Delhi High Court
Vijay Kumar vs Dilip Kumar on 26 September, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 26th September, 2018
+ CRL.L.P. 74/2017
VIJAY KUMAR ..... Petitioner
Represented by: Mr. Manoj K. Srivastava,
Advocate
versus
DILIP KUMAR ..... Respondent
Represented by: Mr. Rakesh Paliyal, Advocate.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
CRL.L.P. 74/2017
1. Aggrieved by the judgment dated 29th September 2016, whereby the
learned Metropolitan Magistrate acquitted the respondent for the offence
punishable under Section 138 Negotiable Instruments Act, 1881 in CC no.
625555/2016 titled as "Vijay Kumar v. Daleep Kumar", the
petitioner/complainant has preferred the present leave petition.
2. Briefly stated, the facts of the present case as per the complaint are
that respondent was one of the partners with the petitioner in the partnership
firm namely 'M/s Mag Graphics'. In the month of January, 2013, respondent
agreed to retire from the aforesaid firm and deed of retirement dated 24th
January, 2013 was executed. As per the retirement deed, petitioner and
another retiring partner received a machine called 'Scitex Dolev 800V' and
they were jointly and severally liable to pay ₹13 lakhs to the firm.
Respondent issued a cheque bearing number 833626 dated 16th September,
2013 for a sum of ₹13 lakhs drawn on Indian Overseas Bank, Okhla
Industrial Area, New Delhi in favour of the petitioner to discharge his joint
liability and liability of another retiring partner. Upon presentation, the
aforesaid cheque got dishonoured with remarks 'funds insufficient' vide
return memo dated 15th October, 2013. Petitioner sent legal demand notice
dated 15th October, 2013 through registered post and AD card but the
respondent failed to make the payment within the stipulated time. Hence, the
complaint.
3. Notice under Section 251 Cr.P.C. was framed against the respondent
to which he pleaded not guilty and claimed trial.
4. Petitioner examined himself as CW-1 and filed his evidence by way
of affidavit Ex.CW-1/A and relied upon the deed of retirement (Mark CW-
1/1), original cheque vide Ex.CW-1/2, return memo vide Ex.CW-1/3, legal
demand notice vide Ex.CW-1/4, postal receipts and tracking reports vide
Ex.CW-1/5 and Ex.CW-1/6 respectively and his ITR for the assessment year
2013-14 vide Ex.CW-1/7.
5. Ranjit Kumar Jha, Assistant Manager, Indian Overseas Bank, Okhla
was examined as CW-2 to prove the account opening form of the petitioner
bearing account number 158602000000621 vide Ex.CW-2/1 (colly).
6. Respondent in his statement recorded under Section 313 Cr.P.C.
stated that he executed the deed of retirement without being aware of its
content. The cheque in question was not issued to the petitioner and he had
misplaced his cheque book and stopped the payment thereof.
7. Respondent examined himself as DW-1 and Deepak Kumar as DW-2.
8. Petitioner in his complaint as well as evidence by way of an evidence
stated that respondent was one of the partners with him in the partnership
firm 'M/s. Mag Graphics', however, during his cross-examination, he stated
that 'M/s. Mag Graphics' was a proprietorship firm of which he was the sole
proprietor. Petitioner failed to produce any partnership deed allegedly
executed with the respondent whereby it was agreed upon to share the
profits and losses equally.
9. Petitioner, in his cross-examination, also admitted that no books of
account of partnership firm were maintained, only accounts of
proprietorship firm were prepared. He failed to prove that any assets were
purchased in the name of the partnership firm.
10. Petitioner, in his cross-examination, also admitted that the machine
'Scitex Dolev 800V' or any other machine was never purchased in the name
of the so called partnership firm. Petitioner also failed to lead any evidence
to prove delivery of the said machine to the respondent as per the retirement
deed which was only a mark document.
11. Respondent (DW-1) stated that in the year 2008, petitioner prepared
the partnership deed to start business in the name of 'M/s. Mag Graphics' and
he gave ₹4.5 laks and ₹1 lakh in the year 2009 and 2010 respectively to the
petitioner. However, neither any business was ever started by the petitioner
under the name of 'M/s. Mag Graphics' nor any property/machinery was
purchased. No bank account was opened in the name of 'M/s. Mag
Graphics'. When he demanded his money back, petitioner prepared the
retirement deed and he signed the retirement deed in good faith without
reading the contents thereof. The stand of the respondent has remained
consistent and the same fact was reiterated by him at the time of explanation
of his plea of defence under Section 251 Cr.P.C., statement recorded under
Section 313 Cr.P.C. and the one recorded under Section 315 Cr.P.C. His
testimony has gone unchallenged.
12. Deepak Kumar, who was examined as DW-2 and was shown the
retirement deed as outgoing partner from the partnership firm, stated that he
was doing job in the office of the petitioner from 2008 to 2013. He proved
the salary certificate issued by 'M/s. Mag Graphics' vide Ex.DW-2/1.
Testimony of Deepak Kumar has also gone unrebutted and unchallenged
and the authenticity of the salary certificate has not been disputed by the
petitioner.
13. Findings of the learned Metropolitan Magistrate, based on the
evidence on record cannot be held to be illegal or perverse. Hence, the
impugned judgment acquitting the respondent warrants no interference by
this Court.
14. Leave to appeal petition is dismissed.
(MUKTA GUPTA)
JUDGE
SEPTEMBER 26, 2018
'vn'
