TMI Blog2016 (9) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... anding debt and liability of the accused qua the 61 cheques in question. For all the aforesaid reasons 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 said 61 cheques had not been paid. It is established beyond all reasonable doubt that the accused are guilty of commission of the offences under Section 138 of NI Act in each of these cases. They are, accordingly, stand convicted of the said offence in each of these cases. - CRL.L.P. 232/2015, CRL.L.P. 233/2015, CRL.L.P. 237/2015, CRL.L.P. 238/2015, CRL.L.P. 239/2015, CRL.L.P. 240/2015, CRL.L.P. 241/2015, CRL.L.P. 242/2015, CRL.L.P. 243/2015, CRL.L.P. 244 to 251/2015 - - - Dated:- 31-8-2016 - MR. VIPIN SANGHI J. Petitioner Through: Mr. Avinash Kumar Lakhanpal, Adv. Respondents Through: Mr. Shahid Azad, Adv . VIPIN SANGHI, J. (OPEN COURT) Leave granted. Crl. A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.11.99 01782.00 56. 929556 10.02.00 28457.00 57. 929559 24.01.00 19818.00 58. 929557 10.02.00 28757.00 59. 929537 24.01.00 20185.00 60. 929540 24.01.00 13992.00 61. 929541 24.01.00 06930.00 Total 13,82,814 4. By the common impugned judgment, the learned Magistrate has dismissed the complaints and acquitted the respondent/ accused, by holding that the respondents had been able to dislodge the presumption against them under Section 118 and 139 of the Act. 5. The relevant facts, in brief, are that the appellant company is engaged in manufacture and sale of automotive tyres, tubes and flaps. Accused no.1, which is a partnership concern of the other accused, was appointed a deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lients does not arise at all . 10. The accused also sought to raise several other claims against the appellant in respect of its transactions with the appellant. In the last paragraph, the accused stated: Through this Notice, you are called upon to adjust the total security deposit of ₹ 12,58,000/- as detailed in the para-5 of this notice towards the amount of 61 (sixty one) cheques dishonoured by my client s bank. My client intends to settle the balance only upon the receipt of complete statement of account for the last 3 years from you. The said accounts will establish that in fact my clients have to receive substantial funds from you. You are humbly advised to refrain from filing any complaint u/s 138 NI Act, against my clients and further requested to settle the claims and counter claims in a business like manner across the table . (emphasis supplied) 11. Since the amounts were not paid as claimed by the appellant, the aforesaid complaints came to be filed and registered. In para 7 of the complaints itself, the complainant disclosed that the accused had raised the plea of having made a security deposit/ credit of certain amount. The complaint also averred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the documents Ex. CW1 which is power of attorney. It is correct that power of attorney Ex. CW-1 is in my favour does not have any reference to the resolution in my favour. It is wrong to suggest that no resolution was passed in my favour and therefore it is not mentioned in power of attorney. It is wrong to suggest that I am incompetent to depose in this case . 16. The accused led evidence of Sh. Paramjeet Singh (accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 issued. However, the accused did not lead any evidence to substantiate or even probabalise their defence that they had created a security deposit of ₹ 12.58 lakhs, or that there were other crystallized, established or admitted dues owned by the appellant to the accused. 19. Learned counsel submits that in the face of the stand taken by the respondent/ accused in their reply, there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 invoices/ bills, and had also not produced the statement of account was, therefore, completely misplaced. There was no need or occasion for the appellant to prove the facts which had already been admitted by the accused in their reply to the statutory notice. Pertinently, the accused did not disown their averments in their reply, and did not even seek to explain th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had deposited a sum of ₹ 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 accused asked the complainant to adjust security deposited by us, credit notes for incentives, turnover discount, product discount, interest on security in our regular account and depute a person to reconcile our accounts . The accused asked the complainant not to present the cheques issued in favour of the complainant in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. 33. The complainant had specifically disclosed in the complaints itself that as desired by the accused, the security deposit of ₹ 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 said 61 cheques had not been paid. It is established beyond all reasonable doubt that the accused are guilty of commission of the offences under Section 138 of NI Act in each of these cases. They are, accordingly, stand convicted of the said offence in each of these cases. 35. List on 26.10.2016 to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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