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2014 DIGILAW 216 (PNJ)

Laxmi Enterprises v. Maa Sheetla Industries

2014-01-27

REKHA MITTAL

body2014
Judgment Rekha Mittal, J. 1. The present appeal has been directed against the judgment dated 08.10.2010, passed by the Judicial Magistrate, 1st Class, Hisar, whereby the respondents have been acquitted of the offence punishable under Section 138 read with Section 142 of the Negotiable Instalments Act, 1881 (in short, 'the Act'). The facts relevant for disposal of the present appeal are that petitioner M/s. Laxmi Enterprises through its proprietor Shri Hari Om Kaushik filed the complaint on the allegations that the aforesaid firm deals in sale and purchase of recycled lubricating oil etc. On 13.02.2002, accused No. 2 (respondent herein) issued cheque No. 454067 dated 13.02.2003 in the sum of Rs. 74,693.00 drawn on Bank of Baroda, Churu on behalf of M/s. Maa Sheetla Industries-accused No. 1, in discharge of its liability towards payment of goods purchased vide Bill No. 1248 dated 13.02.2003. The cheque got dishonoured and returned vide memo dated 13.02.2013 with the remarks 'account closed'. Intimation to this effect was given to the complainant, vide Banker's memo dated 20.03.2003. The accused failed to make payment of the cheque amount, despite receipt of registered notice dated 01.04.2003. 2. After recording evidence during preliminary inquiry, the accused were summoned to face proceedings. On appearance of accused No. 2, notice of accusation for committing offence punishable under section 138 of the Act was served upon her, to which she pleaded not guilty and claimed trial. 3. To prove its case, the complainant examined. Amar Singh, Computer Operator, Union Bank of India, Hisar as P.W.1, Shri Hari Om Kaushik as P.W.2 and Smt. Kavita, an official from Bank of Baroda as P.W.3. 4. On the evidence of the complainant being closed, statement of the accused in terms of Section 313 of the Code of Criminal Procedure (in short, 'the Code') was recorded, wherein she denied all the incriminating circumstances and pleaded her false implication. However, the accused examined Jalpat Rai Goyal, Secretary of Chamunda Gram Udhyog Mandal, Hisar as D.W.1, Raj Kumar Chuahan, Record Keeper from the office of D.E.T.C., Hisar as D.W.2 and Hanuman Singh, Taxation Inspector as D.W.3. 5. However, the accused examined Jalpat Rai Goyal, Secretary of Chamunda Gram Udhyog Mandal, Hisar as D.W.1, Raj Kumar Chuahan, Record Keeper from the office of D.E.T.C., Hisar as D.W.2 and Hanuman Singh, Taxation Inspector as D.W.3. 5. After hearing counsel for the parties and appreciating the evidence adduced on record, the learned trial Court initially passed judgment dated 12.07.2008, acquitting the accused of the offence primarily on the ground that the notice issued by the complainant after dishonour of the cheque is not valid while relying upon the judgments in Gopa Devi Ozha v. Sujit Paul, 1997 (1) Civil Court Cases 603 (Calcutta) and Raj v. Rajan, 1997(3) R.C.R. (Criminal) 508 : 1997 (1) Civil Court Cases 170 (Kerala). 6. The complainant carried the matter in appeal before this Court and the judgment passed by the learned trial Court was set aside and the matter was remitted to the learned trial Court for decision afresh in the light of observations made in order dated 09.03.2010 passed by this Court. 7. The learned trial Court, in compliance with the directions issued and after hearing counsel for the parties passed the impugned judgment, again holding in favour of the accused. 8. Feeling dissatisfied with the judgment passed by the learned trial Court, the present appeal has been preferred by complainant M/s. Laxmi Enterprises through Shri Hari Om Kaushik. 9. Counsel for the appellant has submitted that in the earlier judgment passed by the learned trial Court in the year 2008, the Court held that the accused issued the cheque in dispute, in discharge of a legally enforceable liability and the cheque got dishonoured on its presentation to the Bank, but the accused failed to make payment, despite receipt of notice. However, as the complainant in the notice has claimed payment of amount of Rs. 390.00 towards costs incurred by him in getting encashment of the cheque through clearance, besides cheque amount, the notice was held to be bad and as a result, the complaint was dismissed. According to counsel, this Court, in appeal set aside those findings of the learned trial Court and remitted the matter for re-consideration, therefore, the trial Court wrongly and illegally embarked upon the controversy if the cheque in dispute was issued in discharge of a legally enforceable debt or other liability. 10. According to counsel, this Court, in appeal set aside those findings of the learned trial Court and remitted the matter for re-consideration, therefore, the trial Court wrongly and illegally embarked upon the controversy if the cheque in dispute was issued in discharge of a legally enforceable debt or other liability. 10. Another submission made by counsel is that the learned trial Court has not correctly and properly appreciated evidence on record both adduced by the complainant as well as in defence. It is submitted that Mrs. Anita Goyal accused has not denied her signatures on the cheque in dispute. Her plea that the cheque got lost does not get substantiated more so in the absence of evidence as to how the complainant could lay his hands on the alleged stolen cheque when admittedly, the parties are residing in different towns. It is further argued that the story of the accused that the cheque in dispute was lost is falsified and belied from document Ex. P11 Form 'C', issued by the accused under her signatures, containing reference to purchase of lubrication oil etc. equal to the value of the cheque amount with specific mention of bill number and its date vide which the purchase was made. The plea of the accused that the said Form 'C' in blank was sent to some business concern at Delhi remains a plea without any material to substantiate the same. It remains a mystery to be unfolded by the accused as to how the said Form 'C' was carried in the hands of the complainant for use in the present proceedings. 11. The accused made a complaint to the Sales Tax authority, Rajasthan in regard to misuse of Form 'C' by the complainant, but the said authority, Rajasthan on a detailed inquiry, recorded its findings in favour of the complainant vide letter D.W.3/Y, proved on record by the official of the Excise and Taxation, summoned in defence. Learned, counsel has placed heavy reliance upon letter Ex. D.W.3/Y to support his contention that the cheque in dispute was issued by the accused in discharge of their liability to pay the price of goods purchased vide Bill No. 1248 Rs. 74,693.00. 12. Learned, counsel has placed heavy reliance upon letter Ex. D.W.3/Y to support his contention that the cheque in dispute was issued by the accused in discharge of their liability to pay the price of goods purchased vide Bill No. 1248 Rs. 74,693.00. 12. Counsel for the accused has supported the judgment passed by the learned trial Court with the submissions that the complainant has failed to lead any tangible, cogent and convincing evidence to establish culpability of the accused for commission of offence charged against them. It is further submitted that the bill exhibited on record in regard to purchase of material does not attestation by the accused. There is no evidence on record as to how the material in dispute consisting of lubricating and recycled lubricating oil in 18 drums was transported from Hisarto churu. It is further argued that the Bill Ex. P10 was manufactured by the complainant and this self serving document is not sufficient to prove guilt of the accused. 13. The accused did not issue any form 'C' in favour of the complainant firm and complainant used a blank form 'C' issued by the accused firm in favour of a business concern at Delhi. 14. Much stress has been laid by Counsel for the accused that the account on which the cheque in dispute was drawn, had been closed by the accused in December 2001. Mrs. Anita Goyal wrote a letter to her Banker for closing the account, return of unused cheques with special reference that the cheque No. 454067 dated 13.02.2003 in dispute and two other cheques are missing and the same will be deposited as and when traced out. The documents have been exhibited on record during cross examination of the witness from the Bank of Baroda examined by the complainant. According to counsel, as Mrs. Anita Goyal closed current account bearing No. 1256 on 20.12.2001, with a specific reference that cheque bearing No. 454067 being missing, there was no occasion for the accused to issue the cheque in dispute in the year 2002 or 2003. Further argued that as the cheque in dispute got dishonoured due to account being closed, no criminal liability can be fastened against the accused. In support of his contention, Counsel has referred to Jugesh Sehgal v. Shamsher Singh Gogi, 2009 (3) RCR (Criminal) 712. I have heard counsel for the parties and perused the case file. 15. Further argued that as the cheque in dispute got dishonoured due to account being closed, no criminal liability can be fastened against the accused. In support of his contention, Counsel has referred to Jugesh Sehgal v. Shamsher Singh Gogi, 2009 (3) RCR (Criminal) 712. I have heard counsel for the parties and perused the case file. 15. Perusal of the judgment passed by the learned trial Court would reveal that the Court has recorded its findings on the basis of surmises, conjectures and contrary to facts on record. The Court tried find fault with the conduct of the complainant in presenting the cheque on 13.02.2003, the date on which it is drawn. There is nothing wrong on the part of the complainant in presenting the cheque in the Bank on the very same day, on which the goods were solid and the cheque was issued. The complainant is a small time businessman and he may not in a position to keep the payment pending for days, together. 16. Another reason which weighed in the mind of the trial Court to discard the version of the complainant is that bill dated 12.02.2003 does not bear the signatures of the accused and the same could be created by the complainant at any time. In addition, the Court has held that no document of transportation of the goods has been produced negating the plea of delivery of goods to the accused. No doubt, the bill does not bear attestation of the accused or any representative on their behalf. The Bill makes reference to the vehicle number in which the goods were transported. Anita Goyal, accused, did not appear in the witness box to say that she has nothing to do with the said vehicle of which, particulars are mentioned in the bill. Hari Om Kaushik, proprietor of M/s. Laxmi Enterprises, in his cross-examination, has specifically stated that the vehicle for transportation of the goods was brought by the accused and goods were carried in the vehicle, particulars whereof have been given in the bill. The learned trial Court, for the reasons best known, brushed aside these facts on record while holding that as there is no document in regard to transportation of the material, it falsifies the story of the complainant. 17. The learned trial Court, for the reasons best known, brushed aside these facts on record while holding that as there is no document in regard to transportation of the material, it falsifies the story of the complainant. 17. The Court in para 16 of the judgment has held that the notice calling upon the accused to make payment of the dishonoured cheque was issued beyond the period of 15 days as the dishonoured cheque was returned on 17.03.2003 and the complainant gave notice on 02.04.2003 and the period of limitation expired on 01.04.2003. This finding recorded by the Court below is also contrary to record the complainant in his statement on oath has specifically stated that he received intimation from the Bank in regard to dishonour of cheque on 20.03.2003, therefore, notice issued by the complainant on 02.04.2003 is well within the stipulated period of fifteen days. 18. There is one discrepancy in the case of the complainant which has not been adverted to by the learned trial Court. As per case of the complainant in the complaint as well as in his chief examination by way of affidavit, the cheque in dispute was issued on 13.03.2002 in regard to purchase of material made in February 2003. As per case of the accused, there were no dealings between the complainant and the accused at any time and for that reason even prior to the year 2003. There was no occasion for the accused, in these circumstances, to issue a cheque in favour of the complainant on 13.03.2002. It appears that due to some typographical mistake made by counsel representing the complainant, the date has been wrongly mentioned in the complaint as well as in the affidavit because counsel prepares the affidavit of the party on the basis of allegations in the pleadings. However, this mistake on the part of counsel gets sufficiently explained in view of certain facts brought on record during cross-examination of Hari Om Kaushik. A relevant extract from his statement is quoted thus:- We do riot send any goods outside and the purchaser himself takes the goods. The vehicle of which, the number is mentioned in Ex. P10 was brought by the purchaser himself. Bill is issued to the party and payment is received. We do not get the signatures of the purchasing party. A relevant extract from his statement is quoted thus:- We do riot send any goods outside and the purchaser himself takes the goods. The vehicle of which, the number is mentioned in Ex. P10 was brought by the purchaser himself. Bill is issued to the party and payment is received. We do not get the signatures of the purchasing party. The party gave 'C' form and we gave the goods to him and the accused party in lieu thereof gave a cheque dated 13.02.2003 on the next date. It is wrong to suggest that I did not give any goods to the accused. It is wrong to suggest that 'C' form Ex PI 1 has been falsely prepared by me. It is wrong to suggest that I have been held guilty with regard to sale being bogus in the inquiry conducted by the Sales Tax Department of Rajasthan Government. 19. During cross-examination of the witness, no explanation was sought in regard to his plea that the cheque was issued on 13.02.2002 (sic 13.2.2003?). The bill is dated 12.02.2003 and the cheque is stated to be issued on the next day and is dated 13.02.2003. Form 'C' is proved to be issued by the accused, contains complete particulars of the bill, its date and value. The amount of purchase mentioned in Form 'C' exactly tallies with the value of the cheque. During inquiry conducted by the Sales Tax Department of State of Rajasthan at the behest of the accused, it was found that the accused had made a purchase of lubricating oil of the value of Rs. 74,693.00 and in lieu thereof, the accused issued form 'C', but as the accused failed to make the payment of the cheque amount, a false complaint was made. 20. As has been rightly argued by counsel for the petitioner (complainant), there is no explanation as to how the alleged stolen cheque and blank from 'C' reached the hands of the complainant, to be used in the present case. The accused have not examined any witness from Delhi concern to whom the blank form 'C' with signatures of accused Anita Goyal was sent. It is otherwise difficult to believe that a person would issue a blank form 'C' to a business concern. The accused have not examined any witness from Delhi concern to whom the blank form 'C' with signatures of accused Anita Goyal was sent. It is otherwise difficult to believe that a person would issue a blank form 'C' to a business concern. Anita Goyal did not appear in the witness box under Section 315 of the Coder to deny the purchase of material and issuance of cheque and form 'C' in lieu thereof. However, Lajpat Rai Goyal, father-in-law of Anita Goyal appeared in the witness box. During his cross examination, he candidly admitted that he has got no knowledge about business transactions of the complainant firm and the accused firm. Under these circumstances, the accused cannot seek any advantage from the statement of Lajpat Rai Goyal to rebut the presumption available in favour of the holders of the cheque under Sections 139 and 118 of the Act. The learned trial Court failed to advert itself to those presumptions of law available in favour of the holder of the cheque and to find out if the facts on record are sufficient to rebut those presumptions. The cheque in dispute is of the value of Rs. 74,693.00. It is difficult to believe that if there was no such transaction between the complainant and accused, admittedly operating from different places located in different States, the complainant prepared number of documents to initiate the proceedings in the Court when otherwise there are no allegations that the complainant has any hostility against Anita Goyal accused to file a false case. The complainant produced cogent and conniving evidence on record to establish culpability of the accused for offence punishable under section 138 the Act. The learned trial Court committed a grave error rather illegality to hold in favour of the accused. The findings recorded by the learned trial Court cannot stand the test of judicial scrutiny and liable to be set aside. 21. For the reasons aforesaid, the petition is allowed. The judgment passed by the learned trial Court is set aside. The respondents are held guilty of committing offence punishable under section 138 of the Act. 22. Let the accused be heard on the quantum of sentence. Adjourned to 31.01.2014. Crl. Misc. A 196 MA of 2011. D/d. 19.2.2014 23. I have heard counsel for the accused and complainant on quantum of sentence. 24. The respondents are held guilty of committing offence punishable under section 138 of the Act. 22. Let the accused be heard on the quantum of sentence. Adjourned to 31.01.2014. Crl. Misc. A 196 MA of 2011. D/d. 19.2.2014 23. I have heard counsel for the accused and complainant on quantum of sentence. 24. Counsel for the accused would contend that Anita Goyal, proprietor of M/s. Maa Sheetla Industries accused No. 1 has faced the criminal proceedings for a period of more than ten years. She had to engage counsel for four times as the matter was carried in appeal twice before this Court and remained pending before the trial Court on two occasions. She is a household lady having a family consisting of her husband and two children. It is prayed that the accused is ready to compensate the complainant and lenient view may be taken. 25. I have given my thoughtful consideration to the submissions made by Counsel for the parties. 26. Section 138 of the Negotiable Instruments Act, 1881 Act prescribes maximum punishment for a term which may extend to two years, or with fine, which may extend to twice the amount of the cheque or with both. In the light of submissions made by Counsel for the parties, the accused are sentenced to fine of Rs. 1,50,000/- i.e. twice the amount of the cheque in question. The accused shall also be liable to pay another amount of Rs. 50,000/- towards compensation to the complainant. The amount of fine, if realized, shall be payable to the complainant towards compensation. If the accused fail to pay fine, Anita Goyal shall be liable to simple imprisonment for a period of one year. 27. Counsel for the respondents requests that the matter may be taken up after lunch session as he wants to seek instructions from his client qua payment to the complainant. 28. Post for hearing after lunch session. 29. At this stage, counsel for the respondents submits that the amount of fine of Rs. 1,50,000/- as well as Rs. 50,000/- towards compensation as awarded by this Court has been paid to the appellant. 30. Counsel for the appellant has conceded to factual position. In view of statement made by counsel for the parties, the petition stands disposed of accordingly.