Delhi District Court
The Ashok Hotel , A Unit Of Itdc vs M/S Striker Beverages Pvt. Ltd on 10 September, 2025
IN THE COURT OF SH. SHIVAM GUPTA. : LD. JUDICIAL
MAGISTRATE FIRST CLASS-NI ACT, DIGITAL COURT-02
NEW DELHI DISTRICT, PATIALA HOUSE COURTS COMPLEX:
NEW DELHI
The Ashok Hotel, a unit of ITDC
Versus
M/s Striker Beverages Pvt. Ltd.
CC No. 7334-2021
U/S 138 Negotiable Instruments Act, 1881
1. CNR number : DLND02-020470-2021
2. Name of the complainant : The Ashok Hotel (A Unit of ITDC)
Diplomatic Enclave 50B,
Chanakyapuri, New Delhi-110021
3. Name of the accused, parentage : 1. M/s Striker Beverages Pvt. Ltd.
and residential address D-832, Basement, New Friends
Colony, New Delhi-110025
Email: [email protected]
2. Parag Maghanee
Director of M/s Striker Beverages
Pvt. Ltd.
Email: [email protected]
3. Kunal Gaur
Director of M/s Striker Beverages
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
1
Digitally signed
SHIVAM by SHIVAM
GUPTA
GUPTA Date: 2025.09.10
06:29:52 +0530
Pvt. Ltd.
4. Offence complained of or proved : U/S 138 of Negotiable Instruments
Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Acquittal
7. Date of judgment/order : 10.09.2025
Date of institution: 16.12.2021
Date of reserving order: 04.09.2025
Date of judgment: 10.09.2025
ARGUING COUNSELS
For the Complainant : Sh. Abhishek Mishra.
For the Accused : Sh. Ayush Jain.
JUDGMENT
1. Vide this Judgment, this court shall dispose of the present complaint filed by The Ashok Hotel, a unit of ITDC (hereinafter referred to as 'the complainant') against M/s Striker Beverages Pvt. Ltd. (hereinafter referred to as 'the accused company/accused number 1'), Sh. Parag Meghanee (hereinafter referred to as 'accused number 2') and Sh. Kunal Gaur (hereinafter referred to as 'accused number 3') U/S 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act').
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
2 Digitally signedSHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:29:56 +0530 Brief facts:
2. It is the case of the complainant that the accused and the complainant entered into a license agreement for the premises of the complainant. The license agreement which is dated 23.07.2019 was valid for 5 years commencing from 29.06.2019 to 28.06.2024. That the accused defaulted in paying the license fee. That against the above said liability of the accused, the complainant presented the post dated cheque which was issued by the accused, which was dishonoured.
DETAILS OF THE CHEQUES IN QUESTION:
Cheque Cheque Date of the Cheque Date of Reasons number amount cheque drawn on return for memo dishonour 000013 Rs. 01.04.2020 HDFC 01.05.2020 Payment 33,85,800/- Bank stopped by the drawer The complainant presented the cheque in question in its bank account. The complainant, after receipt of the said dishonoured cheque, sent a legal notice dated 01.06.2021 in writing through his counsel via speed post. The accused persons had failed to pay the cheque amount to the complainant within stipulated time of 15 days, hence this complaint U/S 138/142 NI Act.
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.3 Digitally signed
SHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:00 +0530 Proceedings before the Court:
3. The complaint was received by assignment in this Court. After perusing the complaint and hearing the arguments of the complainant on the point of summoning of the accused, prima facie it appeared that the offence U/S 138 NI Act, has been made out. Hence, cognizance of the offence U/S 138 NI Act was taken against the accused and summons were issued to the accused persons.
4. Notice U/S 251 Cr.P.C. was framed against the accused person on 24.05.2025, to which the accused pleaded not guilty and claimed trial. Thereafter, considering the defence stated at the time of framing of notice by the accused, and no objection taken by the Ld. Counsel for the complainant this court decided to allow cross examination of the complainant as per 145(2) of the NI Act, and the case was tried as a summons case. During complainant evidence, AR of the complainant examined himself as sole witness CW-1. After due cross examination of CW-1 by the Ld. Counsel for the accused, complainant's evidence was closed in the present case on 10.07.2025. Statement of the accused U/Section 313 CrPC was recorded on 15.07.2025 wherein the accused stated that they do not wish to lead defence evidence. The matter was listed for final arguments. The final arguments of the parties were heard at length on 23.07.2025.
Evidence:
5. To prove his case, complainant has examined himself as CW1 and has led his evidence by way of evidence affidavit Ex. CW1/A and has relied upon the following documents:-
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
4 Digitally signed SHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:03 +0530 S. No. DOCUMENT EXHIBIT 1. Authorisation Letter CW1/1 2. Master data of accused number 1 CW1/2 3. License agreement dated 23.07.2019 CW1/3 4. Original cheque CW1/4 5. Return memo CW1/5 6. Legal demand notice CW1/6 7. Postal receipts CW1/7 8. Tracking report of the legal demand notice CW1/8
6. The accused persons have not brought any document on record
7. The Ld. Counsel for the complainant and the Ld. Counsel for the accused orally argued at length.
COMPLAINANT'S ARGUMENTS
8. The Ld. Counsel for the complainant has argued that the license agreement is on record and the address mentioned for the second party which is the accused company is the same on which the legal demand notice has been sent. The Ld. Counsel has argued that it is Mr. Ankit who is the erstwhile director of the accused company had issued security cheques as per the terms of the license agreement. The Ld. Counsel argued that the legal demand notice has been sent on the registered address of the accused company and therefore it CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.5 Digitally signed by SHIVAM
SHIVAM GUPTA GUPTA Date:
2025.09.10 06:30:08 +0530 is valid service of legal demand notice to the accused company. The Ld. Counsel then argued that the law does not require the legal demand notice to be delivered on each director separately. The Ld. Counsel for the complainant argued that every person who is managing the affairs of the company at the relevant time shall be liable for the offence under Section 138 of NI Act. The Ld. Counsel argued that Section 141 of NI Act does not require that each director should be served and the company has been served through its director. The Ld. Counsel further argued that no defence evidence has been led by the accused persons to prove their defence, thus the presumption has not been rebutted. In support of his arguments the Ld. counsel for the complainant has relied upon the following judgments:
A. Krishna Texport & Capital Markets Ltd. Vs. Ila A. Agrwal & Ors. (2015) 8 SCC 28 B. K. Kesava Vs. MK Veerendra Babu 2021 SCC Online SC 3463 C. Bhupesh Rathod Vs Dayashankar Prasad & Ors. (2022) 2 SCC 355 ACCUSED'S ARGUMENTS
9. Per contra, the Ld. Counsel for the accused persons has argued that the offence under Section 138 of NI Act has not been made out as the legal demand notice was never served upon the accused company. The Ld. Counsel argued that the AR of the complainant in her cross examination has admitted that the legal demand notice was not served upon any of the accused persons.
The Ld. Counsel further argued that the notice has to be addressed to the same party to whom it is meant to be delivered, here the legal demand notice was addressed to Mr. Ankit who is the erstwhile director. The Legal demand notice CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd. 6 Digitally signed by SHIVAM SHIVAM GUPTA GUPTA Date:
2025.09.10 06:30:11 +0530 was not even addressed to the accused company. The Ld. Counsel stated that defence evidence was not required to be led because the offence itself has not been made out. The Ld. Counsel to support his arguments has relied upon A. Himanshu Vs. Shivamurthy And Another (2019) 3 SCC 797. B. Harish C. Chadda & Anr. Vs. XS Financial Services Limited 2001 SCC Online Mad 26 The Ld. Counsel for the accused persons has also given written submissions, in which the Ld. Counsel has submitted that the accused persons have made substantial payment and have given bank guarantees as well which were also encashed by the complainant in violation of the agreed terms; thus presenting the cheque in question amounts to double recovery. The Ld. Counsel in their written submissions while relying upon Geeta Jeena Vs. GNCTD (2021 SCC OnLine Del 4871) and R. Narayanan Vs. Govt. of TN (2021 SCC OnLine Mad 5644) have further submitted that there is no legally enforceable debt between the parties. The Ld. Counsel has submitted that due to COVID lockdown and orders of the Government regarding complete closure of operations of restaurants, bars and nightclubs; the complainant which is a Government instrumentality, cannot ignore the force majeure situation without there being an exclusive clause qua the force majeure clause in the written agreement between the parties. Due to the imposition of COVID lockdown, the collection of license fees stood frustrated.
REBUTTAL BY THE COMPLAINANT
10. In the written submissions filed by the Ld. Counsel for the complainant that the Geeta Jeena (Supra) does not apply to the present matter as the relief in that CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
7 Digitally signedSHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:15 +0530 matter was granted as an equitable relief which is not the scenario in the present case. The Ld. Counsel has further relied upon Ramanand & Ors vs Dr Girish Soni & Anr, AIR 2020 Delhi 96, where it has been held that that Section 56 of the ICA would not apply to a lease agreement and other similarly situated contracts which are 'executed contracts' and not 'executory contract'. In the absence of a contract or a contractual stipulation, as in the present case, the tenant may generally seek suspension of rent by invoking the equitable jurisdiction of the Court due to temporary non-use of the premises. The question as to whether the suspension of rent ought to be granted or not would depend upon the facts and circumstances of each case.
Legal Provisions
11. I have heard counsels on behalf of both sides and perused the record carefully.
12. For fastening liability U/S 138 Negotiable Instruments Act, following are the requirements :-
I. Drawing of the cheque by a person on an account maintained by him with a banker, II. The cheque was issued for payment to another person for discharge in whole/part any debt or liability;
III. Cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.8 Digitally signed
SHIVAM by SHIVAM GUPTA GUPTA 06:30:18 Date: 2025.09.10 +0530 earlier. RBI in its notification DBOD.AML BC.No.47/14.01.001/2011-12 has reduced the aforesaid period from 6 months to 3 months.
IV. Returning of the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque;
V. Giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount;
VI. Failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
The offence under Section 138, NI Act is made out against the drawer of the cheque, only when all the aforementioned ingredients are fulfilled.
13. The combined reading of Section 118 and 139 of NI Act, raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. However, it is a settled principle of law that the presumption U/S 139 Negotiable Instruments Act, can be rebutted by the accused by raising a probable defence but the burden of proof is on the accused.
14. The principles pertaining to the presumptions and the onus of proof as recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.9 Digitally signed
SHIVAM by SHIVAM GUPTA GUPTA 06:30:21 Date: 2025.09.10 +0530 "25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposes an evidentiary burden and not a persuasive burden.
25.5. It is not necessary for the accused to come in the witness box to support his defence."
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
10 Digitally signedSHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:25 +0530
15. The accused has to come forth with a convincing defence that appeals to common sense and basic rationality. Only in a case where the accused comes up with a convincing defence to counter liability, that the presumption can be stated to have been rebutted.
Appreciation of evidence:
12. Issuance of cheque: In notice under Section 251 CrPC, the accused persons have admitted that the cheque in dispute was issued by the erstwhile directors of the accused company as security. It is also not disputed that the cheque in question is not drawn on the account maintained by the accused person and it is impliedly admitted therefore that the accused company is the drawer of the cheque. Therefore, ingredient number I stands fulfilled in the present case.
13. Presentment and dishonor of cheque: As per the RBI guidelines, it is essential for the cheque in question be to presented within a period of three months from the date on which they are drawn and the same be returned as unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque. In the case at hand, the cheque in question was returned vide return memo (Ex. CW1/5) due to the reason "payment stopped by the drawer." By implication thereof, the cheques were presented within three months and the same were returned. Therefore, Ingredient number III & IV stand fulfilled in the present case.
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
11 Digitally signedSHIVAM by SHIVAM GUPTA GUPTA 06:30:28 Date: 2025.09.10 +0530
14. Legal demand notice and payment by the accused thereof: The legal notice (Ex. CW1/6) was dispatched vide Speed Post (Ex. CW1/7) within 30 days of return of the bank memo indicating the cheque in question being unpaid. The fact that the legal demand notice has made a clear and unambiguous demand for payment of the cheque in question is not disputed. The accused persons have denied the receiving of legal demand notice. The law regarding delivery of notice to the company and its director is well settled; a notice sent on the company is deemed to be a notice served on the directors of the company, who are managing the affairs of the company at that time. In Krishna Texport & Capital Markets Ltd. (Supra) it has been held:
"The persons who are in charge of the affairs of the Company and running its affairs must naturally be aware of the notice of demand under Section 138 of the Act issued to such Company. It is precisely for this reason that no notice is additionally contemplated to be given to such directors. The opportunity to the 'drawer' Company is considered good enough for those who are in charge of the affairs of such Company. If it is their case that the offence was committed without their knowledge or that they had exercised due diligence to prevent such commission, it would be a matter of defence to be considered at the appropriate stage in the trial and certainly not at the stage of notice under Section 138."
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
12 Digitally signedSHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:31 +0530 The important interpretation of law which is to be noted is that the service is not required separately on all the directors who are managing the affairs of the company at that time. Admittedly the notice in the present matter is addressed to Mr. Ankit Khilwani, who is the erstwhile director of the accused company. It is not the case of the complainant company that they were not aware about the active and present directors of the accused company. The complainant has even annexed the MCA data of the accused company which is Ex. CW1/2. Clearly the complainant was aware about the name of the persons who were managing the affairs of the accused company, still the legal demand notice was not addressed to the present active directors. Further, it can be seen from Ex. CW1/6 which is the legal demand notice, that it is addressed as follows:
To, Mr. Ankit Khilwani (Director) M/s Striker Beverages Private Limited, D-832, New Friends Colony, New Delhi- 110025 The Ld. Counsel for the complainant has argued that the legal notice has been delivered on the accused company through its director. However, the legal demand notice has been addressed to the erstwhile director and not the present/active directors of the accused company. The Hon'ble Supreme Court in Rajneesh Aggarwal vs Amit J. Bhalla 2001 (1) SCC 631 has held:
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.13 Digitally signed
SHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:35 +0530 "...The cheques had been issued by M/s Bhalla Techtran Industries Limited, through its Director Shri Amit Bhalla. The appellant had issued notice to said Shri Amit J. Bhalla, Director of M/s Bhalla Techtran Industries Limited. Notwithstanding the service of the notice, the amount in question was not paid, the object of issuing notice indicating the factum of dishonour of the cheques is to give an opportunity to the drawer to make payment within 15 days, so that it will not be necessary for the payee to proceed against in any criminal action, even though the bank dishonoured the cheques. It is Amit Bhalla, who had signed the cheques as the Director of M/s Bhalla Techtran Industries Ltd. When the notice was issued to said Shri Amit Bhalla, Director of M/s Bhalla Techtran Industries Ltd., it was incumbent upon Shri Bhalla to see that the payments are made within the stipulated period of 15 days. It is not disputed that Shri Bhalla has not signed the cheques, nor is it disputed that Shri Bhalla has not signed the cheques, nor is it disputed that Shri Bhalla was not the Director of the company..."
The law laid down in the above mentioned case is not applicable to the present case since the facts can be easily distinguished. In the case Rajneesh Aggarwal (Supra), the legal demand notice was addressed to " Amit Bhalla, Director of M/s Bhalla Techtran Industries Ltd.". Amit Bhalla in that case was present/active director of the drawer of the cheque and was also the signatory of the cheque in question in that case and therefore it was deemed that the legal CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.14 Digitally signed
SHIVAM by SHIVAM GUPTA GUPTA 06:30:38 Date: 2025.09.10 +0530 demand notice was served on the drawer of the cheque, which was the accused company, even if the legal demand notice was addressed merely to Amit Bhalla. However, in the present factual matrix, notice has not been issued to the present director but to the erstwhile director, when the complainant was in the knowledge of the names of the present directors. Further the accused directors are not the signatory of the cheque in question, unlike in the case of Rajneesh Aggarwal (Supra). Moreover, here the receiving of legal demand notice has not been admitted by the accused persons. Therefore it cannot be deemed that the legal demand notice was served upon the accused company. Thus this argument of the Ld. Counsel for the complainant does not hold any ground. Therefore the law laid down in Krishna Texport & Capital Markets Ltd. (Supra) cannot be relied upon in the present matter.
16. The Ld. Counsel for the complainant has correctly pointed out that the address on which the legal demand notice has been received is the correct address of the accused company. The same has not been denied by the accused persons, however they have denied the receiving of legal demand notice. In such circumstances the moot question that arises is whether the legal demand notice can be presumed to be delivered on the drawer of the cheque which is the accused company? The Hon'ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri). has laid down the law regarding presumption of delivery of legal demand notice on the accused. The Hon'ble Court had observed:
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.15
SHIVAM Digitally signed by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:41 +0530 "...In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is needless to emphasise that the complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends."
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd. 16 Digitally signed SHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:44 +0530 It is clear from the above that the necessary requirement for raising the presumption for delivery of legal demand notice is that the notice should be correctly addressed to the drawer of the cheque. Correctly addressing the legal demand notice to the drawer of the cheque does not mean that only the address of the drawer should be correct rather it should also be addressed to the correct person as well, for the presumption u/s 139 NI Act to be raised. From the discussion in the above paragraph, it is clear that the notice has not been addressed to directors who were managing the affairs of the company, when the complainant was in knowledge of the same. Therefore, the law laid down in C.C. Alavi Haji (Supra) regarding the presumption of legal demand notice on the drawer of the cheque, is not applicable to the present set of facts.
17. Moreover, the AR of the complainant during her cross examination as CW1 has herself admitted that the legal demand notice was never sent to the accused persons. She has stated:
"The statutory demand notice Ex. CW1/6 has been served only on Mr. Ankit Khilwani, Director of M/S Striker Beverages Pvt. Ltd. It is correct that the legal demand notice has not been served on any of the accused. Legal notice has been served on the recipient mentioned in Ex. CW1/6. It is correct that we have not made Mr. Ashwani Kumar Chaudhary to whom the statutory demand notice was only issue as a party in the present matter."
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
17 Digitally signedSHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:48 +0530 Therefore, ingredient number VI does not stand fulfilled in the present case.
18. Since the mandatory requirement of sending of legal demand notice to the drawer of the cheque has not been fulfilled in the present matter, no offence under Section 138 of NI Act has been made out.
19. The defence of the accused persons is that the complainant has misused the security cheque as they have made the complete payment. During the cross examination of the AR of the complainant as CW1, she has stated that the pending liability of the accused is approximately Rs. 7.9 Crores. However when the Ld. Counsel for the accused persons specifically asked about the payment made till date by the accused persons, the AR has stated:
"...I cannot tell whether the complainant used to issue any invoice regarding the receiving of license fee, I have to check. I cannot tell whether the accused had already paid more than Rs. 16 crores to the complainant towards license fee. Vol. I have to check from the office record of the complainant. I cannot tell whether the accused has already made payment against the cheque in question, I will have to check."
The AR of the complainant has herself stated that she is not aware whether the accused persons have made the payment against the cheque in question or not. She has stated that she cannot even tell the payment made by the accused person. When the AR made the above said statement, it itself creates a doubt in CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd. 18 Digitally signed SHIVAM by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:51 +0530 the case of the complainant. The legal demand notice was never properly served on the accused persons as discussed above, but for the sake of arguments if it is assumed that presumption was raised in the favour of the complainant under Section 118 and Section 139 of NI Act. The presumption would have been rebutted as it raised a doubt in the case of the complainant regarding the existence of legally enforceable debt. The accused persons thus would have raised a probable defence by punching holes in the case of the complainant by cross examining the AR of the complainant in such a manner. In Dashratbhai Trikambhai Patel versus Hitesh Mahendrabhai Patel and others Crl.A. No. 1497/2022, the Hon'ble Supreme Court has held that the cheque that is dishonoured must represent a legally enforceable debt on the date of maturity or presentation. If the drawer of the cheque pays a part or whole of the sum between the period when the cheque is drawn and when it is encashed upon maturity, then the legally enforceable debt on the date of maturity would not be the sum represented on the cheque. Here the AR has herself stated that she is not aware whether the accused persons have made the payment or not for the cheque in question.
20. It is well settled law that the accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person ought under the circumstances of the case act on the supposition that it does not exist. Thus, the accused can do so either by leading his own evidence in defence or even by punching holes in the case of the complainant in cross- examination.
CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
19SHIVAM Digitally signed by SHIVAM GUPTA GUPTA Date: 2025.09.10 06:30:55 +0530
21. When the presumption would have been rebutted, the onus would have then shifted on the complainant to prove its case beyond reasonable doubt. The complainant did not bring any account statement or any other proof to show the payment made by the accused persons till date and the existing liability on the accused on the date of presentation of the cheque in question. Thus the statement made by the AR of the complainant that the liability of the accused persons is Rs. 7.9 Crores is merely a bald statement, without any proof.
22. In the written submissions filed by the Ld. Counsel for the accused persons an interesting point has been raised that since the complainant is an instrumentality of the State under Article 12 of the Constitution, and during COVID lockdown was also imposed by the government itself; the same amounts to frustration of the license agreement even in the absence of a force majeure clause. Even though the facts of the present matter seem to be similar to Geeta Jeena (Supra), this court does not have the jurisdiction to grant an equitable relief of waiver of license fee. Therefore, this argument of the Ld. Counsel for the accused persons has no bearing on the existence of an enforceable debt.
23. The complainant has failed to discharge the burden of proving its case beyond reasonable doubt, as the case of the complainant suffers from fatal infirmities so much so, it goes directly to the root of the case and shakes the very edifice on which the case of the complainant rests. It is also relevant to mention here that it is of paramount importance to demand evidence of unambiguous, impeccable and of unimpeachable nature so as to entail criminal CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
20SHIVAM Digitally signed by SHIVAM GUPTA GUPTA 06:30:59 +0530 Date: 2025.09.10 conviction of the accused and which the complainant has failed to bring. In the case of Kulvinder Singh vs Kafeel Ahmad, Crl L. P. 478 of 2011 , decided on 04.01.2013, Hon'ble Delhi High Court has held that the basic principle in criminal law is that the guilt of the accused / respondent must be proved beyond reasonable doubts and if there is any slightest doubt about the commission of an offence, then the benefit has to accrue to him. At the same time, it is important to underscore the established canon of criminal law that in order to pass a conviction in a criminal case, the accused "must be" guilty and not merely "may be" guilty. The mental distance between "may be" guilty to "must be" guilty is a long one and must be travel not on surmises and conjectures, but by cogent evidence.
24. In view of the aforesaid discussion, the accused persons are hereby acquitted of the offence punishable under Section 138, NI Act, as legal demand notice was never served on the accused persons and therefore no offence against them has been made out.
Judgment pronounced in the open court on 10.09.2025.
This judgment consists of 21 pages and all the pages are duly signed by me.
Digitally signedSHIVAM by SHIVAM GUPTA GUPTA 06:31:02 Date: 2025.09.10 +0530 (Shivam Gupta) Judicial Magistrate First Class (NI Act) Digital Court-02 PHC, New Delhi 10.09.2025 CC No. 7334 of 2021 The Ashok Hotel, a unit of ITDC Vs. M/s Striker Beverages Pvt. Ltd.
21SHIVAM Digitally signed by SHIVAM GUPTA GUPTA 06:31:05 +0530 Date: 2025.09.10