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DELHI HIGH COURT
Vipin Sanghi, J.
Hans Kumar Jain —Appellant
versus
Renu Gandotra @ Poonam —Respondent
Crl.L.P.No.117 of 2015
Decided on 3.3.2015
IMPORTANT POINT
Merely because cheque given towards security, no ground to hold that offence under S. 138 of NI Act would not result upon dishonour of such cheque, if other conditions of said provision not met.
Headnote:Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 378 (4) — Acquittal — Three payments made through RTGS made after said invoice/voucher for Rs. 180060/- raised on 16.12.2010 — Three RTGS payments made on 30.12.2010, 18.01.2011 & 20.01.2011 in sum of Rs. 129384, Rs. 200000/- and Rs. 100000/- respectively — HELD — It for petitioner complainant to establish that said RTGS did not pertain to sale transaction dated 16.12.2010 for amount of Rs. 180060/-. [Para 10]
(ii) Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973 — Section 378 (4) — Acquittal — Complainant did not lead evidence whatsoever to establish supply of goods to accused of amount in question — Not filed on record any bill, voucher or invoice to show that goods sold by complainant to accused, or accepted by accused — For which accused liable to make payment to complainant — HELD — Merely because the said cheque was given towards security, was no ground to hold that the offence under Section 138 of the NI Act would not result upon dishonour of such a cheque if the other conditions of the said provision not met. [Paras 11 & 12]
Result: Petition dismissed
Crl. M.A. No.3204/2015
1. Exemption allowed subject to all just exceptions.
2. The application stands disposed of.
CRL.L.P. 117/2015 and Crl.M.A. Nos.3203/2015
3. This petition has been preferred to seek special leave to appeal under Section 378(4) of the Cr.P.C. in respect of the judgment dated 17.12.2014 passed by the Chief Metropolitan Magistrate (East), Karkardooma, New Delhi in CC No.26/11/13 pertaining to Police Station – Krishna Nagar under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
4. By the impugned judgment, the respondent/accused has been acquitted of the offence under Section 138 of the NI Act. The petitioner/ complainant claims to be dealing in clothes under the name & style of “Jai Durga Traders”. The respondent/accused was one of its customers. Purchases were being made by the respondent from the petitioner by making on account payments during the period 09.12.2010 to 23.01.2011. The complainant claimed that on the date of filing of complaint, Rs.9,75,460/- was due and payable by the accused. To discharge the aforesaid liability, the accused issued two cheques for Rs.1,80,060/- and Rs.7,95,400/-, dated 20.01.2011 and 08.04.2011 bearing Nos.546633 and 546625 respectively both drawn on Vijaya Bank, Mayur Vihar, Delhi. Upon presentation, both the cheques were dishonoured on 09.04.2011, due to stop-payment instructions given by the accused.
5. Consequently, after issuance of legal notice dated 02.05.2013 in terms of Section 138 of the NI Act, the aforesaid complaint was preferred by the petitioner since no payment was forthcoming. Upon appearance of the accused, notice under Section 251 of the Cr.P.C. for the offence punishable under Section 138 of the NI Act was served on the accused on 16.09.2011, to which the accused pleaded ‘not guilty’, and claimed trial.
6. The defence of the accused was, firstly, that the cheques have not been drawn on her account and did not bear her signatures, and that she had never personally met the complainant. Secondly, the accused also stated that payment as regards cheque No.546633 was made through RTGS, and the cheque No.546625 was a security cheque as mentioned/ written on the back of the cheque itself.
7. The complainant was cross-examined, whereafter the respondent led evidence of Mahender Singh, Clerk from Vijaya Bank as DW-1, Jaggan Nath Sharma, Senior Manager, Vijaya Bank also as DW-1, Manjit Singh as DW-2, Renu Gangotra as DW-3, and accused herself as DW-4.
8. From the impugned order, it appears that the Court did not give any weightage to the defence of the accused that the cheque was not drawn from her account and that, it did not bear her signatures. In any event, such a defence was contrary to the defence setup by the accused that payments as regards cheque No.546633 had been made through RTGS, and cheque No.546625 was a security cheque, as mentioned/ written on its back. Obviously, if the first defence of the cheque not being drawn from the account of the accused, and that it not bearing her signatures – implying that she did not know the complainant was true, then there was no question of payment by her in respect of one of the cheques through RTGS, and the giving of the other cheque as security. It appears from the impugned order that the Court proceeded to examine the defence of the accused premised on the latter submission. The Court found the defence of the respondent/accused to be probable – rebutting the statutory presumption raised against the accused, for the following reasons:
“(a) Because, on the backside of cheque bearing no. 546625 the words “security cheque against delivery” are mentioned, on which there is cutting.
(b) Because the complainant has failed to explain that as to why the aforesaid words have been written on the backside of the cheque Ex.CW1/D and why there is cutting over the said words.
(c) Because the complainant has failed to explain that as to why he received cheque exhibit Ex.CW1/D from the accused with the af
