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2018 DIGILAW 1377 (JHR)

Dilip Kumar Kedia v. State of Jharkhand

2018-07-02

APARESH KUMAR SINGH, RATNAKER BHENGRA

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ORDER : Heard learned counsel for the petitioner. Accused/opposite party no. 2 has not entered appearance despite valid service of notice and sufficient time granted thereafter also. 2. Petitioner has sought special leave to appeal against the judgment of acquittal dated 1st April, 2017 passed in C. P. Case No. 3150 of 2013/Tr. No. 1711 of 2017 by learned Chief Judicial Magistrate, Dhanbad, whereby the sole accused/opposite party no. 2 has been acquitted of the charges under Sections 138 of Negotiable Instruments Act. 3. As per the case of the complainant, who claims to be the Proprietor of Tirupati Ceramics & Monolothic Industries situated at Rajpura, P. S.- Nirsa, District-Dhanbad, the accused used to purchase castable and mattress from the complainant and paid the cost of the same through various Cheques. He supplied these items worth Rs. 13,39,240/- by various Invoices, which were paid through five Cheques in favour of Firm bearing Cheque nos. 000801 and 00082 dated 20.07.2013, 000803 and 000804 dated 20.08.2013 for a sum of Rs. 50,000/- each and the Cheque no. 124458 dated 11.10.2013 for a sum of Rs. 7 lacs, total amount of Rs. 9 lacks. Complainant deposited the Cheque bearing nos. 000803 and 000804 dated 20.08.2013 in his account at United Bank of India on 15.10.2013 and was returned vide Memo dated 01.11.2013 with the information, due to “Stop Payment”. Complainant received the returned memo on the same date. Further Cheque No. 000801 and 000802 dated 20.07.2013 also bounced on its presentation on the same ground and were returned vide memo dated 24.10.2013. Cheque no. 124458 for a sum of Rs. 7 lacs also bounced on account of “Insufficient Fund” which was communicated through Memo dated 01.11.2013. Complainant issued a legal notice on 09.11.2013 demanding the payment of Rs. 9 lacs within 15 days from the date of receipt of the said notice. Accused received the notice on 12.11.2013 but did not clear the cheque amount. Complaint was filed thereafter. 4. After enquiry and statement of the complainant on Solemn Affirmation, accused was summoned to face trial by order dated 14.03.2014 under Section 138 of Negotiable Instrument Act. He pleaded not guilty on the substance of accusation being explained to him on 18.09.2014 and claimed to be tried. 5. Complaint was filed thereafter. 4. After enquiry and statement of the complainant on Solemn Affirmation, accused was summoned to face trial by order dated 14.03.2014 under Section 138 of Negotiable Instrument Act. He pleaded not guilty on the substance of accusation being explained to him on 18.09.2014 and claimed to be tried. 5. Complainant examined himself as C.W.-1 and filed the following documents: “Exhibit 1 is the complaint petition Exhibit 2, 2/1, 2/3 are cheque numbers 000801, 00082, 000803, 000804 and 124458 respectively Exhibit 3/1, 3/1, 3/2, 3/3 and 3/4 are cheque return memoes Exhibit 4 is the signature of the Advocate Sri Udai Shankar Singh on the legal notice dated 09.11.13 Exhibit 5 is the registry slip Exhibit 6, 6/1, 6/2, 6/3, 6/4, 6/5, 6/6 and 6/7 are vouchers” 6. Defence examined two witnesses, namely, Kalyan Kumar Chakrabory (D.W.-1) and Kalipada Das (D.W.-2). Defence also exhibited the following documents: “Exhibit A, A/1, A/2, A/3, A/4, A/5, A/6, A/7, A/8 and A/9; cash deposit vouchers Exhibit B, B/1, B/2, B/3, B/4, B/5, B/6 and B/7; statements of accounts of M/s Sonali International.” 7. Complainant supported his case, in his examination-in-chief, and referred to five cheques issued by the accused for the amounts noted above. He also deposed about the dishonor of cheques and intimation through return memo which along with other documents were exhibited as 1, 2 series 3 series, 4, 5 and 6 series. In his cross-examination, he filed invoice tax memo in the name of Sonali International. The signature of the accused was not on the invoice. Cheque nos. 000801, 000802, 000803 and 000804 bore the stamp of Sonali International. On the legal notice dated 09.11.2013 neither his signature nor the seal of the company were there. He did not remember the date of filing of this case. A reply to the legal notice was filed in the Court. But he again stated that it was not filed. He did not file the documents of registration of Firm. Learned trial court observed that the complainant was on business terms with Sonali International since 2011. It also found overwriting at the place of date on Exhibit-6/1. It also referred to various vouchers of different dates for different amounts made to Tirupati Ceramics & Monolothic Industries against the supply of goods. Learned trial court observed that the complainant was on business terms with Sonali International since 2011. It also found overwriting at the place of date on Exhibit-6/1. It also referred to various vouchers of different dates for different amounts made to Tirupati Ceramics & Monolothic Industries against the supply of goods. According to the complainant, since these payments were paid towards different transactions, therefore, he did not mention it in his affidavit. He denied the defence suggestion that the aforesaid payment was made towards the cheque amount. He also denied the defence suggestion that cheques were issued as security. 8. Defence Witness No. 1, in his examination-in-chief, admitted issuance of cheque nos. 000801, 000082 dated 20.07.2013 in lieu of materials supplied by the complainant’s company to him. According to D.W.-1 another cheque of Rs. 7 lacs was given by him as security to the complainant. The payment of materials supplied to him by the complainant’s company were made through cash deposit in the account of the complainant’s company and through NEFT. Some payments were also paid through the demand drafts in favour of the complainant, details of which were also given by him. He proved Exhibit A and B Series. He accepted business relationship with the complainant since 2009-10. According to him, he had given security cheques 3-4 years thereafter. According to him, payments were made against whatever goods were supplied. Even after filing of the case he had taken goods from the complainant worth Rs. 1-1.50 lacs which were paid through NEFT. He denied the suggestion that he had not paid the cheque amount to the complainant. He denied any memory of the legal notice or his reply before filing of the complaint. 9. Defence Witness No. 2 was the office staff of M/s. Sonali International, who, in his examination-in-chief, stated that in spite of the case he had collected and given goods and obtained challans on behalf of Sonali International from 27.11.2013 to 05.01.2014. He stated that the complainant had received cash in lieu of three challans and there are no outstanding dues against the accused as per his knowledge. He was peon of Sonali International. He does not know how many cheques bounced nor could state the year, date and amount of cheques. He could not state the description of challans mentioned in para 4 of his examination-in-chief. 10. He was peon of Sonali International. He does not know how many cheques bounced nor could state the year, date and amount of cheques. He could not state the description of challans mentioned in para 4 of his examination-in-chief. 10. Learned trial court considered the evidence on record in the light of the allegations made in the complaint and also discussed the submission of learned counsel representing the parties. Learned trial court expressed that the complaint was not maintainable as the case was filed by the complainant, Dilip Kumar Kedia while the cheques were issued in the name of Firm. Complainant was neither payee nor the holder in due course and, therefore, not competent to file the complaint. Further it came to a finding that cheques were issued by Sonali International and the accused had put his signature thereon as authorized signatory. In absence of the firm being arraigned as an accused, the accused facing the trial could not be vicariously liable for the charges. Reference was made to the provisions of Section 118 read with Section 139 of the Act. This is a presumption under these provisions that every negotiable instrument is drawn for consideration, though such presumption is rebuttable. After analysis of the evidence on record, it came to the finding that the accused had been successful in discharging his burden of rebuttal of presumption on the basis of preponderance of probabilities. Therefore, onus shifted on the complainant which he has failed to discharge. Learned trial court also came to the finding that the complainant had failed to file the Income Tax/Sales Tax returns which could disclose that any transaction of money undertaken between the parties was a legal transaction which could lead to creation of a legally enforceable debt or liability. 11. Based on these findings, learned trial court came to conclusion that the complainant had failed to bring home the charge beyond shadow of all reasonable doubts against the accused. The accused was therefore acquitted of the charges. 12. Learned counsel for the appellant has one by one tried to question the findings of learned trial court. He submits that complaint was filed by the complainant as a Proprietor of the complainant’s Firm. Findings in this regard are therefore misplaced. Further the complaint was filed against the accused who represented through the Proprietorship Firm. 12. Learned counsel for the appellant has one by one tried to question the findings of learned trial court. He submits that complaint was filed by the complainant as a Proprietor of the complainant’s Firm. Findings in this regard are therefore misplaced. Further the complaint was filed against the accused who represented through the Proprietorship Firm. The complainant and the accused were not Directors of any Company rather Proprietor of their own Firm. The findings thereto are therefore susceptible to challenge. He further submits that learned trial court has committed an error in holding that complainant had failed to establish the existence of legally enforceable debt on account of non-filing of Income Tax/Sales Tax return. It also erroneously held that the presumption attached to Negotiable Instrument was successfully rebutted by the accused. It also fell in error while believing the story of the defence that the cheque was as security. As such there are various errors of law and facts on which the findings are vulnerable to be challenged in Appeal. Therefore, special leave to appeal may be granted. 13. We have considered the submission of learned counsel for the petitioner and perused the impugned judgment. We have also taken note of the findings of fact arrived at by learned trial court on the basis of evidence as contained in the Lower Court Records. On conspectus of the entire facts and circumstances and the specific grounds urged by the petitioner herein, we are of the view that learned counsel for the petitioner has been able to make out sufficient grounds to grant special leave to appeal against the findings of learned trial court before the appellate court. We however refrain from making any observations on the merits of the findings as it may unfairly prejudice the case of the parties before the appellate court. 14. Accordingly, the instant petition is allowed. Petition allowed.