[CASE NUMBER]. [ENTITY] Vs. [ENTITY] IN THE COURT OF [ENTITY] METROPOLITAN MAGISTRATE DISTRICT-NORTH, TIS HAZARI COURTS, DELHI [ENTITY] Date of institution of case : 09.01.2004 Vs Date of decision of case : 30.07.2012 [ENTITY] Unique ID No.02401R5352532004 CC.No. 196/1/12 P.S.- Daryaganj U/S 138 [ACT] JUDGMENT
1. Date of the commission of offence : 16.12.2003 2. Name & address of the complainant : Sh. [ENTITY] of M/s Jinraj Paper Udyog 2/26, Ansari Road, Darya Ganj, Delhi-110002 3. Name & address of the accused : Sh. [ENTITY] Proprietor of M/s Dinesh Associates Gali Lohe Wali, Behind Namkeen Shop Charkhewalan, Chawri Bazar, Delhi-6 4. Offence complained of : U/[SECTION] of [ACT] 5. Plea of accused & examination if any : Pleaded not guilty. Examination U/[SECTION] [ACT] Defence evidence was not led 6. Final order : Convicted 7. Date of such order : 30.07.2012 [CASE NUMBER]. [ENTITY] Vs. [ENTITY] BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. By way of the present judgment, this court shall decide the complaint case under [SECTION] [ACT] (as amended upto date) filed by the complainant Sh. [ENTITY] against the accused Sh. [ENTITY].
2. Brief facts necessary for the disposal of the present case as per the allegations in the complaint, are as follows :-
That the complainant is the proprietor of M/s. Jinraj Paper Udyog and respondent is the sole proprietor of M/s. Dinesh Associates. That during the course of business of paper, the complainant supplied goods as per the requirements and orders made by the accused from time to time for which various bills were drawn. The accused has issued numerous cheques for and against the aforesaid liability and the goods supplied to him. That the present complaint is with regard to cheques bearing no.633325 dated 17.11.2003 for Rs.10,004/-, no. 633326 dated 18.11.2003 for Rs.10,005/- ,no.633327 dated 19.11.2003 for Rs.10,006/- and no. 633328 dated 19.11.2003 for Rs. 10,007/- Indian Overseas Bank, Cannaught Palace, Delhi in favour of complainant's firm.
However, on presentation, the said cheques were returned dishonored vide memo dated 20.11.2003 with remarks "Account Closed". Thereafter, the complainant sent a legal demand notice dated 29.11.2003 by Registered AD post and UPC to the accused thereby by demanding the payment in respect of the said cheque within 15 days of the receipt of the said notice. It is alleged that accused has failed to pay any sum in response to the legal notice of demand. As a result of which the complainant filed the instant complaint for prosecution of the accused u/[SECTION] of the [ACT].
It is worth mentioning that the complainant has filed 28 complaint cases based on the same version wherein most of proceedings were conducted jointly against the present accused in respect of 84 different cheques.
3. After considering the entire material and documents on record, summons were issued my Ld. Predecessor against the accused for the offence punishable u/[SECTION].
[ENTITY] Vs. [ENTITY] 138 of the [ACT]. On appearance of the accused, a separate notice u/[SECTION] of the [ACT] was served upon the accused to which accused pleaded not guilty and claimed trial.
4. In order to prove the case, Sh. [ENTITY], complainant got himself examined as CW1 by filing his affidavit by way of evidence EX. CW-1/A and relied upon the documents which were duly exhibited. Sh. [ENTITY], complainant was cross examined by learned counsel for the accused. Thereafter, the complainant evidence was closed.
5. Subsequent to this the statement of accused was recorded under [SECTION] of the [ACT] in which all the incriminating evidence alongwith exhibited documents were put to the accused Sh. [ENTITY]. It is stated by the accused that the cheques in question bear his signatures, however other particulars were not filled by him and the cheques were not issued for any legally recoverable liabilities but same were issued as advance cheques/ security againt the delivey of goods. Accused [ENTITY] further stated that the complainant presented the said cheques without his consent and he did not receive any legal notice. Accused [ENTITY] further stated that the present complaint was filed to extrot money and it is a false case.
6. An opportunity for leading the Defence evidence was given to accused but the accused did not lead any evidence in his defence. Thereafter, the defence evidence was closed on the statement of accused.
7. The court heard the arguments advanced by the learned counsels for both the parties at length and perused the entire record of the case file as well as evidence on record.
8. It would be appropriate to quote the Hon'ble Supreme Court in [PRECEDENT]:
[CASE NUMBER].
[ENTITY] Vs. [ENTITY] "Ordinarily in cheque bouncing cases, what the courts have to consider is whether the ingredients of the offence enumerated in [SECTION] of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by [SECTION] of the Act."
9. In order to bring home the conviction of the accused, the complainant has to prove the ingredients of the offence complained of. The main ingredient of [SECTION] of the [ACT] are as follows:
i. The accused issued cheque on an account maintained by him with a bank.
ii. The said cheque has been issued in discharge of any legal debt or other liability.
iii. The cheque has been presented to the bank within the period of six months from the date of the cheque or within the period of its validity.
iv. When the aforesaid cheques were presented for encashment, the same were returned unpaid/dishonoured. v. The payee of the cheque issued a legal notice of demand within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. The drawer of the cheque failed to make the payment within 15 days of the receipt of the aforesaid legal notice of demand.
If the aforesaid ingredients are satisfied then the drawer of the cheque shall be deemed to have committed an offence punishable u/[SECTION] of the [ACT].
Offence under [SECTION] of [ACT] is a technical offence, which involves a reverse onus clause and the reverse onus can be rebutted by raising a mere preponderance of probability.
[CASE NUMBER].
[ENTITY] Vs. [ENTITY]
10. Discussion on Legal provisions:
There are some mandatory presumptions of law arising in favour of the complainant. The same may be summarized as under:
10.1. [SECTION] of [ACT] reads as under:
"118. Presumptions as to negotiable instruments-
Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;"
Presumptions are:
1. Cheque was drawn for consideration;
2. Cheque was transferred for consideration;
3. Cheque was accepted for consideration.
10.2. [SECTION] of [ACT] reads as under:
"[SECTION]. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in [SECTION] for the discharge, in whole or in part, of any debt, or other liability."
Presumptions are:
1. Holder of the cheque has lawfully received the cheque, meaning thereby that the holder was in lawful possession of the cheque;
2. The cheque was given in discharge of any debt or liability;
3. Legally enforceable debt or liability was in existence at the time of issuance of the cheque;
4. The cheque was of the nature as described in [SECTION];
5. The cheque was drawn by the person who was maintaining the account pertaining to the cheque;
[CASE NUMBER].
[ENTITY] Vs. [ENTITY]
6. Amount of money mentioned in the cheque was intended to be given;
10.3. [SECTION] of [ACT] reads as under:
"146. Bank's slip prima facie evidence of certain facts- The court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
Presumptions are:
1. The cheque has been dishonoured;
2. The cheque has been so dishonoured for the reason mentioned in the memo.
10.4. [SECTION], [ACT] reads as under:
"27. Meaning of service by post -
Where any (Central Act) or Regulation made after the commencement of this Act authorizes of requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Presumptions are:
i. Letter has been served upon the accused; ii. The same is served within the normal reasonable time; iii. The content of the letter was within the knowledge of
the accused. (see a three judges bench decision of [CASE NUMBER].
[ENTITY] Vs. [ENTITY] Hon'ble Supreme Court if India in [PRECEDENT]).
In this respect, a three judges bench of Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed and Another (2007) 6 SCC 555 has held that:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of [ACT], 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] of 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 required 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. As observed in [ENTITY] case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of [SECTION] of the Act.
18. In the instant case, the averment made in the complaint in this regard is: Though the complainant issued lawyers notice intimating the dishonour of cheque and demanded payment on [CASE NUMBER].
[ENTITY] Vs. [ENTITY] 4.8.2001, the same was returned on 10.8.2001 saying that the accused was out of station. True, there was no averment to the effect that the notice was sent at the correct address of the drawer of the cheque by registered post acknowledgment due. But the returned envelope was annexed to the complaint and it thus, formed a part of the complaint which showed that the notice was sent by registered post acknowledgment due to the correct address and was returned with an endorsement that the addressee was abroad. We are of the view that on facts in hand the requirements of [SECTION] of the Act had been sufficiently complied with and the decision of the High Court does not call for interference."
On mere explanation, denial and minor inconsistencies:
11. Without any doubt, in a criminal case, the prosecution has to stand on its own lags. No blemishes in the story of the accused will give a right to the complainant to claim that he has establish his case. Even accused can always rely upon the material and circumstances brought on record by the complainant. However, there must be something more than a bare denial or a mere explanation.
11.1. It is a settled law that a mere denial of passing off consideration is not sufficient. In [PRECEDENT] it has been held that:
"Upon consideration of various judgments as noted herein above, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118
(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-
existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbably or [CASE NUMBER].
[ENTITY] Vs. [ENTITY] doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under [SECTION] in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist."
11.2. Further, a mere explanation given by the accused is also not sufficient. In case titled [PRECEDENT] decided on 21.09.2010, Hon'ble High Court of Delhi has observed that:
"3. The appellant had taken a stand that no reply to the notice of legal demand was sent by the respondent, instead, envelopes with [CASE NUMBER].
[ENTITY] Vs. [ENTITY] blank sheets in it were sent by the respondent. In her examination under [SECTION] [ACT] she did not deny issuance of cheques, but, took a defence that cheque were issued as security for seeking loan but no loan was advanced and the cheques were therefore without consideration. The learned MM observed that conviction under [SECTION] of [ACT] cannot be made acting on evidence of complainant and considering the presumption under [SECTION] of [ACT]. The complainant has to prove beyond reasonable doubt the debt or liability of the accused. Learned MM observed that complainant had not specified the date of giving loan and a reasonable man would remember the date of giving substantial sum of money as loan to other and this blissful forgetness of the date by the complainant raised doubt about the liability of the accused, more so, in view of the stand taken by the accused that the cheques were issued as security and the same were never returned.
5. It must be borne in mind that the statement of accused under [SECTION] [ACT] or under [SECTION] [ACT] is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under [SECTION] [ACT] or 313 [ACT] cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful. In the present case, the accused in his statement stated that he had given cheques as security. If the accused wanted to prove this, he was supposed to appear in the witness box and testify and get himself subjected to cross examination. His explanation that he had the cheques as security for taking loan from the complainant but no loan was given should not have been considered by the Trial Court as his evidence and [CASE NUMBER].
[ENTITY] Vs. [ENTITY] this was liable to be rejected since the accused did not appear in the witness box to dispel the presumption that the cheques were issued as security. Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under [SECTION] [ACT], that the cheques were issued as security, does not amount to proof. Moreover, the Trial Court seemed to be obsessed with idea of proof beyond reasonable doubt forgetting that offence under [SECTION] of [ACT] was a technical offence and the complainant is only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence.
7 The Trial Court in this case turned a blind eye to the fact that every accused facing trial, whether under [SECTION] of [ACT] or under any penal law, when charged with the offence, pleads not guilty and takes a stand that he has not committed the offence. Even in the cases where loan is taken from a bank and the cheques issued to the bank stand dishonoured, the stand taken is same. Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under [SECTION] of [ACT]. If mere statement under [SECTION] [ACT] or under [SECTION] [ACT] of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under [SECTION] of [ACT], the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan [CASE NUMBER].
[ENTITY] Vs. [ENTITY] was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/[SECTION] [ACT]. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
11.3. In [PRECEDENT] (Supra), the case of the accused was that of a lost cheque. However initially, the High Court dealing with matter had held that:
'6. Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under [SECTION] of the [ACT] has to be raised by the Court in favour of the complainant. The presumption referred to in [SECTION] of the [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 in order to rebut the presumption 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, the defence raised by way of rebuttal evidence must be probable and capable of being accepted by the Court. The defence raised by the accused was that a blank cheque was lost by him, which was made use of by the complainant. Unless this barrier is crossed by the accused, the other defence raised by him whether the cheque was issued towards the hand loan or towards the amount spent by the complainant need not be considered. ' [CASE NUMBER].
[ENTITY] Vs. [ENTITY] The judgment of conviction upon the above basis recorded by the Hon'ble High Court was finally upheld by the Hon'ble Supreme Court in [PRECEDENT] (supra). It was further held in [PRECEDENT] (supra) as under:
"Coming back to the facts in the present case, we are in agreement with the High Court's view that the accused did not raise a probable defence. As noted earlier, the defence of the loss of a blank cheque was taken up belatedly and the accused had mentioned a different date in the 'stop payment' instructions to his bank. Furthermore, the instructions to 'stop payment' had not even mentioned that the cheque had been lost. A perusal of the trial record also shows that the accused appeared to be aware of the fact that the cheque was with the complainant. Furthermore, the very fact that the accused had failed to reply to the statutory notice under [SECTION] of the Act leads to the inference that there was merit in the complainant's version. Apart from not raising a probable defence, the appellant- accused was not able to contest the existence of a legally enforceable debt or liability. The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complaint discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction-expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant. "
[CASE NUMBER].
[ENTITY] Vs. [ENTITY] On requirement to establish the fact within special knowledge:
11.4. In [PRECEDENT] decided on 28.07.2010, Hon'ble High Court of Delhi has observed that:
"9. An argument is raised that the accused, under [SECTION] of [ACT], has a right of silence in a criminal trial and therefore he cannot be forced to disclose his defence. This argument is misconceived in view of [SECTION] of [ACT].
Since an offence under [SECTION] of [ACT] is technical in nature and defence which an accused can take are inbuilt, like the cheque was given without consideration, the accused was not Director at that time, accused was a sleeping partner or a sleeping Director, cheque was given as a security etc. etc., the onus of proving these defences is on the accused alone, in view of [SECTION] of [ACT].
Since the mandate of Legislature is trial of such cases in a summary manner, the evidence already given by the complainant by way of affidavit is sufficient proof of the offence and this evidence is not required to be given again in terms of [SECTION] of [ACT] and has to be read during the trial. The witnesses i.e. the complainant or other witnesses can be recalled only when accused makes an application and this application must disclose the reason why accused wants to recall the witnesses and on what point witness is to be cross examined. One must not forget that the offence under [SECTION] of [ACT] is not of the kind of offence as in [ACT] where the State prosecutes a person for offence against the society. The offence under [SECTION] of [ACT] is an offence in the personal nature of the complainant and it is an offence made under [ACT] so that the trust in commercial transactions is not destroyed because of the dishonour of cheques. When it is within the special knowledge of the accused as to why he is not to face [CASE NUMBER].
[ENTITY] Vs. [ENTITY] trial under [SECTION] [ACT], he alone has to take the plea of defence and burden cannot be shifted to complainant. There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused. I, therefore, consider that the proper procedure to be followed by MM is that soon after summoning, the accused must be asked to disclose his defence & his plea should be recorded. Where an accused takes no defence and simply says "I am innocent", there is no reason for the MM to recall the complainant or witnesses during summary trial and the evidence already given by the complainant has to be considered sufficient and the trial court can ask the accused to lead his evidence in defence on the plea of innocence as the evidence of the complainant is already there. In a summary trial, a complainant or his witness cannot be recalled in the court for cross examination only for the sake of pleasure. Once the complainant has brought forward his case by giving his affidavit about the issuance of cheque, dishonour of cheque, issuance of demand notice etc., he can be cross examined only if the accused makes an application to the court as to on what point he wants to cross examine the witness(es) and then only the court shall recall the witness by recording reasons thereto."
12) Reasons for Judgment A) Limitation, Issuance & Dishonour Aspects:-
Perusal of the complaint, affidavit and all the relevant documents reveals that the presentation of cheque, the issuance of legal notice and filing of complaint have [CASE NUMBER].
[ENTITY] Vs. [ENTITY] all been done within the period of validity or limitation. Accused admitted in his statement recorded U/[SECTION] of code of criminal procedure on 23.07.2011 that the cheques in question bearing his signatures were issued by him as advance/security cheques against delivery of goods. Thus, the issuance of the cheques bearing the signatures of the accused stands established. The accused also admitted the dishonor of the cheque for the reasons mentioned in the cheque return memos in his statement recorded u/[SECTION] of code of criminal procedure. So, the dishonor of cheques due to the reason mentioned in the cheque return memos stands established. Moreover, the accused did not challenge the dishonor of cheques for insufficient funds as deposed in the affidavit and complaint by even putting a suggestion to negate the same. So, the dishonour of cheques for the reason mentioned in the cheques return memos as well as the fact that the funds were insufficient in the account of accused stands established.
B) Legal Notice Aspect:- The complainant deposed in his affidavit that the legal notice was duly dispatched and served upon the accused. It is further deposed that the legal notice was duly received by or on behalf of accused at his office in some complaint cases bearing mark of receipts and this fact was not controverted by putting specific suggestions. The accused denied the service of legal notice during the cross examination of the complainant as well as in his statement recorded U/[SECTION] 281 of code of criminal procedure but did not dispute the address as mentioned on the legal notice, postal receipts and the returned AD Card.
Further, the perusal of complaint, legal notice and / or returned AD Cards reveals that the address of the addressee mentioned therein is admittedly the correct address of the accused. It is not the case of the accused that the notice was addressed to wrong address. It is also not the case of accused that the accused was not available on the aforesaid address or was present at some other addresses at the relevant time. As the said legal notice has been dispatched at the correct address, presumption of deemed service u/[SECTION] [ACT] is bound to arise.
[CASE NUMBER].
[ENTITY] Vs. [ENTITY] Furthermore, in view of the ratio in the judgment titled " [PRECEDENT] wherein Hon'ble Supreme Court held that:-
" Once the payee sent the notice to the drawer at the correct address, his duty is over and now it depends on the sender what he does" , As the complainant has dispatched the notice at the correct address the notice is deemed to be served upon the accused in terms of [SECTION] of [ACT]. It was for the accused to prove that he was available at some other place at the time of alleged delivery or that a false report has been obtained by the complainant in collusion with the post man but the accused did nothing of that sort. In these circumstances, the only conclusion which can be drawn is that the legal notice was duly served upon accused which the accused did not reply.
C) Legal Liability:- Complainant has primarily relied upon the mandatory presumption of law in respect of legal liability. The signatures on the cheques, their issuance and dishonor being proved as above, presumption under [SECTION] and [SECTION] of the [ACT] has to arise. So, it must be presumed that the liability as alleged was existing at the time when cheques were given.
It is a settled law that accused is entitled to discharge the onus placed on him even on the basis of materials brought on record by the complainant. It is not obligatory on the accused to separately adduce evidence or to enter into witness box if he can successfully gather the material from the evidence of complainant which would sufficiently disprove the presumptive facts, particularly in relation to the pre- existence of legal liability or the debt for the discharge of which cheques were given. In the present case, the accused has relied on the material brought by the complainant only and did not lead defence evidence despite opportunity. Now it has to be seen whether the accused has been able to rebut the aforesaid presumption or not:-
C.1 Complainant deposed in his affidavit that the complainant had supplied goods to the accused vide various bills as per requirements and orders made by the [CASE NUMBER].
[ENTITY] Vs. [ENTITY] accused from time to time and towards the full and final settlement of the account the accused had issued various cheques including the present cheques in installments from time to time. The complainant further deposed that cheques were issued for the debt and liability of the accused due towards the complainant on account of goods supplied to the accused and the said liability has been acknowledged by the accused in some of the complainant cases by issuance of Sales Tax -1 Form to the complainant. The aforesaid deposition of the complainant was not rebutted by the accused as neither any defence evidence was led nor a specific suggestion to that effect was put to the complainant during cross examination. Thus the accused admitted this part of complainant's testimony by omitting to rebut the same. Complainat further deposed that the statement of account for the goods supplied vide various bills drawn with the support of challans has also been maintained and that the debit note were also prepared in repsect of the transactions with the accused. The aforesaid statement of account, bills, challans and debit notes have been duly exhibited by the complainant. Accused got it affirmed by the complainant that the statement of account of the accused was duly maintained by the complainant, that the papers were supplied on basis of challans, that the accused collected the goods/ paper from the godown of the complainant in the usual course of dealings and that the debit notes prepared in the office of the complainant were being sent to the accused. Instead of challenging the complainant's version and the statement of account, the challans, the debit notes filed by the complainant by leading any evidence or by putting a suggestion regarding their geninuess or that the same are fabricated, the accused got the same affirmed by the complainant which amounts to admission of the aforestated version and documents of the complainant. Complainant further strengthened his case by firmly denying that all the invoices filed with the complaint are false and fabricated. Complainant affirmed that the accused used to issue the cheques regarding the invoice as per the complaint after delivery of the goods. The complainant thus re-affirmed the manner of issuance of cheques in installments from time to time towards payment of the amount due for the goods supplied as per the account statements of the accused which is in tune with the version mentioned in the complaint and affidavit meaning thereby that the cheque[SECTION].
[ENTITY] Vs. [ENTITY] with amounts rounded off were not issued as per the invoices but according to the amount due at a particular time which may comprise of the amounts of various invoices.
C.2 Further, the accused argued that the cheques' amount did not tally with the amount mentioned in the invoices which shows that the present complaints are false one. However, the accused got it admitted by the complainant in his cross examination that the transaction between the accused and the complainant were maintained on a running account basis and that the cheques issued by the accused were adjusted in his account towards the outstanding dues. This testimony of the complainant goes unrebutted as no suggestion to negate the same was put to the complainant which amounts to the admission of this deposition. It is matter of ordinary prudence that in case of a running account transaction, it is not possible for the cheques to correspond with the bills or invoices as the total amount due on a particular day or time would always be normally different form the amount mentioned in the bills or invoices.
Thus, the complainant firmly established that the cheques were issued after delivery of papers. The complainnat voluntarily clarified that the complainant supplied the goods upon which the accused issued the cheques and this clarification was not at all rebutted by the accused which unequivocally proves that the cheques were issued only after the delivery of goods and were not issued as advance or security cheques.
C.3 The accused took the defence that there was no liability as the papers supplied by the accused were of inferior quality. Ld. Counsel for complainat had argued that the accused that the goods supplied by the complainant were not up to mark with regard to the quality and grammage of the goods and that the accused had also intimated the same to the complainant. But perusal of the record reveals that the intimation as stated to be given by the accused with regard to the aforesaid goods is infact a counterblast to the legal demand notice of the complainant dated 15.11.2003 with regard to the payment of the dishonored cheques as mentioned in [CASE NUMBER].
[ENTITY] Vs. [ENTITY] the said reply. Had there been bonafide on the part of the accused, he would have given intimation at the time when the goods were found to be defective, prior to the issuance of legal demand notice or presentation of the cheques.
It shows that the accused wanted to avoid the payments of the complainant by raising false dispute regarding the quality of paper supplied which reflects the malafides of the accused.
a) During the cross examination of the complainant, the accused got it affirmed by the complainant that he had not invoked the arbitration clause as there is no dispute regarding non-payment or quality of goods. This admission on the part of the complainant shatters the version of the accused that there was some dispute regarding quality of goods. Moreover, it was also open to the accused to invoke arbitration clause at his end if as per accused's verisons there was a dispute between the parties which was subject to arbitration but the accused himself avoided to do so as is apparent from the omission of the accused in not putting any suggestion to the effect to the complainant or bringing any documents to that effect on record. This omission on the part of the accused to invoke arbitration clause in case of dispute between him and the complainant is very unusual which falsifies the accused's defence as admittedly the arbitration clause(as established in the complainant's cross examination) was to be invoked in case of dispute relating to non-payment or quality of goods and had the dispute between the parties was related to the quality of goods or the non-payment of price, the accused would have definitely invoked the arbitration clause just like an ordinary person but the accused did not do. Thus the defence of the accused that the goods supplied were defective is false and frivolus which can not be believed.
b) Another defence of the accused put by way of suggestion to the complainant is that the present 84 cheques for which complaints are pending in this court were given in lieu of five cheques of R. 3 lacs regarding which another complaint was pending at Nagpur. The complainant firmly denied the said suggestions thereby brining this defence of accused to a nought as no evidence in defence was led. Thi[SECTION].
[ENTITY] Vs. [ENTITY] defence is otherwise also not acceptable to a reasonable mind as no person would issue whopping number of cheques(84) in lieu of five cheques only. Thus, it appears that the acused wants to create a false defence regarding the matter pending at Nagpur Courts which indicates the malafides conduct of the accused.
c) During the statement of accused recorded u/[SECTION] of code of criminal procedure, the accused for the first time took the defence that the cheques bearing his signatures only with other particulars not filled by him were issued to the complainant as advance/ security cheques against delivery of goods and the same were not issued for any legally recoverable liabilities. But this defence can not be believed as the same was never put to the complainant during his cross examination and is thus an afterthought. Futhermoreover, none of the aforediscussed two defences in point a) and b) were taken by the accused in his statement recorded u/[SECTION] of code of criminal procedure which indicates that even those defence are false and concocted one.
d) Furthermore, the aforesaid three defences are inconsistent, contradictory and mutually destructive interse. On one hand the accused in his statement recorded U/[SECTION] 281 of code of criminal procedure stated that the blank cheques were issued in advance as security against supply of goods to the complainant whereas the accused got it admitted by the complainant that the accused used to issue cheques after delivery of the goods to the complainant. The accused further got it admitted by the complainant that paper worth Rs. 9 lacs were purchased by him and part payment of the same has been made. It indicates that the accused admits that the goods of good quality were being supplied by the complainat and the cheques were issued towards payment and were not advance or security cheques.
In view of the aforediscussed facts and legal discussion as well as considering the consistent, creditworthy and cogent testimony of the complainant and the contradictory and inconsistent defences taken by the accused, it stands established that the cheques were issued towards payment of amounts due in respect of paper supplied by complainant to the accused from time to time.
[CASE NUMBER].
[ENTITY] Vs. [ENTITY] C.4 Admittedly, it is not the case of the accused that cheques issued by him as advance or security were not returned by the complainant despite request and that the cheques have been misued by the complainant as even a whisper to that effect has not been made by the accused either in the complainant's cross examination or statement of accused recorded u/[SECTION] of code of criminal procedure. The conduct of the accused in not asking the complainant for returning the cheques alledgedly issued as advance/ security as per the version of the accused in respect of whatsoever quantum of paper which was supplied by the complainant though the paper was allegedly of inferior quality or the paper for which accused admitted to have made the part payment(as suggested to the complainant in cross examination) can not withstand the test of a reasonable mind as an ordinary prudent person would have definetly asked for the return of the cheques or would have taken some active steps against the complainant. From these omisions the only conclusion which can be drawn is that the cheques were issued towards payment of paper supplied and were not advance/ seucurity cheques which thus falsifies the accused version.
C.5 The complainant further admitted that all the cheques received by him were duly filled by and on behalf of accused. This testimony of complainant goes unrebutted as no suggestion to negate the same was put to the complainant which amounts to the admission of the same and have the devastating effect of negating the testimony of the accused that the cheques in question have been issued as advance/ security against the supply of goods usually issued only after goods have been delivered.
So far as issuance of blank signed cheques is concerned, in the case titled as " [PRECEDENT]" it was held by Honble Delhi High court that " by putting the amount and the name etc there is no material alternation on the cheque u/[SECTION] of the [ACT]" . In fact there is no alternation by only adding the amount, name and the date. [SECTION] of the [ACT] gives authority to holder of instrument to make or complete the instrument and the person signing the same shall be liable upon such instrument, in [CASE NUMBER].
[ENTITY] Vs. [ENTITY] the capacity in which he signed the same to any holder in due course for such amount.
Hence, once the signature on the cheque is admitted, holder or payee as the case may be will have a prima facie authority to complete the cheque. So, the defence of issuance of blank and even undated but signed cheque is no defence in the eyes of law. Thus, the issuance of blank signed cheques can not come to the rescue of the accused who has not disputed the status of the complainant as payee.
13. So, the complaint discloses the prima facie existence of legally enforceable debt or liability as the complainant has maintained throughout the case that he had supplied the papers as per the requirements and orders made by the accused from time to time for which various bills were drawn and the accused had issued the cheques in question in installments from time to time towards full and final settlement of the account.
14. In view of the aforesaid discussion as accused has failed to rebut the mandatory presumption of law arising in favour of complainant, this court is of the considered opinion that the complainant has proved his case against the accused beyond shadow of reasonable doubts. All the ingredients of [SECTION] of [ACT] have been duly proved on record. Accordingly accused [ENTITY], stands convicted of the offence u/[SECTION] [ACT].
15. Let the convict be heard on the point of sentence.
Announced in the open court ( [ENTITY] ) today i.e. on 30.07.2012 Metropolitan Magistrate North/Delhi/30.07.2012