Delhi District Court
Ms Shubham Agency vs Ms Fucon Technologies Ltd. Ors on 6 May, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE,
(NEGOTIABLE INSTRUMENT ACT) -07, SOUTH, SAKET
COURTS, NEW DELHI
Presided over by: SH. RISHABH TANWAR
CT Cases 463829/2016
M/s. Shubham Agencies Vs
M/s. Fucon Technologies
A. CNR No. : DLST020007902014
B. Date of Institution : 31.03.2014
C. Date of commission of : 02.03.2014
offence
D. Name of the complainant : M/s. Shubham Agencies
Through its Prop. Ms. Manju
Jain, through her attorney Sh.
V.K. Jain
S/o. Sh. Gopi Chand Jain,
R/o. T-10, Green Park Extension,
New Delhi.
E. Name of the accused, his : 1. M/s. Fucon Technologies
parentage and address Ltd.
Office address: 71/4, Shivaji
Marg, Najafgarh Road,
Industrial Area, Moti Nagar,
New Delhi-110029.
2. Mr. Rahul Parikh, being
Managing director of
accused No.1.
CT Cases 463829/2016
M/s. Shubham Agencies Vs. M/s. Fucon Technologies
Page No.1 of 39
Digitally
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2024.05.06
15:30:25
+0530
R/o B-3/52, Safdarjung
Enclave,
New Delhi-110029.
3. Sh. Ms. Deep Parikh,
Whole Time Director,
R/o B-3/52, 2nd Floor,
Safdarjung Enclave, New
Delhi-110029.
4. Ms. Gurmeet Verma, being
the Director
R/o B-3/52, 2nd Floor,
Safdarjung Enclave, New
Delhi-110029
Offence complained of : Under section 138 Negotiable
Instruments Act, 1881
G. Plea of the accused : Pleaded not guilty and claimed trial.
H. Judgment reserved on : 10.04.2024
I. Date of Judgment : 06.05.2024
J. Final Order : Accused company and accused
no. 3 - Convicted.
Accused no. 4 - Acquitted.
BRIEF FACTS OF THE CASE:-
1. The instant matter has originated out of a complaint under Section 138 Negotiable Instruments Act (hereinafter referred to as 'NI Act'), filed by the complainant, namely M/s. Shubham Agencies, through its proprietor Ms. Manju Jain, through her attorney Sh. V.K. Jain against the accused No.1 company M/s. Fucon Technologies, accused No.2 Sh. Rahul Parikh being Managing director of accused No.1, accused No.3 Ms. Deep CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.2 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:30:30 +0530 Parikh, whole time director of accused No.1 company and accused No.4 Ms. Gurmeet Verma, being director of accused No.1 company alleging that cheque no. 814242 dt. 31.10.2013 of Rs. 1,70,00,000/-, drawn on Syndicate Bank, Green Park Extn. Bank, New Delhi was issued by the accused company in favor of the complainant, in discharge of a legal liability. The above-mentioned cheques have been dishonored and the accused has not paid the said amount even after receiving the prescribed legal demand notice dated 15.02.2014. By virtue of this judgment, the present complaint is being disposed of.
2. It is the case of the complainant that on 30.08.2011 accused persons approached Sh. V.K. Jain, husband of the complainant through accused No.2 who allured Sh. V.K. Jain to invest money with accused No.1 by showing very good prospect of profit. It is further the case of complainant that under the said inducement, husband of complainant invested a total amount of Rs.8,19,00,000/- with accused No.1 which was paid by complainant through different cheques and bank transfer from his business and family accounts. It is further the case of complainant that out of Rs.8,19,00,000/-, Rs.1,70,00,000/- were paid by V.K. Jain from the account of complainant i.e. M/s. Shubham Agencies vide two transfer advice dt. 16.11.2011 for Rs.85,00,000/- each from Syndicate Bank, Green Park Extn., New Delhi and the accused persons promised to return the said amount along with profit up to 30.03.2012. It is further the case of complainant that they failed to return the said amount as promised and on repeated requests CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.3 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:30:35 +0530 from Sh. V.K. Jain, instead of returning the amount the accused persons entered an agreement/memorandum of understanding dt. 07.05.2012 with Sh. VK. Jain. It is further the case of complainant that in discharge of the liability to pay back the amount of Rs.1,70,00,000/-, accused No.2 being the Managing Director and authorized signatory of accused No.1 had issued cheque bearing No.814242 dt. 31.10.2013 of Rs. 1,70,00,000/- drawn on Syndicate Bank, Green Park Extn. Bank, New Delhi in accordance with the agreement/MOUs dt. 07.05.2012 with assurance that same shall be encashed upon its presentation. It is further the case that when complainant presented the cheque, same got dishonored for the reasons "funds insufficient" vide return memo dt. 22.01.2014 and complainant thereafter sent a statutory legal notice dt. 15.02.2014 to the accused persons to pay the cheque amount within the prescribed period of 15 days. Since the accused persons failed to pay the cheque amount within the prescribed period of 15 days of receiving the legal notice, hence the present complaint.
3. Complainant entered the witness box and examined herself as CW-1 on 08.03.2019. She tendered her pre-summoning evidence by way of affidavit as Ex. CW-1/1 bearing her signatures at point A and B and relied upon the documents namely:
a. Certificate dt. 06.11.2013 Ex.CW1/A(OSR), b. S.P.A dt. 25.03.2014 Ex.CW1/B (OSR), c. List of authorized signatories of Fucon Technologies CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.4 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:30:39 +0530 Limited Ex.CW1/C, d. Statement of account Ex.CW1/D, e. Memorandum of understanding dt. 07.05.2012 Ex.CW1/D (Colly) (OSR), f. Original cheque in question Ex.CW1/F, g. Returning memos dt. 22.01.2014 Ex.CW1/G, h. Office copy of legal notice 15.02.2014 Ex.CW1/H, i. Postal receipts all dt. 15.02.2014 Ex.CW1/I (Colly), j. AD Card all dt. 17.02.2014 Ex.CW1/J (Colly)
4. CW-1 in her cross-examination stated she was M.A. pass from Delhi University and at present she was taking care of her cases and office work. She further stated M/s. Shubham Agencies was formed in the year 2005. She further stated that the firm was not working at present. She admitted that bank accounts of the firm were still in existence. She admitted there was no document attached in the file showing the formation of firm.
She admitted that certificate dt. 06.11.2013 was issued from Syndicate Bank and was applied by her husband, she had not seen the application by which aforesaid certificate dt. 06.11.2013 was issued. She voluntarily stated that she was ill at that time due to which she authorized her husband to apply for the aforesaid certificate. She further stated that due to her illness she was not able to attend all the works of her business and whenever she was not able to attend, her husband used to attend the work of the business on her behalf. She further stated that she was the proprietor of the complainant firm which was a registered firm. She further stated that she did not remember CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.5 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:30:43 +0530 the registration number of the firm. She admitted that no document showing the registration of complainant firm was placed on judicial file. She further stated that she, her husband, one or two employees namely Mr. Shiv Sharma and one other person whose name she did not remember used to work in complainant firm at the time of filing of the complaint. She further stated all matters pertaining to bank account of complainant firm was carried out by her, her husband and Mr. Shiv Sharma. She further stated that there was only one Accountant namely Mr. Saurabh Jain, who used to look after the accounts work of the complainant firm. She further stated that Mr. Jaiswal used to work as an accountant prior to the year 2005 and prior to the time when Mr. Rahul Parikh met us. He further stated that complainant firm was involved in the business of importing tyres and other goods, aforesaid tyres used to be of cars. She further stated that she did not know what were the aforesaid goods which used to be imported by complainant firm. She voluntarily stated that complainant firm used to import the items which were asked by Mr. Rahul and some machinery. She further stated that complainant firm was in existence and used to carry on its business till the demise of her husband in the year 2014. She voluntarily stated that till the year 2014, the business was not expanding as per their expectations. She further stated that she did not know from where the goods were imported. She further stated she did not remember the exact year in which the accused company came in touch with the complainant firm. She further stated that Late Mr. V.K. Jain was survived by his three legal heirs including CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.6 of 39 Digitally signed by RISHABH TANWAR RISHABH Date:
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him and his two children Mrs. Shweta Jain Maloo and Dr. Shubham Jain. She admitted that she does not have the authority from all the legal heirs to pursue the present complaint. She further stated that she does not know whether such authority was present in the judicial file or not. Witness further stated that the other businesses were also related to automobiles. She further stated in starting, they imported some automobiles parts from accused company. She voluntarily stated that there was little involvement between accused firm and complainant company professionally. She further stated she did not know from where aforesaid parts were imported. She admitted that with regard to the import business no document was attached with the present complaint. She further stated she did not know whether accused No.3 and 4 had given aforesaid import orders to complainant firm or not. She further stated complainant firm used to file ITR but in whose name the ITR were used to be filed that she does not know. She further stated her ITR used to be filed by her husband only. She further stated that she does not remember for the first time how much loan was given by the complainant firm to the accused. She voluntarily stated that the transactions between the complainant firm and accused company was from 2005. She further stated she does not remember how many times the complainant firm advanced loan to the accused company. She voluntarily stated as there were several transactions she did not remember the number of transactions. She further stated that she did not remember before the alleged MOUs were signed, how much amount was paid by complainant firm to accused company as CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.7 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:30:52 +0530 alleged loan. She voluntarily stated that when the loan amount was exceeded, they had entered the MOUs with the accused company. Witness shown MOU dt. 07.06.2010 and asked how much amount had been given by complainant firm M/s. Shubham Agencies to accused No.2 out of total Rs.6,38,66,175/- wherein she stated that since 2005 accused company and accused No.2, 3 & 4 were lending money from them and thereafter, in June 2010 they agreed to sign an MOU. She further stated she did not know exactly how much amount was given by complainant firm to accused in respect to the aforesaid MOU. She further stated she does not remember the exact amount which was lent to accused since 2005 till signing of MOUs with the complainant and accused company. She voluntarily stated that MOU was between the complainant and the accused persons. She admitted that she does have the money lending license as loan given to accused persons was the friendly loan. In her further cross examination on 24.10.2019, she admitted that the complaints pertaining to the Shubham Agencies had been filed by her late husband Mr. V.K. Jain. She further stated that she had given written authority to her husband to file the case on her behalf and the said authority was given in the presence of Sh. Shiv Sharma and Sh. Saurabh. She further stated that she did not remember whether aforesaid witnesses had affixed their signatures on the said authority. She admitted that nowhere in her complaint as well as in her evidence by way of affidavit, it was mentioned that the loan in question was a friendly loan. She voluntarily stated that it was a friendly loan. She further stated she does not remember in CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.8 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:30:57 +0530 how many MOUs/agreements entered between the complainant and accused company were signed by accused No.4. She voluntarily stated that she can tell the same after seeing the MOUs. She further stated she does not remember whether all the directors of accused No.1 company used to sign the MOUs/agreements. She further stated MOUs were signed in June 2010 and May-June 2012 in front of her and were signed by Mr. Rahul, Mrs. Deep Parikh and may be Mrs. Gurmeet Verma and on behalf of complainant company her husband Mr. V.K. Jain signed the MOUs. She further stated that she had given a written authority to her late husband Mr. V.K. Jain for providing loan to any person including accused No.1 company. She voluntarily stated that her husband was authorized signatory of her proprietorship firm namely Shubham Agencies. She admitted that she had not annexed the said authority on record. She further stated she does not remember on how many MOUs/agreements executed between 01.10.2010 to 31.01.2014 bears her signatures. She voluntarily stated that maybe she had signed one agreement/MOU.
She further stated she does not know who purchased the stamp papers on which MOUs were written. She further stated she does not know who had typed or when the aforesaid MOUs were typed. She further stated total loan of Rs.10,00,00,000/- were advanced to accused company/accused persons by complainant company. She further stated that she does not remember the exact figure which was given as a loan. She further stated aforesaid loan of Rs.10 crores was given in installments approx. from the year 2006 to year 2010 in how CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.9 of 39 Digitally signed by RISHABH TANWAR RISHABH Date:
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many installments, she does not remember. She further stated that she cannot bifurcate the principle and the interest amount due towards the accused No.1 company. She further stated she had placed on record the ledger statement which was then Mark as Mark CW1/Y (Colly) showing the due towards the accused No.1 company. She further stated she does not remember whether complainant company had shown the abovesaid loan amount in ITR or not. She further stated that she used to file ITR on behalf of Shubham Agencies, again said, she does not know for sure as husband used to look after the complainant firm as he was the authorised signatory. She further stated she does not know whether at the time of showing the transaction in question in ITR, she signed the ITR or not. She further stated she does not know whether the ITRs of the relevant period were in her possession or not. She further stated she cannot take the certified copies from the ITR department and place it on record.
5. In her cross-examination on 10.12.2019 she stated that they had arranged the fund from her SOD account. She further stated she does not remember what the maximum limit of her SOD account at the time was when the loan in question was advanced. She further stated that she does not remember the exact date when the SOD account was opened. She voluntarily stated that it was opened in year 2000-03. She admitted that it was not mentioned in her complaint that the loan was advanced to the accused No.1 company after arranging it from somewhere else. She further stated she did not know whether her accounts of firm were audited or not, she further stated she CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.10 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:31:06 +0530 cannot say whether the complainant firm had advanced loan to some other person or not. She denied the suggestion that she did not used to participate actively in the complainant firm because of that she was not aware of entire transaction of the firm. She admitted that she specifically did not knew who had filled the cheque/cheques in question. She voluntarily stated that cheque in question were received after being filled by accused no.1 company. She admitted that she had not signed any document placed on record in the capacity of creditor or otherwise on behalf of the complainant firm. She voluntarily stated that same had been signed by her late husband Mr. V.K. Jain who was appointed as an authorised signatory of the complainant firm. She admitted that she had not filed any authority letter whereby her late husband Mr. V.K. Jain was appointed as an authorised signatory of complainant firm. She voluntarily stated that the authority letter to file the present case was on record. She admitted that she had not placed on record the authority of her late husband Mr. V.K. Jain to transact the bank account of complainant firm. She denied all other suggestions put to her.
6. Thereafter, vide order dated 23.01.2020, the complainant closed her evidence.
7. The statement of accused No.3 Sh. Deep Parikh, whole time director and accused No.4 Gurmeet Verma being director of accused No.1 u/s. 313 Cr.P.C was recorded on 21.03.2020 wherein they stated that they knew the complainant through her CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.11 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:31:12 +0530 husband. They further stated that they were director of accused no.1 company, however they were not responsible for day-to- day affairs of the accused No.1. They further stated that they had not signed any MOU. They further stated they had no knowledge of issuance of the cheques bearing No.814263 dt. 31.10.2013 for an amount of Rs.10,00,000/- though it is matter of record. They further stated they had no knowledge of dishonor of the aforesaid cheque. They had no knowledge of legal demand notice if they received it or not. They further stated that they had no knowledge about the transaction in question. They further stated they had been falsely implicated in the present case and that they had no liability to repay any amount to the complainant. They further stated they had no knowledge about director of accused company approaching complainant for importing some part for themselves in the year 2004. They denied signing any MOUs with the complainant company. They further denied any loan of Rs.25,00,00,000/-
approx. given to accused persons by the complainant. They further stated that they got to know about Mark Y1 i.e. copy of complaint against accused No.1 and its director before the Commissioner of Police when an FIR was lodged, and they were called to join investigation though it was a false FIR.
8. Thereafter accused examined Dr. Sumeet Kumar, Scientific Officer, FSL Moradabad, U.P. on 28.05.2022 wherein he stated that on 12.09.2018 he was posted as Junior Forensic/ Assistant Chemical Examiner. He further stated that he had prepared FSL report no. FSL 2018/D-6520 dt. 12.09.2018, the copy of which CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.12 of 39 Digitally signed by RISHABH RISHABH TANWAR Date: TANWAR 2024.05.06 15:31:17 +0530 was then Ex.DW1/A (Colly) (pages 1 to 35) (the certified copy of the same is kept in CC No.463645/2016). He further stated that the investigating official of case bearing number FIR No.631/2014 PS S J Enclave had deposited document Q1 (Guarantor agreement dt. 07.06.2010), Q2 & Q3 i.e. two memorandums of understanding both dt. 07.05.2012 and specimen standard signatures Mark S1 to S4 and A1 to A12 (account opening form, letter to thanks, customer masters form, specimen signatures, nomination all pertaining to Punjab National Bank of Deep Parikh). He further stated that after examining the document provided by the investigating officer, he had opined that that the persons who wrote red enclosed signatures stamped and marked S1 to S4 and A1 and A12 did not write the red enclosed signatures/writing similarly stamped and marked Q1 to Q3. In his cross-examination, he stated that he cannot say whether in MOUs dt. 07.05.2012, the signatures of second accused Rahul Parikh were also referred for opinion. He further stated that all the documents were sent to him in original. He further admitted that it was not mentioned in his report that original documents were submitted to him for opinion. He voluntarily stated that if it is in original then they do not write in the report, however in case of photocopy they mention the same. He further stated that there was no rule in their laboratory that they need not write whether they were given originals or not. He denied the suggestion that he had compared the signatures based on photocopies. He further stated that a person can disguise his or her own handwriting, it depends on her or his skill. He further stated that a person with CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.13 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:31:22 +0530 inferior handwriting cannot disguise in handwriting of superior writer. He admitted that in the present case, he cannot say whether it is inferior or superior. He further stated that change in signatures depends on many factors like progression in age, disease related to central nervous system, any injury etc. He admitted that the signatures stamped and marked S1 to S4 were not signed in his presence.
9. Thereafter accused examined Mr. Nirmal Kumar, MTS, Income Tax Officer, New Delhi wherein he stated that he had brought the summoned documents i.e. ITR pertaining to AY 2004-05 to 2013-14 running into pages 1 to 128. Same were then Ex.DW2/A (Colly). The witness was not cross examined by the complainant.
10. Thereafter accused examined Mr. Jitender Kumar, Inspector, Income Tax Department, Circle 281, S.P. Mukherjee Civic Centre, Delhi wherein he stated that he had brought the summoned record i.e. ITR pertaining to PAN No. AAFPJ6210N for the assessment years 2004-2005 to 2012- 2013 (running into 27 pages) with covering letter. The same is Ex.DW3/A (Colly). In his cross-examination, he stated that he had no personal knowledge about the document.
11. Thereafter, on 17.09.2022, accused counsel closed the DE, thereafter, defense evidence was closed and matter was put up for final argument.
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2024.05.06 15:31:27 +0530 ARGUMENTS ADVANCED ON BEHALF OF THE PARTIES
12. Sh. Jinender Jain, Ld. Counsel for the complainant has argued that to the effect that accused no. 3 and 4 were involved in day- to-day affairs of the accused company. And that out of 57 cheques given by the accused company, 24 cheques had been cleared and now accused no. 3 cannot say her signature were forged on the MoU. He has lastly argued that the complainant has proved all the pre-requisites of the offence under section under section 138 NI Act and has prayed that the accused persons be convicted of the offence alleged against him.
13. Per contra, Sh. Neeraj Aggarwal, Ld. Counsel for the Official Liquidator (OL) of the accused no. 1 company has argued that the directors have not informed the OL regarding the transaction of the present case and has argued that the accused company has no liability towards the complainant.
14. Sh. Shivaji Shukla, Ld. Counsel for the accused no. 3 and 4 has argued that in Ex. CW-1/B i.e., that is the accused company's master data, accused no. 3 and 4 did not have their Digital Signature Certificate (DSC) registered, hence they were not involved in day-to-day affairs of the accused company. He has further argued that accused no. 3 and 4 had not signed upon Ex. CW-1/C and that the signature of accused no. 3 on the same were forged. He has further argued that the loan in question was not shown in ITR of the complainant and the mediation agreement was signed only to finish all the pending disputes CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.15 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:31:33 +0530 between the parties. He has lastly argued that CW-1 had no personal knowledge of the present case and has prayed that accused no. 3 and 4 be acquitted of the offence alleged against them.
POINTS OF DETERMINATION
15. The following points of determination arise in the present case:
A. Whether the complainant has successfully proven the facts which would raise the presumption u/s. 118 r/w Section 139 of NI Act by proving that the cheque in question bears the signature of the accused?
B. If yes, whether the accused has been successful in raising a probable defence?
THE APPLICABLE LAW
16. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Now, Section 138 Negotiable Instrument Act provides as under:
Section 138.- Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.16 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:31:38 +0530 debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, 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 thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation -- for the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.17 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:31:43 +0530 required to be fulfilled: (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability; (2) cheque has been presented to the bank within a period of six months (now three months) from the date on which it is drawn or within the period of its validity whichever is earlier; (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice. Being cumulative, it is only when all the ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the N I Act.
The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability.CT Cases 463829/2016
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2024.05.06 15:31:49 +0530 Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred]:
(i) 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.
(ii) 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.
(iii) 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.
(iv) That it is not necessary for the accused to come in CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.19 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:31:54 +0530 the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act, is that the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way:
Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that 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. Therefore, here the onus shifts upon the accused to CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.20 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:00 +0530 prove the nonexistence of debt or other liability. Section 139 of the N.I. Act uses the word "shall presume", which means that the presumption under Section 139 is rebuttable. Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record 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 the consideration CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.21 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:05 +0530 of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist. As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. Accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed.
FINDINGS OF THE COURT
16. At the onset, it is important to mention that this judgment would only adjudicate the guilt of the accused no. 1 company as well as accused no. 3 Deep Parikh and accused no. 4 Gurmeet Verma only, as accused no. 2 Mr. Rahul Parikh has been declared a proclaimed persons and the evidence was recorded in the present case in his absence under section 299 CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.22 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:12 +0530 Cr.P.C., therefore, the determination of guilt of accused no. 2 Mr. Rahul Parikh shall be done when he is apprehended and brought before this court.
Points of determination number A:
17. The accused no. 3 and 4 during the trial has disputed that the cheque did not bear their signature. It is noteworthy that the accused no. 3 and 4 have been arraigned as an accused persons in the present case under section 138 NI Act read with section 141 NI Act. In another words, they were shown to be directors of the accused company at the time of when the offence under section 138 NI Act had been committed. Section 141 NI Act reads as:
"141. Offences by companies. --
(1)If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly..."
18. Therefore a cumulative reading of section 141 and section 138 would inform us that when the principal offender under section 138 NI Act is a company, who had signed upon the cheques in question through its authorised signatory, every director - who at the when the cheque in question was dishonoured, for which CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.23 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:17 +0530 no payment of the same is made within the stipulated time - was in charge of, and was responsible to the company for the conduct of the business of the company, is deemed to be guilty of the offence under section 138 NI Act. This deeming fiction created by section 141 NI Act conjures the liability of an accused on the principle of vicarious liability and thus it does away with the requirement that the accused must necessarily be the signatory of the cheque. (Reliance is placed upon the judgment of Hon'ble Apex Court in " Sabitha Ramamurthy v. R.B.S. Channabasavaradhya (2007) 1 SCC (Cri) 621").
19. Thus the presumption under section 139 NI Act does arise in the present case against accused no. 3 and 4 under section 139 read with section 138 read with section 141 NI Act.
20. Accordingly, the point of determination number A is decided in the affirmative.
Points of determination number B:
21. Once the presumption is raised, the burden of proof shifts upon the accused to prove otherwise. It is trite law that the accused does not need to necessarily lead positive evidence in his or her favour, she can shift the said burden by blowing holes in the story of the complainant. Reliance is placed upon the judgment of Hon'ble Apex Court passed in Bharat Barrel and Drum Vs. Amin Chand Pyarelal (1999) 3 SCC 35. It is further pertinent to note that the standard of proof required to rebut the CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.24 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:22 +0530 presumption u/s.139 NI Act is that of "preponderance of probabilities" and at the same time, the complainant is required to prove its case beyond the shadow of reasonable doubt.
Qua Accused company M/s Fucon Technologies Ltd.
22. Sh. Neeraj Aggarwal, Ld. Counsel for the Official Liquidator of the accused no. 1 company has argued that the directors have not informed the OL regarding the transaction of the present case and has argued that the accused company has no liability towards the complainant. However, the same is not a tenable argument and is insufficient to rebut the presumption under section 139 NI Act.
23. The Memorandum of Understanding (MoU) CW-1/D (Colly.) (OSR) has been signed by accused no. 2, in the capacity of managing director of accused company, clearly admitting that the complainant firm had invested Rs. 06,38,66,175/- with the accused company. No defense has been led on behalf of the accused company to refute the aforesaid MoU and the same has remained unchallenged during the trial.
24. The complainant has also proved beyond reasonable doubt that the cheques in question (Ex. CW-1/E Colly.) were issued by the accused company though its authorized signatory and the same was dishonored vide return memos (Ex. CW-1/F Colly.) and the accused company has failed to pay the cheque amount within 15 days of receiving the legal notice (Ex. CW-1/G).CT Cases 463829/2016
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2024.05.06 15:32:27 +0530
25. Therefore, the presumption under section 139 NI Act has not been rebutted by the accused company and accordingly, the point of determination No. B is decided in the negative qua accused company.
Qua Accused no. 3 Ms. Deep Parikh
26. Accused no. 3 is the wife of the accused no. 2 and is also director in the accused company. Accused no. 3 has been shown to be a 'whole time director' in the accused company, as per the accused company's master data Ex. CW-1/C.
27. Ld. Counsel for the accused no. 3 and 4 has argued that since as per Ex. CW-1/C, the accused no. 3 and 4 were not shown to have registered Digital Signature Certificate (DSC), they cannot be held to be in-charge of day-to-day affairs and responsible for the management of accused company. The said argument is not tenable as it is not mandatory for all directors to be registered for DSC. Only those directors/persons of a company are supposed to register their DSC who have to sign e-forms on behalf of the company, however the same has no bearing on the ability of a person to be in-charge of day-to-day affairs and responsible for the management of a company.
28. The accused no. 3 has taken a defence that she was not the signatory of the cheque in question. This defence has been dealt with and rejected in paragraph no. 18 and 19 of this judgment CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.26 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:32 +0530 and need not be reiterated. She has further taken the defence that she was not responsible for the accused company for day to day affairs as she was neither in charge or responsible for the conduct of the accused company either on the date of issuance of cheque in question or on it dishonour. She had further taken a defence that she was not aware of the transaction that took place between the parties and that he had never visited the office of accused company nor take part in its business at any point of time.
29. Admittedly, it is not the case of the accused no. 3 that she had resigned from the position of the directorship in the accused company before the dishonour of the cheque in question. As already mentioned in paragraph no. 27, the accused is shown to be a 'whole time director' in the accused company.
30. It would bode well for the discussion in the present case to refer to case laws on section 141 NI Act. In the case of 'K.K. Ahuja vs V.K. Vora & Anr' [(2009) 10 SCC 48], which has also taken into consideration the earlier judgment of the Hon'ble Apex court in 'S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla & Anr. [2005 (8) SCC 89]' and 'Saroj Kumar Poddar v State (NCT of Delhi) [2007 (3) SCC 693]', the Hon'ble Apex Court had held that:
"10. Having regard to section 141, when a cheque issued by a company (incorporated under the Companies Act, 1956) is dishonoured, in addition to the company, the following persons are deemed to be guilty of the offence and shall be CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.27 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:38 +0530 liable to be proceeded against and punished :
(i) Every person who at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company;
(ii) Any Director, Manager, Secretary or other officer of the company with whose consent and connivance, the offence under section 138 has been committed; and
(iii) Any Director, Manager, Secretary or other officer of the company whose negligence resulted in the offence under section 138 of the Act, being committed by the company.
While liability of persons in the first category arises under sub-section (1) of Section 141, the liability of persons mentioned in categories (ii) and
(iii) arises under sub-section (2). The scheme of the Act, therefore is, that a person who is responsible to the company for the conduct of the business of the company and who is in charge of business of the company is vicariously liable by reason only of his fulfilling the requirements of sub- section (1). But if the person responsible to the company for the conduct of business of the company, was not in charge of the conduct of the business of the company, then he can be made liable only if the offence was committed with his consent or connivance or as a result of his negligence." (emphasis supplied) CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.28 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:44 +0530
31. It was further held in the aforesaid case that:
"14. The words "every person who, at the time of the offence was committed, was in charge of, and was responsible for the conduct of the business of the company" occurs not only in section 141(1) of the Act but in several enactments dealing with offences by companies, to mention a few - Section 278 B of the Income Tax Act, 1961, Section 22C of Minimum Wages Act, 1948, Section 86A of the Employees State Insurance Act, 1948, Section 14A of Employees Provident Fund and Miscellaneous Provisions Act, 1952, Section 29 of Payment of Bonus Act, 1965, Section 40 of The Air (Prevention and Control of Pollution) Act, 1981 and section 47 of Water (Prevention and Control of Pollution) Act, 1974. But neither section 141(1) of the Act, nor the pari materia provisions in other enactments give any indication as to who are the persons responsible to the company, for the conduct of the business of the company. Therefore, we will have to fall back upon the provisions of Companies Act, 1956 which is the law relating to and regulating companies. Section 291 of the said Act provides that subject to the provisions of that Act, the Board of Directors of a company shall be entitled to exercise all such powers, and to do all such acts and things, as the company is authorised to exercise and do. A company though a legal entity can act only through its Board of Directors. The settled position is that a Managing Director is prima facie in charge of and CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.29 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:49 +0530 responsible for the company's business and affairs and can be prosecuted for offences by the company. But insofar as other directors are concerned, they can be prosecuted only if they were in charge of and responsible for the conduct of the company's business. A combined reading of Sections 5 and 291 of Companies Act, 1956 with the definitions in clauses (24), (26), (30), (31), (45) of section 2 of that Act would show that the following persons are considered to be the persons who are responsible to the company for the conduct of the business of the company : --
(a) the managing director/s;
(b) the whole-time director/s;
(c) the manager;
(d) the secretary;
(e) any person in accordance with whose directions or instructions the Board of directors of the company is accustomed to act;
(f) any person charged by the Board with the responsibility of complying with that provision (and who has given his consent in that behalf to the Board); and
(g) where any company does not have any of the officers CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.30 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:53 +0530 specified in clauses
(a) to (c), any director or directors who may be specified by the Board in this behalf or where no director is so specified, all the directors. It follows that other employees of the company, cannot be said to be persons who are responsible to the company, for the conduct of the business of the company."
32. Therefore, the accused no. 3 accordingly would be considered to be the persons responsible to the company for the conduct of the business of the company and the complainant by proving Ex. CW-1/B showing the accused no. 3 as a 'whole time director' has been able to prove legally that accused no. 3 was responsible to the company for the conduct of the business of the company.
33. In the case of "Susela Padmavathy Amma V. M/S Bharti Airtel Limited 2024 INSC 206", the Hon'ble Apex Court had held that:
"This Court held that there is no universal rule that a director of a company is in charge of its everyday affairs. It was, therefore, necessary, to aver as to how the director of the company was in charge of day-to-day affairs of the company or responsible to the affairs of the company. This Court, however, clarified that the position of a managing director or a joint managing director in a company may be different. This Court further held that these persons, as the CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.31 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:32:58 +0530 designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. To escape liability, they will have to prove that when the offence was committed, they had no knowledge of the offence or that they exercised all due diligence to prevent the commission of the offence."
(Emphasis supplied)
34. In the present case, the onus was upon accused no. 3 to prove that she had no knowledge of the offence or that they have exercised all due diligence to prevent the commission of the offence.
35. The accused no. 3 has only examined one witness namely DW- 1, who had proved his report Ex. DW-1/A (colly.), i.e, a FSL report, wherein the Guarantee Deed (CW-1/E Colly.) was submitted to him by the investigating officer in FIR no. 631/2014 P.S. Safdarjung Enclave, for examining the signature of the accused no.3 on the same, marked as Q1 to Q3, and to compare them with admitted signatures (A1 - A12) and sample signature of accused no. 3 (Mark S1 to Mark S4) were submitted to him. He had further deposed that the person who had written the enclosed signature stamped and marked as Mark S1 to Mark S4 and A1 - A12 did not write the enclosed signature marked as Q1 to Q3. However, testimony of DW-1 casts a shadow of doubt only on the aspect whether the signature of the accused no. 3 has signed the aforesaid Guarantee deed or not and whether the signature on the same CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.32 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:33:03 +0530 belongs to accused no. 3.
36. It is also pertinent to note that except a mere suggestion that the accused no. 3 was not responsible for day to day affairs of the accused company was put to CW-1 in her cross-examination, no other specific question was asked to CW-1 qua accused no. 3 by her.
37. It is pertinent to note that when the dispute between the complainant and the accused company was referred to the Delhi High Court Mediation and Conciliation Centre, the accused no. 3 has signed upon the said agreement dated 25.03.2015 in the capacity of the director of the accused company. The accused no. 3 had stated at the time of her defence under section 251 Cr.P.C. dated 15.09.2014 and in her statement under section 313 Cr.P.C. dated 05.04.2021 that she had no knowledge of the transaction with the complainant. It is noteworthy that the aforesaid statement was recorded much after in time than the mediation agreement. Therefore, judicial cognizance of the fact can be taken that where the accused no. 3 had participated in the mediation proceedings in the year 2015, which included a reference to the present proceedings, her statement recorded in the year 2020 that she had no knowledge of the transaction does not appear to be true and trustworthy.
38. Ld. Counsel for the accused no. 3 had raised an argument that the present complaint is liable to be dismissed that CW-1 had no personal information of the case. He has placed reliance CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.33 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:33:08 +0530 upon the judgment of "A.C. Narayanan vs State Of Maharashtra & Anr 2014 (11) SCC 790". It is pertinent to note that the threshold in the background of which the hon'ble Apex Court had passed the aforesaid judgment was 'at the stage of summoning the accused under section 204 Cr.P.C.'. Moreover, the case pertains to 'power of attorney holders'. In the present case, the complainant is not the power of attorney holder but the proprietor of the complainant proprietorship concern. When the complainant was cross-examined, she was asked regarding the business of the accused company, she had explained that the complainant concern was involved in the business of importing tyres and machinery and that the accused company was engaged in the business of automobiles. Now the fact CW-1 could not deposed regarding the exact amount of loan in her cross-examination would not mean that she has no personal information of the present case, firstly as the money transaction in question has been evidence through a written document MoU CW-1/E Colly. which has remained unchallenged during the trial and any witness cannot be expected to depose perfectly. Memory of witness may tend to lose grip on certain facts due to the passage of the time and in such a situation, it has to be seen whether what the witness has deposed is in tune with the flavour of the complaint. Moreover the liability of the accused company, whose whole time director is accused no. 3, arises from the MoU (CW-1/E Colly.) which has remained unchallenged during the trial. Therefore, the argument of Ld. Counsel for the accused no. 3 is liable to be rejected in this regard.CT Cases 463829/2016
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39. Ld. Counsel for the accused no. 3 has also argued that the complainant has not shown the money transaction in the ITR of the complainant concern. It is pertinent to note that the accused no. 2 has admitted the investment made by the complainant concern in the accused company in the MoU (CW- 1/E Colly.) and the same can be taken into consideration against the accused no. 3 as per the mandate of section 30 Indian Evidence Act, 1872. CW-1/E is a documentary proof and has remained undisputed during the trial. Therefore, the argument that the money transaction was now shown in the ITR of the complainant concern is not tenable.
40. Therefore, the accused no. 3 has miserably failed to prove that she had no knowledge of the offence or that they have exercised all due diligence to prevent the commission of the offence. Consequently, the accused no. 3 has failed to raise a probable doubt on the story of the complainant and has failed to rebut the presumption under section 139 NI Act.
41. Accordingly, the point of determination No. B is decided in the affirmative qua accused no. 3.
Qua Accused no. 4 Ms. Gurmeet Verma
42. Accused no. 4 has been shown to be a 'director' in the accused company, as per the accused company's master data Ex. CW- 1/C. CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.35 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:33:17 +0530
43. The accused no. 4 has taken a defence that she was not the signatory of the cheque in question. This defence has been dealt with and rejected in paragraph no. 18 and 19 of this judgment and need not be reiterated. She has further taken the defence that she was not responsible for the accused company for day to day affairs as she was neither in charge or responsible for the conduct of the accused company either on the date of issuance of cheque in question or on it dishonour. She had further taken a defence that she was not aware of the transaction that took place between the parties and that he had never visited the office of accused company nor take part in its business at any point of time.
44. It is pertinent to note that no specific averment has been made by the complainant in her evidence by way of affidavit (Ex. CW-1/2). When asked about the role of accused no. 4, CW-1 (the complainant) in her cross-examination had deposed that she did not know whether accused no. 4 had given the import orders to the complainant firm or not. Therefore, CW-1 failed to delineate the role of the accused no. 4 in the transaction that occurred between the complainant firm and the accused company. Admittedly accused no. 4 is not the signatory of the cheque nor she has signed upon the MoU (CW-1/E Colly.).
45. In the case of "S.M.S. Pharmaceuticals Ltd. vs Neeta Bhalla and another (2005) 8 SCC 89" Hon'ble Apex Court had considered the definition of the word "director" as defined in CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.36 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:33:21 +0530 Section 2(13) of the Companies Act, 1956 and observed thus:
"8. ....... There is nothing which suggests that simply by being a director in a company, one is supposed to discharge particular functions on behalf of a company. It happens that a person may be a director in a company but he may not know anything about the day-to-day functioning of the company. As a director he may be attending meetings of the Board of Directors of the company where usually they decide policy matters and guide the course of business of a company. It may be that a Board of Directors may appoint sub-committees consisting of one or two directors out of the Board of the company who may be made responsible for the day-to-day functions of the company. These are matters which form part of resolutions of the Board of Directors of a company. Nothing is oral. What emerges from this is that the role of a director in a company is a question of fact depending on the peculiar facts in each case. There is no universal rule that a director of a company is in charge of its everyday affairs. We have discussed about the position of a director in a company in order to illustrate the point that there is no magic as such in a particular word, be it director, manager or secretary. It all depends upon the respective roles assigned to the officers in a company. ....."
46. No evidence has come on record to show that accused no. 4 was in charge of and responsible for the business of the accused company at the time of issuance of cheque in question.
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2024.05.06 15:33:26 +0530 Accordingly, the accused no. 4 has been able to rebut the presumption under section 139 NI Act, which had been raised in favour of the complainant.
47. Accordingly, the point of determination No. B is decided in the affirmative qua accused no. 4.
CONCLUSION
48. In view of the aforesaid discussion, the accused company 'M/s Fucon Technologies Ltd.' is held guilty and accused no. 3 Ms. Deep Parikh is also held 'guilty'. Consequently, accused company as well as accused no. 3 are hereby convicted of the offence under section 138 read with section 141 NI Act.
49. However for the reasons stated above, accused no. 4 Ms. Gurmeet Verma is held 'not guilty' and accordingly, acquitted of the offence under section 138 read with section 141 NI Act.
50. This judgment contains 39 pages. This judgment has been pronounced by the undersigned in the open court and each page bears the signatures of the undersigned.
51. Let a copy of the judgment be uploaded on the official website of District Courts, Saket forthwith.
Announced in the open court on this Court on 06th Day of May 2024 CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.38 of 39 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:33:32 +0530 Digitally signed by RISHABH RISHABH TANWAR TANWAR Date:
2024.05.06 15:33:42 +0530 (Rishabh Tanwar) MM (NI Act)-07/South District, (Saket District Court) CT Cases 463829/2016 M/s. Shubham Agencies Vs. M/s. Fucon Technologies Page No.39 of 39