Delhi District Court
Cc No. 9832/2016 M/S East West Fire Engg. vs . M/S Vasu Infosec 1 Of 18 on 25 August, 2021
IN THE COURT OF SH. VIKAS MADAAN, METROPOLITAN MAGISTRATE
(NI ACT), NORTH-WEST, ROHINI, DELHI
CNR No. DLNW 02-002752-2015
CC No. 9832/2016
M/S EAST WEST FIRE ENGG. CO. (P) LTD.,
160, Sham Shanti Market,
Ajmeri Gate, New Delhi-110006
............Complainant
Versus
1. M/S VASU INFOSEC PVT. LTD.,
F-20, Sushant Shopping Arcade,
Sushant Lok-1, Gurgaon, Haryana
Also at:-
13, Bandal Capital Paud Road,
Kothrud Depot,
Pune, Maharashtra-411038
............. Accused No.1
2. VIVEK NARANG,
Signatory Director of M/s Vasu Infosec Pvt. Ltd.
F-20, Sushant Shopping Arcade,
Sushant Lok-1, Gurgaon, Haryana
Also at:-
13, Bandal Capital Paud Road,
Kothrud Depot,
Pune, Maharashtra-411038
.............Accused No.2
CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 1 of 18
VIKAS Digitally signed by
VIKAS MADAAN
MADAAN Date: 2021.08.25
14:24:15 +05'30'
JUDGMENT
(1) Name of the complainant, : M/S EAST WEST FIRE and address : ENGG. CO. (P) LTD., 160, Sham Shanti Market, Ajmeri Gate, New Delhi-
110006 (2) Name of accused : 1. M/S VASU INFOSEC PVT. LTD.,
2. VIVEK NARANG (3) Offence complained of or proved : 138 N.I. Act (4) Plea of accused : Pleaded not guilty (5) Date of institution of case : 30.06.2015 (6) Date of reserve of order : 05.08.2021 (7) Date of Final Order : 25.08.2021 (8) Final Order : Convicted
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881.
2. Brief facts relevant for the decision of the case are as under: -
CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 2 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:24:39 +05'30' The present complaint has been filed by the complainant, M/s East West Fire Engg. Co. (P) Ltd. through its Director Mr. Pawan Gupta against the accused, M/s Vasu Infosec Pvt. Ltd. and its Director Vivek Narang under section 138 of Negotiable Instruments Act,1881 (hereinafter 'NI Act', for brevity). The substance of allegations and assertions of the complainant is that there is a running account with respect to sale of goods and rendering of service by the complainant, wherein a sum of Rs. 8,60,485/- is lying standing due in favor of the complainant and in order to discharge partial liability, accused issued two cheques bearing number 846257 dated 04.05.2015 drawn on Canara Bank, South Extension, Delhi for a sum of Rs. 3 lakhs and 846258 dated 08.05.2015 for a sum of Rs. 2,62,800/- drawn on Canara Bank, South Extension, Delhi (hereinafter referred to as the "cheques in question"). Cheques in question drawn in the name of the Accused No. 1 and signed by the Accused no. 2 in favour of the complainant. Upon presentment, cheques in question got dishonoured with remark "Insufficient Funds" on dated 12.05.2015 and thereupon, a legal demand notice was sent to both the accused via registered post on 19.05.2015 and courier on 22.05.2015 which was duly served on both the accused on 22.05.2015. It is the case of the complainant that despite of the notice, accused failed to make the payment to the complainant within stipulated period and hence, the present complaint.
3. Pre-summoning evidence was led, cognizance of the offence u/s 138 NI Act was taken against the accused and summons were issued against accused. The accused entered appearance, copy of complaint as well as of documents were supplied to the accused. Subsequent to that notice CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 3 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:25:26 +05'30' u/s. 251 Cr.P.C for offence u/s. 138 N.I. Act was served and accused pleaded not guilty and claimed trial. In his plea of defence, recorded on 03.05.2018 accused no. 2, Vivek Narang admitted his signatures on cheques in question. The defence of the accused no.2 was that the cheques in question were given as a security in year 2012 and not against the payments of goods and that the complainant delivered the material of inferior quality and thus, they rejected the said material.
Evidence of the complainant
4. Complainant examined only himself as CW1. He reiterated the facts of his complaint in his evidence affidavit. He relied upon documents Ex.CW1/A, Mark 'A' and Ex.CW1/2 to Ex. CW1/29.
5. In his cross examination, he deposed that complainant company deals in Fire Fighting Equipment's since its incorporation and Mark A is the certificate of incorporation. Accused company used to purchase goods from the complainant company and accused no. 2 is the director of the company. He categorically denied the suggestion that Ex. CW1/4 was never submitted for audit before the income tax department. It is further admitted by the complainant that he has not shown the amount to be recovered from the accused person as bad debt and voluntarily stated that a debt becomes bad only after the expiry of three years. He further admitted that he has not shown the amount to be recovered from the accused company as bad debt in financial year 2015-16. He categorically denied the suggestions that cheques in question are completely blank when given to the complainant, that the cheques in question were given as security cheques and that there is no legally CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 4 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:25:42 +05'30' recoverable debt from the accused. However, he admits that ink used for filing in contents and the ink used for signature inn the cheques in question was different and voluntarily submits that as a business practice the contents in the cheques are filled by the staff and the signatory of the cheques merely signed it.
Defence of the accused
6. Before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against it, the statement of the accused no. 2 on his behalf and on behalf of accused no. 1 was recorded without Oath under section 281 r/w 313 Cr.PC. In reply, the accused stated that he is holding the post of director in accused no. 1 and the cheques in questions bear his signature. It was further submitted that complainant company had been supplying goods to Accused and a total of Rs. 4 lakhs were due. He further submitted that Ex. CW1/4 is not a complete document. He further submitted that cheques in question were given in year 2012 as security and not against the payment of goods and he had not filled the contents in the cheques in question. He further submitted that the complainant had supplied the material of inferior quality and the same was rejected by the accused and necessary intimation was sent to the complainant. However, he did not recollect whether the complainant had taken back the material. And, accused wished to lead his defence evidence. However, the accused did not lead his defence evidence and closed his right vide order dated 14.01.2019.
CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 5 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:25:58 +05'30'
7. The factual position being thus, the legal bench mark which is to be satisfied in order to constitute an offence u/s 138 N. I. Act
(a) That the accused issued cheque in favor of the payee/complainant on an account maintained by him to discharge legal liability in whole or in part.
(b) That the cheque was presented within stipulated time by the complainant for encashment.
(c) That the cheque was dishonored on presentation because of the amount of money standing to the credit of the account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank.
(d) That the demand for the payment of the said amount of money is made by giving a legal demand notice within 30 days from the receipt of information from the bank regarding the return of the cheque as unpaid.
(e) That the accused fails to make payment of the cheque amount to complainant within 15 days, after receiving of the legal demand notice.
8. Being cumulative, a person who had drawn the cheque is deemed to have committed an offence u/s 138 NI Act when all the aforementioned ingredients are satisfied.
9. That Ld. Counsel for complainant argued the matter at length. Ld. defence counsel also argued the matter in rebuttal. Written arguments are also submitted by the counsel for complainant and accused.
CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 6 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:26:15 +05'30'
10. I have heard the submissions of both parties and gone through the judicial file.
11. On analysis of the facts and legal position stated above, the Court finds the parties to be at variance on one of the primary issues i.e., whether the cheques in question were issued in favor of the complainant in order to discharge the legal liability of the accused.
12. It has been admitted by the accused that the cheques in question were drawn by him upon the bank account maintained in the name of the company in which he is holding the post of Director and having signed the same in capacity as its Director. Once these foundational facts are admitted and a factual base is established, presumption of cheque having been issued in discharge of legally recoverable debt and drawn for lawful consideration arises by virtue of Section 118 (a) and Section 139 of NI Act.
13. Once the foundational facts that the cheques in question bears the signatures of the accused and the same have been drawn on account maintained by him are established a factual base is established to invoke the presumption of cheque having being issued in discharge of a legally recoverable debt and drawn for good consideration arises by virtue of Section 118(a) R/W Section 139 of NI Act. It is a mandatory presumption though the accused is entitled to rebut the said presumption. In a catena of judgements, it has been laid down by the Hon'ble Supreme Court that such presumption in favour of the CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 7 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:26:30 +05'30' complainant cannot be rebutted by a mere plausible explanation but more than a plausible explanation is required.
14. In Rangappa Vs Sri Mohan (2010)11 SCC 441, it was observed that Section 139 of N.I. Act is stated to be an example of a reverse onus clause which is in tune with the legislator intend of improving the credibility of negotiable instruments. Section 138 of NIAct provides for speedy remedy in a criminal forum, in relation to dishonour of cheques.
15. In case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court had held:
"The accused under Section 138 NI Act has two options. He can either show that the consideration and debt did not exit or that under the particular circumstances of the case, the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as it is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which his probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 8 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:26:48 +05'30' presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probably that a prudent man under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question, was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon the circumstantial evidence and if the circumstances so relied upon are so compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arises under Section 118 and 139 of NI Act''.
16. In this case, the arguments raised by the Ld. counsel for the accused to rebut the presumptions are discussed below:
I. DEFENCE THAT CHEQUES IN QUESTION WERE GIVEN ONLY AS A SECURITY CHEQUE It is contended by the Ld. Counsel for the accused that the cheques in question were only given as a security cheque and that too in the year 2012 and these cheques in question were presented by the complainant in the year 2015. Even in reply to question no. 3 of Notice under section 251 CR.P.C, the accused submitted that the cheques in question were given in year 2012. He further submitted that he had sent an email to the complainant for demanding back CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 9 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:27:13 +05'30' the cheques in question. It was further submitted that the complainant had informed the accused that the cheques in question were lost by the complainant.
The Hon'ble High Court of Delhi in its judgment titled as Suresh Chandra Goyal vs Amit Singhal (decided on 14.05.2015), inter-alia, held that: -
"28. There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable.
62. Section 138 of NI Act does not distinguish between a cheque issued by the debtor in discharge of an existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract Section 138 of NI Act in case of its dishonour."
Here the Hon'ble High court made this clear that even if the cheque was issued as a security cheque, so long as the debt is existing, the provision of section 138 NI Act would attract.
Here in the present case, the fact that there were business relations between the accused and complainant is undisputed. It was also admitted by the accused in his statement u/s 313 Cr.P.C that he was liable to pay Rs. 4,00,000/- to the complainant. The accused failed to prove that these cheques in question were given in the year 2012 and at that time no debt was accrued CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 10 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:27:54 +05'30' in favour of the complainant. Further, no evidence was led to prove that email was sent for demanding back the cheque. The accused even failed to prove his bonafides as he failed to prove that any FIR or DD entry was made in respect of the lost cheques despite having the knowledge that same was lost by the complainant.
Thus, this contention of LD. Counsel does not hold water and failed to prove that cheques in question were issued for purpose of security without existence of any debt.
II. DEFENCE THAT CHEQUE IN QUESTION IS MERELY A BLANK SIGNED BILL OF EXCHANGE IN TYERMS OF SECTION 5 OF THE NI ACT The Ld. Counsel for the accused has argued that the cheque in question was indeed a blank signed bill of exchange which was subsequently manipulated in the form of cheque, wherein no particular have been filled by the accused. And it is contended that in the cheques in questions were become void as per the provisions of section 87 of the NI Act.
It is pertinent to note that it is immaterial as to who had filled the particulars in the cheque if the signatures on the cheque in question has been signed duly by the drawer. A reliance be placed on the judgment of the Hon'ble Supreme Court in the case of Bir Singh v. Mukesh Kumar 2019 (4) SCC 197, wherein it has been held that, a material reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remain liable unless he adduces evidence to rebut the presumption that the CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 11 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:28:14 +05'30' cheque had been issued for payment of a debt or in discharge of a liability. It further laid down that it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. In the instant case, the accused had handed over the cheque in question to the complainant with his signatures, which have been admitted by the accused. Thus, it becomes irrelevant as to who has filled the particulars in the cheque in question, in the light of the judgment of the Hon'ble Supreme Court of Bir Singh v. Mukesh Kumar (supra).
Thus, the defence of the accused that a blank signed cheque was handed over to the complainant is irrelevant.
III. DEFENCE THAT EX. CW1/4 I.E LEDGER STATEMENT IS MERELY AN EXTRACT AND NOT A BOOK OF ACCOUNTS It is contended by the Ld. Counsel for Accused that to attract the provision of Section 138 of the NI Act, the complainant must show the existence of a legal recoverable debt/liability and the cheque must be issued in order to discharge that debt/liability. Here, it is argued by the Ld. Counsel that the complainant will get the benefit of Section 139 NI Act only when he proves the existence of a legal recoverable debt. To support her contention, counsel relied upon a judgment titled as V.K Gemini Vs. Chandra (2007 Cr.L.J. 1285 KER). It is also argued by the counsel that in the present case, the complainant has only relied upon a mere extract and an unsigned document i.e., Ex- CW-1/4 which is in its present form in not per se admissible as it is not a book of accounts kept regularly in course of business in terms of Section 34 of the Indian Evidence Act, 1872(hereinafter, 'IEA' for brevity). To buttress her arguments, the counsel has relied upon a Judgment titled as Ishwar Das CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 12 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:28:34 +05'30' Jain(dead) through LRs Vs. Sohan Lal(dead) by LRs (2000) 1 SCC 434 and Central Bureau of Investigation Vs. V.C Shukla (1998) 3 SCC 410. Counsel further argued that since no other documents have been relied upon by the complainant, the complainant has failed to prove the existence of legal debt and therefore, complaint is not maintainable.
Complainant on the other hand, submitted that that in his ordinary course of business, he used to keep all his transactions with other customers in electronic form only and further he relied upon a judgment titled as D. K. Chandel vs. M/s. Wockhardt Ltd. & Anr (CRIMINAL APPEAL NO(S). 132 OF 2020) in which it was categorically held that production of books of account may be relevant in civil cases but not in criminal cases under section 138 of Negotiable Instruments Act because of presumption raised under section 139 of the Act.
It is pertinent to mention here EX-CW1/4 is a ledger account maintained by the complainant and it shows an outstanding debt of Rs. 8,60,485/- against the accused. It is further pertinent to mention that the content of EX-CW1/4 was neither disproved by the Accused nor any suggestion was made to prove that Ex-CW1/4 is a fabricated or a false document. Thus, w.r.t the extent of entries made in EX-CW1/4, same can be relied upon. Now, the sole contention is that the same could not be treated as a book of accounts. The Hon'ble Supreme Court in its judgment D. K. Chandel vs. M/s. Wockhardt Ltd. & Anr (supra) has held that production books of accounts in cases filed under section 138 of the NI Act is not relevant because of presumption raised under section 139 of the NI Act. The presumption under section 139 NI Act will be raised as soon as execution of cheque by the accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. Here in the case in hand, accused no. 2 has already admitted that the cheques CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 13 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:28:51 +05'30' in question were signed by him and resultantly, his liability up to amount mentioned in the cheques in question be presumed, until proven otherwise. Further, he failed to rebut the non-existence of liability by leading any defence.
Thus, this defence raised by the accused is liable to be rejected.
IV. DEFENCE THAT CHEQUE AMOUNT IS MORE THAN
LIABILITY OF THE ACCUSED
It is contended by the Ld. Counsel for the accused that he is only liable to pay Rs. 4,00,000/- to the complainant, which he has already admitted in his statement under section 313 CR.P.C. It is further submitted that in view of the judgment of Hon'ble High court of Delhi titled as Starkey Laboratories India Pvt. Ltd. Vs Sanjay Gujral Cr. L. P. 492 0f 2017, in which it was held that if the cheque amount is higher than the liability of the accused, than it could not be said that the cheques had been issued against such liability and therefore, in view of the same, the complaint ought to be dismissed because liability of the accused was only Rs. 4,00,000/- (Four Lakhs Rupees only) and not Rs. 5,62,800/- (Five Lakh Sixty-Two Thousand Eight Hundred Rupees Only).
It is a rule of law and as well of evidence that statement made/recorded under section 313 CR.P.C would be of limited use. The purpose is to accord an opportunity to the accused to explain his version of the story and it may be used by the courts only to complete the chain of circumstances. Here in the present case, the accused submitted in his statement under section 313 CR.P.C that he owed only a liability of Rs. 4,00,000(Four Lakh Rupees Only) towards the complainant. Same is submitted by the counsel for the Accused. However, CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 14 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:29:11 +05'30' no documents or any other evidence in this regard was produced to prove that accused's liability was only up to extent of Rs. Four lakhs. Surprisingly, accused failed to lead any defence evidence in his support to prove his defence. Moreover, the case law which is relied by the counsel of the accused does not aid her case. In Starkey Laboratories India Pvt. Ltd. Vs Sanjay Gujral (supra), the petitioner himself admitted that actual liability of the respondent is less than the cheque amount. However, in the present case, no such admission has been made by the complainant nor there is anything on record which suggest the same.
Consequently, this defence of the accused also does not hold good.
V. DEFENCE THAT IN HIS COMPLAINT, COMPLAINANT
ONLY INVOKED THE PROVISION OF SECTION 138 NI
AND FAILED TO INVOKE SECTION 141 IN ORDER TO
PROSECUTE THE PERSON INCHARGE OF THE
COMPANY
It is contended by the Ld. Counsel for accused that in his complaint, the complainant failed to invoke section 141 of the NI Act and only section 138 NI was invoked which resultantly made the complaint non maintainable against accused no. 2. To support her contention, Counsel for accused placed her reliance on a case titled as Saroj Kumar Poddar vs. State (NCT OF Delhi) (2007) 3 SCC 693 in which it was held "that a person would be vicariously liable for the commission of an offence, on the part of the company only in the event, the condition precedent laid down therefore, in section 141 of the NI Act stands satisfied".
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MADAAN
MADAAN Date: 2021.08.25 14:29:36
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Here, it is pertinent to mention that the counsel of the accused has only taken the defence of non-mentioning of the specific provision which is section 141 of the NI Act. It is a well settled principle of law that non-mentioning or wrong mentioning of provision of law would not be of any relevance, if the court had the requisite jurisdiction to pass an order. Here in the case in hand, the complainant in para 3 Of his complaint submitted that Accused No. 1 is a company and Accused No. 2 is its director. Further it was submitted by the accused no. 2 itself that he was the Director of Accused No.1 i.e., company. He even admitted his signature on the cheques in question. Further, it was never opposed by the counsel that accused no. 2 was the director or responsible for day-to-day management of accused no. 1. A three Judge Bench decision of the Supreme Court in S.M.S. Pharmaceutical Ltd vs. Neeta Bhalla & Anr (AIR 2005 SC 351) has categorically held that when an accused is admittedly a Signatory Director, the accused per-se would be held liable under section 138 of the Negotiable Instruments Act. Nothing more is required to be alleged or proved to implicate such person. Therefore, the condition precedent of section 141 NI Act stands satisfied.
Thus, the defence of the accused, that non invocation of Section 141 per se makes the complaint non maintainable, does not hold good.
Cumulative effect of discussing 16. I,16. II, 16.III,16. IV and, 16.V is that accused failed to rebut the presumption that cheques in question were issued in discharge of a legal debt/liability towards the complainant. Thus, it can be said that the cheque in question as issued by the accused were in discharge of legal debt or liability.
CONCLUSION CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 16 of 18 Digitally signed VIKAS by VIKAS MADAAN MADAAN Date: 2021.08.25 14:30:11 +05'30'
17. To recapitulate the above discussion, the complainant has been successful in establishing his case beyond reasonable doubt that the accused had issued the cheque in question in discharge of its legally enforceable liability. The presumptions under Section 118 and Section 139 of NI Act were drawn against the accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The defence of the accused that there was no legal liability is not proved, even on the standard of preponderance of probabilities. Moreover, the Hon'ble Supreme Court in the case of Laxmi Dyechem v. State of Gujarat (2012) 13 SCC 375, has held as under, "Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If, however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant...."
18. In light of the aforementioned discussion, the complainant has successfully proved all the essential ingredients of section 138 of the NI act. Accordingly, the Accused no. 1 M/s Vasu Infosec Pvt. Ltd. And its Director, Accused no. 2 Vivek Narang are held liable for CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 17 of 18 VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:30:40 +05'30' committing the offence under section 138 of the NI Act, 1881 and hereby convicted.
19. Let the convict be separately heard for the quantum of sentence.
20. Let a copy of this judgment be given to the convict free of cost VIKAS Digitally signed by VIKAS MADAAN MADAAN Date: 2021.08.25 14:32:06 +05'30' ANNOUNCED IN THE OPEN COURT (VIKAS MADAAN) TODAY 25.08.2021 METROPOLITAN MAGISTRATE ROHINI DISTRICT COURTS DELHI CC No. 9832/2016 M/s East West Fire Engg. Vs. M/s Vasu Infosec 18 of 18