Delhi District Court
M/S Apex Plastics Pvt. Ltd vs . Shri Tarun B. Singh on 18 May, 2015
IN THE COURT OF SH. ARUN GOEL,
METROPOLITAN MAGISTRATE (N.I ACT - 02),
DWARKA COURTS, NEW DELHI.
M/s Apex Plastics Pvt. Ltd.
Through its Manager Shri Raghernder Sinha
Registered Office at: A73, Naraina Industrial Area,
PhaseI, New Delhi110028. ....Complainant
Versus
Shri Tarun B. Singh(Director)
M/s Mark Splendor Nonwoven P Ltd.
E535, Industrial Area
Chopanki, Bhiwadi,
Distt. Alwar(Rajasthan). ....Accused
Serial No. of the case : 7264/14
Name of the complainant : M/s Apex Plastics
Pvt. Ltd.
Date of Institution : 05.09.2013
Name of the accused : Shri Tarun B.
Singh(Director)
Date when judgment was : 10.04.2015
reserved
Date when judgment was : 18.05.2015
pronounced
Offence complained of and
proved : U/s 138 NI Act
Plea of accused : Pleaded not guilty
CC No.7264/14 M/s Apex Plastics Pvt. Ltd.
Vs. Shri Tarun B. Singh
Page No. 1 of 5
Final Judgment : Acquitted
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\ JUDGMENT
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1. Vide this judgment, I shall dispose off the criminal complaint filed
Under Section 138 of the Negotiable Instrument (herein after referred as 'NI Act')
filed against the accused Shri Tarun B. Singh.
BRIEF FACTS OF THE COMPLAINT ARE AS FOLLOW:
2. The complainant has stated that it is a company incorporated under Companies Act, 1956 and is engaged in the business of manufacturing of unsaturated Polyester Resins. It is further stated that the accused is a director of a private company and is responsible for day to day affairs of the company. The complainant has stated that he had business dealings with the accused and during the course of business dealings, accused had taken the goods from the complainant and Rs. 6,31,879/ was due towards the accused company. The accused against repayment of abovesaid amount issued eight cheques to the complainant. The details are as follows:
(i) Cheque bearing no. 062613 dated 10.02.2011 for a sum of Rs. 1,00,000/.
(ii) Cheque bearing no. 062614 dated 17.02.2011 for a sum of Rs. 64,856/.
(iii) Cheque bearing no. 062632 dated 25.02.2011 for a sum of Rs. 64,856/.
(iv) Cheque bearing no. 057826 dated 10.03.2011 for a sum of Rs. 63,698/.
(v) Cheque bearing no. 074412 dated 20.05.2011 for a sum of Rs. 63,698/.
(vi) Cheque bearing no. 074413 dated 30.05.2011 for a sum of Rs. 63,698/.
(vii)Cheque bearing no. 074414 dated 06.06.2011 for a sum of Rs. 63,698/.
CC No.7264/14 M/s Apex Plastics Pvt. Ltd.
Vs. Shri Tarun B. Singh
Page No. 2 of 5
(viii)Cheque bearing no. 074415 dated 20.06.2011 for a sum of Rs. 98,733/.
All cheques were drawn on Canara Bank. The total sum of these cheques was Rs. 5,83,237/. However, when the cheques were presented for encashment it were returned unpaid with the remarks "Funds Insufficient" vide return memo dated 06.08.2011. Thereafter, the complainant issued a legal notice dated 05.09.2011 to the accused, calling him to pay the cheque amount within the prescribed period. However, accused failed to pay the amount and the complaint u/s 138 NI Act was filed on 19.10.2011.
3. After filing of the complaint, the complainant lead pre summoning evidence and examined its AR as CW1 who tendered his evidence by way of affidavit. He relied upon documents namely:
(a) Eight Cheques are as Ex.CW1/A to Ex.CW1/H. (b) Return Memo were as Ex.CW1/2A and Ex.CW1/2H. (c) Original Ledger Account as Ex.CW1/3. (d) Invoices are as Ex.CW1/4A to Ex.CW1/4J. (e) Legal demand notice as Ex.CW1/5. (f) Courier receipts as Ex.CW1/6/1. (g) Speed Postal receipt as Ex.CW1/6/2.
4. Thereafter, the accused was summoned vide order dated 08.11.2011. After summoning of the accused, the accused appeared and a notice u/s 251 CrPC was framed upon the accused on 28.11.2013 to which accused pleaded not guilty and claimed trial. Accused was granted opportunity to cross examine the witness and CE was closed vide order dated 10.11.2014. Thereafter, the matter was listed for CC No.7264/14 M/s Apex Plastics Pvt. Ltd.
Vs. Shri Tarun B. Singh Page No. 3 of 5 recording statement of accused u/s 313 CrPC. Then, statement of accused u/s 313 CrPC was recorded on 02.02.2015 in which accused stated that he wants to lead his defence evidence. In defence, accused examined himself as DW1 and Shri Daya Singh as DW2 and DE was closed on 26.02.2015. Thereafter, the matter was adjourned for final arguments.
5. Final arguments were advanced by the parties.
6. In this case, Ld. Counsel for the complainant has argued that the cheque was issued by the accused against legal liability and when the cheque was presented for encashment, it was dishonoured. Thereafter, legal notice was issued upon the accused for making the payment, despite receipt of the legal notice, accused failed to make the payment. Ld. Counsel for the complainant further submitted that all the necessary ingredients of Section 138 NI. Act has been proved and the accused is liable to be convicted under Section 138 of the N.I Act.
7. The Ld. counsel for the accused has stated that the present complaint is not maintainable as the complainant has failed to prove his case. Ld. counsel for the accused has raised the following objection:
(a) The cheque in question are not issued by the accused and he is not responsible for day to day affairs of the complainant.
(b) MOU has been unsigned and the accused made payment as per MOU so he has no legal liability towards the cheque.
8. Before coming to the contention of the accused, it is relevant herein to CC No.7264/14 M/s Apex Plastics Pvt. Ltd.
Vs. Shri Tarun B. Singh Page No. 4 of 5 mention that the cheque has been issued by the company and the company has not been made the accused. In the case where the cheque has been issued by the company and it has not been made the accused, in that case the complaint against the authorized signatory is not maintainable. Reliance is also placed on judgment of Hon'ble Supreme Court reported as 'Aneeta Hada Vs. M/s. Godfather Travels & Amp. Tours Pvt. Ltd.' Criminal Appeal No. 838 of 2008/842 of 2008. In this case also the cheque is issued by the company and the company has not been made the accused, so the complaint is also not maintainable. The accused has been able to raise sufficient doubt in the case of the complainant.
9. Accordingly, the accused is acquitted. Bail bond stands cancelled and surety if any, stands discharged. Endorsement on documents of surety, if any be cancelled. Original documents of surety, if any be returned against proper identification and acknowledgment.
10. File be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT
ON 18.05.2015 (ARUN GOEL)
METROPOLITAN MAGISTRATE (N.I.ACT) 02
DWARKA COURTS : DELHI
CC No.7264/14 M/s Apex Plastics Pvt. Ltd.
Vs. Shri Tarun B. Singh
Page No. 5 of 5