Delhi District Court
Cnr. Dlsw020036662016 Sobhawati Gupta vs . M.N. Modes Page 1 Of 22 on 6 May, 2021
CC No. 499354/2016
CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 1 of 22
IN THE COURT OF MS. ANURADHA SONKER,
METROPOLITAN MAGISTRATE, N.I. ACT-08, SOUTH WEST,
DWARKA COURTS, DELHI
DLSW020036662016
CC No. 4994354/2016
Mrs. Sobhawati Gupta
W/o Mr. Vishwanath Gupta
R/o 1109, UF Apartment, Plot No.9
Sector-6, Dwarka, New Delhi-110075 ...... Complainant
Vs.
1. M.N.Modes
(Through partners)
At E-50, Sector-6, Noida
Gautam Budh Nagar, UP
2. Mr. Ajay Kalra
S/o Jay Dayal Kalra
R/o 2J/92, NIT
Faridabad, Haryana
Also At:
C-14, Sector-6, Noida, UP
3. Mr. M.N.Beg
S/o Unknown
R/o D-14, DDA Flats
Kalkaji, New Delhi-19
Also At:
RZ-2918/33
Tughlaquabad Extn.
New Delhi-19 ...... Accused Persons
Date of Institution : 07.03.2013
Offence complained of : s.138 of The Negotiable Instruments
Act,1881
Plea of the accused : Not Guilty
Final Order : Accused 1 and 3 are acquitted. Proceedings
against Accused No.2 have been withdrawn
vide order dated 15.05.2017
Date of Decision : 06.05.2021
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JUDGEMENT
1. Vide this judgement I shall decide and dispose of Complaint case number 4994354/2016 titled as Mrs. Sobhawati Gupta V. MN Modes and others filed under section 138 Negotiable Instruments Act 1881 (hereinafter, the NI Act).
2. The FACTUAL MATRIX of the case as alleged by the Complainant:
The present Complaint has been filed by Mr. Vishwanath Gupta being the SPA holder and same having been executed in his favor by Mrs. Sobhawati Gupta. It is averred that Complainant engaged in the business of fabric trading and carried its business in name and style of 'Sumit Prints'. The present case has been filed against three Accused persons. Accused no.1 is a partnership concern/firm run by Accused no.2 and 3, jointly, being partners/directors of Accused number 1.
2.1 It is averred in the Complaint that Accused no.1 (jointly through Accused no.2 and 3) engaged in business transactions and were customers to the Complainant's firm namely 'Sumit Prints'. It is further averred that both parties developed good business relations with each other during the course and Accused number 2 and 3 used to take goods on credit from the Complainant's firm in name of Accused number 1 and later used to make the payment.
2.2 In course of time, amount of Rs. 14,71,629/- became due to the Complainant's firm. It is when this amount was demanded and pressured by the Complainant to be cleared and Accused no.2 and Accused no.3 agreed to make payment in instalments and issued CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 2 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 3 of 22 several cheques of different dates including cheque in question.
2.3 Presenting of cheque bearing number 310769 of amount Rs.
50,000/- (hereinafter cheque in question), cause of dishonor and returning memo: Accordingly, on 21.12.2012 the Complainant presented the cheque with her South Indian Bank Ltd, Dwarka branch, Delhi where she maintains her bank A/c. The same was returned unpaid by the banker vide returning memo dated 24.12.2012 with the remarks "account blocked''.
2.4 Issuance of legal demand notice: The Complainant thereafter issued a legal demand notice on 21st January 2013 through her counsel calling upon Accused no.2 and 3 to pay the amount of cheque in question within a period of 15 days from receipt thereof. The said notice was duly served upon the Accused and the Accused failed to pay the aforesaid cheque amount within the statutory period.
2.5 Filing of the present case: Hence, present Complaint u/s 138 NI Act was filed on 07.03.2013 by the Complainant, praying for the Accused to be summoned, tried, and punished for commission of the offence u/s 138 of the Negotiable Instruments Act, 1881. The case was then assigned to the Court of jurisdiction by the Ld. ACMM, Saket for further proceedings.
3. PROCEEDINGS BEFORE THE COURT: for sake of brevity, the significant dates and purposes are mentioned in a tabular form-
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Case was received and registered 12.03.2013
Pre-summoning evidence was recorded and stood closed on 15.04.2013 Summoning order was passed against all three 15.04.2013 Accused persons on Accused No. 2 entered appearance 14.01.2015 Submission made that the has already settled the matter with Complainant in the mediation cell (mediation order dated 28.11.2014) Saket and shall honor the settlement.
CASE TRANSFERRED FROM SAKET 21.11.2015 Case re-numbered as
COURT TO DWARKA COURT To 4994352/2016
12.02.2016
28.03.2016
Matter kept being listed with other connected To
cases 15.05.2017
Matter was settled between Complainant and Accused no.2 and hence, dismissed as 15.05.2017 withdrawn qua Accused no.2 Accused no.3 declared 25.01.2018 Proclaimed person Bail granted to Accused no.3 16.11.2018 Accused no.1 proceeded in absentia 14.01.2019 Notice framed against Accused no.3, pleaded 14.01.2019 not guilty;
sec.145(2) application allowed;
Matter listed for Cross of CW1 MATTER TRANSFERRED INTER DISTRICT DWARKA COURT, RECEIVED IN THIS COURT ON 20.05.2019 CE stood closed 28.06.2019 Statement of the Accused no.3 02.08.2019 Application for amending memo of parties filed by Complainant, allowed by the Court 13.11.2019 DE stood closed 21.01.2020 Matter listed for final Arguments 18.02.2020 Arguments not led owing to pandemic and absence of parties.
Undersigned took charge 17.11.2020
Final arguments addressed by parties 06.01.2021
Judgment was in process of dictation 02.03.2021
Judgment pronounced on 06.05.2021
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3.1 Pre-summoning Evidence: To prove a prima-facie case, the Complainant led pre-summoning evidence by way of affidavit, Ex. CW-1/J wherein the Complainant has affirmed the facts stated in the instant Complaint.
3.2 Documentary Evidence: To prove the case, the Complainant has relied upon the following documents:
a) SPA in favor of Mr. Vishwanath Gupta, Ex. CW1/A.
b) Computer generated a/c statement of the Complainant's firm showing the outstanding amount of Rs. 14,71,629 due to be paid by the Accused persons, Ex.
CW1/B.
c) Original cheque bearing no. 310769 dated 15.12.2012 for a sum of Rs.50,000/- drawn on State Bank of Patiala, New Friends colony Branch, Ex. CW1/C.
d) Original cheque return memo dated 24.12.2012, Ex. CW-1/D.
e) Office Copy of legal notice dated 21.01.2013, Ex. CW1/D1.
f) Postal receipt (colly), Ex. CW1/E, Ex.CW1/F, Ex.CW1/G, Ex. CW1/H and Ex. CW1/I. 3.3 Summoning of the Accused: On finding of a prima-facie case against the Accused persons, cognizance was taken and all the Accused persons were summoned on 15.04.2013 where the Accused no. 2 appeared before the Court on 14.01.2015.
3.4 It is pertinent to note that with respect to Accused no.2 the case was dismissed as withdrawn (already settled the matter with the CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 5 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 6 of 22 Complainant) vide order dated 15.05.2017.
3.5 Also, as it abovementioned in the table that Accused no.3 appeared only after being declared as a proclaimed person vide order dated 25.01.2018. Accused no.1 was proceeded in absentia vide order dated 14.01.2019.
3.6 In a nutshell, the Complainant was only proceeded against and the trial was conducted only against Accused no. 3. Details thereof are as below:-
3.7 Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the Accused no.3 on 14.01.2019 to which he pleaded not guilty and claimed trial. The plea of defence of the Accused was recorded where the Accused no.3 had stated that the Complainant firm Sumit Print used to supply goods to Accused no.1 long before 2011. Cheque in question was signed by him, however, the details therein were not filled by him. It was further stated by Accused no.3 that blank signed cheque in question was given by him to his partner Mr. Ajay Kalra (Accused no.2) even before 2011 and he was ousted from the partnership in 2011. Accused no.3 pleaded he had no knowledge of transactions in between Accused no.1 and Complainant post his oust. Also, he had no liability towards the Complainant and the cheques has been misused by the Complainant.
3.8 Evidence of the Complainant: After the framing of notice, the Accused was granted permission to cross-examine the SPA holder of the Complainant. Thereafter, the SPA holder of the Complainant was examined as CW1, adopting the pre-summoning evidence as post-CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 6 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 7 of 22
summoning evidence and was cross examined and discharged. No other witnesses were examined by the Complainant. Thereafter, Complainant evidence was closed on 28.06.2019 and the matter was listed for statement of the Accused u/s 313 Cr.P.C. r/w Section 281 Cr.P.C.
3.9 Statement of the Accused: Statement of the Accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 02.08.2019 wherein all the incriminating circumstances appearing in evidence against the Accused were put to him to which the Accused stated that Accused no. 3 gave his blank signed cheque to his partner, Mr. Ajay Kalra, who used to manage the entire business and the same has been misused by Ajay Kalra. The Accused stated he was only involved in the finishing and packaging of the products and nothing else. Accused no.3 chose to lead DE.
3.10 Defence Evidence: The Accused no.3 has examined himself in his defence as DW1. No other defence witness was examined. Vide his separate statement defence evidence was closed on 21.01.2020.
3.11 The matter was then fixed for final arguments on 18.02.2020. Due to pandemic and non appearance of the parties the same could not be led. Thereafter, matters were enbloc adjourned owing to pandemic. The undersigned took charge of the Court w.e.f 17.11.2020. The undersigned heard the arguments fully on 06.01.2021. On 02.03.2021 judgment was in process of dictation and finally pronounced on 06.05.2021.
CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 7 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 8 of 224. ARGUMENTS ADVANCED BY THE PARTIES The Complainant has primarily reiterated the grounds mentioned in the Complaint and also, apprised the Court of the history of the case. Complainant argued that offence under section 138 of NI Act is lucidly made out.
In crux the arguments on behalf of Complainant • revolved around repetition of Complaint and facts therein, • It was argued that Sumit Prints is a proprietorship concern involved with the Accused persons in business even before 2012. • It was argued that the cross examination of the Accused no.3 categorically brings forth the fact that he was in 50-50 partnership. By that analogy there is an admission of liability towards the outstanding liability towards the Complainant.
• Also, it is argued that the dissolution deed/settlement DW1/Mark A relied upon the Accused no.3 cannot be relied upon being merely a xerox copy and nothing validating it. Court finds it a tenable argument.
• In addition thereto, Complainant's counsel argued that the fact stated by Accused no.3 during his examination in chief that his partner misused his cheque and on gaining such CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 8 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 9 of 22 knowledge he blocked the a/c and made Complaint against his partner is also nothing but bald averment not supported by the any formal documents to that effect despite showing willingness to produce the same. Court finds it a tenable argument.
• In light of these arguments, the counsel pressed liability is cleared made out and Accused has failed to rebut the presumption drawn against him in the statute u/s 139 NI Act.
Per contra, in brief, the counsel for the Accused has argued, • That the name of the payee of the cheque and the Complainant in the present case are different. The case ought to have been filed in the name of Sumit Prints through its proprietor. It is argued by counsel for the Accused that such application for amendment of memo of parties was only made when the Complainant's evidence stood closed in the present case. This defect was endeavored to be cured by the Complainant at a belated stage and only at the instance of Counsel for Accused while cross examining the Complainant.
Court finds merit in this argument as a potent question as to locus standi is raised. • Another contention raised by the counsel for CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 9 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 10 of 22 the Accused is that special power of attorney holder of the Complainant is not qualified enough to have deposed before this Court. It is argued that the evidence by way of affidavit of the SPA holder suffers infirmity in eyes of law. Counsel has relied on the judgement of AC Naryanan v. State of Maharasthra, SC, 2014 Crl L.J 576 wherein it has been categorically stated that person appearing as authorized representative must have specific knowledge as to the transaction vis-à-vis which the case has been filed. Counsel for the Accused argued that such averment of personal knowledge of the transaction leading to the present case is absent in the evidence by way of affidavit. In fact, to fortify this contention the statement of the SPA holder during his cross examination has come on record wherein at the very threshold he has denied knowledge as to the very transaction leading the prosecution in the case.
Court finds merit in the argument.
• It was also argued that when the cheque in question was issued the partnership firm was not in existence as per the dissolution deed which is DW1 Marked A. The Court does not find any merit in this argument as the document showing the dissolution has not been brought CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 10 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 11 of 22 forth in original. Hence, this argument is not tenable.
• It is also argued that the legal demand notice is defective as the partners have been given the notice, however, the partnership itself has not been served the legal demand notice. There are catena of judgements wherein it is clear that legal demand notice to any of the partners/directors even at their addresses is equivalent to notice being served to the establishment. Hence, this argument is untenable.
4.1 I have heard the arguments at length from both sides, perused the record and gone through the judicial pronouncements as referred by the parties.
5. LEGAL POSITION Let us now examine the legal benchmark which is to be satisfied in order to constitute an offense under section 138 NI Act. Ingredients are:
a) Existence of legally enforceable debt or liability and issuance of cheque in discharge of said debt or liability;
b) Dishonor of cheque in question which must have been drawn on an account maintained by the Accused;
c) Service of demand notice seeking payment of cheque amount within fifteen days from the date of service;CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 11 of 22 CC No. 499354/2016
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d) Non-payment of cheque amount within fifteen days from the date of service of notice; and
e) Filing of Complaint within one month from the date on which cause of action arises.
5.1 It is only when all the ingredients are satisfied, that the person who had drawn the cheque can be deemed to have committed an offense u/s 138 of NI Act.
5.2 There is no gainsaying that once the issuance of cheque is admitted by the Accused/drawer, the presumption under section 139 of the NI Act comes into play. As per the said section 139 NI Act, it ''shall be'' presumed that the issuance of cheque was for the discharge, in whole or in part, of debt or other liability.
5.3 The effect of the presumption has been explained in a catena of judgments, including the judgments of the Hon'ble Supreme Court in, Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16, Rangappa vs. Sri Mohan (2010) 11 SCC 441 and more recently, in the case of Rohitbhai Jivanlal Patel v. State of Gujarat & Anr (Crl. Appeal No. 508/19 dated 15.03.2019). It has been held time and again that the said presumption is a rebuttable one and its only effect is to shift the initial burden of proof on the Accused. It is also well settled that in order to rebut the presumption and shift back the burden of proof on the Complainant, the Accused is only required to raise a probable defence and he cannot be expected to discharge an unduly high standard of proof i.e. standard of proof for rebutting the presumption raised under Section 139 NI Act is "preponderance of CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 12 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 13 of 22 probabilities". It is also well settled that the Accused can rebut the said presumption either directly or by bringing on record preponderance of probabilities by reference to the circumstances upon which he relies. The Accused, for this purpose, is also entitled under law to rely upon all the evidence led in the case including that of the Complainant as well.
5.4 It is also trite that the Accused cannot, in all circumstances be expected to disprove the existence of legally recoverable debt or liability by direct evidence. In fact, it is also conceivable that in some cases, the Accused may not need to adduce evidence of his/her own. However, at the same time, it is also to be remembered that bare denial of the existence of legally enforceable debt or other liability cannot be said to be sufficient to rebut the presumption and something which is probable has to be brought on record to shift the onus back to the Complainant.
5.5 To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
6. APPRECIATION OF EVIDENCE 6.1 Let us now proceed to examine if the Accused has been able to successfully rebut the presumption under Section 139, NI Act read with Section 118 NI Act.
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6.3 Now the moot question (w.r.t element at 'a') which remains to be determined. The Accused has admitted his signature on the cheque in question in the notice of accusation. Further the cheque has been drawn from the account of the Accused. This fact raises a presumption u/s 139 r/w s.118 of the NI Act against the Accused. Now it is to be seen whether or not the Accused has successfully rebutted the presumption so raised by the Complainant. Section 139 NI Act read with Section 118, NI Act creates a rebuttable presumption in favour of the Complainant. According to Section 118 NI Act, until the contrary is proved, it shall be presumed inter alia that every negotiable instrument was made, drawn, accepted or endorsed for consideration. It is also presumed that, consideration is present in every negotiable instrument until the contrary is proved.
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Crux of his examination is as follows:
• Partner/Accused no2, Ajay Kalra, having had misused the cheques.
This statement of the DW1 (Accused no.3 himself) fails to inspire confidence as such statement remains unsupported by any documentary proof. Moreso, when such document proof (Complaint against Ajay Kalra and a/c closure application to bank when its misuse came to his knowledge) was undertaken by the Accused no.3 himself to be produced which he eventually failed to do.
• It is admitted during his cross examination that Accused no.3 knew Mr. Vishwanath Gupta (SPA holder of the Complainant) since 1993 and used to see him at times in the factory. But Accused no.3 at the very threshold declines having any knowledge as to association of Sumit Prints and the Accused no.1 partnership concern from 2004-05 till march 2011. This statement yet again fails to inspire confidence in the mind of the Court. It is improbable for a person to know someone for years and having seeing him in his work area but refusing not having any knowledge about his visits. More so, when this work area is headed by DW1 in capacity of being a partner. In addition thereto, there is blatant ignorance of knowing Vishawnath and his nexus with Sumit Prints. Yet CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 15 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 16 of 22 again how can a person know a person for years (since 1993), whom he has seen visiting his premises often, and not know purpose of his visits and his business enterprise.
• It is emphatically stated by Accused no.3 that he was only engaged in production and finishing of the goods, hence, he did not know any other dealings (including the transaction between Complainant and the Accused no.1 firm) as rest of it was taken care by other partner, Ajay Kalra. Also, Accused no.3 had only dealt with vendors engaged in finished and produced goods.
This reason also does not appeal to the Court, it could be conceived that in partnership, tasks and area of work could be divided between the partners but just because it so divided for purposes of convenience, partners can plead ignorance and shy away from the duties that ensue thereupon, is an incorrect perspective. Even if the same is to be believed, it would be utterly contrary to the spirit of legislature of the partnership act which calls for liability- jointly and severally.
• It was also stated by DW1 that when the cheque was issued, by then the partnership had dissolved, DW1 MarkA is a xerox copy of the dissolution deed placed on record, having not been proved to the satisfaction of the Court. In absence of the original, or any CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 16 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 17 of 22 compelling reason for leading secondary evidence by way of photocopies the genuineness of the same cannot be determined. Hence, the said document cannot be relied upon by the Court. Hence, liability remains unrefuted.
• It is admitted by DW1 during his cross-examination that he was not the employee of the partnership firm but he was getting the profits. It is also admitted that since the inception of the partnership firm that payments were made regularly to the vendors as he used to sign blank cheques and his other partner used to hand over those signed cheques to the vendors. It is also admitted that Accused no.3 used to sign over the audit sheets/balance sheets but he refuses that he ever had a conversation with his partner regarding the loss and profit in the firm.
Bare reading of the statement doesn't appeal the judicial mind. It is improbable that being partners, not being the employees and relying on the profits of the firm the partners will not have any conversation as to the loss and profit of the firm. It is also improbable that a person who admitted to had signed audit sheets/balance sheets will not as a matter of caution check it.
6.5 Hence, on the basis of the testimony of the DW1/Accused himself, it adequately shown that element 'a' stands fulfilled along with the CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 17 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 18 of 22 other elements to section 138 NI Act. Accused no.3 failed to rebut the presumption as drawn against him by the statute. Hence, all the ingredients of s.138 NI Act have been fulfilled as against the Accused.
6.6 But before we embark on the verdict, Court deems appropriate to specifically deal with argument of the ld. Counsel for the Accused no.3 on the ground of maintainability of the case in its present form.
Primarily it focuses on and raises two potent questions:
a. As to the locus standi of the Complainant, and b. Qualification of the SPA holder to depose before this Court as a competent witness on behalf of the Complainant.
6.7 LOCUS STANDI OF THE COMPLAINANT: An argument was led by the learned counsel for the Accused, that the case ought to have been filed by Sumit Prints (payee of the cheque in question) through its proprietor Mrs. Sobhawati Gupta and the initial case title was defective. It was further argued that the case title was amended by the Complainant only post closure of CE during which this point was raised by the counsel for the Accused while cross examining the SPA holder for the Complainant. Such application for amendment of the title of the Complaint was allowed by the Court.
6.7.1 It is pertinent to note that subsequent amendment to the case title neither cures the initial defect the title nor does it prohibit the Court to take into account such defective title and its impact on the maintainability of the Complaint per se.CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 18 of 22 CC No. 499354/2016
CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 19 of 22 What is more crucial in this case is while the payee of the cheque in question was Sumit Prints whereas it was filed by Mrs. Sobhawati Gupta. Initially, there was nothing, no document, along with the Complaint to substantially show the nexus of the Complainant and Sumit Prints (admitted by CW1 during his cross examination). Although, there was averment by Sobhawati Gupta that she ran business in name and style of Sumit Prints.
6.7.2 In Shankar Finance and Investment V. Sate of AP (2008) 8 SCC 536 where it was held that (SCC P.540, Para11), where "payee" is a proprietary concern, the Complaint can be filed:
"(i) by the proprietor of the proprietary concern, describing himself as the sole proprietor of the payee; (ii) the proprietary concern, describing itself as the sole proprietary concern, represented by its sole proprietor;(iii) the proprietor of the proprietary concern represented by the attorney holder and the power of attorney executed by the sole proprietor."
6.7.3 The initial case title of the case in hand does not fall in any of the above. Even if it is to be believed, for a moment that Complainant was the sole proprietor of Sumit Prints since inception, documents to that effect were only placed on record at belated stage when CE stood closed. Those documents were merely annexed with the application for amendment of memo of parties which did not ipso facto dispense with their formal proof thereof. Ideally, when the Accused has specifically disputed the locus standi of the Complainant in his cross-
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6.7.4 In scenario like this, the initial defect remains uncured. Documents to show nexus of Ms. Sobhawati Gupta with M/s Sumit Prints remain unproved.
6.7.5 Hence, in light of legal position the Complainant does not have locus standi to file the case and Complaint as such becomes not maintainable in its present form.
6.8 QUALIFICATION OF SPA HOLDER TO DEPOSE BEFORE THIS COURT Ld counsel for the Accused no.3 has relied on judgment of A.C. Narayanan vs State Of Maharashtra & Anr 2014 Crl L.J 576 (SC) which specifically points that authorized representative must make specific averment in the evidence by way of affidavit of their personal knowledge of the transaction which was subject of the complaint.
CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 20 of 22 CC No. 499354/2016CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 21 of 22 Relevant paragraph from the judgement A.C. Narayanan(supra) is as follow (para 26, clause ii and iii) "(ii) The Power of Attorney holder can depose and verify on oath before the Court in order to prove the contents of the Complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the said transactions.
(iii) It is required by the Complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the Complaint and the power of attorney holder who has no knowledge regarding the transactions cannot be examined as a witness in the case."
6.8.1 In the present case, it pertinent to note that even though an averment to the effect that CW-1 is aware of facts and circumstances of the case is present in the evidence affidavit. However, his cross examination as CW-1 lucidly reflects his oblivion thereto to the material aspects of the transaction which is the subject matter of the instant complaint. He clearly stated he has no knowledge of the business transaction carried out in Sumit Prints.
6.8.2 Oblivion of the CW1 is further fortified by his statement stating cheque was given to him at the Noida factory of the Accused whereas the legal demand notice mentions that cheque was handed over at the Kalkaji. Such inconsistency was later rectified by CW1 stating cheque was given only at the factory. It is further admitted by CW1 though cheque names the payee as Sumit Prints but it had not been made party to the case. It was admitted by him that ITR was filed showing CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 21 of 22 CC No. 499354/2016 CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 22 of 22 transaction between Sumit Prints and Accused persons, however, no such document has been produced.
6.8.3 Considering the legal position coupled with testimony of CW1 of his unawareness as to the transactions, CW1is not qualified to have deposed before this Court in support of the case of the Complainant. No other witness was examined on behalf of the Complainant. Hence, the instant complaint becomes non-maintainable in the present form on this ground also.
7. Decision 7.1 In the upshot of the above and appraisal of evidence, even though the ingredients of the offence (a to e) are cumulatively satisfied against the Accused. This Court believes that Complaint as such in not maintainable for the reasons cited above.
7.2 Accordingly, Accused M.N. Modes and M.N. Beg are hereby acquitted. Case was already withdrawn vis-à-vis Accused no. 2. Bail bond and surety bond of Accused M.N. Beg filed initially continue to be in force for the purpose of sec. 437A CrPC, remaining valid for period of six months from today. File be consigned to record room after due compliance.
ANURADHA Digitally signed by ANURADHA
SONKER
SONKER Date: 2021.05.06 17:00:57 +05'30'
ANNOUNCED THROUGH (ANURADHA SONKER)
V.C ON: 06.05.2021 MM, NI ACT-08 SOUTH WEST
DWARKA COURTS,
DELHI
CC No. 499354/2016
CNR. DLSW020036662016 Sobhawati Gupta Vs. M.N. Modes Page 22 of 22