ARISE INDIA LTD. Vs. ARUN MITTAL

JUDGEMENT

(1.) THIS leave petition has been preferred to assail the judgment dated 28.8.2014 passed by the learned Metropolitan Magistrate (Special NI Court) -04, Dwarka Courts, New Delhi, in CC No. 1410/14, in a complaint case preferred under Section 138 of the Negotiable Instruments Act. By the impugned judgment, the learned trial Court has acquitted the respondent -accused. The case of the complainant -petitioner as narrated in the complaint is that the complainant placed an order for installation of an elevator at their office in Sonepat. The accused had been paid an amount of Rs. 3.25 lakh towards installation of the lift/elevator, however, the accused could not install the quality lift which resulted in huge losses to the complainant, and the manufacturing process in the office/factory was stalled. The complainant claimed that, time and again, it called upon the accused to remove the defects which were not removed in the installed lift and accordingly, the accused failed to install the second lift in the office of the complainant. The complainant claims that the accused agreed to refund the amount paid by the complainant i.e. Rs. 3,25,000/ -. It is further stated that the accused have given a cheque of Rs. 1,00,000/ - drawn on ICICI Bank Ltd., dated 1.1.2010. The said cheque was deposited by the complainant with its Bank, namely, Oriental Bank of Commerce at Palam, New Delhi, which was returned unpaid with the remarks, 'insufficient funds' vide returning memo dated 6.5.2010. It was returned unpaid on an earlier occasion as well in April 2010. The complainant issued a notice on 31.5.2010 under Section 138 of the Negotiable Instruments Act. Since the accused did not make payment within the statutory period, the said complaint was preferred.

(2.) AT this stage itself, I may observe that the facts which are admitted by both the parties are that the two lifts had been ordered to be installed by the respondent accused -one by the complainant M/s. Arise India Ltd. (for short, 'Arise') and the other by M/s. Vardhman Techno Power Pvt. Ltd. (for short, 'Vardhman'). Arise is a tenant of Vardhman in the premises in which both the lifts were agreed to be installed. The accused had supplied and installed one of the two lifts in relation to which there were complaints. A consumer claim has also been preferred by Vardhman in respect of the said lift. The dispute between Vardhman and the accused was settled. The second lift, which had been agreed to be supplied to the petitioner - according to the complainant, was only partially supplied and was not installed. According to the complainant, the accused had agreed to refund the entire amount of Rs. 3.25 lakh in respect of second lift ordered by the complainant, for which Rs. 3.25 lakh have been advanced to the accused. These facts have not been as clearly and fully disclosed in the petitioner's complaint. However, learned Counsel for the complainant submits that these facts have been brought out during the course of evidence.

(3.) THE submission of learned Counsel for the petitioner is that there are serious factual infirmities in the impugned judgment. He submits that the trial Court has proceeded on the basis that the dishonour of the cheque in question had taken place earlier in point of time to the transfer (through RTGS) of Rs. 1,00,000/ - into the account of the complainant. He submits that, whereas the transfer through RTGS have been made on 9.2.2010, the dishonour of the cheque had taken place on two occasions i.e. in April and finally on 6.5.2010. Therefore, it could not be said that the accused had made payment in lieu of the cheque through RTGS. Secondly, learned Counsel for the petitioner submits that the story set up by the accused, that the said amount of Rs. 1,00,000/ - was paid to the petitioner (through RTGS), at the request of Vardhman, is the mere ipse dixit of the accused, as no evidence has been led by the accused to substantiate the said plea.