Delhi District Court
Complainant vs . on 29 April, 2015
IN THE COURT OF SHRI PUNEET PAHWA
METROPOLITAN MAGISTRATE 01 (N.I. ACT)
PATIALA HOUSE COURTS : NEW DELHI
Technology Development Board
Board Constituted under the Provisions
of the Technology Development Board Act, 1995,
Having its Office at:
Technology Bhawan,
New Mehrauli Road,
New Delhi110016.
....................... Complainant
Vs.
1.M/s Samudra biopharma (P) Ltd.
1, 4th East Street, Kamaraj Nagar, Thiruvanmiyur, Chennai600041.
Formerly known as:
M/s Shantha Marine Biotechnologies Pvt. Ltd.
2. Mr. K.O. Issac (Chairman) M/s Samudra biopharma (P) Ltd.
1, 4th East Street, Kamaraj Nagar, TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 1 of 27 Thiruvanmiyur, Chennai600041.
3. Mr. K.O. Philip (Managing Director) M/s Samudra biopharma (P) Ltd.
1, 4th East Street, Kamaraj Nagar, Thiruvanmiyur, Chennai600041.
...................................Accused Case No. Date of Institution 159/1 26.02.2007 160/1 13.06.2007 167/1 05.08.2006 168/1 08.09.2006 216/1 06.02.2007 217/1 20.12.2006 219/1 05.08.2006 Offence Complained Of. : U/s 138 NI Act Plea of the Accused. : Not Guilty Arguments Heard On. : 11.03.2015 Final Order. : Convicted.
TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 2 of 27
Date of Judgment. : 29.04.2015
− :: JUDGMENT ::
1. Vide this common judgment, I shall dispose of above mentioned complaints, pending between the same parties, filed by the complainant u/s 138 Negotiable Instrument Act, 1881 (hereinafter referred to as "N.I Act").
2. In brief, the facts of all the cases are that the complainant is a Board constituted under the provisions of the Technology Development Board (hereinafter referred to as "TDB") for assisting and disbursing loans to the Companies/Organizations engaged in development and commercialization of indigenous technologies and adaptation of imported technologies for domestic applications. The TDB Act, 1955, authorizes the Chairperson/Secretary of TDB to file the present complaints and do all acts in furtherance of the complaints. He is also authorized to delegate his authority to any other official of TDB. Consequently he had authorized Sh. Sharad Kumar Srivastava to file the instant complaints.
3. It has further been alleged in the complaints that accused 2 & TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 3 of 27 3 are the Chairman and Managing Director of accused no.1 and are responsible for the day to day affairs of accused no.1. Accused no.2, as Managing Director of accused no.1, executed the loan agreement and later, as its Chairman, executed the deed of settlement. It has further been alleged that one loan agreement was executed on 24.07.2000 between the complainant and accused no.1 vide which the complainant sanctioned a loan of Rs.350 lacs to the accused for production of Marine Alga Dunaliella Salina and the extraction of natural provitaminA Beta Carotene. As per the loan agreement, the accused no.1 undertook to repay the loan amount alongwith interest. However, the accused failed to adhere to the repayment schedule as per the loan agreement dated 24.07.2000.
4. Thereafter on request of the accused, one supplementary agreement was executed on 20.08.2002 for deferment of repayment of loan installments and payment of interest. As per the supplementary agreement, the repayment of loan and interest was agreed to be started from 01.11.2002 whereas, in the original loan agreement the repayment of the loan was to start from 01.05.2002. However, the accused again defaulted in adhering to the repayment schedule agreed between them as per the supplementary agreement dated 20.08.2002. Thereafter a deed of settlement was executed between the complainant and the accused, wherein, it was agreed TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 4 of 27 that the accused would pay to the complainant the entire principal amount of Rs.350 lacs and outstanding simple interest @ 5% per annum, by way of step up payments starting from April, 2004. The entire payment was to be paid within 14 months from the date of starting of payment. The repayment schedule agreed between the parties was a part of settlement deed dated 21.06.2005 and in discharge of part of the schedule repayment amount, the accused issued the following cheques which are the subject matter of present fourteen complaints:
TABLE 'A' Sl. No. CC CHEQUE NO./ DATE / AMOUNT RETURN MEMO RETURN NO. EXHIBIT DATE MEMO /REASON OF EXHIBIT RETURN 1 159 003533, 25.12.2006 12,50,000/ 02.01.2007 Ex. CW 1/C Ex. CW 1/B Exceeds Arrangement 2 160 003536, 25.03.2007 12,50,000/ 04.04.2007 Ex. CW 1/C Ex. CW 1/B Exceeds Arrangement 3 167 003522 1, 25.03.2006 7,50,000/ Want of Funds 4 168 003525, 25.06.2006 12,50,000/ 07.07.2006 Ex. CW 1/C Ex. CW 1/B Exceeds Arrangement 5 216 003532, 25.11.2006 12,50,000/ 30.11.2006, Ex. CW 1/C 1 The said cheque was lost in transit and confirmation letter dated 10.06.2006 to this effect is Ex. CW 1/B. TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 5 of 27 Ex. CW 1/B Effects not cleared please present again 6 217 003529, 25.09.2006 12,50,000/ 04.10.2006 Ex. CW 1/C Ex. CW 1/B Exceeds Arrangement 7 219 003524, 25.05.2006 12,50,000/ 30.05.2006 Ex. CW 1/C Ex. CW 1/B Exceeds Arrangement
5. Thereafter, legal demand notice was issued by the complainant calling upon the accused to make the payment within 15 days of receipt of the notice. But when the accused failed to make payment within 15 days of receipt of the legal demand notice, the complainant was constrained to file the present complaints u/s 138 N.I. Act.
6. Finding a prima facie case against the accused persons, they were summoned. The accused persons entered appearance and Notice u/s 251 Cr. P.C was served upon them, to which they pleaded not guilty and claimed trial.
7. It is worth mentioning that during the trial the AR of complainant was substituted and a new AR was appointed who had filed his evidence by way of affidavit. Sh. Rakesh Bhardwaj was the new AR of complainant who stepped into the witness box and deposed as CW 1. In his affidavit he has reiterated the averments made in the complaint and fully supported the case of the complainant. The complainant has also relied upon the following TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 6 of 27 documents:
TABLE'B' SL. Nature of Documents No. 1 Authority letter issued in favour of Sharad Kumar Srivastava, previous AR of complainant.
2 Authority letter issued in favour of Rakesh Bhardwaj, new AR of complainant. 3 Cheques in question and cheque returning memos 4 Postal receipts 5 A/D Cards 6 Complaints 7 Supplementary Agreement dated 20.08.2002 8 Deed of Settlement dated 21.06.2005 9 Legal demand notices
8. After his crossexamination the CE was closed. Statement of accused u/s 313 Cr. P.C was recorded and the accused persons were called upon to lead DE.
9. Basically the defence of the accused was that the amount of Rs.350 lacs was disbursed in installments over a period of three years. But since the plant was located in a desolate area and was under the control of militants, the construction was delayed due to non availability of building material. Thereafter, the TDB's assessment team concluded that the project would not be completed in time and therefore time was extended by the assessment team. Although he had admitted the loan agreement, TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 7 of 27 the supplementary agreement and also deed of settlement entered into between the parties but it was stated by the accused persons that vide an order, the Central Govt had issued directions for placing natural betacarotene under the Drug Price Control which made the project unviable. Because as per the said order, they were forced to sell their product below its manufacturing cost.
10. Further, the cheques in question were issued alongwith the deed of settlement, which were to be encashed during the course of four years. They were not aware about the time when those cheques would be presented for encashment. Subsequently the accused company made the payment through Demand drafts and out of total liability of Rs.4.71 crores the amount of Rs.1.89 crores was paid by the accused by way of demand drafts. The cheques in question were issued as security only and the payments were to be made by demand draft. They have also submitted that it was a secured loan and it was taken against company's land and assets and shares valuing approx. Rs.1.3 crores and corporate guarantee was also given by the promoters, Shantha Biotechnologies Pvt. Ltd. The accused company had requested TDB to dispose of the collateral property and recover the balance amount from the said property. They have further submitted that the promoters of the accused company paid Rs.3 crores to the complainant which means TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 8 of 27 that total amount of Rs.4.89 crores has already been paid by the accused to the complainant against the specified liability of Rs.4.71 crores. Therefore, the accused company has already made payment against its entire liability and now nothing is due to be paid by the accused. The TDB is further authorized to dispose of assets of the company and thus the demand of the complainant company is unjust and illegal.
11. After perusing the defence raised by the accused persons, it appears that the basic defence of the accused persons is that they have already made the entire payment to the complainant and now since there is no liability upon them, the matters stood compounded and thus they are entitled to be acquitted.
12. Bare perusal of Section 138 of the NI Act clarifies that five essential ingredients for completing the offence under Section 138 of the Act are as below:
i) Issuance of the cheque in discharge of a legally recoverable debt or liability;
ii) Presentation of the cheque with the bank;
iii)Returning of the cheque unpaid by the drawee bank;
iv) Giving notice in writing to the drawer of the TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 9 of 27 cheque demanding payment of the cheque amount, and
v)failure of the drawer to make payment within 15 days of the receipt of the notice.
13. It is pertinent to mention here that there are two presumptions of law as mandated by the Negotiable Instruments Act. According to Section 118 (a) of the Act, it shall be presumed that every negotiable instrument was made or drawn for consideration. By virtue of this clause, the Court is obliged to presume that the promissory note was made for consideration or until the contrary is proved. In Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm and Others AIR 2008 SC 2898 it was held as under: "... ... ... The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist...."
TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 10 of 27
14. According to Section 139 of NI Act "it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque for discharge in whole or in part, of any debt or other liability." Under Section 139 NI Act there is a legal presumption that the cheque was issued for discharging a liability and that presumption can be rebutted only by the person who drew the cheque. This presumption can be rebutted by the accused by adducing evidence. So the burden of proof is on the accused.
15. In Hiten P. Dalal Vs. Bratindranath Banerjee AIR 2010 SC 1898 it was held as under: "The words 'unless the contrary is proved' which occur in this provision (Section 139) make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......".
TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 11 of 27
16. Now it is to be seen whether the accused persons have been able to rebut the presumptions raised again them and if yes, whether the complainant has been able to bring home the guilt of the accused beyond all reasonable doubt or not? To rebut the presumptions raised against the accused persons, Ld. Counsel for the accused had crossexamined the complainant witness and tried to bring on record that the entire payment has been made by the accused to the complainant and now there is no more liability upon the accused persons.
17. Ld. Counsel for the accused has crossexamined the complainant witness i.e. CW 1 Rakesh Bhardwaj at length. During his crossexamination, CW 1 deposed that he had joined the services on June, 2011. He was appointed as AR of TDB by its secretary. He further deposed that he has been appointed as AR vide authority letter Ex. CW 1/A. He denied the suggestion that as per the deed of settlement the total amount of Rs.4,71,30,833/ shown in the schedule of installment was the full and final payment towards the loan agreement. He voluntarily deposed that it was a part liability and as per para F of the said deed of settlement dated 21.06.2005 the total outstanding on 31.03.2004 was Rs.202.84 crores. He further deposed that the accused had issued total 48 cheques in pursuance to the deed of settlement.
TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 12 of 27
18. He admitted that the complainant company TDB has received Rs.4,83,01,649/ from the accused and M/s Shantha Biotechnologies Pvt. Ltd. He deposed that the complainant has received Rs.3 crores from M/s Shantha Biotechnologies Pvt. Ltd. on 01.07.2011 in compliance of the award passed by Ld. Sole Arbitrator Sh. N.K. Sharma and the remaining amount of Rs.1,83,01,649/ has been received from the accused i.e. M/s Samudra Bio Pharma till date. A question was put to the witness that did the aforesaid two companies i.e. M/s Shanta Biotechniques Ltd. and M/s Samudra Bio Pharma jointly owe him Rs.4,83,01,649/ ?. In answer to this question, the witness deposed that it was accused M/s Samudra Bio Pharma who owed the complainant Rs.4,83,01,649/. He admitted the suggestion that as per para 1.1A of the loan agreement, the loan was secured by deed of hypothecation/mortgage.
19. He admitted that the cheques in question have been issued by Samudra Bio Pharma Pvt. Ltd. through accused no.2 K.O. Issac. He admitted the suggestion that the amount of Rs.3 crores from Shanta Biotechniques Pvt. Ltd. was reflected in the account of the accused Samudra Bio Pharma Pvt. Ltd. in the ledger account of TDB Ex. CW 1/6. During the crossexamination the witness placed on record copy of arbitration award dated 28.05.2010 and since it was not disputed by the parties, the same was exhibited as TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 13 of 27 Ex. CW 1/7. He admitted the suggestion that the arbitration proceedings were initiated by TDB in pursuance of a dispute in respect to the loan Rs.3.5 crores was given to the accused.
20. I have gone through the crossexamination of the complainant witness and after going through the same this court is of the view that no major contradiction came out from his cross examination.
21. I have heard Ld. Counsel for complainant as well as Ld. Counsel for accused and have also gone through the case file.
22. Ld. Counsel for the complainant has argued that the complainant has proved its case beyond all reasonable doubt whereas the accused persons have failed to rebut the presumptions raised against them and, therefore, they are liable to be convicted.
23. On the other hand Ld. Counsel for the accused has raised the following issues:
i. That summoning order passed by this court is not proper and is defective as it does not clearly mention the name of the accused persons who have been summoned. He has argued that complete address of the accused persons are to be mentioned in the TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 14 of 27 summoning order so as to clearly show as to which accused has been summoned by the court. To substantiate this arguments Ld. Counsel for the accused has relied upon the judgment of Hon'ble Rajasthan High Court titled as Ram Pal Vs. State of Rajasthan, CriLJ 3261, 1998(2) WLC 31;
ii. That the authority letter dated 09.07.2012 issued in favour of Rakesh Bhardwaj is also defective as it is general in nature and it does not authorize him to depose in a criminal complaint u/s 138 N.I. Act.;
iii. That the accused persons have already paid more than the cheque amount, which has been admitted by the AR himself which means that the entire liability has been discharged and the matter has been compounded between the parties. Moreover property worth Rs.5 crores is still hypothecated with the complainant and the complainant can very well recover the amount from that property. The fact that the complainant is not recovering the said money from hypothecated property implies that intention of the complainant is not good and they just want to harass the accused persons. To substantiate this argument, Ld. Counsel for the accused has relied upon the judgment of Hon'ble Supreme Court in Damodar S. Prabhu Vs. Sayed Babalal H. (2010) 5 SCC 663;
iv. That the complainant has not come with clean hands as sometimes TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 15 of 27 the complainant is resorting to the original agreement whereas sometimes it relied upon the deed of settlement executed between the parties. Once the deed of settlement is executed between the parties, the original agreement stands substituted. However, the complainant without terminating the deed of settlement is reverting back to original agreement;
v. That no evidence has been led by the complainant to show that accused no.2 & 3 are Chairman and Managing Director of accused no.1 and there is nothing to show that they were responsible for day to day affairs of accused no.1 company. Accused no.2 & 3 have not signed the cheques and therefore they are not liable to be prosecuted u/s 138 of N.I. Act. Ld. Counsel for the accused has placed reliance on two case laws titled as H.B. Chaturvedi Vs. State & Anr. 2006(1) ALD Cri 52 and Mrs. Aparna A. Shah Vs. M/s Sheth Developers Pvt. Ltd. & Anr. Cri. Appl. No.813 of 2013; and vi. That in the crossexamination of defence witness no question was asked regarding the defence raised by the accused and therefore the entire evidence has gone unrebutted which is deemed to have been admitted by the complainant. To substantiate his arguments, Ld. Counsel for the accused has relied upon the judgment of Hon'ble TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 16 of 27 Supreme Court in Sarwan Singh Vs. State of Punjab AIR 2002 SC 3652.
24. In rebuttal Ld. Counsel for the complainant has argued that the objections with respect to summoning order are not maintainable at this stage as the summoning order was not challenged by the accused persons and accordingly the same has become final and now at this stage they can not raise this issue. Otherwise also no prejudice has been caused to the accused persons and all the accused persons have been summoned and the judgment relied upon by the accused to substantiate this defence is not applicable in the present case. Since all the accused persons have been summoned in this case, there was no need to separately mention the name of the accused persons in the summoning order. Secondly there is no defect in the authority letter filed by the complainant and it clearly authorizes the AR to pursue with the present complaints.
25. So far as the payment by coguarantor is concerned the same can not be said to have been made to compound the present complaints. Since compounding is a bilateral act, it can be done only with the consent of both the parties. Nothing has been brought on record to show that the present complaints have been TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 17 of 27 compounded between the parties. Moreover the complainant is free to appropriate the payment made by the coguarantor towards the interest of the loan amount. The basic ingredients for an offence u/s 138 N.I. Act is return of the cheque unpaid; issuance of notice and failure of the drawer to make the payment within 15 days of receipt of notice. Once the 15 days period is over, the cause of action arises on the 16th day and the offence stands committed. Any subsequent payment made by the accused or any other person does not exonerate the accused persons from their liability to be prosecuted u/s 138 N.I. Act. Just because some amount has been paid by the accused does not imply that the matter has been compounded. On these grounds Ld. Counsel for the complainant has argued that the accused persons have failed to rebut the presumptions raised against them and therefore they are liable to be convicted.
26. The major defence of the accused persons is that the total outstanding liability of the accused was Rs.4,71,30,883/ whereas they have already paid Rs.4.89 Crores which is much more than the outstanding liability and therefore the entire amount has already been paid and hence the present complaints are not maintainable. The accused has raised the issue that since the entire amount has been paid, the present complaints stood compounded and the TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 18 of 27 accused persons are entitled to be acquitted.
27. Admittedly it has come on record that the accused persons have paid Rs.1.71 Crores to the complainant and Rs.3 Crores has been paid by M/s Samudra Bio Pharma which is the promoter of accused company. Ld. Counsel for the accused has also relied upon the decision of arbitrator, appointed to resolve the dispute between the complainant and the accused. Now it is to be seen whether the payment made by the accused and its promoters, pursuant to the arbitration proceedings would amount to compounding of matter or not.
28. In Gurucharan Singh Vs. M/s Allied Motors Ltd. 2006 (2) RCR (Crl.)30 the Hon'ble Supreme Court set aside the orders of Hon'ble High Court by which the criminal proceedings u/s 138 N.I. Act were stayed till the conclusion of civil proceedings. In this matter in respect of the dispute, arbitrator had passed an award in favour of the accused and complainant had challenged the award in civil proceedings. The complainant case was pending even before the passing of the award by an arbitrator. The Hon'ble Supreme Court had held as under:
"....civil proceedings or arbitration proceedings for recovery and the criminal proceedings under section 138 TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 19 of 27 N.I. Act are based upon independent cause of action. The making of the award may be a defence to such a complaint but to what extent the defence would be valid, shall depend upon the facts and circumstances of the case. Mere making of the award cannot be a ground to stall or stay the proceedings initiated under section 138 N.I. Act"
29. Besides the abovesaid judgment of Hon'ble Supreme Court, there are catena of judgments passed by Hon'ble Supreme Court and various Hon'ble High Courts which provide that enforcement of liability through a civil court will not disentitle the complainant from prosecuting the accused for an offence u/s 138 N.I. Act. Both remedies may be simultaneously possible. It has further been observed that a civil suit or arbitration proceedings can not debar the criminal prosecution. In fact the Hon'ble Supreme Court in Rajneesh Aggarwal Vs. Amit J. Bhalla 2001 AD (SC) 44 has held as under:
"So far as the criminal liability is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 20 of 27 sentence it may have some effect on the court trying the offence. But no stretch of imagination a criminal proceedings could be quashed on account of deposit of money in the court or that an order of quashing of criminal proceedings which is other wise unsustainable in law could be sustained because of deposit of money in the court. Hence, merely full or part payment of the cheque made during pendency of the prosecution itself is not a ground to absolve the accused from his liability attached to the conviction for the offence but this fact can be a basis to ascertain and fix the extent of punishment".
30. Thus it is clear that the criminal remedy is separate from civil remedy and filing of civil suit for recovery or pendency of arbitration proceedings or approaching to consumer forum in respect of dishonour of cheque is not a ground to debar the complainant to file complaint u/s 138 N.I. Act. The ingredients for an offence u/s 138 N.I. Act are entirely different and once those ingredients are established and the accused has failed to make the payment within 15 days of receipt of notice, the accused can very well be prosecuted for an offence u/s 138 of N.I. Act and subsequent payment by the accused will not exonerate him from his liability.
TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 21 of 27
31. It is also well settled that compounding of an offence is a bilateral act which can be done only with mutual consent of both the parties and just because the accused has made the payment does not mean that the matter has been compounded. It is nowhere on record to show that the payments have been made for the purpose of compounding of present complaints u/s 138 N.I. Act. Hence, this defence raised by Ld. Counsel for the accused is not sustainable. Otherwise also this court find force in the arguments of Ld. Counsel for the complainant that where the payment has been made without any stipulation then the complainant is free to appropriate that payment towards the interest part. Thus, this defence is not sustainable and stands overruled.
32. Next defence raised by the accused is that the summoning order is defective as it does not disclose the name of the accused persons who have been summoned. This defence is also not sustainable as the accused persons have never challenged the summoning order passed by this court and thus the same has obtained finality. Otherwise also since all the persons impleaded as accused have been summoned, no injustice has caused to the accused persons. Just because their names have not been mentioned in the summoning order, it does not mean that the order TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 22 of 27 is per se bad in law. It will not amount to any injustice. The description/particulars of all the accused persons are very well mentioned in the complaints and merely non mentioning of the accused persons in summoning order will not affect the trial in the present complaints. The judgment relied upon by Ld. Counsel for the accused is not applicable in the present case as the facts are entirely different.
33. The next defence raised by the accused is that the authority letters on the basis of which the present complaints have been filed and also on the basis of which the AR has deposed as a witness, are not proper as the same do not authorize the AR to file the criminal complaints u/s 138 N.I. Act and to depose as a witness.
34. I have gone through both the authority letters Ex. CW 1/A & Ex. CW 1/A1 and after perusing both the authority letters I am of the considered opinion that the authority letters are not defective and they very well authorize the AR to pursue with the present complaints u/s 138 N.I. Act. The authority letters clearly authorizes the AR to sign, file and verify pleadings on behalf of TDB and to do all necessary acts in furtherance thereof before any court of law and/or before any Tribunal with respect to recovery of loan assistance extended by TDB to M/s Samudra Biopharma Pvt Ltd.
TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 23 of 27 Merely because the terms complaint u/s 138 N.I. Act is not mentioned will not disentitle the AR to pursue with the present complaints. Words used in the authority letters very well cover filing of complaint u/s 138 N.I. Act and to depose on behalf of the complainant so as to recover the loan assistance extended by TDB to the accused and, hence, this defence is also not sustainable and is accordingly overruled.
35. The next defence raised by Ld. Counsel for the accused is that the complainant has not come with clean hands and the present complaints have been filed just to extort money from the accused persons as on one occasion the complainant is resorting to original agreement whereas on other occasions he is relying upon the provisions of deed of settlement, which can not be done. However, this defence is also not sustainable as the present complaints are based upon the act of dishonour of cheques and for non payment by the accused even after 15 days of service of legal demand notice. The agreement and deed of settlement are just an evidence to prove guilt of the accused and even if those are not considered, the onus was upon the accused to rebut the presumptions raised against them. The fact that the complainant is relying upon the original agreement as well as on deed of settlement, will not affect the initial onus of the accused to rebut the presumptions raised TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 24 of 27 against them. The cause of action in the present complaints has not arisen from the original agreement or deed of settlement. The cause of action has arisen due to dishonour of the cheques and failure of the accused in making the payment which is not dependent upon the agreement or deed of settlement and, hence, this defence holds no ground so far as the present complaints are concerned.
36. The next defence raised by Ld. Counsel for the accused was that no document has been brought on record to show that accused no.2 & 3 were the Directors of accused no.1. If we peruse the deed of settlement Ex. CW 1/J, it is clear that the said deed of settlement has been signed by accused no.2 K.O. Issac as Director and authorized signatory of accused no.1. Thus from the said document, it stands proved that accused no.2 was a Director of accused no.1 and had actively participated in the transactions between accused no.1 and the complainant. The Form 32 filed by the accused also shows that he had resigned from the post of Managing Director and not from the Directorship and thus he was the Director of accused no.1 at relevant time.
37. So far as liability of accused no.3 is concerned, the complainant in his complaint as well as in his affidavit has very categorically stated that accused no.3 was also the Director of TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 25 of 27 accused no.1. Accused no.3 has failed to rebut this averment and thus it also stands proved that accused no.3 was also the Director of accused no.1 at the relevant point of time. In fact Ex. CW 1/D which has been filed by the accused himself is a letter issued by accused no.3 to one Sh. Dinesh Sharma, Secretary, Department of Science & Technology. This letter clearly shows that accused no.3 is Managing Director of accused no.1 and thus he is liable to be prosecuted in the present complaints u/s 138 r/w S.141 of N.I. Act. Furthermore, the document Ex. CW 1/C also refers accused no.3 as Managing Director of M/s Samudra Biopharma Pvt. Ltd and hence this defence of the accused is also not sustainable and accordingly overruled.
FINAL ORDER
38. In the end it can be said that the complainant has proved beyond all reasonable doubt the guilt of the accused whereas the accused persons have failed to rebut the presumptions raised against them. Accordingly, accused no.1,2 & 3 stand convicted u/s 138 of N.I. Act.
Now to come up for arguments on quantum of sentence today itself i.e. 29.04.2015 at 1:00 p.m. TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 26 of 27 Announced in the open Court on 29th April, 2015 (PUNEET PAHWA) MM (NI ACT1) PATIALA HOUSE COURTS NEW DELHI TDB Vs. Samudra Biopharma Pvt. Ltd. Page No. 27 of 27 IN THE COURT OF SHRI PUNEET PAHWA METROPOLITAN MAGISTRATE 01 (N.I. ACT) PATIALA HOUSE COURTS : NEW DELHI Technology Development Board Board Constituted under the Provisions of the Technology Development Board Act, 1995, Having its Office at:
Technology Bhawan, New Mehrauli Road, New Delhi110016.
....................... Complainant Vs.
1. M/s Samudra biopharma (P) Ltd.
1, 4th East Street, Kamaraj Nagar, Thiruvanmiyur, Chennai600041.
Formerly known as:
M/s Shantha Marine Biotechnologies Pvt. Ltd.
2. Mr. K.O. Issac (Chairman) M/s Samudra biopharma (P) Ltd.
1, 4th East Street, Kamaraj Nagar, Page of 5 Thiruvanmiyur, Chennai600041.
3. Mr. K.O. Philip (Managing Director) M/s Samudra biopharma (P) Ltd.
1, 4th East Street, Kamaraj Nagar, Thiruvanmiyur, Chennai600041.
...................................Accused Case No. Case No. Case No. 159/1 147/1 162/1 160/1 154/1 163/1 167/1 155/1 164/1 168/1 156/1 165/1 216/1 157/1 166/1 217/1 158/1 179/1 219/1 161/1 218/1 At 3:00 p.m. ORDER ON SENTENCE Present: Ms. Geeta Malhotra and Sh. Vishal Dabas, Ld. Counsel for complainant alongwith Ms. Swasthika Kumari, employee of the complainant company in person.
Page of 5 Sh. Jaydip Bhattacharya, Sh. Abid Ali Beeran P and Sh. Robin George, Ld. Counsel for convict no.1,2 & 3 alongwith convict no.2 & 3 in person.
Arguments on quantum of sentence heard.
Ld. Counsel for the complainant has argued that the complainant has been pursuing with the present complaints for the last approx. 78 yrs and the complainant being a Govt. Agency must be fully compensated so as to prevent loss of public money. She has further requested for maximum punishment to the convicts so that message could be sent to the society at large.
On the other hand Ld. Counsel for the convicts has argued that the convicts have clean antecedents and in fact they are Scientist by profession and are well educated and they did not have any intention to commit any offence. He has further argued that the purpose for taking loan from the complainant was to develop an indigenous technology i.e. "production of Marine Alga Dunaliella Salina and the extraction of natural provitaminA Beta Carotene" and, if the project had been successful, it would have benefited the entire country. It is just because of policy change they could not pursue with the project. He further argued that since the drugs which were being extracted were to be used for the benefit of the mankind, a lenient view may kindly be taken against the convicts. He further argued that the convicts are not business Page of 5 professionals and they did not take the said loan for the purpose earning profits and they just intended to develop a drug so that infant mortality rate can be reduced. Ld. Counsel for the convicts has further argued that from the record it is clear that the loan taken was approx. Rs.2.8 Crores and the total outstanding liability was to the tune of Rs.4.71 Crores whereas, the convicts have already paid Rs.4.89 Crores to the complainant, which the complainant has himself admitted. This fact should be taken into consideration while awarding sentence. Moreover property worth Rs.5 Crores is still hypothecated with the complainant and it is best known to the complainant only as to why the complainant has not recovered the amount from the said property.
Arguments heard.
Admittedly it has come on record that an amount of Rs.4.89 Crores has been paid to the complainant by the convicts and by Samudra Biopharma, which is the promoter of convict no.1. It is also not in dispute that the property worth Rs.5 Crores is still hypothecated with the complainant. This court can not ignore the fact that the convicts are well educated and are scientist by profession and the project which they had undertaken would have benefited the entire nation had it been succeeded. However, it also can not be ignored that the complainant is a Govt. Agency which has been pursuing the present complaints for the last approx. 78 Yrs.
Looking into the facts and circumstances of the case and to Page of 5 meet ends of justice, this court does not deem it fit to send the convicts behind the bars. However, to properly compensate the complainant which is a Govt. Agency, convict no.2 & 3 are sentenced to custody till rising of the court and they are further sentenced to pay compensation to the complainant of Rs.1,00,000/ (Rs. One Lac) in each complaint, totaling to Rs.21,00,000/ (Rs. Twenty One Lacs Only), which is to be paid to the complainant within 45 days from today and in case of default in payment of compensation to the complainant, the convicts shall be liable to undergo Simple Imprisonment for One month. Copy of judgment and order on sentence be given to the convicts free of cost.
File be consigned to record room after due compliance.
Announced in the open Court on 29th April, 2015 (PUNEET PAHWA) MM (NI ACT1) PATIALA HOUE COURTS NEW DELHI Page of 5