Delhi District Court
Sarvesh Mahajan vs M/S Lotus Floriculture L.L.P on 23 December, 2024
Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors
IN THE COURT OF MS. SHIVANGI MANGLA,
JUDICIAL MAGISTRATE-FIRST CLASS (NI ACT)-05,
DWARKA COURTS, NEW DELHI
CNR NO.DLSW02-021201-2019
Ct. Cases No.16841/2019
Sarvesh Mahajan Vs. M/s Lotus Floriculture LLP & Ors
23.12.2024
1. Name of the complainant : Sarvesh Mahajan
S/o Late Sh. Yashpal Mahajan
R/o House No.B-1-419, Janak
Puri, New Delhi-110058
2. Name and address of the : M/s Lotus Floriculture LLP
accused (formerly known as M/s
Lotus Floriculture Pvt Ltd.)
Office at:
House No.19, First Floor,
Road No.33, Punjabi Bagh
Extn., New Delhi-110026.
Vipin Kumar Gupta
S/o Sh. S K Gupta
R/o B-51A, Shankar Garden,
Vikaspuri, New Delhi-110018
3. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
Ct. Case No 16841/2019 Page No. 1 of 20
Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors
4. Plea of the accused : Pleaded not guilty and
claimed trial.
5. Final Order : Conviction.
6. Date of Institution : 27.10.2014
7. Date of Reserving the : 18.12.2024
Judgment
8. Date of pronouncement : 23.12.2024
JUDGMENT
1. Vide this judgment, I shall decide the present matter, Ct. Cases No.16841/2019 filed by complainant against the dishonour of cheque bearing no.003858 dated 22.08.2014 for Rs.60,00,000/- drawn on Union Bank of India, Kailash Colony Branch, New Delhi Delhi-110048, (henceforth, the cheque in question).
2. Briefly stated, the facts that the accused No.4 represented the complainant to be Director of accused No.1 i.e. Lotus Floriculture and in month of May 2013, accused offered to sell the property (3rd Floor, no.55, Sukhdev Vihar, New Delhi-110025) of accused No.1 and complainant entered into an agreement dated 17.05.2013 for the purchase of the said property for total value of Rs.2,20,00,000/-. In in lieu of the same earnest money of Rs.60 lacs was paid to the accused persons, for which Ct. Case No 16841/2019 Page No. 2 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors Rs.40 Lacs were paid through RTGS and Rs.20 Lacs were advanced in cash. Due to non performance of contract/agreement the cheque in question was issued by accused persons for repayment of the earnest money so borrowed to the complainant for discharge of the legal debt/liability. On presentation, the cheque in question was returned unpaid with with remarks "Funds Insufficient " vide returning memo dated 23.08.2014.
3. Thereafter, complainant sent a legal notice dated 05.09.2014 to the accused through registered post calling upon him to pay the loan amount. It is the case of the complainant that despite service/receipt of the notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
4. The present complaint was filed within the limitation period.
5. Pre summoning evidence was recorded and the cognizance was taken u/s 138 NI Act on 27.10.2014 and summons were issued to accused No.1 to 4 thereupon while cognizance was declined against accused No.5 and 6. Accused No.2 and 3 were deleted from the array of accused persons on the statement given by the AR as recorded in the order dated 03.10.2016.
6. Notice was framed against the accused No.4 on 01.06.2018 to which he pleaded not guilty and claimed trial. Application u/s 145(2) was filed and considering the objections the same was Ct. Case No 16841/2019 Page No. 3 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors allowed.
7. The complainant has examined himself as CW1 and filed his evidence by way of affidavit Ex.CW1/A. He has relied upon the documents Ex.CW1/1 to Ex.CW1/22 (Colly). The agreement to sell dated 17.05.2013 and related documents are Ex.CW1/1, Ex.CW1/2 and Ex.CW1/3. Original cheque in question is Ex.CW1/4, Return Memo is Ex.CW1/5, Legal notice Ex.CW1/9 along with postal receipts and tracking reports are Ex.CW1/10 to Ex.CW1/22 (Colly). Notice dated 19.08.2014 for specific performance of contract given to complainant by accused persons is Ex.CW1/6. MCA date of accused persons is Ex.CW1/7 and Ex.CW1/8.
8. CW1/complainant was examined in chief, cross examined on 20.04.2022, 01.06.2022 and discharged on 13.07.2022. Closing CE, the matter was listed for SA.
9. The accused was examined and his statement was recorded under section 313, Cr.P.C. on 27.09.2022, after all the incriminating evidence and the documents on record were put to him. Accused had chosen to lead evidence in his defence. Accordingly, the matter was fixed for DE.
10. The said defence witnesses were examined:-
i) DW1/Vipin Kumar-accused No.4 was examined and Ct. Case No 16841/2019 Page No. 4 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors discharged on 05.07.2023;
ii) DW2 Anil Kumar Gupta, MTS, MCA, Office of ROC was examined on 24.05.2023 and cross examined and discharged on 05.07.2023. The witness brought on record his authorization Ex.DW2/1, Certificate of conversion Ex.DW2/2, Form-32 Ex.DW2/3, list of Directors Ex.DW2/4, Master Data of LLP and company Ex.DW2/5 and Certificate u/s 65B of Indian Evidence Act Ex.DW2/6.
iii) DW3/Anuj Kumar, Ahlmad from the Court of Ms. Bharti Beniwal, Ld. MM-11, Dwarka Courts, New Delhi was examined, cross examined and discharged on 05.07.2023. The witness brought on record the case file in titled Sarvesh Mahajan Vs. Lotus Floriculture Ex.DW3/1.
iv) DW4/Rajvinder Kaur Bacher, Branch Operation Manager, HDFC Bank Ltd, Retail Assets Operation Moti Nagar, New Delhi was examined, cross examined and discharged on 25.04.2024. The witness brought on record certificated u/s 2A Banker's Book Evidence Act Ex.DW4/1, copy of Board Resolution of accused No.1 company Ex.DW4/2, Memorandum Ex. DW4/3, property address Mark A, document showing release of property from mortgage Ex.DW4/4.
10. Thereafter, DE was closed and the matter was listed for final arguments.
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11. Both the Counsels filed their written submissions and judgments in support of their case. Rebuttal submissions also taken from both the counsels. The submissions made on behalf of both the parties and the judgments relied on by the parties have been considered.
POINTS FOR DETERMINATION, APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
12. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following: -
i. the accused issued a cheque on account maintained by him with a bank.
ii. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
iii. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
iv. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
v. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid Ct. Case No 16841/2019 Page No. 6 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors legal notice of demand.
13. The accused admitted his signatures on the cheque in question at every stage; from notice under section 251 Cr.P.C. to his statement under section 313 Cr.P.C. Thus, presumption under section 118(a) and under section 139 of NI Act arises against the accused. Unless the contrary is proved, it shall be presumed that the cheque in question was drawn for a consideration and that the complainant received the cheques in question in discharge of a debt/ liability from the accused. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of cheque in question.
(Reliance placed on Triyambak S. Hegde vs Sripad decided by 3 judge bench of Hon'ble SC on 23.09.2021 and Basalingappa vs Mudibasappa (2019) 5 SCC 418; Bir Singh Vs. Mukesh Kumar (2019) 4SCC; K Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC510; Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC16; 8 Kalamani Tex and Ors Vs. B Balasubramanian (2021) SCC online SC 75; J. Vasantha Kumar Vs. Vipyakuman Kumar AIR 2015 SC 2240.)
14. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen Ct. Case No 16841/2019 Page No. 7 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors in favour of the complainant (reliance placed on Rangappa Vs. Sri Mohan (2010) 11 SCC441). It is now to be examined as to whether the accused has brought any material on record dislodging the presumption which meets the standard of preponderance of probabilities.
15. The accused persons admitted the execution of the agree- ment Ex. CW1/1 dated 17.03.2013. Accused No.4 admitted the mentioning in handwriting (in Ex. CW1/1) to be made by him- self. The accused persons has further admitted the present trans- action with regard to the sale of the property for amount of Rs.2,20,00,000/- to the complainant in lieu of which the earnest money of Rs.60,00,000/- was to be transferred. Accused persons has further admitted the receipt of earnest money of Rs.60,00,000 from the complainant out of which Rs.40,00,000 was transferred through RTGS and Rs.20,00,000 was transferred by way of cash.
16. The only point of defence raised in the present matter is that the cheque-in question was issued as security at the time of entering into the agreement Ex.CW1/1 and the amount of the Rs.60,00,000/- was paid by the complainant for release of the mortgage on the said Property (on which agreement for sale Ex. CW1/1 was executed). It has been further pleaded that the amount was duly used by the accused persons for release of the mortgage and after getting the same released from the HDFC Bank in two months, they asked the complainant to complete the sale transaction and due to non-availability of the funds and non-
Ct. Case No 16841/2019 Page No. 8 of 20Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors readiness of the complainant for payment of balance amount of Rs.1,60,00,000/- the transaction could not be completed. There- after the notice for specific performance of the contract/agree- ment Ex. CW1/1 was sent to the complainant for which no steps were taken. And thereafter, complainant misused the cheque in question by presenting the same in the bank for encashment.
17. The first contention of defence raised in the present matter is that the cheque-in question was issued as security at the time of entering into the agreement for the earnest money advanced to the accused persons. It has been pleaded that the cheque-in ques- tion was not issued to the discharge of liability towards com- plainant.
Here the guidelines laid down in the case of Suresh Chan- dra Goyal vs Amit Singhal D.O.D 14 May, 2015 by Honb'le DHC becomes relevant, which states :
"Section 138 begins with the word, 'where any cheque......'. These three words were held to be significant. In particular, emphasis was laid on the use of the word, 'any'-which suggests that, if, for whatever reason a cheque drawn on an account maintained by the drawer with the banker in favour of another person for the discharge of any debt or other liability is dishonoured, the liability under Section 138 NI Act cannot be avoided.
45. The High Court further held as follows:Ct. Case No 16841/2019 Page No. 9 of 20
Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors "9. Even if blank cheque has been given towards liability or even as security, when the liability is assessed and quantified, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid the criminal liability arising out of Section 138 of the Ne-
gotiable Instruments Act".
Thus, the myth that the dishonour of a cheque given as a security, cannot be the subject matter of a compliant under Section 138 NI Act was busted in this decision as well."
Accordingly, the issuance of the cheque-in question is not disputed . The issuance of the cheque-in question in lieu of the earnest money received from the complainant is not disputed and rather admitted. It has been pleaded that the cheque in question were issued as security on the condition that in case the property is not released from the HDFC bank, then the complainant will be able to at least receive back his earnest money. Meaning thereof, that in case the accused persons failed to return back the earnest money, the cheque-in question which was issued as secu- rity by them can be utilised by the complainant to realise his earnest money amount. Hence, the plea with regard to misuse of the cheque in question as being not issued to a discharge of liabil- ity is not sustainable.
18. It has been further pleaded that the earnest money was paid at the time of agreement Ex. CW1/1 and there upon the accused Ct. Case No 16841/2019 Page No. 10 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors persons had to get the property mortgaged released from the bank.
Here it is to be noted that the agreement Ex. CW1/1 is dated 17.05.2013. The accused side has brought multiple wit- nesses and documents on record to prove his defence. As per the material brought on record, the disputed property was released from the mortgage on12.07.2013, as per the documents of the de- fence Ex.DW4/4.
It means there of that at the time of the execution of agree- ment Ex. CW1/1, the property was on mortgage with the bank as also collaborated by document Ex. CW 1/8.
However, if we read the contents of Ex. CW1/1 , as also admitted by accused no. 4 to be correct, the said document reads that for the disputed property (3rd Floor, no.55, Sukhdev Vihar, New Delhi-110025) accused persons/first party are the true, abso- lute, lawful owners and in the possession of the said property.
The said agreement does not mention anything about the property being kept on mortgage with the bank on the date of ex- ecution. Nothing has been mentioned in the agreement that the cheque in question has been issued for the security purpose for redemption of the property by the accused persons pursuant thereof.
Ct. Case No 16841/2019 Page No. 11 of 20Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors Accordingly, it can be observed , that the accused persons were well within the knowledge of the fact that the property agreed to be sold via Ex. CW1/1 is not free from encumbrances and still they went on to execute the agreement for sale with the complainant and accepted the earnest money amount.
19. It has been further contented by the accused persons that within two months of the agreement, the property was released from the mortgage and thereafter they wanted to complete the transaction with the complainant, and accordingly the issued the notice for specific performance of the contract, but the com- plainant was not ready and prepared to pay the balance amount of Rs.1,60,00,000/-.
Here the testimony of DW1 is relevant. Admittedly, no document has been put forward that any intimation was given to the complainant regarding the property being on mortgage. Fur- ther, no document has been put on record to the effect that any in- timation was given to the complainant regarding the release of the property from the mortgage. Further, no document has been put forward to support the fact that any request was given to the complainant to make the payment of the remaining amount.
Accordingly, the complainant was kept under disguise and the fact of the property being kept on mortgage was kept under concealment from the complainant. Moreover, the property has been proved to have been released from mortgaged on Ct. Case No 16841/2019 Page No. 12 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors 12.07.2013 , despite then the accused person remained com- pletely silent and on 19.08.2014, they issued the notice for spe- cific performance of the contract to the complainant. No reason has been disclosed as to why for a period of one year the accused person took no steps to ensure the execution of the agreement and for sale of the said property to the complainant. No reason has been disclosed as to what stopped the accused persons in giv- ing intimation to the complainant regarding the release of the property from mortgage when they were so keen in getting the execution of the agreement completed after receipt of the balance amount. Despite having taken no steps by themselves, a mere as- sertion has been pleaded that the complainant was not ready to pay the balance amount of sale proceedings and questions have been put challenging readiness of complainant in having suffi- cient amount for payment. The giving of the intimation in this re- gard becomes all the more relevant since the company dissolved itself in February 2014 and the accused no.4, resigned two days afterwards.
The cheque-in question is dated 22.08.2014 and has been dishonoured on 23.08.2014, which shows that the cheque in question has been utilised by the complainant to realise his earnest money amount from the accused person when they issued the notice for specific performance on 19.08.2014. However, in light of the reasoning above, the conduct of the complainant is bona fide in realising his dues pending towards the accused per- sons.
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20. It has been argued that Lotus Floriculture Private Limited dis- solved and converted to LLP on 25.02.2014. The said fact has been proved by documentary evidence brought on record. It has been further argued and pleaded that accused no. 4/Vipin Gupta resigned from the designation of Director of Lotus Floriculture Private Limited on 27.02.2014 and the same fact is also sup- ported with the documentary evidence Ex. DW2/1 to Ex.DW2/6.
It has been accordingly argued that since the company in itself has dissolved and being converted to LLP, accordingly, no liability can be casted for the acts of the company on the LLP so formed and has relied upon Spice Entertainment Ltd. Vs. Com- missioner of Service Tax D.O.D 03.08.2011 By DHC; Smt. Girija Vs. K.Vinay & Sivakumari Sundari 2005(1) ALD (CRI)2; N.Harihara Krishnan Vs. J.Thomas Crl.Appeal No. 1534/2017; Shri Gurudatta Sugar Marketing Pvt.Ltd. Vs. Prithviraj Sayajirao Deshmukh D.O.D 24.07.2024 SC. It has been further argued that since the company in itself has been dissolved, accordingly, the security stands reputed and the security cheque could not have been presented by the complainant afterwards. It has been further argued that since the company has been dissolved and seized to exist as an entity after conversion to LLP, accordingly, the ac- count of the company cannot be used in any manner. It has been further argued that no liability can be casted on the successor en- tity. Ld. Counsel for accused has placed reliance on the judge- ment of Nicolas Piramal India Ltd. V. S.Sundaranayagam D.O.D Ct. Case No 16841/2019 Page No. 14 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors 23.08.2007 DHC and Religare Finest Ltd. V. State NCT Delhi Crl.Appeal No. 2243/2023; Sivakumari Sundari Vs. Michael Fer- nando D.O.D 02.09.2009 Mad.HC; which states that no criminal liability can be casted on the heirs.
Hear the provisions of Limited Liability Partnership Act 2008, gains relevance.
" Section 56. Conversion from private company into limited liability partnership.--A private company may convert into a limited liability partnership in accordance with the provisions of this Chapter and the Third Schedule.
Some rules from THE THIRD SCHEDULE of said Act of 2008 are extracted here:
8. Pending proceedings.--All proceedings by or against the company which are pending before any Court, Tribunal or other authority on the date of regis-
tration may be continued, completed and enforced by or against the limited liability partnership.
9. Continuance of conviction, ruling, order or judg- ment.--Any conviction, ruling, order or judgment of any Court, Tribunal or other authority in favour of or against the company may be enforced by or against the limited liability partnership.
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10.Existing agreements.--Every agreement to which the company was a party immediately before the date of registration, whether or not of such nature that the rights and liabilities thereunder could be assigned, shall have effect as from that date as if-- (a) the lim- ited liability partnership were a party to such an agreement instead of the company; and (b) for any reference to the company, there were substituted in re- spect of anything to be done on or after the date of registration a reference to the limited liability partner- ship.
11. Existing contracts, etc.--All deeds, contracts, schemes, bonds, agreements, applications, instru- ments and arrangements subsisting immediately be- fore the date of registration relating to the company or to which the company is a party shall continue in force on and after that date as if they relate to the lim- ited liability partnership and shall be enforceable by or against the limited liability partnership as if the limited liability partnership were named therein or were a party thereto instead of the company.
12. Continuance of employment.--Every contract of employment to which paragraph 10 or paragraph 11 applies shall continue in force on or after the date of Ct. Case No 16841/2019 Page No. 16 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors registration as if the limited liability partnership were the employer thereunder instead of the company.
13. Existing appointment, authority or power.--(1) Every appointment of the company in any role or ca- pacity which is in force immediately before the date of registration shall take effect and operate from that date as if the limited liability partnership were ap- pointed. (2) Any authority or power conferred on the company which is in force immediately before the date of registration shall take effect and operate from that date as if it were conferred on the limited liability partnership.
Section 56, section 58 and the Schedule Three of LLP Act 2008 states that the rights, liabilities, agreements, contracts, employment shall be carried forward to the LLP so formed. Ac- cordingly, the arguments put forward by Ld. counsel for the ac- cused are not sustainable. And the Lotus Floriculture LLP cannot escape the liability in the present matter.
21. Further placing reliance upon the guidelines laid down in the case of Aneeta Hada vs M/S Godfather Travels & Tours Pvt.Ltd AIR 2012 SC 2795. It has been pleaded that since the Lo- tus Floriculture Private Limited company has not been impleaded as the accused, accordingly, no liability can be casted on the di- rectors as the signatory is not the drawer for the cheque.
Ct. Case No 16841/2019 Page No. 17 of 20Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors As per the memo of parties, the accused entity is Lotus Floriculture LLP, which was formally known as Lotus Floricul- ture Private Limited . The liabilities of the Private Limited com- pany are duly continued in the favour of LLP as per the LLP act 2008.
Admittedly, DW1/ Vipin who is accused no.4 in the present matter, never sent any intimation to the complainant in writing stating that the Lotus Floriculture Private Limited Com- pany has been converted into LLP. No intimation was sent to the complainant in writing that he has ceased to be the director in the said company. No intimation or request was put forward to the complainant for execution of any fresh agreement with the new LLP so formed. Accordingly, it can be observed that the present matter has been rightly filed against the accused no.1 and the provisions of Aneeta Hada case have been duly complied with since the accused company has been duly included as accused.
Similarly, accused no.4 cannot escape the liability stating that he was not the director on the date of issuance of the cheque as the fact of issuance of the cheque prior in time of the date, ac- tually mentioned on the cheque has been duly admitted by the ac- cused persons. The blank cheque writing the amount both in words and figures after putting the signatures as security was is- sued in the favour of the complainant to be used in case of de- fault of repayment of earnest money. The non-mentioning of the Ct. Case No 16841/2019 Page No. 18 of 20 Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors date on the cheque in question implies the giving the holder of the cheque an implied authority to fill the particulars as per situa- tion. Now since the cheque-in question was issued, when ac- cused no. 4 was working as the director and signatory for the ac- count of the accused no. 1, accordingly, the liability can be casted on the said signatory.
22. In view of the above reasoning, it can be concluded that the accused persons had admitted that the property was kept on mortgage on the date of execution of the agreement Ex. CW1/1 and false representation of the property being free from all en- cumbrances was given to the complainant and under the garb of the same, the earnest money of Rs.60,00,000 was received for which the cheque-in question was issued for security purpose.
The accused persons have further failed to prove their bona fide in getting the agreement executed and remained totally silent for a period of one year till August 2014. And in the meanwhile, the company was dissolved and converted into LLP without any intimation to the complainant with malafide intentions.
Hence, applying the provisions under LLP Act 2008, the li- ability of the company is carried forward to the LLP so formed and accordingly the present complaint has been validly filed against accused no.1 company and accused no. 4 being signatory. The accused persons has miserably failed to rebut the presump-
Ct. Case No 16841/2019 Page No. 19 of 20Sarvesh Mahajan Vs M/s Lotus Floriculture LLP & Ors tion arisen in favour of the complainant under section 118/139 NIA.
23. Accordingly accused no. 1 Lotus Floriculture LLP(previ- ously Lotus Floriculture Pvt. Ltd. and accused no. 4 Vipin Kumar Gupta are convicted for the offence under section 138NIA.
24. By virtue of provisions of LLP Act 2008,which states :
"9. Continuance of conviction, ruling, order or judgment.
--Any conviction, ruling, order or judgment of any Court, Tribunal or other authority in favour of or against the company may be enforced by or against the limited liabil- ity partnership."
Lotus Floriculture LLP shall undergo the sentence on con- viction, as may be passed for accused no.1.
25. Let accused persons be heard on arguments on sentence.
26. Let the copy of the judgement provided to accused persons free of cost.
Note : This judgment contains 20 pages and each page is signed by the undersigned. Digitally signed by SHIVANGI SHIVANGI MANGLA MANGLA Date:
2024.12.23 Announced in the open 16:30:35 +0530 Court on 23.12.2024. (Shivangi Mangla) (JMFC-05 (NI ACT) South West, Dwarka New Delhi/23.12.2024 Ct. Case No 16841/2019 Page No. 20 of 20