Delhi District Court Presumption Lies In Favour Of The ... vs Palapetty on 22 September, 2018 IN THE COURT OF METROPOLITAN MAGISTRATE, KARKARDOOMA COURTS, DELHI. Presided by: Sh. Sujit Saurabh CC No. 49493/16 P.S. Gandhi Nagar, Delhi. M/s Maps Creation Private Limited Through Its Authorized Representative, 9/6638, 1st Floor, Nehru Gali, Gandhi Nagar, Delhi 31. .........Complainant VERSUS 1. M/s Shiv Om Traders, D 2223, Ramanuj Dayal Market, Near Sabzi Mandi, Ghantaghar, Ghaziabad 201010, U. P. 2. Sh. Sandeep Kumar Aggarwal, Partner of M/S Shiv Om Traders, D 2223, Ramanuj Dayal Market, Near Sabzi Mandi, Ghantaghar, Ghaziabad 201010, U. P. 3. Sh. Amarnath Kesharwani, Partner of M/S Shiv Om Traders, D 2223, Ramanuj Dayal Market, Near Sabzi Mandi, Ghantaghar, Ghaziabad 201010, U. P. ..........Accused Complaint under section 138 of The Negotiable Instruments Act,1881 Offence complained of : U/s 138 of NI Act, 1881 Date of commission of offence : On expiration of 15 days from the date of CC No. 49493/16 page no. 1 /11 service of statutory notice (sent on 15.05.2013). Plea of Accused : Not guilty. Date of decision of the case : 22.09.2018. Final order : Acquittal. JUDGMENT STATEMENT OF FACTS AND REASONS FOR DECISION 1. The accused is facing trial for commission of offence punishable u/s 138 of The Negotiable Instrument Act, 1881 (in short, "NI Act"). 2. Brief Facts: The complaint has been filed through Sh. Kishan Singh, Authorized Representative of the complainant, in short "AR". As per complaint, the complainant is a Private Limited Company registered under Companies Act. The complainant is engaged in the business of clothing/readymade garments. Accused No. 01 M/S Shiv OM Traders is a partnership firm and accused No. 02 Sh. Sandeep Kumar Aggarwal and accused No. 03 Shri Amarnath Kesharwani are Partners in the firm and are responsible for daytoday affairs of the firm. The accused No. 02 and 03 approached the complainant and represented themselves as partners of accused No.01. The accused number two and three on behalf of accused No. 01 purchased cloths vide Bill No. 52, dated 16.04.2013, amounting to Rs.10,19, 740. Out of Rs.10, 19,740, Rs. 19,740 was paid in cash by the accused. For the payment of balance amount, the accused issued cheque bearing No. 225886, dated 16.04.2013, in sum of Rs. 500,000 (five lakhs) and CC No. 49493/16 page no. 2 /11 cheque bearing No. 225887, dated 17.04.2013, in sum of Rs. 500,000 (five lakhs), each drawn on ING Vyasa Bank Ltd. Ghaziabad, U. P. in favour of the complainant i.e. Maps Creation Pvt. Ltd. The complainant presented the aforesaid cheques to his bank ICICI bank, Gandhi Nagar, Delhi for encashment. However, the same were returned unpaid with remark "funds insufficient", vide Cheque return memo dated 17.04.2013 and 18.04.2013 respectively. The complainant sent a legal demand notice dated 13.05.2013 to the accused through speed post advising him to pay the amount of the cheques within 15 days of the receipt of the notice. The accused did not pay the cheques amount even after expiry of statutory period of 15 days despite service of notice. Since accused did not make payment to discharge their liabilities, the complainant filed the instant complaint. 3. Vide order dated 29.08.2013, cognizance of the offence u/s 138 NI Act was taken by Ld. Predecessor court and the accused were summoned. Accused Sandeep Kumar Aggarwal put of his appearance on 29.01.2014. Accused Amarnath Kesharwani put up his appearance on 04.03.2014. 4. Vide order dated 04.03.2014, notice u/s 251 of Criminal Procedure code, 1973 (in short, "Cr.P.C") was served upon accused Sandeep Kumar Aggrawal and Amarnath Kesharwani. They did not plead guilty and claimed trial. They disclosed their defenses. They were given an opportunity to cross examine the complainant witnesses and matter was listed for Complainant's Evidence (in short, C.E). 5. The complainant examined only one witness in its favour. The AR of the complainant Sh. Kishan Singh appeared in witness box as CW1. He adduced his evidence by way of affidavit Ex. CW1/X. In his affidavit, he reiterated the facts CC No. 49493/16