9911796707
TMI Blog2016 (9) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Amount 1. 567392 14.11.99 19697.00 2. 929514 02.12.99 14168.00 3. 929511 30.11.99 28336.00 4. 929509 30.11.99 18403.00 5. 929513 02.12.99 17332.00 6. 929515 02.12.99 18498.00 7. 567393 16.11.99 19697.00 8. 567375 20.10.99 19697.00 9. 567390 12.11.99 19697.00 10. 567389 11.11.99 19697.00 11. 929531 20.01.99 19697.00 12. 929530 24.01.00 19323.00 13. 929543 20.01.00 12762.00 14. 929532 20.01.00 18498.00 15. 929539 20.01.00 09249.00 16. 929525 17.02.00 19697.00 17. 929520 02.12.99 20702.00 18. 929519 02.12.99 19697.00 19. 929518 02.12.99 20185.00 20. 929512 02.12.99 18498.00 21. 929534 20.01.00 20185.00 22. 929506 26.11.99 19697.00 23. 567376 20.10.99 19697.00 24. 567391 12.11.99 19697.00 25. 567395 19.11.99 20185.00 26. 929549 24.01.00 45403.00 27. 929535 20.01.00 01782.00 28. 567394 16.11.99 40370.00 29. 567396 20.11.99 02185.00 30. 929548 24.01.00 19338.00 31. 929501 24.11.99 16735.00 32. 929503 24.11.99 40370.00 33. 929507 29.11.99 19697.00 34. 929508 29.11.99 19697.00 35. 929510 30.11.99 01782.00 36. 567380 01.11.99 19697.00 37. 567 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant averred: "3. That in discharge of your liability against the goods purchased vide invoices detailed herein above you issued following sixty one cheques all drawn on State Bank of India, G.T. Road, Delhi in favour of the company". The appellant then set out the particulars of 61 cheques issued by the accused, as set out herein above. 8. The accused sent a reply to the said legal notice on 12.05.2000. The accused, in response to para 2 of the said notice stated as follows: "2. That the receipt of goods by this firm M/s Indra Tyres, from you, as detailed in para 2 of your notice is not denied. Similarly, the issue of cheques as detailed subsequently in your favour is also admitted. However, these facts alone do not reflect the true and actual dispute between you and my clients, as mentioned subsequently". (emphasis supplied) 9. The accused claimed that the accused had created a security deposit to the tune of Rs. 12.58 lacs with the appellant. The accused sought to give particulars of the manner in which the said security deposit had been created from time to time. It was, inter alia, stated by the accused as follows: "In view of total Rs. 12,58,000/- remaining as securi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with his affidavit by way of evidence towards examination in chief, he produced Ex. CW-1/2 - a copy of the power of attorney in his favour. 14. CW-1, inter alia, stated that the accused had asked for adjustment of the various security amounts. He stated that the security amount of Rs. 1.35 lacs lying with the appellant had been adjusted against 12 cheques, the details whereof had been given in para 8 of the complaint, and that no complaint in respect of the said 12 cheques had been filed by the complainant. 15. CW-1, Sanjay Jain was cross examined on behalf of the accused. He was asked about the board resolution whereby he had been authorised by the appellant company to file complaints on behalf of the complainant. In this regard, he, inter alia, stated: "I do not remember the date on which board meeting the resolution was passed in my favour by the complainant. It is correct that I have not filed the copy of minutes book or the resolution with my affidavit of evidence. It is correct that the said copy of the resolution is not filed on record. Vol. I can produce the same. The resolution was definitely passed only after my joining the company in 2004. I had gone through t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en adjusted and the accused given credit for the same. 18. The submission of counsel for the appellant is that the impugned judgment suffers from perversity. Learned counsel submits that the Trial Court has completely ignored and misread the evidence brought on record by the appellant. The Trial Court has not even properly read and understood the averments made by the complainant/ appellant in the statutory notice dated 02.05.2000 and, in particular, in para 2 and 3 thereof, and the response of the respondent/ accused which was their first stand taken in the matter. The Trial Court has also not appreciated that the accused, in fact, did not dispute the factum of receiving the goods under the invoices as mentioned in the notice, and the factum of issuance of the cheques in question towards payment of the said invoices. The defence of the accused was that the accused had created a security deposit to the tune of Rs. 12.58 lacs and the accused in its reply dated 12.05.2000 called upon the appellant to adjust the said security and also to settle the other claims of the respondent/ accused. Thus, the accused admitted the outstanding debt in respect whereof the cheques in question were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant/ complainant under Section 138 of the Act i.e. Ex. CW-1/5, it is evident that the complainant/ appellant specifically claimed that the appellant effected supplies of the products manufactured by it, namely, tyres, tubes and flaps to the accused during the course of business against invoices, details whereof are also set out in the said notice itself. The appellant had also set out in the statutory notice Ex. CW-1/5, the particulars of the 61 cheques issued by the accused in settlement of the said invoices. The accused responded to the said notice vide Ex. CW-1/8. In the said reply, pertinently, the accused admitted the receipt of goods as detailed in the notice, namely, as against the invoices mentioned in the notice. The accused also admitted issuance of cheques as detailed in the notice itself against the supplies reflected in the aforesaid 61 invoices. Thus, at the time when the said 61 cheques were issued, they were issued in respect of an outstanding debt. In discharge of the said debt and liability, the said cheques were issued. 24. The lacuna found by the Trial Court in the case of the complainant/ appellant that the appellant had failed to lead in evidence the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or establish that the said 61 cheques were given in advance and, secondly, that the accused had no documentary proof/ receipt with regard to creation of security deposits as claimed by the accused of Rs. 10,000/- Rs. 3,000/-, Rs. 5.10 lacs or Rs. 25,000/-. The accused also admitted not to have any document to show that the accused had deposited a sum of Rs. 12.48 lacs as security deposit with the complainant. 29. The approach of the Trial Court in finding fault with the complainant in not leading in evidence the invoices or the account statement is completely misdirected in the facts of this case taken note of herein above. There was no need or occasion for the complainant to lead any such evidence, in view of the admissions made by the accused in their reply to the legal notice under Section 138 of the NI Act. The Trial Court has sought to place heavy reliance on the letter dated 14.03.2000 Ex. DW-1/A (as marked in complaint case no.311/2014). The said document has been given different exhibit numbers in different complaints. It has been marked as Ex. DW-1/5 in CC No.315/2014 - the Trial Court record whereof has been summoned. 30. A perusal of this communication shows that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolutely no basis to conclude that the said 61 cheques had been given towards security. These findings returned by the learned Magistrate are completely contrary to the stand taken by the accused in the response to the statutory notice under Section 138 of the NI Act and, therefore, contrary to the evidence brought on record. 33. The complainant had specifically disclosed in the complaints itself that as desired by the accused, the security deposit of Rs. 1.35 lacs against 12 specific cheques, details whereof are also set out in the complaint itself. This being the position, there was no question of there being any doubt arising in the mind of the court with regard to the outstanding debt and liability of the accused qua the 61 cheques in question. 34. For all the aforesaid reasons, in my view, the impugned judgment borders on perversity and they are, accordingly, set aside. The complainant had been able to establish that the cheques in question had been issued against specific debts incurred by the accused against supplies of tyres, tubes and flaps, and that the said cheques were dishonoured upon presentation and despite issuance of statutory notice, the amount covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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