Delhi District Court
H.T.Media vs Vian Infrastructure Ltd on 23 October, 2024
IN THE COURT OF MS. POONAM SINGH
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-01,
NEW DELHI DISTRICT, PHC, NEW DELHI
1. Complaint Case : 21898/2016
Number DLND020001402009
2. Name & address : H.T. Media Ltd.
of the Through its Constituted Attorney
complainant Shuvan Das, S/o SR Das
Hindustan Times House, 2nd Floor, 18-20, Kasturba Gandhi Marg, New Delhi-110001.
3. Name and address : 1. M/s Vian Infrastructure Ltd.
of the accused UGF, 8A, Cyber City, DLF-11,
Gurgaon. Through Surya
Kirtichand Thapar, S/o KR
Thakur, Chairman-cum- Director.
2. Surya Kirtichand Thapar S/o KR Thakur, Chairman-cum-Director of M/s Vian Infrastructure Ltd. UGF, 8A, Cyber City, DLF-II, Gurgaon.
Also at :- Surya Kirtichand Thapar, S/o KR Thakur, Chairman-cum-
Director of M/s Vian Infrastructure Ltd. D-130, Anand Niketan, New Delhi-21.
3. Samir Bharati Director of M/s Vian Infrastructure Ltd., UGF, 8A, Cyber City, DLF-
11, Gurgaon.
4. Pranay Kumar Director of M/s Vian Infrastructure Ltd., S/o GS Sinha, R/o RZB B-
CC No. 21898/16 Page No. 1/21 Digitally signed by POONAMPOONAM SINGH SINGH Date:
2024.10.23 17:01:10 +0530 116A, Street No.9, Dev Kunj, Raj Nagar-2, Palam Colony, New Delhi-13.
5. Sarvesh Chowdhary S/o RS Chowdhary, Director of M/s Vian Infrastructure Ltd. A-105, Sector 36, Noida-201301.
6. J.P. Sharma S/o C.P.Sharma Director of M/s Vian Infrastructure Ltd. 74/5, Maidangarh Road, Chattarpur, New Delhi-68.
7. Sanjeev Malhotra S/o B.D. Malhotra Director of M/s Vian Infrastructure Ltd. 29, Chakrata Road, Dehradun- 248123 (UP).
8. Om Narayna Sharma S/o MS Sharma Director of M/s Vian Infrastructure Ltd. H.No. 88-A, Ashok Apartment, Paschim Vihar, New Delhi-1.
9. M/s Windmill Communication Pvt. Ltd. GF, Caxton House, 2 F, Jhandewalan Extension, New Delhi-55. Through NK Arora S/o Mulakh Raj Arora, Director.
10. NK Arora, S/o Mulakh Raj Arora Director of M/s Windmill Communication Pvt Ltd. GF, Caxton House, 2F, Jhandewalan Extension, New Delhi-55.
Also at:- NK Arora, S/o Mulakh Raj Arora, Director of M/s Windmill Communication Pvt.
Ltd. 226, Jaina Apartment, Sector CC No. 21898/16 Page No. 2/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:01:16 +0530 13, Rohini, Delhi-85.
11. Devesh Sharma S/o Vijay Kumar Sharma, Director of M/s Windmill Communication Pvt Ltd. F-130-A, West Avenue, Lane-5 Sainik Farms, New Delhi-62.
4. Offence : Section 138 read with Section 141, complained Negotiable Instruments Act, 1881.
5. Plea of the guilt : Pleaded not guilty
6. Final Order Qua;
Accused no. 1 : Acquitted
Accused no. 2 : Acquitted
Accused no.: Accused persons were declared
3,4,6,8 absconders.
Accused no.5 : Proceedings against the accused
dropped vide order dated
18.3.2013.
Accused no.7 : Acquitted
Accused no.9, 10 : Not summoned.
& 11
7. Date of institution : 20.05.2009
8. Date on which : 05.10.2024 reserved for judgment
9. Date of judgment : 23.10.2024 BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Vide this judgment, this court shall dispose of the aforementioned complaint case filed by the complainant company namely H.T. Media Ltd. against the Accused no.1 company namely, M/s Vian Infrastructure Ltd., Accused no.2 Surya Kirtichand Thapar, Accused no.3 CC No. 21898/16 Page No. 3/21 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.10.23 17:01:21 +0530 Samir Bharati, Accused no.4 Pranay Kumar, Accused no.5 Sarvesh Chowdhary, Accused no.6 J.P Sharma, accused no.7 Sanjeev Malhotra, accused no.8 Om Narayna Sharma, accused no.9 M/s Windmill Communication Pvt Ltd., accused no.10 NK Arora and accused no.11 Devesh Sharma in respect of the dishonour of one cheque bearing no.407843 dated 20.03.2009 for an amount of Rs.33,01,740/- (Rs. Thirty Three Lacs One Thousand Seven Hundred and Forty only) drawn on Vijaya Bank, Barakhamba Road, New Delhi-110001 (hereinafter referred to as the "cheque in question").
2. Tersely, it is the case of the complainant company that the accused no.1 company engaged in the business of real estate developers and the accused no.2 to 8 are its managing directors. The accused no.9 is an advertising agency and accused no.10 and 11 are its director. It is the case of the complainant that the accused no.9 company approached the complainant for the publication of the advertisements on behalf of the accused no.1 company in the newspaper of the complainant and a release order dated 23.01.2009 was issued by the accused no.9 under the signatures of the accused no.10. It is further the case of the complainant that it had published the advertisements for the accused no.1 through accused no.9 as per the terms and conditions agreed between the parties.
3. It is further the case of the complainant that it was specifically agreed between the parties that the accused no.1 is in the process of barter deal with the complainant and if the said deal does not happen, then the complainant CC No. 21898/16 Page No. 4/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:01:27 +0530 shall have a right to encash the cheque in question. It is further alleged that when the cheque in question was presented for encashment, it was returned dishonored with remarks "insufficient funds" vide bank return memo dated 23.03.2009 and no payment was made to the complainant company even after 15 days of service of legal demand notice dated 16.04.2009 upon the accused persons and hence the complainant company moved this court with the present complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act").
4. In pre-summoning evidence, AR of the complainant company examined himself as CW-1 on affidavit being Ex.CW1/A1 and placed reliance on the complaint and certain documents i.e. copy of power of attorney being Ex.CW1/1, cheque in question being Ex. CW1/2, bank return memo dated 23.03.2009 being Ex.CW1/3, copy of letter dated 23.01.2009 being Mark A, legal demand notice dated 16.04.2009 being Ex.CW1/4, original postal receipts being Ex.CW1/5, UPC being Ex.CW1/6, `courier receipts being Ex.CW1/7 to Ex.CW1/21, reply dated 30.04.2009 on behalf of accused no.1 Company being Ex.CW1/22 copy of print out obtained from MCA website being Ex.CW1/B and copy of power of attorney being Ex.CW1/C (OSR).
5. Upon prima facie consideration of the pre-summoning evidence, accused no.1 to 8 were summoned vide order dated 20.05.2009. During the course of proceedings, accused no.3,4,6 and 8 were declared absconders and CC No. 21898/16 Page No. 5/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:01:33 +0530 proceedings against the accused no.5 were dropped vide order dated 18.03.2013.
6. Notice under Section 251, Cr.P.C. was served upon accused no. 1 through official liquidator, accused no. 2 and accused no.7 to which they pleaded not guilty. The official liquidator of the accused no.1 company stated that the office of official liquidator has not received any information from the ex-director of accused no.1 company with respect to cheque in question and documents/ complaint filed by the complainant company.
7. Accused no. 2 stated that he has no liability towards the complainant and he was one of the directors of the accused no.1 company and the accused no.1 did not request for any advertisement to the complainant. He further stated that the advertisement was with respect to some other company and the accused no.1 company was just a guarantor for that company. He further stated that the accused no.1 company has already gone into liquidation since 2012 and an OL has already been appointed. He denied the receipt of legal demand notice.
8. Accused no. 7 stated that he was working as an additional director of the accused no.1 company for one month i.e. 03.01.2007 till 23.02.2007 and thereafter he gave his resignation. He further stated that he has no knowledge regarding barter deal entered into between the complainant company and the accused no.1 company. He denied his signatures on the cheque in question. He denied the receipt of legal demand notice.
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SINGH 2024.10.23 17:01:39 +0530
9. Sh. Viplab Majumder, AR of the complainant, who deposed as CW-1 was examined-in-chief, cross-examined and discharged.
10.Complainant has also examined Sh. Ravindre Sharma who deposed as CW-2. He has brought the advertisement bills alongwith copies of advertisements being Ex.CW2/1 (OSR) running into 28 pages. He was cross-examined and discharged. Complainant evidence was closed vide order on 06.02.2020.
11.Ld. Additional Standing counsel for OL of accused no.1 company has adopted the cross examination conducted by Ld. Counsel for the accused no.2 and 7 vide separate statement dated 11.03.24.
12.Thereafter, statements of accused persons under Section 313 Cr.P.C. read with Section 281 Cr.P.C. were recorded.
At this stage, the accused no.2 maintained his defence being taken at the time of notice U/s 251 Cr.PC. He further stated that it is a false case against him. The accused No.2 chose not to lead defence evidence.
13.Accused no.7 has also maintained his defence being taken at the time of notice U/s 251 Cr.PC. He stated that it is a false case against him. Accused no.7 also chose not to lead defence evidence.
14.Vide order dated 29.01.2022, Ld. Counsel for the accused no.7 submitted that accused no.7 wishes to examine witness from ROC as a defence witness and also wishes to examine himself as a witness in the present case. Thereafter, vide order dated 10.03.2022, an application U/s CC No. 21898/16 Page No. 7/21 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.10.23 17:01:45 +0530 311/315 Cr.PC was moved on behalf of the accused no.7, which was allowed.
15.During his examination-in-chief, DW1/accused no.7 relied upon copy of consent for appointment as an additional director of the company being Mark DW1/A, copy of resignation letter dated 24.02.2007 being Mark DW1/B, copy of developer's agreement between the complainant and the accused no.7 being Mark DW1/C, copy of the application under RTI Act dated 21.08.2014 being Mark DW1/D, copy of ROC findings and RD findings being Mark DW1/E (Colly), copy of dossier dated 31.12.2009 being Mark DW1/F, copy of form 32 without signatures of the accused no.7 being Mark DW1/G and copy of register of contracts, companies and firms being Mark DW1/H. He was duly cross-examined by Ld. Counsel for the complainant and discharged.
16.Accused no.7 has also examined Sh Gaurav, working as Dy. Registrar of Companies as DW-2. He has relied upon copy of his authority letter being Ex.DW2/A(OSR). The witness has also brought complete file of Vian Infrastructure Ltd. maintained at the o/o DGCoA, Kota House being Ex.DW2/B(OSR) (Colly).
17.Vide separate statement of the accused no.7, DE was closed on 13.02.2024.
18.Final arguments were heard and concluded on behalf of both the parties on 27.09.2024. Written submissions were also filed on behalf of the accused 2 and 7.
19.Defence of the accused persons as revealed at different stages of the trial is broadly four-fold- Firstly; that there is CC No. 21898/16 Page No. 8/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:01:50 +0530 no legally enforceable debt or liability of the accused no. 1 company as on the date of drawl or presentation of the cheque in question. Secondly, it is the specific defence of accused no. 2 and 7 that they did not receive legal demand notice. Thirdly, it is the specific defence of Accused 2 and 7 that they were not in charge of day-to-day affairs and conduct of business of the accused no.1 company at the time of drawl or presentation of the cheque in question.
Lastly, it is the specific defence of accused no. 2 and 7 that since no offence under Section 138 NI Act is made out against the accused no. 1 company, they cannot be held vicariously liable for the said offence.
20.Rival submissions have been considered and record of the case has been carefully perused.
21.Before delving into the facts of the present case, it is relevant to discuss the law applicable to the present proceedings. In the cases where the offence under Section 138 of the NI Act is allegedly committed by a company or a partnership firm, subsection (1) of Section 141, NI Act provides for the vicarious liability of every person who, at the time of offence was committed, was in charge of and was responsible to the company/partnership firm for the conduct of its business, exception being when such person proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. Further, subsection (2) of the Section provides that notwithstanding anything contained in subsection (1), where any offence under NI Act has been committed by a CC No. 21898/16 Page No. 9/21 Digitally signed POONAM by POONAM SINGH SINGH Date: 2024.10.23 17:01:55 +0530 company/partnership firm and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company/partnership firm, 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.
22.Since in the case at hand, the liability has been primarily imputed to the accused no.1 company under Section 138 NI Act being the drawer of the cheque in question and vicariously upon the accused no. 2 and 7 by virtue of their position as its directors at the time of issuance and presentation of the cheque in question in terms of Section 141 NI Act, at the very outset, it becomes imperative to first scrutinize whether the accused no. 1 company can be held liable for the alleged offence under Section 138 NI Act, if any, committed by it.
23.To bring home a liability under Section 138 of the NI Act, following elements must spring out from the averments in the complaint and the evidence adduced by the complainant, which are:
"(a) The accused issued a cheque on an account maintained by him with a bank.
(b) The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability, which is legally enforceable.
(c) The said cheque has been presented to the bank within a period of three months from CC No. 21898/16 Page No. 10/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:02:01 +0530 the date of cheque or within the period of its validity.
(d) The aforesaid cheque, when presented for encashment, was returned unpaid / dishonoured.
(e) The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
(f) The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand."
24.Once the other ingredients mentioned in the foregoing paragraph are established by the complainant, then as soon as the execution of impugned cheque is admitted by the accused, a factual base is established to invoke the presumption of cheque having been issued in discharge, in whole or in part, of any debt or other liability by virtue of Section 118(a) read with Section 139 of NI Act. This is a reverse onus clause, which means that unless the contrary is proved, it shall be presumed that the impugned cheque was drawn by the accused for a consideration and that the complainant had received it in discharge of a debt/ liability from the accused. In the case titled Bir Singh Vs. Mukesh Kumar, (2019) 4 SCC 197, it was held by Hon'ble Supreme Court of India that once the accused has admitted the signatures on the cheque in question, then the court is bound to raise presumption under Section 139 NI Act.
25.It has been held by Hon'ble Supreme Court of India in the judgment titled Rangappa Vs. Sri Mohan, (2010) 11 SCC 441 that a reverse onus clause usually imposes an evidentiary burden and not a persuasive burden and when CC No. 21898/16 Page No. 11/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:02:06 +0530 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. It was further held that 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.
26.In the present case, in order to discharge his initial burden to prove the above-mentioned ingredients, the AR of the complainant company relied upon his affidavit being Ex.
CW1/A and placed on record documents mentioned hereinbefore. Ld. Counsel for the complainant submitted that it has been admitted by the accused persons that the cheques in question belonged to accused no. 1 company and bear the signatures of an authorized signatory and hence presumption of the cheque in question having been issued by accused no.1 company in discharge of debt or other liability arises in favour of the complainant company in terms of Section 118(a) read with Section 139 of NI Act. He further argued that the genuineness and correctness of the cheque in question being Ex.CW1/2, cheque return memos being CW1/3, copy of legal demand notice dated 16.04.2009 being Ex. CW1/4 is not disputed. Further, the fact that the complainant company received no payment within 15 days of the service of the legal demand notice, duly proves all the ingredients of the offence under CC No. 21898/16 Page No. 12/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:02:12 +0530 Section 138 NI Act. He thus submitted that since all the ingredients laid down under Section 138 NI Act are fulfilled, the accused no. 1 company should be convicted and accused no. 2 and 7 shall be held vicariously liable under Section 141 of the NI Act.
27.Per contra, it is first defence of the accused persons that the issuance of cheque by accused no.1 as well as the signature on the cheque have not been admitted neither have been established by the complainant company therefore, the presumption in favour of the complainant company in terms of Section 118(a) read with Section 139 of NI Act shall not arise. Secondly it is the defence of the accused persons that they did not receive the legal demand notice and hence the fifth and sixth ingredient of the offence under Section 138 NI Act as mentioned hereinbefore are not fulfilled.
28.With regard to the first defence of the accused that the issuance of cheque in question and signature on the cheque is not admitted by the accused, it is pertinent to note that the notice under Section 251 CrPC was served upon the official liquidator of the accused no.1 company as the accused no.1 company is in liquidation and therefore, no specific reply with regard to issuance of cheque and signature on the cheque could be recorded. Even the accused no.2 did not deny the issuance of cheque by the accused no. 1 company to the complainant company. Further the complainant has filed the reply dated 30.04.2009 sent to the complainant company by the accused no.1 company in reply to the legal demand notice CC No. 21898/16 Page No. 13/21 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.10.23 17:02:17 +0530 which stated that the accused no.1 company handed over the cheque in question to the complainant company. Thus, the defence of the accused persons that the issuance of the cheque is not admitted is not tenable as for the presumption in terms of Section 118(a) read with Section 139 of NI Act to arise either the drawer of the cheque shall admit the issuance/execution of the cheque or the complainant shall prove that the cheque was issued/executed in his favour by the drawer. (Reliance is placed on Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148).
In the case in hand though the accused persons have not specifically admitted the issuance of cheque, the reply on behalf of accused no.1 company is sufficient to establish that the cheque was issued/executed by accused no.1 company in complainant's favour, thus establishing the factual matrix for the presumption in terms of Section 118(a) read with Section 139 of NI Act to arise.
29.With regard to the defence of the accused persons that they did not receive the statutory legal demand notice, it is again pertinent to note that since the reply of the accused no.1 company is on record, it proves that the notice was served on the address of accused no.1 company. Moreover, the above mentioned reply dated 30.04.2009 by the accused no.1 company was admitted by accused no.2 at the time of his examination under section 313 CrPC. Thus, the plea of the accused that the legal demand notice was never received is not tenable on this ground as well and is accordingly rejected.
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Digitally
signed by
POONAM
POONAM SINGH
SINGH Date:
2024.10.23
17:02:22
+0530
30.Hence, in the case at hand, since the complainant has discharged his initial burden on the basis of the documents mentioned hereinbefore and the admissions of the accused, all the ingredients of the offence under Section 138 of the NI Act stand successfully established and the presumptions under Sections 118(a) and 139 of the NI Act arise against the accused persons. The onus is now upon the accused to rebut the mandatory presumptions under the NI Act by raising a probable defence to show that the impugned cheque was not issued in discharge of a debt/ liability.
31.In order to rebut the mandatory presumptions, the accused persons have taken a defence that there is no legally enforceable debt or liability in favour of the complainant and against the accused to the tune of amount mentioned on the impugned cheque as on the date of its drawl or presentation.
32.With respect to this defence, Ld. Counsel for the accused submitted that the complainant's story has failed to stand on its own legs. It is the case of the accused that the invoices against which the complainant are claiming the liability of cheque amount against the accused persons were raised in the name of Advions Infra & Basic Amenities (AIBA) and even the advertisements were also published for the same company, however neither this company was prosecuted against as an accused nor any legal notice was served on it. Further it the case of accused that the complainant has not furnished any proof to show the establishment of any relationship between the CC No. 21898/16 Page No. 15/21 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.10.23 17:02:30 +0530 aforementioned company and the accused no.1 company. Further it is submitted that the complainant has placed its reliance on a letter dated 23.01.2009 which is mark A and is only a photocopy and its original has never been produced by the complainant without stating any reason for which the secondary evidence may be allowed by this court. It is further argued that the complainant has not disclosed any details of the barter deal. It is also the case of the accused persons that the complainant has not furnished the details of the signatory of the cheque, nor the details of the person who handed over the cheque for the complainant. It is therefore the case of the accused that the complainant's story is inconsistent, false and fabricated.
33. Per contra, Ld. Counsel for the complainant argued that the accused persons are trying to raise a frivolous and moonshine defence in order to evade their liability. Ld. Counsel for the complainant further submitted that the mandatory presumption under Section 139 of the NI Act cannot be rebutted on a bare denial but only when cogent evidence is led by the accused which has not been led in the instant case. Ld. Counsel for the complainant lastly argued that the accused persons should be convicted as they have miserably failed to rebut the mandatory presumptions resting in favour of the complainant. He relied upon the judgment of Hon'ble Supreme Court of India in case titled as 'Rangappa Vs. Mohan Criminal Appeal No. 1020 of 2010 (arising out of SLP (Crl.) No. 407/2006) in support of his contentions.
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SINGH 2024.10.23 17:02:35 +0530
34. As regards the rebuttal of mandatory presumptions, it is a settled law that the presumption under Section 139 of the NI Act cannot be rebutted upon a mere denial but only by leading cogent evidence. Same was held by the Hon'ble Supreme Court of India in the decision cited as K.N. Beena Vs. Muniyappan and Another; (2001) 8 SCC 458. Further, the presumptions may be rebutted by the accused either by leading direct evidence and in exceptional cases, from the case set out by the complainant himself i.e. from the averments in his complaint, in the statutory notice and even the evidence adduced by the complainant during the trial. The burden of proof is to be discharged by the accused on a scale of 'preponderance of probabilities'. Same was held by the Hon'ble Supreme Court in the decision cited as M/s Kumar Exports Vs. M/s Sharma Carpets; 2009 AIR (SC) 1518. It is also a settled law that the statements made by the accused in reply to notice under Section 251 Cr.P.C. or in his examination under Section 281 read with Section 313 Cr.P.C. are not on oath and hence are not substantive pieces of evidence. At best, they may be an explanation of the incriminating circumstances against the accused but are devoid of any presumption as to their truthfulness. Support is drawn from the decision of the Hon'ble High Court of Delhi cited as V.S. Yadav Vs. Reena; 172 (2010) DLT 561. In other words, the accused is left with two options. The first option--of proving that the debt/liability does not exist-- is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a CC No. 21898/16 Page No. 17/21 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.10.23 17:02:41 +0530 debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his Section 313CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. Support is lent from Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148
35.To cut the long story short in the case in hand, perusal of the complainant, evidence affidavit of AR of the complainant and the annexed documents show that the complainant has set up the case that the accused no. 9 has approached the complainant company for publication of advertisements for accused no.1 company which is Vian Infrastructure Pvt. Ltd. It is further the case of the complainant the cheque in question was given by accused no. 9 to the complainant company along with a release letter dated 23.01.2009 which is Mark A. It is pertinent that the original of Mark A was never produced by the complainant. Moreover, even if this release letter dated 23.01.2009 is to be read in evidence, this letter does not mention the particulars of the cheque in question, the number of the cheque in question is not mentioned on the release letter. Further it is pertinent that the release letter CC No. 21898/16 Page No. 18/21 Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:02:46 +0530 which is sent on behalf of the accused no.9 company itself states that the cheque in question is a security cheque to be payable only when a barter deal being negotiated at that time between accused no.1 company and complainant company fails. Thus, particulars of the barter deal become essential to establish existence of liability of the accused no.1 company at the time of presentation of cheque which are absent in the complaint and the evidence affidavit. The AR of the complainant company in his cross-examination has also stated that he is not aware of the details of the barter deal between the parties.
36.Thus, in the case in hand, the facts that the complaint is silent on the relationship between the entity for which the advertisements were published and the accused no.1 company and that the complaint is silent on the details of the barter deal whereas, the cheque was payable only in the contingency that the barter deal fails, prove that accused have been successful to prove the circumstances which make the existence of accused no.1 liability highly improbable by preponderance of probability.
37.It is imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence. In the present case, the accused has clearly presented a defence that is more probable than the complainant's story and consequently, the benefit of doubt must go to him.CC No. 21898/16 Page No. 19/21
Digitally signed by POONAM POONAM SINGH SINGH Date:
2024.10.23 17:02:52 +0530
38.In view of the foregoing discussion, this court has no hesitation to hold that the liability of the accused as on the date of the presentation of the cheque in question is not established to the tune of the amount mentioned therein.
Hence, this court has arrived at an irresistible conclusion that the accused has been able to rebut the mandatory presumption resting against him. Complainant on the other hand has utterly failed to prove his case beyond reasonable doubt qua the existence of liability of the accused to the tune of amount of the cheque in question.
39.The onus has now shifted back upon the complainant to prove the second ingredient of the offence under Section 138 NI Act, regarding the issuance of the cheque in question for any legal debt or other liability equivalent to the amount mentioned therein. Since the complainant has not taken any steps thereafter to prove his case beyond reasonable doubt, this court has fairly arrived at the conclusion that the complainant's case does not stand on its own legs.
40.Since this basic ingredient which is pivotal to attract liability under Section 138 NI Act has not been proved by the complainant, accordingly, no offence of dishonour of the cheque in question under the said Section is made out and there is no requirement to delve into a discussion on remaining ingredients of the offence.
41.Lastly, when no case under Section 138 NI Act is at all made out against the accused no. 1 company being the drawer of the cheque in question, accused no.2 and 7 being its director, can also not be held vicariously liable for the CC No. 21898/16 Page No. 20/21 Digitally signed by POONAM POONAM SINGH Date:
SINGH 2024.10.23 17:02:56 +0530 same in terms of Section 141 NI Act.
FINAL ORDER
42.In view of the aforesaid discussion, this court finds the Accused no. 1 M/s Vian Infrastructure Ltd., Accused no.2 Surya Kirtichand Thapar and Accused no.7 Sanjeev Malhotra not guilty of the offence under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 and acquits them accordingly.
Digitally signed
POONAM by POONAM
SINGH
SINGH Date: 2024.10.23
17:03:02 +0530
Announced in open (Poonam Singh)
Court on 23.10.2024 Judicial Magistrate First Class
(NI Act)-01/PHC/ND
This judgment contains 21 signed pages and each page has been signed by the undersigned.
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