The acknowledgment of liability and issuance of cheques by the accused constituted a valid discharge of the debt, and the accused's defence lacked credibility and evidence.

Vipin Sanghi, J.

1. The present appeal under Section 378 Cr PC is directed against the judgment dated 02.06.2009 passed by Sh. Manoj Kumar, ASJ, New Delhi in CC No.399/2009 titled as Acura Glass Tiles Enterprises v. S.S. Ray, whereby the appellants complaint under Section 138 of the Negotiable Instruments Act, 1881 (the Act) was dismissed, and the respondent/accused was acquitted.

2. The aforesaid complaint had been preferred by the appellant/complainant in respect of four cheques, details whereof are as follows:

(“Table”)

3. On the aspects not in dispute, and with regard to which no issue was raised or argued by either side, I do not consider it necessary to record the facts and the findings. The case of the complainant/appellant was that there were business transactions between the parties. This position is not disputed by the respondent. The parties entered into a settlement Exh.CW-1/A on 04.05.2006, which was executed on the letterhead of Sonifix Enterprises, which admittedly is a proprietary concern of the respondent. The same reads as follows:

"To

M/s Accura Glass Tiles Enterprises

Delhi.

This is to assure the discussion following are payment committed by me as under:

M/s Suyas Construction Rs.2,42,000/-

M/s Prakruti Enterprises Rs.35,000/-

371 Rs.55,000/-

Adhersi Rs.40,000/-

--------------

Rs.3,72,000/-

======== Rs.3,50,000/- (Three lakh fifty thousand only) is lumpsum amount agreed & outstanding in front of Mr. Kumar and will cleared by latest by 4th June, 2006. The said amount is outstanding till date with me".

4. The appellant claims that the aforesaid four cheques had been issued by the respondent in partial discharge of the admitted liability of Rs.3,50,000/-. On presentation, the said cheques had been dishonoured. Consequently, after issuance of legal notice for demand, the complaint had been preferred.

5. The notice was framed against the respondent, who pleaded not guilty. Thereafter the complainant led her evidence as CW-1. She was also cross examined by the respondent/accused. The statement of the respondent under Section 313 was recorded, whereafter he appeared as his own witness as DW-1. He was cross examined by the complainant.

6. On the application of the accused, the records of the appellant company were directed to be produced. They were so produced on record as Exh. X, Y, Z and ZA - which were the statement of accounts for the period 2006-07 and 2007-08. The production of the said document was sought by the accused to substantiate its defence that the accused did not owe the amount of either Rs.3,72,000/- or Rs.3,50,000/- as alleged by the complainant on the basis of Exh.CW-1/A. While dismissing the complaint, the Trial Court held as follows:

"24. From a reading of the complaint and the evidence led on behalf of the complainant it can be discerned that the whole edifice of the claim of the complainant is founded on the supply of the goods worth Rs.3,72,000/- by it and subsequent settlement on 04.05.2006.

25. During the evidence on behalf of the complainant, CW1 Smt. Savita Gupta tendered document Ex CW1/A which is claimed to be a document of settlement effected between complainant Acura Glass Enterprises and the accused. During his cross examination the accused admitted his signatures on Ex CW1/A but during arguments it is contended on his behalf that the document Ex CW1/A was not executed by him.

26. A perusal of Ex CW1/A reveals that the amount of Rs.3,72,000/- was figured out between the parties (the complainant and the accused) on account of payment of Rs.2,42,000/- due from M/s Suyash Construction, payment of Rs.35,000/- due from M/s Prakriti Enterprises and payment of Rs.55,000/- and Rs.44,000/- on some other accounts.

27. There is no evidence on record to suggest that the document Ex CW1/A, purporting to be a settlement, pertain to the liability of the accused in respect of the goods supplied by the complainant to him as proprietor of M/s Sonifix Enterprises as asserted on behalf of the complainant in its