Delhi District Court
M/S Intec Capital Ltd. vs . Sudhir Kumar Awasthi on 30 June, 2018
IN THE COURT OF SHRI GAGANDEEP JINDAL: MM 09: SOUTHEAST
DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
M/s Intec Capital Ltd. Vs. Sudhir Kumar Awasthi
U/s 138 Negotiable Instruments Act, 1881
1. CIS Number : 630201/2016
2. Name of the complainant : M/s Intec Capital Ltd.
Registered Office at 701, Manjusha
Building, 57 Nehru Place, New Delhi
110019.
3. Name of the accused, parentage & : 1. Sudhir Kumar Awasthi, Guarantor
residential address M/s Avinash EM Projects Pvt. Ltd.,
Plot No.4, L.S.C. Main Road, Gazipur,
Delhi110069;
Also at Plot No.9/6, Telecom Society,
Sector62, Noida201301 (U.P.);
4. Offence complained of or proved : U/s 138 of Negotiable Instruments Act,
1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Acquittal
7. Date of judgment/order : 30.06.2018
M/s Intec Capital Ltd. Vs. Sudhir Kumar Awasthi CC No. 630201/2016 Page 1 of 6
Date of Institution : 19.01.2016
Date of Reserving Judgment/Order : 06.06.2018
Date of Pronouncement of Judgment/Order : 30.06.2018
JUDGMENT
1. By way of the present Judgment, I shall dispose off the present complaint filed by M/s Intec Capital Ltd. (hereinafter referred to as 'complainant') against Sudhir Kumar Awasthi (hereinafter referred to as 'accused') u/s 138 of Negotiable Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' in short).
2. It is submitted by the complainant that M/s Avinash EM Projects Pvt.
Ltd. (Borrower company) had availed a loan of Rs.5139902/ from complainant company vide loan agreement number O12679 which was repayable in 36 months. Accused stood as a guarantor and executed a guarantee agreement guarantying the repayment of loan in case of default by borrower company. Accused has issued cheque no.007147 dated 25.11.2015 of Rs.2949554/ drawn on ICICI Bank to discharge his liability as a guarantor. The complainant presented the said cheques for encashment, the same were returned unpaid with the remarks " Funds Insufficient" vide returning memo dated 30.11.2015. Thereafter, complainant got issued legal demand notice dated 22.12.2015 but accused failed to make the payment against the dishonoured cheque within 15 days from the date of service of legal demand notice. Hence, the present case was filed.
M/s Intec Capital Ltd. Vs. Sudhir Kumar Awasthi CC No. 630201/2016 Page 2 of 63. Notice u/s 251 Cr.P.C. was framed against the accused to which he pleaded not guilty and claimed trial.
4. To prove its case, complainant has examined Sh. Sumit Kumar as CW1 who filed his evidence by way of affidavit Ex.CW1/1 and has relied upon the following documents:
a) Copy of board resolution Ex.CW1/A;
b) Copy of authority letter Ex.CW1/B;
c) Original cheque Ex. CW1/C;
d) Copy of returning memo is Ex. CW1/D;
e) Copy of legal demand notice, postal receipt, courier receipt and tracking report are Ex. CW1/E to Ex. CW1/I (colly).
5. Accused failed to file an application u/s 145 (2) NI Act to cross examine the complainant's witness despite numerous opportunities. Therefore, the opportunity to cross examine the complainant's witness was closed on 10.11.2017.
6. In the statement of accused recorded u/s 313 Cr.P.C., all the incriminating evidence were put to the accused to which accused has stated that the cheque in question was issued as a security. He could not repay the loan due to losses suffered by him in business.
7. Accused examined DW1 Sh. Mahender Kumar from the office of Ld. Arbitrator before whom the arbitrary proceedings between both the parties qua the loan in question were filed and decided. He produced the entire file of such arbitrary proceedings which is Ex.DW1/2 (colly). Ms. Shobha Bharatwal, Ahlmad was examined as DW2 who produced the record of case number 630386/16 titled as Intec Capital Ltd. Vs Moolchand Sharma. The copy of the said proceedings is M/s Intec Capital Ltd. Vs. Sudhir Kumar Awasthi CC No. 630201/2016 Page 3 of 6 Ex.DW2/1. Sh. Himanshu Randhwa, Ahlmad was examined as DW3 who produced the record of case number 631163/16 titled as Intec Capital Ltd. Vs M/s Avinash EM Projects Pvt. Ltd. The copy of the said proceedings is Ex.DW3/1.
8. Final arguments on behalf of both the parties heard.
9. Ld. counsel for the complainant argued that the accused admitted his signatures on guarantee agreement produced by DW1 and cheque in question filed by the complainant. He further argued that the dishonor of the cheque in question is not disputed. He further argued that cheque in question was issued by the accused to discharge his liability as a guarantor of borrower company. Therefore, accused be convicted for the offence u/s 138 NI Act.
10. Ld. Counsel for accused argued that accused is not liable to pay the cheque amount because complainant company disbursed only Rs.4018408/ against the sanction loan of Rs.5139902/. Borrower company also deposited security of Rs.1176437/ with the complainant company. Complainant company failed to credit the interest on the said security amount as per terms and conditions of loan agreement. If the EMIs paid by the borrower company and the security amount is deducted from the actual disbursed amount then the liability of the borrower company and the accused is much less than the cheque amount. However, the complainant company presented the cheque for whole cheque amount, therefore, accused is not liable for the offence u/s 138 NI Act.
11. In rebuttal Ld. Counsel for complainant argued that as per the loan agreement borrower company agreed to deposit of Rs.1798965/ as collateral security but in actual only Rs.1176437/ was deposited as collateral security. The said collateral security and interest thereupon was supposed to be adjusted after repayment of M/s Intec Capital Ltd. Vs. Sudhir Kumar Awasthi CC No. 630201/2016 Page 4 of 6 entire loan as per loan agreement.
12. The complainant did not file any loan agreement, deed of guarantee executed by the accused. Complainant did not file any statement of account to prove the actual outstanding amount against borrower company and the accused as a guarantor. It is the accused who had summoned the record of arbitration proceedings which includes all such documents and statement of account which is Ex.DW1/1 (colly).
13. As per the loan agreement executed between the complainant company and borrower company, a loan of Rs.51,39,902/ was sanctioned to the borrower company. However, as per the statement of account only Rs.40,18,408/ was disbursed in four installments to the borrower company on 31.01.2013. Borrower Company had paid Rs.2,32,005/ which includes the processing fee of Rs.57,752/, ROC charges of Rs.3,500/, stamp duty of Rs.1,250/ and the advance installment of Rs.1,69,503/ on 31.03.2013 itself.
14. As per the statement of account, the borrower company repaid Rs.24,49,945/ from 16.01.2013 to 09.02.2015 apart from Rs.11,76,437/ was deposited as collateral security on 25.02.2013. The amount of collateral security had to be adjusted while calculating the liability after loan recall notice. Thus, the borrower company had paid Rs.38 lacs approximately against total disbursed amount of Rs.40,18,408/ within two years from the date of disbursement of loan amount. The complainant admittedly charged the interest at the sanctioned loan of Rs.51,39,902/ against the actual disbursal of Rs.Rs.40,18,408/ plus other charges of Rs.52,502/. The complainant company also did not credit the entire interest on collateral security of Rs.11,76,437/till loan recall notice. Complainant has failed to M/s Intec Capital Ltd. Vs. Sudhir Kumar Awasthi CC No. 630201/2016 Page 5 of 6 explain how the liability of Rs.29,49,554/ was calculated.
15. As per Section 128 of Indian Contract Act, the liability of guarantor is coextensive with the liability of principal borrower. Once it is proved that principal borrower is not liable to pay the cheque amount, then the accused, who is guarantor in the present case cannot be held liable to pay the cheque amount.
16. It is settled principal of law that a person cannot be held liable for the offence u/s 138 NI Act if his actual liability was less than the cheque amount on the date of presentation of cheque and the cheque was presented for the entire cheque amount. Reliance in this regard can be placed upon the judgment passed by Hon'ble High Court of Delhi in the case of M/s Alliance Infrastructure Project Pvt. Ltd. and Ors. Vs Vinay Mittal Crl. M.C. No.2224/2009 decided on 18.01.2010.
17. Conclusion:
In view of the aforesaid findings, the court is of the considered opinion that accused is able to adduce a probable defence in his favour and successfully rebut the presumption u/s 139 of Negotiable Instruments Act. The onus to prove the legal liability of the accused shifts back to the complainant, which the complainant has failed to discharge. Hence, accused Sudhir Kumar Awasthi is acquitted for the offence u/s 138 N.I. Act. Digitally signed by GAGANDEEP GAGANDEEP JINDAL JINDAL Date: 2018.06.30 16:41:16 +0530 Announced and signed in the (Gagandeep Jindal) open court on 30.06.2018 MM09:SED:Saket Courts, New Delhi M/s Intec Capital Ltd. Vs. Sudhir Kumar Awasthi CC No. 630201/2016 Page 6 of 6