Delhi High Court
Swastik Paper & Packaging vs Amit Upadhyaya on 11 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 11th February, 2019
+ CRL.L.P. 190/2017
SWASTIK PAPER & PACKAGING ..... Petitioner
Represented by: Mr. Saurabh Kansal,
Advocate
Versus
AMIT UPADHYAYA ..... Respondent
Represented by: Mr. Ajay Gulati, Advocate
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
Crl.M.A. No.5599/2017 (Delay)
For the reasons stated in the application delay of 8 days in filing the
leave to appeal petition is condoned.
Application is disposed of.
CRL.L.P. 190/2017
1. Aggrieved by the judgment dated 15th December 2016, whereby the
learned Metropolitan Magistrate acquitted the respondent for the offence
punishable under Section 138 Negotiable Instruments Act, 1881 in CC no.
377/15, the petitioner/complainant has preferred the present leave petition.
2. Facts leading to the present case as per the complaint are that the
petitioner is a proprietorship concern dealing in business of papers and
packaging and the respondent used to have a running account with the
petitioner company for purchasing papers. The respondent had placed an
order for supply of papers with an assurance of payment on delivery vide
invoice dated 29th April 2011 and 30th April 2011 amounting to a total of
₹5,80,598/- and as there was a previous balance of ₹35,983/- on the
respondent and the petitioner had later purchased paper from the respondent
for a sum of ₹1,80,611/-, after adjusting the same the liability of the
respondent towards petitioner as on 30th April 2011 was of ₹4,35,970/-. In
discharge of that liability the respondent issued a cheque bearing number
158770 drawn on Syndicate Bank for a sum of ₹4,35,970/- in favour of the
petitioner company. On presentation of the aforesaid cheque, it was
dishonoured with remarks 'Account Closed' vide return memo dated 19th
September 2011. Legal demand notice was sent to the respondent. Despite
the service of legal notice, the respondent failed to make the payment.
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. In his defence
he claimed that the petitioner had cheated him and he was not liable to pay
any amount to the petitioner. He further submitted that he used to supply
goods to the petitioner and a sum of ₹2,68,781/- had to be paid by the
petitioner to him.
4. Petitioner company filed its evidence by way of affidavit through its
proprietor Mr. Ritesh Kumar Jain and relied upon original cheque vide
Ex.CW-1/A, dishonour memo vide Ex.CW-1/B, legal notice dated 10th
September, 2011 vide Ex.CW-1/C, postal receipt of registered post vide
Ex.CW-1/D, courier receipt vide Ex.CW-1/E and delivery proof of
registered post vide Ex.CW-1/F, invoice dated 29th April 2011 vide Ex.CW-
1/G and invoice dated 30th April 2011 vide Ex.CW-1/H. During his cross-
examination the petitioner company also filed an invoice dated 8 th June 2007
vide Ex. CW-1/D1. Petitioner company also examined Mr. Baleshwar Singh
as CW2 to prove the presentation and dishonour of cheque.
5. Statement of the respondent was recorded under Section 313 Cr.P.C.
wherein he stated that he never bought any paper from the petitioner but
used to supply paper to the petitioner and the bills placed by the petitioner
are not in order otherwise they would have been countersigned. As regards
the cheque the respondent stated that the cheque was lost by him of which
he had lodged a police complaint in the month of August 2011 and when he
received the legal notice it was duly replied by him.
6. Respondent examined himself as DW-1 wherein he reiterated his
statement recorded under Section 313 Cr.P.C. He further stated that he used
to sell corrugated papers to the petitioner of which he filed around 15 bills
vide Ex.DW-1/A-1 to A-15 having signatures of the petitioner along with
stamp. He also stated have the petitioner owed him a sum of ₹2,68,781. He
also reproduced his DVAT form from 1st April 2011 to 30th September 2011
vide Ex.DW-1/B and copy of summary of purchase for the month of April,
May, August and September 2011 as Ex.CW-1/D-1 to D-4. The respondent
also produced ledger balance with the petitioner vide Ex.DW-1/E. He also
stated that he had replied to the notice of the petitioner and produced a copy
of the reply as Mark A and sent notice for recovery of his outstanding
amount as Mark B. He also proved his complaint regarding loss of cheque as
Ex.DW-1/F.
7. After perusing the evidence on record, the petitioner has relied on two
invoices to show the liability of the respondent but none of these two
invoices are countersigned by the respondent. The ledger of the running
account with the respondent has not been placed on record by the petitioner.
Moreover, the invoices and ledger with respect to the business transactions
between the petitioner and the respondent that have been relied upon by the
respondent have not been denied by the petitioner.
8. From the material placed on record it is evident that the petitioner
purchased goods from the respondent on 15 occasions and kept on paying
those in regular intervals leaving a balance of ₹2,68,781 on 24th March 2011.
After this the petitioner claimed to have sold goods to the respondent on 29 th
April 2011 and 30th April 2011 through two invoices which are not
countersigned by the respondent despite that being the usual practice of the
petitioner of countersigning the invoices whenever he purchased goods from
the respondent. The petitioner chose not to produce any book of accounts in
support of the invoices filed by him yet admitting the last sale by the
respondent and adjustment of ₹35,983/-.
9. On the facts as noted above no case for interference by this Court is
made out.
10. Leave to appeal petition is dismissed.
11. TCR be returned.
(MUKTA GUPTA)
JUDGE
FEBRUARY 11, 2019
'vj/yo'
