IN THE COURT OF MS. [ENTITY] METROPOLITAN MAGISTRATE08 ( [ACT]) DWARKA COURTS, NEW DELHI Ct. [PRECEDENT] Sh. [ENTITY], Prop. Mahlakshmi Board & Plywood House, WZ1A, Ganesh Nagar, Tilak Nagar Flyover, Main Najafgarh Road, New Delhi110018 Complainant Versus Sh. [ENTITY] Prop. Home Treasures D393, Defence Colony, New Delhi110037 Also At: Material Delivery Address (Factory/Works At): Sh. [ENTITY] Prop. Home Treasures Khasra Number 380, Near Traffic Light, Opposite Metro Pillar no. 116, Landmark - Opposite Corporation Bank M. G. Road, Ghitroni, New Delhi 110030 Accused Ct. [PRECEDENT] Sh. [ENTITY] vs. Sh. [ENTITY] Page No.1 /22 Date of Institution : 31.07.2015 Plea of the accused : Pleaded Not Guilty Date of Reserving Judgment : 23.11.2019 Date of Judgment : 25.11.2019 Sentence or final Order : Conviction JUDGMENT
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, I shall decide the complaint case U/[SECTION] of the [ACT] (hereinafter referred as the [ACT]) filed by the complainant Sh. [ENTITY] against the accused Sh. [ENTITY].
COMPLAINANT'S VERSION
2. The case of the complainant in a nutshell is that he is in the business of selling of plywood, sunmica, moulding etc. The accused is/was also in the business of furniture. The accused approached the complainant for supply of plywood as per his requirements after which the complainant supplied plywood etc. at accused's factory on various dates and also raised various invoices against the goods sold. Initially, the accused kept on making Ct. [PRECEDENT] account payments by way of NEFT. However, during the month of January and February 2015, four supplies were made to the accused vide invoices no. 179,182,185,1[SECTION] dated 15.01.2015, 01.02.2015, 14.02.2015 and 19.02.2015 respectively, in pursuance of which, the accused issued four postdated cheques against each invoice raised. The cheques i.e. the cheques in question raised were bearing no. 589290 dated 15.02.2015 for a sum of Rs. 1,47,796/, cheque bearing no. 589291 dated 04.03.2015 for a sum of Rs. 1,45,323/, third cheque bearing no. 589293 dated 17.03.2015 for a sum of Rs. 1,46,534/ and fourth cheque bearing no. 589294 dated 21.03.2015 for a sum of Rs. 1,46,802/ all drawn on Punjab and Sind Bank, DDA shopping Complex, defence colony, New Delhi. After issuing the said post dated cheques, accused requested the complainant to not present the same for sometime and he further kept on delaying the payment till second week of May 2015. After waiting for almost 4 months from the date of dispatch of material, the complainant had deposited the aforesaid cheque no. 589290 15.02.2015 with his banker i.e. State bank of Hyderabad, Vikaspuri, New Delhi but the same was dishonoured vide returning memo dated 16.05.2015 with the remarks "Funds insufficient". On 01.06.2015, the complainant further deposited the remaining three cheques and the same were also dishonoured vide memo dated 02.06.2016 with the remarks "Funds insufficient". When despite several assurances the accused did not make the payment and started avoiding the complainant, the intention of the accused to not make the payment became clear and accordingly, the Ct. [PRECEDENT] complainant issued a legal notice dated 11.06.2015 to the accused, which was served upon the accused despite which he failed to make the payment.
3. When the accused failed to repay the complainant despite receipt of legal notice, the intention of the accused became clear and accordingly, the present case has been filed by the complainant for prosecution of the accused [ENTITY] for the offence under [SECTION] of the [ACT].
4. After complaint was filed, the complainant examined himself in pre summoning evidence and after hearing the Ld. Counsel for the complainant and considering the entire material and documents on record, summons were issued against the accused by the Court vide order dated 07.08.2015. On appearance of the accused a separate notice U/[SECTION] of the [ACT] (herein after said "the Code") dated 10.08.2017 was given to the accused to which he pleaded not guilty and claimed trial. Thereafter, an opportunity was granted to the accused by the court for cross examination of the complainant's witnesses vide order dated 13.12.2017.
COMPLAINANT'S EVIDENCE
5. The complainant [ENTITY] got himself examined as CW1 & tendered his evidence by way of affidavit Ex. CW1/A reiterating the contents of the complainant. The complainant also relied upon the Ct. [PRECEDENT] documents Ex. CW1/1 to CW1/12 (colly.):
1. Ex.CW1/1 (colly) i.e. invoices raised.
2. Ex.CW1/2 to Ex. CW1/5 i.e. cheques in question.
3. Ex.CW1/6 to Ex. CW1/9 i.e. cheque returning memos.
4. Ex.CW1/10 i.e. the legal notice.
5. Ex.CW1/11(colly) i.e. postal receipts.
6. Ex.CW1/12 (colly) i.e. delivery reports.
6. CW1 was then cross examined by the Ld. Counsel for the accused. No other witness was examined by the complainant and CE was closed vide order dated 14.10.2019.
STATEMENT OF ACCUSED U/[SECTION] OF THE CODE
7. The statement of the accused [ENTITY] was recorded U/[SECTION] of the Code in which all the incriminating evidence along with exhibited documents were put to him. The accused denied having any liability towards the complainant. He averred that he did not know how the complainant came in the possession of cheques Ex. CW1/2 and Ex. CW1/3 but alleged that the cheques Ex.CW1/4 and Ex. CW1/5 were given as security by him to the complainant which has been misused by the complainant. He further submitted that he had signed upon cheques Ct. [PRECEDENT] Ex.CW1/4 and Ex. CW1/5 but not on cheques Ex.CW1/2 and Ex. CW1/3. The accused opted to not lead DE and accordingly the matter was fixed for final arguments.
FINAL ARGUMENTS
8. Final arguments were addressed on behalf of both the parties. During arguments, Ld counsel for complainant alleged that the accused has acknowledged all the bills/ invoices raised by the complainant and has thus acknowledged his liability towards the complainant. It is averred that the accused has been unsuccessful in rebutting the presumption against him and therefore, is liable to be convicted of the offence under [SECTION] [ACT]. On the other hand, Ld. Counsel for the accused has argued that there are material contradictions in the stand taken by the complainant during the trial. He further claimed that from the cross examination of the complainant, the accused has been successful in rebutting the presumption against him. It is alleged that the list of invoices mentioned in the complaint against which the goods were allegedly supplied to the accused creates a doubt in the veracity of the complainant's version as the invoice number goes on to show that the only goods sold by the complainant were sold to the accused which is highly improbable. It is further argued that the complainant has also failed to clarify as to why he has not taken any steps for the recovery of the other payments due from the accused since the list of Ct. [PRECEDENT] invoices filed by the complainant shows that there were other invoices also against which purportedly no payment is made by the accused to the complainant. It is also contended that as per the complainant's own version during his crossexamination the accused sometimes used to collect the goods himself. However, even then there is no receiving in any of the invoices filed. It is argued that in the usual course of such businesses in Delhi and other parts of the country, the payments are also made in cash and whenever the accused himself procured the delivery of the goods, the payments were made in cash which fact the complainant has concealed from the court. It is also claimed that the fact that the cheque was presented on the last date of its validity and the fact that before the legal notice was sent, as per the complaint itself a payment was made by the accused to the complainant by way of NEFT creates further doubt in the story of the complainant. It is alleged that the signatures on the cheques Ex. CW1/2 and Ex. CW1/3 are on the face of it different than the signatures on the cheque Ex. CW1/4 and Ex. CW1/5 and do not belong to the accused. It is further contended that the flow of writing on the invoices is same as the signatures on the cheque Ex. CW1/2 and Ex. CW1/ 3 which manifests that the said cheques have been signed by the same person who has filled the invoices and the said signatures do not belong to the accused. It is argued that the complainant has forged the signatures on the cheque Ex. CW1/2 and Ex. CW1/ 3 and has also misused the PDC security cheques given by the accused to him. It is further averred that in a criminal case the complainant Ct. [PRECEDENT] has to prove his case beyond all reasonable doubts and since the complainant has failed to discharge the burden of proof upon him beyond all reasonable doubts, the accused is entitled to be acquitted.
9. I have heard Ld. Counsels for both the parties and have perused the entire record of the case file. Before proceeding further it is imperative for me to go through the relevant provisions of law.
[SECTION] of the [ACT] provides that:
"Dishonour of cheque for insufficiency, etc, of funds in the account:Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in while or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to Ct. [PRECEDENT] two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless
(a) the 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;
(b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation:For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
Ct. [PRECEDENT] APPRECIATION OF EVIDENCE IN THE LIGHT OF THE INGREDIENTS OF [SECTION] OF THE [ACT] AND THE DEFENCE RAISED BY THE ACCUSED
10. It is not disputed by the accused that the cheques in question Ex. CW1/4 and Ex. CW1/5 are drawn on the account maintained by him. Further, the accused has also not disputed his signatures on the said cheque in question. Further the presentation, dishonour of the said cheques in question and the cheque returning memo Ex. CW1/7 has also not been challenged by the accused. Therefore, in light of the evidence on record it stands duly proved that the cheques in question Ex. CW1/4 and Ex. CW1/5 is drawn on the account maintained by the accused and the same also bears his signatures. Further, it also stands proved that the cheques in question Ex. CW1/4 and Ex. CW1/5 got dishonoured vide cheque returning memo Ex. CW1/7 with the reasons "Funds Insufficient". The accused has, however, denied his signatures on the cheques Ex. CW1/2 and Ex. CW1/3. He has further averred that he has no knowledge as to how the complainant obtained the possession of the said cheques.
11. A careful perusal of court record shows that the apart from making bland assertions no independent oral or documentary evidence has been led by the accused to prove the said fact. The accused has even not moved an application for examination by a handwriting expert, throughout the trial of Ct. [PRECEDENT] the case, to get the signatures on the cheque compared with his own signatures. A report favourable to the accused would have easily fortified his claim that the abovesaid cheques in question does not bear the signatures of the accused. The failure on part of the accused to take such recourse compels this court to raise an adverse inference against him. Furthermore, when the accused has failed to provide a plausible explanation of the means by which the complainant procured the said cheques, the contention of the accused of not handing over the said cheques to the complainant and of not signing the same become meritless. Therefore, this court deems it fit to hold that the accused has failed to prove that the cheques Ex. CW1/2 and Ex. CW1/3 are not signed by him and are not handed over by him to the complainant. The accused has further failed to dispute the cheque returning memos Ex. CW1/6 and Ex. CW1/7 on account of which the fact of dishonour of the cheques Ex. CW1/2 and Ex. CW1/3 stands proved.
12. Now coming to the issue whether the accused has been served with the legal demand notice Ex. CW1/10 by the complainant. The accused at the time of framing of the notice under [SECTION] of the Code and also in his statement U/[SECTION] of the Code has denied receiving the legal demand notice. It is pertinent to mention here that throughout the trial, the accused has never challenged the addresses mentioned in the legal demand notice Ex. CW1/10 and on the Regd. AD receipts. Further, the bailable warrants were served upon the accused at the one of the addresses mentioned in the Ct. [PRECEDENT] complaint and legal demand notice. Therefore, there remains no doubt that the legal demand notice Ex. CW1/10 has been sent by the complainant at the correct address of the accused through speed post. It is trite to say that when there is service of notice by post on the correct address of the accused which evidently has taken place in the present case the same would amount to proper service. Otherwise, a trickster cheque drawer would deny receiving the legal demand notice by adopting different strategies and escape from legal consequences of [SECTION] of the [ACT]. It was for the accused to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the notice and the postal receipt is incorrect or that the letter was never tendered to him. Therefore, there is always a presumption that the legal demand notice has been duly served upon the accused unless some concrete evidence in rebuttal is adduced by the accused to establish that the legal demand notice has not been served upon him which is totally absenting in the present case. Moreover, in the present case, evidently the bailable warrants have been served upon the accused at one of the addresses mentioned in the complaint and the legal demand notice and the accused has appeared in the court in pursuance of the process issued by the court. Even otherwise, in [PRECEDENT], the Hon'ble Apex Court has held as under;
"17. It is also to be borne in mind that the requirement of giving of Ct. [PRECEDENT] notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under [SECTION] the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under [SECTION] of the Act, cannot obviously contend that there was no proper service of notice as under [SECTION], by ignoring statutory presumption to the contrary under [SECTION] of the [ACT] and [SECTION] of the [ACT]. In our view, any other interpretation of the proviso would defeat the very object of the legislation "
13. Therefore, in light of the facts that one of the address mentioned on the legal demand notice is the same address on which the bailable warrants were served upon the accused, the address on the same has not been denied by the accused throughout the trial and the same very address has been furnished by the accused on his bail bonds, it is safe to adjudge that the legal demand notice was served upon the accused.
Ct. [PRECEDENT]
14. Now coming to the issue whether the accused has been able to rebut the presumption raised against him by application of [SECTION] [ACT], it is a trite law that "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 [ACT] has to be raised by the Court in favour of the complainant. The presumption referred to in [SECTION] [ACT] is a mandatory presumption and not a general presumption, but the accused is entitled to rebut the said presumption. What is required to be established by the accused is different from each case under given circumstances. But the fact remains that a mere plausible explanation is not expected from the accused and it must be more than a plausible explanation by way of rebuttal evidence. In other words, defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court" ([PRECEDENT]. Therefore, it is clear that mere blank assertions on behalf of the accused are not sufficient to rebut the presumption mentioned in [SECTION] [ACT]. A probable defence must be raised by him.
15. In the case at hand, the complainant alleges that he and the accused had business transactions between them in which the complainant used to provide plywood and other goods to the accused who used to make payment to the complainant, sometimes by way of NEFT and sometimes by Ct. [PRECEDENT] issuing of cheques. It is alleged that to make payment of the purchases made with respect to four invoices numbered as 179,182,185 and 1[SECTION] the cheques in question were issued by the accused in favour of the complainant which were dishonoured on presentation. It is urged that even then the payment was not made by the accused on account of which the present case has been instituted against the accused. It is the case of the complainant that the cheques were given by the accused to him after filing the entire details on the same as per his liability.
16. U/[SECTION] [ACT], it is presumed that the cheque was issued in favour of the complainant in discharge of any debt or liability. Further, [SECTION] [ACT] presumes existence of consideration against which the cheque is issued. Both these presumptions are rebuttable presumptions of law and as discussed above, the burden of rebutting which is upon the accused.
Further, as far as the extent of burden of proof upon the accused to rebut the presumption is concerned, it is settled that the accused may not even take the stand as a witness to rebut the said presumption and may rely upon the evidence of the complainant to rebut the same. The burden of proof upon the accused to rebut the presumption is only by preponderance of probabilities. Nevertheless, the accused has to raise a probable defence by creating doubts in the story of the complainant. This he can do even from the crossexamination of the complainant.
Ct. [PRECEDENT]
17. In the case at hand, it was for the accused to prove by preponderance of probabilities that he had not issued the cheques in question towards any liability of Rs. 5,86,455/ to the complainant. The defence of the accused in the instant case primarily has been two fold. He first alleges that he had not handed over the cheques in question bearing no. 589290 and 589291 to the complainant and has also not signed upon the said cheques. He expressed his ignorance as to the manner in which the complainant acquired the possession of the said cheques. The second defence of the accused is with respect to the cheques bearing no. 589293 and 589294 with respect to which he alleges that the said cheques were merely given as security and the entire payment has been made by way of cash, cheque and NEFT. In his statement under [SECTION] [ACT], he claimed having the cash receipts also to prove the same.
18. Now with respect to the contention of the accused relating to the cheques exhibited as Ex. CW1/2 and Ex. CW1/3, as has been discussed above, the accused has failed to prove by leading of any evidence that the signatures on the said cheques are not his and has also failed to demonstrate the way in which the complainant procured the said cheques. During arguments, ld. counsel for accused alleged that the flow of the writing on the signatures and the writing on the particulars on the invoices filed are apparently the same which clearly shows that the signatures on the said cheques have been forged by the same person who has filled the Ct. [PRECEDENT] particulars on the invoices. Pertinently, the reason for dishonour mentioned in the returning memos relating to the above said cheques is shown to be "Funds Insufficient". No doubt the court has powers under [SECTION] Indian [ACT], 1[SECTION]2 to compare the handwriting or signatures on documents and give a finding thereto. However, the courts are no experts and finding as to difference or similarity of signatures can be given only when on the face of it, it so appears. In the present case, the comparison of the handwriting on the invoices and the signatures on the cheque Ex. CW1/2 and Ex. CW1/3 do not on the face of it appear to be similar and therefore, it cannot be held that both the said writing are the same. Furthermore, the complainant during his crossexamination as well as in his complaint has specifically averred that cheques in question including the above said two cheques were given by the accused after filling all the particulars in the same. The accused could have easily refuted the said version of the complainant by seeking opinion of a handwriting expert, which evidently the accused has failed to do. In the absence of any such means adopted by the accused to prove his version, the possibility that the accused intentionally may have affixed a different signatures on the said cheques to dupe the complainant can also not be denied. The fact that the accused has even not filed a criminal case of forgery against the complainant reporting the misuse of his cheque before or even after the filing of the present case, further weakens this defence of the accused.
Ct. [PRECEDENT]
19. Another argument put forth by the Ld. counsel for the accused is that the invoices filed on record are forged as the proximity of the number of invoices hints that the complainant was only having business with the accused which is improbable. Further, it is alleged that even the facts that the complainant has not made any attempts to recover the money for the other unpaid invoices, the cheques were presented on the last date of their validity, there is no receiving on the invoices placed on record and that the complainant has failed to show what steps he has taken to recover the sum due against the other invoices, creates suspicion in the story of the complainant. Now when at no stage during the trial of the case, the accused has denied the invoices against which the cheques in question were issued and when there is not even an iota of suggestion on behalf of the accused to the complainant during his crossexamination about the genuineness of the said invoices, the fact that there is no receiving of the accused on the same or the proximity of the invoice numbers in no way lends any assistance to the defence of the accused. Moreover, the complainant during his cross examination specifically averred that he has filed the present case only with respect to the cheques issued against the invoices mentioned by him and the authenticity of the said invoices could not be assailed by the accused. Therefore, the mere fact that the complainant has not mentioned about the payment status of other invoices filed by him does not in the humble opinion of this court discredits his version. Accordingly, the said arguments of the accused are dismissed being baseless and meritless. Mere bland Ct. [PRECEDENT] averments on behalf of the accused does nothing to support his case. Further, a bare reading of the crossexamination of the complainant CW1 shows that the accused has failed to impeach his testimony and discharge the onus of proof, even by preponderance of probabilities, that lied upon him by application of the presumption under [SECTION] [ACT].
20. During arguments, it was also averred by the Ld counsel for accused that in the usual course of business between the parties and in the usual course of transactions such as the present case, payments are made by a buyer even in cash. It is alleged that the accused has made the entire payment against the invoices issued in cash to the complainant and therefore, he has no liability against the complainant. Now this argument creates a blatant inconsistency in the defence of the accused when on the one hand he alleges that the invoices itself are dubious to rely upon and on the other hand he contends that the entire payment to the complainant was made in cash. Nevertheless, even if for the sake of arguments this defence of the accused is considered, he has miserably failed to prove the same by leading of any oral or documentary evidence, or even from the cross examination of the complainant.
21. Moving further to the next contention of the accused of giving the cheques exhibited as Ex. CW1/4 and Ex. CW1/5 as security to the complainant, it is pertinent to spell here the decision of the Hon'ble apex Ct. [PRECEDENT] court in the judgement titled as [PRECEDENT], wherein it has been very categorically held that, "The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under [SECTION] that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of [SECTION] of the [ACT]. A meaningful reading of the provisions of the [ACT] including, in particular, [SECTION], [SECTION] and [SECTION], makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of [SECTION] would be attracted. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under [SECTION] of the [ACT], in the absence of any cogent evidence to show that Ct. [PRECEDENT] the cheque was not issued in discharge of a debt."
In the present case, apparently no evidence has been led by the accused to prove otherwise. The accused alleges giving of a blank signed security cheque to the complainant. While the complainant at the time of his cross examination, specifically averred that the amount mentioned in the cheque in question had been filled by the accused only. However, even then no application for examination by a handwriting expert had been put by the accused at any stage. Further, even no police complainant has been shown to have been filed to report the alleged misuse of the cheque. It is highly improbable that a person would give a blank signed security cheque to another and thereafter would not take any steps to report the misuse of the same. Furthermore, throughout the trial of the case, the accused has averred that he has made the payment of his dues to the complainant by way of cash, cheque as well as by way of NEFT. However, no evidence has been adduced by the accused to prove the same. The accused has even shied away from putting his version to test by subjecting himself to cross examination by the opposite side. Therefore, even this contention of the accused has no force.
22. In the absence of any probable defence being led by the accused to rebut the presumption under [SECTION] [ACT] and in the light of the aforesaid provision of the law & judgments this Court deems it fit to hold that the accused has failed to rebut the presumption against Ct. [PRECEDENT] him u/[SECTION] [ACT], even by preponderance of probabilities. The accused has failed to discharge the burden of proof upon him either by producing his own evidence or by shaking the credibility of the complainant from his crossexamination. On failure of the accused to discharge his burden, it is fit to hold that the complainant has been able to prove the offence under [SECTION] of [ACT] against the accused beyond the shadow of reasonable doubts. The judgment relied upon by the learned counsel for the accused does not support his case. Since all the ingredients of the [SECTION] [ACT] have been satisfied, accordingly, accused [ENTITY] is hereby convicted for the offence u/[SECTION] of the [ACT].
23. Let the convict be heard on the point of sentence.
24. Copy of judgment be given to convict, free of cost.
25. This Judgment contains 22 pages. Every Page of this Judgment has been signed by me. Digitally signed UDITA by [ENTITY] Date:
[ENTITY] 2019.11.25 17:57:04 +0530 Announced in the open Court ([ENTITY]) on 25th November 2019 MM ([ACT]08)/Dwarka Courts New Delhi Ct. [PRECEDENT]