Delhi High Court
Apar Industries Ltd vs Kalyani Petrochem Pvt Ltd & Ors on 28 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 28th February, 2018
+ CRL.L.P. 582/2017
APAR INDUSTRIES LTD ..... Petitioner
Represented by: Mr. A.K. Srivastava, Adv.
versus
ALLIANCZ POLY-CHEM OVERSEAS LTD ..... Respondent
Represented by:
+ CRL.L.P. 587/2017
APAR INDUSTRIES LTD ..... Petitioner
Represented by: Mr. A.K. Srivastava, Adv.
versus
KALYANI PETROCHEM PVT LTD & ORS ..... Respondent
Represented by:
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. By these petitions the petitioners seek leave to appeal against the
impugned judgment dated 30th May, 2017 whereby the respondents were
acquitted for offence punishable under Section 138 of the Negotiable
Instruments Act.
2. Petitioners filed two criminal complaints being No.22460/2016 and
22605/2016 titled as "Apar Industries Limited Vs. Alliancz Poly-chem
Overseas Limited" and "Apar Industries Limited Vs. Kalyani Petrochem
Private Limited" for dishonor of 42 and 15 cheques amounting to
₹4,39,44,517.50 and ₹1,38,35,503/- respectively. It is the case of the
petitioner that as per the purchase orders/ requests of the respondent,
petitioner supplied material to the respondent as mentioned in the invoices
and for the outstanding amounts cheques were issued which on presentation
were dishonored with the remarks "Insufficient Funds". Notices of dishonor
of the cheques were issued to the respondents who failed to make the
necessary payments in the prescribed period, hence the two complaints.
3. After the evidence of the complainant by way of affidavits was
tendered, accused were summoned and after notice of accusation was served
on the respondents complaints were posted for cross-examination of the
complainant's witness vide order dated 9th September, 2013. From 11th
November, 2013 till 21st January 2017 the authorized representative of the
complainant failed to appear in the witness box for cross-examination, hence
vide order dated 21st January, 2017 and 4th February, 2017 respectively in
the two complaints, complainant's opportunity for cross-examination and
further evidence of the complainant was closed. Since the authorized
representative of the complainant failed to subject itself to cross-
examination, the respondents were acquitted. It may be noted that in the
interregnum the petitioner also filed applications under Section 311 Cr.P.C.
seeking to place on record additional documents which were also dismissed.
4. The six contentions of learned counsel for the petitioner before the
Trial Court were as under:
"i) This Court is bound by the judgment of Rajesh Aggarwal
Vs. State and Indian Bank Association Vs. Union of India
and has to complete the trial within six months from
commencement and the cross examination of the
complainant witness cannot exceed a period of three
months from commencement.
ii) As the statutory period of time to complete the trial
stands exhausted, therefore the case cannot proceed
further and the accused persons have to be convicted.
iii) Complainant has placed on record the essential minimum
required documents, based on which the cognizance of
the offence was taken, therefore unnecessary cross-
examination of the complainant and compelling him to
produce further documents is just a technique of delaying
adopted by the accused. By virtue of section 139 of the
NI Act, there is a presumption in favour of the
complainant which has not been rebutted in this case.
iv) Only accused No.3 was permitted to cross-examine the
complainant, however, counsel for other accused persons
without permission of this Court started cross-examining
the complainant, which is an illegality.
v) The accused persons have failed to raise any defence,
therefore, instead of cross-examining the complainant,
the case should immediately go for leading of defence
evidence; and as the accused persons have refused to
lead defence evidence, therefore they must be
immediately convicted for offence of dishonor of cheque.
vi) The complainant company has suffered immense losses
due to the dishonor of cheques issued by the accused
persons and they have deliberately and intentionally
knowingly that there is not sufficient amount in their
account issued the cheques and they raised false plea
before the court after service of notice of accusation."
5. In the complaints the petitioner's/ complainant's authorized
representative refrained from subjecting himself to cross-examination, thus
the accused was not required to lead any defence. Petitioner not having led
his evidence in accordance with law, for the reason when permission to
cross-examination of complainant was granted, the witness of complainant
not being cross-examined, its evidence is incomplete. The initial burden to
prove its case even on the touchstone of preponderance of probability was
on the petitioner after which a presumption could be raised, where after the
onus would have shifted to the respondent to rebut the presumption.
Petitioner's authorized representative having failed to subject himself for the
cross-examination the petitioner has not been able to discharge the initial
burden. The authorized representative of the complainant stated that all the
purchase orders in original were in his possession, however he did not
produce the same during the course of trial. Merely because of efflux of
time, which was also attributable to the complainant, the complainant does
not get a right to withdraw himself from further cross-examination. Hence
the finding of the learned Trial Court that there was no evidence on record
against the accused person raising a mandatory presumption which they
were required to rebut and thereby acquitting the accused/ respondents
cannot be said to be a perverse or illegal view warranting interference.
6. Leave to appeal petitions are accordingly dismissed.
(MUKTA GUPTA)
JUDGE
FEBRUARY 28, 2018
'ga'
