Final Order 12

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SH. MUNEESH GARG,
ADDITIONAL SESSIONS JUDGE-02, NORTH WEST
DISTRICT, ROHINI COURTS, DELHI.
Criminal Appeal No. 279/2024
CNR No. DLNW01-012574-2024
IN THE MATTER OF:
Praveen Kumar Jain
S/o Sh. Ramesh Chand Maheshwari
Proprietor M/s. Jayco Engineering Corporation
Plot No.29, Rajender Nagar Industrial Area
Mohan Nagar, Shaibabad, U.P. … Appellant
Versus
Rajeev Kumar Bhalla
Proprietor M/s. Uttam Electricals,
3588-B, Raja Park, Rani Bagh,
Delhi-34. ... Respondent
Date of Institution : 24.12.2024
Date of Judgment : 06.08.2026
JUDGMENT
1. Vide this order, this Court shall dispose of the
criminal appeal preferred against the judgment dated 28.11.2024
and order on sentence date 06.12.2024, passed by Ld. JMFC (NI
Act), North West, Rohini.
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2. Before proceeding with the order on merits, it would
be apt to reiterate the facts of the case. Rajeev Kumar Bhalla
(hereinafter referred as the Respondent) had filed a complaint U/s
138 NI Act (hereinafter referred as ' the Act') against Sh. Parveen
Kumar Jain, proprietor of M/s Jayco Engineering Corporation
(hereinafter referred as the Appellant). It was alleged in the
complaint that appellant had purchased goods from respondent
on credit basis and, towards discharge of the liability arising
therefrom, appellant issued the cheque in question i.e. cheque
bearing no. 942000 dated 15.09.2019 drawn on Syndicate Bank,
Najafgarh Road, Tilak Nagar, Delhi for the amount of Rs.
2,13,700/-. On presentation, the cheque in question was returned
unpaid with the remarks 'Funds Insufficient' vide return memo
dated 13.11.2019. On receipt of information regarding dishonor
of cheque, respondent asked the appellant to make the payment
through a legal notice dated 10.12.2019. However, the appellant
failed to make the payment within the statutory period despite
service of the legal demand notice. Accordingly, respondent
approached the Court with the complaint U/s 138 NI Act.
3. In pre-summoning evidence, respondent examined
himself on affidavit vide Ex. CW1/A. He reiterated the contents
of complaint and also placed on record cheque in question Ex.
CW1/1, return memo dated 13.11.2019 Ex. CW1/2, legal demand
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notice Ex. CW1/3, speed post receipts Ex. CW1/4 and tracking
report Ex. CW1/5.
4. Upon appreciation of pre-summoning evidence,
appellant was summoned for the offence U/s 138 of the Act and
notice U/s 251 Cr.P.C was served upon him on 28.07.2022, to
which he pleaded not guilty and claimed trial. Plea of the defence
was also recorded on 28.07.2022, wherein appellant stated that
the cheque in question was demanded by the complainant as an
advance for purchasing material for which he had placed an
order. He stated that he requested the complainant not to present
the cheque in question as he was not having GST number. It is
further stated that despite taking the advance cheque, the material
was never supplied to him by the complainant. He further stated
that he has no liability towards the complainant.
5. During post notice evidence, respondent adopted the
evidence adduced during the pre-summoning evidence. Details of
the evidence have already been delineated in the foregoing
discussion and same are not being reproduced again for the sake
of brevity. Respondent was cross-examined by Ld. Counsel for
the appellant.
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6. Thereafter, statement of appellant was recorded U/s
313 Cr.P.C on 02.04.2024, wherein all the incriminating evidence
were put to him. In reply, he stated that he did not purchase any
goods from the complainant and does not have any outstanding
amount. He further stated that complainant had taken the cheque
on the pretext of showing it to a third party and procuring the
goods to supply to him. He further stated that he had given the
cheque in question to the complainant which bears his signatures
and amount and he has not filled the date and payee details. He
further stated that the cheque in question was given upon the
asking of the complainant, who asked for the cheque on the
pretext of showing it to third party to procure material from them
which would be sold to him. He further stated that complainant
did not supply any material to him and misused his cheque.
Appellant opted to lead defence evidence.
7. Though appellant opted first to lead defence
evidence but he did not examine any witness in his defence
subsequently and closed defence evidence on 13.09.2024,
8. After hearing the final arguments and perusing the
evidence adduced, Ld Trial Court convicted the appellant for the
offence U/s 138 of Negotiable Instrument Act via the impugned
judgment and order on sentence.
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9. The impugned judgment is assailed on the following
grounds:
(A) that the impugned judgment and order of the Ld. Trial
Court are based on conjecture and surmises and are not
sustainable in eyes of Law.
(B) that the impugned judgment and order are passed in
mechanical and hasty manner without application of judicial
mind. The Ld. Trial court has committed an error while holding
that the cheque in question was released in discharge of the
rightful liability.
(C) that the Ld. Trial court committed an error by not
assuming that the cheque in question was not released by the
appellant in discharge of any rightful liability to the respondent.
(D) that the Ld. Trial court further committed an error
while observing defence of the appellant which was recorded at
the time of framing the notice that "the cheque in question was
given to respondent with an order to supply the goods but the
complainant did not supply the goods to the appellant and the
respondent had misused the cheque in question".
(E) that the Ld. Trial court further committed an error
while observing the respondent did not file any Account
Statement as mentioned in the complaint.
(F) that the Ld. Trial court further committed an error
while observing that the respondent did not file bill / tax invoice
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which is compulsory to sell the goods to any one as per rules of
VAT/GST.
(G) that the Ld. Trial court further committed an error
while observing that the respondent did not file E-way bill which
is compulsory to supply the goods in other State as per rules of
VAT/GST.
(H) because the Ld. Trial court further committed an error
while appreciating his submission U/s 313 Cr. P.C. that "the
cheque in question was given to respondent with an order to
supply the goods but the complainant did not supply the goods to
him and the respondent had misused the cheque in question".
(I) because the Ld. Trial court further committed an error
that neither name and address of sender nor name and address of
the receiver is mentioned in the said delivery challan which was
filed by the respondent at the time of the cross-examination.
(J) because the Ld. Trial court did not appreciate the
defence of the appellant.
(K) because the Ld. Trial Court has erred not to see the
facts that this case has not been proved by the
respondent(complainant) against the appellant beyond reasonable
doubt.
10. I have heard learned counsel for the parties and
carefully perused the Trial Court record.
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11. Learned counsel for the appellant has assailed the
impugned judgment principally on the grounds that the learned
Trial Court failed to appreciate the defence in its proper
perspective; that the complainant did not produce any e-way bill
to establish movement of goods outside Delhi; that no statement
of account was produced; and that the cheque was merely an
advance cheque as no goods were ever supplied.
12. The trial court record would reveal that the appellant
did not dispute that he had drawn the cheque in question on an
account maintained by him and same was presented within the
period of its validity. It is also not disputed that cheque in
question was returned unpaid and the payment was not made
good within the statutory period despite service of legal demand
notice. The defence pleaded by the appellant is that the cheque in
question was not issued for discharge of legally enforceable
liability. Here, it is relevant to note that the petitioner has not
disputed his signature upon the cheque in question. As per the
spirit of the Act, once drawer admits his signature on the cheque,
the statutory presumptions stipulated U/s 118 NI Act that
instrument was drawn for consideration and the second
presumption U/s 139 NI Act that holder of the cheque received it
for discharge of any debt or liability automatically come into
play. The burden, therefore, shifted upon the appellant to rebut
the said presumptions by raising a probable defence.
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13. In the case in hand- as also noted above- since the
signatures on the cheque in question have not been disputed by
the appellant, both the statutory presumptions had to be
mandatorily drawn by the Court. However, the appellant could
impeach this story of the respondent either by leading his own
evidence or creating dent in the case of the respondent by
subjecting him to cross-examination.
14. The learned Trial Court has rightly noticed that
although the appellant claimed that no purchase bill had been
produced, the purchase bill i.e. Mark X1 was in fact produced
during the cross-examination of the complainant.
15. The appellant had further contended that the amount
mentioned in the purchase bill did not tally with the cheque
amount and, therefore, the document was forged. The said
contention has been rightly rejected by the learned Trial Court. A
perusal of the purchase bill itself shows that it merely mentions
the quantity of goods supplied and does not mention the total
monetary amount. The complainant further explained that the bill
recorded the name of the appellant's driver and the particulars of
the vehicle through which the goods were collected. Merely
because the purchase bill does not bear the signatures of the
appellant, this cannot by itself render the document unreliable.
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16. The submission regarding non-production of
statement of account is also without merit. Once execution of the
cheque is admitted, mere non-production of statement of account
is not sufficient to rebut the statutory presumptions unless the
defence otherwise appears probable.
17. Likewise, the argument regarding absence of an
e-way bill also does not advance the appellant's case. At best,
non-generation of an e-way bill may have implications under the
taxation laws. It cannot, by itself, conclusively establish that no
goods were ever supplied, particularly when the complainant has
produced documentary evidence regarding supply and the
appellant has failed to produce any evidence to the contrary.
18. The defence of the appellant also suffers from
material inconsistencies. At the stage of notice under Section 251
Cr.P.C., the appellant stated that the cheque had been delivered to
the complainant for supply of goods and further stated that he
had requested the complainant not to present the cheque as he
was not having any VAT number. However, in his statement
recorded under Section 313 Cr.P.C., the appellant introduced an
altogether different case by stating that the complainant had
sought the cheque merely for showing it to some person from
whom goods were to be procured. This is not a minor
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discrepancy but a material improvement. If the cheque had
merely been handed over for being shown to a third person and
not issued to the complainant towards any transaction, there was
no occasion for the appellant to request the complainant not to
present the cheque. The appellant has offered no explanation
whatsoever for these contradictory stands.
19. Further, during the cross-examination of the
complainant, it emerged that the complainant himself was not
possessing any VAT number. The appellant has failed to explain
as to how his alleged absence of a VAT number prevented
presentation of the cheque or how that circumstance supported
his defence.
20. Significantly, no suggestion was put to the
respondent during his cross-examination that the cheque had
merely been obtained for showing it to some third person for
procurement of goods. No suggestion was also given that at the
time of receiving the cheque the complainant did not possess the
goods and intended to procure the same from someone else by
using the appellant's cheque. Such omission assumes
considerable significance and clearly demonstrates that the said
plea is an afterthought introduced subsequently.
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21. Equally untenable is the submission regarding
non-service of legal notice. The legal demand notice Ex. CW1/3
was sent to the appellant through speed post. The speed post
receipts and tracking report are Ex. CW1/4 and Ex. CW1/5. The
appellant never disputed the correctness of the address mentioned
in the statutory notice. The learned Trial Court has, therefore,
rightly drawn the presumption regarding due service.
22. The appellant has not led any defence evidence. No
witness has been examined to probabilise his defence that the
goods were never supplied or that the cheque was issued only as
an advance without any subsisting liability. Even no notice was
served to the respondent to return his cheque, when the
respondent, as alleged by the appellant, has failed to deliver the
order. Thus, appellant has failed to discharge his onus to rebut the
statutory presumption U/s 118 & 139 of NI Act.
23. The learned Trial Court has appreciated the evidence
in the correct perspective and has recorded findings based upon
the material available on record. This Court finds no perversity,
illegality or infirmity in the impugned judgment warranting
interference in appellate jurisdiction.
24. Consequently, the appeal is dismissed. The
judgment of conviction dated 28.11.2024 and the order on
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sentence dated 06.12.2024 passed by the learned Trial Court are
hereby affirmed.
25. The appeal is hereby dismissed.
26. Trial Court Record be sent back along with a copy of
this judgment.
Appeal file be consigned to Record Room.
Announced in the open Court
on 06.08.2026
(MUNEESH GARG)
ADDITIONAL SESSIONS JUDGE-02
(NORTH WEST), ROHINI COURTS
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