Delhi District Court
Complaint Cases/1279/2015 on 16 October, 2015
CC No.1279/15
Durga Prasad v. Poorva Hospitality Pvt. Ltd.
16.10.2015
Present: None for the complainant.
Accused Sandeep Singh is absconder vide order dated
22.05.2014.
Accused Vipin Sharma and Honey Sharma produced
from Kapurthala Jail (on bail in this case).
Proxy counsel for the accused persons.
Vide separate judgment of even date, accused Vipin
Sharma and Honey Sharma are acquitted for the offence under
Section 138 of Negotiable Instrument Act, 1881. Personal bond of
Rs.10,000/ furnished by the accused in compliance of Section 437
A Cr.PC which shall remain in force for the period of six months
from today.
File be consigned to the record room after necessary
compliance.
(GURMOHINA KAUR)
MM01 (South), NI Act
New Delhi/16.10.2015
Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 1 to 1
IN THE COURT OF MS. GURMOHINA KAUR:
METROPOLITAN MAGISTRATE (SOUTH) 01,
NI ACT, SAKET COURTS : NEW DELHI.
CC NO.1279/15
Durga Prasad v. Poorva Hospitality Pvt. Ltd.
1. Complaint Case No. : 1279/15
2. Name of the complainant : Shri Durga Prasad (Proprietor)
son of Shri R C Rai M/s Durga
Prasad Interior Decorator &
Construction Work, J1,
271/14, Sangam Vihar, New
Delhi62.
3. Name and address of the : 1. M/s Poorva Hospitality
accused Pvt. Ltd., C193, Ground
Floor, Greater Kailash, PartI,
New Delhi48.
2. Mr. Vipin Sharma,
Director of M/s Poorva
Hospitality Pvt. Ltd.
3. Mr. Sandeep Singh,
Director of M/s Poorva
Hospitality Pvt. Ltd.
(ABSCONDER vide order
dated 22.05.2014)
Durga Prasad v. Poorva Hospitality Pvt. Ltd.
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4. Ms. Honey Sharma,
Director of M/s Poorva
Hospitality Pvt.
4. Offence complained of or : U/s 138 of the Negotiable
proved Instrument Act, 1881
5. Plea of the accused : Pleaded not guilty
6. Final Order : Acquitted
7. Date of Order : 16.10.2015
BRIEF FACTS OF THE CASE
1. The brief facts of the case are that the complainant is doing the business of Interior Decorator and Construction works from the given address. It is stated in the complaint that accused number 1 through accused number 2, 3, & 4 intended to carry out interior decoration and construction work for their "Twister Restaurant" project, with material at C193, Greater Kailash, PartI, New Delhi and offered to get execution of the said interior decoration and construction work with material from the complainant.
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2. It is stated in the complaint that the complainant accordingly submitted the rates for carrying out the interior decorations and construction with material dated 20.05.2004 for their "Twister Restaurant" and the said rates were duly approved by accused number 1 through accused number 3 & 4.
3. It is further stated in the complaint that after completion of the work, the complainant submitted bill dated 20.09.2004 for Rs.18,91,072.85 which was duly received by accused number 1 through accused number 3.
4. It is also stated in the complaint that on this, accused persons have paid a sum of Rs.11,25,000/ to the complainant and balance of Rs.7,66,027.85 is balance payable by the accused persons to the complainant.
5. It is further stated in the complaint that in due discharge of the aforesaid liability, the accused number 1 through accused number 2 issued two cheques to the complainant, one cheque bearing 773533 dated 10.12.2004 for a sum of Rs.2 lakhs and Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 4 to 1 another cheque bearing number 773543 dated 15.01.2005 for a sum of Rs.1 lakh which were drawn by the complainant on HDFC Bank Ltd., S65, Greater Kailash, PartI, New Delhi110048 with the assurance that the same shall be honoured upon presentation.
6. It is further stated in the complaint that on assurances and believing the inducements, the complainant presented the said cheques but the same were dishonored vide memos dated 14.01.2005 and 18.01.2005 with the remark of "Funds Insufficient".
7. It is also stated in the complaint that accused number 1 failed to clear the entire balance outstanding liability of Rs. 7,66,072.85 including the aforesaid dishonoured cheque amounts till date to the complainant. Thereafter, the complainant sent a legal notice dated 24.01.2005 to the accused persons but the accused persons have failed to pay the balance amount to the complainant. It is also stated that the accused number 1 to 4 are jointly and severally liable to Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 5 to 1 pay the entire balance amount and thereafter, the present complaint has been filed for dishonour of the two cheques.
8. Upon service of summons, accused number 4 Honey Sharma put her appearance on 09.04.2012 and accused number 2 Vipin Sharma put his appearance on 25.04.2012 (who represent also accused number 1). Notice under Section 251 Cr.PC against all three accused persons were served on 29.05.2014, to which they pleaded not guilty and claimed trial.
EVIDENCE
9. To support its case, the complainant examined himself as CW1.
10.In his cross examination CW1 Mr. Durga Prasad deposed that there was no written/oral agreement between the parties with respect to the schedule time period for the work done i.e. no time was fixed in months or year. CW1 further deposed that the cheques in question which were a part of Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 6 to 1 balance amount pending were handed over to him at the finishing stage of construction and the cheque in question handed over on 20.04.2005. CW1 also deposed that he is the proprietorship concern Shri Durga Prasad. CW1 admitted that the work was done on behalf of the firm. CW1 deposed that the order was not given in writing and they had placed the quotation which was approved with putting the signature of the quotation itself. CW1 further stated that he was introduced to the accused to his architect namely Ms. Manvi Aggarwal.
11. CW1 further deposed that the total cost of Rs.18,91,000/ approximately. CW1 admitted that he was aware that he was dealing with accused number 1 which is a private limited company. CW1 also stated that the quotation was signed by Ms. Honey Sharma. CW1 stated that he did not check any paper to verify whether the accused number 1 was the company and the accused number 2, 3 and 4 were its Directors. CW1 denied the suggestion that Ms. Honey Sharma was never the Director. And CW1 admitted that he Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 7 to 1 have not palce any document on record to show that Ms. Honey Sharma was Director of accused number 1. CW1 further admitted that no written agreement was executed between them. CW1 admitted that the amount of Rs. 11,25,000/ was not adjusted when the final bill was raised and out of the said amount, Rs.2 lakhs was advance payment and remaining Rs.9,25,000/ was paid by the accused in cash in parts various dated.
12.CW1 also admitted that the details of the payment of Rs.11,25,000/ has not been mentioned in the complaint, however, in the complaint clearly mentioned that he have received Rs.11,25,000/ from the accused persons.
13.Thereafter, the complainant evidence was closed.
14. The statement of the accused persons under Section 313 of Cr.P.C. were recorded on 29.04.2015. wherein accused persons stated that the rates were not approved by them and it was jointly approved by Mr. Sandeep Singh, the co accused and Ms. Manvi Aggarwal that is their interior Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 8 to 1 decorator. It is also stated by the accused persons that they did not received any bill from the complainant and the bills might have been given to Mr. Sandeep Singh and Ms. Manvi Aggarwal. It is also stated that accused no.4 was not Director of accused no.1 nor she had signed the documents and she had been arrayed as accused just to pressurize them. Thereafter, the accused persons want to lead defence evidence.
15.Thereafter, the matter was fixed for D.E.
16.In his defence, the accused examined himself as defence witness number 1 wherein he deposed that DW1 had contacted interior designer Ms. Manvi Aggarwal and Mr. Ashish Aggarwal for renovation of his restaurant in 2005. DW1 deposed that before the renovation work had started, Manvi Aggarwal and Ashish Aggarwal took two blank signed cheques from him for starting the work. Ms. Manvi Aggarwal and Mr. Ashish Aggarwal did not complete their work assigned to them and after 1520 days, DW1 handed Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 9 to 1 over renovation work to interior designer Axes Interior Designer. DW1 also deposed that he was dissatisfy with the work of Manvi Aggarwal and Ashish Aggarwal as they were delay in the work done and the quality of the work was not good and he suffered damages of Rs.60 lakhs approximately as he was earning around Rs.2 lakhs per day. DW1 further deposed that he did not received any legal demand notice with respect to dishonored of the cheque in question.
17. In his cross examination DW1 deposed that the CA of the company maintains the record of the company. DW1 also deposed that he cannot identify the signature of accused no. 4 on Ex.CW1/1 at point A, B, C and D however he can read the same as Honey. DW1 further deposed that he cannot read or find the word 'approved' mentioned on the quotation Ex.CW1/1 at four places. DW1 stated that he can identify the signature of accused no.3 Sandeep Singh on the quotation at point E, F, G and H and the signature/name of Honey has been forged.
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18.DW1 further deposed that Ex.CW1/3, the signature of his at point X and further deposed that he had only provided blanked signed cheques as security to Manvi Aggarwal and Ashish Aggarwal and the details of the same have been filled up by another person. DW1 further deposed in his cross examination that the address mentioned in the AD card is correct and the same was objected by the counsel for the accused as the same is not a part of complaint.
19.DW1 admitted that the account of accused company were duly audited by CA however he was unable to produce the same in the court since he is in judicial custody. DW1 further admitted that the amounts payable and recoverable are mentioned in the balance sheet of the company. DW1 deposed that prior to receipt of summons of the present case., he had sent 810 notices to Manvi Aggarwal and Ashish Aggarwal regarding the dissatisfactory done by them. DW1 deposed that he did not have any receipt of any full and final payment made to the complainant since he never worked for him.
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20.DW1 denied the suggestion that he had paid Rs.11.25 lakhs to the complainant out of the total outstanding liability of Rs. 18,91,072.85 leaving unpaid balance of Rs.7,66,072.85/ outstanding amount.
21. DW1 further deposed that he had never written any letter to the complainant to return the cheques in question as he had never handed the same to him. DW1 denied the suggestion that against the outstanding amount of Rs.7,66,072.85/, he had issued the cheques in question towards the part payment. DW1 further denied that he was deposing falsely that he had not received the legal demand notice and the defence raised is after thought.
22.In his defence, DW2 Ms. Honey Sharma examined wherein she deposed that she was not aware as to who was assigned the renovation work at Twister Restaurant and prior to appearing before the court, she had never seen the complainant. DW2 also stated that she had never handed over any signed document to the complainant and she was Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 12 to 1 not a Director of accused company and also that she had never received any legal notice.
23.In his cross examination DW2 deposed that she did not know the name of the CA of accused company as she have no relation with the accused company. DW2 further deposed that the signature on Ex.CW1/1 at point A, B, C and D are not her. DW2 further deposed that she did not know the details of any construction work if any done at Twister Restaurant. DW2 also deposed that in the year 200405, the address of D111, Defence Colony, New Delhi is correct but they used to reside at Uday Park.
24.DW2 denied the suggestion that she was deposing falsely or that there is no balance or outstanding liability towards the complainant or that she could not say whether the cheques in question were issued by her husband towards partial discharge of liability of the company in which her husband was Director.
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25.In his defence, the accused examined DW3 Mr. Dhruv wherein he stated that the accused Vipin is his cousin and he used to run a restaurant as an owner in G K - I, Delhi by the name of Twist. DW3 further deposed that he occasionally visited the restaurant during his renovation and earlier renovation work was assigned to the complainant but he did not complete the renovation and thereafter, it was assigned to ACE interiors. DW3 further deposed that he is not aware as to who was the contractor for Durga Prasad. DW3 deposed that he brought the original final quotations/bills Ex.DW3/A and Ex.DW3/B.
26.In his cross examination DW3 deposed that in year 200405, he was employed with IBN Daksh, Gurgaon, Haryana and was not employed with accused no.1 or accused no.2. DW3 further deposed that he was assisted accused no.2 as his cousin. DW3 also deposed that he is aware difference between partnership, proprietorship and private limited company. DW3 further deposed that he never saw the titled papers and book of accounts in respect of Twisters Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 14 to 1 Restaurant as accused no.2 is his cousin. DW3 further deposed that there is no resolution of accused no.1 or authorization in his favour for inspecting the renovation work at the restaurant as it was their family affairs. DW3 further deposed that the document Ex.DW3/A and Ex.DW3/B did not contained his signature. DW3 denied the suggestion that Ex.DW3/A and Ex.DW3/B are false and fabricated document or that he is deposing falsely at the instance of the accused persons being a relative.
ARGUMENTS
27. It has been argued by the counsel for complainant that all the ingredients of Section 138 Negotiable Instruments Act have been duly complied with. It has further argued that the complainant submitted his quotations to the accused company which was approved and contain signatures of the accused no.4 Honey Sharma. It has further argued that there was a balance payment of Rs. 7,66,072.85 which was outstanding and towards part payment of this accused no.2 Vipin Sharma issued the cheques in question on behalf of the Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 15 to 1 accused company. It has further argued that no documents have been produced by the accused persons to rebut any liability. It has also argued that the complainant u/s 311 Cr.PC mentioned that the transaction had taken place in 2005 as he was mentally not stable on that date has his son has met with an accident.
28.On the other hand, it has been argued by the counsel for accused that para number 4 & 5 of the complaint mention that the cheques dated 14.01.2005 and 18.01. 2005 were taken in May, 2005. It has further argued by defense counsel that the complainant had given contradictory statements regarding commencement of work. It has also argued that the complainant has stated that cheques were given at the end after the work was complete but the documents states otherwise. It was further argued that the security cheques were misused and the details of the cheques were filled up by the complainant himself. It has further argued that the account statement has not been produced by the complainant and the advance has not been deducted. It has also argued Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 16 to 1 that no receipt of material purchased done and other records or bill have been placed on record by the complainant.
29.From the perusal of the documents placed on record, it is seen that copies of certain quotations dated 20.05.2004 have been placed on record but the same have neither been identified or adjusted by any of the accused persons. No ground has been given as to why the original of the same could not be placed on record or were not produced before the court. Similar abstract of a bill has been placed on record but it does not contain the work done, the time regarding the schedule of work, payment, if any, receipt against the same, when was the same handed over or receipt of the same by the accused persons. The same is only a photocopy which contain abstract of bills. The actual invoice or bills have not been placed on record. Even, on the perusal of the cheque in question which is Ex.CW1/3 and Ex.CW1/6, it is seen that the alleged signatures of the accused number 2 Vipin Sharma are very different on both the cheques in questions and do not match or appear to be same.
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30.From the perusal of cross examination of the complainant, it is seen that he was introduced to the accused persons by Ms. Manvi Aggarwal, however, Ms. Manvi Aggarwal has neither been summoned by the complainant nor examined as a witness. The complainant also stated that accused has also give him advance Rs. 2 lacs on 20.05.2004 but the alleged bill does not contain any deduction or mention of this amount. He also admitted that there is not written agreement between the parties and the amount of Rs. 2 lacs was not adjusted in the bill as the bill was to be raised against the entire work done. He again admitted that amount of Rs.11.25 lacs which has allegedly been paid was not adjusted when the final bill was raised. There is no document nor any bill nor any invoice or receipt as to what amount was paid by the accused, if any, paid and whether amount of Rs. 2 lacs was adjusted or not. There is no proof or record to show how the complainant reached to the conclusion that balance amount of Rs. 7.66 lacs was outstanding against the accused. It has further not clear as to why the accused persons could only issue the cheque of Rs. 3 lacs in part payment. The Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 18 to 1 complainant failed to point out that he had issued the cheque Ex.CW1/9 as has been stated by him wherein he had raised the issue of entire outstanding balance amount to the accused persons for payment. The accused has placed on record 2 documents issued by ACE Interior and Designers Ex.DW3/A and Ex.DW3/B which contain quotations, the mode and the method of making payment to ACE Interior and Designers for the purported renovation work of Twister Restaurant. The same is addressed to Mr. Vipin Sharma, Twister Restaurant, C193, Greater Kailash, Part I, New Delhi 110048. No question have been put to the witness DW3 Dhruv pertaining to the aforesaid document except whether the same contain his signatures or not.
31. In view of the aforesaid facts, it is seen that even though the complainant has placed on record copies of bills and quotations, the same have not been admitted by any of the accused persons nor has complainant been able to prove the same. There is nothing on record to show that the accused persons had made the alleged part payment. Ms. Manvi Durga Prasad v. Poorva Hospitality Pvt. Ltd.
CC No.1279/15 Page 19 to 1 Aggarwal has neither been cited nor examined as a witness. There is not account statement or balance sheet placed on record of the complainant. There is not record to show as to how the accused arrived at an amount of Rs. 7.66 lacs as balance outstanding amount and whether work done was completed or not. There is no document or any contract which has been executed between the parties and this has been admitted by the complainant. No document containing receipts of payment made by the accused persons, if any, placed on record. The complainant has also given contradictory statements during his testimony and the same are not corroborated by the documents placed on record.
32.In view of the above said facts and circumstances, the accused Vipin Sharma and Honey Sharma are hereby acquitted for the offence under Section 138 of Negotiable Instruments Act, 1881.
Announced in the Open Court on 16.10.2015 (GURMOHINA KAUR) METROPOLITAN MAGISTRATE01 (SOUTH) SAKET COURT:NEW DELHI Durga Prasad v. Poorva Hospitality Pvt. Ltd.
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