Delhi District Court
Atul Kaushal vs Ms Vigneshwara Developwell Pvt Ltd Ors on 26 September, 2024
IN THE COURT OF SH. VARUN CHANDRA,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT-04),
SAKET COURTS, NEW DELHI
CT Cases 707/2014 465937/2016
ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT
LTD ORS
Atul Kaushal,
R/o A-2/54, Safdarjung Enclave,
New Delhi-110029 ...... Complainant
Vs.
1. M/s Vigneswara Developwell Pvt Ltd,
Branch Office: Orchid Centre,
Ground and Second Floor, Golf Course Road,
Sector-53, Gurgaon-122002
2. Sunil Kumar, Managing Director,
3. Sanjay Kumar, Executive Director ...... Accused
1. Complainant : CT Cases 707/2014 465937/2016
Case Number
DLST020017302014
2. Offence : Under Section 138 of the Negotiable
complained Instruments Act, 1881
proved
3. Plea of the : Pleaded not guilty
accused
4. Final Order : Acquittal
CT Cases 707/2014 465937/2016
ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 1/22
5. Date of : 09.09.2014
Institution
6. Date on which : 21.08.2024
reserved for
Judgment
COMPLAINT UNDER SECTION 138 NEGOTIABLE INSTRUMENTS
ACT, 1881.
JUDGMENT
1. It is the case of the complainant that as per the advertisement in the daily newspaper the Complainant called the Accused pursuant to meeting of the Accused Broker/Marketing Executive and thereupon disclosing very lucrative and attractive investment/Exchange- Adjustments, schemes as accused projects which were not in existence pre-launch stage, even some projects had not seen the light of the day even those were in pamphlets only.
2. That whereas with accused wrongly convincing about the details of the investment plan Complainant has invested almost in the tune of Rs. 96,447,84/-. One of the Pre-launched project namely Aquarious Cyber park at sector 74, Gurgaon, Haryana and measuring 1608 Saft. technology office space on Ist Floor, which was never in existence even at that point.
3. That in furtherance to abovementioned factual matrix the Accused no. 1, 2 and 3 contracted vide 'Agreement Developer-Anchor Unit' and 'Agreement Developer-Anchor Option Assured Return Plan' both dated 11/01/2013 with my Client and executed Cheque worth of CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 2/22 Rs. 43,112/- each (Rupees Forty Three Thousand and One Hundred and Twelve Only) till the completion of the proposed project as a "Assured Income Cheques" in favour of the Complainant.
4. That in the same array of incidents one of the said Cheque vide no.
029046 dated 10/07/2014 in favour of the complainant amounting to Rs. 43,112/- has been returned unpaid from their banker with the Return Memo dated 12/07/2014, the reason "Refer to Drawer"
respectively. The details of the cheque bearing no. 029046 dated 10.07.2014 for an amount of Rs. 43,112/-. The original cheque has been placed on records of this Hon'ble Court.
5. It is the case of the complainant that the Cheque has been signed by the Accused and their signatures are appearing at point "A" and "B". That the accused company i.e. M/s Vigneshwara Developwell Pvt. Ltd. issued one cheque to the complainant and assured him that this cheque would be duly encashed / honoured on its presentation in the bank.
6. That complainant deposited the above said cheque with its banker State Bank of India, Safadarjung Enclave, New Delhi-29 for its encashment, but to utter surprise of complainant the above said cheque was returned unpaid by Banker vide retun memo dated 12/0/2014 respectively with the reason "Refer to Drawer".
7. It is the case of the complainant that the information about the dishonor of the above said cheque was received by complainant on 15/07/2014. Complainant immediately approached the accused no. 2 CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 3/22 & 3 being the Drawer of the above said cheque but the Accused no. 2 and 3 avoided even to talk to complainant.
8. That thereafter the complainant sent statutory Legal / Demand Notice dated 23rd July 2014, to the accused persons through Speed Post demanding the amount of the above referred cheque; the said legal notice was posted on 23rd July, 2014.
9. The office copy of the Demand Notice dated 23 rd July, 2014 sent on 23rd July 2014 to the Accused which is already on record. The said legal notice has been signed by the Counsel of the complainant and his signature is appearing at Point 'A'. The original Speed Post receipts dated 23rd July 2014 and being placed on record for kind perusal of this Hon'ble Court.
10. It is the case of the complainant that the further the Legal Notices dated 23rd July 2014 posted on 23rd July 2014 was served upon to the accused persons on 25th July 2014 and 26th July 2014, which shall be corroborated with the evidential report of India Post tracking Record of the same in which the accused persons received the Legal Notice.
11. That no other case is subjudice in any other court for the cheque number 029046 dated 10th July, 2014 amounting to Rs. 43,112/- drawn on Citi Bank, New Delhi U/s 138 of NI Act.
12. That by getting the above said cheque dishonored by the Accused no.
2 and being the Director/Authorised Signatry of accused no. 1 has committed criminal offence punishable under the provisions of CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 4/22 Section 138 and 141 of Negotiable Instruments Act besides Criminal breach of trust.
13. It is the case of the complainant that the accused no. 2 & 3 being the Director/Authorized signatory of accused no. 1 M/s Vigneshwara Developwell Pvt. Ltd. are responsible for the acts & conducts more particularly responsible for the encashment of the above said cheque executed / signed by accused are liable for the prosecution under the provisions of Sections 138 & 141 of Negotiable Instruments Act, 1881.
14. That the complainants have complied with all the necessary requirements of Section 138 of the Negotiable Instruments Act, 1881, as amended upto date, as i. The Cheque was presented for its encashment within the period of its validity;
ii. The cheque was dishonored due to the reasons "Refer to Drawer";
iii. The information regarding the dishonoring of the Cheque was received on 12th July 2014.
iv. The Demand Notice dated 23rd July 2014 posted on 23rd July 2014 was sent to the accused persons i.e., within 30 days of the receipt of the information of the dishonoring of the referred Cheque.
CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 5/22 v. The Legal Notice dated 23rd July 2014 has been served upon to the accused persons on 25th July 2014 and 26th July 2014.
vi. The accused persons did not make the payment within 15 days from the date of the deemed service of the legal / demand notice.
vii. The complaint has been preferred within the stipulated period.
15. In order to prove his case, the complainant had examined himself as CW-1 by way of affidavit CW-1/A and relied upon the following documents:
Ex.CW-1/1 Cheque bearing no. 029046 dated
10.07.2014 for an amount of Rs. 43,112/-
Ex.CW-1/2 Return memo dated 12.07.2024
Ex.CW-1/3 Legal demand notice dated 23.07.2024.
Ex.CW-1/4A and Postal receipts
Ex.CW-1/4B
Ex.CW-1/5A and Tracking report.
Ex.CW-1/5B
Ex.CW-1/A Evidence by way of affidavit
16. After perusal of the complete complaint and the affidavit of evidence, sufficient material was found and summoning orders were passed against the accused under Section 204 Cr.PC Vide order dated 09.09.2014 by the Ld. Predecessor of the Court.
17. That on non appearance of accused persons, NBWs were issued against the accused vide order dated 22.01.2015 and 30.03.2015. It CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 6/22 was came to light before this Court that the accused person(s) in the present were in Judicial Custody in FIR No. 949/14, PS-Hauz Khas.
18. That on 10.08.2016, the notice under Section 251 Cr.PC were served upon the accused person(s) wherein in accused no. 1 i.e. M/s Vigneshwara Developwell Pvt Ltd through accused no. 2 I.e Sunil Kumar wherein it was stated by the accused that the cheque in question was made ready by company for distribution and issuance only and only after due negotiation. He stated that discussions and subject to market conditions to be negotiated and agreed upon mutually and to be reduced into writing through an addendum to the contract and to be issued only after that. He stated that the signatures on the cheque was taken digitally at the time of opening of the account. He stated that during the protest and ransacking of the office premises by mob that was incited by vested interest that barged into the office premises and stole certain boxes containing records and probably the cheque in question.
19. That on 10.08.2016, the notice under Section 251 Cr.PC was served upon the accused no. 3 i.e Sanjay Kumar wherein it was stated by the accused that the cheque in question was made ready by company for distribution and issuance only and only after due negotiation. He stated that discussions and subject to market conditions to be negotiated and agreed upon mutually and to be reduced into writing through an addendum to the contract and to be issued only after that. He stated that the signatures on the cheque was taken digitally at the time of opening of the account. He stated that during the protest and ransacking of the office premises by mob that was incited by vested CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 7/22 interest that barged into the office premises and stole certain boxes containing records and probably the cheque in question.
20. That on 10.08.2016, the present matter was put up for filing an application under Section 145(2) of NI Act. That on 19.09.2016, an application under Section 145(2) of NI Act was moved on behalf of accused and the present matter was put up for reply/arguments on the said application. That on 07.11.2016, the application under Section 145(2) of NI Act was allowed and thereafter the matter was put up for cross examination of the complainant.
21. That on 25.05.2017, it was submitted by both the parties that there is possibility of settlement. Upon the request of both the parties, the matter was referred to the Mediation Center. That on 31.07.2017, the matter could not be settled in Mediation Center. Thereafter, the last and final opportunity was granted to the accused to cross examine the complainant.
22. That on 27.03.2018, complainant as CW-1 was stepped into the witness box and his cross examination was conducted vide order dated 27.03.2018 and 01.04.2019. Thereafter, the complainant was cross examined and discharged and the matter was put up for recording of statement of accused person(s) under Section 313 Cr.PC.
23. That on 01.05.2019, the statement of accused no. 2 i.e. Sunil Dahiya, Director of accused no. 1 was recorded wherein he stated that he was Ex-Director of accused no. 1 as the company is now under provisional liquidation proceedings. He stated that the agreement had CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 8/22 not been funded by the complainant and no consideration has been received. He stated that there is no enforceable debt or liability towards the complainant and he has neither handed over the cheque or cheques that are in possession of the complainant. He stated that as the complainant was a part of mob which had ransacked our office and took the digitally signed cheques contained in the Box. Accused stated that he is not aware of return memo or the reason of return of the cheque. He stated that but there was an injunction order by the Hon'ble High Court of Delhi. He stated that he did not receive the said notice. It was further stated by the accused that the company is in liquidation proceedings as well as facing criminal proceedings which have resulted in seizure of bank accounts and other immovable and movable assets of the company as well as Director which has been instigated by the complainant.
24. That on 01.05.2019, the statement of accused no. 3 under Section 313 Cr.PC i.e. Sunil Dahiya, Director of accused no. 1 was recorded wherein he stated that he was Ex-Director of accused no. 1 as the company is under provisional liquidation proceedings. He stated that he is not aware of any agreement. He stated that he has never signed any agreement. He stated that their office was ransacked by a mob of investors and forcibly the boxes containing the cheques were taken away for which they have lodged a complaint with the Commissioner of Police, Gurgaon. He stated that these boxes contained cheques digitally signed. He stated that he did not receive the said notice. He stated that there is no question of making the payment as he has not received any notice. He stated that he does not CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 9/22 know the complainant and had never met him before the current proceedings.
25. That on 01.05.2019, the matter was put up for defence evidence.
Thereafter vide order dated 30.01.2020, DE was closed by the Ld. Predecessor and subsequently the matter was put up for final arguments.
26. That on 05.10.2023, the present case alongwith connected case i.e. CT Cases 470582/2016 was transferred to this Court.
27. Thereafter, vide order dated 24.02.2024, the matter was put up for final arguments. That on 27.06.2024, the notice was issued to the complainant as well as counsel for complainant for appearance. Since no one had appeared on behalf of complainant and multiple opportunities being given to contest his case and submits his final arguments vide order dated 21.08.2024 the matter was put up for Judgment.
ARGUMENTS ADVANCED
28. Opportunity given. No final arguments furnished on behalf of complainant.
29. Counsel for accused argues that company and its Directors were already restrained from the assets of the company. He argues that therefore the claim of the complainant of the cheques in question, sought through legal demand notice cannot be paid. He argues that by an order dated 18th November, 2013 by the Hon'ble Delhi High court, in liquidation proceedings that was already passed much CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 10/22 before the presentation of the cheques-in-question or the alleged date of the notice of dishonour. He argues that the company and its directors including all the group companies and all officers through the company were restrained from the assets, both movable and immovable (the bank account in question comes in the ambit as movable asset). He argues that therefore, the claim of the cheques-in- question made by the complainant vide his alleged legal notice (after injunction order), cannot be paid from the assets.
30. Counsel for accused argues that hence, involving the directors in criminal case is not reasonable and tenable in Law. He argues that this situation is within the four corner of the principle of equity. He argues that has been defined in judgment of " Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities".
31. Counsel for accused argues that contract relied upon by complainant bars seeking of refund and renewal of contract to pay assured returns is at the discretion of the developer and therefore there arises no liability on the premise of refund or assured returns taken up by complainant qua the cheques in question.
32. Counsel for accused argues that upon by the complainant and available on record of the court file as refers to clause 2.5 reads "This arrangement shall be renewable on the discretion of the developer and the terms and conditions shall be renegotiated between the parties depending on the actual market condition". He argues that whereas, the complainant has not demonstrated any written understanding as to how he was entitled to a "liability of assured CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 11/22 returns" after March of 2014.
33. Counsel for accused argues that complainant not in lawful possession of the cheques in question. He argues that vide an FIR no. 215/2014 dated 20.05.2014 at P.S Sushant Lok; Gurugram, lodged by 250 aggrieved investors proves that on 20 th May 2014 they were assured that Post dated cheques would be handed over and upon non-fulfillment, they were lodging the said FIR. He further argues that therefore, when 250 aggrieved investors were by that date of 20th May 2014, jostling with the company for issuance of post dated cheques for assured returns, how was the present complainant issued the "Post dated cheques of assured returns" without any written understanding and totally against the stand taken by the company towards 250 aggrieved investors. He argues that is a strong preponderance of possibility that proves his possession as illegal / unlawful and his-stand is contrary. He argues that it is important to draw the attention of this Hon'ble court that the PCs are of post August of 2014, which is after the event of the FIR.
34. Counsel for accused argues that the privity of knowledge of the complainant of the ibid quoted FIR is evident from the Body text of the FIR No 109 & 110 both of even date 10.09.2014 registered at P.S EOW, Mandir Marg, lodged by the complainant Sh. Atul Kaushal & (wife ) Santosh Kaushal, and both appear at serial 73 as informants in the said FIR. He argues that to brings to light their privity of knowledge of the facts that of the FIR No 215/2014 at P.S Sushant Lok Gurugram already having been lodged and that all bank accounts of the accused company/ persons were already seized in CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 12/22 police action arising out of the investigations. He argues that it was in their privity of knowledge that an amount of 1.81 Crore was already seized, which far exceeds his claim of the cheques in question.
35. Counsel for accused argues that the fact of lodging of the FIR No 110/2014 is disclosed by the complainant in his evidence by way of affidavit and part of his complaint / plaint. He argues that the fact of as stated by the complainants in the body text of FIR No 110/2014 is as follows:-
I. "....and an FIR 215/2014 stands already registered on complaint of 38 investors by Sushant Lok police station, Gurgaon and various other complaints have been lodged against the accused."
II. " No- 3. Freeze all bank accounts of accused to secure our money as already, 11 bank accounts of M/s Vigneshwara Developers Pvt. Ltd have been freezed by Police containing Rs: 1,81,22,386/- on the complaint of few investors"
III. "S. no 73, Atul Kaushal, Santosh Kumari, A-2/54, Safdurjung Enclave-110029"
36. Counsel for accused argues that bank account in question was seized in Police action as testified in Court by the Investigation Officer [part CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 13/22 of evidence filed u/s 165 Indian Evidence Act, and admitted on court record]
37. Counsel for accused argues that in a directive by the IO of FIR no.
215/2014 dated 20.05.2014 at PS Sushant Lok, Gurugram, by police action on 24th May, 2014, to the Bank of the accused company where it maintained its bank account in question, i.e; Citibank Bank, Gurgaon, that the Bank Account seized. He argues that after the seizure made on 24th May 2014 by a law enforcement officer / agency, in police action, that was brought by the actions of the present complainant and protests of similarly placed aggrieved investors/creditors of the company. He argues that on the said date of the dishonour i.e; in Feb 2015 and March 2015, It cannot be said that the bank account in question of the accused company was said to be maintained or in its control and dominion.
38. Counsel for accused argues that the banker of the accused has testified that the account is freezed [part of evidence filed u/s 165 Indian Evidence Act, and admitted on court record]. He argues that the testimony of the Banker of the account in question of the accused company i.e; Citibank through its Vice President Sh. Vineet Beniwal, brings out the factual matrix that all the bank accounts of the group of companies including the account in question was seized upon direction of the Gurgaon police on 23.05.2014 and the reason of "insufficient funds" as mentioned in the reason of dishonour is "erroneously mentioned" as the mandatory reason should be "payment stopped by attachment order" and is wrongly mentioned due to technical oversight as it is not possible to monitor CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 14/22 the CTS clearing so minutely. He argues that this is exhibited in Defence Evidence by the accused.
39. Counsel for accused argues that ample preponderance of possibility has been raised by the accused on various counts with credible and cogent evidence drawing inferences out of firstly, injunction by Delhi high court, secondly, the unlawful possession of the cheques in question in his hands, thirdly, no liability arising out of relied contract for renewal of "Assured return Liability", fourthly, the "seizure of Bank account in police action" and lastly, the failure by the prosecution witness to stand by the contents of the "evidence by way of affidavit". He argues that are various grounds of rebuttal by the accused that have neither been negated or disproved by the complainant and the complainant has not been able to prove its case with evidence, beyond shadow of doubt. He further argues that thus, ample holes have been punched in the story of the prosecution by the accused and the accused company and the accused person deserve to be acquitted and the complaint be dismissed with cost.
40. It is pertinent to mention that to establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following ingredients reiterated in the Judgment of Hon'ble Supreme Court of India in Kusum Ingots and Alloys v. Pennar Peterson Securities Ltd. AIR 2000 SC954:-
(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 CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 15/22 account for the discharge of any debt or other liability;
(ii)that cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii) 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;
(iv) 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;
(v)the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
41. The accused in the present matter has accepted his signatures on the cheque and thereby presumptions in favour of the complainant under Section 118 and Section 139 are attracted.
42. The Honorable Supreme Court of India in " Triyambak S Hegde v Sripad" (2022) 1 SCC 742 while relying upon the the constitution bench judgment of Basalingappa v Mudibasappa (2019) 5 SCC 418, CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 16/22 under para 14 of its judgment reiterated that once the cheque was issued and that the signatures are upon the cheque are accepted by the accused, the presumptions under section 118(a) and section 139 of the NI Act arise against the accused. That is, unless the contrary is proved, it shall be presumed that the cheques in question were drawn by the accused for a consideration and that the complainant had received the cheque in question in discharge of debt/liability from the accused.:
"25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 17/22
43. Further, The Honorable Supreme Court of India in "Rakesh Jain v. Ajay Singh" Crl. No. 12802 of 2022 has held under para 44 that:
"44. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act.
The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-
existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well."
And further held under para 56 that;
"56. At the stage when the courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 18/22 (depending on the method in which accused has chosen to rebut the presumption): Has the accused led any defense evidence to prove and conclusively establish that there existed no debt/liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the nonexistence of debt/liability by a preponderance of probabilities by referring to the 'particular circumstances of the case'?"
44. Now, the defense taken by the accused to rebut the presumptions available in the favor of the complainant will be looked into and decided upon.
45. The accused person(s) have denied the legally enforceable liability available to the complainant in its entirety by stating that the cheque(s) have been misused by the complainant as they had lodged report lost/stolen at the time when the aggrieved investors had ransacked their office. They have further contested the claim of the complainant by stating that the Directors of the accused company did not have excess to the financial capacity of the company since the accounts had been frozen upon a FIR being registered.
46. The accused person(s) have also denied liability by stating that the agreement from which the complainant claims the liability arises, the said contract was for renewal "Assured Return Liability" which were upon the discretion of the developer and the terms and conditions were to be renegotiated between the parties depending on the actual CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 19/22 market condition.
47. Perusal of the record reflects that the complainant vide its complaint had stated that the cheque in question bearing no 029046 dated 10.07.2014 has been issued by the accused in favour of the complainant and the same had been dishonored. The complainant is relying upon the agreement developer "Anchor Unit" and agreement developer "Anchor Option" "Assured Return Plan" dated 11.01.2013.
48. The complainant at the time of his cross examination had stated that the cheque in question as well as agreements have been signed by either accused no. 2 or accused no.3. From which he had voluntary stated that the signatures are most probably of accused no. 2. The complainant had stated that these cheque(s) were among 09 cheque(s) issued by the accused in his favour for payment of "Assured Return" from July 2014 to March, 2015 given to him in the same office of the accused company. It is difficult to understand that when agreements are being entered upon and 09 cheque(s) being issued to him according to his claim, the complainant is unaware of the signatures of the parties therewith.
49. The cheque in question bearing no. 029046 is dated 10.07.2014 and is for an amount of Rs. 43,112/-.
50. Perusal of the record reflects that the accused person(s) has brought on record the certified copy of the statement of bank witness namely CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 20/22 Mr. Vineet Beniwal which states that the account no. 710299005 belongs to the accused company and that all the accounts were placed under no debt status i.e. stated account were frozen by competent authority. They have also furnished the statement of the I.O vide FIR bearing no. 215 dated 20.05.2014 from PS-Sushant Lok, Gurugram stating that the accounts of the accused company were frozen.
51. The cheque(s) in question is dated 10.07.2014 is reflects that the cheque(s) could not be issued by the Directors in their due capacity as the accounts were already frozen at the time of issuance of cheque. The same can be understood as stated by the complainant that he had initiated an FIR against the accused person(s) vide FIR No. 109 and 110 dated 10.09.2014 wherein the complainant was stated to appear as informant at Sl.No. 73.
52. Thereby, there is nothing on record to state that the accused can operate their bank account at the relevant time when the cheque(s) in question were presented for encashment and therefore, the bank account in question was not capable of being operated by the accused person(s) at the relevant time.
53. Furthermore, the complainant at the time of his cross examination had himself stated that the sale deed dated 11.01.2013 executed by him in favour of M/s Foxtrot Megha Constructions Pvt Ltd was cancelled by him vide order dated 06.09.2016 from the concerned Ld. Court in Gurugram, Haryana and that he was in possession of the property situated at Sahara Mall. He had further admitted that there CT Cases 707/2014 465937/2016 ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 21/22 was no written agreement to the fact that accused shall be liable to make payment with respect to the "Assured Return" even after the cancellation of sale deed.
54. In view of the above findings and analysis, it is concluded that the accused has successfully rebutted the mandatory presumptions under section 118 and 139 of the NI Act and the ingredients of offence under Section 138 Negotiable Instruments Act has not been fulfilled by the complainant beyond reasonable doubt.
55. Consequently, the accused person(s) are held not guilty and is hereby acquitted of the offence under section 138 of the Negotiable Instruments Act, 1881.
Certified that this Judgment contains 22 pages and each page bears my signature.
Digitally signed by VARUN CHANDRA VARUN Date:
CHANDRA 2024.09.26
16:26:08
+0530
Pronounced in open Court (Varun Chandra)
on 26.09.2024 JMFC (NI Act)-04/Saket Courts,
South/New Delhi
CT Cases 707/2014 465937/2016
ATUL KAUSHAL Vs. MS VIGNESHWARA DEVELOPWELL PVT LTD ORS PAGE NO. 22/22