S.S. Talwar v. Sudhir Garg

1. By the present leave to appeal petition, the Petitioner seeks setting aside of the order dated 5th May, 2009 passed by learned Judge, dismissing the complaint ofthe Petitioner filed against the Respondent under Section Crt. L.P. 120/2010 page1of[5] 2011:DHC:8086 138 ofthe Negotiable Instruments Act.

2. Learned counsel for the Petitioner contends that the impugned order acquitting the Respondent and dismissing the complaint is based on conjectures and surmises. Learned Trial Court failed to appreciate the fact that the Petitioner was having business transactions with the Respondent and the cheque in question was issued by the Respondent to fulfill his business liability. The Respondent has admitted in his cross-examination that he was carrying his business with M/s Hotline Electronic Ltd. and Mr. S.S. Talwar the Petitioner herein was providing commercial trucks for transportation as well as loading and unloading of the goods. Learned Trial Judge had failed to take judicial notice of the fact that the Petitioner has been running the business of transportation and in such business goods are dispatched on oral instructions and directions. In the present case, the Complainant had transported the goods of Respondent as per his directions and the cheque in question was issued by Respondent to discharge his liability. Learned Trial Judge failed to appreciate that the intention of the Respondent was malafide since very beginning as he issued the cheque bearing No. '502562' dated 20th May, 2003 for a sum of Rs.l,42,000/- drawn at State Bank of India, Shahdara, Delhi in favour of Petitioner, though he had closed the said account in the year 2001 which is admitted in his cross-examination. Crl. L.P. 120/2010 page 2 of[5] Thus, the impugned order is bad in law and is liable to be set aside.

3. Pet contra, learned counsel for the Respondent contends that the legal notice sent to the Respondent does not disclose the account number from which the cheque in question was drawn and in the cheque in question the Petitioner had forged signatures of the Respondent. Further, it is stated that the account had already been closed by the Respondent in the year 2001 and he had not issued the cheque in question to the Complainant/Petitioner to discharge any liability. Learned counsel further states Complainant in his cross-examination has stated that he had disclosed all his Income Tax Returns however as per the record there was no outstanding due against the accused/Respondent. The Complainant has further deposed that he never raised any bill against the Respondent. Thus, there is no illegality in the impugned order.

4. I have heard learned counsel for the parties.

5. It would be relevant to note that the only contention of learned counsel for the Respondent is that he did not owe any liability towards the Complainant and had drawn no cheque to discharge any such liability. The Complainant/Petitioner in his complaint has stated that the cheque in question was issued by the Respondent in name of the Petitioner as a payment against the bills submitted by the Complainant/Petitioner for the Crl. L.P. 120/2010 page 3 of[5] (@) sum ofRs.1,46,512/- out of which a sum ofRs. 1,42,000/- was paid through cheque bearing No. '502562' dated 20th May, 2003 drawn at State Bank of India, Shahdra, Delhi, which was dishonoured.

6. Complainant has been examined as CWl who during his crossexamination has stated that the Respondent issued the cheque Ex.CWl/1 in the name of the Complainant as payment against bills submitted by the Complainant. He has also admitted that he has been an income tax payee and discloses all his outstanding dues in his Income Tax Returns. He has also accepted that he has not shown anything against the accused in his Income Tax Returns and there was no outstanding against the accused/Respondent as per the book of account. The Respondent has consistently stated that he had no liability to discharge towards the Petitioner and thus had not issued the cheque in question to him. This testimony ofthe Respondent despite extensive cross-examination could not be shaken. Nothing material was placed on record by the Petitioner to prove his claim.

7. One of the essential ingredients of Section 138 NI Act is requirement of a legally enforceable debt or liability, which in the present case has not been proved by the Petitioner by way of placing any document or relevant material. Thus in absence of proof of the essential ingredients, the accused/Respondent cannot be convicted for the alleged offence. The Crl. L.P. 120/2010 page 4 ofS impugned order does not suffer from any illegality which reqmres interference ofthis Court. The Petition is dismissed being devoid of any merit.

DECEMBER 14, 2011 'dk'