IN THE COURT OF MS [ENTITY] METROPOLITAN MAGISTRATE, ROHINI: DELHI Unique ID No.02404R0283632010 Sh. [ENTITY] S/o Sh Ganga Ram R/o B195, Mangol Puri Industrial Area, Delhi83. Complainant V/s Sh.[ENTITY] R/o C2/63, West Enclave, Pitam Pura, Delhi Accused JUDGMENT
(1) Name of complainant and address Sh. [ENTITY] S/o Sh Ganga Ram B195, Mangol Puri Industrial Area, Delhi83.
(2) Name of accused, Sh.[ENTITY] parentage and address S/o Sh. Amar Nath R/o C2/63, West Enclave, Pitam Pura, Delhi (3) Offence of complaint of or proof: 138 [ACT] (4) Plea of accused: Pleaded not guilty (5) Date of institution of case: 12.11.2010 (6) Date of reserve of order 22.05.12 (7) Final order ACQUITTAL (8) Date of Final Order 30.05.2012 BRIEF STATEMENT OF THE REASONS FOR THE DECISION:
The present complaint is filed Under [SECTION] of the [ACT] (hereinafter referred to as the 'Act ').
Brief facts of the complaint are that the complainant is a businessman and carries on his business of plastic molding on job work basis. That on 25.03.10, the accused has assigned an order of 20,000 Steel Electric Welding Holder Handles @ Rs. 4/ and the raw material was to be supplied by accused. That on supply of raw material by the acucsed the complainant completed the aforesaid order on or before 08.04.12 and the complainant on the same day asked the accused to take the delivery of goods, but the accused came to take the delivery of the goods on 10.04.2010 and asked the complainant to prepared the bill of the work done by the complainant. Complainant prepared a bill of Rs. 80,644 for 20,160 pcs @ Rs. 4/ and placed the same in the hands of the accused for the payment. And accused made the payment of Rs. 10,640 only in cash out of 80,640/ and the accused correcting the mistake committed by the complainant in calcutation i.e the difference of Rs. 4/ issued a blank cheque no. 461300 drawn on Canara Bank, Rani Bagh, New Delhi to the complainant duly signed by accused and assured the complainant to make the balance payment of Rs. 70,000/ on 10.05.2010 or before that date. The accused issued cheque in discharged of his liability of the abovesaid payment arose out of the job work and whose delivery had already been taken by the accused. On 10.05.2010 the complainant again approached the accused for the balance payment and at this time the accused made the payment of Rs. 10,000/ and asked the complainant to deposit the cheque as and when he is asked to do within one week time. On 20.05.2010, again complainant approached the accused even after a delay in the period asked by the accused, even then the accused pretended something and gained more time and this was contined till 16.09.2010 when the accused respondend to the complainant and asked the complainant to deposit the said 3
cheuque. The complainant on the instructions of the accused deposited the said cheque with his bankers but to the utter shock and surprise of the complainant the said cheque was dishonoured vide returning memo mentioning the reasons of dishonour i.e "Funds Insufficient" and on this the complainant reproached the accused and the acucsed felt sorry and told him that the could not had arrange the money to honour the cheuque but now he has arranged sufficient money to honour the cheque and the cheque would be honoured this time at any cost and asked the complainant to present the said cheque again to his bankers for the encashment. On 27.09.2010 on the assurance of the accused the complainant deposited the said cheque again with his bakers and even after assurances given by the accused the said cheque had dishonoured again and the complainant felt harassed and cheated. The said cheque has dishonoured again with the same reason of "Funds Insufficient" as per the returning memo dt. 01.10.2010. Ultimately on 03.10.2010, the complainant sent a legal notice and finally complainant has filed the present complaint with the submission that accused be summoned, trial and punished according to law.
In his pre summoning evidence complainant has examined himself on affidavit as Ex.CW1/1. Complainant reiterated the contents of his complaint and placed on record the original bill of Rs. 80,644/ is Ex CW1/A, original cheque bearing no. 461300 dt. 10.04.2010 amount to Rs. 60,000/which is Ex CW1/B, cheque drawn on Canara Bank, Rani bagh, New Delhi, original cheque returning memo dt. 20.09.2010 which is Ex CW1/C and returning memo dt. 01.10.2010 which is Ex CW1/D wherein it has been stated that cheque in question are dishonoured due to "Funds insufficient" and , legal demand notice dated 03.10.2010 as Ex. CW1/F, Regd AD card is Ex CW1/E and SPA as Ex CW1/G. Accused was summoned for an offence punishable u/[SECTION] of [ACT] and notice u/[SECTION] [ACT] for this offence was served upon him to which the accused pleaded not guilty and claimed trial. The accused also stated in his notice that "
"the cheque in question pertains to my bank account and bears my signature. I had filled in all the particulars except the date which was filled later on by the complainant. The accused has further submitted that he had never dealt in business of steel electric welding holder handles as alleged by the complainant so there is no question of getting job work done by the complainant and issuing a cheque for said job work. Whereas the cheque was given as security in the year 2001 and counterfoil of cheque was also filled in at the point of handling over the cheque to the complainant. Cheque was given as security to one Mr. [ENTITY] with the assurance that this cheque will be given to [ENTITY] as security and it will not be encashed as [ENTITY] had given a friendly loan to the accused with the internvention of said [ENTITY]. The complainant has suppressed this material fact from Court and got summons issued on the basis of false complaint. It is further stated that he is a driver and driving a school van and in the morning, he supplied milk in his vicinity"
Presummoning evidence of the complainant was treated as post notice complainant evidence as per the guidelines laid down by Hon'ble Delhi High Court, in case titled as [PRECEDENT].
Complainant did not examine any other witness, accordingly, complainant's evidence was closed. The aforesaid evidence was led by the complainant and he has discharged his initial burden to prove his case.
As present complaint is under [SECTION] of [ACT], there are three ingredients as follows held by the supreme court of india in [PRECEDENT] [SECTION] of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
1. that the cheque was drawn from the account of bank for discharge in whole or in 5
part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
Abovesaid three ingredients have been proved by complainant in the present case. 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] 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. Presumptions both under [SECTION] and [SECTION] are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in [SECTION] of the [ACT] as also the nature of the said burden upon the prosecution vis`vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision.
It is also held in [PRECEDENT] "
Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact. "
In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent 6
man ought, under the circumstances of the particular case, to act upon the supposition that it exist. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.
Reliance has also been placed by this court on the judgment of [PRECEDENT] wherein it was held that "As the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant". In [PRECEDENT], wherein theCourt observed that the initial burden was on the complainant and that was merely to show that the cheque had been drawn by the drawer in favour of the complainant and then it would be the duty of the accused to rebut the presumption.
Also the Apex Court in the case of [PRECEDENT]. , had observed that there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there was no existing debt or liability was on the accused and this they had to discharge at the trial.
Pursuant to allowance of application u/[SECTION] [ACT], the complainant was recalled for crossexamination. In his cross examination complainant deposed that " I was doing the business of steel electric welding holder since the year 2002. I was doing the business in the name of MG Plastic and I am the proprietor . I have not filed the present case in the capacity of proprietor of MG Plastic. I have not placed on record any proof that I am the proprietor of MG Plastic. The bill EX CW1/A does not bear signature but it 7
bears the signature of my foreman. The bill was prepared by the foreman. It is correct that the Bill CW1/A does not bear the signature of the accused. It is wrong to suggest that it is a false and fabricated bill. The bill has not required the signature as it is a normal course of business. It is correct that legal notice Ex CW1/F was sent by me through the counsel and and it is further correct that it is specifically mentioned in the legal notice that an order of 20,000/ steel electric welding holders @ Rs. 4/ was placed by the accused. It was an oral order. It is correct that as per the alleged order the total amount payable is Rs. 80,000/. I have got the original bill book. It is correct that I have not placed on record the bill book. It is correct that there are three copies in the said bill book. I can bring the bill book to show the transaction". His further cross examination deferred for want of bill book.
On 13.07.2011, in his cross examination, complainant deposed that "I have not brought the bill book pertaining to bill No. 073, as the same has misplaced somewhere during whitewash. I will try to trace out the same and can bring the same in the court, if required. Further stated that in case I have not been able to find out the bill book pertaining to bill no. 073 then I will try to produce the other bill books.I am also not maintaining the balance sheet as well as the cash book. I have never given income tax to the authorities in respect of my business. I have not obtained any sales tax number from the concerned authorities. I have closed my business in the end of 2010. I have the proof that I am the proprietor of MG Plastics and I can bring the proof of the same and now I am doing the business under the name and style of SR Plastic. I have also not obtained any sales tax number from concerned authorities for SR Plastic. His further cross examination deferred for want of bill book as well as the proof of proprietorship concern.
On 10.01.2012, in his cross examination, he further deposed that " I cannot 8
produce the bill book as same is not traceable. It is correct that notice sent to the accused U/[SECTION] [ACT] is seny by me in my individual capacity and not as a proprietor of MG Plastics. It is correct that it is nowhere stated in the notice that the material was supplied to the accused by MG Plastics. It is further correct that I have not stated the same fact in my complaint that the material was supplied by MG [ENTITY] to the accused. It is wrong to suggest that I have placed on record the forged and fabricated bill and whereas I have no concern with the same. I am not the owner of A95, Mangol Puri, Industrial Area, Delhi as mentioned in the bill Ex CW1/A. Voluntarily the address mentioned in the bill book as A95, Mangol Puri, Industrial Area, Delhi is misprinted the same is incorrect and the correct address is B95, Mangol Puri, Industrial Area, Delhi again said the correct address is BA95, Mangol Puri, Industrial Area, Delhi on seeing the legal notice. It is correct that the cheque which was given to me was signed and amount was filled but it was unnamed and undated. It is correct that I have mentioned in the legal notice that the cheque given was blank and nothing further has been mentioned regarding the amount being filled by the accused. It is wrong to suggest that a blank cheque was given which has been filled in by me and was misused. It is correct that I have mentioned in my complaint that a blank cheque was issued by the accused and nothing in repsect of particulars has been mentioned in the complaint. I know the accused for last 20 years. It is correct that he had a transaction with the accused in year 2001 and the transaction was of Rs. 5000/. It is wrong to suggest that the cheque in question was given as a security on 17.12.2001 which had been misused after 11 years by filling in all details of the cheque and by filing a false case U/[SECTION] [ACT]. It is wrong to suggest that here is no legal enforceable debt or liability qua cheque in question. It is wrong to suggest that the goods were never supplied by me to the accused and there was no transaction between me and the accused.
Thereafter, statement of accused under [SECTION] [ACT] was recorded in which all the incriminating circumstances were put to the accused wherein accused has stated that " I am running a business for milk supply for the last 50 years as it is my family business. Therefore I have never received any such material from the complainant. In the year 2001, I took loan amount of Rs. 50,000/ to Rs. 60,000/(approximately) from the complainant and issued the aforesaid blank signed cheque as a security for repayment of loan and said cheque was dishonored due to funds insufficient. I have received the legal notice . I have repaid the loan by supplying milk to the complainant and his family and nothing remains due. I used to request to complainant for returning his blank signed cheque but he always refused for the same. In his statement u/s 313Cr PC the accused has not preferred to lead defence evidence. Oral arguments tendered by the Complainant as well as Ld. counsel for the accused were heard at length. Written submissions were taken on record.
Ld. Counsel for complainant has stated that all the ingredients of [SECTION] has been complied with, therefore, the office is committed.
Ld. Counsel for accused has stated that the ownership/proprietorship of the complainant has not proved by him and the complaint has been filed in his individual capacity despite the fact that the version of the complainant is liability towards the business transaction. The complainant also did not filed the sale tax of the said business as Tin number is not mentioned in the bill which is Ex CW1/A. Entire record has been perused. The complainant has discharged the initial burden of proof by placing material on record and also relying upon the presumption U/[SECTION] and [SECTION] [ACT] which are in the favour of the complainant then as per the judgment discussed before the onus shifted on the accused to rebut the above said presumptions. It is pertinent to mention here that presumption can be rebutted only by creating the probably 10
defence by the accused in his favour and for this the accused need not come to the witness box. It can be rebutted by merely creating a probable defence which can make a dent in the complainant's version in present case. In the present case, accused has led the probable defence as in cross examination of the complainant, taint is being created in the complainant's version and the complainant is not able to prove the guilt of the accused beyond reasonable doubt for the reasons mentioned herein Firstly, the complainant has himself stated in his cross examination that he is the proprietor of MG Plastic whose bill is annexed as CW1/A and against whose liability the cheque in question was given by the accused but the complainant has not placed on record any proof whatsoever of the ownership of MG Plastic.
Secondly, the bill which is Ex CW1/A which is the pivot wheel in the present case as the liability of the accused arise out of the said will and the aforesaid bill neither bear the signatures of accused nor the complainant and it has been stated by the complainant himself that the bill bears signatures of his foreman.
Thirdly, time and again when the complainant was required the produce the original bill book in his cross examination he has not produced the same in the court. Despite the several opportunities being granted to him. Though he has himself admitted that there are three copies of the Bill in the said bill book. He further stated that in his cross examination that the bill book No. 073 pertaining to the bill in question has been misplaced and if he cannot produce the same bill book he will produce the other bill book. But he has not produced any of the bill book.
Therefore an adverse inference is drawn against the complainant U/[SECTION] [ACT] that the had complainant brought the same it would go against the complainant and this is the reason he has not brought the material document in question on record.
Fourthly, the complainant has himself admitted in his cross examination that neither he is maintaining the balance sheet of the said firm nor he is maintaining the cash book. He has also admitted that neither he gives income tax of the concerned authorities in respect of his business nor he has obtained any sale tax number for his firm i.e. MG Plastic.
Fifthly, Complainant has also stated in his cross examination that the present complaint has been filed by him in his individual capacity and not as a proprietor of MG Plastic and no where in the legal notice it is mentioned that the material was supplied to the accused by MG Plastic.
Though it is well settled proposition of law that the proprietorship firm does not have a separate legal identify, therefore, the proprietor can presue the case in his own name but it is important to mention here that the cheuqe in question is with regard to the liability towards business transaction as material has been supplied by the firm but the said cheque is not in the name of the firm rather it is in the name of the complainant himself.
Sixthly, the most important and vital part of the cross examination of the complainant is that where the complainant admits that the cheque in question which was given to him was signed and amount was filled but it was unnamed and undated. The complainant has stated categorically in the legal notice that the cheque in question was blank signed cheque.
As it has been admitted by the complainant that it was a blank signed cheque necessary implications follows that he has filled the cheuqe without instructions of the accused which is also mentioned in the complaint.
Under these circumstances, this court of view that the complainant has failed to prove his case and guilt of the accused beyond reasonable doubt.
It is settled preposition of law that the guilt of accused must be proved beyond reasonable doubt and reliance has been placed by this court on the judgments of [ENTITY] 12
[PRECEDENT] of [PRECEDENT] wherein it was held that "Furthermore, whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies".
Keeping in view the aforesaid discussions, I hold that the accused is not guilty for the offence punishable u/[SECTION] [ACT], therefore, he is acquitted. Endorsement, if any made on the bail bonds and surety bond be cancelled as per law.
ANNOUNCED IN THE OPEN COURT ON 30.05.12. ([ENTITY]) [ENTITY]