Delhi District Court
M/S Oyster Constro Care Pvt. Ltd. And ... vs Shri Rathi Steel (Dakshin) Ltd on 9 September, 2025
1
IN THE COURT OF MS. DEEPTI DEVESH
ADDITIONAL SESSIONS JUDGE, SPL.FAST TRACK COURT
PATIALA HOUSE COURTS, NEW, DELHI
Criminal Appeal No. 141/2024
CNR No.DLND01-005001-2024
1. M/s Oyster Constro Care Pvt. Ltd.
Through it's Managing Director
Address at:
1179A/12, Sai Textile Complex,
Govindpuri, Kalkaji,
New Delhi 110019
2. Krishanu Mukhopadhyay (Director)
M/s Oyster Constro Care Pvt. Ltd.
Address at:
1203G, Tower BPTP
Sector 82, Faridabad (HR)
Haryana
......Appellant
Versus
Shri Rathi Steel (Dakshin) Ltd.
F-55-D, G.T.B. Enclave
Delhi 110093
Through
Sh. Karnal Sheel Maheshwari
.........Respondent
2
-:JUDGMENT:-
1. The present appeal has been preferred by the appellant (accused before Ld. Trial Court) against the impugned judgment dated 29.01.2024 and order on sentence dated 04.05.2024 of Ld. MM-02, NDD, Patiala House Courts, passed in complaint case u/s 138 NI Act.
By way of the said impugned judgment, the appellant as Director of the accused company Oyster Constro Care Pvt. Ltd was convicted of offence punishable u/s 138 NI Act and sentenced to TRC and payment of fine of Rs.23,07,963/-, payable as compensation to the respondent (complainant before Ld. Trial Court). For the sake of convenience, both parties shall be referred as their original position before the Ld. Trial Court, i.e. as complainant and accused.
2. The facts relevant for deciding the present appeal, in brief are as follows. The complainant presented two cheques both dated 16.11.2012 issued by accused company Oyster Constro Care Pvt. Ltd and signed by accused Director, which cheques were dishonored for the reason 'Exceeds Arrangement' vide memo dated 20.11.2012. Thereafter, legal notice was issued to the accused dated 05.12.2012 sent on 06.12.2012. Thereafter, the accused failed to make payment to complainant and the complaint was filed before Ld. Trial Court.
3. After recording of pre-summoning evidence, the Ld. Trial Court summoned accused vide order dated 30.05.2015. Notice u/s 251 Cr.P.C was given to accused Director on 26.09.2016, in which he pleaded not guilty and stated that he will disclose his defence in application u/s 145(2) NI Act. The complaint case was transferred on account of change in territorial jurisdiction during trial and the case was finally tried by Ld. 3 Trial Court having jurisdiction over PS Connaught Place. Subsequently, the application u/s 145(2) NI Act was allowed vide order dated 24.05.2019. AR of the complainant was cross-examined and discharged on 29.03.2022 and on the same day, complainant's evidence was closed. Statement of accused Director u/s 313 Cr.P.C was recorded on 28.01.2023 in which he declined to lead any defence evidence and stated that he had no liability towards the complainant and the cheques in question were given as blank security cheques to one company namely Rathi Rajasthan Steel Mills, but he never received any supply of material from the said company. Thereafter, final arguments were addressed and the impugned judgment and order on sentence were passed against the accused.
4. Now, the accused Director has filed the present appeal challenging the impugned judgment and order on sentence on the following grounds:
a) that the Ld. Trial Court has failed to appreciate that witness of complainant admitted having no personal knowledge of the transaction or of any other relevant facts in his evidence.
b) that the complaint itself was not maintainable due to technical defects in authorization of the concerned AR of the complainant company.
c) that the accused never placed any purchase order upon the complainant but purchase orders were issued to one company namely Rathi Rajasthan Steel Mills Ltd. and no material was also supplied to the accused even by the said company. The invoice clearly shows that the consignee was Delhi International Airport Pvt. Ltd. and not the accused company.
d) that the cheques in question were never issued to the complainant 4 and there were never any transactions between the complainant and accused.
e) that the complainant failed to produce any VAT and C-Form for the alleged transactions between the parties because there never was any such transaction.
f) that the TIN number mentioned in the purchase orders and the invoice relied upon by the complainant show that they are not the same and therefore, it establishes that the purchase orders were not placed upon the complainant and accused has no liability towards the complainant.
g) that the accused had rebutted the presumptions in favor of complainant as soon as his application u/s 145(2) NI Act was allowed by the Ld. Trial Court, which has not been appreciated in the correct perspective in the Ld. Trial Court.
h) that the legal notice was deliberately sent at wrong address of the accused, which was never received by the accused.
i) that the Ld. Trial court failed to appreciate that offence punishable u/s 138 NI Act is a technical offence and the complainant has failed to meet all the ingredients necessary for making out the said technical offence.
5. The accused has reiterated the above said averments in its appeal at the time of advancing oral arguments in the present appeal. Apart from the above grounds, accused advanced oral arguments on further points, not otherwise mentioned in the appeal itself, which relate to point no. (f), (g) and (h) of para no. 4 as stated above. Written arguments have also been filed by the accused in support of his oral arguments. Reliance has also been placed upon the following judgments by accused.
5a) BB. Chaudhary & Anr Vs. Govinder Arora & Ors. 2008 [1] JCC [NI] 88
b) K. Prakashan Vs. P.K. Surenderan 2007 (4) LRC 83 (SC).
c) Vipul Kumar Gupta Vs.Vipin Gupta 2012 (4) JCC [NI] 248.
d) Reverend Mother Marykutty Vs. Reni C. Kottaram & Anr. (2013) 1 SCC 327.
e) Saroj Kumar Poddar Vs. State (NCT of Delhi) & Anr. (2007) 3 SCC 693.
f) Jayashree Khemka & Anr. Vs. Prema Kanodia 2008 VIII AD (Delhi) 693
g) Rajaram S/o Sriramulu Naidu (since Deceased) through Lrs. Vs. Maruthachalam (since Deceased) through Lrs of 2023 LiveLaw (SC) 46.
h) N.K. Wahi Vs. Shekhar Singh & Ors. 2007 [1] JCC [NI] 112.
i) Smt. Rachna Kapoor Vs. State (NCT of Delhi) & Ors. 2005 [2] JCC [NI] 178.
j) Praveen Kumar & Anr. Vs. Sri Balaji Onion Co., Rep. By its Partner M. Prabhakar Rao & ors. 2005 [2] JCC [NI] 180.
k) Raghuvir Goswami Vs. Nirmal Thakur 2005 [2] JCC [NI} 182.
l) Gita Berry Vs. Genesis Educational Foundation 2008 [2] JCC NI
153.
m) Suresh Sharma Vs. M/s.New Coolwell Industries & Ors. 2009 [2] JCC NI 85.
n) Sameer Karnani Vs. State & Anr. 2009 [2] JCC [NI] 91.
o) Padma Nagpal & Anr. Vs. M/s. Bank of India 2008 [1] JCC [NI]
90.
6. Per contra, the complainant has challenged the grounds raised in the present appeal. No written reply to the present appeal has been filed, 6 but oral arguments have been advanced on behalf of complainant. It has been submitted by the complainant that the accused never raised any arguments on the basis of facts as claimed in the present appeal before the Ld. Trial Court and therefore, he can not be permitted to raise disputed questions of fact in appeal. It has been further argued that the presumption operates against the accused and he had to prove the necessary facts for his defence by leading evidence, but he failed to lead any evidence before the Ld. Trial Court and thus, presumption was never rebutted in this case. It has been further argued that the purchase order is in the name of sister company of complainant and the same were issued in the name of the sister company at the request of accused himself. Written arguments were also filed on behalf of the complainant in support of oral arguments.
7. Arguments have been heard. Record has been perused. Trial court record was also summoned and same has been perused.
8. The accused has faced trial for offence punishable u/s 138 NI Act. The essential ingredients for offence punishable u/s 138 NI Act are as follows -
a. that a cheque was drawn in favor of complainant by the accused, b. the cheque drawn was in discharge of whole or part of legally enforceable debt or liability, c. the cheque so drawn was presented for encashment by the complainant at his bank within period of its validity or three months, whichever is earlier, d. the cheque so presented was returned dishonored as unpaid due to specific reasons informed by the bank, e. that within 30 days of dishonor of cheque, legal notice in writing was issued by the complainant to 7 the accused calling for payment of the dishonored cheque, f. that accused failed to make payment of the cheque amount within 15 days of receipt of legal notice, g. that after failure of accused to make payment of cheque amount within 15 days of receipt of legal notice, within 30 days complainant presented the complaint u/s 138 NI Act before the LD. Trial Court.
9. Apart from the necessary ingredients of offence punishable u/s 138 NI Act, the presumptions attached to the said offence under the provisions of section 118 and 139 NI Act are also pertinent to be noted. As per the presumption in favor of complainant, once the complainant establishes that the cheque in question was executed by the accused in his favor, it would be presumed under law that the cheque in question was drawn for consideration and the complainant received it in discharge of debt or liability. The nature of presumption u/s 118 and 139 NI Act is rebuttable and the said presumptions are not evidence in favor of the complainant , but aids in establishing the prima facie case for the complainant. In this regard, reliance is placed upon the judgment of Hon'ble Supreme Court of India in Hiten P. Dalal Vs. Bratindranath Bannerjee (2001)' 6 SCC 16. Furthermore, both the said presumptions as contained in section 118 and 139 of NI Act are raised in favor of complainant, when the accused does not dispute the signatures on the cheques in question. In this regard, reliance is placed upon the observations on Hon'ble Supreme Court of India in K. Bhaskaran Vs. Shankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, wherein it has been held, 8 "as the signatures in the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drwan for consideration on the date when the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
Reliance is also placed upon the observations of Hon'ble Supreme Court in Rangappa Vs. Mohan AIR 2010 SC 1989 in this regard.
10. The complainant has examined AR of the complainant company as the sole witness during trial. He relied upon the following documents to establish all the necessary ingredients for offence punishable us/ 138 NI Act:
S.No. DOCUMENTS EXHIBITS 1. Copy of authorization is Exhibit CW-1/A
2. Delivery to the accused of MS Bar CW-1/B (colly) TMT vide invoice dated 20.10.2011. The copy of the purchse order & Invoice
3. Issuance of two cheques no. CW-1/C (colly) 508342 dated 16.11.2012 and cheque no. 508346 dated 16.11.2012, original cheques are
4. Bank Endorsement EXCEED CW-1/D. ARRANGEMENT on 19.11.2012, the original memo is
5. Copy of the notice with postal CW-1/E. receipt is
6. Notice returned with refusal to CW-1/F (colly) receive. The original Regd. Letter are
7. Complaint filed by complainant CW-1/G bearing the signature of 9 complainant
11. The challenge raised on the ground of faulty institution of the present complaint u/s 138 NI Act is well answered in the impugned judgment itself. It is the prerogative of the complainant company to choose its AR to represent itself in trial. The complainant company does not lose this right to choose its AR at any time during trial and law does not mandate that AR once appointed can not be changed by the complainant company. Simply because the complainant company has instituted the present complaint through one AR, subsequently examined another AR in pre-summoning evidence and subsequently presented another AR before court for cross examination by accused, does not necessarily imply that the complaint has not been properly instituted. The length of trial in this case i.e. from the year 2015 till its culmination in 2024, itself shows the necessity that complainant company must have faced for changing AR, on account of its employees changing in this period. The accused has failed to produce any material during trial to suggest that the complaint was instituted on authority of an AR, who was not otherwise authorized to represent the complainant company in this case in any manner. Simply because AR changed at various stages during trial, does not lead to any conclusion regarding faulty institution of the case. The accused has also failed to lead any evidence before the Ld. Trial court to show that AR of complainant did not have any knowledge regarding the facts of the case. He has claimed that the evidence of AR recorded before the Ld. Trial Court shows that his knowledge was based on hearsay evidence only, as he came to know about facts from the previous AR only. Essentially, offence punishable u/s 138 NI Act is a technical offence, based on documentary evidence 10 and perusal of the testimony of AR of complainant company clearly shows that he has nowhere stated not having knowledge of facts of this case specifically. Being AR of complainant company, he is aware of the documents relied upon by the complainant company in this case and knowledge on the basis of those documents would also be sufficient for his competency to depose on behalf of the complainant company. The answers given by AR to the questions regarding the transaction as " I do not know ..." are more in relation to AR not having personal knowledge about the transaction, but that again does not mean that he did not have knowledge on the basis of documents. Furthermore, this court is in agreement with the case law relied upon by Ld. Trial Court in AC Narayanan Vs. State of Maharashtra (2014)11 SCC 790 in the impugned judgment to hold that the institution of the complaint case before the Ld. Trial court was as per law and therefore, no interference in this regard is required qua the impugned judgment from this court. Accordingly, the complaint case as instituted, as per the record of the Ld. Trial Court is held to be maintainable.
12. Although in the appeal itself, no ground on the basis of different TIN numbers has been raised by the accused, but oral arguments were advanced on this aspect. Even if it is assumed that TIN numbers mentioned in the purchase orders and invoice are different, the liability of accused can not be disputed, because the invoice is generated in the name of complainant and TIN number mentioned therein belongs to complainant, implying that payment was due to the complainant from the accused. The purchase order may have been placed upon a different entity but the liability for the said transaction becomes payable on the invoice which is issued in the name of the complainant bearing the details of the complainant. Thus, the arguments advanced that purchase 11 order was placed upon a different entity as is clear from the copy of the purchase order itself, is untenable. Furthermore, in like manner, the liability of accused can not be disputed on the basis of consignee name in purchase order or invoice. The invoice is generated in the name of accused company and it is immaterial who receives the consignment as consignee, because as per invoice, the payment liability is upon the accused only. It is also pertinent to note that as per purchase order, it is clearly stated at S.No. 8 of the terms and conditions that accused himself had directed to show the consignee name to be Delhi International Airport Pvt. Ltd. The condition reads as follows:
"the rates above are inclusive of ED + DVAT, however you have to show basic, excise and DVAT amount separately on the invoice with the consignee name as Delhi International Airport Private Limited".
Now, the accused can not go back and hide behind consignee name after giving instructions in this regard. It also can not be lost sight of that during entire trial, the accused has remained silent and never questioned the authenticity of purchase order and invoice. He has never raised this defence that the said documents are forged and fabricated. When the documents, including the invoice, are accepted as true and correct documents by the accused himself then he can neither dispute the transaction conducted on the basis of the said documents, nor dispute liability arising out of the said invoice, in favor of complainant.
13. The accused has also raised issue with the cheque amount stated in the cheques in question that they are not matching in the amount mentioned in the invoice produced by the complainant. However, it is clear from bare perusal that the cheque in question separetly bears less amount than the invoice. Thus, the cheques in question could have been issued separately for discharge of part liability through each cheque in question, which is permissible in law.
1214. The accused has also challenged the impugned judgment and order on sentence on the ground that he never received the legal notice issued by complainant company, which is a mandatory requirement u/s 138 NI Act. It has been argued that the address mentioned in the legal notice Ex.CW1/E is not the address mentioned in the purchase order or invoice and therefore, the complainant deliberately issued legal notice at different address to falsely implicate the accused. It has been stated that as per purchase order and invoice the registered office address of the accused is different that what has been mentioned in the legal notice. Firstly, the arguments specific to different address mentioned in the legal notice has not been taken before the Ld. Trial Court as is clear from the impugned judgment and in fact it has been observed by Ld. Trial Court that the corporate office address as mentioned in purchase order is the address where legal notice has been sent. Thus, new arguments have been raised in appeal on basis of facts, which is impermissible. Furthermore, the record shows that complainant has also relied upon the post office report Ex.CW1/F regarding attempt to serve the legal notice wherein it is mentioned " lene se inkaar". The entire material in the trial court record does not reveal any challenge by accused to Ex.CW1/F. Thus, it is the accused who refused to receive the legal notice sent by complainant and now accused can not take benefit of such refusal in appeal. Furthermore, this court is in agreement with the reasons propounded by the Ld. Trial court alongwith case laws relied upon the case of Alavi Haji Vs. Palapetty Mohammed (2007) 6SCC 555 in respect of receipt of legal notice u/s 138 NI Act and no interference in this regard is called for in the impugned judgment.
15. Apart from the grounds taken in the appeal by the accused, after 13 perusal of the trial court record, it has come to light that accused has taken contrary defence at different stages during trial. It is settled law that offence u/s 138 NI Act is a summary triable offence, which can be tried as summons triable offence at discretion of Ld. Trial Court and if the accused shows that he has some substantive defence to produce during trial. In order to show this substantive defence, accused has been given an opportunity vide application u/s 145(2) NI Act. In the instant case, at the stage of framing of notice, accused stated that he will disclose his defence in application u/s 145(2) NI Act. In the said application, accused took the defence of the cheques in question, being security cheques in possession of complainant and not issued against any liability. Thus, the accused failed to disclose that the cheques in question were blank signed security cheques but merely stated that they were security cheques at the stage of application u/s 145(2) NI Act. Thereafter, he took the defence in cross examination of AR of complainant company that no material was supplied to accused and so, there was no liability on accused. No suggestion was given to AR of the complainant company that the cheques in question were given as blank signed cheques for security or that the details on the cheques in question have been filled by the complainant without any instructions from the accused. Thereafter, at the stage of statement u/s 313 Cr.P.C, he took the defence that he had transaction with one company namely Rathi Rajasthan Steel Mills and on their demand, he had issued the cheques in question as blank signed security cheques to the said company and not to the complainant. He further stated that he did not receive any material from the said company Rathi Rajasthan Steel Mills and never received any legal notice and there is no liability qua the complainant. Therefore, it is clear from the above that the accused has improved upon his defence at every stage during trial and never disclosed his entire defence 14 in one go. Such improvements at every stage by the accused in his defence can not result in rebuttal of the presumption existing in favor of the complainant u/s 139 NI Act. More so, in light of the fact that accused has deliberately chosen not to lead any evidence to substantiate even a single fact related to his defence. In such situation, the presumption u/s 139 NI Act can not be said to have been rebutted, resulting in any shifting of the burden of the proof. The burden of proof remained upon the accused to establish his defence, whereafter only the onus would have shifted to the complainant to prove all facts relating to the transaction in question.
16. With respect to presumptions in favor of complainant for offence punishable u/s 138 NI Act and the manner in which the presumption can be rebutted by accused and how onus shifts like a pendulum in the trial u/s 138 NI Act has been discussed at length in the judgment of N. Vijay Kumar Vs. Vishwanath Rao N. in Crl. Appeal No. 5305/2024 decided on 22.04.2025 by Hon'ble Supreme Court of India. In the instant case, there has been no occasion during trial, as reflected by record that the onus shifted upon the complainant at any point of time to prove its case against the accused and thus the presumptions, always remained in favor of the complainant. Ld. Counsel for accused had argued that presumption stands rebutted with allowing of application u/s 145 (2) NI Act. However, he failed to produce any case law in support of his argument that has interpreted allowing of application as equivalent to rebuttal of presumption. It is well established principle of law that presumption, if rebuttable, can be rebutted on the basis of disputed facts. However, in a case where accused has not led any evidence to establish the facts pleaded by him, how the presumption stands rebutted in his favor is incomprehensible to this court.
1517. The case laws relied upon by accused are not advancing the case of accused as they are distinguishable of the peculiar facts and circumstances of this case.
18. Thus, in view of the above discussion, it is clear that the complainant has established its case against the accused and the present appeal is devoid of any merits. Accordingly, the present appeal is dismissed.
Digitally signed by Typed directly upon dictation on court DEEPTI DEEPTI DEVESH computer and announced in Open Court, DEVESH Date:
2025.09.10 On 09th of September, 2025 15:59:05 +0530 (Deepti Devesh) ASJ/Spl.FTC/PHC/09.09.2025 16