Delhi District Court
Minakshi vs . M/S Senior Power Projects Ltd (Sppl) ... on 9 March, 2015
1
IN THE COURT OF MS PREETI PAREWA : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others
CC No. 3948/11
U/s 138 r/w Section 142 Negotiable Instruments Act
Unique Identification No. : 02406R0054342011
JUDGMENT
(1) Serial number of the case : 3948/11 (2) Name of the complainant : Minakshi D/o Sh Tajbir Singh through her SPA Holder Sh Tajbir Singh r/o Village Ghikara, PO Charkhi Dadri, Distt. Bhiwani, Haryana (3) Name of the accused : 1. M/s Senior Power Projects Ltd. (SPPL), 1/1, Shanti Niketan, New Delhi-110021
2. Vijay Dixit, Director of M/s Senior Power Projects Ltd.
(SPPL)
3. Kalpana Dixit, Director of M/s Senior Power Projects Ltd.
(SPPL) - Declared absconder vide order dated 05/07/2013
4. Umesh Pandey S/o Sh P N Pandey Authorized Signatory of M/s Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 1 of 11 2 Senior Power Projects Ltd.
(SPPL) - Declared absconder vide order dated 05/07/2013
5. M/s Associated Forex Services Ltd. (AFSL) - Not Summoned
6. Rakesh Gupta, Director of M/s Associated Forex Services Ltd. (AFSL) - Not Summoned
7. Deepti Gupta, Director of M/s Associated Forex Services Ltd.
(AFSL) - Not Summoned (4) Offence complained of or proved: 138 r/w Section 142 Negotiable Instruments Act (5) Plea of the accused : Accused no. 1 M/s Senior Power Project Ltd - No plea taken Accused no. 2 Vijay Dixit -
Pleaded not guilty
(6) Final Order : Accused no. 1 M/s Senior
Power Projects Ltd. (SPPL) -
Acquitted U/s 138 r/w
Section 142 N I Act
Accused no. 2 Vijay Dixit -
Acquitted U/s 138 r/w
Section 142 N I Act
(7) Date of Institution : 07/03/2011
(8) Date on which reserved for
judgment : 05/03/2015
(9) Date of Judgment : 09/03/2015
Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 2 of 11 3 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The present complaint has been filed through an Authorized Representative and attorney of the complainant ie Sh Tajbir Singh s/o Sh Tara Chand on the basis of Special Power of Attorney executed in his favour by the complainant. The brief facts of the case are as carved out from the complaint are that the complainant was approached by the accused no. 4 Umesh Pandey along with other persons namely Manish Pandey and Yogesh Pandey and represented the complainant as an authorized representative of SPPL and AFSL and further represented that AFSL is a company of repute and further represented that AFSL & SPPL both joined hands to deal in the commodity business with Multi Commodity Exchange India Ltd. (MCEX) of commodities and also represented that AFSL is holder of the Commodity Membership bearing no. 21850 and that APPL & AFSL have entered into an understanding whereby AFSL & SPPL will do/are doing the trading of commodities with MCEX.
It is further averred in the complaint that accused no. 4 Umesh Pandey with other persons also represented that accused no. 2 Vijay Dixit is a man of repute and also the owner of one of the media channels and accused no. 1 M/s Senior Power Projects Ltd & accused no. 2 Vijay Dixit are the owners and Director of SPPL and accused no. 6 Rakesh Gupta and accused no. 7 Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 3 of 11 4 Deepti Gupta are the Directors of AFSL and have very good knowledge in respect of trading of commodities.
It is further averred that because of the above said inducements and representations made by the accused persons in connivance with each other, the complainant invested her hard earned money with them by cheque bearing no. 567926 for a sum of Rs.5,00,000/- for which the accused persons had issued a receipt dated 04/02/2010. It is further averred that thereafter the complainant did not receive the amount of profit on her deposited amount and she approached the office of AFSL where the accused nos. 6 Rakesh Gupta and accused no. 7 Deepti Gupta assured the complainant that her cheque has been credited to SPPL and also showed copy of MOU dated 16/12/2009 and a copy of affidavit/undertaking/indemnity bond dated 16/12/2009 to the complainant and assured her that her profits would be returned.
Further it is averred that once again the complainant with other aggrieved persons approached at the office of AFSL at Connaught Place & Patel Nagar in the months of April & May 2010 but accused no. 4 Umesh Pandey & accused no. 6 Rakesh Gupta were not found there and thereafter, they visited the office of SPPL, where they met accused no. 2 Vijay Dixit, accused no. 3 Kalpana Dixit & accused no. 4 Umesh Pandey and accused no. 2 Vijay Dixit assured the complainant that he is in contact with accused no. 6 Rakesh Gupta and accused no. 7 Deepti Gupta and the cheque of the profit amount will be handed over to the complainant from the office of AFSL by accused no. 4 Umesh Pandey, accused no. 6 Rakesh Gupta and accused no. 7 Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 4 of 11 5 Deepti Gupta. Further it is stated in the complaint that despite repeated assurances, the complainant did not receive the cheque amount and she again visited the office of AFSL at CP in the last week of May 2010 and in the month of June 2010 where she met accused no. 4 Umesh Pandey, accused no. 6 Rakesh Gupta and other persons who handed over the cheque in question bearing no. 394491 dated 15/07/2010 for a sum of Rs.5,00,000/- drawn on HDFC Bank, Anand Niketan to the complainant for discharge of their liability which was returned unpaid with endorsement "Funds Insufficient" vide memo dated 04/01/2011.
It has been further averred in the complaint that the legal demand notice dated 19/01/2011 was sent to the accused through registered AD and UPC on 24/01/2011 which was duly served and despite the lapse of stipulated time of 15 days, payment of the cheque in question was not made by the accused persons. Thus, the complainant filed the present complaint under Section 138 N.I. Act r/w Section 142 N I Act.
2. In pre-summoning evidence, the AR of the complainant examined himself as a witness and relied upon his affidavit ExCW1/X and documents exhibit ExCW1/1 to ExCW1/7 which are SPA in favour of the AR of the complainant, cheque in question, its return memo, legal notice of demand, postal receipts and AD Cards respectively. AR of complainant has also relied upon documents Mark A to Mark E which are copy of Minutes of Meeting of Board Directors of M/s Senior Power Projects Ltd held on 15/12/2009, the payment receipt issued by AFSL dated 04/02/2010, copies of Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 5 of 11 6 letters issued by M/s Associated Forex Services Ltd. to the complainant Minakshi dated 04/02/2010, MOU executed on 16/12/2009 between M/s Associated Forex Services Ltd and M/s Senior Power Projects Ltd and copy of Indemnity Bond executed on 16/12/2009 by accused no. 2 Vijay Dixit.
3. Process U/s 204 CrPC was issued against accused nos. 1, 2, 3 & 4 only and accused nos. 5, 6 & 7 were not summoned. Thereafter, accused nos. 2 Vijay Dixit, 3 Kalpana Dixit and 4 Umesh Pandey were declared absconders vide order dated 05/07/2013.
4. Thereafter, accused no. 2 Vijay Dixit was produced before the court and notice U/s 251 CrPC was served upon accused no. 2 on 03/05/2014 to which he pleaded not guilty and disclosed his defence. In his defence, he stated that he did not issue the cheque in question to the complainant and was not liable to pay the cheque amount to the complainant.
None appeared for the accused no. 1 company and the company was proceeded U/s 305 (4) CrPC.
5. Application U/s 145(2) N I Act was not moved by the accused no. 2 and therefore, matter was listed for DE. However, the Ld. Appellate Court set aside the order dated 03/05/2014 of this court and granted one effective opportunity to the accused no. 2 Vijay Dixit to cross examine the complainant. Thereafter, the AR of the complainant was cross examined by Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 6 of 11 7 the counsel for the accused no. 2 Vijay Dixit.
6. Statement of the accused no. 2 was recorded U/s 313 CrPC r/w Section 281 CrPC on 02/01/2015 wherein all the material existing on record was put to him. In his statement, he denied the issuance of cheque, receipt of legal demand notice and he also denied any liability towards the complainant.
7. Accused no. 2 Vijay Dixit examined one bank official from HDFC Bank in his defence, Mr Lalit Aggarwal, HDFC Bank, Kasturba Gandhi Marg branch as DW-1 who brought the statement of accused no. 1 company and exhibited the same as ExDW1/1. Thereafter, DE was closed vide order dated 18/02/2015.
8. Arguments were advanced on behalf of the complainant as well as on behalf of accused no. 2. Case file perused meticulously.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 7 of 11 8 drawer.
iv)Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
10. It is a well-settled position of law that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the holder of the cheque, one under Section 139 and other under Section 118(a) of the NI Act. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. (Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
11. Further in a complaint U/s 141 N I Act, it is necessary to specifically aver that at the time the offence was committed, the person accused was incharge of and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 N I Act and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 N I Act cannot be said to be Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 8 of 11 9 satisfied. However, in so far as the signatory of a cheque which is dishonored is concerned, he is clearly responsible for the incriminating act and will be covered under Sub Section (2) of 141 N I Act and no such averment is required in the complaint.
12. The present complaint has been filed through an Attorney of the complainant ie Sh Tajbir Singh s/o Sh Tara Chand on the basis of Special Power of Attorney executed in his favour by the complainant. According to Section 142(A) of the Negotiable Instruments Act, only payee or holder in due course can file the complaint. Section 7 of the Negotiable Instruments Act defines payee. Section 8 of the Negotiable Instruments Act lays down that a 'holder' of a cheque is a person who is entitled in his own name to the possession of it and can receive or recover the amount of it. Further according to Section 9 of the Negotiable Instruments Act, a person who becomes the possessor, payee or endorsee of the cheque for consideration becomes the 'holder in due course' subject to the condition that he must become possessor before the amounts becomes payable and he should not have sufficient reasons to believe any defect existed in the title of the person from whom he derived the title of it.
In the present case, the cheque in question is not in the favour of the attorney holder of the complainant Tajbir Singh, he is neither the payee nor the holder in due course of the Negotiable Instrument and therefore, is not competent to file the present complaint case. Only the evidence of the AR of the complainant is not sufficient to prove the allegations averred in the Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 9 of 11 10 complaint. The holder in due course of the negotiable instrument has to appear before the court and depose with respect to the transaction in question and in absence of which, the complaint case will not stand. Also the presumptions U/s 139 & 118 of the N I Act is in favour of the holder in due course of the negotiable instrument and thus, in this case the question of raising these presumptions will not arise as the holder in due course of the negotiable instrument in question has neither filed the present complaint nor appeared as a witness in support of the complaint case.
Even further, the instant complaint case has neither been signed by the payee nor the holder in due course and thus, has no entity in terms of Section 145 of the Negotiable Instrument Act. (Reliance placed on S P Sampathy vs Smt Manju Gupta 2002 111 COMP CAS 492).
13. Furthermore, in the present case, accused no. 2 Vijay Dixit is alleged to be the Director of accused no. 1 company and he is not the signatory to the cheque in question and there is no specific averment in the complaint with respect to he being Incharge and responsible for the day to day affairs of the accused no. 1 company. In absence of such an averment in the complaint, accused no. 2 Vijay Dixit cannot be said to be liable for the dishonour of the cheque in question and Section 141 (2) N I Act is not attracted.
14. Therefore, in the light of above said discussions, accused nos. 1 M/s Senior Power Projects Pvt Ltd & 2 Vijay Dixit stands acquitted for the Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 10 of 11 11 offence punishable U/s 138 r/w Section 142 N I Act.
15. Copy of this judgment be given free of cost to the accused. Further accused no. 2 Vijay Dixit is directed to furnish bail bond and surety bond in the sum of Rs.10,000/- U/s 437(A) CrPC.
16. File be consigned to Record Room.
Announced in the open court on 09/03/2015 (PREETI PAREWA) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 11 pages and each page bears my signature.
(PREETI PAREWA) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Minakshi Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3948/11 Page 11 of 11