APS FOREX SERVICES PVT. LTD. Vs. SHAKTI INTERNATIONAL FASHION LINKERS
LAWS(SC)-2020-1-112
SUPREME COURT OF INDIA
Decided on January 14,2020

Aps Forex Services Pvt. Ltd. Appellant
VERSUS
Shakti International Fashion Linkers Respondents


Referred Judgements :-

K N BEENA VS. MUNIYAPPAN [REFERRED TO]
KUMAR EXPORTS VS. SHARMA CARPETS [REFERRED TO]
RANGAPPA VS. SRI MOHAN [REFERRED TO]
KISHAN RAO VS. SHANKARGOUDA [REFERRED TO]
BASALINGAPPA VS. MUDIBASAPPA [REFERRED TO]


JUDGEMENT

M.R.SHAH,J. - (1.)CRIMINAL APPEAL NO. 271 OF 2020 Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.04.2018 passed by the High Court of Delhi in Crl. L.P. No.258 of 2018 by which the High Court has dismissed the said application for leave to appeal challenging the judgment and order of acquittal passed by the Learned Trial Court acquitting the original accused -? respondents herein for the offence under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') and thereby confirming the judgment and order of acquittal passed by the Learned Trial Court, the original complainant has preferred the present appeal.
CRIMINAL APPEAL NO. 272 OF 2020

Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.04.2018 passed by the High Court of Delhi in Crl. L.P. No.259 of 2018 by which the High Court has dismissed the said application for leave to appeal challenging the judgment and order of acquittal passed by the Learned Trial Court acquitting the original accused -? respondents herein for the offence under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') and thereby confirming the judgment and order of acquittal passed by the Learned Trial Court, the original complainant has preferred the present appeal.

CRIMINAL APPEAL NO. 271 OF 2020

(2.)According to the complainant, the appellant is in the business of sale and purchase of Foreign Exchange. That the original accused -? respondents herein approached the appellant for issuance of Foreign Exchange Currency/USD Travel Currency Card. According to the original complainant -? appellant herein, a total sum of Rs.19,01,320/-? was paid to the accused through VTM (Visa Travel Money Card) which came to be withdrawn by the accused on different days on 10.01.2014, 20.02.2014 and 22.02.2014. According to the complainant, the original accused -? respondents herein paid Rs.6,45,807/-? only leaving a balance of Rs.12,55,513/-?. According to the complainant, the respondents accused issued four cheques total amounting Rs.9,55,574/-?, which were issued in favour of the complainant. However, all the aforesaid cheques when presented, came to be dishonoured. According to the complainant thereafter the respondents issued one another cheque bearing No.374941 of Rs.9,55,574/-? of the partnership firm namely Shakti International in discharge of the legal liability. According to the complainant when the same cheque was presented the same came to be dishonoured due to "STOP PAYMENT"? vide bank memo dated 02.06.2014. Thereafter, the complainant sent a legal notice upon the original accused under Section 138 of the N.I. Act vide notice dated 07.06.2014. Despite the service of the notice, the accused did not make the payment of the cheque amount. Therefore, the original complainant -? appellant herein filed the complaint before the Learned Metropolitan Magistrate. The Learned Metropolitan Magistrate also believed that the cheque was issued and the same was returned unpaid with remarks "STOP PAYMENT"?. The Learned Metropolitan Magistrate believed that the accused Sushil Kumar Sharma admitted his signature on the cheque. The Learned Metropolitan Magistrate also believed receipt of the demand notice by the accused persons and non-?payment towards the said cheque. However, thereafter Learned Metropolitan Magistrate observed and held that there is no legal liability as the payment through the card is not established and proved; that the payments are prior to the issuance of the card. Resultantly, the Learned Metropolitan Magistrate dismissed the complaint by judgment and order dated 20.01.2017. Feeling aggrieved and dissatisfied with the judgment and order of acquittal passed by the Learned Trial Court acquitting the accused, the complainant preferred appeal before the Learned Sessions Court. Learned Sessions Court dismissed the said appeal on the ground that the same is not maintainable. Thereafter the complainant filed the appeal before the High Court. By the impugned judgment and order, the High Court dismissed the appeal and confirmed the order of acquittal passed by the Learned Trial Court. Hence, the original complainant has preferred the present appeal.
(3.)Learned Counsel appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case both the Learned Trial Court as well as the High Court have committed a grave error in acquitting the original accused for the offence under Section 138 of the N.I. Act.
3.1 It is further submitted by Learned Counsel appearing on behalf of the original complainant " appellant herein that both the Courts below have not appreciated and/or considered the presumption in favour of the complainant under Section 139 of the N.I. Act. It is further submitted by Learned Counsel appearing on behalf of the complainant that both the Courts below have materially erred in acquitting the accused. It is submitted that the accused had admitted issuance of the cheque as well as the signature on the cheque. It is submitted that therefore there is a presumption under Section 139 of the N.I. Act in favour of the complainant. It is submitted that thereafter the onus would be upon the accused to rebut the presumption and for that, the accused has to lead the evidence. It is submitted that in the present case no evidence has been led on behalf of the accused to rebut the presumption. It is submitted that the presumption mandatory by Section 139 of the N.I. Act includes the presumption that there exists a legally enforceable debt or liability and therefore both the Courts below have materially erred in acquitting the accused. In support of the above, reliance is placed on the decisions of this Court in the case of Rangappa vs. Sri Mohan, (2010) 11 SCC 441 and Kisan Rao vs. Shankargouda, (2018) 8 SCC 165.

3.2 It is further submitted by Learned Counsel appearing on behalf of the complainant that even at the time of framing of the charge against the accused and when his statement was recorded, the accused had admitted that he had taken services of the Foreign Exchange and Travel Card. It is submitted that he had also admitted that he had made part payment in discharge of the said liability and some amount was remaining. It is submitted that therefore the accused was required to lead the evidence and prove that the entire amount due and payable has been paid. It is submitted that therefore in view of the presumption under Section 139 of the N.I. Act, the Learned Trial Court ought to have convicted the accused for the offence under Section 138 of the N.I. Act. It is submitted that therefore the High Court has erred in confirming the acquittal.

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