Delhi District Court
Unknown vs . Sunny Sharma on 22 August, 2022
CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 1
Vs. Sunny Sharma
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE (NI ACT) DIGITAL COURT02,
SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Criminal Complaint No: CC NI ACT/6065/2021
AUTONET MARKETING PVT. LTD. ...Complainant
Versus
SUNNY SHARMA ... Accused
1. Name & address of the complainant: Autonet Marketing Pvt. Ltd.
Through its AR Sh. Kamal Dudani
Office at Shop No.3, Guru Nanak
Market, Vikram Vihar,
New Delhi110024
2. Name & address of the accused : Sunny Sharma
S/o Late Sh. Ramesh Kumar
Sharma
R/O 311, Vrindavan Green
Society, Sahibabad, Ghaziabad,
Uttar Pradesh
3. Offence complained of : U/S 138 The Negotiable
Instruments Act,1881.
4. Plea of accused : Pleaded not guilty.
5. Final Arguments : 08.07.2022
6. Date of Institution of case : 30.07.2021
7. Date of decision of the case : 22.08.2022
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case filed by the complainant, Autonet Marketing Private Limited (hereinafter referred to as the 'complainant') against accused, Sunny Sharma, (hereinafter referred to as the 'accused'). Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2022.08.22 12:23:46 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 2 Vs. Sunny Sharma
2. Factual Matrix: The complainant's case is that the complainant company in engaged in the business of providing loan facility to its customers from the Nationalized Bank and NBFC acting as DSA for various companies and other financial institutions and this complaint is filed through Mr. Kamal Dudani who has been authorized to pursue this complaint vide authority letter dated 05.03.2021. It is stated that the accused committed fraud with the complainant company and siphoned off Rs. 17,50,000/ approximately from the complainant company as he failed to adhere to the financial discipline agreed between the parties and started defaulting in payment towards the discharge of his liability. The accused also admitted his liability by giving one hand written undertaking for payment of the same amount and in partial discharge of his liability, the accused issued the cheque bearing No.000067 dated 10.03.2021 drawn on HDFC Bank, Plot No. 83, Sector 5 Rajender Nagar, Ghaziabad, Sahibabad, U.P. (hereinafter referred to as 'cheque in question') and when the said cheque was presented by the complainant, the same was dishonoured for the reason "Funds Insufficient" vide return memo dated 22.03.2021, pursuant to which the legal demand notice dated 18.06.2021 was sent by the complainant to the accused through the speed post, calling upon the accused to make payment of the cheque amount within 15 days, which was duly served upon the accused. However, the accused did not come forward to repay his debt within the prescribed period of fifteen days. Hence, being aggrieved, the complainant filed the present complaint under section 138 of The Negotiable Instruments Act, 1881 on 30.07.2021 and prayed that the accused be summoned, tried and punished under section 138 of The Negotiable Instruments Act, 1881.
3. Summoning of accused: The court summoned the accused after hearing the arguments at the stage of presummoning vide order dated 27.01.2022 and the accused entered appearance in the present case on 30.03.2022 and has been granted bail on the same day.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.08.22
12:24:00 +0530
CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 3
Vs. Sunny Sharma
4. Notice: The court has framed notice of accusation under Section 251 Cr.P.C. against the accused on 07.04.2022. The substance of accusation was read over and explained to the accused and after being satisfied that the accused comprehended the same, the court recorded his plea.
5. Plea of the accused: The accused pleaded not guilty and claimed trial. He admitted his signatures on the cheque in question, however, denied filling particulars of the same except amount. He admitted that the address mentioned in the legal demand notice is his correct address. However, he denied receiving of any legal demand notice on the said address. The accused took defence that the cheque in question was given as security for his business transaction with the complainant company and that against this cheque, he had transferred Rs. 23,000/ to the complainant company and complainant company told him that they will return his cheque after receiving complete payment of the cheque amount. He also stated that the complainant company had also taken 45 security cheques from him and claimed that as of now, he has liability for payment of approximately Rs. 6 lakh towards the complainant company. He stated that despite payment of Rs. 23,000/ against the cheque in question, the complainant company has presented cheque for entire amount and has misused the cheque. On the same date, the statement of accused was recorded U/S 294 Cr. P.C wherein he admitted correctness of dishonor memo.
6. Evidence on behalf of complainant: To prove his case prima facie, Sh. Kamal Dudani AR of the complainant company has examined himself as CW1 and has filed his evidence under Section 200 of the Cr.P.C. by way of an affidavit which is Ex. CW1/A bearing his signatures at point A & B wherein he has reiterated the averments made in the complaint. To support his case, the complainant has also placed on record, EX. CW1/1 which is the Authority letter dated 05.03.2021 executed in favour of CW1, EX. CW1/2 (OSR) which is the original hand written undertaking given by accused in favour of complainant, EX. CW1/3 which is original Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:24:07 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 4 Vs. Sunny Sharma cheque dated 10.03.2021, EX. CW1/4 which is the original return memo dated 22.03.2021, EX.CW1/5 which is of the legal demand notice dated 18.06.2021, along with it's postal receipts EX. CW1/6 and its tracking report EX. CW1/7 and EX. CW1/8 the certificate U/s 65 B of Indian Evidence Act. Thereafter the complainant was subjected to cross examination.
7. During his cross examination, this witness stated that he is direct sales associates from various banks and he is Director of the complainant company. He admitted that he has nowhere mentioned this fact in his complaint that he is the director of the complainant company but stated that he has placed on record authority letter executed in his favour authorizing him to depose in this complaint. He denied the suggestion that he is not authorized to depose in favour of the complainant company. He stated that whenever, they sanction loan qua the old/used vehicle, the bank issue payment in favour of DSA because DSA/ Complainant company is directly responsible for hypothecation of the vehicles. He stated that accused is working with him since the year 20162017 and accused used to deal in old vehicles and he is still doing the same work. He stated that their modus operandi is that after receiving payment from bank for used vehicles for those customers who are being sourced by accused for loan of used cars, complainant used to give the amount to the accused and the accused used to deduct RC Charges and then hand over the same to the customer against payment/ possession of the vehicle. He stated that from December, 2019 till March,2020, the accused had outstanding of Rs.17,50,000/ towards the complainant for seven customers as mentioned in his hand written undertaking Ex. CW1/2. The payment was made to accused from their accountant through account transfer by on line mode. He stated that after, March 2020, the complainant company started receiving complaint from the bank that they have not received the amount and thereafter, he spoke to the customer as mentioned in Ex. CW1/2 and received information that accused has given them cheques and the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:24:13 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 5 Vs. Sunny Sharma cheques were dishonored. Thereafter, he called some of the customers to his office in presence of accused and again gave the payment to them as the complainant was responsible for payment being DSA and thereafter, accused gave an undertaking Ex. CW1/2 in the presence of his sister Ms. Poonam Lakhanpal and Wife Mrs. Reena Sharma to the complainant. He stated that then accused committed to give an amount of Rs. 5 Lakhs to the complainant in few days and he actually gave Rs. 4,75,000/ to him and he did not make payment of remaining amount. He admitted that he had not placed on record any proof /account statement to show transfer of Rs. 17,50,000/ approximately in favour of accused by account transfer and stated, he can produce the record of the same. He admitted that they have not placed on record any document to show transfer to customer as mentioned in Ex. CW1/2, however, he stated that he can produce the same. He stated that he cannot tell the name of accomplices as mentioned in para No. 4 of the complaint and stated that one of the accomplices of the accused is one Akhtari Bandhu Khan, in whose favour payment made is mentioned at Sr. No.4 as IDFC in Ex. CW1/2. He admitted that there was no agreed payment schedule between him and the accused and stated that Ex. CW1/2 was executed by accused in his office. He stated that he cannot tell exact date when this undertaking was executed however, it was executed somewhere in March, 2020 and after that, the complainant had also received one payment of Rs. 4,75,000/ from the accused through some other person's account or his own account and after this undertaking, the accused gave him the cheque in question. He denied that he has received undertaking EX. CW1/2 forcefully from the accused in the Police station after lodging one complaint against him. He admitted that he has filed this complaint on the basis of EX. CW1/2 and as per Ex. CW1/2 the accused was supposed to make payment by 31.12.2021. He denied the suggestion that the cheque in question along with 4 other cheques were given to him by accused as security. He stated that the same were given to him by accused towards payment. He denied the suggestion that Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:24:19 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 6 Vs. Sunny Sharma he has filled the name of payee and date in the cheque in question himself. He also denied the suggestion that the accused has made payment of Rs. 23,000/ towards the cheque in question to him. He also denied the suggestion that in March 2021, he pressurized the accused to make payment before the scheduled time. He also denied the suggestion that when the accused refused to do so, he misused his security cheques.
8. Examination of the accused under section 313 Cr.P.C: The accused was examined under section 313 Cr.P.C. on 25.05.2022, wherein the accused has admitted that the complainant company is acting as DSA for various institutions and that it is engaged in the business of providing loan facility to it's customers from the Nationalized Bank and NBFC and other financial institutions and the complainant is Director and Authorized DSA of the complainant company. He denied that he committed fraud with the complainant and siphoned off Rs. 17,50,000/ approximately from the complainant company and gave one undertaking EX. CW1/2 for payment of the same amount and stated that due to pandemic, he could not make payment on scheduled time and thus, he executed undertaking EX. CW1/2 on 20.08.2020 in Police Station as he was pressurized by the complainant to do so. He stated that he gave the cheque in question as security towards his commitment for payment of Rs. 5 Lakh and in lieu of the same, he has already transferred Rs. 4,75,000/ on 20.09.2020 to the complainant and thus, the cheque in question has been misused. He admitted the cheque was dishonoured for the reason "funds insufficient" vide return memo dated 22.03.2021 Ex. CW1/4. He admitted that the legal demand notice was sent at his correct address, however, he denied having received the same and stated that it might have been delivered to some guard or employee. He admitted his signatures on the cheque in question and filling the amount in the same, however, denied having filled the name of the payee and date. He stated that the complainant has filed this case to pressurize him and that the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:24:25 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 7 Vs. Sunny Sharma complainant has not made payment of Rs. 17,50,000/ as mentioned in Ex. CW1/2 and stated that the complainant had made payment of Rs. 8,65,000/ to customers and he had paid this entire amount in cash and by way of account transfer. He stated that he knows the complainant as he was doing business transactions with the complainant since the year 20152016. He stated that the complainant has filed this case as he is pressurizing him and he has filed several complaints against him in different jurisdictions. He stated that he intends to lead DE.
9. In his defence, the Accused has examined himself as DW1 on 08.06.2022 and stated that he was in business with complainant company since the year 20162017 and his yearly business with the complainant company was approximately Rs. 2.5 Crores. He stated that in the year 2020, due to COVID 19 Break out, he had suffered business losses and some of his payment were stuck in market along with the payments of complainant company. He further deposed that in August, 2020, he received a call from Police Station Lajpat Nagar and in the police station, he was pressurized to clear the payment, thus, he executed one undertaking with the complainant and it was agreed that he will make payment of Rs. 56 lakhs in next 45 months and remaining payment, he was supposed to clear by 31.12.2021 and that he had also given blank signed security cheques pursuant to this undertaking to one Sh. Kamal, who is owner of complainant company. He stated that on 11.09.2020, he had transferred Rs. 4,75,000/ in the account of complainant company. He stated that he had given total Rs. 1,08,000/ to one customer Sh.Devender Kumar, directly on 25.02.2021. He further stated that in March, 2021 he again received a call from PS Lajpat Nagar, and informed police officials that he has been given some time to make the payment, however, the complainant did not agree with the same and presented and misused his security cheques including the cheque in question. Thereafter, he was subjected to cross examination.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.08.22
12:24:38 +0530
CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 8
Vs. Sunny Sharma
10. During his cross examination, this witness admitted his hand writing and signatures at point A on undertaking EX. CW1/2 and he also identified the signatures of his sister Smt. Poonam at point B and his wife's signatures at point C. He admitted that as per this undertaking, his total liability towards the complainant and customers was Rs. 17,50,000/ on the day of execution of this document. He stated that he had made payment directly to the customers, as such he has no existing liability towards the complainant and stated that he does not have the details of all the payment made to customers, whose names are mentioned in the undertaking Ex. CW1/2. He stated that he has directly made complete payment to customer namely Sh. Kanwar Pal and that he is also paying installments to IDFC for loan taken by customer namely Sh. A K Khan for vehicle loan of one Creta Car, which could not be purchased by Sh. A K Khan due to shortage of funds pursuant to Covid. He admitted that the IDFC Bank disbursed the payment of Rs. 7,0,2,000/ into the account of complainant and the complainant disbursed the said amount in his account and he made the payment to the Car Dealer namely Sh. Anu Kumar but stated that Sh. A K Khan could not purchase the vehicle bearing Registration No. UP 14 CR 3737 Hyundai Creta and car dealer sold that vehicle to someone else. He admitted that he did not return the payment to the bank when the vehicle could not be purchased due to mismanagement of funds pursuant to Covid. He admitted that Sh. A K Khan has also paid 34 installments of the said vehicle to IDFC bank. He denied the suggestion that Sh. A K Khan has also made some installment in June and July, 2021 and that one police complaint was also filed against him for misappropriation of the amount of bank. He admitted that he has issued the cheque in discharge of his liability of Rs. 5 lakh towards the complainant company. He stated that it was security cheque obtained in the police station after pressurizing him. He admitted that he has not filed any police complaint regarding the same. He denied the Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:24:43 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 9 Vs. Sunny Sharma suggestion that he has issued the cheques towards his legal liability and that despite receiving the legal notice he has not made the payment.
11. Final arguments have been heard on behalf of the both the parties. Written arguments and authorities filed are also perused.
12. Ld. Counsel for the complainant argued that the complainant has proved it's case as it is proved that the accused was having business transactions with the complainant. The complainant has also proved that the accused had issued the cheques in question to discharge his legal liability, which the accused has also admitted by execution of undertaking EX.CW1/2. It has also been proved that the cheque was dishonoured. Service of legal notice is also proved as per the tracking report filed along with certificate U/S 65 B of Indian Evidence Act. The accused was liable to make the payment, however, he did not make the payment within stipulated time despite service of legal notice. It is also proved that all the steps were taken by the complainant within the time provided by the law. The accused has failed to rebut the presumption provided in the law. Written arguments and authorities filed on behalf of accused, perused. Hence, the accused may be convicted for the offence punishable under Section 138, NI Act.
13. Per contra, Ld. Counsel for the accused argued that the complaint itself is not maintainable as Sh.Kamal Dudani, is not authorized representative of complainant company as he has not filed any board of resolution authorizing him. He further argued that though Mr.Kamal Dudani, claimed himself to be the director of complainant company but he has not filed any documents in support of his submissions. He has further argued that the complaint is also not maintainable as the legal demand notice has not been delivered upon the accused. He also argued that the cheque in question which was issued pursuant to execution of EX. CW1/2, cannot be said to have been issued in discharge of any existing legally enforceable debt or liability as this document was executed by pressurizing the accused. He also argued Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:24:49 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 10 Vs. Sunny Sharma that as per the undertaking EX. CW1/2, the payment of approximately Rs. 5 lakh was made to the complainant in the month when this document was executed and for remaining amount, accused got time for making payment till 31.12.2021 and since there is no agreed payment schedule, the cheque in question which was given as security cannot be said to have been issued in discharge of any existing liability.
14. In order to ascertain whether the accused has committed the offence under Section 138 of the NI Act, it is deemed fit to examine separately as to whether all the indispensable ingredients constituting the offence have been proved by the complainant. The offence under Section 138 of the NI Act has the following ingredients:
a) Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
b) Dishonor of cheque in question which must have been drawn on an account drawn on an account maintained by the accused;
c) Service of demand notice seeking payment of cheque amount within fifteen days from the date of service;
d) Nonpayment of cheque amount within fifteen days from the date of service of notice; and
e) Filing of complaint within one month from the date on which cause of action arises.
15. In the present complaint, the accused has primarily taken the defence that this complaint is not maintainable as Mr. Kamal Dudani had no authority for filing this complaint, however, I find no merits in this defence of the accused as the accused himself has admitted during his statement U/S 313 Cr. PC. that Mr. Kamal Dudani, is director of the complainant company and during his examination inchief he has stated that he had executed undertaking EX. CW1/2 in favour of Mr.Kamal Dudani who is owner of the complainant company. To dispute his authority, though Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date:
2022.08.22 12:24:54 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 11 Vs. Sunny Sharma the accused had put question to CW1 during his cross examination that he has not filed any document to show that he is the director of the complainant company. However, nonfiling of such document becomes irrelevant in view of the admission of the accused that the complainant Mr. Kamal Dudani is owner and director of complainant company and he had executed settlement undertaking EX.CW1/2 with Mr.Kamal Dudani, thus, the complainant Mr.Kamal Dudani, has satisfied the criteria prescribed by Section 142 of NI Act to establish his authority for filing this complaint, as per which the complaint has to be made in writing by manager/authorized person on behalf of the payee / holder in due course i.e. the complainant company. On this point, I draw reference from the judgment of Hon'ble Supreme court in Shankar Finance Investments Vs. State of Andhrapradesh and Ors. (2008) 24 CLABL Supp 62 (SC), wherein the Hon'ble Supreme Court observed that:
"'...the requirement of Section 142 of the NI Act are that the complaint should be in writing and the complainant should be made by the payee and holder in due course... once the complaint is in the name of the payee and is in writing, the requirement of Section 142 are fulfilled..."
On this point reference can also be drawn from Eita India Pvt. Ltd. vs. NCT of Delhi (2003) 114 Comp Cas.32(Del.), wherein it was held that .....
"... the conspectus of judicial opinion establishes a principle that complaint in respect of the offence punishable U/s 138 of the Act need not be personally filed by the payer or holder in due course. It can be filed by a natural person to act as defacto complainant..."
Further, as per Section 142 of the NI Act, a manager or any other person authorized by the complaint can represent it during the course of legal proceedings before the court and file a complaint. Reference drawn Salar Solvent Extractions Ltd. Vs. South India Viscos Ltd. (1994) 3 Crimes 295 (Madras). Since, in the present case the complaint has been filed by the owner of complainant company and Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:00 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 12 Vs. Sunny Sharma this fact has been admitted by the accused himself during this cross examination, thus, it cannot be said that Mr. Kamal Dudani is not authorized to pursue this complaint on behalf of complainant company.
16. Now coming to the essential ingredients of the offence, in the present complaint, presentation of the impugned cheque for encashment and dishonor of the cheque for the reason "Funds Insufficient" is not disputed as it is a matter of record proved by the return memo dated 22.03.2020 which is Ex. CW1/4. Therefore, it is a matter of record and has been proved that the impugned cheque was presented within it's validity period and dishonoured by the banker of the accused. It is also not disputed that the impugned cheque was issued by the accused in favor of the complainant company and it was handed over by the accused to Mr. Kamal Dudani. It is also admitted that the cheque in question was drawn on his bank account as he has not denied his signatures on the cheque in question. Though, the accused has denied service of legal demand notice dated 18.06.2021 Ex. CW1/5, but throughout the trial, the accused has admitted that the legal demand notice was sent at his correct address and as per the tracking report of postal receipts filed along with certificate U/S 65 of Indian Evidence Act, the legal demand notice was served upon the accused on 21.06.2021. The accused has not led any evidence to prove the contrary, thus, service of legal demand notice is deemed to be presumed as per Section 27 of the General Clauses Act. On this point, it is relevant to refer to the decision of Hon'ble Supreme Court in Raja Kumari v. Subbarama Naidu, 2004 (3) KLT 799 (SC). In this case, while referring to Section 27 of the General Clauses Act, 1897, the Supreme Court held that:
"...No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:06 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 13 Vs. Sunny Sharma the sendee unless he proves that it was not really served and that he was not responsible for such nonservice. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice..."
So, there is a clear and cogent declaration in Raja Kumari's case that notice can be deemed to be served if the sendee does not prove that notice was actually not served on him and that he was not responsible for the nonservice. In the case in hand, the complainant sent legal notice at the correct address of the accused and accused has also admitted that the same address is his correct address. Once it is shown by the complainant that he had posted the legal notice at the correct address of the accused, the requirement of law stands satisfied. No further proof of service of legal notice is required. The duty of the complainant was to give a legal notice. He has proved that he had given a legal notice to the accused under Section 138 N. I. Act. Hence, he has discharged the burden. It has been proved that complainant had issued a legal notice under Section 138 N.I. Act within limitation period after dishonouring of the cheque and the same is duly delivered as per the tracking report filed on record and the accused has not led any evidence to prove otherwise, thus, service of legal demand notice is established upon the accused but no payment was made despite the service as the accused has claimed that he has no liability towards the complainant. Finally, the complaint has been filed within limitation period. Therefore, essential ingredients mentioned from b) to e) in the above paragraph have been duly satisfied.
17. The only question remaining for determination is whether a legally valid and enforceable debt existed qua the complainant and the cheque in question was issued in discharge of said liability / debt. It is pertinent to note that Section 139 of the NI Act provides a statutory presumption that the cheque was handed over in respect of a debt or other liability. Under Section 118 of the NI Act, every negotiable Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:13 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 14 Vs. Sunny Sharma instrument is presumed to have been drawn and accepted for consideration. In the case of K. N. Beena v Muniyappan, AIR 2001 SC 2895, it was observed as follows:
"...Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal v Bratindranath Banerjee has also taken an identical view..."
18. The Hon'ble Supreme Court, in the case of Hiten P. Dalal v Bratindranath Banerjee (AIR 2001 SC 3897), observed as follows:
"...Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid)..."
19. Also, in the case of K. Bhaskaran v Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"...As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability..."
20. Further, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". In Rangappa v Srimohan (2010) 11 SCC 441, the Hon'ble Supreme Court has observed:
"...Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:18 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 15 Vs. Sunny Sharma probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own..."
21. Thus, as laid down in catena of decisions, it is an established law that onus lies upon the accused to rebut the presumption and to establish that the cheque in question was not given in respect of any debt or liability, with the standard of proof being preponderance of probabilities. Therefore, it becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dislodge the presumptions envisaged by Sections 118 and 139 of the NI Act.
Appreciation of evidence
22. As discussed above, in this case, presentation of cheque, its dishonor and receipt of legal notice is established. The complainant's case is that the accused has siphoned off approximately Rs. 17.5 Lakhs of the complainant company as he did not hand over the said amount to the customers and he admitted his liability by executing one hand written undertaking EX. CW1/2, which was signed in presence of sister and wife of the accused. CW1 has stated that this undertaking was executed in his office and pursuant to this undertaking, the accused has transferred Rs. 4,75,000/ in favour of the complainant company in the same month of execution of this undertaking and he also issued the cheque in question. The accused has also admitted execution of this undertaking EX.CW1/2 in his own handwriting. He also admitted signatures of his sister and his wife on this undertaking EX.CW1/2. Since, the signatures and hand writing on this undertaking EX.CW1/2 has been admitted by the accused, the complainant is not required to lead further evidence to prove this undertaking as per Section 67 of the Indian Evidence Act. Though the accused has alleged that he has Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:24 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 16 Vs. Sunny Sharma executed this undertaking in the Police station as he was pressurized by the complainant to do so and thus it cannot be considered to determine his liability, however, contrary to the claim of accused, the complainant has claimed that this undertaking was executed in his office, thus, the onus to prove this fact that this undertaking was executed under duress in the police station was upon the accused, however, the accused has not lead any evidence or examined any witness to support this fact. The accused could have at least examined his own family member i.e. his sister and wife in whose presence this document has been executed to support the fact that this document was signed by him under pressure in the Police Station, however, the accused did not examine them for the reasons best reason known to him. Further, admittedly the accused has also not filed any complaint with any authority regarding this fact which also falsifies his version that he executed the document EX.CW1/2 under pressure. What makes this fact all the more improbable is that the accused himself has admitted making payment of Rs. 4,75,000/ to the complainant pursuant to execution of this undertaking. If the accused was pressurized by the complainant to execute this document, the accused could have not made such payment to the complainant. Thus, in absence of any evidence on record to prove contrary, the execution of EX. CW1/2 stands proved in accordance with law.
23. As per the undertaking EX.CW1/2, the accused had liability for making payment of Rs. 17.5 lakhs to the complainant. At different stages of trial, the accused has disputed the amount of liability. During his statement recorded U/S 251 Cr.P.C., he has admitted having liability of Rs. 6 lakhs towards the complainant, however, he denied that he gave the cheque in question towards the payment of that amount and claimed that the cheque in question was issued as security for his business transaction with the complainant company and claimed that against the cheque in question, he has already transferred Rs. 23,000/ to the complainant company thus, his cheque has Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:29 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 17 Vs. Sunny Sharma been misused by the complainant company. Contrary to this, while answering Question No.3 to his statement U/S 313 Cr. P.C, the accused stated that he has given the cheque in question as security for payment of Rs. 5 lakh to the complainant as per the undertaking EX.CW1/2 and in lieu of the same, he has already transferred Rs. 4,75,000/ to the complainant on 20.09.2020, as such, his cheque has been misused. Further, contrary to this, while answering question 8 of his statement U/S 313 Cr. P.C, he stated that the complainant did not make payment of Rs. 17.5 Lakhs as mentioned in his undertaking EX.CW1/2 and the complainant has made payment of Rs. 8.5 Lakhs to it's customers and he has already paid this amount in cash and by way of account transfer, thus, he has no liability. Further, again contrary to this, during his cross examination, accused stated that on the day of execution of undertaking EX.CW1/2 his liability towards customers was Rs. 17.5 lakh, however, he has made payment directly to the customers, as such, he has no liability towards the complainant. Though, contrary to his defence disclosed in his statement U/S 251 Cr. P.C, the accused has claimed to have made payment directly to customers after execution of undertaking EX. CW1/2, however, admittedly there is no document to show that the accused ever made any payment in favour of the customers after execution of undertaking Ex. CW1/2. Thus, on bare submissions of the accused which is uncorroborated, this fact cannot be relied upon. Further this fact also stands controverted in view of the admission of the accused that he had made payment of Rs. 4,75,000/ in favour of the complainant after execution of undertaking EX. CW1/2, as the accused would have never made this payment in favor of the complainant company, if he would have directly transferred the amount mentioned in undertaking Ex. CW1/2 in favour of the customers. Thus, the liability of the accused has been accessed on record.
24. Now the only question left to be determined is whether the cheque in Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:35 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 18 Vs. Sunny Sharma question was issued in discharge of any existing liability or not. With respect to this fact, there are no clear averments in the complaint. With respect to the liability of the accused, in the complaint, it is only mentioned that the accused has siphoned off Rs. 17.5 Lakhs of the complainant and that accused has executed an undertaking EX. CW1/2 admitting his liability and in part discharge of his liability, he had issued the cheque in question. It is undisputed that the cheque in question was given by the accused in favour of the complainant after execution of undertaking EX. CW1/2. The version of the accused is that the cheque was given as security for payment of Rs 5 Lakhs which was to be paid in the same month of execution of this undertaking and he claimed that since, he had already made payment of Rs. 4,75,000/ to the complainant after execution of this undertaking in the same month, the cheque in question which was given as security / assurance for payment of this amount cannot be said to have been issued in discharge of any existing liability as the amount of Rs. 4,75,000/was already transferred and qua remaining, amount the complainant had granted him time for making payment till 31.12.2021. Since, this cheque don't find any mention in the undertaking EX. CW1/2, to determine this fact whether it was issued in discharge of any existing liability or not, this court has to rely upon testimony of both accused and complainant. The complainant during his cross examination stated that after execution of undertaking EX. CW1/2, the accused committed to give him Rs. 5 lakhs in few days and accused gave him Rs. 4,75,000/ but did not make payment of remaining amount and after execution of this undertaking only, the accused gave him the cheque in question. CW1 also admitted that there was no agreed payment schedule between the parties for payment of remaining amount as per EX.CW1/2 and as per this undertaking, the accused was supposed to make payment of remaining amount by 31.12.2021. Since, the complainant has stated that the cheque in question was given to him pursuant to execution of undertaking EX.CW1/2, after which payment of Rs.4,75,000/ was also Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:40 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 19 Vs. Sunny Sharma received by the complainant against the agreed amount of Rs.5 lakhs, it supports the version of the accused that the cheque in question was only given as security/ assurance for payment of Rs. 5 lakh, which was to be paid within one month of the execution of the undertaking. Since, as per the contents of undertaking EX. CW1/2, the accused was supposed to make payment of Rs. 56 Lac to the accused within one month of it's exacution and both the parties have deposed that the agreed amount was 5 Lac, out of which Rs. 4, 75,000 was paid within one month, this Court had put specific query to Ld. Counsel for complainant, if this cheque was issued for payment of remaining amount out of this amount of Rs. 56 Lac which was to be paid within one month of execution of this undertaking, to which he answered in negative and Ld. Counsel for complainant argued that it was issued for payment of remaining amount of Rs. 12.5 Lacs. However, the complainant has himself admitted there was no agreed payment schedule for payment of remaining amount and the same was to be paid by the accused by 31.12.2021 and the complainant has nowhere stated that the cheque in question has been given by the accused for partial payment of remaining amount of Rs. 12.5 lakhs, the cheque in question cannot be said to have issued in discharge of any existing liability, as even as per the admission of CW1 and contents of Ex. CW1/2, which forms the very basis of filing of this complaint, the remaining payment was to be made by 31.12.2021, thus, the cheque in question which has been drawn on 10.03.2021 and has been dishonoured on 22.03.2021 cannot be said to have been issued in discharge of any existing liability when admittedly there was no agreed payment schedule between the parties and specifically when it is nowhere stated by the complainant as to when and in discharge of which liability, the cheque in question was issued. It also supports the version of the accused that the complainant has himself filled the date in the cheque in question. Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.08.22 12:25:45 +0530 CC NI ACT No.6065 of 2021 Autonet Marketing Pvt. Ltd. Page No. 20 Vs. Sunny Sharma
25. In view of the discussion made above and having considered the entire evidence, I have no hesitation to hold that the complainant has failed to establish the very first ingredient of offence under Section 138 of the Act i.e. issuance of the cheque in question in discharge of existing liability, thus, accused Sunny Sharma stands acquitted for the offence U/S 138 NI Act. Let copy of this judgment be uploaded on CIS and Layers forthwith.
Digitally signed by AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.08.22
12:25:51 +0530
Announced in the open court on (Aishwarya Sharma)
this day i.e 22.08.2022 MM (N.I. ACT)Digital Court02/SED,
Saket Courts, New Delhi