Delhi District Court
Sukiran Enterprises Llp vs Aims Sanya Developers Pvt Ltd on 30 June, 2025
CC NI ACT NO.: 111/2020
SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
LTD.
IN THE COURT OF POOJA KUMARI, JMFC (NI ACT),
DIGITAL COURT-02, SOUTH, SAKET COURTS, DELHI
CC NI ACT NO.: 111/2020
CNR No. DLST020145172020
IN THE MATTER OF:
SUKIRAN ENTERPRISES LLP
(Through Authorized Representative
Nitin Jain, Designated partner)
R/o C-5/21 Safdarjang Development Area
New Delhi-110016
....Complainant
Versus
1. AIMS SANYA DEVELOPERS PVT. LTD.
(Through Authorized Representative Shripal, Executive HR)
R/o D-13, Defence Colony
New Delhi -24
2. ROOP KISHORE MADAN
(Managing Director of Aims Sanya Developers Pvt. Ltd.)
R/o D-13, Defence Colony
New Delhi -24
3. SANJAY THUKRAL
(Director of Aims Sanya Developers Pvt. Ltd.)
R/o D-13, Defence Colony
New Delhi -24
.... Accused
Digitally
signed by
POOJA
POOJA KUMARI
Page 1 of 33 KUMARI Date:
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SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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Date of institution : 02-12-2020
Summoned on : 08.02.2021
Offence Charged with : U/s 138 of Negotiable Instrument
Act, 1881
Notice u/s 251 of CrPC : 04.02.2022
Plea of accused : Pleaded not guilty
Date of judgment : 30.06.2025
Final order : Conviction
JUDGMENT
1. Vide this judgement, this court shall dispose of the aforementioned complaint case for an offence u/s 138 Negotiable instrument Act, 1881 (hereinafter referred as NI Act) against abovementioned accused persons.
Complainant Case in brief:
2. Complainant is a limited liability partnership firm, being represented by one of the duly authorized designated partner Nitin Jain. Accused no.1 is a registered company engaged in building and development of commercial spaces. Accused no.2 is the managing director of the accused no.1 and Accused no.3 is a director of accused no.1. Accused persons informed the complainant that they are developing a commercial complex namely 'Landmark Towers'. Pursuant to that, a Space Buyer Agreement dated 16.03.2011 was been entered into between the Accused No.1 and Complainant allotting Unit No.815, admeasuring builder super area 1106.13 sq. ft. on the at 8th Floor in the Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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'Tower-B' part of the said commercial complex i.e. Landmark Towers at the basic price of Rs.8,903/ per sq. ft. under the Assured Return Plan (ARP-II). As per the said Space Buyer Agreement dated 16.03.2011, the Complainant paid an amount of Rs.95,96,388/- (Rupees Ninety-Five Lakhs Ninety-Six Thousand Three Hundred and Eighty- Eight) inclusive of service tax as the booking amount for the allotment of the said unit. As per ARP Agreement, the accused persons had agreed to pay an amount of Rs.88.05 per sq. ft. per month w.e.f. the date of the payment till the date of offer of possession of the said unit by the accused persons. The accused persons kept paying the assured return upto March, 2016. The Complainant approached the accused persons for the payment of the balance amount under the Assured Return Plan (ARP) and for possession of the said allotted unit, however, the accused persons had expressed their inability to handover the possession and agreed to settle the account of the Complainant by returning the principal amount with assured return.
3. Therefore, in discharge of part liability, three cheques bearing No. 150176 dated 25.06.2020 for an amount of Rs.93,55,480/-, bearing no. 150177 dated 25.06.2020 for an amount of Rs. 13,14,832/- and bearing no. 150178 dated 25.06.2020 for an amount of Rs.7,01,244/- all drawn on Central Bank of India, Lajpat Nagar, New Delhi Branch (hereinafter referred as Cheques in question) were issued Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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by accused. Upon presentation of said Cheques in question for encashment, the said cheques were dishonoured for the reason "Kindly Contact Drawer Drawee Bank' and "Funds Insufficient vide Return Memos dated 29.08.2020. Again, cheques in question were presented for encashment, but again the cheques in question were dishonoured and returned for the reason "Kindly Contact Drawer Drawee Bank" and "Signature not as per mandate" vide Return Memos dated 09.09.2020. On the assurance of the accused, complainant has again presented the cheques in question for encashment, but the cheque bearing Nos.150176 and 150177 were dishonoured and returned for the reason "Refer to Drawer" vide Cheque return memo dated 23.09.2020 and the cheque bearing no.150178 was dishonoured and returned for the reason "Signature not as Mandate" vide cheque memo return dated 23.09.2020.
Therefore, complainant sent three separate legal demand notices dated 19.10.2020 for abovementioned three cheques, through speed post, calling upon accused to pay the amount mentioned in cheques in question which was duly received by accused on 20.10.2020. Since, accused failed to pay the amount of the cheques in question within 15 days of receiving of legal demand notices, complainant filed the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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the "NI Act").
4. Upon prima facie consideration of the pre-summoning evidences, the accused persons were summoned vide order dated 08.02.2021.
5. After appearance of all accused persons, parties intended to settle the matter and requested the court for sending the case before mediation center, and on request of parties, matter was referred to mediation center. However, matter returned back unsettled. Thereafter, accusations under Section 251, Cr.P.C. was explained to all accused persons in vernacular language on 04.02.2022, to which they pleaded not guilty and claimed trial. At this stage, accused no.3 admitted the signatures on the cheques in question. Accused persons have also admitted the address mentioned on legal demand notice as correct, but denied the receiving of same. All accused persons have taken the plea of defence that the cheques in question were not issued for encashment and as final cheques. It was further stated that cheques in question were issued in good faith for the finalization of the settlement and it was agreed that after finalization, cheques in question shall be returned to accused company but complainant did not return the cheques in question and misused the same. Thus, accused persons denied liability Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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towards the complainant qua the cheques in question.
Complainant Evidence:
6. During post-summoning evidence stage, complainant through its authorized representative (hereinafter referred as AR) relied on the evidence filed by way of affidavit during pre-summoning stage and also filed additional documents by way of additional evidence by way of affidavit on 08.08.2022.
Complainant has relied on following documents to prove his case: -
S.No. Name of Document Exhibit A copy of the agreement dated Ex. CW-1/A
1.
16.03.2011 (OSR)
Original cheque bearing no.
2. Ex. CW-1/B
150176 dated 25.6.2020
Original cheque bearing no.
3. Ex. CW-1/C
150177 dated 25.06.2020
Original cheque bearing no.
4. Ex. CW-1/D
150178 dated 25.6.2020
Original three cheque return Ex. CW-1/E,
5. Ex. CW-1/F
memos dated 29.8.2020
and Ex.
Digitally
signed by
POOJA
POOJA KUMARI
KUMARI Date:
2025.06.30
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CW-1/G Ex. CW-
Original three cheque return 1/H, Ex.
6. memos dated 9.9.2020 CW-1/I and Ex. CW-1/J Ex. CW-
Original three cheque return 1/K, Ex.
7. memos dated 23.9.2020 CW-1/L and Ex. CW-1/M Office copies of the three legal Ex. CW-1/N
8. notices dated 19.10.2020 (Colly.) Ex. CW-
Postal receipts of the notices sent 1/O, Ex.
9. to the three accused persons CW-1/P and Ex. CW-1/Q Delivery/ tracking reports of the notices, master data of Accused Ex. CW-1/R
10. no. I and Certificate under Section (Colly.) 65B of the Indian Evidence Act, 1872 Copy of Certificate of Incorporation of Sukiran Ex. CW-1/1
11. Enterprises Private Limited issued (OSR) under the provisions of the Companies Act, 1956 Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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Copy of certificate of registration Ex. CW-1/2
12. issued .by MCA on conversion of (OSR) Company to LLP Certificate of Registration of notice consequent upon change of Ex. CW-1/3
13. registered office from one State to (OSR) another State of the Complainant firm Copy of LLP Agreement dated Ex. CW-1/4
14. 14.3.2017 of the Complainant (OSR) Firm A supplementary LLP agreement dated 10.8.2020 executed to Ex. CW-1/5
15. change the address of the (OSR) Complainant firm Certificate under section 65 B of
16. Ex. CW-1/6 the Indian Evidence Act, 1872 The original authorization given in
17. favour of AR by the Complainant Ex. CW-1/7 firm/Designated partner Certified copy of the Annual Reports of Accused No. 1 Ex. CW-1/8
18. company signed by the Accused (OSR) No. 2 and 3 for the year ending 2019 Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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7. An application u/s 145(2) of NI Act was filed on behalf of accused persons and same was allowed vide order dated
19.05.2022. AR of complainant was called for cross- examination, however even after giving multiple opportunities, accused persons failed to cross-examine. The opportunity for cross-examination was closed. Thereafter, CE was closed vide order dated 13.09.2023.
8. After that, Statement of accused persons under Section 313 of CrPC read with Section 281 of Cr.P.C was recorded on 12.12.2023, 04.01.2024 and 06.02.2024, whereby the entire incriminating evidences were put to them. At this stage, the AR of the accused no.1 has stated as follows:
"Cheques in question belongs to accused no. 1 company. Cheques are signed by Mr. Sanjay Thukral on behalf of company. I am not aware about the purpose for which these cheques in question Ex. CW- 1/B, Ex. CW-1/C and Ex. CW-1/D were issued. The address of Accused no. 1 company mentioned on legal notice Ex. CW-1/N (colly) is correct but I am not aware whether legal demand notice has been received or not. I am not aware of liability of company regarding those cheques in question, why they remained unpaid. I do not want to say anything else."
The accused no.2 has stated as follows:
"Cheques in question belongs to accused no. 1 company. Cheques are not signed by me. Cheques in question were issued without my knowledge and handed over to the complainant. I am not aware of space buyer agreement dated16.03.2011. The Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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certified copy of annual records i.e. Ex. CW-1/8 bears my signature. I do not want to say anything else."
The accused no.3 has stated as follows:
"Cheques in question belongs to accused no. 1 company. Cheques are signed by me as being the authorized signatory. It is the practice of accused no. 1 company that cheques used to issue under the signature of 02 person, however, in this matter, cheques in question were issued only under my signature because cheques in question were given in good faith to the complainant with the direction that cheques in question should be presented only after finalization of the amount. After the finalization of amount, complainant was directed to take signature of other person also on cheques in question. Company do not have liability of cheque amount. Ex. CW-1/A is not in my knowledge and same is also not been signed be me. I have not received any legal demand notice on behalf of complainant, however, address mentioned at legal demand notice is my company address. Ex. CW-1/8 (OSR) at point A to Y bears my signature. I do not want to say anything else."
Defence Evidence:
9. To substantiate the plea of defence, accused filed an application u/s 315 Cr.P.C for the examining himself on oath and list of witnesses to examine witnesses. Accused examined following witnesses in support of their defence, which are as follows:
S.No Name of Witness Marked as
1. Sanjay Thukral DW-1
Digitally
signed by
POOJA
POOJA KUMARI
KUMARI Date:
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2. Ranjan Kumar Samanta DW-2
3. Resham Singh DW-3 Documents/evidences placed on record in support of defence are as follows:
Sr. Nature/name of Marked as
No documents
1 Appointment letter dated Ex. DW-
16.08.2010 issued in favor
3/X1 (OSR)
of DW-3 by accused no. 1
10. Further, DE was closed vide order dated 20.03.2025.
Thereafter, case was fixed for final arguments.
11. Final arguments were advanced by both the parties and heard.
Submissions Of Ld. Counsel On Behalf Of Complainant
12. Ld. Counsel for the complainant submitted that the cheques in question were issued in discharge of part existing liability. It was submitted that being the holder of the cheques in question, presumption of the cheques in question having been issued in discharge of debt or other liability arises in favour of the complainant in terms of Section 118(a) read with Section 139 of NI Act. He further argued that complainant has adduced documents which are duly Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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exhibited as Ex. CW-1/A to Ex. CW1/R and Ex. CW-1/1 to Ex. CW1/8 to prove his case and liability of the accused against the cheques in question. Accused had duly admitted issuance of cheques, receiving of investment amount, signature on Cheques in question, return memos & execution space buyer agreement, which proves that accused had issued the cheques in question in favour of complainant for repayment of dues along with interest. Accused has miserably failed to lead any evidence to rebut the case of complainant. Also submitted that since, the accused failed to cross-examine the complainant, the averments of complainant remained unrebutted, hence proved. Thus, complainant has proved the existence of legal debt by leading cogent evidences.
He argued that the fact that the complainant received no payment within 15 days of the service of the legal demand notice coupled with the admission of the accused, duly proves all the ingredients of the offence under Section 138 NI Act. Thus, submitted that since all the ingredients laid down under Section 138 NI Act are fulfilled, the accused is liable to be convicted.
Submissions Of Ld. Counsel On Behalf Of Accused
13. Ld. counsel for accused has submitted that accused is not liable for the cheques in question on the ground that accused had not handed over the cheques in question for the Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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payment. It is further submitted that Section 138 of the Act specifically contains the reasons which should be indicated by the drawer's bank to trigger the first step in a series of steps. The specific reason for dishonor has been indicated as; a) Insufficient funds b) Exceeds the amount arranged, however the Hon'ble Supreme Court of India has included some other reasons also to mean insufficient funds for example 'account closed'. Ld. counsel for accused further submitted that with regard to the present complaint, the cheques were dishonoured mainly for the fact that the cheques were required to be signed by two persons simultaneously on behalf of the company as if it is a joint account, while it is an admitted position that the cheques have only been signed by accused no. 2. Ld. counsel argued that the consistent stand of the accused persons right through the trial has been that the cheques were handed over to the representatives of Aditya Birla Finance Private Limited as security till a final settlement agreement is signed and executed between the parties. The complainant on the other hand has not averred as to how as to how got the possession of the said cheques especially during the period of lockdown. Further, how the present cheques reflected part payment and what further steps were taken by him to recover their alleged dues has not been spelt out. Ld. counsel contended that the complaint is extremely sketchy and stand on a very weak ground due to want of stipulated Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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averments which are essential in such a criminal complaint as well as the core reason of the dishonour of the cheques not being the enumerated reasons in the section itself. Further argued that if the section itself is not legally triggerable then the entire edifice of the complaint falls to the ground. It was submitted by the Ld. counsel for accused that since the cheques has been signed by only of one of the authorized signatories, the cheques are incomplete and could not have been deposited by the complainant and he is thus estopped from prosecuting the accused persons under Section 138 of the Act. Ld. counsel referred the judgment of Hon'ble Karnataka High Court in "M/S Conserve Ready Misx Concrete Vs. M/S Subh Laabh Minerals (Crl.P.No. 102099/2021)" and judgment of the Hon'ble Supreme Court in "Aparna A. Shah Vs. Sheth Developers P. Ltd. & Anr [(2013) 8 Scc 71]" to fortify his contentions.
14. Ld. Counsel for accused has further argued that the Ministry of Corporate Affairs data filed by complainant shows accused nos. 2 and 3 as Directors. Further submitted that even the Annual Return filed by Accused No. 1 company shows accused nos. 2 and 3 as Directors, therefore the evidence on record is contrary to the plea raised by the complainant that the accused no. 2 is the managing director. Ld. Counsel further pointed that accused no. 2 in his statement under Section 313 of Criminal Procedure Code, 1973 dated 06.02.2024 has stated that cheques were not Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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signed by him and the cheques were issued without his knowledge and handed over to the complainant. Ld. counsel referred jugments of Hon'ble Supreme Court in "Bijoy Kumar Moni Vs. Paresh Manna & Anr. (2024 Scc Online Sc 3833) and "Susela Padmavathy Amma Vs. Bharti Airtel Limited (2024 Scc Online Sc 311)" against his submissions.
15. Ld. Counsel for accused persons further submitted that another aspect which goes to the root of the trial is the fact that the complainant has not got his post summoning evidence by affidavit tendered in Court and thus did not enter the witness box. This amounts to gross error committed by the complainant. The argument of the complainant that despite several opportunities the accused persons failed to cross examine him cannot and would not absolve the complainant of its own duty to tender his evidence by way of affidavit before the Hon'ble Court and testify with regard to the averments and relied upon exhibits after taking oath. The further argument of the complainant that such entering in the witness box is not mandatory is also against the tenets of post summoning evidence. Further no case law has been cited by the complainant to buttress this shaky argument Thus, Ld. Counsel for accused submitted that since accused has successfully rebutted the presumption and in view of Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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above discussion all the three accused persons deserve to be acquitted and the present complaint under Section 138 of the Act requires to be dismissed.
Counter Submissions Of Ld. Counsel On Behalf Of Complainant
16. The Ld. Counsel for the complainant has rebutted the arguments advanced by the Ld. Counsel for the accused and submitted that the accused has categorically admitted to having received the investment amount, to having paid interest to the complainant against such investment, and to having handed over the cheques in question, including admitting his signatures thereon. The accused has also admitted the address mentioned in the legal demand notice to be correct. The Ld. Counsel further submitted that, in accordance with Section 149 of the Companies Act, 2013, a private limited company must have a minimum of two directors on its Board for lawful operation. It has been submitted that Accused No. 2 and Accused No. 3 are the only directors of Accused No. 1 company, and the company could not function with only one director. It was further submitted that Accused No. 2 preferred an appeal before the Hon'ble High Court of Delhi under Section 482 Cr.P.C., vide Crl. M.C. No. 1883/2022, wherein he has described himself as the Managing Director of Accused No. 1 company. Along with the complainant's reply in the said Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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proceedings, an order dated 12.02.2019, passed in Company Appeal (AT) (Insolvency) No. 43 of 2019 by the Hon'ble NCLAT, was filed, which also acknowledges Accused No. 2 as the Managing Director of Accused No. 1 company. It was also submitted that Accused No. 2 is not only the Managing Director but also holds 49% of the paid-up share capital of Accused No. 1 company. Accordingly, it was argued that Accused No. 2, being the Managing Director and substantial shareholder, is responsible for the day-to-
day affairs and management of Accused No. 1 company and is, therefore, vicariously liable for the acts committed by the company. The Ld. Counsel further submitted that the complainant has led evidence and proved all documents on record, which have remained unrebutted as the accused persons did not cross-examine the complainant. Consequently, the evidence stands unchallenged and fully supports the complainant's case. It was also pointed out that the accused persons have taken inconsistent stands throughout the proceedings, having shifted their defence multiple times. Ld. Counsel for the complainant concluded that the accused has failed to discharge the burden of establishing his defence and, therefore, is liable to be convicted in the present case.
Ld. counsel for complainant has referred following precedents in support of his contentions:
A) K.K. Ahuja vs V.K. Vora, (2009) 10 SCC 48 Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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B) Ashutosh Ashok Parasrampuriya vs. Gharrkul Industries, 2021 SCC Online 915 C) S.M.S. Pharmaceuticals vs Neeta Bhalla 2005 (8) SCC 89 D) S.P. Mani and Mohan Dairy vs. Dr. Snehalatha Elangovan (2023) 10 SCC 685 - Para 30-31, 51-58.
Discussions, Analysis And Findings:
17. Before delving into the facts of the present case, it is relevant to discuss the law applicable to the present proceedings. To bring home a liability under Section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, which are:
"(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.
(c) The said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
(d) The aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(e) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of Digitally signed by POOJA POOJA KUMARI KUMARI Date:Page 18 of 33 2025.06.30
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demand."
18. Once the complainant establishes the foundational elements as outlined in the preceding paragraph, and the execution of the cheque in question is admitted by the accused, a factual basis is thereby established to invoke the statutory presumption that the cheque was issued in discharge, either wholly or in part, of a debt or other legally enforceable liability. This presumption arises by virtue of Section 118(a) read in conjunction with Section 139 of the Negotiable Instruments Act, 1881. These provisions contain a reverse onus clause, which implies that, unless the contrary is proved, it shall be presumed that the cheque was drawn by the accused for consideration and was received by the complainant in satisfaction of a debt or liability. In this regard, the Hon'ble Supreme Court of India, in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197, has held that once the accused admits the signature on the cheque in question, the court is legally obligated to raise the presumption under Section 139 of the NI Act.
19. In the present case, in order to discharge initial burden to prove the abovementioned ingredients, complainant relied upon evidences by way of affidavit of its AR. He has also placed the documents mentioned in abovementioned para 6 to prove his cases u/s 138 of NI Act.
20. In the cases at hand, since the complainant has discharged POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.06.30 Page 19 of 33 17:42:01 +0530 CC NI ACT NO.: 111/2020 SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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initial burden on the basis of the documents mentioned hereinbefore and as per above discussions, all the other ingredients of the offence under Section 138 of the NI Act stands successfully established. The onus is now upon the accused persons to rebut the mandatory presumptions under the NI Act by raising a probable defence to show that they are not liable qua the cheques in question.
21. After perusal of record and hearing Ld. counsels following points have emerged for consideration.
A) Whether the present complaint case is not maintainable on the ground that the reason for dishonor of the cheques in question does not fall under the categories enumerated u/s 138 of the NI Act?
B) Whether accused persons have able to raise any probable defence in their favour? C) Whether accused no.2 is not vicariously liable for the offence u/s 138 NI Act for not being the signatory to the cheques in question?
22. With regard to point A) of Para 21, the learned counsel for the accused has raised a technical objection, contending that the cheques in question were dishonoured for the reasons "Refer to Drawer" and "Signature not as per Mandate." It is submitted that these grounds do not attract the offence under Section 138 of the Negotiable Instruments Act, 1881 Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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(hereinafter referred to as the "NI Act"), as the cheques were allegedly incomplete, bearing the signature of only Accused No. 3. In support of this contention, DW-1 (Accused No. 3) entered the witness box and deposed that the cheques were required to bear the signatures of both directors for encashment. Reliance has also been placed on certain judicial precedents by the learned defence counsel to substantiate this argument.
The rulings referred by the Ld. Counsel for accused is not applicable for the present case as the facts of case M/S Conserve Ready Mix Concrete vs M/S Subh Laabh Minerals is clearly distinguishable, as the cheques in that case was signed by the partner of firm who had resigned before the issuance of the cheque. Whereas in the present case, the cheques in question are duly signed by one of the authorised signatories. Further, Ld. Counsel for accused has relied on judgement of Hon'ble Supreme Court in "Aparna A. Shah vs M/S Sheth Developers P. Ltd. & Anr.", however the case deals about the joint account and non- signatory of the joint account cannot be held liable. The relevant para to said ruling is as follows:
"We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which POOJA KUMARI Digitally signed by POOJA KUMARI Page 21 of 33 Date: 2025.06.30 17:42:06 +0530 CC NI ACT NO.: 111/2020 SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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would have no application in the case on hand. The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case "except in case of Section 141 of the N.I. Act" be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act."
23.(emphasis supplied) Thus, the Ld. Counsel has overlooked the above highlighted portion wherein the Hon'ble court has clearly stipulated that section 141 of NI Act is an exception to said principle. The present case is not about joint account of individuals but the drawer of the cheque is the accused no.1 i.e., a company and other accused is being impleaded vicariously in light of section 141 of the NI Act.
Further, this Court is of the considered view that the submissions advanced by the learned counsel for the accused are not tenable in law and are contrary to the settled legal position as laid down by the Hon'ble Courts. The judiciary has, through purposive interpretation, expanded the scope of reasons for dishonour under Section 138 of the NI Act, in line with the legislative intent.
To address whether the statutory presumptions under POOJA KUMARI Digitally signed by POOJA Page 22 of 33 KUMARI Date: 2025.06.30 17:42:09 +0530 CC NI ACT NO.: 111/2020 SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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Section 118(a) and Section 139 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act") are applicable in such circumstances, it is imperative to understand the scope and meaning of the term "holder" of the cheque.
Section 139 of the NI Act prescribe as follows:
"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."
Section 8 of the NI Act defines "holder" as:
"The 'holder' of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto."
From a plain reading of the above provisions makes it evident that a person who is in possession of the cheque and is legally entitled to receive the amount thereunder qualifies as a "holder in due course." Accordingly, the complainant, being in possession of the cheques in question and asserting that they were issued in discharge of a legally enforceable debt or liability, is prima facie entitled to the statutory presumption under Section 139 of the NI Act, 1881. Significantly, the Hon'ble Supreme Court, in M/s Laxmi Dyechem v. State of Gujarat & Ors., (2012) 13 SCC 375, categorically held that dishonor of a cheque on the grounds Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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such as "signature does not match" or "image not found"-- which effectively pertain to a mismatch with specimen signatures--would still fall within the purview of dishonor under Section 138 of the NI Act. The Court clarified that such technical reasons do not preclude the operation of the statutory presumptions under Sections 118(a) and 139 of the Act. Furthermore, the use of the phrase "unless the contrary is proved" in Section 139 indicates that the presumption is rebuttable in nature. However, until such rebuttal is successfully raised by the accused, the presumption continues to operate in favour of the complainant.
Therefore, in present case despite the signature of one of the authorized signatories of the drawer of the cheques on the cheque in question, the statutory presumption under Section 118(a) read with Section 139 of the NI Act remains intact, unless and until the accused is able to rebut the same on preponderance of probabilities in light of ruling of hon'ble Supreme Court titled as "Basalingappa vs Mudibasappa 2019 (5) SCC 418".
24. Now for Point B) of the Para 21, the defence taken by the accused, that the cheques in question were not issued for the purpose of encashment but merely as a gesture to instil confidence in the investors/complainant, is wholly untenable and devoid of legal merit. From the material placed on record, it is an admitted position that there existed Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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a "Space Buyer Agreement" between Accused No.1 and the complainant. It is further an undisputed fact that the complainant had been receiving periodic returns against the payments made, in accordance with the terms of the assured return plan (ARP). However, due to certain unavoidable circumstances, the promised returns ceased to be paid after the year 2016. It is also admitted fact that the allotment of the designated unit was also not effectuated. Consequently, the complainant/investors, demanded a refund of the amounts so invested along with pending returns. Pursuant to negotiations arising out of this demand, the cheques in question were handed over to the complainant. These facts, viewed in totality, clearly establish that on the date of issuance of the cheques, there existed a legally enforceable debt or liability, squarely falling within the ambit of Section 138 of the Negotiable Instruments Act, 1881.
The defence raised by the accused--that the cheques were issued merely for the purpose of assurance and not for presentation--is devoid of substance in law. It is a well- settled legal principle that Mens rea has no application under Section 138 of the Act. The provision mandates a strict compliance with the statutory ingredients, and once the essential elements are satisfied, the offence stands constituted, irrespective of the intention behind issuance of the cheque.
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Even assuming, for the sake of argument, that the defence of the accused is to be considered as a plausible explanation, the accused has failed to bring on record any cogent material to substantiate that the complainant had agreed that the cheques were not to be presented for payment. There is no documentary evidence or written communication indicating any such understanding or agreement between the parties. Notably, there is also no material placed on record to show that the cheques were issued as security, or that the complainant had acquiesced to withholding their presentation pending settlement discussions.
Further, it is pertinent to note that the cheques were duly dated and were valid for a period of three months. During this validity period, the cheques were presented for encashment on three separate occasions. Despite this, the accused did not issue any written communication to the complainant objecting to the presentation or reiterating that the cheques were only meant as a token of assurance. Such conduct clearly militates against the version now sought to be advanced by the accused.
The cheques in question were issued in the natural and ordinary course of business to discharge a liability arising out of the investment transaction. The defence plea, that the cheques were not intended for actual payment, is thus implausible, unsubstantiated, and cannot be sustained either POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.06.30 17:42:22 +0530 Page 26 of 33 CC NI ACT NO.: 111/2020 SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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in fact or in law.
25. In view of the foregoing discussion and upon careful appreciation of the evidence and material placed on record, this Court is of the considered opinion that accused persons have failed to rebut the mandatory presumption existing against the cheques in question. On the other side, the complainant has successfully established, beyond reasonable doubt, the existence of a legally enforceable debt or liability on the part of the accused persons in respect of the cheques in question.
26. With respect to Point C) of Para 21, Ld. Counsel for accused has contended that Accused No. 2 cannot be held vicariously liable under Section 141 of NI Act. It has been argued that Accused No. 2 is neither the signatory of the cheques in question nor he was aware of its issuance. To substantiate this contention, reliance has been placed upon the master data of Accused No. 1 company, as maintained by the Ministry of Corporate Affairs, and the Annual Reports of Accused No. 1 for the financial year ending 2019, which were admittedly signed by Accused No. 2 and Accused No.- 3. Further reliance has been placed by the learned defence counsel on the judgments of the Hon'ble Supreme Court in Bijoy Kumar Moni v. Paresh Manna, 2024 INSC 1024, and Susela Padmavathy Amma v. M/s. Bharti Airtel Limited, 2024 INSC 206, to assert that mere POOJA KUMARI Digitally signed by POOJA KUMARI Page 27 of 33 Date: 2025.06.30 17:42:25 +0530 CC NI ACT NO.: 111/2020 SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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designation as a director is insufficient for vicarious liability in the absence of specific averments and evidence demonstrating control over day-to-day affairs. Before deciding the above contentions, it is essential to consider the relevant statutory framework under Section 141 of the NI Act, which reads as follows:
" Section 141. Offences by companies:
(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]"
(2) Notwithstanding anything contained in sub-
section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or POOJA KUMARI Digitally signed by POOJA KUMARI Date: 2025.06.30 Page 28 of 33 17:42:28 +0530 CC NI ACT NO.: 111/2020 SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. -- For the purposes of this section, --
(a) "company" means anybody corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm."
Thus, in order to attract vicarious liability under Section 141 of NI Act, it must be established that the accused was in charge of and responsible for the conduct of the business of the company at the time the offence was committed. Further, the burden of proving the exception -- i.e., that the offence was committed without the accused's knowledge or despite exercising due diligence -- lies on the accused. However, there is over-riding provision in the subsection (2) of 141 of NI Act, i.e. the person shall be considered deemed liable if it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of that person. Also, the Hon'ble Supreme Court in "HDFC Bank Ltd. v. State of Maharashtra 2025 INSC 759 has reaffirmed the position that specific averments in the complaint to the effect that the accused was in charge of and responsible for the conduct of business are sufficient to POOJA KUMARI Digitally signed by POOJA KUMARI Page 29 of 33 Date: 2025.06.30 17:42:31 +0530 CC NI ACT NO.: 111/2020 SUKIRAN ENTERPRISES LLP vs. AIMS SANYA DEVELOPERS PVT.
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proceed against such accused. The Hon'ble Supreme Court has held as follows:
"37. Recently, this Court in S.P. Mani and Mohan Dairy vs. Dr. Snehalatha Elangovan, (2023) 10 SCC 685, after reiterating the principle that it was not necessary to reproduce the language of Section 141 verbatim in the complaint further reiterated the holding in K.K.Ahuja vs. V.K. Vora and Another, (2009) 10 SCC 48. In K.K. Ahuja (supra), it was held that insofar as the director was concerned, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company was enough and no further averment was necessary though some particulars will be desirable. Thereafter, this Court in S.P. Mani (supra), in para 58.2 of the judgment concluded as under: -
"58.2. The complainant is supposed to know only generally as to who were in charge of the affairs of the company or firm, as the case may be. The other administrative matters would be within the special knowledge of the company or the firm and those who are in charge of it. In such circumstances, the complainant is expected to allege that the persons named in the complaint are in charge of the affairs of the company/firm. It is only the Directors of the company or the partners of the firm, as the case may be, who have the special knowledge about the role they had played in the company or the partners in a firm to show before the Court that at the relevant point of time they were not in charge of the affairs of the company. Advertence to Sections 138 and Section 141, respectively, of the NI Act shows that on the other elements of an offence under Section 138 being satisfied, the burden is on the Board of Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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Directors or the officers in charge of the affairs of the company/partners of a firm to show that they were not liable to be convicted. The existence of any special circumstance that makes them not liable is something that is peculiarly within their knowledge and it is for them to establish at the trial to show that at the relevant time they were not in charge of the affairs of the company or the firm."
In the present case, complainant has categorically averred that Accused No. 2 is the Managing Director of the accused company and is actively involved in the conduct of its business. Certified copy of the Annual Reports of Accused No. 1 company which bears signatures of the Accused No. 2 and 3 for the year ending 2019 has also been placed on record. The complainant further relied on the contents of an application under Section 311 CrPC dated 22.11.2023 filed by the accused, wherein Accused No. 2 has been referred to as the Managing Director of the accused company.
In light of the averments in complaint and annual report i.e., Ex. CW-1/8, complainant has duly fulfilled the needful for considering accused no.2 responsible for the affairs of the accused company.
Now, as per mandate of 141 of NI Act, accused no.2 need to prove that he was not involved in day-to-day affairs of the accused company being the director and he is not managing director of the company.
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Perusal of the record reveals that in the application under Section 311 of the CrPC dated 22.11.2023, filed by the accused, Accused No.2 has been described as the Managing Director of the accused company. Furthermore, the annual reports filed as Ex. CW-1/8 i.e., at page no.40 of post- summoning evidence dated 07.08.2022, reflect that Accused No.2 holds a 49% shareholding in the accused company. These reports also bear the signatures of Accused No.2 in the capacity of a director. Also, DW-3 has admitted during cross-examination dated 21.11.2024 that the accused no.2 is the managing director of the company.
It is further observed that during the stage of framing of notice, Accused No.2 adopted the same line of defence as the other co-accused. However, it was only at the stage of recording his statement under Section 313 of the CrPC that Accused No.2 took the plea that he was unaware of the purpose behind the issuance of the cheques in question. Despite taking such a plea, Accused No.2 has failed to place on record any material that would establish, even on the preponderance of probabilities, that he was not in charge of or responsible for the conduct of the business of the accused company (Accused No.1). On the contrary, there exists sufficient material on record indicating that Accused No.2 was a key managerial person in the company. This inference is further supported by the fact that the cheques in question required the signatures of Accused No.2 for clearance.
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In view of the foregoing, this Court is of the considered opinion that Accused No.2 is vicariously liable for the acts of Accused No.1 under Section 141 of the Negotiable Instruments Act, 1881.
27. Since the ingredients which are pivotal to attract liability under Section 138 NI Act has been proved by the complainant, accordingly, offence of dishonor of the cheques in question under the said Section is made out.
FINAL ORDER
28. In view of the aforesaid discussions, this court finds all three accused persons guilty of the offence. Therefore, accused no.1 i.e., Aims Sanya Developers Pvt. Ltd., Accused no.2 Roop Kishore Madan and Accused no.3 Sanjay Thukral are convicted for offence under Section 138 Negotiable Instruments Act, 1881 accordingly.
29. This judgment contains 33 pages and each page has been signed by the Presiding Officer. Digitally signed by POOJA POOJA KUMARI KUMARI Date:
Announced in open Court on 30.06.2025 2025.06.30 17:42:44 +0530 (POOJA KUMARI) JMFC (NI ACT), DIGITAL COURT-02, SOUTH DISTRICT, SAKET COURTS, DELHI
30.06.2025 Digitally signed by POOJA POOJA KUMARI KUMARI Date:
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