Delhi District Court
M/S Taurus Global Travel Management ... vs M/S Transcorp International Limited on 20 April, 2024
IN THE COURT OF MS. KIRAN GUPTA,
ADDITIONAL SESSIONS JUDGE-04, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS: NEW DELHI
Criminal Appeal No. 213/2022
IN THE MATTER OF:
1. M/s Taurus Global Travel Management Services P. Ltd.
2. Sriram Sundaram
S/o Late O.S. Sundaram
R/o C-2 142, 3rd Floor, Janak Puri
New Delhi - 110058
... Appellants
Versus
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2024.04.20
14:34:04
+0530
Page 1 of 21
M/s Transcorp International Ltd.
Regd. Office at:
Plot No. 3, Sector-18
Dwarka, Phase-II,
New Delhi-110075 ... Respondent
Date of Institution : 17.12.2022
Date of conclusion of
arguments : 02.02.2024
Date of Judgment : 20.04.2024
JUDGMENT
1. Present appeal is against the judgment dated 02.11.2022 passed by the court of Ld. Metropolitan Magistrate in the complaint case bearing No. 28990/2016 whereby the appellants have been convicted for the offence U/s. 138 NI Act. Vide order on sentence dated 21.11.2022, the appellants have been sentenced to undergo simple imprisonment for three months and directed to pay fine of Rs. 17,50,000/- as compensation to the complainant/respondent and in default of payment of fine amount, to undergo simple imprisonment for a period of one month.
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2024.04.20
14:34:11
+0530
Page 2 of 21
BRIEF FACTS AS STATED IN THE COMPLAINT
2. Brief facts leading to the filing of complaint under Section 138 of Negotiable Instrument Act (hereinafter referred to NI Act) is that the complainant/respondent which is engaged in money changing business was approached by the appellants for purchase of foreign exchange. After negotiations, the complainant/respondent started supply of foreign exchange to the appellants on regular basis. Whatever payments were received were duly credited in the account books opened in the name of the appellants. That the complainant/respondent had supplied a number of consignments to the appellants on regular basis, however, they received either lesser amount of their invoices or delayed payments. Due to less or late payment and more supply from the complainant/respondent, there was huge gap of outstanding dues. As per mutual understanding, the interest so calculated on any delayed payment was also entered into the account of the appellants.
3. It is stated that complainant/respondent from its Barakhamba Office had issued some foreign exchange viz USD CN 13000, Euro 3000 and GBP CN 2730 having INR value Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:34:16 2024.04.20 +0530 Page 3 of 21 Rs.11,57,374/- on 05.04.2023 vide invoice under Sr. No.5481. The appellants had issued the cheque bearing No.341844 dated 05.04.2013 for the amount of bill i.e. Rs.11,57,374/- Ex.CW1/2, however, when the same was presented, it was returned unpaid with the remarks "exceeds arrangements" vide memo Ex.CW1/3. Legal Notice Ex.CW1/4 was duly served upon the appellants vide postal receipts Ex.CW1/5. Despite service of the legal notice, when the appellants failed to repay the amount, the complainant/respondent filed the complaint case under S. 138 NI Act before the ld. MM.
4. On the basis of the pre-summoning evidence, all the accused persons were summoned under S. 138 NI Act and notice was framed u/s 251 Cr.P.C. to which they pleaded not guilty and stated that the cheque amount had already been paid through bank transfers from ICICI Bank. The cheque was not issued in discharge of any liability and the same has been misused by the complainant/respondent. Appellant No. 2, who is the Director of appellant No.1 admitted his signatures on the cheque. He stated that the other particulars were not filled by him. He denied receipt of the legal notice but stated that the address on notice belongs to him but he had already vacated the same at the time of service of legal notice.
Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:34:21 2024.04.20 +0530 Page 4 of 21
5. The AR of the complainant/respondent was duly cross- examined by the Ld. Counsel for appellants before the Ld. MM. In the statement u/s 313 Cr.P.C, accused No. 1 and 2 who are the appellants stated that they have not issued the cheque in question; they have not received the legal notice; no transaction as alleged took place between them and complainant/respondent. They admitted the signature of appellant No. 2 on the cheque in question and denied filling the particulars on the cheque in question. They stated that the cheque in question was misused by the complainant/respondent in connivance with the staff of the company and with respect to the same, a complaint has been lodged at PS Janakpuri. They filed one circular of RBI Ex D1.
6. On the basis of the material and evidence adduced by the parties, the Ld. MM convicted the appellants for the offence u/s 138 NI Act.
7. During the pendency of the present appeal, an application u/s 391 Cr.P.C. was filed by the appellants which was allowed vide order dated 15.05.2023 and they were allowed to lead additional DE.
Digitally signedKiran by Kiran Gupta Date: 2024.04.20 Gupta 14:34:27 +0530 Page 5 of 21 The appellants in their DE examined DW-2 Neeraj Sharma, Relationship Manager, ICICI Bank, Janak Puri, who produced the attested copy of statement of account No. 037805500113 in the name of M/s Taurus Global Travel Management Services (P) Ltd. for the period from 01.04.2013 to 30.04.2013 as Ex.DW2/B. GROUNDS OF APPEAL
8. The appellants have challenged the impugned judgment and order on sentence stating that the ld. MM has wrongly considered and failed to appreciate that:
(a). That the appellants have duly rebutted the presumption u/s 139 NI Act;
(b). That there are material contradictions in the case of complainant/respondent;
(c). That the complainant/respondent failed to prove that the complaint has not been instituted by a properly authorized person. The complainant/respondent failed to file the resolution Ex.CW1/1 as Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:34:33 2024.04.20 +0530 Page 6 of 21 mentioned in the affidavit of CW-1. Further, Ex CW1/1 is not a resolution but General Power of Attorney which expired when AR of the complainant/respondent was examined on 18.11.2018. The complainant/respondent failed to prove before the Ld. MM that it was duly represented by a properly / legally authorized person. That the documents Ex.CW1/7 and Ex.CW1/C1 are similar documents but contains different day of meeting, which shows that they are forged and fabricated. Further, the documents Ex.CW1/6, Ex.CW1/7 and Ex.CW1/8 were produced at a later stage and no certificate u/s 65-B IEA has been filed with respect to these documents.
(d). That any FOREX transaction done in contravention of mandatory rules of RBI is an illegal transaction and cannot be enforced u/s 138 NI Act. That the complainant/respondent has not produced a single document / agreement that it was authorized to enter into any transaction with the appellant.
(e). That the AR of complainant/respondent during his cross-
examination stated that one Dinesh Gupta was person authorized by the complainant/respondent to do FOREX transactions with the appellants, however, the bill Ex.CW1/D2 does not bears the signature Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:34:39 2024.04.20 +0530 Page 7 of 21 of Dinesh Gupta, hence the said bill is forged and fabricated document and cannot be relied upon.
(f). That no Statement of Account of the appellants maintained by the complainant/respondent was brought on record.
That the complainant/respondent has failed to prove even a single transaction with the appellants.
(g). That the complainant/respondent failed to prove the factum of presentation and dishonour of cheque in question. The AR of complainant/respondent neither produced proof about the deposit of the cheque in the bank nor the statement of account to show that dishonor charges were levied. The stamp of the issuing bank is not present on the cheque. It is prayed that the judgment dated 02.11.2022 and order on sentence dated 21.11.2022 be set aside.
ARGUMENTS ON BEHALF OF LD. COUNSEL FOR APPELLANTS
9. It is argued by the ld. Counsel for appellants that the complainant/respondent has failed to prove that the complaint has Digitally signed by Kiran Kiran Date:
Gupta Gupta 14:34:45 2024.04.20 +0530 Page 8 of 21 been filed by a duly authorized person and that CW1 examined on behalf of complainant/respondent was duly authorized on the date when he was examined in the court. The appellants have further proved through the testimony of DW2 that they had already paid the entire amount of the cheque in question to the complainant / respondent even before filing of the complaint case.
9.1. He has relied upon various entries in the statement of account Ex.DW2/B to show that the appellants have paid the amount of Rs.12,47,374/- to the complainant / respondent after dishonor of the cheque during the period 05.04.2015 to 19.04.2015. It is further argued that the appellants have taken this defence at the time of framing of the notice and have duly proved through the testimony of DW2 that amount more than the cheque amount has already been transferred in the account of respondent / complainant by the appellants. It is further argued that though the complainant/respondent has pleaded that the amount so received from the appellants was duly credited in the account books opened in the name of appellants, however, no statement of account / account book has been filed by complainant/respondent during trial. CW1 during her cross-
examination admitted that there is no statement of account on record Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20 14:34:50 +0530 Page 9 of 21 that accused company had entered into the alleged transaction with the complainant/respondent company. It is submitted that since the appellants have proved that they had already repaid the cheque amount, all the appellants be acquitted in the present case and the impugned judgment and order on sentence be set aside.
ARGUMENTS ON BEHALF OF LD. COUNSEL FOR COMPLAINANT / RESPONDENT
10. It is argued by the ld. Counsel for complainant/respondent that there is no infirmity in the impugned judgment and order on sentence. In the written arguments filed on behalf of complainant/respondent, it is stated that it is an admitted fact that parties were having various other transactions and numerous payments were made and invoices were issued. The appellants have filed the statements showing the transaction from 01.04.2013 to 30.04.2013, whereas the witness from bank examined by the appellants has filed the statement showing the transaction from 05.04.2023 to 30.04.2013 only giving suspicion that the appellants have forged the given bank statement. It is further argued that the alleged account Ex.DW2/B was dormant with purged date as Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20 14:34:56 +0530 Page 10 of 21 11.01.2012 which is prior to 01.04.2012. The bank statement is related to ICICI Bank and the cheque was issued from State Bank of Hyderabad. It is further argued that the amounts, if any, received by the respondent / complainant were with respect to the other transactions and not the cheque in question. The appellants have failed to prove that the amounts as shown in Ex.DW2/B were towards the payment of the cheque amount. It is prayed that the present appeal be dismissed.
ANALYSIS AND FINDINGS
11. Heard Ld. Counsel for Appellants, Ld. Counsel for complainant/respondent and perused the appeal file as well as the Trial Court Record. In the present case, the appellants have admitted the signatures of the Director i.e. appellant No. 2 on the cheque in question. Though the appellant no. 2 denied the receipt of the Legal Notice, however, he had admitted that the address on the Legal Notice is his address. Though he stated that when legal notice was served upon him, he had changed his address, however, he has not adduced any evidence in this regard. The Ld. MM while noting these facts has rightly held that the presumption u/s 118 and 139 NI Act is in favour Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20
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of the complainant / respondent. It is settled law that the said presumption is rebuttable in nature and in order to rebut the presumption, it is not imperative for the accused to lead direct / definite evidence. The accused even by relying on the facts and circumstances of the case as well as upon the flaws in evidence of the complainant/respondent can rebut the presumption. Now coming to the grounds of the appeal.
12. One of the grounds of the appeal is that the Ld. MM has not considered that the complainant/respondent had not filed the complaint case through an Authorized Representative. It had been argued by the ld. Counsel for appellants that the complainant/respondent failed to file the resolution Ex.CW1/1. Further, the documents Ex.CW1/7 and Ex.CW1/D1 are similar documents having different days written on them, which shows that they are forged and fabricated. They have been filed without any certificate under S. 65-B IEA. It is further argued by ld. Counsel for appellants that GPA Ex.CW1/1 was executed for a period of 2 years. The same was executed on 28.12.2012 and was valid till December 2014. However, CW1 has been examined in the court on 18.11.2016. He had no valid authority on 18.11.2016 to depose on behalf of the Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20 14:35:09 +0530 Page 12 of 21 company. Further, the resolutions Ex.CW1/7 and Ex.CW1/D1 which are more in the nature of ratification, does not authorize CW1 to depose on behalf of the complainant/respondent.
13. I have perused Ex.CW1/1, Ex.CW1/7 and Ex.CW1/D1. Ex.CW1/A is the General Power of Attorney executed on 28.12.2012 in favor of Ashok Mittal for a period of 2 years till December 2014. I have also perused Ex.CW1/7 and Ex.CW1/D1. Both these extracts of minutes of the meeting are dated 23.10.2016 at 12 noon, however, the day is different on both the said minutes. The day on Ex.CW1/7 is "Friday" and the day on Ex.CW1/D1 is "Sunday". It is settled law that company being a juristic person will always be represented by a natural person who is duly authorized by the company. What is necessary to be taken note of, is as to whether the contents as available in the complaint / pleading would convey the meaning to the effect that the person who has filed the complaint is stated to be authorized and claims to have knowledge of the same. In the present case, CW1 has filed valid GPA Ex.CW1/A when he filed the present complaint. He has also filed the authorization Ex.CW1/7 and Ex.CW1/D1 both dated 23.10.2016. As per record, he was examined on 18.11.2016. Thus he had valid authorization on 18.11.2016. Merely because the Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20
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day is mentioned differently in both these exhibits is not fatal to the case of complainant / respondent. Further CW1 during his cross examination on 18.11.2016 has clearly explained that he is associated and working with the complainant/respondent company for the last 40 years. The ld. MM while keeping in view all these documents and the relevant portion of the cross-examination of CW1 has rightly held that the appellants have failed to show that the authorization in favor of CW1 is not proper. There is no infirmity in the findings of the Ld. MM on the said aspect.
14. It had been argued by ld. Counsel for appellants that the FOREX transaction done by the complainant/respondent is in contravention with the mandatory rules of RBI. The appellants have filed the circular Ex.D1 from RBI, however, the concerned witness was never examined or put to cross examination before the ld. MM. Further, the said argument is contrary to the plea taken by the appellants while framing of the notice under S. 251 Cr.P.C. In the said notice, the appellants duly admitted their signatures on the cheque and stated that the amount has already been paid through bank transfers through ICICI Bank. Hence, the plea taken by the counsel for appellants is without any basis and of no relevance.
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2024.04.20
14:35:25
+0530
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15. It had been argued by the Ld. Counsel for appellants that the complainant/respondent has failed to prove the factum of presentation and dishonor of cheque in question. The said plea is also without any basis as the return memo Ex.CW1/3 has been duly proved by the complainant/respondent and it bears proper stamp of the concerned bank.
16. The main defence of the appellants is that the cheque amount has already been paid through bank transfers through ICICI Bank to the complainant/respondent. Admittedly, no evidence on the said aspect was led by the complainant/respondent before the ld. MM. Vide order dated 15.05.2023, the appellants took permission to examine appellant no. 2 and concerned official from ICICI Bank to prove that the cheque amount was duly subsequently transferred in the account of complainant/respondent. However, the appellants before the ld. MM have examined only Sh. Neeraj Sharma, Relationship Manager, ICICI Bank, Janakpuri Branch as DW2. He produced the copy of statement of account of M/s Taurus Global Travel Management Services Pvt. Ltd. for the period from 01.04.2013 to 30.04.2013 Ex.DW2/B. It had been argued by the ld. Counsel for Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20 14:35:31 +0530 Page 15 of 21 appellants that appellants have transferred the following amounts in the account of the complainant/respondent towards payment of the cheque amount. The amounts so highlighted in the Ex.DW2/B are as follows:
Date Amount (Rs.)
08.04.2013 4,90,000/-
09.04.2013 2,50,000/-
10.04.2013 1,00,000/-
10.04.2013 1,50,000/-
11.04.2013 7,374/-
12.04.2013 1,00,000/-
13.04.2013 50,000/-
15.04.2013 10,000/-
16.04.2013 40,000/-
17.04.2013 50,000/-
Total 12,47,374/-
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2024.04.20
14:35:41
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17. It is submitted by the counsel for appellants that the appellants have duly paid the cheque amount to the complainant/respondent on the abovesaid dates after the dishonor of the cheque dated 05.04.2013. Per contra, it had been argued by the ld.
Counsel for complainant/respondent that the statement Ex.DW2/B is manipulated statement of account. It is further argued that the Ex.DW2/X1 is entirely different from Ex.DW2/B which shows that the same is manipulated and cannot be relied upon.
18. I have perused both the statements Ex.DW2/B and Ex.DW2/X1. They are in different formats. Merely because the formats of both the statement of account is different, it does not leads to the inference that Ex.DW2/B is a manipulated statement of account in the absence of any other cogent evidence.
19. During arguments, ld. Counsel for complainant /respondent was asked to explain about the various entries relied upon by the counsel for appellants, however, he is unable to give any satisfactory explanation about the same. It is pertinent to mention herein that all the appellants at the time of framing of the notice before Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20 14:35:47 +0530 Page 17 of 21 the ld. MM have stated that the cheque amount has already been paid through bank transfers from ICICI Bank. Admittedly, in the entire cross-examination of CW1, there is no suggestion regarding the payment of these amounts subsequently in the account of the complainant/respondent company. Now, the appellants have placed on record the statement of account Ex.DW2/B to show that various payments were made / transferred in the account of the complainant/respondent company as discussed above. The question for consideration is whether from the entries as shown in statement of account Ex.DW2/B, the appellants have proved that they have repaid the amount of the cheque in question to the complainant/respondent and rebutted the presumption in favor of respondent / complainant.
20. The presumption mentioned in the section 139 NI Act is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show non-existence of liability. Keeping in view that this is a departure from the cardinal rule of 'presumption of innocence' in favor of the accused and that negative evidence is not easy to be led by its very nature, it is now settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack Digitally signed by Kiran Kiran Gupta Gupta Date:
2024.04.20 14:35:54 +0530 Page 18 of 21 of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person, ought under the circumstances of the case, act on the supposition that it does not exist. He can do so either by leading own evidence in his defence or even by punching holes in the case of the complainant/respondent in the testing ordeal of cross-examination. (Reliance placed on the judgment -Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16).
21. If the pleadings of complainant/respondent are scrutinized in a chronological manner, it is not the case of the complainant/respondent that there were other transactions also between the parties, after the dishonor of the cheque in question. In fact, the complainant/respondent in its complaint has stated that the amount was either paid less or payment was delayed. Meaning thereby that the amount was paid in parts by the appellants. Though the complainant / respondent has stated that the payment so received was duly credited in the account books opened in the name of appellants, however, no account books or statement of account has been filed by the complainant/respondent. As discussed above, the ld. Counsel for Digitally signed by Kiran Kiran Gupta Gupta Date:
2024.04.20 14:36:03 +0530 Page 19 of 21 complainant/respondent was specifically asked about the payments as reflected in Ex.DW2/B. He gave evasive reply that the same was towards other transactions, without explaining the nature of the other transactions. Thus, from the statement Ex.DW2/B, it is evident that amount on various dates have been transferred by appellants in the account of respondent / complainant. The argument of ld. Counsel for complainant/respondent that the cheque was issued from State Bank of Hyderabad and the Ex.DW2/B is of ICICI Bank is irrelevant as the appellants during their statement under S. 251 Cr.P.C. have categorically stated that the amount has already been paid through ICICI Bank and consequently proved the same as Ex.DW2/B.
22. In view of the above discussion and specifically the account statement Ex.DW2/B, the appellants have proved that they had transferred various amounts in the account of the complainant / respondent towards payment of the cheque in question, specifically in view of the entry for the amount of Rs. 7,374/- dated 11.04.2013 and have rebutted the presumption. The appellants have raised probable defence on preponderance of probabilities by examining DW2 and relying upon the various entries in the Ex.DW2/B. Digitally signed by Kiran Kiran Gupta Date:
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23. In view of the above discussion and reasoning, the impugned judgment dated 02.11.2022 and order on sentence dated 21.11.2022 are set aside. The appellants/accused persons are acquitted u/s 138 NI Act. The appeal is allowed. Parties to bear their own cost of appeal.
TCR be sent back alongwith the copy of this judgment. Trial Court be intimated accordingly. Appeal file be consigned to Record Room after necessary compliance.
Digitally signed by Kiran Kiran Gupta Date:
Gupta 2024.04.20 14:36:19 +0530 Announced in the KIRAN GUPTA open court on 20.04.2024 ADDL. SESSIONS JUDGE-04, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, DELHI/20.04.2024 Page 21 of 21