Delhi District Court
M/S T.K. Leasing & Finance Pvt. Ltd. vs . on 23 August, 2022
IN THE COURT OF MS. AAYUSHI SAXENA
METROPOLITAN MAGISTRATE (SOUTH) 01,
N.I. ACT, SAKET COURTS, NEW DELHI
IN THE MATTER OF
CC NO.476333/2016
M/S T.K. LEASING & FINANCE PVT. LTD. VS.
GHANSHYAM DAS BINANI
1. Complaint Case number : CC No. 476333/2016
2 Name of the complainant : M/s T.K. Leasing & Finance
Pvt. Ltd.
F8, Sheikh Sarai, PhaseI,
Near Community Centre, New
Delhi
3. Name and address of the : Ghanshyam Das Binani,
accused S/o Sh. Ganga Das Binani,
R/o C31, Greater Kailash,
PartI, New Delhi.
Also at :
B236, Gate No. 6, Okhla
Industrial Area, PhaseI, New
Delhi
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
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 1 to 56
7. Date of Institution : 27.11.2014
8. Date of Reserving the : 04.08.2022
Judgment
9. Date of Pronouncement : 23.08.2022
Judgment
1. Vide the instant judgment I shall dispose of the instant
complaint under Section 138 read with Section 142 of the
Negotiable Instruments Act, 1881 (hereinafter "the NI Act") which
had been filed on 27.05.2014 by the Complainant against the
Accused.
2. Bereft of unnecessary details, the Complainant in the instant
complaint has inter alia averred as follows:
2.1.That it is a Company registered under the Companies
Act,1956;
2.2.That the management of the Complainant was well
acquainted with the accused and had very well close
relations with the Accused for the past around 20 years.
In fact the Accused was very known to the Complainant
and had cordial relations with Sh. Ram Niwas Daga,
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 2 to 56
Promoters(sic) and Directors(sic) of the Complainant
M/S Shree T.K.Leasing and Finance Pvt. Ltd.;
2.3.That Mr. Kishore Daga, has been duly authorized by the
Complainant vide Board Resolution dated 22nd May,
2014, to sign, verify and institute the present complaint
against the aforesaid Accused;
2.4.That sometimes in June, 2001, the Accused approached
the Complainant through its Directors and sought a
friendly loan to the tune of Rs.4,00,000/ since he was in
dire need of money, at a mutually agreed rate of interest
@ 15% per annum and pursuant thereto, the
Complainant advanced a friendly loan of Rs.4,00,000/
to the Accused vide two cheques, both drawn on Central
Bank of India, one bearing no.173309 on 15.06.2001 for
a sum of Rs.3,00,000/ and other cheque bearing no.
173314 on 25.06.2001 for a sum of Rs.1,00,000/. Also
according to the complaint, besides the said loan,
another Company namely Shree Daga Leasing and
Investment Pvt. Ltd., had also advanced friendly loan to
the Accused;
2.5.That as per the agreement in respect of the loan in
question, the Accused continued to serve the interest till
21.04.2007 but he did not return the Principal amount to
the Complainant and also did not pay agreed interest,
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 3 to 56
despite various requests of the Complainant;
2.6.That on approaching the Accused in December, 2013
and again in January, 2014 as well as in February, 2014
and demanding the clearance of the entire outstanding
dues, the Accused issued a letter dated 01.03.2014 to
Directors of the Complainant namely Sh. Ram Niwas
Daga, wherein he acknowledged that two separate
friendly loans were availed of by him from Shree Daga
Leasing and Investment Pvt. Ltd., Shree T.K. Leasing
and Finance Pvt. Ltd. and also a friendly loan which was
taken by company of the Accused namely M/s Dialnet
Communications Limited;
2.7.That after duly acknowledging the said debt, the
Accused issued a cheque bearing no. 609065 dated
01.03.2014 for a sum of Rs.18,59,293/ drawn on Bank
of Rajasthan, C191, Greater KailashI, New Delhi to
the Complainant, which was inclusive of interest up to
28.02.2014 towards full and final settlement of account
of the Complainant, in favour of the Complainant;
2.8. That the Complainant presented the said cheque in
question which was returned unpaid by the banker of the
Complainant vide returning memo dated 05.04.2014,
with the remarks 'funds insufficient';
2.9. That thereafter, the Complainant got issued to the
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 4 to 56
Accused the Legal Demand Notice dated 21.04.2014
within the statutory period of time, through its counsel,
but despite service of the said legal notice the Accused
failed to pay the cheque amount and
2.10. That aggrieved by the non receipt of payment, the
Complainant was constrained to file the present
complaint.
3. Pursuant to the filing of the said complaint, Mr. Kishore Daga,
AR of the Complainant, filed his affidavit dated 27.05.2014
Ex.CW1/X by way of his pre summoning evidence and he also
relied upon various documents Ex.CW1/1 to Ex.CW1/10,
mentioned therein.
4. Cognizance of the offence under Section 138 NI Act vide order
dated 07.04.2015 was taken by Ld. Predecessor Court and
summons were ordered to be issued for attendance of the
Accused.
5. Thereafter, the Accused entered appearance on 08.12.2015.
6. Vide order dated 11.04.2016 passed by Sh. Sonu Agnihotri,
Ld. C.M.M., South, Saket, the present case was transferred to
this Court.
7. Thereafter, on 20.12.2016 Accused was admitted to bail. On
that very date i.e. 20.12.2016, Notice under Section 251 Code
of Criminal Procedure, 1973 (hereinafter referred to as
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 5 to 56
'Cr.P.C.') was given to the Accused by Ld. Predecessor of this
Court and he was asked whether he pleaded guilty or claimed
trial. In reply to this, the Accused pleaded not guilty and
claimed trial. In his statement of defence recorded on that very
date, the Accused, interalia, stated as follows:
a. "That the cheque in question was given around the
year 19971998 to Mr. Ram Niwas Daga i.e. father of
the Complainant for different transaction.
b. The cheque in question bears my signatures only.
Other details on the same are not in my handwriting
and the Complainant did not have any authority to fill
the same.
c. The cheque in question did not pertain to the present
transaction. The said cheque is forged and fabricated.
d. I received legal demand notice. I had given replied
(sic) to the same."
7.1. As the said statement of defence of the Accused
revealed a specific defence, he was allowed to cross
examine the witness under section 145 (2) NI Act.
7.2. Given the nature of the allegations, Ld. Predecessor of
this Court had directed that the case shall be tried as a
Summons case under Chapter XX of Cr.P.C.
8. Thereafter, CW1 Sh. Kishore Daga adopted his earlier
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 6 to 56
affidavit dated 27.05.2014 Ex.CW1/X tendered by way of his
pre summoning evidence and also relied upon various
documents Ex.CW1/1 to Ex.CW1/10, mentioned therein.
Thereafter, his cross examination started on 13.04.2017 and
after completion thereof, he stood discharged on 12.10.2017.
Thereafter in support of the Complainant, Vishnu Dutt
Gautam, Asstt. Manager, Central Bank of India, a summoned
witness was examined as CW2 on 09.02.2018, who produced
the certified copy of the Bank Statement Ex.CW2/1 and after
grant of an opportunity to the Accused to cross examine him,
he was discharged and on submission of Ld. counsel for the
Complainant made on 09.02.2018, CE stood closed.
9. After closure of Complainant's evidence on 09.02.2018,
Statement of the Accused under Section 313 Cr.P.C. read with
Section 281 Cr.P.C. was recorded on 03.05.2018 whereby
circumstances appearing against him in evidence, were put to
him wherein it was stated by him as follows:
a. That he had financial relations with Mr. Ram Niwas
Daga.
b. He also admitted as correct that on the basis of his
relations, the Complainant used to give loans to him
as per his requirements.
c. However the Accused went on to add that even Mr.
Ram Niwas Daga used to borrow from him i.e. the
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 7 to 56
Accused, as per his requirement.
d. He stated as incorrect that the Complainant had
advanced a friendly loan of Rs.4,00,000/ to him i.e.
the Accused vide two cheques, one bearing
no.173309 on 15.06.2001 for a sum of Rs.3,00,000/
and other cheque bearing no. 173314 on 25.06.2001
for a sum of Rs.1,00,000 on interest @15% per
annum. According to him the said amount was given
to him as it was payable by Mr. Ram Niwas Daga as
well as various companies on account of financial
transactions between the parties.
e. The Accused stated as incorrect that he had paid
interest up to 21.04.2007 and having not paid any
amount towards the principal amount.
f. Accused also admitted his signatures on the letter
Ex.CW1/4 but he stated that the said letter was not
issued by him and he claimed that he had filed one
police complaint in June/July, 2014 upon coming to
know about the same.
g. Accused also stated that cheque in question was
given to Sh. Ram Niwas Daga as security cheque
regarding their financial transactions in the year
1997.
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 8 to 56
10. Pursuant thereto, on 03.05.2018, the case was fixed for
defence evidence. The Accused in support of his defence has
examined six witnesses in all.
10.1. DW1 Sh. R.K. Saini, Senior Technical Asstt.
Office of Registrar of Companies is a summoned
witness. He proved documents Ex.DW1/1 to
Ex.DW1/3. Ex.DW1/1 is computer generated print out
of Form No. MGT7, Annual Return of the Complainant
Company for the Financial Year 01.04.2014 to
31.03.2015. Ex.DW1/2 dated 03.07.2018 is also is
computer generated print out of Director's details in
respect of Mr.Kishore Daga (DIN No.00274994) of
Ministry of Corporate Affairs. Ex.DW1/3 is the
certificate under 65B Indian Evidence Act, 1872 in
respect of the said Ex.DW1/1 and Ex.DW1/2. These
documents were produced by the witness at the time of
recording of evidence.
10.2. Next defence witness is DW2 HC Surender of
P.S. Greater Kailash. He had brought the record sought
i.e. copy of register regarding complaint bearing DD
No.39 B dated 21.07.2014. He proved
Ex.DW2/1(OSR). As mentioned therein, this complaint
dated 21.07.2014, is about commission of forgery,
cheating and criminal intimidation against Mr.Ram
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 9 to 56
Niwas.
10.3. DW3 Dinesh Kumar Maurya is the Operation
Officer, Standard Chartered Bank. This witness was
partly examined on 06.12.2018 and proved Ex.DW3/A.
This witness was recalled on 22.01.2019 for recording of
his further deposition but he failed to produce the copies
of the two summoned pay orders.
10.4. DW4 Sh. Prashant Kumar Choudhary, Senior
Manager, Central Bank of India, Panchsheel Branch
deposed that Bank Account statements of Account
No.1111273953 of Shree T.K. Leasing and Finance Pvt.
Ltd., EMCA Leasing and Finance Pvt. Ltd., and Shree
Daga Leasing and Investment Pvt. Ltd., for the period
01.04.1997 till 31.12.2000 were not available in the
records since the same had been destroyed.
10.5. DW5 Sh. Nikhil Arora is Deputy Manager, ICICI
Bank, Kailash Colony. He had brought the summoned
record i.e. information regarding cheque in question
bearing No.609065. As per the record, two cheque
books were issued bearing cheque No.609065, once on
21.07.1997 and second on 12.04.1998 in the name of
Ghanshyam Das Binani, relating to account No.
662701034492. He proved relevant document in this
regard as Ex. DW 5/1. Further according to him the said
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 10 to 56
cheque books were issued by Bank of Rajasthan which
got merged in ICICI Bank in the year 2008 or 2009.
During the course of his cross examination he inter alia
stated that there was instruction from the Bank regarding
any particular cutoff date post which the
abovementioned cheque in question could not have been
issued. Also according to him there was no circular from
Bank asking its customers not to issue nonCTS cheques
prior to the year 2019. Any customer at his or her
disposal was permitted to issue nonCTS cheques prior
to the abovementioned circular. At another place of his
cross examination he stated that prior to 2019 nonCTS
cheques were duly processed by the Bank.
10.6. The last defence witness was DW6 Sh. Nidish
Kumar Singh, Senior Technical Asstt., Office of
Registrar of Companies, who proved Ex.DW6/1 and
Ex.DW6/2 (Colly).
10.7. Thereafter, DE stood closed on 13.12.2019.
Pursuant thereto, matter was fixed for final arguments.
11. Arguments of both Ld. Counsel for the parties have been
heard. I have also gone through the records carefully.
12. Ld. Counsel for the Accused has vehemently argued that the
Complainant has miserably failed to prove the existence of the
purported loan as alleged in the complaint in question. It has
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 11 to 56
been further submitted that there is no proof that any loan had
been extended by the Complainant to the Accused and no
written agreement in that regard which is claimed to be in
violation of mandatory guidelines of Reserve Bank of India. In
this regard reliance has been placed on Circular No. RBI/
200607/138 DNBS (PD) CC No.80/03.10.042/200506 dated
28.09.2006 according to which a Non Banking Finance
Company (NBFC) is mandated to ensure that any loan granted
to a person must be in writing. A copy of the said Circular was
filed along with copies of certain relied upon judgments on the
record of this case. Further according to Ld. Counsel for the
Accused, even the Complainant's relied upon ledger
Ex.CW1/3 is a fabricated document and also its author has not
been examined. Also no document in support of various entries
mentioned therein has been filed and also no statement of
account has been filed. It is claimed that even according to
Section 34 Indian Evidence Act, 1872 even statement of
account duly proved is not sufficient to charge the Accused
under Section 138 NI Act. Therefore relying upon the
judgments B.Krishna Reddy Vs Syed Hafiz (2020) 17 SCC
488, Vijay Vs Laxman [(2013)3 SCC 86], Bijender Sharma
Vs Anil Sabharwal [2017 SCC Online Delhi] and Bull and
Leasing Finance Pvt. Ltd. Vs Manoj Singh, [Judgment
dated 09.07.2018 in CC No.1660/17 rendered by Sh.Arun
Kumar Garg, Ld.MM].
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 12 to 56
12.1. Further according to Ld. Counsel for the
Accused, in support of the said ledger Ex.CW1/3, no
Certificate under Section 65B Indian Evidence Act,
1872 has been filed. In this regard reliance has been
placed upon the judgments Samsung India Electronics
Pvt. Ltd. Vs MGR Enterprises and Others [2019 SCC
Online Delhi 8877], Anvar PV Vs P.K.Basheer [(2014)
10 SCC 473], Arjun Panditrao Khotkar Vs Kailash
Kushanrao Gorantyal and Ors. [(2020) 3 SCC 216]
and Madholal Sindhu Vs Asian Assurance Co.Ltd.
and Ors. [AIR 1954 Bombay 305].
12.2. Also according to Ld. Counsel for the Accused,
the ledger balance does not match with the Statutory
Returns Ex.CW1/D1 to Ex.CW1/D3 filed by the
Complainant.
12.3. Even otherwise it is claimed that without
admitting anything, assuming the case of the
complainant to be true, the said purported liability is
barred by limitation.
12.4. Ld. Counsel for the Accused while referring to
Ex.CW1/1 submitted that no Board Meeting of the
Complainant was held on 22.05.2014. In this regard he
has relied upon form MGT7 Annual Return Ex.DW1/1,
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 13 to 56
a Statutory document certified by the Complainant M/S
T.K. Leasing & Finance Pvt. Ltd. itself, page 11 clearly
shows that no Board Meeting was held on 22.05.2014
and in the year financial 201415 the first Board meeting
was held on 31.05.2014. Also according to Ld. Counsel
for the Accused since no Board Meeting of the
Complainant was held on 22.05.2014, that is why CW1
Mr. Kishore Daga in his cross examination dated
13.04.2017 admitted that he had not brought Minutes
Book, though the witness denied the suggestion put to
him in this regard. Therefore it is claimed that
Ex.CW1/1, is a forged and fabricated document. In the
alternative it is claimed that even if Ex.CW1/1 is
assumed to be true and correct document, yet it does not
authorize Mr. Kishore Daga (CW1) to institute, file and
prosecute the present proceedings. Also according to Ld.
Counsel for the Accused, Ex.CW1/1 does relate to the
present Complainant. It is also submitted that there are
manipulations by hand in Ex.CW1/1. It is further
claimed that CW1 Kishore Daga has falsely claimed
himself to be a Director of the Complainant and in this
regard reliance has been placed upon form MGT7
Annual Return Ex.DW1/1, a Statutory document
certified by the Complainant M/S T.K. Leasing &
Finance Pvt. Ltd. itself, which shows that Mr. Ram
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 14 to 56
Niwas Daga and Mr. Tarun Daga, were the Directors of
the Complainant during the financial year 201415.
12.5. As against the aforesaid, according to Ld. Counsel
for the Complainant, the parties were known to each
other for the last more than 20 years and the Accused in
his reply to the statutory notice as also the Notice under
Section 251 Cr.P.C. has admitted the transaction in
question. Also according to him in view of the said
admission of the Accused that the cheque in question
Ex.CW1/5 was issued by him and was also signed him,
the mandatory presumption available under Section 139
NI Act to the effect that there existed a legally
enforceable debt or liability be drawn and the burden of
proof shifted to the Accused to rebut the said
presumption and on the touchstone of 'preponderance of
probabilities (and not beyond reasonable doubts)' prove
that there did not exist any such debt or liability, that the
cheque in question was given as security etc. as taken by
him and in this regard he has relied upon the following
judgments reported as Hiten P. Dalal Vs Bratindranath
Banerjee [(2001) 6 SCC 16]; Rangappa Vs Sri Mohan
[(2010)11 SCC 441]; APS Forex Services Pvt. Ltd. Vs
Shakti International Fashion Linkers and Ors.
[(2020)12 SCC 724]; Sumeti Vij Vs Paramount
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 15 to 56
Tech.Fab Industries [(2021) SCC Online 201];
Kalamani Tex and Another Vs Balasubramanian
[(2021) 5 SCC 283]; Basalingappa Vs Madibasappa
[(2019)5 SCC 418 (2 Hon'ble Judges)] and ICDS Ltd.
Vs Beena Shabeer and Ano. [(2002)6 SCC 426].
13. Before proceeding further and at the cost of repetition it may
be stated that, when the accused was given notice under
Section 251 Cr.P.C., he stated that "The cheque in question
was given around year 19971998 to Mr. Ram Niwas Daga
i.e. father of the Complainant for different transaction. The
cheque in question bears my signatures only. Other details
on the same are not in my handwriting and the Complainant
did not have any authority to fill the same. The cheque in
question did not pertain to the present transaction. The said
cheque is forged and fabricated. I received legal demand
notice. I had given replied(sic) to the same."(Emphasis
supplied is mine).
13.1. The said cheque in question bearing No.609065
dated 01.03.2014 for a sum of Rs.18,59,293/ issued in
the name of Shree T.K. Leasing & Finance (P) Ltd., has
been proved on record as Ex.CW1/5. and the Accused
has admitted that it bears his signatures.
13.2. In order to determine the question whether or not
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 16 to 56
the offence punishable under Section 138 of the NI Act
is made out against the Accused, it will be necessary to
examine the scope and ambit of presumptions to be
raised as envisaged by the provisions of Sections 118
and 139 of the NI Act. In a suit to enforce a simple
contract, it has to be averred in the pleading that it was
made for good consideration and it must be substantiated
by evidence. But to this rule, the negotiable instruments
are an exception. In a significant departure from the
general rule applicable to contracts, Section 118 of the
NI Act provides certain presumptions to be raised. This
Section lays down some special rules of evidence
relating to presumptions. The reason for these
presumptions is that, negotiable instrument passes from
hand to hand on endorsement and it would make trading
very difficult and negotiability of the instrument
impossible, unless certain presumptions are made. The
presumption, therefore, is a matter of principle to
facilitate negotiability as well as trade.
13.3. Section 118 of the NI Act provides presumptions
to be raised until the contrary is proved (i) as to
consideration, (ii) as to date of instrument (iii) as to time
of acceptance (iv) as to time of transfer (v) as to order of
endorsements (vi) as to appropriate stamp and (vii) as to
holder being a holder in due course.
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 17 to 56
13.4. At this stage it may be noted that Section 139 NI
Act deals with presumption in favour of the holder of a
negotiable instrument. This provision reads as under:
"Section 139 "Presumption in favour of holder: It shall
be presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature
referred to in Section 138 for the discharge, in whole or
in part, of any debt or other liability".
13.5. Therefore, the said Section 139 NI Act is a type of
reverse onus clause, which stipulates a presumption in
the favour of the holder, the Complainant in the present
proceedings, as to fact of a cheque being received in
discharge of a legal debt or liability, whether whole or in
part.
13.6. A combined reading of the said two provisions
viz. Sections 118 and 139 of the NI Act make it clear
that once the Accused has admitted issuance of cheque
which bears his signature, apart from the said
presumptions referred to in Section 118 NI Act like
consideration and as to its date of issuance i.e.
01.03.2014, there is also a presumption under Section
139 NI Act that there existed a legally enforceable debt
or liability and the said cheque had been given in
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 18 to 56
discharge of the said liability. In other words, we may
say that once the execution of the cheque in question is
admitted, Section 139 of the NI Act mandates a
presumption that the cheque was for the discharge of
any debt or other liability.
13.7. However significantly the said presumption under
Section 139 NI Act is a rebuttable presumption and the
onus is on the accused to raise and also prove the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
13.8. To rebut the presumption, the Accused may
adduce direct evidence to prove that the note/cheque in
question in question was not supported by consideration
and that there was no debt or liability to be discharged
by him. While direct evidence cannot be insisted upon in
any every case; bare denial of the passing of the
consideration and existence of debt, would not serve the
purpose of the Accused.
13.9. Something which is probable has to be brought on
record by the Accused 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
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 19 to 56
debt did not exist or their non existence was so probable
that a prudent man would under the circumstances of the
case, act upon the plea that they did not exist.
13.10. The words "unless the contrary is proved" which
occur in Section 139, make it clear that the presumption
has to be rebutted by 'proof' and not by a bare
explanation which is merely plausible.
13.11. A fact is said to be proved when its existence is
directly established or when upon the materials before it
the Court finds its existence to be so probable that a
reasonable man would act on the supposition that it
exists. Unless, therefore, the explanation is supported by
proof, the presumption created by Section 139 NI Act
cannot be said to be rebutted.
13.12. To rebut the presumption, it is open for the
Accused to rely on evidence led by him or 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.
13.13. Needless to mention that it is not necessary for the
accused to come in the witness box in support of his
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 20 to 56
defence. Section 139 imposes an evidentiary burden and
not a persuasive burden.
14. At the outset, it is important to note that the ledger statement of
account, Ex.CW1/3 of the Accused maintained by the
Complainant is admittedly a computer printout and it is well
settled that it is a secondary evidence of the electronic record
of data purportedly stored in the computer of the Complainant
company. The Complainant company has not provided a
certificate under Section 65B of the Evidence Act to prove the
same and hence the said ledger Ex.CW1/3 is inadmissible in
evidence in the absence of a certificate under Section 65B of
the Evidence Act and the argument of the Accused in this
regard well founded. Therefore the said statement of account
Ex.CW1/3 has to be discarded from the zone of consideration.
15. As already mentioned above, the complaint in question has
been filed by the Complainant against the Accused inter alia
asserting that sometime in June, 2001, the Accused approached
the Complainant through its Directors and sought a friendly
loan to the tune of Rs.4,00,000/ since he was in dire need of
money from the Complainant at the mutually agreed rate of
interest @ 15% per annum and pursuant thereto, the
Complainant advanced a friendly loan of Rs.4,00,000/ to the
Accused vide two cheques, both drawn on Central Bank of
India, one bearing no.173309 on 15.06.2001 for a sum of
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 21 to 56
Rs.3,00,000/ and other cheque bearing no. 173314 on
25.06.2001 for a sum of Rs.1,00,000/.
15.1. In support of the said aspect of the matter CW1
Mr. Kishore Daga, in Para 6 of his affidavit Ex.CW1/A
has specifically deposed about the said aspect of the
matter i.e. about advancement of Rs.4,00,000/ by way
of two cheques issued in June, 2001. This portion of his
deposition has not been challenged by the Accused in
cross examination of CW1 and therefore is deemed to
have been admitted as correct. Hon'ble Delhi High
Court in the case of State Vs Meena Kumari [1986
RLR 319] has categorically observed that there are two
rules of practice which must not be forgotten. First rule
is that the witness must be cross examined on all parts of
his testimony which it is intended to dispute otherwise
what the witness has said in his examination in chief will
be accepted as true. The second rule is that attention of
the witness must be drawn to any contradiction in his
statement or with any previous statement and he must be
afforded an opportunity to explain. If that is not done, no
argument founded on the said contradiction is
permissible. Accordingly, it has to be held that the
Accused admits receipt of the said sum of Rs.4,00,000/
by way of issuance of the said two cheques by the
Complainant.
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 22 to 56
15.2. With respect to this aspect of the matter when
after closure of complainant's evidence on 09.02.2018,
Statement of the Accused under Section 313 Cr.P.C.
read with Section 281 Cr.P.C. was recorded on
03.05.2018, in response to the question in his reply
though he claimed it to be incorrect but significantly
admitted the receipt of the said amount but claimed
that it was payable by Mr.Ram Niwas Daga as well as
his companies on account of financial transactions
between the parties (Emphasis is mine). I am conscious
of the fact that the replies given by the Accused in his
statement are not evidence. But certainly, the said
answers can be taken into consideration, being
admissions of the Accused himself.
15.3. The Complainant also relies on a letter dated
01.03.2014, Ex.CW1/4, stating that the Accused had
unequivocally admitted his liability in question i.e. the
cheque amount, towards the Complainant company.
CW1 Mr. Kishore Daga, in Para 11 of his affidavit
Ex.CW1/A has specifically deposed about the said
aspect of the matter i.e. about issuance of the said letter
by the Accused wherein inter alia the Accused had
admitted his liability to the extent of Rs.18,59,293/ and
also proved copy of the said letter Ex.CW1/4. So, this is
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 23 to 56
an admitted document particularly when it is not the
defence of the Accused that he is illiterate.
15.4. As already mentioned even before institution of
the present complaint, the Complainant had got issued
the said legal demand notice dated 21.04.2014
Ex.CW1/7 through its Counsel to the Accused.
Admittedly the reply Ex.CW1/10 dated 07.05.2014 was
got issued by the Accused through his Counsel to the
Complainant.
In the said legal demand notice dated 21.04.2014
Ex.CW1/7 inter alia it was mentioned by the
Complainant that friendly loan of Rs.4,00,000/ by way
of the said two cheques sometime in June, 2001 on
interest @15% p.a by the present Complainant to the
Accused was given. Also in the said statutory notice got
issued by the Complainant inter alia there was a clear
mention in Para 9 thereof about issuance of the said
letter dated 01.03.2014, Ex. CW1/4 and also cheque
bearing no. 609065 dated 01.03.2014 for a sum of
Rs.18,59,293/ (Ex.CW1/5) drawn on Bank of
Rajasthan, C191, Greater Kailash I, New Delhi, to the
Complainant, which was inclusive of interest up to
28.02.2014 towards full and final settlement of account
of the Complainant, in favour of the Complainant.
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 24 to 56
Also, in the said the reply dated 07.05.2014,
Ex.CW1/10 which was got issued by the Accused
through his Counsel to the Complainant, it is admitted
that the parties had been known to each even before the
year 2000 and had business transactions. Also it is
claimed therein that the transactions prior to the year
2000 stood squared up and settled and nothing is due
and the cheque in question on which the case of the
Complainant is based, had been handed over to the
Complainant before the year 2000 in respect of different
transactions much prior to the transaction in question. In
the alternative it is claimed that even if something is
due, it is barred by law of limitation. Also it was
mentioned in the said Reply that the documents claimed
to be in the possession of the Complainant including the
letter dated 01.03.2014, were false and have been
fabricated. The said cheque was claimed to have been
misused the Complainant.
So, it stands admitted even by the Accused that the said
sum of Rs.4,00,000/ was given to the Accused by the
Complainant in June, 2001. In view of this admission of
the Accused himself and also the said defence, the onus
shifted on him i.e. the Accused to show that any such
amount was payable either by the Complainant or the
said Mr. Ram Niwas Daga, its Director, to him i.e. the
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 25 to 56
Accused in respect of any previous transaction. In the
face of said admissions of the Accused himself and the
documentary evidence, the submission of Ld. Counsel
for Accused to the effect that there is no proof of loan
having been extended by the Complainant to the
Accused, needs to be rejected as also his other
submission in this regard that there is no written loan
agreement in violation of mandatory RBI guidelines.
Needless to mention that question of violation of
mandatory RBI guidelines is not relevant in these
proceedings and if deemed fit, may be agitated
elsewhere in the appropriate proceedings.
15.5. Significantly the Accused has not entered the
witness box to prove that cheque in question Ex.CW1/5
dated 01.03.2014 was issued by him in respect of other
transactions prior to the year 2000 or that it was a blank
cheque at the time of its issuance or that it was given
towards security or that the acknowledgment dated
01.03.2014 Ex.CW1/4 or that the said documents do not
relate to the repayment of the said loaned amount of
Rs.4,00,000/ plus interest at the agreed rate of 15% p.a.
Also, the Accused has not produced any such evidence
in support of the said portions of his defence and these
portions of his defence are also not supported by any
other material available on the record of this case. All
CC No.476333/2016
M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 26 to 56
these factors discredit the defence of Accused.
15.6. Also the said limb of the defence of the Accused
that he had issued the cheque in question which was a
blank cheque which has been misused by the
Complainant and therefore the instant case is liable to be
dismissed, does not help his cause. Hon'ble Delhi High
Court in The Jammu and Kashmir Bank vs. Abhishek
Mittal [Crl. A. No. 294/2011 (Decided on 26.05.2011)]
has inter alia held that: "The plea taken by the
Respondent that the blank cheques had been given by
him is of no consequence. Respondent has admitted his signatures on the cheques. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. Respondent has not denied his signatures on the cheques. Once he has admitted his signatures on the cheques, he cannot escape his liability on the ground that the same has not been filled in by him. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank cheque had been issued by him." The same legal position was also reiterated in Lekh Raj Sharma Vs CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 27 to 56 Yash Pal Gupta [221(2015) DLT 585]. Hence this portion of the defence also stands rejected.
15.7. A perusal of the judicial record reveals that CW1 Kishore Daga was cross examined by Ld. Counsel for the Accused on two dates i.e. on 13.04.2017 and again on 12.10.2017. Significantly during the course of his cross examination by Ld. Counsel for the Accused on 13.04.2017, this witness CW1 Kishore Daga, inter alia produced the Memorandum and Articles of Association Ex.CW1/D1 of the Complainant.
15.8. During the course of his cross examination by Ld. Counsel for the Accused on 13.04.2017 appearing on page No.2 thereof in the last paragraph inter alia deposed that the cheque in question was handed over by the Accused to his father i.e. father of the CW1 Kishore Daga in the presence of the said witness and one Sh.Moti Lal Vyas, towards the end of February, 2014 at their residence i.e. at the residence of the said witness. He further deposed that the cheque in question was already filled up when it was handed over to his father. Also according to the said witness the Accused had been informed about the total amount of Rs.18,59,293/ telephonically. At another place of his cross examination recorded on 13.04.2017 and appearing on page No.3, the CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 28 to 56 witness in his cross also deposed that Directors of the Complainant, his father and brother Mr.Tarun Daga and this witness had approached the Accused telephonically as well as personally. During the course of his cross examination by Ld. Counsel for the Accused on 12.10.2017 in response to a question put to him, recorded on page No.2 of his deposition, he deposed that "It is correct that I was personally involved in the running of the business of the Complainant Company as it was a family business......". So, this shows that this witness was admittedly involved in the actual running of the business of the Complainant. The cross examination of this witness which took place on 12.10.2017 and recorded on page No.5 shows that he admitted as correct the suggestion put to him 'It is correct that Ex.CW1/4 was not signed in his presence." However at that very time the witness volunteered and stated that 'Accused himself got the letter of confirmation Ex.CW1/4 and he promised to pay the amount and handed over the cheque also and said it would be honoured'. On that very date of his deposition recorded on Page No.5 in Para 2 the witness reiterated that Accused himself came in the end February, 2014 came to the house of the witness and handed over the letter of confirmation Ex.CW1/4 and the current dated cheque Ex.CW1/5 and stated that it CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 29 to 56 could be put once he confirmed within a week or 10 days. The witness denied the suggestion put to him that the cheque Ex.CW1/5 had been handed over to the father of the witness in respect of a transaction before which already stood settled. The witness denied another suggestion put to him that the cheque Ex.CW1/5 was a signed blank cheque. So, the cross examination shows that nothing helpful could be elicited by the Accused from the said witness. The defence reflected therefrom, is only in the form of suggestions with nothing to support the Accused.
15.9. Proceeding further it also significant to note that CW1 Kishore Daga, during the course of his cross examination by Ld. Counsel for the Accused on 12.10.2017, had produced documents Ex.CW1/D1 to Ex.CW1/D5. Three documents Ex.CW1/D1 to Ex.CW1/D3 are the balance sheets of the Complainant for the financial years 201213, 201314 and 201415. This appears on the first page of his deposition. As per the answer given by the witness in response to a question appearing on page Nos.3 and 4 of his deposition, he deposed that till about the Complainant used to show the interest in the books since Accused had been assuring to pay. Also according to him, till 2011, CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 30 to 56 the Complainant had been paying Income Tax received as per the books. However, post 2011, after it was realised that the interest amount was not coming, interest was stopped to be put in the accounts and that is why an amount of Rs.12,36,210/ is reflected in the balance sheets accompanying the ITRs Ex.CW1/D1 to Ex.CW1/D3. The said unchallenged documents clearly show that the Accused was a debtor of the Complainant Company. This also falsifies the defence of the Accused and supports the case of the Complainant.
16. As already mentioned hereinbefore also the Accused would have been the best witness to depose about the issuance of the said letter dated 01.03.2014, Ex.CW1/4 and also cheque bearing no. 609065 dated 01.03.2014 for a sum of Rs.18,59,293/ (Ex.CW1/5).
16.1. In this regard the Accused also examined DW2, HC Surender who had brought the copy of register regarding complaint bearing DD No. 39B dated 21.07.2014, which had been exhibited as Ex.DW2/1(OSR). A perusal of Ex. DW2/1(OSR) shows that at serial no. 709, name of Sh. G.D. Binani (accused herein) has been mentioned as a complaint, who had filed complaint on 21.07.2014 for forgery, cheating and criminal intimidation. Also, according to Ld. Counsel CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 31 to 56 for the Accused, even mere affixing a signature or thumbimpression to a document does not amount to execution of a document. Before a person is said to have executed a document it must be either proved or admitted that he not only affixed his thumbimpression or signature, but also that he did so with the purpose of executing the document. Reliance can be placed on the judgment of Karnataka High Court in Lakshmamma And Ors. vs M. Jayaram [(AIR 1952 Kant 114)].
16.2. In the facts and circumstances of the present case and the nature of the aforesaid defence, it was incumbent upon the Accused to enter the witness box and examine himself as a witness and also produce evidence about the various business transactions between the parties in support of his said defence, and on account of the said lapses an adverse inference has to be drawn against him to the effect that his defence is false and he has avoided cross examination at the hands of the Complainant.
17. The other objection of the Accused is that there was no agreement for payment of interest. The said acknowledgment letter dated 01.03.2014 Ex.CW1/4 is admittedly signed by the Accused as also the cheque dated 01.03.2014 Ex. CW1/5 and the amount mentioned therein is the same i.e. Rs.18,59,293/.
17.1. Also the said acknowledgment letter dated CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 32 to 56 01.03.2014 Ex. CW1/4, inter alia clearly mentions that the said amount was payable to the Complainant as on 28.02.2014 and the said amount was inclusive of interest @15% per annum. Therefore, the objection of Ld. Counsel for the Accused in this regard also fails.
17.2. According to the Complainant issuance of the letter dated 01.03.2014 Ex.CW1/4 and the cheque in question dated 01.03.2014 Ex.CW1/5, amount to promise to pay the due sum of Rs.18,59,293/ within the meaning of Section 25 of Indian Contract Act, 1872 and therefore, the present proceedings under Section 138 NI Act are maintainable pursuant to dishonour of the said cheque. In this regard, reliance has been placed on the judgment delivered on 02.05.2016 in RSA 248/2015 by Hon'ble Delhi High Court in the case titled SBI Vs Kanhaiya Lal and Ors., Judgment dated 22.08.2012 in CS(OS) 389/2009 Suresh Kumar Joon Versus Mool Chand Motors & Ors. and a judgment dated 19 October, 2012 of Hon'ble Bombay High Court in CRIMINAL APPLICATION NO.2933 OF 2007 titled Mr. Dinesh B. Chokshi Vs Rahul Vasudeo Bhatt and Anr.
As against this, Ld. Counsel for the Accused submits CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 33 to 56 that even as per Complainant's own case the loan in question was given in June, 2001 and last time the interest was paid in 2007. Therefore, recovery of the said loan amount would be barred sometime in the year 2010. Hence, the cheque in question dated 01.03.2014 Ex.CW1/5, issued for a time barred debt, would not attract Section 138 NI Act. In this regard reliance has been placed on the judgments reported as Kumar Exports Vs Sharma Carpets (2009) 2 SCC 513, Basalingappa Vs Mudibasappa (2019) 2SCC Cr.571, Smt.Manjula Vs Sri V. Balaraju rendered by Ld.ACMM, Bengaluru, Vijay Polymers Pvt. Ltd. Vs Vinay Aggarwal 2009(110) DRJ 592 and Jage Ram Karan Singh and Ano. Vs State and Ano. 2019 SCC Online Delhi 9486.
17.3. Section 18 of Limitation Act, 1963 to the extent it is relevant, provides that where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 34 to 56 acknowledgment was so signed. It would be seen that in order to extend limitation, the acknowledgment needs to be before the period prescribed for filing the suit has expired. In case the limitation has already expired before the acknowledgement is made, it would not save limitation. Hon'ble Delhi High Court in its Judgment dated 22.08.2012 delivered in CS(OS) 389/2009 titled Suresh Kumar Joon Versus Mool Chand Motors & Ors. has inter alia held that it is true that the cheque does not contain an express promise in writing, to pay the amount of the cheque to the payee or the cheque. However, Section 9 of the Indian Contract Act, 1872 makes it very clear that the promise can be express as well as implied. In such a situation, it was held that when a debtor issues a cheque to his creditor, he makes an implied promise to him to pay the amount of the cheque being issued by him. It is only towards fulfillment of that such promise that a cheque is issued by the debtor to the creditor. Once it is alleged that the relationship between the parties was that of debtor and a creditor and it is further alleged that the cheque was issued by the debtor to the creditor, it would be difficult to dispute that a cheque contains an implied promise, in writing, to pay the amount of the cheque. Since, even a time barred debt is saved by Section 25(3) of the Indian CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 35 to 56 Contract Act, 1872, the issuance of a cheque towards repayment of a time barred debt constitutes a contract within the meaning of Section 25(3) of the Indian Contract Act, 1872.
17.4. Hon'ble Division Bench of Hon'ble Bombay High Court was dealing with a case under Section 138 NI Act titled Mr. Dinesh B. Chokshi Vs Rahul Vasudeo Bhatt and Ano. and the two questions posed therein were " (i) "Does the issuance of a cheque in repayment of a time barred debt amounts to a written promise to pay the said debt within the meaning of Section 25(3) of the Indian Contract Act, 1872 ?" and (ii) If it amounts to such a promise, does such a promise, by itself, create any legally enforceable debt or other liability as contemplated by Section 138 of the Negotiable Instruments Act, 1881 ? Both the said two questions were answered in the affirmative.
17.5. In view of the aforesaid discussion it is held that the aforesaid letter dated 01.03.2014 Ex.CW1/4 and the cheque in question dated 01.03.2014 Ex.CW1/5, amount to promise to pay the due sum of Rs.18,59,293/ within the meaning of Section 25 of Indian Contract Act, 1872 and therefore the present proceedings under Section 138 NI Act are maintainable and argument of Ld. Counsel CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 36 to 56 for the Accused to the contrary stands rejected.
18. Ld. Counsel for the Complainant has interalia submitted that in the present complaint filed under Section 138/142 of N I Act, the only eligibility criteria prescribed by Section 142 is that the complaint must be by the payee or the holder in due course and since the said condition is admittedly met in the present case, the present complaint is very much maintainable and the argument of Ld. Counsel for the Accused to the contrary deserves to be rejected out rightly. Also according to him, Section 142 of the NI Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the cheque and in this regard reliance has been placed on the judgments of Hon'ble Supreme Court reported as M.M.T.C. Ltd. and Another Vs Medchl Chemicals and Pharma(P) Ltd. (2002)1 SC 234 and TRL Krosaki Refractories Ltd. Vs SMS Asia Pvt.Ltd. and Ano. 2022 SCC Online SC 217.
18.1. In order to succeed in a prosecution under Section 138 NI Act, ordinarily it is incumbent upon the Complainant to prove the following ingredients:
(i) That the Accused had drawn the cheque in question on an account maintained by him in a bank for payment of a certain amount of money to the Complainant from out of that account for the CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 37 to 56 discharge of any debt or other liability;
(ii) That cheque had 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;
(iii) That the said cheque was returned by the bank unpaid either because of the amount of money standing to the credit of the account was insufficient to honour the cheque or that it exceeded the amount arranged to be paid from that account by an agreement made with the bank;
(iv) That the payee or the holder in due course of the cheque 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
(v) That the Accused/drawer of such cheque failed to make payment of the said amount of money to the Complainant/payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
18.2. It has been argued on behalf of the Accused that the said Authorised Representative (for short AR) Mr. CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 38 to 56 Kishore Daga of the Complainant, was not duly authorized to file the present complaint as the Board Resolution dated 22.05.2014 Ex. CW1/1 though is on the letter head of M/S T.K. Leasing & Finance Pvt. Ltd. but relates to Shree Daga Leasing & Investment Private Limited, According to Ld. Counsel pertinently the said document Ex.CW1/1 does not mention about the minutes of meeting of the complainant company. Relying on the deposition of DW1 Sh.R.K.Saini and Ex.DW1/1, being the Annual Return of the Complainant filed in the Office Registrar of Companies for 01.04.2014 to 31.03.2015, his submission is that no such Meeting of the Board of Directors of the Complainant was held on 22.05.2014. Also according to him, in view of the falsity of the said assertion of the Complainant and CW1 Kishore Daga, even relevant Minutes Book containing the resolutions, has not been produced as is clear from the portion of the cross examination of CW1 Mr. Kishore Daga, recorded on 13.04.2017. Therefore, Ex.CW1/1 is a forged and fabricated document and the appropriate proceedings must be initiated against the Complainant and its officers. Even otherwise assuming the said Ex.CW1/1 to be a true and correct document, it only authorises Mr. Kishore Daga to take 'all necessary action' with respect to 'recovery of dues' but the present CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 39 to 56 proceedings under Section 138 NI Act are not the proceedings for 'recovery of dues' but are criminal proceedings. Therefore, CW1 Mr. Kishore Daga has no authority to depose. Also it is his submission that the delegation of power by the Board must be clear and specific. Referring to Ex.CW1/1 further submission of Ld. Counsel for the Accused is that there are manipulations by hand and name of the Director Mr. Tarun was inserted by hand. Holding of the meeting of Board of Directors of the Complainant on 22.05.2014 therefore was not possible. Further, it is also submitted that CW1 Mr. Kishore Daga has claimed that that he is a Director of the Complainant but as per the undisputed documentary evidence Ex.DW1/1 on record the said Mr. Kishore Daga was not a Director of the Complainant and therefore the said witness has deliberately and willfully made false statements before this Court. It is also submitted that the signatory of Ex.CW1/1, Mr. Ram Niwas Daga, has not been examined. Hence, it is claimed that the complaint in question is liable to be dismissed. It is claimed by the Accused that with a view to remove the aforesaid anomalies, the aforesaid application had been filed on behalf of the Complainant seeking to substitute its earlier Authorised Representative Mr. Kishore Daga with Mr Tarun Daga, CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 40 to 56 Director/ new Authorised Representative and all this has been done after the perjury had been committed CW1 Mr. Kishore Daga and an application under Section 340 read with Section 195(b)(i) Cr.P.C. had already been filed by the Accused. In support of his said submissions Ld. Counsel for the Accused has relied upon two judgments of Hon'ble Supreme Court one reported as Kumar Exports Vs Sharma Carpets (2009) 2 SCC 513(2).
18.3. Before proceeding further it is important to note that the complaint in question Ex.CW1/A in the name of the Complainant M/S T.K. Leasing & Finance Pvt. Ltd. has been signed, verified and filed by Mr. Kishore Daga. In his affidavit dated 27th May, 2014 accompanying the said complaint, Mr. Kishore Daga, has claimed himself to be the Authorised Representative though on the last page of the said complaint under the signatures of Mr. Kishore Daga, seal impression of the Complainant mentions the word 'Director'. In the said complaint in Para 2 it is mentioned that Mr. Kishore Daga has been authorised by the Complainant vide Board Resolution dated 22nd May, 2014. The said Mr. Kishore Daga in his affidavit dated 27th May, 2014 Ex.CW1/X tendered on 07.04.2015 by way of his pre summoning evidence has CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 41 to 56 deposed in Para 1 thereof that he is the Authorised Representative of the Complainant by virtue of the Board Resolution dated 22nd May, 2014 executed by the Complainant in his favour to sign, verify and file the present complainant and copy of the said Board Resolution is Ex.CW1/1.
18.4. In the case of Associated Cement Co. Ltd. Vs Keshvanand reported in (1998) 1 SCC 687, it has been held by the Hon'ble Supreme Court that the Complainant has to be a corporeal person who is capable of making a physical appearance in the court. It was also held that if a complaint is made in the name of a incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court. It was further held that the Court looks upon the natural person to be the complainant for all practical purposes and when the complainant is a body corporate, it is the de jure complainant, and it must necessarily associate a human being as de facto complaint to represent the former in court proceedings. Also it was held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings and there may CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 42 to 56 be occasions when different persons can represent the company.
18.5. During the pendency of the trial an application had been filed on behalf of the Complainant seeking to substitute its earlier Authorised Representative Mr. Kishore Daga with Mr.Tarun Daga, Director/ new Authorised Representative. On behalf of the Complainant the said application was signed by the said Mr.Tarun Daga, Director/ new Authorised Representative and was also supported by his affidavit. Along with the said application, Minutes of the Meeting dated 27.08.2021 of the Board of Directors of the Complainant signed by Mr. Ram Niwas Daga, Director/ Authorised Representative has also been filed. The said application was allowed by this Court vide Order dated 06.10.2021.
18.6. It has to be appreciated that payee of the cheque in question Ex.CW1/5, is the Complainant Company, an incorporeal person. Though the Complainant Company is a legal entity but it does not have soul, mind, body etc. to walk to the Court for filing the Complaint and prosecuting the same. So, it is considered as the de jure Complainant. Some natural person/human being who would be the de facto Complainant, has to be there.
CC No.476333/2016M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 43 to 56 Obviously such natural person who would be the de facto Complainant, should be an authorised person having knowledge of the transaction in question.
18.7. For better appreciation of this aspect of the matter, we have to keep in mind the facts and circumstances of the present case. Mr. Kishore Daga, who has signed the Complaint in question for and on behalf of the Complainant Company, in the text thereof claims himself to be the Authorised Representative pursuant to the meeting dated 22.05.2014 of the Board of Directors of the Complainant Company. It can be safely held that in terms of the deposition of DW1 Sh. R.K. Saini and Ex.DW1/1, being the Annual Return of the Complainant filed in the Office Registrar of Companies for 01.04.2014 to 31.03.2015, that no such Meeting of the Board of Directors of the Complainant was held on 22.05.2014 and Ex.CW1/1 which in any case does not pertain to the Complainant, does not make him its Authorised Representative. The question that arises for consideration is, whether this Complaint is liable to be dismissed, solely on account of the said lapse, as has been claimed by Ld. Counsel for the Accused?
18.8. At this stage, it would be useful to note that Hon'ble Supreme Court in the case of M/S M. M. T. C. CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 44 to 56 Ltd. & Anr vs M/S Medchl Chemicals & Pharma P. (Supra) has inter alia held that even presuming, that initially there was no authority, still the Company can, at any stage, rectify that defect. At a subsequent stage the Company can send a person who is competent to represent the company. Therefore it was held that the complaints could thus not have been quashed on this ground.
18.9. The said document Ex.DW1/1, being the Annual Return of the Complainant filed in the Office Registrar of Companies for 01.04.2014 to 31.03.2015 produced by the witness of the Accused shows that during the said there were two Directors of the Complainant and their names are Mr.Ram Niwas Daga and Mr.Tarun Daga.
Page 16 part of Ex.DW1/1 is the list of Shareholders/Members of the Complainant and at serial No.1 name of Mr.Ram Niwas Daga appears and he held 3350 Equity Shares. At serial No.5 name of Mr.Kishore Daga is there, who held 27150 Equity Shares and he is shown to be the son the said Mr.Ram Niwas Daga and at serial No.6 name of Mr.Tarun Daga is there, who held 40550 Equity Shares and he is also shown to be the son the said Mr.Ram Niwas Daga. Therefore the said Mr.Kishore Daga and Mr.Tarun Daga are real brothers and are sons of the said Mr.Ram Niwas Daga. They are CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 45 to 56 all shown to be residents of 33 Sadhna Enclave, New Delhi. So, they are all family members.
18.10. Also Ex.DW1/2 produced and proved by DW1 Sh. R.K. Saini, the summoned witness of Accused shows that the said Mr. Kishore Daga was the Director of 6 mentioned therein. Out of the said 6 Companies of which the said Mr. Kishore Daga was the Director, three Companies whose names appear at serial Nos. 1, 3 and 4 thereof, were also the Shareholders/Members of the Complainant and their names appear at serial nos. 13,17 and 15, Page 16 part of Ex.DW1/1.
18.11. At this stage it may be reiterated that during the course of cross examination of CW1 Mr. Kishore Daga by Ld. Counsel for the Accused on 12.10.2017 in response to a question put to him, recorded on page No.2 of his deposition, he deposed that "It is correct that I was personally involved in the running of the business of the Complainant Company as it was a family business...... ...". So, this shows that this witness CW1 Mr. Kishore Daga was admittedly involved in the actual running of the business of the Complainant. Not only this, he had produced various documents including the letter dated 01.03.2014 and the Cheque in question Ex.CW1/4 and Ex.CW1/5, respectively.
CC No.476333/2016M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 46 to 56 18.12. It is pertinent to consider Sections 186 and 187 of the Indian Contract Act,1872. These provisions indicate that the authorization can be express or implied and the implicity has to be inferred from the circumstances of the case and the things spoken or written, or the ordinary course of dealings.
18.13. In the instant case, CW 1 Mr. Kishore Daga, as already noticed, had been actively associated with the running the family business of the Complainant Company. He had filed the complaint in question, filed all relevant documents and also produced other relevant documents during the course of evidence. No doubt there is nothing on record to show that the said CW 1 had been authorised to represent, file, institute, and depose the Complainant Company. I am of the view that from the circumstances, it can safely be inferred that he had the implied authorization to act on behalf of the Complainant Company and after all he represented the company only to safeguard its interest i.e., his acts are not to the prejudice of the Complainant Company, but on the contrary they are for the benefit of the Complainant Company. Most importantly the Board of the Complainant Company which comprised of father and real brother of CW1 Kishore Daga, never expressly CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 47 to 56 or implicitly, objected to the said actions of the Complainant Company nor has disowned his acts representing the Complainant Company. Therefore, a comprehensive look at the whole circumstances would only go to show that the said CW1 had definite authorization to represent the Complainant Company. Further Section 196 of the Indian Contract Act,1872 provides for the ratification of the acts by the agents. In the present case since the Complainant Company never expressly objected to the acts of CW1, such silence on the part of the Complainant Company amounts to implied ratification or consent.
19. Before parting, it is also pertinent to pen down the fate of two applications u/s 340 r/w Section 195(b)(i) Cr.P.C. , moved on behalf of the Accused. The first application has been filed, seeking initiation of perjury proceedings against CW1 Sh. Kishore Daga and the other application for initiation of perjury proceedings against Mr. Tarun Daga.
19.1. By way of the first application, it is claimed that admittedly Ex.CW1/1 is a forged and fabricated document as the meeting relied upon is that of Shree Daga Leasing and Investment Pvt. Ltd. and not of the Complainant Company. Further, it has been averred that as per the document Ex.DW1/1, no meeting of the CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 48 to 56 complainant company took place on 22.05.2014 and as per the cross examination of CW1, he was already attending a meeting at 10 AM on 22.05.2014 w.r.t Shree Daga Leasing and Investment Pvt. Ltd and hence, he could not have attended two meetings at the same time i.e. one for the complainant company and the other for Shree Daga Leasing and Investment Pvt. Ltd. Further, it has been inter alia averred that the ledger account of the complainant Ex.CW1/3 is a false and fabricated document as in the examination in chief, CW1 had stated that the said ledger had been signed by the accused whereas in his cross examination dated 13.04.2014 and 12.10.2017, he had admitted that the statement given by him in his evidence is false and the said document does not bear his signatures. It has been also averred that Ex. CW1/5, the cheque in question was never handed over to CW1 and was never related to the instant transaction. Further it has been averred that the complainant company is a non banking finance company and in 2014, when the cheque in question was purportedly handed over by the accused, Bank of Rajasthan was not in existence and had closed down. Further the cheque in question was a nonCTS cheque, which had since been phased out by the Reserve Bank of India and CW1 was totally unaware of the same. Thus, CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 49 to 56 CW1 has given a false statement that the cheque in question Ex.CW1/5 was handed over to him by the accused in 2014. On account of these statements, proceedings for perjury are sought to be initiated against CW1.
19.1.1 Per contra, in his reply to the application u/s 340 of Cr.P.C., it has been stated on behalf of the complainant that the instant application has been filed only to delay the present proceedings and the accused has not entered the witness box and has not led any evidence to contradict the evidence of the complainant. Further, it has been averred that it is a settled proposition of law that mere contradictions in the statement of witnesses is not sufficient to initiate proceedings under Section 340 Cr.P.C. Further, it has been averred that all the allegations made in the said application are false and wrong.
19.1.2 I have heard the arguments and also gone through the record carefully. Before delving into the merits, it would be apposite to look at various judicial pronouncements pertaining to Section 340 Cr.P.C. It was held in the case of Iqbal Singh Marwah v. Meenakshi Marwah (2005 AIR CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 50 to 56 SCW 1929) that "in view of the language used in Section 340, Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary inquiry and record a finding to the effect that it is expedient in the interests of justice that inquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 51 to 56 where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint." In the case of Jagjit Kaur v. LieutenantColonel Harjeet Singh (2000 (1) JCC Delhi 28), it was held by the Hon'ble Delhi High Court that the provisions of Section 340 are intended to provide safeguard against criminal prosecution on insufficient grounds filed against a party by his opponent motivated by a revengeful desire to harass the opponent. It is not the law that every false statement should attract the provisions of Section 340 Cr.P.C. If the Court is to notice every falsehood that is sworn to by the parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. The gravity of the false statement, the circumstances under which such statement is made, the object of making false statement and its tendency to impede and impair the normal flow of the course of Justice are matters for consideration. It deserves being underscored that the purpose of CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 52 to 56 proceedings u/s 340 of the Cr.P.C, is not to assuage the feelings of retribution or personal vendetta that the parties may, and often do have, against each other. It is trite law that proceedings for perjury should not be initiated lightly. The idea is to protect the purity of administration of justice and to prevent the fountain of justice from being polluted by people deposing falsely; Such proceedings are to be initiated, only where the most egregious & willful perjury or fraud on the court is made out, which if allowed to go unpunished, would incentivise a culture of falsehood with impunity. It is in those cases that the imperative need for protection of the integrity of the system demands that proceedings for perjury are initiated.
19.1.3 It is clear that there is an apparent incongruity between the documents produced by the complainant and the deposition of CW1 but the same cannot be termed as material contradiction. It is trite to mention here that, every case of contradictory stands, ought not to result into proceedings for perjury. In light of the above discussion as also the fact that the complainant has been able to prove its case and the accused CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 53 to 56 has been unsuccessful in rebutting the presumption raised against him, I am of the considered opinion that there has been no attempt to subvert the administration of justice by the complainant.
19.2 Now, coming to the other application moved on behalf of the accused, for punishing and prosecuting Mr. Tarun Daga, it is pertinent to mention here that the said application was moved on behalf of the accused on 30.07.2022. By way of the instant application, it has been, interalia, submitted on behalf of the accused that when Sh. Tarun Daga was substituted as AR of the complainant company vide order dated 06.10.2020, he had filed his board resolution, as per which the purported meeting of board of directors of the complainant company, for authorising Mr. Tarun Daga, was held on 27.08.2020. Further it has been submitted that no such meeting was held on 27.08.2020 and hence the said board resolution is also forged and fabricated. Further, it has been submitted on behalf of the accused, that as per the master data of the complainant company, Mr. Tarun Daga is one of the directors of the complainant company and has taken advantage of his position and has mislead the court.
CC No.476333/2016M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 54 to 56 19.2.1 Per contra, no reply to the said application was filed on behalf of the complainant. Straightaway arguments were advanced on its behalf. It has been argued on behalf of the complainant, that Mr. Tarun Daga is one of the directors of the complainant company and hence he can duly represent the complainant. Reliance in this regard has been placed on the judgment of TRL Krosaki Refractories Ltd. Vs. SMS Asia Private Limited & Another(2022 SCC Online SC 217).
19.2.2 As has already been mentioned above, every case of contradictory stands ought not to result into proceedings for perjury. It is also pertinent to note here that when the complainant is a company, then an authorised employee can represent the company. In my considered view, Mr. Tarun Daga, being the director of the complainant company, was duly authorized to represent the complainant company.
19.3 For the foregoing reasons, and to give a quietus to this extremely protracted and long standing litigation, the applications u/s 340 Cr.P.C filed by the accused are dismissed and no perjury proceedings are initiated against CW1 and Mr. Tarun Daga.
CC No.476333/2016M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 55 to 56 Conclusion
20. 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 and he has been unable to rebut statutory presumptions arising against him. Accused Ghanshyam Das Binani is hereby convicted for offence punishable under Section 138 NI Act. Let the convict be heard separately on quantum of sentence. Copy of this judgment be given free of cost to the convict.
Digitally signed by Announced in the open Court on 23.08.2022 AAYUSHI AAYUSHI SAXENA SAXENA Date:
2022.08.23 14:55:50 +0530 (Aayushi Saxena) Metropolitan Magistrate01 (South), NI Act/Saket/New Delhi/23.08.2022 CC No.476333/2016 M/s T.K. Leasing & Finance Pvt. Ltd. Vs. Dhanshyam Das Binani Page No. 56 to 56