Delhi District Court
Samir Jasuja vs . Naresh Nagpal Page 1 Of 39 on 22 August, 2022
IN THE COURT OF SH. ANSHUL SINGHAL,
MM (NI ACT)-03, ROUSE AVENUE COURT COMPLEX,
NEW DELHI DISTRICT, NEW DELHI
In the matter of: CC No.: 10907/2018
CNR NO.: DLND020070312018
Samir Jasuja,
having office At
D-4, 1st floor, Commercial Complex
Paschimi Marg, Vasant Vihar, New Delhi.
......Complainant
versus
Naresh Nagpal
s/o Late Sh. Rishi Lal Nagpal
r/o 5959, Collins Avenue,
Apartment 1006, Miami Beach,
Florida, USA, 33140.
........Accused
JUDGMENT
Date of Institution of Complaint : 20.12.2007 Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 18.07.2022 Decision Qua Accused : Acquittal Date of Decision : 22.08.2022 BRIEF FACTS AND REASONS FOR DECISION
1. Vide this judgment, I shall dispose of the present complaint u/s. 138 of Negotiable Instruments Act, 1881(hereinafter referred to as the NI Act) filed by the complainant against accused on account of dishonour of cheque bearing no.
CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 1 of 39021272655 /1002325444 dated 21.09.2007 for a sum of US $ 250,000/-, drawn on Smith Barney, Citibank, New Jersey, U.S.A issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question).
2. Brief facts of the case as per complaint are that the complainant was an employee of a company by the name of M/s Assotech Realty Private Limited (hereinafter referred to as Assotech) and the accused was one of the directors of the said company. It is further submitted that the complainant started with Assotech as a marketing advisor from 23.09.2005 with a monthly remuneration of Rs. 1,25,000/- plus service tax and 0.1% of all sales less applicable TDS. It is further submitted that at the request of the directors of Assotech, the complainant took over the position of private equity and joint ventures advisor in addition to his existing position and for the same he was to be paid a monthly remuneration of Rs. 3,00,000/- plus service tax plus incentives. It is further submitted that after the verbal understanding between the parties, a retainership agreement was entered into between the complainant and Assotech on 26.07.2006. It is further submitted that it was committed to the complainant that he would receive a sum exceeding Rs. One crore towards incentives / benefits in the first two years itself and he will also be given share in profits exceeding Rs. Five Crores.
3. It is the case of the complainant that he procured a new project at village Caterpuri, Gurgaon and a collaboration CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 2 of 39 agreement was entered into between the land owners and M/s Srjan Technologies Pvt Ltd, a wholly owned and controlled company of Assotech vide agreement dated 23.09.2006. It is stated that as per letter dated 01.10.2006, the transfer of the complainant as the project head of the new project was to take effect from 01.04.2007 and it was agreed that he would be paid monthly retainership fees of Rs. 3,00,000/- until he was transfered to SPV and thereafter he would be paid a sum of Rs.2,50,000/- per month thereafter. It is further submitted on behalf of complainant that the entire project has been entered into between Assotech and SPV due to efforts made by the complainant and thereafter, the complainant was wrongfully terminated and was denied the payment of legitimate dues.
4. It is further the case of the complainant that in part discharge of the liability of Assotech, the accused being the largest shareholder issued the cheque in question which was handed over to the complainant by the wife of the accused. Thereafter, the cheque was dishonoured for the reasons "Refer to Maker" vide bank return memo dated 12.10.2007 and was intimated to the complainant vide letter dated 23.10.2007. It is further stated that a legal demand notice dated 12.11.2007 was sent to the accused and despite service of legal demand notice the accused failed to pay the cheque amount to the complainant within 15 days thereafter and therefore, the present case has been filed.
5. Pre-summoning evidence on behalf of complainant was CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 3 of 39 concluded on 27.02.2008 and the summons were issued to the accused on the very same day. Accused has made his first appearance on 07.05.2011 through counsel and he has appeared in person on 21.01.2012, on which date bail bonds were also furnished on his behalf.
6. A notice explaining the accusation to the accused u/s. 138 of N.I.Act was served through counsel on 22.05.2012 and his plea was recorded. The accused did not plead guilty and claimed trial and stated that he has disclosed his defence in application u/s. 145(2) N.I.Act.
7. An application u/s. 145(2) N.I.Act moved on behalf of the accused was allowed vide order dated 22.05.2012 in which the accused took a defence that he has never personally undertaken the liability of Assotech or Srjan and he is not liable for any dues whatsoever of Assotech or Srjan. He has further submitted that cheque was given to the complainant for investment in real estate, however, later on, he came to know about the serious lapses of the complainant while he was in employment of Assotech and accordingly, he sent e- mail dated 23.09.2007 to the complainant asking him not to deposit the cheque in question and return the same. He also stated that since he did not get the cheque from the complainant, accordingly, he issued stop payment instructions to his bank. He has further submitted that Assotech does not have any liability towards the complainant and all his dues have been cleared. The last defence taken by him is that he did not receive the legal CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 4 of 39 notice. He has further stated that when the cheque was handed over to the complainant then name of the payee and the date were not written on it.
8. During Complainant's evidence (CE), the complainant has examined himself as CW1 and has relied upon the following documents:-
(i) Cheque in question is Ex-CW1/1.
(ii) Bank return memo is Ex-CW1/2.
(iii) Letter to the complainant containing information of dishonour of cheque dated 23.10.2007 alongwith postal receipt is Ex-CW1/3.
(iv) Legal notice dated 12.11.2007 is Ex-CW1/4.
(v) Proof of service of legal notice through various modes are Ex-CW1/5, Ex-CW1/6 and Ex-CW1/7.
During cross examination following documents were put to the witness/ brought by the witness upon requisition of opposite counsel:
(i) Copy of e-mail dated 23.09.2007 is Mark-CW1/X/A.
(ii) Copy of e-mail dated 11.10.2007 is Mark-CW1/X/B.
(iii) Copy of e-mail dated 14.10.2007 is Mark-CW1/X/C.
(iv) Copy of e-mail dated 25.05.2007 is Mark-CW1/X/D.
(v) Copy of amended suit for recovery of Rs, 1,00,00,000/-
is Mark-CW1/X/E.
(vi) Copy of Retainership Agreement dated 26.07.2006 is Mark-CW1/X/F.
(vii) Copy of Marketing Advisor Agreement dated 25.09.2005 is Mark-CW1/X/G. CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 5 of 39
(viii)Copy of E-mail dated 23.09.2007 is Mark-CW1/X/H.
(ix) Copy of E-mail dated 28.09.2007 is Mark-CW1/X/I.
(x) Copy of E-mail dated 28.08.2007 is Mark CW1/X/J.
(xi) Copy of E-mail dated 06.10.2006 is Mark-CW1/X/K.
(xii) Copy of E-mail dated 18.07.2006 is Mark-CW1/X/L.
9. CW1 was duly cross-examined by counsel for accused and discharged on 06.07.2019. Complainant has also examined one Sh. Sushil Kumar, Deputy Manager from HDFC bank as CW2 and Sh. Jagdish Salwan, Manager from Citi Bank as CW3. CW2 & CW3 were also duly cross-examined by counsel for accused and discharged on 09.11.2019 and 10.10.2019 respectively.
10. Since no other witness was sought to be examined on behalf of complainant, accordingly, CE was closed vide order dated 28.11.2019.
11. Accused was thereafter examined u/s. 281 r/w. Section 313 Cr.P.C on 21.10.2021. He has taken the similar stand as taken by him in the application u/s. 145(2) of N.I.Act.
12. During pendency of the proceedings, an application U/s 91 of Indian Evidence Act r/w Rule 3(7) of the IT Rules, 2011 was filed on behalf of the accused seeking production of certain e-mails. Reply was filed on behalf of the complainant. After hearing arguments, this court had dismissed the said application vide order dated 22.02.2022.
13. On 22.02.2022, Ld. Counsel for accused had submitted that the accused does not wish to lead DE, accordingly, DE was closed and the matter was adjourned for final arguments.
CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 6 of 3914. Final arguments were heard by this court on 16.07.2022 and 18.07.2022. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
15. At the very outset, it is pertinent to lay down the ingredients of the offence under section 138 of NI Act. In Jugesh Sehgal v. Shamsher Singh Gogi, (2009) 14 SCC 683, the Hon'ble Supreme Court of India culled out the following ingredients of an offence u/s. 138 of NI Act:
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 7 of 39 payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act."
16. Ld. counsel for Complainant has submitted that there exists legally enforceable liability in favour of the complainant on behalf of the accused on the basis of presumption under section 139 NI Act and on the basis of the averments made in the complaint and the evidence by way of affidavit. He has further submitted that the cheque in question was issued to the complainant which is Ex-CW1/1. He has further submitted that the dishonour of the cheque is proved by the cheque return memo and letter issued to the complainant which are Ex-CW1/2 and Ex-CW1/3 respectively. Further, copy of the legal notice is Ex-CW1/4 and proof of service of legal notice are Ex-CW1/5, Ex-CW1/6 and Ex-CW1/7. He has further submitted that the complainant received no payment within 15 days of the service the legal notice. Counsel for complainant has thus submitted that all the ingredients laid down u/s. 138 NI Act are fulfilled and the accused should be convicted. In regard to the maintainability of the present case, reliance has been placed by the complainant on the judgment of Hon'ble High Court of Madras in Trilux Technologies Singapore Pvt. Ltd. vs. Boon Technologies, 2004 SCC Online Madras 289 and of Hon'ble Supreme Court of India in Vishnu Dutt Sharma CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 8 of 39 vs. Daya Sapra, (2009) 13 SCC 729.
17. The primary defence that the accused has taken is that there is no legally enforceable liability in favour of the complainant and against the accused as on the date of the cheque in question or on the date of its presentation. Additionally, accused has taken a defence that the ingredients of the offence u/s. 138 NI Act are not made out as the legal notice was not sent within 30 days of the dishonour of the cheque.
18. Before moving forward with the contentions of the accused persons, it is pertinent to discuss the relevant provisions of law which deal with legally enforceable debt or liability under the NI Act which are section 118(a) and 139 of the NI Act. Section 118(a) of the NI Act deals with the presumption of consideration and section 139 of NI Act deals with presumption of legally enforceable debt or liability and reads as follows:
"118. Presumptions as to negotiable instruments- Until the contrary is proved, the following presumptions shall be made:
(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;
***
139. Presumption in favour of holder-
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 9 of 39 liability."
19. It is further pertinent to mention the relevant judgments on the point of presumption of legally enforceable debt or liability. Reliance is placed by this court upon the observations of Hon'ble Supreme Court in India in the judgment of Rangappa v. Sri Mohan, (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 and Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it has been held that the presumption u/s. 139 NI Act is a presumption of law and not presumption of fact. It has further been held that it is not necessary that the cheque must have been filled by the accused himself and the accused may be liable even when the cheque has been filled by the complainant. The essential requirement is that the liability must exist on the date of the presentation of the cheque in question. It has been further held that once the signatures on the cheque are admitted then the court is bound to raise presumption u/s. 118 r/w. 139 NI Act regarding existence of legally enforceable debt or liability.
20. In this regard, reliance has been placed by the complainant on the judgement of Hon'ble Supreme Court in India in M.M.T.C Limited vs. Medchl Chemicals & Pharma (P) Ltd., (2002) 1 SCC 234, wherein it has been held by the Hon'ble court that the burden to prove the non-existence of debt is on the accused.
21. In the facts of the present case, it is the defence of the accused that though he had signed the cheque in question, CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 10 of 39 however, he did not fill the name of payee or the date written on the cheque and the same was given for only investment purposes to be encashed only after proper authorization from the accused.
22. Per Contra, it has been submitted on behalf of the complainant that the cheque when it was handed over to him was duly filled in all aspects. Even otherwise, support has been drawn by Ld. counsel for complainant in this regard from the judgment of Bir Singh (supra) wherein it has been held that where the cheque has been handed over voluntarily and of free will by the accused to the complainant, then the complainant has implied authorization to fill up the contents in terms of section 20 of NI Act.
23. In the considered opinion of this court, since the signatures on the cheque in question have been admitted, this court is bound to raise presumption u/s. 118(a) r/w. section 139 NI Act. Accordingly, this court raises presumption under section 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities and merely stating that certain particulars on the cheque have not been filled by him cannot come to his aid.
24. Ld. counsel for accused has drawn the attention of this court towards several contradictions in the case of the complainant, particularly, the date of meeting between the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 11 of 39 parties, which is stated to be in October 2007 as per the complaint and is admitted to have happened in September 2007 during cross examination of the complainant.
25. Ld. counsel for the complainant has submitted that this contradiction as pointed out by Ld. counsel for the accused is merely a typographical error and the bare construction of e-mails dated 23.09.2007 shows that the cheque had already been handed over to the complainant in the month of September 2007 and only in pursuance thereof the said e- mail is purported to have been written by the accused to the complainant. These e-mails have been placed on record as Mark CW1/X/A and Mark CW1/X/H. Ld. counsel for complainant has thus submitted that a merely typographical error should not be termed as a contradiction.
26. In my considered opinion the contradiction is not material and mentioning of October 2007 is merely a typographical error more so in view of the e-mail conversations between the parties, as per which the meetings ought to have taken place in September 2007 only.
27. Ld. counsel for the accused has submitted that there is no legally enforceable debt or liability in favour of the complainant for the following reasons:
a) That there is no jural relationship between the complainant and the accused and the actual liability, if any, is that of Assotech. It has further been stated that the purpose of handing over the cheque in question was for investment in real estate and not in discharge of the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 12 of 39 liabilities of Assotech. It is further stated that no proof has been brought on record to show that the accused ever personally undertook the liabilities of Assotech.
b) That even if the entire case of the complainant is admitted to be true, then also there is nothing on record to show that the actual dues of Assotech are equivalent or more than the amount of cheque in question.
28. Dealing with the first defence of the accused, i.e., there was no jural relationship between the accused and the complainant and all the transactions and agreements have taken place between the complainant and Assotech. Ld. Counsel for the accused has drawn attention of this court to the cross-examination of the complainant dated 14.05.2019, wherein the complainant has admitted that he was employed by Assotech. Further support has been drawn by the accused by documents which are Mark-CW1/X/F and Mark- CW1/X/G which are the Retainership Agreement dated 26.07.2006 and letter of retainership as Marketing Advisor dated 25.09.2005 respectively, which have been entered into between Assotech and the Complainant. It is further the case of the accused that it is an admitted position that there are no dues of the accused towards the complainant and the dues in respect of which the cheque in question has been issued are the dues of Assotech. Ld. Counsel for the accused has thus submitted that when it is an admitted position that the accused was a director of Assotech and all the dues are that of Assotech, then how can the accused be made CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 13 of 39 personally liable for the dues of the company, in which he was merely a director.
29. Per contra, Ld. Counsel for the complainant has argued that it is correct that the dues are of the company in which the accused is a director, however, there is nothing under law which prohibits the accused to voluntarily pay the dues owed by the company in which he is merely a director. He has further submitted that it is correct that the accused, who is a director of Assotech, cannot be made personally liable for the debts and liabilities of the company, however, in case he has voluntarily offered to pay the dues occurring in favour of the complainant, then the accused cannot be allowed now to take a defence that there was no jural relationship with the complainant.
30. The defence of the accused that there was no jural relationship between the parties and that all the agreements have culminated between the accused and the complainant, can only sustain, if it is brought on record that the accused never undertook the liabilities of Assotech towards the complainant. Accordingly, this court shall now examine the question as to whether, the accused, Mr. Naresh Nagpal, had personally undertaken the liabilities of Assotech towards the complainant.
31. It is the case of the accused that the accused never undertook the liabilities of Assotech and the cheque was given to the complainant for the purposes of investment in real estate. Reliance has been placed by the accused on e-
CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 14 of 39mails dated 28.08.2007 and 23.09.2007 in this regard which are Ex-CW1/X/J and Ex-CW1/X/H respectively. Reliance has been placed by the complainant on these e-mails and also on other e-mails exchanges between the parties concerned. It is the case of the complainant that the cheque in question was handed over to him by the wife of the accused towards legitimate dues of the complainant owed by Assotech.
32. I have perused all the e-mails exchanges between the parties. For the purposes of clarification, the relevant e- mails and their contents thereof are stated as follows in a chronological manner:
(a) The first e-mail is dated 18.07.2006 (Mark-CW1/X/L) sent by the complainant to one Mr. Neeraj Gulati, enclosing along with the calculation of incentives due to the complainant by Assotech. The second e-mail is dated 18.07.2006 (Mark-CW1/X/K) sent by the complainant to one Mr. Neeraj Gulati, stating therein that he hasn't received his two months salary and also the incentives. It is to be noted that none of these e-
mails are addressed to the accused and are sent by the complainant prior to his termination.
(b) The third e-mail is dated 25.05.2007 (Mark-CW1/X/D) sent by the accused to the complainant, wherein the accused has stated that he was not aware of the termination of the complainant by other directors of Assotech and has assured the complainant that he will CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 15 of 39 help him in any way possible.
(c) The fourth e-mail is dated 28.08.2007 (Mark-
CW1/X/J) sent by the accused to the complainant, wherein the accused has stated that he is willing to make an investment of Rs. 5 crores as an individual, if the complainant can arrange for other investors for the remaining amount.
(d) The fifth e-mail is dated 23.09.2007 (Mark-CW1/X/H) sent by the accused to the complainant, wherein the accused has stated that he is not comfortable with risking of more than Rs.1 Crore and he is also not comfortable with paying 4 equal installments of an amount of Rs. 2.5 Crore each before the accused has the license to build.
(e) The sixth e-mail is again dated 23.09.2007 (Mark-
CW1/X/A) sent by the accused to the complainant, wherein the accused has expressly asked the complainant not to deposit the cheque in question.
(f) The seventh e-mail is dated 28.09.2007 (Mark-
CW1/X/I) sent by the accused to the complainant, wherein the accused has stated that the complainant should only contact Neeraj from that day onwards.
(g) The eight e-mail is dated 11.10.2007 (Mark-CW1/X/B) sent by the complainant to the accused, wherein the complainant has stated that he has already deposited the cheque in question and that the accused had assured him that he could keep the money and same would be CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 16 of 39 adjusted against his pending dues from Assotech.
(h) The ninth e-mail is again dated 11.10.2007 (Mark-
CW1/X/B) sent by the accused to the complainant, wherein he has stated that he will inform his bank in regard to the cheque to stop payment thereof.
(i) The tenth e-mail is again dated 11.10.2007 (Mark-
CW1/X/B) sent by the son of the accused to the accused wherein he has stated, "I do recall you telling him that he could keep the money under some circumstance, but I don't remember what that was...."
(j) The eleventh e-mail is dated 13.10.2007 (Mark-
CW1/X/C) sent by the accused to the complainant, wherein he has asked the complainant to put all of his claims towards Assotech in writing.
(k) The twelfth e-mail is dated 14.10.2007 (Mark-
CW1/X/C) sent by the complainant to the accused, wherein he has informed the accused that he has utilized the cheque towards his long pending dues.
(l) The last e-mail placed on record is dated 14.10.2007 (Mark-CW1/X/C) sent by the accused to the complainant, wherein he has stated that the complainant is stating inaccurate and distorted facts in the various e-mail exchanges made between the parties.
33. Ld. counsel for the accused has submitted that vide second e-mail dated 23.09.2007, the complainant was expressly prohibited from presenting the cheque in question with the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 17 of 39 bank and despite specific directions, the complainant has presented the cheque in question with his bank.
34. Per Contra, reliance is placed by the complainant on the judgement of Hon'ble Supreme Court of India in M/s Modi Cements Ltd vs. Shri Kuchil Kumar Nandi, (1998) 3 SCC 249, wherein it has been held that merely because the accused has changed his mind after the issuance of the cheque and has asked the complainant not to present the cheque in question does not mean that the ingredients of the offence u/s. 138 NI Act are not made out.
35. Ld. Counsel for the complainant has relied upon the circulars of RBI and FEMA guidelines particularly, Master Circular No. 4/2013-14 dated July 1, 2013 titled as "Master Circular on Acquisition and Transfer of Immovable Property in India by NRIs/ PIOs/ Foreign National of Non-Indian Origin and also Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000, notified vide notification no. FEMA 21/2000-RB dated 03 May 2000, to show that real estate investment in India cannot be made in foreign currency. He has further drawn the attention of this court towards the cheque in question wherein the amount has been filled in dollars. Further attention of this court to the fact that apart from the bald assertion of the accused that the cheque in question was given for real estate investment, no specifics have been given in regard to the same, more particularly, the nature of investment, the place of investment, the size/ area CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 18 of 39 of property in which the investment was to be made, whether the cheque was given for partial investment or total investment, whether the investment was to be made in plot of land or built-up property, the purpose of investment, etc. Ld. Counsel for the complainant has further drawn attention of this court towards e-mail dated 25.05.2007 which is Mark-CW1/X/D whereby it has been stated by the accused that he was not aware about the termination of the complainant.
36. Per Contra, it has been submitted on behalf of the accused that the FEMA regulations are not applicable in the facts of the present case as the cheque was intended to be encashed by the complainant himself and then it was the complainant who would invest on behalf of the accused. It has further been submitted that the retainership agreement dated 26.07.2006 itself contemplates investment in real estate by the accused in his individual capacity and accordingly, this should not come as a surprise that the accused has issued the cheque in question for investment in real estate.
37. To show that the cheque in question has been given for investment in real estate, reliance has been placed heavily by Ld. counsel for the accused on e-mail dated 28.08.2007 which is placed on record as Mark-CW1/X/J.
38. Extensive arguments have been heard by this court on the point whether e-mail dated 28.08.2007 is to be considered or not for the purposes of the present proceedings. It is to be noted here that the complainant during his cross-
CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 19 of 39examination has stated that he does not remember whether he has received the said e-mail or not.
39. Reliance is placed by the complainant on order dated 22.02.2022 passed by this court whereby this court has held that, "the said e-mail does not talk about the cheque in question or the alleged transaction and hence, is not relevant for the purposes of the present case." and application u/s. 91 CrPC filed on behalf of the accused qua that said e-mail was dismissed. Ld. counsel for the complainant has further objected to the mode and manner of proof of the said e-mail dated 28.08.2007 which is Mark-CW1/X/J.
40. Per Contra, it has been submitted on behalf of the accused that all the other e-mails placed on record have been admitted by the complainant, however, on this one e-mail, he has stated that he does not remember, if he has received the said e-mail or not. It is further stated that the e-mail id of the accused as well as the complainant are the same and the complainant has despite receiving the said e-mail has intentionally and deliberately not admitted its receipt before this court. It is further stated that vide order dated 22.02.2022, the application u/s. 91 CrPC moved on behalf of the accused seeking production of the documents was dismissed and the same can in no way be considered at the time of consideration of the entire case on merits. It is further submitted that any observations made therein should not have any bearing at this stage.
41. I have heard the rival submissions on this point.
CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 20 of 3942. Firstly, it is pertinent to note that any observations made by this court while deciding any interim application and in this case, application u/s. 91 CrPC are limited to that particular application and cannot be termed to be an opinion of this court on the overall merits of the case. The court is also empowered to consider the entire evidence at the stage of judgment and any observation made in an interim application cannot affect the merits of the case at hand. Now this court shall decide firstly on the admissibility of the said e-mail and then on the relevancy thereof.
43. Objection has been taken on behalf of the complainant in regard to the mode and manner of the proof of said e-mail dated 28.08.2007 and it has been stated that the said e-mail being a computer generated document has not been proved as per the rules of evidence and accordingly, same is inadmissible in evidence.
44. Per Contra, Ld. counsel for the accused has drawn the attention of this court to the fact that the complainant has nowhere denied that he has not received the said e-mail and he has merely said that he does not remember if he has received the said e-mail or not. It has further been stated that admittedly the complainant has received several other e- mails from the accused on the same e-mail Id during the said period and has also written several e-mails to the accused from the same e-mail Id and accordingly, this court should draw a presumption in terms of section 114 of Indian Evidence Act that the complainant has received the said e-
CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 21 of 39mail in ordinary course and the burden of proof should be on the complainant to show that he has not received the said e-mail. Ld. counsel for the accused has submitted that since the said e-mail has been printed almost 10 years ago and was put into evidence in the year 2019, accordingly, the accused is not even aware as to from which computer resource was the said e-mail printed and as to which person has printed the same, and accordingly, a certificate u/s. 65B of Indian Evidence Act cannot be given in support thereof.
45. In my considered opinion, when the e-mail dated 28.08.2007 which is Mark CW1/X/J has been sent by the accused from his e-mail Id from which several other e-mails have been sent to complainant and on such e-mail Id which is being continuously used by the complainant during the said time period, the complainant cannot take shelter by pleading ignorance. Perusal of the cross-examination of the complainant shows that the complainant has even answered certain questions in regard to the said e-mail. Accordingly, this court raises a presumption u/s. 114 of Indian Evidence Act that the complainant has received the said e-mail from the accused. It is however an entirely different thing as to whether the complainant has actually read the said e-mail or not, because no such presumption can be raised in absence of positive acknowledgement from the complainant.
46. The purpose for which the accused has placed reliance on the said e-mail is to show that the accused was willing to make an investment of Rs. 5 crores as an individual, if the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 22 of 39 complainant can arrange for other investors for the remaining amount and has then submitted that the cheque in question was given in part payment of the said sum of Rs. 5 crores. Further support has been drawn by the counsel for accused from first e-mail dated 23.09.2007, whereby the accused has stated that he is not willing to risk more than Rs. 1 crore and then the second e-mail of the same date wherein the accused has expressly asked the complainant not to deposit the cheque in question.
47. Ld. counsel for the complainant has drawn the attention of this court towards the e-mail dated 11.10.2007 (Mark- CW1/X/B) sent by the son of the accused to the accused wherein he has stated, "I do recall you telling him that he could keep the money under some circumstance, but I don't remember what that was....". He has thus stated that even the son of the accused is supporting the version of the complainant.
48. I have perused the entire e-mail conversation between the parties which has been placed on record. The e-mail written by the son of the accused to the accused on 11.10.2007 does not name the complainant specifically neither does it talk about a time period as to when such statement was made or in what respect. The said e-mail no where states that the complainant could keep the money towards dues owed by Assotech.
49. It is shown by the accused on the basis of preponderance of probabilities and on the basis of overall construction of the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 23 of 39 said e-mail that the accused intended to invest in his individual capacity in a Palam Vihar project. The same has also been so stated by the complainant in his cross- examination. The accused stating that he is not ready to risk more than Rs.1 Crore vide e-mail dated 23.09.2007, the subsequent e-mail dated 23.09.2007 wherein the accused has specifically told the complainant not to encash the cheque in question and also the fact that the cheque is dated 21.09.2007, raises a doubt in the mind of this court as to whether the cheque has actually been issued by the accused in discharge of the liabilities of Assotech.
50. In regard to the discharge of liability of a third party in favour of the complainant by the accused, reliance is placed by this court on the judgment of Hon'ble High Court of Delhi in Rajendra Mishra vs. Pramod Nischal, 2018 SCC Online Del 10567 and of Hon'ble Supreme Court of India in Jitendra Vora vs. Bhavana Y. Shah and Anr., (2015) 16 SCC 744, wherein it has been held that without proof of the fact that the accused has undertaken the liabilities of a third party upon himself or unless such debt or liability has been transferred to the accused, it cannot be said that the accused is liable under the provisions of Section 138 NI Act. This is all the more relevant in cases where it is the case of the accused that he had given the cheque for a separate unrelated transaction.
51. Reliance has been placed by the complainant on the judgment of Hon'ble Supreme Court of India in Mainuddin CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 24 of 39 Abdul Sattar Shaikh vs. Vijay D Savli, (2015) 9 SCC 622, wherein it has been held that when an individual issues a cheque in his personal capacity in discharge of the dues of the company, then it is neither necessary to make the company a party as only the person on whose account the cheque has been drawn is liable nor is it necessary to show that the said person was in charge of the affairs of the said company. In my considered opinion, the ratio of that case is not applicable to the facts of this case as it is neither the case of the accused that the company, namely, M/s Assotech Realty Private Limited should have been made a party, nor is it the case of the accused that he was not a director of the above named company. Moreover, it is an established law the accused can issue a cheque in favour of the complainant against liability of any third person, however, the same has to be duly proved by the complainant.
52. In the facts of the case at hand, the complainant has made a bald assertion that the accused had issued the cheque in question to him in discharge of his legally enforceable dues owed to him by Assotech, however, no proof has come on record in regard to this averment. This court cannot presume the transfer of debt or the undertaking of liability by the accused and the same has to be proved by the complainant by leading positive proof.
53. In my considered opinion, there is nothing on record to show that the accused had undertaken the liabilities of Assotech towards the complainant and in view of the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 25 of 39 judgments of Hon'ble superior courts as cited above, unless there is proof in regard to the same, the same cannot be presumed.
54. Ld. counsel for the accused has further taken a defence that even if the entire case of the complainant is admitted to be true then also, there is no liability of Assotech towards the complainant equivalent to the amount of cheque in question.
55. It has been contended by the accused that the exact dues of Assotech towards the complainant have not been specified in the complaint. It has further been submitted that a civil suit is pending adjudication between the parties, whereby in the amended plaint, the dues have been specified. The amended plaint has been placed on record as Mark CW1/X/E. Ld. counsel for the accused has drawn the attention of this court towards the cross-examination of the complainant dated 28.05.2019, wherein the witness has stated as follows:
"The witness has shown para 19 of the said amended plaint mark from A to B. It is correct that the dues owned to me by M/s Assotech Realty Pvt Ltd are reflected in the said paragraphs. These were the only dues payable to me by Assotech Realty Pvt Ltd (Vol. However, I have reserved my rights to sue for damages and interest)".
56. Ld. counsel for the accused has thus submitted that the only dues payable by Assotech to the complainant except damages and interest are stated in paragraph 19 of the amended plaint placed on record as Mark CW1/X/E, which has been admitted by the complainant during his cross-
CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 26 of 39examination. Ld. counsel for the accused has further submitted that as per paragraph 19 of the amended plaint the dues of Assotech towards the complainant are Rs. 36,81,472/- towards marketing agreement, Rs. 18,29,512 towards Private Equity Agreement, Rs. 60,00,000/- towards wrongful termination and Rs. 2,50,000/- towards outstanding salary. Thus, the total amount payable as per the said plaint is Rs.1,17,60,984/-.
57. Ld. counsel for the accused has further drawn the attention of this court towards the letter of retainership dated 23.09.2005 (Mark-CW1/X/G), issued by Assotech and the fact that the term of employment of the complainant with Assotech was for a period of 3 years, which would have ended on 22.09.2008 at the latest. Further attention of this court has been drawn towards the retainership agreement dated on 26.07.2006 (Mark-CW1/X/F), and the fact that the same was for a period of 1 year as "private equity and joint venture advisor", which would have ended on 25.07.2007 unless renewed mutually. It is thus stated that under no circumstances was the complainant liable to be paid for a period of 24 months post termination and he has baselessly created an amount of Rs. 60 lakhs towards wrongful termination which is beyond the terms specified in the above two contracts of employment. The maximum amount payable to the complainant before termination is for a period of about 18 months as per the first agreement and for a period of 3 months as per the second agreement, the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 27 of 39 amount of which is Rs.22,50,000/- (Rs. 1,25,000/- per month for 18 months) and Rs. 9,00,000/- (Rs. 3,00,000/- per month for 3 months) respectively, and the total sum would thus be Rs.31,50,000/- for the remainder of the term.
58. It has been further submitted on behalf of the accused that as per clause 3 of the retainership agreement dated on 26.07.2006 (Mark-CW1/X/F), the payment of incentives was subject to execution of private equity deals, joint ventures and land acquisitions and none of which took place in the facts of the present case as also admitted by the complainant in his cross-examination dated 28.05.2019 which reads as follows:
"It is correct that the accused was not a signatory to the joint development agreements referred to above. It is correct that the aforesaid joint development agreements were subsequently rescinded. (Vol. These agreements were extended once and after Assotech Realty Pvt. Ltd. could not obtained the necessary permission over two years and could not fulfill their commitments that is why they are rescinded)."
59. It has further been submitted that the joint development agreement executed between the SPV of Assotech and Avadesh Mathur was rescinded and therefore, no deals were fructified and thus, the incentives never accrued in favour of the complainant.
60. It has been submitted on behalf of the accused that complainant is not entitled to Rs. 60,00,000/- towards payment for wrongful termination of period of 24 months. Firstly, because the entire term of employment which was CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 28 of 39 left was not even 24 months and secondly, because the complainant is claiming unliquidated damages in terms of Section 73 of Indian Contract Act and principle of mitigation should apply and only reasonable damages should be allowed to be paid to the complainant and not salary for the entire remaining period of employment.
61. In this regard, reliance has been placed on behalf of the accused on the judgment of the Hon'ble Supreme Court of India in Union of India vs. Raman Iron Foundry, (1974) 2 SCC 231. Reliance has also been placed on behalf of the accused on the judgment of the Hon'ble High Court of Delhi in Satya Narain Garg vs. DCM Ltd. & Ors., 2011 SCC OnLine Del 5205, wherein the Hon'ble Court has held as follows:
"7.....Further, even if there is illegal termination of services, it is not possible to grant damages as claimed inasmuch as the principle of mitigation of damages squarely applies. As per this principle of mitigation of damages enshrined in Section 73 of the Contract Act, 1872 even if an employee is illegally terminated from services, he cannot sit at home and he must take sufficient steps to procure alternative employment. The law in this regard is contained in the judgment of the Supreme Court reported as S.S. Shetty v. Bharat Nidhi Ltd., AIR 1958 SC 12. Paras 12 and 13 of this judgment are relevant, and the same read as under:
12. The position as it obtains in the ordinary law of master and servant is quite clear. The master who wrongfully dismisses his servant is bound to pay him such damages as will compensate him for the wrong that he has sustained.
They are to be assessed by reference to the amount earned in the service wrongfully terminated and the time likely to elapse before the CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 29 of 39 servant obtains another post for which he fitted. If the contract expressly provides that it is terminable upon, e.g., a month's notice, the damages will ordinarily be a month's wages. No compensation can be claimed in respect of the injury done to the servant's feelings by the circumstances of his dismissal, nor in respect of extra difficulty of finding work resulting from those circumstances. A servant who has been wrongfully dismissed must use diligence to seek another employment, and the fact that he has been offered a suitable post may be taken into account in assessing the damages.
***
11.....(iii) If there is violation of the terms of employment while terminating employment and thus termination is illegal, the employee is only entitled to reasonable damages by applying the principle of mitigation of damages. The plaintiff, assuming his services were illegally terminated, failed to show steps taken to obtain alternative employment and hence was rightly held disentitled to damages."
62. Thus, on the basis of the above judgments, the law that emerges in regard to the seeking of unliquidated damages for breach of contract, whenever the same is based on wrongful termination is that the person who has been wrongfully terminated has to establish, firstly, that he was illegally and wrongfully terminated in violation of the terms of the agreement / employment and secondly, that he has made all efforts to mitigate the loss and get alternative employment and that despite his best efforts he could not obtain a job elsewhere.
63. So far as the dues of Assotech towards the complainant in the sum of Rs.36,81,472/- towards marketing agreement and CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 30 of 39 Rs.18,29,512 towards Private Equity Agreement are concerned as mentioned in paragraph 19 of the amended plaint, it is submitted on behalf of the complainant that it is the case of the complainant that as per the agreements which are Mark CW1/X/F and Mark CW1/X/G, according to the complainant the above stated amount are due and nothing has been brought on record by the accused that the said sums of money have already been paid to the accused or that the said amount is not actually due. Support has further been drawn from the e-mails which are Ex-CW1/X/K and Ex-CW1/X/L whereby the complainant has requested Mr. Neeraj Gulati, one of the directors of Assotech to release his outstanding dues, including salary and incentives.
64. So far as the amount due towards wrongful termination is concerned, the following statement of the complainant during his cross-examination on 29.05.2019 is to be noted:
"3. As per the retainership agreement dated 26.07.2006, I was to be moved to the project that I got, for a period of two years at the salary of Rs.2,50,000/- per month and subsequent to a mail dated 05.05.2007 written by the HR of the whole company, I was transferred to the project as the head of the project subsequently in later part of May, I was wrongfully terminated. After termination I was not employed anywhere else. I started my own company in January, 2008".
65. Ld. counsel for the complainant has submitted that the complainant is entitled to an amount of Rs. 60,00,000/- towards damages for wrongful termination in terms of the retainership agreement dated 26.07.2006 and more CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 31 of 39 particularly clause 3(d)(iii) which reads as follows:
"d) You will be allowed to become a partner/ participant of up to 20% in the profit sharing of any deal which you bring to Assotech by your sole effort.
The intent of up to 20% profit sharing is to give you minimum of 5 Cr. in profits as projected by the forecasted numbers. The profits are not guaranteed since the real estate markets and valuations change. *** ii. You will become an employee of such joint venture and will hold the post of Sales and Marketing Head or the Project Head.
iii. You will be paid 2.5 lacs per month (CTC) for duties assigned to you in such joint venture until the sooner of 2 years or until the completion of the project.
***"
66. It is the case of the complainant that the complainant was made the project head vide e-mail dated 05.05.2007 and accordingly, became entitled to Rs.2,50,000 per month as remuneration in terms of clause 3(d)(iii) of retainership agreement dated 26.07.2006. It has further been submitted that since the said amount was to be received by the complainant for a period of 2 years, accordingly, the damages for wrongful termination have been correctly estimated to be that of Rs. 60,00,000/-. It has been submitted that there was no reasonable cause of termination of complainant and accordingly, ending the contract before the completion of the duration of the contract amounts to wrongful termination.
67. In the considered opinion of this court, the complainant cannot be expected to prove the negative, i.e., that he has CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 32 of 39 not received a certain sum of money. However, when the same has been alleged by the complainant, then the accused could have very easily proved that no such dues as stated in the amended plaint are liable to be paid as the same have already been paid or that the same are not due. That nothing has been brought on record by the accused either by showing payment of dues or by showing that there are no such dues as stated in respect of the sum of Rs.36,81,472/- towards marketing agreement and Rs.18,29,512 towards Private Equity Agreement as mentioned in paragraph 19 of the amended plaint, and accordingly, this court arrives at a conclusion that these sums are due and payable by Assotech to the complainant.
68. Now coming to the second set of claim laid by the complainant, i.e., claim of an amount of Rs.60,00,000/- towards wrongful termination. The law as enunciated above is quite clear in this regard and the complainant was to prove two things, one that he was wrongfully terminated and second, that he could not a suitable job despite his best efforts and thus suffered loss pursuant to his wrongful termination. Since the claim in regard to damages for wrongful termination arises out of retainership agreement dated 26.07.2006, accordingly, the relevant part of the said agreement dealing with termination of the relationship between Assotech and the complainant is stated as follows for ready reference:
"If no transaction is brought by you and completed by 31 January 2007, this relationship is automatically CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 33 of 39 terminated. However this contract is non terminable till 31st January 2007. However if the contract is terminated after 31st January 2007, you will be paid your incentives if the private equity deals or joint venture deals originated by you during the term of the contract have reached a term sheet stage or letter of intent stage and are then concluded by Assotech Realty on their own."
69. Thus, it can be gathered that the relationship of the complainant with Assotech was in fact terminable after 31.01.2007. As per the case of the complainant, the said agreement was terminated in the later half of May, 2007 and accordingly, as per the said agreement the complainant is entitled only to accrued incentives and that also subject to happening of certain events. Even otherwise, it has been stated by the complainant himself that he had started his own company in January 2008 and thus, he remained unemployed only for a period of about 7 months. Even if he is paid the money that would have been paid to him under the contract, i.e., Rs. 2,50,000/- per month, then also the maximum that he can claim for wrongful termination is Rs.17,50,000/- along with Rs. 8,75,000/- (Rs. 1,25,000/- for 7 months) under the previous retainership agreement dated 25.09.2005 which is placed on record as Mark-CW1/X/G. Allowing the complainant to recover more amount than this for his termination would be travesty of justice and would cause undue loss and hardship to the accused and Assotech.
70. Reliance is placed by this court upon the judgments of Hon'ble High Court of Delhi in Alliance Infrastructure CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 34 of 39 Project Pvt. Ltd. vs. Vinay Mittal, 2010 SCC OnLine Del 182, Shivom Minerals Limited vs. State, 2019 SCC OnLine Del 9329 and judgment of Hon'ble Madras High Court in Angu Parameswari Textiles (P.) Ltd. vs. Sri Rajam and Co., 2001 SCC OnLine Mad 922 wherein it has been held that if the liability as on the presentation of the cheque is not equivalent to the amount of cheque in question, then the accused cannot be held liable for offence u/s. 138 NI Act. In this regard, reliance is also placed by this court on the judgment of Hon'ble High Court of Delhi in Starkey Laboratories India Pvt. Ltd. vs. Sanjay Gujral decided on 24.09.2019 in Crl.L.P. 492/2017.
71. In the considered opinion of this court, even after admitting the entire case of the complainant to be true and correct the maximum recoverable amount by the complainant is about Rs. 81,35,984/- and the cheque in question is for an amount of Rs. 1,00,00,000/- approximately (calculated at the exchange rate prevalent at the relevant period of time) and in view of the judgments of Hon'ble superior courts as enunciated above, the accused cannot be convicted of offence u/s. 138 NI Act, if the amount actually due is less than the amount of cheque in question.
72. Now, this court shall deal with the second defence taken by the accused that the ingredients of the offence u/s. 138 NI Act are not made out.
73. The accused has taken a defence that the ingredients of the offence u/s. 138 NI Act are not made out as the legal notice CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 35 of 39 was not sent within 30 days of the dishonour of the cheque. Ld. Counsel for the accused has drawn the attention of this court towards the cheque return memo dated 12.10.2007 which is Ex-CW1/2, whereby the cheque has been dishonoured. Ld. Counsel for the accused has further drawn the attention of this court towards the postal receipt dated 15.11.2007 whereby the said legal notice has been sent via speed post to the accused. Ld. Counsel for accused has thus submitted that the ingredients of offence u/s. 138 N.I.Act are not made out as the legal notice has not been sent within 30 days of the dishonour of the cheque.
74. Per contra, Ld. counsel for complainant has relied upon the memo of HDFC bank dated 23.10.2007 which is Ex-CW1/3 and it has been submitted that he had received the knowledge of dishonour of cheque in question only after receipt of said letter and limitation period of sending the legal notice should be calculated from the date when the complainant had received the intimation of dishonour of the cheque and not from the actual date of dishonour.
75. Reliance is placed by this court on the judgment of Hon'ble Supreme Court of India in Munoth Investments Ltd vs. Puttukola Properties Ltd & Anr, (2001) 6 SCC 582, whereby it has been held that period of 30 days for sending the legal notice should be calculated from the day complainant received knowledge of dishonour thereof.
76. On the basis of record, it is clear that the complainant has received the knowledge of the dishonour of the present CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 36 of 39 cheque in question on 23.10.2007 and accordingly, defence of the accused that the ingredients of U/s 138 N.I.Act are not made out because legal notice has not been sent within the statutory period holds no ground.
77. To sum up his submissions, Ld. counsel for the accused has placed reliance on the judgment of Hon'ble Supreme Court of India in Rangappa v. Sri Mohan, (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 and Basalingappa vs. Mudibasappa, (2019) 5 SCC 418, and it has been submitted that for the purposes of the present proceedings the accused is merely required to raise a probable defence and prove the same on the basis of preponderance of probabilities. It has further been submitted that for the same, it is not necessary that the accused should enter the witness stand and the accused can raise a probable defence even on the basis of the averments made in the complaint itself and by way of cross-examination of the complainant. It has further been submitted that since this is a criminal case, it is the bounden duty of the complainant to prove the case beyond reasonable doubt.
78. In view of the above discussion, this court arrives at the following conclusions:
(a) That there is a presumption u/s. 118 r/w. section 139 NI Act against the accused in regard to the existence of legally enforceable debt or liability.
(b) Several contradictions shown by the accused in the complaint and other documents are not material CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 37 of 39 contradictions and appear to be typographical errors.
(c) The plea of the accused that the name of the payee and the date on the cheque have not been filled by him cannot come to his aid in view of the judgment of Hon'ble Supreme Court of India in Bir Singh (supra).
(d) The dues in respect of which the present case has been filed are that of M/s Assotech Realty Private Limited and not that of the accused.
(e) That nothing has been brought on record by the complainant to show that the accused had undertaken the liabilities of M/s Assotech Realty Private Limited owed to the complainant.
(f) That even if the entire case of the complainant is admitted to be true, then also the actual amount due is not equivalent to the amount of cheque in question.
(g) That the defence of the accused that the legal notice has not been sent to the accused within 30 days of the dishonour of the cheque in question, is not sustainable in law in view of the fact that the period of 30 days has to be reckoned from the date when the complainant received knowledge of the dishonour from his bank.
79. It is imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence.
80. Thus, in my considered opinion, complainant has not been CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 38 of 39 able to prove its case beyond reasonable doubt qua the accused as he has not been able to prove the contents of the complaint and it cannot be said that there was legally enforceable debt or liability existing in favour of the complainant and against the accused as on the date of issuance or the presentation of the cheque in question equivalent to the amount of cheque in question. The accused has been able to raise a probable defence, by proving his defence on the basis of preponderance of probabilities.
81. In view of the above discussion, accused Naresh Nagpal s/o Late Sh. Rishi Lal Nagpal, is hereby acquitted of offence under section 138 Negotiable Instruments Act.
Note: This judgment contains 39 signed pages and each page has been signed by the undersigned.
Announced in Open Court (Anshul Singhal) on 22.08.2022 MM(N.I. Act)-03/NDD/RACC/ND CC No. 10907/2018 Samir Jasuja Vs. Naresh Nagpal Page 39 of 39