Delhi District Court
M/S Yashika Lerasing And Financial ... vs Mrs. Jaypreet Kaur Sawhney on 23 July, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE EAST
DISTRICT, KARKARDOOMA COURTS, DELHI.
Presided by: Sh. Divyam Lila 3
Yashika Leasing & Financial
versus Jaypreet Kaur Sawhney
Service Ltd.
Ct. Case No. : 56714/2016
Jurisdiction : P.S Shakarpur
Unique ID/ CNR No. : DLET02-002461-2016
M/s. Yashika Leasing and Financial
Services Ltd. O/o 188, Bank Enclave,
Name of the Complainant :
Laxmi Nagar, Delhi-92, Through Sh.
Abhishek Verma, Director.
Mrs. Jaypreet Kaur Sawhney, Prop. of
M/s. Jaypreet Kaur Sawhney & Company,
Name of the Accused(s) :
O/o B-612, Sushant Lok-I, Block-B,
Gurugram, Haryana.
Counsel for the Complainant : Ms. Seema Singh.
Counsel for the Accused : Sh. Mohit Chaudhary.
Date of instituion of case : 09.03.2016
Date of Judgment : 23.07.2024
Final Order : Convicted
Offence under Section : Under Section 138 NI Act
-:JUDGMENT:-
STATEMENT OF FACTS AND REASONS FOR DECISION
1. The accused is facing trial for commission of offence punishable 6
u/s 138 of The Negotiable Instruments Act, 1881 (in short, NI
Act).
In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
Facts in brief:
2. As per complaint, the complainant states that the complainant is a registered company and the accused is in business of 3 manufacturing and marketing of ready made garments having business as a proprietor. Due to the relation between the accused and the complainant, the accused and the complainant had 6 entered into the business of franchising shop of the accused at Saket Mall, Delhi; wherein the franchisee agreement was executed between the parties. Under the said agreement, the 9 complainant had deposited ₹50,00,000/ to the accused as refundable interest free security with a condition that on completion of the agreement the said security deposit will be 12 refunded. The case of the complainant that accused had issued cheque bearing number 001859 dated 31 October 2015, amount into ₹50,00,000/, and the agreement dated 22 December 2014 15 was expired on 31 October 2015, the complainant had deposited the cheque in question after issuing the intimation to the accused. The chequein question became dishonoured vide return dated, 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 2 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. 20 January 2016, the complainant sent a legal demand notice dated 08.02.2016 to the accused by registered post advising him to pay the amount of the cheque within 15 days of the receipt of 3 the notice. The accused did not pay the cheque amount for discharge of his liability even after expiry of statutory period of 15 days from the date of service of notice and hence the present 6 case.
3. The cognizance of the offence u/s 138 NI of Act was taken by Ld. Predecessor of this court and thereafter where the accused 9 was summoned; thereafter the accused put up his appearance before the court and then the notice u/s 251 Criminal Procedure Code, 1973 (in short, "Cr. P. C") was framed. 12 Notice:
5. Notice u/s 251 of Cr. P. C was served upon the accused. The accused did not plead guilty and claimed trial. The accused had 15 admitted that the signature on the cheque belonged to her and the same was issued as security in blank signed condition.
6. Thereafter, the matter was listed for Complainant's Evidence. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 3 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
Complainant's Evidence:
7. To substantiate his case, the complainant through his 3 AR/Director adduced his evidence by affidavit as CW1.
Thereafter the evidence of the complainant was closed. The complainant was examined and cross examined as CW1. The 6 CW 1 reiterated the facts mentioned in the complaint and relied upon documents filed along the case. The witness was cross examined on behalf of the accused. During the same, following 9 notable points were stated, relevant parts of which are reproduced verbatim:
1. "There are three directors in the complainant company 12 namely Minakshi Verma, Mahender Kumar Verma & myself and we three are the share holders of the complainant company. As per the MOA of the 15 complainant company we can work as dealers or manufacturers of textiles and cotton products. There is nothing in particular with regard to the company 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 4 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
becoming a franchise. I am 29 years old. I got married on 23.11.2015. All three directors of the complainant company were looking after the management of the 3 'Trendy Diva Outlet' at 270 271 First Floor, DLF Place Mall, Saket, Delhi. According to the agreement between the complainant and the accused the amount of stock 6 available in the store should have been double the security amount which is rupees one crore. The nature of stock available in store broadly was Tops, Tunics, 9 dresses and gowns. It is correct that there were wedding gowns, Lehngas and other cloth items available in the store. The value of top of the line product available in 12 the store would be around Rs.25,000/ to Rs.27,000/. It is correct that the MRP of certain top of line products available in the store was ranging between Rs.50,000/ 15 to Rs.60,000/. It is wrong to suggest that I had traveled to other stores, like the factory of Trendy Diva, to make available the product for any client. I was personally 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 5 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
looking after the affairs of the store. As a nature of work I was making sure that the hot selling stock was available in our store at the right time. The other 3 directors of the complainant company were not involved in any of such activity.
2. The average daily sale of the store was about 6 Rs.40,000/ to Rs.50,000/during the initial months of the agreement.
3. Q.Is it correct that before the agreement dated 9 22.12.2014 there was an earlier agreement between your company and the accused which is dated 01.11.2014? Ans.:There was an agreement dated 12 01.11.2014 but the accused requested us to change certain terms in that agreement as they felt that the monthly commission is too high, therefore, the 15 agreement dated 22.12.2014 was made between complainant and the •accused which superseded agreement dated 01.11.2014. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 6 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
4. However, the security cheque was given under the agreement dated 01.11.2014. I can produce the agreement dated 01.11.2014. At this stage the witness 3 has produced the said agreement in original. Copy of the same is taken on record and exhibited as Ex.
CW1/XOSR). 6
5. It is correct that as per the agreement dated 01.11.2014 we were required to pay rent, common area maintenance, electricity charge, wage, salary of 9 employees, security, telephone & Internet charges etc.
6. Can you show from the record that the payments and expenses mentioned above were made by you for the 12 month of November December 2014? Ans. No. We do not have it on record that the payments and expenses mentioned above were made by us for the month of 15 November December 2014. The accused was supposed to deduct the abovementioned expenses from the monthly commission and pay the remaining to us on 05 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 7 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
days of every month as the rent agreement and the common maintenance agreement was in the name of the accused with DLF mall. 3
7. Can you specify the amount which was deducted under the head of expenses for the month of November December 2014? Ans.: Yes. The rent expenses was 6 Rs.4,96,179/, the common area maintenance expenses was Rs.91,382/, AHU (chiling) expenses Rs.24,685/, Electricity charges was Rs.32,386/(approximately), 9 security expenses was Rs.16,495/ & salary expenses was Rs.64,580/ for five employees. The above expenses are on a monthly basis. There was no payment made 12 towards telephone & Internet charges as the telephone bill and the Internet bill came in the name of the accused and it was not provided by the accused to the 15 complainant company.
8. Q.: Can you give the break up of accounting, which demonstrates that the above expenses were deducted by 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 8 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
the accused as per your version? Ans.: Yes. Same is mentioned in the bank statement of the complainant for the month of December 2014. The monthly commission 3 for the period of November 2014 is displayed in the bank statement of December 2014. The monthly commission for the period of December 2014 was calculated as per 6 the agreement dated 22.12.2014. We have the email from the accounts department of the accused which states how the calculation was made. 9
9. I put it to you that there is nothing on record to demonstrate that you have made the payments for the months of November December, 2014 and whatever 12 you are saying in answer to earlier question is without any basis? Ans. It is denied.
10.Q.: Is it correct that prior to November 2014 there was 15 a financial transaction between the complainant and the accused company? Ans:. It is correct. There was a loan agreement between Complainant and the accused which 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 9 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
was made in April 2014 for the period of six months. The same was concluded on 31.10.2014 and the interest payment as well as the principal amount was repaid by 3 the accused to the complainant. Same is reflected in the bank statement.
11.Q.: Can you explain the word 'margin' as mentioned in 6 para no. 6 of agreement dated 01.11.2014? Ans:.As per the agreement dated 01.11.2014 the margin was to be calculated as follows: For the month of November the 9 same was Rs.20,00,000/ so upto Rs.14,99,999/ 60% was to be calculated on this amount which came out Rs.9,00,000/ and between Rs.15,00,000/ to Rs. 12 19,99,999/ the margin was calculated as 50% which came out Rs.2,50,000/. So since the monthly sale of November 2014 was Rs,20,00,000/, the total margin 15 came out to be Rs.11,50,000/. Now after deducting the monthly expenses of Rs.7,25,707/ the accused was supposed to make the payment of margin of 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 10 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
Rs.4,25,000/ (approximately), this is the margin calculation for the month of November 2014.
12.Q.: I put it to you that your understanding of 'margin' is 3 incorrect as according to clause 7 of the agreement, if there is an increase in rent the net margin of the second party will be increased accordingly? Ans. According to 6 the agreement if the rent increased the accused will increase the net margin of the second party accordingly and clause 6 of the agreement dated 01.11.2014 was 9 subject to change. Clause no. 6 was variable and dependent upon change in rent.
13.Can you explain the terms 'ratio' as mentioned in clause 12 no. 8 of agreement dated 01.11.2014? Ans:The term ratio in clause 8, means the same as in clause 6. According to clause no. 6 the margin of the complainant 15 was calculated as 60%, 50% and 45% on gross sales. So the remaining portion of the gross sale i.e. 40%, 50% & 55 % was to be deposited with the accused. Also it is 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 11 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
already mentioned in clause 8 that the net margin will be paid in the 5" day of every month by the accused to the complainant and the net margin will be paid after the 3 payment of rent, cam, AHU charges, electricity charges, wages, salary of employees, security, telephone and Internet charges. 6
14.The sale in the month of November 2014 was Rs.20,00,000/ (approximately).
15.Q: According to the understanding given by you, you 9 were to get an amount of Rs.9,00,000/ less an expense of Rs.7,25,000/, therefore, a sum of Rs.1,75,000/ was to be paid as margin to you for the month of November 12 2014. However, in this case more amounts have been paid and no accounting till date has been done between your company and the accused? Ans:.No. It was not so. 15 As per my previous answer the net margin was to be calculated after deducting Rs.7,25,000/ from Rs.11,50,000/ which was the monthly calculation for the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 12 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
month of November 2014 which came out to be Rs.4,25,000/ approximately. The accused has made the payment in three installments Rs.1,16,851/ on 3 08.12.2014, Rs.1,55,480/ on 12.12.2014 & Rs.1,20,656/ on 17.12.2014.
16.Q.: As per clause no. 10 of agreement dated 01.11.2014 6 The accused had the right to inspect the records pertaining to the business run in the showroom, on what date the accounts between you and the accused were 9 finally settled? Ans.: The accounts between the accused and complainant company have not been settled till date.
17.Q Is it correct that the stocks available in the store 12 were entrusted to you as against the security amount in terms of clause no. 12 of the agreement dated 01.11.2014? Ans.: It is correct. 15
18.Q: I put it to you that on several occasions there was breach of para no. 12(h) of the agreement dated 01.11.2014, which was notified to you and a large 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 13 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
number of stock was missing due to such conduct of yours, what do you have to say about the same? Ans.:It is incorrect. No such actions have been taken by the 3 complainant company. When the complainant took over the store as a franchise there was already a shortage of 800 pieces in the system of store and we had brought it 6 to the notice of the accused to kindly erase the shortage from the system as we want to start from a clean slate. We had sent several messages to the accused to make the 9 shortage zero in November, December, January & February but they did not make the shortage as zero and it was like this till the time they closed the store on 12 01.01.2016.
19.Is it correct that no document pertaining to the financial transaction prior to November 2014 is brought on 15 record by you, namely the agreement and account statement? Ans: It is correct. However, the earlier transaction has no bearing with this case. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 14 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
20.Q.: Can you produce the documents of prior transactions i.e. the alleged loan agreement and ledger account thereof before the court? Ans.:Yes. I can 3 produce the same.
21.At this stage witness has produced the loan document, ledger account for the period from 01.04.2014 to 6 28.02.2017 and bank statement for the period from April 2014 to December 2014, the same are taken on record and hereby exhibited as Ex. CW1/X1, Ex.CW1/X2 and 9 CW1/X3.
22.Can you explain as to how much amount was paid by the accused from 01.04.2014 till 31.03.2015? Ans. Yes I 12 can provide the details. The same is as follows: For months from April 2014 to September 2014 the amount was Rs.90000/ (which is Rs.1,00,000/ less TDS). This 15 amount was interest for the loan agreement dated 15.04.2014 between the accused and the complainant. For the month of October 2014 the accused repaid the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 15 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
principal amount of Rs.50,00,000/ on 31.10.2014 along with 17 days interest of Rs.55,890/ for the month of October as a loan agreement was extended for 17 days 3 on the request of the accused. We have written an email to prove the same. Then for the month of December 2014 the payment made was Rs.4,36,652/ after deducting 6 10% TDS. Then for the month of January 2015 the accused made payment of Rs.3,16,934/ after deducting 10% TDS. Thereafter in February 2015 the accused paid 9 Rs.2,73,456/ after deducting 10% TDS. Thereafter in March 2015 the accused paid Rs.2,22,852/ after deducting 10% TDS. 12
23.Can you explain as to how much amount was paid by the accused from 01.04.2015 till 31.03.2016? Ans.: In April 2015 the accused paid Rs.2,80,739/ after 15 deducting 10% TDS. In May 2015 the accused paid Rs.2,06,253/ after deducting 10% TDS. In June 2015 the accused paid Rs.2,17,976/ after deducting 10% 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 16 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
TDS. In July 2015 the accused paid Rs.1,79,472/ after deducting 10% TDS. In August 2015 the accused paid Rs.2,26,106/after deducting 10% TDS. In September 3 2015 the accused paid Rs.1,77,748/ after deducting 10% TDS. In October 2015 the accused paid Rs.1,64,068/ after deducting 10% TDS. In November 6 2015 the accused paid Rs.1,94,522/ after deducting 10% TDS. In December 2015 the accused paid Rs.1,70,879/ after deducting 10% TDS. The accused did 9 not pay any amount for the month January to March 2016.
24.Question: Is it correct that the security of goods lying at 12 Trendy Diva Store 255 First Floor, DLF Promenade Mall, Vasant Kunj, Delhi was with the complainant? Ans.: Yes. 15
25.Q.:Can you specify the value of the goods / stock generally available at Trendy Diva Store 255 First Floor, DLF Promenade Mall, Vasant Kunj, Delhi? 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 17 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
Ans.: It ranged from rupees one crore to rupees one crore fifty lacs. At this stage witness is confronted with email dated 27.04.2017 which is hereby exhibited as Ex. 3 CW1/X4.
26.Q. Did you receive email Ex. CW1/X4. Ans. No. I did not receive email Ex. CW1/X4. 6
27.Q.Whether email account i.e. [email protected] belongs to you? Ans.:Yes the email address belongs to me. 9
28.Q.: I put it to you that the Ex. CW1/X4 clearly indicates that the email dated 27.04.2017 is copy to you on the said ID [email protected]. ? Ans.: The said 12 email is not copied to me as this is a forwarded email and has only been sent from Kamalpreet at Trendy Diva to himself as can been seen in the attached photocopy in 15 the 'from and to' section.
29.Q.: Whether the forwarded email dated 26.11.2015 at 09:04 PM was received by you? Ans:.This email was not 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 18 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
received by me as this has not been sent by the accused and it can be easily edited by clicking the forwarded or reply option on Microsoft outlook. 3
30.Whether shortage of stock was known to you at DLF Saket store? Ans.: At the time of taking franchise of the store it was known to the complainant that there was 6 shortage of about 800 pieces in the store and the same was communicated to the accused multiple time to make the shortage zero. We have written proof of the same. 9
31.Q.:Can you demonstrate from the record any such communication? Ans:.No. However, I can bring the same. 12
32.At this stage witness is confronted with an email dated 27.04.2016, which inturn forwards an email dated 01.01.2016, same is exhibited as Ex. CW1/X5. 15
33.Q.: Ex. CW1/5 demonstrates shortage in stock at DLF Saket store, whether any steps were taken to reconcile the said position? Ans.: As I have mentioned above there 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 19 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
was already shortage of 800 pieces on 01.11.2014, the same shortage has been carried on from the time the store was opened 07 years ago and the same shortage 3 was there till the time the store was closed on 01.01.2016. Several messages were made to the accused to clear the shortage as we wanted to start from a clear 6 slate and remove all the previous shortage but these messages were ignored by the accused and he did not make the shortage as zero. 9
34.Q.:Can you demonstrate from the record any such communication? Ans:.No. However, I can bring the same. 12
35.Q. Whether you are carrying documents as was asked in your crossexamination dated 26.08.2017? Ans. I have brought the same today. 15
36.At this stage witness has produced print out of whatsapp messages sent by the witness to Sh. Gurpreet Sahni (husband of the accused), same is hereby marked as 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 20 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
MarkCW1/X6 (colly for 6 pages). I have also brought print out of emails sent to me by the accused on 09.09.2015, 26.11.2015, 02.01.2016 & 03.01.2016, same 3 are collectively marked as Mark CW1/X7(colly for 8 pages).
37.Q. Can you explain the nature of your business? Ans. 6 financing. The complainant company deals in leasing and financing.
38.Q. Is it correct that the complainant is not in the 9 business of taking franchise from established brands? Ans. It is wrong. The complainant may have franchise of other business entity. 12
39.Currently the complainant does not have any franchise. It is wrong to suggest that agreement dated 01.11.2014 and 22.12.2014 were entered into between the 15 complainant and the accused for any financing of loan. 40.270271, First Floor, DLF Place Mall, Saket, New Delhi is the address of the franchise store taken from the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 21 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
accused. I do not know whether this store was bigger than the store at DLF Promenade Mall, Vasant Kunj, Delhi. The total value of the goods stocked at Saket Mall 3 at MRP may be between one crore to 1.5 crore.
41.Question : Can you tell how many franchise the complainant company had since its inception till today? 6 Question denied being not relevant.
42.There is no proceeding before NCLT against the complainant company. Accused no. 1 had manufacturing 9 units at four places in Gurgaon and at one place in Manesar. I do not remember the addresses where the manufacturing units of accused no. 1 were operating. 12 Accused no. 1 was doing its marketing online as well as through shops. The complainant company had verified the nature of products sold by the accused company 15 before entering into business relation.
43.Question: What kind of research the complainant company made regarding the brand and quality of 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 22 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
product sold by the accused company? Question denied being not relevant.
44.I do not remember the percentage of profit shared by 3 the complainant company from the sale of products from the franchise of the accused company. Vol. Same is mentioned in the agreement Ex. CW1/X. 6
45.The cheque in question was handedover by the accused to the complainant company on 01.11.2014. It is wrong to suggest that agreement dated 01.11.2014 was not 9 followed after December 2014. It is correct that another agreement dated 22.12.2014 was entered into between the parties. It is correct that aforesaid both agreements 12 were with respect to the same franchise.
46.It is correct that the complainant company was supposed to maintain account of statement in terms of 15 agreement dated 22.12.2014 and not in terms of agreement dated 01.11.2014. It is wrong to suggest that the account statement was to comprise details of sale, 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 23 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
stock and expenses. There was no settlement of accounts between the complainant and the accused. There is no settlement as on date between the complainant and the 3 accused regarding stocks available in the franchise stores."
6 Statement of the Accused:
8. Thereafter, Complainant's evidence was closed after cross examination by the counsel for the accused; and the accused 9 was examined u/s 313 of Cr. PC. At this stage, reliance can be placed upon the judgement of the apex court pronounced in the case of " Ramnaresh & Ors vs State Of Chhattisgarh on 28 12 February, 2012 AIR 2012 SC 1357" where it was held that "22. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is 15 upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 24 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the 3 accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering 6 conviction. Even under the latter, he faces the consequences in law."
9. Accused had taken same defence in the statement of accused as 9 he had taken under the framing of charge under section 251 Cr.P.C.
10.The accused expressed her willingness to lead defence 12 evidence (in short, DE). Accordingly, the matter was listed for DE.
Defence evidence: 15
11. The accused had filed list of witnesses and had examined the witness Sh. Pratap Singh Bhayana as DW1. The accused had dropped the other witnesses in the list of witnesses and also 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 25 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. dropped out of examining herself as a witness under Section 315 Cr.P.C. The witness DW1 was examined, crossexamined and discharged. The excerpts of same are : 3
1. "I was the Manager of Operations, Warehouse and HR/Admn. of Jaypreet Kaur Sawhney, Plot No. 433, Sector8, IMT, Manesar, District Gurgaon. I joined the 6 company on 01042011. I have come to submit full attachments of document/ email already on record on page no. 5 of as Mark CW1/X7 (colly 8 pages). The 9 same is Ex. DW1/1 (colly 153 pages).
2. Full attachments of mail at page no. 7 of Mark CW1/X7 is Ex. DW1/2 (colly 147 pages). I have got these 12 documents from the computer/Laptop which was given to me by Jaypreet Kaur Sawhney and is in the power and possession. If required, the same can be produced here. 15 These attachments have stock and shortages of garments by Yashika Leasing and Financial Services Ltd. who had taken the franchise of Trendy Divva from Jaypreet Kaur 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 26 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
Sawhney, which was placed at Shop No. 270271, First Floor, DLF place, Saket, New Delhi.
3. Mr. Abhishek Verma, Owner of the Franchise had 3 stopped coming to the Store immediately after 3110 2015. he had stopped coming as the lease period of 1 year (01112014 to 31102015) was complete. The 6 garments stock shortage is to the tunes of Rs. 21 lacs and damages were around Rs. 29,60,000/.
4. Two excess payments had gone to Yashika Leasing and 9 Financial Services Ltd. i.e. of November, 2014 paid in December, 2014 and November 2015 paid in December 2015. 12
5. Today I have brought a mail dt. 12102015 sent by me to Yashika. Same is Ex. DW1/3 (colly 67 pages). Certificate U/s 65B of Indian Evidence Act is Ex. DW1/4 15 (colly 4 pages).
6. There was a shortage of garments worth around Rs. 21 lacs (Approx) and total loss was Rs. 29,60,000/. The 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 27 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
bifurcation of the same as under: 1. Garments Stock shortage Rs. 21,00,521/. 2. Excess paid Rs. 2,06,818/ of November, 2014 paid by accused to complainant in 3 December, 2014. 3. Excess amount of November, 2015 paid by accused to complainant in December, 2015 of Rs. 90,000/ and Rs. 80,879/, given on different dates. 4. 6 Cash shortage by complainant of Rs. 2,31,782/ which was to be paid to the accused as per the agreed terms. 5. Damages of furniture and fixtures of shop Rs. 2,50,000/. 9
7. Accounts were not settled between the complainant and the accused and the cheque in question was presented in bank by the complainant without settling the account. 12 The keys of the store and control was with Mr. Abhishek Verma and after 31102015 Mr. Abhishek Verma stopped coming to the store/shop. Mr Abhishek Verma 15 was informed and asked to come and settle the account multiple times but he did not turn up."
CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 28 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
12. The witness DW1 was crossexamined by the counsel for complainant and the excerpts were as follows:
1. "I left the employment of accused in May 2017. 3 Presently I am working as Manager HR in OKAYA Powers at Bawal, Dist. Riwari.
2. Q Are you aware of the details of the present Case? Ans. 6 I know little bit. I am aware that present case is of Cheque bouncing.
3. Accused told me to appear in the court as witness. 9
4. Q When you were working for the accused, what was your job responsibilities? Ans:. I was looking after the production, store, dispatch, HR department. 12
5. It is correct that I am witness to Ex. CW1/K which is agreement dt. 22122014 which bears my signature at point A. 15
6. I had taken the print of Ex. DW1/1 to Ex. DW1/3 in the month of April, 2023. I had taken the print out from the computer of the accused located in their office where I 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 29 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
was called. The print was taken in my presence. It is wrong to suggest that since 1 am not working with the accused since May 2017 as such I cannot say if the 3 computer from which the present Ex. DW1/1 to Ex. DW1/3 was tampered, manipulated, figures were changed in the email or the attachment connected with 6 the Ex. DW1/1 to Ex. DW1/3. It is wrong to suggest that the figures provided in the attachment are incorrect without any basis and handy work of accused and 9 myself.) I have never written any communication, notice, letter to complainant calling him to settle the alleged account. Vol. The account department had telephonic 12 communication with the complainant regarding the same.
7. Sh. Vijay Mishra, accountant, had called the 15 complainant. I cannot tell the date and on which mobile number he communicated with complainant. It is correct that email dt. 09092015, nowhere mentions about 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 30 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
accused calling upon the complainant for coming forward and settling the alleged account.
8. Q Have you fled any document, proof which establishes 3 the alleged shortage and damages as mentioned by you in your chief today? Ans. I have filed Ex. DW1/1 to Ex. DW1/3. 6
9. It is wrong to suggest that Ex. DW1/1 to Ex. DW1/3 nowhere establishes about the alleged damages and stock shortage. I do not know if any complaint or other 9 legal proceedings have been initiated against the complainant regarding the alleged stock shortage and damages. 12
10.I used to work in Manesar, factory of accused. It is correct that no department of production, stock, warehouse, dispatch and HR were present in shop No. 15 270271, First Floor, DLF Mall, Saket of M/s Jaypreet Kaur Sawhney and company. I was not dealing with the CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 31 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
accounts of the M/s Jaypreet Kaur Sawhney and company.
11.Q As you were not working with the account department 3 of Miss Jaypreet Kaur Sawhney and company, how did you reach the Eures mentioned in your chief today? Ans. These figures were provided to me today by Sh. Vijay 6 Mishra who was the accountant.
12.Since I used to sit in Manesar as such I was not aware when the accused used to come and go at the store at 9 Saket Mall. I am also not aware as to who other persons used to come and go from the store. Vol. I used to visit the Saket store once in the month. 12
13.I have only met complainant once or twice and I can identify him.
14.I do not remember the details of agreement between the 15 parties. Vol. Same is already on record.
15.I do not know if the complainant used to get a certain amount of commission out of the monthly sales at the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 32 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
store at Saket Mall. No objection was raised about any shortage of garments or damages at the time of paying the monthly commission to the complainant. Vol. I was 3 not paying the commission and objection was raised by accused.
16.It is correct that the complainant started working as 6 franchise at Saket Store from 01112014 on the basis of agreement dt. 0111 2014. It is correct that another agreement between the complainant and the accused 9 was executed on 22122014 w.e.f. 01122014. Q Is it correct that there have been system generated deficiency artificially created by the accused in respect of shortage 12 of garments and other damages, in order to avoid tax and other liabilities and that is the reason you have not filed the emails starting from Nov, 2014 to 31122015 15 and have only filed 3 emails which are tampered? Ans. It is incorrect.
17.I identify the signature of the accused in general. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 33 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
18.Q: Witness is confronted to the Ex. CW1/N for the identification of the signature of the accused. Ans. I cannot identify the signature of accused on Ex. CW1/N. 3
19.Question: Please tell when did accused started the business at Shop No. 270271, first floor DLF Mall Saket? Ans. I don't remember. 6
20.Complainant started his franchise at Shop No. 270271, first floor DLF Mall Saket from 01112014. I do not remember the timings of the store. I do not remember 9 how many employees were employed at the store during the time when complainant was running the franchise. I do not know whether the complainant used to come at 12 the shop at 12 AM and use to leave by 08 PM. It is incorrect to suggest that the store used to remain under the custody of the employees of the accused everyday for 15 02 hours in the morning and 02 hours in the evening. It is incorrect to suggest that the alleged shortage if any, was done by the employees of the accused only. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 34 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
21.I do not remember that when and after what duration the stock take audit used to happen at the store. The accounts department of trendy diva used to conduct the 3 stock take audit.
22.Question: Please tell the names of the persons who were working in the accounts of trendy diva during the 6 franchise duration of the complainant. Ans: I don't remember.
23.Witness is shown the sub clause (G) and (H) of para 11 9 of agreement dated 22122014 the said portion is marked as X (the agreement is already Ex CW1/K). It is correct that as per sub clause G of agreement dated 22 12 122014 all the stock lying at showroom against all kind of risk (theft, fire, rights etc.) were insured.
24.It is correct that as per sub clause (G) of agreement 15 dated 22122014 all the furniture, fixture, interior, air conditioner, cash in hand, office equipments also were insured. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 35 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
25.Q Have the accused claimed the policy mentioned in sub clause G of agreement dated 22122014? A I don't remember. Agreement speaks for itself. 3
26.Q Which document you have filed in the court record establishing cash shortage of rupees 02,31,782/ which you mentioned in your chief dated 28082023? Ans I 6 have filled ex. DW1/1 1/3 which have already been given in person to Mr. Abhishek verma and sent through email. With permission of court witness has seen the file. 9 He submits that email dt. 09092015 along with attachment which is already on record as part of Ex. DW1/2 and email dt. 26112015 along with attachment 12 reflects the shortage.
27.When did excess paid amount of Nov 2014 and Nov 2015, cash shortage and damages came to your 15 knowledge ? A I don't remember.
28.It is incorrect to suggest that there is no excess amount paid in month of Nov 2014 and Nov 2015, cash shortage 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 36 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
and damages. These heads are falsely created by use and accused and as such you have not taken any police action, legal action against complainant. 3
29.It is incorrect to suggest that there was no damage of furniture and fixture of shop amounting to rupees 2,50,000/. 6
30.It is correct that Ex D W 1/1 1/3 are not written and sent by me. The Ex DW1/2 was written by one Mr. Satya Narayan. Ex DW 1/1 and DW 1/3 were written by 9 somebody from trendy diva. Documents speaks for itself.
31.It is correct that Ex DW 1/1 1/3 were not forwarded/CC to me. However I had access to the email ID. 12
32.I do not know that there was a deficiency of 800 pieces of garments in the store at the time of complainant taking up the store as a franchise. (Again said, I do not 15 remember the same).
33.I do not remember if the employees and security guards at the store were employed by the accused. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 37 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
34.QI put it to you that the keys of the store use to come from the house of the accused for opening the store and at night and after closing the store the employees of the 3 accused use to return the keys to accused? A The keys and the full control of the store was with complainant.
35.Q Can you produce the complete stock take report 6 starting from Oct 2014 to Dec 2015? A I will have to see the record.
36.Q Can you produce the complete stock take report, 9 starting from opening of the trendy diva at Shop No 270 271, first floor DLF mall saket till closing of the store at Shop No 270271, first floor DLF mall saket? A I will 12 have to see the record.
37.Q Can you produce the complete daily/ fortnight stock report, starting from opening of the trendy diva at Shop 15 No 270271, first floor DLF mall saket till closing of the store at Shop No 270271, first floor DLF mall saket? A I will have to see the record. 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 38 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
38.Q Is it correct that as per the agreement dated 2212 2014, rent of the store , electricity bill, hiring and termination of the employees, opening and closing of the 3 store, employee's salary, all expenses of the store and control over complete stock lying at shop Shop No 270 271, first floor DLF mall saket was under the exclusive 6 control of accused? A It is as per agreement.
39.It is incorrect to suggest that trendy diva / Jaypreet kaur Sawhney was the exporters of the readymade garments 9 and accused use to sell export surplus at the DLF mall saket.
40.It is incorrect to suggest that accused closed the store 12 abruptly as there were many cases filled against her and she has to pay huge sum to the market. It is incorrect to suggest that Ex DW 1/1Ex DW1/3 nowhere proves that 15 the said documents pertain to shop no 270271 First floor, DLF Mall Saket.
CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 39 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
41.I do not know that how many stores/ franchises accused was holding when she started working with complainant.
42.I have not brought the complete stock take report and 3 complete daily fortnight stock report, starting from opening of the trendy diva at Shop No 270271, first floor DLF mall saket till closing of the store as the same 6 is not in my knowledge.
43.It is incorrect to suggest that I am deliberately withholding these two documents as these documents 9 show that there has been always artificial deficiency of stock in the records of trendy divva created by accused, her husband and me, and the complete record would 12 haven established the same.
44.At this stage witness is confronted with emails, daily stock take report and whatssap chat of complainant and 15 husband of accused in respect of shop no 270271, First floor DLF mall saket, the same is EX DW1/C1 (colly 82 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 40 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
pages). It is correct that [email protected] belongs to accused / proprietor concerned.
45.I cannot say whether in entire emails through which 3 accused used to make payments to the complainants, whatsaap chats and daily stock take reports nowhere there is any mention of any kind of stock shortage, 6 excess payment, cash shortage and damages of furniture and fixture of shop as mentioned in the chief dated 28.08.2023. 9
46.It incorrect to suggest that accused is legally liable to pay the cheque amount. It is incorrect to suggest that the affidavit under section 65 B of Indian Evidence Act is 12 deficient as I am not working with the accused or her company since last many years and I am not aware if the computer from which Ex. DW1/1 to Ex. DW1/3 were 15 taken out is fudged and manipulated. It is incorrect to suggest that I am deposing falsely on the behest of the accused". 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 41 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. Final Arguments:
13.I have heard arguments on behalf of both the parties, gone 3 through the judgments relied upon by them and have carefully gone through the material on record. The counsel for the complainant and the counsel for the accused have filed written 6 arguments.
16.It is submitted by the Ld. Counsel for complainant that accused is liable to be convicted as all ingredients of offence 9 u/s 138 of NI Act are fulfilled in the instant case and accused failed to rebut the statutory presumption in favour of the complainant; Whereas the complainant is entitled to recover 12 the security money on the expiry of the agreement.
17. On the other hand, Ld. Defence counsel led emphasis on the defence that the present cheque was misused by the 15 complainant as the same was given for the security and the accounts of the complainant and accused remained unsettled.
CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 42 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. Therefore, in absence of the recoverable debts, the cheque is not entitled to be recovered by the complainant. Legal Discussion on the point of law: 3
19.It would be apposite at this stage to briefly discuss law applicable to the offence of dishonour of cheque. For the offence under Section 138 of the Act to be made out against the 6 accused, the complainant must prove the following points, that:
1. The cheque was drawn by a person on an account maintained by him for payment of money. 9
2. The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
3. The said cheque has been presented to the bank within a 12 period of three months from the date of cheque or within the period of its validity.
4. The aforesaid cheque,when presented for encashment, 15 was returned unpaid/dishonoured.
5. The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 43 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
information by him from the bank regarding the return of the cheque.
6. The drawer of the cheque failed to make the payment 3 within 15 days of the receipt of aforesaid legal notice of demand.
19.In the present case, there is no dispute regarding fulfilment of 6 conditions (1),(3),(4),(5) and (6). In his notice u/s 251 Cr.P.C, the accused stated that she had only signed the cheque and particulars were not filled by her 9
20.Factum of dishonour of the cheque is not in dispute. It is also not in dispute that the cheque was presented within the statutory period. Dispatch of legal notice within the statutory 12 time limit is also not in dispute. The accused had accepted issuance of cheque, accused had also accepted his signature in the cross examination. 15
21.It is the plea of the accused that the legal demand notice for cheque payment was never served upon the accused. On perusal of the record, accused has denied the acceptance of 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 44 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. legal notice in the framing of notice and also denied the receiving the legal notice in the statement of the accused under Section 313 Cr.P.C. However, the accused has admitted that 3 the address on the legal notice correct. The accused has also not lead any evidence to disprove the presumption of the service under Section 27 of General Clauses Act. 6
22.The Hon'ble Supreme Court of India in C.C. Alavi Haji Vs. Palapetty Muhammed, 2007 (6) SCC 555 while discussing the true intent behind the service of legal demand notice as a 9 precursor to the launch of prosecution held that the service of summons of the court is opportunity enough for the accused to pay the cheque amount and evade prosecution and any accused 12 who fails to pay the amount within 15 days of the service of summons, clearly cannot protect himself/herself behind the technical demand of non-service of legal notice. The relevant 15 extract of the decision is reproduced herein:- "It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no 18 stipulation of giving of a notice before filing a complaint. Any CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 45 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of Act, make 3 payment of the cheque amount and submits 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, 6 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 alongwith the copy of the complaint under Section 138 of 9 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 12 G.C.Act and Section 114 of the Evidence Act. In our view, any other interpretation of the proviso, would defeat the very object of the legislation''. 15
23.Thus, in view of the above said law, the fact that the address that has been mentioned in the legal notice and the addresses given by the accused is same, the mandatory statutory legal 18 notice is deemed to have been served on the accused in the CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 46 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. present case. Institution of the complaint within limitation is also not in dispute. In any which case, the accused has also failed to lead any evidence to rebut the presumption of service 3 under section 27 of general clauses act.
24.Thus, the basic and significant question for determination is:
Whether the accused had issued the cheque in question in 6 discharge of legally enforceable debt or liability?
25.It is material to discuss that a negotiable instrument including a cheque carries following presumptions in terms of Section 9 118 (a) and Section 139 of the NI Act:Section 118 of the NI Act provides : "Presumptions as to negotiable instruments:
Un til the contrary is proved, the following presumptions shall 12 be made: of consideration that every negotiable instrument was made or drawn for considera tion, and that every such instrument, when it has been accepted, indorsed, negotiated or 15 transferred was accepted, indorsed, negotiated or transferred for consideration;" Section 139 of the N.I Act further provides as follows:"Presumption in favour of holder it shall be 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 47 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other 3 liability." Thus, the combined effect of Section 118(a) and Section 139 of NI Act raises a presumption in favour of the holder of the cheque that he has received the same for 6 discharge, in whole or in part of any debt or other liability.
However, the said presumptions are rebuttable in nature.
26.In Rangappa V. Sri Mohan, (2010) 11 SCC 441, a threejudge 9 bench of Apex Court observed that: "Section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of 12 negotiable instruments. The Hon'ble Supreme Court further observed that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil 15 wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. The accused is not expected to discharge an unduly high standard of proof and 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 48 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. he/she is only required to raise a probable defence or creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof 3 for doing so would be on the basis of "preponderance of probabilities".
27.Hon'ble Supreme Court in M/s Kumar Exports Vs. M/s 6 Sharma Carpets AIR 2009 SC 1518 held that:"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that 9 under the particular circumstances of the case the non existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt 12 existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the Complainant in a criminal trial. However, the 15 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 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 49 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. 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 3 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 6 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 nonexistence 9 was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the 12 note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so 15 relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 50 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. 114 of the Evidence Act to rebut the presumptions arising under Section 118 and 139 of the Act."
28.The court has to now consider whether the accused has been 3 successful in discharging the burden of proof.
29.In the backdrop of legal position as enunciated above, it is to be examined by this Court that whether the accused on a scale 6 of preponderance of probabilities has been able to rebut the presumption which has been raised against him and in favour of the complainant, or has been able to demolish the case of the 9 complainant to such extent so as to shift the onus placed upon the accused again on the complainant. As held by Hon'ble Supreme Court of India in case of Kumar Exports vs Sharma 12 Carpets (2009) 2 SCC 513, the accused can either prove the non−existence of the consideration and debt by direct evidence or by bringing on record such facts and circumstances, upon 15 consideration of which, the Court may either believe that the consideration and debt either did not exist or their non−existence was so probable that a prudent man may act 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 51 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. upon the plea that they did not exist. If the Court comes to the conclusion that the accused has not been able to rebut the presumption raised against him by failing to bring on record 3 direct evidence or by even failing to sufficiently perforate the case of the complainant, the complainant is entitled to a decision in his favour. 6
30.Now, the question before the court is whether the accused was able to successfully rebut the presumptions raised against him by direct evidence or by bringing on record such facts and 9 circumstances; for the same the evidence on record has to be examined.
31.The accused has taken stand in the defence at the stage of 12 framing of notice that she is not liable for the cheque amount, in fact the complainant is liable to pay some amount to them. In th statement of account the accused had stated that the 15 cheque is a security cheque, misused by the complainant. That the accounts are not settled and stock and other things are not available or missing. The accused also stated that the details on 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 52 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. the cheque are not filled by her, and she does not remember signing the cheque due to brain stroke. The accused also stated about numerous evidence that she does not know and 3 remember the same, as she had suffered brain stroke. The defence of the accused that has cropped up in the cross examination of CW1 and the evidence of DW1 is that the 6 accounts of the parties remained unsettled, that the accused had given the excess payment of Rs.7,25,000/ has been made to the complainant in the month of November 2014, that there is 9 stocks of over 21 lakhs missing and damages of about 26 lakhs; in essence the accounts in unsettled and thus the accused is not liable to pay the security amount refund until the accounts are 12 settled and the liability of the accused is quantified after the deductions, if any.
32.In essence, to prove the defence of the accused, the accused 15 would have to prove that she had given excess payments of Rs. 7,25,000/, that there was a stock shortage caused by complainant, that there is damages caused; and essentially that 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 53 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. the actual liability stood at much lower amount that then the cheque amount.
33.There is a presumption of the valid legal debt against the 3 accused in favour of the complainant. It is the case of the complainant that accuse is liable to pay ₹50,00,000 on the termination of the agreement or on the completion of the 6 agreement.
34.The complainant has filed documents along with the complainant and during the trial; the evidentiary documents are 9 required to be marshalled for the purposes of ascertaining the proof and the relevancy in the trial. The documents Ex. CW1/A form 32 of complainant, certificate of commencement of 12 business Ex CW1/B, Certificate of Incorporation Ex CW1/C, MOA Ex CW1/D, draft agreement Ex CW1/E, board resolution dated 09.10.2014 Ex. CW 1/G, CW1/H, LLP details Ex CW1/I, 15 statement of bank account is Ex. CW1/J, Copy of agreement dated 22.12.2014 Ex. CW1/K, Letter dated 1.1.2016 by Mahendra Kumar Verma Ex. CW1/L, Letter dated 18.1.2016 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 54 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. by Mahendra Kumar Verma Ex. CW1/M, cheque in question Ex. CW1/N, return memo Ex. CW1/O, legal demand notice Ex. CW1/P, postal receipts Ex. CW1/Q, Track report Ex. CW1/R, 3 Board resolution dated 04.02.2016 and Ex CW 1/S are the documents that were filed along the complainant and tendered in the evidence by the complainant CW1, and exhibited along 6 with the chief examination of the CW1. The accused has not put any suggestion to the CW1 that Ex. CW1/A to C W 1/S are false or fabricated for any of the exhibits or all of them. The 9 veracity of the Ex. CW1/A to CW 1/S was not questioned nor any adverse suggestion was put to the complainant; nor the genuineness of their form and content was questioned by the 12 counsel for the accused during the trial and cross examination of CW1. Hence in absence of any cross examination on the aspect of the genuineness of the Ex CW1/A to CW1/S, and in 15 absence of the suggestion of they being forged and fabricated; the Ex. CW1/A to CW1/ S stands proved by the complainant. CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 55 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
35.The documents Agreement dated 01.11.2014 Ex. CW1/X (OSR), Loan agreement Ex. CW1/X1, Ex. CW1/X2 and Ex. CW1/X3 were produced by the CW1 during the cross 3 examination upon the questioning by the counsel for the accused. Again no adverse suggestions as to Ex. CW1/X to CW1/X4 being forged and fabricated was made by the counsel 6 for the accused, nor any question to test the veracity of the said documents was put forward by the accused to the witness CW 1 during the trial. Therefore; in the absence of the adverse 9 suggestions and coherent question for genuineness; the Ex. CW1/X to CW 1/ X4 stands proved by the complainant.
36.The complainant had also produced the printouts of the 12 messages from the whatsapp sent by the husband of the accused which are Mark CW1/X6 and printouts of email Mark CW1/X7; The complainant had produced these sets of 15 documents when the accused sought the answer, if the complainant had any record of the messages sent by the complainant to the accused. The counsel for the accused again 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 56 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. did not put any adverse suggestions as to Mark CW1/X6 and CW1/X7 being forged and fabricated, nor any question to test the veracity of the said documents was put forward by the 3 accused to the witness CW1 during the trial. The counsel for the accused did not object to the mode of proof of such document; however there is absence of the certificate under 6 section 64 (4) B for Indian evidence act for the mark CW1/X6 and CW 1/ X7. Therefore; even though the accused failed to challenge the mode of proof of such, and question the veracity 9 of these documents; the Mark C W1/X6 and Mark CW1/ X7 stands not proved by the complainant in absence of the requisite certificate u/s 65 (4) B IEA. The Similar fate is 12 followed in the document Ex. DW1/C1, as Ex. DW1/C1 was never subjected to crossexamination and the same was only produced to confront the witness of accused / DW1. 15 Therefore, Ex. DW1/C1 does not have any evidentiary value to that extent.
CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 57 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
37.The accused had also produced certain documents during the trial, i.e. at the stage of cross examination of the complainant CW1 and during the evidence of DW1. The accused had 3 produced Ex. CW1/X4 (during the cross examination of the CW1) email dated 27.04.2017. The same was denied having received by the complainant. The Ex. CW1/X4 was not 6 supplemented by the necessary certificate u/s 65 B IEA, and the same was denied by the complainant The said Exhibit was also not produced by the accused in the chief examination to 9 prove the same and therefore never subjected to rigours of cross examination. Therefore, in absence of requisite certificate u/s 65 B IEA and the clear denial of the complainant; the Ex. 12 CW1/X4 stands unproven by the accused. Similar fate is received for the document Ex CW1/X5 (During the cross of CW1) email dated 01.01.2016 produced by the accused. In 15 absence of certificate u/s 65 B IEA and denial by the complainant; the Ex CW1/X5 stands unproven by the accused. CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 58 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
38.The accused had also produced the witness DW1; who had produced in evidence an Email trail Ex. DW1/1 (Also mark CW1/X7), Ex. DW1/2 email trail received from the laptop 3 given to him by the accused and email trail Ex DW1/3 along with the certificate u/s 65 B Ex DW1/4. On perusal of the said certificate u/s 65 B IEA; the same states that the DW 1 Pratap 6 Singh Bhayana gave the email, invoices and ledger accounts placed on record were under his control and the contents of the same have been scanned on the computer belonging to him, 9 also contained the certificate under Order XI rule 6 (3) CPC for certifying the Email dated 09.09.2015, 26.11.2015 and 12.10.2015. However; the witness DW1 in the cross 12 examination stated that the printouts were taken by DW1. That the Computer of the accused is located at their office. The Witness DW 1 has also admitted that he has never written any 15 communication to the accused. DW1 also admitted that he is not dealing with the accounts. In Cross examination; the DW1 witness stated that the figures in evidence were provided by the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 59 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. accountant Vijay Mishra. He also admitted that the details of agreement was not known to him. The witness DW1 also clearly admitted in cross examination that the Ex. DW1/1 to 3 DW 1/ 3 were not written by him, nor forwarded. Therefore:
the accused has produced the witness DW1 who has clearly failed to put weight behind the secondary evidence Ex. DW1/1 6 to DW 1/3 produced by him along with the certificate u/s 65 B IEA. The witness DW1 has clearly stated that he is neither the person who has authored the Email, nor the person to whom 9 the same has been forwarded. He has also stated that the he is neither the accountant handling the same nor the same has been issued by him; rather he has categorically stated that the figures 12 are given by the accountant Sh. Vijay Mishra and email is written by someone else and sent by someone else. However he had access to the email ID. The witness had also stated that he 15 had left the job at the accused company in May 2017. The print was also stated to be taken in the office of the accused. The witness also stated that the computer was in the control of the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 60 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi. accused and belonged to her. Therefore the Ex. DW 1/1 to DW 1/ 3 is not proved by the accused in presence of adverse evidence of the witness DW 1 being not the author, possessor 3 and controller of the information sought to be brought and further the certificate u/s 65 B does not stipulate the make and model of the computer, nor does it specify the printer and 6 ownership from where the same was printed. The certificate is also bereft of the information of the email ID through which the same was printed. Therefore; the Ex DW1/1/ to DW 1/ 3 9 stands unproved by the accused.
39.The accused has raised multiple lines of defences and arguments in the form of evidence, crossexamination and 12 written arguments, filed by Ld. Counsel for the accused; the same are enumerated and dealt accordingly.
1. Accounts between the accused and the complainant are 15 unsettled and not reconciled; hence no amount due for the cheque: This is the principal argument of the accused and principal defence, wherein it is argued that since the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 61 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
accounts of the accused is not settled there is no entitlement of the complainant for the refund. The clause 5 and 15 (b) of the franchise agreement EX CW 1/K 3 stipulates certain terms about the interest free security, the cheque in question and the refund of security money by the accused within 30 days of the expiry of the 6 agreement. Since it is admittedly the case that the agreement between the accused and complainant had expired on 31.10.2015, without any extension or 9 renewal. The clause 15 also mentions that in case of dishonour of the said cheque, certain penal interest on the security amount would also be applicable against the 12 accused. Now both these clauses have not stipulated for settlement of accounts or adjustment of accounts before entitlement of the interest free security by the 15 complainant; the only stipulation for refund of the interest free security is the expiry of contract and non renewal of the same. The counsel for the accused has 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 62 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
however argued that the security money was taken to reduce the risk exposure of the accused against the complainant. This argument appears to be a desperate 3 attempt to carve out benefit for the accused; whilst overlooking the fact the contract did not stipulate any rider or condition precedent to be fulfilled, before the 6 refund can be made to the complainant; and also the fact was overlooked that the contract contained sufficient prudent triggers and safeguards for the accused in form 9 of insurance, global stock take, stock verification, deduction/ debit of the stock shortage etc by the accused in the event of stock loss, theft, etc. Further it is argued 12 by the counsel for the accused that the complainant CW1 has admitted that the account between the complainant and the accused were not settled; however the accused 15 did not deliberate such non settlement of the account and meaning thereby to be from the CW1 in the cross examination. The complainant CW1 had not admitted 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 63 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
that the settlement of account was condition precedent to payment of the security back; nor has the complaiant CW1 admitted that the complainant owed certain 3 monies/ dues to the accused, in fact the CW1 had denied suggestion of such excess payments/ dues made by the accused. Therefore, the plea of the accused that the 6 account of the accused and complainant is not settled, and thus complainant is not entitled to the money is wholly rejected as untenable and without any strength 9 and merit.
2. Excess amount received by the complainant from the accused.: It is also the argument of the counsel for the 12 accused that the accused has paid certain additonal payment to the complainant. In addition to the observation made above being the absence of any rider in 15 the contract for settlement of the account before the security amount shall be released; it is observed that the accused has not produced any ledger account, or any 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 64 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
accounting statement to showcase the excess amount, if any received by the complainant from the accused. In fact the accused did not put a singular suggestion in cross 3 examination of CW1 of excess payment made by the accused to the complainant. The witness DW1 however stated in his chief examination that an excess amount 6 was paid in Nov 2014 and December 2015. However no evidence was produced by the witness DW1 to showcase that the payment excess was given by the 9 accused to the complainant, nor the witness has shown how the said payment came to be excess and beyond the terms of the payment, if any. Further the witness DW1 12 has stated that he did not work in the accounting dept of the accused; and the figures that he is giving are provided to him by the accountant Sh. Vijay Mishra. On 15 perusal of the record; it appears that there is absolutely no evidence on record to suggest that there was an excess payment made by the accused to the complainant in 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 65 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
absence of any cogent evidence. The evidence of witness DW1 lacks strength as the same is at best a hearsay evidence without any supporting document of accounting 3 books. Hence, this argument of the accused is rejected being without merit and illusory at best.
3. Interest charged by the complainant on the interest fee 6 security as shown in the ledger account of the complainant.: It is also the argument of the counsel for the accused that the accused has paid certain additonal 9 payment to the complainant; as the complainant has wrongly charged the accused for the interest on the security money. In addition to the observation made 12 above being the absence of any rider in the contract for settlement of the account before the security amount shall be released; it is observed that the accused did not 15 put a singular suggestion in cross examination of CW1 about the interest being charged by the complainant on the interest free security, nor did the counsel for the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 66 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
accused had sought any answer by putting the relevant question on the aspect of interest being charged by the complainant. Even the witness DW1 has not stated in 3 his chief examination that an interest was charged by the complainant against the agreement. On perusal of the record; it appears that there is absolutely no evidence on 6 record to suggest that there was an interest charged by the complainant. The argument of the accused is hinged on the interest component mentioned in the ledger 9 account filed by the complainant along with the complaint and in the evidence. However, as noted, no question was posed by the accused to the complainant on 12 the said aspect to allow the complainant to explain the same, nor it was asked if the complainant in fact charged any interest on the said security amount. In absence of 15 posing the question to the complainant on the said aspect of defence, it is assumed that the accused has failed to CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 67 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
put his defence. Hence, this argument of the accused is rejected being without merit and illusory at best.
4. Payment of ₹7,25,707/ made by the accused on behalf 3 of the complainant and therefore accused entitled for recovery and reconciliation: It is also the argument of the counsel for the accused that the accused has paid Rs. 6 7,25,707/ which is to be recovered from the complainant; as it was the duty of the complainant to pay the same as per the agreement dated 1.11.2014 Ex. 9 CW1/X. In addition to the observation made above being the absence of any rider in the contract for settlement of the account before the security amount shall be released; 12 it is observed that the complainant CW1 has deposed on being questioned by the accused that the accused was supposed to deduct the expenses of the month of 15 November 2014 and make the payment of the balance as per the agreement; the witness CW 1 relied upon the bank statement of the complainant for the same to show 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 68 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
the calculation. The complainant had also stated that there net sales of the month of November 2014 was about 20,00,000/ and the expenses were paid by the 3 accused and after deducting the same, the margin was paid by the accused to the complainant. Now, if the argument of the counsel for the accused is to be taken; 6 that would mean that the complainant was supposed to make the payment of the expenses of rent, staff, and the other expenses; then it was upon the accused to prove 9 that the accused had transferred either the amount of expenses and the margin to the complainant for making the payment for the month of November 2014, or 12 accused has transferred the margin amount of whole of the sales to the complainant for making the payment. In any case, the accused has proved or brought on record 15 any such evidence of making the payment to the complainant. Further, the complainant has not admitted the excess payment received and neither has the accused 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 69 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
proved in his evidence that the excess payment was received by the complainant by producing the relevant bank statement, ledger account and accounting 3 calculation along with the proof of payment of the expenses and bills. Therefore, this argument of the accused appears to be a desperate attempt to fail the 6 claim of the complainant by creating multiple issues by shooting the arrows in dark with hope to hit the aim; hence the argument of the accused is therefore rejected 9 as not proved.
5. The accounting of the shortfall of the stock pending.:
The accused had questioned the complainant about the 12 stock shortage; the CW1 had stated there is a shortage of stocks and the same was present in the store when they had taken over the store from the accused. The CW 1 had 15 also stated that he had communicated the shortage of the stocks to the accused numerous times, but the same was not cleared. On other hand, the accused relied upon the 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 70 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
Ex. DW 1/1 to EX. DW1/3 which are bunch of the emails produced by the DW 1. As discussed above, the Ex. DW 1/1 to DW 1/ 3 are unproven by the accused. 3 Further, the witness DW 1 did not produce the stock take register and fortnight stocktake register, despite seeking time to produce the same. Therefore adverse inference 6 has to be drawn against the accused u/s 114 IEA.
Further; the clause 13 of the franchise agreement between the parties has clearly stated that the accused is 9 entitled to debit the same on such stock verification. Admittedly, there is no such deduction made by the accused, as deposed by the witness DW1. In any case, 12 the accused has failed to prove that there was stock shortage caused by the complainant in absence of any cogent evidence; and the same is unbelievable as the 15 accused failed to deduct as per clause 13 of the agreement.
CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 71 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
6. The accounting of Cash shortage, and Damages to the Furnitures and fixtures: This argument of the counsel for the accused emanates from the oral testimony of DW1 3 where by he had deposed that there was damages to Furnitures and fixtures to the tune of Rs.2,50,000/, Cash Shortage of Rs. 2,31,782/. No question or suggestion 6 whatsoever was posed by the accused to the witness CW 1 in the cross examination on the said aspect of shortage in cash and damages. However no evidence was 9 produced by the witness DW1 to showcase that the payment excess was given by the accused to the complainant, nor the witness has shown how the said 12 payment came to be excess and beyond the terms of the payment, if any. Further the witness DW1 has stated that he did not work in the accounting dept of the accused; 15 and the figures that he is giving are provided to him by the accountant Sh. Vijay Mishra. On perusal of the record; it appears that there is absolutely no evidence on 18 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 72 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
record to suggest that there was an excess payment made by the accused to the complainant in absence of any cogent evidence. The evidence of witness DW1 lacks 3 strength as the same is at best a hearsay evidence without any supporting document of accounting books. Hence, this argument of the accused is rejected being without 6 merit and illusory at best.
Conclusion:
40. Therefore, after having gone through the multifocal defenses 9 of the accused touching the aspect of unsettled account of the complainant and the accused as the basis for disabling the claim of the complainant for the refund of security amount, it 12 appears that the agreement of franchise between the parties did not contain any rider / condition precedent before the refund of security amount can made by the accused to the complainant. 15 The agreement was clear on the event of refund is to be made and alongwith sufficient trigger points on behalf of the accused on the apprehension of financial exposure raised by the 18 accused. In any which case, the accused failed to prove that CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 73 / 74 In the court of Sh. Divyam Lila, MM, East district, Karkardooma courts, Delhi.
there was any such condition precedent apart from the agreement that was agreed betwen the parties. The accused has also failed to prove his defenses. 3
41.After examining the presumption against the accused, evidence recorded at length, marshalling of evidence against the parameters of law and examination of the contentions raised by 6 both the parties, I have no hesitation in holding that the accused has miserably failed to rebut the presumption against him due, inability to prove defense, and inability to dispute the evidence 9 of the complainant. Therefore, the accused Jaypreet Kaur Sawhney is convicted for the dishonour of cheques bearing no.001859 dated 31.10.2015 for Rs.50,00,000/- drawn on 12 HDFC Bank in favour of the complainant company.
Digitally signed by Announced in the open Court today i.e 23-07-2024. DIVYAM DIVYAM LILA LILA Date:
2024.07.23 17:55:56 +0530 15 (DIVYAM LILA) MM(Municipal) East District Karkardooma Court/Delhi 18 23-07-2024 CC no.56714/16 Yashika Leasing & Financial Service Ltd. Vs. Jaypreet Kaur Sawhney Page no. 74 / 74