Delhi District Court
Cc No.4769/2020 M/S Kukreja Travels ... vs . M/S Torna Holidays Llp & Ors. Page No. ... on 7 September, 2022
IN THE COURT OF MS. SONIKA, M.M. 05, N.I. ACT, SOUTH
DISTRICT, SAKET, NEW DELHI
C.C. No.4769/2020
PS: Malviya Nagar
M/s Kukreja Travels Pvt. Ltd.
O/o LB-16/Cabin No.1, Ansal Bhawan,
K.G. Marg, New Delhi-110001
...Complainant
Versus
1. M/s Torna Holidays LLP
O/o 280, Deepali Enclave, Pitampura,
New Delhi-110034.
(not summoned as accused vide order dated 18.02.2021)
2. Sh.Ishvinder Pal Singh Teji
Partner/Director/AR/Signatory
O/o 214, Plot No.5, Krishna Plaza,
Kirshna Mall, Sector - 12, Dwarka,
New Delhi-110078.
(not summoned as accused vide order dated 18.02.2021)
3. Sh.Avneet Kaur
Partner/Director/AR/Signatory
O/o 214, Plot No.5, Krishna Plaza,
Kirshna Mall, Sector - 12, Dwarka,
New Delhi-110078.
(not summoned as accused vide order dated 18.02.2021)
4. Sh.Satnam Singh
Partner/Director/AR/Signatory Digitally
signed by
O/o 214, Plot No.5, Krishna Plaza, SONIKA
SONIKA Date:
Kirshna Mall, Sector - 12, Dwarka, 2022.09.07
16:32:19
New Delhi-110078. +0530
(summoned vide order dated 18.02.2021)
...Accused Persons
Date of Institution : 29.09.2020
CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 1/16
Offence complained of : 138 NI Act
Date of final arguments : 30.08.2022
Date of decision : 07.09.2022
Plea of guilt : Not guilty
Decision : Acquittal
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, this Court shall dispose off the present complaint case instituted by the Complainant invoking the provisions of Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as "NI Act").
2. The facts giving rise to the instant complaint case, as per the complainant, may be enumerated as hereafter: the complainant company is engaged in the business of Tour and Travel and has been in the business with accused no.1 Limited Liability Partnership (LLP) through the accused no.2 to 4 of booking tickets on commission basis. The complainant had issued a total of 20 Air tickets against the Travel Agency of accused no.1 on 30.11.2018 from Delhi to Port Blair (Andaman and Nicobar Islands). Accused no.2 to 4 are listed designated partners and authorized signatory of the accused no.1 and are responsible for day to day business, managing and functioning of the accused no.1. Accused no.4 Satnam was given credit facility till 12.12.2018 against an amount of Rs.2,46,690/- for booking of 20 tickets and accused no.1 through accused no.2 to 4 had promised to pay the total payment on or before 12.12.2018, but accused had failed to give any amount till 12.12.2018. On 10.12.2018, the complainant had cancelled the two tickets issued for 13.12.2018 due to non receipt of any payment. As per the account of the accused no.1, out of Rs.2,46,690/- due against the accused no.1 to 4, accused had made part payments and the complainant had got 07 Dubai Visas for which the complainant set-off an amount of Rs.23,000/- and as per the account maintained in the name of accused persons, a balance sum of Rs.65,000/-, remained due against accused to be paid to the complainant by the accused no.1 to 4. The accused had issued a cheque bearing no.036073 Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:32:25 +0530CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 2/16 dated 17.01.2020 drawn on ICICI Bank, HI Square, Dwarka Sector-5, New Delhi for an amount of Rs.65,000/-, in favour of complainant (hereinafter referred to as "cheque in question") in discharge of their liability. However, the same was dishonoured due to reason 'Funds Insufficient' vide bank returning memo dated 20.01.2020. The complainant sent legal demand notice dated 03.02.2020 to the accused, despite which the accused failed to repay the amount. Thus, the complainant was constrained to institute the present complaint case against the accused persons.
3. Upon appreciation of pre-summoning evidence affidavit, only accused no. 4 Sh. Satnam Singh (hereinafter referred to as accused), being the drawer of the cheque, was summoned for an offence punishable under Section 138 of NI Act. Notice under Section 251, Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C.) was served upon accused Satnam Singh on 02.03.2022 to which he pleaded not guilty and claimed trial. On the same day, the statement of the accused, under Section 294 Cr.PC, was recorded, wherein, he had admitted the issuance of cheque in question and his signatures on the cheque in question. He had further admitted that the particulars, except the date, are duly filled by him. He denied the receipt of legal demand notice. At the time of notice under Section 251 Cr.PC., the accused had stated that the cheque in question was handed over to the complainant company for the payment of the ticket booked for an Army officer namely Col. Ankit Hodkasia for travel on 14.12.2018 and the said ticket was cancelled by the complainant due to non receipt of payment. He further submitted that he was not the beneficiary of any services and nor liable to pay anything to the complainant. He further stated that after handing over the cheque in question, he had made the payment of Rs.60,000/- in cash which was duly acknowledged by the complainant through an invoice generated by them.
4. Thereafter, vide order dated 02.03.2022, on oral request, the plea under Section 145(2) NI Act of accused was allowed and the accused was granted an Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:32:31 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 3/16 opportunity to cross examine the complainant as well as his witnesses, if any.
5. During CE, the complainant examined only one witness i.e. its AR as CW-1. The AR of the Complainant has adopted his pre-summoning evidence affidavit and the same was exhibited as Ex. CW-1/A and relied upon the documents which were duly exhibited: Board Resolution as Ex.CW1/1(OSR), Copy of Aadhar card of AR of the complainant as Ex.CW-
1/2(OSR), Ledger Account maintained by complainant as Ex.CW-1/3, cheque in question as Ex.CW-1/4, Bank Returning Memo dated 20.01.2020 as Ex.CW-1/5, Legal demand notice dated 03.02.2020 as Ex.CW-1/6, tracking reports as Ex.CW-1/7 to Ex.CW-1/9; copy of Master data of Torna Holidays LL.P. as Ex.CW-1/10, Certificate under Section 65-B of Indian Evidence Act as Ex.CW-1/11, certificate of incorporation of the complainant company as Ex.CW-1/12. During his cross-examination, AR of the complainant had placed on record the bills raised against the tickets issued by the complainant's company, which was exhibited as Ex.CW-1/X1, print out of emails sent to the accused, which was exhibited as Ex.CW-1/X2; ledger maintained by the complainant, which was exhibited as Ex.CW-1/X3 and the ticket which was cancelled by the complainant company and the same was exhibited as Ex.CW-1/X4. CW-1 was further confronted with certain documents i.e. bills and email which were exhibited as CW-1/D1 and Ex.CW-1/D2 respectively. CE was closed vide order dated 12.07.2022.
6. Accused was, thereafter, examined U/s 281 r/w Sec 313 Cr.P.C. on 12.07.2022, wherein entire incriminating evidence was put to him. At this stage, he has stated that Torna Holidays is a LLP and he is neither a partner nor a director and he did not hold any designation in the company but the company belongs to his daughter and as an elder, he used to sit there. He further stated that the cheque in question was issued on behalf of Sh. Ankit Hodkasiya, whose ticket were cancelled, since he is an army officer and he requested him that he is unable to transfer funds, he make the payment within few days. He further stated that since Kukreja Travel was in need of money, Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:32:36 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 4/16 he gave them his personal cheque in December, 2018 but it was shocking to know that on the date of travel, the tickets were cancelled and he in his personal capacity, purchased business ticket for the client for about Rs.1,00,000/- and made Mr. Ankit Hodkasiya to travel with his family on vacation. He further stated that since there was regular ongoing business, he used to make the payment as reflected in the ledger filed by the complainant. He further stated that some payments was made in cash and some payment was made to Directors in personal account and some payment was also paid to the sister concern namely Travel Door. He further stated that the payment made in Director's account and to Travel Door is not reflected in the ledger. He further stated that they also issued Dubai Visa, the cost of visa was at that time was Rs.5,400/- each + service charges of Rs.600/-, total amounting to Rs.42,000/- against which they on their own mentioned the amount of Rs.23,000/- shown in the complaint but not mentioned in the ledgers. He further stated that since there was a gap and spoiled relationship, the business was discontinued. He further stated that thereafter, in the month of January, 2020, they deposited the cheque which was given to them by him from his personal account as collection of liability without informing or without taking any consent. He further stated that the liability, if at all, was of Torna Holidays company and not him as Satnam Singh. He further stated that he was not a beneficiary of any services. Since the accused choose to lead evidence, the matter was fixed for defence evidence.
7. The accused examined only one witness i.e. accused Satnam Singh as DW-1 and he was duly cross-examined by the ld. Counsel for complainant.
During his examination in chief, DW-1 had placed on record the printouts of the e-mail and the copy of the ticket purchased by Sh. Ankit Hodkasia, the print outs of the e-mail and invoices for Dubai Visa, certificate under section 65-B Indian Evidence Act, print outs of the e-mail sent to one of the staff of Torna Holidays thereby mentioning the complete settlement amount and the same was exhibited as Ex. DW-1/1, Ex. DW-1/2, Ex. DW-1/3, and Ex. DW-
Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:32:42 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 5/16 1/4 respectively. The defence evidence was closed on 20.08.2022 and the matter was fixed for final arguments.
8. I have considered the rival submissions of the parties and perused the entire evidence led by the parties and the material available on record.
9. During the course of final arguments, Ld. Counsel for complainant argued that there exists legally enforceable liability in favour of the complainant on behalf of the accused. He further argued that the cheque in question was issued to the complainant and the signature has been admitted by the accused.
He further argued that upon presentation, the cheque has been dishonored and the same has been proved by the cheque return memo. Further, he argued that the demand notice was duly served upon the accused. He further argued that the complainant did not receive any payment after service of legal notice. Ld. Counsel for complainant submitted that all the ingredients of Section 138 NI Act are fulfilled and the accused should be convicted . In support of her arguments, ld. Counsel for complainant has relied upon the judgment passed in cases "D.K. Chandel Vs. M/s Wockhardt Ltd. & Anr." (2020) 13 SCC 471 and "P. Rasiya Vs. Abdul Nazer and Anr." 2022 SCC OnLine SC 1131 and order dated 12.07.2019 passed by Hon'ble Supreme court in "Pavan Diliprao Dike Vs. Vishal Narendrabhai Parmar", S.L.P. (Crl.) No(s). 3858/2019.
10. Per contra, ld. Counsel for accused argued that there is no legally enforceable debt/liability in favour of the complainant as the alleged settlement was between the complainant and the M/s Torna Holidays LLP, in which the accused Satnam Singh has no role to play. He further argued that cheque in question was issued by the accused for the travel tickets of Sh. Ankit Hodkasis and his family in 2018, however, the tickets were cancelled by the complainant. He further argued that no legal demand notice was ever received by the accused Sh. Satnam Singh. He further argued that the complaint of the complainant itself suffer infirmities as there are various discrepancies in the ledger maintained and filed by the complainant. He Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:32:50 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 6/16 prayed that the accused be acquitted of the offence. In support of his arguments, he has relied upon the judgment passed in M. S. Narayan Menon vs. State of Kerala, 2006 SAR Crl. 616.
11. In the backdrop of the foregoing factual score, this Court shall now proceed to examine the position of law governing the facts peculiar to the present case.
12. The following ingredients must be satisfied in order to bring home the guilt of a person accused for the commission of an offence punishable under Section 138 of NI Act, which has also been observed by the Hon'ble Supreme Court of India in the matter of Jugesh Sehgal Vs. Shamsher Singh Gogi, (2009) 14 SCC 683:
"9. 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 Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:32:58 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 7/16 receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(vi) the drawer of such cheque fails to make 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"
The abovementioned proposition of law was reiterated by the Hon'ble Supreme Court in the matter of Aparna A. Shah v M/s Sheth Developers P. Ltd & Anr. (2013)8 SCC 71.
13. It is a well settled principle of criminal jurisprudence that a criminal trial precedes on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden is on the complainant/ prosecution to prove the guilt of the accused and the standard of proof for the same is beyond reasonable doubt. However, in offences under Section 138 NI Act, there is a reverse onus clause, which is contained in Sections 118 and 139 of the Act.
Section 118 of the N.I Act provides:
"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, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"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 liability".
14. Once the foundational facts that the cheque in question bears the Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:33:10 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 8/16 signatures of the accused and the same has been drawn on account maintained by him are established, a factual base is established to invoke the presumption of cheque having being issued in discharge of a legally recoverable debt and drawn for good consideration by virtue of Section 118(a) r/w Section 139 of NI Act. It is a mandatory presumption, though the accused is entitled to rebut the said presumption.
15. In case of Kumar Exports vs. Sharma Carpets,(2009) 2 SCC 513, the Hon'ble Supreme Court had held:-
"The accused under Section 138 NI Act has two options. He can either show that the consideration and debt did not exist or that under the particular circumstances of the case, the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his defence beyond reasonable doubt as it is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which his probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or there non existence was so probably that a prudentDigitally man signed by SONIKA SONIKA Date:
2022.09.07 16:33:17 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 9/16 under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question, was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon the circumstantial evidence and if the circumstances so relied upon are so compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arises under Section 118 and 139 of NI Act".
16. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:33:24 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 10/16 25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
17. So far as the factum of liability is concerned, in view of the mandatory presumptions of law as discussed above, if an accepted signed cheque has been produced the complainant, then there cannot be any inherent lacuna in the existence of the liability. Recently, the Hon'ble Supreme Court in Kalamani Tex & Anr. v. P. Balasubramanian (2021 SCC Online SC 75) held as follows:
"14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial Court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NIA. The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
But then, definitely, accused can create some loopholes in the story of the complainant. Accused can discharge his burden by demonstrating the preponderance of probabilities.
18. Further, it is trite law that while deciding a complaint U/s 138 NI Act, the Court has to firstly see whether the Complainant has successfully established the ingredients constituting the offence under the said section. The ingredients of Section 138 NI Act which are required to be established by the Complainant have been set out by the Hon'ble SC in Jugesh Sehgal (Supra). Once these ingredients are established by the Complainant and the Accused admits the issuance of the cheque/his signatures, the presumption U/s 118 (a) Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:33:30 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 11/16 and 139 of the NI Act arise.
19. One of the key ingredients is that the " payee or holder in due course of the cheque makes a demand for the payment of said amount of money by giving a notice in writing, to the drawer of the cheque ". It is trite law that when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issuance of notice in terms of clause (b) of proviso to Section 138 of the NI Act stands complied with. At this juncture, reliance is placed upon the judgment passed by Hon'ble Supreme Court in the case of C.C.Alavi Haji vs. Palapetty Muhammed, 2007 (6) SCC 555 wherein it has been held that:
"15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:33:37 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 12/16 +0530 was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends."
20. Further, the Hon'ble High Court of Delhi in R.L. Varma & Sons vs. PC Sharma, 2019 SCC OnLine Del 8964 has observed as follows:
"22.Legal presumption of service of notice can only arise in case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise..."
"24. Section 138 of the Negotiable Instruments Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. The cause of action to file a complaint under section 138 of the Negotiable Instruments Act arises only on issuance and service of statutory notice and failure of the accused to comply with the statutory notice. In the absence of service of statutory notice the cause of action would not accrue. Service of statutory notice would also include legal presumption of service if circumstances so warrant."
"34. Since the pre-condition of filing a complaint under section 138 of the Negotiable Instruments Act of sending a statutory notice has not been satisfied in the present case, no cause of action arose in favour of the complainant to file the subject complaint. Since no cause of action arose, the petitioner could not have instituted the complaint nor could the trial court as well as the appellate court by the impugned order have convicted the petitioner."
21. Accordingly, if the legal demand notice bears the incorrect address of the Accused, no presumption under Section 27 of the General Clause Act, 1897 can be drawn and the requirement of sending a legal demand notice will stand Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:33:44 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 13/16 +0530 unfulfilled.
22. In the present case, the Accused at the stage of framing of notice under Section 251 Cr.P.C as well as in his statement under Section 294 Cr.P.C had submitted that he had not received the legal demand notice. Perusal of the legal demand notice (Ex. CW-1/6) shows that the same was addressed at M/s Torna Holidays LLP, 214, Plot No.5, Krishna Plaza, Krishna Mall, Sector - 12, Dwarka, New Delhi-110078 i.e. the registered address of Torna Holidays LLP. Perusal of record reveals that the complainant had placed on record company Master data of Torna Holidays LLP as Ex. CW-1/10, but the same nowhere mentions the name of the accused Satnam Singh. Perusal of record further reveals that the accused had furnished the Annexure B alongwith the photocopies of his identity proof. Perusal of the same shows that the correct address of the accused is B-2-101, Sunny Valley Apartment, Plot No.27, Sector-12, NSIT Dwarka, Delhi-110078.
23. Thus, it is evident from the above stated facts that the demand notice was sent on an incorrect address. The accused had, time and again, disputed the receipt of legal demand notice. However, the perusal of the tracking report (Ex. CW-1/7) shows that the demand notice was delivered to Satnam Singh (addresses). However, the complainant has failed to lead any evidence to show the reasons for his belief that the accused Satnam Singh is a designated Partner/ Director/ AR/ Signatory of Torna Holidays LLP, despite having the Master Data of the LLP. Thus, here, benefit of doubt is given to the accused that he had not received the demand notice, as the same was addressed on an incorrect address.
24. Since, Section 138 NI Act is a technical offence, all ingredients as mentioned in Jugesh Sehgal (Supra) must be established for the accrual of cause of action in favour of the Complainant. In view of the above detailed discussion, the Complainant has failed to establish the essential ingredients of Section 138 of NI Act, hence no presumption under Section 139 is attracted in the present case. Thus, the complainant had failed to discharge the initial Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:33:51 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 14/16 burden.
25. Moreover, even if, it is admitted that the legal notice was received by the accused Satnam Singh, the complainant was not able to prove his own case. As per the complainant, he was having transaction with Torna Holidays LLP and the cheque in question was issued by accused Satnam Singh in lieu of payment of the balance amount of Rs. 65,000/-, which was payable by Torna Holidays LLP. No doubt, law is trite that the liability under section 138 NI Act would arise, even if, the cheque is issued in discharge of liability of some other person, however, there should be a legally enforceable debt/ liability against that third person. It is noteworthy that the complainant had placed on record the ledger account (Ex.CW-1/3 and Ex.CW-1/X3), however, the same is vague. The complainant, during his cross-examination, admitted that the ledger does not mention the various entries of the amount in favour of the opposite party, which was received or set off. Moreover, the complainant, in his complaint and evidence affidavit had mentioned that some amount was received in cash from the accused, however, he had not placed on record any details. The complainant had further admitted, in his cross-examination, that the cheque in question was handed over for security purpose in 2019 and the same was undated. Further, as per the complainant the cheque in question was issued for the due amount of Rs. 65,000/-, however, the complainant had failed to place on record any document to show that the due amount was Rs. 65,000/-, except the ledger, which is vague and not showing the complete amount credited in favour of Torna Holidays LLP. On the hand, during his cross-examination, the complainant was confronted with the print out e-mail dated 10.10.2019 (Ex.CW-1/D2), sent by the complainant to Torna Holidays LLP, which mention that the full and final settlement amount is Rs. 35,000/-, however, the same was negated in his cross-examination by stating that the settlement amount was for the Dubai Visa only i.e. Ex. CW-1/D1. Further, the complainant had not come up with any explanation, as to why the tickets were cancelled on 10.12.2018, when the credit facility was given till 12.12.2018.
Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:33:58 +0530 CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 15/16 The complainant in his complaint had stated that an amount of Rs. 23,000/- was set off for the Dubai Visa, however, perusal of the e-mail dated 25.02.2019, sent by the complainant to Torna Holidays LLP (Ex. DW-1/2) shows that the complainant had asked for applying 7 Dubai Visas from the outstanding amount of Rs. 86,000/-. Thus, even if the version of the complainant is accepted, after issuance of Dubai Visa, the liability of Torna Holidays LLP, if any, was of Rs. 63,000/- only. The ld. Counsel for complainant argued that for offence under section 138 NI Act, the accused cannot ask for the settlement of accounts as it is not a civil case. However, the law is trite that the presumption in favour of the complainant is rebuttable one and the standard to rebut the same is preponderance of probability and in the opinion if this court, the accused had duly created a reasonable doubt by pointing out the inconsistencies in the liability alleged by the complainant.
Thus, the argument raised by the Ld. Counsel for accused that there is no legally enforceable debt/ liability in favour of the complainant deserves to be accepted.
26. Thus, in view of the totality of the circumstance and the settled legal positions as discussed above, the case attempted to be built by the complainant, appears to be suffering from fatal infirmities so much so, it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests.
27. Accordingly, in light of the above discussion, the accused Satnam Singh stands acquitted of the offence under Section 138 of NI Act.
Digitally signed by SONIKA SONIKA Date:
2022.09.07 16:34:07 ANNOUNCED IN THE (SONIKA) +0530 COURT ON 07.09.2022 MM-05/NI ACT/SOUTH/SAKET NEW DELHI CC NO.4769/2020 M/s Kukreja Travels Pvt. Ltd. VS. M/s Torna Holidays LLP & Ors. PAGE NO. 16/16