Delhi District Court
Senior Builders Ltd vs Anant Raj Industries Ltd on 26 May, 2016
Unique ID No. 02401R0310682016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
Criminal Appeal No. 19/2016
Unique ID No. 02401R0310682016
1. Senior Builders Ltd.
Through its Directors,
1/1 Shanti Niketan,
New Delhi.
2. Sh. Vijay Dixit,
Director/Managing Director
Senior Builders Ltd.
1/1 Shanti Niketan,
New Delhi. .....Appellants
Versus
Anant Raj Industries Ltd.
Through Company Secretary,
Sh. Manoj Pahwa,
Registered Office at
A.R.A. Centre, E-2,
Jhandwala Extension,
New Delhi. .....Respondent
Instituted on : 30th April, 2016
Argued on : 26th May 2016
Decided on : 26th May 2016
ORDER
1. This appeal u/s 374 of the Code of Criminal Procedure, 1973 is directed against judgment dated 26th November 2015 passed by the court of Ms. Preeti Aggarwal, Learned Metropolitan Magistrate-01, N.I. Act (West District), Tis Hazari Courts and order on sentence dated 22nd March 2016 passed by the court of Ms.Swati Singh, Learned Metropolitan Magistrate-01, N.I. Act (West District), Tis Hazari Courts whereby appellant has been convicted for the offence punishable u/s 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') and sentenced to undergo simple imprisonment for a period of one year apart from payment of compensation of Rs.1,52,00,000/- to the complainant within two months and in default was ordered to undergo simple imprisonment for a period of three months.
C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 1 out of 10 Unique ID No. 02401R0310682016
2. In brief, facts leading to the filing of this appeal are as under:
A complaint case u/s 138 r/w 142 of N.I. Act was filed against the appellants M/s Senior Builders Limited, Vijay Dixit. Kalpana Dixit and Vinod Sharma. In July 2006, M/s Senior Builders Limited through its MD took a loan of Rs.1.00 Crores from the respondent M/s Anant Raj Industries and received three cheques bearing no.433388 for Rs.50.00 lacs; No.433489 for Rs.25.00 lacs and; No.433390 for Rs.25.00 lacs. A loan agreement was executed between the parties which noted that loan was taken for a period of two months, to be repaid @3% interest per month. Appellant issued a post dated cheque No.499783 dated 1st September 2006 for Rs.1 Crore 6 Lakhs drawn on HDFC Bank Ltd., D-1, Shopping Complex, Vasant Vihar, New Delhi-110057 for the repayment of the loan amount and interest.
3. Vide order dated 29th March, 2007, learned trial court took cognizance and summoned the accused persons to face trial u/s 138 of N.I. Act. On 4.07.2007, notice u/s 251 Cr.P.C. was served to the accused persons, who pleaded not guilty and claimed trial. Complainant produced Pankaj Nakra, A/R who tendered his affidavit and was cross-examined. Thereafter, statement of accused persons namely Vijay Dixit, Kalpana Dixit and Vinod Sharma was recorded. The defence version is that complainant company at the time of alleged agreement had given cheque in question as security; had repaid some payment to the complainant and notice was not received by Vijay Dixit. Vijay Dixit appeared in the witness box as DW-1. Vide impugned order dated 26.02.2015 learned trial court convicted accused Vijay Dixit, whereas accused Vinod Sharma was acquitted and Kalpana Dixit was declared as a proclaimed offencer (PO). Vide order on sentence dated 22.03.2016, learned trial court awarded sentence of simple imprisonment for a period of 1 year, appellant was granted benefit of Section 428 C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 2 out of 10 Unique ID No. 02401R0310682016 Cr.P.C apart from payment of compensation of Rs.1.52 Crores within two months. In default of payment of compensation, simple imprisonment of three months was ordered and compensation was recoverable u/s 421 IPC.
4. Sh. Vineet Chadha, learned counsel appearing for the appellant submitted that cheque in question was given in the nature of security to the respondent which is apparent from the loan agreement. It is submitted that in the complaint as well as during evidence, case of the respondent has been that cheque was issued in discharge of liability. Secondly, it is submitted that the legal notice dated 10.02.2007 was sent through courier and there is nothing on record to show that legal notice was served through courier. Thirdly, it is submitted that complaint has not been filed by duly authorized person and lastly, it is submitted that while awarding compensation/ sentence, learned trial court has not taken into account payment already made by the appellant to the respondent during trial.
5. Per contra, Sh. Rakesh Lakra and Sh. Amresh Anand, learned Counsels appearing for the respondent submitted that there is no defect in the impugned order and Learned trial court considered all these aspects. As regards giving of cheque as guarantee/security, it is submitted that appellant had given post dated cheque of Rs.1.00 crore 6 lakhs dated 1 st September 2006 drawn on HDFC bank for repayment of the loan amount as guarantee towards repayment of the loan amount of 1 crore and interest @ 3 % p.m. Learned counsel submits that legal notice dated 10 th February, 2007 was duly served to the appellant through Courier and POD bearing stamp of appellant company is on record.
6. Learned counsel submitted that learned trial court noted in the judgment CC Alavi C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 3 out of 10 Unique ID No. 02401R0310682016 Hazi vs. Palapetty Muhammad & Anr. 1, as regards the legal position that the drawer who claims that he did not receive the legal notice, could within 15 days of receipt of summons from the court, make payment of the cheque amount and submit to the court that he had made payment within 15 days on the receipt of summons, which has not been done by the appellant in this case. Therefore, contention raised by the appellant could not be accepted. It is submitted that the complaint has been filed by the duly authorized representative Manoj Pahwa and lastly learned trial court took into account, amount paid by the appellant during trial and the said fact has been recorded in the order on sentence that complainant received Rs.60 lacs in terms of settlement. It is submitted that this contention of learned counsel for the appellant is against the record.
7. Now, this court shall consider contentions raised on behalf of appellant one by one. First contention of appellant is that the cheques in question were issued as guarantee/security. Indisputably, appellant issued a cheque No.499783 in the sum of Rs.1.06 Crores dated 01.09.2006 drawn on HDFC bank Limited, drawn by Vijay Dixit, MD of M/s Senior Builders Limited and cheque Ex.CW-1/C is signed by Vijay Dixit as authorized signatory for Senior Builders. It is also not in dispute that loan of Rs.1.00 Crore was taken by appellant M/s Senior Builders through Vijay Dixit, MD. Loan agreement (Mark C) notes the fact, about taking loan for the period of two months along with interest @3% per month on the loan amount and that the cheque in question was issued as guarantee for the repayment of the loan amount. Agreement was annexed with the complainant as Annexure B. In the complaint also, it is noted that in order to discharge the said liability the accused issued cheque with the assurance that the same would be encahsed and that the cheque was issued towards financial liability of the 1 (2007) 6 SCC 555 C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 4 out of 10 Unique ID No. 02401R0310682016 accused and on presentation, with its bankers by the complainant at SBI, Chanderlok Building, Janpath, cheque was dishonoured with the remarks 'funds in sufficient'. Initially Sh.Manoj. Pawha, company secretary, authorized representative of respondent was examined during pre-summoning evidence and later on, Pankaj Nakra, AR filed his affidavit dated 20.08.2007 was cross-examined on behalf of the appellant. Pankaj Nakra (CW-1) in his deposition, stated that averments of the complaint were correct. CW-1 testified that cheque was given against the loan and cheque amount included the interest part also which was mutually agreed as per the loan agreement @ 3% per annum. In his affidavit, Pankaj Nakra testified that cheque in question was handed over to them with the assurance that the same would be encashed, as and when presented and cheque when present was dishonoured with the remarks 'in-sufficient funds'. In cross-examination, suggestion given on behalf of appellant that cheque in question was purely a security/blank cheque was denied by CW-1. In his statement u/s 313 Cr.P.C. Vijay Dixit stated that the complainant company had taken cheque as collateral security at the time of alleged agreement.
8. Learned trial court rightly noted that the case of the accused the cheque in question was issued as guarantee, will not nullify his liability towards the complainant and what has to be seen is the existence of the liability towards the complainant when the cheque in question was presented to the bank. Learned trial court referred Suresh Chander Goyal Vs. Amit Singhal (Crl. L.P. 706/14) of our High Court, wherein aforesaid fact was stated to have been unequivocally laid down that a mere admission by the complainant of a cheque being a security cheque, will not entirely defeat his case. Thus, in the facts and circumstances, contention of learned counsel that cheque in question was issued as a security or collateral security or blank chaque is rejected. C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 5 out of 10 Unique ID No. 02401R0310682016
9. Next contention raised by learned counsel for the appellant was regarding service of legal notice dated 10.02.2007. As per the case of complainant, notice dated 10.02.2007 (Ex.CW-1/E) was served upon the appellant by way of courier and receipt of courier Ex.CW-1/F is placed on record. Mark D is the copy of register of the courier service. In his cross-examination, Vijay Dixit (DW-1), on asking, stated that he could not admit or deny the mark of stamp at point A on the notice dated 10.02.2007 (Ex.CW-1/E). As per notice, it was sent at 1/1 Shanti Niketan, New Delhi. Courier receipt (Ex.CW-1/F) bears the seal of appellant company M/s Senior Builders. In his deposition, accused as DW-1 has not denied specifically about the seal of his company on the proof of delivery (Ex.CW-1/F). He merely stated that he could not identify the seal. Furthermore, in the cross-examination of Pankaj Nakra (CW-1), the suggestion was given on behalf of the appellant that legal notice Ex.CW-1/E was sent to Senior Builders only. No suggestion was even given to CW-1 on behalf of appellant to the effect that legal notice was not served to the company whose Managing Director was Vijay Dixit. In view of this, service of notice Ex.CW-1/E stands proved and it does not lies in the mouth of the appellant that notice Ex.CW-1/E was not served.
10. Moreover, this court is in agreement with observation of Ld tral court in para 15 as regards service of notice, to the following effect that accused did not lead any evidence to prove the same. Otherwise also, if the accused was to be believed it is inconsequential in the given circumstances as it was held by Hon'ble Supreme Court in C.C. Alavi Hazi vs. Palapetty Muhammad & Anr (Supra) "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 stipulation of giving of a notice before filing a C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 6 out of 10 Unique ID No. 02401R0310682016 complaint. Any 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 the Act, make payment of the cheque amount and submit 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, 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 along with the copy of the complaint under Section 138 of 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 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".
11. In support, Learned counsel relied upon a case reported as HDFC Bank Ltd. Vs. Amit Kumar Singh2, wherein our High Court observed that the court could not automatic draw a conclusion of presumption about the service, but the court had to make an assessment keeping in view the facts of the case. "affidavit filed by the complainant can be accepted only if, deponent states that he either went personally and found that the accused was residing at the address or was able to produce some postal certificate or an endorsement by a courier service agency to indicate that the accused was in fact residing at the given address." In the present case, indisputably complainant has placed on record a postal receipt/proof of delivery of the Courier service agency Ex.PW-1/F. There is no dispute that appellant company M/s Senior Builders Limited was situated at 1/1 Shanti Niketan, New Delhi 110021, the address appearing on the legal notice as 2 2009 (3) JCC (NI) 185 C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 7 out of 10 Unique ID No. 02401R0310682016 well as on the receipt Ex.CW-1/F. It has already been noted that appellant has not specifically denied affixation of stamp of his company at point A on the said receipt and rather in the cross-examination of CW-1, the only suggestion which was given was that the legal notice was only sent to M/s Senior Builders, which clearly implies that legal notice Ex.CW-1/F had been served upon the appellant. Therefore, the contention raised by learned counsel for the appellant is rejected.
12. Next contention raised by Ld counsel for appellant in the present case is that complaint was not signed and filed by a duly authorized person. Complaint was signed in this case by Manoj Pahwa, (company Secretary) as authorized signatory on behalf of complainant. It is submitted that Sh.Pahwa was not specifically authorized to prosecute criminal prosecution. Learned counsel for the complainant submitted that A/R had been authorized to file legal proceedings which included criminal prosecution. This court finds no merit in the contention of appellant. Manoj Pahwa had filed his affidavit at the stage of pre-summoning evidence stating therein that he was the company secretary and signatory to the complaint and was competent to sign the complaint and pursue the case and a copy of the Board Resolution EX. CW-1/A is placed on record. In response to a suggestion, CW-1 denied that Manoj Pahwa had no authority to file the criminal complaint.
13. Section 142 of the Negotiable Instruments Act provides that a complaint under Section 138 can be made by the payee or the holder in due course of the said cheque. Complaint is filed by the appellant company who is the payee of the cheque. Anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance. No Court can decline to take cognizance on the sole ground that the complainant was not competent to file the C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 8 out of 10 Unique ID No. 02401R0310682016 complaint. If any special statute makes any special provision for taking cognizance of such offences under the statue, then the complainant requesting the Magistrate to take cognizance of the offence has to satisfy the eligibility criterion prescribed by the statute. In the present case, only eligibility criterion prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This criterion is satisfied as the complaint is in the name and on behalf of the appellant company .
14. Thus, conviction of appellant u/s 138 N.I. Act is maintained. Convict (appellant herein) was sentence to undergo simple imprisonment for one year apart from compensation of Rs.1,52,00,000/- u/s 143(1) N.I. Act r/w Section 357(3) Cr.P.C, in default simple imprisonment for three months. Now, I advert to the last contention that while awarding compensation, learned trial court had not taken into account the payment already made by the appellant to the respondent during trial. This contention is devoid of any merits. Order on sentence clearly notes that complainant had received Rs.60 lacs from the convict till date. It is further noted in the impugned order that on 5 th November 2012 parties arrived at a settlement and an amount of Rs.1,90,07,921/- was required to be paid by appellant to the complainant. The amount stated to be paid by the appellant including Rs.50 lacs pointed out by appellant finds mention in the settlement dated 27th October 2012 recorded in the Mediation Centre before the Mediator, according to which appellant had undertaken to pay a sum of Rs.1,90,07,921/-. The cheque of Rs.10,6,00,000/-in the present case, was issued about 10 years ago. Having regard to facts and circumstances as a whole, this Court finds that compensation awarded by learned trial court is reasonable and does not warrants any interference.
15. On asking, appellant submited that one more case u/s 138 N.I Act is pending C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 9 out of 10 Unique ID No. 02401R0310682016 and three cases instituted against him by EOW Cell, Delhi Police against him u/s 420, 406, 409, 120B, 174A IPC are pending trial. As per the order of trial court, convict remained in judicial custody in the present case w.e.f. 20.10.2014 to 01.04.2015. This period shall be set off u/s 428 Cr.PC against the imprisonment of one year simple imprisonment awarded to the convict. Appellant has not paid or deposited compensation amount till date. Appellant was granted two months time by learned trial court on 22.03.2016. Said time has lapsed. Now appellant is granted two weeks time to deposit in court compensation amount of Rs.1,52,00,000/- and in default, he shall undergo SI for three months and compensation amount, shall be recoverable by the learned trial court as per provisions of Section 421 Cr.P.C.
16. In the result, conviction of appellant u/s 138 NI Act and sentence awarded to him by learned trial court is affirmed. Appellant is taken into custody in this case to undergo the remaining part of the sentence. Appeal stands dismissed. Trial record record be sent back along with a copy of this order. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
on 26th May 2016 Special Judge-CBI (PC Act)-06
Tis Hazari Courts. Delhi
C.A. No. 19/16 Senior Builders Ltd. Vs. Anant Raj Industries Pvt. Ltd. 10 out of 10