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2025 Supreme(Online)(DEL) 419
HIGH COURT OF DELHI
Jasmeet Singh, J
M/S VIJAY POWER GENERATORS LTD – Appellant
Versus
M/S TARUN ENGINEERING SYNDICATE – Respondent
CRL.L.P.-7/2018
Mr. B.K. Pandey, Adv., Mr. Dalip K. Sharma and Mr. Subhash Chawla, Advs.
The statutory presumption under the NI Act does not absolve the complainant from proving foundational facts; the burden of proof remains with the complainant.
Headnote:
(A) Code of Criminal Procedure, 1973 - Section 378(4) - Negotiable Instruments Act, 1881 - Sections 138, 118, and 139 - Leave to appeal against acquittal - Petitioner failed to prove that dishonored cheques were issued for legally enforceable debt - Respondent successfully rebutted statutory presumption of consideration - Trial Court's judgment well-reasoned and based on evidence. (Paras 30, 31)
(B) Burden of Proof - The burden lies on the complainant to establish foundational facts despite the presumption under the NI Act - The accused only needs to raise a probable defense to shift the burden back to the complainant. (Paras 12, 20)
Facts of the case:
The petitioner, a company, claimed that the respondent issued cheques for materials purchased, which were dishonored. The Trial Court found that the petitioner failed to prove the existence of a legally enforceable debt. (Paras 2-6)
Findings of Court:
The Trial Court acquitted the respondent, stating that the petitioner did not prove its case beyond reasonable doubt and that the respondent created reasonable doubt regarding the claims. (Paras 30, 31)
Issues: The main issues were whether the cheques were issued for valid consideration and whether the petitioner proved its case under Section 138 of the NI Act. (Paras 6, 30)
Ratio Decidendi: The court held that the statutory presumption under Sections 118 and 139 of the NI Act does not relieve the complainant from establishing foundational facts, and the burden of proof lies with the complainant. (Paras 12, 30)
Result: Leave to appeal dismissed.
| Table of Content |
|---|
| 1. petitioner claims cheques issued (Para 1 , 2) |
| 2. cheques returned dishonored (Para 3) |
| 3. witnesses examined by petitioner (Para 4 , 5 , 7) |
| 4. trial court's view on evidence (Para 6) |
| 5. absence of proof regarding delivery (Para 8 , 9 , 10) |
| 6. burden of proof on complainant (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29) |
| 7. leave to appeals dismissed (Para 30 , 31 , 32 , 33) |
JUDGMENT :
JASMEET SINGH, J.
1. These four petitions are filed under section 378(4) of the Code of Criminal Procedure, 1973 (“CrPC”) seeking grant of leave to appeal against the judgment dated 30.10.2017 passed in C.C. No. 2895/2017, C.C. No. 2894/2017, C.C. 2900/2017 and C.C. 2896/2017 by the learned Metropolitan Magistrate, Karkardooma Courts, Delhi wherein the learned Trial Court acquitted the respondent for the offence under section 138 of the Negotiable Instruments Act, 1881 (“NI Act”) and also seeks setting aside of the order dated 14.10.2017 wherein the learned Trial Court dismissed the application filed by the petitioner under section 311 of CrPC seeking examination of Sales Tax Officer.
FACTUAL BACKGROUND
2. The brief facts of the case are that the petitioner is a company engaged in the business of selling power generators and related equipment and has claimed that the respondent namely M/s Tarun Engineering Syndicate has purchased materials related to Diesel Generator Sets etc. against bills. The respondent issued the following cheques for making part payments against the said purchases:-
| S. No. | C.C. No. | Cheque No. | Cheque Date | Cheque Amount | Drawn on |
| 1. | 289 4/20 17 | 092288 | 22.07.1997 | Rs. 9,79,151/- | Corporation Bank, Greater Kailash, New Delhi |
| 2. | 289 5/20 17 | 092285 | 01.08.1997 | Rs. 8,00,000/- | Corporation Bank, Greater Kailash, New Delhi |
| 3. | 289 6/20 17 | 092284 | 25.07.1997 | Rs. 8,00,000/- | Corporation Bank, Greater Kailash, New Delhi |
| 4. | 290 0/20 17 | 092286 | 15.07.1997 | Rs. 8,00,000/- | Corporation Bank, Greater Kailash, New Delhi |
3. On presentation of these cheques, the same were returned dishonored with endorsement “account closed” (wrongly mentioned as “payment stopped by drawer” in LP No. 16 of 2018). Thereafter, legal demand notice was issued by the petitioner to the respondent. As the respondent failed to pay within the stipulated time, the petitioner filed four (4) separate complaints against the respondents.
4. The petitioner in support of his complaints examined three witnesses to prove its version of the case, namely:-
A.Authorized Representative (AR) Sh. G. K. Pachauri (CW1),
B.Managing Director (MD) Rajesh Kumar Sharma (CW2), and
C.Account officer Kishore Kumar (CW3).
5. Thereafter, statement of the respondentunder section 313 of CrPC was recorded and the respondent examined VAT Inspector Sh. Ramesh B. Rohit as DW1 and partner of respondent’s firm namely Ms. Mukta Seth as DW2 for proving his plea of defence.
6. Vide impugned judgment, learned Trial Court after going through the entire evidence, was of the view that the respondent has successfully discharged the rebuttable presumption that the cheques in question were not issued for valid considerations. The petitioner has not been able to substantiate the cheques in question were issued for legally enforceable debt.
7. Relevant portion of the impugned judgment is extracted below:-
“12. Having noted the relevant testimony of all material witnesses anddocuments of the case, the court proceeds to appreciate the same in properprospective. In this case, the material complainant witness was not even awareabout the diesel engine or alternator, against which cheques in question were issued. MD of the company Rajesh Sharma (CW2) could not even tell about thealleged material against which the dishonoured cheque was issued by theaccused. CW2 did not tell about the invoice against which the cheque wasissued. The MD of complainant company claimed in the cross-examination thatthey were maintaining trading account, profit & loss account and balance sheet.CW2 admitted that the amount of Rs. 1,09,71
