M/S Gupta Enterprises vs Ghansyam Tewari
2018 Latest Caselaw 6797 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Decided on: 15th November, 2018
+                         CRL.L.P. 271/2018

M/S GUPTA ENTERPRISES                                       ..... Petitioner
                  Represented by:                Mr. Dinesh Kumar, Advocate

                                    versus
GHANSYAM TEWARI                                              .....Respondent
                          Represented by:        None


CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

Crl.M.A. No.7627/2018 (Delay) For the reasons stated in the application delay of 26 days in filing the leave to appeal petition is condoned.

Application is disposed of.

CRL.L.P. 271/2018

1. Aggrieved by judgment dated 12th January 2017, whereby learned Metropolitan Magistrate acquitted the respondent for offence punishable under Section 138 Negotiable Imstruments Act, 1881 in CC No.46732/2016 titled as 'Naveen Gupta v. Ghanshyam Tiwari', petitioner has preferred the present leave to appeal petition.

2. Brief facts as per the complaint are that the petitioner and the respondent had business transactions as they were running firms under the name and style of M/s Multi Sales Corporation and Gupta Enterprises

respectively. In order to discharge his liability towards Naveen Gupta with respect to a business transaction, Ghanshyam Tiwari issued a cheque bearing number 019700 dated 25th July, 2008 for an amount of ₹1,12,574/- drawn on ICICI Bank Ltd, Preet Vihar, New Delhi in favour of the firm of Naveen Gupta. When the cheque was presented for encashment, it was dishonoured with remarks 'funds insufficient' vide return memos dated 27th July 2008 and 13th October 2008.

3. On demand of the payment of the cheque in question, the respondent refused to pay the same. Petitioner issued a legal demand notice dated 8 th November, 2008 through registered post. Respondent did not reply to the legal demand notice nor did he make the payment for the cheque in question. Hence, the complaint by the petitioner.

4. In the post notice evidence, petitioner examined Kripa Shankar Gupta (CW-1) who tendered his post notice evidence by way of affidavit vide Ex. CW-1/1A. During his cross-examination, he filed a receipt pertaining to supply of goods to the respondent vide Ex. CW-1/D1.

5. Thereafter, the statement of respondent was recorded under Section 313 Cr.P.C. read with Section 281 of Cr.P.C. wherein he stated that he had no liability for the sum of ₹1,12,574/- towards the petitioner. The respondent admitted his signatures on the cheque as well as filling of the amount on the cheque but denied filling the name of the petitioner and the date on the cheque. The respondent stated that he had supplied goods worth ₹3,70,000/- to the petitioner and received payment of ₹2,00,000/- from him and further that the petitioner demanded back the amount of ₹2,00,000/- as he was not able to sell the goods. The respondent also stated that the cheque in question along with two other cheques were forcefully obtained by the petitioner

from him through intervention of political persons and upon threat extended by goons including threats using a pistol. Respondent admitted the dishonour of cheque in question as well as receipt of legal demand notice. However, he stated that before receiving aforesaid notice, he had sent a legal notice dated 30th October, 2007 to the petitioner demanding return of three cheques one of which was the aforementioned cheque.

6. Respondent examined himself as DW-1, Jagdish Bajaj as DW-2 and Mukesh as DW-3. Respondent placed on record bills issued by his firm to the firm of the petitioner vide Ex.DW-1/1, complaints filed by him on 30th and 31st October 2007 and 23rd January 2008 vide Ex.DW-1/2 and Ex.DW- 1/3 respectively, copy of the legal notice issued by him to the petitioner, reply sent by him to the petitioner to the legal demand notice pertaining to dishonour of two cheques, copy of bills in the name of Balaji Trading Company, Pushpa Agency and M.K. Chauhan all dated 27th October 2007 to prove his case. Jagdish Bajaj (DW-2) placed on record his residence proof vide Ex.DW-2/1, MTNL bill in the name of his firm Pushpa Enterprises vide Ex.DW-2/2 and retail invoices issued by the firm of the respondent vide Ex.DW-2/3 to Ex.DW-2/6 in support of his testimony.

7. From the record, it is evident that the present complaint was filed by Kripa Shankar Gupta, on behalf of Naveen Gupta, however, no power of attorney in favour of Kripa Shankar Gupta has been brought forth on record. Photocopy of document titled as special power of attorney in favour of Kripa Shankar Gupta was placed on record but the same was not exhibited, thus, it cannot be read into evidence.

8. It was alleged in complaint that there was a business transaction between the petitioner and respondent and the respondent had to pay a sum

of ₹1,12,574/- to the petitioner. However, there was no elucidation as to how that calculation was arrived at. No bills of transactions or statement of account was filed by the petitioner. While it has been stated that an agreement was executed between the petitioner and respondent, the original agreement has not been exhibited. Photocopy of an agreement dated 4th July, 2007 has been placed on record, but the same has not been proved by the petitioner. Further, the petitioner did not examine any witness to establish the fact that there was an agreement between his firm and the respondent firm.

9. Kripa Shankar Gupta (CW-1) admitted in his cross-examination that he had not furnished the details of the transactions between the petitioner and the respondent either in the complaint or in his evidence by way of affidavit. The receipt that was placed on record subsequently vide Ex.CW1/DW1 not only appears to be vague but devoid of any clarity with respect to return of goods and details of transactions.

10. The petitioner has neither challenged the testimony of the respondent who was examined as DW-1 nor the documents brought on record by him. The testimony of the respondent is corroborated by Jagdish Bajaj (DW-2) and Mukesh (DW-3) who have affirmed that petitioner had come with several persons to the shop of respondent and taken away the cheques of the respondent. The petitioner has also not explained as to how he came in possession of the cheque of the respondent.

11. Findings of the learned Metropolitan Magistrate, based on the facts noted above cannot be said to be perverse warranting interference of this Court.

12. Leave to appeal petition is dismissed.

(MUKTA GUPTA) JUDGE NOVEMBER 15, 2018