Delhi District Court
M/S Gulati Associates vs M/S Keerat Lease Finance Ltd & Ors. on 16 March, 2015
1
IN THE COURT OF MS PREETI PAREWA : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors.
CC No 4611/1
U/s 138 Negotiable Instruments Act
Unique Identification No. : 02406R0023101997
JUDGMENT
(1) Serial number of the case : 4611/1
(2) Name of the complainant : M/s Gulati Associates through
its Proprietor O P Gulati, 16-B,
Atma Ram House, Tolstoy Marg,
New Delhi
(3) Name of the accused : 1. M/s Keerat Lease Finance Ltd.
At 2357, Sector - 44C, Chandigarh
2. Onkar Singh, Director of M/s Keerat Lease Finance Ltd.
At 2357, Sector - 44C, Chandigarh - dropped vide order dated 05/02/2015
3. J P Singh, Director of M/s Keerat Lease Finance Ltd.
At 2357, Sector - 44C, Chandigarh
4. Rajdeep Singh, Director of M/s Keerat Lease Finance Ltd.
At 2357, Sector - 44C, M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors.
CC No 4611/1 Page 1 of 20 2 Chandigarh (4) Offence complained of or proved: Section 138 r/w Section 142 of Negotiable Instruments Act, 1881 (5) Plea of all the accused persons : Pleaded not guilty (6) Final Order : Accused no. 1 M/s Keerat Lease Finance Ltd. - Acquitted Accused no. 3 J P Singh - Acquitted Accused no. 4. Rajdeep Singh - Acquitted (7) Date of Institution : 03/11/1997 (8) Date on which reserved for judgment : 05/02/2015 (9) Date of Judgment : 16/03/2015 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
The brief facts of this case as carved out from the complaint are that the complainant is dealing with sale & purchase of shares under the name of M/s Gulati Associates and on 30/06/1997, accused purchased the shares of Domino Leathers Ltd worth Rs.15 lacs from the complainant and after receiving the said shares, the accused no. 1 issued cheque no. 333018 dated 30/06/1997 for Rs.15 lacs drawn on State Bank of Patiala, Chandigarh in discharge of the liability to pay the share price to the complainant. Further M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 2 of 20 3 it is alleged in the complaint that the above said cheque was issued on behalf of accused no. 1 on the representations made by the other accused persons as payment of the shares as accused nos. 2 to 4 were Directors of Accused no. 1 and were Incharge & responsible for day to day conduct of the business of accused no. 1. The complainant presented the above said cheque through its banker Indian Bank, Connaught Circus but the said cheque was returned unpaid with endorsement "Insufficient Funds" vide memo dated 16/08/1997 and the intimation of the same was received by the complainant on 11/11/1998. It is further averred by the complainant that thereafter, he issued a notice on 20/09/1997 U/s 138 N I Act and despite the lapse of stipulated period, payment of the cheque in question was not made by the accused. Thus, the complainant filed the present complaint under Section 138 r/w Section 142 of The Negotiable Instruments Act (hereinafter "the NI Act").
2. The complainant examined himself in pre-summoning evidence and summoning order was passed against the accused persons vide order dated 18/11/1997, by my Ld. Predecessor.
Thereafter, notice U/s 251 CrPC was served on the accused persons vide order dated 01/05/1998, by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
3. In the post summoning complainant evidence, in support of his case, the complainant examined three witnesses namely Sh J R Kajla, State M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 3 of 20 4 Bank of Patiala, C Branch, Sector 38, Chandigarh as PW1, Sh Satish Chander, Clerk cum Cashier, Indian Bank, Connaught Circus as PW2 and O P Gulati s/o Sh Trilok Chand (i.e proprietor of the complainant firm) as PW3.
PW1 is the banker of the accused who has deposed that the cheque in question ExPW1/A was presented with the account no. 500.A of accused in the said bank for clearing. He also exhibited the certified copy of the statement of accused's account of the relevant date as ExPW1/D. PW2 is the banker of the complainant who has deposed that the cheque in question was presented by the complainant which was dishonoured vide memo ExPW1/B and which was returned to the complainant by their bank vide memo ExPW2/A. PW3 is the sole proprietor of the complainant M/s Gulati Associates. He deposed that accused no. 1 is a limited company and accused nos. 2 to 4 are its Directors who were In-charge of the management and day to day affairs of the accused company. He further deposed that accused no. 1 purchased shares from his firm and in discharge of the said liability, issued a cheque for a sum of Rs.15 lacs dated 30/06/1997 in the last week of June 1997. He has relied upon bills exhibited as PW3/A to PW3/C and details of the shares PW3/D. He further deposed that on presentation, the said cheque was dishonoured for reasons "Insufficient Funds" and has relied upon memo ExPW1/B & ExPW2/A, the intimation of which was received by him on 08/09/1997 and thereafter, he sent a legal notice by post, copy of which is ExPW1/D and its postal receipts are ExPW3/E and ExPW3/I. He was cross examined at length on behalf of accused persons.
M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 4 of 20 5
4. Thereafter, statement of all the accused persons were recorded under Section 313 Cr.P.C. vide order dated 03/03/1999 by my Ld. Predecessor, wherein, all material existing on record including the exhibited documents were put to them. Also a written joint statement was filed by the accused persons U/s 313 CrPC. Accused persons admitted the receipt of the legal demand notice and stated that the cheque in question was issued in good faith to the complainant with assurance that the cheque would be tendered in the bank only after required shares of Domino Leathers Ltd were made available to the accused persons. Further, they submitted that the alleged shares were never delivered to them and the cheque in question has been misused.
5. The accused persons in their defence examined three witnesses, one being M. Natarajan, Assistant Manager, Delhi Stock Exchange as DW-1, other being B Agnihotri s/o Sh H P Agnihotri, Assistant in M/s Domino Leathers Ltd as DW-2 and further the accused no. 2 Onkar Singh as DW-3.
DW-1 M Natarajan has deposed that a written contract note is required only in cases wherein the transaction relates to any deal done on the floor of a Stock Exchange and not otherwise.
DW-2 B Agnihotri had brought the original register of shares ExDW2/1 and deposed that the alleged shares stand in the name of the initial allottees and no application for transfer of the said shares or any part thereof M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 5 of 20 6 has ever been received in their office till date ie 11/11/1999. In the cross examination, this witness admitted that after January 1999, accused no. 2 Onkar Singh was Managing Director in M/s Domino Leathers Ltd and prior to January 1999, he was the Chief Executive of M/s Domino Leathers Ltd from the very beginning.
DW-3 accused no. 3 Onkar Singh filed two affidavits in his evidence ExDW3/X & ExDW3/X1. In his affidavit, he has deposed that in 1997, the accused company was looking out for buying shares of M/s Domino Leathers Ltd when the complainant told them that he was a registered broker in Delhi Stock Exchange and he can arrange the shares of M/s Domino Leathers Ltd for which he would charge commission. Further he has deposed that in June 1997, an arrangement was effected between the accused company and the complainant for the purchase of the shares of M/s Domino Leathers Ltd wherein it was agreed by the complainant that he shall arrange fully paid up shares of M/s Domino Leathers Ltd worth Rs.15 lacs at the rate ranging between Rs.06 to Rs.07 per share on the condition that the accused company must furnish a security of Rs.15 lacs before the complainant takes steps for arranging the shares. He has further deposed that the cheque in question was issued in good faith as a security and the assurance that the requisite number of shares of M/s Domino Leathers Ltd will be physically tendered to the accused company and the present case has been filed for unjust enrichment by the complainant. He has also relied upon telegraphic notice received by Keerat Lease Finance Ltd ExDW3/A, ExDW3/B, ExDW3/C & ExDW3/D. He has also relied upon reply dated 30/09/1997 of Sh Raj Kumar M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 6 of 20 7 Goel as ExDW3/E. In his cross examination, he admitted the placing of orders for the shares of Domino Leathers Ltd for a sum of Rs.15 lacs. He further deposed that before filing the complaint, the accused persons made demand for return of the cheques in his reply dated 30/09/1997 and that he had asked the complainant for the delivery of shares through a telegraphic notice dated 24/07/1997 regarding delivery of shares after the first dishonourment of the cheque in question.
6. I have heard the counsel for the complainant and counsel for the accused persons and have also perused the case record meticulously.
7. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv)Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 7 of 20 8
8. In the present case, the issuance of cheque, the receipt of legal demand notice and the non-payment of the cheque amount within 15 days of the said notice have been admitted. The only question in dispute is the issuance of the cheque in question for discharge of a legally enforceable debt or liability.
9. As per the version of the complainant, the cheque in question was given by the accused persons as consideration for the sale of shares of Domino Leathers Ltd. worth Rs. 15 lakhs from the complainant after receiving the said shares on 30.06.1997. Per contra, the accused persons have taken the defence that they issued the cheque in question to the complainant as a collateral security for the purchase of shares and such shares were never delivered to the complainant and therefore, the cheque in question was not given towards any consideration.
10. It is a well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the complainant, one under Section 139 and other under Section 118(a) of the NI Act. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that the M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 8 of 20 9 consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. (Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
11. Although, the court is under an obligation to raise the presumption contemplated u/s 118 & 139 N I Act in every case, where the factual basis for raising the presumption has been established by the complainant, the accused is required to raise a probable defence to rebut such a presumption by leading evidence or bringing such facts on record in the cross-examination of the complainant that could make the latter's case improbable. For doing so, it is not necessary for the accused to disprove the existence of consideration by way of direct evidence. The standard of proof has been held to be preponderance of probabilities & the inference of preponderance of probabilities can be drawn not only from the material that has been placed on record, but also by reference to the circumstances upon which the accused relies. [Ref : 1999 II AD(SC) 221 Bharat Barrel & Drum Manufacturing Co. Vs. Amin Chand Pyarelal].
12. Further, if the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will shift back to the complainant who will then be under an obligation to prove it as matter of fact & failure to do so will disentitle him to any relief on the basis of the M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 9 of 20 10 negotiable instrument and this obligation can be also discharged by way of cross examination of the complainant.
13. In the present case, the accused has raised a probable defence by bringing the telegraphic notices received by Keerat Lease Finance Ltd and copy of the registered AD ie ExDW3/A to D on record and therefore, has been able to rebut the presumptions arising in favour of the holder of a negotiable instrument U/s 118 & 139 N I Act and therefore, now the burden shifts upon the complainant to prove its case beyond reasonable doubts.
14. In support of his case, the AR of the complainant has relied upon ExPW-3/E dated 20/04/1996 which is allotment advice cum allotment money notice pertaining to one Vidya Devi. He has also placed on record copy of Shares Transfer Deeds of the Share Certificate in respect of Vidya Devi, which is ExPW-3/G. ExPW-3/G only bears the signatures of the allottee Vidya Devi and no other particulars on the exhibit have been filled up. Further, the AR of the complainant has admitted that all the 27,300 shares reflected in ExPW-3/F are partly paid up shares and the date for making the balance payment of shares by the allottee to make it fully paid had already expired on the date of handing over of the shares to the accused persons. Further, ExPW-3/G are photocopies and the back portion of the said photocopies reflecting the signatures/stamp of code of company have not been filed by the complainant.
M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 10 of 20 11
15. Further, the AR of the complainant has also relied upon ExPW-3/H dated 20/04/1996 in support of his case which is allotment advice cum allotment money notice pertaining to one Jai Bhagwan. He has also placed on record copy of Shares Transfer Deeds of the Share Certificate in respect of Jai Bhagwan, which are Ex. PW-3/I and PW-3/J respectively. ExPW-3/I and PW-3/J only bear the signatures of the allottee Jai Bhagwan and no other particulars on the exhibit have been filled up. Further, ExPW-3/I and PW-3/J are photocopies and the back portion of the said photocopies reflecting the signatures/stamp of code of company have not been filed by the complainant.
16. In addition to the above, the AR of the complainant has relied upon ExPW-3/M in support of his case which is allotment advice cum allotment money notice pertaining to one Lalita Rani. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Lalita Rani, which are ExPW-3/N, PW-3/N1 & PW-3/N2. ExPW-3/N, PW-3/N1 & PW-3/N2 only bear the signatures of the allottee Lalita Rani, one witness and ROC stamp dated 03/04/1996 and all transfer deeds ExPW-3/N1 and PW-3/N2 do not bear the signatures of the complainant or the stamp of code of the complainant company.
17. Further, the AR of the complainant has also relied upon ExPW-3/O in support of his case which is allotment advice cum allotment M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 11 of 20 12 money notice pertaining to one Ashwani Kumar. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Ashwani Kumar, which are ExPW-3/O1, PW-3/O2 & PW-3/O3. ExPW-3/O2 do not bear the stamp of the complainant company and ExPW-3/O1 and PW-3/O2 are blank and only bear the signatures of the allottee Ashwani Kumar, one witness and ROC stamp dated 03/04/1996 and all transfer deeds ExPW-3/O2 and PW-3/O3 do not bear the signatures of the complainant or the stamp of code of the complainant company.
18. Further, the AR of the complainant has also placed reliance upon ExPW-3/P in support of his case which is allotment advice cum allotment money notice pertaining to one L.R. Dawar. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of L.R. Dawar, which are ExPW-3/P1, PW-3/P2 & PW-3/P3. The ExPW-3/P2 do not bear the stamp of the complainant company and Ex. PW-3/P1 and Ex. PW-3/P2 are blank and only bear the signatures of the allottee L.R. Dawar, one witness and ROC stamp dated 03/04/1996 and all transfer deeds Ex. PW-3/P2 and PW-3/P3 do not bear the signatures of the complainant or the stamp of code of the complainant company.
19. The AR of the complainant has additionally relied upon ExPW-3/Q1 in support of his case which is allotment advice cum allotment money notice pertaining to one Manik Dawar. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 12 of 20 13 respect of Manik Dawar, which are ExPW-3/Q2 to PW-3/Q4. ExPW-3/Q3 and ExPW-3/Q4 are blank and only bear the signatures of the allottee Manik Dawar, one witness and ROC stamp dated 03/04/1996 and all transfer deeds ExPW-3/Q3 and PW-3/Q4 do not bear the signatures of the complainant or the stamp of code of the complainant company.
20. Even further, the AR of the complainant has also relied upon ExPW-3/R1 in support of his case which is allotment advice cum allotment money notice pertaining to one Sherry Kumari. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Sherry Kumari, which are ExPW-3/R2 to PW-3/R4. ExPW-3/R3 and ExPW-3/R4 are blank and only bear the signatures of the allottee Sherry Kumari, one witness and ROC stamp dated 03/04/1996 and all transfer deeds ExPW-3/R3 and PW-3/R4 do not bear the signatures of the complainant or the stamp of code of the complainant company.
21. In addition to the above, the AR of the complainant has relied upon ExPW-3/S1 in support of his case which is allotment advice cum allotment money notice pertaining to one Prabhu Dayal. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Prabhu Dayal, which are ExPW-3/S2 and PW-3/S3. ExPW-3/S3 is blank and only bear the signatures of the allottee Prabhu Dayal, one witness and ROC stamp dated 03/04/1996 in respect of two share transfer deeds and remaining transfer deeds are dated 23/04/1996. Further, M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 13 of 20 14 all transfer deeds ExPW-3/S3 do not bear the signatures of the complainant or the stamp of code of the complainant company.
22. Further, the AR of the complainant has also relied upon ExPW-3/T1 in support of his case which is allotment advice cum allotment money notice pertaining to one Rukmani Devi. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Rukmani Devi, which are ExPW-3/T2 and PW-3/T3. ExPW-3/T3 is blank and only bear the signatures of the allottee Rukmani Devi, one witness and ROC stamp dated 07/02/1996 in respect of 18 share transfer deeds, one transfer deed is dated 25/03/1996 and remaining two are dated 03/04/1996. Further, all transfer deeds ExPW-3/T3 do not bear the signatures of the complainant or the stamp of code of the complainant company.
23. Further, the AR of the complainant has also relied upon ExPW-3/U1 in support of his case which is allotment advice cum allotment money notice pertaining to one Manglesh Chugh. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Manglesh Chugh, which are ExPW-3/U2 and PW-3/U3. ExPW-3/U3 is blank and only bear the signatures of the allottee Manglesh Chugh, one witness and ROC stamp dated 03/04/1996. Further, all transfer deeds ExPW-3/U3 do not bear the signatures of the complainant or the stamp of code of the complainant company.
M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 14 of 20 15
24. Further, the AR of the complainant has also relied upon ExPW-3/V1 in support of his case which is allotment advice cum allotment money notice pertaining to one Mehul Kumar. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Mehul Kumar, which are ExPW-3/V2 to PW-3/V4. ExPW-3/V3 and PW-3/V4 are blank and only bear the signatures of the allottee Mehul Kumar, one witness and ROC stamp dated 03/04/1996. Further, all transfer deeds ExPW-3/V3 and PW-3/V4 do not bear the signatures of the complainant or the stamp of code of the complainant company.
25. Further, the AR of the complainant has also relied upon ExPW-3/W1 in support of his case which is allotment advice cum allotment money notice pertaining to one Charu Kumari. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of Charu Kumari, which are ExPW-3/W2 to PW-3/W4. ExPW-3/W3 and PW-3/W4 are blank and only bear the signatures of the allottee Charu Kumari, one witness and ROC stamp dated 03/04/1996. Further, all transfer deeds ExPW-3/W3 and PW-3/W4 do not bear the signatures of the complainant or the stamp of code of the complainant company.
26. Further, the AR of the complainant has also relied upon ExPW-3/X1 in support of his case which is allotment advice cum allotment money notice pertaining to one M.K. Dawar. He has also placed on record a M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 15 of 20 16 representative copy of Shares Transfer Deeds of the Share Certificate in respect of M.K. Dawar, which are ExPW-3/X2 to PW-3/X4. ExPW-3/X3 and PW-3/X4 are blank and only bear the signatures of the allottee M.K. Dawar, one witness and ROC stamp dated 03/04/1996 and 23/04/1996. Further, all transfer deeds ExPW-3/X3 and PW-3/X4 do not bear the signatures of the complainant or the stamp of code of the complainant company.
27. Further, the AR of the complainant has also relied upon ExPW-3/Y1 in support of his case which is allotment advice cum allotment money notice pertaining to one A.K. Dawar. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of A.K. Dawar, which are ExPW-3/Y2 to PW-3/Y4. ExPW-3/Y3 and PW-3/Y4 are blank and only bear the signatures of the allottee A.K. Dawar, one witness and ROC stamp dated 03/04/1996. Further, all transfer deeds ExPW-3/Y3 and PW-3/Y4 do not bear the signatures of the complainant or the stamp of code of the complainant company.
28. Furthermore, AR of the complainant, in support of his case has relied upon allotment money notice pertaining to one Som Prakash Sethi, Geeta Rani, Mehar Singh, Shanti Devi, M.S. Bathla, Paramjit Kaur Bathla, Darshana Rani, Shobina Gupta, Mandan Lal, Deepak Gupta, Suman Lata, Suresh Kumar, Sanjay Kumar, Vinod Kumar, Suman Lata, Ravinder Gupta, Seema Gupta, Praveen Gupta, Asha Gupta, Bimla Gupta, Om Prakash Gupta, Kamal Bharani, Meena Bharani, Rekha, Daisy Goyal, Azad Kumar Gupta, M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 16 of 20 17 Neeraj Bhatia, Govind Prasad, Anil Bhatia, Vijay Kumar Bansal, Ravinder Kumar Bansal, Sita Rani Bansal, Amar Chand Bansal and Sunil Gulati, which are ExPW-3/Z1, PW-3/AA1, PW-3/AB1, PW-3/AC1, PW-3/AD1, PW-3/AE1, PW-3/AF1, PW-3/AG1, PW-3/AH1, PW-3/AJ1, PW-3/AK1, PW-3/AL1, PW-3/AM1, PW-3/AN1, PW-3/AO1, PW-3/AP1, PW-3/AQ1, PW-3/AR1, PW-3/AS1, PW-3/AT1, PW-3/AU1, PW-3/AV1, PW-3/AW1, PW-3/AX1, PW-3/AY1, PW-3/AZ1, PW-3/BA1, PW-3/BB1, PW-3/BC1, PW-3/BD1, PW-3/BE1, PW-3/BF1, PW-3/BG1 and PW-3/BH1 respectively. He has also placed on record a representative copy of Shares Transfer Deeds of the Share Certificate in respect of the above said allotees which are ExPW-3/Z2 to PW-3/Z4, PW-3/AA2 to PW-3/AA4, PW-3/AB2 to PW-3/AB4, PW-3/AC2 to PW-3/AC4, PW-3/AD2 and PW-3/AD3, PW-3/AE2 and PW-3/AE3, PW-3/AF2 and PW-3/AF3, PW-3/AG2 to PW-3/AG3, PW-3/AH2 to PW-3/AH3, PW-3/AJ2 and PW-3/AJ3, PW-3/AK2 to PW-3/AK4, PW-3/AL2 to PW-3/AL4, PW-3/AM2 to PW-3/AM4, PW-3/AN2 to PW-3/AN4, PW-3/AO2 to PW-3/AO4, PW-3/AP2 to PW-3/AP3, PW-3/AQ2 to PW-3/AQ4, PW-3/AR2 and PW-3/AR3, PW-3/AS2 to PW-3/AS4, PW-3/AT2 and PW-3/AT3, PW-3/AU2 and PW-3/AU3, PW-3/AV2 and PW-3/AV3, PW-3/AW2 and PW-3/AW3, PW-3/AX2 and PW-3/AX3, PW-3/AY2 and PW-3/AY3, PW-3/AZ2 and PW-3/AZ3, PW-3/BA2 to PW-3/BA4, PW-3/BB2 to PW-3/BB4, PW-3/BC2 to PW-3/BC4, PW-3/BD2 to PW-3/BD4, PW-3/BE2 to PW-3/BE4, PW-3/BF2 to PW-3/BF4, PW-3/BG2 to PW-3/BG4 and PW-3/BH2 & PW-3/BH3 respectively.
It is pertinent to mention here that incomplete documents have been filed by the complainant and therefore, they cannot be relied upon. Further, the above said documents relied upon by the complainant are M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 17 of 20 18 photocopies and they have not been proved in accordance with the provisions of Indian Evidence Act. There is no document with respect to the acknowledgment of delivery of the alleged shares by the accused persons. More pertinently, also there is nothing on record to show that the said shares were in the possession of the complainant firm so as to enable their transfer by the complainant to the accused company. The chain of the transfer of shares have not been shown by the complainant.
29. Furthermore, it has been averred in the complaint by the complainant that on 30.06.1997, accused no. 1 M/s Keerat Lease Finance Ltd. purchased the shares of Domino Leathers Ltd. Worth Rs. 15 lakhs from the complainant and after receiving the said shares, issued the cheque in question in favour of the complainant.
However, the AR of the complainant Sh. OP Gulati in his examination in chief has deposed that the shares were purchased by the accused persons in the last week of June, 1997 and in discharge of which issued the cheque in question. Further, he has deposed that the delivery of the shares were given through bills ExPW-3/A to PW-3/C. The bills ExPW-3/A to PW-3/C are dated 24/06/1997 and do not have any receiving or acknowledgment.
However, this witness during the cross examination has deposed 'I can give the dates of purchase of the shares of this case, though there were various dates'. Further during the cross examination conducted on 25/09/2004, he deposed 'I have given the delivery of shares and transfer M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 18 of 20 19 deeds at the time around 30/06/1997'. The said witness has admitted in his cross examination that he has no document to show that actual delivery was effected by him to the accused. Also, the complainant in his complaint has stated that the cheque in question was given by the accused persons on 30/06/1997 when the shares were purchased by the accused persons. However, the AR of the complainant in his cross examination has admitted that 'it is correct that the cheque in question was already with my bankers on 28.06.1997' that being so, clearly the cheque in question was given as security for a contingent event, which cannot be said for consideration. (Reliance placed on M/s Collage Culture & others vs Apparel Export Promotion Council and others 2007 [4] JCC [N I] 388).
30. Therefore, considering the entire material on record, this court is of the view that there are material inconsistencies between the facts averred in the complaint, examination in chief of the AR of the complainant and his cross examination and therefore, it raises serious doubts about the version of the complainant. The complainant has not been able to prove his case beyond all reasonable doubts and therefore, this court finds that the accused persons are not guilty of the offence they are charged with and thus accused no. 1 M/s Keerat Lease Finance Ltd, accused no. 3 J P Singh and accused no. 4 Rajdeep Singh are acquitted for offence punishable u/s 138 NI Act r/w 142 NI Act.
31. Accused no. 3 J P Singh and accused no. 4 Rajdeep Singh are M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 19 of 20 20 directed to furnish bail bond and surety bond in the sum of Rs.50,000/- U/s 437(A) CrPC. At request, let the bonds be furnished on 30.03.2015. Announced in the open court on 16/03/2015 (PREETI PAREWA) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 20 pages and each page bears my signature.
(PREETI PAREWA) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi M/s Gulati Associates vs M/s Keerat Lease Finance Ltd & ors. CC No 4611/1 Page 20 of 20