Delhi District Court
Ashok Kumar Gulati vs . M/S Hindustan Alloy Forging & Casting on 30 July, 2012
IN THE COURT OF SH. DHEERAJ MITTAL: M.M-02 (N.I.ACT):
SOUTH-EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Ashok Kumar Gulati Vs. M/s Hindustan Alloy Forging & Casting
Pvt. Ltd. & Ors.
CC No. 4585/1/2004
U/s 138 Negotiable Instruments Act, 1881
1. Unique Identification : 02403R0319002004
Number of the case
2. Name of the complainant : Ashok Kumar Gulati
S/o Sh. B K Gulati
R/o E-298, Greater Kailash-
II,
New Delhi 110048.
3. Name of the accused : (1) M/s Hindustan Alloy
parentage & residential Forging & Casting Pvt. Ltd.
address R/o WZ-266, Shiv Mandir Road,
Madipur, Delhi.
(2) Rolan Sachdev,
S/o Sh. Kuldeep Singh
Sachdeva,
Managing Director.
(3) Raj Kumar Sachdeva
S/o Sh. Kuldeep Singh
Sachdeva,
Director.
4. Offence complained of or : U/s 138 Negotiable
proved Instruments Act.
5. Plea of the accused : Pleaded not guilty and
claimed trial.
6. Final order : Convicted
7. Date of order : 30.07.2012
Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 1 of 20
Date of Institution : 24.07.2004
Date of Reserving Judgment/Order: 09.07.2012
Date of Pronouncement of Judgment/Order : 30.07.2012
JUDGMENT
Brief reasons for the decision are: -
1. This is a complaint filed u/s 138 read with Section 142 of the Negotiable Instruments Act 1881 (hereinafter referred to as N.I. Act).
2. Brief facts of the case are:
It is alleged by the complainant that he was running business of Auto Mobile under the name and style of M/s Motor Aids (India). It is further alleged by the complainant that accused no.1 M/s Hindustan Alloy Forging & Casting Pvt. Ltd. is a private company comprising three partners among which accused no.2 is a Managing Director and accused no.3 and 4 are the partners/directors. It is further averred by the complainant that in the year 2003 the accused persons approached the complainant to invest money in their business on certain terms and conditions and one of such condition was that whatever money will be given they would be paying him 6% net profits earned thereon after excluding expenses on various heads. It is further averred by the complainant that believing the assurances given by the accused persons and 6% share of profit as agreed to, the complainant invested money/loan as and when required and in this way an amount of Rs. 54,68,500/- (Rupees Fifty Four Lacs Sixty Eight Thousand Five Hundred Only) was taken by the accused persons from time to time from the year 2003. It is further alleged that for the repayment of principle amount and 6% profits earned, accused no.3 namely Raj Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 2 of 20 Kumar Sachdeva, being Director of accused no.1 issued as many as 23 cheques of different dates amounting Rs.71,32,000/-. It is further alleged that all the 23 cheques issued by the accused were drawn on Corporation Bank, Paschim Vihar, New Delhi. The cheques in question i.e. Ex CW1/A-1 to Ex CW1/A-23 are as under:
S.No Cheque Dated Amounting Drawn on Remarks
. No. Rs.
1 200451 19.03.04 4,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
2 200452 19.03.04 2,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
3 200453 17.03.04 7,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
4 200454 17.03.04 42,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
5 200456 26.03.04 4,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
6 200457 26.03.04 48,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
7 200458 08.03.04 30,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
8 200459 08.03.04 5,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
9 200460 08.03.04 2,50,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
10 200461 26.03.04 8,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
11 200462 12.03.04 4,25,000/- Corporation Exceeds Arrangement
Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 3 of 20
Bank,New &
Delhi Account Blocked
12 200463 12.03.04 25,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
13 200465 12.03.04 2,12,500/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
14 200466 17.02.04 3,50,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
15 200468 19.03.04 24,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
16 939193 01.04.04 4,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
17 939194 09.04.04 2,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
18 939195 07.05.04 2,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
19 939196 07.05.04 1,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
20 939197 08.05.04 1,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
21 939198 07.05.04 2,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
22 939199 13.06.04 4,00,000/- Corporation Exceeds Arrangement
Bank,New &
Delhi Account Blocked
23 111725 26.04.04 11,25,000/ Corporation Exceeds Arrangement
- Bank,New &
Delhi Account Blocked
It is further alleged by the complainant that when he presented the cheques for encashment in his banker namely Corporation Bank, Greater Kailash-II, New Delhi the same were Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 4 of 20 returned unpaid with the endorsements as mentioned in the abovesaid table. It is further alleged that complainant issued a legal notice dated 23.06.2004 (Ex CW1/Y) to the accused and demanded the cheque amount but when the accused did not pay the amount to the complainant, complainant filed the present complaint case.
3. After being satisfied that prima facie case against the accused no. 1 to 3 U/s Section 138 N.I. Act is made out, cognizance was taken and accused no. 1 to 3 were summoned for the offence u/s 138 N.I. Act by my Ld. Predecessor vide summoning order dated 02.08.2004.
It may be underlined here that respondent no.4 namely Smt. Krishna Sachdeva was not summoned as an accused by my Ld. Predecessor.
3.1 It may be noted that the accused no.3 namely Raj Kumar Sachdeva was declared Proclaimed Offender second time on 14.05.2008.
4. Notice u/s 251 Cr.P.C was framed against the accused no. 1 and 2 on 09.09.2011. The notice against the accused no. 1 i.e. accused company namely M/s Hindustan Alloy Forging and Casting Pvt. Ltd. was framed through accused no.2 namely Rolan Sachdeva being Managing Director of accused no.1.
The accused disclosed their defence after framing of the notice U/s 251 Cr PC as per mandate of the judgment of Delhi High Court in Rajesh Aggarwal Vs. State & Anr. The accused took the defence that the cheques in question do not bear his signatures and other contents of the cheques were not filled by him. The accused further submitted that he do not have any personal knowledge about the issuance of cheques. He further submitted that he did not know about the alleged transaction Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 5 of 20 between the complainant and the accused no.3 namely Raj Kumar Sachdeva. The accused further submitted that he remained Managing Director of the accused company till January 2004. The accused denied the receipt of legal notice.
5. After framing of the notice against the accused U/s 251 Cr PC, the complainant examined himself as CW-1 by adopting the same affidavit which he tendered/relied during his pre summoning evidence. The statement of complainant/CW-1 adopting his pre summoning affidavit was recorded on 17.04.2012. The CW-1 relied upon the documents filed during pre summoning evidence and also tendered documents Ex CW1/L to CW1/Y. It may be noted that the pre summoning evidence affidavit dated 27.07.2004 filed by the complainant was not bearing any exhibit number and the same was exhibited as Ex CW1/Z by the court on 17.04.2012 and court observations regarding the same has been made on that date. By his evidence affidavit Ex CW-1/Z, complainant/CW-1 deposed on the same lines as in the complaint and relied upon the following documents besides documents Ex CW1/L to Ex CW1/Y:-
(i) The cheques in question (details mentioned aforesaid) are Ex CW1/A-1 to Ex CW1/A-23.
(ii) Returning memos of the cheques in question are Ex CW1/B-1 to Ex CW1/B-3 (reasons for dishonour of cheques in question have been mentioned in the aforesaid chart).
(iii) Legal demand notice dated 23.06.2004 as (Ex.CW1/Y).
(iv) Postal dispatch receipts are Ex.CW1/E.
(v) Returned envelopes containing demand notice are Ex CW1/E to Ex CW1/K. AD cards annexed with returned envelopes are Ex CW1/D-1 to Ex CW1/D-6.
5.1 After his evidence as CW-1, complainant closed his post Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 6 of 20 notice evidence and thereafter statement of accused no.1 and 2 were recorded U/s 313 Cr PC on 07.07.2012. The statement of accused no.1 i.e. accused company was recorded through accused no.2 Rolan Sachdeva being Managing Director of accused no.1.
In his statement U/s 313 Cr PC the accused Rolan Sachdeva told that he had no knowledge about the issuance of cheques by accused no.3. He further said that to his knowledge the accused company is having no liability towards the complainant. The accused denied the receipt of legal notice. As far as document Ex CW1/L to Ex CW1/X are concerned, the accused submitted that these documents are forged and fabricated by the complainant to support his case.
5.2 Although the accused submitted in his statement U/s 313 Cr PC that he wants of lead defence evidence, but the accused did not lead any evidence in his defence and voluntarily closed his evidence by his separate statement recorded on 09.07.2012.
Thereafter, the matter was fixed for final arguments which were heard from both the sides. It may be noted here that short dates were given and the matter was expedited because of the directions of Hon'ble Justice Ms. Mukta Gupta vide order dated 13.03.2012 passed in writ petition (criminal) no. 374/2012.
6. Before going into the merits of the present complaint case, lets consider the important legal provisions and case laws.
6.1 It is settled proposition of law that for fastening liability u/s 138 Negotiable Instruments Act, following requirements are to be fulfilled: -
(a) Drawing of the cheque by the person on the account maintained by him.
(b) Drawer of the cheque issued the cheque to discharge Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 7 of 20 in whole or in part,any legal enforceable debt or other liability.
(c) The cheque issued has been returned unpaid due to insufficiency of funds or exceeds the arranged amount.
(d) The drawer fails to make payment within stipulated time after the receipt of demand notice.
6.2 Important presumptions relating to offence u/s 138 N.I.Act are:-
Section 118 Clause (a) of Negotiable Instruments Act provides for presumptions regarding the consideration for the Negotiable Instruments. It reads as under: -
"That every negotiable instrument was made or 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".
Section 139 of the Negotiable Instruments Act provides for presumption in favour of a holder. It reads as under:
"It shall be 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, or any debt or other liability."
The combined reading of above said sections raises a presumption in favour of the holder of the cheque that he has received the same for discharge in whole or in part of any debt or other liability. However, it is settled principle of law that the presumption available u/s 139 Negotiable Instruments Act can be rebutted by the accused by raising a probable defence but the burden of proof is on the accused.
Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 8 of 20 Section 141 of the Negotiable Instruments Act is relevant for the purpose of present complaint case which is reproduced herein:
" Section 141: Offences by Companies: (1) If the person committing an offence U/s 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.......................
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent of connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary of other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation- For the purpose of this Section. (1)"company" means any body corporate and includes a firm or other association of individuals; and (2) "director", in relation to a firm, means a partner in the firm.
6.3 Important case laws are: -
Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 9 of 20 In "Rangappa vs S.Mohan AIR 2010 SC 1898" the Apex Court of India held as under: -
".... we are in agreement with the respondent- claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observation in Krishna Janadardhan Bhat (supra) may not be correct..."
".... it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
Similar observations have been made by the Apex Court in the following judgments: -
(a) "M.S. Narayana Menon vs State of Kerala" (2006) 6 SCC 39.
(b) "M/s Kumar Exports vs M/s Sharma Carpets"
AIR 2009 SC 1518.
(c) "Kamla S. vs Vidyadharan M.J. & Anr." (2007) 5 SCC 264.
(d) "K.Prakashan vs P.K. Surenderan" (2008) 1 SCC 258.
Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 10 of 20
7. Now lets come back to the facts and merits of the present case.
In the present case, the cheques in question bear the stamp of the accused company i.e. M/s Hindustan Alloy Forging & Casting Pvt. Ltd. and accused no.2 namely Rolan Sachdeva has admitted that he was Managing Director of the accused company till January 2004 and therefore, presumption U/s 139 N I Act comes into play against the accused no.1 and 2 in this factual matrix.
I have perused the record and heard the submissions made by the counsels for the parties.
It is submitted by the counsel for the complainant that no evidence has been led by the accused during trial in his defence. It is further submitted that in his plea of defence taken in notice U/s 251 Cr PC, the accused has categorically admitted that he remained Managing Director of the accused company till January 2004. Counsel further submitted that the presumption U/s 139 N I Act is in favour of the complainant and in view of the fact that accused has himself admitted that he was Managing Director of the company till January 2004, he is liable to be convicted for the offence U/s 138 N I Act.
Per contra the counsel for the accused vehemently submitted that summoning order in this case has been passed wrongly because the complainant/CW-1 did not make any statement tendering his evidence affidavit. He further submitted that during his post notice evidence complainant/CW-1 has relied upon the pre summoning evidence affidavit and the same could not acted upon because the same was not exhibited. The counsel further submitted that no legal notice was ever received by the accused and the copy of legal notice is also not on record Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 11 of 20 which is sine qua none for the offence U/s 138 N I Act. The counsel further submitted that the documents tendered by the complainant/CW-1 in his post notice evidence could not be read as part of evidence because the complainant did not file the same at the time of filing of complaint as well as pre summoning evidence. The counsel further submitted that there are number of material contradictions in the evidence of complainant/CW-1. By making his submissions, the counsel submitted that the accused is entitled to acquittal.
8. As noted above, the complainant/CW-1 relied upon the same evidence affidavit which was filed by him during his pre summoning evidence and the complainant also filed some new documents Ex CW1/L to Ex CW1/Y during his post notice evidence. The statement of the complainant/CW-1 was recorded on oath in the court on 17.04.2012 by which he relied upon his pre summoning evidence affidavit and tendered the documents Ex CW1/L to Ex CW1/Y and relied upon the same documents which were already filed in pre summoning evidence. It is noteworthy that during cross examination of complainant/CW-1, no question/suggestions has been put by the counsel for the accused to the witness regarding the documents Ex CW1/L to Ex CW1/Y. The counsel submitted during final arguments that these documents could not be read as part of evidence because they were not filed by the complainant during his pre summoning evidence.
I do not find any force in these submissions of the counsel for accused because there is no provision in law which prohibits the complainant to tender additional documents in his post notice evidence. Moreover, during his pre summoning evidence, the complainant has to make out the prima facie only Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 12 of 20 so that accused can be summoned but in his post notice evidence the complainant has to lead evidence so that the accused can be convicted for the offence. There is no provision in law by which complainant can be restricted to rely only upon the same evidence which was led by him during pre summoning evidence. Here it may be noted that complainant/CW-1 has tendered documents Ex CW1/L to Ex CW1/Y by taking permission of the court to file additional documents/evidence by moving an application U/s 311 Cr PC, which was allowed by the court vide its order dated 17.04.2012.
In view of this discussions, I do not find any force in the arguments of the counsel for the accused that documents Ex CW1/L to Ex CW1/Y could not be relied/acted upon. The witness has tendered these documents in his post notice evidence by way of his statement on Oath and therefore these documents became part of the evidence and can be relied/acted upon. It has been noted earlier that no cross examination/suggestions was conducted by the counsel for the accused upon these documents and therefore, as per settled law these documents remains unrebutted/proved. A bare look at these documents would reveal that most of these documents are receipts issued by the accused company to the complainant and in these documents the cheques mentioned are the same cheques which are cheques in question. In view of this court, these documents have supported the case of the complainant because these documents remain unrebutted. Although, the accused has stated in his statement recorded U/s 313 Cr PC that these documents have been forged by the complainant to support his case but as noted earlier no cross examination has been conducted upon these documents and therefore these remain Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 13 of 20 unrebutted and stand proved. Only submissions during statement U/s 313 Cr PC that these documents are forged cannot be of any help to the accused. The accused has to cross examine the witness upon these documents and/or has to lead evidence in his defence to prove that these documents are forged but in this case accused did nothing.
8.1 As far as the arguments of the counsel for the accused that the summoning order has been passed strongly because the complainant did not make any statement in his pre summoning evidence tendering the affidavit and the affidavit was not exhibited, are concerned, I do not find any merit in these arguments because it is settled law that while summoning the accused for the offence court has to see the material on record to form the opinion that the material is sufficient enough to summon the accused for the alleged offence. Merely because pre summoning evidence affidavit was not exhibited, the case of the complainant could not be thrown out. It may be underlined here that on dated 17.04.2012 vide its observations the court exhibited the evidence affidavit as Ex CW1/Z. The High Court orders and rules makes it clear that it is the duty of the court to put exhibit/marks on the documents which are filed by the parties in their evidence. The case of party could not be thrown out/disbelieved merely because the exhibit number has not been put upon it. Moreover, if the pre summoning evidence affidavit was not exhibited by the court, the complainant should not suffer for the unintentional lapse committed on the part of the court. Furthermore, as noted above the affidavit was exhibited on 17.04.2012 as Ex CW1/Z. 8.2 The counsel during final arguments vehemently argued that legal notice was never received by the accused. The Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 14 of 20 complainant in his evidence has filed the undelivered registered envelopes alongwith original postal receipts showing that the legal notice was dispatched to the accused. It is settled law that if the accused alleges that legal notice was not received by him, the burden is upon him to prove the same. The complainant has to show that the legal notice was sent to the accused by way of registered post at his address and the complainant has done so by tendering in his evidence the undelivered registered envelopes and postal receipts. In the landmark judment of C C Alavi Haji Vs. Palapetty Muhammed, (SC) 2007 (3) R C R (Criminal) 185, the Apex Court Held so. The relevant portions of judgment are reproduced here:
".....This court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed.........................It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect". In view of of the aforesaid, the arguments raised by the counsel for the accused that legal notice was not received by accused is of no help to the accused as accused could not lead any evidence to prove that the legal notice was not received by him or the reports are manipulated one.
8.3 As noted above, the accused has not lead any evidence in his defence to rebutt the presumption raised by virtue of Section 139 N I Act, the accused has mainly relied upon the Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 15 of 20 contradictions /loopholes in the evidence of the complainant/CW-1. Complainant/CW-1 was cross examined at sufficient length by the counsel for the accused but in the opinion of this court, no material contradiction has been found in the evidence of the witness. It is settled law that if the witness is consistent on the material points, then the minor contradictions/variations in his deposition has to be ignored. It may be noted here that the case pertains to the year 2004 and the pre summoning evidence affidavit was filed by the complainant at that time, whereas his cross examination has been conducted in the year 2002 i.e. almost 8 years after the witness lead his examination in chief by way of affidavit. After lapse of so many years it cannot be expected that his evidence will be without even a single contradiction/variation. 8.4 During cross examination of the witness i.e. complainant/CW-1, a document Ex CW1/D-1 was put to the witness, and the same was admitted by the witness. Counsel submitted that it is the balance sheet of the firm filed by the witness on 30.03.03 and as per the statement the witness owes a liability of Rs. 1,950/- to the accused company. The counsel submitted that since the complainant owes an amount of Rs. 1,950/- of the accused company on 30.03.03, the version of the complainant could not be relied upon that he lent/invested approximately Rs. 70 Lacs in the accused company.
I do not find that this document is of any help to the accused because the cheques in question are of the year 2004 and complainant has alleged in his complaint that he started investing money in the accused company from the year 2003 and therefore it might be that he might have started investing money/lending loan to the accused after 30.03.03.
Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 16 of 20 8.5 The counsel submitted that in his Income Tax Return filed for the assessment year 2011-12 the complainant has shown gross total income of Rs. 2 Lacs approximately and therefore it could not be believed that a person having income of Rs. 2 Lacs would have invested/lent loan to the accused company to the tune of Rs. 70 Lacs approximately in the year 2003-04 as alleged.
This argument is of no help to the accused because the complainant has said during his cross examination that this money was borrowed by him from his friends/relatives and after investing/lending his money he was totally ruined and his firm was closed. Moreover, if a person has not shown his correct income in his Income Tax Return, he may be liable for consequences as provided in the Income Tax Act. His case could not be thrown out merely because he has not shown the correct income in his Income Tax Return. The accused could not be absolved of the offence U/s 138 N I Act merely on the basis of income shown in the Income Tax Returns by the complainant or the balance sheet filed by the complainant. 8.6 In view of the aforesaid, this court is of the view that the evidence of the complainant/CW-1 can be relied upon/acted upon because no material contradiction/variations have been found in his evidence.
8.7 During final arguments the counsel for the accused wanted to show the documents Ex CW1/L to Ex CW1/Y and tried to show some facts in those documents which are inconsistent to the allegations of the complainant. It may be noted that in his statement U/s 313 Cr PC the accused submitted that these documents have been forged by the complainant to support his case. On the one hand the accused is trying to show that the Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 17 of 20 documents are forged on the other hand he is trying to show some facts in these documents which are inconsistent with the case of the complainant. This could not be allowed because a party could not be allowed to blow hot and cold in one breath. Moreover, it has been noted earlier that no cross examination was conducted upon these documents and these documents have supported the case of the complainant.
8.8 In landmark Judgment titled as "S M S Pharmaceuticals Ltd. Vs. Neeta Bhalla AIR 2005 Supreme Court", the three judges of the Apex Court held that Managing Director or Joint Managaing Director would be admittedly in charge of the company and responsible to the company for the conduct of its business. The court held that by virtue of the office they hold as Managing Director or Joint Managing Director, these persons are Incharge and responsible for the conduct of the business of the company. The relevant portion of the judgment are reproduced here:
".............11. The position of a Managing Director or a Joint Managing Director in a company may be different. These persons, as the designation of their office suggests, are in charge of a company and are responsible for the conduct of the business of the company. In order to escape liability such persons may have to bring their case within the proviso to Section 141 (1), that is, they will have to prove that when the offence was committed they had no knowledge of the offence or that they exercised all due diligence to prevent the commission of the offfence........."
In the present case, the accused no.2 Rolan Sachdeva's defence that he was having no knowledge of the transaction as alleged by the complainant, is not tenable in Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 18 of 20 view of the observations of the Apex Court in the Judgment cited Supra. The accused no.2 Rolan Sachdeva has admitted that he was the Managing Director of the accused company till January 2004 and the complainant has alleged that the money was taken by the accused persons from the year 2003 and therefore it cannot be believed that Rolan Sachdeva being Managing Director would not be knowing the transaction. 8.9 The conduct of the accused no.2 and 3 is noteworthy during trial as noted above, the accused no.3 namely Raj Kumar Sachdeva is the real brother of the accused no.2 namely Rolan Sachdeva and accused no.3 has been declared proclaimed offender two times during the trial. Accused no.2 has also been arrested only when he was declared proclaimed offender during trial. The proceedings of the present case has been delayed mainly because the accused no.2 and 3.
8.10 The accused did not lead any evidence in their defence. Defence of accused during statements U/s 313 Cr PC is no evidence at all. It has been held by our High Court in "V S Yadav Vs. Reena 172 (2010) Delhi Law Times 561 wherein it was held at para 5:"
"it must be borne in mind that the statement of accused U/s 281 Cr PC or under Section 313 Cr PC is not the evidence of the accused and it can not be read as part of evidence. Accused has an option to examine himself as a witness, his statement U/s 281 Cr PC or U/s 313 Cr PC cannot be read as evidence of accused and it has to be look into only as an explanation of incriminating circumstances and not as an evidence". The High Court further observed at Para 7 that "in order to rebutt the presumption U/s 139 of N I act, the accused by cogent evidence has to prove the circumstances under which the cheque were issued."
Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 19 of 20 In this case also, accused even failed to examine himself as defence witness U/s 315 Cr PC.
In view of the aforesaid, it may be concluded that accused failed to rebut the presumption U/s 139 N I Act.
On the other hand, complainant proved all the ingredients of offence U/s 138 N I Act by his evidence and exhibiting the aforesaid documents.
9. In view of the discussions, it can be held that the complainant has proved his case against the accused no.1 and 2, whereas accused no.1 and 2 have failed to rebutt the presumption raised U/s 139 N I Act. The accused no.1 and 2 are liable to convicted for offence U/s 138 N I Act, hence, convicted for the same.
Copy of Judgment be given to the convict free of cost.
Pronounced in the open court (Dheeraj Mittal) on 30.07.2012 M.M.(N.I. Act)-02:SED: Saket Courts, New Delhi Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 20 of 20 Ashok Kumar Gulati Vs. Hindustan Alloy Forging & Casting Pvt. Ltd. page 21 of 20