Delhi District Court
Wg. Cdr. Dr. M.L. Bala S/O Late Sh. P.N. ... vs M/S. Apollo Sindhoori Capital ... on 23 August, 2010
IN THE COURT OF SH. PULASTYA PRAMACHALA
CCJ:ARC(EAST):MM:KARKARDOOMA COURTS: DELHI
Complaint No. 2029/08
ID NO: 02402R0151442006
PSMayur Vihar
Wg. Cdr. Dr. M.L. Bala S/o Late Sh. P.N. Bala
R/o D705, Purvasha Apartments,
Anandlok Society, Mayur ViharI,
Delhi110091 .............. Complainant
Versus
1.M/s. Apollo Sindhoori Capital Investments Ltd. Ali Towers, 55 (Old No.22) Greams Road, Chennai600 006 Through its Chairperson/Executive Director, Also at:
C31, Sector2, (Adjacent to 'Nirulas') Distt. Gautam Budh Nagar, Noida201 301 (U.P.)
2. Sh. M. Prasad, Franchisee, M/s. Apollo Sindhoori Capital Investments Ltd. S12A, DDA Local Shopping Complex, Mayur ViharI, Delhi - 110 091
3. Sh. Rajesh Dhar, M/s. Apollo Sindhoori Capital Investments Ltd. S12, DDA Local Shopping Complex, Mayur ViharI, Delhi110091.
................ Accused
CC no.2029/08 Page no: 1/8
Offence complained of : u/s. 138 Negotiable
Instruments Act
Plea of accused : Not guilty
Complaint filed on : 14.03.2006
Date on which judgment was reserved: 18.08.2010 Date of decision : 23.08.2010 Decision : Convicted J U D G M E N T :
1. Briefly stated the relevant facts of the complaint are that accused no.1 is public limited company engaged in the business of stock market and rendering services to its clients. Accused no.2 was franchisee of accused no.1 company and accused was no.3 was employee/Incharge of accused no.2. In September 2005, complainant approached accused no.2 with a request to sell his shares of various companies having approximate value of Rs.2,69,000/. He handed over the same to accused no.2 with instructions to use Rs.50,000/ only for the purpose of trading and to deposit the balance amount realized after sale of the shares in the saving bank account no.4496 of the complainant.
Complainant was allotted client ID No. and trading account no by accused no.2. However, accused no.2 & 3 started using whole money of Rs.2,69,000 in trading contrary to the understanding between complainant and accused no.2. Complainant received a printed statement issued by accused no.1 on 04.11.2005, wherein an amount of Rs.14,011.10 was CC no.2029/08 Page no: 2/8 shown to be paid by the complainant to accused no.1. Complainant expressed his anguish through his letter dated 19.11.2005 sent to accused no.2 and through EMail dated 27.11.2005 sent to accused no.1. Later on, accused no.2 & 3 agreed to return the complainant's money. Accused no.3 on behalf of and with consent of accused no.2 issued amongst other, post dated cheque bearing no.039322 dated 15.01.2005 for Rs.50,000/, drawn on Corporation Bank, Noida from the account no.71512 maintained by accused no.3, with promise that the same shall be encashed on its presentation. Complainant presented this cheque for encashment but same was returned back dishonored on account of reasons (funds insufficient) from the banker of the accused no.3. Complainant sent legal notice dated 13.02.2006 sent through registered A/D and UPC to all the accused persons thereby making demand to make payment of the cheque amount. The notice was duly served upon all the accused persons, but they did not make payment of the cheque amount. Accused no.1 sent a reply dated 25.02.2006 to this notice, wherein it raised objection regarding serving a notice upon them, hence the present complaint.
2. Vide order dated 17.03.06, only accused no.3 was summoned in this case. Though, later on accused no.2 also appeared, however, once again a statement was made by CC no.2029/08 Page no: 3/8 complainant to withdraw the complaint against him and accused no.2 was acquitted of the charges vide order dated 05.02.2008. Notice of accusation was explained to the accused no.3 on 05.02.2008 itself to which he pleaded not guilty.
3. Complainant examined himself in support of his case. Thereafter, accused no.3 was examined U/S 281 Cr.P.C. on 23.03.2009. Accused no.3 summoned accused no.2 as witness in this case who was examined as DW1. No other witness was examined on behalf of accused.
4. Both parties made their rival arguments and filed written arguments. I have given due consideration to the contentions made before me and perused the record of this case.
5. In this case, it is not in dispute that the cheque in question was issued by accused no.3 to the complainant. The only defence taken by accused no.3 is that he was an employee of accused no.2 and this cheque was given by him on behalf of accused no.2 as cashier of accused no.2 was not available on the relevant day. He had issued this cheque on the basis of assurance given by accused no.2 to deposit the amount of cheque in his account. Since he was employee of accused no.2, he had to obey his instructions. However, accused no.2 did not deposit the amount of the cheque in the account of accused no.3, therefore, the cheque was dishonored. Accused has taken plea CC no.2029/08 Page no: 4/8 that this cheque was not given out of his personal liability, therefore, he cannot be held liable for offence u/s. 138 Negotiable Instrument Act. Similar suggestion was given by accused to the complainant in his cross examination i.e. cheque in question was issued by accused no.3 to discharge the liability of accused no.2. Thus, there is no dispute raised on behalf of accused no.3 that when these cheques were issued by accused no.3, there was legally enforceable liability against accused no.2 and in favour of the complainant. Even complainant has pleaded and deposed that accused no.3 was employee of accused no.2 and he had no personal transaction with accused no.3.
6. Thus, the only question to be decided by this court is that whether accused is liable under section 138 Negotiable Instrument Act for issuing the cheque in question in discharge of liability of accused no.2 towards complainant? To counter the aforesaid plea raised by accused no.3, complainant relied upon following case laws:
1) Alexender Vs. Joseph Chacko, 1994 (1)Crimes 388
2) Pratap Singh Vs. Atal Bihari, 2003 (2) Crimes 343
3) Gummadi Industries Ltd. Vs. Khushroo F. Engineer 1999, Crl.L.J. 4246
7. In the first cited case, Kerala High Court held that "the CC no.2029/08 Page no: 5/8 section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee. If the intention of the Parliament was otherwise the words "of any debt or other liability" would have been further qualified by adding the words "of the drawer"........... this means the debt or other liability may be due from any person. It is not necessary that the debt or liability should be due from the drawer."
8. In the second case, Delhi High Court dismissed a case against the person who had allegedly taken the loan but had not issued the cheque in question, holding that he could not have vicarious liability for offence by implication or otherwise.
9. In third case also, Madras High Court held a promoter alone to be liable to be prosecuted u/s. 138 Negotiable Instrument Act in a case wherein the liability and debt was legally enforceable against the company. However, the cheques were issued to the complainant by promoter of that company in his individual capacity. The court held that only promoter would be the drawer and shall be liable to be prosecuted alone. Hence, proceedings against company were quashed.
10. On the other hand in written arguments, accused has referred to a number of cases, which talk about the rebuttal of presumption u/s. 139 Negotiable Instrument Act. In my opinion, CC no.2029/08 Page no: 6/8 there is no occasion in this case to go into question of rebuttal of presumption u/s. 139 Negotiable Instrument Act, because there is no dispute at all that a legally enforceable debt was arising against accused no.2 and in favour of complainant. There is no dispute that accused no.3 had issued the cheque in question on behalf of accused no.2 in order to discharge the liability upon accused no.2. No dispute has been raised on behalf of accused no.3 that the notice was not served upon the accused persons or that the given address in the legal notice was correct address of all the accused persons. The single plea raised by accused no.3, to the effect that he was not personally liable towards complainant, stands negated by the judgment passed by Kerala High Court in the case of Alexender Vs. Joseph Chacko, as mentioned above. Infact other two case laws cited by complainant further corroborate the situation of law that a drawer need not have personal liability towards the complainant in order to become liable u/s. 138 Negotiable Instrument Act. Once a person opts to draw a cheque in order to discharge liability of any other person, he assumes the responsibility upon himself to discharge such liability. Therefore, he cannot take plea that he did not have personal liability towards the complainant. If such plea is accepted, then the complainant shall not have any recourse available to him, in case the cheques CC no.2029/08 Page no: 7/8 given to him are dishonored. He won't be able to prosecute the person, who was having the liability because there is no concept of vicarious liability in criminal law. The drawer of the cheque shall skip the liability taking such plea that he did not have any personal liability towards the complainant.
11. Therefore, in my considered opinion, the defence taken by the accused cannot be sustained. Hence, he is held liable and guilty for offence punishable u/s. 138 Negotiable Instrument Act.
Announced in the open (PULASTYA PRAMACHALA) Court on 23.08.2010 CCJ/ARC(EAST)/MM (contain 8 pages only) KARKARDOOMA COURTS: DELHI CC no.2029/08 Page no: 8/8