Delhi District Court
Cc No. 11922/2017 Bansal Wire ... vs Weld Alloy Products Ltd. Page 1 Of 34 on 17 March, 2021
CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 1 of 34
CNR. DLCT020226172017
IN THE COURT OF SH. VISVESH, METROPOLITAN
MAGISTRATE, N.I. ACT-06, CENTRAL, TIS
HAZARI COURTS, DELHI
DLCT020226172017
CC No. 11922/2017
Bansal Wire Industries Ltd.
Regd. Office:
F-3 Main Road, Shastri Nagar
Delhi -110052 ...... Complainant
Vs.
Weld Alloy Products Ltd.
Regd. Address:
House No. 18
Road No. 78
Punjabi Bagh West,
New Delhi -110026
Also At:
Works:
D-51 & 52 P.P.I.P.U.P.S.I.D.C
Site -V, Kasna
Greater Noida-201306 (U.P.) ...... Accused No.1
Mr. Rajiv Kapoor
Wholetime Director,
Weld Alloy Products Ltd.
House No. 18
Road No. 78
Punjabi Bagh West,
CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 1 of 34
CNR. DLCT020226172017
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CNR. DLCT020226172017
New Delhi -110026 ...... Accused No.2
Mr. Sandeep Kapoor
Wholetime Director,
Weld Alloy Products Ltd.
House No. 18
Road No. 78
Punjabi Bagh West,
New Delhi -110026 ...... Accused No.3
Ms. Simmi Kapoor
Wholetime Director,
Weld Alloy Products Ltd.
House No. 18
Road No. 78
Punjabi Bagh West,
New Delhi -110026 ...... Accused No.4
Mr. Jagdish Kumar Kapoor
Managing Director,
Weld Alloy Products Ltd.
House No. 18
Road No. 78
Punjabi Bagh West,
New Delhi -110026 ...... Accused No.5
Ms. Divya Kapoor
Managing Director,
Weld Alloy Products Ltd.
House No. 18
Road No. 78
Punjabi Bagh West,
New Delhi -110026 ...... Accused No.6
Ms. Simmi Kapoor
Wholetime Director,
Weld Alloy Products Ltd.
House No. 18
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CNR. DLCT020226172017
Road No. 78
Punjabi Bagh West,
New Delhi -110026 ...... Accused No.7
Mr. Rajinder Kumar Poddar
Director,
Weld Alloy Products Ltd.
D-136, Ranjit Avenue,
Amritsar #143001
Punjab ...... Accused No.8
Ms. Radhika Kapoor
Managing Director,
Weld Alloy Products Ltd.
House No. 18
Road No. 78
Punjabi Bagh West,
New Delhi -110026 ...... Accused No.9
Date of Institution : 20.09.2017
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the Accused : Not Guilty
Final Order : Accused 1, 2 and 6 are Acquitted
Accused 3,4,5,7,8,9 were not
summoned vide order dated
26.09.2017
Date of Decision : 17.03.2021
JUDGEMENT
1. The present complaint has been filed by the Complainant against the Accused under section 138 Negotiable Instruments Act, 1881.
CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 3 of 34CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 4 of 34 CNR. DLCT020226172017 Factual Matrix
2. The brief facts as alleged by the Complainant in the Complaint are that the Complainant is engaged in the business of manufacturing of all kind of Iron and Steel wires, Stainless Steel wires and G.I.wires and supplying them to various customers as per their orders and specifications.
2.1 It has also been averred that the Complainant has authorised Mr Rajeev Goel as the Authorised Representative to file, institute, verify, sign any suit, complaint, appeal, revision, affidavit, petition, compromise for all necessary requirements in process of case/complaint before the appropriate court etc. on behalf of the Complainant.
2.2 It has been stated that the Accused Persons approached the Complainant and represented that they were interested in purchasing of Stainless Steel wires from the Complainant. Accused persons represented that the Accused No. 1 company was highly reputed one and assured of the time the payment against the supply. Accused persons had a running account with the Complainant and purchased regularly from the Complainant. As of 1st of April 2017, there was an outstanding of ₹ 15,45,194/- due from the side of the Accused in the books of accounts.
2.3 It has been further stated that to clear the dues partially against the said outstanding amount for the supplies, the Accused Persons issued the following 7 cheques all drawn on Bank of India, Rajouri CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 4 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 5 of 34 CNR. DLCT020226172017 Garden Branch, New Delhi - 110027 amounting to ₹ 15,43,706/- and assured the Complainant that the cheques will be honoured on presentation.
S.No Cheque No. Date Amount (Rs.)
1. 095234 20.06.2017 1,43,706/-
2. 095236 25.06.2017 1,50,000/-
3. 095235 30.06.2017 2,50,000/-
4. 095230 05.07.2017 2,50,000/-
5. 095231 10.07.2017 2,50,000/-
6. 095232 15.07.2017 2,50,000/-
7. 095233 04.08.2017 2,50,000/-
Total 15,43,706/-
2.4 When the Complainant presented the said cheques through his banker Canara bank, Sadar Bazar branch, the same were returned unpaid by the banker of the Complainant vide returning memos all dated 5th August 2017 with the remarks "Exceeds Arrangement".
2.5 The Complainant thereafter issued a composite legal demand notice on 22.08.2017 through counsel calling upon the Accused persons to pay the said cheque amount within a period of 15 days CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 5 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 6 of 34 CNR. DLCT020226172017 from receipt thereof. The said notice was duly served upon the Accused persons and the Accused persons failed to pay the aforesaid cheque amount within the statutory period.
2.6 Hence, the present Complaint u/s 138 Negotiable Instrument Act 1881 (hereinafter the NI Act) was filed on 20.09.2017 by the Complainant, praying for the Accused persons to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.
Proceedings before the court
3. Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit Ex. CW-1/1 wherein the Complainant has affirmed the facts stated in the instant complaint.
4. Documentary Evidence: To prove the case, the Complainant has relied upon the following documents:
a) Abstract of minutes of meeting of board of directors of the Complainant company containing the board resolution in favour of the AR of the Complainant Ex. CW1/A
b) Ledger accounts, Tax Invoices, Bilty (transporter's receipt) in favour of the Accused Company and Form 32 of the CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 6 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 7 of 34 CNR. DLCT020226172017 Accused Company Ex. CW1/B (Colly)
c) Original cheques Exhibit. Cheque Date Drawn On Amount (Rs.) No No. Ex. 095234 20.06.2017 Bank Of India, Rajouri 1,43,706/-
CW1/C Garden Branch Ex. 095236 25.06.2017 Bank Of India, Rajouri 1,50,000/- CW1/D Garden Branch Ex. 095235 30.06.2017 Bank Of India, Rajouri 2,50,000/- CW1/E Garden Branch Ex. 095230 05.07.2017 Bank Of India, Rajouri 2,50,000/- CW1/F Garden Branch Ex. 095231 10.07.2017 Bank Of India, Rajouri 2,50,000/- CW1/G Garden Branch Ex. 095232 15.07.2017 Bank Of India, Rajouri 2,50,000/- CW1/H Garden Branch Ex. 095233 04.08.2017 Bank Of India, Rajouri 2,50,000/- CW1/I Garden Branch
d) Original cheque return memos dated 07.08.2017 Ex. CW-
1/J to Ex. CW-1/P.
e) Office Copy of legal notice dated 22.08.2017 Ex. CW1/Q. CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 7 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 8 of 34 CNR. DLCT020226172017
f) Postal receipts Ex. CW1/R.
g) Track reports Ex. CW1/S.
5. Summoning of the Accused: On finding of a prima-facie case against the Accused persons, Only Accused No. 1,2 and 6 were summoned. All other Accused were not summoned. The summoned Accused appeared before the court on 26.03.2019
6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused 1,2 and 6 to which they respectively pleaded not guilty and claimed trial. The plea of defence of the Accused persons was recorded where the Accused No. 2 stated for himself and on behalf of Accused No. 1 that the signature appearing on the cheques in question were his. He denied receiving any legal demand notice. He stated that Complainant takes post dated cheques along with delivery of goods. He further stated that the goods supplied against the cheques in question were found to be defective and the same was duly communicated to the Complainant. He then said that cheque originally issued for the goods in question had become stale as he had informed the Complainant in time about the defective nature of the courts. As the Complainant and the Accused were having good business relations, the cheques in question were issued against the earlier cheques on the request of the Complainant. He further stated that he had already made certain payments to the Complainant against cheques in question by way of the cheques/RTGS. He admitted being liable to the Complainant but CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 8 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 9 of 34 CNR. DLCT020226172017 stated that the liability is not to the tune of the amount as reflected in the cheques in question. The Accused No. 6 stated that the cheques in question does not bear her signature. She also denied receiving any legal demand notice. She then stated that she is not aware about the present matter or the alleged business dealings between the parties. Then stated that she was sleeping director in the company and that she had resigned from there in the year 2017. She further stated that she is now managing her own company. She then stated that she has been wrongly arrayed as the Accused. She denied being the signatory of the Accused Company at any point of time.
7. Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the Complainant. Thereafter, the AR of the Complainant was examined as CW1, adopting the pre-summoning evidence as post-summoning evidence and was cross examined and discharged. No other witnesses were examined by the Complainant. Thereafter, Complainant evidence was closed, and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
8. Statement of the Accused: Statement of the Accused persons was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 24.02.2020 and 19.12.2020 wherein all the incriminating circumstances appearing in evidence against the Accused persons were put to them to which the Accused 2 stated for himself and on behalf of the Accused No. 1 that he had issued the cheques in question as blank signed cheques to the Complainant. He denied any knowledge about the dishonour or CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 9 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 10 of 34 CNR. DLCT020226172017 receiving the legal demand notice. He admitted the address appearing on the legal demand notice is his correct address. He also stated that he had shifted from the said address in the month of January 2019 he further stated that he is the director of M/s Weld Alloy Products Ltd. since its inception till date. He stated that his company used to regularly purchase material from the Complainant company. He also stated that he had placed an order on behalf of the company to the Complainant for purchase of S.S. wire. He then stated that all cheques in question were issued at the time of placing order as advance cheques. However, the material was not supplied with respect to the transaction for which the cheques in question were given, were not supplied by the Complainant company. He then stated that as far as any outstanding liability towards the Complainant company is concerned, he must check his accounts from the factory only then he can tell the same whether or not the total amount mentioned in the cheque in question is owed to the Complainant company or not. He then stated that he had asked the Complainant for return of his cheques however the Complainant did not return the same to him. Accused No. 6 mostly reiterated her stance taken in the notice of accusation, in addition to admitting that she was the managing director of the Accused company at the relevant time as per MCA records.
9. Defence Evidence: The Accused persons have not examined any defence witness in their favour. A statement of the Accused persons to that effect was recorded and defence evidence was closed. The CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 10 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 11 of 34 CNR. DLCT020226172017 matter was then fixed for final arguments on 05.02.2021.
10. I have heard the submissions of the Ld. Counsel for the Complainant as well as the Accused. I have also perused the record.
11. The Ld. Counsel for the Complainant has relied on the following judgements:
(a) Uttam Ram Vs. Devinder Singh Hudan,
MANU/SC/1435/2019
(b) Avdesh Gupta Vs. Satish Sharma, MANU/DE/1317/2018
(c) Umesh Prasad Vs. Govt. of NCT Delhi, MANU/DE/3135/2019
(d) Ramesh Goyal Vs. State, MANU/DE/1756/2017
12. The Ld. Counsel for the Accused has relied on the following Judgements:
(a) Total Finaelf India Vs. Rashmi Parnami, Crl.A. No. 1239/2011
(b) Rakesh Arora Vs. Hamdard (Wakf) Laboratories, 261(2019) DLT 307
(c) Krishna Janardhan Bhat Vs. Dattatreya G. Hegde, 2008(1) DCR 374
(d) Kumar Exports Vs. Sharma Carpets, JT 2009 (1) SC 20
(e) Harvinder Singh Vs. State, 2014(3) JCC 121 (NI)
(f) Sudesh Jain Vs. State (NCT) Delhi, 2010 (1) JCC 1 (NI)
(g) A.C. Narayan Vs. State of Maharashtra, 2013 (4) JCC 214 CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 11 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 12 of 34 CNR. DLCT020226172017 (NI)
(h) Ansar Khan Vs. Finecore Cables, 2007 (140) CompCas 76 (CLB)
(i) M.S. Narayana Menon Vs. State of Kerala, 2006(6) SCC 39
(j) Bhai Manjit Singh Vs. Sangam India Ltd., 92(2001) DLT 269
(k) Kulvinder Singh Vs. Kafeel Ahmed, (2013) 2 AD Delhi 81
(l) Pine Product Industries Vs. R.P. Gupta & Sons, 2007 (94) DRJ 352
(m) Mannalal Chamaria Vs. State of West Bengal, 2014(2) Crimes 63 SC
(n) Kanhaiya Lal Vs. State of U.P., MANU/UP/0876/2010 Appreciation of evidence
13. Before embarking upon a journey of appreciation of evidence, it would be fruitful to examine the statutory contours of the offence u/s 138 of the Negotiable Instruments Act, 1881 and the conspectus of cases which have served to explicate them.
14. For the application of s.138 of the Negotiable Instruments Act, 1881, the following legal requirements must be satisfied from the averments in the complaint as well as the evidence of the Complainant: -
(a) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 12 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 13 of 34 CNR. DLCT020226172017 legally enforceable debt or other liability;
(b) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(c) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank;
(d) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid;
(e) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice;
15. The aforesaid legal requirements are cumulative in nature, i.e. only when all of the aforementioned ingredients are duly proved is the drawer of the cheque deemed to have committed an offence under s. 138 of the Negotiable Instruments Act.
16. The provision of s.138 is buttressed by s.139 and s.118 of the Act. s. 139 of the Act provides that the court shall presume, that the holder of a cheque received the cheque for the discharge, wholly or in part of any debt or other liability. s.118 of the Act provides inter alia that the court shall presume, until the contrary is proved, that every negotiable instrument was made or drawn for consideration, and that CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 13 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 14 of 34 CNR. DLCT020226172017 every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration.
17. What follows from the aforesaid is that the offence u/s 138 of the Negotiable Instruments Act operates on reverse onus of proof theory. The presumptions u/s 139 and s. 118 of the Act mandate the court to draw them, when a given set of facts are shown to exist. The same is evident by the peremptory language "Shall Presume" used. However, the said presumptions are rebuttable in nature, i.e. it is open for the defence to disprove the same by establishing facts to the contrary.
18. In the case of Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 the Hon'ble Supreme Court had occasion to examine the confines of the presumption u/s 139 of the Act, wherein it held as follows:
"22. Because both Sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn (..) it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the Accused."
(Ibid. at p. 65, para 14.) (...) The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the Accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact.
CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 14 of 34CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 15 of 34 CNR. DLCT020226172017 Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man".
(...) in the case of a mandatory presumption, the burden resting on the Accused person in such a case would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the Accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted". (emphasis supplied).
19. Also, in the case of Rangappa v. Sri Mohan, (2010) 11 SCC 441 it was held that "(..)we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. (..)
27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 15 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 16 of 34 CNR. DLCT020226172017 specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. (..)the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-Accused cannot be expected to discharge an unduly high standard or proof.
28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an Accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". (...)As clarified in the citations, the Accused can rely on the materials submitted by the Complainant in order to raise such a defence and it is conceivable that in some cases the Accused may not need to adduce evidence of his/her own(...)since the Accused did admit that the signature on the cheque was his, the statutory presumption comes into play(...)"(emphasis supplied)
20. With regard to the factors taken into account for rebutting the presumption u/s 139 read with s.118 of the Act, the judgement of Hon'ble Delhi High Court in V.S. Yadav v. Reena CRL. A. No. 1136 Of 2010 assumes importance, wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of Accused of pleading not guilty was sufficient to rebut the entire evidence produced by the Complainant/prosecution, then every Accused has to be acquitted. But it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the Accused, by cogent CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 16 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 17 of 34 CNR. DLCT020226172017 evidence, has to prove the circumstance under which cheques were issued." (emphasis supplied)
21. The statutory contours of the offence thus examined, it becomes necessary to deal with certain grounds advanced by the Ld. Counsel for the Accused on the maintainability of the present complaint.
(a) Whether the Complaint is maintainable against Accused No. 2 and 6 when there is no specific averment in the Complaint that they were in charge of and responsible to the company for the conduct of business?
22. The Defence has contended that there is no specific averment either against Accused No. 2 or against Accused No. 6 in the Complaint or the evidence affidavit to the effect that they were in charge of the conduct of business of the company and were responsible to the company. It has been contended that absent such averment, the instant case is not maintainable against them and the Accused No. 2 and 6 cannot be held vicariously liable. The Defence has relied on the decisions of Mannalal Chamaria Vs. State of West Bengal, 2014(2) Crimes 63 SC, Harvinder Singh Vs. State, 2014(3) JCC 121 (NI), Sudesh Jain Vs. State (NCT) Delhi, 2010 (1) JCC 1 (NI).
23. With greatest deference to the said judgements cited, the same are distinguishable from the present case on facts. In the present case, Accused No.2 is admittedly the Director of Accused No.1 and the signatory of the cheque in question and Accused No. 6 has admitted that she was the Managing Director of Accused No. 1 at the relevant CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 17 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 18 of 34 CNR. DLCT020226172017 time as per MCA records. In the aforesaid facts, the judgement of S.M.S. Pharmaceuticals Ltd vs Neeta Bhalla Crl.A 664/2002 is squarely applicable which held that "the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section
141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub- section (2) of Section 141."
24. Hence, there is no need for the Complainant to make specific averments in the Complaint to fasten liability on the Managing director and the signatory of the cheque. They are, by virtue of their position and responsibility, per se covered within the purview of S.141 of the NI Act. The aforesaid ground is decided in favour of the Complainant and against the Accused persons.
(b) Whether the AR of the Complainant has been duly authorised to institute and prosecute the present complaint?
25. It has been contended by the Defence that the board resolution Exhibit CW - 1/A is non est in the eye of law as the AR of the Complainant has admittedly not produced the attendance register of the board of directors. It has also been stated that the AR of the CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 18 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 19 of 34 CNR. DLCT020226172017 Complainant has admitted while under cross-examination as CW - 1 that the minutes book of the Complainant company are not paginated and signed/initialled on each page. It has also been stated that CW - 1 has admitted that he is not aware as to when the statutory requisitioning of the board meeting was given to the directors or the mode of sending such notice. It has been stated that a board meeting convened under such irregularity is invalid and the resolution passed thereunder is null and void. It has been stated that a board meeting convened in contravention of section 193 of the Companies Act, 1956 would not be amenable to the presumption of validity of minutes of meeting enshrined under section 195 of the Companies Act, 1956. Reliance is placed upon the decision in Ansar Khan Vs. Finecore Cables, 2007 (140) CompCas 76 (CLB).
26. The aforesaid contention, though attractive, is untenable due to the reason that the internal management of the company and the statutory compliances under the Companies Act 1956 is not the subject matter of the present proceedings. The present proceedings pertain to an offence under section 138 of the Negotiable Instruments Act 1881. Lack of statutory compliance under the Companies Act would invite penalties prescribed under that Act against the Complainant company. However, it will not, of itself make the proceedings under section 138 of the Negotiable Instruments Act to be non-maintainable. No provision or precedent has been cited on behalf of the defence to the effect that the instant proceedings would be non-maintainable only due to the foregoing CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 19 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 20 of 34 CNR. DLCT020226172017 reason. A company is a juristic person and for the purposes of transacting its business, it would require authorising a natural person. The Accused persons have not been able to show that the act of the Complainant company appointing an authorised representative is ultra vires the Memorandum of Association or the Articles of Association of the Complainant company, so as to be beyond the scope of subsequent ratification. In such a situation, the Complainant company is entitled to the benefit of the doctrine of Indoor Management and the challenge to the validity of appointment of the AR is without merits.
27. Even if it be considered, for the sake of argument, that the initial appointment of the AR was invalid, it has been held in M.M.T.C. Ltd. v. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 that the defect in authorisation can be cured by the company at a subsequent stage. The Complainant company has not, throughout the pendency of the case, despite having knowledge of its institution, ever expressly objected to the appointment or the acts of its AR. Therefore, any defect in the appointment of the AR or the acts undertaken by the AR stands cured in the instant case by implied ratification by the Complainant company within the meaning of section 196 read with section 197 of the Indian Contract Act, Waterbase Ltd. vs Karuturu Ravendra 2002 (1) ALD Cri 689 relied upon.
28. Next, it has been contended on behalf of the Defence that the board resolution Exhibit CW - 1/A is defective in so far as it does not CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 20 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 21 of 34 CNR. DLCT020226172017 specifically authorise the AR to institute criminal proceedings under section 138 of the Negotiable Instruments Act. It has been contended that the AR has himself admitted during cross examination as CW - 1 that Exhibit CW - 1/A does not have any specific authority given in his favour to file criminal complaint against the Accused company and its directors. It has also been stated that CW - 1 has admitted that the board has given him the authority to file the suit against other companies in respect of cheque bounce cases. It has been contended that the authority to file a suit cannot be equated to the authority to file a criminal complaint. Reliance has been placed upon Bhai Manjit Singh Vs. Sangam India Ltd., 92(2001) DLT 269.
29. Perusal of Para 2 of Exhibit CW - 1/A would reveal that CW - 1 has been designated to "manage and supervise" the various legal proceedings "initiated" by the company "under section 138 of Negotiable Instruments Act 1881" and further to exercise such authority subject to the overall control and direction of the board of directors of the company. Para 3 of Exhibit CW - 1/A would reveal that CW - 1 has been authorised to verify and execute the necessary pleadings, statements, replies, applications ... and to make statements on oath "and to do all other acts that may be necessary or required to be done, in relation to the said legal proceedings. It has also been stated that the company shall be irrevocably bound by all such acts done by him, in respect of 138 of the Negotiable Instruments Act, 1881, in the interest of the company." It has been contended on behalf of the defence that the authority to manage and CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 21 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 22 of 34 CNR. DLCT020226172017 supervise would exclude the authority to initiate. The said contention, though fanciful, is without merits. Exhibit CW - 1/A has to be read as a whole and not in bits and pieces. The narrow interpretation put forth by the defence would mean that CW - 1 had authority only to manage and supervise legal proceedings already initiated by the company but had no authority to initiate them. It does not stand to reason as to why an artificial juristic person, which requires the aid of a natural person to represent it and transact its business would reserve to itself the authority to institute legal proceedings while giving the authority to its designated AR to manage and supervise them. A conjoint reading of Para 2 and 3 of Exhibit CW - 1/A would reveal that CW - 1 is duly empowered to initiate the present proceeding, regard being had to the residuary clause in Para 3 "and to do all other acts that may be necessary or required to be done, in relation to the said legal proceedings". Authority has been specifically granted in respect of legal proceedings under section 138 of The Negotiable Instruments Act and not in respect of any suit for recovery as stated by the Defence. The oral testimony of CW - 1 in his cross-examination to the effect that no specific authority has been granted to him to initiate criminal proceedings or that he has only been authorised to file suits is of no avail to the defence. The document Exhibit CW - 1/A must speak for itself. Oral evidence in contradiction to or at variance to its contents is inadmissible, regard being had to Parol evidence rule enshrined in section 91 and section 92 of the Indian Evidence Act, 1872. Reliance placed by the Defence upon the decision in Bhai CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 22 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 23 of 34 CNR. DLCT020226172017 Manjit Singh Vs. Sangam India Ltd., 92(2001) DLT 269 is therefore, misconceived.
30. The aforesaid controversy can also be examined from the lens of ratification. Even if it be held that CW - 1 acted outside the scope of his authority, such acts would stand validated by implied ratification by the Complainant company, as discussed earlier. Hence, the aforesaid ground is decided in favour of the Complainant and against the Accused persons.
(c) Whether the AR of the Complainant company was competent to depose on its behalf as CW-1?
31. The submissions advanced under this head are twofold. Firstly, that the Complainant has not made specific assertion in his complaint or the evidence affidavit that CW - 1 is aware of the transaction with the Accused Secondly, that CW - 1, when put under cross- examination has shown himself to be demonstrably unaware of the transaction with the Accused and hence CW - 1 is not a competent witness to depose on behalf of the Complainant company. Reliance has been placed by the defence on the decisions of A.C. Narayan Vs. State of Maharashtra, 2013 (4) JCC 214 (NI) & Rakesh Arora Vs. Hamdard (Wakf) Laboratories, 261(2019) DLT 307 to contend that CW - 1 who is having no knowledge of the transaction with the Accused cannot be examined as a witness in favour of the Complainant company and as such the instant complaint ceases to be maintainable as against the Accused persons.
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32. Perusal of the record reveals that the Complainant has neither in his complaint nor in his evidence affidavit made an assertion as to the knowledge of CW - 1 of the transaction with the Accused. The only document which evidences such an assertion is Exhibit CW - 1/A wherein para 2 states that "resolved that Mr Rajeev Goel, Principal Officer of the company who is well aware of the facts is hereby designated as "authorised person" on behalf of the company". The testimony of CW - 1 exposes the complete lack of knowledge on his part about even the basic aspects of the transaction between the Complainant and the Accused. In the cross-examination of CW - 1 conducted on 13th of January 2020, CW - 1 states that he does not remember the exact year when the transactions first started. Even though he states that the Accused company used to place orders for purchase of the material and that Accused No.2 Mr Rajiv Kapoor used to place orders for supply of the materials, he states that he is not aware whether the orders placed by Accused No.2 were written orders or verbal orders. He also states that he does not specifically know as to upon whom, these orders placed by Accused No.2 were addressed. He denies ever receiving any orders for supply of the material personally. He is also not aware whether any delivery receipt was used to be taken by the Complainant company upon delivery of the material sold to the Accused. He also admits that the invoices raised against the material sold to the Accused company have not been signed or issued by him. He also does not know as to who has signed the said invoices. He then states that the statement of account has not been prepared by him but has been signed by him.
CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 24 of 34CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 25 of 34 CNR. DLCT020226172017 When confronted with statement of account exhibit CW - 1/A - 1 (forming part of Ex. CW1/B (Colly), CW - 1 now admits that the same is an unsigned document. He also claims to be unaware as to who received the cheques in question in the Complainant company and on which date. When specifically questioned as to why the cheques in question, admittedly of different dates were not presented on due dates as written on the cheques, CW - 1 replies that he does not know. He then goes on to say that it may be possible someone from the Accused company might have requested to that effect. He then says that he does not know whether any such request was there are not. He also says that the cheques in question were presented on one single day on the advice of the Accused company however he cannot tell the name as to who on behalf of the Accused company instructed him to present all these cheques on one single day. He also states that he cannot tell any specific person as to upon whom the instruction of presenting the cheques on a single day were conveyed.
33. The aforesaid would show that there are glaring gaps in the knowledge of CW-1 as is reflected in his testimony . He cannot be said to be aware of the transaction with the Accused or having witnessed the transaction as an agent of the payee/holder in due course. The rules applying to the knowledge of a power of attorney would apply with equal force to the knowledge of an Authorised Representative. As both such persons appear and depose on behalf of another, they must be sufficiently aware of the transaction so as to be considered as competent witnesses. In the present case, CW -
CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 25 of 34CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 26 of 34 CNR. DLCT020226172017 1 has proven himself to be woefully unaware of the basic aspects of the transaction with the Accused persons. He is held incompetent to depose on behalf of the Complainant Company. The Complainant Company has chosen not to examine any other witness in support of its case. In these circumstances the instant complaint is held to be not maintainable. The aforesaid ground is decided in favour of the Accused persons and against the Complainant.
34. Now, the case of the Complainant is examined to determine the satisfaction of the ingredients of s.138 of the NI Act.
(d) That a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that account another person from out of that account for the discharge, in whole or in part, of any legally enforceable debt or other liability
35. This condition pertains to the issuance of the cheques itself. It is pertinent to note that the Accused No. 2 in the notice of accusation has admitted his signature on the cheques in question for himself and on behalf of Accused No. 1. Further, the cheques have been drawn on the account of the Accused. This leads to drawing of an inference u/s 139 read with s.118 of the Act, that the cheques were issued in discharge of a legally recoverable debt or other liability.
36. In sum, the defence of the Accused No. 1 & 2 is that the cheques in question were issued as Post dated cheques against good supplied. When goods were found to be defective the same was duly CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 26 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 27 of 34 CNR. DLCT020226172017 communicated to the Complainant it has been further stated that the cheques were originally issued in respect of the goods had become stale and therefore the cheques in question were issued against earlier cheques. It is also been stated that they have made certain payments to the Complainant against the cheques in question by way of other cheques and RTGS. They have admitted liability towards the Complainant however stated that the same is not to the tune of the amount as reflected in the cheques in question. In the statement u/s 313 r/w s.281 Cr.P.C., they contend that the cheques in question were issued blank signed and that material was not supplied with respect to the transaction for which the cheques in question were given.
37. As far as the defence of Accused No. 6 is concerned, she has contended that she was not aware of the present matter or the alleged business dealings between the parties. She has stated that she was sleeping director in the company and she had resigned from the company in the year 2017. No evidence has been led on behalf of Accused No. 6 in proof of the aforesaid facts. Hence, the bare denial of Accused No. 6 would not assume the character of defence evidence. Hence, even though the cheques in question does not bear her signature, the presumption is drawn Against Accused No. 6 on account of vicarious liability in the capacity of Managing Director of the Accused No.1.
38. The defence has contended that Ex. CW1/B are inadmissible documents being unauthenticated and that the Complaint is vague in CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 27 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 28 of 34 CNR. DLCT020226172017 nature without crystallized liability in favour of the Accused. It has also been contended that the Complainant has not been able to show liability accruing in favour of the Accused persons. For this purpose, the Kumar Exports Vs. Sharma Carpets, JT 2009 (1) SC 20, Total Finaelf India Vs. Rashmi Parnami, Crl.A. No. 1239/2011, Kulvinder Singh Vs. Kafeel Ahmed, (2013) 2 AD Delhi 81, Pine Product Industries Vs. R.P. Gupta & Sons, 2007 (94) DRJ 352 are relied upon by the defence.
39. The first and foremost point which arises for consideration is that whether the Accused persons have been able to rebut the presumption drawn against them? Perusal of the record reveals that they have merely paid lip service to the defence and have neither brought forth any documentary evidence or entered into the witness box. It is trite to say that a prosecution under 138 of the Negotiable Instruments Act, 1881 proceeds on reverse burden of proof theory. The burden on the Complainant to prove his case beyond reasonable doubt is aided by way of presumptions which are raised against the Accused persons. The Accused persons may rebut the presumption either on the basis of evidence adduced or by way of circumstances appearing which probabilizes their defence.
40. Even if it is believed that the cheques in question were issued blank signed and that the goods were not supplied by the Complainant/were defective in nature, the Accused persons did not issue stop payment instructions or file any complaint with the requisite authorities for the wrongful retention of the cheques in CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 28 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 29 of 34 CNR. DLCT020226172017 question by the Complainant. The Accused persons also did not care to even demand the cheques in question back from the Complainant or to reply to the legal demand notice sent by the Complainant. Exhibit CW - 1/B contains documents including ledger account, tax invoices and transporters receipt in favour of the Accused. Perusal of the same reveals that the invoices are made exigible to tax. If it was the case of the Defence that no material was supplied under the invoices or that defective material was supplied which was of value less than what is claimed by the Complainant, the Accused persons could have very well preferred appropriate proceedings before the revenue authorities in respect of tax deductions made by the Complainant in respect of goods not sold/ returned as defective. The Accused persons have not acted in a manner a prudent man would have acted in the same situation. As has been rightly contended by the learned counsel for the Complainant, the initial onus is upon the Accused persons to rebut the presumption raised against them, which has not been done in this case. Reliance placed on Avdesh Gupta Vs. Satish Sharma, MANU/DE/1317/2018, Umesh Prasad Vs. Govt. of NCT Delhi, MANU/DE/3135/2019 & the case of Ramesh Goyal Vs. State, MANU/DE/1756/2017
41. Hence, this ingredient stands fulfilled as against the Accused No. 1,2 & 6.
(e) That the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
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42. This requirement is satisfied on a perusal of the cheques in question Ex. CW1/C to Ex. CW1/I and the return memos Ex. CW1/J to Ex. CW1/P. The cheques in question have been presented within the period of their validity. The said ingredient has not been disputed by the defence nor any evidence led to controvert the same and hence, this ingredient stands fulfilled as against the Accused No. 1,2 & 6.
(f) That the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by agreement made with that bank
43. s. 146 of the Negotiable Instruments Act, 1881 provides that the court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The bank return memos Ex. CW1/J to Ex. CW1/P dated 07.08.2017 on record state that the cheques in question have been returned dishonoured for the reason "Exceeds Arrangement". The said ingredient has not been disputed by the defence nor any evidence led to controvert the same and hence, this ingredient stands fulfilled as against the Accused No. 1,2 & 6.
(g) That the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 30 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 31 of 34 CNR. DLCT020226172017 from the bank regarding the return of the cheque as unpaid
44. As regards the service of legal demand notice, the Complainant has sent the same, Ex. CW1/Q to the Accused persons. The original postal receipts in respect of the same are already on record as Ex. CW1/R. However, the Accused persons have denied receiving any legal demand notice in the notice of accusation. Further, in his examination u/s 313 read with s.281 Cr.P.C., the Accused persons have denied receipt of legal demand notice.
45. Perusal of the record reveals that Accused No. 1 & 2 have admitted in the statement u/s 313 r/w 281 Cr.P.C. that the address appearing on the legal demand notice is their correct address. In these circumstances, the presumption of service can be raised against the aforenoted Accused and Accused No. 6 as well. Krishna Texport Vs. Ila Agarwal, 2015 (8) SCC 28 relied upon.
46. section 27 of the General Clauses Act provides that service of any document sent by post, shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document unless the contrary is proved. A like presumption is also carved out under section 114 Indian Evidence Act, 1872 which when applied to communications sent by post, enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. A bare denial by the Accused persons in the notice of accusation and in his examination u/s 313 read with CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 31 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 32 of 34 CNR. DLCT020226172017 s.281 Cr.P.C. would not assume the character of defence evidence, as held in V.S. Yadav v. Reena (supra). Hence, the Accused has not been able to rebut the presumption of service of legal demand notice. Resultantly, the benefit of the presumption accrues in the favour of the Complainant and this ingredient is fulfilled as against the Accused No. 1,2 &6
(h) That the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice
47. It has been contended by the Defence that the factum of delivery of legal demand notice must be specifically averred in the Complaint, else the Complaint would cease to be maintainable. Reliance placed on Kanhaiya Lal Vs. State of U.P., MANU/UP/0876/2010. Even a bare perusal of the said judgement would show that in Para 9 thereof it is held "Thus, for making out of offence under s.138 of the NI Act, some necessary dates are very relevant to be mentioned in the complaint or at least they should be clear from the papers filed with the complaint itself." In the instant case, even though the Complainant has not in so many words averred the date of delivery of legal demand notice, the Complainant has filed postal receipts Ex. CW1/R as well as track reports Ex. CW1/S along with the complaint which certify as to the factum of dispatch and delivery of the legal demand notice. Hence, the reliance placed by the Defence on the aforenoted judgement is misconceived.
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48. In the instant case, the Accused No. 1,2 & 6 have denied receiving legal demand notice, both in the notice of accusation u/s 251 Cr.P.C. and the statement of the Accused u/s 313 read with s.281 Cr.P.C.
49. In C.C.Alavi Haji vs Palapetty Muhammad (2007) 6 SCC 555 it was held by the Hon'ble Supreme Court:
"Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act."
50. Hence, regardless of the said averment in respect of non-receipt of legal notice, it was open to the Accused No. 1,2 & 6 to make the payment due under the cheque within 15 days of service of summons of the instant case. However, the aforenoted Accused persons have failed so to do. Hence, this ingredient stands fulfilled as against the Accused No. 1,2 &6.
Decision
51. Even though all the ingredients of s.138 of the Negotiable CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 33 of 34 CNR. DLCT020226172017 Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 34 of 34 CNR. DLCT020226172017 Instruments Act, 1881 stand satisfied against the Accused persons, the Complaint is not maintainable in its present form as the AR of the Complainant is incompetent to depose on behalf of the Complainant as a witness.
52. Hence, Accused No. 1 Weld Alloy Products Ltd, Accused No. 2 Rajiv Kapoor and Accused No. 6 Ms. Divya Kapoor are all hereby acquitted of the offence u/s 138 of the Negotiable Instruments Act, 1881.
53. File be consigned to record room after due compliance.
VISVESH Digitally signed by VISVESH Date: 2021.03.17 15:48:12 +05'30' ANNOUNCED IN THE OPEN (VISVESH) COURT ON 17.03.2021 MM, NI ACT-06, CENTRAL TIS HAZARI COURTS, DELHI CC No. 11922/2017 Bansal Wire Industries V/s Weld Alloy Products Ltd. Page 34 of 34 CNR. DLCT020226172017
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