Delhi District Court
He Relied Upon Judgement In The Cases Of ... vs . Vinkar on 28 January, 2022
IN THE COURT OF SH. KAPIL GUPTA,
METROPOLITAN MAGISTRATE (NI ACT)-07,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Case No.5000978/2016
CNR No.DLSW02-003798-2013
Jagdish Chandra ............Complainant
Versus
Sanjay Singh & Anr. .............Accused
JUDGEMENT
(1) Name of the complainant, Jagdish Chandra
parentage and address S/o Shri Narender Prasad,
R/o Flat No.85, G. Floor,
Pocket-6, Nasirpur, Dwarka,
New Delhi-110045.
(2) Name of the accused, 1. Sanjay Singh
parentage and address S/o Shri Mallan Singh,
R/o Church Compound
Tikonia, Nainital Road,
Haldwani, Uttarakhand.
2. Mohd. Rizwan Ansari,
S/o Mohd. Yusuf Ansari,
Ct. Case No.5000978/2016 Page 1 of 35
R/o Forest Compound Ram
Nagar, District Nainital,
Uttarakhand (not summoned).
(3) Offence complained of or U/s 138 NI Act
proved
(4) Plea of accused Pleaded not guilty.
(5) Date of institution of case 30.09.2013
(6) Date of conclusion of 10.12.2021
arguments
(7) Date of Final Order 28.01.2022
(8) Final Order Acquitted.
1. The complainant, Jagdish Chandra had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act') against the accused persons, Sanjay Singh and Mohd Rizwan Ansari. As per order of the Ld. Predecessor of the court dated 19.10.2013, only accused no. 1 Sanjay Singh was summoned in the present case.
2. As per complainant, accused no.1 is a property dealer based in Uttarakhand and had cordial and friendly relations with him and in the month of January, 2011, he disclosed his intention to accused no.1 to purchase some property in Uttarakhand and in the end of month of April, 2011, the accused no.1 along with accused no.2 (not summoned) came to Delhi and met him alongwith Sh. Parvez Akhtar, who was a common friend, at his office and it was represented by accused no.1 and accused no.2 that accused no.2 is the owner and in possession of a property situated Ct. Case No.5000978/2016 Page 2 of 35 in Village Jassa Ganja, Tehsil Ram Nagar, Distt. Nainital, Uttarakhand and showed certain papers allegedly connected with the property and offered to sell the said property for a total sum of Rs.60,00,000/- (Rupees Sixty Lakhs only). It is stated that the complainant agreed to purchase the said property and out of total sale consideration, all cash transactions had to be done in the name of the accused no.2 in Delhi and the amount payable by cheque, draft or transfer of money through bank accounts had to be done in the name of accused no.1 and thereafter Ikrarnama dated 27.07.2011 got prepared by accused no.1 and accused no.2 with which they reached the office of the complainant at Delhi. As per the complainant, the original Ikararnama/agreement is in possession of accused no. 1 and coloured photocopy of the same is in his possession. It is further stated that a sum of Rs.15,00,000/- (Rupees fifteen lakh only) in cash was paid to the accused no.1 and accused no.2 and the agreement was signed at Delhi by accused no.2 and the complainant in presence of Sh. Parvez Akhtar and further accused no.1 also signed the same as one of the witnesses and it was settled that the entire payment was to be made by the complainant within 6 months from 27.07.2011 and upon failure of making the payment within such period, Rs.15,00,000/- (Rupees fifteen lakh only) paid by the complainant, shall stand forfeited and if accused no.2 fails to execute the sale deed in favour of complainant within the stipulated period, he shall make a payment equal to the double of the amount received by him i.e. Rs. 30,00,000/- (Rupees thirty lakh only). It is also stated that thereafter, complainant paid Rs. 20,00,000/- (Rupees twenty lakh only) in cash to accused no. 2 on 31.08.2011 at his Delhi office in the presence of Sh. Parvez Akhtar at the instance of accused no.1 and a post dated cheque for a sum of Rs.7,50,000/- (Rupees seven lakh fifty thousand only) bearing Ct. Case No.5000978/2016 Page 3 of 35 no.837691 dated 01.09.2011 drawn on Corporation Bank, Mahipal Pur, New Delhi issued in favour of accused no. 1 was also handed over to the accused no.1 and accused no. 2 and as such a total sum of Rs. 42,50,000/- (Rupees forty two lakh fifty thousand only) was paid by the complainant to the accused no. 1 and accused no. 2 and Rs.17,50,000/- (Rupees seventeen lakh fifty thousand only) remained balance to be paid by the complainant. It is stated that in the month of November, 2011, complainant purchased the requisite stamp papers for execution of Sale Deed by accused no. 2 in his favour but accused no.1 and accused no.2 avoided to execute the Sale Deed. It is further stated that thereafter in the mid of month of December, 2011, the complainant had convened a meeting at his office in Delhi which was attended by accused no. 1, accused no. 2 and Sh.Parvez Akhtar and it was told by the complainant to accused no. 1 and accused no. 2 to either execute the sale deed by the end of month of December, 2011 or on or before the expiry of six months period or return the amount paid by him upon which accused no.1 and accused no.2 showed their inability to execute the sale deed in favour of the complainant and promised to return the amount received by them in terms of Agreement dated 27.07.2011. It is further stated that thereafter, accused no.1 undertook to make the payment of the amount which had been paid by the complainant to accused no.2 in cash and to the accused no.1 through account payee cheque and sought minimum one year period for making the entire such payment, however, still did not make the payment upon expiry of such period and sought further time to make the payment till the month of June, 2013. It is further alleged that the accused no.1, in the month of December, 2012, towards partly discharging the liability of making the payment for and on behalf of himself and accused no.2, issued two post Ct. Case No.5000978/2016 Page 4 of 35 dated cheques of Rs. 15,00,000/- (Rupees fifteen lakh only) each, bearing nos. 669827 and 669829, both dated 01.06.2013 drawn on Oriental Bank of Commerce, Haldwani in the name of the complainant's firm and handed over the same to the complainant at his office in Delhi. The complainant alleged that on presentment of cheques in issue for encashment in the account of his firm M/s N.S. Transport, the same were dishonoured for the reason "Account Closed" vide cheque return memos dated 08.08.2013. Thereafter, complainant got issued legal demand notice dated 27.08.2013 to the accused persons, which was replied to by accused no. 2, despite which the accused persons failed to repay the amount. Thereafter, complainant filed the present complaint case.
3. In his pre-summoning evidence, the complainant examined himself as CW1 vide his affidavit Ex.CW1/A. He reiterated the contents of the complaint and placed on record, copy of his voted ID Card as Ex. CW 1/1, copy of Partnership Deed as Ex. CW 1/2, Agreement dated 27.07.2011 as Ex. CW 1/3, Cheque bearing no. 669827 for Rs. 15,00,000/- (Rupees Fifteen Lakh only) dated 01.06.2013 drawn on Oriental Bank of Commerce, Haldwani as Ex.CW1/4, Cheque bearing no. 669829 for Rs. 15,00,000/-(Rupees Fifteen Lakh only) dated 01.06.2013 drawn on Oriental Bank of Commerce, Haldwani as Ex.CW1/5, Bank Returning Memo for cheque bearing no. 669827 dated 08.08.2013 as Ex.CW1/6, Bank Returning Memo for cheque bearing no. 669829 dated 08.08.2013 as Ex.CW1/7, legal demand notice dated 27.08.2013 as Ex.CW1/8, postal receipts as Ex.CW1/9 and Ex.CW1/10, returned AD Cards as Ex.CW1/11 and Ex.CW1/12 and the complaint as Ex. C-1.
Ct. Case No.5000978/2016 Page 5 of 354. The accused no. 1, Sanjay Singh was only summoned and notice under Section 251 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') was served upon him on 17.04.2014, to which he pleaded not guilty and claimed trial. He stated that he never approached the complainant for the sale of property and had not received any payment from the complainant and that he did not issue the cheques in issue in discharge of any liability. He further stated that the complainant was his friend and had taken away his blank signed cheques, which are the cheques in issue, from his office without his knowledge. He also stated that he had filed a complaint against the complainant at PS Haldwani. He admitted receiving the legal demand notice.
5. Thereafter, the complainant examined himself as CW-1, wherein he adopted his version as recorded in pre summoning evidence Ex.CW1/A in the post summoning evidence as well.
6. In his cross-examination conducted on behalf of accused, he stated that he did not have any proof to show that the accused was a property dealer, however, voluntarily stated that the accused had told him the same. He admitted that accused Sanjay Singh also runs a coaching centre and whenever he used to visit Uttarakhand, he used to stay at the house of accused. He stated that Parvez Akhtar approached him for the sale of property in April, 2011 and further voluntarily stated that he was accompanied by Sanjay Singh and Mohd Rijwan. He denied the suggestion that he personally knew Rijwan Ansari and voluntarily stated that he had never met him before the sale transaction in question. He stated that no documents were shown to him when the accused approached him Ct. Case No.5000978/2016 Page 6 of 35 for the sale of property and voluntarily stated that he was shown property in question by the accused in presence of Rijwan Ansari. He further stated that agreement Ex.CW1/3 was entered into between him and Rijwan Ansari in the period of 20-25 July, 2011, however, admitted that in his complaint he had written the date of execution of agreement Ex.CW1/3 as 27.07.2011 and stated that agreement Ex.CW1/3 was executed at his house in Delhi and was signed on the same date on which it was executed. He further stated that he had given an amount of Rs.15,00,000/- (Rupees fifteen lakh only) in cash in the hands of the accused Sanjay Singh. He further stated that he did not know in whose name the property in question was registered, however, voluntarily stated that he was told by accused Sanjay Singh that the same was registered in the name of Rijwan Ansari. He stated that no separate payment receipt was executed and voluntarily stated that payment was only written in agreement Ex.CW1/3. He denied the suggestion that he had prepared the agreement Ex.CW1/3 and had reached the office of accused Sanjay Singh along with Rijwan Ansari and handed over the amount of Rs. 15,00,000/- (Rupees fifteen lakh only) to Rijwan Ansari in the presence of accused Sanjay Singh and that is why the accused Sanjay Singh was made to sign the agreement Ex.CW1/3 as a witness. He further voluntarily stated that all the payments were made by him to the accused Sanjay Singh and the original copy of the agreement Ex.CW1/3 is in possession of the accused Sanjay Singh. He further stated that a period of six months starting from 27.07.2011 was fixed for execution of the sale deed and voluntarily stated that he had purchased stamp papers and also made a payment of Rs.20,00,000/- (Rupees twenty lakh only) on 31.08.2014 and handed over a cheque dated 01.09.2011 for an amount of Rs.7,50,000/- (Rupees seven lakh fifty thousand only) in Ct. Case No.5000978/2016 Page 7 of 35 favour of the accused Sanjay Singh, however, admitted not placing on record the stamp paper. He admitted that upon refusal of accused Sanjay Singh and Rijwan Ansari to execute the sale deed in his favour, he did not make any complaint to any authority and no legal notice was sent to the accused for executing the sale deed. He also stated that payment of Rs.20,00,000/- (Rupees twenty lakh only) was given to accused Sanjay Singh on 31.08.2011 at his house in the presence of Rijwan Ansari and Parvez Akhar and the receipt of the same was given by accused and Rijwan Ansari at the back of the agreement Ex.CW1/3, however, admitted that at the back of agreement Ex.CW1/3, the receiving of Rs. 20,00,000/- (Rupees twenty lakh only) is only signed by Rijwan Ansari. He further stated that the cheques in issue were given to him by the accused at Delhi in a meeting in the month of December, 2012 where Parvez Akhtar and accused Sanjay Singh were present. He admitted filling the name of the payee on the cheques in issue and stated that the date and amount were already filled when the cheques in issue were handed over by the accused to him. He stated that he had shown the transaction in his income tax return and voluntarily stated that the same is reflected in his balance sheet. Thereafter, he brought his income tax return for the year 2012-13 which was exhibited as Ex.CW1/13. He further stated that name of the payee filled by him in the cheques in issue is the name of his partnership firm and admitted that he did not place on record any authority letter in his favour by payee N.S. Transport Service and stated that he has filed the present complaint case in his individual capacity. He further stated that he had given a sum of Rs.7,50,000/- (Rupees seven lakh fifty thousand only) to accused Sanjay Singh by way of cheque, which was drawn on his own account. He denied the suggestion that such cheque of Rs. 7,50,000/-
Ct. Case No.5000978/2016 Page 8 of 35(Rupees seven lakh fifty thousand only) was neither of his account nor was given by him is respect of sale transaction and further denied the suggestion that such cheque of Rs. 7,50,000/- (Rupees seven lakh fifty thousand only) was drawn on account of one person namely Parvez and was given by him in respect of a different transaction. He admitted that he has not placed on record any document/receiving to show that an amount of Rs.7,50,000/- (Rupees seven lakh fifty thousand only) was given by him to the accused Sanjay Singh, however, he voluntarily stated that his statement of account shows the same. A pass book was placed on record by the complainant which was marked as Mark - A to show entry of Rs. 7,50,000/- (Rupees seven lakh fifty thousand only) to the accused Sanjay Singh at Point X. The complainant denied the suggestion that such entry shown in his passbook at point X pertains to a different transaction, as he used to have regular transactions with the accused. He denied the suggestion that Ex. CW1/13 is irrelevant as it does not pertain to his individual account.
7. Sh. Deepender, Manager, Corporation Bank was examined as CW2 and he placed on record his authority letter as Ex.CW2/A. He deposed that as per record, cheque bearing no.837691 was encashed from the account of the account holder Jagdish Chandra and was credited to a person namely Sanjay Singh and the statement of account of the account holder was exhibited as Ex.CW2/B which reflected the transaction at point B-1. A copy of the cheque bearing no. 837691 amounting to Rs. 7,50,000/- (Rupees seven lakh fifty thousand only) dated 01.09.2011 was marked as Mark CW2/X. Ct. Case No.5000978/2016 Page 9 of 35 During cross examination he stated that he has not placed on record certificate under Section 65 B of the Indian Evidence Act, 1872 along with account statement Ex.CW2/B.
8. Vide order of the Ld. Predecessor of the court dated 27.07.2016, the application of the complainant to examine additional witness was allowed and Sh. Parvez Akhtar was examined as CW3 vide his evidence by way of affidavit exhibited as Ex.CW3/1.
During his cross-examination, he stated that accused is running property business and he knew the accused since his childhood and that he knew the complainant for last 15 years. He stated that his wife namely Mumtaz used to be the partner in Raise Cargo and the accused had monetary transaction in Raise Cargo and there may be dues towards the accused pending on behalf of the said Raise Cargo. He further stated that the complainant met the accused in the year 2008 through him, when the accused had come to Delhi. He further stated that the complainant showed his intention to him for purchase of property in Haldwani and voluntarily stated that he had told the complainant to approach Sanjay to purchase the property. He further stated that the property papers were shown to them. He also stated that Ikrarnama/agreement was executed on 27.07.2011 in the office of complainant at Nasirpur, Dwarka and that the agreement was brought duly typed by both the accused persons and at the time of agreement, amount of Rs.15,00,000/- (Rupees fifteen lakh only) was handed over by the complainant to the accused persons. He further stated that the amount of Rs.15,00,000/- (Rupees fifteen lakh only) was handed over to accused Sanjay. He also stated that payment of Rs.20,00,000/- (Rupees twenty lakh only) in cash was handed over by the complainant to Ct. Case No.5000978/2016 Page 10 of 35 the accused in his presence and cheque of Rs.7,50,000/- (Rupees seven lakh fifty thousand only) was also handed over in the name of the accused. He further stated that Sanjay Singh signed as a witness to the agreement and there was no receipt executed by the accused in respect of the amount of Rs.20,00,000/- (Rupees twenty lakh only). He further stated that the accused showed them the property documents but they did not take and ask for a copy of the same. He further stated that he had seen the cheque given by the accused at the time when the same was handed over to the complainant. He further stated that the entire cheque was filled by the accused except the name of the drawer.
9. Statement of the accused under Section 313 CrPC was recorded for the first time on 29.01.2015, wherein all the incriminating evidence was put to him and the accused stated that he was not doing any business of property dealing under the name of Friends properties. He further stated that complainant did not approach him to buy any property and even he did not approach the complainant to sell any property. He stated that the complainant came to his coaching centre along with Rizwan Ansari and Parvez Akhtar and told him that he was buying a property from Rizwan Ansari and asked him to become a witness to the agreement in respect of the said property and he signed the agreement at the instance of the complainant. He further stated that an amount of Rs.15,00,000/- (Rupees fifteen lakh only) was handed over by the complainant to Rizwan Ansari. He also stated that he does not know about payment of Rs.20,00,000/- (Rupees twenty lakh only) made by complainant to Rizwan Ansari and stated that an amount of Rs.7,50,000/- (Rupees seven lakh fifty thousand only) was received by him from the complainant, as he and the Ct. Case No.5000978/2016 Page 11 of 35 complainant were having regular loan dealings with each other. He further stated that cheques in issue were not delivered by him to the complainant and that his cheque book containing blank signed cheques was stolen from his office and the cheques in issue are the leaves of such stolen cheque book and the complainant has misused the same. He stated that except signatures, he did not fill any other particulars in the cheques in issue and denied receiving the legal demand notice. He further stated that on 31.08.2011, the complainant had returned his amount, which was duly credited in his account and such amount has nothing to do with the property transaction between the complainant and Rizwan Ansari.
In his additional statement u/s 313 CrPC recorded on 05.04.2017, accused denied that the payment as alleged in the complaint was made to him in the presence of CW3 Parvez Akhtar and stated that he has filed a case against Parvez Akhtar in Haldwani u/s 138 NI Act.
10. The accused in his defence evidence examined himself as DW1 wherein he deposed that he was running a coaching centre at Nainital Road, Haldwani, Uttarakhand and he met complainant through a common friend Parvez Akhtar. He further deposed that in the year 2011, the complainant along with Parvez Akhtar and Rizwan Ansari came to his coaching centre and complainant and Parvez Akhtar told him that they are dealing/buying some property from Rizwan Ansari at some place called Ram Nagar and told him that they are making payment of Rs.15,00,000/- (Rupees fifteen lakh only) to Rizwan Ansari and asked him to be a witness to the said transaction. Thereafter, a receipt of Rs.15,00,000/- (Rupees fifteen lakh only) was executed between the complainant, Parvez Akhtar and Rizwan Ansari and he signed as a witness on the said payment receipt.
Ct. Case No.5000978/2016 Page 12 of 35He also deposed that he used to have monetary transactions with the complainant and their common friend Parvez Akhtar wherein he used to take money from them and also lend money to them. He further deposed that he had given Rs.5,00,000/- (Rupees five lakh only) to the complainant as a loan through cheque on 28.04.2012 which is also reflected in his statement of account marked as Mark D-1 at point X-1 and complainant and Parvez Akhtar had given him a cheque of Rs. 4,00,000/- (Rupees four lakh only) for repaying the loan which they had jointly taken from him, however, the said cheque was dishonoured and a case pertaining to the same was initially filed by him in Haldwani Courts and now the same is transferred and pending in Patiala House Courts and a copy of the same was marked as Mark D-2. He further deposed that after receiving notice of this case from the court, he checked for his cheque book in his office and found that the entire cheque book of Oriental Bank, Haldwani branch is missing from his drawer. He further deposed that he had already closed the said account in the year 2011 and his cheque book was lying as such and cheques in issue Ex.CW1/4 and Ex.CW1/5 were part of the said cheque book and such cheques were never issued by him in discharge of any liability. He further deposed that he did not enter into any property transaction with the complainant and had not received any amount from the complainant in respect of the same.
11. The accused was cross examined on behalf of the complainant wherein he admitted that AD card Ex.CW1/11 bears his correct address and also bears his signature in Hindi and further that legal demand notice Ex.CW1/8 bears his correct address. He stated that he is running a coaching centre and denied that he was running a business in the name of Ct. Case No.5000978/2016 Page 13 of 35 Friends Properties from his property at Tehsil Pulia, Nainital Road, Haldwani. He denied the suggestion that in January, 2011, complainant told him that he is interested in buying a property in Nainital. He further denied the suggestion that in April, 2011, he along with Rizwan Ansari and Parvez Akhtar approached the complainant at his office in Delhi and represented him that Rizwan Ansari is interested in selling his property at Tehsil Ram Nagar. He stated that he is not aware about any payment of Rs.20,00,000/- (Rupees twenty lakh only) made by the complainant to Rizwan Ansari on 31.08.2011. He admitted receiving legal demand notice Ex. CW1/8. He admitted not placing on record any document to show that Ex CW1/4 and CW 1/5 were stolen from his office or any document pertaining to his monetary transaction with the complainant and voluntarily stated that transaction used to take place orally without execution of any documents. He stated that he is an income tax payee and has not mentioned the money granted by him to the complainant or to Rays Cargo in his income tax return. He denied the other suggestions put to him on behalf of the complainant.
12. I have heard the final arguments as advanced by Ld counsel for parties at length and have given my thoughtful consideration to rival submissions made by them. I have also gone through the written arguments filed on behalf of the parties and other material placed on record.
13. During the course of final arguments, Ld. counsel for the complainant submitted that the accused had issued the cheques in issue in partial discharge of liability and has admitted his signature on them and thus presumption under Section 139 of the NI Act is raised in favour of the Ct. Case No.5000978/2016 Page 14 of 35 complainant. He argued that the complainant was the holder in due course qua the cheques in issue and was thus competent to file the present complaint. He contended that the property of the partnership firm is the property of the partner and vice versa thus, the present case qua the cheques which were issued for repayment of the amount paid by the complainant, is maintainable. He stated that the complainant had filled the name of the partnership firm as payee in the cheques in issue in his wisdom and the same does not prejudice the maintainability of the case in any manner. He lastly argued that all ingredients under Section 138 NI Act have been proved by the complainant and hence the accused must be convicted. He relied upon judgement in the cases of Punjab & Sind Bank vs. Vinkar Sahakari Bank Ltd., (2001) 7 SCC 721 of the Hon'ble Supreme Court of India, Ashok Kumar vs. Dr. T.R. Bhageerathi, 2009 CRI. L.J. 221 of the Hon'ble High Court of Karnataka, Shanish Kumar Mishra vs. State of UP & Ors., 2014 LawSuit (All) 3623 of the Hon'ble High Court of Allahabad, Jugesh Sehgal vs. Shamsher Singh Gogi, 2009 (3) JCC (NI) 210 of the Hon'ble Supreme Court of India, Rangappa vs. Mohan, AIR 2010 SC 1898 of the Hon'ble Supreme Court of India, B.M. Basavaraj vs. Srinivas S. Datta, IV (2016) SLT 155 of the Hon'ble Supreme Court of India, Mukesh Kumar vs. State & Anr, 237 (2017) DLT 657 of the Hon'ble High Court of Delhi, V.S. Yadav vs. Reena, 172 (2010) DLT 561 of the Hon'ble High Court of Delhi, Deepak Kumar vs. State & Anr., 2019 (3) DCR 137 of the Hon'ble High Court of Delhi, Dilip Kumar vs. Sunita Mittal, 239 (2017) DLT 34 of the Hon'ble High Court of Delhi, N. Khadervali Saheb (Dead) by LRs vs. N. Gudu Sahib (Dead) & Ors, (2003) 3 SCC 229 of the Hon'ble Supreme Court of India, M/s Malabar Fisheries Co. vs. The CIT, Kerala AIR 1980 SC 176 of the Hon'ble Supreme Court of India, V. Subramaniam Ct. Case No.5000978/2016 Page 15 of 35 vs. Rajesh Raghuvandra Rao, AIR 2009 SC 1858 of the Hon'ble Supreme Court of India and Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr, Criminal Appeal No. 1105 of 2021 decided by the Hon'ble Supreme Court. Further the following judgements were mentioned in the written arguments filed on behalf of the complainant: Ravi Chopra vs. State & Anr., 2008 (2) JCC (NI) 169, Bir Singh vs. Mukesh Kumar, 2019 (1) DCR 401, Shri Daneshwari Traders vs. Sanjay Jain & Ors, 2020 (1) JCC, Suresh Chandra Goyal vs. Amit Singhal, Cr.L.P. 706/2014 of the Hon'ble High Court of Delhi, ICDS Ltd vs. Beena Shabeer & Anr, 2002 (6) SCC 426, Credential Leasing & Credits vs. Shruti Investments & Anr, 2015 (151) DRJ 147, Gopa Plast (P) Ltd vs. Chicoursula D'Souza & Anr., (2003) 3 SCC 232.
14. Per contra, Ld. counsel for the accused argued that the present complaint is not maintainable as it has been filed by the complainant Jagdish Chandra in his personal capacity whereas admittedly the cheques in issue have been drawn in favour of a partnership firm namely "N.S. Transport Service", of which the complainant is a partner. He submitted that the payee of the cheques in issue did not endorse the cheques in favour of the complainant in his individual capacity and thus present complaint could not have been filed by the complainant in his personal capacity. He relied upon the judgement of the Hon'ble Supreme Court of India in the case titled as National Small Industries Corp. Ltd. vs. State (NCT of Delhi), Crl Appeal No. 1803-1821/2008 and judgement of the Hon'ble High Court of Delhi in the case titled as Suresh Sharma vs M/s New Coolwell Industries & Ors., Crl Appeal No. 745/2007 in support of his Ct. Case No.5000978/2016 Page 16 of 35 claim. He prayed that the accused be acquitted of the offence u/s 138 NI Act.
15. Before proceeding further, it would be appropriate to reproduce Section 138 of the NI Act which provides as follows:
Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account.
1[Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for 2[a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 3[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the Ct. Case No.5000978/2016 Page 17 of 35 holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, debt of other liability means a legally enforceable debt or other liability.
Further, the above ingredients of Section 138 NI Act have been discussed in the judgement relied upon by the complainant in the case titled as Jugesh Sehgal vs. Shamsher Singh Gogi, 2009 (3) JCC (NI) 210 decided by the Hon'ble Supreme Court of India.
16. It is not in dispute that Section 138 of NI Act contemplates that on fulfilment of requirement as per proviso (a) to (c), offence under Section 138 of NI Act is made out and only thereafter, the cause of action for filing a complaint arises.
17. In the present case, it has to be seen whether the complainant has made out a case by complying with the provisions required under proviso
(a) to (c) of Section 138 of NI Act. Admittedly, the payee of the cheques in issue Ex. CW 1/4 and Ex. CW 1/5 is NS Transport Service. Complainant has relied upon Ex. CW 1/2, which is stated to be a partnership deed, to contend that he is a partner in the payee firm. Perusal of Ex. CW 1/2 prime facie indicates that the complainant is a partner of the payee partnership firm, however, the deed is silent on the aspect of the complainant being authorised to file the present complaint case.
18. At this juncture, it is pertinent to mention that Section 142 of the NI Act provides as follows:
Section 142. Cognizance of offences.Ct. Case No.5000978/2016 Page 18 of 35
1[(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
2[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.].
3[(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--
(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
Explanation.-- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.]
19. Section 142 (1) (a) of the NI Act stipulates that no Court shall take cognizance of any offence punishable under Section 138 of NI Act, except Ct. Case No.5000978/2016 Page 19 of 35 on a complaint, in writing made by the 'payee' or, as the case may be, the 'holder in due course' of the cheque.
20. In the case titled as National Small Industries Corporation Ltd. vs. State (NCT of Delhi) & Ors., (2009) 1 SCC 407, the Hon'ble Supreme Court held as under:
"The term "complainant" is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course)..."
Thus, in view of the above, the law stands crystallised that a person can institute a complaint only if such person is either a 'payee' or 'holder in due course' of the cheque.
21. Admittedly, the complaint has been filed by the complainant in his personal capacity. At this juncture, it is pertinent to see whether the complainant had the locus standi to file the present complaint in his personal capacity and for determining the same, following provisions of the NI Act are relevant for consideration:
"Section 8. 'Holder'.--The 'holder' of a promissory note, bill of exchange or cheque means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto.
Where the note, bill or cheque is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction."
"Section 9. 'Holder in due course'.--'Holder in due course' means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable, and without Ct. Case No.5000978/2016 Page 20 of 35 having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title."
"Section 14. Negotiation.--When a promissory note, bill of exchange or cheque is transferred to any person, so as to constitute that person the holder thereof, the instrument is said to be negotiated."
22. From a perusal of the above provisions, it is observed that mere possession of the cheque is not sufficient to become a holder and one becomes a holder of a cheque only when the requirements stipulated by above stated provisions have been complied with.
23. Further, it has been held by the Hon'ble High Court of Andhra Pradesh in the case titled as M. Ethirajulu vs. Rangam Adinarayana and Others, 2005 SCC OnLine AP 1081 as follows:
9. The term "indorsement" has been defined under Section 15 of the Negotiable Instruments Act, which reads as under :
"15. Indorsement.--When the maker or holder of a negotiable instrument signs the same, otherwise than as such maker, for the purpose of negotiation, on the back or face thereof or on a slip of paper annexed thereto, or so signs for the same purpose a stamped paper intended to be completed as a negotiable instrument, he is said to indorse the same and is called the indorser."
10. This clearly shows that the holder of a cheque for the purpose of negotiation of the same shall sign on the back or face of the cheque or on a separate slip annexed thereto. Then only he is said to have endorsed the same for the purpose of negotiation.
**
12. A combined reading of the above provisions clearly shows that a promissory note, bill of exchange or a cheque can be negotiated or transferred by making an endorsement either on the instrument or on a separate paper annexed thereto. The transferee of such instrument becomes the holder if that person Ct. Case No.5000978/2016 Page 21 of 35 is entitled in his own name to the possession thereof when it is transferred in his favour by making the necessary endorsement. The holder of a cheque becomes holder in due course only when he has become the possessor thereof for consideration without knowing any defect existed in the title of the person from whom he derived the title.
24. The judgement referred above was also discussed by the Hon'ble High Court of Delhi in the case titled as Padma Vathy & Anr vs State Nct Of Delhi & Anr, 2017 SCC OnLine Del 7517 in the following terms:
18. The main issue raised by the petitioners is the issue No.
(iii) that the cheque in question is a non-negotiable instrument in terms of letter dated 21st March, 2016. Referring to Sections 13 and 130 of NI Act it is contended that a negotiable instrument without consideration or with an endorsement thereon cannot be negotiated and is not capable of transferring a better title to another person. Even an endorsement on a slip of paper has been held to change the nature of the instrument to non-
negotiable in terms of Section 15 of the NI Act. Reliance is placed on the decisions reported as 2005 SCC OnLine AP 1081M. Ethirajulu v. Rangam Adinarayana and (1938) 2 KB 384 Hibernian Bank Limited v. Gysin & Hanson.
19. In the Kings Bench decision the instrument itself was marked as not negotiable, which is not the case in the present case. Even in M. Ethirajulu (supra) relied upon by learned counsel for Strategic it was held that the endorsement should either be on the instrument or on a separate paper annexed thereto. It was held:
Ct. Case No.5000978/2016 Page 22 of 35"11. A combined reading of the above provisions clearly shows that a promissory note, bill of exchange or a cheque can be negotiated or transferred by making an endorsement either on the instrument or on a separate paper annexed thereto. The transferee of such instrument becomes the holder if that person is entitled in his own name to the possession thereof when it is transferred in his favour by making the necessary endorsement. The holder of a cheque becomes holder in due course only when he has become the possessor thereof for consideration without knowing any defect existed in the title of the person from whom he derived the title."
25. It is also pertinent to consider the following relevant provisions of the NI Act:
Section 48. Negotiation by indorsement.--Subject to the provisions of section 58, a promissory note, bill of exchange or cheque 1 [payable to order], is negotiable by the holder by indorsement and delivery thereof.
Section 50. Effect of indorsement.--The indorsement of a negotiable instrument followed by delivery transfers to the indorsee the property therein with the right of further negotiation; but the indorsement may, by express words, restrict or exclude such right, or may merely constitute the indorsee an agent to indorse the instrument, or to receive its contents for the indorser, or for some other specified person.
26. Further, it has been held by the Hon'ble High Court of Madras in the case titled as K.Easwaramoorthy vs M/S.Premier Textiles, Crl.A.Nos.136 to 138 of 2002 as follows:
Ct. Case No.5000978/2016 Page 23 of 3514. Even otherwise, the cheques do not contain proper endorsement, except the signature of one of the partners of the so called drawee company on the reverse of the cheque, to constitute valid assignment of the liability in favour of the complainant as required under Section 48 of the Negotiable Instruments Act. As the endorsement is made only to constitute the person in whose favour the endorsement is made as holder in due course, the intention of the endorser about the same and only as the effect of endorsement, as laid down in Section 50, i.e., nature of the right conveyed in favour of other through such endorsement, the same shall be explicit in words without which indorsement and effect of indorsement cannot be presumed to hold that negotiation is completed in the case of law.
15. Our High Court, in M.N.Thangaraj v. Sri Venkatachalapathi Textiles (2007(2) MWN(Cr.)80DCC), Jayaram Finance and another v. Jayaprakash (2010 (1) MWN (Cr.) DCC 110) and Palaniappa Mills v. A.Vaithiyalingam ((2011) 3 MLJ (Crl)
299) has laid down that mere signature of drawee on reverse or overleaf of cheque without any details is not sufficient to constitute proper endorsement and the complainant cannot be considered as holder much less holder in due course, so as to maintain any complaint. Applying the same ratio herein, this Court is of the considered view that in the absence of one such legally valid endorsement, the mere signature would not be sufficient to prove negotiation by endorsement as required under law and the same does not create any privity of contract between Ct. Case No.5000978/2016 Page 24 of 35 the complainant and the accused, so as to maintain any criminal action for any offence under Section 138 of Negotiable Instruments Act against the accused. Thus, want of any written endorsement over the cheque leaf to constitute valid endorsement as required under Sections 48 and 50 of the Negotiable Instruments Act and want of further proof to prove the factum of discounting would compel this Court not to recognise the complainant as holder in due course under law and complainant to lodge the complaint and the same renders the complaint arising out of which are the present appeals, to be legally not maintainable.
27. Thus, in view of the law laid down in the above mentioned judgements, it is clear that a cheque can be negotiated or transferred by making an explicit endorsement either on the instrument itself or on a separate paper annexed thereto and admittedly, in the absence of such requisite endorsement qua the cheques in issue in the present case, it cannot be said that the cheques in issue were endorsed by the payee in favour of the complainant and thus the complainant does not get the status of a payee or of the holder in due course qua the cheques in issue.
28. Further, in the complaint filed before the court, the complainant has been mentioned as "Shri Jagdish Chandra". It is not the case of the complainant that the said complaint has been filed by him for or on behalf of the payee firm. Admittedly, there is no endorsement of any nature whatsoever, as is required under the NI Act by the payee in favour of the complainant as observed earlier, and furthermore, admittedly, cheques in issue Ex.CW1/4 and Ex.CW1/5 have not been issued in the name of the Ct. Case No.5000978/2016 Page 25 of 35 complainant. As observed earlier, complainant has not got the status of a payee or of the holder in due course qua the cheques in issue and thus it can be observed that the complaint has not been filed by the payee or holder in due course of the cheques in issue but by the complainant in his personal capacity. The complainant in the present complaint had no concern with the accused in his personal capacity as the accused had never committed any offence towards him. Moreover, the material placed on record by the complainant clearly suggests that only the firm N.S. Transport Service i.e. payee of the cheques was having cause of action in its favour to initiate the proceedings against the accused for dishonour of the cheques. Therefore, it is again clearly evident from the factual position and material placed on record that the complainant is not the payee or the holder in due course qua the cheques in issue and in the light of such discussion, judgement in the case titled as Punjab & Sind Bank vs. Vinkar Sahakari Bank Ltd., (2001) 7 SCC 721 passed by the Hon'ble Apex Court, relied upon by the complainant, is respectfully not applicable in facts and circumstances of the present case, as in the present case, complainant was unable to bring any cogent evidence on record to prove that he had become the holder in due course of the cheques in issue.
29. The judgement in the case titled as Ashok Kumar vs. Dr. T.R. Bhageerathi, 2009 CRI. L.J. 221 passed by the Hon'ble High Court of Karnataka, relied upon by the complainant, is not applicable in facts and circumstances of the present case as the issue before the Hon'ble Court in such case was whether the legal representative of a deceased payee can maintain a complaint under Section 138 of NI Act. The judgement being not related to the facts and circumstances of the present case, is Ct. Case No.5000978/2016 Page 26 of 35 respectfully not applicable in the present case. Further, the judgement in the case titled as Shanish Kumar Mishra vs. State of UP & Ors., 2014 LawSuit (All) 3623 passed by the Hon'ble High Court of Allahabad is respectfully not applicable to the facts and circumstances of the present case as in such case, complainant being the sole proprietor was held to be the holder in due course and it is trite in law that a partnership firm (payee in the present case) stands on a different footing than a proprietorship firm. The judgement in the case titled as Dilip Kumar vs. Sunita Mittal, 239 (2017) DLT 34 passed by the Hon'ble High Court of Delhi, relied upon by the complainant, is also respectfully not applicable to the facts and circumstances of the present case. Thus, in view of the above discussion, the contention of the complainant that he was holder in due course qua the cheques in issue and was thus competent to file the present complaint is untenable and thus rejected.
30. Admittedly, the complainant had filled the name of the payee in the cheques in issue by himself and it was contended on behalf of the complainant that cheque filled by persons, other than the drawee, are valid. The submissions made on behalf of the complainant in this regard are legally correct and the reliance placed upon by the complainant in the cases of Ravi Chopra vs. State & Anr., 2008 (2) JCC (NI) 169 and Bir Singh vs. Mukesh Kumar, 2019 (1) DCR 401 is well founded. However, such contention does not aid the complainant in proving his case.
31. Furthermore, reliance placed by the complainant upon judgement in case titled as Gopa Plast (P) Ltd vs. Chicoursula D'Souza & Anr., (2003) 3 SCC 232 to contend that offence under Section 138 NI Act is Ct. Case No.5000978/2016 Page 27 of 35 made out even if the cheque is dishonoured for reason "account closed" is undisputed and correct. However, the said contention again does not aid the complainant in proving his case. Moreover, the reliance placed upon by the complainant in the cases of Suresh Chandra Goyal vs. Amit Singhal, Cr.L.P. 706/2014, ICDS Ltd vs. Beena Shabeer & Anr, 2002 (6) SCC 426, Credential Leasing & Credits vs. Shruti Investments & Anr, 2015 (151) DRJ 147 to contend that the cheques issued as security are valid discharge of liability are not relevant in the facts and circumstances of the present case as the accused in the present case has not taken the defence that the cheques in issue were security cheques, rather the accused has contended that cheques in issue were stolen from his office.
32. It is also pertinent to consider whether the complainant had the due authority to file the present complaint.
33. When the payee is a natural person, he can himself file the complaint or can do the same through his authorized representative in whose favour he has given the Power of Attorney or Authority letter but when the payee or the holder in due course, as the case may be, is an artificial or juristic person such a partnership firm, not capable of coming to the court themselves, they must be represented by a natural person who has been duly authorised and such person would be the de facto complainant for the purpose of the trial.
34. In case titled as Govind Ram Chanani vs. Latha & Anr., 2009 SCCOnLine Kar 39, the Hon'ble High Court of Karnataka has held as follows:
13. ** Ct. Case No.5000978/2016 Page 28 of 35 "Alloy Steel Emporium being a partnership firm, the appellant cannot be permitted to file complaints in his individual capacity or as a Manager of the said firm without there being any specific written authorisation given by the partners of the said partnership firm to that effect and even any such authorisation is given by the partners of the firm. The authorised person should file the complaint only representing the said firm and not in his individual capacity or any other capacity which he is not legally entitled to do so. The benefit which is available to a firm, which is a legal entity is not available to the members of partnership firm. Moreover, there is private complaint for an offence punishable under Section 138 of the N.I. Act, one must have a competency to file such complaint. The complainant must necessarily be a payee or holder in due course or must be an authorised person to file complaint on behalf of the payee or holder in due course. If the complaint is filed by a Manager in his personal capacity, then the authorisation is required. Since Alloy Steel Emporium is a partnership firm and not a legal entity, their managing partner or any authorised agent ought to have filed a complaint on behalf of the firm. Unfortunately, Govind Ram Chanani who filed the complaint, described himself as proprietor in some cases and as partner in some other cases, suppressing the fact that Alloy Steel Emporium is a partnership firm. Only the power of attorney, agent or a person authorised in writing by the payee or holder in due course of the cheque, is a competent person to present the complaint, as under Section 142 of the N.I. Act. Even if it is presumed that Govind Ram Chanani Ct. Case No.5000978/2016 Page 29 of 35 is looking after entire business affairs of partnership firm, he cannot file such complaint without authorisation from the partners of the firm.
35. The Hon'ble High Court of Delhi in the case titled as Suresh Sharma vs. New Coolwell Industries & Ors, (2009) 160 DLT 249, while dealing with the issue that the complaint filed by the appellant in his personal capacity cannot be treated as a complaint by M/s. Jiya Lal Sumair Chand Jain, which was a partnership firm and the payee of the cheques in issues in such case, held the following:
13. In view of the aforesaid, even though a complainant that is the payee of the cheque or the holder in due course can present a complaint even through a Manager or an authorized representative, such complaint has to be on behalf of the payee or the holder in due course and cannot be filed in the personal capacity either by the Manager or by the authorized representative without filing the said complaint for and on behalf of the payee or the holder in due course.
14. In the light of the aforesaid legal position the appellant not being a payee in respect of two cheques which were dishonoured on presentation and the firm having not come forward either to file the complaint and the authority of the manager having not proved for filing of such complaint which again was not filed in the name of the firm, the order passed by the Learned M.M. dt. 16.03.2006 is fully justified.Ct. Case No.5000978/2016 Page 30 of 35
36. Admittedly, it is the case of complainant that he is one of the partner of the payee firm and the present complaint has been filed by him in his personal capacity, whereas, the cheques in issue are in the name of N.S. Transport, which is a partnership firm. The complainant has admitted in his cross-examination that he has not placed on record any authority letter in his favour by payee of the cheques in issue, N.S. Transport Service. No representative of the aforesaid firm has appeared in the witness box to ratify the filing of complaint by the complainant. It could also not be established that the cheques had been issued to the complainant or endorsed in his favour or he was duly authorised by the partnership firm to file the present case, as observed above, and being so, he could also be the payee or holder in due course qua the cheques in issue and thus entitled to make the complaint. The complainant has even failed to prove as to how he had become the holder in due course of the cheques in issue without impleading the partnership firm as complainant. In the absence of payee partnership firm or authorisation on his behalf, the complainant has no locus standi to file the present complaint as he has no cause of action arising in his favour to initiate the criminal proceedings against the accused.
37. The next contention raised on behalf of the complainant that the present complaint is maintainable as the property of the partnership firm is the property of the partner and vice versa is also untenable, baseless and liable to be rejected in the facts and circumstances of the present case, as the complainant was not authorised to file the present case as observed earlier and also the complainant was not the payee or holder in due course qua the cheques in issue and further did not have any liability arising in his favour qua the accused and thus the judgement in cases of N. Khadervali Saheb (Dead) Ct. Case No.5000978/2016 Page 31 of 35 by LRs vs. N. Gudu Sahib (Dead) & Ors, (2003) 3 SCC 229 of the Hon'ble Supreme Court of India, M/s Malabar Fisheries Co. vs. The CIT, Kerala AIR 1980 SC 176 of the Hon'ble Supreme Court of India, V. Subramaniam vs. Rajesh Raghuvandra Rao, AIR 2009 SC 1858 of the Hon'ble Supreme Court of India are respectfully not applicable in the facts and circumstances of the present case.
38. Moreover, the judgement in the case titled as Bhupesh Rathod vs. Dayashankar Prasad Chaurasia & Anr, Criminal Appeal No.1105 of 2021, decided by the Hon'ble Supreme Court is respectfully not applicable in facts and circumstances of the present case, as in that case, it was observed by the Hon'ble Supreme Court that the Managing Director had filed the complaint on behalf of the Company and a copy of the board resolution was also filed along with the complaint and further the affidavit and the cross-examination in respect of the same during trial supported the finding that the complaint had been filed by the Managing Director on behalf of the company. However, in the present case, the complaint has been filed in the personal capacity of the complainant and admittedly, no authorisation by the payee of the cheques in issue in favour of the complainant has been placed on record by the complainant and even the name of the payee has not been mentioned in the memo of parties of the complaint.
39. It is also pertinent to mention that as per the legal demand notice Ex. CW 1/8, which got issued by the complainant through his advocate, is in his personal capacity and the same has not been issued by the payee or holder in due course of the cheques in issue and relevant extract of the same reads as under:
Ct. Case No.5000978/2016 Page 32 of 35"Under instructions for and on behalf of my client Shri Jagdish Chander S/o Shri Narender Prasad, R/o Flat No. 85, G.Floor, Pocket-6, Nasirpur, Dwarka, New Delhi-110045, I hereby serve upon you with the following legal notice:- "
Thus, it is reiterated that the legal demand notice Ex. CW1/8 had been issued by the complainant in his personal capacity to the accused whereas the cheques is issue are in favour of N.S. Transport Service and the complainant is neither the payee nor holder in due course of the cheques in issue. Therefore, it can be observed that no action, including issuance of the legal demand notice has been initiated by or on behalf of the payee or holder in due course of the cheques in issue. As observed earlier, the complaint filed before the court is also not by the payee or holder in due course of cheque in issue but by the partner of the payee firm, Jagdish Chandra, who has not produced any authorisation in his favour.
40. It is a mandatory requirement under law for the complainant to satisfy the requirement of Section 138 proviso (a) to (c) and only thereupon presumption under Section 139 NI Act arises in favour of complainant, driving the accused to rebut such presumption. Learned counsel for the complainant relied on the judgment in the cases of the Rangappa vs. Mohan, AIR 2010 SC 1898 of the Hon'ble Supreme Court of India, B.M. Basavaraj vs. Srinivas S. Datta, IV (2016) SLT 155 of the Hon'ble Supreme Court of India, Mukesh Kumar vs. State & Anr, 237 (2017) DLT 657 of the Hon'ble High Court of Delhi, V.S. Yadav vs. Reena, 172 (2010) DLT 561 of the Hon'ble High Court of Delhi, Deepak Kumar vs. State & Anr., 2019 (3) DCR 137 of the Hon'ble High Court of Delhi and Shri Daneshwari Traders vs. Sanjay Jain & Ors, 2020 (1) JCC to Ct. Case No.5000978/2016 Page 33 of 35 buttress his argument with regard to presumption under Section 139 NI Act which would act in favour of the complainant on the admission made by the accused with regard to signature upon the cheques in issue. However, in the present case, even though signature on the cheques in issue are admitted, but the cheques have not been issued to the complainant in his personal capacity and he is not even the payee or holder in due course qua the cheques in issue and moreover, mandatory requirement under law for the complainant to satisfy the requirement of Section 138 proviso (a) to (c) has not been met, as observed earlier. Hence, presumption under Section 139 NI Act would not arise in favour of the complainant and the said judgments relied upon by the complainant though pertinent, would not be respectfully applicable to the facts and circumstances of the present case.
41. As stated earlier, Section 142 (1) (a) of the NI Act clearly states that no Court shall take cognizance of any offence punishable under Section 138 of NI Act, except on a complaint, in writing made by the 'payee' or, as the case may be, the 'holder in due course' of the cheque. On careful appreciation of the entire evidence and the documents produced before the court and arguments led on behalf of the parties, it is observed that the complainant has not fulfilled the mandatory requirements of proviso (a) to
(c) of Section 138 of NI Act. It is not permissible for the complainant to file the complaint in his own name as he was neither the payee nor the holder in due course of the cheques in issue as the same were never issued or endorsed in his favour and he could have only initiated the present proceedings for or on behalf of the principal i.e. N.S. Transport Service which was the payee of the cheques in issue. Furthermore, there was no authorisation in favour of the complainant from the payee firm to file and Ct. Case No.5000978/2016 Page 34 of 35 contest the present complaint case. Therefore, when the complainant is not a recipient of the cheques and is also not an interested person to whom the cheques are being endorsed, complaint filed by such person is not maintainable and the initiation of complaint itself is not in accordance with law.
42. In view of the totality of facts and circumstances of the present case and on the basis of material as is placed on record, this court is of the considered opinion that the present complaint has not been filed either by the 'payee' or the 'holder in due course' of the cheques in issue and further there was no authorisation in favour of the complainant from the payee firm to file and contest the present complaint case and also the mandatory requirements of proviso (a) to (c) of Section 138 of NI Act have not been fulfilled. Accordingly, the complaint filed u/s 138 NI Act is hereby dismissed and the accused Sanjay Singh S/o Shri Mallan Singh is acquitted of the offence u/s 138 NI Act.
Announced in the court on 28.01.2022.
(Kapil Gupta) Metropolitan Magistrate(NI Act)07 South West District, Dwarka Courts, New Delhi Ct. Case No.5000978/2016 Page 35 of 35