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CRL.A. 264/2018, CRL.A.267/2018, CRL.A.268/2018, CRL.A.269/2018 and CRL.A.270/2018
Decided on 9'^ May,2019 ROOPSHREE CREATIONS Appellant
Through: Mr. Kirti Uppal, Sr. Advocate with Mr. Navneet Thakran, Mr. Aman Bhalla, Mr. Abhimanyu Redhu and
• . i iyir.'Aditya Awasthi,Advs.
■ > ' r--" ■ ■■ ; '. versus-'•»' '
NIRANJANKUMARNAfelA'' ' Respondent
Through:/: ^Mr.jRaghu Tandon.Adv. Imm w r 'i
HON'BLE MR. JUSTICE A.K. PATHAK, J. (ORAL) / U J /
JUDGMENT
1. The above noted appeals are disposed of together since same are in similar facts.
2. Arguments heard and trial court record perused. Crl.A.Np.264/2018 2019:DHC:7861
3. Appellant (complainant) filed five complaints under Section 138 of the Negotiable Instruments Act, 1881 (the Act, for short) against the respondent (accused) before the trial court with the allegations that since 1992 respondent and his sister concerns had been purchasing goods from it on cash and credit basis. Appellanthad been maintaining running accountin the name of accused in its bookscdfiaBcount, in the normal course of business. All the transiacfions bet\^ee^he appellant^^hd respondent were,/i"f duly reflected issued five cheques. Howeve^lokSfesliktafiiGn'the cheques were,returned unpaid by the banker of llf|elpiiif with the remarks "funds insufficient". The detailsoftheenequesMr%^ under.i S.No. CC.No. Cheque ^Dishonoured Cheque No. r-'f-csc- Vide Memo dated.1S£. Amount
1. 5211/10 49692^1 |gp!2005 3,00,000/-
2. 5224/10 496927 31.10.2004 05.04.2005 3,00,000/-
3. 5204/10 496928 30.11.2004 12.05.2005 3,00,000/-
4. 5222/10 496930 31.12.2004 12.05.2005 4,74,014/-
5. 5225/10 496926 30.09.2004 18.03.2005 2,25,986/- Crl.A.No.264/2018 Page 2of13 -JL
4. Appellant served legal demand notices dated 02.04.2005,04.05.2005 and 01.06.2005 on the respondent. However,respondent failed to pay the amounts involved in the cheques within 15 days ofthe receipt of notices, hence,had committed the offence under Section 138 ofthe Act.
5. Appellant examined its partner Sh., Rajiv Khanna as CWl. Respondentsummoned Inc0me^iiTax|{6fficial ds0,W[4],who placed on record and proved the Income Tax Retum'siM'^Mwith list offcreditors and debtors ^■SeGtipnti30ll^ respondent admitted Hli'lK
6. In his statement, under'^SIg having issued the cheques in qM|t|oh:^ H|)M^er, he took a defence that the cheques were handed over tWappejlM^S^|lya^^ against the performa wen''-'. invoices for supply of goods. Appellant never supplied the goods, thus. ifeji chequeswerenottobepres%ht|^^^^
7. On scrutiny of the evidence adduced by the parties trial court has concluded that appellant had failed to establish that the cheques in question i were issued against the existing debt or liability, consequently, dismissed the complaints and acquitted the respondent. For arriving at this view trial court has given the following reasons Crl.A.No.264/2018 "6. In my opinion,the accused hassucceeded in rebutting the presumption of liability sufficiently. It is important to underscore that the complaint in this case has consistently maintained having business relations with the accused and its sister concerns ever since 1992. Complainant has also claimed that the goods were sold to the complainant on cash and credit basis and the complainant has been maintaining a running account in the name of the accused in its books of accounts. However,what is striking is^t^tl^ complainant has failed to come up with even an^QtaloMviSbncefpfihaying supplied the goods to the aepus^dd#The cppplainailtiiiaving%^specifically averred the,|^since evide4^^ business.d^iR^^with the!%0jS:sed?d^jghtS|d?h ledl^'^same in evidence-EspeciallywheiBei^c^ps^d^^^enthedifehceof nonsupplyofgoodscon|k^^||»plainantwhilgtoder cross eamination onMiI|l||i»«fii CC No. 5224/10, subsequently adopted in ^^l;|he,case^^^^ having filed its annual returns with the I|F|;depa]^lfen^ and also that each & every detail with resp^^^^^^e to parties, sale of material has been stajiM^^^fi^fe^^eir returns, which includes the dealing^^^^^^^M^ since 1992. The complainantalso deposdl^J^^^l^^fproduce the same in the court. However nothing was produced by the complainant,it is importantto underlir^^j^fe^thatti[je^^^.ainanthasclaimed havingsuppliedgoodsli"^^^p®|dI^Jl§feeaccusedunderthe cheques in question alone. He ought to have some bills/statement ofaccounts/delivery challans to substantiate the same. The absence ofthese evidences,in these circumstances, makesthe defense ofthe accused ofnon supply ofgoods,quite probable. The complainant was next cross examined on 26.03.2011 (placed in CC No. 5224/10), wherein he admitted having not filed on record any bills with respect to dealings with the Crl.A.No.264/2018 Page4of13 accused,however added thathe had giventhe respective billsto his previous counsel to place them on record but he had not filed the same. Now, even if it is assumed for the sake of argument that the complainant had handed over the bills to the previous counsel who was negligent in not filing the same to the court, it is not the case of the complainant that any complaint was filed with respect to loss ofimportant papers or claiming negligence againstthe counsel.In these circumstances the plea ofhaving given the papersto the earlier Counsel seems to be a mere eye wask %ip&oniSoing'business running into. lacs for severgh'.years,~^ ought to'^hdv^ at-least some f ) 1,,,.Adefencfe-^Ke accusedin®||;ddfeh^|0^iice broughtorirecord the tax returns,balancd^^s|^^4^ftditors and debtors of the complainantfirm for|h^|fih|:noi^^^ 2004-05,2005-06, 2006-07throughincomet|^|if|^eia||^^^ wholedandproved these documentsinevidehc^dME^lllilil/l-Col^ (runninginto
4 A perusal of manifests that the name of M/s Gagandeep'^Em]^fium (Accused firm) has not been shown as a sundry debtor anywher^. The witness was crossexamined,howefe&ifotlfingcpuldsfilicited from himin his brief cross examination that wbuld-render his testimony unworthy of credence. Suffice would it be to say that the complainant could not explain the non mentioning ofthe name ofthe accused in the list ofdebtors. Therefore,seen in light of the fact that there is no evidence from the side of the complainant with respect to any supply of goods, the non disclosure of the supply of goods and outstanding debt in IT returns/balance sheets, deals the veritable coup de grace to the complainant's case and renders it completely unworthy of Crl.A.No.264/2018 Page5of13 r belief.To sum it up,the total absence ofevidence ofsupply of goodsin this case,seemsto be the very evidence ofits absence. The accused has made it fairly plausible that no goods were supplied in this case on preponderance of probabilities, and that's all an accused in a case like this can do.The onus having shifted back on the complainant,he failed to bring any material on record to prove the dealings."
8. Learned senior counsel has contended that a presumption arose in favouroftheappellantand^^s?j1iietd^]fend^^1iftvviewoftheSection118 read with SectiorrJ|9 bfthe cheques hai^^efen issued by the respondentin^arge orot^nity. In view ofsucBiptesumption hae|fp^^S$infavourofffij'appellant, appellant was not liable to pr6|iuGS|bife^^ of accounts or any other fMiM'&ihMr document. On the contrary,theionu^wa^^ respondentto establish his defence so as to rebut he failed to discharge by leading any cogentevidence.Redtaftce^lSs placed on Rohitbhai Jivanlal Patel Vs.State ofGujarat SC 389. Learned senior counsel has further contended tha!t CWi,in his cross-examination, has categorically stated that books ofaccount were maintained by him and were with him. Despite this respondent did not seek production of such books ofaccounts in court,therefore,an adverse inference arises that ifsuch books had been produced the same would have gone againstthe respondent. Crl.A.No.264/2018 Page6of13 ^1) Reliance has been placed on Suresh Thomas Vs. Mod Enterprises MANU/DE/2826/2016.
9. Per contra, learned coimsel for the respondent has vehemently contended that respondent had succeeded in rebutting the presumption by 'preponderance ofprobability',inasmuch as,the respondent had summoned theincometaxreturnsofthpafipjllS^lmtheIncomeTaxDepartmentfor the relevant periods^which includedlth^f^t ofsundry'-brdkitors and debtors ofappellant(Ex^fi)Wl/l c%|i^|}^l[4]:^^p^whereof'^teai?ly indicates that name o§;the respondentt3^^nWf^^|H^4|mnntioned in the^said list of sundrydebtors.Though,CWl^^^^j^^Wmesofsisterconcernsofthe respondentasChabraSareeSan^^i^iA^d^,SilkandSarees,Gagandeep Emporium and Roop Colleci^h^ldt^JcMM Chabra Saree Sangam no ('^\ other alleged firm wasshown intheTisfofiSllndry debtors. In the complaint, appellanthadnotgiventhe|Mp^^fsiste^gi|^ oftherespondent. Itis ■ tv'j -j:::; \"T^^ also notthe case ofappellantthatrespondenthad issued the chequesto clear the liability of Chabra Saree Sangam. It is further contended that Chabra Saree Sangam was shown to be debtorto the tune of^1,96,260/- only,in the list ofsundry debtors for the financial years ending 31®^ March,2005,2006 and 2007; whereas the total amount involved in the cheques in question Crl.A.No.264/2018 Page7of13 r <3^ comes to f16,00,000/-. Learned counsel further submits thatthe standard of prooffor rebutting the presumption under Section 139 ofthe Act is that of 'preponderance ofprobabilities'. Ifthe accused is able to raise a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the presumption under Section 139 of the Act stands rebutted. He has placed re]iancg|dnSRSSgappatVs. Sri Mohan(2010) 11 see441,wherein S^upr^fe'Courtha&held thus
28. In,|heiabsence of^oifeellmg^^ revejsesonus clauses-T-usually burden and;^npt a persuasi^ burden.Keeg|^^i|ii^^fe^Sitisasettled poiition that when an accused presumption under Section 139,the standai|(mi^^^|fe doing so is that of "preponderance of probabifi{ies".^|3lh^fefore, if the accused is ableto raise aprobabl^mb|e^p>WMb^ doubts aboutthe existence of a lega4^^^i^^^4|>t or liability, the prosecution can fail. A^Clarmtdii^fte?"citations, the accused can rely on the materials submitted by the complainant in order to raise such a defei^ge and it is conceival:^||,ythat in some cases the accused may hot ofhis/her own."
10. It is trite law that scope of interference against the judgment of acquittal is permissible only when there are very substantial and compelling reasons. In Sadhu Saran Singh Vs.State ofUP manu/sc/0236/20162016(2) scale 629,Supreme Courthas held thus Crl.A.No.264/2018 Page8of13 <1^
18. Generally, an appeal against acquittal has always been altogetheronadifferentpedestalfromthatofanappealagainst conviction. In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However,we believe that the paramount consideration ofthe Court is to do substantial justice and avoid miscarriage of justice which can arise byacquitting the accused whoisguilty ofan offence. A mi^aA|eiptj^tico^ occur by the acquittal ofthe guil1^-ism6"lessthan from the'conyiction ofan innocent, ^dotirt, the pnrf^Mes with regard tOj-Apcope ofJpM^Mfffipellate Court?,in an appealagHnStacquit^'j^^^^^^^gashranandiCfs.v. has held?- The principles with regatfc|| ofthe powers ofthe appellate Court m an ^PMflpiaiistl^^ are well settled. The powers of the an appeal against acquittal are no less conviction.But where onthe basisof view are possible ■ appellate Courtcannotb^uimifuf^ltsviewintheplaceof that ofthe trial Couitt Itis only when theapproach ofthe trial Courtin acquitting clearly erroneous in its consideration of e^HSe#oii^ebord and in deducing conclusions there from that the appellate Court can interfere with the orderofacquittal.
19. This Court,in several cases,has taken the consistent view that the appellate Court,while dealing with an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order ofacquittal is founded. If the appellate Court, on scrutiny, finds that the \ I Crl.A.No,264/2018 decision ofthe Court below is based on erroneous views and against settled -position of law, then the interference of the appellate Court with such an orderisimperative.
20. This Court in Chandrappa v. State of Kamataka: MANU/SC/7108/2007:(2007)4SCC 415,after referring to a catena of decisions, has laid down the following general principles with regard to powers ofthe appellate Court while dealing with an appeal againstan order ofacquittal:
42. From the above pecisioris, ift our:sGonsidered view, the followin^gehera!principlesregaMihg.^o^ersofthe appeMeXdurtv^ils an appeaMgainstan ord^acquitl^lMg^l^jfci. power to 'r^Aew, (2) The Code of'Cri'm!ihkl^ld^ 1973 puts no, iiS# limitation, restrictiMkonAbonaiti#i on exercise of such power an appelM^Cb before it may luestions offact and oflaw. (3) Various ^|xpressipns, such as, 'substantial and compellingre&^^^^^ai^d^®ficientgrounds','very strong circumstances',''distorted'conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes oflanguage'to emphasise the reluctance ofan appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. Crl.A.No.264/2018 Page10of13 u/ (4)An appellate Court,however,must bear in mind that in case of acquittal,, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be iimocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal,the presumption of his innocence is further reinforced, reaffmned and I *'y strengthened b^ljtn^^urt. ff!)) (5)If^oQpasonablejjop^sions are pggWe on the basisSopthe appe^^Court OnscrutinyoftheevideiAi&i^#dfcfthetrialcourtIfindthatthe 11. view taken by the trial court,, There are no compelling K reasonsinthiscase,tointerfe^S^S^t^^tofthe acquittalpassed by \ ■ the trial court. Sufficient,justifiable and cogentreasons have been given to hold thatrespondenthad sule|ededM^^ and"burden shifted on the appellantto prove thatthe chequesin question were issued by the respondent in discharge ofa legally recoverable debt and the appellant failed to provethis burden. Appellanthad alleged inthe complaintthatright from 1992 respondent and its sister concerns had been purchasing goods from it and appellant had been maintaining the running accountin the name Crl-A.No.264/2018 Page11of13 'A of goods in his books of accounts in its normal course of business. In discharge of his part liability the respondent had issued the cheques. However,averments ofthe appellant to this effect are vague.The names of the sister concerns of respondent were not disclosed in the complaint. Details ofinvoices and bills with the name ofthe firms to which goods were supplied were not spelled out. On the contrary,respondent took a specific defence that the cheques were issued.as advance against the performa invoices but the goods were not supplied.'In view ofthis defence, it was incumbent upon the appellant to hadiproducdd the relevant records which was not done. On the contrar^,.;;fespbhdenf summoned the income tax i:: ^ returns of appellant for the fmancial-yeard2004-05,2005-06 and 2006-07, which were produced by thedhbdnfeftax'o^ proved as Ex.DWl/1 "•/iv. v: > A)t.' collectively. List ofsundry d^btdfMq^^l^^ancial years ending on 31"' March,2005,2006 and 2007 does not reflect the name ofthe respondent as sundry debtors. The names ofallegedsister'concerns,namely,Aanchal Silk and Sarees, Gagandeep Emporium and Roop Collections also not there. Only name ofChabra Saree Sangam is reflected as sundry debtor thattoo to the tune of^1,96,260/- only; whereas amount involved in the cheques is ?16 lacs. The defence raised by the respondent created a suspicion aboutthe Crl.A.No.264/2018. Page12 of13 existence ofa legally enforceable debt or liability by applying the principles of'preponderance ofprobability'.
12. Thejudgment Rohitbhai(Supra),reliance whereupon has been placed by the petitioner, is in the context ofdifferent facts and is ofno help to the petitioner.
13. For the foregoing reasons, above-noted appeals are dismissed with costs of ^25,000/- each to be,deposited^ with,the Delhi High Court Bar Association Lawyers' SocialSecurity Welfare Fund, New Delhi within four weeks. Miscellaneous applicationa:^afe:,d^ ofas infructuous.. >■ -l" ■ ■ ■ ■' iV' MAY 09, 2019 ga 0^,: W. Wm A-K. PATHAK, J. '.Vvs'-