Delhi District Court
M/S Capricot Technologies Pvt. Ltd. vs . Varun Gupta on 4 April, 2019
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IN THE COURT OF MS PRABH DEEP KAUR : METROPOLITAN MAGISTRATE -
02 : SOUTH : SAKET COURT : NEW DELHI
M/S CAPRICOT TECHNOLOGIES PVT. LTD. VS. VARUN GUPTA
CC No. 462297/2016
U/S 138 NEGOTIABLE INSTRUMENTS ACT
JUDGMENT
(1) Serial number of the case : 462297/2016
(2) Name of the complainant : M/s Capricot Technologies
Pvt.Ltd. Through its authorized
representative Vipin Rai.
Office at S-17, Local Shopping
Complex, Green Park Extension,
New Delhi-16.
(3) Name of the accused, : Varun Gupta
parentage & address S/o Sh. Subhash Chander,
Proprietor of M/s Jwala
Engineering & Consultancy
Services, Office at 354, Sector-2,
Growth Centre, Saha, Ambala
(Haryana) 133104.
(4) Offence complained of or proved : 138 Negotiable Instruments
Act, 1881
(5) Plea of the accused : Pleaded not guilty
(6) Final Order : CONVICTION
(7) Date of Institution : 13.05.2016
(8) Date on which reserved for
judgment : 28.03.2019
(9) Date of Judgment : 04.04.2019
M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016
Page 1 of 12
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BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of this case as carved out from the complaint are that the accused placed the purchase order dated 15.07.15 for purchase of Autodesk Product Design Suit Premium 2016 commercial New SLM with multi- year maintenance subscription promo for a consideration of Rs. 1,45,300/- and Auto Desk Autocad maintenance subscription (2 years) for a consideration of Rs. 57,000/-. The complainant had successfully fulfilled an aforesaid order up to satisfaction on 19.08.2015, which the accused had acknowledged to had been successfully installed as per service call report, and thereby the complainant raised invoice. The invoices, having invoice no. DLSL1516/1500262 dated 31.08.15 for an amount of Rs. 1,52,565/- and invoice No. DLSR1516/16000565 for the consideration of Rs. 64,980/-. The accused had issued PDCs, including the cheques, having cheque bearing nos. 043069 for sum of Rs. 27000/-, 043070 for sum of Rs. 27000/- and 043071 for sum of Rs. 27,000/-, all drawn on Corporation Bank Ltd, Saha Branch, Haryana. The complainant presented the cheques in question with his banker which were returned dishonoured with remarks "Funds Insufficient" vide cheque returning memos dated 02.03.2016. Thereafter, on failure of accused to pay the said cheques amount, a legal demand notice dated 30.03.2016 was sent to the accused through Speed Post & Regd. AD and speed post which was deemed to be duly served upon the accused. Thereafter, another legal notice was sent to the accused on 02.04.2016. Despite that payment of the cheques in question was not made by the accused within the stipulated time of 15 days. Hence, the complaint. M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 2 of 12 3
2. In the pre-summoning evidence, affidavit by way of evidence Ex.CW1/A was filed by the AR of complainant. In his affidavit of evidence Ex.CW1/A, the AR of complainant reiterated all the averments made in his complaint and relied on documents Ex.CW1/1 to Ex.CW1/17, which are the board resolution dated 16.04.2016, original purchase order dated 15.07.2015, certified copy of ledger statement supported by Certificate U/s 65B Indian Evidence Act, copy of Invoices, service call report dated 19.08.2015, original cheques in question, their return memos, office copy of legal notice, postal receipts and tracking report.
After closure of pre-summoning evidence, since sufficient material was found against the accused, summoning order u/s 204 CrPC was passed against the accused vide order dated 18.05.2016.
3. Accused appeared pursuant to issuance of summons and notice U/s 251 CrPC was served upon the accused vide order dated 30.08.2016 to which the accused pleaded not guilty and claimed trial. Accused stated that he has no liability towards the complainant. Accused further stated that he had placed an order of a software to the complainant company and on delivery, the software could not run on the system and several requests were made to the complainant despite which the software could not run on the system. Accused further stated that above said cheques were given after delivery without date on assurance that the software would start running after payment and the software did not operate and he had no legal liability to pay the cheques amount to the complainant. Accused admitted that he had received the legal notice of M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 3 of 12 4 demand.
4. Thereafter, upon application of accused U/s 145(2) N I Act to cross examine complainant and his witnesses, the same was allowed vide order dated 09.02.2017 and the accused was given an opportunity to cross examine the complainant and his witnesses.
AR of complainant was duly cross examined by Sh. Rajan Khanna, Ld. Counsel for the accused. No other complainant witness was produced by the complainant. Thereafter, CE was closed vide order dated 08.03.2018.
5. Thereafter, the plea of the accused Varun Gupta u/s 313 r/w 281 CrPC was recorded vide order dated 04.05.2018, wherein, all material existing on record including the exhibited documents were put to accused. The accused stated that one sales executive of complainant namely Siddharth had visited his office and represented that there is one software available with the complainant which is useful for company of accused and he also represented that there are other companies who are purchasing this software from the complainant company for their day to day business and he convinced him that only after placing the order, a training/installation of the software will be given to them to operate the software, therefore, he placed order with the complainant. Accused further stated that thereafter, on the pretext of completion of targets, Mr Siddharth, Sales Executive of complainant had taken cheques from him to make the payment by way of installments at the time of placing order itself with the assurance that after placing the order, they will conduct a training program and will install the software and in case, they were M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 4 of 12 5 not satisfied with the product/software/installation, his cheques will be returned. Accused further stated that thereafter, on 19.08.2015, one Nikhil Garg from the complainant company came to his office and only placed a trial version with the assurance that the actual software will be installed later on after giving proper training to them. Accused further stated that despite his requests, no demo to play the trial version was given, therefore, they could not even use the trial version later on. Accused further stated that thereafter, none turned up on behalf of complainant company despite his repeated efforts to contact the complainant company or its employees and later on he came to know that Mr Nikhil Garg had also left the complainant company. Accused further stated that thus, till date no final version of the software has been provided to him for which he issued the cheques. Accused further stated that he had no legal liability to pay the cheques amount to the complainant. Accused further stated that company might have received the legal notice.
Accused further expressed his desire not to lead defence evidence and matter was listed for addressing final arguments.
6. Thereafter, complainant moved an application U/s 311 CrPC to examine Nikhil Garg, Technician as witness and the same was allowed vide order dated 18.05.2018. Thereafter, Nikhil Garg was examined as CW-2 and was cross examined by Sh Rajan Khanna & Sh A K Bhardwaj, counsels for accused.
7. Thereafter, additional plea of accused U/s 281 r/w 313 CrPC was recorded vide order dated 14.12.2018, wherein, all material existing on record including the exhibited documents were again put to accused. The accused M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 5 of 12 6 stated that CW 2 Nikhil Garg has visited his office only for the purpose of installing trial version and after expiry of trial version, none has ever visited his office for installation of final version of his order. Accused was informed that during trial version, training will be given. However, no training was ever given during trial version. CW 2 is talking about some activation code. However, he had never received any activation code on his e mail. No software was ever activated on his PC and the documents filed by CW2 are not related to his order and the same appears to be forged. The invoices shown by the complainant have never been given to him nor the account statement filed by the complainant have ever been shared by the complainant by him prior to the filing of present complaint.
8. Sh. Saurabh Jain, Ld. Counsel for complainant and Sh. A K Bhardwaj & Sh Rajan Khanna, Ld. Counsels for accused have addressed oral arguments.
9. However, at the stage of judgment, following order dated 17.01.2019 was passed :
"Matter is fixed for judgment.
However, after going through the entire judicial record, it appears that certain clarifications are required from the manufacturer of the software ie Autodesk Product Co with respect to rules for installation of trial version/final version/proper software. In view thereof, let the authorized representative from regional office of Autodesk ie 5th Floor, MGF Corporate Park, MGF Metropolitan Mall, Saket District center, New Delhi be summoned (Phone No. 46077200) to give clarifications as to governing rules with respect to installation of software returnable for 02.02.19. Copy of bill Mark A & the copy of document ExCW2/1 & ExCW2/2 be annexed with the court notice to facilitate the clarifications".
M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 6 of 12 7 Sh Kapil Chaudhary, Corporate Counsel from Auto Desk was examined U/s 311 CrPC by the court and fresh final arguments were heard.
10. Arguments advanced by both parties heard. Case file perused meticulously.
11. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv) Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
12. It is the case of the complainant that complainant company has supplied software to the accused as per purchase order placed by the accused and after successful fulfillment of the order and successful installation, complainant raised invoices and accused issued cheques in question as PDCs for part payment towards the outstanding amount and the cheques on presentation got dishonoured.
On the other hand, accused has taken defence that the software was not properly installed and he has no legal liability to pay the cheques amount to the complainant.
13. It is a well settled position of law that when a negotiable instrument is drawn, two statutory presumptions arises in favour of the M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 7 of 12 8 complaint, one under Section 139 NI Act and another under Section 118(a) of the NI Act. Further, the court will presume a negotiable instrument for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or consider the non existence of the consideration so probable that a prudent person may 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. Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
14. In the present case, accused has taken contradictory defences because at the stage of notice U/s 251 CrPC, accused has admitted that he placed an order of software to the complainant company but as per accused, complainant delivered the software which could not run on the system and several requests were made to the complainant and cheques were given as undated cheques after delivery on the assurance that software would start running after payment but software did not operate. Same stand was taken in the application U/s 145(2) N I Act. The accused has nowhere disputed the installation of software.
15. But during cross examination of AR of complainant as well as in the plea recorded U/s 281 r/w 313 CrPC, accused has taken defence that only trial version was installed and final version was never installed and accused could not even use trial version in absence of training to be given by M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 8 of 12 9 complainant as assured by complainant. Thus, the accused has taken new defence by disputing the installation of final version.
16. To prove that software was successfully installed in the computer of accused, complainant has examined its technician Nikhil Garg as CW-2 who deposed that :
"I was working as a technical support executive in the office of M/s Capricot technologies Pvt Ltd. I know Sh Varun Gupta. I went to Sh Varun Gupta for installation of the softwares named as Autodesk product designs suite. I had installed the aforesaid softwares on the PC of Varun Gupta. I firstly installed a trial version of the aforesaid softwares and then from the site of Autodesk activation code had been sent to Varun Gupta from the site of Autodesk. Then, the verification code was to be copied and pasted by Varun Gupta/user. The softwares were around two months later were activated on the PC of Varun Gupta. This fact can be ascertained from the site of Autodesk. I have a document which shows that the softwares had been activated in the PC of Varun Gupta.
At this stage, the witness bring a document which is known as Licence certificate issued by Autodesk which confirms the details of the softwares installed, recent date activation and other particulars of the software which is exhibit as Ex CW-2/1. (objected to by the counsel for the accused that submission of above proof should not be allowed at this stage as cross- examination of CW-1 has already concluded.) The witness has bring one more document which is a part of Autodesk License certificate which shows the most recent activation date, license description and other details of the software which is exhibit as Ex CW-2/2. (objected to by the counsel for the accused that submission of above proof should not be allowed at this stage as cross-examination of CW-1 has already concluded and above proofs are photocopies only and no copy supplied to the accused).
I went to the office of Varun Gupta to ascertain whether the installed final version software was/were activated or not and the said software activated in the PC of Varun Gupta".
M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 9 of 12 10
17. This witness was cross examined and during cross examination, the witness deposed that :
"I do not know the procedure of order and I know only technical procedure. First of all, trial version of the software was installed on the user's PC for 30 days. Afterwards, the activation code was given from Autodesk to user's register mail ID and then the user activation code provided by Autodesk in the email was copied and pasted to that software was automatically activated. I was working with Capricot Technologies Pvt Ltd. The software owner is Autodesk. I have no idea where autodesk office situated. Vol. "Yeh bahar ki company hai". I have no direct contact with Autodesk. Company company purchased software from Autodesk. There is no direct contact of the user/client of Capricot with Autodesk".
This deposition of CW-2 with respect to ExCW2/1 & ExCW2/2 was corroborated by the witness Sh Kapil Chaudhary, Corporate Counsel from AutoDesk who was examined by court in pursuant to order dated 17.01.2019 and who deposed that :
"Q. What is the nature of software "autodesk product design suite premium 2016 commercial new SLM?
A. This is the perpetual license with serial no. 559- 09843164.
Q. Is there a license Activation report that is generated each time a user activates a license?
A. Yes, there is an activation report generated.
Q. Are these trial licenses?
A. As per our records, these are not trial licenses
because no serial no. is generated of trial licenses. As is reflected, it is a Commercial Product.
Q. What are the customers details in Autodesk
records?
A. The license belongs to Sh. Varun Gupta with
email [email protected] and Contact Phone:
+919194163673 and account: Jwala Engineering & Consultancy Services, No. 354 INDL Growth Ctr Ambala M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 10 of 12 11 Haryana India, Supporting Reseller/dealer: Capricot Technologies Pvt ltd, 3rd floor plot no. 19-20 Oriental House Yusuf Sarai Community Center New Delhi- 110049 India.
Q. How is activation of a license done?
A. As per the End User License Agreement, clause
6.2.1 installation of and Access to the Lincensed Material requre and the continued use thereof may from time to time require, activation codes issued by Autodesk. Registration may be required before an activation code is issued by Autodesk. Licensee will provide Autodesk and its Reseller with any information required for such registration.
In case of a standalone, perpetual license, manual activation is normally done at the request of End Customer and the details are below.
As per Autodesk record, a media Kit Order(7055205822) was placed by our distributor on 28.07.2015 and another order for maintenance plan (AMC) and support was placed(7055226009) which has the contract start date of 06.08.2015. As per records, the maintenance contract has expired since 05.08.2017".
Therefore, the objections of accused with respect to document ExCW2/1 & ExCW2/2 are liable to be dismissed.
18. Further, the accused has not lead any evidence to prove that there was any assurance given by complainant to provide any kind of training to accused nor accused has lead any evidence to prove that providing of training by complainant with respect to software was essential term of contract between parties. Rather in the defence to notice U/s 251 CrPC, accused admitted that he issued cheques because complainant assured that software would run properly after payments. Thus, accused has failed to prove any probable defence.
19. Therefore, in view of the above discussions and reasons, in the opinion of this Court, the presumptions arising in favour of the complainant U/s M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 11 of 12 12 118 & 139 of the Act have not been rebutted by the accused by preponderance of probabilities, whereas the complainant has proved its case beyond all reasonable doubts. Resultantly, this court finds the accused Varun Gupta s/o Sh Subhash Chander guilty for the offence punishable U/s 138 N I Act. Hence, he stands convicted.
20. Let convict be heard on the quantum of sentence on 28.05.19 at 02 PM. Copy of the judgment be given dasti to the convict free of cost.
Digitally
signed by
PRABH
PRABH DEEP
DEEP KAUR
Announced in the open court Date:
KAUR
on 04.04.2019 2019.04.08
15:50:29
+0530
(PRABH DEEP KAUR)
Metropolitan Magistrate-02/N I Act/South
Saket Court/New Delhi
Certified that this judgment contains 12 pages and each page bears my signature.
(PRABH DEEP KAUR) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi M/S Capricot Technologies Pvt. Ltd. Vs. Varun Gupta CC No. 462297/2016 Page 12 of 12