M/S. Laxmi Cable Co. & Anr. vs The State & Anr.
2010 Latest Caselaw 3913 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELH I
                                 Judgment delivered on: 25th August, 2010

+                       CRIMINAL REV. P. 355/2009

M/S LAXMI CABLE CO. & ANR.                                   ..... Petitioners

                               - versus -
THE STATE & ANR.                                             .....Respondents

Advocates who appeared in this case:

For the Petitioners : Mr. Siddharth Luthra, Sr. Advocate with Mr. K.S.

Negi, Advocate For the Respondents : Mr. Pawan Behl, APP and Mr. Vijay Kumar Gupta, Advocate

CORAM:

HON'BLE MR. JUSTICE P.K. BHASIN

1. Whether Reporters of local papers may be allowed to see the Judgment?(No)

2. To be referred to the Reporter or not?(No)

3. Whether the judgment should be reported in the digest?(No)

P.K. BHASIN,J

The petitioners having failed in the appeals filed by them against

their convictions and punishments awarded to them by the Additional

Chief Metropolitan Magistrate under Section 138 of the Negotiable

Instruments Act, 1881 in two separate complaint cases have now

approached this Court by filing this petition under Section 397 read with

Sections 401 and 482 of the Code of Criminal Procedure, 1973.

2. The relevant facts may, at the outset, be noticed. Petitioner no.1 is a

partnership firm and petitioner no.2 is one of its partners. The respondent

no.2 herein, Rajesh Jain, had filed two criminal complaints (being

complaint cases no.76/2006 & 77/2006) against the petitioners for the

commission of offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 on the allegations that he had business dealings

with them for about 20 years during which period he had been supplying

cable wires to them and had also been doing job work for them on credit

basis. During the course of business dealings between them a sum of

Rs.1.5 crore became payable by the accused to the complainant which

liability the petitioner no. 2 acknowledged also in writing by executing a

promissory note. Thereafter, towards part discharge of that liability the

petitioners had issued two cheques dated 15th November,2005 and 30th

November,2005 for Rs.15 lacs each in favour of the complainant and

one cheque for Rs.9lacs but all the three cheques were dishonoured by the

petitioners' bank on account of funds being insufficient in their account

and the petitioners had failed to make the payment of the three

dishonoured cheques despite having been served with the statutory

demand notice.

3. In respect of the two cheques for Rs.15 lacs each complaint case

no.76/2006 was filed while a separate complaint was filed in respect of

the cheque for Rs. 9 lacs and the same was complaint case no.77/2006.

Both the complaints resulted in the conviction of the petitioners vide

common judgment dated 30th October, 2007. Sentence of simple

imprisonment of six months was imposed upon petitioner no.2 herein and

compensation of Rs. 45 lacs with a default stipulation of further simple

imprisonment of three months was also awarded vide order dated 13th

November,2007 passed by the learned Additional Chief Metropolitan

Magistrate in complaint case no.76/2006 and in the complaint case

no.77/2006 petitioner no.2 herein was awarded simple imprisonment of

three months and was also directed to pay compensation of Rs.14 lacs to

the complainant and in default to undergo further simple imprisonment of

three months and then the compensation was ordered to be recovered as

arrear of land revenue. Costs of Rs.7,500/- were also imposed upon the

accused in both the cases.

4. The trial Court vide the impugned judgment had also disposed of

three other complaints also filed against the petitioners herein by three

other persons claiming themselves to be the proprietors of different firms,

which as per the petitioners were in fact the relatives of respondent no. 2

herein who was the complainant in the two complaints in which the

petitioners stand convicted, and in those three cases the accused-

petitioners were acquitted. The accused-petitioners had filed two separate

appeals and the same were disposed of vide common judgment dated 29th

May, 2009 by the learned Additional Sessions Judge. Those judgments

have now however been challenged by the accused by way of one revision

petition.

5. The accused-petitioners had admitted that they had issued the three

dishonoured cheques but their defence was that they had placed an order

for supply of 17,500 kgs. of copper wire with the complainant on 7 th

November, 2005 and while placing the order he had delivered two

cheques in question without writing payee's name as was requested by the

complainant, as an advance payment with an understanding that those

cheques would be presented to the bank only after the supply of 17,500

kgs. of copper wire had been made by the complainant but the

complainant had supplied to them only 2775.6 kgs. of wire of the value of

Rs.5,92,000/- and had refused to supply the balance material on the

ground that the rates of the material had gone up and had misused the

blank cheques.

6. The learned trial Judge, however, on appreciation of the evidence

adduced by the parties rejected the defence and held that the accused had

failed to rebut the statutory presumption and consequently the petitioners

were convicted and their conviction was maintained by the appellate

Court also.

7. Mr. Siddharth Luthra, learned senior counsel for the accused-

petitioners had contended, while accepting the legal position that

ordinarily there is not much scope for interference by the High Court in

the concurrent findings of guilt rendered by the Court of original

jurisdiction as well as the appellate Court, that the petitioners had

succeeded in rebutting the statutory presumptions available to the

complainant under Sections 118 and 139 of the Negotiable Instruments

Act since the complainant could not produce any documentary proof of

supply of material to the accused. It was argued that in case the

complainant had actually supplied the material for which the accused had

placed order with him he should have produced receipt for that supply

signed by the accused but no such document was produced and in fact he

admitted in cross-examination that he had not maintained any records

regarding the transactions with the accused which circumstance

probabalised the defence of the accused that actually no material was

supplied to them by the complainant and the cheques in question having

been given only as an advance their getting dishonoured did not constitute

any offence. It was also contended that the burden which an accused is

supposed to discharge in cases where there is some kind of statutory

presumption in favour of a complainant like the ones under Sections 118

and 139 of the Negotiable Instruments Act is not quite heavy and the

same can be discharged even on the basis of preponderance of

probabilities. In support of these submissions Mr. Luthra placed reliance

upon the judgments of the Supreme Court in "Kumar Exports vs Sharma

Carpets", (2009) 2 Supreme Court Cases 513, "Vishnu Dutt Sharma vs Smt. Daya

Sapra", 2009 Judgments Today(13) 44, "Krishna Janardhan Bhat vs Dattaraya",

(2008) 4 Supreme Court Cases 54 and " Hiten P.Dalal vs Bratindra Nath

Banerjee", (2001) 6 Supreme Court Cases 16. In the end, a submission was also

made by Mr. Luthra, though the same appeared to be half-hearted one, on

the point of stipulation of imprisonment in case of non-payment of the

compensation awarded by the trial Court and affirmed by the appellate

Court. Mr. Luthra relying upon two decisions of the Supreme Court in

"Ahammedkutty vs Abdullakoya", (2009) 6 Supreme Court Cases 660 and "Dilip

S. Dahanukar vs Kotak Mahindra Co. Ltd. & another", (2007) 6 Supreme Court

Cases 528 had submitted that the trial Court could not have ordered that

in case of non-payment of the compensation amount of 45 lacs of rupees

accused Davender Kumar Sehgal, petitioner no.2 herein, shall have to

undergo further simple imprisonment for three months.

8. On the other hand, Mr. Vijay Gupta, learned counsel for

respondent no.2- complainant submitted that this revision petition

deserved to be rejected since there was little scope for interference by this

Court in the concurrent findings of the two Courts below both of which on

an appreciation of evidence adduced by the parties have held that the

accused, petitioners herein, had failed to rebut the mandatory statutory

presumptions available in favour of the complainant under Sections 118

and 139 of the Negotiable Instruments Act to the effect that the cheques in

question admittedly having been issued by the accused it had to be

presumed that the same were issued towards discharge of a debt or other

liability. Even otherwise, Mr. Gupta contended, the accused-petitioners

had failed to show that the cheques in question were given only as an

advance for supply of the material placed in November,2005 with the

complainant, as was their defence, and further that that defence was in any

case belied by a written admission of the past liability made by petitioner

no.2 and the Courts below having rejected the accused's plea that the

same had been obtained from him under duress the non-production of any

documentary proof regarding supply of material by the complainant to the

accused from time to time on credit basis became totally insignificant and

rightly the Courts below did not attach any importance to that

circumstance. Mr. Gupta also cited two judgments of the Supreme Court

in "Jagannath Choudhary v. Ramayan Singh" AIR 2002 SC 2229 and "State of

Karnataka v. Appa Balu Ingale" AIR 1993 SC 1126 in support of his afore

submissions.

9. After having gone through the trial Court's records and the

judgments of the two Courts below and giving due considerations to the

submissions made by the learned counsel for the accused-petitioners and

the complainant-respondent no. 2 this Court has no hesitation in coming

to the conclusion that there is no scope whatsoever to interfere in the

decisions of the trial Court and the appellate Court either in respect of the

convictions of the accused or the sentences awarded to them. As has

been noticed already, the accused - petitioners had admitted that the three

dishonoured cheques in question had been given by them to the

complainant. Although it was their plea that in those cheques the name of

the payee had not been mentioned but that plea could not be accepted for

want of satisfactory evidence to that effect. There is no doubt that the

complainant had not filed any documentary proof in respect of his

business dealings with the accused - petitioners for over 20 years, as had

been claimed by him in the complaint, but because of that it cannot be

said that there was no liability whatsoever towards the complainant from

the side of the petitioners and because of non-production of documentary

proof of supply of material by the complainant to the accused - petitioners

it could be held that the petitioners had succeeded in discharging the onus

of rebutting the statutory presumptions under Sections 118 and 139 of the

Negotiable Instruments Act. If the complainant had based his case only

upon the statutory presumptions the position might have been somewhat

different and the non-production of any documentary proof of supply of

material by the complainant to the petitioners of the value of crores of

rupees might have been of some significance but that is not the case. The

complainant had also relied upon a written acknowledgement of liability

of Rs. 1.5 crores made by petitioner no. 2 Davinder Kumar Sehgal and

that acknowledgement in writing has been exhibited during the trial as Ex.

CW-1/7. During his cross-examination the petitioner no. 2 admitted

having executed that document but claimed that he had signed that

document under duress. The learned trial Court has rejected the plea of

duress raised by petitioner no. 2 for the first time during his cross-

examination for cogent reasons and that finding has been upheld by the

appellate Court also. Therefore, this Court has no reason to come to a

contrary conclusion. In fact, nothing was argued on behalf of the

petitioners in respect of the findings of the Court below on the plea of

duress taken by the petitioners. In view of the clear admission of liability

vide Ex. CW-1/7 the statutory presumption that the three dishonoured

cheques had been issued by the petitioners towards discharge of their

existing liability towards the complainant cannot be said to have been

rebutted at all.

10. Coming now to the argument regarding stipulation of three months

imprisonment in case of non-payment of the compensation amount by

petitioner no. 2 this Court is of the view that the challenge to that part of

the decision of the trial Court has been made by the learned senior counsel

for the petitioners without noticing the latest decision of the Supreme

Court in "Vijayan vs. Sadanandan K. and Another", (2009) 6 SCC 652 wherein

after taking note of its earlier judgments in Ahammedkutty's case (supra)

and Dilip S. Dahanukar's case (supra) relied upon by the petitioners in the

present case, the Supreme Court had come to the conclusion that a

direction can be issued that in case of non-payment of the compensation

awarded by the Court the accused can be sent to jail. That decision has

been followed by the Supreme Court in a recent judgment also in "K.A.

Abbas vs. Sabu Joseph and Another", 2010 (5) SCALE 754. In view of these

two pronouncements of the Supreme Court no fault can be found with the

direction of the trial Court that in case of non-payment of compensation

the petitioner no. 2 shall suffer simple imprisonment for a period of three

months.

11. For the afore-said reasons, this revision fails and is hereby

dismissed.

P.K. BHASIN,J

August 25, 2010 pg/sh