Delhi District Court
J. R. Mulchandani vs M/S S. Playworld Electronics Pvt. Ltd on 3 March, 2011
ID No. 02403R0264602010
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE04
SOUTH EAST: SAKET COURTS: DELHI
Criminal Appeal No. 132/10
ID No. 02403R0264602010
J. R. Mulchandani,
s/o late Sh. R. L. Mulchandani
r/o 21, Carmichael Road
Mumbai ............................Appellant
Versus
M/s S. Playworld electronics Pvt. Ltd.
F29/1, Okhla Industrial Area,
PhaseII, New Delhi ..........................Respondent
Instituted on : 06.12.2010
Argued on : 23.02.2011
Decided on : 03.03.2011
ORDER
The appellant has preferred this appeal feeling aggrieved by the judgment dated 05.06.2010 passed by Learned Metropolitan Magistrate (MM), New Delhi in Criminal Case no. 5869/03 whereby appellant has been convicted for an offence punishable u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred as NI Act).
2. Brief facts of the case are that complainant (respondent herein) filed a complaint on 17.05.1995 u/s 138 NI Act, against M/s Bush India Ltd. (accused no. 1) and against appellant (accused no. 2), alleging that the complainant was engaged in the business of sale and supply of variety of electronic goods such as AM/PM four band stereo two in one and appellant had received various goods from the complainant from time to time for which they issued nine cheques (Ex PW3/3 to Ex PW3/10) drawn on Hong Kong and Shenghai Banking Corporation infavour of the complainant.
J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 1/27 ID No. 02403R0264602010
3. Detail of cheques is as under:
(i) Cheque No. 002391 dated 28.02.1995 for Rs. 1,06,986.68;
(ii) Cheque No. 002392 dated 01.03.1995 for Rs. 1,31,000.00;
(iii) Cheque No. 002393 dated 01.03.1995 for Rs. 1,31,061.80;
(iv) Cheque No. 002394 dated 28.02.1995 for Rs. 1,00,000.00;
(v) Cheque No. 002395 dated 28.02.1995 for Rs. 1,00,000.00;
(vi) Cheque No. 002396 dated 02.03.1995 for Rs. 1,00,000.00;
(vii) Cheque No. 002397 dated 03.03.1995 for Rs. 1,50,000.00;
(viii) Cheque No. 002398 dated 03.03.1995 for Rs. 1,49,874.20;
(ix) Cheque No. 002108 dated 27.02.1995 for Rs. 1,68,051.78;
4. On presentation, these cheques were dishonoured by the bank with the remarks "Insufficient Funds" and "Not arranged for", vide banker's cheque returning memo dated 3.3.95. It is stated that from the cheque returning memo, complainant learnt that in the meanwhile, accused had changed the name of the company from M/s Bush India Ltd. to M/s Zadona Electronics Limited. It is stated that complainant sent a notice dated 03.04.1995 to the accused by registered AD/UPC and also through speed post informing accused about dishonour of the cheques It is stated that despite knowledge, complainant neither replied to the notice nor cleared the outstanding amount. Hence, this complaint.
5. Ld. Trial Court summoned the accused vide order dated 28.06.1996. Notice u/s 251 Cr. P. C was served upon the accused for the offence punishable u/s 138 NI Act on 16.5.2003. Accused pleaded not guilty and claimed trial. To prove its case, Complainant examined Sh. Darshan Singh Asstt. Manager, Indian Overseas Bank, Defence Colony Branch, New Delhi (PW 1); Sh. R. S. Chaouhan, Public Relation Inspector, Hauz Khas Post Office, New Delhi (PW2); Sh. S. K. Sareen, Manger of the complainant company as (PW3); Sh. Suhash Bendre, Asstt Vice President, Operation HSBC Bank, Barakhamba Road, New Delhi (PW4). On conclusion of evidence adduced by the complainant, statement of accused u/s 313 Cr. P. C. was recorded. Appellant produced Sh.Kapil Kapoor, Asstt. Manager, HSBC Bank, Barakhamba Road, Cannaught Place, New Delhi (DW1) and appellant examined himself as DW2.
J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 2/27 ID No. 02403R0264602010
6. At the outset, it is to be noted that the complaint was filed against (M/s Bush India Ltd., also known as M/s Zadona Electronics Limited as accused no. 1) as well as against (Sh. J. R. Mulchandani, Managing Director of M/s Bush India Limited, as accused no. 2) and the cheques in question were signed by two persons i.e. Sh. R. U. Kateja, Chief Accountant and by appellant on behalf of (M/s Bush India Ltd. /accused no. 1)
7. The case of the appellant is that prior to November 1993, the name of the company was changed from M/s Bush India Ltd. to M/s Zadona Electronics Limited and the registered office of the company was shifted from the previous address 4th floor, Zenith building, racecourse road, Mahalaxmi, Bombay to F1/C29, Thane Industrial Area, thane - 4000604. It is stated that M/s Bush India Ltd. was the sole customer of the respondent (complainant) company. All the cheques in question are dated between 27.2.95 and 3.3.1995 and deposited on a single date. All these nine cheques were signed also by Sh. R. U. Kateja who was not authorized signatory, in March 1995. He had already resigned from the accused company on 30.11.93. He was not an authorized signatory over a year prior presentation of the cheque. The cheques in question were lying undated with the complainant company. In Civil suit no. 1466/94 ICICI Vs Zadona Electronics Ltd., court receiver was appointed by Hon'ble High court of Mumbai, which had taken over all the assets of the accused company. It is also the case of the appellant/accused that the complainant's company was informed regarding change of name and address of M/s Bush India Ltd. Complainant's company and complainant knew very well that court receiver was appointed with respect to M/s Bush India Ltd. about one year prior to the presentation of the cheque despite that they deposited all the cheques on one single day. Complainant's company knew that there were no dues and all the dues regarding which cheques in question are alleged to have been issued pertained to the invoice of May and June 1991 i.e. around four prior to the earlier to the presentation of the cheque. It is stated that appellant company did not avail four year credit . No statutory notice was received by the appellant J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 3/27 ID No. 02403R0264602010 asking for payment of the amount and the notice were sent on the incorrect and old address of M/s Bush India Ltd. After the appointment of court receiver by Hon'ble High Court of Mumbai, appellant was not incharge and responsible for the day to day business of the company and therefore, bank account of the appellant's company could not be operated by appellant . It is further the case of the appellant that the Award (Ex. PW 3/25) given by the arbitrator was an Ex.Party Award against M/s Bush India ltd. and appellant was not a party thereto and this fact that receiver was appointed had been intimated to the arbitrator. Complainant had made a statement before the arbitrator as mentioned in the Award (Ex. PW 3/25) that they had received money towards invoices 20 and 32.
8. Sh. Ghanshyam Sharma Ld. Counsel for the appellant submits that Sh. S. K. Sareen (PW3) was not duly authorized by the complainant company to file the complaint and to depose in the court. Resolution Ex.PW3/1 did not entitle the complainant to institute the Criminal proceedings. Ld. Counsel submits that Ld. Trial court gravely erred in placing reliance on the Arbitrator Award (Ex. PW3/25). He submitted that it is well settled law that the civil cases can be proved by the admission of fact and criteria for proving the case under civil law is different and in criminal cases, prosecution must prove the case against the accused beyond reasonable doubt. Ld. Counsel for appellant submitted that the Ld. Trial court failed to appreciate that on 26.11.1993, the name of the accused company changed from M/s. Bush India Ltd. to M/s. Zadona Electronics Ltd. and therefore, the cheques if any, would have been issued from the account of M/s Zadona Electronics Ltd. not by M/s. Bush India Ltd. This shows that the cheques in question were already lying with the respondent prior to 26.11.1993 and subsequently were misused by them. It is further submitted that the respondent company was having 100% business with the accused company, which was the sole customer of the respondent company and therefore it is highly unbelievable that the respondent company would not come to know about the change of the name and address of the accused J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 4/27 ID No. 02403R0264602010 company. Ld. Counsel submits that apparently cheques in question were lying with them since prior to the year 1993, when Sh. R. U. Kateja was the authorised signatories of the cheques. He resigned from the company on 30.11.1993. Ld. Counsel submits that HSBC Bank issued a letter confirming the change of name of the company from M/s. Bush India Ltd. to M/s. Zadona Electronics Ltd. vide its letter dated 18.02.1994. According, to the letter, the bank had recorded a change in the Board Resolution dated 26.03.1994 superseding earlier resolutions and appointed four persons as authorized signatories namely, J. R. Mulchandani, B. L. Mulchandani, Vijay Mehta and S. C. Gupta. The name of Sh. R. U. Kateja was deleted from the list of authorized signatories in June, 1994 itself. It is submitted that it is very clear that Sh. R. U. Kateja was not the authorized signatory of the cheques in question in the year 1995, when they were presented with the bank for encashment, which proves that the cheques in question were not issued on the dates written there on.
9. Next, Ld. Counsel for the appellant argued that the demand notice was not served upon the appellant. Even according to the statement of Sh. S. K. Sareen (PW3), no notice was served upon the appellant. It is submitted that since the accused company was the only customer of the respondent, therefore, the respondent company knew about the change of the name and address of the offence of the accused company. Sh. S. K. Sareen (PW3) has intentionally and deliberately suppressed material facts from the ld. Trial Court. The appellant duly proved the certified copy (Ex.PW3/D1) issued from the office of ROC regarding the change of the address from 4th Floor, Zenith Building, Racecourse Road, Mahalaxmi, Bombay 400034 to F1/C29, Thane Industrial Area, Thane w.e.f. February 1994. He submitted that Ld. Trial court did not appreciate the evidence on record. PW3 was confronted with the document Ex. PW3/D1 whereupon, he stated that the same was never brought to the knowledge of the complainant company. He stated that he did not know whether legal notice was served upon the accused or not despite this, Ld. Trial court held that the notice is deemed to have been served upon the accused when the notice sent through J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 5/27 ID No. 02403R0264602010 Regd. Post was received back with the endorsement 'left'. Even this endorsement clearly established that at the time when notice was sent at the address mentioned in the notice, the office of the company did not exist there and had been shifted. Ld. Counsel submit that if respondent would have sent the demand notice at new address, it would have been received by the Court receiver appointed by Bombay High court and only on this sole ground the case of the respondent company was liable to fail. It is further submitted that even according to the respondent's case, it was a time barred debt. There is no specific averment in the complaint regarding the liability. It is only submitted that complainant has been supplying the goods and had supplied the electronics items to the accused company. No invoice, bill or other documents was proved before the court to show the liability against the accused company. According to Sh. S. K. Sareen (PW3), the cheques in question were issued after four years of the liability which is a time barred debt, therefore, the offence of 138 NI Act, will not be attracted.
10. Ld. Counsel further submits that Trial court erred in holding that the accused had not taken any steps to get the Award of the Arbitrator set aside or to challenge. Appellant was not the party in the Arbitration proceedings before the Arbitrator. Admittedly, the accused company was under the court receiver on the date of presentation of cheque and even the court receiver was also sought to be made a party. Ld. Counsel submitted that the appellant had received a letter dated 03.12.2001 from the Arbitrator. In response to the letter, the appellant sent a letter dated 08.01.2002, stating that the accused company was under the court receiver and the assets of the company and the documents till date were in the possession of the court receiver, alongwith the letter, copy of the order of Bombay High court dated 12.04.1994 appointing court receiver was also sent. Ld. Counsel for appellant submitted that thereafter, appellant never received any communication from the arbitrator and copy of the letter dated 03.12.2001 written by arbitrator and the letter dated 08.01.2002 written by the appellant to the arbitrator in response to the aforesaid letter were on record.
J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 6/27 ID No. 02403R0264602010 He submitted that other appointment of receiver, appellant could not be liable for the debts of company, which has been acquitted by Ld. Trial Court.
11. On the other hand, Sh. R. D. Mehra Ld. Counsel for the complainant submitted that there is no defect in the impugned judgment passed by Learned trial court , which is running into 63 pages and trial court dealt with all the submissions now raised by the appellant. He submits that observations made in impugned order may be considered as his reply. Ld. Counsel submitted that appellant has not disputed that the cheques were signed by him. He submits that appellant has not proved whether Sh. R. U. Kateja retired from M/s Bush India Ltd. and it was the internal matter and cheques were dishonoured on the ground of "insufficient funds" and "not arranged for". It is not disputed that appellant's company was the only customer of complainant's company. It is submitted that credit for four year was given and cheques in question were given on dates mentioned thereon, however, it is not disputed that apart from the date, other particulars on the cheques were printed. It is submitted that dates were put by the Delhi office of appellant's company and the cheques were handed over to them. Complainant company was not aware about the change of name and address of the company prior to the date when the cheques were returned. In the Award (Ex. PW3/25), there is a reference of letter dated 03.06.1992 regarding acknowledgment and hence, this complaint was filed within time and it cannot said be that there was no legally recoverable debt. No information regarding the appointment of receiver on 12.04.1994 was given to the complainant/respondent or his bank. It is submitted that complainant/respondent filed an application u/s 305 Cr. P. C during the pendency of this case for impleading receiver. Notice was issued to the court receiver at the address provided by the appellant/accused but, none appeared on behalf of the court receiver. It is submitted that cheques in question were issued in a running account and as per Award (Ex. PW3/25) Rs. 38 Lacs were due at the time of giving cheques.
J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 7/27 ID No. 02403R0264602010
12. Following points emerge for determination in this appeal.
(i) Whether Sh. S. K. Sareen, Manger of the complainant company was duly authorised to file the complaint?
(ii)Whether name of the company M/s. Bush India Ltd. was changed to M/s. Zadona Electronics Limited on w.e.f. 26.11.1993?
(iii) Whether registered office of the appellant's company was shifted to F1/C29, Thane Industrial Area, Thane from the previous address fourth floor Zenith Building, Racecourse Road, Mahalaxmi, Bombay?
(iv) Whether complainant company was aware about the change of the name of the company in the year 1993?
(v) Whether complainant company was doing any business with M/s. Bush India Ltd. after year 1993?
(vi) Whether Sh. R. U Kateja, (signatory of the cheques in question alongwith the appellant ) had resigned on 30.11.1993?
(vii)Whether the case of complainant was based on invoices pertaining to the year 1991?
(viii) Whether the cheques were issued in the year 1995 or whether cheques were issued prior to the change in the name (of the company from M/s. Bush India Ltd. to M/s. Zadona Electronics Limited on 26.11.1993)?
(ix) Whether M/s. Zadona Electronics Ltd., successor company of M/s Bush India Ltd. , was under liquidation and receiver was appointed by the order of the High Court of Mumbai w.e.f. 12.04.1994?
(x) Whether the appellant was in a position to make arrangement for encashment of cheques in question after the appointment of receiver by the order of the High Court of Mumbai in April 1994 and whether he could be said to be in a position to given effective and binding instructions to his banker?
(xi) Whether the statutory notice can be deemed to have been served upon the appellant?
13. In order to appreciate the submissions advanced by the learned Counsel for the parties, first of all, the legal position may be noted. In order to J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 8/27 ID No. 02403R0264602010 attract Penal provision for the bouncing of the cheque in ChapterXVII, it is essential that the dishonoured cheque should have been issued in discharge, in whole or in part of any debt or any other liability of the drawer or the payee. Section 138 of the Act has three ingredients :
(i) that there is a legally enforceable debt;
(ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
(iii) that the cheque so issued had been returned due to insufficiency of funds.
The explanation of Section 138 NI Act reads as under: "Explanation: For the purpose of this Section "Debt or other liability"
means legally enforceable debt or other liability."
Section 138 NI Act is attracted only if the cheque is issued in discharge of a legally enforceable debt or other liability. If the cheques in question were issued in discharge of time barred debt, it cannot be said that a time barred debt is a legally enforceable debt. The proviso appended to the section 138 NI Act provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law . Section 138 NI Act provides that nothing contained in this Section shall apply unless - (a) that cheque has been presented to the bank within a period of six months from the date it is drawn or within the period of its validity, which ever is earlier; Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
14. It is a settled legal position that burden is on complainant to prove the guilt of the accused beyond the shadow of reasonable doubts. In "Veena Rani Chhabra vs Manju Rohida, 2009 (2) DCR, 302, our High court", held J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 9/27 ID No. 02403R0264602010 that "in criminal trial, the guilt of the accused has to be proved beyond any shadow of doubt unlike civil matter there the case can be decided on probabilities." Onus may shift but burden never shifts. It is well settled that the question of presumption would arise only after complainant company succeeds in establishing that there was a legally enforceable debt and the cheque in question had been issued for discharge of the debt/liability in whole or in part and Section 138 (b), NI Act is unambiguous in requiring a demand in writing to be made by the payee by "giving a notice in writing to the drawer of the cheque within 30 days of receipt of intimation that the cheque has dishonoured". The expression "giving of notice" has to be read in the context of Section 27 of the General Clauses Act (G. C. Act). In terms of the said provision whenever a statute uses the words "served" or "give" or "sent" unless different intention appears, service would be presumed by "properly" addressing and posting by registered post a letter containing the document. This is not an automatic conclusion to be drawn but an assessment to be made by the Court keeping in view the facts of the case. Thus, even under Section 27, G. C. Act, the requirement is that the notice must be "properly" addressed. The word "properly" obviously envisages the notice being sent to the "correct present address" of the noticee.
15. In "Kumar Exports vs Sharma Carpets I (2009) CCR 100 (SC) Supreme Court of India" their Lordship observed as under:
"To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note 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 disprove the nonexistence of 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 bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 10/27 ID No. 02403R0264602010 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 consideration 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 the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling the burden may likewise shift against on to the complainant. The accused may also reply upon presumptions of fact, for instance those mentioned in section 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act. The accused has also an option to prove the nonexistence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having record to all the circumstances of the case and the preponderance of probabilities the evidential burden shifts back to the complainant and, thereafter the presumptions under Section 118 and 139 of the Act will not again come to the complainant's rescue."
16. In "Yadlapalli Satyam vs K. S. & ors. 2005 Crl. L. J. page 2489 " it was held that :
"In the case is hand, the appellant did not adduce any evidence to show that the respondent was present at the address and he managed to get the endorsement from postal authorities that he was absent for seven days. On the other hand, the respondent examined DW 1 , the Village Administrative Officer, to show that he was absent during that period. The purpose of the statutory notice is to give an opportunity to the accused to make the payment of the amount covered by the cheque. Unless there is proof that there is service of notice or the endorsement was manged by the accused (addressee), it cannot be said that there was valid service of notice. In the light of the above circumstances, the lower court was J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 11/27 ID No. 02403R0264602010 right in coming to a conclusion that there was no valid service of notice".
17. In P. Jitendra Nadh vs Walson Laboratories and others 2007 (1) , DCR 537 , it was held that "notice should be given at the correct address and the mere giving of notice will not be sufficient. When the proof regarding receipt of notice is lacking and no evidence is adduced by the appellant that postal endorsement was manipulated by the accused , then it cannot be said that the notice is actually served."
18. In "Deepak Chordia vs Rajendra Sen 2005 (1) DCR, 361 " It was held that:
"In K. Bhaskaran vs Shankaran Vaidhyan & Anr. 2000 ANJ SC 147, the Apex Court held that if the notice has been sent at the correct address then it will be presumed that the addressee has received the same. Such presumption can be drawn only when the addressee has refused to accept the notice. In the instant case, there is no endorsement by the postman that the accusedrespondent refused to accept the notice, rather it has been endorsed thereon that despite efforts for seven days, the accused respondent could not be found at the said address".
19. "In laxman Dass Vs. Amar Rochwani 2007 DCR page 595" it was observed that :
"Presumption under Section 114 of the Evidence Act and under Section 27 of the General Clauses Act can arise when a particular notice has been issued on the specified address of the receiver, but in the present case, the address of the appellant is different. In such case, the aforesaid presumption of service of notice cannot be drawn.
20. In "Shridhar M. A. Vs Metalloy N. Stell Corporation (2000) 1 Supreme court cases 397" it is held that :
"The case of the appellant is that the appellant did not J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 12/27 ID No. 02403R0264602010 get a notice which is the sine qua non for initiating criminal proceedings under Section 138 Negotiable Instruments Act . Therefore, the Trial court was justified in passing the order of acquittal. The High court has set aside such order of acquittal and passed the order of conviction and sentence by proceeding on the basis of deemed service. Although, in appropriate case deemed service is to be accepted by the Court, as indicated in the decision of this Court reported in State of M.P. Vs Hiralal but it may also be noticed that such presumption of deemed service is not a matter of course in all cases an deemed service is to be accepted in the facts of each case.
Considering the facts of the present case, it appears to us that the appellant is entitled to the benefit of doubt as to whether such service, in fact, had been effected on the appellant. In view of aforesaid law, it is apparent that presumption of service of statutory notice to the respondent cannot be drawn against the respondent, as notice has not been given by the complainant on the correct address of the respondent. Thus, case of the complainant is deemed to be a case wherein no statutory notice has been given properly by the complainant to the respondent. In such circumstances, the complaint is liable to be dismissed on this preliminary ground .
21. "In HDFC Bank Ltd vs Amit Kumar Singh 160 (2009) Delhi Law Times, 478 High Court" our Hon'ble High Court held that :
"This court is unable to accept the proposition that by merely filing an affidavit stating that the drawer resides at the address given in the legal notice, the complainant can satisfy the requirement of having to satisfy the Court that notice was in fact was delivered to the drawer. In the considered view of this Court, such an affidavit can be accepted only if the deponent states that he either went personally and found that the accused was residing at the address or is able to produce some postal certificate or an endorsement by a courier service agency that the accused is in fact residing at the J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 13/27 ID No. 02403R0264602010 address and yet refusing to accept the notice. If the affidavit merely states that the accused is residing at the address without giving any further documentary proof in support thereof such an affidavit cannot be accepted as satisfying the requirement of Section 138 (b) read with Section 138
(c) of the NI Act .
22. In Harman Electronics (P) ltd. vs National Panasonic, I 2008 (16) SCALE 317, Hon'ble the Supreme Court emphasized the importance of service of notice on the drawer as contrasted with mere dispatch of notice. In para 14 it was observed as under:
"It is one thing to say that sending of a notice is one of the ingredients for maintaining the complaint but it is another thing to say that dishonour of a cheque by itself constitutes an offence. For the purpose of proving its case that the accused had committed an offence sunder Section 138 of the Negotiable Instruments Act, the ingredients thereof are required to be proved. What would constitute an offence is stated in the main provision. The proviso appended thereto, however, imposes certain further conditions which are required to be fulfilled before cognizance of the offence can be taken. If the ingredients for constitution of the offence laid down in the provisos (a) , (b) and (c) appended to Section 138 of the Negotiable Instruments Act intended to be applied in favour of the accused, there cannot be any doubt that receipt of a notice would ultimately give rise to the cause of action for filing a complaint. As it is only on receipt of the notice the accused at his own peril may refuse to pay the amount. Clauses (b) and (c) of the proviso to Section 138 therefore must be read together. Issuance of notice would not by itself give rise to a cause of action but communication of the notice would."
23. In "Smt. Ashwani Satish Bhatt vs Sh. Jeewan Divakar II (1999) BC, 519 (Bombay High Court) it was observed that :
"The ruling upon which reliance has been placed by the learned Advocate for the respondent is applicable on all fours. In that J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 14/27 ID No. 02403R0264602010 case loan was advanced in the year 1985 and the cheque was issued in the year 1990. by the time the cheque was issued, the debt was barred by limitation because no acknowledgment was obtained before the expiry of three years from the date of loan . In these circumstances, it was held there that the debt was not legally enforceable at the time of issuance of cheque and the accused could not be punished under Section 138 of the said Act. In the light of explanation to the said section, it was further held therein that in case a cheque is issued for time barred debt and it is dishonoured the accused cannot be convicted under Section 138 on the ground that the said debt was not legally recoverable".
24. "M/s Vijay Polymers Pvt. Ltd. vs M/s Vinnay Aggarwal 2009 (2) CCC, 419 (Delhi High Court)" it was held that "if the cheque is issued for time barred debt and dishonoured, accused cannot be convicted u/s 138 NI Act."
25. In "Raja Kumari vs Subbarama Naidu 2004 (3) KLT 799 (SC)", Hon'ble Supreme Court held that :
"'giving notice' is not the same of 'receipt of notice'. In that particular case, notice was given at the correct address and acknowledgment card came with the endorsement that 'house been locked'. In such circumstances, Supreme Court held that burden was on the complainant to show that accused had managed to get incorrect postal endorsement by some arrangement."
26. In "Prem Chand Gupta vs State 2010 (1) JCC (NI) 80, (High Court of Delhi)" it was observed that :
"In view of the above referred authoritative pronouncements of the Hon'ble Supreme Court, it cannot be disputed that the offence under Section 138 of Negotiable Instruments Act is to complete before expiry of the statutory period of 15 days, after receipt of notice and, therefore, it cannot be said that an offence under Section 138 of Negotiable Instruments Act was committed by the company on account of dishonour of these cheques and its nonpayment within 15 days of the receipt of the notice envisaged in Section 138 (b) of Negotiable Instruments Act. Since the company could not have disobeyed the order passed by BIFR, it was not possible for it to make J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 15/27 ID No. 02403R0264602010 payment of the amounts of the cheques at any time after 1 st December 1998. The purpose of issuing of notice under Section 138 (b) of Negotiable Instruments Act is to inform an honest drawer of the cheque, who, for one reason or the other, could not arrangee funds at the time of presentation of the cheque to his bank, to show his bona fide, by making payment within 15 days of the receipt of the notice. If a person is prohibited on account of an order passed by BIFR from making payment on the date the statutory period of 15 days expires, nonpayment being beyond his control, no offence under Section 138 of Negotiable Instruments Act would be made out against him."
27. Keeping in mind, the aforesaid position of law, now, I advert to the evidence adduced by parties on record. First of all, I will consider the question whether Sh. S. K. Sareen, the Manager of the complainant's company was authorised to make the payment. Ld. Trial court has dealt with this question in para 26 and para 27 of impugned order. Resolution on record shows that Sh. S. K. Sareen (PW 3) was authorised to represent the company before any legal Court in India and to attend day to day proceedings of the courts and receive and give papers on behalf of the company in all such matters. There is no reason to disagree that this would include the right to file and pursue the present complaint. In the instant case, authorisation of Sh. S. K. Sareen, existed even at the time of filing of complaint. He was authorised to represent in any legal Court in India. This Court finds that Sh. S. K. Sareen, Manager of the complainant company was duly authorised to sign and file the complaint. There is no infirmity in the impugned order in this regard.
28. Before embarking upon the consideration of other points and further analysis of evidence on record, it is pertinent to point out here some portion of impugned Judgment which gives a conflicting picture.
"In para 27 of the impugned order, Ld. Trail court observed "that PW3 admitted that his complaint case was based on the invoices of year 1991". In para 28, where it is observed that "it is not the case of the complainant that cheque in question pertain only to bill no. 20 and 32. Rather , the accused received J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 16/27 ID No. 02403R0264602010 the goods from time to time and issued cheques."
29. In para 43, Ld. Trial court observed "looking to the judgments on the issue while it may not be possible to fix any liability against the accused company in view of the appointment of the receiver by order of Hon'ble High Court of Mumbai but the accused no. 2 who was the authorised signatory and had signed the cheques in question cannot be absolved of the liability for the offence more so, as despite the order appointing the receiver the cheques were issued in 1995 to the complainant."
30. In para 46 Ld. Trial court observed :
"thus, it is the case of the complainant that credit for four years was given to the accused and that the cheques in question were issued after period of four years." "At the cost of repetition it may be mentioned that an objection was raised by the accused that the said Arbitral Award cannot be looked into and the complainant had to prove its present case. But it cannot also be disputed that there is nothing to show that the said Award had been set aside and findings in a civil matter are binding on a criminal court. Moreover, the issue of limitation stood settled in that case and it was not open to the accused to reagitate the same. Even otherwise the learned Arbitrator in this regard referred to the letter of the accused dated 3.6.92. Thus, the invoices are of 1991, thereafter the liability was acknowledged vide letter dated 3.6.02 and the cheques are prior to June 2005 i.e. before the expiry of the period of limitation. As such it cannot be said that the debt was time barred."
31. In para 47 it was observed by Ld. Trial Court that ;
"The contentions that the name of the accused company stood changed in 1993 or that Mr. R. U. Kateja was not the authorised signatory of the accused company in 1995 . or that a receiver was appointed qua the accused company do not also help the case of the accused." "Moreover there is nothing to show that accused had made any payment towards the amount of the cheques in question"
J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 17/27 ID No. 02403R0264602010
32. In para 48 Ld. Trial court observed :
"It is settled law that only where the accused is able to rebut the presumption arising in favour of the complainant that the complainant has to prove its case beyond reasonable doubt. However in the instant case the accused has not succeeded in rebutting the presumption arising in favour of the complainant."
33. In para 54 Ld. Trial Court observed that :
" However in the instant case the endorsement was of 'left' and even the case of the accused is that the address stood changed and once the accused has failed to show that the complainant was aware of change of address the complainant had clearly done what could reasonably be expected of the complainant to do. In the instant case, it is not the case that the address given in the notice was never the address of the accused but it is the case that the accused had shifted from there."
34. There is no finding, when cheques were issued. In concluding Para 55 Ld. Trial court observed that :
"From the material on record it stands established that the cheques were issued by the accused, the same were returned dishonoured for the reason 'Funds Insufficient' and 'Not Arranged for' , and legal notice was served on the accused"
35. Sh. S. K. Sareen, the authorised representative of the respondent/ complainant (PW3) could not deny that their company was not doing business with the appellant/accused after 01.12.1993. He deposed that only after checking the record, he could tell whether the complainant company was doing business with the accused company after 12.4.1994. This question was not answered after checking records. PW3 admitted that appellant/accused company was the big customer of the complainant company and 100% material was supplied to the accused/appellant company.
36. PW4 stated that he was not aware that the name of the company got changed from M/s Bush India Pvt. Ltd. to M/s Zadona Electronics ltd. He deposed that he did not know when such a change of name took place. The case J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 18/27 ID No. 02403R0264602010 of the appellant/accused no. 2 is that the name of the company changed in the year 1993 and certificate to this effect was also produced by him which is Ex. PW 4/C. PW3 stated that the copy of change of name was not communicated to the complainant and when he was confronted with para 7 of the Award (Ex PW 3/25), he showed ignorance. He stated that he could not say anything regarding para 7 of Ex. PW 3/25. Whereas, DW2 categorically stated that he had communicated to the complainant accused company's name was changed. It is clear from the Award (Ex. PW 3/25) that change of name was communicated to the claimant i.e. Sh. Mohinder Nath Bhayana by the respondent therein i.e. M/s. Bush India Ltd. It is mentioned in para 7 as under :
"the name of the respondentcompany was changed from M/s Bush India Ltd. to M/s Zadona Electronics Ltd. w.e.f 26th November 1993 . The change of name was communicated to the claimant by the respondents , vide its letter dated 11 th December 1993 (Ex.PW1/3) This shows that change of name of the company was communicated to the complainant by the appellant no. 2. Even this fact had been denied by the complainant.
37. The case of the appellant is that cheques in question were lying with the complainant before 1993 which were given to the complainant company undated, during the course of business transaction, which were misused by them. Whereas, PW3 has stated that when the cheques were received which they were dated. Admittedly, cheques in question have been signed by the then Chief Accountant R. U. Kateja. PW3 stated that he could not say when R. U. Kateja resigned. He showed ignorance if R. U. Kateja resigned from M/s Zadona Electronics ltd. on 30.11.1993 and went to Nigeria. It was stated to be an internal matter of the accused company. This fact assume importance as R. U. Kateja is one of the signatory of the cheques in question. Appellant, who appeared in the witness box as DW2 deposed that R. U. Kateja had resigned from the company on 30.11.1993 and he left the company. There J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 19/27 ID No. 02403R0264602010 is nothing in the cross examination of DW 2 to impeach his veracity in this regard, whereas Sh. S. K. Sareen (PW 3) stated that he was not aware if Sh. R. U. Kateja had resigned from the company on 30.11.93. This fact that R. U. Kateja was not impleaded as party by the complainant's company also supports the defence version. Therefore, this fact stands proved that Sh. R. U. Kateja resigned on 30.11.1993.
38. During cross examination, PW3 admitted that whenever the goods were supplied to the company, the bills, invoices etc., were prepared. He admitted that this complaint/case was based on the invoices of the year 1991. He volunteered that the invoices were part of the Arbitration proceedings. Complainant's AR stated that invoices were in the name of M/s Bush India company. He did not know whether the amount due to the accused company had been shown under the heading 'sundry debtors' in balance sheets. PW3 admitted that invoice no. 20 dated 28.05.1991 and invoice no. 32 dated 17.06.1991 pertain to the cheques in question. On asking, he could not tell whether the payment against invoice no. 20 and 32 had been received by the complainant company and when he was confronted para 11 of the Award (Ex. PW 3/25), he showed ignorance about the same. In Para 11 of the Award (Ex. PW 3/25), it is mentioned that balance has been received against bill no. 20 and bill no. 32. In criminal proceedings, it is the company as well as every person incharge of and responsible for the affairs of the company is liable, if pleaded and proved. If the accused company is held to be liable to pay by the arbitrator, then in a criminal case, it cannot be held that Director of the said company is personally liable. Vicarious criminal liability cannot be fasten upon him, simply because he was the director of the said company. Ld. Trial Court observed that "in the present case, complainant has stated that the present cheques were only against invoices No. 20 and 32, though the invoices were not proved in the present case. The arbitration proceedings concluded in year 2002, whereas this case was filed in the year 1995. Award (Ex.PW3/25) against the company given seven years after institution of this case and when appellant was not a J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 20/27 ID No. 02403R0264602010 party in the arbitration proceedings was pressed into service to prove the averments of the complaint against the appellant, in personal capacity. It cannot be held as observed by the Ld. Trial Court that "there is nothing to show that accused had made any payment towards the amount of cheque in question". It is mentioned in para 11 of the award (Ex.PW3/25) relied upon by complainant company that "out of Rs. 7,71,200.21 paise an amount of Rs. 1,96,803.53 paise had been received on account and the balance has been received against bill no. 20 dated 28.05.1991 and bill no. 32 dated 17.06.1991". Now, these facts show that a sum of Rs.5,74,396.68/ was received against bill No. 20 and 32 regarding which cheques in question are admitted to have been issued.
39. Moreover, PW3 deposed at one point, that credit of four years was given to the accused and cheques in question were issued after the period of four years as the accused company was only the supplier. Thereafter, PW3 contradicted himself and stated that "he had not given any credit of year to accused." In that eventuality, cheques could not have been given in the year 1995. It is relevant to point out, in this context, that complainant has not specified 'what' and 'when' goods were supplied. It is merely mentioned in the complaint as well as in the examination inchief of PW3 that complainant had been supplying goods and supplying the items from time to time for which accused issued the cheques. It seems 'what' and 'when' they were supplied has not been deliberately mentioned in the complaint and also not testified in the examination inchief and if complainant had mentioned the same, it would have been clarified, that the liability was time barred.
40. Evidence on record indicates that cheques in question were not given on the date mentioned therein i.e. February and March 1995 but were given in the year 1993 before R. C. Kateja resigned from the company in 1993. PW4, who is a witness produced by complainant company, had produced the certificate of the copy of account opening form, which shows the amendment were made in the Resolution and that the name of S. C. Gupta, Vijay J. Mehta were added and the name of R. U. Kateja stood deleted. This also shows that J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 21/27 ID No. 02403R0264602010 R. U. Kateja left the company of appellant no.2. This fact that cheques in question were given prior to November 1993 is supported by the fact of change in the name of the company as M/s Zadona Electronics Ltd. Admittedly cheques had not been in the name of M/s Zadona Electronics ltd. but were issued by M/s Bush India Pvt. Ltd.
41. On asking, if PW3 could produce the balance sheet of the year 1991 to 1995, he sought time to produce the same. On the next date, he could not produce the same and stated that the balance sheet for the year 1991 to 1995 were not traceable. He stated that the cheques in question were issued after four years and as the accused company had no credit trading with them but thereafter, he stated that they gave credit of four years to the accused. In this context, Ld. Trial court observed that the balance sheet were not produced and the advantage could not be given to the accused. This is not the correct position of law. In case, the complainant witness was asked to produce the balance sheet and he failed to produce the same, an adverse inference has to be drawn against him, that in case he would produce the same, it would not support him. It is not for the accused to prove the same. It is for the complainant witness to produce the same. As the balance sheets were in the possession of the complainant, therefore, he had been directed by the trial court to produce the same. It was incumbent upon him to produce the same. In view of this, an adverse inference had to drawn against him, on failure to produce the record. Observation of Trial Court that "it was for the accused to show that the accused company did not do any business after 12.04.1994" is erroneous and is not in accordance with law. On 12.04.1994, receiver had been appointed by the High Court of Bombay and the name of the company had already been changed from M/s Bush India Ltd. to M/s Zadona Electronics pvt. Ltd. Since the cheques are issued to M/s Bush India Ltd., it was for the complainant company to prove that cheques in question were issued to M/s Bush India ltd., after 12.04.1994 and not for the accused. On 12.04.1994, admittedly, court receiver had been appointed. Thereafter, cheques in question could not have been issued J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 22/27 ID No. 02403R0264602010 by the appellant/accused company. Sh. S. K. Sareen, AR of the complainant (PW3) deposed that he was not aware, if at all, intimation was sent by the accused company to their bank about the appointment of the court receiver, but the fact remains that complainant witnesses have not denied that such intimation was not given. Bank witness testified that previous record had already been destroyed. During cross examination, PW3 testified that he would have to check the record and tell whether there was a business with the accused company after 12.04.1994 or not.
42. Ld. Trial Court, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. An accused may discharge his burden on the basis of the material already brought on records. Standard of proof on the part of an accused and that of prosecution in a criminal case is different. Whereas, prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is 'preponderance of probabilities'. Inference of preponderance of probabilities can be drawn not only from the materials brought on records by the parties but also by reference to the circumstances upon which he relies."
43. Complainant sought to utilize the Award Ex. PW 3/25 at his convenience, but when it did not suit it, ignorance was shown by its AR. Complainant witness denied categorically that he was not aware of change of name of company. But when confronted with para 7 of Award (Ex. PW3/25), PW3 had no answer and could not say anything. It was not a question of only retaining of assets, liability of previous company by M/s. Zadona Electronics Ltd. but it was a question of coming to the court with clean hands and the conduct of complainant's AR in denying the knowledge about change in the name of company. If complainant's AR had admitted about his knowledge of change in the name of company, it would have exposed that cheques could not have been issued in the year 1995 by M/s. Bush India Pvt. Ltd, the previous company. Ld. Trial Court failed to discern this. This seems to be the reason that PW3 (AR of the complainant company) denied his knowledge about the J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 23/27 ID No. 02403R0264602010 appointment of receiver on 12.04.1994. PW3 categorically deposed that he did not know whether legal notice was served upon the accused or not and he admitted that notice sent through registered post was received back with the endorsement "left". Address of M/s Zadona electronic Ltd. was F1/C29, Thane Industrial Area, Thane. PW3 was confronted with the certificate of the address issued by the Registrar of Company. Trial Court did not notice that PW3 had shown ignorance about the service of legal notice. It is true that presumption u/s 114 of the Evidence Act and Section 27 of General Clause Act can arise when notice has been issued on a specified address of the receiver. Once, it is established that the complainant company was aware of change of name of complainant company and registered post was received back with 'left' , it was incumbent upon the complainant to serve notice to M/s Zadona Electronics at its changed address F1/C29, Thane Industrial Area or at Delhi Office, which it referred, during argument. It is not believable and convincing that new address of accused no. 1 company which was the sole customer, of complainant company will not be known to it. When notice was sent to an incorrect address presumption as to service of notice was not available. Another address of the accused was also available but notice was not sent on the said address. It is not the case of appellant that the address given in the notice was never the address of the accused but it is his case that he had 'shifted' from there. Giving of notice at some address is not enough compliance with the statutory requirements of legal notice. Notice should be given at the 'correct address'. In view of the aforesaid discussion, it cannot be held that notice was served at the 'correct address'.
44. To recapitulate, the following facts emerge from the scrutiny of evidence on record :
(a) That cheques in question are signed by Sh. J. R. Mulchandani and by Sh. R. U. Kateja on behalf of accused company M/s Bush India pvt. Ltd.
(b) Sh. R. U. Kateja, one of the drawer of cheques, was not impleaded as a party in this case, and he resigned from M/s Zadona Elec. Ltd. on 30.11.1993.
J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 24/27 ID No. 02403R0264602010
(c) The name of company M/s Bush India Pvt. Ltd. was changed to M/s Zadona Electronics ltd. on 26.11.1993.
(d) M/s Bush India Ltd. /accused no. 1 was the only/sole customer of M/s Play world Electronics pvt ltd. (complainant company) which used to buy 100 % goods.
(e) Filing of a Civil suit in March 1995, by the complainant and appointment of arbitrator in the year 2001 in this suit.
(f) Appellant was not a party in the arbitration proceedings, in which Award (Ex.PW3/25) against Accused no. 1 company (M/s Bush India Pvt. Ltd.) was given in the year 2002.
(g) The Award (Ex. PW 3/25) dated 3.5.2002 given by the arbitrator in suit No. 585A of 1995 dated 28.8.2001 of Delhi High Court relied upon by complainant shows :
(i) vide letter dated 11.12.1993 complainant had come to know change of name of company on 12.04.1994,
(ii) that out of Rs. 7,71,200.21 paise an amount of Rs. 1,96,803.53 paise had been received on account and the balance has been received against bill no. 20 dated 28.05.1991 and bill no. 32 dated 17.06.1991, regarding which cheques in question are admitted to have been issued.
(h) Cheques were undated and were not issued in 1995 on the dates mentioned thereon.
(i) Whenever goods were supplied by the complainant company to the accused company, invoices/bills were prepared.
(j) Complainant case was based on invoice of year 1991. Invoice no. 20 dated 28.05.1991 and invoice no. 32 dated 17.06.1991 pertain to cheques in question.
(k) letter dated 03.06.1992 whereby M/s Bush India Pvt. ltd. Acknowledged 'liability' not placed or proved on record.
(l) No invoices or bills against which goods were supplied proved.
J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 25/27 ID No. 02403R0264602010
(m) No balance sheet of complainant company from the year 1991 to 1995 were produced or proved despite direction of court.
(n) Nothing on record to show any dealing between complainant company after change of name of M/s Bush India Ltd. to M/s. Zadona Electronics ltd. in November, 1993 or after appointment of receiver in April 1994.
(o) Court receiver was appointed by High Court of Bombay in Suit no. 1466 of 1994 in case titled as "ICICI Vs Zadona Electronics Ltd." and an adinterim order of injunction with respect to movable and immovable property of M/s. Zadona Electronics Ltd. was in existence.
45. Thus, to conclude it stands established that name of the company was changed in November, 1993 and complainant were the sole customer of the appellant company. Sh. R. U. Kateja had resigned from the company in December, 1993 and court receiver had already been appointed in April, 1994 by the High Court of Bombay. All these facts and circumstances would show that cheques in question had been given or were with the complainant company prior to appointment of receiver and prior to December, 1993 and cheques in question were not presented to the bank within the period of six months from the date. Ld. Trial Court further failed to notice that appellant had placed on record various judgments of the labour court, Maharashtra Thane which are Ex. DW2/A and Ex. DW3/C dated 18.08.2006 and Ex.DW 3/B dated 21.08.2006. The judgments were on an application u/s 33 C (2) of Industrial Dispute Act, filed by the workers against M/s Zadona Electronics ltd., formerly known as M/s Bush India ltd. In para 23 of Ex DW3/C of the judgment Ld. Judge, Second Labour Court, Thane observed that: "I find once liquidation proceedings is going on against the company, Managing Director is not personally liable for the dues, only the company is liable for the dues of the employees." This court is in agreement with these observations. In the present case, Ld. Trial court found that that in view of appointment of receiver, by the Hon'ble High Court of Mumbai, it was not possible to fix any liability against the accused company M/s Bush India Pvt. Ltd. , then there was no reason why the appellant, who was the J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 26/27 ID No. 02403R0264602010 Managing Director could be held personally liable for the cheques in question when those cheques were issued before the appointment of the receiver.
46. The entire factual matrix discussed above shows that defence of appellant is probable. Evidence on record fails to establish beyond reasonable doubt that cheques in question were presented to the bank within a period of six months from the date on which they were drawn . Evidence on record shows that cheques in question pertained to the invoices of the year 1991. Evidence on record fails to establish that the endorsement 'left' on the notice was manipulated or was a false endorsement. Since the complainant had sent notice on the old address and not at the Delhi office, presumption of the service of notice is not available in favour of the complainant. Considering the totality of facts and circumstances of the case, appellant is entitled to the benefit of doubt as to whether such service, infact, had been effected on him. Lastly, after the appointment of receiver in April, 1994, it cannot be held that appellant was in a position to make arrangement for the payment of cheques in question. He could not be held vicariously liable for the acts of the company, which had been acquitted by the Ld. Trial Court.
47. In view of the foregoing reasons, this court finds that the impugned order is not sustainable and deserves to be set aside. In the result, appeal is accepted and appellant is acquitted from the charge. TCR be sent back along with copy of this order. Appeal file be consigned to record room. announced in the open court on 3 March 2011. (Vinay Kumar Khanna) rd Additional Sessions Judge04 (SouthEast) Saket/New Delhi J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 27/27 ID No. 02403R0264602010 SC No. 117/10 FIR No. 01/10 PS Sangam Vihar Present: Sh. R. K. Gurjar Ld. Addl. PP for the State.
Sh. R. K. Lamba Ld. Counsel for the accused.
Sh. Bipul Kumar Ld. Counsel for the complainant.
Heard arguments on the bail application.
Ld. Counsel for the applicant/accused submits that there is no incriminating evidence on record against the applicant/accused. It is submitted that the injuries sustained by complainant are simple in nature and the Doctor did not opined the cause of death and subsequently it was opined that the death was due to hypothermia. It is further submitted that hypothermia is subnormal body temperature caused due to extreme cold. It is further submitted that PW1 was the last scene witness, who has not supported the case of prosecution. He was declared hostile and cross examined by Ld. Addl. PP for the State.
It is submitted that finger print expert report has also failed to connect the applicant/accused with the injuries on the deceased. applicant/accused is in J/c since 6.1.2010. In support of his submission, Ld. Counsel for the applicant/accused relied upon "Vipin Kapoor vs State 2006 (2) JCC 736"
On considering all the facts and circumstances, this court is of the view that applicant is entitled to bail. He has been in custody since 6.1.2010. The applicant/accused Bittoo Kumar is entitled to bail on furnishing a personal bond in the sum of Rs. 25,000/ with one surety of like amount.
List on 15.3.2011 for PE, date already fixed for PE.
(Vinay Kumar Khanna) ASJ04/Saket: New Delhi 8.3.2011 J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 28/27 ID No. 02403R0264602010 SC No. 77/10 FIR NO. 242/08 PS BADARPUR PW 12 SH. JITENDRA MISHRA, JSCC AND CJ, DWARKA ON SA:
On 30.9.08 the IO ASI Jitendar Singh produced before me one Ms. Reeta d/o Veerpal for statement u/s 164 Cr. P. C . I proceeded to record the said statement u/s 164 Cr. P. C (consisting of five pages) of Ms. Reeta and the same is Ex. PW10/B which bear my signatures at point A. Copy of the said statement was given to the IO on the written application dated 30.9.08.
XXXX by Sh. Joginder Tuli Ld. Counsel for all the accused Nil. (Opportunity given ) RO & AC (Vinay Kumar Khanna) ASJ04/Saket: New Delhi 8.3.2011 J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 29/27 ID No. 02403R0264602010 J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 30/27 ID No. 02403R0264602010 J. R. Mulchandani Vs. M/s. S. Playworld Electronics Pvt. Ltd.-CA No. 132/10 31/27