IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, NORTHWEST, ROHINI: DELHI Unique ID No. 02404R0057762008 CC No. 4254/1/08 Sh. [ENTITY] Sole Proprietor of M/s P.S. Metal Store 5837A, Basti Harphool Singh, Sadar Bazar Delhi110006. Complainant V/s M/s [ENTITY] Through its proprietor/ authorised signatory, Sh. [ENTITY] C2611, Sushant Lok (Behind Goldsuk) Gurgaon (Haryana) Also at: 309, Kerawal Nagar, Shahdara, Delhi110032. Accused JUDGMENT
1. Name of complainant, Sh. [ENTITY] Sole parentage and address Proprietor of M/s P.S. Metal Store 5837A, Basti Harphool Singh, Sadar Bazar, Delhi110006 2. Name of accused, M/s [ENTITY] parentage and address Through its proprietor/ authorised signatory, Sh. [ENTITY] C2611, Sushant Lok (Behind Goldsuk) Gurgaon (Haryana) Also at: 309, Kerawal Nagar, Shahdara, Delhi110032. 3. Offence complained of or proved: 138 [ACT] [ENTITY] Vs. [ENTITY] 1 4. Plea of accused: Pleaded not guilty 5. Date of institution of case: 15.01.2008 6. Date of reserve of order: 20.08.2014 7. Date of Final Order: 03.09.2014 8. Final Order: Acquitted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under [SECTION] of the [ACT] (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under: That accused had issued a cheque bearing no. 623616 dt. 15.12.07 drawn on ABN Amro Bak, N.V., Hansalaya, 15, Barakhamba Road, New Delhi01 for Rs. 3,00,000/ besides other cheques towards the discharge of his part liability which he was owning towards the complainant on account of metal purchased by him amount to about Rs. 13,85,000/. The complainant presented the aforesaid cheque on the instructions of the accused person through his banker, Corporation Bank, Shalimar Bagh, New Delhi, but the same was returned as unpaid with the remarks "Insufficient Funds" vide cheque return memo dated 18.12.2007. Besides the aforesaid cheque the accused had issued another cheques also which were dishonoured for which separate action is taken. The complainant sent a legal notice dated 22.12.2007 to the accused within stipulated period. The said notice sent to the accused through registered AD post and [ACT] is presumed to be served upon the accused as the same was never returned back as unserved till date and the accused has committed an offence punishable u/[SECTION] of Negotiable [ENTITY] Vs. [ENTITY] 2 Instruments Act. Thereafter complainant finally has filed the present complaint case with the submission that accused be summoned, tried and punished accordingly to law.
3. In his pre summoning evidence, complainant has examined himself on affidavit. He reiterated the contents of complaint and placed on record the one original cheque bearing no. 623616 of Rs. 3,00,000/ dated 15.12.2007 in favour of the complainant drawn on ABN Amro Bank, Barakhamba Road, Delhi01 as Ex. CW1/1, Original cheque returning memo dated 18.12.2007 as Ex. CW1/2, Carbon Copy of Legal demand notice dated 22.12.2007 as Ex. CW1/3, Redg. AD postal receipt as Ex. CW1/4 and Ex. CW1/5 and [ACT] certificate as Ex. CW1/6.
4. Accused was summoned for an offence punishable u/[SECTION] of [ACT] and notice u/[SECTION] [ACT] for this offence was framed upon him on 11.12.2008 to which he pleaded not guilty and claimed trial.
5. In his post notice evidence, complainant tendered his evidence by way of affidavit and during his cross examination, he told that he does not know what has been written in the legal notice sent by his counsel to the accused as he does not know English and he had given all the details regarding dishonour of all the three cheques to his counsel for lodging complaint case against the accused. He further stated that he is not aware of the contents of his complaint.
7. Thereafter, statement of accused under [SECTION] [ACT] was recorded in which all the incriminating evidence were put to the accused to which he stated that his cheques were misplaced and he had continuous transactions with the complainant from 1994 to 2002. He further stated that he closed his factory in the year 2004 as it came under as air polluting unit. He accepted that he has received the legal notice and on receiving the legal notice, he checked his books of account and he found that only Rs. 2,30,710.10 paise was due to be given by him to the complainant as on 31.03.2003.
[ENTITY] Vs. [ENTITY] 3
8. Accused has examined three witnesses in his defence, including himself as DW2.
DW1 Smt. [ENTITY] W/o Shri [ENTITY], LDC in the office of Sub RegistrarIV, Nand Nagri, Delhi, brought the summoned recored i.e. sale deed 27.02.2004 pertaining to property no. 291, Karawal Nagar, Lal Dora, IIaka Shahadara, Delhi, which was executed between Shri [ENTITY] in the capacity of SPA of [ENTITY] S/o Shri [ENTITY] and Shri [ENTITY] S/o Late Shri [ENTITY] (OSR).
Accused as DW2 tendered his evidence by way of affidavit Ex. DW1. He deposed in his examination in chief that he had continuous business with the complainant from 1994 to 2002 and he used to purchase scrap of gun metal and brass from him. He further stated that as his factory came under air polluting unit as per the notification of Govt. of NCT of Delhi, he closed his factory in 2004. He further stated that he has even surrender his sales tax number and he has no liability towards the complainant except of Rs.2,30,710/ which were due on 31.03.2003. He also stated that some of his cheques were misplaced and he did not know that how the cheque in question came into possession of the complainant. Ld. Counsel for complainant vide his statement on 13.10.2011 adopted the cross examination of DW2 conducted in [CASE NUMBER] on 07/10/2010. During his cross examination he denied that he had any liability for Rs.11,54,675/ towards the complainant.
Another witness DW3, Shri [ENTITY] S/o Shri [ENTITY], Record Keeper Ward 74, Trade & Taxes Department, Govt. of Delhi Vyapar Bhawan, Delhi brought the summoned record i.e. the assessment order bearing no. 297/31.03.2006 for the year 200405 of M/s [ENTITY], 291 Karawal Nagar, Delhi110094. Photocopy of the same is Ex. DW3/A (OSR). He stated that in the said order, there is no sale, no purchase, no stock and gross turn over is Nil. He had also brought From DVAT 10 and DVAT 11 i.e. Show cause notice for cancellation of registration w.e.f. 31.12.2010 respectively. The same are Ex. DW3/B and Ex. DW3/C respectively. He further stated that after assessment [ENTITY] Vs. [ENTITY] 4 order for the year of 200405, dated 31.03.2006, no assessment was done in their office for M/s [ENTITY] Industrial Corp., as per the records available. He also accepted that utilization of A/c of last obtained ST35, C Form and ST1 filed by the M/s [ENTITY] in the assessment year 200405. He also deposed that after the assessment year 200405 M/s [ENTITY] had not filed their VAT return with their department and therefore, a letter bearing reference no. W74/2727 dated 12.01.2011 was issued to [ENTITY] (Value added Tax Inspector), copy of which is Ex. DW1/E (OSR) for inspection, who submitted his report dated 17.01.2011 that the firm was not functioning at the premises and no signboard was found at the above mentioned address i.e. Khasra 291 Karawal Nagar, Delhi copy of the said report is Ex. DW1/F(OSR).
During his crossexamination, he stated that the firm was cancelled w.e.f. 31.12.2010 on the ground for not filing returns for quarter ending 30.06.2010 and 30.09.2010 and as DVAT11 was issued and date of cancellation was 31.12.2010, so it can be said firm was alive in our records before 31.12.2010. During the trial the Sh. [ENTITY] Son of the complainant was substituted for the complainant after his death vide order dated 09.07.2012.
9. After closing of Defence Evidence, oral arguments tendered by the Ld. counsel for complainant as well as Ld. counsel for the accused were heard at length.
10. The following submissions were made on behalf of complainant: That there were business relations between the accused and the complainant for past several years and the complainant used to supply metal to the accused.
That accused is liable to make payment of Rs.13.85 lacs towards the complainant for the supply of metal.
That the cheque in question was given by the accused towards discharge of liability for the supply of metal.
That the cheque in question is not disputed and the signatures on the [ENTITY] Vs. [ENTITY] 5 cheque are admitted by the accused.
That the service of legal notice has also been accepted by the accused, however accused did not send the reply to the legal notice. That the defence taken by the accused is that the cheque in question was misplaced by the accused and he did not received any goods from the complainant.
That no single question has been asked on behalf of the accused regarding the contents of complaint.
That the presumption of law is in favour of the complainant.
11. The following submissions were made on behalf of accused: That the present case is based on false and fabricated story. That the accused was having continuous business transactions with the complainant from 06.06.1994 to 26.06.2002 and accused had no business transaction with the complainant from 26.06.2002 onwards. That as the factory of the accused came under air polluting unit as per the notification of Govt. of NCT of Delhi, he closed his factory in 2004. That accused has even surrender his sales tax number and he has no liability towards the complainant except of Rs.2,30,710/ which were due on 31.03.2003.
That some of the cheques of the accused were misplaced and he did not know that how the cheque in question came into possession of the complainant.
That accused has not any liability for Rs.11,54,675/ towards the complainant.
That the complaint of the complainant has not verified as per the provisions of the law and it is liable to be dismissed.
That complainant has not given the description of goods, and no date is mentioned for the supply of goods.
That the bills are not placed on record by the complainant.
[ENTITY] Vs. [ENTITY] 6 That in cross examination complainant said that he does not know the contents of the complaint then how he could be cross examined. That the complainant has not filed any document regarding the delivery of goods or acknowledgment of bill.
That it has been admitted by the complainant that there was no transaction between him and the accused from 26.06.2002 to 13.12.2007. That the complainant has not examined the author of the alleged bill or the the driver of the tempo and he has not proved the registration number of the tempo.
That at no point of time complainant has said that the cheques in question were given by the accused to him.
That it is also admitted by the complainant that the name of the payee and date was not mentioned by the accused in the cheques.
That it is difficult to believe that the complainant agreed to supply huge amount of goods to the tempo driver when the previous balance was due upon the accused.
That as the accused's factory was already closed then there is no point of supply of goods in the year 2007.
That there is difference between the value of goods stated to be supplied by the complainant, the amount mentioned in the notice and the amount mentioned in the cheques in question.
12. Before appreciating the facts of the case in detail for the purpose of decision let relevant position of law be discussed first: As present complaint is under [SECTION] of [ACT], there are three ingredients as follows held by the Hon'ble Supreme Court of India in [PRECEDENT].
[SECTION] of the Act three ingredients, viz.:
(i) that there is a legal enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally [ENTITY] Vs. [ENTITY] 7 enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
13. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law.
The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in [SECTION] therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in [SECTION] discharged in whole or in part any debt or other liability.
14. For the offence under [SECTION] [ACT], the presumptions under [SECTION] and [SECTION] have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under [SECTION] and [SECTION] are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in [PRECEDENT].
15. 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 presumption, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary.
16. I have perused the entire record and have given due considerations to the submissions made by the respective counsels of the parties. In the present case as per the complainant the accused is liable to make payment for sum of Rs. 13,85,000/ towards the purchase of metal in the year 2004 and for previous dues.
[ENTITY] Vs. [ENTITY] 8 The defence taken by the accused is that he is liable for sum of Rs.2,30,710.10/ towards previous dues. It is pertinent to note that no separate legal notice was sent by the complainant for the previous dues. As per the complainant the metal for sum of Rs.11,54,675/ was supplied by him in the year 2007. No written agreement or document has been placed on record to prove that accused had placed the order for supply of the metal in the year 2007 or regarding the proof that accused received metal from the complainant in the year 2007 worth Rs. 11,54,675/. On the other side as per the accused he had business transactions with the complainant between 1994 to 2002 and in the year 2004 he himself had closed his factory and later he had also sold his factory and in these circumstances no question of purchase of metal from the complainant arises. Accused had examined two witnesses to support his version. As per DW1 accused had sold his property in the year 2004 and as per DW3 factory was not in existence in the year 2011 and sale, purchase and gross turn over for the year 200405 was nil. Both the defence witnesses corroborate the version of the accused and raises doubt over the factum of business transaction between the complainant and the accused in the year 2007. Absence of any document regarding placement of order for supply of metal and any receiving from the accused for the supply of the same to him also raises doubt over the version of the complainant. In addition to this the fact that complainant supplied goods to the accused without taking any receiving when there were no dealings between accused and the complainant from the year 2002 to 2007 and there were previous dues also upon the accused, cannot be believed.
17. Hence in the light of above discussion it comes out that the complainant has failed to prove his case beyond all the reasonable doubts and accused has successfully rebut the presumption in favour of the complainant as the standard of proof so as to prove a defence on the part of accused is only 'preponderance of probabilities' and inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which he relies as the same was held by Hon'ble Supreme Court in [ENTITY] (supra). Accordingly accused is acquitted for [ENTITY] Vs. [ENTITY] 9 offence under [SECTION] of [ACT]. Bail bonds and Surety bonds stand discharged. Original documents of sureties, if any, be released as per rules. File be consigned to record room after necessary compliance.
ANNOUNCED IN THE OPEN COURT ([ENTITY]) TODAY i.e, 03rd day of September, 2014 [PRECEDENT] [ENTITY] Vs. [ENTITY] 10