Suresh Thomas vs Mod Enterprises
2016 Latest Caselaw 6526 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
    +    Crl.Revision Petition No.512/2016

                                             Date of Decision: October 19, 2016

         SURESH THOMAS                                           ..... Petitioner

                          Through            Mr.Jatin Sapra and
                                             Mr.Vineet D'Silva, Advs.

                          versus

         MOD ENTERPRISES                                         ...... Respondent
                          Through            Mr.Prateek Kumar, Advocate.


         CORAM:
         HON'BLE MR. JUSTICE P.S.TEJI

         P.S.TEJI, J.

1. The present revision petition has been filed under

Section 397/399/401 Cr.P.C. for quashing the order dated

25.07.2016 whereby the Appellate Court has dismissed the

appeal and judgment dated 18.11.2015 and order dated

26.11.2015 whereby the petitioner was convicted of the

offence under Section 138 Negotiable Instruments Act, 1881

and sentenced to RI for 4 months and to pay fine of Rs.2.70

lakhs in default to undergo SI for a period of one month.

2. The brief facts of the case, leading to the filing of

present petition are that the respondent had filed a complaint

u/s 138 of Negotiable Instruments Act against M/s Crescendo

Music Co. Pvt. Ltd., revisionist/Sh. Suresh Thomas, who was

the Managing Director of this company, Sh. V Krishnan was

the General Manager and Sh. Sarabjot Singh was the Regional

Manager of the Company.

3. It was alleged that the petitioner had been doing

business with the respondent and had placed orders from time

to time. An order for manufacturing 26042 CDs (Compact

Discs) was placed by the revisionist vide letter dated

15.07.2004. After the delivery of CDs, as per the terms of that

letter, three post dated cheques dated 30.08.2004, 20.09.2004

and 30.10.2004 were issued by the revisionist to the

respondent. On presentation, the cheque in question,

Ex.CW1/2, was dishonoured for insufficiency of funds, vide

cheque returning memos Ex.CW1/3 and Ex.CW1/4.

Thereafter, legal notice Ex.CW1/5 dated 07.03.2005 was

issued to the accused persons but despite the service of legal

notice and expiry of statutory period, the accused including the

revisionist failed to make payment of cheque amount. Hence, a

complaint u/s 138 of the Negotiable Instruments Act was filed

before the trial court. The trial was conducted whereafter the

Trial Court vide order 18.11.2015 found that all the ingredients

of Section 138 of the Negotiable Instruments Act had been

proved by the complainant beyond reasonable doubt and the

accused persons had failed to raise a probable defence so as to

rebut the presumptions arising in favour of the complainant. The

petitioner being the Managing Director and signatory of the

cheque was found guilty and convicted for the offence

punishable under Section 138 of the Negotiable Instruments Act

and was sentenced to RI for 4 months for the offence under

Section 138 of the Negotiable Instruments Act and was also

directed to pay fine of Rs.2.70 lakhs under Secton 357 Cr.P.C. to

the complainant and in default to undergo SI for 1 month. This

order has been upheld by the Appellate Court vide order dated

25.07.2016. Hence, the present petition.

4. The grounds taken in the petition and the arguments

advanced by the learned for the petitioner in support of his case

are that the learned Trial Court and Appellate Court have failed

to appreciate that the complainant had virtually failed in proving

its own case. The sole testimony of CW-1 is totally unworthy of

any credence being full of infirmities and improbabilities since

the basis of the case CW-1/A was an inadmissible evidence

which has also been admitted by the Trial Court and Appellate

Court; that the Trial Court and the Appellate Court failed to

appreciate that EXCW1/A which is purchase order dated

15.07.2005 which states that the material will be supplied and

the invoices are of 20.04.2004 to 23.04.2004, which is

improbable; that the courts below have failed to appreciate the

settled provision of section 114(g) of the Indian Evidence Act

since ledger accounts and other documents have been withheld

by the respondent thus adverse inference should be taken against

the respondent/complainant {reliance placed on Kundan Lal

Rallaram v. Custodian Evacuee Property, Bombay; AIR 1961

SC 1316, Pradip Buragohan v. Pranati Phukan; (2010) 11

SCC 108; S.Gopal Reddy v.State of AP; AIR 1996 SC 2184;

Baljit Singh v. State of UP; AIR 1976 SC 2273; Gopal

Krishanji Ketkar v. Moh Haji Latif and Ors; AIR 1968 SC

1413; Sri Niwas R Das v. Surjanarayan; AIR 1967 SC 256;

M.S.Narayan Menon v. State of Kerala; AIR 2006 SC 3366 &

Krishna Janardhan Bhat v. Dattatraya G Hegde; AIR 2008

SC 1325}; that the courts below have failed to appreciate that

the complainant failed in establishing its case and the decision is

completely based upon invoices which were neither mentioned

in the complaint nor supported by any other document proved by

the respondent; that the impugned judgments by the courts

below are based upon misappreciation of the complainant's

evidence as the invoices in question are admissible as the same

were without any endorsement or receiving from the petitioner;

that the courts below have failed to appreciate that non filing of

ledger accounts, receipt book of invoices and records of ROC

has been drawn against the petitioner while the petitioner had

taken a stand of security cheque and no legally payable debt in

notice under Section 251 Cr.P.C. and thus the onus shifted on

the respondent; that the invoices in question were brought on

record after 10 years of filing of the complaint and there was no

mentioning qua the same in the complaint; that the courts below

have failed to appreciate that though the presumption under

Section 139 of the Negotiable Instruments Act is in favour of the

respondent, however, the petitioner had rebutted it and thus the

onus of proving the case shifted to the respondent who has

miserably failed to prove the same[reliance placed on Kumar

Exports v. Sharma Carpets; (2009) 2 SCC 513, M.S.Narayan

Menon v. State of Kerala; AIR 2006 SC 3366 and

K.Prakashan v. P.K.Surenderan; (2008) 1 SCC 258]; that the

courts below have miserably failed to appreciate that the no

notice was served upon the petitioner which was the essential

requirement of offence under which the petitioner was

convicted; that the courts below have failed to appreciate that

the evidence led by the complainant was full of inherent

infirmities and discrepancies; that the courts below have failed

to appreciate that respondent/complainant has failed to prove

that there was no legally payable debt by the petitioner and that

the impugned judgment and order has been passed upon

incorrect propositions of law insofar as it relates to the

appreciation of evidence.

5. Per contra, countering the same, learned counsel for the

respondent has contended that the trial court has rightly arrived

at the finding of guilt and has rightly relied upon the documents.

He has further contended that there is a clear presumption under

Section 139 of the Negotiable Instruments Act in favour of the

respondent/complainant and it was for the petitioner to rebut that

presumption which they have miserably failed to do. It is further

contended that as far as the ledger accounts, delivery receipts are

concerned, this issue for the first time, was raised by the

petitioner during the cross examination of CW1 and CW1 had

offered to produce these documents on record. The petitioner did

not ask for them and thus the respondent cannot be faulted with

for not producing these documents on record.

6. I have heard the learned counsel for the petitioner and

perused the record.

7. As for the contention raised by the learned counsel for the

petitioner with respect to the inadmissibility of the invoices in

question, I find that vide order dated 01.11.2014, passed by the Trial

Court, these documents were allowed to be taken on record and re-

examination of CW1 was allowed in order to prove these documents.

This order of the Trial Court apparently was never challenged and

thus, had attained finality. Once that order had attained finality, the

contention of learned counsel for petitioner loses strength as it would

not make any difference whether these documents were filed at an

earlier stage or not. Moreover, the grounds of inadmissibility of the

invoices in question has not been explained by the learned counsel

for the petitioner.

8. Also, when these documents were proved in re-examination of

CW1 dated 05.12.2014 and exhibited as Ex.CW1/B to Ex.CW1/F, at

that time, the petitioner had not taken any objection to the exhibition

of these documents. From a perusal of that examination and cross

examination of CW1 it is very much clear, that it was a conscious

decision on behalf of the petitioner not to object to these documents

because, on the very same day, another document Ex.CW1/A was

sought to be proved in the same examination of CW1 and an

objection has been taken on behalf of the petitioner regarding the

mode of proof and new facts being brought on record. Therefore,

once these documents were proved on record without there being any

objection on behalf of the appellant/ accused, there was no reason

with the Trial Court for not relying upon these documents to arrive at

its finding.

9. As for the continuity of the invoices in question, the same

cannot be a ground to find fault with the same or being regarded as

manipulated. During the cross examination of CW1, this contention

was never put forth to the witness and in the absence of same, the

petitioner cannot be allowed to draw a presumption that serial

numbers of these documents were in continuity because they were

forged or manipulated documents. This could be the inference if,

despite being asked to explain why serial numbers of these

documents are in continuity, the witness had failed to put forward an

explanation which could be believable.

10. As for the contention that the legal notices were not served

upon the petitioner and the trial court erred in arriving at a

conclusion that legal notices were properly served and respondent

despite being aware of the correct addresses of the appellants, the

legal notices sent the notice at the wrong address, I have gone

through the cross examination of CW1 as conducted before the trial

court on 17.05.2014 where apart from a mere bald suggestion that

despite being aware of the correct address of the petitioner, the

respondent had deliberately sent notices on wrong address, the

petitioner had not brought on record anything to prove that the

addresses upon which legal notices were served, were incorrect

addresses. A mere suggestion that notices were sent at wrong

addresses would not be sufficient as merely giving a suggestion will

not amount to proving of the suggested fact. The petitioner could

have proved on record, either during the cross examination of CW1,

or by leading evidence the address which according to the petitioner

was correct address and the fact, that this address was known to the

respondent, or that the petitioner had never operated from the address

upon which notices were served, but nothing of this sort was done by

the petitioner. Therefore, I do not find any illegality or infirmity in the

conclusion of the courts below that the legal notices were duly served

upon the petitioner.

11. As for the plea raised by the learned counsel for the petitioner,

that the cheques in question had been issued as security and not in

discharge of any debt, I do not find any force in the same because a

mere statement of defence would not amount to rebuttal of the

presumption u/s 139 of Negotiable Instruments Act. The defence

taken by the petitioner was required to be proved as per evidence

either from the cross examination of CW1, or through evidence

being led by the petitioner. The petitioner had failed to do so.

12. As for the plea of the learned counsel for the petitioner that

the respondent has failed to prove its case as the respondent had

failed to bring on record its ledger books, income tax returns, records

filed with ROC and the receipts of delivery, I find that in the cross

examination of CW1 conducted on behalf of the petitioner, CW1 had

deposed that they maintained account books of transactions and filed

ITRs (income tax returns) as well as balance sheets which were filed

with the ITR. He further deposed that he could produce the said

balance sheets in the court, if required. Further, he denied that the

invoices exhibited in his evidence were fabricated documents which

were fabricated for the purposes of the present case. He denied that he

had no supporting proof with respect to these invoices. He admitted

that there was no acknowledgment of receipt of goods appearing on

those invoices. He denied that no such acknowledgment was there

because the goods were never sent and volunteered that the invoices

were raised only after the cheques were received by them. It is also

to be noticed that the petitioner had never asked or questioned CW1

regarding the availability of delivery receipts. However, during the

cross examination of CW1 conducted on 17.05.2014, he had admitted

that they had not placed on record any receipt with respect to delivery

of the material and volunteered, that they had the receipt and it could

be produced if required. Thus, during the cross examination of CW1,

CW1 had clearly stated that the delivery receipts as well as ITRs

reflecting the appellants as their debtors were available with them

and could be produced. However, the petitioner did not ask for the

production of these documents from the respondent. Thus, when the

petitioner despite having an opportunity, did not seek to have these

documents produced before the court, they cannot, at this stage, draw

a sweeping presumption that non production of these documents

should raise an adverse presumption against the respondent. On the

contrary, the conduct of the petitioner in not having these documents

called in the court despite there being an offer from CW1, leads an

adverse inference against the petitioner that they did not ask for these

documents because they might have been in favour of respondent.

Moreover, it has never been the case of the petitioner that the CDs

have not been supplied to them and once they had received the CDs

the question of cheques being tendered as a security itself is ruled

out.

13. Therefore, the cases which have been cited by the petitioner

do not render any assistance to the case of the petitioner.

14. In view of the aforesaid discussion, I do not find any illegality

or infirmity with the concurrent finding returned by the courts below.

15. The present petition is accordingly dismissed.

(P.S.TEJI) JUDGE OCTOBER 19, 2016 dm/dd