Delhi District Court
Have Been Laid Down In Jugesh Sehgal vs . Shamsher Singh Gogi 2009 (9) on 17 January, 2019
IN THE COURT OF SH. ASHOK KUMAR, MM04 (NI ACT)
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CC No. 512691/16
U/S 138 NI Act
M/s Gopala Sales Private Limited,
At 4830/24, Ansari Road,
Darya Ganj, New Delhi 110002.
(Through its Authorized Representative
Mr. Anuj Kumar). .......................Complainant
Versus
1 V2 Serve BPO Private Limited,
Plot bearing number 806807,
PhaseV, Udyog Vihar,
Gurgaon (Haryana)
Also at:
RZA1/6, Flat number 201,
Peepalwali Gali, Mahavir Enclave,
New Delhi110045.
2 Mr. Vaibhav Gupta, Director,
V2 Serve BPO Private Limited,
RZA1/6, Flat number 201,
Peepalwali Gali, Mahavir Enclave,
New Delhi110045.
Also at:
RZH3/78, Flat number B1,
Bangali Colony, Mahavir Enclave,
New Delhi110045.
3 Ms. Ekta Choudhary Director
V2 Serve BPO Private Limited,
C.C. No. 512691/16 Page1of 10
RZA1/6, Flat number 201,
Peepalwali Gali, Mahavir Enclave,
New Delhi110045.
Also at:
RZH3/78, Flat number B1,
Bangali Colony, Mahavir Enclave,
New Delhi110045.
Also at:
Flat No. 880, 3rd Floor, DDA
Flats, Pocket2, Sector6, Dwarka, Delhi
Behind Central Market, DDA Flats. .......................... Accused
Offence Complaint of or proved. : Section 138 of Negotiable
Instrument Act.
Plea of accused : Pleaded not guilty
Date of Institution : 22.09.2014
Date of Reserving order : 17.01.2019
Final order : Convicted
Date of pronouncement : 17.01.2019
JUDGMENT
FACTS OF THE CASE 1 The facts of the case as per the complaint are that the accused no. 1 through the accused number 2 and 3 has taken a part of premises bearing No. 806807, PhaseV, Udyog Vihar, Gurgaon, Haryana from the complainant and in discharge of liability towards payment of rent qua the aforesaid property, the cheques in question bearing No. 000045 and 000046 dated 10.08.2013 and 10.09.2013 for Rs. 59,901 each drawn on Kotak Mahindra Bank, Dwarka, Delhi in favour of the complainant which got dishonoured for the reason "Funds Insufficient" and even after the expiry of statutory period of 15 days of service of legal notice dated 08.10.2013, did not pay the cheques amount.
C.C. No. 512691/16 Page2of 10 TRIAL PROCEEDINGS 2 Thereafter, the complainant filed the complaint under Sec. 138 NI Act
after the accused failed to make the payment within 15 days of the receipt of legal notice. On the said facts, the accused persons were summoned and notice under Sec. 138 NI Act was framed against the accused persons to which they pleaded not guilty and claimed trial. Thereafter, accused moved application u/s 145(2) NI Act, which was allowed and thereafter case was fixed for cross examination of complainant. The complainant was cross examined by accused. Statement of accused persons were recorded u/s 313 Cr.PC r/w 281 Cr.P.C. Accused persons preferred to lead defence evidence and examined accused Vaibhav Gupta as DW1. Thereafter, final arguments were heard. The following documents were relied by the complainant in her evidence :
3 Complainant proved the following documents in his presummoning evidence : i Board Resolution, Form32, copy of agreement and cheques in question are Ex. CW1/A to Ex. CW1E.
ii Bank returning memos Ex. CW1/F and Ex. CW1/G. iii Legal notice and postal receipts are Ex. CW1/H and Ex. CW1/I. iv Affidavit of evidence of complainant is Ex. CW1/1. v Agreement executed between both parties is Ex. CW1/2.
vi Copy of the email dated 16.08.2013 Ex. DW1/X2.
vii Email dated 31.07.2013 is Mark DW1/X.
Accused proved the following documents in their defence: i Computer generated copyof emails Ex. DW1/A. C.C. No. 512691/16 Page3of 10 ii Rent agreement as Mark D1 Relevant Law 4 The ingredients to prove the commission of offence under Sec. 138 NI Act have been laid down in Jugesh Sehgal Vs. Shamsher Singh Gogi 2009 (9) SCALE 455. The relevant portion of the said judgment reads as under:
"9. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:
(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of C.C. No. 512691/16 Page4of 10 money to the payee or the holder in due course of the cheque within 15 days of the receipt off the said notice"
Presumption in favour of the holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
Further, explanation to section 138 of the ActFor the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
On service of legal notice in cases under NI Act In this respect it has been provided in the case titled as C.C. Alavi Haji Vs Palapetty Muhammed and Anothers (2007) 6 SCC 555 that the entire purpose of service of legal notice to the accused under Sec. 138 NI Act is to give an opportunity to the drawer to pay the cheque amount within 15 days of the service of legal notice and thereby free himself from the penal consequences. It conceives cases where a wellintentioned drawer may not have made necessary arrangements for reasons beyond his control to honour the cheque drawn by him and hence this opportunity has been provided. Hence, this provision is meant to protect honest drawers whose cheque may have been dishonoured for the fault of others or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. Hence, any honest drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Sec. 138 NI Act, make payment of the cheque amount and submit to the court that he has made payment within 15 days C.C. No. 512691/16 Page5of 10 of receipt of summons (by receiving a copy of the plaint with the summons) and, therefore, the complaint is liable to be rejected. Where a legal notice is sent under registered cover with proper address and stamp and sent along with the summons and complaint, then if it is contended that legal notice was not received only with a view to cheat the complainant, and such offer of payment was not made within 15 days of receipt of summons, then such dishonest drawer can not contend improper service of the notice by virtue of applicability of presumption under Sec. 27 GC Act and 114 Evidence Act.
5 ARGUMENTS HEARD AND DEALT WITH I have heard the submissions of both the Ld. Counsel for the complainant as well as the accused.
Before adverting to the portion whether the complainant during the evidence has satisfied the ingredients of the offence, it is pertinent to mention that Ld. Counsel for the accused has taken the preliminary objection that the Board Resolution does not authorize the complainant to file a criminal complaint and the authority has been confined to the civil cases but if the Board Resolution is seen, it is clear that the authority is case specific and name of the case has been mentioned wherein the AR has been authorized and hence, no more act is required on the part of the complainant in this respect.
6 Let us now examine whether the complainant has proved the necessary ingredients of the offence under Section 138 of the Act or not. 6.1 The first ingredient of the offence stands proved as original cheques placed on record as Ex. CW1/D and Ex. CW1/E and issuance of same is admitted by the accused in their defence plea to the notice framed u/s 251 Cr.P.C. It is C.C. No. 512691/16 Page6of 10 settled law that a signed cheque by the account holder is a complete instrument and the rest of the portions of the cheque can be filled by the complainant. Hence the first ingredient stands proved.
6.2 The second ingredient of the offence is that the cheque must have been issued in discharge of legal liability. As the signatures on the cheques are admitted, the presumptions raised under Section 139 of the Act become applicable and the issuance of cheques in discharge of the legal liability stands proved. The law on this point has been succinctly laid down by the Hon'ble Apex Court in Rangappa v. Sri Mohan AIR 2010 SC 1898.
In view of the aforesaid law, the presumption under Sec. 139 NI Act works in favour of the complainant once he files the necessary documents like the dishonored cheques, returning memo, legal notice and delivery proof and avers that the cheques were issued for legally enforceable debt or liability which the accused has failed to pay despite expiry of 15 days of the delivery of legal notice. In the present case not only the presumption u/s 139 N.I. Act that the cheque was issued in favour of the complainant company for a legally recoverable debt or liability but also other circumstances on the record are strengthening the presumption in favour of the complainant. In the present case the case of the complainant pertaining to the legally recoverable liability of the chaque in question is that it was issued in consideration of the rent due for the premises leased to the accused. As per the lease deed duly executed on 08.01.2013, the tenancy was for a period of 36 months commencing from 07.01.2013 and expiring on 06.01.2016. Also there was a lock in period of 12 months up to 6.1.2014. However, the accused have issued the cheques in question for the rent accrued which got dishonoured and hence, as per the complainant there is a legally recoverable liability on the cheques in question. As per the accused there is no C.C. No. 512691/16 Page7of 10 legally recoverable liability on the cheques in question because the complainant did not put the accused in possession of the leased premises as agreed as per the agreement Ex. CW1/2 and the accused was directed to shift from the first floor to the basement subject to undertaking by the complainant to give fully furnished basement floor to the accused. However, the complainant did not even fulfill the promise of furnishing the basement floor even after the required material costing about Rs. 25000/ was given to the complainant by the accused though it was the duty of the complainant to spend on such furnishing of the office of accused company. As per the accused the first floor was given to some other tenant and they had to vacate even after shifting to the basement and said vacation was done in June.2013. Because of the said reason of non fulfillment of the promise by the complainant, the accused submit that there is no liability to pay to the complainant.
However, I am not convinced with the arguments of the accused as the evidence regarding the legally recoverable liability is going against the accused. The accused are not able to prove during the evidence given by them that they vacated the premises though as per the complainant they vacated the first floor or that the complainant breached the terms or that there was an agreement to shift to the basement. In this regard the accused clearly admits that there was a lock in period of one year January, 2013 to January 2014 and that they do not have any original agreement to show that there was subsequent agreement to shift to basement and they admit that there is no original agreement on record to support their averments. Neither there is original subsequent agreement on the record nor the accused filed any application u/s 91 Cr.P.C so that direction may be issued to the complainant to bring the original to the court. Further the accused admit that they have not placed any proof on the record that C.C. No. 512691/16 Page8of 10 the rent was paid or that the cheques in question were not for the rent but for security purpose. In fact there is a clear admission on the record that the accused admit that the payment was sent through NEFT and IMPS for the accrued rent but when asked, no such proof was placed on the record. The accused also admit issuance of the cheques for the later period also thus showing that they were liable to pay on the cheques in question for the rent already accrued. Further the accused admit that no complaint was filed for non returning of the cheques when the complainant refused to return the cheques despite demand. Thus the failure of the accused persons to show any payment proof through NEFT/IMPS coupled with absence of rebuttal to prove any breach of terms of complainant and the conduct of the accused regarding non filing of complaint for the alleged misuse of cheques are enough to prove that the cheques in question were issued towards the legally recoverable liability. Hence this ingredient stands proved. 6.3 The third ingredient of the offence is that cheques must be presented to the bank within a period of six months from the date mentioned on it. The cheques are Ex. CW1/D and Ex. CW1/E and which were returned back unpaid on 13.09.2013 and the cheques dated 10.08.2013 and 10.09.2013. So it is evident that same was presented for payment within the statutory period of six months. 6.4 The fourth ingredient of the offence is that the cheque(s) must be returned unpaid. The cheque was returned unpaid for the reason "funds insufficient". The original bank returnmemo Ex. CW1/B placed on record proves dishonour of cheque by virtue of presumption raised under Section 146 of the Act and during the trial, Ex. CW1/B went uncontroverted.
6.5 The fifth ingredient of the offence is that the demand notice must be issued to the accused within 30 days of the intimation of dishonour of cheque and same be served upon the accused. The accused has denied receipt of legal C.C. No. 512691/16 Page9of 10 notice in his admission u/s 294 Cr.P.C. In view of Judgment of CC. Alavi Haji (Supra) this point can not be raised any more by the accused. If the accused had not received the legal notice, then he could have offered the payment within 15 days from the receipt of the summons in view of my aforesaid findings in the second ingredient that cheque was issued in discharge of legal liability. Hence, this ingredient also stand proved.
6.6 The last ingredient is that the accused must not have made the payment of the cheque amount within fifteen days of the receipt of legal notice. It is clear that the accused did not make the payment within 15 days and that is why the complainant has filed the case.
7 In view of the foregoing discussion it is proved that the cheque was presented against a legally recoverable liability in favour of the complainant and the cheque got dishonoured for reason of insufficient funds, the cheque was drawn and issued on account of the accused and for which payment was not made within the period of 15 days of the receipt of legal notice. DECISION
8. In view of the above discussion, the aforesaid accused persons are convicted for the offence under Sec. 138 NI Act and they be separately heard on the point of sentence.
Announced in the open (ASHOK KUMAR)
Court on 17.01.2019 MM04(NI ACT) CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
C.C. No. 512691/16 Page10of 10