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$-39, 41 & 42.
HIGH COURT OF DELHI
CRL.L.P. 660/2016 and Crl. M.A. Nos. 19606-608/2016
$-39, 41 & 42.
HIGH COURT OF DELHI
CRL.L.P. 660/2016 and Crl. M.A. Nos. 19606-608/2016
CRL.L.P. 664/2016 and Crl. M.A. Nos.19658-661/2016
CRL.L.P. 665/2016 and Crl. M.A. Nos. 19662-665/2016
M/S D.N. PAPER MARKETING Petitioner
Through: Mr. Ambar Qamaruddin & Mr.Tesjasvi Kumar, Advocates.
M/S D.N. PAPER MARKETING Petitioner
Through: Mr. Ambar Qamaruddin & Mr.Tesjasvi Kumar, Advocates.
VERSUS
M/S TIKMANY PAPER P. LTD. & ANR.
Respondent
Through:
Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
19.12.2016 Cri.M.A. Nos. 19606 and 19608/2016 in Crl.L.P. No. 660/2016
Crl.M.A. Nos. 19658 and 19660/2016 in Cri.L.P. No. 664/2016
Crl.M.A. Nos. 19662 and 196664/2016 in Crl.L.P. No. 665/2016
Exemption allowed subject to just exceptions. For the reasons stated in the application for condoning the delay in re-filing the petition, the delay in re-filing is condoned and the same are allowed.
The applications stand disposed of.
2016:DHC:8982 CrI.L.P. No.660/2016 and Crl.M.A.No.19607/2016
Crl.L.P. No.664/2016 and Crl.M.A.No.19659/2016
CrI.L.P. No.665/2016 and Crl.M.A.No.19663/2016
The petitioner has preferred the aforesaid leave petitions to seek leave to appeal against the similar orders dated 07.05.2016 passed in each ofthe complaints being complaint Nos.CC 11576/1/09(in relation to CrI.L.P. NO. 660/2016), CC 13131/1/09 (in relation to CrI.L.P. No. 664/2016) and CC p 13284/1/09(in relation to CrI.L.P. No.665/2016). By the identical orders^ the aforesaid three criminal complaints preferred by the petitioner under
Section 138 of the Negotiable Instruments Act against the same set of accused have been dismissed and the respondents/accused acquitted.
The petitioner has also sought condonation of delay of around 135 days in filing the leave petitions.
Since I have heard learned counsel for the petitioner on merits and I do not find any merit in the present leave petitions, I do not consider it necessary to issue notice on the delay application.
The case of the petitioner is that the petitioner is carrying on its business oftrade in paper and paper products under the name and style of
V' M/s D.N. Paper Marketing. The accused approached the complainant for supply of'duplex board' manufactured by M/s P.N.Paper Mills Pvt.Ltd. by placing different purchase orders. The complainant claimed to have supplied 'duplex board' to the accused from time to time under the said purchase orders. The complainant claimed that in respect of the supplies made,an amount ofRs.20,53,882/- became outstanding against the accused persons. The complainant raised the bills in respect of the outstanding
:5 amount and also sent letters and reminders requesting for payment of the outstanding amount. The complainant claimed that the accused issued 10 cheques in favour of M/s D.N.Paper Marketing including the cheques in question in each ofthe aforesaid complaints. Each ofthese cheques were of
Rs. 2 lacs drawn on ICICI Bank Ltd., Palanappa Complex, Sivakasi. The said cheques were dishonoured upon presentation on account of the insufficient funds. Consequently, the complainant issued the statutory notice under Section 138 ofthe Negotiable Instruments Act. Despite receipt ofthe legal notice,the accused did not make payment and,consequently,the aforesaid complaints were preferred. The accused was summoned and notice under Section 251 Cr.P.C. was framed. The accused pleaded not guilty and claimed trial.
In the post notice evidence,the complainant examined itselfas CWl.
The statement of the accused was thereafter recorded under Section 281
Cr.P.C. read with Section 313 Cr.P.C. The defence taken by the accused was the same as that taken by him at the time offraming of notice under
Section 251 Cr.P.C., namely, that the goods supplied by the complainant were defective. The accused also examined accused no.2 as DWl. He stated that as a general practice, multiple undated cheques used to be issued as security along with purchase orders with specific instructions to present the cheques on different dates to clear the liabilities. The material supplied by the complainant did not conform to the specifications of the purchase orders, and several defects were noticed. Information regarding the defects were given to the complainant. The complainant and Sh. Hemant
Mukherjee visited Sivakasi and inspected the goods. The complainant also collected samples. The accused also produced photographs showing the
M remarks on samples of defective goods in the complainant's own handwriting. These photographs were marked asEx.DWl/D. The accused alsoclaimedthattheclaimantassuredtosendaproperteamtosegregatethe defective goodsbutnosuchteam waseverdeputed and,consequently,stop payment instructions were given to the bank. The trial court held that the defence ofthe accused was probabalised and, consequently, acquitted the accused.
Thesubmissionoflearned counselforthepetitioneristhatapartfrom making a bald assertion that the goods were defective,the accused did not lead any evidenceto substantiatethe said defence.
A perusal ofthe impugned order shows, and this fact was admitted during the cross-examination ofCWl,that undated cheques were given by the accused to the complainant in August,2008. CWl also accepted that information regarding defective goods was given by the accused and inspection ofthe defective goods was carried out by the complainant. All arrangements for inspection ofdefective goods were made by the accused.
The complainant also accepted that the accused had informed the complainant not to present the cheques in question. Accused No. 2 also stated that the complainant along with Mr. Hemant Mukherjee visited
Sivakasi on the expenses ofthe accused for inspection ofgoods and upon inspection ofthe goods,theyfound the goods to be defective. Photographs along with remarks in complainant's handwriting were placed on record as
Mark DWl/D (six photographs). The trial court has observed that no objection was raised by the complainant during trial to the production ofthe photographs Mark DWl/D and no suggestion was given,to the accused challenging the authenticity of the said photographs. No suggestion was given to the accused to challenge the claim of the goods supplied by the complainant being defective. Thus, the conclusion drawn by the learned
Magistrate that the cheques had been given in advance as security towards supply of goods which turned out to be defective was probabalised. The trial court has marshalled the evidence in the case in para 12 of the impugned order in the following manner;
"I have perused the entire record and have given due considerations to the submissions made on behalfoftheparties.
The Court has tofirst see as to whether the complainant has proved that the accused issued the cheques in question towards a legal liability infavour ofthe complainant or notfrom the account maintained by him. To prove this complainant has relied upon his affidavit Ex.CW-l/A. As per complainant, the cheques in question Ex.CW-l/C to Ex.CW-l/Egotdishonoured. ^
Return memos Ex.CWl/F (colly) of cheques are placed on record by the complainant in this regard. To prove that mandatory legal notice Ex.CW-l/G was sent by him, he has relied upon documents Ex.CWl/H& Ex.CW-l/I. Hence, initial presumption is raisedinfavour ofthe complainant.
, Defence taken on behalfofaccusedpersons to the case of the complainant is that cheques in question were issued as undated security cheques regarding supply ofmaterial. Asper accused No.2, the material supplied by the complainant was defective and was not as per purchase order. Accused no. 2 also stated during trial that upon information complainant along with Sh. Hemant Mukherjee visited to Shivakashi on his expensesfor inspection ofgoods and upon inspection ofgoods, they found the goods defective. Photographs along with remarks in complainant's handwriting are placed on record as
Mark DW-l/D (six photographs). It is submitted by Ld.
Counselfor the accused that as cheques in question were given as security cheques and goods supplied by the complainant were defective hence, accused do not have any liability towards the complainant. Per contra, it is submitted by Ld. Counselfor the complainant that supply of goods by complainant to accusedandsignaturesin chequesin question are accepted by accusedandhence,accusedcannotdenytheir liability towards the complainant. ItisfurthersubmittedbyLd Counselforthe omplainantthatbytakingpleaofdefectivegoods,accusedare onlytjyingtoescapefrom theirliability. Complainantduring cross-examination accepted that information regarding defectivegoodswasgivenbyaccusedno.2tohimandtheyalso visitedto Shivakashifor inspection ofgoodsregarding defects goods supplied by him. Complainant specifically did not
Mnh^nZu^ by bim. Photographs . objected by the complainant during triaL NePher any suggestion is given to accused regarding authenticity ofphotographs MarkDW-I/D nor any suggestion
IS given regarding defects in goods on behalfofcomplainant
UponperusalofphotographsMarkDW-l/D andmarkA dated
Uti.12.2008,ItISclearthatthere weresome defectsin thegoods supplied by the complainant. From this, case ofcomplainant comes under the shadow of doubt and liability of accused towards cheques in question become doubtful. Visit of complainant to Shivakashi and acceptance ofhandwriting on
Mark A by complainant, collectively supportthe defence taken by accused. Further, expenses of visit ofcomplainant to
Shivakashiwere borne byaccusedandasa matterofprudence, no one would bear AirFare and other expenses ofotherparty without any reasonable cause and thisfactfurther strengthen the defence of accused. Moreover, since starting of trial, accused had taken the consistent defence that undatedsecurity cheques were given by him to complainantregardingsupply of goods but the goodssupplied were defective and not ofquality asper the purchase orders. All the above discussedfacts, are collectively sujficient to rebut the presumption in favour of complainant and to castshadow ofdoubt over the case ofthe complainant. In view ofabove, complainanthasfailedto show the liabilityofaccusedpersonsregardingchequesin question."
In the light ofthe evidence broughton record,the petitioner hasfailed to point outany perversity in the impugned order calling for interference by this Court bygrantofleave. This Court is ofthe view thatthe defence of theaccusedwasprobablizedasrightlyheldbythetrialcourt. Consequently, Ifind no meritinthesepetitionsand dismissthesame.
DECEMBER 19,2016 si VIPIN SANGHI,J
19.12.2016 Cri.M.A. Nos. 19606 and 19608/2016 in Crl.L.P. No. 660/2016
Crl.M.A. Nos. 19658 and 19660/2016 in Cri.L.P. No. 664/2016
Crl.M.A. Nos. 19662 and 196664/2016 in Crl.L.P. No. 665/2016
Exemption allowed subject to just exceptions. For the reasons stated in the application for condoning the delay in re-filing the petition, the delay in re-filing is condoned and the same are allowed.
The applications stand disposed of.
2016:DHC:8982 CrI.L.P. No.660/2016 and Crl.M.A.No.19607/2016
Crl.L.P. No.664/2016 and Crl.M.A.No.19659/2016
CrI.L.P. No.665/2016 and Crl.M.A.No.19663/2016
The petitioner has preferred the aforesaid leave petitions to seek leave to appeal against the similar orders dated 07.05.2016 passed in each ofthe complaints being complaint Nos.CC 11576/1/09(in relation to CrI.L.P. NO. 660/2016), CC 13131/1/09 (in relation to CrI.L.P. No. 664/2016) and CC p 13284/1/09(in relation to CrI.L.P. No.665/2016). By the identical orders^ the aforesaid three criminal complaints preferred by the petitioner under
Section 138 of the Negotiable Instruments Act against the same set of accused have been dismissed and the respondents/accused acquitted.
The petitioner has also sought condonation of delay of around 135 days in filing the leave petitions.
Since I have heard learned counsel for the petitioner on merits and I do not find any merit in the present leave petitions, I do not consider it necessary to issue notice on the delay application.
The case of the petitioner is that the petitioner is carrying on its business oftrade in paper and paper products under the name and style of
V' M/s D.N. Paper Marketing. The accused approached the complainant for supply of'duplex board' manufactured by M/s P.N.Paper Mills Pvt.Ltd. by placing different purchase orders. The complainant claimed to have supplied 'duplex board' to the accused from time to time under the said purchase orders. The complainant claimed that in respect of the supplies made,an amount ofRs.20,53,882/- became outstanding against the accused persons. The complainant raised the bills in respect of the outstanding
:5 amount and also sent letters and reminders requesting for payment of the outstanding amount. The complainant claimed that the accused issued 10 cheques in favour of M/s D.N.Paper Marketing including the cheques in question in each ofthe aforesaid complaints. Each ofthese cheques were of
Rs. 2 lacs drawn on ICICI Bank Ltd., Palanappa Complex, Sivakasi. The said cheques were dishonoured upon presentation on account of the insufficient funds. Consequently, the complainant issued the statutory notice under Section 138 ofthe Negotiable Instruments Act. Despite receipt ofthe legal notice,the accused did not make payment and,consequently,the aforesaid complaints were preferred. The accused was summoned and notice under Section 251 Cr.P.C. was framed. The accused pleaded not guilty and claimed trial.
In the post notice evidence,the complainant examined itselfas CWl.
The statement of the accused was thereafter recorded under Section 281
Cr.P.C. read with Section 313 Cr.P.C. The defence taken by the accused was the same as that taken by him at the time offraming of notice under
Section 251 Cr.P.C., namely, that the goods supplied by the complainant were defective. The accused also examined accused no.2 as DWl. He stated that as a general practice, multiple undated cheques used to be issued as security along with purchase orders with specific instructions to present the cheques on different dates to clear the liabilities. The material supplied by the complainant did not conform to the specifications of the purchase orders, and several defects were noticed. Information regarding the defects were given to the complainant. The complainant and Sh. Hemant
Mukherjee visited Sivakasi and inspected the goods. The complainant also collected samples. The accused also produced photographs showing the
M remarks on samples of defective goods in the complainant's own handwriting. These photographs were marked asEx.DWl/D. The accused alsoclaimedthattheclaimantassuredtosendaproperteamtosegregatethe defective goodsbutnosuchteam waseverdeputed and,consequently,stop payment instructions were given to the bank. The trial court held that the defence ofthe accused was probabalised and, consequently, acquitted the accused.
Thesubmissionoflearned counselforthepetitioneristhatapartfrom making a bald assertion that the goods were defective,the accused did not lead any evidenceto substantiatethe said defence.
A perusal ofthe impugned order shows, and this fact was admitted during the cross-examination ofCWl,that undated cheques were given by the accused to the complainant in August,2008. CWl also accepted that information regarding defective goods was given by the accused and inspection ofthe defective goods was carried out by the complainant. All arrangements for inspection ofdefective goods were made by the accused.
The complainant also accepted that the accused had informed the complainant not to present the cheques in question. Accused No. 2 also stated that the complainant along with Mr. Hemant Mukherjee visited
Sivakasi on the expenses ofthe accused for inspection ofgoods and upon inspection ofthe goods,theyfound the goods to be defective. Photographs along with remarks in complainant's handwriting were placed on record as
Mark DWl/D (six photographs). The trial court has observed that no objection was raised by the complainant during trial to the production ofthe photographs Mark DWl/D and no suggestion was given,to the accused challenging the authenticity of the said photographs. No suggestion was given to the accused to challenge the claim of the goods supplied by the complainant being defective. Thus, the conclusion drawn by the learned
Magistrate that the cheques had been given in advance as security towards supply of goods which turned out to be defective was probabalised. The trial court has marshalled the evidence in the case in para 12 of the impugned order in the following manner;
"I have perused the entire record and have given due considerations to the submissions made on behalfoftheparties.
The Court has tofirst see as to whether the complainant has proved that the accused issued the cheques in question towards a legal liability infavour ofthe complainant or notfrom the account maintained by him. To prove this complainant has relied upon his affidavit Ex.CW-l/A. As per complainant, the cheques in question Ex.CW-l/C to Ex.CW-l/Egotdishonoured. ^
Return memos Ex.CWl/F (colly) of cheques are placed on record by the complainant in this regard. To prove that mandatory legal notice Ex.CW-l/G was sent by him, he has relied upon documents Ex.CWl/H& Ex.CW-l/I. Hence, initial presumption is raisedinfavour ofthe complainant.
, Defence taken on behalfofaccusedpersons to the case of the complainant is that cheques in question were issued as undated security cheques regarding supply ofmaterial. Asper accused No.2, the material supplied by the complainant was defective and was not as per purchase order. Accused no. 2 also stated during trial that upon information complainant along with Sh. Hemant Mukherjee visited to Shivakashi on his expensesfor inspection ofgoods and upon inspection ofgoods, they found the goods defective. Photographs along with remarks in complainant's handwriting are placed on record as
Mark DW-l/D (six photographs). It is submitted by Ld.
Counselfor the accused that as cheques in question were given as security cheques and goods supplied by the complainant were defective hence, accused do not have any liability towards the complainant. Per contra, it is submitted by Ld. Counselfor the complainant that supply of goods by complainant to accusedandsignaturesin chequesin question are accepted by accusedandhence,accusedcannotdenytheir liability towards the complainant. ItisfurthersubmittedbyLd Counselforthe omplainantthatbytakingpleaofdefectivegoods,accusedare onlytjyingtoescapefrom theirliability. Complainantduring cross-examination accepted that information regarding defectivegoodswasgivenbyaccusedno.2tohimandtheyalso visitedto Shivakashifor inspection ofgoodsregarding defects goods supplied by him. Complainant specifically did not
Mnh^nZu^ by bim. Photographs . objected by the complainant during triaL NePher any suggestion is given to accused regarding authenticity ofphotographs MarkDW-I/D nor any suggestion
IS given regarding defects in goods on behalfofcomplainant
UponperusalofphotographsMarkDW-l/D andmarkA dated
Uti.12.2008,ItISclearthatthere weresome defectsin thegoods supplied by the complainant. From this, case ofcomplainant comes under the shadow of doubt and liability of accused towards cheques in question become doubtful. Visit of complainant to Shivakashi and acceptance ofhandwriting on
Mark A by complainant, collectively supportthe defence taken by accused. Further, expenses of visit ofcomplainant to
Shivakashiwere borne byaccusedandasa matterofprudence, no one would bear AirFare and other expenses ofotherparty without any reasonable cause and thisfactfurther strengthen the defence of accused. Moreover, since starting of trial, accused had taken the consistent defence that undatedsecurity cheques were given by him to complainantregardingsupply of goods but the goodssupplied were defective and not ofquality asper the purchase orders. All the above discussedfacts, are collectively sujficient to rebut the presumption in favour of complainant and to castshadow ofdoubt over the case ofthe complainant. In view ofabove, complainanthasfailedto show the liabilityofaccusedpersonsregardingchequesin question."
In the light ofthe evidence broughton record,the petitioner hasfailed to point outany perversity in the impugned order calling for interference by this Court bygrantofleave. This Court is ofthe view thatthe defence of theaccusedwasprobablizedasrightlyheldbythetrialcourt. Consequently, Ifind no meritinthesepetitionsand dismissthesame.
DECEMBER 19,2016 si VIPIN SANGHI,J
JUDGMENT