Delhi District Court
M/S Hindustan Coca-Cola Beverages vs . Sanjeev Sachdeva Page No. 1 Of 34 on 1 July, 2023
IN THE COURT OF SH. ANSHUL SINGHAL,
MM (NI ACT)-03, ROUSE AVENUE COURT COMPLEX,
NEW DELHI DISTRICT, NEW DELHI
In the matter of: CC No.: 10954/2019
CNR NO.: DLND02-019048-2019
M/s Hindustan Coca-Cola Beverages Pvt. Ltd.
Having its Registered Office At:
B-91, Mayapuri Industrial Area,
Phase-1, New Delhi-110064.
And Corporate Office At:
Brigade Magnum, B-Wing, 7th, 8th and 9th floor,
Bellary Road, Kodigehalli Gate,
Bengaluru, Karnataka-560092.
......Complainant
versus
Sanjeev Sachdeva
Proprietor of M/s Sachdeva Distributor
S/o Late Sh. JL Sachdeva,
presently r/o 11/349, DDA Flats,
East of Kailash, New Delhi-110065.
........Accused
JUDGEMENT
Date of Institution of Complaint : 04.10.2006 Police Station : Connaught Place Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 05.06.2023 Decision Qua Accused : Convicted Date of Decision : 01.07.2023 CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 1 of 34 BRIEF STATEMENT OF REASONS FOR DECISION
1. Vide this judgement, I shall decide the present complaint filed u/s. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act) filed by the complainant against the accused on account of dishonour of four cheques, one cheque bearing no.253929 dated 18.08.2006 for a sum of Rs.2,09,000/-, second cheque bearing no.253930 dated 19.08.2006 for a sum of Rs.1,37,470/-, third cheque bearing no.253931 dated 19.08.2006 for a sum of Rs.1,91,190/- and fourth cheque bearing no.253932 dated 21.08.2006 for a sum of Rs.1,17,417/-, all drawn on Syndicate Bank allegedly issued by the accused in favour of the complainant (hereinafter referred to as the cheque in question).
CASE OF THE COMPLAINANT
2. Brief facts of the case as per the complaint are that accused being the proprietor of M/s Sachdeva Distributor, and also signatory of the cheques was appointed as a distributor by the complainant company for the sale of its products. The complainant company supplied various products to the accused from time to time as per order placed by the accused from time to time and complainant company raised the timely bills/invoices against the supply of goods/products. It is further submitted that several goods/products were sold to the accused vide eight separate credit challans placed on record and in discharge of his liability qua the same, the accused issued the four cheques in question.
3. It is further stated that on presentation, the cheques in question were returned dishonoured with remarks "Exceeds CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 2 of 34 Arrangement" vide cheque return memos dated 22.08.2006 and 23.08.2006. That thereafter, a legal notice was sent to the accused dated 31.08.2006 and since no payment was made within 15 days of the service of legal notice, then the present case has been filed.
4. In support of the case of the complainant, Ld. counsel for the complainant has relied on averments made in the complaint, the evidence by way of affidavit filed by CW-1, Sh. Narinder S. Kainth, and CW-2, Sh. Anil Rajput, the presumption of law u/s. 118(a) r/w. Section 139 of the NI Act and the following documentary evidence:
S.No. Document Exhibit Number
1. Board Resolution dated 02.03.2006 Ex.CW-1/A in favour of Sh. Narinder S. Kainth
2. Letter of Authorization dated Ex.CW-1/A1 25.09.2006 in favour of Sh. Sanjay Mittal who has filed the present complaint
3. Power of Attorney dated 18.10.2012 Ex.CW-1/A2 in favour of Sh. Narinder S. Kainth
4. Authority Letter in favour of CW-2, Ex.CW-1/B (OSR) Sh. Anil Rajput
5. Copies of Credit Challans in Ex.CW-2/C1 to Question Ex.CW-2/C8
6. Four Original Cheques in question Ex.CW-2/D1 to Ex.CW-2/D4
7. Cheque Dishonour Memos Ex.CW-2/E1 to Ex.CW-2/E4
8. Office Copy of Legal Demand Ex.CW-2/F Notice
9. Original Postal Receipt and UPC Ex.CW-2/G1 to Ex.CW-2/G3
10. Reply received from the accused, the Ex.CW-2/H, rebuttal letter and the proof of post Ex.CW-2/I, and CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 3 of 34 and delivery of the delivery letter Ex.CW-2/J1 to Ex.CW-2/J5
11. Present complaint Ex.CW-1/K CASE PROCEEDINGS
5. In the present matter notice of accusation u/s. 138 of the NI Act was served on the accused on 27.07.2007 and the accused pleaded not guilty and claimed trial. The plea of defence of the accused was also recorded by the court on the same day.
6. CW-1 and CW-2 were duly cross-examined and discharged. Since no other witness was sought to be examined on behalf of the complainant, accordingly, the post-summoning evidence was closed vide order dated 30.10.2019.
7. Statement of accused u/s. 281 r/w. Section 313 CrPC was recorded on 30.10.2019 and all the incriminating evidence was put to the accused. During statement of accused, accused has stated that the cheques were given for security purposes against purchase of cold drink/material and the complainant has misused his blank cheques. It is his case that he has to take almost a sum of Rs.44 Lacs from the complainant, as the complainant company has not adjusted his target incentives, stock reversal, etc., against his dues.
8. Since the accused chose to lead Defence Evidence, matter was fixed for filing of appropriate application u/s. 315 CrPC along with list of witnesses, if required. An application u/s. 315 CrPC filed by the accused seeking permission of this court to examine himself as a witness for the defence was allowed by this court vide order dated 23.12.2021. In support of his defence, the accused has examined himself and Sh. Ravi Manchanda and has CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 4 of 34 relied on the following documents:
S.No. Document Exhibit Number
1. Return Invoice dated 05.07.2006 Mark DW-1/1
2. Inter Office Memorandum dated Mark DW-1/2 09.01.2004
3. Letter from the accused addressed to Ex.DW-2/1 (Page the complainant company seeking 1 only) non-presentation of the seven other cheques
4. Reply dated 22.09.2006 to the legal Ex.DW-2/2 to demand notice along with proof of Ex.DW-2/6 delivery
5. Copy of letter along with UPC & Ex.DW-2/7 (colly) courier receipts showing sending of the impugned letter
6. Return invoice dated 05.07.2006 Mark DW-2/8
7. Inter Office Memorandum dated Mark DW-2/9 09.01.2004
9. Both the defence witnesses were duly cross-examined on behalf of the complainant and discharged. Final arguments were heard by this court on 09.05.2023, 29.05.2023 and 05.06.2023.
10. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
LAW UNDER CONSIDERATION
11. At the very outset, it is pertinent to lay down the ingredients of the offence u/s. 138 of NI Act. In Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, the Hon'ble Supreme Court of India culled out the following ingredients in order to constitute an offence u/s. 138 of NI Act:
"13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled:CC No. 10954/2019
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(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;
(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;
(iii) that 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;
(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the 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 the bank;
(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act."
12. Before moving forward with the contentions of the accused, it is pertinent to note that as per the provisions of section 118(a) and 139 of the NI Act, in every case u/s. 138 of NI Act, there is a presumption of law that the cheque has been issued for consideration and in discharge of legally enforceable debt or liability.
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13. It is further pertinent to mention the relevant judgments on the point of presumption of existence of legally enforceable debt or liability. Reliance is placed by this court upon the judgments of Hon'ble Supreme Court of India in Rangappa v. Sri Mohan, (2010) 11 SCC 441, Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513, and Bir Singh vs. Mukesh Kumar, (2019) 4 SCC 197, wherein it has been held that the presumption u/s. 139 NI Act is a presumption of law and not presumption of fact. It has further been held that it is not necessary that the cheque must have been filled by the accused himself and the accused may be liable even when the cheque has been filled by the complainant. The essential requirement is that the liability must exist on the date of the presentation of the cheque in question. It has been further held that once the signatures on the cheque are admitted then the court is bound to raise presumption u/s. 118 r/w. 139 NI Act regarding existence of legally enforceable debt or liability.
14. In the facts of the present case, the signatures on the cheque in question have not been disputed by the accused. Accordingly, this court raises presumption u/s. 118(a) r/w. section 139 of NI Act that the cheque in question was issued by the accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
DEFENCE OF THE ACCUSED
15. The accused has taken several defences. For the sake of brevity and convenience, all the defences and preliminary objections taken on behalf of the accused are listed as follows:
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(a) That the present complaint is bad in law as having not been drafted in terms of section 141 of the Negotiable Instruments Act as the cheque in question has been drawn on the account maintained by Sachdeva Distributors, Sole Proprietorship.
(b) That the present complaint is also bad in law as the complaint has been filed in respect of more than 3 cheques and accordingly, is against the mandate prescribed u/s. 219 of the Criminal Procedure Code, 1973.
(c) That the present complaint is further bad in law as having been filed on behalf of a company allegedly incorporated as per the provisions of Companies Act, 1956, however, without any supporting Articles of Association, Memorandum of Association, Certificate of Incorporation or the Company Master Data.
(d) That the cheques in question were given only for the purposes of security and not in discharge of any legally enforceable debt or liability.
(e) That there is no document on record to show that the accused was appointed as a distributor for the complainant, either by way of an agreement between the parties or a ledger account showing various transactions between the parties.
(f) That the ingredients of the offence u/s. 138 of NI Act are not fulfilled as the dishonour of the cheques in question is not proved beyond reasonable doubt because the complainant has failed to place on record the cheque returning memo issued by its own bank, i.e., ABN Amro Bank.
(g) That there is no legally enforceable debt or liability in favour of the complainant qua the cheques in question, as goods for a sum of Rs.10,00,000/- (approximately) were returned to the CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 8 of 34 complainant by the accused and the accused also had outstanding of Rs.7,60,000/- (approximately) to be recovered from the complainant in incentives. The same is also because of the fact that the liability of the accused has not been proved by the complainant to the extent of the amount of cheques in question beyond reasonable doubt.
(h) The last defence taken by the accused is that the authorization of the AR of the complainant, i.e., Sh. Narinder S. Kainth and Sh. Anil Rajput (CW-2) has not been proved beyond reasonable doubt and both of these persons are not duly authorized as per law.
FIRST DEFENCE
16. The first defence taken by the accused is that the present complaint is bad in law as having not been drafted in terms of section 141 of the Negotiable Instruments Act as the cheques in question have been drawn on the account maintained by Sachdeva Distributors, Sole Proprietorship and both the sole proprietorship and the sole proprietor have not been made parties separately. It is the case of the accused that since the drawer of the cheque is M/s Sachdeva Distributors, hence, provisions of section 141 NI Act are applicable.
17. In support of this plea, Ld. Counsel for the accused has relied on the judgement of Punjab and Haryana High Court in Sardar Bhupinder Singh vs. M/s Green Feeds in CRM-M- 54111-2021 decided on 26.08.2022, wherein, it has been held that where the proprietorship concern is not made a party in case of cheque issued by the a sole proprietorship concern then the complaint under Section 138 N.I. Act is liable to be CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 9 of 34 quashed/dismissed.
18. Per contra, Ld. Counsel for the complainant has submitted that the sole proprietorship concern is also an accused in the present matter which is reflected from the complaint itself.
19. Perusal of the case file and memo of parties reveals that Sh. Sanjeev Sachdeva has been made as an accused being the proprietor of M/s Sachdeva Distributor. In this regard, reliance is placed by this court on the judgement of Hon'ble Bombay High Court in Maan Agro Centre Vs. EID Party(India) Ltd, (2005) 1 MWN(Cri) DCC 72, whereby the Hon'ble Court made the following observations:
"14. If the principles laid down in the above two cases are taken into consideration, it would be seen that in the present case no doubt Maan Agro Centre through its proprietor was described as an accused and initially the name of the proprietor viz. Aminullah Khan was not mentioned in the complaint. However, one thing is certain that Mann Agro Centre is the sole proprietary concern and Aminullah Khan is the only proprietor thereof. In this view of the matter whether the accused was described as Maan Agro Centre through its proprietor Animullah Khan or whether he is described Animullah Khan proprietor of Maan Agro Centre will make no difference. It would not cause any prejudice whatsoever to the petitioner/accused. As such the Revisional Court was fully justified in permitting the complainant to insert the name of Animullah Khan as the proprietor thereof. As observed by me earlier, whether Animullah Khan is shown as accused in his capacity as proprietor of Maan Agro Centre or whether he is shown as Maan Agro Centre through proprietor Animullah Khan would make no difference and as such the complaint would be tenable."CC No. 10954/2019
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20. It is not the case of the accused that he is not the proprietor of M/s. Sachdeva Distributors, rather it has been admitted by him that he is the proprietor of M/s. Sachdeva Distributors.
21. It is an established law that the proprietor and the sole proprietorship concern are not two separate entities, except for the purposes of income tax. It is further an established law that in case of a sole proprietorship concern, provisions of section 141 NI Act are not applicable and only the provisions of section 138 are applicable.
22. Bare perusal of the provisions of section 141 NI Act would reveal that the same is applicable only to a company, partnership firm or any other association of individuals, however, the same are not applicable to a sole proprietorship concern. A sole proprietorship concern is not a separate juristic entity and consists of only one person that is the proprietor himself.
23. Bare perusal of the memo of parties and the complaint would reflect that the accused has not been impleaded in his individual capacity, rather he has been impleaded in his capacity of being the proprietor of M/s. Sachdeva Distributors.
24. In view of the above discussion and observations of Hon'ble Bombay High Court, in my considered opinion, there is no infirmity in the complaint, if the proprietor is not made as separate accused as per memo of parties, if the name of the sole proprietorship concern and that of the proprietor has been expressly mentioned in the complaint/memo of parties itself.
25. Accordingly, the defence taken by the accused that the present complaint is bad in law as having not been drafted in terms of section 141 of the Negotiable Instruments Act as the CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 11 of 34 cheque in question has been drawn on the account maintained by Sachdeva Distributors, Sole Proprietorship and both the sole proprietorship and the sole proprietor have not been made parties separately is not tenable.
SECOND DEFENCE
26. The second defence take by the accused is that the present complaint is also bad in law as the complaint has been filed in respect of more than three cheques and accordingly, is against the mandate prescribed u/s. 219 CrPC, 1973.
27. Per contra, Ld. Counsel for the complainant has submitted that there is no infirmity in the present complaint because more than 3 cause of actions cannot be clubbed in a single complaint whereas the present matter is in respect of only one cause of action which has arisen on the expiry of 15 days after service of legal demand notice on the accused.
28. Before moving forward with the contentions of the parties, it is pertinent to note the provisions of Section 219(1) and 220(1) CrPC, which are reproduced as follows:
"219. Three offences of same kind within year may be charged together.
(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
***
220. Trial for more than one offence.
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 12 of 34 every such offence."
29. Perusal of the contents of the above-mentioned sections clearly reflects that more than three offences of same kind within a space of 12 months cannot be tried together, however, I am in agreement with the submissions of the Ld. Counsel for the complainant that the offence u/s 138 N.I. Act is only complete when no payment is made in terms of the legal demand notice within 15 days of the service of the same and since there is only one legal demand notice in the present matter, accordingly, it cannot be said that this court has tried more than three offences of same kind.
30. Moreover, even if the submissions taken by Ld. counsel for the accused are admitted to be true, then also, section 220 is applicable in the present matter wherein it is stated that when more offences than one are committed by the same person as part of the same transaction, then the said person may be charged with and tried for the same at one trial for every such offence.
31. In view of the above discussion and the mandate of law as per the provisions of section 219 and 220 CrPC, there is no infirmity in the present complaint as the complaint has been filed by the complainant company, only on the basis of one legal demand notice qua all the cheques in question and accordingly, the defence taken by the accused that the present complaint is also bad in law as the complaint has been filed in respect of more than three cheques and accordingly, is against the mandate prescribed u/s. 219 CrPC, 1973 is not tenable in the eyes of law.
THIRD DEFENCE CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 13 of 34
32. The third defence taken by the accused is that the present complaint is bad in law as having been filed on behalf of a company allegedly incorporated as per the provisions of Companies Act, 1956, however, without any supporting Articles of Association, Memorandum of Association, Certificate of Incorporation or the Company Master Data.
33. Ld. Counsel for the accused has submitted that same is required for proving the nature of the business of the complainant company and to show that it is actually a private limited company incorporated as per the provisions of Companies Act.
34. Per contra, Ld. Counsel for the complainant has submitted that there is nothing in law that requires the complainant to place on record the above-mentioned documents.
35. Perusal of the cross-examination of CW-1 and CW-2 reveals that not even a single question has been put to the witness in regard to placing of record the above-mentioned documents.
36. The defence taken here by the accused is a mixed question of law and fact. Only a question of law can be taken for the first time at the stage of final arguments and mixed question of law and fact or a question of fact cannot be taken for the first time at the stage of final arguments.
37. It is categorically mentioned in paragraph 1 of the complaint itself that the complainant is a body corporate duly registered under the Companies Act, 1956. The same averments are also mentioned in the evidence by way of affidavit filed on behalf of the witness CW-2, namely, Sh. Anil Rajput.
38. In absence of any cross-examination on this point by the accused/ Ld. counsel for the accused, this court cannot presume CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 14 of 34 that the Complainant, i.e., M/s Hindustan Coca-Cola Beverages is not a body corporate, merely because it has not placed on record Articles of Association, Memorandum of Association, Certificate of Incorporation or the Company Master Data. It is pertinent to note that the witness CW-2, namely, Sh. Anil Rajput, has not even been asked to place on record the above-mentioned documents.
39. In view of the above discussion, I am of the considered opinion that non-placing of documents such as Articles of Association, Memorandum of Association, Certificate of Incorporation or the Company Master Data is not fatal to the case of the complainant and since no cross-examination has taken place on this aspect, accordingly, the fact that the complainant company is a body corporate under the Companies Act, 1956, remains unrebutted, uncontroverted and hence, proved.
40. In view of the above discussion, the defence taken by the accused that the present complaint is bad in law as having been filed on behalf of a company allegedly incorporated as per the provisions of Companies Act, 1956, however, without any supporting Articles of Association, Memorandum of Association, Certificate of Incorporation or the Company Master Data is not tenable in the eyes of law.
FOURTH DEFENCE
41. The fourth defence taken by the accused is that cheques in question were given only for the purposes of security and not in discharge of any legally enforceable debt or liability.
42. Ld. counsel for the accused has submitted that since the cheques in question were given only for the purposes of security CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 15 of 34 to the complainant company by the accused, hence, the accused cannot be held liable for offence u/s. 138 NI Act. Ld. counsel for the accused has placed reliance on the testimonies of the defence witnesses, namely, Sh. Ravi Manchanda (DW-1) and the accused himself (DW-2), in this regard.
43. Per Contra, Ld. counsel for the complainant has submitted that the cheques in question were issued by the accused in discharge of his legally enforceable debt and liability pertaining to the invoices. He has further submitted that a false statement has been made by the accused that the cheques were given only for the purposes of security, to escape his legal liability. He has further submitted that even if it is admitted that the cheques were given for the purposes of security in a blank signed condition then also the same does not disprove the liability of the accused and the complainant could have filled the particulars in terms of the provisions of section 20 of the NI Act.
44. Reliance is placed by this court upon the judgments of Hon'ble Supreme Court of India in Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458, Sripati Singh vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 and Sunil Todi vs. State of Gujarat & Anr., 2021 SCC OnLine SC 1174 wherein it has been held that merely because a cheque has been issued only for security purposes will not absolve the accused from the liability u/s. 138 NI Act. It has been further held that a cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. It has been held by the Hon'ble Court that the accused would very CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 16 of 34 much be liable u/s. 138 NI Act for issuance of a security cheque also, if on the date of the presentation of such cheque there has not been a prior discharge of debt, or if the cheque has not been given towards advance payment, the goods in respect of which have not been received by the accused, or if other than this there has been change in circumstances which precludes the complainant from depositing the cheque with the bank.
45. I have carefully gone through the statements of the defence witnesses, namely, Sh. Ravi Manchanda (DW-1) and the accused himself (DW-2). There is nothing in those statements to even remotely suggest that the cheques in question were given for security purposes. At best what emerges from the statements is that the accused had given 25 cheques for security purposes to the complainant, however, whether the 4 cheques in question were part of those 25 cheques or not has not even been stated by the witnesses. The accused has not stated either in his plea of defence or in his statement u/s. 313 CrPC that the cheques in question were given only for security purposes.
46. In view of the above discussion, I am of the considered opinion that the accused has not been able to prove that the cheques in question were given only for security purposes and not in discharge of his legally enforceable debt and liability. Moreover, in view of the provisions of section 20 of the NI Act and the above-mentioned judgments of Hon'ble Supreme Court of India, even if it is presumed that the cheques in question were given only for security purposes, then also, it is on the accused to raise a probable defence and prove his defence on the basis of preponderance of probabilities.
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47. In view of the above discussion, the defence taken by the accused that the cheques in question were given only for the purposes of security and not in discharge of any legally enforceable debt or liability is not tenable in the eyes of law.
FIFTH DEFENCE
48. The fifth defence taken by the accused is that there is no document on record to show that the accused was appointed as a distributor for the complainant, either by way of an agreement between the parties or a ledger account showing various transactions between the parties.
49. Per contra, Ld. Counsel for the complainant has submitted that the accused has admitted during his examination as DW-2 that he was acting as a distributor for the complainant in the name and style of M/s Sachdeva Distributor. On this point, he has drawn the attention of this court towards his examination-in-chief dated 28.05.2022. He has further stated that even Sh. Ravi Manchanda, who has deposed in favour of the accused as DW-1, has stated that the accused was working as a distributor for the complainant company.
50. It is an established law as per Section 58 of the Indian Evidence Act that facts admitted need not to be proved. Since the fact that the accused was acting as a distributor of the complainant at the relevant point of time has already been admitted, hence, the complainant was not required to positively prove on the basis of evidence on record that the accused was operating as distributor of the complainant company at the relevant point of time.
51. In view of the above discussion, the defence taken by the CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 18 of 34 accused that the complainant has not proved the fact that the accused was working as a distributor for the complainant is not tenable in the eyes of law.
SIXTH DEFENCE
52. The sixth defence taken by the accused is that the ingredients of the offence u/s. 138 of NI Act are not fulfilled as the dishonour of the cheques in question is not proved beyond reasonable doubt because the complainant has failed to place on record the cheque returning memo issued by its own bank, i.e., ABN Amro Bank.
53. Per Contra, Ld. counsel for the complainant has submitted that the dishonour of the cheques in question is proved beyond any reasonable doubt and the same is proved by the cheque dishonour memos issued by Syndicate Bank, i.e., the bank of the accused, already placed on record as Ex.CW-2/E1 to Ex.CW- 2/E4. He has further submitted that there is no requirement in law that the cheque dishonour memos need also to be issued by the bank of the payee/complainant.
54. Before moving to the arguments made on behalf of both the counsels, reliance is placed by this court on the provisions of section 146 of the NI Act which are as follows:
"146. Bank's slip prima facie evidence of certain facts.--
The Court shall, in respect of every proceeding under this Chapter, on production of bank's slip or memo having thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved."
55. The cheque dishonour memos, i.e., Ex.CW-2/E1 to CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 19 of 34 Ex.CW-2/E4 are already on record and they have been duly signed by the bank official. There is no particular form in which the official mark as mentioned in section 146 of the NI Act is to be affixed and since there the cheque dishonour memos duly signed by the bank official are already on record, this court raises presumption of dishonour of the cheques in question in terms of section 146 of the NI Act.
56. The burden of proof was on the accused to prove that the cheques in question were not dishonoured, were not even presented with the bank for encashment or that the cheque dishonour memos, i.e., Ex.CW-2/E1 to Ex.CW-2/E4 are forged and fabricated. Merely taking a technical plea that the cheque dishonour memos have not been issued by the bank of the payee/complainant would not come to the aid of the accused. It is further pertinent to note that during the course of entire trial, the accused has not disputed the fact of dishonour of the cheques even once.
57. In view of the above discussion, the defence taken by the accused that the ingredients of the offence u/s. 138 of NI Act are not fulfilled as the dishonour of the cheques in question is not proved beyond reasonable doubt because the complainant has failed to place on record the cheque returning memo issued by its own bank, i.e., ABN Amro Bank, is not tenable in the eyes of law.
SEVENTH DEFENCE
58. The seventh defence of the accused is that there is no legally enforceable debt or liability in favour of the complainant qua the cheques in question, as goods for a sum of Rs.10,00,000/-
CC No. 10954/2019M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 20 of 34 (approximately) were returned to the complainant by the accused and the accused also had outstanding of certain amount to be recovered from the complainant in incentives.
59. Ld. counsel for the accused has submitted that the complainant has not been able to prove the liability of the accused to the extent of the amount of cheques in question beyond reasonable doubt.
60. Ld. counsel for the accused has further submitted that the credit challans placed on record are photocopies which cannot be relied upon by this court as evidence. He has further drawn attention of this court towards the serial numbers of the credit challans placed on record, i.e., 9425 to 9430 and 9156. Ld. counsel for the accused has submitted that it is improbable that there would be such a huge difference in the second last and the last of the credit challans, i.e., difference of approximately 26 credit challans in between.
61. Ld. counsel for the accused has further submitted that the complainant has not even placed any statement of account on record to show that the amount as stated in the cheques in question is recoverable by the complainant from the accused.
62. Ld. counsel for the accused has further submitted that an amount of Rs.10,00,000/- was recoverable by the accused from the complainant towards return of goods which is proved by the return invoice already placed on record as Mark DW-1/1 and Mark DW-2/8.
63. Per Contra, Ld. counsel for the complainant has submitted that the liability of the accused is duly proved by the credit challans placed on record as Ex.CW-2/C1 to Ex.CW-2/C8. He CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 21 of 34 has further stated that firstly, these credit challans are not photocopies, rather the same are carbon copies, the original of which are always given to the distributor by the complainant and only the carbon copy with the acknowledgment is retained. Secondly, no objection regarding mode and manner of proof of these credit challans was taken by the accused at the time of examination-in-chief of the witness, CW-2, namely, Sh. Anil Rajput.
64. Ld. counsel for the complainant has further drawn the attention of this court towards the fact that all of the credit challans bear the stamp/seal of the accused and some of the credit challans have also been signed by him. He has thus submitted that this is proof of the fact that the goods/material were duly supplied to the accused by the complainant which was also duly acknowledged by the accused.
65. In respect of the return of goods, Ld. counsel for the complainant has submitted that the same is sought to be proved on the basis of document Mark DW-1/1 and Mark DW-2/8. He has submitted that the witness DW-1 is neither the maker of the said document, nor has the said document been made in his presence and hence, he is not a competent witness to prove the said return invoice. He has further submitted that bare perusal of the said return invoice would reveal that the same does not bear any seal/stamp of the complainant company nor does it bear any signatures of the authorized officer of the complainant company in this regard. In respect of the incentives, Ld. counsel for the complainant has submitted that there is nothing on record to suggest that any incentives were overdue which were to be given CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 22 of 34 by the complainant company to the accused.
66. This court shall firstly deal with the fact as to whether the complainant has been able to prove the quantum of liability of the accused to the extent of the amount of cheques in question. In this regard, it is to be noted that presumption u/s. 118 r/w. 139 of NI Act runs in favour of the complainant and the burden of proof was on the accused to prove that he is not liable to pay the amount written in the cheques in question or that at least he is not liable to pay the entire amount.
67. Extensive cross-examination has taken place on the aspect of the liability of the accused. Several suggestions have been put to the witness CW-2, including that the credit challans placed on record are forged and fabricated and that the invoices have not been placed on record because no such sale has been concluded between the parties. Admittedly, no invoices/bills or statement of account have been placed on record by the complainant. However, this court cannot loose sight of the fact that the credit challans with the acknowledgement by the accused are already on record as Ex.CW-2/C1 to Ex.CW-1/C8. This court also has to bear in mind that the presumption u/s. 118 r/w. 139 of NI Act runs in favour of the complainant that the cheques in question have been issued by the accused to the complainant in discharge of legally enforceable debt or liability.
68. In a case u/s. 138 NI Act, the burden of proof is on the accused to raise a probable defence and prove his defence on the basis of preponderance of probabilities. As stated above, several questions have been put and several suggestions have been given by Ld. counsel for the accused to the witness, CW-2, however, a CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 23 of 34 careful perusal of the plea of defence of the accused at the stage of serving of notice of accusation on him on 27.07.2007, the statement of accused u/s. 313 CrPC recorded on 30.10.2019, and the examination-in-chief of the accused himself as DW-2, recorded on 28.05.2022 and 23.06.2022 would reveal that the accused has not stated even once that he has not received the goods from the complainant or that the invoices placed on record are false and fabricated. It is pertinent to note that despite himself entering into the witness box, the accused has not denied/ disputed the credit challans or the delivery of the goods. Rather during his cross-examination dated 23.06.2022, the accused has admitted the fact of delivery of goods.
69. When the credit challans are already placed on record, and the delivery of the goods is not disputed by the accused, then this court fails to understand as to what was the requirement for the complainant to file the invoices/bills or the statement of account in respect to the present transaction between the parties.
70. In regard to the return of goods by the accused, it is to be noted that the return invoice is dated 05.07.2006, i.e., almost 1½ months prior to the delivery of the goods in question. Moreover, I am inclined to agree with the submissions made by Ld. counsel for the complainant that the return invoice Mark DW-1/1 and Mark DW-2/8 does not bear the seal/stamp of the complainant company and also does not bear the signatures of any authorized person of the complainant company. In such circumstances, the return of goods cannot be said to be duly proved by the accused.
71. In regard to the outstanding amount towards incentives that was to be received by the accused from the complainant, CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 24 of 34 reliance has been placed by the accused on the inter-office memorandum of the complainant company Mark DW-1/2 and Mark DW-2/9. It is to be noted that the same is dated 09.01.2004, and the transaction in question pertains to August, 2006. It is also to be noted that no documentary evidence has been placed on record by the accused to show that he was to get a sum of about Rs.35,00,000/- in incentives from the complainant. An inter- office memorandum more than 2½ years before the transaction in question cannot prove the future incentives given to the accused by the complainant company.
72. Moreover, even if the accused is to get any sum of money towards return of goods to the complainant or the incentives, then also the same creates a separate liability of the complainant towards the accused and the accused cannot hold back the actual due amount towards the complainant against purchase of goods on the basis of the same.
73. It has been admitted by the accused during his cross- examination that he has not filed any case against the complainant for recovery of his dues towards return of goods and incentives. It is not the conduct of a reasonable prudent person to leave such a huge sum of approximately Rs.44,00,000/- and not file a case in respect of the same, specifically when the complainant has filed a criminal case u/s. 138 NI Act against the accused. It appears to the court that the accused has not filed any case against the complainant for the recovery of his dues only because there are no such dues.
74. In view of the above discussion, the defence of the accused that there is no legally enforceable debt or liability in CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 25 of 34 favour of the complainant qua the cheques in question, as goods for a sum of Rs.10,00,000/- (approximately) were returned to the complainant by the accused and the accused also had outstanding of certain amount to be recovered from the complainant in incentives is not tenable in the eyes of law.
EIGHTH DEFENCE
75. The last defence taken by the accused is that the authorization of the AR of the complainant, i.e., Sh. Narinder S. Kainth (CW-1), Sh. Sanjay Mittal and Sh. Anil Rajput (CW-2) has not been proved beyond reasonable doubt and their authorization has not been proved on the basis of established rules of evidence.
76. Ld. counsel for the accused has submitted that the authorization of the complainant to file the present complaint through Sh. Sanjay Mittal is sought to be proved by way of documents Ex.CW-1/A and Ex.CW-1/A1, i.e., the power of attorney dated 02.03.2006 in favour of Sh. Narinder S. Kainth and the authority letter in favour of Sh. Sanjay Mittal respectively. He has further submitted that the authority of Sh. Sanjay Mittal is not proved because the authority letter Ex.CW- 1/A1 does not bear his signatures. He has further drawn the attention of this court to the fact that the power if attorney Ex.CW-1/A in favour of Sh. Narinder S. Kainth was to expire on 31.12.2007 and the subsequent power of attorney placed on record is dated 18.10.2012, hence, it is not shown as to how Sh. Narinder was authorized to prosecute the present complaint from 31.12.2007 to 18.10.2012.
77. In respect to the authorization of Sh. Anil Rajput (CW-2) CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 26 of 34 by Sh. Narinder S. Kainth, Ld. counsel for the accused has submitted that vide power of attorney dated 29.01.2016, Sh. Neeraj Mehta has been appointed as the AR for the complainant company to prosecute the complaints and to further delegate the authority and hence, Sh. Narinder S. Kainth was not authorised to appoint Sh. Anil Rajput as an AR for the complainant company and only Sh. Neeraj Mehta had such authority.
78. Per Contra, Ld. counsel for the complainant has submitted that the accused is merely taking technical pleas to evade his legal liability towards the complainant. He has further submitted that the present complaint has been duly instituted through Sh. Sanjay Mittal and the authority letter in his favour is already on record. He has further submitted that Sh. Anil Rajput was duly authorized to give evidence by an authority letter executed in his favour by Sh. Narinder S. Kainth.
79. Reliance is placed by this court on the judgment of Hon'ble Bombay High Court in Central Bank of India Vs. Tarseema Compress Wood Manufacturing Company and Ors., AIR 1997 Bom. 225, wherein it has been held that "No Power of Attorney or Authorization is necessary for any Witness to give evidence in Court. It may be for filing the Plaint, or signing the Plaint or signing a Written Statement an authority may be necessary, but to give evidence on oath, anybody, who is acquainted with the facts can give evidence." Similar view has been taken by the Hon'ble Andhra Pradesh High Court in Nemani Suryanarayana vs. Wilfred Kolady Rabindranadth & Ors., AIR 2020 AP 183.
80. Hon'ble Supreme Court in A.C. Narayanan Versus State CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 27 of 34 of Maharashtra and Another, (2014) 11 SCC 790, has held that any power of attorney holder having personal knowledge or due knowledge of the facts can depose as a witness in the case.
81. The observations of Hon'ble Supreme Court of India in TRL Krosaki Refractories Limited Vs. SMS Asian Private Limited and Anr., (2022) SCC Online SC 217 are noteworthy, wherein the court has held as follows:
"25. In that view, the position that would emerge is that when a company is the payee of the cheque based on which a complaint is filed under Section 138 of the NI Act, the complainant necessarily should be the company which would be represented by an employee who is authorised. Prima facie, in such a situation the indication in the complaint and the sworn statement (either orally or by affidavit) to the effect that the complainant (Company) is represented by an authorised person who has knowledge, would be sufficient. The employment of the terms "specific assertion as to the knowledge of the power-of- attorney holder" and such assertion about knowledge should be "said explicitly" as stated in A.C. Narayanan [A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : (2014) 4 SCC (Civ) 343] cannot be understood to mean that the assertion should be in any particular manner, much less only in the manner understood by the accused in the case. All that is necessary is to demonstrate before the learned Magistrate that the complaint filed is in the name of the "payee" and if the person who is prosecuting the complaint is different from the payee, the authorisation therefor and that the contents of the complaint are within his knowledge. When, the complainant/payee is a company, an authorised employee can represent the company. Such averment and prima facie material is sufficient for the learned Magistrate to take cognizance and issue process. If at all, there is any serious dispute CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 28 of 34 with regard to the person prosecuting the complaint not being authorised or if it is to be demonstrated that the person who filed the complaint has no knowledge of the transaction and, as such that person could not have instituted and prosecuted the complaint, it would be open for the accused to dispute the position and establish the same during the course of the trial."
82. The Hon'ble Supreme Court of India in National Small Industries Corpn. Ltd. vs. State (NCT of Delhi), (2009) 1 SCC 407 has permitted the change of AR from time to time in a case instituted by a company and held as follows:
"19. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of Section 142 of the NI Act, the company will be the complainant, and for purposes of Section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of the proviso to Section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation."
(Emphasis Supplied)
83. The Hon'ble Supreme Court of India in M.M.T.C. Ltd. vs. Medchl Chemicals and Pharma (P) Ltd., (2002) 1 SCC 234 has held that any infirmity in the authorization of the AR can be rectified at a subsequent stage and has held as follows:
"12. In the case of Associated Cement Co. Ltd. v.CC No. 10954/2019
M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 29 of 34 Keshvanand [(1998) 1 SCC 687 : 1998 SCC (Cri) 475] it has been held by this Court that the complainant has to be a corporeal person who is capable of making a physical appearance in the court. It has been held that if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court. It is held that the court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings. It has further been held that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. It has been held that there may be occasions when different persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. Thus, even presuming, that initially there was no authority, still the company can, at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company."
(Emphasis Supplied)
84. The law that emerges from all the above-mentioned judgments is as follows:
(a) In a complaint case u/s. 138 NI Act instituted by a company, the same must be filed through a duly authorised representative of the complainant company.
(b) In case of any defect in the authorization of the AR, the same can be rectified at any subsequent stage.CC No. 10954/2019
M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 30 of 34
(c) The AR may be substituted at any point of time subject to the permission of the court concerned.
(d) The accused is at liberty to take objection during the trial that the AR is either not duly authorized or that he is not having either personal or due knowledge of the facts of the matter.
(e) No authorization is required for a person to only give evidence on oath.
85. In the facts of the present matter, following are the points of determination before this court pertaining to this defence of the accused:
(a) Whether the present complaint has been properly instituted through a duly authorised representative of the complainant company?
(b) Whether the non-filing of the board resolution/power of attorney extending the authority of Sh. Narinder S. Kainth after 31.12.2007 till 18.10.2012, has any bearing on the merits of the case at hand?
(c) Whether Sh. Anil Rajput is a duly authorised representative of the complainant company and whether he was competent to depose as a witness on behalf of the complainant company?
86. In regard to the first point of determination, it is pertinent to note that the present case was filed through Sh. Sanjay Mittal. The evidence by way of affidavit of Sh. Sanjay Mittal, the authority letter dated 25.09.2006 in his favour, i.e., Ex.CW-1/A1 and the board resolution in favour of Sh. Narinder S. Kainth dated 02.11.2005 appointing him the AR for the complainant company till 31.12.2007 and authorizing him to further delegate CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 31 of 34 these powers, i.e., Ex.CW-1/A are already on record. The sole ground taken by the accused to assail the authority of Sh. Sanjay Mittal is that he has not signed his authorization letter, Ex.CW- 1/A1, wherein it is stated "Signatures of Mr. Sanjay Mittal". Sh. Narinder S. Kainth has stepped into the witness box as CW-1, to prove his authority, the authority of Sh. Sanjay Mittal and the authority of Sh. Anil Rajput.
87. The purpose of affixation of attesting signatures on an authority letter is merely identification of the said AR. The authorization becomes complete as soon as the executant has signed the same. Merely because the authority letter lacks the attesting signatures of Sh. Sanjay Mittal, does not make the authorization invalid or ineffective.
88. In my considered opinion, in so far as the authorization of Sh. Sanjay Mittal is concerned, there is no infirmity in the same and the complaint cannot be said to be improperly instituted.
89. In regard to the second point of determination, it is a matter of record that the board resolution/power of attorney extending the authority of Sh. Narinder S. Kainth after 31.12.2007 till 18.10.2012, has not been filed. In this regard, reliance is placed by this court on the above-mentioned of judgment of Hon'ble Supreme Court of India in M.M.T.C. Ltd. (supra). The power of attorney dated 18.10.2012 in favour of Sh.Narinder S. Kainth is already on record as Ex.CW-1/A2. Moreover, there is nothing on record to even remotely suggest that the authority of Sh. Narinder S. Kainth was ever revoked during the above-mentioned period of 31.12.2007 till 18.10.2012. By filing the power of attorney Ex.CW-1/A2, any defect in the CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 32 of 34 authority of Sh.Narinder S. Kainth has been rectified.
90. In regard to the third point of determination, the authority letter in favour of Sh. Anil Rajput is on record as Ex.CW-1/B and Sh. Narinder S. Kainth has entered the witness box as CW-1 to prove the authorization of Sh.Anil Rajput. The primary objection taken by the accused is that vide power of attorney dated 29.01.2016, Ex.CW-1/P1, Sh. Neeraj Mehta was appointed an AR for the complainant company and was given the powers of delegation and hence, thereafter, Sh. Narinder S. Kainth could not have appointed Sh. Anil Rajput as an AR for the complainant company and the same could have been done only by Sh. Neeraj Mehta.
91. In the power of attorney dated 18.10.2012, Ex.CW-1/A2, it is specifically stated that, "This Power of Attorney is effective from October 15, 2012 and shall remain in force unless otherwise revoked in writing by the Company". Sh. Narinder S. Kainth has expressly stated on oath that his authority had not been revoked till the date of his examination. In power of attorney dated 29.01.2016, Ex.CW-1/P1, there is nothing to suggest the revocation of authority of Sh. Narinder S. Kainth. It is pertinent to note that the authority of Ms. Deepa Das was expressly revoked vide board resolution dated 02.03.2006, Ex.CW-1/A.
92. In the considered opinion of this court, there is nothing on record whatsoever to even remotely suggest that the authority of Sh. Narinder S. Kainth to delegate his powers granted vide power of attorney dated 18.10.2012, Ex.CW-1/A2 have been revoked. When it was specifically mentioned in the said power of attorney CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 33 of 34 that the authority can be revoked only in writing, there cannot be any implied revocation of the same.
93. In view of the above discussion, I do not find any infirmity in the authorization of either Sh. Narinder S. Kainth, Sh. Sanjay Mittal or Sh. Anil Rajput.
FINAL ORDER
94. In view of the above discussion and in view of the judgments of Hon'ble Superior Courts as stated above, the accused has not been able to raise any probable defence and has not been able to prove his defence on the basis of preponderance of probabilities that there is no legally enforceable debt or liability in favour of the complainant and against him equivalent to the amount of cheque in question as on the date of their drawal or on the date of their presentation. Thus, the accused has not been able to rebut the presumption u/s. 118 r/w. section 139 NI Act. Furthermore, the complainant has been able to prove his case beyond reasonable doubt qua the accused in respect of the cheque in question.
95. In view of the aforesaid, accused, namely, Sanjeev Sachdeva, Proprietor of M/s Sachdeva Distributor, S/o Late Sh. JL Sachdeva, is hereby convicted of offence under Section 138 Negotiable Instruments Act.
Announced in Open Court (Anshul Singhal) on 01.07.2023 MM(N.I. Act)-03/NDD/RACC/ND
Note: This judgment contains 34 signed pages and each page has been signed by the undersigned.
(Anshul Singhal) MM(N.I. Act)-03/NDD/RACC/ND 01.07.2023 CC No. 10954/2019 M/s Hindustan Coca-Cola Beverages Vs. Sanjeev Sachdeva Page No. 34 of 34