issued cheque and demand for payment of dishonoured cheque. Contents of legal notice Ex. CW-1/F fulfills all the requirements of legal notice as required for offence under [SECTION] [ACT], hence it can not be said that legal notice regarding the transaction in question was not served upon the accused. Accused [ENTITY] during trial has stated that he settled the present case in mediation center in capacity of proprietor of M/s. Convotech Projects. This fact proves that accused [ENTITY] was fully aware regarding the contents of this case and impugned transaction between the parties. Further, he also stated that purchase order Ex. CW-1/B might be issued by one of his employee. He accepted his liability towards the complainant regarding the cheque amount. As accused has not denied the business transaction as well as liability as mentioned by complainant in his complaint, hence presumption in favour of complainant stands unrebutted and case of the complainant has been proved beyond reasonable doubt.
12. In view of the above, this court is of the considered opinion that in the present case, accused has failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any defence evidence. Therefore, complainant has successfully proved his case beyond reasonable doubt.
13. As the complainant has proved his case beyond reasonable doubt, therefore, accused is being convicted for the offence under [SECTION] of [ACT].
14. Let the accused be heard on quantum of sentence.
ANNOUNCED IN THE OPEN COURT ([ENTITY]) TODAY i.e. 15th NOVEMBER 2016 METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS/ DELHI Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 6 of 8 1 IN THE COURT OF Ms. [ENTITY], MM, NORTH-WEST, ROHINI COURTS, DELHI.
Pentagon Rubber Pvt. Ltd. v. [ENTITY] & Ors. 28.11.2016 ORDER ON SENTENCE Present: Sh. [ENTITY], Ld. Counsel for the complainant.
Convict [ENTITY] with Ld. counsel Sh. [ENTITY].
Arguments heard on the point on sentence. It is stated by Ld. Counsel for the convict that convict is aged about 69 years and is suffering from various ailments. It is further submitted that presently convict does not have any income due to old age. It is also submitted that convict does not have any previous criminal record, therefore lenient view may be taken.
Per contra, Ld. Counsel for the complainant has submitted that the matter pertains to the year 2011 and relates to business transaction and the convict has defrauded him as cheque in question was dishonored. It is further submitted by Ld. Counsel for the complainant that convict settled the matter with the complainant three years back and he accepted the liability towards the complainant and hence, no lenient view should be taken and maximum monetary punishment should be given.
I have heard the submissions and carefully perused the record. Complaint regarding present cheque in question is pending since 2011 and the same relates to business transaction between the parties. I am not inclined to grant the benefit of probation of [ACT] as the matter pertains to the year 2011 and cheque bouncing cases are on high rise and releasing the convict on probation would not have deterrent effect in the society.
Considering the totality of circumstances and the age of convict, convict is sentenced for simple imprisonment till the rising of the court and is further ordered to pay compensation to the complainant for an amount of Rs.1,80,000/- (Rs. One lakh eighty thousand only) under [SECTION] [ACT] In default of payment of compensation, convict shall undergo further simple imprisonment for a period of 2 months.
Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 7 of 8 2
At this stage, an application under [SECTION] of [ACT] has been moved on behalf of the convict for grant of bail to enable him to file appeal against the order. Heard. Perused. Application under consideration is allowed. The aforesaid sentence is suspended for a period of 30 days from today to enable the convict to file an appeal against the order and till then convict is admitted on bail on furnishing of personal bond of Rs.10,000/- with surety of like amount. Requisite bail bonds furnished. Same are accepted till 30.11.2016.
Copy of this order be given to the convict free of cost.
Announced in the open ([ENTITY]) court on 28.11.2016 MM (N/W), Rohini Courts, Delhi. Pentagon Rubber Pvt. Ltd. v. [ENTITY] [CASE NUMBER] Page no. 8 of 8