Delhi District Court
Sunil Sharma vs Irfan Malik on 25 September, 2023
IN THE COURT OF SHRI ARIDAMAN SINGH CHEEMA: MM -03 SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI CC No. 7330/2016 Under Section 138 of Negotiable Instruments Act,1881 In the matter of: Sunil Sharma Director of M/s R.S. IT Solutions Pvt. Ltd. Office: A-56, Gali No.5, East Nathy Colony, Shahdara, Delhi-110093 . .......Complainant Versus Irfan Malik S/o Sh. Mohd. Hanif R/o H. NO. 201/32-B, Krishna Street No. 7, Maujpur, Delhi ........Accused Date of institution : 12.08.2011 Date on which judgment was reserved : 05.08.2023 Date of pronouncement of judgement : 25.09.2023 Final Order : Acquitted JUDGMENT
BRIEF FACTS OF THE CASE :
1. The present case has been filed by complainant under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act).
2. The complainant's case is that the accused was in debt of Rs.
7,12,000/- which he had borrowed from the complainant for his Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CHEEMA Date:
CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 1 of 18 2023.09.25 16:12:08 +0530 personal need and requirement and promised to return the same on demand. That when the complainant asked the accused to refund the aforesaid borrowed amount, the accused agreed that in lieu of payment of the aforesaid amount, he would transfer the ownership of the property bearing no. 201/32-B, Ram Chander Gali, Maujpur, Delhi 110053 in favour of the complainant. That later on, the complainant came to know that wife the accused Smt. Anjum is the owner of the property bearing no. 201/32-B, Ram Chander Gali, Maujpur, Delhi 110053 and also came to know that the aforesaid property is already kept under mortgage with Corporation Bank, C-5, North Chhajju Pur, 100 Feet Road, Shahdara, Delhi and therefore the accused was having no right sell/transfer the aforesaid property in favour of the complainant as promised by him.
3. To discharge the liability, the accused tendered cheque bearing no.
341922 (Ex.CW1/A) dated 10.06.2011 of Rs. 7,12,000/- drawn on Corporation Bank, Beetal Ed. Soc. Kabeer Nagar, Shahdara, Delhi- 110032 (hereinafter referred to as the 'cheque in question') in favour of the complainant. Upon presentation whereof, however, the same got dishonoured by the bank of accused for reasons "account closed"
on the said cheques vide return memo dated 17.06.2011 (Ex.CW1/B) and when complainant contacted accused, accused and asked for payment of said cheque in cash, but the accused paid no heed towards the demand/request of the complainant but flatly refused to pay the cheque amount. Complainant thereafter, sent a legal demand notice dated 24.06.2011 (Ex.CW1/C), the said notice was sent to accused by the Counsel of the accused through Speed Post, receipt of the same is (Ex.CW1/D), which had been served upon the accused.
Digitally signed by ARIDAMAN ARIDAMAN SINGH CHEEMA SINGH Date: CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 2 of 18 CHEEMA 2023.09.25 16:12:15 +0530
4. The cognizance of the offence u/s 138 NI Act was taken on 30.11.2011.
5. On the accused entering appearance, Notice u/s 251 of Code of Criminal Procedure (hereinafter referred to as Cr.PC) was framed against the accused to which he pleaded not guilty and claimed trial. In his defence, accused stated that " I had never given cheque in question to complainant. Complainant used to file my income tax returns. Complainant has misused my cheque. I had no liability towards complainant. There was some quarrel with complainant regarding one amount of Rs. 3712/-. Probably complainant has filed this case to take revenge"
6. Complainant had examined himself in PSE and CE was closed on 31.10.2014 as the opportunity to cross examine was not availed by accused.
7. Accused has examined himself in defence as DW-1 and examined DW-2. In his defence DW-1 has stated that his company namely National Dish TV has nothing to do or any business with the company of the complainant namely RSIT Solutions Pvt. Ltd.. he has further stated that complainant is standing before this court in four capacities I.e. Director, Accountant, Proprietor and as an Individual Sunil Sharma. He has further stated that complainant has placed on record no power of attorney to contest this case. He has admitted that there was a conflict of Rs.3500 - Rs.4000 with the Sunil Sharma Digitally signed ARIDAMAN by ARIDAMAN SINGH SINGH CHEEMA CHEEMA Date: 2023.09.25 16:12:22 +0530 CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 3 of 18 Accountant. He has further stated that some of his books and original cheques are in the possession of complainant till today because DW- 1 closed his company in 2011 due to the loss and demanded all his cheques back. He has placed on record Bank Statement of National Dish TV Ex.DW1/A. In his cross examination he as denied the suggestion that Email ID "[email protected]" belongs to the accused and he has emailed to Mr. Sunil Kaushik whose email ID is "[email protected]" on 26.07.2009, 08.11.2009, 27.11.2009 and 06.12.2009. He was further confronted with Ex.CW1/C1 (running into 8 pages) and Ex.CW1/C2 (running into 9 pages).
8. Further, he has examined DW-2 and DW-2 in his statement has stated that he has prepared the hand-writting examination report dated 07.01.2019 running into 29 pages and the same is Ex.DW2/A (Colly) bearing his signatures at point A alognwith stamp and his brother's signatures at point B. He has further stated that he has carefully examined question writing mark as QW-1/QF-1. He has compared the specimen writing of Sunil Sharma and Irfan Malik . He has given opinion that QW-1 has been written by same or one person i.e. Sunil Sharma who has given the specimen writing on the specimen sheet marked as SW-1. He has further given opinion that QW-1 has not been written by same or one person i.e. Irfan Malik. He has further examined the ink in numerical "7 1" and found that digits have been prefixed in front of Rs. 2000 by changing the amount from Rs.2000/- to 7,12,000/- marked as QF-1 on Ex.CW1/A. He has further given opinion that QF-1 have not been written by similar writing instrument/ball pen but written by two different writing instruments. In his cross-examination, he has stated that he Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 4 of 18 CHEEMA Date:
2023.09.25 16:12:28 +0530 does not remember that if he has gone through the order of appointment of expert and he does not know what were the instructions/directions in the order dated 03.08.2018 of the hon'ble Court.
9. The defence was closed vide order dated 25.03.2019.
10. Final arguments were addressed by both the parties. This Court has heard Ld. Counsels for both the parties and have perused the entire record/documents of the case.
11. Ld. Counsel for the complainant has argued that the signatures on the cheques in question have already been admitted. The relation of both complainant and accused has been admitted as the complainant is the accountant of the accused. He has further stated that accused has admitted that there was a conflict with the complainant regarding some amount of Rs. 3500/- to 4000/-. Accused has admitted that the cheque in question was filled for Rs. 2,000/-. He has further argued that handwritting expert who was examined as DW-2 has admitted that he did not know anything about the order dated 03.08.2018 of the Hon'ble Court.
12. It has been vociferously argued by the counsel for the complainant that the presumption under section 118 read with Section 139 of the NI Act, arises in favour of the complainant and the accused has failed to rebut the said presumption. At this stage it would be relevant to refer to Judgment of Hon'ble Apex Court rendered in, 'Basalingappa v. Mudidasappa', AIR 2019, SC 1983, wherein the principles in relation to the presumption raised under section 118 Digitally signed by ARIDAMAN ARIDAMAN SINGH CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 5 of 18 SINGH CHEEMA CHEEMA Date:
2023.09.25 16:12:35 +0530
(a) read with Section 139 were summarised as under :
"23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:-
i)Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 28 139 imposed an evidentiary burden and not a persuasive burden.
v) It is not necessary for the accused to come in the witness box to support his defence.
"24. Applying the preposition of law as noted above, in facts Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 6 of 18 CHEEMA Date:
2023.09.25 16:12:49 +0530 of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability."
13. Ld. Counsel for the accused has argued that the complainant does not know the name of the accused as the same has been wrongly mentioned as Irfan Malik whereas the name of the accused is Mohd. Irfan. Further, the complainant did not know the correct address of the accused and did not prove the service of legal demand notice. The complaint is not maintanable as the same has been filed in the individual name i.e. Sunil Sharma but the cheque is in the name of R.S. IT Solutions Pvt. Ltd. And the company has no relations or transactions with the respondent/accused as per record. Further, the complainant has not filed any board resolution authority to authorize himself to contest this case or to prove that complainant is the director of the company. The cheque in question has been manipulated as the same was given for an amount of Rs. 2000/- where as number "7" and "1" has been added later on and the same can be seen by naked eye that the number "7" and "1" has been filled in different ink in regard to the other particulars of the cheque in question. The signature on the cheque are not admitted and the complainant has not taken any steps regarding the same. Further, the Ld. Counsel for accused has relied upon following judgments titled as "HDFC Bank Ltd. Vs. Amit Kumar", "RL Varma & Sons (HUF) Vs. P.C. Sharma" decided by Hon'ble High Court of Delhi on 01.07.2019, M/s Dalmia Cement, "K Bhaskaran Vs. Sankaran reported in (1999) 7 SCC 510", "Anil Raj Vs. Integrated Finance Co. Ltd. On 04.01.2005, Kerala High Court reported in 2006 (1) ALD Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 7 of 18 CHEEMA Date:
2023.09.25 16:12:56 +0530 Cri 36", "Dale & Carrington Investment (P) Ltd. And Another Vs. P.K. Prathapan & Ors reported in (2005) 1 SCC 212", "Bupesh Rathod Vs. Dayashankar Prasad Chaurasia & .... on 03.08.2015 SCC Online Bom 4473", "Andhra High Court Nayagam Lourd Prakash Vs. Standard Chartered bank & Anr on 24.10.2000, 2000 (2) ALD Cri 731", "Madras High Court in M.Mallika Vs. Kasi Pillai on 21.06.2019", "Vijay Vs. Laxman & Anr on 07.02.2013", "Basalingappa Vs. Mudibasappa on 09.04.2019", Krishna Janardhan Bhat Vs. Dattatraya G Hegde on 11.01.2008 by Hon'ble Supreme Court of India"
14. Ld. Counsel for the complainant has stated in rebuttal has stated that the the complainant was not cross examined by the Ld. Counsel for the accused.
15. File perused and arguments heard. After going through the record and hearing submissions advanced on behalf of the parties, there is only one issue :-
1) Whether the present complaint is maintainable?
2) Whether the present cheques in question were issued in the discharge of of his existing debt and liability towards the complainant?
16. Law regarding the ingredients of the offence punishable Section 138 NI Act is well settled. It was held by the Hon'ble Apex Court in the case of 'K. Bhaskaran vs. Sankaran Bala' [1999 (7)SCC 510], that ''Offence under section 138 of the NI Act, can be completed only with the concatenation of a number of facts namely, Digitally signed
i) drawing of the cheque; by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CHEEMA Date:
2023.09.25 16:13:02 +0530 CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 8 of 18
ii) presentation of the cheque to the bank;
iii) returning the cheque unpaid by the drawee bank;
iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount;
v) failure of the drawer to make payment within 15 days of the receipt of the notice''.
17. It was further held in the above mentioned case that:-
''As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act, can be legally be inferred that the cheque was made or drawn for consideration, on the date which the cheque bears. Section 139 of the Act enjoins the court to presume that the holder of the cheque received it for discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption''.
18. It is relevant here to mention section 142 of NI Act :
a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
b) such complaint is made within one month of the date on which the cause of action arises under clause ( c ) of the proviso to section 138;
c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.
19. Ld. Counsel for the complainant has submitted that there exists legally enforceable liability in favour of the complainant. He has further submitted that the complainant received no payment within 15 days of the service the legal notice. Ld. Counsel for complainant Digitally signed ARIDAMAN by ARIDAMAN SINGH SINGH CHEEMA CHEEMA Date: 2023.09.25 16:13:14 +0530 CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 9 of 18 has thus submitted that all the ingredients laid down u/s. 138 NI Act are fulfilled and the accused persons should be convicted.
20. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the complainant, one under Section 139 NI Act and another u/s 118(a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the nonexistence of the consideration so probable that a prudent may ought under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence.
21. It has been argued by counsel for the accused, at the stage of final arguments, that the burden upon the accused is that of preponderance of probabilities and the same had been discharged by him, by pointing out the inherent improbability of the case of the complainant, and by the defence led by him. At this stage it would be fruitful to once again refer to Judgment of Hon'ble Apex Court rendered in, 'Basalingappa v. Mudidasappa', AIR 2019, SC 1983, wherein it was further observed as hereunder:-
"17. In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, this Court again examined as to when complainant discharges the burden to prove that instrument was executed and when the burden shall be shifted. In paragraph Nos. 18 to 20, following has been laid down:- "18. Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable Digitally signed by ARIDAMAN ARIDAMAN SINGH CHEEMA SINGH Date:
CHEEMA 2023.09.25 CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 10 of 18 16:13:23 +0530 instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19 19. The use of the phrase "until the contrary is proved" in Section 118 of the Act and use of the words "unless the contrary is proved" in Section 139 of the Act read with definitions of "may presume" and "shall presume" as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. ........................
The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the nonexistence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. 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......" Digitally signed ARIDAMAN by ARIDAMAN SINGH SINGH CHEEMA Date: 2023.09.25 CHEEMA 16:13:29 +0530 CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 11 of 18
22. Applying the principles as elucidated above to the facts of the case at hand, wherein, the signatures on the cheque in question are not being admitted by the accused but no proof to rebut the same has been brought on record, is thus, a fit case to draw the presumption envisaged under Section 118 read with Section 139 of the NI Act, in favour of the complainant. Now, let us begin to examine whether the accused has been able to discharge the burden upon him on the scale of preponderance of probabilities.
23. A cumulative analysis of the above decision reveals that though the burden on the accused is that of preponderance of probabilities, he need not even enter the witness box in support of his defence and may rely upon the material submitted by the complainant in order to raise a probable defence. The accused is also not expected to disprove the existence of the consideration and debt by leaving direct evidence because of the impossibility of adducing negative evidence. However, as has been categorically held by the Hon'ble Supreme Court, a bare denial of the passing of the consideration and existence of debt, would not serve the purpose of the accused. Something must be brought on record for getting the burden of proof shifted to the complainant whether it be in the form of evidence led by him or by pointing out the inherent improbabilities in the case as set up by the complainant.
24. Now, let us begin to examine, if the accused has on the scale of preponderance of probabilities been able to rebut the presumption envisaged under Section 118 (a) read with Section 139 of NI Act. To Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 12 of 18 CHEEMA Date:
2023.09.25 16:13:37 +0530 show that there was no legally enforceable debt or liability existing in favour of the complainant as on the date written on the cheque or on the date of their presentation, the following submissions have been made by the accused:
(a) That the complaint is not maintainable as it has been filed in the individual name of the complainant whereas the cheque in question is given to RS IT Solutions Pvt. Ltd. And there is no board resolution authorizing the complainant to file this complaint;
(b) That the cheque has been filled with two different inks and the hand writing expert is of the opinion that two numbers 7 and 1 were added before the figure 2000 in the question;
(c) That the legal demand notice was not served to the accused as the name mentioned in the legal demand notice is Irfan Malik wherein the name of the accused is Mohd. Irfan;
25. Ld. counsel for the complainant has made the following counter arguments to the submissions made on behalf of the accused:
(a) The the relation between the parties is admitted.
(b) That the hand writing expert has admitted in his cross-
examination that he has not gone through the order of the court before giving his report in present case which means that the report has been prepared at the pretext.
(c) That the legal demand notice has been sent on the correct address and the same address has been mentioned in the bail bonds furnished by the accused.
26. It is pertinent to mention here that as per judgment in Bir Singh Vs. Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 13 of 18 CHEEMA Date:
2023.09.25 16:13:43 +0530 Mukesh Kumar (Crl. Appeal No.230-231 of 2019), Hon'ble Supreme Court has observed :
"37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted.
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." In Ravi Chopra vs State & Anr, Honble High Court of Delhi held: "Section 20 NI Act talks of "inchoate stamped instruments; and states that if a person signs and delivers a paper stamped in accordance with the law and;either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp."
xxx xxx xxx "A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a; material alteration; for the purposes of Section 87 NI Act. What however is essential is that the cheque must Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CHEEMA CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 14 of 18 Date:
2023.09.25 16:13:54 +0530 have been signed by the drawer;"
27. It is also here pertinent to mention one judgement Dale And Carrington Invt. P. Ltd. & Anrs vs P.K. Prathapan And Others (2005) 1 Supreme Court Cases 212 reproduced below:
"Held, an individual director has no power to act individually unless by some resolution of the Board of Directors of the company specific power is given therefore"
"Held: A company is a juristic person and it acts through its Directors who are collectively referred to as the Board of Directors. An individual Director has no power to act on behalf of a company of which is a Director unless by some resolution of the Board of Directors of the company specific power is given to him/her."
28. It is relevant here to mention in (1998) 1 SCC 687 Associated Cement Co. Ltd. v. Keshavanand:
"it makes clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes to be the complainant in the case. In other words, when the component to a body corporate it is the de jure complainant, and it must necessarily associate a human being as defacto complainant to represent the former in court proceedings ........................ Be that so, we suggest as a pragmatic proposition that no magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There e may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire for, the company's service or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CHEEMA Date:
2023.09.25 CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 15 of 18 16:14:00 +0530 practically difficult for the company to continue to make the same person represent the company in the court . In any such eventuality it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court."
It is relevant here to mention Bhupesh Rathod Vs. Dayashankar Prasad Chaurasia & Anr. Crl. Appeal No. 1105 of 2021 of Hon'ble Supreme Court of India:
"24. While we turn to the authorisation in the present case, it was a copy and, thus, does not have to be signed by the Board Members, as that would form a part of the minutes of the Board meeting and not a true copy of the authorisation. We also feel that it has been wrongly concluded that the Managing Director was not authorised. If we peruse the authorisation in the form of a certified copy of the Resolution, it states that legal action has to be taken against the respondent for dishonour of cheques issued by him to discharge his liabilities to the Company. To this effect, Mr. Bhupesh Rathod/Sashikant Ganekar were authorised to appoint advocates, issues notices through advocate, file complaint, verifications on oath, appoint Constituent attorney to file complaint in the court and attend all such affairs which may be needed in the process of legal actions. What more could be said?"
In the present case no authorization or even its copy has been filed. Nowhere in the complaint or in the evidence by way of affidavit it has been mentioned that the complainant has been authorized on behalf of the company.
FINDINGS OF THE COURT
29. With respect to the plea of the accused that the complainant has no power to prosecute present complaint stands proved. As held by Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 16 of 18 CHEEMA Date:
2023.09.25 16:14:08 +0530 Hon'ble Supreme Court in Dale And Carrington Invt. P. Ltd. & Anrs vs P.K. Prathapan And Others (2005) 1 Supreme Court Cases 212 and Bhupesh Rathod Vs. Dayashankar Prasad Chaurasia & Anr. Crl. Appeal No. 1105 of 2021 of Hon'ble Supreme Court of India. There is no authorization as per the section 142 of NI Act. As the complaint has not been filed by the person who is duly authorized by the company to institute the proceedings or the holder in due course. The complainant in the present case was at liberty to file letter of authority at any stage of trial but he has failed to do the same. The present complaint does not fulfill the criteria mentioned in section 138 NI r/w 142 NI Act. The counsel for the complainant has confronted the accused with documents DW1/C1 running into 8 pages and DW1/C2 running into 9 pages but he has not placed on record any certificate u/s 65 B of Indian Evidence Act. Even if these documents are to be relied then it has been mentioned in the Email dated 25.07.2009 by Sunil Sharma in which the complainant himself has requested the accused that the payment of Rs. 1,00,000/- is pending, which also disapproves the theory that the accused was liable for the amount of Rs. 7,12,000/-. Another contradiction is that the complainant in his complaint and evidence by way of affidavit has stated that accused had borrowed 7,12,000/- from the complainant for personal need, whereas in his cross-examination of DW-1, Ld. Counsel for the complainant are putting the documents regarding the business transactions.
CONCLUSION
30. Thus, this court arrives at the following conclusion on the basis of the above discussion that the complainant had no authority to file the Digitally signed by ARIDAMAN ARIDAMAN SINGH SINGH CHEEMA CHEEMA Date:
CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 17 of 18 2023.09.25 16:14:17 +0530 present complaint in compliance with section 138 NI Act r/w 142 NI Act and there are many contradictions. The accused on the basis of preponderance of probabilities is able to cast the shadow on the case of the complainant.
31. In the light of the foregoing reasons, the present case is a fit case where benefit of doubt ought to be extended to the accused as the accused has been able to rebut the presumption u/s 118 NI Act read with Section 139 NI Act. The complainant has miserably failed to, and in fact sought to set up a case based on false facts, resultantly, the accused Irfan Malik stands acquitted of the offence under section 138 of NI Act.
Copy of digitally signed Judgment be supplied to the accused, free of cost and a copy of the same be placed on the case file.
Digitally signed
Decided on 25.09.2023 ARIDAMAN by ARIDAMAN
SINGH SINGH CHEEMA
Announced in open court. CHEEMA Date: 2023.09.25
16:14:24 +0530
(Aridaman Singh Cheema)
MM-03/KKD/SHD/Delhi /25.09.2023
This judgment contains 18 pages and all pages bears my digital signatures.
Digitally signed ARIDAMAN by ARIDAMAN SINGH SINGH CHEEMA CHEEMA Date: 2023.09.25 16:14:31 +0530 (Aridaman Singh Cheema) MM-03/KKD/SHD/Delhi /25.09.2023 CC No. 7330/2016 Sunil Sharma Vs. Irfan Malik Page No. 18 of 18