Delhi High Court
Ajay Marwah vs State & Anr on 13 September, 2019
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 13.09.2019
+ CRL.REV.P. 964/2019 with CRL.M.(BAIL) 1610/2019,
CRL.M.A. 35694/2019
AJAY MARWAH ..... Petitioner
Through: Mr. K. Kaushik, Adv.
versus
STATE & ANR ..... Respondents
Through: Mr.Hirein Sharma, APP for State
None for R-2
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Vide the present petition, the petitioner/ accused prays for setting
aside the impugned judgment and order dated 04.09.2019 passed by the
learned ASJ (North-West), Rohini Courts, Delhi, in C.A. No. 56/19, titled as
'Ajay Marwah Versus B.D. Jain Trading Company' and further prays for
setting aside the judgment dated 28.02.2019 and order on sentence dated
06.03.2019 passed in Complaint Case No. 15367/2016 titled as 'M/S B.D.
Jain Trading Company Versus Ajay Marwah' by the learned Metropolitan
Magistrate, Rohini Courts, Delhi.
2. The present petition is filed on the ground that the trial Court and the
Appellate Court failed to take into consideration the fact that the petitioner
herein was summoned on the basis of affidavit dated 07.09.2013
(Ex.CW1/1) filed by the respondent No. 2. As per the affidavit, there is no
ingredient / substance / material by which prima facie makes out a case
under Section 138 of Negotiable Instruments Act. Not only this, not even a
single document which claimed to have been exhibited during trial is signed
by any Judge. Moreover, in the affidavit, which is the basis of summoning,
the petitioner as an accused under Section 138 of Negotiable Instruments
Act, it is nowhere mentioned that whether any legally recoverable debt
towards the petitioner or any demand was ever made or the cheque in
question was ever handed over to respondent No. 2. Thus, both the Courts
have failed to take into consideration the fact that the respondent No. 2
neither filed a detailed affidavit, which makes out a prima facie case under
Section 138 of Negotiable Instruments Act for summoning the petitioner as
an accused, nor has he examined himself as complainant.
3. Ld. counsel further submitted that the respondent No. 2 was not
examined as witness and has not even exhibited the complaint. Thus, while
concluding the arguments, learned counsel for petitioner submits that since
there is no recoverable debt against the petitioner, even summoning order
was perverse and both the Courts below have failed to consider the said fact,
accordingly, the petition is deserves to be allowed.
4. The case of the respondent No. 2/ complainant made in the complaint
is that respondent No. 2 is a proprietary company, engaged in business of
cloth and readymade garments and Shri Satish Chand Jain is its sole
proprietor. The petitioner/ accused purchased 2000 meters of cloth for a sum
of ₹2,40, 000/- vide bill no. 1185 dated 05.03.2013 and 2091 meters of cloth
for a sum of ₹2,61,375/- vide bill no.1190 dated 12.03.2013 and in
consideration of supply of clothes, the petitioner issued a cheque bearing
no.356166 dated 28.06.2013 for a sum of ₹5,00,000/- (Rupee Five Lacs
only) drawn on HDFC Bank, Punjabi Bagh, New Delhi to the respondent
No. 2/ complainant in discharge of its liability. The balance amount of
₹1375/- was treated as a discount. The said cheque was dishonoured with
remarks 'funds insufficient' vide cheque Return Memo dated 01.07.2013.
Thereafter, the respondent No. 2/ complainant issued a legal notice dated
29.07.2013 to the petitioner through his counsel. Despite service of the legal
notice, the petitioner neither gave reply nor paid the cheque amount within
the stipulated period. Thereafter, the complainant presented the complaint
before the trial Court and the petitioner was tried and convicted by the trial
court, which has been upheld by the learned appellate court vide order dated
04.07.2019.
5. I note, Learned trial Court in Para 3 of the impugned order has
recorded that "in his pre-summoning evidence, complainant examined
himself on affidavit Ex. CW-1/1. He reiterated the contents of complaint and
placed on record, copy of bill dated 05.03.2013 as Ex.CW-1/A(0SR), copy of
bill dated 12.03,2013 as Ex. CW-1/B(OSR), cheque bearing no. 356166
dated 28.04.2013 for a sum of Rs,5,00,000/- drawn on HDFC Bank, Punjabi
Bagh, New Delhi- 110026 as Ex.CWl/C, cheque returning memo dated
01.07.2013 as Ex. CW-l/D, legal notice dated 26.07,2013 as Ex. CW-l/E,
postal receipt as Ex. CW-l/F and tracking report as Ex. CW-l/G."
6. It is pertinent to mention here that the petitioner took the defence
before both the Courts below that he had business transaction with the
complainant 6-7 years ago but he had not issued the cheque in question in
favour of the complainant. He alleged that 2-3 years back, he had misplaced
his few cheques including the cheques in question and consequently, he had
lodged a police complaint in this regard. However, he has admitted his
signatures on the cheque in question but denied having filled the contents
therein. He also denied receiving any legal notice.
7. The petitioner was examined on 12.02.2018 under Section 281
Cr.P.C. read with Section 313 Cr.P.C. in which all the incriminating
evidence were put to him, to which, he took the same defence as was taken
by him at the time of framing of notice under Section 251 Cr.P.C. He stated
that that he had never purchased any cloth from the complainant and bills
Ex. CW-l/A & Ex.CW-l/B are false documents. He preferred to lead defence
evidence but he did not examine any witness to this effect.
8. Be that as it may, the petitioner has admitted the business transaction
with the respondent No. 2 but he also alleged that he had not issued the
cheques in question in favour of the respondent No. 2/ complainant.
9. He further stated that certain cheques, including the cheque in
question, were misplaced by him and he had lodged police complaint in
Police Station - Mukherjee Nagar.
10. However, no cogent evidence has been led by the petitioner in support
of the said claim. The reason for dishonour of cheque is insufficiency of
funds. No explanation was given by the petitioner as to why he did give
'stop payment instructions' regarding the cheques in question, if, cheques
were misplaced. Further, the petitioner did not step into the witness box to
stand by his defence. The defence taken by the petitioner at the time of
framing of notice and while recording the statement of petitioner under
Section 281 Cr.P.C. read with Section 313 Cr.P.C. cannot be considered as
evidence.
11. In case of V.S. Yadav vs. Reena, 172 (2010) DLT 561 and Bansal
Plywood vs. State (NCT of Delhi) and Anr. (Criminal Appeal No. 17 of
2017 decided on 04.09.2017), it is held that "the defence taken by the
respondent No. 3 at the time of framing of notice under Section 251 Cr.P.C.
or the defence taken by her in her application under Section 145 (2) NI Act
or her explanation under Section 313 Cr.P.C. read with Section 281 Cr.P.C.
of the Code recorded on 04.02.2015 is not 'evidence' within the meaning of
Section 3 of the Indian Evidence Act, 1872. When a person appears in the
Court as a witness, he is required to state facts on oath under Section 4 of
the Oaths Act, 1969 and his examination in chief is tested on touchstone on
cross-examination by other party. This is actually the evidence. Therefore,
the plea taken in application under Section 145(2) NI Act or defence taken
at the time of framing of notice under Section 251 of the Code or the
explanation under Section 313 read with Section 281 of the Code by any
stretch and imagination cannot be treated as 'evidence'."
12. In view of the above facts and settled legal position, I find no merit in
the present petition.
13. The same is accordingly dismissed with no orders as to costs.
Pending applications also stand disposed of.
(SURESH KUMAR KAIT)
JUDGE
SEPTEMBER 13, 2019
PB
