Delhi District Court
Girdhar Impex Ltd vs A And A Automobiles Pvt. Ltd on 16 July, 2024
IN THE COURT OF MS. POONAM SINGH
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-01,
NEW DELHI DISTRICT, PHC, NEW DELHI
1.Complaint Case Number : 7722/2020
2. Name & address of the : Girdhar Impex Limited complainant 66, Gujrat Vihar, Delhi-110092.
3. Name and address : 1. A&A Automobiles Pvt. Ltd.
of the accused C-22, Site C, UPSIDC Industrial Area, Surajpur, Gautam Budh Nagar, Noida, UP-201306.
E-mail:
[email protected] M-9810020295 Also at : E-7, Sector 63, Phase-III, Noida, Gautam Budh Nagar, UP.
Also at: N-176, First floor, Panchsheel Park, New Delhi-
110017.
2. Ashish Anand Authorized signatory A&A Automobiles Pvt. Ltd.
N-176, First Floor, Panchsheel Park, New Delhi-110017.
E-mail:
[email protected] M-9810020295
3. Amarpreet Anand Director, A&A Automobiles Pvt.
Ltd.
N-176, First Floor, Panchsheel Park, New Delhi-110017.
E-mail:
[email protected] m M-9811120295
4. Aditi Anand Director, A&A Automobiles Pvt.
Ltd.
N-176, First Floor, Panchsheel Park, New Delhi-110017.
4. Offence complained : Section 138 read with Section 141, Negotiable Instruments Act, 1881.
5. Plea of the guilt : Pleaded not guilty Digitally signed
6. Final Order Qua;
by POONAM POONAM SINGH Date:
SINGH Accused no. 1 : Acquitted 2024.07.16 17:56:05 +0530 CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 1/23 Accused no. 2 : Acquitted Accused no. 3 : Acquitted Accused no.4 : Not summoned
7. Date of institution : 07.09.2020
8. Date on which : 04.06.2024 reserved for judgment
9. Date of judgment : 16.07.2024 BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Vide this judgment, this court shall dispose of the aforementioned complaint case filed by the complainant company namely Girdhar Impex Ltd. against the Accused no. 1 namely, A&A Automobiles Pvt Ltd, Accused no.2 Ashish Anand and Accused no.3 Amarpreet Anand in respect of the dishonour of four cheques bearing no. 656774 dated 03.04.2020 for an amount of Rs.4,37,400/- (Rs. Four Lacs Thirty Seven Thousand Four Hundred only), no. 656775 dated 03.05.2020 in the sum of Rs. 4,37,400/- (Rs. Four Lacs Thirty Seven Thousand Four Hundred only), no. 656776 dated 03.06.2020 in the sum of Rs.4,37,400/- (Rs. Four Lacs Thirty Seven Thousand Four Hundred only) and no. 656777 dated 03.07.2020 in the sum of Rs.4,37,400/- (Rs. Four Lacs Thirty Seven Thousand Four Hundred only) all drawn on Punjab National Bank, Sector 1, Noida, (UP)-201301 (hereinafter referred to as the "cheques in question").
2. Tersely, it is the case of the complainant company that it is the owner of property bearing Plot no. E-7, Sector 63, Noida, Phase III, Noida District Gautam Budh Nagar, Uttar Pradesh admeasuring 1950 sq. mtrs. (hereinafter referred to as the 'demised premises') and the complainant CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 2/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:56:17 +0530 had let out the said property on rent to the accused no.1 company (through accused no.2) under the lease deed dated 15.11.2019. It is further the case of complainant that the accused persons assured the complainant that the rent and other charges will be paid by them to the complainant from 01.09.2019 onwards. It is further the case of the complainant that during the pandemic Covid-19, accused no.2 requested the complainant for waiver of rent for the lockdown period vide e-mails dated 01.05.2020, 05.05.2020, 14.05.2020 and 20.05.2020 respectively.
3. It is case of the complainant that in discharge of their aforesaid debt and liability, the accused persons had issued the cheques in question in favour of the complainant company and when the same were presented for encashment, they were returned dishonored with remarks "payment stopped by drawer" vide bank return memos all dated 03.07.2020 and no payment was made to the complainant company even after 15 days of service of legal demand notice dated 24.07.2020 upon the accused persons and hence the complainant company moved this court with the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act").
4. In pre-summoning evidence, AR of the complainant company examined himself as CW-1 on affidavit being Ex. CW1/A and placed reliance on the complaint and certain documents i.e. original resolution dated 01.09.2020 being Ex.CW1/1, copy of lease deed dated 15.11.2019 being Ex. CW1/2, e-mails being Ex.CW1/3 (Colly), CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 3/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:56:27 +0530 cheques in question being Ex.CW1/4 to Ex.CW1/7, cheque return memos being CW1/8 to Ex. CW1/11, copy of legal notice dated 24.06.2020 being Ex.CW1/12, copy of legal demand notice dated 24.07.2020 being Ex. CW1/13, original postal receipts being Ex.CW1/14 (Colly), speed post receipts being Ex.CW1/15 (Colly), e-mail dated 02.09.2020 being Ex. CW1/16, copy of tracking reports being Ex.CW1/17 (Colly) and Ex.CW1/18 (Colly), copy of WhatsApp message being Ex.CW1/19 (Colly), Notice dated 31.07.2020 being Ex.CW1/20, copy of the courier receipt being Ex.CW1/21 (Colly), copy of the tracking report being Ex.CW1/22 (Colly), copy of the e-mail being Ex.CW1/23, copy of the WhatsApp being Ex.CW1/24, copy of the reply dated 06.08.2020 being Ex.CW1/25, copy of the e-mail dated 08.02.20 being Ex.CW1/26, copy of the reply dated 29.08.2020 being Ex.CW1/27, copy of the courier receipt being Ex.CW1/28, Copy of the tracking report being Ex.CW1/29, copy of the e-mail being Ex.CW1/30, copy of the WhatsApp being Ex.CW1/31, copy of the letter dated 31.08.2020 being Ex.CW1/32, Certificate U/s 65-B Indian Evidence Act being Ex.CW1/33 and certificate dated 01.09.2020 issued by the bank of the complainant being Ex.CW1/34.
5. Upon prima facie consideration of the pre-summoning evidence, accused no.1 to 3 were summoned. Accused no. 2 represented the accused no.1 company during the course of the present trial.
6. Notice under Section 251, Cr.P.C. was served upon accused no. 1 through accused no. 2, accused no. 2 and CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 4/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:56:38 +0530 accused no.3 to which they pleaded not guilty. Accused no. 2 stated that the cheques in question belong to accused no.1 company and they have been signed by the accused no.3. He further stated that other particulars on the cheques in question have been filled by accounts department of accused no.3 on his instructions and he was the managing director of accused no.1 company at the time of issuance of the cheques in question and he was also in charge of day-to-day affairs of the accused no.1 company. He admitted the receipt of the legal demand notice as well as his reply. He further stated that the cheques in question were post-dated cheques which were given to the complainant at the time of signing of the lease deed. He further stated that at the time of lease deed, complainant was supposed to get prior permission regarding the automobiles project as well as the subleasing through his company from Noida Authority which they did not get. He further stated that since the complainant company did not get the permission, he had stopped the payment of the cheques in question.
7. Accused no.3 stated that the cheques in question belong to accused no.1 company and she was the director of the accused no.1 company at the time of issuance of the cheques in question and she was also in charge of day-to- day affairs of the accused no.1 company. She further stated that she did not know whether she had received the legal demand notice from the complainant company or not, but admitted the address mentioned on the same. She further stated that the cheques in question were given to the CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 5/23 Digitally signed POONAM by POONAM SINGH SINGH Date: 2024.07.16 17:56:52 +0530 complainant against the rent due as they were tenants in the property of the complainant.
8. At this stage, admission and denial of documents under Section 294 Cr.P.C was conducted whereby the accused no.1 through accused no.2 and accused no.2 admitted the genuineness and correctness of the cheques in question, bank return memos and legal demand notice. Accordingly, two witnesses were dropped from the list of complainant witnesses.
9. Admission and denial of documents under Section 294 Cr.P.C was conducted whereby the accused no.3 admitted the genuineness and correctness of the cheques in question and bank return memos. Accordingly, two witnesses were dropped from the list of complainant witnesses.
10.After an application under Section 145 (2) of NI Act moved on behalf of the accused persons was allowed, AR of the complainant company was recalled for his examination.
11.Sh. Sagar Mehta, AR of the complainant, who deposed as CW-1 was examined-in-chief, cross-examined and discharged.
12.Complainant has also examined Sh. D.R. Mehta who deposed as CW-2 by way of affidavit being Ex.CW2/A. He has relied upon document being Ex.CW2/1 (OSR), Ex.CW1/2 to Ex.CW1/7, Ex.CW1/5 and Ex.CW1/26. He has also relied upon copy of lease deed dated 02.06.2005 being Mark A. He was cross-examined and discharged. Complainant evidence was closed vide separate statement of CW2 on 16.03.2023.
CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 6/23 Digitally signed by POONAMPOONAM SINGH SINGH Date:
2024.07.16 17:57:23 +0530
13.Thereafter, statements of accused persons under Section 313 Cr.P.C. read with Section 281 Cr.P.C. were recorded. At this stage, the accused no. 2 maintained his defence being taken at the time of notice U/s 251 Cr.PC. He admitted documents i.e. Ex.CW1/2, Ex.CW1/3 (Colly) to Ex.CW1/13, Ex.CW1/20 and Ex.CW1/26. He further stated that prior to the execution of the lease deed Ex.CW1/2, he was not informed that the demised premises could not have been sublet for running Automobile Service Center. The accused No.2 chose to lead defence evidence.
14.Accused no.3 has also maintained her defence being taken at the time of notice U/s 251 Cr.PC. She admitted documents i.e. Ex.CW1/2 to Ex.CW1/12 and Ex.CW1/25. She also chose to lead defence evidence.
15.During his examination-in-chief, the accused no.2 relied upon copy of the board resolution dated 25.01.2021 being Mark DW1/A, copy of lease deed dated 15.11.2019 already Ex.CW1/2, original dealership agreement dated 03.10.2019 entered into between the accused no.1 company and Tata Motors being Ex.DW1/B, copy of the lease deed dated 02.06.2005 entered into between the complainant and the Noida Authority being Mark DW1/C, copy of the memorandum of understanding dated 04.03.2019 entered into between the complainant and the accused being Mark DW1/D, copy of the memorandum of association of the accused no.1 company dated 04.04.2019 being Mark DW1/E, copy of the Whatsapp conversation between the complainant and the accused being Ex.DW1/F, copy of the application for rent permission for CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 7/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:57:35 +0530 industrial/ institutional premises and a copy of the project report being Mark DW1/G, copy of the application for consent to establish (NOC) dated 27.09.2019 by the accused to the Uttar Pradesh Pollution Control Board being Mark DW1/H, copy of the photographs of the ongoing service work and repair work at the premises in question being Mark DW1/I-1 to I-7, copy of the e-mails exchanged between the complainant and the accused being Ex.DW1/J, copy of the letter/ mail from the accused to Noida Development authority dated 19.02.2021, 22.02.21 and 03.3.21 being Mark DW1/K, copy of the policy and procedure for industrial, property management of the Noida authority- October 2012 being Mark DW1/L, copy of the affidavit filed by the Noida Authority before the Allahabad High Court in WP (C) No. 20408/2021 being Mark DW1/M, copy of the whatsapp conversation between Mr. Nitin Ahuja and the accused being Ex.DW1/N, copy of the legal notice dated 24.06.2020 being Mark DW1/O, copy of the e-mails dated 01.05.2020 to 21.05.2020 being Ex.DW1/P, copy of the notice dated 31.08.2020 sent by Noida Authority to the complainant being Mark DW1/Q, copy of the letters dated 04.03.2021 & 08.03.21 sent by the accused to the complainant being Mark DW1/R, e-mail dated 04.3.2021 sent by me to Sh. D.R Mehta being Ex.DW1/S, copy of the order of Hon'ble High Court of Delhi in OMP (1) (Comm.) NO.1 of 2021 dated 27.01.2021 being Mark DW1/T, Certificate U/s 65 B Indian Evidence Act in support of whatsapp and e-mails is Ex.DW1/U. He was duly cross-examined by Ld. Counsel CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 8/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:57:43 +0530 for the complainant and discharged. Vide separate statement of the accused no.2, DE was closed on 20.12.2023.
16.Final arguments were heard and concluded on behalf of both the parties on 04.06.2024. Written submissions were also filed on behalf of both the parties.
17.Defence of the accused persons as revealed at different stages of the trial is broadly three-fold- Firstly; that there is no legally enforceable debt or liability of the accused no. 1 company as on the date of drawl or presentation of the cheque in question. Secondly, that the accused persons had bonafide reasons to issue 'stop payment' instructions to the banker against the encashment of the cheques in question despite having sufficiency of funds in the account maintained by the accused no. 1 company. Lastly, it is the specific defence of accused no 2 and 3 that since no offence under Section 138 NI Act is made out against the accused no. 1 company, they cannot be held vicariously liable for the said offence
18.Rival submissions have been considered and record of the case has been carefully perused.
19.Before delving into the facts of the present case, it is relevant to discuss the law applicable to the present proceedings. In the cases where the offence under Section 138 of the NI Act is allegedly committed by a company or a partnership firm, subsection (1) of Section 141, NI Act provides for the vicarious liability of every person who, at the time of offence was committed, was in charge of and was responsible to the company/partnership firm for the CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 9/23 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.07.16 17:57:49 +0530 conduct of its business, exception being when such person proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. Further, subsection (2) of the Section provides that notwithstanding anything contained in subsection (1), where any offence under NI Act has been committed by a company/partnership firm and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company/partnership firm, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
20.Since in the case at hand, the liability has been primarily imputed to the accused no.1 company under Section 138 NI Act being the drawer of the cheque in question and vicariously upon the accused no. 2 and 3 by virtue of their position as its directors at the time of issuance and presentation of the cheque in question in terms of Section 141 NI Act, at the very outset, it becomes imperative to first scrutinize whether the accused no. 1 company can be held liable for the alleged offence under Section 138 NI Act, if any, committed by it.
21.To bring home a liability under Section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, which are:CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 10/23 Digitally signed by POONAM
POONAM SINGH SINGH Date:
2024.07.16 17:57:57 +0530 "(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.
(c) 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.
(d) The aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
(e) 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.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand."
22.Once the other ingredients mentioned in the foregoing paragraph are established by the complainant, then as soon as the execution of impugned cheque is admitted by the accused, a factual base is established to invoke the presumption of cheque having been issued in discharge, in whole or in part, of any debt or other liability by virtue of Section 118(a) read with Section 139 of NI Act. This is a reverse onus clause, which means that unless the contrary is proved, it shall be presumed that the impugned cheque was drawn by the accused for a consideration and that the complainant had received it in discharge of a debt/ liability from the accused. In the case titled Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, it was held by Hon'ble Supreme Court of India that once the accused has admitted the signatures on the cheque in question, then the court is bound to raise presumption under Section 139 NI Act.
CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 11/23 Digitally signed by POONAMPOONAM SINGH Date:
SINGH 2024.07.16 17:58:03 +0530
23.It has been held by Hon'ble Supreme Court of India in the judgment titled Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 that a reverse onus clause usually imposes an evidentiary burden and not a persuasive burden and when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. It was further held that the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.
24.In the present case, in order to discharge his initial burden to prove the above-mentioned ingredients, the AR of the complainant company relied upon his affidavit being Ex. CW1/A and placed on record documents mentioned hereinbefore. Ld. Counsel for the complainant submitted that it has been admitted by the accused persons that the cheques in question belonged to accused no. 1 company and bear the signatures of accused no.3 and hence presumption of the cheque in question having been issued by accused no.1 company in discharge of debt or other liability arises in favour of the complainant company in terms of Section 118(a) read with Section 139 of NI Act. He further argued that the genuineness and correctness of the cheque in question being Ex.CW1/4 to Ex.CW1/7, cheque return memos being CW1/8 to Ex. CW1/11, copy CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 12/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:58:10 +0530 of legal demand notice dated 24.07.2020 being Ex. CW1/13 is not disputed. Further, the fact that the complainant company received no payment within 15 days of the service of the legal demand notice, duly proves all the ingredients of the offence under Section 138 NI Act. He thus submitted that since all the ingredients laid down under Section 138 NI Act are fulfilled, the accused no. 1 company should be convicted and accused no. 2 and 3 shall be held vicariously liable under Section 141 of the NI Act.
DEFENCE OF ABSENCE OF A LEGALLY ENFORCEABLE DEBT/LIABILITY
25.Accused has raised the defence that there is no legally enforceable debt or liability in favour of the complainant company and against the accused no. 1 company to the tune of the amount mentioned on the cheques in question as on the date of their drawl or presentation. The learned counsel on behalf of the accused argued that the cheques in question were obtained by fraud from the accused by the complainant not for a lawful purpose. The learned counsel for accused further argued that the cheques in question were post-dated cheques given to the complainant towards rent of the demised premises under a lease deed dated 15.11.2019, and it is the case of the accused that the complainant could not have let out the premises to the accused without taking prior written permission from the Noida Authority. It has been further argued on behalf of the accused that the complainant breached the laws and regulations of the NOIDA Authority while subletting the CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 13/23 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.07.16 17:58:16 +0530 property to the accused and obtained 57 post-dated cheques, cheques in question being four of them, for the purpose of securing payment of the rent towards the demised premises. It is the defence of the accused that since the lease deed dated 15.11.2019 is invalid therefore the claim for rent under the said lease is also not legally enforceable claim and the accused owed no legally enforceable liability to pay the rent for the demised premises to the complainant company.
26.Per contra, the counsel for complainant company argued that it is an admitted fact that a duly registered lease deed was executed between the parties dated 15.11.2019 for letting out the demised premises to the accused for nine years and that 57 postdated cheques were given by the accused to complainant towards monthly rental of the demised premises. Learned counsel for the complainant further argued that it is also not disputed that the accused was in the possession of the demised premises from 01.09.2019 to 18.08.2021 and the cheques in question were towards payment of rent for the months April to July 2020. Since the accused were in possession of the demised premises during the period for which the cheques in question were issued, the accused is also legally liable to pay the rent for the said duration to the complainant and cannot be unjustly enriched by enjoying the property without paying any rent for it. Further it was argued on behalf of the complainant that the demised premises was sealed by the NOIDA authority due to the acts of the accused and not due to the acts of the complainant as the CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 14/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:58:23 +0530 accused was using the demised premises for commercial activity whereas the premises was let out only for the purpose of running a service center and repair work.
27.To prove the defence of no legally enforceable debt and liability towards the complainant, learned counsel on behalf of the accused has cross-examined CW1 and CW2.
CW1 who is the AR of the complainant company deposed in his cross-examination that the complainant company had obtained the demised premises through a lease from the NOIDA Authority, UP. Further CW2 who is father of CW1 was also examined and cross-examined. CW2 during his cross-examination brought on record the copy of lease deed dated 02.06.2005 executed between the NOIDA authority and complainant company which is Mark A. As per this aforementioned lease deed dated 02.06.2005, complainant company is a lessee of the demised premises. Clause III (1) of the aforesaid lease deed clearly mentions that the demised premises was let out to the complainant company only for the purposes of "manufacture of readymade garment w/o dying and bleaching". And the complainant company could not use or permit to be used the let-out property for any other purpose without the consent in writing of the NOIDA Authority. Further Clause III (12) of the aforementioned lease deed stated that the lessee/complainant company shall not transfer, relinquish or assign his interest in the demised premises without the previous consent in writing of the Lessor i.e. the NOIDA authority. The fact that the complainant company did not obtain any such previous consent in CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 15/23 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.07.16 17:58:29 +0530 writing of the NOIDA authority either for the change of use or for subletting the property to the accused no. 1 company is not disputed.
28.Further the accused no. 2 examined himself as DW 1 and deposed that a dealership was awarded to the accused by the Tata Motors and thereafter MOU was entered between the accused and the complainant. He further deposed that as per the MOU the accused no 1 company spent around 70-80 lacs for building the desired structure at the said vacant plot of the complainant and the complainant was to get the permission from the NOIDA authority to rent out the premises to the Accused no.1 company. DW1 further deposed that the complainant company failed to obtain the rental permission from the NOIDA authority and in absence of such rental permission, Tata Motors did not permit the accused to carry out the business as per the dealer ship agreement. Accused no. 2/DW1 filed the original dealership agreement dated 03.10.2019 entered into between the accused no.1 company and Tata Motors and the copy of MOU entered between the accused and the complainant company dated 03.10.2019. DW1 has also filed WhatsApp and e-mail conversations between DW1 and CW 2 which are EX DW1/F and DW1/J respectively to show that repeated requests to the complainant for obtaining rental permission were made on behalf of the accused. Further DW1 has also put on record the copy of policy and procedure for industrial, property management of the NOIDA authority, October 2012 which is Mark DW1/L to show that no direct correspondence from the CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 16/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:58:37 +0530 tenant for obtaining rental permission could have been entertained by the NOIDA authority and it was the responsibility of the complainant only to obtain the rental permission from the NOIDA Authority.
29.Further it argued on behalf of the accused that since the complainant failed to obtain a rental permission from the NOIDA Authority, the accused was facing difficulty in carrying out its business of TATA Motors Dealership and therefore requested the complainant to not to present the cheques in question in the bank until the rental permission is obtained. DW1 has also put on record the copy of legal notice dated 24.06.2020 sent on behalf of the accused no.1 company to the complainant stating that since the rental permission has not been obtained by the complainant, the complainant shall stop using the postdated cheques given by the accused at the time of executing the lease deed for payment of rent until the rental permission is obtained by the complainant.
30. It is also pertinent to note that the demised premises for the payment of rent of which the cheques in question were issued by the accused was sealed by the NOIDA authority on 18.08.2019 and accused has filed a copy of the counter affidavit filed on behalf of the NOIDA authority before the Hon'ble Allahabad High Court in WP No. 20408/2021 filed by the Accused No. 1 Company. In the counter affidavit filed on behalf of the authority it is stated that the complainant company who is the original allotee of the demised premises acted in violation of terms and conditions of the lease deed dated 02.06.2005 by subletting CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 17/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:58:50 +0530 the demised premises to the accused without obtaining prior permission of the authority. Further it was also stated that the premises was let out for specific purpose of manufacture of "readymade garments w/o dying and bleaching" and the complainant again violated the terms and conditions of the lease by permitting it to be used for purpose other than the one mention in the lease without taking prior permission of the authority in writing.
31. As the accused persons have admitted that the cheques in question belong to the accused no.1 company and bears the signature of Accused no 3, the presumption under section 139 NI Act read with Section 118 (a) NI Act that the accused issued the cheque in question to complainant for discharge of a debt or liability arises in the favor of the complainant. But it also the settled law that this presumption is rebuttable by the accused and standard of proof for rebutting this presumption is that of preponderance of probabilities. In light of the above discussion, it is clear that in the case in hand the accused is able to prove that the complainant was the lessee of the demised premises and not its owner. By the lease deed dated 02.06.2005, the complainant only acquired a limited right of leasehold to use the demised property only for a specific purpose. Further the complainant did not have the right to sublet and to change the use of the premises without the prior consent of the authority in writing. It is a settled principle of law that a person cannot transfer that which he does not have.CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 18/23 Digitally signed by
POONAM POONAM SINGH SINGH Date: 2024.07.16 17:58:56 +0530
32.The accused has been successful in proving by preponderance of probabilities that the lease deed dated 15.11.2019 of the sublease of the demised premises by the complainant to the accused was in violation of the terms and conditions of the parent lease deed dated 02.06.2005 between the complainant and the NOIDA Authority. If the agreement between the parties was itself void, any claim arising out of it shall also be not legally enforceable.
33.It is also the case of the accused that the cheques in question were not dishonored due to "Insufficiency of Funds" but was dishonored due to "Payment stopped by Drawer". It is the case of the accused that there were sufficient funds in the account of the accused company but the cheques were dishonored by instructions of "Stop Payment" after giving due notice to the complaint based on bonafide reasons as the complainant has failed to obtain the rental permission from the NOIDA Authority which was precondition for the complainant to sublet the premises. Reliance is placed on the judgment of the Hon'ble Delhi High in Icon Buildcon Pvt. Ltd. V. Aggarwal Developers Pvt. Ltd. 2014 SCC OnLine Del 1563 wherein it was held that the presumption that cheque was issued in discharge of legally enforceable debt and liability shall also arise in case of dishonor of cheque on instructions of "Stop Payment" however this presumption can be rebutted by showing that the Stop payment instructions were issued bonafide. In a concurring judgment of Gyan Sudha Mishra, J, in Laxmi Dyechem v.
CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 19/23 Digitally signed by POONAMPOONAM SINGH SINGH Date:
2024.07.16 17:59:03 +0530 State of Gujarat, (2012)13SCC 375, it was clarified as under:
"7. As already noted, the Legislature intends to punish only those who are well aware that they have no amount in the bank and yet issue a cheque in discharge of debt or liability which amounts to cheating and not punish those who bona fide issues the cheque and in return gets cheated giving rise to disputes emerging from breach of agreement and hence contractual violation. To illustrate this, there may be a situation where the cheque is issued in favour of a supplier who delivers the goods which is found defective by the consignee before the cheque is encashed or a post-dated cheque towards full and final payment to a builder after which the apartment owner might notice breach of agreement for several reasons. It is not uncommon that in that event the payment might be stopped bona fide by the drawer of the cheque which becomes the contentious issue relating to breach of contract and hence the question whether that would constitute an offence under the NI Act. There may be yet another example where a cheque is issued in favour of a hospital which undertakes to treat the patient by operating the patient or any other method of treatment and the doctor fails to turn up and operate and in the process that patient expires even before the treatment is administered. Thereafter, if the payment is stopped by the drawer of the cheque, the obvious question would arise as to whether that would amount to an offence under Section 138 of the NI Act by stopping the payment ignoring Section 139 which makes it mandatory by incorporating that the offence under Section 138 of the NI Act is rebuttable. Similarly, there may be innumerable situations where the drawer of the cheque for bona fide reasons might issue instruction of 'stop payment' to the bank in spite of sufficiency of funds in his account.
8. What is wished to be emphasized is that matters arising out of 'stop payment' instruction to the bank although would constitute an offence under Section 138 of the NI Act since this is no longer res-integra, the same is an offence subject to the provision of CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 20/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:59:10 +0530 Section 139 of the Act and hence, where the accused fails to discharge his burden of rebuttal by proving that the cheque could be held to be a cheque only for discharge of a lawful debt, the offence would be made out. Therefore, the cases arising out of stop payment situation where the drawer of cheques has sufficient funds in his account and yet stops payment for bona fide reasons, the same cannot be put on par with other variety of cases where the cheque has bounced on account of insufficiency of funds or where it exceeds the amount arranged to be paid from that account, since Section 138 cannot be applied in isolation ignoring Section 139 which envisages a right of rebuttal before an offence could be made out under Section 138 of the Act as the Legislature already incorporates the expression "unless the contrary is proved" which means that the presumption of law shall stand and unless it is rebutted or disproved, the holder of a cheque shall be presumed to have received the cheque of the nature referred to in Section 138 of the NI Act, for the discharge of a debt or other liability. Hence, unless the contrary is proved, the presumption shall be made that the holder of a negotiable instrument is holder in due course."
34.In the case in hand it is argued on behalf of the accused that the accused was having hardships in carrying out his business from the demised premises in absence of the rental permission and when the complainant failed to obtain the rental permissions despite repeated requests on behalf of the accused, the accused had bonafide reasons to stop the payments of the cheque in question.
35.In view of the foregoing discussion, this court is of the opinion that genuineness and correctness of lease deed executed between the complainant and the Noida Authority dated 02.06.2005 and the lease deed executed CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 21/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:59:18 +0530 between complainant company and accused company dated 15.11.2019 is not disputed by either party. It is also not disputed by either party that no consent in writing whatsoever either for subletting or for change of user was obtained by the complainant from the NOIDA Authority before subletting the demised premises to the accused no. 1 Company. The court has no hesitation to hold that the accused persons have been successful in rebutting, the presumption of Section 139 NI Act in complainants favor, by preponderance of probabilities and has created doubts in the prosecution story to his benefit. As the lease deed executed on 15.11.2019 was in violation of the parent lease executed on the 02.06.2005, therefore the possession of the accused under such lease cannot be more than that of a possession of a trespasser and any claim for rent of such a possession cannot be said to be a legally enforceable debt or liability to attract a criminal liability under Section 138 NI Act.
36.Since this basic ingredient which is pivotal to attract liability under Section 138 NI Act has not been proved by the complainant company, accordingly, no offence of dishonour of the cheque in question under the said Section is made out against accused no. 1 company and there is no requirement to delve into a discussion on remaining ingredients of the offence or other defences of the accused.
37.Lastly, when no case under Section 138 NI Act is at all made out against the accused no. 1 company being the drawer of the cheque in question, accused no. 2 and 3 CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 22/23 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.07.16 17:59:26 +0530 being its director and authorized signatory, can also not be held vicariously liable for the same in terms of Section 141 NI Act.
FINAL ORDER
38.In view of the aforesaid discussion, this court finds the Accused no. 1 A&A Automobiles Pvt Ltd, Accused no.2 Ashish Anand and Accused no.3 Amarpreet Anand not guilty of the offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 and acquits them accordingly.
Digitally signed by POONAMPOONAM SINGH SINGH Date:
2024.07.16 17:59:33 +0530 Announced in open (Poonam Singh) Court on 16.07.2024 Judicial Magistrate First Class (NI Act)-01/PHC/ND This judgment contains 23 signed pages and each page has been signed by the undersigned.CC No. 7722/20 Girdhar Impex Ltd. Vs. A&A Automobiles Pvt Ltd. & Ors. Page No. 23/23