Delhi District Court
India Tourism Development Corporation ... vs Brand India Inc on 21 January, 2025
CC No. 29016/2016
INDIA TOURISM DEVELOPMENT CORPORATION LTD. VS. M/S. BRAND INDIA INC. & ANR.
IN THE COURT OF MS. NEHA SHARMA,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-04,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI
CRIMINAL COMPLAINT NO: 29016/2016
INDIA TOURISM DEVELOPMENT
CORPORATION LTD. ..........COMPLAINANT
VERSUS
M/S. BRAND INDIA INC. & ANR. ..........ACCUSED
U/s 138 Negotiable Instruments Act, 1881
1. CIS number : DLND020030892014
2. Name of the complainant : India Tourism Development Corporation Ltd.
having its Unit office at:-
Hotel Ashok, 50 B, Chanakyapuri, New Delhi-110021
3. Name of the accused, : 1) M/s. Brand India Inc.
parentage & through its Partner
residential address Mr. Satpal Fotra
having its address at-
Shop No. 2, Main Shopping Arcade
Page no. 1 of 15 (Neha Sharma) Digitally
signed by
JMFC NI Act-04/NDD/PHC/ND NEHA NEHA
SHARMA
SHARMA Date:
2025.01.21
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INDIA TOURISM DEVELOPMENT CORPORATION LTD. VS. M/S. BRAND INDIA INC. & ANR.
Ashok Hotel, 50B, Chanakyapuri
New Delhi-110021
2) Mr. Satpal Fotra,
Partner of M/s. Brand India Inc.
Shop No. 2, Main Shopping Arcade
Ashok Hotel, 50B, Chanakyapuri
New Delhi-110021
4. Offence complained of or : U/s 138 of Negotiable Instruments Act, 1881
proved
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Date of Institution : 25.08.2014
7. Date of judgment/order : 21.01.2025
8. Final Judgment/order : CONVICTED
JUDGMENT
1. Vide this judgment, this court shall dispose of the aforementioned complaint case filed by the complainant India Tourism Development Corporation Ltd., through its original AR Mr. Anil Kumar (hereinafter referred to as 'Complainant') against M/s. Brand India Inc. through its partner Mr. Satpal Fotra (hereinafter referred as the 'Accused no. 1 and Accused no. 2', respectively u/s 138 of Negotiable Instruments Act, (hereinafter referred to as 'NI Act').
CASE OF THE COMPLAINANT
2. Succinctly, the case of the complainant, is that the complainant is a government company and the accused no. 1 is a partnership firm while the accused no. 2 is the partner of accused no. 1 firm, responsible for day-to-day affairs of accused no. 1 firm. The accused occupied the premises of Shop No. 2 situated at Hotel Ashok, Page no. 2 of 15 (Neha Sharma) Digitally JMFC NI Act-04/NDD/PHC/ND signed by NEHA NEHA SHARMA SHARMA Date:
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Chanakyapuri, New Delhi (hereinafter referred to as "property in question") on license basis. Towards the part payment of license fee, the accused issued a cheque bearing no. 000011 dated 18.06.2024 drawn on Bank of Baroda, Chanakyapuri, New Delhi-110021 for a sum of Rs. 10,00,000/- (hereinafter referred to as "cheque in question") from his bank account no. 00940200000583 in favour of complainant.
3. On assurance of the accused, complainant presented the aforesaid cheque for realization but to the utter shock, the said cheque was returned unpaid by the banker of the accused with remarks "Funds Insufficient". Thereafter, the complainant sent a legal demand notice dated 10.07.2014 to the accused demanding the payment of the cheque amount, however, despite the service of legal demand notice, accused did not make any payment in discharge of their liability. Having left with no other option, the present complaint has been preferred by the complainant against the accused U/S 138 NI Act.
SUMMONING OF ACCUSED AND NOTICE
4. On the basis of complaint, pre-summoning affidavit of evidence filed by the complainant and documents annexed with the complaint, cognizance of the offence U/S 138 NI Act was taken by Ld. Predecessor of this Court and process was issued against the accused on 25.08.2014. The accused entered appearance on 27.04.2015. The notice of accusation u/s 251 of the Code of Criminal Procedure, 1973 (hereinafter "CrPC") was recorded on 04.11.2016 to which accused pleaded not guilty and claimed trial. The plea of defence of the accused was recorded. Thereafter, vide same order, the application of the accused U/S 145(2) NI Act was allowed. The matter was, thereafter, listed for the evidence of the complainant.
NEHA
Page no. 3 of 15 (Neha Sharma)
JMFC NI Act-04/NDD/PHC/ND
SHARMA
Digitally signed by
NEHA SHARMA
Date: 2025.01.21
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INDIA TOURISM DEVELOPMENT CORPORATION LTD. VS. M/S. BRAND INDIA INC. & ANR.
EVIDENCE OF THE COMPLAINANT
5. To prove the case prima facie, the AR of the complainant company filed his affidavit of evidence under Section 200 of the Cr.P.C. by way of an affidavit i.e. Ex. CW-1/A wherein he has reiterated the averments made in the complaint. He placed reliance upon following documents:
(1) Ex. CW1/1- Authority Letter;
(2) Ex. CW1/2 (OSR)- License Deed dated 26.10.2004; (3) Ex. CW1/3- Statement of account;
(4) Ex. CW1/4- Cheque;
(5) Ex. CW1/5- Cheque returning memo;
(6) Ex. CW1/6- Legal Notice;
(7) Ex. CW1/7- Postal receipts;
(8) Ex. CW1/8- Delivery Report;
(9) Ex. CW1/9- Present complaint U/S 138 NI Act bearing signatures of previous AR Mr. Anil Kumar at Point A & B. (10) EX. CW1/10- Certificate u/s 65B of Evidence Act.
6. CW-1 was cross examined by Ld. counsel for accused on 02.08.2023 and 03.08.2023. Vide statement of AR of the complainant/CW1, CE was closed.
EXAMINATION OF THE ACCUSED UNDER SECTION 313 CR.P.C.
7. The accused was examined under Section 313 Cr.P.C. on 09.10.2023 wherein the accused admitted that he had occupied the property in question as a licensee since 1971 vide License Deed i.e. Ex. CW1/2. He further admitted issuing the cheque in question Page no. 4 of 15 (Neha Sharma) Digitally signed by JMFC NI Act-04/NDD/PHC/ND NEHA NEHA SHARMA SHARMA Date:
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bearing his signatures to the complainant, however, he stated that the cheque in question was issued towards settlement. The Accused no. 2 stated that he had asked the complainant to settle the matter but the complainant behaved maliciously. He further stated that he has discharged his liability towards the complainant and the complainant has seized his goods worth Rs. 7.50 Crores. Thereafter, since the accused expressed his willingness to lead DE, the matter was listed for defence evidence.
DEFENCE EVIDENCE
8. Despite opportunity being granted, accused did not lead DE. Pursuant thereto, vide separate statement recorded on 21.05.2024, the accused no. 2 stated that they do not wish to lead DE. Accordingly, the matter was listed for final arguments.
FINAL ARGUMENTS
9. Both parties addressed their final arguments. Ld. counsel for the complainant, argued that the accused has admitted execution of license deed with the complainant and issuance of cheque in question to the complainant. He submitted that the accused has admitted occupying the property in question but failed to rebut the presumption U/S 139 NI Act. Accordingly, Ld. counsel prayed that the accused be convicted for the offence under section 138 NI Act.
10. Per contra, Ld. counsel for the accused, argued that the accused owes no legal liability for payment of cheque amount to the complainant as cheque in question was given as a security cheque which has been misused by the complainant. He further argued that the property in question was under renovation for two years but the license fee was not waived. He further argued that the accused has rebutted the presumption raised U/S 139 NI Page no. 5 of 15 (Neha Sharma) Digitally signed by JMFC NI Act-04/NDD/PHC/ND NEHA NEHA SHARMA SHARMA Date:
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Act but complainant failed to prove the guilt of the accused beyond reasonable doubt, hence, accused is entitled to be acquitted.
11. The file has been carefully and minutely perused and my issue-wise findings with reasons thereof are as under: -
FINDINGS
12. Before appreciating the facts of the case and evidences led by the both the sides for the purpose of decision, let us first discuss the relevant position of law which is embodied in section 138 of NI Act. In the case of Kusum Ingots and Alloys Ltd. vs. Pennar Peterson Securities Ltd. (2000) 2 SCC 745, the apex court has expounded the ingredients which are required to be fulfilled in order to constitute an offence under Section 138 of the NI Act. The relevant portion of the said judgment laying down the ingredients to be satisfied for making out a case under Section 138 of the NI Act is reproduced as under:
a) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
b) cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
c) That cheque has been returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
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d) The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
e) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
13. Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. Having said that, it becomes imperative to mention Section 139 of NI Act which carves out a presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with the section 118 of the same enactment which spells out another presumption in favour of the drawee that every negotiable instrument was drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration.
14. In the backdrop of the factual narrative of the case, following points of determination arises in the present case:
A. Whether the complainant has been successful in raising the presumption un- der section 118 read with section 139 of the N.I Act, 1881? B. If yes, whether the accused has been successful in raising a probable defence to rebut the presumptions?
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15. Since criminal liability can be attached by proving each element of the sec- tion under which liability is sought to be enforced, I shall now go on to appreciate the evi- dence- documentary and oral, in light of how compellingly it satisfies each of such ingre- dient, if at all. The first condition pertains to the issuance of the cheque in question to make the payment from an account maintained by the drawer of the cheque towards a legally en- forceable debt or other liability. The complainant has proved the original license agree- ment, original cheque in question dated 18.06.2024 and original return memo dated 02.07.2014 i.e. Ex. CW1/2, Ex. CW1/4 and Ex. CW1/5, respectively. The accused has ad- mitted Ex. CW1/2 and the accused has not disputed Ex. CW1/4 to have been drawn on the account of the accused. At the time of framing of Notice U/S 251 Cr.P.C., the accused no. 2 admitted his signatures on the cheque in question and all particulars in the cheque in ques- tion to be in his handwriting.
16. As per the scheme of the NI Act, once the accused admits signatures on the cheque in question, certain presumptions are drawn, which result in shifting of onus. The combined effect of Section 118(a) and Section 139 of the NI Act two provisions is a pre- sumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the sections use the expression "shall", which makes it imperative for the court to raise the presumptions once the foundational facts re- quired for the same are proved. Reliance is placed upon the judgments of the Hon'ble Supreme Court in Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16 and Ran- gappa vs. Sri Mohan (2010) 11 SCC 441.
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17. The principles pertaining to the presumptions and the onus of proof were summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 wherein it was held;
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarise the principles enumerated by this Court in the following manner:
25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
25.4. That it is not necessary for the accused to come in the witness box in support of his defence. Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence."
18. Coming to the case in hand, the license deed i.e. Ex. CW1/2 is not denied. In the statement of the accused recorded U/S 313 Cr.P.C., the accused no. 2 has even admitted occupying the property in question as a licensee since 1971 vide license deed i.e. Ex. CW1/2. Thus, occupation of the property in question and issuance of cheque in question to the complainant is not denied. The statement of account supported with certificate U/S Page no. 9 of 15 (Neha Sharma) Digitally signed by JMFC NI Act-04/NDD/PHC/ND NEHA NEHA SHARMA SHARMA Date:
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65B IEA i.e. Ex. CW1/3 and Ex. CW1/10 respectively is on record which shows the liabil- ity of the accused to be Rs. 52,95,250/-.
19. The plea of defence taken by the accused is that the cheque in question was given as a security cheque and the accused has discharged his liability towards the com- plainant. In the NOA U/S 251 Cr.P.C., the accused no. 2 had stated that cheque in question was given with understanding that after making payments in cash, the cheque issued would be taken back, however, despite making cash payment, the cheque was not re- turned. Section 103 of the Indian Evidence Act, 1872 (hereinafter referred to as "IEA") enunciates that the person who asserts a fact must prove the same unless the law otherwise provides. Since, the accused has stated that cash payments were made, the onus was upon him to prove the same, however, no receipt/proof of payment in cash to the complainant was filed.
20. In the cross examination of AR of the complainant who examined himself as CW-1, not a single question or suggestion was put to CW-1 regarding any cash payment made to the complainant company. The accused claimed that the property in question was under renovation for two years and the goods worth Rs. 7.5 Crores have been seized by the complainant but no documentary or oral evidence was led in this regard. Thus, the burden of proof was upon the accused, making such claim, however, no evidence was led by the accused in support of their claim. The accused did not even step into the witness box to prove his case. Thus, it will be in utter disregard to the established principles of evidence, if this court accepts the version of accused devoid of any documentary or oral evidence to concretize the proof. The story of accused, in the absence of any cogent evidence, cannot Digitally Page no. 10 of 15 (Neha Sharma) signed by NEHA JMFC NI Act-04/NDD/PHC/NDNEHA SHARMA SHARMA Date:
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be taken as a gospel truth, specifically, when no documentary or oral evidence has been led in support of this defence.
21. For the sake of argument, if one were to assume that the cheque in question was in fact, given as a security cheque by the accused but the complainant misused the cheque, then two pertinent questions may take birth out of reasonability- firstly, why did the accused not send a written notice to the complainant to demand the cheque back if there was no liability of the accused for the amount of the cheque in question. Secondly, why did the accused not file any complaint either with his bank or with the police immedi- ately in order to ensure that the cheque was not misused. The cheque in question was re- turned unpaid for reason "funds insufficient" and not payment stopped by drawer.
22. If cheque was issued for the purpose stated by the accused, an adverse infer- ence can safely be drawn against the accused who has otherwise failed to adduce any evi- dence to show that he indeed did everything within his power and control, as a prudent per- son would do, to ensure that the cheque tendered by him was not misused. Failure of the accused to prevent such alleged misuse renders the defence evidence weak. Reliance can be placed on the judgment pronounced by the Hon'ble Delhi High Court in V.S. Yadav v. Reena, CRL. A. NO. 1136 Of 2010 wherein it was held that:
"Mere pleading not guilty and stating that the cheques were issued as security, would not give amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Digitally signed by Page no. 11 of 15 (Neha Sharma) NEHA NEHA SHARMA JMFC NI Act-04/NDD/PHC/ND SHARMA Date:
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Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption u/s 139 N.I. Act. If no loan was given, but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
23. Further, for the sake of argument, even if the version of the accused that cheque in question was issued as security cheque, is taken to be true, the said fact cannot extend any help to accused in the present case. The Hon'ble Supreme Court has held in Sripati Singh v. State of Jharkhand and Anr. 2021 SCC OnLine SC 1002.
"16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is Page no. 12 of 15 (Neha Sharma) NEHA JMFC NI Act-04/NDD/PHC/ND SHARMA Digitally signed by NEHA SHARMA Date: 2025.01.21 16:47:02 +0530 CC No. 29016/2016 INDIA TOURISM DEVELOPMENT CORPORATION LTD. VS. M/S. BRAND INDIA INC. & ANR.
dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow."
24. Thus, when the accused has admitted execution of license deed, the issuance of cheque in question to the complainant and filling its particulars, the plea of defence of issuance of cheque as security would be of no assistance to the accused as the cheque which was issued as security would mature for presentation and the complainant was entitled to present the same. Since, in the present case all the defences taken by the accused stand beseeched, therefore, considering the weight of the attending circumstances viz, the consistency in the prosecution story, the compelling documentary evidence adduced by the complainant, the first element of section 138 NI Act stands assembled.
25. As far as the second and third conditions are concerned, the same is satisfied upon the perusal of the cheque in question i.e. Ex. CW1/4 dated 18.06.2014 and the return memo i.e. Ex.CW1/5 which is dated 02.07.2014. Thus, the cheque in question has been presented within prescribed period of limitation of three months. The accused did not adduce any evidence whatsoever to contradict the same. Thus, this element of Section 138 NI Act stands proved. The return memo i.e. Ex. CW1/5 further show that cheque was dishonoured due to reason 'funds insufficient'. This fact has not been disputed by the accused throughout the trial. Further, it has also been admitted by accused during his statement U/S 313 CrPC as well as during his statement of admission and denial recorded U/S 294 Cr. P.C. Such admission of the accused clearly shows that he issued cheque from the account in question intentionally despite being aware that the same will not be honoured.
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Date:
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26. Further, Section 146 of the NI Act, in this regard comes into play which raises a presumption that the court shall presume the fact of dishonor of the cheque in case the cheque is returned vide a return memo having thereon the official mark denoting that the cheque has been dishonoured. Such bank slip or memo is a prima facie proof of dishonor and the defence has failed to rebut the presumption U/S 146 of the NI Act.
27. Fourthly and lastly, it is required that the payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid and the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. In the present case, in his NOA U/S 251 Cr.P.C. the accused admitted receiving the legal demand notice i.e. Ex. CW1/6. He also admitted replying to the said legal notice but no such reply was placed on record. Therefore, admittedly, the accused was served with the legal demand notice as envisaged by Section 138 NI Act but failed to make the payment. Thus, the fourth and last limb of what will entail the liability against the accused is also structured.
DECISION
28. Accordingly, in the instant case, the accused has failed to lead any convincing evidence to aid him in discharge of his onus and the presumption of law operates in favour of existence of debt or liability. Thus, having considered the entire evidence, I am of the opinion that the complainant has successfully proved all the essential ingredients of Section 138 of the NI Act. Accordingly, this Court finds accused (1) M/S BRAND INDIA INC. THORUGH ITS PARTNER (2) MR. SATPAL FOTRA guilty and they are hereby Page no. 14 of 15 (Neha Sharma) Digitally signed by JMFC NI Act-04/NDD/PHC/ND NEHA NEHA SHARMA SHARMA Date:
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convicted for the offence under section 138 of the NI Act. Let accused be heard on the point of sentence separately.
29. Let the copy of this judgment be given to the convict free of cost and the same be also uploaded on CIS and Layers forthwith.
Digitally signed by NEHAAnnounced in the open court on NEHA SHARMA
Date:
on this 21st January, 2025 SHARMA 2025.01.21
16:47:14
+0530
(NEHA SHARMA)
JUDICIAL MAGISTRATE FIRST CLASS
(NI ACT)-04/NDD/PHC/ND/21.01.2025
Note :-This judgment contains fifteen pages and all the pages have been checked and signed by me. Digitally signed by NEHA SHARMA NEHA Date:
SHARMA 2025.01.21
16:47:17
+0530
(NEHA SHARMA)
JUDICIAL MAGISTRATE FIRST CLASS
(NI ACT)-04/NDD/PHC/ND/21.01.2025
Page no. 15 of 15 (Neha Sharma)
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