IN THE COURT OF SH. [ENTITY]: METROPOLITAN MAGISTRATE-02/WEST : DELHI Hindustan Latex Ltd. Versus [ENTITY] Complaint Case No. 2793/01/94 UID No. 02401R0028571994 U/SEC : 138 [ACT] PS : Prasad Nagar, Delhi JUDGMENT
Serial No. of the case 2793/I/94 Date of commission of offence 13th October, 1994 Date of institution of the case 09th November, 1994 Name of the complainant Hindustan Latex Ltd. registered office at - Latex Bhawan, Poojapura, Thiruvananthpuram-695012, Kerala. Liaison Office at - 4648/21, Daryaganj, New Delhi-110002.
Name of accused, parentage & [ENTITY], J-15, Kirti Nagar Area, address Delhi-15.
Offence complained of or proved [SECTION], [ACT].
Plea of the accused Pleaded not guilty. Date of final arguments 19th August, 2010. Final order Convicted Date of Judgment 19th October, 2010.
1. Complainant, a company under the Ministry of Health and Family Welfare, Central Govt. of India, is dealing in all types of prophylcatic contraceptives and medical appliances and allied products like condoms, surgical and other dipped articles including all sorts of articles made from latex. The accused is a customer of the complainant, who had been continuously doing business transactions with the complainant since the year 1992 representing and acting for and on behalf of firm M/s A. B. Rubber Industries. Later on, the firm M/s A. B. Rubber Industries was styled as A. B. Rubber Industries Pvt. Ltd., 69, Najafgarh Road, New Delhi-15. The said company is run by the accused and his family members.
2. The accused had also been representing and acting for and on behalf of M/s Associated Surgical Industries, J-15, Kirti Nagar Area, Delhi-15 in its transactions with the complainant. M/s Associated Surgical Industries and M/s A. B. Rubber Industries (Later on styled as A. B. Rubber Industries Pvt. Ltd) have acted for and on behalf of each other in its transactions of business with the complainant.
3. It is averred that the accused used to make the payments to the complainant through cheques of M/s Associated Surgical Industries for supply of goods made by the complainant to M/s A. B. Rubber Industries, later on styled as A. B. Rubber Industries Pvt. Ltd. The complainant had made the door delivery of various goods from 02.02.1993 to 30.09.1993.
4. On account of various goods supplied by the complainant to A. B. Rubber Industries, later on styled as A. B. Rubber Industries Pvt. Ltd., the accused, Associated Surgical Industries acting in union and for and on behalf of A. B. Rubber Industries, later on styled as A. B. Rubber Industries Pvt. Ltd., issued two cheques bearing no. 448428 and 448429 drawn on Jammu & Kashmir Bank, Rajendra Place, Delhi for a total sum of Rs. 25,52,668 only on 31.03.1994 to the complainant. The cheque bearing no. 448428 dated 31.03.1994 was for a sum of Rs. 15 lakhs and the cheque bearing no. 448429 dated 31.03.1994 was for a sum of Rs. 10,52,668/-.
5. The complainant presented the aforesaid cheques for encashment. However, both the cheques were returned dishonoured owing to 'funds not sufficient' by The Jammu and Kasmir Bank vide bank return memo dated 05.04.1994. Thereupon, the complainant informed the accused about the dishonour of the cheques through a registered letter. The accused apologized and negotiated with the complainant for payment and requested for some time for payment and settlement of accounts. The accused on 31.08.1994 requested the complainant to re-deposit the two cheques for payment in the bank. However, the two cheques were once again dishonoured on 08.09.1994 owing to insufficient funds.
6. The complainant thereafter issued the requisite legal notice dated 21.09.1994 to the accused and called upon the accused to make the payment of the amount of the dishonored cheques within 15 days. It is stated that the legal notice was received by the accused on 27.09.1994. It is averred that the accused despite receipt of the legal notice failed to comply with the said notice. It is thus that the complainant has filed the present complaint against the accused.
7. Upon institution of the complaint, pre-summoning evidence under [SECTION] [ACT] was led by the complainant. After considering the material and the pre-summoning evidence on record, the accused was ordered to be summoned vide order dated 29.09.1995 to face trial for the offence under [SECTION] [ACT].
8. Upon being served with the summons, the accused [ENTITY] entered appearance. He was admitted to bail vide order dated 04.12.1995. Subsequent thereto notice under [SECTION] [ACT] for the offence under [SECTION] [ACT] was served upon the accused on 16.03.1996 to which the accused [ENTITY] pleaded not guilty and claimed trial.
9. After the service of notice upon the accused under [SECTION] [ACT]; the matter was posted for complainant's evidence. During the course of complainant's evidence, the complainant got examined only two witnesses. The complainant's evidence was closed by the counsel for the complainant on 26.08.2004. After the conclusion of complainant's evidence, statement of the accused [ENTITY] was recorded on 17.02.2005 under [SECTION] [ACT] wherein the accused [ENTITY] stated that he is in no way involved in the transaction that are germane to the instant case and that the complainant had entered into the transaction with the director of M/s A. B. Rubber Industries and therefore complainant should seek his remedy against M/s A. B. Rubber Industries. It was further his defence that he had given the two cheques in question to the complainant in the year 1992 against the orders placed by Associated Surgical Industries and the complainant dishonestly retained and misused the abovementioned two cheques despite not having supplied the goods. The accused had opted to lead defence evidence. In the defence evidence, three witnesses were got examined by the accused.
10.The two complainant witnesses that were examined during the course of the trial are as follows:
I. CW1 [ENTITY], Senior Assistant of Hindustan Latex Limited.
II. CW2 Shri [ENTITY], Manager (accounts) of Jammu and Kashmir Bank Ltd. Rajendra Place Delhi. He proved that the bank account was in the name of Associated Surgical Industries having account number 1147. He also placed on record the statement of account as on 08/09/1994.
11.The three defence witnesses that were examined during the course of the trial are as follows:
I. DW1 [ENTITY], son of the accused and a director of the A. B. Rubber Industries Pvt. Ltd.
II. DW2 [ENTITY], the accused himself III.DW3 Shri [ENTITY], handwriting expert
12.I have heard the rival submissions at Bar and have gone through the records of this case.
13. The [ACT] raises two presumptions; firstly, in regard to the passing of consideration as contained in Section 118
(a) 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] of the Act, are rebuttable in nature. The burden is squarely upon the accused to rebut the presumptions and discharge the onus placed upon him to show that the cheque was not against any liability. It is a settled law that for this purpose, the accused is not required to enter the witness box in order to discharge the burden of proof that the law places upon him. In the judgment reported as [PRECEDENT] a view was taken by a Two Judge Bench of the Apex Court that the existence of legally recoverable debt is not a matter of presumption under [SECTION] [ACT] and that the consideration behind the cheque has to be proved beyond reasonable doubt by the complainant. However, this view has been disapproved by a Three Judge Bench in the case reported as [PRECEDENT], wherein it has been held that consideration attached to a cheque is indeed a matter of presumption and the complainant is not required to prove it beyond reasonable doubt.
14. The question that naturally arises is as to what is the standard of proof that the law requires and which the accused is expected to discharge in order to rebut the presumptions. In criminal matters, the standard of proof upon the prosecution is - proof beyond reasonable doubt. However, the accused in order to rebut the presumption(s) against him is not required to conclusively establish his case. The burden of proof on accused in rebutting the presumption(s) is not as high as that of the prosecution. In this connection an extract out of the judgment reported as [PRECEDENT] would be apt:
"20. Because both [SECTION] and [SECTION] require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in [PRECEDENT], it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused" (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. 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 non-existence of the presumed fact.
21. 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 man ought, under the circumstances of the particular case, to act upon the supposition that it exists" [[SECTION] : [ACT]]. 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'."
15.It is also a settled principle that where the accused has discharged the initial burden of rebutting the presumptions; the burden of proof shifts to the complainant. And whether or not the accused has discharged the onus of proof placed upon him would depend entirely on the facts and circumstances of the case. In this regard the judgment of the Apex Court in [PRECEDENT] can be fruitfully referred to.
16.Having dwelt upon the law as regards presumptions and the burden of proof in matters arising under [SECTION] [ACT], I shall now deal with the merits of the present case. The very first defence of the accused is that the goods were supplied by the complainant to M/s A. B. Rubber Industries which is not the accused. As per his stand he is not the proprietor of A. B. Rubber Industries and that he is the proprietor of M/s Associated Surgical Industries. Further, as per the stand of accused M/s A. B. Rubber Industries is a firm run by his wife and elder son which has a separate registered office and a separate identity. It was further the stand of accused [ENTITY] that he used to merely work for M/s A. B. Rubber Industries as a manager and used to merely sign some correspondences as [ENTITY] and not as proprietor of M/s A. B. Rubber Industries. In his support the accused placed reliance upon a document exhibited as Ex. DW1/2. The document exhibited as Ex. DW1/2 is the minutes of meeting dated 29.06.1994 between [ENTITY], Director of A B Rubber Industries Pvt. Ltd. and the representatives of the complainant company. Placing reliance upon the documents, it was argued by the accused that he never had any concern with M/s A. B. Rubber Industries Pvt. Ltd. On the other hand, the complainant vehemently argued that the accused was all along managing the affairs of A. B. Rubber Industries Pvt. Ltd. and that he had issued the cheques for and on behalf of A. B. Rubber Industries Pvt. Ltd. Complainant placed reliance upon the documents which are exhibited as Ex. P-10, Ex. P- 11, Ex. P-12 and Ex. P-13. These documents are the letters issued by the accused for and on behalf of the M/s A. B. Rubber Industries and M/s A. B. Rubber Industries Pvt. Ltd.
17.This is a highly contentious issue on which lengthy arguments had been advanced at Bar. In his statement under [SECTION] [ACT] the accused does admit that he used to act as Manager of M/s A. B. Rubber Industries. He also admitted that at times he used to sign for and on behalf of M/s A. B. Rubber Industries/A. B. Rubber Industries Pvt. Ltd. The letters Ex. P-10, Ex. P-11, Ex. P-12 and Ex. P-13 bear the signatures of [ENTITY]. M/s A. B. Rubber Industries had later on converted itself into company. Ex. P-11, Ex. P-12 and Ex. P-13 reflects the accused signing for and on behalf of the company M/s A. B. Rubber Industries Pvt. Ltd. The defence of the accused that he had no concern with M/s A. B. Rubber Industries Pvt. Ltd. and that he used to sign correspondences on behalf of M/s A. B. Rubber Industries/M/s A. B. Rubber Industries Pvt. Ltd. cannot simply be accepted. A bare perusal of the contents of the documents Ex. P-10, Ex. P-11, Ex. P-12 and Ex. P-13 amply reflects that the accused [ENTITY] was in complete command and control of the affairs of M/s A. B. Rubber Industries as well as M/s A. B. Rubber Industries Pvt. Ltd. The accused [ENTITY] had the knowledge of all the dealings of the complainant with M/s A. B. Rubber Industries or M/s A. B. Rubber Industries Pvt. Ltd so much so that he had used to give instructions for and on behalf of the firm/company in connection with the business dealings with the complainant. The letters Ex. P-10, Ex. P-11, Ex. P- 12 and Ex. P-13 would amply reflect the same. Under [SECTION] of the [ACT], all those persons are liable who are in charge and responsible for day-to-day affairs of the company. The contents of the letters Ex. P-10, Ex. P-11, Ex. P-12 and Ex. P-13 does amply reflect that the accused [ENTITY] had been in charge and responsible for day-to-day affairs of the company M/s A. B. Rubber Industries Pvt. Ltd. For the offence by a company under [SECTION] [ACT], it is not at all necessary that the person responsible for day-to-day affairs of the company must be a director. Such a person can even be a Manager. The accused now cannot take advantage of his own acts by contending that he had no concern with the dealings of the complainant with M/s A. B. Rubber Industries. As per his own admission he was a manager of M/s A. B. Rubber Industries. It does not escape one's attention that the accused in the correspondences to complainant does not at all disclose his status and the designation in the M/s A. B. Rubber Industries or M/s A. B. Rubber Industries Pvt. Ltd.
18.There is another reason to it. M/s A. B. Rubber Industries had later on converted itself into a Private Company styled as 'M/s A. B. Rubber Industries Pvt. Ltd'. In case of a limited company, as per the [ACT], Memorandum of Association and Articles of Association are required to be drawn up. And it is in these two documents that the powers of the respective officers of the company are delineated. It can be the defence of the accused that as per the Memorandum of Association and the Articles of Association he was not duly authorised to do what he did. However, the manner of the conduct of the affairs of the company and the conduct of its day-to-day business does amply reflect that the accused [ENTITY] was running the entire show for M/s A. B. Rubber Industries or M/s A. B. Rubber Industries Pvt. Ltd. To my mind, there certainly can be no doubt on this score. And if at all the accused was not authorised by the Memorandum of Association or the Articles of Association, the moot question that now arises is whether the accused can take advantage of his own wrong in the present circumstances. In my view, the answer has to be emphatically in the negative. The accused cannot now take advantage by contending that he was not duly authorised to sign such documents and despite the same he signed and the benefit of such a lacuna should be given to him. Such a stand on the part of the accused cannot at all be accepted.
19.Under the company law, as per the doctrine of indoor Management, the outside world is not at all expected to know as to how the affairs of a company is being run and its internal procedure. The accused simply cannot turn away and say that he was not running the affairs of the company and therefore he should not be charged with. The accused had all along been writing letters to the complainant for and on behalf of M/s A. B. Rubber Industries and its later incarnation M/s A. B. Rubber Industries Pvt. Ltd. The accused had all along been dealing with the affairs of M/s A. B. Rubber Industries as if, he was the in charge and responsible for day-to-day affairs of the company. The complainant cannot in such circumstances be thrown out of the court on the ground that contrary to the internal affairs of the company it had been dealing with the accused [ENTITY] for an on behalf of A. B. Rubber Industries and M/s A. B. Rubber Industries Pvt. Ltd.
20.Additionally, this court can very well lift the veil of the corporate personality of the company M/s A. B. Rubber Industries Pvt. Ltd. and find out as to who was the person who was running the affairs of the company. A company cannot be used for illegal and fraudulent purposes. A company cannot be used as a mere tool or a smokescreen to avoid liabilities. The present case is a fit case where the corporate veil is required to be lifted in order to determine as to who was the person who was dealing with the affairs of the company. It was the accused [ENTITY] who had all along been running the show of the company M/s A. B. Rubber Industries Pvt. Ltd. and his sons who were the directors were merely the proxies for the accused. The letters of the accused which are exhibited as Ex. P-10, Ex. P-11, Ex. P-12, Ex. P-13 are ample reflection of the fact that the accused [ENTITY] was all along running the show for M/s A. B. Rubber Industries or its later avtar M/s A. B. Rubber Industries Pvt. Ltd. Therefore, the defence of the accused that he had nothing to do with M/s A. B. Rubber Industries Limited or its previous avtar M/s A. B. Rubber Industries Pvt. Ltd. besides signing some documents as a manager cannot be accepted. Accused [ENTITY] even in his capacity as a manager of M/s A. B. Rubber Industries or A. B. Rubber Insdustires Pvt. Ltd. was in charge and responsible for day-to-day affairs of the company.
21.At this stage it would be appropriate to take a note of the judgment of the Apex Court reported as [PRECEDENT]. In this case it has been held by Apex Court that for the purposes of prosecution of director of a company and the other persons of the company falling within the purview of [SECTION] of the [ACT], the prosecution of the company as such is not at all a sine qua non for convicting those other persons. Although this point was not argued at Bar, yet a reference to this was required inasmuch as the complainant is not prosecuting the firm M/s A. B. Rubber Industries or its later incarnation M/s A. B. Rubber Industries Private Limited.
22.It was next the defence of the accused that the cheque in question pertains to the firm M/s Associated Surgical Industries and such the accused [ENTITY] in his capacity as the manager of the AB Rubber Industries cannot be held liable. It is true that the for the transaction of one firm the proprietor of another firm cannot be held liable. However, I have already held hereinabove that the accused was the person who was in charge and responsible for day-to-day affairs of A. B. Rubber Industries and its later avtar M/s A. B. Rubber Industries Pvt. Ltd, albeit in his capacity as manager of the firm/company. It is not disputed that both the firms of the accused were transacting business with the complainant. And the transactions with the complainant were being done with on behalf of both the firms by none else but the accused [ENTITY]. It is matter of common experience that it is not unusual for persons running two or more firms to give cheque of either of the firm for the transaction of the other firm. And the accused who was responsible for the day-to-day affairs of both the firms could have very well given the cheque of Associated Surgical Industries towards payment of the liabilities of the AB Rubber Industries as well. There was nothing that had hindered the accused from doing so. The circumstances of the instant case are strong pointer towards this inference. There is another reason to it. A proprietorship firm is not at all a separate personality in the eyes of law. A proprietor and his proprietorship firm are one and the same thing in the eyes of law. For that matter, even a partnership firm is not a separate personality in the eyes of law; which is only a compendium of the persons who constitute the partnership firm. Therefore, the cheque of Associated Surgical Industries, a firm of the accused is not at all distinct from the accused himself for the reason that the firm Associated Surgical Industries has no separate legal personality under the law. The cheque of Associated Surgical Industries for all purposes is the cheque of the accused himself.
23.I shall now come to the aspect of the material alterations in the cheque. It is the case of the accused that the cheques were given to the complainant by him on 25.12.1992 and that the same were undated when handed over to the complainant. In other words, is was the stance of the accused that undated cheques were handed over to the complainant much prior to the date that is reflected on the face of the cheques. In this regard, the accused forcefully relied upon the statement on oath of CW1 [ENTITY] (complainant's witness) in his cross-examination. In his cross-examination CW1 [ENTITY] had stated that the two cheques had been handed over to the complainant before he had joined the complainant's Daryaganj Office in July 1993. Additionally, the accused also relied upon the testimony of DW3 [ENTITY], who was got examined by the defence as an handwriting expert. DW3 [ENTITY] filed his report which is Ex. DW3/A. As per his report, the disputed writings on both the cheques were not written by one and the same person [ENTITY]. That is as per his report, the date and the amount column on the cheques were not written by the one and the same person [ENTITY]. It was therefore forcefully contended by the accused that the complainant itself having filled up the date and the amount column in the cheques has committed material alterations in the cheques and therefore the chequee were void as per the provisions of [SECTION] [ACT]. The accused also heavily relied upon the judgment of Single Bench of Delhi High Court reported as [PRECEDENT] wherein it was held that insertion of a date on a cheque where there was no date amounts to a material alteration, as contemplated under [SECTION] of [ACT]. However, as we shall presently see another Single Bench of the Delhi High Court has disagreed with the view that was taken in BPDL Investments case (supra).
24. As per [SECTION] of the [ACT] until the contrary is proved it shall be presumed that every negotiable instrument bearing a date was made or drawn on such date. That is, there is a presumption that every negotiable instrument was drawn up on the date on which it purports to be drawn. And the only exception to [SECTION] [ACT] as contained in its proviso provides, "Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
25.Next, it has also to be borne in mind that [SECTION] of the [ACT] is subject to the provisions of [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT]. [SECTION] [ACT] talks of inchoate stamped instruments and states that if a person signs and delivers a paper stamped in accordance with the law and either wholly blank or have written thereon an incomplete negotiable instrument such person thereby gives prima facie authority to the holder thereof to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp. [SECTION] permits the holder of a negotiable instrument endorsed in blank to fill up the said instrument "by writing upon the endorsement, a direction to pay any other person as endorsee and to complete the endorsement into a blank cheque, and by doing so the holder does not thereby incur the responsibility of an endorser."
26. In the case of [ENTITY] vs. State and Anr. 2008 (2) JCC 169, dissenting with the view taken in BPDL Investments case (supra), it was observed:
"An extensive reference was made to the judgment of this Court in BPDL Investments (Pvt.) Ltd. which arose in the context of a summary suit in which an application for leave to defence was being considered. It was submitted in that case that two undated cheques had been issued by the defendant in favour of the plaintiff and before it was presented the date was filled up by the plaintiff and that this constituted a material alteration. Following the decision of the Andhra Pradesh High Court in [PRECEDENT], this Court held that there was no consent of the defendant to the alteration of the date and therefore in terms of [SECTION] of the [ACT] it was a material alteration. In the first place, this was not a case arising under [SECTION] [ACT] at all. Moreover, while adverting to [SECTION] of the Act, the Court did not notice that the said Section was subject to [SECTION], [SECTION], [SECTION] and [SECTION] [ACT]. These provisions permit the holder in due course of a negotiable instrument to fill up the material particulars without the said instrument being rendered void. [SECTION] contemplates an otherwise complete cheque which when presented for payment would be able to be honoured except for the material alteration. For instance there is an overwriting or cutting in the material particulars which has not been initialed by the drawer, then that would prevent the bank from passing the cheque for clearance. Therefore, this decision is also not of relevance to the facts on hand."
27. It was further observed in the [ENTITY] case (supra) that: "These provisions indicate that under the scheme of the [ACT] an incomplete cheque which is subsequently filled up as to the name, date and amount is not rendered void only because it was so done after the cheque was signed and delivered to the holder in due course." At para 20 of the judgment it was further observed: "A collective reading of the above provisions shows that even under the scheme of the [ACT] it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the [ACT] which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a "material alteration" for the purposes of [SECTION] [ACT]. What however is essential is that the cheque must have been signed by the drawer. If the signature is altered or does not tally with the normal signature of the maker, that would be a material alteration. Therefore as long as the cheque has been signed by the drawer, the fact that the ink in which the name and figures are written or the date is filled up is different from the ink of the signature is not a material alteration for the purposes of [SECTION] [ACT].
28.Therefore, I hold that mere filling up of the cheques in a different ink from the ink of the signature on the cheques is not at all a material alteration within the meaning of [SECTION] of [ACT]. I further hold that having given the cheque, albeit a blank one, the accused had given necessary authority to the holder thereof in terms of [SECTION] of the [ACT].
29.I shall now come to the next aspect of the present matter. It is stand of the accused that in the written notice dated 18.04.1994 issued by the complainant a sum of Rs. 19,00,000/- had been demanded. This document is exhibited as Ex. CW1/D4. The legal notice issued by the accused which formed the basis of the cause of action in the present case is dated 21.09.1994. This document is exhibited Ex. P-6. In the legal notice dated 21.09.1994 the complainant demanded a sum of Rs. 25,52,688. It was the stand of the accused that the complainant has demolished its own case by making contrary averments and thus the presumption attached to the cheques in question stands rebutted. At the first instance, in the case at hand, there is no discretion left with this Court but to draw the statutory presumptions as contained in the [ACT]. The complainant has placed on record the photocopies of the original ledger statement of the accounts which are exhibited as Ex. CW1/1 to Ex. CW1/11. Ex. P-8 is the statement of the accounts concerning the accused. Ex. P-8 does amply reflect that the liability was to the tune of Rs. 25,52,688. The previous written notice Ex. CW1/D4 has been held vide order dated 13.05.2003 to be no consequence insofar as the issue of giving cause of action to file the present complainant is concerned. This order has attained its finality. The only and the stray circumstance of the amount being Rs. 19,00,000/- in the written notice dated 18.04.1994 is not by itself sufficient to dislodge and rebut the presumption attached to the cheques in question. The parties had business dealings amongst themselves. They had a running account between themselves. And it certainly cannot be accepted that there was no liability at all. The mention of a different figure on the previous written notice by the complainant, which notice has already been held to be not good enough to initiate any cause of action, is not by itself, in my view sufficient to rebut the presumption attached to the cheque in question. This sole circumstance all by itself, falls short of rebutting the presumption.
30.During the course of arguments, reliance had been placed by the defence counsel upon the judgment of Andhra Pradesh High Court reported as [PRECEDENT]. In this case it has been held that where a cheque was given and subsequently the complainant company itself agreed for the entire amount to be paid in installments, the liability to pay lumpsum in lieu of the cheque is wiped out and in its place the terms of the agreement are constituted. On the other hand, the complainant forcefully argued that this judgment cannot be applicable to the facts and circumstances of this case. Ex. DW1/2 is the document whereby the parties had reportedly entered into an agreement. This document which is styled as "minutes of meeting" does not at all make any mention of the cheques in question. It does not even make any mention of the dishonour of the cheques and the impending dispute between the parties. On facts in my view this judgment cannot be totally applicable to the case at hand. Even otherwise, the accused himself has not abided by the terms of the minutes of meeting. And no payment was made as agreed upon in the minutes of meeting. In my view it would be wholly unjust to give advantage to the accused of the terms of the agreement which was never acted upon on behalf of the accused. In my considered view, the accused cannot be given advantage of the same for his own wrong/fault in complying with the terms of the agreement.
31.To conclude, in the case at hand, the accused has miserably failed to rebut and dislodge the statutory presumptions attached to the cheque in question. Therefore, this court holds accused person guilty for the offence under [SECTION] [ACT]. Accordingly, in view of the above discussion the accused [ENTITY] is convicted for the offence under [SECTION] [ACT]. It is ordered accordingly.
ANNOUNCED IN THE OPEN COURT [ENTITY] th ON 19 OCTOBER, 2010 [ENTITY]