Delhi District Court
Davinder Singh vs . M/S Senior Power Projects Ltd (Sppl) ... on 9 March, 2015
1
IN THE COURT OF MS PREETI PAREWA : METROPOLITAN
MAGISTRATE - 02 : SOUTH : SAKET COURT : NEW DELHI
Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others
CC No. 3425/11
U/s 138 & 142 Negotiable Instruments Act
Unique Identification No. : 02406R0054332011
JUDGMENT
(1) Serial number of the case : 3425/11
(2) Name of the complainant : Davinder Singh @ Devinder
Singh
S/o Sh Gurbachan Singh
R/o WZ-585, Shiv Nagar, Gali
No. 21, Ist Floor, Delhi-110058
(3) Name of the accused : 1. M/s Senior Power Projects Ltd. (SPPL), 1/1, Shanti Niketan, New Delhi-110021
2. Vijay Dixit, Director of M/s Senior Power Projects Ltd.
(SPPL)
3. Kalpana Dixit, Director of M/s Senior Power Projects Ltd.
(SPPL) - Declared absconder vide order dated 05/07/2013
4. Umesh Pandey S/o Sh P N Pandey Authorized Signatory of M/s Senior Power Projects Ltd.
(SPPL) - Declared absconder vide order dated 05/07/2013
5. M/s Associated Forex Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 1 of 11 2 Services Ltd. (AFSL) - Not Summoned
6. Rakesh Gupta, Director of M/s Associated Forex Services Ltd. (AFSL) - Not Summoned
7. Deepti Gupta, Director of M/s Associated Forex Services Ltd.
(AFSL) - Not Summoned (4) Offence complained of or proved: 138 r/w Section 142 Negotiable Instruments Act (5) Plea of the accused : Accused no. 1 M/s Senior Power Project Ltd - No plea taken Accused no. 2 Vijay Dixit -
Pleaded not guilty
(6) Final Order : Accused no. 1 M/s Senior
Power Projects Ltd. (SPPL) -
Acquitted U/s 138 r/w
Section 142 N I Act
Accused no. 2 Vijay Dixit -
Acquitted U/s 138 r/w
Section 142 N I Act
(7) Date of Institution : 07/03/2011
(8) Date on which reserved for
judgment : 05/03/2015
(9) Date of Judgment : 09/03/2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. The brief facts of the case are as carved out from the complaint Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 2 of 11 3 are that the complainant was approached by the accused no. 4 Umesh Pandey along with other persons namely Manish Pandey and Yogesh Pandey and represented the complainant as an authorized representative of SPPL and AFSL and further represented that AFSL is a company of repute and both AFSL & SPPL had joined hands to deal in the commodity business with Multi Commodity Exchange India Ltd. (MCX) of commodities and also represented that AFSL is holder of the Commodity Membership bearing no. 21850 and that SPPL & AFSL have entered into an understanding whereby AFSL & SPPL will do/are doing the trading of commodities with MCX.
It is further averred in the complaint that accused no. 4 Umesh Pandey with other persons also represented that accused no. 2 Vijay Dixit is a man of repute and also the owner of one of the media channels and accused no. 1 M/s Senior Power Projects Ltd & accused no. 2 Vijay Dixit are the owners and Director of SPPL and accused no. 6 Rakesh Gupta and accused no. 7 Deepti Gupta are the Directors of AFSL and have very good knowledge in respect of trading of commodities.
It is further averred that because of the above said inducements and representations made by the accused persons in connivance with each other, the complainant invested his hard earned money with them by cash of Rs.1,50,000/- for which the accused persons had issued receipts dated 01/02/2010, 02/03/2010 & 09/03/2010. It is further averred that thereafter the complainant did not receive the amount of profit on his deposited amount and he approached the office of AFSL where the accused nos. 6 Rakesh Gupta and accused no. 7 Deepti Gupta assured the complainant that his amount Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 3 of 11 4 has been credited to SPPL and also showed copy of MOU dated 16/12/2009 and a copy of affidavit/undertaking/indemnity bond dated 16/12/2009 to the complainant and assured her that her profits would be returned.
Further it is averred that once again the complainant with other aggrieved persons approached at the office of AFSL at Connaught Place & Patel Nagar in the months of April & May 2010 but accused no. 4 Umesh Pandey & accused no. 6 Rakesh Gupta were not found there and thereafter, they visited the office of SPPL, where they met accused no. 2 Vijay Dixit, accused no. 3 Kalpana Dixit & accused no. 4 Umesh Pandey and accused no. 2 Vijay Dixit assured the complainant that he is in contact with accused no. 6 Rakesh Gupta and accused no. 7 Deepti Gupta and the cheque of the profit amount will be handed over to the complainant from the office of AFSL by accused no. 4 Umesh Pandey, accused no. 6 Rakesh Gupta and accused no. 7 Deepti Gupta. Further it is stated in the complaint that despite repeated assurances, the complainant did not receive the cheque amount and he again visited the office of AFSL at CP in the last week of May 2010 and in the month of June 2010 where he met accused no. 4 Umesh Pandey, accused no. 6 Rakesh Gupta and other persons who handed over the cheque in question bearing no. 394473 dated 15/07/2010 for a sum of Rs.1,50,000/- drawn on HDFC Bank, Anand Niketan to the complainant for part discharge of their liability which was returned unpaid with endorsement "Funds Insufficient"
vide memo dated 08/01/2011.
It has been further averred in the complaint that the legal demand notice dated 19/01/2011 was sent to the accused through registered Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 4 of 11 5 AD and UPC on 24/01/2011 which was duly served and despite the lapse of stipulated time of 15 days, payment of the cheque in question was not made by the accused persons. Thus, the complainant filed the present complaint under Section 138 N.I. Act r/w Section 142 N I Act.
2. In pre-summoning evidence, the complainant examined himself as a witness and relied upon his affidavit ExCW1/J and documents exhibit ExCW1/1 to ExCW1/22 which are payment receipt issued by M/s Associated Forex Services Ltd dated 01/02/2010, payment receipt issued by M/s Associated Forex Services Ltd dated 01/02/2010, payment receipt issued by M/s Associated Forex Services Ltd dated 02/03/2010, payment receipt issued by M/s Associated Forex Services Ltd dated 02/03/2010, payment receipt issued by M/s Associated Forex Services Ltd dated 09/03/2010, payment receipt issued by M/s Associated Forex Services Ltd dated 09/03/2010, letters issued by M/s Associated Forex Services Ltd. to the complainant dated 01/02/2010, cheque in question, its return memo, legal notice of demand, postal receipts and AD Cards respectively. Complainant has also relied upon documents Mark A & Mark B which are MOU executed on 16/12/2009 and copy of Indemnity Bond executed on 16/12/2009 by accused no. 2 Vijay Dixit.
3. Process U/s 204 CrPC was issued against accused nos. 1, 2, 3 & 4 only and accused nos. 5, 6 & 7 were not summoned. Thereafter, accused nos. 2 Vijay Dixit, 3 Kalpana Dixit and 4 Umesh Pandey were declared absconders vide order dated 05/07/2013.
Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 5 of 11 6
4. Thereafter, accused no. 2 Vijay Dixit was produced before the court and notice U/s 251 CrPC was served upon accused no. 2 on 03/05/2014 to which he pleaded not guilty and disclosed his defence. In his defence, he stated that he did not issue the cheque in question to the complainant and was not liable to pay the cheque amount to the complainant.
None appeared for the accused no. 1 company and the accused company was proceeded against U/s 305 (4) of the CrPC.
5. Application U/s 145(2) N I Act was not moved by the accused no. 2 and therefore, matter was listed for DE. However, the Ld. Appellate Court set aside the order dated 09/10/2014 and gave one effective opportunity to the accused no. 2 Vijay Dixit to cross examine the complainant. Thereafter, the complainant was cross examined by the counsel for the accused no. 2 Vijay Dixit.
6. Statement of the accused no. 2 was recorded U/s 313 CrPC r/w Section 281 CrPC on 18/02/2015 wherein all the material existing on record was put to him. In his statement, he denied the issuance of cheque, receipt of legal demand notice and he also denied any liability towards the complainant.
7. Accused no. 2 Vijay Dixit did not prefer to lead any evidence in his defence and DE was closed vide order dated 18/02/2015. Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 6 of 11 7
8. No arguments were advanced on behalf of the complainant & accused no. 1 company. Arguments on behalf of the accused no. 2 VIjay Dixit were heard. Case file perused.
9. In order to prove an offence under Section 138 NI Act, following ingredients are required to be fulfilled :
i) That there is legally enforceable debt or liability;
ii) The drawer of the cheque issued the cheque to discharge in part or whole the said legally enforceable debt or liability,
iii) The cheque so issued was returned unpaid by the banker of the drawer.
iv)Legal demand notice was served upon the accused and the accused failed to make the payment within 15 days of the receipt of the said notice.
APPRECIATION OF EVIDENCE
10. In the present case, the cheque in question is ExCW1/9 drawn on Account of M/s Senior Power Projects Ltd (accused no.1 company) and the accused no. 2 Vijay Dixit, who is a Director of accused no. 1 company, has denied his liability towards the complainant and receipt of the legal demand notice. However, he has admitted the dishonour of the cheque in question. Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 7 of 11 8 With respect to the issuance of the cheque in question for legally enforceable debt or liability, there is a presumption that when a negotiable instrument is drawn, two statutory presumptions arise in favour of the holder in due course of the negotiable instrument, one under Section 139 and other under Section 118(a) of the NI Act. The court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. (Reliance placed on M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39).
In the present case accused no. 1 company has not raised any probable defence. Rather no defence has been put forth on behalf of the accused no. 1 company. However, for raising the presumptions in favour of the holder in due course of the negotiable instrument, the court prima facie has to act upon the supposition that the consideration does exist and for this purpose, the court has to look into the evidence led by the complainant.
In the present case, the complainant has averred the liability of the accused no. 1 M/s Senior Power Projects Ltd on the basis of : -
Para 2 at point A to A of affidavit ExCW1/J ; "I state that the complainant was approached by the accused no. 4 with other persons namely Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 8 of 11 9 Mahesh Pandey & Umesh Pandey and represented the complainant as an authorized representative of M/s Senior Power Projects Ltd & M/s Associated Forex Services Ltd respectively".
However, during the course of cross examination, the said affirmation of the complainant was discredited to the extent that he had never met Umesh Pandey till date and he also did not know any person namely Yogesh Pandey or Mahesh Pandey and neither Umesh Pandey, Yogesh Pandey or Mahesh Pandey approached him or told him that Vijay Dixit had joined hands with AFSL. Further, he has also deposed that he did not read the contents of his affidavit ExCW1/J. That being so, corroborated evidence was necessitated to find a nexus of the alleged transaction with the accused no. 1 M/s Senior Power Projects Ltd. Perusal of the entire evidence on record reveals a conspicuous absence of such evidence. Further the complainant has given evasive answers to direct questions. Complainant has specifically deposed that the cheque pertaining to the account of SPPL has been taken only under the presumption that he will receive his money invested in AFSL.
11. The entire cross examination of the complainant renders the testimony of the complainant unreliable and has been demolished completely and therefore, his testimony cannot be relied upon as to the facts averred by him in the complaint. Also documents Mark A and Mark B are photocopies and the complainant has not complied with Section 65 of Indian Evidence Act and thus, both these documents have no value in the eyes of law and are inadmissible in nature.
Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 9 of 11 10
12. Also, with respect to the Director of the accused company, it is settled law that it is necessary to specifically aver in a complaint U/s 141 N I Act that at the time the offence was committed, the person accused was incharge of and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 N I Act and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 N I Act cannot be said to be satisfied.
In so far as the signatory of a cheque which is dishonored is concerned, he is clearly responsible for the incriminating act and will be covered under Sub Section (2) of 141 N I Act and no such averment is required in the complaint.
13. In the present case, accused no. 2 Vijay Dixit is alleged to be the Director of accused no. 1 company and he is not the signatory to the cheque in question and there is no specific averment in the complaint with respect to he being Incharge and responsible for the day to day affairs of the accused no. 1 company. In absence of such an averment in the complaint, accused no. 2 Vijay Dixit cannot be said to be liable for the dishonour of the cheque in question and Section 141 (2) N I Act is not attracted.
14. Therefore, in the light of above said discussion, I find that accused no. 1 M/s Senior Power Projects Ltd and accused no. 2 Vijay Dixit are not guilty for offence for which they are charged with and thus, stands Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 10 of 11 11 acquitted for the offence punishable U/s 138 N I Act r/w Section 142 N I Act.
15. Copy of this judgment be given free of cost to the accused. Further accused no. 2 Vijay Dixit is directed to furnish bail bond and surety bond in the sum of Rs.10,000/- U/s 437(A) CrPC.
16. File be consigned to Record Room.
Announced in the open court on 09/03/2015 (PREETI PAREWA) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Certified that this judgment contains 11 pages and each page bears my signature.
(PREETI PAREWA) Metropolitan Magistrate-02/N I Act/South Saket Court/New Delhi Davinder Singh Vs. M/s Senior Power Projects Ltd (SPPL) and others CC No. 3425/11 Page 11 of 11