Delhi District Court
Paramount Infratek Pvt. Ltd. vs . M/S Keltech Infrastructure Ltd. & Ors ... on 2 March, 2023
IN THE COURT OF MS. PRIYA JANGHU, METROPOLITAN
MAGISTRATE,
SOUTH-WEST, DWARKA, DELHI
In Re:
CNR No DLSW02-019747-2017
CC No. 14286/2017
Paramount Infratek Private Ltd.
B-3, Lajpat Nagar-II,
New Delhi-110024
............Complainant
Versus
1. M/s. Keltech Infrastructure Ltd.
7, IP. Building E-109, Pandav Nagar
Near Akshardham Temple
NH-24, Delhi-110092.
Email: [email protected].
2. Narinder Kumar, Director
R/o 502, Parivar Apartments,
30 IP Extension, Patparganj, Delhi-110092
3. Indu Bala, Director
R/o-502, Parivar Apartments
30 I.P. Extension,
Patparganj, Delhi-110092
.............Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 20.07.2017
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 1 of 20
(4) Date of conclusion of arguments: 24.12.2022
(5) Date of Final Order : 02.03.2023
(6) Final Order : Accused no.1 M/s
Keltech Infrastructure ltd. and
Accused no.2 Narinder Kumar
are Convicted
Accused no.3 Indu Bala is
acquitted.
JUDGMENT
1. Vide this judgment I shall dispose of the complaint filed by the complainant under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
The complainant alleges that complainant booked four flats bearing no. K-5-1201, K-5-1202, K-5-1401 & K-5-1402 in the project of accused persons in the name of 'Kumar Imperial Greens' for a total sum of rupees one crore which was paid in the name of accused no.1 company vide agreement dated 04.11.2015. Accused persons also undertook to pay the assured return to the complainant till the possession of the said flats is handed over to the complainant and in discharge of the said liability the accused persons issued cheques bearing No. 327386, 327387, 327373, 327372, 327410, 327402, 327403 and 327405 dated 26.03.2017, 26.04.2017, 04.04.2017, 04.03.2017, 04.05.2017, 04.05.2017, 04.05.2017, 04.05.2017 respectively amounting to Rs. 2,50,000/-, Rs. 2,50,000/-,Rs. 2,50,000/-, Rs.
2,50,000/-, Rs. 25,00,000/-, Rs. 25,00,000/-, Rs. 25,00,000/-, and Rs.
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 2 of 20 25,00,000/-respectively all drawn on Axis Bank, Mayur Vihar Delhi, with an assurance of their encashment. The complainant presented the cheques in his account maintained at Indian Bank, Dwarka, Sector-10 Delhi, which all were returned with the remarks "Funds Insufficient" vide bank return memos dated 25.05.2017 and 26.05.2017. Thereafter, complainant through its counsel served a legal notice dated 05.06.2017 upon the accused persons demanding the said amount. Despite service of aforesaid notice, neither any reply was sent nor the money was repaid by the accused persons. Thereafter, complainant has filed the present complaint case with the submission that accused persons be summoned, tried and punished according to law.
3. In his pre-summoning evidence, director/AR of complainant Sh. Manu Bali examined himself as CW-1 on an affidavit Ex. CW-1/1. He reiterated the contents of complaint and placed on record documents Board Resolution Ex. CW-1/A(OSR); copy of agreement Ex. CW-1/B (from page no. 13 to 67 colly)(OSR); original cheques in question bearing numbers 327386, 327387, 327373, 327372, 327410, 327402, 327403 and 327405 are EX.CW1/C-1 to Ex.CW1/C-8 respectively; returning memos are Ex.CW1/D- 1 to Ex.CW1/D-8 respectively; legal notice is Ex.CW1/E; speed postal receipts are Ex.CW1/F-1 to Ex/ CW1/F-7; tracking reports Ex. CW1/G-1 to Ex. CW-1/G-7; DTDC court receipts Ex. CW1/H-1 to Ex. CW1/H-7, certificate under Section 65 B of Indian Evidence Act is Ex. CW1/I and board resolution of accused no.2 Ex. CW1/J (OSR).
4. Upon appreciation of pre-summoning evidence, accused no.1, 2 & 3 were summoned for an offence punishable under Section 138 of the Act. Accused no. 2 Narinder Kumar appeared as AR / Director of accused no.1 Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 3 of 20 company. Notice under Section 251 Cr.P.C. for this offence was framed upon accused no.1 through its director accused no.2 Narinder Kumar as well as accused no.2 Narinder Kumar and accused no.3 Indu Balal on 05.03.2020 to which both the accused persons pleaded not guilty and claimed trial. In notice under Section 251 Cr.P.C, accused no.2 Narinder Kumar admitted his signatures on the cheques in question. However, he denied filling of remaining details in the cheques in question. He also denied receiving of legal notice by him. He also stated that he is the director of M/s Keltech Infrastructure Ltd and managing the day to day affairs of the company. The complainant had purchased certain flats from accused no.1 company with promise of assured returns till possession. Accused persons have given the cheques in question as blank signed security cheques at the time of entering into agreement with complainant and also paid the assured return to the complainant. The flats of complainant were ready for possession in 2016. However, complainant told the accused persons to sell off the flats and give him the money. However, flats could not be sold due to slump in the market. The complainant has misused the blank signed security cheques.
5. Accused no.3 Indu Bala denied the signing of cheques in question as well as filling in the details in cheques in question by her. She also denied the receiving of legal demand notice by her. She also stated that she is a director in M/s Keltech Infrastructure Ltd. and not looking after the day to day affairs of the company. Same are looked after by her husband i.e accused no.2 Sh. Narinder Kumar. She is not aware of the transactions entered into between the complainant and accused company. She is also not aware as to the details of issuance of cheques in question by accused to complainant. Thereafter, matter was listed for complainant evidence.
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 4 of 20
6. AR of Complainant Sh. Manu Bali examined himself as CW-1. He was duly cross-examined by ld. Counsel for accused persons and vide separate statement of complainant, his evidence was closed vide order dated 14.02.2022.
7. Thereafter, statement of both the accused persons under Section 313 Cr.P.C. was recorded in which all the incriminating evidence were put to them to which both accused persons reiterated the stand taken by them in answer to notice U/s 251 Cr.P.C. Accused no. 2 Narinder Kumar admitted his signatures on cheques in question and denied the filling in remaining details in the cheques in question. He stated that he does not remember the receiving of legal notice by him. Accused no.2 Narinder Kumar again stated that he is the director of M/s Keltech Infrastructure Ltd and managing the day to day affairs of the company. The complainant had purchased certain flats from accused no.1 company. Accused persons have given the cheques in question as blank signed security cheques at the time of entering into agreement with complainant. The complainant company presented the cheques in the bank when the flats were under construction and he does not owe any liability towards the cheques in question.
8. Accused no.3 Indu Bala also stated the same facts as stated by her in notice under Section 251 Cr. P.C. She also stated that she was director of accused no.1 company from 2013 to 2016. Thereafter, she resigned in 2016 and again became the director of accused no.1 company in 2019. She is also not aware of as to the details of issuance of cheques in question by accused company to the complainant.
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 5 of 20
9. In statement, u/s 313 Cr.P.C both accused persons preferred to lead their defence evidence. However, at later stage, both accused persons denied to lead defence evidence and same was closed vide order dated 30.07.2022.
10. Thereafter, matter was listed for final arguments. It was argued by the Ld. counsel for the complainant that this is a fit case for conviction of the accused persons as all the essential ingredients of Section 138 of the Act read with Section 139 of the Act have been fulfilled and that the same has been aptly demonstrated by the complainant before the court. It was argued that accused no. 2 admitted his signatures on the cheques in his plea of defence recorded at the time of framing of notice under Section 251 Cr.P.C as well as in his statement U/s 313 Cr.P.C. It was argued that accused persons failed to raise the probable defence to disprove the case of complainant and to rebut the presumption under Section 139 NI Act. Therefore, accused persons be convicted for the offence under Section 138 of the Act.
11. Per contra, ld. Counsel for accused persons argued that there is no provision of assured return in the agreement in question. He further argued that as per the agreement, all the rights have already been vested in complainant and constructive possession was handed over to the complainant, then complainant cannot say that possession was not handed over to it. He further raised question on competence of AR of complainant who entered into the agreement with the accused company. He further argued that present transaction is illegal as certain regulations as per SEBI have not been complied with.
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 6 of 20
12. I have perused the entire record as well as evidence led by the complainant as well as by the accused.
13. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first:-
For the offence under Section 138 of the Act to be made out against the accused, the complainant must prove the following points, that:-
1. the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. 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.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. 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.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
14. The Act raises two presumptions in favour of the holder of the cheque i.e. Complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) and secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability.
Section 118 of the N.I Act provides :
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 7 of 20 "Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
Section 139 of the N.I Act further provides as follows: "Presumption in favour of holder - it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability".
15. For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
16. In the present case, accused no. 2 Narinder Kumar has admitted his signatures on the cheques in question, in the notice U/s 251 Cr.P.C and his statement U/s 313 Cr.P.C. Reference can be made to Judgment of Apex Court in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 8 of 20 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some 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. Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of aforestated legal position, let us carry out a scrutiny of the evidence led at the trial.
17. In the present case, the complainant by way of an affidavit led his own evidence testifying that cheques were issued to him in discharge of liability, after the complainant company had purchased certain flats from the accused no. 1 company. The cheques in question, dishonour memos of the cheques, legal demand notice and agreements were exhibited on record.
18. It is the case of complainant that it entered into an agreement with accused company for purchasing four flats as stated above. The time of handing over of possession is stated to be one year from the date of agreement. As per the agreement, accused promised to pay assured return and compensation till the possession and agreed to compensate complainant as accused failed to deliver the possession in time. Present case revolves around Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 9 of 20 eight cheques which are stated to be issued towards the payment of assured return amount along with damages and interest. Complainant has relied upon an agreement dated 4th November 2015 executed between complainant company and accused company as Ex. CW1/B. As per clause D of the agreement, the time of possession is stated to be 4th November 2016 i.e within one year. Another buyer agreement was executed along with this agreement. Article 4 of the buyer agreement lays down terms of possession of the unit. The execution of the agreement was not denied by accused no. 2 at any stage of the trial. Accused no.2 Narinder Kumar admitted in the notice under section 251 Cr.P.C that complainant company had purchased certain flats from accused company with promise of assured returns. Therefore, since the issuance of cheques in question is not disputed by accused company, the onus of proof is now upon the accused persons to raise a probable defence and to rebut the presumption The accused persons have primarily taken following defences before this court:
(1) That the cheques in question were issued for security purposes. (2) That the provision of "assured return" does not exist in builder-buyer agreement.
(3) That no document has been placed by complainant for extension of the time limit of the handing over of the flats.
(4) It is further argued that as per S. 11(AA) and S. 12(1B) of SEBI Act, 1992, complainant company requires a registration and complainant company is not registered. Thus, the transaction is illegal. (5) It is further argued that complainant has not filed Board resolution of AR of complainant company in view of provisions of Companies Act at Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 10 of 20 the time of execution of sale agreements.
Para wise appreciation of all the defence placed by accused is given as follows:-
19. Defence of security cheque:
It is the case of accused that present cheques in question were given as security cheques at the time of entering into agreement with complainant. However, it is apposite to mention that the accused persons have not led any evidence nor relied on any documents to further this defence.
In this regard, this Court deems fit to discuss the ratio laid down by Hon'ble High Court of Delhi in Y.S. Yadav vs Reena (2010) 172 DLT 561, which is as follows:
"Mere suggestion to the witness that cheques were issued as security or mere explanation given in the statement of accused under Section 281, Cr.P.C, that the cheques were issued as security, does not amount to proof."(Emphasis supplied)
20. Furthermore, the defence of security cheque has been discussed by Hon'ble High Court of Delhi at length in the case of Credential Leasing & Credits Ltd. Vs. Shruti Investments & Anr. (2015) 3 BC 691 wherein Hon'ble High Court has relied upon Suresh Chandra Goyal v. Amit Singhal, Crl. Appeal Nos. 601/2015 decided on 14.05.2015, holding that:
"There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be miracle situations in which the cheque issued by the accused may be called as security cheque, or may have been issued by way of a security, i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced. While in Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 11 of 20 some situations,the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."
(Emphasis laid)
21. Moreover, the Hon'ble SC in APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Ors. AIR 2020 SC 945 has noted that:
"However, to rebut the presumption, the Accused was required to lead the evidence that full amount due and payable to the Complainant has been paid. In the present case, no such evidence has been led by the Accused. The story put forward by the Accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption." (Emphasis supplied)
22. Recently, Hon'ble Supreme Court in Sripati Singh (since deceased) through his son Gaurav Singh v. State of Jharkhand and Anr.,CRIMINAL APPEAL NOS. 1269- 1270 OF 2021, decided on 28.10.2021 has held that:
"A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow." (Emphasis laid).
23. It is pertinent to note that no proof has been furnished by the accused persons to establish their defence. It is settled law that the presumption under section 139 of NI Act cannot be rebutted upon a mere denial. The same can be rebutted by the accused only by leading cogent evidence. Thus, on the mere averment of the accused persons unsubstantiated by any cogent evidence, it is not proved that the cheques in question were given as security only and not for any legally enforceable debt/liability. Moreover, even for a Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 12 of 20 moment, if it is believed that the cheques in question were given for security purpose to complainant, the accused never demanded the complainant to return his cheques. The accused has failed to justify as to why no such steps were taken by him. Accordingly, this defence of accused is rejected.
24. Defence no. 2: The defence taken by accused in the present case is that there is no provision of assured returns in the presnt agreement. However, Article 4 of agreement executed between both the parties, EX. CW1/B provides provision of Possession of the Unit, 3 rd para of which states:-
"The promoter hereby agrees to compensate the Apartment Allottee(s) @ 5/- per sq.ft. of super area per month for any delay in handing over the possession of the unit beyond the given period adding the grace of 06 months in lieu of any unforeseen circumstances. The compensation amount will be calculated after the lapses of the above mentioned Grace period and shall be adjusted/ paid at the time of possession. However, the compensation is only applicable subject to the condition that no payments are left due to the Apartment Allottee(s) against installment or any other charges".
25. Thus, it is specifically mentioned that in case of failure to deliver the unit within stipulated time, promoter would pay the compensation @ Rs. 5 per sq ft of super area per month for any delay. Thus, Article 4 of the agreement clearly stipulated that seller was to compensate the buyer @ Rs.5 per sq. ft. of super area per month for delay in handing over the possession of the unit and the cheques in question were issued for compensation as well as assured return as accused failed to deliver the possession in time. Thus, this defence of accused that there was no provision of assured return or compensation falls flat.
26. Defence 3 : Ld. Counsel for accused argued that when time period for Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 13 of 20 delivery of possession was one year, why complainant extended the time without executing any agreement in writing. It is to be noted that accused no.2 has not denied execution of sale agreement with complainant company. Signatures of accused no. 2 Narinder on sale agreement Ex. CW1/B and cheques in question are admitted by way of non denial. Merely just because no document in writing for extension of time period is filed on behalf of complainant, does not go adverse to the case of complainant as the presumption u/s 118 is in favour of complainant.
27. Further, accused no. 2 Narender Kumar had admitted in his notice U/s. 251 Cr.P.C., that accused company promised for assured returns till possession. Both the parties were not required to execute any document in writing as accused company has not denied that assured returns were not promised to complainant in the case of failure in delivery of flats. Even otherwise, the case of complainant is premised on the ground that delivery of possession of flats was not made to complainant in time and that is why present cheques were issued by accused to complainant. Even though, it is disputed by accused that flats were not handed over in time, no proof of the same has been adduced in support of the defence that flats were ready to be handed over in time. If the flats were ready in time, accused persons had no occasion to issue present cheques in question. In view of aforesaid discussion, it is held that there is no force in this defence of the accused as well.
28. Defence 4 & 5: It is further argued that as per S. 11 AA and 12(1B) of SEBI Act, 1992, complainant company required registration which is not the case here. It is to be noted that the present transaction does not come in the Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 14 of 20 purview of "Collective Investment Scheme". It was a simple contract of sale and purchase between accused company and complainant. Accused company cannot be allowed to raise such irrelevant arguments at the stage of final arguments when in the entire cross-examination they did not challenge the validity of transaction in question. Furthermore, complainant company is a private company and not a listed company which would require compliance of SEBI Act. Accused is not able to explain how these transactions came in purview of collective investment scheme as laid down in section 11AA OF SEBI. . It is not the case of accused persons that complainant company has security listed on the stock exchange, making it a listed company. No document has been placed to show that complainant is a listed company.
29. Another defence taken by accused company is that AR of complainant company did not have any authority to enter into agreement in question with accused company. It is to be noted that accused has admitted the signatures upon agreements Ex. CW-1/B. Accused has no locus to challenge the capacity of AR in execution of aforesaid agreements. At best, this can be inter-se issue between complainant company and AR. The agreements Ex. CW-1/B bears signatures of AR for the complainant as well as accused no. 2 i.e. Director of accused company. Complainant company is not required to file any Board of Resolution of AR for entering into present agreements as the execution of agreements are already not in dispute. Accused cannot raise legality of the agreement in question when in the entire trial, accused company has admitted execution of transaction and agreements with complainant company.
30. Defence 6:That ownership of scheduled properties still lies in the name Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 15 of 20 of complainant.-
Clause 2 of the agreement Ex. CW1/B provides that both the parties had agreed that seller shall transfer in favour of the buyer all its rights to the said properties by virtue of separate buyer's agreement. Clause 5 of the same agreement provides refund of the entire sale consideration in case seller failed to complete the construction. Then, complainant cannot ask for refund of consideration amount of all the flats as the ownership lies with the complaint. However, Ld. Counsel for the accused failed to lead any evidence to show that the scheduled properties are in name of complainant. Interestingly, the foundation of the case of complainant is this only that accused failed to deliver the possession of flats, thus, accused persons are liable to return the consideration amount. The word used in clause 2 is "shall" and not "has been". The execution of agreement only does not infer that all the rights were transferred in favour of complainant without the accused fulfilling its obligation to handover the unit in time. It merely gives an inference that seller was supposed to transfer all rights in favour of complainant (buyer). Thus, this defence of accused also does not hamper the case of complainant.
31. Furthermore, the judgments in another connected matters with respect to same nature of transaction between the same parties have already been pronounced, in which legality of transaction was not challenged by accused persons by referring to provision of SEBI or competence of authority of AR to enter into present transaction in question. Another argument, though discussed earlier, is that AR of the complainant company was not competent to enter into agreement with accused company. Interestingly, no such argument was made by Ld. Counsel for accused in another connected matters. Thus, all the defences taken by accused does not rebut presumption Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 16 of 20 u/s 118 NI Act.
32. The accused persons have also denied receipt of legal demand notice under section 138 of the Act. However, it is worth noting that the address of the accused no. 1 company as mentioned in legal demand notice is the same as the address of accused no. 1 company in agreement Ex. CW1/B i.e. 7, I.P. Building, E-109, Pandav Nagar, Delhi - 110092. Moreover the address of accused no. 2 Narinder Kumar as mentioned in the legal demand notice is also the same as his address in notice under section 251 Cr.P.C., statement of accused under section 313 Cr.P.C and his bail bonds i.e. 502, Parivar Apartment, IP Extension, Plot No. 30, New Delhi - 110092.
Moreover the accused no.2 has not brought on record any evidence to show that he was not residing at above address at time of legal notice. The above shows that legal notice was sent at correct address of both accused no. 1 and accused no. 2. Once the legal notice is proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal notice sent to address of accused was delivered to him.
In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. In Rangappa v. Mohan (supra), the Apex Court Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 17 of 20 held:
"Furthermore, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version."
The decisions in Santosh Mittal v. Sudha Dayal, 2014 (8) AD (Delhi) 268, and G.L. Sharma v. Hemant Kishor 2015 (2) AD (Delhi) 340, are also to the same effect.
33. Moreover as per the dicta of Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, If the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance.
34. Thus, on considering of the totality of factors pleaded by the accused in his defence, it becomes clear that complainant has duly proved his assertions that accused company did not handover the possession of flats within 12 months from date of agreement and in pursuance of the agreement, accused company was liable to pay assured returns and compensation till the date of possession for which the present cheques in question were issued and got dishonoured. Accused no. 1 & 2 have merely paid lip service to its defence and has not led any material defence to establish it or draw any circumstance against the case of complainant which probablilizes his defence. Mere bald averments of cheques being issued as security cheques and assertions that flats were ready for possession in 2016 would not operate Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 18 of 20 to absolve accused no.1 and 2 of their liability.
35. Before proceeding further, it is relevant to discuss liability of accused 3 Ms. Indu bala. Since accused 2 Narender Kumar has admitted that he signed on the cheques in question, it is clear that accused no.3 is neither the signatory of the cheques nor executed any agreements with the complainant. Further, complainant has not placed any document to show specific role of accused no.3 in the entire transaction. Even though, she is a director of the company, criminal liability u/s 138 of NI Act cannot be fastened upon her.
36. In view of the above, this court is of the considered opinion that apart from not raising a probable defence, the accused no.1 and 2 were not able to contest the existence of a legally enforceable debt or liability. The complaint disclosed the existence of a legally enforceable debt or liability vide agreements in question, cheques in question, return memos and the legal notice brought on record. However, accused no.1 & 2 failed to rebut the presumption in favour of complainant either on the basis of material available on record or by adducing any cogent and reliable defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
37. Accordingly, the accused no.1 M/s Keltech Infrastructure ltd and accused no.2 Narinder Kumar are convicted and accused no.3 Indu Bala is acquitted for the offence under Section 138 of Negotiable Instruments Act, 1881.
38. Let the convicts be heard on quantum of sentence.
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 19 of 20
39. Copy of Judgment be supplied to the convicts free of cost.
Priya Digitally signed
by Priya Janghu
Janghu Date: 2023.03.02
16:08:41 +0530
ANNOUNCED IN THE OPEN COURT (PRIYA JANGHU)
nd
TODAY i.e. 2 March, 2023 METROPOLITAN MAGISTRATE
DWARKA DISTRICT COURTS/ DELHI
Paramount Infratek Pvt. Ltd. vs. M/s Keltech Infrastructure ltd. & Ors CC No. 14286/2017 Page no. 20 of 20