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2015 Supreme(Del) 3423
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
Carrara Marbles and Granite Industries - Petitioner
Versus
Simplex Enterprises - Respondent
CRL. A. 874/2014
Decided On : 30.11.2015
For the Petitioners:Mr. Mohit Chaudhary & Ms. Vaishali Mittal, Advocates
For the Respondents:Mr. Sandeep Sethi, Senior Advocate with Ms. Suruchi Aggarwal, Advocate
Headnote:
Negotiable Instruments Act, 1881 - Section 118(a), 138, 139 - Dishonour of cheque - Notice - Beyond 15 days - Validity of - Complaint under section 138 of NI, Act - Same was dismissed by Trial Court on two grounds - Notice was time barred - Transactions appeared to be bogus - Cheques were returned dishonoured vide return memo dated 03.04.1998 - Notice was sent on 23.04.1998 - Respondent's bank is situated in Mumbai, whereas the drawee's bank is situated in Delhi - IFOBC charges were debited to the account of the appellant/complainant lastly on 11.04.1998 - No evidence was produced that the dishonour memos were, indeed received by the drawee's bank, and thereafter the drawee on 03.04.1998 or soon thereafter - Held, there was no reason to disbelieve the evidence of the appellant that the notice of dishonour was received by the appellant.
Negotiable Instruments Act, 1881 - Section 118(a), 138, 139 - Dishonour of cheque - Liability - Presumption of - Accused had issued the cheques - Presumption envisaged by Section 118 of the NI Act would have to be invoked - Defence set up by the accused is not premised on the proviso to Section 118 - Accused has not alleged that the cheques had been obtained by means of an offence or fraud - Presumption raised by Section 139 of the NI Act also arises - Accused did not appear as defence witness to depose in terms of the defence that no marble had been supplied, in respect whereof the cheques in question had been issued - Accused did not rebut the presumption - Mere denial of transactions cannot be considered as proof of rebuttal of the presumption - Transactions were proved on record by the accused witness by producing the bill books of the appellant pertaining to the supply of goods to the accused - Held, impugned judgment of the MM is perverse - Judgment of acquittal is set aside.
Negotiable Instruments Act, 1881 - Section 118(a), 138, 139 - Dishonour of cheque - Re-presentation of cheques - Legality of - Re-presentation of the three cheques by the complainant before the issuance of the notice and filing of the complaint has been adversely commented upon by the Magistrate - Complainant was entitled to present and re-present the cheques even after dishonour, if the said presentation was made during the validity period of the said cheques - Occasion to file the complaint arose only when upon dishonour of the cheques, - Statutory notice was issued and the cheque amount not paid within time - Complainant was not obliged to disclose in the complaint the particulars of each and every occasion - What was relevant was the last presentation of the cheques by the complainant and the last dishonour of the cheques, following which the statutory notice was issued by the complainant.
VIPIN SANGHI, J.
1. The present appeal under Section 378 Cr PC is directed against the judgment and order dated 24.03.2012 passed by Sh. Nipun Awasthi, M.M.-01 (NI Act) South, Saket Courts, New Delhi in CC. No. 1333/1, whereby the appellants/complainants complaint under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) was dismissed, and the accused/respondent was acquitted.
2. The case of the complainant Carrara Marbles and Granite Industries, is that it is a proprietary concern of Sh. Ashok Mittal, son of Sh. Gurdas Rai Mittal, and deals in the business of Italian Marbles. The complainant supplied Italian Marbles to the accused and maintained a running account of the accused. The goods were supplied on the assurance of the accused that the price of the marbles would be remitted by them to the complainant by way of cheques. The complainant claimed that the outstanding liability of the accused was to the tune of Rs.1,78,00,000/-, and to discharge the said liability the accused issued the following three cheques in favour of the complainant, drawn on Punjab National Bank, PNB House, Fort, Bombay towards the price of Marbles. The details of the three cheques are as follows:
Cheque No. Date Amount (Rs.) Exhibit
537520 08.10.1997 Rs. 1,00,00,000/- Ex. PW1/A
537542 08.10.1997 Rs. 50,00,000/- Ex. PW1/B
537541 08.10.1997 Rs. 28,00,000/- Ex. PW1/C
3. The complainant presented the aforesaid cheques for encashment to their bank, viz. The Madura Bank, Connaught Place, New Delhi on the due date, but the cheques were returned dishonoured with the remarks ‘refer to drawer’ vide return memo dated 03.04.1998. The legal attorney of the complainant sent a legal notice dated 23.04.1998 to the accused. The accused failed to pay the amount of the three cheques within the statutory period and, accordingly, a complaint under Section 138 of NI Act was preferred by the complainant/appellant.
4. The complainant filed the complaint against accused no. 1 – the firm Simplex Industries, accused no. 2 – Kirman K. Mistry and accused no. 3 – Mansoor Bhai. The proceedings against accused no. 3 Mansoor Bhai were abated on his death. The notice under Section 251 Cr PC for the offence punishable under Section 138 NI Act was issued vide order dated 08.06.1998. Upon being summoned, the accused entered appearance; pleaded not guilty, and claimed trial. The parties led their respective evidence.
5. The Ld. MM held, firstly, that the notice of demand was not issued within the statutory period of 15 days of notice of dishonour of the cheques, and the complainant did not explain the delay of 5 days. The notice of demand sent to the accused, is dated 23.04.1998, whereas the return memo is dated 03.04.1998. Thus, the notice was held to be time barred. Secondly, the Ld. MM concluded that the transactions were bogus, as the complainant did not produce any evidence – such as the bills; delivery receipt; account statements; quantity of marbles supplied – to establish that the marbles were delivered to the accused. Lastly, Ld. MM held that it was doubtful that the alleged transaction of sale of marbles did actually take place, as the cheques had been presented repeatedly to the bank for encashment. It was held that the instruments, i.e. the three cheques do not carry any consideration, as the transaction alleged by the complainant is proved to be manifestly bogus. Therefore, the complaint was dismissed.
6. Learned counsel for the appellant submits that a perusal of the impugned judgment shows that the same is completely perverse. The learned Magistrate has, while dealing with the complaint, returned findings which are contrary to the evidence brought on record and taken into consideration aspects which have no material bearing on the case. Learned counsel submits that the findings returned by the learned Magistrate on all the aforesaid aspects- namely, of delay in filing the complaint; of the transaction being bogus; and that the transaction did not take
