Delhi District Court
Samsung India Electronics P.Ltd vs Mr. Roshan Gairola on 19 March, 2025
CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA
IN THE COURT OF MS. NEHA SHARMA,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-04,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CRIMINAL COMPLAINT NO: 40733/2016
SAMSUNG INDIA ELECTRONICS PVT. LTD. ..........COMPLAINANT
VERSUS
ROSHAN GAIROLA ..........ACCUSED
U/s 138 Negotiable Instruments Act, 1881
1. CIS number : DLND020058442016
2. Name of the complainant : SAMSUNG INDIA ELECTRONICS PVT. LTD.
A-25, GF, Front Tower,
Mohan Co-operative Industrial Estate,
New Delhi-110044.
3. Name of the accused, : ROSHAN GAIROLA
parentage & S/o Sh. Pyarelal Gairola
residential address Sole Proprietor of
M/s. Universal Technical Solution
4, Cross Road New Budha Park,
Dehradun-48001,
Uttrakhand
Digitally
signed by
NEHA
NEHA SHARMA
SHARMA Date:
2025.03.19
16:30:57
+0530
Page no. 1 of 15 (Neha Sharma)
JMFC NI Act-04/NDD/PHC/ND
CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA
and also at:
A-52, Risapna Nagar,
Haridwar Road,
Dharampur,
Dehradun-248001
4. Offence complained of or : U/s 138 of Negotiable Instruments Act, 1881
proved
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Date of Institution : 18.02.2016
7. Date of judgment/order : 19.03.2025
8. Final Judgment/order : ACQUITTED
JUDGMENT
1. Vide this judgment, this court shall dispose of the aforementioned complaint case filed by the complainant SAMSUNG INDIA ELECTRONICS PVT. LTD. (hereinafter referred to as 'Complainant') against MR. ROSHAN GAIROLA, Proprietor of M/s. Universal Technical Solution (hereinafter referred as the 'Accused') filed u/s 138 of Negotiable Instruments Act, (hereinafter referred to as 'NI Act'). CASE OF THE COMPLAINANT
2. Succinctly, the case of the complainant is that the Complainant is a Company incorporated under the Companies Act, dealing in the business of manufacture and sale of consumer electronics, mobile phones and home appliances under the brand name of "Samsung". In order to provide after sales service to the product manufactured by the complainant company, it appointed the accused as the Authorized Service Centre (ASC) vide Authorized Service Centre Agreement dated 30.08.2012 which was effective from 30.08.2012 and valid for 2 years from the date of its execution. After expiry of the aforesaid agreement the Complainant on 30.04.2014 entered into Authorized Service Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:01 +0530 Page no. 2 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA Centre Agreement with the Accused wherein the Complainant appointed the Accused as the Authorized Service Centre for providing after sales service, maintenance and repairs of HHP (Hand Held Products) marketed in India under the brand name of "Samsung". The Accused on the aforesaid date also entered into a Spare Parts Agreement with the Complainant wherein he vide Clause 3(c) undertook to maintain the sufficient inventory of the spare parts and vide Clause 4(b) undertook to make payment for the spare parts purchased by him from the Complainant.
3. The Complainant Company, in accordance with the terms of the Spares Agreement, provided spare parts to the Accused as and when needed by it and raised the bills pertaining to the same at the relevant dates for which running account of the Accused was being maintained. The said agreement specifically permitted the Complainant to examine the service centre, the services rendered from there and all the necessary documents, records, manuals being maintained at Accused's Service Centre. At the time of appointment of the ASC, the Accused issued a letter enclosing therewith duly signed cheques bearing no. 048951 and 048952, both drawn on Bank of India, Dehradun Uttarakhand to the Complainant with a clear understanding that in the event of any amount due and payable by the Accused to the Complainant, remaining unpaid, the Complainant shall be authorized to fill up the date and such amount on the cheque as remains unpaid by the Accused.
4. The Accused assured the Complainant that the Accused shall keep sufficient balance in their account to honour the above stated cheques and he shall not stop the payment of the said cheques. It was also agreed by the Accused that if the Accused changes the signatory of the cheques and/or close the account, the Accused shall replace NEHA SHARMA Digitally signed by NEHA SHARMA Date: 2025.03.19 16:31:05 +0530 Page no. 3 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA the aforesaid cheques by providing the Complainant with new cheques either from the same or new account, which the Accused may open, as the case may be.
5. In the month of May, 2014, during the periodic audit of the accused, the Complainant Company, noticed various anomalies in the operations of the service centre by the Accused. In view of the aforesaid illegal act of the Accused and in order to ensure best quality services to its customers, the Complainant Company terminated the services of the Accused. It is also pertinent here to mention that on reconciliation of accounts, the Complainant found that the Accused has unlawfully extracted monies from the Complainant Company through various abnormal operations/calls, possession of loaner handsets and AR/AP Balance to the tune of Rs. 10,75,190.63 and also failed to provide C- Forms to the tune of Rs.2,08,815/- for the period April, 2014 to September, 2014. Thus, the Accused was liable to pay a total amount of Rs. 12,84,005.63/- to the Complainant.
6. In view of the termination of the Agreement and the amount of Rs. 12,84,005.63 which was due and payable by the Accused, the accused issued a cheque bearing no 048952 dt. 15.12.2015 of Rs. Rs. 12,84,005.63/- (hereinafter referred to as "cheque in question"). However, upon presentation, the cheque in question was returned to the Complainant vide Return Memo dated 17.12.2015 with remarks "Funds Insufficient". Thereafter, the complainant sent a legal demand notice dated 11.01.2016 to the accused demanding the payment of the cheque amount, however, despite the service of legal demand notice, accused did not make any payment in discharge of his liability. Having left with no other option, the present complaint has been preferred by the complainant against the accused U/S 138 NI Act.
Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:08 +0530 Page no. 4 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA SUMMONING OF ACCUSED AND NOTICE
7. On the basis of complaint, pre-summoning affidavit of evidence filed by the complainant and documents annexed with the complaint, cognizance of the offence U/S 138 NI Act was taken by Ld. Predecessor of this Court and process was issued against the accused on 18.02.2016. The accused entered appearance on 20.01.2017 and he was admitted to bail vide order dated 12.10.2017. The notice of accusation u/s 251 of the Code of Criminal Procedure, 1973 (hereinafter "CrPC") was recorded on 17.10.2019 to which accused pleaded not guilty and claimed trial. The plea of defence of the accused was recorded. Thereafter, vide order dated 12.03.2020, the application of the accused U/S 145(2) NI Act was allowed. The matter was, thereafter, listed for the evidence of the complainant.
EVIDENCE OF THE COMPLAINANT
8. To prove the case prima facie, the AR of the complainant company filed his affidavit of evidence under Section 200 of the Cr.P.C. by way of an affidavit i.e. Ex. CW-1/A wherein he has reiterated the averments made in the complaint. He placed reliance upon following documents:
(1) Ex. CW1/2 - Copy of Board resolution; (2) Ex. CW1/3 - Copy of Board resolution in favour of AR; (3) Ex. CW1/4 - Letter issued by the accused to the complainant; (4) Ex. CW1/5 - Copy of statement of account; (5) Ex. CW1/6 - Original cheque in question; (6) Ex. CW1/7 - Return Memo;
(7) Ex. CW1/8 - Legal Notice along with postal receipt; (8) Ex. CW1/9 - Copy of Tracking report.
Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:12 +0530 Page no. 5 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA
9. CW-1 was cross examined by Ld. counsel for accused at length. Thereafter, vide statement of AR of the complainant/CW1 recorded on 22.08.2023, CE was closed. EXAMINATION OF THE ACCUSED UNDER SECTION 313 CR.P.C.
10. The accused was examined under Section 313 Cr.P.C. on 12.09.2023 wherein the accused admitted that he was appointed as authorized service center by the complainant company and an agreement dated 30.08.2012 was also executed. He stated that he has provided C-Forms to the complainant. He admitted that at the time of agreement, the cheque i.e. Ex. CW1/6 was handed over to the complainant by him. He stated that he has not filled the particulars in the cheque but he admitted that the cheque bears his signatures. He further admitted issuing the letter i.e. Ex. CW1/4 to the complainant. The accused stated that he had given justification of alleged irregularities through e-mail to the complainant. He further stated that he has all e-mails and he did not keep any money of the complainant unlawfully and he also issued the C-Forms due to which he does not have any liability towards the complainant.
11. He further stated that the complainant did not inform him before presenting Ex. CW1/6 for encashment. He admitted receiving the legal demand notice and replying to the legal demand notice through e-mail. The accused stated that the complainant, in an unjustified manner put him out of business by imposing arbitrary penalties of approximately Rs. 18 Lakh and also made him spend Rs. 7 Lakh for re-location. The complainant further unlawfully appointed HCL as ASC in violation of the terms of agreement dated 30.08.2012. The complainant had Rs. 11,50,000/- as security amount of the accused which was never settled by the complainant. Thereafter, since the accused expressed his willingness to lead DE, the matter was listed for defence evidence.
Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:15 +0530 Page no. 6 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA DEFENCE EVIDENCE
12. The accused examined himself as DW-1. He was cross examined by Ld. Counsel for complainant. Pursuant thereto, vide separate statement of accused recorded on 23.07.2024, DE was closed and the matter was listed for final arguments. FINAL ARGUMENTS
13. Both parties addressed their final arguments. Ld. counsel for the complainant, argued that the accused has admitted execution of agreement, issuance of cheque in question, signatures upon the cheque in question and delivery of legal demand notice. He submitted that the accused did not take any steps to ensure that his cheque is not misused. Thus, the accused has failed to rebut the presumption U/S 139 NI Act. Accordingly, Ld. counsel prayed that the accused be convicted for the offence under Section 138 NI Act . Reliance was placed upon judgment in Bir Singh vs Mukesh Kumar (2019) 4SCC 197, Santosh Mittal vs Subha Dayal 2014 SCC OnLine Del 4472, V.S. Yadav v. Reena 2014 SCC OnLine Del 107, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16, Rangappa vs. Sri Mohan (2010) 11 SCC 441 and K. Bhaskaran vs Sankaran Vaidhyan & Anr. (1999) 7 SCC 510.
14. Per contra, Ld. counsel for the accused, argued that the accused owes no legal liability for payment of cheque amount to the complainant as cheque in question was given as a security cheque which has been misused by the complainant. He further argued that the statement of account filed by the complainant is not accompanied with any certificate U/S 65B IEA and the accused has rebutted the presumption raised U/S 139 NI Act but complainant failed to prove the guilt of the accused beyond reasonable doubt, hence, accused is entitled to be acquitted. He placed reliance upon judgments in Basalingappa vs. Mudibasappa (2019) 5 SCC 418, Samsung India Electronics Pvt. Ltd. vs MGR NEHA SHARMA Digitally signed by NEHA SHARMA Date: 2025.03.19 16:31:18 +0530 Page no. 7 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA Enterprises AIRONLINE 2019 DEL 2559.
FINDINGS
15. Before appreciating the facts of the case and evidences led by the both the sides for the purpose of decision, let us first discuss the relevant position of law which is embodied in section 138 of NI Act. In the case of Kusum Ingots and Alloys Ltd. vs. Pennar Peterson Securities Ltd. (2000) 2 SCC 745, the apex court has expounded the ingredients which are required to be fulfilled in order to constitute an offence under Section 138 of the NI Act. The relevant portion of the said judgment laying down the ingredients to be satisfied for making out a case under Section 138 of the NI Act is reproduced as under:
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been 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;
d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
e) 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 said notice.
Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:21 +0530 Page no. 8 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA
16. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. Having said that, it becomes imperative to mention Section 139 of NI Act which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
17. In the backdrop of the factual narrative of the case, following points of determination arises in the present case:
A. Whether the complainant has been successful in raising the presumption un- der section 118 read with section 139 of the N.I Act, 1881? B. If yes, whether the accused has been successful in raising a probable defence to rebut the presumptions?
18. Since criminal liability can be attached by proving each element of the section under which liability is sought to be enforced, I shall now go on to appreciate the evidence- documentary and oral, in light of how compellingly it satisfies each of such ingredient, if at all. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally en- forceable debt or other liability. The complainant has proved the original cheque in ques- tion and original return memo i.e. Ex. CW1/6 and Ex. CW1/7, respectively. The accused has admitted the original cheque in question and original return memo. The accused has NEHA SHARMA Digitally signed by NEHA SHARMA Date: 2025.03.19 16:31:25 +0530 Page no. 9 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA admitted his signatures on the original cheque in question and he has not disputed the orig- inal cheque in question to have been drawn on the account of the accused.
19. As per the scheme of the NI Act, once the accused admits signatures on the cheque in question, certain presumptions are drawn, which result in shifting of onus. The combined effect of Section 118(a) and Section 139 of the NI Act is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts required for the same are proved. Reliance is placed upon the judgments of the Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16 and Rangappa vs. Sri Mohan (2010) 11 SCC 441. The judgments in Bir Singh vs Mukesh Kumar, Santosh Mittal vs Subha Dayal, K. Bhaskaran vs Sankaran Vaidhyan & Anr. (supra) upon which reliance is placed by the Ld. Counsel for complainant also reiterate the settled proposition of law.
20. The principles pertaining to the presumptions and the onus of proof were summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 wherein it was held;
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise 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 Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:28 +0530 Page no. 10 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA rely on evidence led by him 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 imposed 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."
21. Coming to the case in hand, the issuance of cheque is not denied. The complainant has placed reliance upon the statement of account i.e. Ex. CW1/5. The primary contention of the Ld. Counsel for the accused is that the complainant has not filed any invoices and the statement of account i.e. Ex. CW1/5 cannot be read in evidence in the absence of a certificate of the appropriate authority under Section 65B of the Evidence Act. However, Ld. Counsel for complainant has argued that there is no requirement of certificate under Section 65B of the Evidence Act as Ex. CW1/5 is not a computer- generated document but only assimilated from the system.
22. The law regarding the relevance of certificate under Section 65B of the Evidence Act is no more res integra. In the case of Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal reported in (2020) 7 SCC 1, a three Judge Bench of the Hon'ble Supreme Court held that the required certificate under Section 65-B (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where the "computer" happens to be a part of a Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:31 +0530 Page no. 11 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA "computer system" or "computer network" and it becomes impossible to physically bring such system or network to the court, then the only means of providing information contained in such electronic record can be in accordance with Section 65-B (1), together with the requisite certificate under Section 65-B (4).
23. It is submitted by Ld. Counsel for complainant that Ex. CW1/5 is not supported by any certification under Section 65 B of the Indian Evidence Act. During cross examination, the AR of the complainant who examined himself as CW-1 admitted that the statement of account is maintained by the finance department of the complainant.
CW-1 stated that certificate under Section 65-B has been filed in support of all computer- generated documents, but, after perusing the judicial file, CW-1 admitted that certificate under Section 65-B has not been placed on record. Thus, an objection in this regard was taken by the Ld. Counsel from accused in the cross examination of CW-1, but in spite of the same, the complainant did not produce any such certification during the subsequent course of the proceedings before this court.
24. In a case titled as Samsung India Electronics Pvt. Ltd. vs MGR Enterprises AIRONLINE 2019 DEL 2559 with similar facts, the Hon'ble Delhi High Court held;
"17. Further, the petitioner company has placed on record the customer/ledger statement of account of the respondent firm maintained by them from 1st January 2011 to 30th November 2011 in order to show the liability. The same has been produced in the form of a computer printout which is a secondary evidence of the electronic record of data purportedly stored in the computer of the petitioner company. The petitioner company has not provided a certificate under Section 65B of the Evidence Act to prove the same and hence the ledger is inadmissible in evidence. Learned counsel for the petitioner contends that since no objection was raised qua the mode of proof at the time of Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:34 Page no. 12 of 15 (Neha Sharma) +0530 JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA exhibiting the copies of the ledger account and the same are duly exhibited, proved and admissible in evidence. This contention of learned counsel deserves to be rejected as in the absence of a certificate under Section 65B of the Evidence Act a computer-generated document is inadmissible in evidence."
25. Thus, the argument of Ld. Counsel for complainant that Ex. CW1/5 is not a computer-generated document but only assimilated from the system which does not require any certification under Section 65 B of the Indian Evidence Act is misplaced and deserved to be rejected. The reason for the same is that the original system in which accounts are maintained by the complainant were not produced before this court. The account statement Ex. CW1/5 would originate from the computerized data management system of the complainant maintained in a computer system or computer network. Thus, complainant would have to access the computer system or computer network of his bank as the statement of account would be maintained and stored in the same.
26. Whichever way one looks at it, Ex. CW1/5 is nothing but "information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer within the meaning of Section 65B (1) of the Evidence Act and in order that the same be admissible in evidence, it will require to be supported by a certificate of the appropriate authority under section 65B (4) of the said Act. However, despite objection, the complainant did not take any step to produce any such certificate at any subsequent stage of the proceedings.
27. During cross examination, CW-1 admitted that the invoices on the basis of which the liability of the accused has been ascertained has not been filed on record. The Ex. CW1/5 shows an amount of Rs. 31,140/- to have been charged towards interest. During cross examination, CW-1 stated that he cannot tell as to why this interest has been Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:38 +0530 Page no. 13 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA levied upon the amount of C-Forms. He again said that the interest is charged by Excise Department. Thus, there is no documentary proof except Ex. CW1/5 to prove the liability of the accused. Thus, in the absence of the certificate, account statement i.e. Ex. CW1/5 cannot be read which means that the complainant has not been able to prove the liability of the accused. In such circumstances, in the opinion of this court, the onus fell upon the complainant to produce material regarding the liability of the accused and it was probably for this reason that the complainant produced its account statement Ex. CW1/5 which cannot be looked into.
28. Thus, in the absence of Ex. CW1/5, the complainant has not been able to prove the liability of the accused. It is settled that the basic principle in criminal law is that the guilt of accused must be proved beyond reasonable doubt and if there is a slightest doubt about the commission of an offence then the benefit has to accrue to the accused. I am supported by judgment in Kulvinder Singh vs. Kafeel Ahmed MANU/DE/0786/2013. Thus, in the instant case also this doubt has been created by the accused through cross examination of CW-1 and by adducing evidence. Accordingly, the presumption stands rebutted. Once, the accused has rebutted the presumption U/S 139, it was imperative upon the complainant to prove its case beyond reasonable doubt but it failed to discharge its burden. At this stage, it is pertinent to refer to Section 43 of NI Act, which reads as-
"43. Negotiable instruments made, etc. without consideration: A negotiable instrument made, drawn accepted, endorsed, or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction".
29. From the bare reading of Section 43 of NI Act, it becomes clear that if a negotiable instrument is made or drawn without consideration, it creates no obligation of Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:41 +0530 Page no. 14 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND CC NI 40733/2016 SAMSUNG INDIA ELECTRONICS PVT. LTD. VS. ROSHAN GAIROLA payment between the parties to the transaction. The judgment in VS Yadav vs Reena (supra) is not applicable to the facts of the present case. Thus, the facts and circumstances brought on record, rebuts the presumption raised in favour of the complainant that the cheque in question was issued by the accused in discharge of any existing liability but the complainant failed to prove its case beyond reasonable doubt.
30. Accordingly, in view of the discussion made above and having considered the entire evidence, I have no hesitation to hold that in the present case, the complainant has failed to establish the very basic ingredient of offence under Section 138 of the Act i.e. issuance of the cheque in question in discharge of any existing legally enforceable debt or liability, thus, accused ROSHAN GAIROLA is acquitted of offence U/S 138 NI Act. Let copy of this judgment be uploaded on CIS.
Digitally
Announced in the open court on signed by
NEHA
on this 19th March, 2025 NEHA SHARMA
SHARMA Date:
2025.03.19
16:31:44
+0530
(NEHA SHARMA)
JUDICIAL MAGISTRATE FIRST CLASS
NI ACT-04/NDD/PHC/ND
Note :-This judgment contains fifteen pages and all the pages have been checked and signed by me. Digitally signed by NEHA NEHA SHARMA SHARMA Date:
2025.03.19 16:31:47 +0530 (NEHA SHARMA) JUDICIAL MAGISTRATE FIRST CLASS NI ACT-04/NDD/PHC/ND Page no. 15 of 15 (Neha Sharma) JMFC NI Act-04/NDD/PHC/ND