Delhi District Court
Neha Mittal vs . Jai Kalaka Maa Chit Pvt. Ltd. & Ors. on 7 August, 2021
THIS JUDGMENT IS PRONOUNCED THROUGH VIDEO
CONFERENCING VIA CISCO WEBEX APPLICATION
IN THE COURT OF MS. AAYUSHI SAXENA
METROPOLITAN MAGISTRATE (SOUTH) 01,
N.I. ACT, SAKET COURTS : NEW DELHI
CC NO. 10967/2017
Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors.
1.Complaint Case number : CC No. 10967/2017 2 Name of the complainant : Neha Mittal, D/o Sh. Satish Mittal, R/o 235, Masjid Moth, South Extension PartII, New Delhi Through its attorney Sh. Satish Mittal, R/o 235, Masjid Moth, South Extension PartII, New Delhi
3. Name and address of the : 1. Jai Kalaka Maa Chits accused Private Limited, office274, Basement Shop3, Masjid Moth, Lila Ram Market, South Extension Part II, New Delhi110049.
(through its director)
2. Nisha Saini (Director), W/o Sandeep Saini.
CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 1 of 383. Sandeep Saini (Director), 274, Basement Shop3, Masjid Moth, Lila Ram Market, South Extension Part II, New Delhi110049.
4. Offence complained of or : Under Section 138 of the proved Negotiable Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Final Order : Conviction
7. Date of Institution : 12.09.2017
8. Date of Reserving the : 30.07.2021 Judgment
9. Date of pronouncement : 07.08.2021 Judgment:
1. The instant complaint dated 12.09.2017 had been filed by the Complainant on that very date i.e. 12.09.2017 through her Attorney and father Sh. Satish Mittal, under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. In the said complaint Accused No. 1 is Jai Kalka Maa Chit Pvt. Limited, company whereas the Accused Nos.CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 2 of 38
2 and 3 viz. Mrs. Nisha Saini and her husband Mr. Sandeep Saini, are stated to be the Directors of Accused No. 1.
2. For short 'The Negotiable Instruments Act, 1881' shall hereinafter be referred to as 'the NI Act'.
3. Briefly stated, the chain of facts leading to filing of the present complaint, as has been averred in the present complaint, is as follows: 3.1. That the accused nos. 2 and 3 who are the directors of accused No.1 and who managed the whole work and responsible for its day to day affairs, had asked the complainant to invest money in their said company i.e. accused no. 1 which is registered under the Company Act and gave lucrative offer of getting good interest in (sic, should be 'at') the end of scheme;
3.2. That the complainant and her family members who were well known and having cordial relations with the accused, agreed to invest in Accused No.1;
3.3. That the complainant was to deposit a sum of Rs.4,27,250/ (Rupees Four Lacs Twenty Seven Thousand Two Hundred and Fifty Only) in twenty installments which got completed in the month of July,2015 and thereafter, the Accused had to pay a CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 3 of 38 sum of Rs.4,75,000/(Rupees Four Lacs Seventy Five Thousand Only ) to the complainant. It is pertinent to mention that the complainant had invested a sum of Rs.4,27,250/ at the instance of accused No.2 and 3 and the receipts regarding the deposit were also issued to the complainant by the accused;
3.4. That after the completion of twenty installments, the complainant asked the accused person to make the payment of Rs. 4,75,000/, they told the complainant that they would make the payment of the aforesaid amount in the end of December,2015 and requested for grant of time till then;
3.5. That since the complainant had invested her hard earned money at the instance of accused nos. 2 and 3, she had no alternative except to wait till the end of December, 2015. When the complainant approached the accused person in December, 2015 and asked to make the payment of the aforementioned amount as they were in dire need of money, the accused persons again made lame excuses of financial crisis and assured the complainant that the aforesaid amount shall be paid in a short span of time;
3.6. That the accused left their residential address CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 4 of 38 and when the accused failed to return the said amount, in the month of February, 2017, the complainant's father met accused no. 2 namely Sandeep Saini in the basement of their office, who promised to pay the amount back, and after sometime, the accused nos. 2 and 3 gave cheque no. 473965 of Rs. 4,75,000/ (rupees four lacs seventy five thousand) dated 28.07.2017 of the accused no.1 by putting their signatures in order to discharge their legal liability;
3.7. That when the complainant presented the said cheque in question on 31.07.2017 with her banker Central Bank of India, Gulmohar Park, South Delhi, the said cheque got dishonoured vide return memo dated 01.08.2017 with remarks "funds insufficient";
3.8. That pursuant thereto, the complainant's father contacted and apprised the accused about dishonor of the cheque in question, but the accused persons started making excuses;
3.9. That the aforesaid amount of the cheque is legally recoverable and payable by the accused;
3.10. That the legal notice dated 11.08.2017 was sent on behalf of the complainant to the accused which was duly received on 14.08.2017 and CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 5 of 38 3.11. That after expiry of the statutory period of 15 days, the present complaint has been filed after one month.
4. Pursuant to the filing of the said complaint and in support thereof, Sh. Satish Mittal, the AR/SPA holder of the complainant, filed his pre summoning evidence by way of his affidavit Ex. CW1/A and had relied upon various documents viz. receipts of depositing the installments Ex.
CW1/1(Colly.), the Cheque in question Ex. CW1/2, return memo Ex. CW1/3, legal notice Ex. CW1/4, postal receipts Ex. CW1/5 (Colly.), tracking report Ex. CW1/6, refused envelopes Ex. CW1/7 and Ex. CW1/8 and SPA dated 12.09.2017 Ex. CW1/9.
5. Ld. Predecessor of this Court took cognizance of the offence under section 138 NI Act vide order dated 14.09.2017 and ordered for issuance of summons for attendance of the accused.
6. Thereafter on 29.05.2018 Sh.Ganesh Chandra Pandey, Advocate appeared on behalf of all the three Accused persons and filed his Vakalatnama. Also the Accused Nos. 2 and 3 entered appearance on 29.05.2018 when they were admitted to bail. Further, complete set of documents was also supplied to Accused Nos. 2 and 3 on that very date.
CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 6 of 386.1. On 10.07.2018, notice under Section 251 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was given to the Accused No. 1 i.e. the company through Accused No. 2 Nisha Saini and also to Accused No. 2 Nisha Saini, herself, she was asked whether she pleaded guilty or claimed trial. In reply to this, she pleaded not guilty and claimed trial. In her statement of defence recorded at that very time, she, interalia, averred that the cheque in question was given by her to her husband (Accused No. 3) as blank signed cheque for the purpose of making payment pertaining to the company i.e. accused no.1. Thereafter, the said cheque in question was given by Accused No. 3 to the complainant for the purpose of security. Furthermore, it was stated by her that she was not aware of the details of the transaction in question as she was not involved with the business of the accused company. She denied receipt of the legal demand notice as she was hospitalized at that time. However, she was told about the legal demand notice by her neighbour.
6.2. On the same date i.e. 10.07.2018, notice under Section 251 'Cr.P.C.', was given to Accused No. 3 CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 7 of 38 Sandeep Saini also and he was asked whether he pleaded guilty or claimed trial. In reply to this, he pleaded not guilty and claimed trial. In his statement of defence recorded at that very time, he, interalia, averred that the cheque in question alongwith two other cheques were given to the complainant against payment of Rs. 4,75,000/. Also according to him, out of the total amount, payment of Rs. 2,75,000/ was already made to the complainant in cash. But there was no receipt in this regard. Furthermore, according to him he is liable to pay only an amount of Rs. 2,00,000/ to the complainant. He denied receipt of the legal demand notice as his wife was hospitalized at that time. However, according to him, he was told about the legal demand notice by his neighbor. He admitted his signatures on the cheque in question but other details thereon were stated to be not in his handwriting.
6.3. As the statement of defense of the accused persons revealed a specific defense, hence vide the said Order dated 10.07.2018, the case was ordered to be tried as a Summons case under Chapter XX of Cr.P.C., by Ld. Predecessor of this Court.
7. During the course of the trial on 10.09.2018, CW1 Satish CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 8 of 38 Mittal, the father/SPA holder of the complainant adopted his pre summoning evidence contained in his affidavit Ex.CW1/A. He also relied upon the documents already exhibited as Ex.CW1/1 to Ex.CW1/9. On that very date the said witness was cross examined by the Ld. counsel for all the accused persons whereafter the said witness was discharged.
7.1. Thereafter on 07.01.2019, the complainant entered the witness box and was examined as CW2. She was also cross examined on behalf of all the accused and thereafter she was also discharged. In view of the submission made by the complainant, her evidence was closed on that very date by Ld. Predecessor of this Court.
8. Consequent thereto on 01.05.2019, statements of the Accused No. 2 and 3 under Section 313 Cr.P.C., were recorded separately.
8.1. When circumstances appearing in evidence against Accused No. 2 Smt. Nisha Saini, were put to her, she while reiterating the aforesaid defence, additionally stated, interalia, that the investment scheme had matured in 2015 itself for which a part of the amount was paid by her husband to the CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 9 of 38 complainant. The Accused No. 2 Smt. Nisha Saini admitted her signatures on the cheque in question. Further, she also opted to lead evidence in her defence.
8.2. Similarly when the circumstances appearing in evidence against Accused No. 3 were put to him, he, inter alia, stated that there was an agreement between him and Mr. Satish (it appears that he was referring to Mr.Satish Mittal, father of the complainant) wherein the latter had to invest money in the Accused company and the amount at maturity to be payable to the complainant was Rs. 4,75,000/. He further stated that for the purpose of handing over the aforesaid maturity amount to the complainant, the cheque in question alongwith two other cheques were given to the complainant. Furthermore, he stated that he had already made the payment of Rs. 2,75,000/ to the complainant and only Rs. 2 lakhs remained to be paid to the complainant. The Accused No. 3 also admitted his signatures on the cheque in question and opted to lead evidence in his defence.
8.3. Pursuant thereto, the case was fixed for defence evidence and Accused No. 2 Smt. Nisha Saini, entered the witness box and examined herself as DW CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 10 of 38
1. Thereafter, on 03.03.2019 defence evidence was closed.
9. Thereafter arguments advanced on behalf of the complainant were heard. However, no oral arguments were addressed on behalf of the three Accused persons. At the request of Ld. Proxy counsel for the three Accused persons, short written arguments were allowed to be filed however, said arguments have not been filed till date.
10. I have considered the submissions made and also gone through the records carefully.
Discussion
11. In order to ascertain whether the Accused have committed or not, the offence under Section 138 of the NI Act, it is deemed fit to examine as to whether all the indispensable ingredients constituting the said offence have been proved by the complainant or not.
12. For commission of the offence under Section 138 of the NI Act, the following ingredients have to be averred and proved by the Complainant:
(a) That the accused had issued to the complainant a cheque on the account maintained by him with a bank and the said cheque has been CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 11 of 38 issued in discharge, in whole or in part of any debt or other liability;
(b) That the cheque in question had been presented to the bank by the Complainant within a period of 3 months from the date of cheque or within the period of its validity;
(c) That the aforesaid cheque during the said period of its validity, when presented for encashment, was returned unpaid due to insufficiency of funds etc.;
(d) That the payee of the said cheque, issued a legal demand notice to the accused/drawer within 30 days from the date of receipt of information by him from the bank regarding the return of cheque;
(e) The nonpayment of cheque amount by accused/drawer of the cheque within fifteen days from the date of receipt of legal demand notice; and
(f) Filing of the complaint within one month from the date on which cause of action arises.
13. The instant case has been filed on the basis of Cheque CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 12 of 38 in question bearing No.473965 dated 28.07.2017 for a sum of Rs.4,75,000/ drawn on Dena Bank, Scope Complex Branch, New Delhi. It has been issued by Accused No.1 in favour of Neha Mittal, the Complainant. This original cheque has been proved on record as Ex.CW1/2. This Cheque on its face shows that the Accused No.1 was maintaining account No.105011021215 with the said Bank. Also on this original Cheque in question Ex.CW1/2, at two places even impressions of the Stamp of Accused No.1, appear.
13.1. The materials available on record have to be appreciated keeping in view the admitted fact that Sh. Satish Mittal, AR/father of the Complainant and Accused No.3 Sh.Sandeep Saini, were known to each other since childhood and that is how the Complainant also knew the Accused.
13.2. Also Accused No.3 Sh.Sandeep Saini and his wife Smt. Nisha Saini Accused No.2, are admittedly Directors of Accused No.1 company.
13.3. It has been specifically averred in Para 8 of the instant complainant and also in Para 9 of the evidence affidavit Ex.CW1/A of Sh.Satish Mittal, AR/father of the Complainant that the Cheque No.473965 dated CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 13 of 38 28.07.2017 for a sum of Rs.4,75,000/of Accused No.1 had been given by Accused Nos.2 and 3, after signing the same, to him i.e. CW1 Sh.Satish Mittal, AR/father of the Complainant.
13.4. Before proceeding further it would be useful to keep in mind, Section 58 in The Indian Evidence Act, 1872, which reads as follows: "58 Facts admitted need not be proved. -- No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions."
13.5. It is a matter of record that on 10.07.2018 when Accused Nos.2 Mrs. Nisha Saini and her husband Mr. Sandeep Saini, Accused No.3 had appeared before Ld. Predecessor of this Court along with Sh. Ganesh CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 14 of 38 Chandra Pandey, Advocate for all the three Accused persons and notice under Section 251 'Cr.P.C.', was given, admissions of facts made at that time are of great significance. These are as follows: Accused No.3 Mr. Sandeep Saini i. That the cheque in question alongwith two other cheques were given to the complainant against payment of Rs. 4,75,000/;
ii. Also according to him, out of the total amount, payment of Rs. 2,75,000/ was already made to the complainant in cash. But there was no receipt in this regard.
iii. Furthermore, according to him he is liable to pay only an amount of Rs. 2,00,000/ to the complainant;
iv. He denied receipt of the legal demand notice as his wife was hospitalized at that time. However, according to him, he was told about the legal demand notice by his neighbor and v. He admitted his signatures on the cheque in question but other details thereon were stated to be not in his handwriting.
CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 15 of 38Accused No.2 Mrs. Nisha Saini: i. That the cheque in question was given by her to her husband (Accused No. 3) as blank signed cheque for the purpose of making payment pertaining to the company i.e. accused no.1;
ii. Thereafter, the said cheque in question was given by Accused No. 3 to the complainant for the purpose of security;
iii. Furthermore, it was stated by her that she was not aware of the details of the transaction in question as she was not involved with the business of the accused company and iv. She denied receipt of the legal demand notice as she was hospitalized at that time. However, she was told about the legal demand notice by her neighbour.
13.6. Even when the statement of accused No. 2Smt.Nisha Saini, was recorded under Section 313 Cr.P.C., she again admitted her signature on the Cheque in question. At the cost of repetition it may be stated that this Accused No.2 is also representing Accused No.1 Company in these CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 16 of 38 proceedings. Similarly Accused No. 3 Mr.Sandeep Saini, also admitted his signature on the Cheque in question when notice under Section 251 Cr.P.C. was given to him. The same admission was again made by when his statement under Section 313 Cr.P.C. was recorded.
13.7. In view of the aforesaid oral evidence of CW1 Mr.Satish Mittal, as also the documentary evidence i.e. the said Cheque Ex.CW1/2, it stands proved on record and in fact it has also been admitted by Accused Nos.2 and 3 that the said Cheque was drawn on the account maintained in the name of Accused No. 1 company and the same had been signed by them i.e. Accused No. 2 Smt. Nisha Saini and her husband Accused No. 3 Sh. Sandeep Saini, as Directors of the Accused No. 1.
14. Now, the focal point that warrants determination is that "Whether the Accused had issued the cheque in question to the complainant for discharge, in whole or in part, of any debt or other liability or not ?"
14.1. Now coming back to the facts of the present case, what do we find. As already mentioned above, it CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 17 of 38 is not in dispute and in fact it has been admitted by Accused Nos.2 and 3 that the said Cheque in question Ex. CW1/2 is drawn on account maintained in the name of Accused No. 1 company and the same had been signed by them i.e. Accused No. 2 Smt. Nisha Saini and and her husband Accused No. 3 Sh. Sandeep Saini, as Directors of the Accused No. 1.
14.2. For finding about the truthfulness/ otherwise of the defence of the accused, we may note that when notice under Section 251 Cr.P.C. was given to Accused No. 2, she interalia stated, in her defence, that the Cheque in question was given by her to her husband (Accused No. 3) as blank signed cheque for the purpose of making payment pertaining to the company i.e. Accused No.1. Thereafter, according to her, the said cheque in question was given by Accused No. 3 to the Complainant for the purpose of security. At that very stage Accused No. 3 inter alia stated that the Cheque in question alongwith two other Cheques were given to the Complainant against payment of Rs. 4,75,000/. Also according to him, out of the total amount, payment of Rs. 2,75,000/ was already made to the Complainant in cash. But there was no receipt in this regard. So, on a combined CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 18 of 38 reading of the said admissions I have no hesitation in holding that Accused No.1 owed Rs. 4,75,000/ to the Complainant, when Ex. CW1/2 is drawn on account maintained in the name of Accused No. 1 company and the same had been signed by them i.e. Accused No. 2 Smt. Nisha Saini and and her husband Accused No. 3 Sh. Sandeep Saini, as Directors of the Accused No. 1.
14.3. So, in the face of the said evidence as also the admissions of the Accused No. 2 and Accused No. 3 themselves, it stands proved by the Complainant that the Cheque in question Ex. CW1/2 was issued by the Accused /drawers for the discharge, in whole or in part, of debt or other liability and this is the effect of the presumption under Section 139 of the NI Act, which at once comes into play. As per the said Section 139 NI Act, it shall be presumed that the issuance of the Cheque by the Accused/drawer was for the discharge, in whole or in part, of debt or other liability. Now once the presumption arises, the burden shifts on the Accused and now it was for the Accused to prove that the Cheque in question was not issued for consideration and in discharge of any debt or liability.CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 19 of 38
14.4. It has been held by the Hon'ble Apex Court in the case of K Bhaskaran v. Sankaran Balan [1999(7) SC 510 that "As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the N I Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears."
14.5. Also in Kumar Exports vs. Sharma Carpets (2009)2 SCC 513 it has been held that "Section 118 of the NI Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the NI Act stipulates that unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability. Applying the definition of the word 'proved' used in Section 3 of the Evidence Act, 1872 to the provisions of Section 118 and 139 the NI Act, it becomes evident that in a trial under Section 138 of the NI Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 20 of 38 instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Section 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a primafacie case for a party for whose benefit it exists". Further Hon'ble Supreme Court in this case also observed that "The accused in a trial under Section 138 the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial".
14.6. In the present fact situation mentioned above, the Accused persons could adduce either direct CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 21 of 38 evidence to prove that the Cheque/note Ex. CW1/2 in question was not supported by consideration and that there was no debt or liability to be discharged by them or otherwise some other material to show the same. Something which is probable had 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 their nonexistence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
14.7. So, in order to bring home the liability of the Accused No.1 company as well as the directors of the said company, it is pertinent to draw our attention towards Section 141 NI Act and the law laid by Hon'ble Apex Court in National Small Industries Corporation Ltd. v. Harmeet Singh Paintal and Ors., [(2010) 3 SCC 330], wherein it has been held as follows: "25) From the above discussion, the following principles emerge :
(a) The primary responsibility is on the CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 22 of 38 Complainant to make specific averments as are required under the law in the complaint so as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction.
(b) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company.
(c) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company along with averments in the petition containing that accused were in charge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.
(d) Vicarious liability on the part of a person must be pleaded and proved and not inferred.
(e) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.
(f) If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in complaint.CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 23 of 38
(g) The person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases.
14.8. Now, adverting our attention towards the facts of the present complaint, it has been inter alia specially averred by the complainant in Paras 2 to 4 of the complaint that "That the accused no. 1 is a registered company under the Companies Act and the Accused Nos. 2 and 3 are the Directors of the Accused No. 1 and managed the whole work being Directors of Accused No. 1 and responsible for its day to day affairs. The accused nos. 2 and 3 asked the complainant to invest money in their company i.e. accused no. 1 and gave lucrative offer of getting good interest in the end of scheme. The complainant and her family members being well known and having cordial relationship and visiting terms with the accused person agreed to invest in the accused company i.e. accused no 1. Further as per the Complainant upto July, 2015 a sum of Rs.4,27,250/ had to be paid and in lieu thereof she had to get back Rs.4,75,000/.' Even CW1 Satish Mittal proved inter the said facts by way of his affidavit Ex.CW1/A and CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 24 of 38 inter alia relied upon the deposit receipts Ex.CW1/1(Colly.). Even CW2 Nisha Mittal proved the said facts by her oral evidence. There was no challenge to the said version as contained in the complaint as also depositions of both the said witnesses that till July, 2015 a sum of Rs.4,27,250/ had been paid by the Complainant to Accused No.1, Company and in lieu thereof she was to get back Rs.4,75,000/ from Accused No.1, Company.
14.9. Also genuineness and/or authenticity of the deposit receipts Ex.CW1/1 (Colly.) was not challenged in the cross examination of the said witnesses. Significantly, as already mentioned, accused no.3 Sandeep Saini at the time of issue of notice under Section 251 Cr.P.C., categorically admitted 'that the cheque in question alongwith two other cheques were given to the complainant against payment of Rs. 4,75,000/'. So, it stands proved on record and is also admitted that Accused No.1 owed a sum of Rs. 4,75,000/.
14.10. As already mentioned above specific averments have been made qua Accused Nos. 2 and 3, the Directors of Accused No.1 Company. Also it has already been held above that even Accused Nos. 2 CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 25 of 38 and 3 have admitted their signatures, on the Cheque in question. Therefore, in light of the law laid down by the Hon'ble Supreme Court as well as the facts of the present case, Accused No. 2 as well as Accused No. 3, being the Directors of Accused No. 1 Company, being the signatories of the Cheque in question, are vicariously liable for the acts/omissions of Accused No. 1 Company.
14.11. It is relevant to mention, as already noticed above also, that the Accused No. 2 herself had admitted at the time of issuance of notice under Section 251 Cr.P.C., that the Cheque in question (Ex. CW1/2) was given by her to her husband (i.e. Accused No. 3) as blank signed cheque for the purpose of making payment pertaining to the accused company, the same being issued as a Security cheque. Now when this Accused No. 2 Smt.Nisha Saini was examined as DW1, she interalia stated that her husband(Accused No. 3.) had told her that he had given three blank cheques to the father of the complainant as Security. Further according to her, he i.e. her husband had also told her that he already had paid Rs. 2,75,000 to complainant's father against the liability of their investment towards them.(i.e. the CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 26 of 38 complainant) and only Rs. 2 lakh remained to be paid for which time was sought from the complainant by Accused No. 3, which was not agreed to by the complainant.
14.12. At the time of recording of his statement under Section 313 Cr.P.C. read with Section 281 Cr.P.C. on 01.05.2019 though the Accused No.3 had stated that he wanted to lead defence evidence but thereafter he did not enter the witness box despite being given various opportunities. Vide Order dated 03.03.2020 passed by the Ld. Predecessor of this Court, the right of Accused No. 3 to lead defence evidence, stood closed and matter was posted for final arguments. Thereafter before the Ld. Predecessor of this Court on 20.08.2020, an application was moved on behalf of the Accused No. 3 seeking to reopen his defence evidence and reply thereto was also filed on behalf of the complainant. . After hearing arguments on behalf of both the parties, vide Order dated 20.10.2020 passed by Ld. Predecessor of this Court, the above mentioned application moved on behalf of inter alia Accused No. 3, was dismissed. So in the face of the said facts it is clear that Accused No. 3 has failed to lead defence evidence. As has already been CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 27 of 38 mentioned above, it is the defence of the Accused that only an amount of Rs. 2 lakh remained to be paid the complainant out of the total amount of Rs. 4,75,000. The said defence, whatever its worth, has to be appreciated in the backdrop of the fact that neither said Accused No. 3 Mr.Sandeep Saini, who claims to have handed over inter alia three cheques including the Cheque in question and claimed to have paid in cash Rs.2,75,000/ to the father Sh.Satish Mittal(CW1), has not entered the witness box and therefore an adverse inference has to be drawn against the Accused to the effect that he would not have supported the said defence. In the face of this fact situation, the deposition of DW1 Mrs.Nisha Saini, Accused No.2, with regard to the said aspects is only hearsay and has no value in the eyes of law and therefore needs an outright rejection.
14.13. At the time issuance of notice under Section 251 Cr.P.C., one limb of the defence taken by Accused No.2 Smt. Nisha Saini was that the cheque in question was issued 'for the purpose of security'. In this regard it is pertinent to mention the law laid down by Hon'ble Apex Court in the case of M/s Womb Laboratories Pvt Ltd Vs Vijay Ahuja & Anr, CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 28 of 38 [CRIMINAL APPEAL NOS.13821383 OF 2019] (Arising out of SLP(Crl.) Nos.13651366/2019) decided on 11th September,2019 wherein it was held as follows: "5. In our opinion, the High Court has muddled the entire issue. The averment in the complaint does indicate that the signed cheques were handed over by the accused to the complainant. The cheques were given by way of security, is a matter of defence. Further, it was not for the discharge of any debt or any liability is also a matter of defence. The relevant facts to countenance the defence will have to be proved that such security could not be treated as debt or other liability of the accused. That would be a triable issue. We say so because, handing over of the cheques by way of security per se would not extricate the accused from the discharge of liability arising from such cheques."
14.14. This Court is of the opinion that even the said defence relating to 'Security' is also unsustainable in the eyes of law for the following reasons. Firstly as already mentioned it is a matter of record that on 10.07.2018 when Accused Nos.2 Mrs. Nisha Saini and her husband Mr.Sandeep Saini, Accused No.3 had appeared before Ld. Predecessor of this Court along with Sh. Ganesh Chandra Pandey, Advocate for all the three Accused persons and notice under CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 29 of 38 Section 251 'Cr.P.C.', was given, accused no.3 Mr. Sandeep Saini inter alia had stated that out of the total amount, payment of Rs. 2,75,000/ was already made to the complainant in cash and that the cheque in question alongwith two other cheques were given to the complainant against payment of Rs. 4,75,000/. These admissions of Accused No.3 Mr.Sandeep Saini clearly show that 'the Cheque in question alongwith two other cheques were given to the Complainant against payment of Rs.4,75,000/' and 'Payment Rs. 2,75,000/ was already made to the complainant in cash'. Use of the word 'already' by him at the time of alleged payment of Rs. 2,75,000/, is significant and decisive because had that been true, the question of his again giving 'three cheques including the cheque in question against payment of Rs.4,75,000/', would not arise because then the remaining liability would have been of Rs.2 lacs only and not of Rs.4,75,000/. These admissions clearly show that neither Rs. 2,75,000/had been paid in cash nor the question of handing over three cheques towards 'Security' arose. This defence is simply an afterthought and deserves to be rejected.
14.15. Falsity of the said defence of the Accused can CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 30 of 38 be viewed from another angle. It has been clearly averred in the complaint and also proved on record from the evidence of CW1 Satish Mittal and CW2 Neha Mittal that when the complainant presented the said cheque in question Ex,CW1/2 on 31.07.2017 with her banker Central Bank of India, Gulmohar Park, South Delhi, the said cheque got dishonoured vide return memo dated 01.08.2017 Ex,CW1/3 with remarks "funds insufficient" and thereafter the legal notice dated 11.08.2017 Ex,CW1/4 was sent on behalf of the complainant to the Accused. The said demand notice was correctly addressed and was sent through the prepaid post. It is not the defence of the Accused that the addresses mentioned thereon are wrong. As per the tracking report Ex. CW1/6, the Item stood delivered at the company's address. As per the two envelopes Ex. CW1/7 and Ex. CW1/8 annexed with the complaint, legal demand notices sent to the Accused Nos.2 and 3 at their Masjid Moth address, were returned with remarks "Refused".
14.16. Section 27 General Clauses Act, 1897 provides the meaning of the words service by post. It reads as follows: CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 31 of 38 "Section 27Where any 49 [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
14.17. Hon'ble Supreme Court in C. C. Alavi Hazi Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555, has, inter alia, held as follows: "9. It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address." It was further held in this case that 'Section 27 General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 32 of 38 the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed." 14.18. Now with regard to this aspect of the matter, CW1 Sh. Satish Mittal in Para 10 of his affidavit Ex,CW1/A, has interalia deposed that 'the Complainant presented the aforesaid cheque on 31.07.2017 with her banker Central Bank of India, Gulmohar Park, South Delhi ...'. Also CW2 Ms. Neha Mittal, the complainant in her deposition recorded on 07.01.2019 has also inter alia deposed that the said cheque was presented on 31.07.2017. These portions of the depositions of the said witnesses have not been challenged in his cross examination and are therefore deemed to have been admitted as CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 33 of 38 correct. So, it stands proved on record that the said cheque Ex.CW1/2 was presented by the complainant on 31.07.2017 with her banker Central Bank of India, Gulmohar Park, South Delhi, and Cheque No.473965 for a sum of Rs.4,75,000/, got dishonored vide cheque return memo dated 01.08.2017 Ex.CW1/3 with remarks "funds insufficient".
15. As already mentioned, it stands proved on record that when the cheque in question Ex.CW1/2 was dishonored on presentment vide cheque return memo dated 01.08.2017 Ex.CW1/3 with the remarks "funds insufficient'.
16. It is also the case of the complainant that thereafter, through her counsel, she got issued a legal demand notice dated 11.08.2017 Ex.CW1/4 to the accused No.1 company as well as Smt. Nisha Saini and Mr. Sandeep Saini, its directors i.e. accused no. 2 and accused no. 3 and the relevant prepaid Postal receipts dated 11.08.2017 bearing names and addresses of the addresses, are Ex.CW1/5(Colly.).
16.1. Tracking Report Ex.CW1/6 shows that the consignment got delivered to Jai Kalka Maa CPL on 14.08.2017 whereas the returned envelopes Ex.CW1/7 addressed to Smt. Nisha Saini and CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 34 of 38 Ex.CW1/8 addressed to Sh. Sandeep Saini, show that the consignments were refused to be accepted. A perusal of the said legal notice dated 11.08.2017 Ex.CW1/4 to the accused No.1 company as well as Smt.Nisha Saini and Mr. Sandeep Saini, its directors, clearly shows that inter alia the accused persons were asked to pay Rs. 4,75,000/ with interest @12% within 15 days of the receipt thereof.
16.2. Significantly at the time of issuance of notice under Section 251 Cr.P.C. it was interalia stated by Accused No. 2 Smt. Nisha Saini that she did not receive the legal demand notice sent on behalf of the complainant, as she was hospitalized at that time. However, she was told about the said notice by her neighbor. When Accused No. 3 Sh.Sandeep Saini was given notice under Section 251 Cr.P.C. he interalia stated that he did not receive the said legal demand notice as his wife was hospitalized at that time. However, he also got to know about the same from his neighbour. It is pertinent to mention here that when Accused No. 2 entered the witness box as DW 1 and was cross examined by Ld. counsel for the complainant, she deposed that "it is correct that I and accused No. 3 never made complaint against the CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 35 of 38 postal department and courier company namely 'The Professional Courier' regarding giving of false report in respect of denial of taking the legal demand notice and delivery." As has already been held by the Apex Court in the case of C.C. Alavi Hazi Vs. Palapetty Mohd. & Anr.(Supra) that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed." In the face of the aforesaid material it stands proved on record that the said legal demand notice dated 11.08.2017 Ex.CW1/4 stood served on the Accused No.1 company as well as Smt.Nisha Saini and Mr.Sandeep Saini, its directors i.e. Accused No. 2 and Accused No. 3, on 14.08.2017.
16.3. A perusal of the said legal demand notice dated 11.08.2017 Ex.CW1/4 reveals that it contained serious assertions of facts but despite receipt of the same, the Accused remained quiet and did not issue any denial in respect thereof. This amounted to admission of the said assertions. Hence the defence of the Accused No.3 during the proceedings in this Court to the effect that 'the cheque in question alongwith CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 36 of 38 two other cheques or that out of the total amount, payment of Rs. 2,75,000/ was already made to the complainant in cash or that he is liable to pay only an amount of Rs. 2,00,000/ to the complainant' or that of Accused No.2 for self and also for Accused No.1 that the cheque in question was given by her to her husband (Accused No. 3) as blank signed cheque for the purpose of making payment pertaining to the company i.e. accused no.1 or that the said cheque in question was given by Accused No. 3 to the complainant for the purpose of security, are false and an after thought. Therefore the same are rejected.
Conclusion
17. In view of the above discussion, I am of the considered opinion that all the ingredients of offence punishable u/s 138 NI Act have been fulfilled with respect to accused no.1, 2 and 3 and they have been unable to rebut statutory presumptions arising against them. There is no iota of doubt in holding that the cheque in question was issued by the accused in discharge of their legal liability.
18. Accused No. 1 Jai Kalka Maa Chit Pvt. Limited, Accused Nos. 2 Mrs. Nisha Saini and Accused No. 3 Mr. CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 37 of 38 Sandeep Saini, are hereby convicted for offence punishable under Section 138 NI Act. Let the convicts be heard separately on quantum of sentence. Copy of this judgment be given free of cost to both the sides.
Announced on 07.08.2021 through videoconferencing in presence of the counsel for complainant, accused no.3 Nisha Saini and her counsel. Digitally signed by AAYUSHI AAYUSHI SAXENA SAXENA Date:
2021.08.07 15:26:24 +0530 (Aayushi Saxena) Metropolitan Magistrate01 (South), NI Act/Saket/New Delhi/07.08.2021 CC NO. 10967/2017 Neha Mittal Vs. Jai Kalaka Maa Chit Pvt. Ltd. & Ors. Page 38 of 38