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2015 Supreme(Del) 347
High Court of Delhi
VIPIN SANGHI, J.
Hans Kumar Jain – Appellant
Versus
Renu Gandotra @ Poonam – Respondent
CRL.L.P. No. 117 of 2015
Decided On : 03-03-2015
For the Petitioner:V.K. Khurana, Munish Chokkar, Advocates.
The court acquitted the accused based on the defense's probability and the failure of the complainant to establish the supply of goods and the dishonor of the cheques.
Headnote:
Negotiable Instruments Act - Section 138 - The court examined the defense of the accused under Section 138 of the NI Act, which deals with the offense of dishonoring a cheque. The court considered the statutory presumption raised against the accused and the factors that rebutted this presumption.
Fact of the Case:
The petitioner filed a complaint against the respondent for dishonoring two cheques issued as payment for purchases made. The respondent was acquitted of the offense under Section 138 of the Negotiable Instruments Act. The defense claimed that one cheque was a security cheque and the other was paid through RTGS. The court found the defense to be probable and acquitted the respondent.
Finding of the Court:
The court examined the defense of the accused and found it to be probable, rebutting the statutory presumption raised against the accused. The court considered various factors, including the presence of cutting and writing on the back of one cheque, the absence of corresponding entries in the ledger account, and the failure to produce bills or vouchers to prove the sale of goods. The court also considered the RTGS payments made by the complainant and the failure to establish that they did not pertain to the sale transaction. The court found no merit in the petitioner's arguments and dismissed the petition.
Ratio Decidendi: The court acquitted the respondent based on the defense's probability and the failure of the complainant to establish the supply of goods and the dishonor of the cheques. The court found no misdirection in the trial court's reasoning and upheld the presumption of innocence of the accused.
Result: The petition was dismissed as the leave petition was rejected.
Vipin Sanghi, J. (Open Court)
Crl. M.A. No. 3204/2015
1. Exemption allowed subject to all just exceptions.
2. The application stands disposed of.
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 aforesaid words
