Delhi High Court
M/S Anu Impex vs M/S Sudha Collection on 5 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 5th September, 2018
+ CRL.L.P. 578/2018
M/S ANU IMPEX ..... Appellant
Represented by: Mr.K.S. Arya, Advocate.
versus
M/S SUDHA COLLECTION .....Respondent
Represented by: None
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A. No.31391/2018 (Exemption)
Allowed, subject to all just exceptions.
Crl.M.A. No.31392/2018 (Delay)
For the reasons stated in the application delay of 39 days in filing the
leave to appeal petition is condoned.
Application is disposed of.
CRL.L.P. 578/2018
1. Aggrieved by the judgment dated 23rd January, 2018 whereby the
learned Metropolitan Magistrate acquitted the respondent for the offence
punishable under Section 138 Negotiable Instruments Act, 1881 (in short
'the NI Act'), the petitioner/complainant through Ms. Chandra Adhikari has
preferred the present leave petition.
2. The facts leading to the present case are that the respondent is a
proprietorship concern and was engaged in the export of home products
through C.V. Ramna Rao who was responsible for day to day affairs and
running the business of the respondent. The respondent used to purchase
grey fabrics from the petitioner since the year 2006 and as per the books of
accounts maintained by the petitioner, an amount of ₹11,24,853/- was due
from the respondent as on 10th March, 2009. In lieu of the above said
transactions, respondent through C.V. Ramna Rao issued 3 cheques bearing
number 414723, 414724 and 414725 for a sum of ₹2,00,000/- each, all dated
12th June, 2016 drawn on Syndicate Bank, Green Park Extension, New Delhi
in favour of the petitioner to discharge its legal liability. The petitioner
presented the abovementioned cheques for encashment, however, all the
cheques were returned unpaid with remarks "Account Closed" vide memo
dated 14th July, 2010. The petitioner issued a legal notice dated 12th August,
2010 upon the respondent directing it to pay the amount within 15 days of
receipt of said legal notice. Even on service of the said notice, the
respondent did not make payment to discharge its liability. Hence, the
complaint.
3. On 12th October, 2011, notice under Section 251 Cr.P.C. was issued to
the respondent to which it pleaded not guilty and claimed trial. Respondent
through C.V. Ramna Rao stated that the above mentioned undated cheques
were given as security in the year 2006 when the business transactions with
the petitioner were initiated. Bill numbers 105, 106, 109, 111, 154, 155
which were filed by the petitioner were forged and the entire liability in
respect of the other bills had already been discharged.
4. During the pre-summoning evidence, petitioner through Ms. Chandra
Adhikari filed an affidavit by way of evidence vide Ex.CW-1/A and
reiterated all the averments made in the complaint. Petitioner relied upon
copy of bills (Ex.CW-1/1), copy of ledger account (Ex.CW-1/2), cheques
bearing number 414723, 414724 and 414725 (Ex.CW-1/3, CW-1/4 and CW-
1/5), bank return memos (Ex.CW-1/6, CW-1/7 and CW-1/8), legal notice
dated 12th October, 2010 (Ex.CW-1/9), original postal receipt and AD
(Ex.CW-1/10 and Ex.CW-1/11).
5. C.V. Ramna Rao examined himself as DW-2, I.S. Dass, Manager,
Syndicate Bank was examined as DW-1 and Akash Bhardwaj as DW-3 to
prove the defence. Respondent through C.V. Ramna Rao was examined
under Section 313 Cr.P.C. on 26th October, 2012 wherein he reiterated his
statement given under Section 251 Cr.P.C. He additionally stated that the
cheques in question were given as advance payment for regular transactions
between him and the petitioner to one Raj Kumar who used to handle the
entire business of the petitioner. The entire material was purchased on credit
basis and he had already cleared all the outstanding dues and liabilities in
respect of all the transactions.
6. C.V. Ramna Rao (DW-2) additionally stated that Chandra Adhikari
was not the proprietor of M/s Anu Impex and that same was the firm of Raj
Kumar Neem and Chandra Adhikari was only working as accountant for Raj
Kumar Neem. He had not received any legal notice as he had already
vacated the premises on which legal notice was sent and the same was in the
knowledge of Chandra Adhikari.
7. I.S. Dass, Manager, Syndicate Bank (DW-1) proved the statement of
current account of M/s Sudha Collection vide Ex.DW-1/A and the letter
issued by M/s Sudha Collection vide Ex.DW-1/B.
8. Learned Metropolitan Magistrate acquitted the respondent on the
basis that bill number 155 appears to have been subsequently made by the
petitioner in order to show that the business transaction between the
petitioner and respondent continued till 2009. The bill bearing number 146
dated 8th March, 2008 placed on record by the respondent and admitted by
the petitioner is not shown in the ledger account relied upon by the
petitioner. Furthermore, the petitioner has failed to place on record the
original ledger accounts or bills. The cheque book having cheques in
question were issued to the respondent on 14th November, 2006 by I.S. Dass
(DW-1) when the letter dated 28th March 2011 was written by the
respondent to Chief Manager, Syndicate Bank seeking issuance of cheque-
book. The aforesaid letter (Ex.DW-1/B) and the endorsement has been
proved by I.S. Dass (DW-1). The statement of current account of the
respondent (Ex.DW-1/A) reveals that cheque bearing number 414726 for a
sum of ₹2,00,000/- was issued by the respondent in favour of Chetna Fab
and the same was cleared on 7th February, 2007 much prior to the cheques in
question bearing number 414723, 414724 and 414725 all dated 12th June
2010. The petitioner has also not placed on record any evidence to prove
that Chandra Adhikari was the proprietor of the petitioner.
9. Findings of the learned Metropolitan Magistrate are based on the
evidence on record and this Court concurs with the view expressed by the
learned Metropolitan Magistrate. Hence, the impugned judgment acquitting
the respondent warrants interference by this Court.
10. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 5, 2018
'vn'
