Delhi District Court
Sonia Pasricha vs Rohit Duggal on 23 September, 2022
IN THE COURT OF SHRI ANUJ AGRAWAL
ADDITIONAL SESSIONS JUDGE-05, SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
CRIMINAL APPEAL NO. 73 of 2021
CNR NO. DLSE01-007576-2021
IN THE MATTER OF:
Sonia Pasricha,
W/o Sh Suman Pasricha,
R/o Ground Floor, New Cottage AIRA Home,
Kasumpti, Shimla - 171002
.......Appellant
Versus
Rohit Duggal,
R/o H. No. A-6, Maharani Bagh,
New Delhi - 110065
........Respondent
Instituted on : 08.09.2021
Reserved on : 20.09.2022
Pronounced on : 23.09.2022
JUDGMENT
1. Vide instant appeal, the appellant assails the judgment of conviction dated 29.07.2021 and order on sentence dated 10.08.2021, passed by the learned Metropolitan Magistrate (NI Act-02), South East CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 1 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:28:29 +0530 District, Saket Courts, New Delhi, in case bearing CC No.62425 of 2016 titled as Rohit Duggal vs Sonia Pasricha, whereby appellant/accused was convicted for the offence under section 138 Negotiable Instruments Act (hereinafter referred to as 'NI Act') and was sentenced to pay fine of Rs.99,00,000/- (rupees Ninety Nine Lakhs only) to the complainant/respondent as compensation within 30 days from the order and in default of payment of this fine, the appellant/accused was directed to undergo simple imprisonment for a period of two months.
2. Brief facts as discernible from Trial Court record may be taken note of: A complaint alleging commission of offence under section 138 NI Act was filed by respondent/complainant with the allegations that he being a practicing Chartered Accountant rendered professional services / advices in the nature of business structuring / management / systems and taxation over a period of time to appellant/accused who is a business woman and Director in the company. Respondent alleged that appellant/accused had issued a promissory note dated 19.03.2015 and thereafter issued a cheque No. 058628 dated 19.05.2015 for an amount of Rs.76,00,000/- drawn on HSBC, JMD Regent Square, DLF Phase II, Gurgaon, in discharge of her legal liability i.e. professional services rendered to her by the respondent. On presentation, the said cheque got dishonoured vide cheque return memo dated 10.06.2015 for reasons 'Funds Insufficient'. Appellant/accused did not make payment despite service of notice CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 2 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:28:41 +0530 dated 16.06.2015 and thereafter the complaint seeking prosecution of appellant for offence u/s 138 NI Act was filed.
3. Record transpires that post summoning and completion of necessary formalities, Ld Trial Court served notice u/s 251 CrPC upon the appellant to which she pleaded not guilty and claimed trial. The plea of defence as taken by appellant at that stage is being reproduced for the sake of convenience which is as under :-
"I do not plead guilty and claim trial. The complainant Rohit Duggal was our CA for about 15-20 years. As I used to travel a lot hence I used to handover blank signed cheque to the complainant to file my tax liabilities and other dues in my absence by filing the requisite amount. Further, I had also given him certain blank papers for the same purpose. The complainant has misused my blank signed cheques by filing an amount of Rs.76 lakhs in his own name without my instructions or my knowledge and he has also misused my blank signed paper by converting the same into a promissory notes. I do not owe any amount to the complainant and do not have any liability to discharge against him. Further, I have never received legal notice of demand Ex.CW1/4 before the institution of the present complaint."
3A. Record further transpires that in post summoning evidence, CW1/complainant deposed on line of his complaint and relied upon following documents :-
a) Bill / invoice dated 18.03.2015 Ex.CW1/1 raised against the appellant for professional service /advice,
b) Cheque in question Ex.CW1/2,
c) Promissory note dated 19.03.2015 Ex.CW1/3, CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 3 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:28:52 +0530
d) Bank return memo dated 10.06.2015 Ex.CW1/4
e) Legal demand notice dated 16.06.2015 Ex.CW1/ 5
f) Postal receipt dated 16.06.2015 Ex.CW1/6
g) Tracking report of postal receipt Ex.CW17 3B. Trial Court further reveals that in her statement u/s 313 CrPC, the appellant/accused claimed to be falsely implicated and stated as under :-
" It is a false case. I have have no liability towards the cheque in question. I used to give blank signed cheques, letter heads and sheet of papers to Mohitra Duggal and Associates, CA for the purpose of looking after the income tax work in case I am not available. The cheque in question was not filled by me neither the promissory note."
3C. Despite opportunity, the appellant/accused did not lead any defence evidence.
4. Ld Trial Court vide impugned judgment observed that appellant has failed to rebut the presumption under section 139 NI Act and while acting upon the testimony of CW-1 and relying upon the other material available on record, held that the ingredients of section 138 NI Act stand fully proved in the instant case. Ld. Trial court found the appellant/accused guilty of offence under section 138 NI Act and convicted her vide impugned judgment which is under challenge in the present appeal.
5. The appellant/accused is aggrieved with the said judgment CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 4 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:29:02 +0530 and has assailed the same vide instant appeal. The sum and substance of arguments advanced on behalf of appellant/convict are as under :-
i) That Ld Trial Court failed to consider the material / evidence available on record;
ii) That Ld Trial Court failed to appreciate that there was no existing debt or liability against which the cheque in question was given;
iii) That Ld Trial Court erred in convicting the appellant by only presuming the existence of any oral agreement assigning the alleged service of turnkey or consideration towards the professional fee, misc expenses;
iv) That Ld Trial Court failed to appreciate that legal notice was never served upon the appellant;
v) That Ld Trial Court failed to appreciate that the alleged cheque was not issued by appellant for discharge, in whole or in part of any debt or other liability;
vi) That Ld Trial Court failed to consider that complainant has not come with clean hands and there is material contradiction or subsequent improvement in the statement of former;
vii) That Ld Trial Court failed to consider that appellant had never assigned any work to complainant against which purported invoice dated 18.03.2015 was allegedly issued;
viii) That Ld Trial Court failed to appreciate that complainant has not shown the outstanding amount due against appellant in his ITR;
ix) That Ld Trial Court erred in appreciating that no liability can be fastened on the appellant towards the CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 5 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:29:10 +0530 alleged agreement between complainant and husband of appellant in respect of professional fee;
x) That Ld Trial Court failed to appreciate that complainant has fabricated the cheque/invoice/letter head/sheets as former during his deposition, deposed regarding various Bills like 008, 045, 001, however none of the bill number has a number like the present one i.e. 026A;
5A. Ld. counsel for the appellant relied upon following judgments in support of his contentions :-
a) K Prakashan Vs P K Surenderan, (2007) 12 SCALE 961,
b) Krishna Janardan Bhat Vs Dattatraya G Hegde, (2008) 4 SCC 54,
c) B Krishna Reddy Vs Syed Hafeez, 2019 SCC OnLine SC 1573,
d) P Venupal Vs Madan P Sarathi, 2009 1 SCC 492,
e) Vipul Kr Gupta Vs Vipin Gupta, 2012 SCC Online Del 4384,
f) P.V. Vs P K Basheer & Ors, (2014() 10 SCC 473,
g) Hiten Sagar & Anr Vs IMC Ltd, 2001 Crl LJ 4311
6. Per contra, Ld. Counsel for respondent/complainant seeks dismissal of the instant appeal on the ground that there is no infirmity in the impugned judgment. It was argued that appellant was duly served with legal notice as it can be seen from the address as mentioned in the bail bonds as well as in the serving of notice u/s 251 CrPC. It was further argued that appellant failed to lead defence evidence despite opportunity which clearly weakened her claim that she had given blank cheques to her CA/complainant for filing ITR. It was argued that there was no occasion to obtain blank signed cheques from appellant as the income tax of latter was deducted at source and CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 6 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:29:20 +0530 she was only claiming refunds through her ITRs. It was argued that the appellant took inconsistent defence at different stage of trial and failed to rebut the presumption u/s 139 NI Act. He argued that complainant / respondent has proved its case against the appellant/accused beyond all reasonable doubts and Ld. Trial Court rightly convicted and sentenced her. Ld counsel for respondent has relied upon following judgments in support of his contentions :-
a) Sonia Pasricha Vs Rohit Duggal, 2018 SCC OnLine Del 13078
b) Oriental Bank of Commerce Vs Prabodh Kumar Tewari, 2022 SCC OnLine SC 1089
7. It is relevant to mention here that during the pendency of present appeal, the appellant led additional evidence u/s 391 CrPC (with permission of this court) and brought on record the Jamabandi pertaining to property at Mashobra to argue that the said property is still in the name of appellant thereby falsifying the averment of the respondent that he has rendered professional services by way of turnkey solutions regarding sale of said property.
8. Per contra, it was submitted by Ld counsel for respondent that the property in question was sold by appellant and respondent had rendered professional services with regard to said sale and placed on record certain admitted documents (of appellant filed in the pending Civil Suit pending between the parties) i.e. application seeking leave to defend, written statement and ITRs for assessment year from 2010- 11 to 2014-15, in support of the said averments. It was argued that CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 7 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:29:30 +0530 property at Mashobra has already been sold by appellant and the claim that 'name of appellant is still showing in the Revenue Records / Jamabandi documents' is due to non-mutation of said property. It was urged that appellant is concealing material fact from court as she has taken contradictory stand in the present litigation and in the pending civil litigation.
9. I have heard rival contentions and perused the record. I shall now examine whether the case of respondent/complainant stands proved beyond all reasonable doubts or appellant/accused deserves benefit of doubt ?
10. Before entering into factual matrix of the present case, I deem it fit to discuss certain statutory provisions of Negotiable Instruments Act. Section 118 (A) of N I Act provides for presumptions regarding consideration for a Negotiable Instrument. 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".
11. 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 CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 8 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:29:40 +0530 referred to in section 138 for the discharge, in whole or in part, or any debt or other liability".
12. In Hiten P Dalal vs Bratindranath Banerjee , AIR 2001 Supreme Court 3897, Hon'ble Supreme Court observed that the defence submission that the cheques were not drawn for the discharge in whole or in the part of any debt or other liability is answered by the third presumption available to the banks U/s 139 of the NI Act. This section provides that "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, of any debt or other liability". The effect of these presumptions is to place the evidential burden on the defence of proving that the cheque was not received by the bank towards the discharge of any liability.
13. Apex Court in Krishna Janardhan Bhatt Vs Dattatraya G Hegde, AIR 2008 Supreme Court 1325 has held as follows :
"23. ...............Standard of proof on the part of an accused and that of the prosecution in a criminal case is different".
14. In Kumar Exports Vs Sharma Carpets, (2009) 2 Supreme Court Cases 513 it has been held at para 20 :- "The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 9 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:29:49 +0530 and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances upon consideration of which, the court may either believe that the consideration and debt did not exist or their non existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist......................".
15. In case titled, "Bharat Barrel & Drum Mfg. Co. Vs. Amin Chand Pyarelal" (1999) 3 SCC 35 while interpreting Section 118 (a) of the Act, Hon'ble Supreme Court opined, "Upon consideration of various judgments as noted hereinabove, the position CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 10 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:29:57 +0530 of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118
(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt."
16. In another case titled, "K. Prakashan Vs. P. K. Surenderan" 2007 IX AD (S.C.) 334 Hon'ble Supreme Court opined, CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 11 of 19 ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:30:06 +0530 " The Act raises two presumptions; firstly in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption that the holder of cheque receiving the same of the nature referred to in Section 139 discharged in whole or in part any debt or other liability. Presumptions both under Sections 118 (a) and 139 are rebuttable in nature. Having regard to the definition of terms proved and disproved as contained in Section 3 of the Evidence Act as also the nature of said burden upon the prosecution vis a vis an accused it is not necessary that the accused must step into the witness box to discharge the burden of proof in terms of the aforementioned provision. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability. "
17. I shall now appreciate the testimonies brought on record to adjudicate whether the accused was able to discharge the burden of mandatory presumption or whether her guilt stands proved beyond all reasonable doubts or she deserves benefit of doubt ?
18. Trial Court record reveals that complainant examined himself as CW-1 and was duly cross examined on behalf of accused. The relevant part of his cross examination is as under :-
" ....... It is correct that there is no acknowledgment of accused on the bill filed before this Hon'ble court acknowledging that she has received the alleged bill.
CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 12 of 19
Digitally signed by
ANUJ ANUJ AGRAWAL
AGRAWAL Date: 2022.09.23
12:30:14 +0530
............. At this stage, witness is confronted with
the legal notice Ex.CW1/4 and witness stated that it is correct that there is no mentioning of said bill and the legal notice sent to the accused. It is correct that I have not mentioned about the said invoice in the criminal complaint filed u/s 138/139/142 of NI Act. ..................... The property of accused at Mashobra was sold for Rs.2.25 crores in August - September, 2013. The other property at DLF Gurugram as mentioned in Ex.CW1/1 at serial number 2 belonging to husband of accused, Sh Suman Pasricha was sold for Rs.4.95 crores. The expenses is mentioned in invoice is on lump sum basis. .................. It is correct that the invoices is for an amount of Rs.85,39,360/-, however the cheque was for Rs.76,00,000/- and does not include the service tax since initially the cheque and promissory note was given as a surety........................ It is not a general practice that once the invoice is raised we get promissory note and cheques signed by every client. Since negotiations were on for over a year and a half for the complete amount due from the accused and the husband had had a brain stroke, the accused had represented on behalf of herself and and her husband to settle the complete issue together and that is why the cheque and the promissory note was issued as single documents. ........................ A lot of time had elapsed and therefore under the compelling circumstances, we had to take a promissory note from the accused alone. The said liability of the accused as mentioned in Ex.CW1/1 was never shown in the ITR as outstanding. ................ I had never raised any other bill of the same transaction except for invoice dated 18.03.2015."
19. Though, from the record, it appears that the appellant took inconsistent pleas of defence (regarding the person to whom the cheque in question was handed over) as at the stage of notice u/s 251 CrPC, the appellant stated that the cheque in question was misused by the respondent as she used to hand over blank signed cheques to him for filing her income tax return whereas in her statement under section CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 13 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:30:24 +0530 281 CrPC, she took a defence that she used to give blank signed cheques to 'Mohitra Duggal and Associates, CA firm' for filing income tax return and the cheque in question has been misused by the respondent. However, on closer scrutiny, it is evident that there is a consistency in the plea of defence of appellant to the extent that as per her, cheque in question, being a blank cheque, was misused by the respondent and she did not owe any liability towards him. Further, it is a settled law that an accused can also discharge the burden of statutory presumption as provided under section 139 NI Act by proving the falsity of complainant's version by the case of complainant itself.
20. It is further the settled principle of law that the prosecution / complainant cannot draw any strength from the case of the accused, howsoever weak it is and rather it has to stand upon its own leg. It is further settled principle of law that the prosecution / complainant is required to prove its case beyond all reasonable doubts for returning a find of guilt against accused and the benefit of doubt must necessarily go in favour of an accused.
21. In the instant case, complainant has averred that cheque in question was issued by the appellant in discharge of her legal liability i.e. towards professional service rendered by him to the latter over a period of time and in support of same, he placed on record a Bill dated 18.03.2015 i.e. Ex.CW1/1 i.e. invoice raised with regard to professional charges. However, admittedly the said invoice /Bill CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 14 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:30:33 +0530 neither finds mention in the demand notice dated 16.06.2015 Ex.CW1/5 sent by complainant to the appellant nor in the original complaint and pre-summoning evidence and rather the same was filed only at post summoning evidence when the matter reached at complainant's evidence. A careful perusal of Bill Ex.CW1/1 reveals that same has been raised in the appellant 'Sonia Pasricha' for a total sum of Rs.85,39,360/- and the details of the said Bill has been given under the following head :-
"Professional services for complete turn key solution for the following properties I) Property In Mashobra Khasra No.247, 248, 249 & 251 Mauja Sharai, Shimla - 22,50,000.00 II) DLF Beverley Park II, Flat 1412 A, Building 14, DLF City, Phase-II, Gurgaon -122022 - 49,50,000.00 The assignment includes rectification of title documents, regularization of title deeds in revenue records, identification of potential buyers and execution of transfer documents.
Out of pocket expenses including travelling, boarding and lodging and secretarial services for both properties - 4,00,000.00 Service Tax @ 12.36% - 9,39,360.00 (Rupees Eighty Five Lakhs Thirty Nine Thousand Three Hundred Sixty only) - Rs.85,39,360.00 "
22. Therefore, evidently in the said Bill, complainant charged an amount of Rs.49,50,000/- towards professional services allegedly rendered by him in respect of a property i.e. DLF Beverley Park II, Flat 1412 A, Building 14, DLF City, Phase-II, Gurgaon-122022. The said property admittedly belonged to the husband of appellant and not CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 15 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:30:42 +0530 to the appellant as came on record during cross examination of complainant/CW1. However, no explanation is forthcoming on the part of respondent as to why the charges on that count were raised by him against the appellant as admittedly the professional services regarding the said property were rendered to the husband of appellant and not to the appellant. Though, it can be argued that a person (appellant) may have agreed to discharge legal liability of other (her husband), however then also, it is my view that the Bill if any on that count has to be raised separately to the person to whom the professional services were rendered and cannot be raised against a person who might have agreed to discharge the liability. Further, it is not the case of respondent/complainant that he had rendered professional services to the husband of appellant on the asking of latter and for this reason, he had raised Bill for the said services against the appellant only and not separately against the husband of the appellant. From the record, it is evident that there was no occasion for respondent to raise Bill for said professional services (rendered to the husband of appellant) against the appellant.
23. Further, a careful perusal of invoice Ex.CW1/1 reveals that a total payable amount of Rs. 85,39,360/- has been arrived at after including the service tax @ 12.36 % against all the different heads including the one under 'out of pocket expenses' (of Rs. 4 lacs) which is not permissible as no service tax is payable for the 'out of pocket expenses' which are paid as per actuals only.
CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 16 of 19
Digitally signed
by ANUJ
ANUJ AGRAWAL
AGRAWAL Date: 2022.09.23
12:30:50 +0530
24. Seen in the light of aforesaid circumstances, coupled with the fact that it bears no acknowledgement of its receipt by the appellant, Bill Ex.CW1/1 appears to be a fabricated document, having been manufactured by complainant at later stage, to bolster his case and thereby putting his version under serious cloud.
25. Furthermore, the case as setup by complainant in the original complaint (paragraph 4) was that the appellant after availing the professional services of the respondent for a period of time, issued a promissory note dated 19.03.2015 and also issued the cheque in question in discharge of her legal liability i.e. charges of professional services rendered by respondent to her. However, during cross examination of the complainant/CW1 (conducted on 28.09.2018), it came on record that initially the cheque and the promissory note were given as a surety. Therefore, from the said cross examination of complainant, his version that the cheque was given in discharge of legal liability looks doubtful whereas the version of appellant that her blank cheque was misused by respondent looks probable.
26. Next the version of complainant that appellant had issued a promissory note, thereby agreeing to pay for the professional services cannot pass the muster as there is nothing in the 'Code of Ethics' (as laid down by 'The Institute of Chartered Accountant of India', the Regulatory / Disciplinary Authority for the Chartered CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 17 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:30:59 +0530 Accountants in this country) if taking of such promissory notes by the professionals like the respondent who is a Chartered Accountant is permissible. Further, the kind of services which respondent allegedly rendered to the appellant i.e. providing turnkey solutions for sale of properties is a service which a Chartered Accountant cannot be expected to render as per said Code of Ethics. Seen in the light of aforesaid background, I have no hesitation in holding that the respondent remained economical with truth and did not come out with whole truth before Ld Trial Court. In view thereof, a suspicion arises in the version of respondent/complainant and the plea of appellant/accused that the cheque in question was misused by respondent stands proved on the preponderance of probability.
27. I may hasten to add here that the case in hand appears to be yet another case wherein none of the parties came out with full truth before court. However, since it is a settled law that the guilt of accused is to be established beyond all reasonable doubt and the benefit of doubt necessarily goes in favour of accused, therefore the benefit in the instant case for complainant / respondent being economical with truth would go against him and in favour of appellant/accused.
28. With these observations, the instant appeal stands allowed. It is held that the respondent/complainant has failed to CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 18 of 19 Digitally signed by ANUJ ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:31:09 +0530 prove the guilt of appellant/accused beyond all reasonable doubts and latter deserves benefit of doubt. The impugned judgment and order on sentence emanating therefrom stand set aside accordingly. The appellant/accused Sonia Pasricha stands acquitted of offence U/s 138 N I Act. She is directed to furnish personal bond & surety bond in the sum of Rs.50,000/- each for the purpose of Section 437 (A) CrPC before Ld Trial Court within a week from today.
29. TCR be sent back to Ld Trial Court along with copy of this judgment.
30. One copy of the judgment be also sent to Secretary, The Institute of Chartered Accountants of India (ICAI), ICAI Bhawan, PO Box 7100, Indraprastha Marg, Delhi ([email protected]) for information and for examining if there has been any breach of Code of Ethics on the part of complainant/respondent namely Rohit Duggal, Chartered Accountant, R/o H. No. A-6, Maharani Bagh, New Delhi - 110065, having Office at M-2, Second Floor, GK-1, New Delhi -110048.
31. Appeal file be consigned to record room after due compliance. ANUJ Digitally signed by ANUJ AGRAWAL AGRAWAL Date: 2022.09.23 12:31:19 +0530 Announced in the open (ANUJ AGRAWAL) rd court on 23 September, 2022 Additional Sessions Judge-05, South East, Saket Courts, New Delhi CA No. 73/2021 Sonia Pasricha v. Rohit Duggal Page No. 19 of 19