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Delhi District Court

Ms Diesel Auto Parts Co. Pvt. Ltd vs Ms Ninestar Automotives Pvt. Ltd on 24 December, 2024

 IN THE COURT OF MS. NEHA GOEL, JUDICIAL MAGISTRATE (FIRST
        CLASS) NI ACT- 02, CENTRAL, TIS HAZARI COURT, DELHI.


CC No. 523754/2016
CNR No. DLCT020029132013
M/S DIESEL AUTO PARTS CO. PVT. LTD. VS.                                          M/S NINESTAR
AUTOMOTIVE PVT. LTD.
U/s 138 N. I. Act
PS KASHMERE GATE
                                        JUDGMENT

1. Sl. No. of the case 523754/2016

2. Date of institution of the case 02.01.2013

3. Name of the Complainant M/s Diesel Auto Parts Co. Pvt. Ltd having its office at 2798, Bara Bazar, Kashmere Gate, Delhi-110006 Through its Director Sh. Lalit Sabharwal

4. Name of Accused, parentage 1. M/s Ninestar Automotive Pvt. Ltd.

and address Shop No. 2740/5, Floor-2, National Chamber, Minerva Lane, Kashmere Gate, New Delhi-110006 Through its Directors

2. Suneet Kaur

3. Harjeet Singh

4. Gurcharan Singh All Directors of M/s Ninestar Automotive Pvt. Ltd., addressee no. 2 to 4 be served at Shop 2740/5, Floor-2, CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 1 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:58:39 +0530 National Chamber, Minerva Lane, Kashmere Gate, New Delhi-110006 and Also at:

                                               R/o      E-1/11,      Model       Town-II,       New
                                               Delhi-110009.
5.    Offence complained of                    Section 138 Negotiable Instruments Act,
                                               1881.
6.    Plea of Accused                          Accused 1 Company M/s Ninestar

Automotive Pvt. Ltd. pleaded not guilty

2. Suneet Kaur pleaded not guilty

3. Harjeet Singh- trial abated vide order dated 28.06.2023

4. Gurcharan Singh- trial abated vide order dated 12.12.2019

7. Final Order Accused 1 Company M/s Ninestar Automotive Pvt. Ltd. is convicted.

Accused no. 2 Suneet Kaur is acquitted.

8. Date of pronouncement 24.12.2024

1. The present complaint (CC No. 523754/2016) is one of the 17 connected matter having CC Numbers - Ct. Cases 520346/2016, Ct. Cases 521284/2016, Ct. Cases 521285/2016, Ct. Cases 522408/2016, Ct. Cases 523754/2016, Ct. Cases 524142/2016, Ct. Cases 524143/2016, Ct. Cases 524192/2016, Ct. Cases 524193/2016, Ct. Cases 524194/2016, Ct. Cases 518830/2016, Ct. Cases 518831/2016, Ct. Cases 522232/2016, Ct. Cases 522233/2016, Ct. Cases 522234/2016, Ct. Cases 531043/2016 and Ct.

Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:58:44 +0530 Cases 531047/2016 and separate judgments are being passed in these connected matters.

2. Factual Matrix: The brief facts as alleged by the complainant in the complaint are that the complainant is a Private Limited Company duly incorporated under the Companies Act under the name and style of M/s Diesel Auto Parts Co. Pvt. Ltd. of which Sh. Lalit Sabharwal is one of the Director and he has been duly authorized to file, sign and verify the present complaint against the accused persons vide resolution dated 01.10.12 and otherwise also he is well conversant with the facts and circumstances of the present case and thus competent to file and institute the present complaint. The complainant Company is engaged in the business of sale and purchase of auto parts/bearings and has been operating from the above mentioned address. However the complainant company was earlier a partnership firm of which Sh. Lalit Sabharwal was one of the partner. The accused no. 1 through it's Directors i.e. accused no. 2, 3 and 4 who are responsible for day to day affairs, management, control and supervision of accused no. 1, had been purchasing bearings/autoparts and the complainant company had been maintaining all records of all the transactions between the accused persons and the complainant. As per record maintained by the complainant company, a sum of Rs. 4847690 is liable to be paid by the accused persons to the complainant company. Accused persons no. 2 to 4 who are responsible for date to day affairs, management, control and supervision of accused no. 1, had issued certain cheques including three cheques bearing No. 037512 dated 25.10.2012, 037513 dated 25.10.2012 and 037514 dated 25.10.2012 for Rs. 1,00,000/- each both drawn on Punjab & Sind Bank, Lothian Road, Kashmere Gate, Delhi-110006. The complainant presented CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 3 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:58:48 +0530 the above said cheques with its banker i.e. Citi Bank for their encashment, however the same got dishonored on account of "Funds Insufficient" vide return memo dated 26.10.2012. The complainant immediately apprised the accused persons about the fate of the said cheques however the accused initially avoided the one or the other pretext and finally refused to make the payment of the said dishonored cheques. Thereafter the complainant issued a legal notice dated 22.11.2012 through its counsel by Regd. Post dated 23.11.2012 which was duly served upon the accused persons, thereby calling upon the accused to make the payment of cheques amount within 15 days from the date of receipt of that notice but the accused failed to make the payment despite service of legal notice. Hence, the present complaint u/s 138 Negotiable Instrument Act 1881 was filed 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 Complainant has averred that the present Complaint is within the period of limitation and falls within the territorial limits of this Court's jurisdiction; thus, being tenable at law.

3. Pre-summoning Evidence: To prove a prima-facie case, the complainant led pre-summoning evidence by way of affidavit Ex. CW1/A on 13.01.2015 wherein the complainant has affirmed the facts stated in the instant complaint. To prove the case, the complainant has relied upon the following documents:

S. No. Description of document Exhibit No. 1 Copy of Board Resolution Ex. CW1/1

2. Statement of account Ex. CW1/2 CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 4 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:58:53 +0530 3 Original cheque bearing no. 037512 dated Ex. CW1/3 25.10.2012 for sum of Rs. 1,00,000/- drawn on Punjab & Sind Bank, Kashmere Gate Branch, New Delhi.

4 Original cheque bearing no. 037513 dated Ex. CW1/4 25.10.2012 for sum of Rs. 1,00,000/- drawn on Punjab & Sind Bank, Kashmere Gate Branch, New Delhi.

5. Original cheque bearing no. 037514 dated Ex. CW1/5 25.10.2012 for sum of Rs. 1,00,000/- drawn on Punjab & Sind Bank, Kashmere Gate Branch, New Delhi.

6 Original Return Memo dated 26.10.2012 Ex. CW1/6 7 Original Return Memo dated 26.10.2012 Ex. CW1/7 8 Original Return Memo dated 26.10.2012 Ex. CW1/8 9 Copy of legal notice dated 22.11.2012 Ex. CW1/9 10 Original Speed Post receipts dated 23.11.2012 and Ex. CW1/10 Tracking reports (colly)

4. Summoning of the Accused: On finding of a prima-facie case against the accused, accused persons were summoned on 13.01.2015. Accused no. 3 appeared on 24.07.2015. Accused no. 2 appeared on 11.08.2015. Accused no. 4 appeared on 11.08.2015.

5. Matter was transferred to Patiala House Court vide order dated 18.10.2016 due to lack of territorial jurisdiction of Tis Hazari Court. Trial of accused no. 4 Gurcharan was abated vide order dated 12.12.2019. Vide order dated 30.07.2021, matter was sent back to Tis Hazari Court. Vide CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 5 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:58:57 +0530 order dated 28.06.2023, trial against accused no. 3 Harjeet Singh was abated.

6. Framing of notice & plea of defence: Notice u/s 251 Cr.P.C. was framed against the accused no. 1 company M/s Ninestar Automotive Pvt Ltd. (accused no. 1 company) through Suneet Kaur (accused no. 2) on 01.07.2023 to which it pleaded not guilty and claimed trial. The plea of defence of the accused no. 1 company was recorded where the accused had stated that "My husband used to look after the business of the company. The cheque does not bear my signature. I am not liable to pay the cheque amount". Notice u/s 251 Cr.P.C. was framed against Suneet Kaur (accused no. 2) on 01.07.2023 to which she pleaded not guilty and claimed trial. The plea of defence of the accused no. 2 was recorded where the accused had stated that "My husband used to look after the business of the company. The cheque does not bear my signature. I am not liable to pay the cheque amount".

7. Evidence of the Complainant: Matter was put up for CE. It is at this stage that the matter was received by way of transfer by the Court of undersigned. CW1 was examined and cross examined. He was discharged on 27.07.2024. Vide statement of complainant, CE was closed on 27.07.2024. Matter was put up for recording statement of accused u/s 281/313 CrPC.

8. Statement of the Accused: Statement of the accused no. 1 company M/s Ninestar Automotive Pvt Ltd. (accused no. 1 company) through Suneet Kaur (accused no. 2) and Suneet Kaur (accused no. 2) was recorded u/s 281/313 Cr.P.C. on 03.08.2024 wherein all the incriminating circumstances appearing in evidence against the accused were put to them and they were asked to explain the same. They stated that " I am innocent.

Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:01 +0530 I do not remember whether I received legal demand notice. My husband used to look after the business of the company. The cheque does not bear my signature. I am not liable to pay the cheque amount. I do not have any liability towards the complainant. I never look after the work of company in any capacity and after the death of my husband, I represented the company in court. The company is NPA since 2015. I do not wish to say anything else. I have sufficient knowledge of the accusation against me."

9. Defence Evidence: Matter was put up for DE. All 17 matters were settled for combined settlement amount of Rs. 50,00,000/- on 05.09.2024 but accused did not make any payment under the settlement. Vide separate statement of Ld. Counsel for the accused, DE was closed on 09.12.2024. Matter was put up for final arguments.

10. Ld counsel for the complainant has placed reliance upon - Ved Prakash Gupta vs. Anchon Chemplast Pvt. Ltd., 2013 (2) JCC 97 (NI), Unique Info Ways Pvt. Ltd. & Ors vs. M/s MPS Telecom Pvt. Ltd., 2019 (2) JCC 959, Subhash Chandra Aggarwal vs. Planet Media Services Ltd & Ors, 2023 (4) JCC 2433, K.S. Mehta vs. M/s Morgan Securities & Credit Pvt. Ltd., 2023 (305) DLT 167 and Mohit Shah vs. State & Anr, 2023 (2) JCC

864.

11. Ld. counsel for the accused has placed reliance upon Ashok Shewakramani & Ors. vs. State of Andra Pradesh & Anr. (Crl Appeal No. 879 of 2023, decided by Hon'ble Supreme Court of India on 03.08.2023).

12. I have heard the submissions of the Ld. Counsel for the complainant as well as the accused and gone through the record and judgments.

13. The legal requirements of Section 138 Negotiable Instruments Act, 1881 are cumulative in nature, i.e. only when all of the following ingredients CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 7 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:05 +0530 are duly proved is the drawer of the cheque deemed to have committed an offence under Section 138 of the Negotiable Instruments Act.

14. First ingredient: The first ingredient of Section 138 Negotiable Instrument Act, 1881 is that a person has drawn a cheque, on an account maintained by him with a banker for payment of any amount of money to another person from out of that for the discharge, in whole or in part, of any legally enforceable debt or other liability.

15. Section 138 NI Act is supported by presumptions u/s 118 and 139 NI Act.

U/s 118 NI Act, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. The initial presumption mandated by Section 139 of the Act is rebuttable in nature and includes the existence of a legally enforceable debt or liability. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. Section 139 of the Act is an example of a reverse onus clause and it favours the complainant. The accused cannot be expected to discharge an unduly high standard or proof to rebut the presumption u/s 139 NI Act. The standard of proof for doing so is that of 'preponderance of probabilities' meaning thereby that if accused is able to raise a probable defence creating doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. 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. (Reliance is placed on K.N. Beena V. CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 8 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:09 +0530 Maniyappan, AIR 2001 SUPREME COURT 2895; Rangappa V. Mohan, (AIR 2010 SUPREME COURT 1898); M/s Kalamani Tex V. P. Balasubramanian, AIRONLINE 2021 SC 82; and Rajesh Jain V. Ajay Singh, [2023] 13 S.C.R. 788).

16. Liability of accused no. 1 company:

A. As per the complaint, complainant company has been stated to have supplied bearings/auto parts to Ninestar Automotive Pvt. Ltd. (accused no. 1 company from here on). The outstanding of accused no. 1 company has been stated to be Rs. 4847690/-. B. Complainant was specifically asked by Ld. Counsel for accused as to who issued the cheques in question, in the answer to which he stated that cheques in question were issued by Harjeet Singh (trial abated, accused no. 3 from here on) and not by Suneet Kaur (ac- cused no. 2 from here on). No suggestion has been given that cheques in question were not issued by accused no. 3. Thus, it amounts to admission on part of accused no. 1 company and ac- cused no. 2 that the cheques in question were issued by accused no.

3. Death of the drawer of the cheque cannot and will not efface pre-

sumption u/s 139 NI Act, as the cheque is issued on behalf of the accused no. 1 company. Therefore, it is for the accused no. 1 com- pany or its Director to rebut such presumption before the Court. C. The only document which has been filed to show the outstanding of accused no. 1 company is the statement of account of accused no. 1 company (Ex. CW1/2) showing outstanding of Rs. 4847690/- towards the complainant company. Ld. Counsel for accused has ar- gued that complainant did not produce Certificate u/s 65 B of In- dian Evidence Act, 1872 qua the statement of account but com-

Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:13 +0530 plainant was never asked to produce the same during whole trial and no objection has ever been taken by accused to that effect. Thus, to argue now that statement of account cannot be read in evi- dence is a misplaced exercise.

D. Accused no. 1 company (through Suneet Kaur, accused no. 2) has stated in notice u/s 251 CrPC/ statement of accused u/s 281/313 CrPC that her husband used to look after the business of the com- pany, she never looked after the business of the company, cheque does not bear her signature, she is not liable to pay the cheque amount, she represented the company in court after death of her husband and company is NPA since 2015. Thus, nothing has been stated by accused no. 2 qua liability of accused no. 1 company as she has stated herself to be unaware about the business transactions of accused no. 1 company, being a housewife. E. The cross examination done qua the liability of accused no. 1 com- pany remained limited to the extent of putting suggestion to the ef- fect that accused no. 1 company does not have any liability which was denied by the complainant. Although no invoices/transporter receipts were filed with the complaint to show sale and delivery of goods from complainant company to accused no. 1 company but complainant was never asked to produce the same by accused dur- ing cross examination. If accused no. 1 company was really disput- ing the existence of bills, then, it should not have shied away from asking complainant to produce them. Merely giving suggestion that no bills exist does not really help the case of accused no. 1 com- pany especially when cheques of accused no. 1 company are on record.

Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:17 +0530 F. In view of the above discussion, ingredient no. 1 stands fulfilled as against accused no. 1 company.

17. Liability of Suneet Kaur (accused no. 2):

A. It has been stated in the complaint that Accused no. 2 to 4 are re- sponsible for day-to-day affairs, management, control and supervi- sion of accused no. 1 company and accused no. 2 to 4 issued the cheques in question to complainant company. B. Per contra, Suneet Kaur (accused no. 2) has stated in notice u/s 251 CrPC/ statement of accused u/s 281/313 CrPC that her husband used to look after the business of the company, she never looked after the business of the company, cheque does not bear her signa- ture, she is not liable to pay the cheque amount, she represented the company in court after death of her husband and company is NPA since 2015.

C. Complainant has stated in his cross examination that cheques in question were issued by Harjeet Singh (accused no. 3, trial abated) and not by accused no. 2. No presumption u/s 139/118 NI Act has been raised against accused no. 2 as she is not the signatory of the cheques in question.

D. Section 141 (1) NI Act provides that if the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was respon- sible to the company for the conduct of the business of the com- pany, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:21 +0530 E. Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who, at the time of the commission of the offence, were in charge of and were responsible for the conduct of the business of the company. This expression means `a person in overall control of the day-to-day business of the company or the firm'. Furthermore, there must be a specific, clear and unambiguous allegation in the complaint as to the part played by them in the transaction as to how the Directors/ partners are incharge and responsible for the conduct of the busi- ness of the company/firm. If a mere reproduction of the wording of section 141(1) in the complaint is sufficient to make a person liable to face prosecution, virtually every officer/employee of a company without exception could be impleaded as accused simply by mak- ing an averment to that effect. If the accused is not one of the per- sons who falls under the category of "persons who are responsible to the company for the conduct of the business of the company" then merely by stating that "he was in-charge of the business of the company" or by stating that "he was in-charge of the day-to-day management of the company" or by stating that "he was in-charge of, and was responsible to the company for the conduct of the busi- ness of the company", he cannot be made vicariously liable under Section 141(1) of the Act.

F. Suneet Kaur (Accused no. 2) did not issue any cheque. There is no averment in the complaint as to how and in what manner she was responsible for the conduct of the business of the Company or oth- erwise responsible to it in regard to its functioning. How is she re- sponsible for dishonour of the cheque has not been stated. The al-

CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 12 of 17

                                                                                                           Digitally
                                                                                                           signed by
                                                                                                 NEHA      NEHA GOEL
                                                                                                           Date:
                                                                                                 GOEL      2024.12.24
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                                                                                                           +0530

legations made in the complaint do not satisfy the requirements of Section 141 of the Act.

G. Even Complainant has stated in cross examination that he used to deal with Harjeet Singh (accused no. 3, trial abated) and Jasdeep Singh (not an accused in the present case but accused in 03 con- nected cases) and never dealt with Suneet Kaur (accused no. 2) re- garding the transaction in question.

H. Complainant has stated that the only reason averments have been made in the complaint qua accused no. 2 is that she is Director of accused no. 1 company and has derived profits from the company. No evidence has been produced by the complainant as to the state- ment that accused no. 2 was deriving profits from accused no. 1 company. The burden of proof to prove complicity of accused no.2 is on the complainant which has not been discharged. Even if ac- cused no. 2 was earning profits from accused no. 1 company, irre- spective, complainant was supposed to fulfill the requirements of Section 141 NI Act as discussed above. On the other hand, com- plainant has himself stated that he never dealt with accused no. 2. It is clear that accused no. 2 was neither in charge of nor was respon- sible to the accused no. 1 company for the conduct of the business of the accused no. 1 company.

I. In view of the above discussion, ingredient no. 1 does not stand fulfilled as against accused no. 2.

18. The decision rendered in cases relied upon by Ld. Counsel for Complainant are in their own facts and cannot aid the complainant in the present facts and circumstances of the case at hand in view of the detailed CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 13 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:30 +0530 discussion above. The undersigned has remained cognizant of the legal principles established in these judgments.

19. Second ingredient: The second ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier. Second ingredient stands satisfied on a perusal of the original three cheques bearing No. 037512 dated 25.10.2012, 037513 dated 25.10.2012 and 037514 dated 25.10.2012 for Rs. 1,00,000/- each both drawn on Punjab & Sind Bank, Lothian Road, Kashmere Gate, Delhi-110006 in favour of the complainant which were returned unpaid due to the reason, "Funds Insufficient" vide cheque returning memos dated 26.10.2012. The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused.

20. Third ingredient: The third ingredient of Section 138 Negotiable Instrument Act, 1881 is that the cheque has been returned by the drawee bank unpaid, for the reason that the amount of money standing to the credit of that account is insufficient to honour the cheque 1 or that it exceeds the amount arranged to be paid from that account by agreement made with that bank. Third ingredient stands satisfied as S. 146 of the Negotiable Instruments Act, 1881 provides that the Court shall, on production of bank's slip or memo having therein the official mark denoting that the cheque has been dishonored, presume the fact of dishonour of such cheque, unless and until such fact is disproved. The 1 Expression "amount of money ...... is insufficient" appearing in Section 138 of the Act is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus as held in M/s Laxmi Dyechem Vs. State of Gujarat and Others (2012 SCC OnLine SC

970).

Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:35 +0530 cheque return memo on record state that the cheque in question has been returned dishonoured for the reason "Funds Insufficient". The defence has led no evidence to controvert the same and hence, this ingredient is fulfilled as against the accused.

21. Fourth ingredient: The fourth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the payee or holder in due course has made a demand for payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid.

A. As regards the fourth ingredient, the complainant has stated that he has sent the legal demand notice dated 22.11.2012 to accused. The original postal receipt of Speed Post dated 23.11.2012 and tracking report in respect of the same is already on record. Accused has stated in notice u/s 251 CrPC that she does not remember whether she received the legal demand notice. B. It has been held by the Hon'ble Supreme Court of India in 'C.C. Alavi Haji v. Palapetty Muhammed & Anr.' [(2007) 6 SCC 555] that if sender has dispatched the notice by post with correct address written on it, the principle incorporated in Section 27 of the General Clauses Act, 1897 (for short "G.C. Act") could profitably be imported in such a case and service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. It was further held that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 15 of 17 Digitally signed by NEHA NEHA GOEL Date:

                                                                                                   GOEL    2024.12.24
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can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act.

C. In the evidence affidavit of the complainant, the legal demand notice has been stated to have been served upon the accused on the said address and for the proof of which, original postal receipt of Speed Post dated 23.11.2012 and tracking report have been tendered in evidence on behalf of the complainant. Further, no evidence whatsoever was led from the side of the accused to rebut the presumption of service. Therefore, the said ingredient stands fulfilled as against the accused.

22. Fifth ingredient: The fifth ingredient of Section 138 Negotiable Instrument Act, 1881 is that the drawer of the cheque fails to make the payment of the said amount of money to the payee or holder in due course within 15 days of receipt of the said notice. Fifth ingredient stands satisfied as accused has not paid the amount due under the cheque in question within the statutory period on the ground that he does not owe CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 16 of 17 Digitally signed by NEHA NEHA GOEL GOEL Date:

2024.12.24 15:59:42 +0530 any liability towards the complainant, Hence, this ingredient stands fulfilled as against the accused.

23. Considering the evidence affidavit of the complainant on the whole, this Court is of the considered opinion that complainant has been able to prove his case against M/s Ninestar Automotive Pvt. Ltd. (Accused no. 1 company). M/s Ninestar Automotive Pvt. Ltd. (Accused no. 1 company) has not been able to dislodge the presumption of legally enforceable debt under Sections 118 and 139 of NI Act in favour of the complainant qua the cheque in question. On the other hand, the complainant has been able to prove that the cheque in question was issued by M/s Ninestar Automotive Pvt. Ltd. (Accused no. 1 company) in discharge of a legally recoverable debt/liability owed to him, with the aid of presumptions of law raised in his favour. All the ingredients of Section 138 NI Act stand cumulatively satisfied against M/s Ninestar Automotive Pvt. Ltd. (Accused no. 1 company) and in favour of the complainant. Therefore, in the considered opinion of this Court, M/s Ninestar Automotive Pvt. Ltd. (Accused no. 1 company) is held guilty of offence punishable under Section 138 of NI Act and is hereby convicted for the same.

24. Suneet Kaur (Accused no. 2) stands acquitted from the present case.

25. Let M/s Ninestar Automotive Pvt. Ltd. (Accused no. 1 company) be heard on the point of sentence separately.

Digitally signed by ANNOUNCED IN OPEN COURT ON 24.12.2024 NEHA NEHA GOEL Date:

                                                                                   GOEL       2024.12.24
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                                                                                              +0530


                                                                                    (NEHA GOEL)
                                                JUDICIAL MAGISTRATE FIRST CLASS
                                                       (NI ACT)-02, CENTRAL DISTRICT,
                                                              TIS HAZARI COURTS/ DELHI


CC No. 523754/2016 M/s Diesel Auto Parts Co. Pvt. Ltd Vs. M/s Ninestar Automotive Pvt. Ltd.Page 17 of 17