Delhi District Court
Cc No.5502/2020 M/S Unissi (India) Pvt. ... vs . M/S Ofnog Technologies Pvt. Ltd. Page ... on 13 December, 2021
IN THE COURT OF MS. SONIKA, M.M. 05, N.I. ACT, SOUTH
DISTRICT,SAKET, NEW DELHI
C.C. No. 5502/2020
PS : Fatehpur Beri
M/s Unissi (India) Private Ltd.
Through its Director Ms. Diksha Gusain,
O/o H.No.368 & 369, Basant Buidling,
2nd Floor, Chaudhary Market, Sultanpur
New Delhi - 110030.
...Complainant
Versus
1. M/s Ofnog Technologies Pvt. Ltd.
Through its Directors Sh. Manoj Deb,
O/o H. NO.516, Tower B4, Spaze I Tech Park,
Near Omax Mall, Sohna Road,
Gurgaon - 122018, Haryana.
2. Mr. Manoj Deb,
Directors of M/s Ofnog Technologies Pvt. Ltd.
O/o H. NO.516, Tower B4, Spaze I Tech Park,
Near Omax Mall, Sohna Road,
Gurgaon - 122018, Haryana.
Digitally
signed by
2. Ms.Madhuchhanda Deb, SONIKA
W/o Sh. Manoj Deb,
SONIKA Date:
2021.12.13
Directors of M/s Ofnog Technologies Pvt. Ltd. 16:38:25
+0530
O/o H. NO.516, Tower B4, Spaze I Tech Park,
Near Omax Mall, Sohna Road,
Gurgaon - 122018, Haryana.
...Accused persons
CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.1/16
Date of Institution : 15.09.2020
Offence complained of : 138 NI Act
Date of final arguments : 04.12.2021
Digitally
signed by
Date of decision : 13.12.2021 SONIKA
SONIKA Date:
2021.12.13
Plea of guilt : Not guilty. 16:38:39
+0530
Decision : Convicted.
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Vide this judgment, this Court shall dispose off the present complaint case instituted by the Complainant invoking the provisions of Section 138 of the Negotiable Instruments Act, 1881(as in after referred to as NI Act).
2. The facts giving rise to the instant complaint case, as per the complainant, may be enumerated as hereafter: the complainant and the accused has entered into an agreement dated 31.12.2018, as per which the accused persons were taken to be as business associate of complainant company for specific project i.e. Tender NIIT No. CEB/MECH/6/2017/5 dated 12.10.2018 issued by the office of PWD, Guwahati, Assam. In pursuance of this agreement, the complainant had advanced a sum of Rs. 6,00,000/- to the accused no. 1 through RTGS and the accused had issued a duly filled cheque bearing no.590851 dated 30.01.2019 for an amount Rs. 6,00,000/- drawn on Indusland bank, Sohna Road, Gurgaon in favour of the complainant. It was agreed between the parties that if, in case, no business order was received by the complainant from the exercise undertaken by the accused company within 30 days from the date of signing of the said agreement, then the complainant would be entitled to present the cheque for encashment. However, the said tender was cancelled by the Government of Guwahati and the accused persons have requested the complainant to wait for some more time. In the meantime, as the validity of the cheque bearing no.
CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.2/16 590851 was expiring, the accused persons have handed over another post dated cheque bearing no.590852 dated 15.12.2019 for an amount Rs. 6,00,000/- drawn on Indusland bank, Sohna Road, Gurgaon (hereinafter referred to as the cheque in question) in favour of the complainant in return of the cheque bearing no. 590851. However, even after the extended time, the accused persons have failed miserably to fulfill its commitment. Thus, the complainant has presented the cheque in question for encashment and the same was dishonoured upon presentation due to reason 'Funds Insufficient' vide bank return memos dated 19.02.2020. Thereafter, complainant issued a legal demand notice dated 07.03.2020 to the accused, despite which the accused failed to repay the amount. Thus, the Complainant was constrained to institute the present complaint case.
3. Upon appreciation of pre-summoning evidence affidavit, accused was summoned for an offence punishable under Section 138 of NI Act and notice under Section 251, Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C.) was served upon accused persons on 04.03.2021 to which they pleaded not guilty and claimed trial. On the same day, the statement of accused no. 2 under section 294 Cr.P.C. was recorded. The accused no. 2 stated that he had given two cheques to the complainant for liaison purpose. SONIKA He stated that he had given the cheque in question as first cheque given by him was stale at that time. He further admitted the part liability towards the Digitally signed by SONIKA complainant. Further, Accused no. 3 took the defence that her husband i.e. Date: 2021.12.13 16:38:53 +0530 Accused no. 2 had given the cheque for the security purposes to the complainant. She stated that there was a commercial transaction between the complainant and Accused no. 1. She further stated that she did not look after the work of the company as she has a special child to take care of.
4. Thereafter, the application of the accused persons under Section 145 (2) of NI Act was allowed vide order dated 18.08.2021 and the Accused was granted the opportunity to cross examine the Complainant as well as his witnesses, if any.
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5. During CE, the Complainant relied upon the following documents which were duly exhibited and marked: Original Board Resolution as Ex. CW1/1, Copy of the Proposal letter dated 26.12.2018 for Business Association by the Accused no. 2 as Ex.CW1/2(OSR), Copy of Agreement dated 31.12.2018 as Ex.CW1/3(OSR), Account statement of the complainant's account showing dishonor of the cheque in question as Ex. CW1/4, legal demand notice dated 07.03.2020 as Ex. CW1/5, postal receipt of demand notice as Ex. CW1/6, Internet generated tracking report as Ex. CW1/7, Original Bank returning memo as Ex. CW1/8, Cheque in question as Ex. CW1/9, Copy of Payment Proof of Rs. 6,00,000/- by the complainant in the account of the accused as Mark A, Copy of cheque bearing no. 590851 as Mark B, copy of order dated 23.03.2020 passed by the Hon'ble Supreme Court in Suo Moto Writ Petition (Civil) NO. 3/2020 in Re: Cognizance for Extension of limitation as Mark C, copy of order dated 06.05.2020 passed by the Hon'ble Supreme Court in Suo Moto Writ Petition (Civil) NO. 3/2020 in Re: Cognizance for Extension of limitation as Mark D.
6. The complainant examined only one witness i.e. its AR as CW1 who has adopted her pre summoning evidence affidavit (Ex. CW1/10) and filed an additional affidavit which was exhibited as Ex. CW1/11. She was cross examined at length by the Ld. Counsel for accused. CE was closed vide order dated 08.10.2021.
7. Statement of the accused no.2 under Section 281 CrPC r/w Section 313 CrPC was recorded on 18.10.2021, wherein all the incriminating evidence was put to him and the accused no.2 has admitted the execution of agreement SONIKAi.e. Ex. CW1/3 and thereby receiving an advance payment of Rs. 6,00,000/-.
He has further admitted the proposal letter dated 26.12.2018 (Ex. CW1/2). He Digitally signed by SONIKA has also admitted issuance of cheque bearing no. 590851 and the cheque in Date: 2021.12.13 question in favour of the complainant. He stated that he has not received the 16:39:07 +0530 legal notice regarding the cheques in question. He further stated that he had no liability towards the complainant as he had secured various contracts for CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.4/16 the complainant company; however, the initial tender could not be secured as the same was cancelled by Government only.
8. Statement of the accused no.3 under Section 281 CrPC r/w Section 313 CrPC was recorded on the same day, wherein all the incriminating evidence was put to her and the accused no.3 admitted the execution of Ex. CW 1/3 as well issuance of Ex. CW1/2 and thereby receiving an advance payment of Rs. 6,00,000/-. She has admitted issuance of cheque bearing no. 590851 in favour of the complainant. She denied the receipt of demand notice. Since, the accused persons chose to lead evidence in their defence, matter was fixed for DE.
9. Accused no. 2 has examined himself as DW1 and has relied upon documents Mark DA and Mark DB. He was duly cross examined by the Ld. Counsel for Complainant. DE was closed on 20.11.2021 and the matter was fixed for final arguments.
10. I have considered the rival submissions of the parties and perused the entire evidence led by the parties and the material available on record.
11. During the course of final arguments, Ld. Counsel for complainant argued that there exists legally enforceable liability in favour of the complainant on behalf of the accused in view of Agreement dated 31.12.2018 (Ex. CW1/3). He further argued that the cheque in question (Ex.CW1/9) was issued to the complainant and the same has already been admitted by the accused. He further argued that upon presentation, the cheque has been SONIKA dishonored and the same has been proved by the cheque return memo which Digitally signed are Ex.CW1/8. Further, he argued that the demand notice (Ex.CW1/5) was by SONIKA Date: 2021.12.13 duly served upon the accused. He further argued that the complainant did not 16:39:15 +0530 receive any payment after service of legal notice. Ld. Counsel for complainant submitted that all the ingredients of Section 138 NI Act are fulfilled and the accused persons should be convicted.
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12. Per contra, ld. Counsel for accused argued that the cheque in question was a security cheque in return of the first security cheque bearing no. 590851, as that cheque has become stale. He further argued that the accused persons have provided another contracts to the complainant for which the commission has not been paid. He further argued that the legal demand notice was never received by the accused persons. He further argued that the demand notice is not valid as the complainant has claimed the interest @18% p.a. and the legal charges of Rs. 22,000/- in addition to the cheque amount. He prayed that the accused be acquitted of the offence.
13. In the backdrop of the foregoing factual score, this Court shall now proceed to examine the position of law governing the facts peculiar to the present case.
14. The following ingredients must be satisfied in order to bring home the guilt of a person accused for the commission of an offence punishable under Section 138 of NI Act, which has also been observed by the Hon'ble Supreme Court of India in the matter of Jugesh Sehgal Vs. Shamsher Singh Gogi, (2009) 14 SCC 683:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain
SONIKA amount of money to another person from out of that
account;
Digitally signed
by SONIKA (ii) the cheque should have been issued for the discharge, in
Date: 2021.12.13
16:39:22 +0530 whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
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(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the SONIKA said notice"
Digitally signed The abovementioned proposition of law was reiterated by the by SONIKA Hon'ble Supreme Court in the matter of Aparna A. Shah v M/s Sheth Date: 2021.12.13 16:39:31 +0530 Developers P. Ltd & Anr. (2013)8 SCC 71.
15. It is a well settled principle of criminal jurisprudence that a criminal trial precedes on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, normally the initial burden is on the complainant/ prosecution to prove the guilt of the accused and the standard of proof for the same is beyond reasonable doubt. However, in offence under Section 138 NI Act, there is a reverse onus clause, which is contained in Sections 118 and 139 of the Act.
Section 118 of the N.I Act provides:
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration - that every negotiable instrument was made or CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.7/16 drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows:
"Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
16. Once the foundational facts that the cheques in question bears the signatures of the accused and the same has been drawn on account maintained by him are established, a factual base is established to invoke the presumption of cheque having being issued in discharge of a legally recoverable debt and drawn for good consideration by virtue of Section 118(a) r/w Section 139 of NI Act. It is a mandatory presumption, though the accused is entitled to rebut the said presumption.
17. In case of Kumar Exports vs. Sharma Carpets,(2009) 2 SCC 513 , the Hon'ble Supreme Court had held:-
"The accused under Section 138 NI Act has two options. He can either show that the consideration and debt did not exit or that under the particular circumstances of the case, the non existence of consideration and debt is so probable that a prudent man ought to SONIKA suppose that no consideration and debt existed. To rebut the statutory presumption, an accused is not expected to prove his Digitally signed defence beyond reasonable doubt as it is expected of the by SONIKA complainant in a criminal trial. The accused may adduce direct Date:
2021.12.13 evidence to prove that the note in question was not supported by 16:39:38 +0530 consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non existence of consideration CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.8/16 and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which his probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or there non existence was so probably that a prudent man under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question, was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon the Digitally signed by circumstantial evidence and if the circumstances so relied upon are SONIKA SONIKA Date: so compelling, the burden may likewise shift again on the 2021.12.13 16:39:45 complainant. The accused may also rely upon presumptions of fact, +0530 for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arises under Section 118 and 139 of NI Act".
18. In the present case, the accused persons have admitted that the cheque in question was issued in favour of the complainant, thus, it raises a mandatory presumption in favour of the complainant. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898, wherein it was held:
"Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
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19. It means that in the present case the onus is upon the accused persons to rebut the presumption raised under Sections 118(a) and 139 of the said Act and merely saying that the cheque in question was not given in discharge of any liability is not sufficient to rebut the presumption of law.
20. The accused no. 2 and 3 have taken the defence that they have never received the legal demand notice. However, during the cross examination of accused no.2, he has admitted that accused no. 1 was having its office at the address on which the demand notice is alleged to be served. It is pertinent to note that it is not the case of the accused that the legal demand notice was sent on an incorrect address, rather, the accused stated that such legal demand notice was never received by them.
21. At this juncture, reliance is placed upon the judgment passed by Hon'ble Supreme Court in the case of C.C.Alavi Haji vs. Palapetty Muhammed, 2007 (6) SCC 555, wherein it has been held that:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. 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 SONIKA 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, Digitally signed by SONIKA therefore, the complaint is liable to be rejected. A person who does Date: 2021.12.13 16:39:52 +0530 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 CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.10/16 the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
In light of the ratio decidendi of the above stated case, even assuming for the sake of the arguments that the said legal notice was not received by the accused, same will not come to the rescue of the accused, as far as offence u/s 138 NI Act is concerned, if the other ingredients are duly proved and fulfilled.
22. Secondly, the accused has taken the defence that the legal demand notice is defective as the complainant has claimed the legal notice charges and the interest in addition to the cheque amount. In support of his contentions, he has relied upon the judgment passed by the Hon'ble Madras High Court in P.V.R.S. Manikumar Vs. Krishna Reddy 1999(2) ALT Cri. 182.
In P.V.R.S. Manikumar (Supra) the hon'ble Madras High Court has observed as follows:
"8. As regards the first point, this Court has already decided in very many decisions that the complainant, being entitled to initiate both the civil suit for recovery of the amount and the criminal SONIKA proceedings for non-payment of the cheque amount, could very well issue notice demanding the cheque amount plus interest Digitally signed by SONIKA amount so as to enable him to file a suit for recovery of the entire Date: 2021.12.13 16:39:59 +0530 amount. As long as the demand of the cheque amount was made in the statutory notice, it cannot be contended that the entire notice becomes invalid merely because the interest amount has been added. This view of mine is fortified by the decision of this Court CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.11/16 in S. Kiran v. L.C. Corporation (1994) II Cur Cri R 858."
Thus, even in this judgment, Hon'ble high court has held that as long as the cheque amount is specifically claimed in the demand notice, claim with respect to any additional amount does not invalidate the same.
23. Here, it is pertinent to refer to the judgment of Hon'ble Supreme Court in Suman Sethi vs. Ajay K. Churiwala, 2000 (2) SCC 380, wherein, the Apex Court has held as:
"It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the "said amount"
i.e. cheque amount. If no such demand is made the notice no doubt would fall short of its legal requirement. Where in addition to "said amount" there is also a claim by way of interest, cost etc. whether the notice is bad would depend on the language of the notice. If in a notice while giving the break up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for SONIKA interest, cost etc. would be superfluous and these additional claims would he severable- and will not invalidate the notice. If, however, in the notice an ommbus demand is made without specifying what Digitally signed by SONIKA was due under the dishonored cheque, notice might well fail to Date: 2021.12.13 meet the legal requirement and may be regarded as bad. 16:40:05 +0530 Thus, if the cheque amount is severable from the additional amount claimed, then, there is no infirmity in the demand notice. The reading of the demand notice (EX. CW1/5) clearly shows that the amount of the cheque in question has been clearly mentioned and is thereby claimed. Thus, merely because the interest alongwith the notice charges have been claimed by the compliant, the same does not invalidate the demand notice. Here, for easy reference, the relevant extract of the demand notice is reproduced:
"8. Thus, you are liable to pay to my client Rs. 6 lakhs along with interest at the rate of 18% per annum and legal notice charges of Rs.
CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.12/16 22,000/-. I hereby call upon you to pay the cheque amount of Rs. 6,00,000/- (Rupees Six Lakhs Only) within a statutory period of 15 days from the date of receipt of this notice by you, otherwise you shall commit an offence punishable under Section 138 of the Negotiable Instruments Act, 1881......"
24. Thirdly, the accused has taken the defence that the cheque in question was for security purpose. However, agreement dated 31.12.2018 (EX. Cw1/3) clearly states "this cheque shall be used in-case office of PWD fails to place work order". Even if, for the sake of arguments, it is admitted that the cheque in question was issued for security purpose only, it is a well settled law that security cheques are covered under the offence under section 138 of the NI Act. The same view has also been reiterated recently by the Hon'ble Supreme Court in the case of Sripati Singh (D) v. State of Jharkhand (2021 SCC Online SC 1002), wherein the Apex Court observed:
"16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower SONIKA agrees to repay the amount in a specified timeframe and issues a Digitally signed cheque as security to secure such repayment; if the loan amount is by SONIKA not repaid in any other form before the due date or if there is no Date: 2021.12.13 16:40:11 +0530 other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow.
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17. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on demand promissory note' and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the SONIKA consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is Digitally signed presented and dishonoured, the holder of the cheque/drawee would by SONIKA Date: 2021.12.13 have the option of initiating the civil proceedings for recovery or 16:40:18 +0530 the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation."
Thus, the contention of the accused that the cheque in question was given as security cheque is of no consequence in view of the aforementioned CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.14/16 binding judgment of the Hon'ble Supreme Court.
25. Ld. Counsel for accused has argued that the accused persons have provided another contracts to the complainant for which the commission has not been paid by the complainant. In order to prove the same, the accused persons have relied upon the emails dated 09.04.2019 (Mark DA) and 26.11.20219 (Mark DB). Ld counsel for accused has stated that there was a verbal commitment of reconciliation of account on behalf of the complainant company. Perusal of the agreement dated 31.12.2018 (Ex. CW1/3) clearly shows that the same was very specific and was executed with reference of only one tender bearing no. NIIT no.CEB/MECH/6/2017/05 dated 12.10.2018 issued by office of PWD, Guwahati, Assam. It is admitted fact that after the cancellation of the same, no MOU/agreement has been entered into between the parties. Ld. Counsel for accused has argued that there was SONIKA verbal commitment of reconciliation of accounts, however, I failed to appreciate how the terms of written agreement can be changed by oral waiver Digitally signed in view of section 91 and 92 of Evidence Act, 1872. Thus, in the absence of by SONIKA Date:
any subsequent written agreement, this defence of the accused persons cannot 2021.12.13 16:40:28 +0530 be relied upon.
26. In considered opinion of the court, the present complaint has disclosed the existence of a legally enforceable debt or liability. Moreover, the complainant has successfully proved all the necessary ingredients of Section 138 of NI Act. On the other hand, the accused has failed to rebut the presumption in favour of complainant either on the basis of the material available on record or by adducing any cogent defence evidence except bare averments, which were not at all substantiated by any material on record.
27. In view of the evidence adduced, documents put forth and arguments advanced by the parties and further in view of the above discussion, the court is of the considered opinion that the accused no.1 company M/s Ofnog Technologies Pvt. Ltd., Accused No.2 Sh. Manoj Deb and Accused No. 3 CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.15/16 Ms. Madhuchhanda Deb are guilty of offence under Section 138 of Negotiable Instruments Act, 1881 and accordingly, they are hereby convicted under Section 138 of Negotiable Instruments Act, 1881.
28. Let the convicts be heard on quantum of sentence.
29. Copy of this judgment be given dasti to all the convict free of cost as per rules.
Digitally signed by SONIKA ANNOUNCED IN THE OPEN SONIKA Date: (SONIKA) COURT ON 13.12.2021 MM-05/NI ACT/SOUTH/SAKET 2021.12.13 NEW DELHI 16:40:34 +0530 CC No.5502/2020 M/s Unissi (India) Pvt. Ltd. Vs. M/s Ofnog Technologies Pvt. Ltd. Page no.16/16