NI Act: Court reiterates that  if one of the ingredients of offense u/s 138 is not made out, there is no requirement to dwell upon the existence of other ingredients [Read Judgment]

A Delhi Court in, M/s Aiets.Com Pvt. Ltd. Vs. Shardha Gupta, reiterated the findings in K.   Bhaskaran Vs. Sankaran Vaidhyan Balan and stated the above-mentioned conclusion. The court in this court also rejected the claims of the accused who failed to produce enough evidence upon reverse onus clause.

Facts

The complainant was in the business of preparing and providing books. The accused became a regular customer of the complainant and a running account was made and a sum of Rs.3,85,184/­ was due and payable by the accused as on 20.10.2017.  It was specifically agreed between the accused and the complainant that the accused shall make payment with regard to supplied material within a period of 30 days from the date of receipt of the order. For discharge of liability, a cheque dated 20.10.2017 for an amount of Rs.3,85,184/­ was issued. Upon presentation on 15.11.2017 the cheque was dishonored. Upon legal demand notice being served, the accused returned some books and Rs.1,81,681.50/­  is yet to be paid. The accused failed to pay the same too and the complainant was registered.

Accused’s Defence

The cheque in question, accused said, was paid as security and Rs. 1.5 lakh was paid by her to the complainant and also some goods were returned. Further as per accounts only Rs. 30,000 was due. She revealed that though the signature was hers, other details were not filled by her.

Arguments

While the complainant was of the view that all requirements u/s 138 of NI Act were met, the accused claimed that the complainant could prove his case beyond a reasonable doubt.

Points for determination and reasons for the decision

The prime question of determination was whether the accused issued the cheque in question to the complainant for discharge, in whole or in part, of any debt or other liability?

Though the liability of proving lies with the complainant, but u/s 118 and 139 of NI Act, 1881, the reverse onus clause comes into being. However, if a probable defense is created by the accused, the onus shifts back to the complainant.

The complainant failed to prove how the accused owed them the amount when the statement of account didn’t mention the same and it also didn’t mention the time when books were supplied. Further, no more evidence was presented by the complainant and there was also no written agreement. There was also no proof of the 4 credit notes that were issued by the complainant to the accused. Also inconsistency in the statements further degenerated the case of the complainant who earlier claimed Rs. 3.85 lakh but later claimed Rs. 4.85 lakh. Lastly, the contentions of the complainant that the cheque was for payment of debt failed miserably when the backside of the cheque had the words ‘ it is a security cheque and is not intended for payment’.  The court also reiterated that if one of the essential ingredients of the offence under Section 138 is not made out, therefore, there is no requirement to dwell upon the existence of other ingredients. The accused was thus acquitted.

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