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2015 Supreme(Del) 1009
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
Indian Micro Electronics Private Limited – Petitioner
Versus
Chandra Industries & Others – Respondents
Crl. L.P. No. 233 of 2014
Decided On : 30.6.2015
For the Petitioner:Mr. Amit Anand, Mr. Rohit Kumar and Mr. Brijesh Kumar, Advocates.
For the Respondent:Mr. Himanshu Anand Gupta, Advocate.
Headnote:
Evidence Act, 1872 - Section 65B - Electronic evidence - Without certificate - Admissibility of - An electronic evidence to be admissible as evidence, it is required to have a certificate in accordance with the Act - Copy of the e-mail is not certified - It is not admissible evidence and cannot be relied upon by the accused.
Negotiable Instruments Act, 1881 - Section 138, 139 - Dishonour of cheque - Presumption - Non-rebuttal of - Presumption under Section 139 NI Act arose in the case - Defence had not meet the standard of being probable upon preponderance of probabilities - Defence with regard to materials were of inferior quality - Accused has not managed to show, even as probable, its defence that the complainant company supplied materials of inferior quality - Held, presumption under Section 139 NI Act is also not rebutted.
Negotiable Instruments Act, 1881 - Section 138, 141 - Dishonour of cheque - Purchaser manager - Non fulfillment of obligation - Liability of - Accused no. 3 placed the orders on behalf of the accused firm - Cheque was dishonoured, and a legal notice was sent to the accused no. 3, as well as the accused firm - Accused no. 3 was a part of the accused firm when the offence was committed - As a purchase manager, his responsibility would not be limited to just place orders for purchases, but to ensure fulfillment of all obligations qua the purchase orders by both - the seller and the purchaser - Accused no. 3 cannot avoid his liability of being held responsible for payment of the amount due by the firm - Impugned judgment of acquittal is set aside - Accused no. 2 stands acquitted - Accused no. 1 and accused no. 3 are found guilty of commission of the offence - Appeal is partially allowed.
VIPIN SANGHI, J.
1. After hearing learned counsel, leave granted.
2. Let the appeal be registered and numbered.
3. With the consent of learned counsels, I heard learned counsel finally at the admission stage and reserved judgment. Accordingly, I now proceed to dispose of the appeal.
4. This appeal is directed against the judgment and order dated 04.01.2014 passed by Sh. Apoorv Sarvaria, Civil Judge-I, New Delhi in CC No. 332/11 under Section 138 of Negotiable Instruments Act (NI Act). The complaint preferred by the appellant has been dismissed by the impugned judgment, and the respondent/accused were acquitted.
5. The case of the complainant was that - the complainant company is a Private Limited Company incorporated under the Companies Act, 1956 having its office at Okhla Industrial Area, New Delhi. It is dealing in manufacture of different kinds of goods and allied products. The respondent/accused No. 1, M/s Chander Industries, represented itself to be a partnership firm. It approached the complainant and placed orders between the period of September, 2007 to February, 2008 for supply of goods. The accused No. 1 firm was supplied the goods/materials as per the purchase orders through one Sh. Parveen Aggarwal (accused no. 2) and Sh. GK Mishra (accused no. 3); the goods were lastly supplied on 25.02.2008; Form-C were issued by the accused on 26.02.2008; the partner of the accused signed the accounts statement; the accused made payment of Rs. 10,55,788/- only, leaving an outstanding balance of Rs. 7,18,432/-. To discharge the remaining liability, the accused issued two cheques of Rs. 2 Lakhs each.
6. The first cheque was cleared, but the second cheque bearing no. 013983 dated 25.06.2008 (hereinafter referred to as “the cheque”) drawn on State Bank of India, SSI Branch, Baddi, Solan, Himachal Pradesh was dishonoured for reason of “payment stopped by drawer”. The cheque was issued by accused no. 2, disclosing himself to be a partner of the accused firm. The complainant sent a legal notice dated 05.07.2008 through registered post to the accused. The accused firm replied to the legal notice and raised a dispute with regard to the quality of the goods supplied. The accused firm failed to pay the amount of the cheque within the statutory period, and accordingly, the complaint under Section 138 of NI Act was preferred by the complainant/appellant.
7. Upon being summoned, the accused entered appearance. The accused was served with the notice, under Section 251 Cr PC for the offence under Section 138 NI Act on 27.10.2009, to which the accused pleaded not guilty, and claimed trial. The parties led their respective evidence.
8. The complainant in support of its case produced 3 witnesses. CW-1 Tapas Kumar Nandy; CW-2 Raj Pal- Assistant Clerk in SBI, Baddi, HP; and CW-3 DC Sharma-Senior Manager, Punjab National Bank, Greater Kailash-I. Statements under Section 313 Cr PC of the Authoritative Representative (AR) Rajat Aggarwal of the accused firm, accused no.2 Praveen Aggarwal and accused no. 3 G.K. Mishra were recorded. Further, accused firm produced accused no. 2, Parveen Aggarwal as DW-1 and AR of the accused firm, Rajat Aggarwal as DW-2.
9. The defence of the accused, firstly, was that the accused firm had issued two post dated cheques of Rs. 2 Lakhs each, which were to be encashed on the condition that the quality and quantity of the material supplied by the complainant was confirmed/ approved by the accused firm. Secondly, it was urged that since the quality of the material supplied by the complainant was not of the requisite standard, and was found to be defective after inspection; the goods were rejected by the accused firm. Consequently, the payment was stopped by the accused firm. Accused claimed that when cheque is dishonoured for the reason “payment stopped” and the reason for stopping the payment is valid, it does not amount to dishonour of cheque under Section 138 NI Act.
10. The Trial Court accepted the defence of the
