IN THE COURT OF [ENTITY], M.M. - 01, (N. I. ACT), CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI. JUDGMENT
M/s Naveen Textile Complainant Versus [ENTITY] Accused
a) Old case number : 2344/15 dated 05.11.2015
b) Unique/new case number : 527483/2016
c) Alleged date of commission of offence : 21.10.2015 Approximately
d) Name of complainant : [ENTITY] P/o M/s Naveen Textile At 5624, Ground Floor, Katra Jamun, Nai Sadak, Delhi - 110 006.
e) Name of accused person(s) : [ENTITY] S/o Sh. [ENTITY] P/o [ENTITY] At B - 126/1, Mayapuri Industrial Area, Phase - I, New Delhi - 110 064. f) Offence complained of : Under [SECTION] of [ACT] BRIEF STATEMENT OF THE REASONS FOR THE DECISION
(As mandated u/[SECTION] of the [ACT].)
1. Vide this judgment, I shall dispose off the present complaint under [SECTION] [ACT] (hereinafter referred to as the '[ACT]') filed M/s Naveen Textile Vs. [ENTITY] Page No.1 of 12 by the complainant against the accused.
2. Factual matrix : Succinctly put, the brief facts of the case as averred by the complainant in his complaint, bereft of unnecessary details, are that the accused had verbally placed an order to the complainant for the supply of fabrics and acting upon the same, the complainant supplied fabrics worth Rs.53,222/ vide bill no.12446 dated 24.09.2014. It is further averred that in discharge of his part liability, accused issued a cheque bearing number 164634 of Rs.18,000/ dated 25.06.2015 drawn on Axis Bank. The cheque in question got dishonored with the remarks "Funds Insufficient" vide return memo dated 22.09.2015. The complainant issued a legal demand notice dated 01.10.2015 to the accused, requesting the accused to make the payment of the cheque amount, however, the accused failed to pay the aforesaid dishonoured cheque amount. Hence, the present complaint.
3. The cognizance of offence u/[SECTION] [ACT] was taken and accordingly accused was summoned vide order dated 05.11.2015. Presummoning evidence was led by way of affidavit. The complainant exhibited 05 documents i.e Ex.CW1/1 (bill), Ex.xCW1/2 (dishonoured cheque), Ex.CW1/3 (return memo), Ex.CW1/4 (legal notice) and Ex.CW1/5 (postal receipts). Thereafter, separate notice under [SECTION] of The [ACT] (hereinafter referred to as [ACT]) explaining accusations against the accused under [SECTION] [ACT] was put on 28.08.2017 to which he did not plead guilty and claimed trial. The accused M/s Naveen Textile Vs. [ENTITY] Page No.2 of 12 failed to move an application under [SECTION] of The [ACT] and was consequently not given the opportunity to crossexamine the complainant. Thereafter, the statement of accused under [SECTION] [ACT] r/w [SECTION] [ACT] was recorded on 12.01.2018. No defence evidence was lead by accused, hence, matter was fixed for final arguments.
4. Legal Position : Before proceeding further to reflect upon the defence and the evaluation of evidence, the foremost checkpoint is whether the facts averred by the complainant fulfill the basic requirements of [SECTION] for constituting an offence under [SECTION] [ACT]. For the same, a quick run through the legal provisions becomes indispensable. The following elements come out on the perusal of [SECTION] [ACT] :
(i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) That cheque is returned by the bank unpaid, either because of the M/s Naveen Textile Vs. [ENTITY] Page No.3 of 12
amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
5. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under [SECTION] of the [ACT].
Evaluating the facts of the present case in light of the above legal provision, the Court first considers as to whether the complainant has prima facie proved the issuance of the cheque by the accused towards a legal liability in favour of the complainant from the account maintained by him so as to constitute an offence under [SECTION] [ACT]. To carve out a primafacie case, the complainant placed on record his evidence by way of affidavit stating that the accused verbally placed an order for fabrics, acting upon which the complainant supplied fabrics worth Rs.53,222/ to the accused vide bill no.12446 dated 24/09/2014 Ex.CW1/1. He placed M/s Naveen Textile Vs. [ENTITY] Page No.4 of 12 on record cheque no.164634 Ex.CW1/2 with specific averment that the same has been issued by the accused against his legal liability towards the complainant. The return memo along with the legal demand notice has also been place on record as Ex.CW1/3 and Ex.CW1/4 which substantiate the version of the complainant and establish prima facie case under [SECTION] [ACT].
Furthermore, the presumptions under [SECTION] and [SECTION] imperatively come into play as soon as the execution of the cheque is admitted by the accused or is proved by the complainant. Coming to the case at hand, the accused admitted having issued the cheque in question in the notice framed upon him and also in the statement under [SECTION] [ACT] The above facts suffice in raising the presumption under [SECTION] and [SECTION] [ACT] in favour of the complainant.
6. However, the same being rebuttable, the onus is upon the accused to demolish the version of the complainant and establish the veracity of his own stance and he can do so either by cross examining the complainant, leading defence evidence or by simply pointing out the inherent inconsistency in the version of the complainant. The strength of standards on the accused is not as high as placed and desired from the complainant.
In [PRECEDENT] Hon'ble Supreme Court of India, held that a presumption, in itself, is not evidence but only makes a primafacie case for a party for whose benefit it exists. Presumptions both under [SECTION] and [SECTION] are rebuttable in nature.
M/s Naveen Textile Vs. [ENTITY] Page No.5 of 12 Also, in "[PRECEDENT], three Judge Bench of Hon'ble Supreme Court held that [SECTION] raises a presumption of existence of legally enforceable debt or liability and not simple existence of debt or liability. This presumption is rebuttable presumption and it is open to the accused to raise a defense wherein the existence of legally enforceable debt or liability can be contested.
7. Defence : At the very outset of deliberations, the Court recounts the very essence of defence so put forth by the accused to thwart the drive of the complainant and to rebut the presumptions under [SECTION] and [SECTION] [ACT]. Accused was given ample opportunities to extend his defence and thereby dismantle the case of the complainant, however neither was the application under [SECTION] [ACT] moved nor was any defence evidence led by the accused. The accused, in the notice framed upon him, admitted his signatures on the cheque however took the defence that the goods supplied by the complainant were defective. The accused admitted that he had received the legal demand notice in the notice framed upon him as well as in the statement recorded under [SECTION] [ACT] It is also pertinent to mention here that the accused admitted placing an order for the supply of fabric and that the fabric worth Rs.53,222/ was supplied to him by the complainant.
During the arguments Ld. Counsel for the complainant stressed upon the fact that the accused has not disputed any of the facts averred by the complainant and has failed to put forth a valid defence. On behalf of the accused, his Ld. Counsel made M/s Naveen Textile Vs. [ENTITY] Page No.6 of 12 an averment that though the accused doesn't controvert the averments of the complainant, but he was supplied with defective goods. Countering the same, Ld. Counsel for the complainant submits that the accused never made any complaint in regard to the same. Ld Counsel for the accused concedes to the fact that no complaint or objection was ever raised by the accused and further submits that the accused is still ready to make the payment to the complainant. Ld. Counsel for the accused while defending the accused stresses upon the fact that accused suffered huge losses due to the defective goods supplied by the complainant and that the cheque in question was issued merely as a security cheque.
8. Points of Determination : Reflecting upon the above averments and legal position the following points arise for my consideration :
(i) Whether the cheque in question has been issued for the valid discharge of legally recoverable debt or liability.
9. Evaluation of evidence : Having recounted the very abstract of the showcased defence, the Court treads ahead to evaluate the plausibility of the same by juxtaposing it against the version and corresponding evidence adduced by the complainant.
Dealing with point no (i) Detailed scrutiny of the stances taken by both the sides unveils the fact that the complainant has placed on record the original documents from Ex.CW1/1 to M/s Naveen Textile Vs. [ENTITY] Page No.7 of 12 Ex.CW1/5.
Delving into the version and counter version of the complainant and the accused, it is patent that the accused nowhere controverts or disputes the signatures on Ex.CW1/2, whether it be in the notice framed upon him, in his statement recorded under [SECTION] [ACT] or anywhere throughout the trial. In fact, he has duly admitted his signatures on the cheques and the issuance of the cheque in question Ex.CW1/2 in the notice framed upon him and in his statement under [SECTION] [ACT] Neither does the accused deny the documents Ex.CW1/1 and Ex.CW1/3 to Ex.CW1/5.
In his statement under [SECTION] [ACT], the accused has admitted that the complainant had supplied goods to him vide bill no.12446 in consequence to the order placed by him. However, he further submits that the fabric supplied by the complainant was defective and the cheque in question was provided as security cheque to the complainant.
Having posed no objection to the documents adduced and exhibited by the complainant and not alluding to them even once throughout the trial, The same amounts to an admission of the abovesaid documents.
Having admitted so, and also by virtue of the presumptions raised under [SECTION] and [SECTION] of [ACT], the burden of disproving the complainant's version and proving his own version/defence falls on the accused. It was now for the accused to wriggle out of the rigorous of [SECTION] and [SECTION] of [ACT] and the documentary M/s Naveen Textile Vs. [ENTITY] Page No.8 of 12 evidence placed on record by the complainant.
That being so, the accused still had ample opportunities to come up with his defence against the said evidence or to demolish the case of the complainant by highlighting the loopholes or flaws in his case. However, neither was the complainant crossexamined nor was any defence evidence led on behalf of the accused. Mere oral averments were made to the effect that the complainant had supplied defective goods to the accused and the cheque in question was provided as security cheque. That being the sole assault mounted by the accused on the drive of the complainant, it would be expedient to iterate that a party averring a particular fact is the one bound to prove that particular averment. Having established his(complainant's) version by producing such significant documents, the onus was upon the accused to counter the version of the complainant and prove his own stance. The [ACT] also provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In the present case the complainant has placed on record entire evidence in support of his case, it was for the accused to lend credence to his counter version by leading evidence.
The [ACT] also provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Same could be done by placing on record some positive evidence or by M/s Naveen Textile Vs. [ENTITY] Page No.9 of 12 appreciating the evidence already placed on record by any of the parties. That being so, it is observable from the case file that the accused not only failed to place on record any evidence to substantiate his defence that the complainant supplied defective goods and the cheque was a mere security cheque, but also failed to controvert the case of the complainant or to prick holes in his case. Merely refuting the stance of the complainant and the documents, verbally, can not dilute the significance and the credibility of the documents duly proved by the complainant, especially in a scenario when the accused has admitted the bill that is Ex CW1. Substantial evidence is required to demolish any such worthy evidence.
Most essentially, the document Ex.CW1/1 that is the bill dated 24.09.2014 apparently is a very crucial document as the document in itself bears testimony to the alleged incidence of the liability of the accused towards the complainant and suffices in substantiating and verifying the version of the complaint. The accused failed to contend or dispute not only the document mentioned i.e Ex.CW1/1, but all the other documents placed on record by the complainant and in all his wisdom, deemed it fit to admit all the averments of the complaint and the documents produced by the complainant.
That being so, the Court on the perusal of the complaint and the documents is also satisfied of the proofs tendered by the complainant of the case advanced by him.
Moreover, the accused didn't lead any defence evidence thus failing to M/s Naveen Textile Vs. [ENTITY] Page No.10 of 12 advance any potent argument to refute the claim of the complainant.
Now delving on the scope of [SECTION] [ACT], the Court deems it necessary to reproduce the law laid by the Hon'ble apex court in respect of the same.
In [PRECEDENT] where this Court said : "15. It is a settled principal of law that the statement of an accused under [SECTION] of [ACT] can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true is that the statement under [SECTION] of [ACT] simpliciter normally cannot be made the basis for conviction of the accused. But where the statement of the accused under [SECTION] [ACT] is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced."
In Sanatan Naskar and Anr v. State of West Bengal (2010) 8 SCC 249, where this Court observed : "21. The answers by an accused under [SECTION] of the [ACT] are of relevance for finding out the truth and examining the veracity of the case of the prosecution.
22. As already noticed, the object of recording the statement of the accused under [SECTION] of the [ACT] is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. Once such a statement is recorded, the next question that has to be considered by the Court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the Courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.
23. The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of [SECTION] of [ACT] explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence for or against the accused in any other enquiry into or trial for, any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The Courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this Section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.
24. Another important caution that Courts have declared in the pronouncements is that conviction of the accused cannot be based merely on the statement made under [SECTION] of the [ACT] as it cannot be regarded as a substantive piece of evidence "
M/s Naveen Textile Vs. [ENTITY] Page No.11 of 12 Thus it is clear that the answers given by the accused could be relied upon in conjunction with the evidence placed on record by the prosecution/complainant.
In view of the aforementioned facts and circumstances, this Court is of the opinion that complainant proved his case against the accused for offence punishable under [SECTION] of The [ACT] beyond shadow of reasonable doubt. Accordingly, accused namely [ENTITY] stands convicted for offence punishable under [SECTION] of The [ACT].
Announced in the open Court PRIGYA Digitally signed by [ENTITY] on January 21, 2019. GUPTA Date: 2019.01.23 17:06:18 +0530 ([ENTITY]) [PRECEDENT] M/s Naveen Textile Vs. [ENTITY] Page No.12 of 12