Delhi District Court
M/S Ram Kumar Gupta(Huf) vs . on 6 May, 2023
IN THE COURT OF SH. MAYANK GOEL:MM-02, NI ACT,
TIS HAZARI COURTS:DELHI
Ct. Case No. 16182/2016
M/s RAM KUMAR GUPTA(HUF)
Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden
U/s. 138 Negotiable Instrument Act
M/s Ram Kumar Gupta(HUF),
Having its office at
A-68, Rajouri Garden,
New Delhi, through its Karta,
Sh. Ram Kumar Gupta. ........................ COMPLAINANT
Vs.
1. M/s Chanson Hospitality (P) Ltd.
Company registered under Companies Act, 1956,
through its Directors,
Regd. Office at A-16, Kesho Pur Industrial Area,
Behind Vikas Puri, H Block, New Delhi-110018.
___________________________________________________________________________________
Ct. Case No. 16182/2016
M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 1 of 37
U/s. 138 Negotiable Instrument Act
2. Sh. Harjeet Singh Chandok,
S/o Late Sh. Jagdev Singh,
Director of M/s Chanson Hospitality (P) Ltd.,
R/o A-39, Ganesh Nagar, Tilak Nagar,
New Delhi-110018,
also at: A-16, Keshov Pur Industrial Area,
Behind Vikas Puri, H Block, New Delhi-110018.
3. Sh. Maninder Singh,
S/o Sh. Sardar Amrik Singh,
Director of M/s Chanson Hospitality (P) Ltd.,
having its Registered Office at A-16,
Keshov Pur Industrial Area,
Behind Vikas Puri, H Block,
New Delhi-110018,
also at: A-16, Kesho Pur Industrial Area,
Behind Vikas Puri H Block, New Delhi-110018.
4. Ms. Sarbjeet Kaur,
Director of M/s Chanson Hospitality (P) Ltd.,
having its Registered Office at A-16,
Keshov Pur Industrial Area,
Behind Vikas Puri, H Block,
New Delhi-110018,
also at: A-16, Kesho Pur Industrial Area,
Behind Vikas Puri H Block, New Delhi-110018. .............................. ACCUSED
___________________________________________________________________________________
Ct. Case No. 16182/2016
M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 2 of 37
U/s. 138 Negotiable Instrument Act
JUDGMENT
1) Offence complained of : Section 138 Negotiable Instrument Act 2) Plea of accused : Pleaded not guilty 3) Date of institution of the case : 28.04.2016 4) Final order : Convicted. 5) Date of reserving of order for judgment : 03.05.2023 6) Date of final order : 06.05.2023
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PS Rajouri Garden Page No. 3 of 37U/s. 138 Negotiable Instrument Act Brief reasons for decision:
1) The necessary facts for disposal of present case as reflected in the complaint is that the complainant is the owner of the building titled as "The Pharaohs" situated at plot khasra no. 40/12 min(2-4), 40/13 min (0-15), 40/18 min(2-1), 40/19 min (4-15), 40/22 min(4-16), 40/23/1 min(2-1), 40/28 (0-1) total area 16 bighas and 13 bighas at village Tikri Kalan, New Delhi-110041, ad-measuring approx. 16788 sq. yards. That the accused no. 1 is a company registered under the Companies Act, 1956, having its registered office at A-16, Keshov Pur Industrial Area, behind Vikas Puri, H Block, New Delhi-110018. That the accused no. 2, 3 and 4 are the directors of accused no. 1 company, accused no. 2, 3 and 4 are the director of accused no. 1 company and accused no. 2, 3 and 4 are the persons in charge of its day to day affairs and are responsible for accused no. 1 at all relevant times, i.e., when the cheques-in-question were given to the complainant and when the payments were not made despite the service of statutory notice. That the accused no. 2 is the signatory of the cheque bearing no. 001056 and the cheque bearing no. 001107 respectively. That in April 2013, the accused no. 1 company through accused no. 2 and accused no. 3 approached the complainant for leasing out the abovesaid building/premises on rent to run its motel business. In pursuance thereof the complainant entered into a lease agreement dated 02.05.2013 with the accused no. 1. That initially post-dated cheques were handed over by the accused no. 1 with respect to the rental amount and the service tax as applicable. That as per Clause 9 of the lease agreement dated
02.05.2013 rent for each month was fixed at Rs. 23,37,353/- and the cheques-in- question was in lieu of the rent accrued for the relevant period after deducting the TDS @ 10%. That in discharge of their legally enforceable liability towards the complainant issued cheque bearing no. 001056, which is Ex. CW 1/4, dated 07.03.2016 of Rs. 21,03,618/- and the cheque bearing no. 001107, which is Ex. CW ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 4 of 37U/s. 138 Negotiable Instrument Act 1/5, dated 07.03.2016 of Rs.2,88,897/-, both cheques drawn on ICICI Bank, Vikas Puri Branch, New Delhi, for encashment with his banker. That the cheque bearing no. 001056, Ex. CW 1/4, dated 09.03.2016 of Rs. 21,03,618/- was issued on account of the rent/lease due and payable for the month of March, 2016 and cheque bearing no. 001107, Ex. CW 1/5, dated 09.03.2016 of Rs. 2,88,897/- was issued in lieu of Service Tax accrued thereof for the month of March, 2016. That the said premises was taken on rent/lease by accused no. 1 company vide registered agreement dated 02.05.2013. On presentation by the complainant with its banker, the said cheques were dishonored with the remarks "payment stopped by drawer" as reflected vide returning memos dated 09.03.2016, which are Ex. CW1/6 and Ex. CW 1/7. Thereafter, legal demand notice Ex.CW1/8 dated 22.03.2016, was served upon the accused calling him to pay the cheque amount but despite the service of the legal notice, the accused has not paid the cheque amount within the stipulated period of 15 days as per NI Act. Thereafter, complainant has filed the present written complaint case u/s 138 r/w 142 of the Negotiable Instruments Act, 1881.
2) Cognizance of offence under section 138 NI Act was taken against all the accused persons and summons were issued. Notice of accusation u/s 251 Cr.P.C. was served upon all the accused persons and plea of defence of all the accused persons were also recorded on the same day in which they had not pleaded guilty and claimed trial.
It is stated by accused no. 2 Harjeet Singh Chandok that the cheques-in- question bears his signatures and the remaining particulars have also been filled up by the accused company. He further stated that they had taken property mentioned in the complaint on rent from the complainant and 64 cheques were given in the complainant as advance payment towards rent, service tax and other expenses. He ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 5 of 37U/s. 138 Negotiable Instrument Act further stated that they had also given a security deposit Rs. 1,26,00,000/- to the complainant. He further stated that after execution of agreement entered between them and the complainant, a subsequent agreement was also entered into between them, the copy of the same is with the complainant. He further stated that when they took the possession of the premises, they found number of deficiencies in the premises due to which they could not run their business from the tenanted premises. He further stated that his plea of defence is also spelled out in his reply to the demand notice sent by the complainant. He further stated that they have received the legal demand notice issued by the complainant qua the cheques-in-question and replied to the same. He further stated that they do not owe any liability towards the complainant qua the cheque-in-question.
It is stated by accused no. 3 Maninder Singh that the cheques-in-question does not bears his signatures and the remaining particulars have been filled up by the accused company. He further stated that the cheques-in-question have been signed by Sh. Harjeet Singh Chandok. He further stated that they had taken property mentioned in the complaint on rent from the complainant and 64 cheques were given in the complainant as advance payment towards rent, service tax and other expenses. He further stated that they had also given a security deposit Rs. 1,26,00,000/- to the complainant. He further stated that after execution of agreement entered between them and the complainant, a subsequent agreement was also entered into between them, the copy of the same is with the complainant. He further stated that when they took the possession of the premises, they found number of deficiencies in the premises due to which they could not run their business from the tenanted premises. He further stated that his plea of defence is also spelled out in his reply to the demand notice sent by the complainant. He further stated that they have received the legal demand notice issued by the complainant qua the cheques-in-question and ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 6 of 37U/s. 138 Negotiable Instrument Act replied to the same. He further stated that they do not owe any liability towards the complainant qua the cheque-in-question.
It is stated by accused no. 4 Sarbjeet Kaur that the cheques-in-question does not bears her signature and the remaining particulars have also been filled up by the accused company. She further stated that the cheques-in-question have been signed by Sh. Harjeet Singh Chandok. She further stated that they had taken the property mentioned in the company on rent from the complainant and 64 cheques were given to the complainant as advance payment towards rent, service tax and other expenses. She further stated that they had also given a security deposit of Rs. 1,26,00,000/- to the complainant. She further stated that after the execution of agreement entered between them and the complainant, a subsequent agreement was also entered into between them, the copy of the same is with the complainant. She further stated that when they took the possession of the premises they found number of deficiencies in the premises due to which they could not run out business from the tenanted premises. She further stated that her plea of defence is also spelled out in her reply to the demand notice sent by the complainant. She further stated that she did not receive any legal demand notice from the complainant. She further stated that they do not owe any liability towards the complainant qua the cheques-in-question.
3) In post summoning evidence, the complainant examined himself as CW 1 for proving his version of the case and was duly cross examined by Ld. Counsel for the accused.
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PS Rajouri Garden Page No. 7 of 37U/s. 138 Negotiable Instrument Act
4) Thereafter memorandum of statement of the accused no. 2 Harjeet Singh Chandok u/s 313 Cr.P.C. r/w Sec 281 Cr.P.C. was also recorded in the case wherein the accused no. 2 Harjeet Singh Chandok stated that he had taken the property on lease from the complainant. He further stated that the complainant has not completed the formalities for instance license required from DPCC, hotel license in the prescribed period of 6 months, therefore, they were not able to work. He further stated that they informed the complainant that since the complainant is not getting the license, they vacate the said property. He further stated that thereafter the complainant stated that the accused persons cannot vacate the property before giving the agreed rent for the period of 10 years. He further stated that they asked the complainant to take the rent for the period of 2-3 months but the complainant refused for the same. He further stated that the accused persons themselves arranged for necessary license from DPCC. He further stated that since the property is not habitable, they vacated the said property by court orders.
The accused no. 3 Maninder Singh stated that he had taken the property on lease from the complainant. He further stated that the complainant has not completed the formalities for instance license required, therefore, they were not able to work.
The accused no. 4 Sarbjeet Kaur stated that she do not know anything about the present case.
5) In his defence, the accused examined Sh. Baldev Negi as DW 1, Sh. Manish Yadav, Judicial Assistant, Record Room, Tis Hazari as DW 2, Sh. Yogesh Singh, Ahlmad of this court as DW 3 and Sh. Harjeet Singh Chandok as DW 4 and were duly cross- examined by Ld. Counsel for the complainant.
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PS Rajouri Garden Page No. 8 of 37U/s. 138 Negotiable Instrument Act
6) Thereafter, Learned Counsel for both the parties made final oral submissions and Ld. Counsel for the complainant also filed written arguments.
7) It is stated by the Ld. Counsel for the complainant that the accused has admitted that the dishonoured cheque-in-question bears his signature and legal presumption of consideration u/s 139 of NI Act would act against the accused. It is further stated by Ld. Counsel for the complainant that the testimony of complainant during cross- examination by Ld. Counsel for the accused is consistent and the accused failed to shake his credibility and veracity. It is further stated by Ld. Counsel for the complainant that the complainant is the owner of the property which he leased out to the accused persons vide registered lease deed, Ex. CW 1/3. It is further stated by Ld. Counsel for the complainant that the said registered lease deed is the admitted document by the accused persons. It is further stated by Ld. Counsel for the complainant that the cheques-in-question were issued by the accused persons and said fact is also admitted by the accused persons at the time of framing of their notice u/s 251 Cr.P.C., therefore, the said fact is also not disputable. It is further stated by Ld. Counsel for the complainant that this fact is also not disputable that accused persons are in possession of the said property till they vacated the same. It is further stated by Ld. Counsel for the complainant that the cheques-in-question were issued for the rent as well as service tax after deducting the TDS applicable. It is further stated by Ld. Counsel for the complainant that the said cheques-in-question when presented for encashment got dishonoured with the remarks "funds insufficient". It is further stated by Ld. Counsel for the complainant that legal demand notice was duly served to the accused persons but despite that the accused persons did not make any payment within the stipulated time or even after the stipulated time. It is further stated by Ld. Counsel for the complainant that since the issuance of cheques-in-
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PS Rajouri Garden Page No. 9 of 37U/s. 138 Negotiable Instrument Act question by the accused persons is not disputed and the signatures on the cheques-in- question are also not disputed, the presumption u/s 139 NI Act is in favour of the complainant.
It is further stated by Ld. Counsel for the complainant that the lease agreement Ex.CW1/3 was executed on 2nd May, 2013. It is further stated by Ld. Counsel for the complainant that on page no. 1 of the said lease agreement, it is duly mentioned that there is no defect in the building and the Lessee had carefully inspected the said premises and satisfied themselves and do not find any inherit defects in the building of any kind, which is as follows:- "The Lessee has seen, inspected and measured the side premises, verified correctness of the area, documents, quality of work and got satisfied themselves thereof. Lessee also not found any inherent defects in the building of any kind."
It is further stated by Ld. Counsel for the complainant that in Clause 1 of the said lease agreement, it is specifically mentioned that the lease is for particular period and the accused persons had been granted fit out period till 01.10.2013 and the lease shall start with effect from 01.10.2013, which is as follows:-" The lessor hereby grants to the Lessee their permission to use the leased premises for a period of 102 (one hundred two) months w.e.f. 1 st October 2013 (due to restore and fit out till 31st March 2022. But in no circumstances the period of lease deed will be extended beyond 8.5 years (i.e. 31/March/2022)."
It is further stated by Ld. Counsel for the complainant that the rent of the said premises is Rs.21 lakhs plus service tax and cess which is specifically mentioned in Clause 2 of the said lease agreement Ex. CW1/3 which is as follows:-"The Lessee here by agrees to pay the lesser on or before every 7 th day of a month without any further grace, starting from 1 st October 2013, a sum of Rs.21,00,000/- ( Rs. Twenty one lakh only) plus service tax, cess as applicable from ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 10 of 37U/s. 138 Negotiable Instrument Act time to time as monthly rent/lease amount for using the leased premises. This rent shall be payable in advance on or before every 7 th day of each English calendar month ( but due date will be 1 st day of every month in advance). In the rare event of delay in payment of rent by 30 days or more from 1 st day of calendar month it becomes due, interest @ 2% per month shall be charged on monthly compounding basis for late payment."
It is further stated by Ld. Counsel for the complainant that post-dated cheques in question were issued by the accused in consonance with the said lease agreement Ex. CW1/3 only and it is specifically mentioned in clause 3 of the said agreement which is as follows:- "Postdated cheques for 60 months will be handed over to lessor before signing of this deed and subsequent 42 months terms of balance period cheques will be handed over before the expiry of 55 months period, for the amount of lease money and service taxes etc. It is further stated by Ld. Counsel for the complainant that there is a lock- in period of 2.5 years and the Lessee has to pay the rent for the lock in period even if he vacate the premises before the expiry of the Lock-in period, which is specifically mentioned in clause 4 of the lease agreement exhibit which is as follows:- " There shall be lock-in period of 2½years from 1 st October 2013 till 31st March 2022. If the Lessee vacate the premises before the expiry of the lock in period and hands over the possession of the leased premises, they shall be liable to pay the rent/lease amount for the remaining lock-in period of 2 ½ years."
It is further stated by Ld. Counsel for the complainant that accused persons had duly paid the rent till January 2015. It is further stated by Ld. Counsel for the complainant that the accused persons are liable to pay double the amount of the lease rent in case the accused persons did not pay the Lease amount for two months and in the present case the accused persons had not pay the lease rent after January,2015 ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 11 of 37U/s. 138 Negotiable Instrument Act and this fact is specifically mentioned in clause 10 of the lease agreement Ex. CW1/3 which is as follows:- " In case rent/lease amount is not paid for two months, the Lease shall be stand revoked, cancelled and terminated automatically without any notice and shall be deemed as determined and the Lessee shall vacate the leased premises immediately and have to clear all dues such as lease rental, licence fees, taxes, duties, fees etc. However, due to any delay in handing over the possession to the lesser for whatsoever reasons, the Lessee shall pay double the amount of existing lease rent per month till the date of handing over the physical vacant possession of the premises to the lesser in any of the conditions (even in the absence of any notice to him in this regard). These terms will apply to both the default period and the subsequent response period. This will be extra, over and above on other penalties, recoveries, interest, cost etc."
It is further stated by Ld. Counsel for the complainant that the liability of the accused persons are two fold i.e. one for the due rent and second for the default in paying the due rent i.e. equal amount of the lease rent as damages. It is further stated by Ld. Counsel for the complainant that Ld. Counsel for accused would argue that when the accused persons had vacated the premises in October 2015, the accused persons had no liability to pay the rent after October 2015 but as per lease agreement Ex. CW1/3, the accused persons are under liability to pay the rent for the lock-in period i.e. 2.5 years from 1 st October,2013. It is further stated by Ld. Counsel for the complainant that it is the responsibility of the Lessee to take necessary permissions, NOC and any granting from any department, government or semi- government, pollution board, environment Board, STP, municipal authorities, health and food department and any local authority at his own cost and the sad fact is duly mentioned in clause 12 of the lease agreement Ex. CW1/3 which is as follows:-
"The Lessee shall use the leased premises for Motel purposes only and for no ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.PS Rajouri Garden Page No. 12 of 37
U/s. 138 Negotiable Instrument Act other purpose. The Lessee has informed the lesser that they will be using the leased premises as a motel only. The motel will be run as per bylaws, guidelines of Central/ state government and any other local authority. If any of the bylaws, guidelines and directions is violated, the Lessee will solely responsible for the same and bear all the consequences in regard to any violation thereto. It is the responsibility of the Lessee to take necessary permission, NOC and any granting licence from any department, government, semi-government, pollution board, environment board, STP, municipal authorities, health and food department and any local authority at his own cost. Lessee will have to arrange star classification (if required by the Lessee but without any type of financial burden on the lesser) of this motel from the Ministry of tourism at his own cost and the copy of the documents for the above all will be handed over to the lesser in time".
It is further stated by Ld. Counsel for the complainant that the accused persons have the responsibility to apply for the electricity connection or the water connection if required and the said fact is also duly mentioned in clause 13 of the lease agreement Ex. CW1/3 which is as follows:- "The Lessee shall apply if required for their own electricity connection and water connection. All the formalities required and all the expenses/charges payable towards the connection and deposit shall be paid and borne by the Lessee. If required, the lesser can provide a no objection certificate to the Lessee without taking on any legal or financial responsibilities. However, the lesser is providing 40 kW approximately power connection, building, walls, gates, structure, fittings, fixtures, plants, machineries, two DG sets (each 125KVA), lift, furniture, glasses, hardware, pumps, STP etc, in the said premises. List of major fittings, fixtures, items, equipments, assets and material etc. (attached as Annexure-B)."
It is further stated by Ld. Counsel for the complainant that any type of ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 13 of 37U/s. 138 Negotiable Instrument Act repair and maintenance of the least premises is to be done by the accused persons at their own cost and the said fact is also duly mentioned in the clause 18 of the lease agreement Ex. CW1/3 which is as follows:- "Any type of repairs and maintenance of the leased premises has to be done by the Lessee at their own cost. All maintenance (CMC/AMC) would be done by the authorized/qualified agencies of respective companies/manufacturer or directly from the companies/manufacturing form of the same product. In case of any breakage/damage to the building, walls, floors, ceiling, stones, gates, structure, fittings, fixtures, plants, machineries, two DG sets (each 125 kVA), lift, furniture, glasses, hardware, pumps etc., the expenses/charges towards the repairs shall be paid/borne by the Lessee. If it is required to be changed, the same will be changed and a reputed/branded product of the same company (ISI marked) will be used by the Lessee at his own cost. All the fittings, fixtures, plants, machineries, AC units/AC machines, two diesel generators each 125 kVA, lift, furniture, glass, hardware, pump, motor, STP plant bore wells any equipments, electrical goods etc. and part thereof will remain the property of leisure. The Lessee shall also depute two qualified maintenance engineers/qualified technical operators for the operation and maintenance the firefighting, electrical, sewage treatment plant, plumbing and sanitary, HVAC etc. at his own cost during the whole period of lease."
It is further stated by Ld. Counsel for the complainant that the agreement Ex. CW1/3 is very exhaustive on everything. It is further stated by Ld. Counsel for the complainant that during the cross examination of the accused who is examined as DW4, the defence put forth by the accused persons was shattered and big holes are dug in the defence version. It is further stated by Ld. Counsel for the complainant that accused persons have tried to create a smokescreen of falsehood and contentions that are contrary to the registered lease agreement and material on record to mislead ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 14 of 37U/s. 138 Negotiable Instrument Act this court and in the garb of which provide the lawful claims of the complainant. It is further stated by Ld. Counsel for the complainant that the defence raised by the accused persons is liable to be rejected and dismissed as the same is devoid of any merits whereas the case of the complainant is supported by evidence and that too documentary and otherwise proved during the proceedings and is based on clear and unambiguous provision of lease agreement Ex. CW1/3. It is further stated by Ld. Counsel for the complainant that it is not the case of the accused that they have paid the rent for the period in respect of which cheques in question were issued to the complainant. It is further stated by Ld. Counsel for the complainant that the accused persons have raised absolutely bogus and untenable defence that there was another unregistered lease agreement executed on the same day as the registered lease agreement Ex. CW1/3 was executed, however, no such unregistered agreement was placed on record and therefore, the said contention of the accused is very well hit by section 114(g) of the Indian evidence act. It is further stated by Ld. Counsel for the complainant that the contention of unregistered lease agreement is also hit by section 91 of the Indian Evidence Act. It is further stated by Ld. Counsel for the complainant that the contention of the accused that the leased premises was not usable on account of inherent defects is also contrary to the terms of the registered lease agreement Ex. CW1/3 where in it was specifically stated that the leased property has been inspected and Lessee does not found any inherent defects in the building of any kind. It is further stated by Ld. Counsel for the complainant that the contention of the accused that the premises was not usable on account of absence of STP etc. is also not tenable as the accused admittedly deposed that the accused company applied for the same and was given necessary licenses by the competent authority and the license was granted only when the MCD department was satisfied with the prerequisite conditions as well as amenities that is STP, NOC from fire department and ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 15 of 37U/s. 138 Negotiable Instrument Act compliance of DPCC. It is further stated by Ld. Counsel for the complainant that the contention of the accused at the premises was unused on account of the Metro line construction is also not tenable as no record was placed on record and furthermore the said contention is also not tenable on account of the provisions of section 108 of the Transfer of Property Act. It is further stated by Ld. Counsel for the complainant that all the other contentions of the accused are contrary to the explicit and unambiguous terms and conditions of the registered lease agreement duly proved during the course of trial as Ex. CW1/3. It is further stated by Ld. Counsel for the complainant that DW4 during his cross-examination duly admitted that the day today maintenance expenses of the premises were to be borne by the accused persons. It is further stated by Ld. Counsel for the complainant that DW4 during his cross- examination duly admitted that the MCD had issued the license on 27.01.2014 and same was further extended till 31.03.2017. It is further stated by Ld. Counsel for the complainant that the contention of the accused persons that the leased premises is not in a good condition is contrary to their own stand and the accused as per the allegations started paying rent since he entered the property that is even for the fit out period. It is further stated by Ld. Counsel for the complainant that if the property would not be in the good condition, why would have the accused persons made payment as alleged in cash even for the fit out period. It is further stated by Ld. Counsel for the complainant that this very admission or allegations of the accused goes against the accused persons and automatically amounts to an admission of the case of the complainant. It is further stated by Ld. Counsel for the complainant that the accused persons failed to place on record any receipt regarding the cash payment alleged is to be made to the complainant for the fit out period. It is further stated by Ld. Counsel for the complainant that it is also admitted fact that when accused persons vacated the leased premises, there is valid MCD license which shows that ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 16 of 37U/s. 138 Negotiable Instrument Act the leased premises is good for use. It is further stated by Ld. Counsel for the complainant that DW4 during his cross-examination also admitted the fact that when they vacated the leased premises, STP plant was functional. It is further stated by Ld. Counsel for the complainant that now it is an admitted fact that when the accused persons vacated the leased premises he had all valid and necessary licenses and NOC to run the motel business and the leased premises was absolutely fit and fine to run the motel business. Ld. Counsel for the complainant relied upon the judgment in case titled as "M/s Kishan Rao Versus Shankargouda (2018) 8 SCC 165" in which the Hon'ble Supreme Court held in Para 18: "Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Section 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the Cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists."
Ld. Counsel for the complainant also relied upon the judgment of The Hon'ble Supreme Court in case titled as "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441: wherein it was held in "Para 30: The fact that the accused had made regular payments to the complainant in relation to the construction of his house does not preclude the possibility of the complainant having spent his own money ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 17 of 37U/s. 138 Negotiable Instrument Act for the same purpose. As per the record of the case, there was a slight discrepancy in the complainant's version, in so far as it was not clear whether the accused had asked for a hand loan to meet the construction-related expenses or whether the complainant had incurred the said expenditure over a period of time. Either way, the complainant discloses the prima facie existence of a legally enforceable debt or liability since the complainant has maintained that his money was used for the construction-expenses. Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant."Ld. Counsel for the complainant relied upon the judgment of Hon'ble High Court of Delhi in case Sangeeta Batra Vs. VND Foods, SCC Online Del 10100, that " the lessee is liable to pay the rent till the possession is handed back to the lessor. Section 108 of the Transfer of Property Act deals with the aspect of rights and liabilities of lessor and lessee. It was held that if the leased premises is rendered substantially and permanently unfit for the purpose for which it was let, the lessee has the option to avoid lease. Unless the lessee so avoids the lease, he cannot avoid his obligation in Clause (1) of Section 108, which states that "the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf". Ld. Counsel for the complainant also relied upon the judgment of Hon'ble Supreme Court of India in Bharat Barel & Drum Manufacturing Company Vs. Amin Chand Pyarelal, (1993) 3 SCC35, wherein it is held that "Section 118 of the NI act deals with the presumption as to Negotiable Instruments. One of such presumption is 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, negotiable or transferred for consideration. This presumption is based upon a principle and is ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 18 of 37U/s. 138 Negotiable Instrument Act not a mere technical provision. The principle incorporated being, inferring of a presumption of consideration in the case of a negotiable instrument." Ld. Counsel for the complainant also relied upon the judgment of Hon'ble Supreme Court of India in Shree Daneshwari Traders Vs. Sanjay Jain & Anr,(2019) 16 SCC 83, of Hon'ble High Court of Delhi in Ramanand and others Vs. Dr. Girish Soni and another , 2020 SCC Online Del 635 and Amalgamated Bean Coffee Trading Company now coffee Day Global Vs. Surjit Singh Jolly, 2017 SCC Online Del 8032.
It is stated by Ld. Counsel for accused persons that this fact is duly admitted that accused persons had taken the premises on lease from the complainant vide registered lease deed Ex. CW1/3 and issued the cheques in question in advance for the payment of lease rent. It is further stated by Ld. Counsel for accused persons that before leasing out the property on lease to the accused persons, the complainant had leased the said property to M/s T. G. Leisure & Resorts Pvt. Ltd. and they had also vacated the property due to the bad condition of the property and the complainant had filed similar cases against them under section 138 NI Act for the cheques of rent and accused persons were acquitted in that case by this court. It is further stated by Ld. Counsel for accused persons that the copy of that case in Ex. DW1/A(colly). It is further stated by Ld. Counsel for accused that on perusal of MCD License Ex. DW4/C1 it is found that the said license is not to run Banquet business. It is further stated by Ld. Counsel for accused persons that the registered lease agreement of the complainant with M/s T. G. Leisure & Resorts Pvt. Ltd. is ex. CW1/X4 in which it is specifically mentioned that the lock-in period with M/s T.G. Leisure and Resorts Private Limited is till 31 st August, 2014 and therefore, there is an embargo upon the complainant to lease the said property to any other person till 31st August 2014 and despite that fact the complainant had leased the said property ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 19 of 37U/s. 138 Negotiable Instrument Act to the accused persons in the present case. It is further stated by Ld. Counsel for accused persons that as per Clause 28 of the lease agreement Ex. CW1/3, in case any dispute arises between the parties in connection with the present agreement, the matter shall be referred for arbitration and therefore the present case is not maintainable as per clause 28 of the lease agreement which is as follows:- " that in case of any dispute or difference arising between the parties on account of or in connection with the present agreement, the same shall be referred for arbitration under the provisions of arbitration and conciliation act, 1996. Both the parties shall appoint an arbitrator and both arbitrators shall appoint a presiding arbitrator and these three shall constitute an arbitral panel. The decision of the panel shall be final and binding on both the parties. The venue of arbitration shall be exclusively new Delhi. The expenses on the arbitration proceedings will be borne by both the parties equally".
It is further stated by Ld. Counsel for accused persons that as per clause 10 of the lease agreement Ex. CW1/3, if the accused persons failed to pay the lease rent for two consecutive months, the said lease agreement shall be determined and therefore, the accused persons have no liability to pay the lease rent for whole locking period and clause 10 is as follows:- " In case rent/lease amount is not paid for two months, the Lease shall be stand revoked, cancelled and terminated automatically without any notice and shall be deemed as determined and the Lessee shall vacate the leased premises immediately and have to clear all dues such as lease rental, licence fees, taxes, duties, fees etc. However, due to any delay in handing over the possession to the lesser for whatsoever reasons, the Lessee shall pay double the amount of existing lease rent per month till the date of handing over the physical vacant possession of the premises to the lesser in any of the conditions (even in the absence of any notice to him in this regard). These ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 20 of 37U/s. 138 Negotiable Instrument Act terms will apply to both the default period and the subsequent response period. This will be extra, over and above on other penalties, recoveries, interest, cost etc."
It is further stated by Ld. Counsel for accused persons that accused persons had vacated the said property by the order of the court on 18/10/2015 through Local Commissioner but actually the accused persons were not in the possession of the property since 01/07/2015 when they replied the letter of the complainant dated 26/06/2015. It is further stated by Ld. Counsel for accused persons that accused persons had sent notice to the complainant to take the possession of the property and also requested to refund the security amount of rupees one crore 26 lakhs after deducting the rent for the two months. It is further stated by Ld. Counsel for accused persons that the accused persons had filed civil recovery suit to recover the security amount of rupees one crore 26 lakhs which has been forfeited by the complainant. It is further stated by Ld. Counsel for accused persons that he relied upon the judgment of this court passed in the case of Shri Ram Kumar Gupta HUF Vs. M/s T.G. Leisure & Resorts Private Limited which is Ex. DW1/A(colly). It is further stated by Ld. Counsel for accused persons that the judgments relied upon by the complainant are not applicable in the present case and facts of all the judgments are different to the facts of the present case. It is further stated by Ld. Counsel for accused persons that out of total 11 cases, Mrs. Sarabjeet Kaur was not accused in the two cases. It is further stated by Ld. Counsel for accused persons that Mrs. Sarabjeet Kaur has been falsely implicated by the complainant in the present case as Mrs. Sarabjeet Kaur was not the director at the time of issuance of the cheques in question but the director at the time when the cheques got dishonoured and moreover, Mrs. Sarabjeet Kaur has no role in day to day affairs of the said company and therefore, she is not liable for the dishonour of cheques under section 138 NI Act. It is further stated by Ld. Counsel for accused persons that Sh. Ram Kumar Gupta has not filed any document ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 21 of 37U/s. 138 Negotiable Instrument Act to show that he has the right to file the present case as Karta of M/s Shri Ram Kumar Gupta HUF. It is further stated by Ld. counsel for accused persons that no authority letter has been filed by the complainant to show that he has an authority to file the present case. It is further stated by Ld. counsel for accused persons that complainant has not come to the court with clean hands and his complaints are liable to be dismissed. It is further stated by Ld. Counsel for accused persons that the Metro station work was started near the main gate of the leased premises due to which the purpose of taking the leased property got frustrated and this is an act of God and doctrine of 'vis major' would apply in the present case. It is further stated by Ld. Counsel for accused persons that the complainant is not entitled to the service tax when the accused persons had vacated the said property. It is further stated by Ld. Counsel for accused persons that he relied upon all the judgments which had been relied by the accused persons in case titled as Sh. Ram Kumar Gupta HUF Vs. M/s T.G. Leisure & Resorts Pvt. Ltd. It is further stated by Ld. Counsel for accused that accused may kindly be acquitted in the present case.
It is stated by Ld. Counsel for the complainant in rebuttal that the registered lease agreement Ex CW1/3 is different from the lease agreement entered by the complainant with M/s T.G. Leisure & Resorts Private Limited which is Ex. CW1/X4. It is further stated by Ld. Counsel for the complainant in rebuttal that even if the accused persons had handed over the possession of the said property before the lock-in period but as per lease agreement Ex. CW1/3, the accused persons are liable to pay the rent for the lock-in period mentioned in the lease agreement Ex. CW1/3. It is further stated by Ld. Counsel for the complainant in rebuttal that no written communication at any point of time had been made by the accused persons to the complainant mentioning the bad condition of the property. It is further stated by Ld. Counsel for the complainant in rebuttal that at the time of vacating the property by ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 22 of 37U/s. 138 Negotiable Instrument Act the accused persons, they had all valid licences and NOC from the concerned departments for running the motel business which automatically shows and proves that the premises was in a good condition at that time to run the motel business and there is no reason for the accused person to vacate the said premises.
8) This is the factual matrix of this case. Let us now examine the legal benchmark which is to be satisfied in order to constitute an offence under section 138 NI Act:
(i) That the persons must have drawn a cheque on an account maintained by him in a bank for payment of certain amount of money to another person from out of that account.
(ii) That the cheque should have been issued for discharge in whole or in party of any debt or other liability.
(iii) That the cheque has been presented to a bank within a period of three months from the date on which it was drawn.
(iv) That cheque is returned by the bank unpaid because of the amount of money standing to the credit of account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account or any other reason.
(v) That the payee or the holder in due course of the cheque makes a demand for the payment of said amount by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of the information by him from the bank regarding the return of cheque as unpaid.
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PS Rajouri Garden Page No. 23 of 37U/s. 138 Negotiable Instrument Act
(vi) That the drawer of the said cheque fails to make payment of the said amount to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
9) It is only when all the aforementioned ingredients are satisfied, that the person who had drawn the cheque can be deemed to have committed an offence u/s 138 of NI Act.
10) As per section 114, Indian Evidence Act,1872 which is applicable to communication sent by the post, the court are to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the General Clauses Act envisages that when a registered notice is posted , it is presumed to have been served unless rebuttal is given.
11) Final arguments addressed on behalf of both the parties have been heard and carefully considered along with the entire evidence on record.
12) In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, the Hon'ble Supreme Court, held as under:
"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 nonexistence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.PS Rajouri Garden Page No. 24 of 37
U/s. 138 Negotiable Instrument Act 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 nonexistence 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. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
13) In M.S Narayana Menon Vs. State of Kerala, (2006) 6 SCC 39, the Apex Court dealing with the statutory presumption under Sections 118(a) and 139 of the N. I. Act inter alia held as under:
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U/s. 138 Negotiable Instrument Act "29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words "proved" and "dis proved" have been defined in Section 3 of the Evidence Act (the interpretation clause)......
30. Applying the said definitions of "proved" or "disproved" to the principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
XXX XXX XXX
32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
XXX XXX XXX Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the s standard of reasonability being that of the 'prudent man'."
14) It is a well settled proposition of law that once execution of Negotiable instrument is admitted, the presumption under Section 118(a) NI Act would arise that it is ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 26 of 37U/s. 138 Negotiable Instrument Act supported by a consideration. However, such presumption is rebuttable and the accused can prove the non-existence of a consideration by raising a probable defence. The burden upon the accused 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. To disprove the presumption, the accused has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist.
15) The gist of two above mentioned precedents is that the accused is in trial under Section 138 NI Act is left with two alternatives for his defence. He can either show that consideration and debt did not exist for which direct evidence could be adduced which is seldom available or he can show by relying upon circumstantial evidence that under the particular circumstances of the case the nonexistence of consideration and debt is so probable that prudent man ought to suppose that no consideration and debt existed. It is evident that standard of proof to rebut the statutory presumption is not to prove it beyond the reasonable doubt as required in a criminal complaint. The onus to that effect on the accused is not onerous and what is required is a probable defence which could primarily find its foundation in preponderance of probabilities. In order to raise a probable defence, the accused can also rely on the evidence adduced by the complainant. However, a bare denial of the statutory presumption by the accused will not suffice.
16) In present case, accused no. 2 admitted his signature and account number with ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 27 of 37U/s. 138 Negotiable Instrument Act respect to cheque-in-question and the said fact is also admitted by the other accused persons. The main defence of the accused persons is that the cheques in question were issued for the lease rent to the complainant but when they took the possession of the premises they found number of deficiencies in the said premises due to which they could not run their motel business from the leased premises and therefore they had vacated the said premises and hence they had no legal liability towards the complainant qua the cheques in question which had been issued in advance towards the payment of lease rent and they had already made the payment of lease rent for the period they had used the leased premises.
DW4 i.e. accused no.2 Harjeet Singh Chandok during his cross- examination duly admitted the case of the complainant in one suggestion put to him by the Ld counsel for complainant i.e. " it is correct that we are liable to pay the rent for the lock-in period mentioned in the agreement Ex. CW1/3, even if we vacate the premises before that Lock-in period." As per Clause 4 of the registered lease agreement Ex. CW1/3, there shall be a lock-in period of 2 ½ years starting from 1st October 2013 i.e. till 31st March, 2016. In the present case, the accused persons had regularly paid the lease rent to the complainant till January, 2015 and thereafter did not pay the lease rent for two months i.e. February, 2015 and March, 2015. Thereafter, the accused persons had paid the lease rent to the complainant for the two months i.e. April and May, 2015 and failed to pay the rent to the complainant from June, 2015. Therefore, the complainant is entitled for the lease rent of the month of February, 2015, March 2015 and from June, 2015 to March, 2016 i.e. for 12 months from the accused persons and these 11 cases filed by the complainant are for the cheques issued for the lease rent of month of February, 2015, March, 2015 and from June, 2015 to March, 2016 i.e. total 12 months, even if the accused persons had vacated the leased property on 18.10.2015.
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PS Rajouri Garden Page No. 28 of 37U/s. 138 Negotiable Instrument Act Ld. Counsel for the accused persons during final arguments raised a contention that the complainant has filed no proof that he is Karta of M/s Shri Ram Kumar Gupta HUF and he had no authority to file the present complaint. DW1 and DW4 during his examination in chief duly admitted that Shri Ram Kumar Gupta is the Karta of M/s Shri Ram Kumar Gupta HUF and when the said fact is duly admitted by the one of the accused himself and by the accused witness, the said arguments of Ld. Counsel for the accused persons holds no water.
Ld. Counsel for the accused persons during final arguments also raised a contention that Mrs. Sarabjeet Kaur cannot be made accused in the present cases as she was not the director of accused no. 1 company at the time of issuance of cheques in question and also not in charge of day to day affairs of the accused no. 1 company. The accused Sarabjeet Kaur was the director of the accused no. 1 company at the time when the cheques in question were bounced/dishonoured which means that Sarabjeet Kaur was the director of the accused no. 1 company at the time when the offence under section 138 NI Act was committed and she is liable as per Section 141 of NI Act. The complainant has very well mentioned in his complaint as well as evidence by way of affidavit that accused Sarabjeet Kaur is also in charge of day to day affairs of accused no. 1 company. Moreover, at the time of framing of notice of accused Sarabjeet Kaur under section 251 Cr.P.C., no such defence has been taken by her that she was not looking after the day today affairs of the accused no. 1 company rather the defence taken by her clearly shows that she had full knowledge of the lease agreement and all the things happened at the time of entering of the lease agreement and thereafter till the filing of the present complaint.
Section 141(1) of NI Act provides for the offences by the companies and lays down that :-
" If the person committing an offence under section 138 is a company, every ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.PS Rajouri Garden Page No. 29 of 37
U/s. 138 Negotiable Instrument Act 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"
Ld. Counsel for the accused persons during final arguments also raised a contention that the complainant is under embargo to give the said property on lease to the accused persons as there is Lock-in period in the lease agreement Ex. CW1/X4 which has been entered by the complainant with M/s T.G. Leisure & Resorts Private Limited. M/s T.G. Leisure & Resorts Private Limited had vacated the said property by the order of Hon'ble High Court of Delhi, before the accused persons came into the possession of the said property, therefore, no such embargo exists at the time when the property is leased out to the accused persons by the complainant.
As per Clause 10 of Lease Agreement, Ex. CW 1/3, the non-payment of lease rent by the accused persons for consecutively two months does not means that the very existence of the lease agreement Ex.CW1/3 extinguished and no terms and condition of the said agreement shall remain in force. If such would be the case then this condition would gave arbitrary power to the accused persons to revoke the lease agreement by just not paying the lease rent for two months superseding all other terms and conditions of the lease agreement. This can never be the intention of any of the parties entering into the lease agreement and not even the gist of the lease agreement Ex.CW1/3.
DW1 during his cross-examination duly admitted that the said registered lease agreement Ex. CW1/3 has been executed by the accused persons by their own ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 30 of 37U/s. 138 Negotiable Instrument Act sweet will. DW1 during his cross-examination also duly admitted that all the terms and conditions which were finalized between the complainant and the accused persons have been mentioned down in agreement Ex. CW1/3. During his cross- examination, DW1 also duly admitted that time of six months i.e. fit-out period had been given to rectify/set right the defects in the said property. This shows that if the accused persons had continued the possession of the said property after the fit-out period and also continued to pay the lease rent of the said property, the said property is out of the defects to run the motel business. Moreover, in the registered lease agreement Ex. CW1/3, it is specifically mentioned that accused persons had not found any inherit defects in the building of any kind i.e. "The Lessee has seen, inspected and measured the side premises, verified correctness of the area, documents, quality of work and got satisfied themselves thereof. Lessee also not found any inherent defects in the building of any kind."
Moreover, MCD department had also issued license to run the motel business which is Ex.DW4/C2 and the said license was also extended till 31/03/2017 and same is Ex. DW4/C2. The accused persons had also got the DPCC certificate which is Ex. DW4/C3. The said fact is also admitted by the DW1 and DW4 during their cross-examination. DW1 during his cross-examination duly admitted the fact that there is completion certificate at the time of entering of lease agreement Ex. CW1/3. DW1 during his cross-examination also duly admitted the fact that the leased premises have been put on use for commercial purpose since June,2013. If the said property was not in good condition to be used as motel business, how could the accused persons had put the said property in use from June,2013 itself and that too in fit-out period. The whole defence of the accused persons that the said property was not good and in a bad condition to run the motel business is based on verbal communications and the accused persons had not made any single written ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 31 of 37U/s. 138 Negotiable Instrument Act communication to the complainant mentioning the defects in the property since they entered the property and till it has been vacated by them except in their reply dated 01/07/2015 of the letter dated 29/06/2015 sent by the complainant. The accused persons during whole trial stated about the execution of one other notarized agreement between the parties other than Ex. CW1/3 on the very same day on which Ex. CW1/3 was executed but that agreement never seen the day of light and never placed on record by the accused persons. The accused persons took the plea that the complainant had not given them the copy of the same but the accused persons had also not examined the notary public to prove execution of such agreement. The accused persons always had the opportunity to examine the notary public to prove the execution of any such document even if they did not have the copy of the said agreement as the same has not been given by the complainant as alleged. The whole defence of the accused seems to be sham and flimsy.
Section 91 of Indian Evidence Act,1872 provides for the evidence of terms of contents, grants and other dispositions of property reduced to form of documents and lays down that:-
"when the terms of a contract, or of a grant, or of any other disposition of the property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of the property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained."
Therefore, the accused persons cannot take the defence that one more agreement other than EX. CW1/3 has been executed varying the terms of Ex. CW1/3. The accused persons keep on stating during the whole trial that they had ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.
PS Rajouri Garden Page No. 32 of 37U/s. 138 Negotiable Instrument Act made also made the payment of lease rent to the complainant in cash for the fit-out period which was the rent free period but failed to prove so. No receipt of cash payment has been placed on record by the accused persons. DW4 during his cross- examination also admitted that cash rent is not mentioned anywhere in the statement of accounts/ledger/balance sheet of the company as the same has been paid in cash. Moreover, in the bank statement placed on record by the accused persons to prove the withdrawal of amount to make the payment of lease rent in cash, the name of complainant is not found mentioned anywhere. DW4 during his cross-examination also admitted the fact that they had booked/done first function in the said premises within one month of taking the possession of the said property. If the property was in bad condition, how could the accused persons had taken the booking in just one month of taking the possession of the said property. DW4 during his cross- examination also admitted that he had visited the said property once or twice before the execution of Ex. CW1/3. When one of the accused i.e. DW4 had visited the property, he must have noticed the defects in the said property, if any and if defects were there, why would accused persons have entered into lease agreement Ex. CW1/3. There is also license of lift which is Mark DW1/Z3.
Perusal of the record reveals that when the accused persons had vacated the premises, the said premises had all valid licenses and NOC from all concerned departments to run the motel business and this automatically shows and proves that property is in good condition at that time to run the motel business.
Doctrine of 'vis major' is also not applicable in the present case. The meaning of the said doctrine is 'an irrestible natural occurrence neither caused by or preventable by humans'. The work of Delhi Metro on NH10 in the front of the leased property does not come under the meaning of the said doctrine as the said work/act is not of any superior force or of God but of humans.
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PS Rajouri Garden Page No. 33 of 37U/s. 138 Negotiable Instrument Act Ld. Counsel for the accused persons relied upon the judgment passed by this court in the case of M/s Ram Kumar Gupta HUF Vs. M/s T. G. Leisure & Resorts Pvt. Ltd. and Ors. and the lease agreement Ex. CW1/X4 entered by the complainant with the accused persons in that case, wherein the accused persons have been acquitted by the court. The facts of this present case is totally different from the facts of the case of M/s Ram Kumar Gupta HUF Vs. M/s T. G. Leisure & Resorts Pvt. Ltd. and there is also difference in the lease agreement Ex. CW1/X4 and the lease agreement of the present case Ex. CW1/3. In Ex.CW1/3, this fact is specifically mentioned that "Lessee also not found any inherit defects in building of any kind" which is not mentioned in Ex. CW1/X4, which shows that lessee i.e. accused persons had ensured that the said property is free from any defect and in good condition to run the motel business. Moreover, M/s T. G. Leisure & Resorts Pvt. Ltd. shall not be liable to pay the rent for whole lock-in period till August, 2014 because the said property was taken on lease by the accused persons in the present case immediately after the same has been vacated by M/s T. G. Leisure & Resorts Pvt. Ltd and the complainant cannot claim the lease rent of the same property from the two persons for the particular period. However, as per the court record, the said property has no tenant/lessee till March,2016 (lock-in period in the present case) after the same has been vacated by the accused persons on 18/10/2015. Moreover, DW4 in the present case admitted the liability that they are liable to pay the lease rent for the lock-in period even if they had vacated the premises earlier, which crystal clearly proves the case of the complainant. Moreover, in the case of M/s T. G. Leisure & Resorts Pvt. Ltd, the accused persons did not have MCD license, STP plant and no sanction from DPCC or any other department. In the case of M/s T. G. Leisure & Resorts Pvt. Ltd, there were many written communications which were sent by the accused persons.
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PS Rajouri Garden Page No. 34 of 37U/s. 138 Negotiable Instrument Act Section 43 of Indian Evidence Act,1872 provides about the judgments, etc. other than those mentioned in sections 40 to 42, when relevant and lays down that :-
"Judgments, orders or decrees, other than those mentioned in sections 40,41 and 42, are irrelevant,unless the existence of such judgment, order or decree, is a fact-in-issue, or is relevant under some other provisions of this act. This section of Indian Evidence Act specifically provides that the judgment passed by this court in M/s Ram Kumar Gupta HUF Vs. M/s T. G. Leisure & Resorts Pvt. Ltd. and Ors. is irrelevant in the present case. Here, the admission of signature and account number has itself creates the presumption u/s 139 of NI Act in favor of the complainant. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. 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 the probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail.
17) In the present complaint case, the accused persons have failed to rebut the presumption raised under section 139 of NI act that such liability do not exist.
18) Ld. Counsel for the complainant relied on several judgments. The proposition of law ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.PS Rajouri Garden Page No. 35 of 37
U/s. 138 Negotiable Instrument Act which has been clearly explained in Bir Singh V. Mukesh Kumar dated 06.02.2019 and have been subsequently relied upon by the Apex Court and other Hon'ble Courts is as follows:-
a) That the onus to rebut the presumption u/s 139 of the NI Act that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post-dated does not absolve the drawer of the cheque of legal consequences.
b) That the bare reading of the provisions of Section 20, Section 87 and Section 139 of the NI Act makes it amply clear that a person who signed the cheque and makes it over to the Payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for a payment of debt or in discharge of a liability. It has also been held that it is immaterial that the cheque may have been filed by any other person other than the drawer if the cheque has been duly signed by the drawer.
c) Even if the blank cheque leaf voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption u/s 139 of the NI Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of any debt.
19) In view of above discussions, this court is of considered view that accused persons have failed to create reasonable doubt over the veracity of story of complainant by balance of probabilities. It is noticeable that the complainant has to prove his case ___________________________________________________________________________________ Ct. Case No. 16182/2016 M/s RAM KUMAR GUPTA (HUF) Vs. M/s CHANSON HOSPITALITY PVT. LTD. & Ors.PS Rajouri Garden Page No. 36 of 37
U/s. 138 Negotiable Instrument Act beyond reasonable doubt only when the accused persons have rebutted the presumption under section 139 NI Act which the accused persons have failed to do in the present case.
20) In upshot of aforesaid discussion I return finding of conviction of accused persons for offence u/s 138 of NI Act in this case.
21) Let the copy of judgment be given free of cost to the convict.
Digitally signed
MAYANK by MAYANK
GOEL
GOEL Date: 2023.05.06
16:26:06 +0530
Announced in open court (MAYANK GOEL)
on 06.05.2023 MM(NI ACT)-02/West District
THC Courts/Delhi
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PS Rajouri Garden Page No. 37 of 37U/s. 138 Negotiable Instrument Act