Delhi District Court
Satyendra V. Omway Buildestate Private ... vs Yadav V. Reena on 2 September, 2021
Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016
IN THE COURT OF MS. TWINKLE CHAWLA: MM, NI ACT-02, SOUTH-
EAST DISTRICT, SAKET COURTS COMPLEX: NEW DELHI
Satyendra v. Omway Buildestate Private Ltd.
CC No. 619012/2016
U/s 138 Negotiable Instruments Act, 1881
1. CIS number :
DLSE020005182010
2. Name of the Complainant : Sh. Satyendra Jain
S/o Sh. H.C Jain
R/o H. No. D-1, 2nd Floor, Defence
Colony,
New Delhi -110024.
3. Name of the Accused, : 1. Omway Buildestate Private Ltd.
parentage & residential 3, Local Shopping Complex, Sharda
address Chamber, K-Block, Kalkaji, New
Delhi-110019.
2. Mr. Janak Goyal,
S/o Sh. Bhagwan Goyal Director, M/s
Omway Buildestate Private Ltd. 3,
Local Shopping Complex, Sharda
Chamber, K-Block, Kalkaji, New
Delhi-110019. Also R/o: 175,1st Floor,
Sector 12A, Hashanpur, Haryana-
121107 & S-151 Ground Floor
UPPAL'S Southend, Sohna Road,
Gurgaon.
3. Mrs. Neelam Goyal,
W/o Mr. Janak Goyal, Director, M/s
Omway Buildestate Private Ltd. 3,
Local Shopping Complex, Sharda
Chamber, K-Block, Kalkaji, New
Delhi-110019. Also, R/o 175,1st Floor,
Sector 12A, Hashanpur, Haryana-
121107 & S-151 Ground Floor
UPPAL'S, Southend, Sohna Road,
Gurgaon.
4. Offence complained of or : U/s 138 of Negotiable Instruments Act,
proved 1881
Page 1 of 34
Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016
5. Plea of the Accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : ACCUSED NO. 1: CONVICTED
ACCUSED NO. 2: CONVICTED
ACCUSED NO. 3: ACQUITTED
7. Date of judgment/order : 02.09.2021
JUDGMENT
1. Bereft of shoddy details, the case of the Complainant is that the Accused No. 1 company, through Accused No. 2 approached him for a loan of Rs. 4,35,00,000; which was given by the Complainant by way of three cheques. The said cheques were duly encashed by Accused No. 1. A loan agreement dated 20.01.2010 was executed in this behalf. The said loan along with interest was repayable by September 2010. In discharge of the said loan, two post-dated cheques, which are impugned in the present case, were given by the Accused No. 1 to the Complainant at the time of execution of the agreement, as security for repayment of the loan amount along with interest thereon. The said cheques were to be presented for payment if the Accused No. 1 company defaulted in the re-payment of the loan amount and interest thereon by the extended due date, i.e., 30.09.2010. The details of the two cheques issued in favour of the Complainant by the Accused No. 1 are as follows:
i. Cheque no. 504080, dated 30.09.2010 drawn on Bank of Baroda, for an amount of Rs. 4,35,00,000/- (Rupees Four Crores Thirty-Five Lakhs Only) towards payment of the principal amount (hereinafter referred to as "Principal Amount Cheque").
ii. Cheque no. 504081, dated 30.09.2010 drawn on Bank of Baroda, for an Page 2 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 amount of Rs. 97,69,266/- (Rupees Ninety-Seven Lakhs Sixty-Nine Thousand Two Hundred Sixty-Six only) towards payment of interest on the principal amount (hereinafter referred to as "Interest Amount Cheque"). (Principal Amount Cheque and Interest Amount Cheque are hereinafter collectively referred to as "cheques in question")
2. As per the Complainant, the Accused No. 1 defaulted in re-payment of the loan amount by 30.09.2010, despite requests being made by the Complainant. Accordingly, the cheques in question were presented by the Complainant on 15.10.2010. However, the Principal Amount Cheque was dishonored with the remarks "Funds Insufficient" vide return memo dated 15.10.2010; and the Interest Amount Cheque was also returned unpaid with remarks "Funds Insufficient" vide return memo dated 16.10.2010.
3. The Complainant then issued two legal demand notices through advocate, each dated 26.10.2010, in respect of the Principal Amount Cheque and the Interest Amount Cheque, respectively; to Accused No. 1 and Accused No. 2 and 3. The Accused, however, neither sent any reply to the said legal notice nor did they take any steps to make the payment. Hence, despite the service of the legal demand notice, the Accused persons failed to make the payment and hence, the Complainant has filed the present complaint. Further, Accused No. 2 and 3 are stated to be the directors of Accused No. 1 company who are in charge of the day-to-day affairs of the Accused No. 1 Company.
4. After taking pre-summoning evidence, Accused were ordered to be summoned in this case for commission of offence under Section 138 of Negotiable Instruments Page 3 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Act, 1881, vide order dated 13.12.2010.
5. Accused persons appeared and were released on bail on 15.01.2011. On finding a prima facie case, notice U/s 251 of the Code of Criminal Procedure, 1973 ("CrPC") was served upon the accused persons on 02.05.2011 to which they pleaded not guilty and opted to contest after disclosing the following defence:
Accused no. 2 for himself and on behalf of Accused no. 1:
"The cheque in question was given as a security to the Complainant. The same was to be presented for payment in case of failure on our part to abide by the terms and conditions of the agreement executed between the parties".
Accused No. 3:
"The cheque in question was given as a security to the complainant. The same was to be presented for payment in case of failure on our part to abide by the terms and conditions of the agreement executed between the parties. I am a sleeping director of Accused no. 1 and not aware about the transactions in question or handling of the day-to-day affairs of the Accused no. 1".
6. Vide order dated 01.03.2012 opportunity was granted to the Accused to cross examine the Complainant. The Complainant/CW1 has tendered post summoning evidence affidavit Ex. CW1/2 and has exhibited the following documents:
Ex. CW1/1: Complaint filed under Section 138 r/w 142 NI Act Mark A: Photocopy of the Loan Agreement dated 20.01.2010. Ex. CW1/B: Cheque bearing no. 504080 dated 30.09.2010 drawn on Bank of Baroda for an amount of Rs. 4,35,00,000/-.
Ex. CW1/C: Cheque bearing no. 504081 dated 30.09.2010 drawn on Page 4 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Bank of Baroda for an amount of Rs. 97,69,266/-.
Ex. CW1/D: Bank Returning memo dated 16.10.2010, in respect of Cheque bearing no. 504081.
Ex. CW1/E: Bank Returning memo dated 15.10.2010, in respect of Cheque bearing no. 504080.
Ex. CW1/F: Copy of Legal Demand Notice dated 26.10.2010; issued by the Complainant to the Accused, in respect of Cheque bearing no. 504080.
Mark B Copy of the Registered AD card and postal receipts in
(colly): respect of the legal demand notices.
Ex. CW1/G: Copy of Legal Demand Notice dated 26.10.2010; issued
by the Complainant to the Accused, in respect of Cheque
bearing no. 504081.
Complainant Evidence was closed vide separate statement of the Complainant on 01.11.2014.
7. Thereafter, Accused was examined under Section 313 of CrPC on 18.12.2014 for explaining the circumstances appearing against him in the Complainant's evidence. He denied the Complainant's case and pleaded false implication in the present case and opted to lead evidence in his defence. Defence evidence was led by the Accused wherein Sh. R.K. Saini, Senior Technical Assistant Officer, Registrar of Companies, Delhi and Haryana, deposed as DW1 and has exhibited the following documents:
Ex. DW1/1: Office Order dated 22.05.2015 issued by ROC, Delhi & Haryana Office.
Ex. DW1/2: Certified copy of Form 20B along with annual return of Astute Real Estate Private Ltd for year 2008.
Ex. DW1/3: Certified copy of Form 20B along with annual return of Astute Real Estate Private Ltd for year 2009.
Ex. DW1/4: Certified copy of Form 20B along with annual return of Astute Real Estate Private Ltd for year 2010.
Ex. DW1/5: Certified copy of Form 20B along with annual return of Astute Real Estate Private Ltd for year 2011.
Ex. DW1/6: Certified copy of Form 20B along with annual return of Astute Real Estate Private Ltd for year 2012.
Ex. DW1/7: Certified copy of Form 23AC along with balance sheet of Astute Real Estate Private Ltd for year 2008.
Page 5 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Ex. DW1/8: Certified copy of Form 23AC along with balance sheet of Astute Real Estate Private Ltd for year 2009.
Ex. DW1/9: Certified copy of Form 23AC along with balance sheet of Astute Real Estate Private Ltd for year 2010.
Ex. DW1/10: Certified copy of Form 23AC along with balance sheet of Astute Real Estate Private Ltd for year 2011.
Ex. DW1/11: Certified copy of Form 23AC along with balance sheet of Astute Real Estate Private Ltd for year 2012.
8. Defence evidence was closed by Court order on 04.03.2016.
9. I have heard Ld. Counsel for the parties and have perused the case file along with the written submissions filed by the parties carefully and meticulously. Submissions of the Complainant
10.The Ld. Counsel for the Complainant submitted that all ingredients of Section 138 NI Act are fulfilled in the present case and hence, the presumption under Section 139 NI Act arises in the favour of the Complainant, which has not been successfully rebutted by the Accused. It has further been submitted that at the time of dishonour of the cheques in question, the Accused No. 2 and Accused No. 3 were directors of Accused No. 1 company and were in charge of the day-to-day affairs of Accused No. 1 company.
Submissions of the Accused Persons
11.Per Contra, Ld. Counsel for the Accused persons has submitted that the Complainant has failed to fulfil the basic ingredients of Section 138 NI Act, as (i) the legal demand notice was not sent to the Accused persons by the Complainant, evinced by the non-filing of original postal receipts; and (ii) sale of the assets of Accused No. 1 company had been stayed by the orders of the Hon'ble Rajasthan High Court/Hon'ble Supreme Court, and hence, offence under Section 138 NI Act could not be made out. (Reliance has been placed on the observations of the Hon'ble Page 6 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Supreme Court of India ("Hon'ble SC") in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd. & Ors., (2000) 2 SCC 745 ("Kusum Ingots Case"); and Delhi High Court in Onkar Nath Goenka v. Gujarat Lease Finance Ltd, LAWS (DLH) 2005 (5) 201. Hence, it is the case of the Accused that the presumption under Section 139 NI Act is not attracted in the present case.
12.In the alternative, Ld. Counsel for the Accused persons has also submitted that the Complainant has failed to prove his case even in light of the presumption of Section 139 NI Act, as the Complainant has not proved the existence of legally enforceable debt/liability. It has been submitted that the presumption under Section 139 of NI Act extends only to the existence of a debt; and not to existence of legally enforceable debt/liability. Reliance has been placed in this regard on the observations of the Hon'ble SC in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54.
13.Ld. Counsel for the Accused persons has further stated that the Complainant has not proved the existence of legal debt as: (i) the original loan agreement purported to have been executed between the parties has not been placed on record; and (ii) the Complainant has admitted the flow of funds set out in Mark Q4 and Q5; hereby acceding to existence of rotation of funds, which evinces that the loan amount was not utilized by the Accused.
Additional Submissions on behalf of Accused No. 3
14.Ld. Counsel for the Accused no. 3 has also submitted that Accused No. 3 was a sleeping director in Accused No. 1 company and was not in charge of the day-to- day affairs of the company. Further, submitted that there are no specific allegations Page 7 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 against her and even during evidence, her participation and control over the affairs of Accused No. 1 company has not been established. She has even ceased to be a director in Accused No. 1 company after the initiation of these proceedings. Hence, merely by being a director in the company at the relevant time, is not sufficient to attract liability under Section 141 NI Act.
15.Ld. Counsel for the Complainant has rebutted the aforesaid contentions of the Accused. It has been submitted by the Ld. Counsel for the Complainant that the presumption under Section 139 NI Act extends to the existence of a legally enforceable debt and the onus is not on the Complainant to prove the transaction; it is for the Accused to rebut the presumption.
Legal Framework Ingredients of Section 138 NI Act:
16. The Hon'ble SC in Kusum Ingots Case, has clearly stipulated that "the ingredients which are to be satisfied for making out a case under the provision are:
(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 for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months 1 from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii) that cheque is returned by the bank unpaid, either because of the amount of 1 Reduced to three months vide RBI circular dated 4.11.2011. Page 8 of 34
Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 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;
(iv) 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; and
(v) 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;
If the aforementioned ingredients are satisfied then the person who has drawn the cheque shall be deemed to have committed an offence."
17.Therefore, if the aforesaid ingredients are made out, the Accused is deemed to have committed an offence under Section 138 NI Act.
Presumption under Section 139 NI Act/Section 118 NI Act:
18.Section 139 NI Act states that:
"Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability"
19.Section 139 NI Act is a type of reverse onus clause, which stipulates a presumption in the favour of the Complainant as to fact of a cheque being received in discharge of a legal debt or liability.
Page 9 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016
20.Further, Section 118(a) of the NI Act, states as follows:
"Presumptions as to negotiable instruments. -- Until the contrary is proved, the following presumptions shall be made:
(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;"
21.The Hon'ble SC has in a number of judgments dealt with the combined effect of the presumptions raised under Section 139 and Section 118(a) NI Act.
22.The following proposition can be summarized on a perusal of the judgments of the Hon'ble SC in Kalamani Tex v. P. Balasubramanian, 2021 SCC OnLine SC 75, APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Ors., AIR 2020 SC 945; Rohitbhai Jivanlal Patel v. State of Gujarat and Ors., AIR 2019 SC 1876 ("Rohitbhai Case"); Basalingappa v.
Mudibasappa, (2019) 5 SCC 418; K.N. Beena v. Muniyappan and Anr., (2001) 8 SCC 458; and Dhanvantrai Balwantrai Desai v. State of Maharashtra, 1964 Cri. LJ 437:
(i) Once the execution of cheque is admitted; Section 139 of the NI Act mandates a presumption that the cheque was for the discharge of any debt or other liability;
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the Accused to raise the probable defence. The standard of proof Page 10 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 for rebutting the presumption is that of preponderance of probabilities;
(iii) To rebut the presumption, the Accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by her. While direct evidence cannot be insisted upon in any every case; bare denial of the passing of the consideration and existence of debt, would not serve the purpose of the Accused;
(iv) Something which is probable has to be brought on record by the Accused for getting the burden of proof shifted to the Complainant. To disprove the presumptions, the Accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist;
(v) The words "unless the contrary is proved" which occur in Section 139, make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by Section 139 NI Act cannot be said to be rebutted;
(vi) To rebut the presumption, it is open for the Accused to rely on evidence led Page 11 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 by her or the Accused can also rely on the materials submitted by the Complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely;
(vii) That it is not necessary for the Accused to come in the witness box in support of her defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
Analysis
23.In the case in hand, it is not in dispute that the cheques in question have been drawn by the Accused no. 1 from its bank account. Further, it is also not in dispute that the Accused no. 2 is the signatory of the cheques in question, in his capacity as the director of Accused No. 1. Presentation of the cheque in question by the Complainant and the dishonour of the same on grounds of funds insufficient is also not in dispute, as the same is evinced by the duly stamped return memos, Ex. CW1/D and Ex. CW1/E. It is pertinent to note that the Ld. Counsel for the Accused has submitted that a case under Section 138 NI Act is not made out since prior to the date of presentation of the cheques in question, a stay had been imposed on the sale of the assets of Accused No. 1 by Court order. It is pertinent to note that this defence had not been taken by the Accused persons at the stage of Section 251 CrPC as well as Section 313 CrPC. Further, it has not been proved by way of evidence that the bank account on which the cheques in question were drawn was also blocked or whether its operation was also stayed by the order of the Court. Additionally, Page 12 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 evidence has not been led to show that entire assets of the Accused No. 1 were the subject matter of the stay. Hence, inability to pay for reasons beyond control has not been proved on record. Regardless, it is observed that the reason for dishonour of the cheques in question in the present case is funds insufficient and not Account Blocked/Frozen; and that the order of the stay has not been passed as a part of moratorium or insolvency/SICA proceedings, i.e., proceedings which affect the institution of Section 138 NI Act proceedings. Accordingly, the facts of the present case are distinguishable from the facts in Onkar Nath Goenka Case (supra) and Kusum Ingots Case (supra), upon which the Accused persons have relied in the course of their arguments. Even otherwise, it is noted that the Hon'ble SC in Pankaj Mehra & Anr. v. State of Maharashtra & Ors., 2000 Crl.L.J 1781 (SC) had observed that Section 138 of the NI Act employs the phrase "the drawer of such cheque fails to make the payment", which is ostensibly different from saying "the drawer refuses to make payment"; thereby implying that failure to make payment can be due to the reasons beyond the control of the drawer, and to such failure, Section 138 NI Act will apply with equal force. Accordingly, in the absence of a specific bar on the proceedings and with no evidence being led on this issue; the objection becomes meritless.
24.The Complainant sent the legal demand notice, dated 26.10.2010 (Ex. CW1/F and Ex. CW1/G) to the Accused persons on 27.10.2010 (demonstrated by photocopy of the postal receipt, Mark B (Colly)). Although the Accused persons have disputed the receipt of the legal demand notice during the course of arguments on the ground that the Complainant has not filed the original postal receipts; the Accused persons Page 13 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 have not submitted that the address mentioned on the legal demand notice is not their correct address or that the photocopy of the postal receipt is forged. It is trite that in case of loss of postal receipts, secondary evidence in the form of photocopy may be led. Further, the Complainant has in his duly sworn affidavit deposed that the legal demand notice was sent to the Accused persons. Hence, a presumption of due service is drawn U/s 27 of General Clauses Act which provides that where the notice is sent to the correct address, the same shall be presumed to have been duly served.
25.Even otherwise, the Hon'ble SC in C.C. Alavi Hazi v. Palapetty Muhammad & Anr, (2007) 6 SCC 555 has held that:
"Any drawer who claims that he did not receive the notice by post, can, within 15 days of receipt of summons from the court in respect of the complaint U/s 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of complaint U/s 138 of the Act, cannot obviously contend that there was no proper service of notice as required U/s 138, by ignoring statutory presumption to the contrary U/s 27 of the General Clauses Act and Section 114 of the Evidence Act."
Hence, in this case, since, the Accused side has not made payment of cheque(s) amount in question within 15 days of the receipt of summons of this Court, therefore, in the light of above-said judgment and discussions, this Court is of the opinion that Page 14 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 defence of the Accused side that he has not received any legal demand notice is without any force and is hereby rejected.
Finally, the Complaint has been filed within the limitation period. Therefore, essential ingredients mentioned from (i) to (v) in paragraph no. 16 above, as stipulated by the Hon'ble SC in Kusum Ingots Case (supra), have been duly satisfied.
26. Hence, in the case in hand, so far as the question of existence of basic ingredients for drawing of presumption U/s 118 (a) and 139 of the NI Act is concerned, from the aforesaid discussion, it is apparent that the Accused no. 2 has not denied his signatures on the cheque in question that has been drawn in favour of the Complainant on a bank account maintained by the Accused no. 1; and hence the said presumption can be drawn. The Ld. Counsel for the Accused persons has stated that such inference cannot be drawn as the Accused No. 1 had given the cheques in question as blank signed cheques and the particulars on the same have been filled by the Complainant. At this stage, reliance can be laid on the observations of the Hon'ble SC in Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197 wherein it has been held that:
"It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted...
38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the Accused to prove Page 15 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 that the cheque was not in discharge of a debt or liability by adducing evidence...
40. Even a blank cheque leaf voluntarily signed and handed over by the Accused, which is towards some payment, would attract presumption Under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt."
(emphasis supplied)
27.The same view has been endorsed by the Hon'ble High Court of Delhi in Ravi Chopra v. State, CRL.M.C. 5211/2006; wherein it was observed that:
"A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which either defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a "material alteration" for the purposes of Section 87 NI Act. What however is essential is that the cheque must have been signed by the drawer."
(emphasis supplied)
28.Hence, in view of such clear stipulation by the Hon'ble SC and Hon'ble Delhi High Court, it is immaterial whether the particulars on the cheque have been filled by an accused or not, to the extent the accused has admitted to have appended his signatures on the cheques in question. Accordingly, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the Page 16 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 cheque i.e., the Complainant received the same in discharge of an existing debt. Ld. Counsel for the Accused persons has further contended that the presumption under Section 139 NI Act extends only to the existence of a debt, and not legally enforceable debt, the burden of proof of which remains on the Complainant. Reliance has been placed in this regard on the observations of the Division Bench of the Hon'ble SC in Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54. However, it is to be noted that the Division Bench of the Hon'ble SC in a later judgment of Rangappa v. Sri Mohan, (2010) 11 SCC 441 ("Rangappa Case") observed as follows:
"14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) may not be correct."
(emphasis supplied)
29.Further, the Hon'ble SC recently, in Kishan Rao v. Shankargouda, (2018) 8 SCC 165 and Uttam Ram v. Devinder Singh Hudan & Anr., (2019) 10 SCC 287 approved the dicta laid down in the Rangappa Case. Accordingly, it is noted that once the presumption under Section 139 NI Act is drawn, the same includes the presumption as to the existence of a legally enforceable debt/liability. The onus, therefore, shifts on the Accused to establish a probable defence so as to rebut such a presumption.
30.In the segment on legal framework, set out above, the legal proposition with respect Page 17 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 to the burden of proof upon the accused has already been discussed. Hence, it is now to be examined as to whether the Accused brought any material on record or highlighted glaring discrepancies in the case of the Complainant for dislodging the presumption which meets the standard of preponderance of probabilities.
31.The Accused in the present case, has taken the following line of defence with a view to rebut the presumption:
(a) There was no loan transaction with the Complainant and the Loan Agreement dated 20.01.2010 is forged:
Ld. Counsel for the Accused has submitted that the cheques in question were issued at the instance of the Complainant as security for the Complainant's investment in the Accused's project at Park City, Alwar, when the development of the project was stayed by the order of the High Court of Rajasthan. Further, he has submitted that the loan agreement dated 20.01.2010, i.e., Mark A, was not executed by the Accused and the signatures of the Accused have been taken by the Complainant on some blank papers and the same have been subsequently misused by the Complainant. He has further submitted that the loan transaction has not been proved as only a photocopy of the loan agreement has been placed on record. Further, it has been submitted that contrary to the submission of the Complainant, the original agreement has not been filed in the High Court of Delhi as well. Accordingly, it is proved that the loan agreement is forged. It is pertinent to note that the Accused persons have not led any defence evidence in support of this stance. However, the Complainant has been cross-examined at length. In order to examine this defence, it is important to note the defence Page 18 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 stated/taken by the Accused at different stages of the trial: (A) Notice under Section 251 CrPC: The Accused persons in their defence under Section 251 CrPC had stated that "the cheque in question was given as security to the complainant. The same was to be presented for payment in case of failure on our part to abide by the terms and conditions of the agreement executed between the parties." Hence, the Accused persons had accepted the existence of the agreement, i.e., Mark A and only taken the defence of the cheques in question having been issued as security cheques. (B) Suggestions in cross-examination of the Complainant: In the cross-
examination of the Complainant, extensive questions qua the loan agreement were asked. In cross-examination dt. 30.10.2013, it was suggested to the Complainant that the Mark A is not the photocopy of the loan agreement entered between the parties on 20.01.2010 and that the Complainant was deliberately and intentionally avoiding the production of the original document. This suggestion was vehemently denied by the Complainant. Further, in cross-examination dt. 17.10.2014, it was put to the Complainant that the agreement dt. 20.01.2010 was signed by the Accused no. 2 at the behest of the Complainant by exercising undue influence. The Ld. Counsel for the Accused had specifically asked that: "I put to you that pending stay orders passed by the Hon'ble Rajasthan High Court, you and Mr. Ravi Sharma got the agreement dated 20.01.2010 signed from accused no. 2 and the cheques in question by exercising undue influence by stating that you would get the accused no. 1 and 2 involved in litigation and will not permit Page 19 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 them to continue with the project if this agreement were not signed. What do you have to say?" The Complainant stated that this suggestion was false and incorrect.
Perusal of the cross-examination shows that no suggestions as to taking signatures of the Accused No. 2 on blank papers were given and in fact the execution of the loan agreement on 20.01.2010 is implicit in these suggestions, albeit with allegations of undue influence. (C) Statement under Section 313 CrPC: in his statement under Section 313, CrPC, the Accused no. 2 stated that the loan agreement, Mark A, was forged and that the signatures of the Accused No. 2 were taken on blank papers by the Complainant and later, the loan agreement has been printed on the same. A perusal of the aforesaid shows that there are glaring discrepancies in the stance taken by the Accused at different stages and there has been significant improvement in stance from the defence under Section 251 CrPC to statement under Section 313 CrPC. For instance, while the Accused in his defence in Section 251 CrPC has stated that the cheques were issued as security to be enchased at the time of non-compliance with terms with the agreement, without any insinuation of the agreement having being entered by exercise of undue influence; in the cross-examination, suggestions as to existence of undue influence at the time of execution of the agreement have been made; and in statement under Section 313 CrPC, a completely different stance of the signature of the Accused No. 2 having been taken on blank papers has been taken. No defence evidence has been led on the point of exercise of undue influence by the Page 20 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Complainant at the time of execution of the Loan Agreement. In fact, in statement under Section 313 CrPC, the Accused has stated that the cheques in question were given to one Alok Gupta on behalf of the Complainant, but the said person has not been examined by the Accused as to the circumstances of issuance of the cheques in question to the Complainant. Further, Mark A, i.e., the loan agreement sets out two witnesses, i.e., Mr. Lokesh Aggarwal and Mr. Alok Gupta, neither of whom have been examined by the Accused in support of his version of the circumstances surrounding the execution of the loan agreement. Further, while the Accused no. 2 has indicated that the cheques in question and the loan agreement was executed by Accused no. 2 under the threat of future litigation and under pressure; no evidence has been brought on record to show that the Accused no. 2, like a reasonable man, took any steps in order to address/report this threat, i.e., including the filing of a criminal complaint/taking any legal action against the Complainant for threatening the Accused persons. Further, when blank signed cheques (as per the version of the Accused persons) were given by the Accused persons to the Complainant under pressure and merely as security, against no liability, the lack of any legal action/communication demanding the cheques in question back from the Complainant; is not compatible with the conduct expected of a reasonable man. As set out above, it is trite that a bare denial or averment by the Accused, without any further proof, is not sufficient to rebut the presumption under Section 139 NI Act in favour of the Complainant.
Page 21 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 It is also noted that the Accused has vehemently submitted during arguments that in the absence of the original loan agreement being filed by the Complainant; the existence of the loan transaction cannot be established, merely on the basis of a photocopy of the agreement. However, in the considered opinion of this Court, in light of the presumption under Section 139 NI Act, unless the said presumption is rebutted by the Accused, the onus to prove the transaction by way of filing of agreement is not on the Complainant. In fact, the Hon'ble SC in a recent judgment Rohitbhai Case (supra) observed that:
"The observations of the Trial Court that there was no documentary evidence to show the source of funds with the Respondent to advance the loan, or that the Respondent did not record the transaction in the form of receipt of even kachcha notes, or that there were inconsistencies in the statement of the Complainant and his witness, or that the witness of the complaint was more in know of facts etc. would have been relevant if the matter was to be examined with reference to the onus on the complaintant to prove his case beyond reasonable doubt. These considerations and observations do not stand in conformity with the presumption existing in favour of the Complainant by virtue of Sections 118 and 139 of the NI Act. Needless to reiterate that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the Complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of Page 22 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 funds were not of relevant consideration while examining if the Accused has been able to rebut the presumption or not."
(emphasis supplied) Hence, the solitary fact of non-production of the original loan agreement, when the onus of production of documentary evidence was not on the Complainant, does not lead to an inference of the same being forged. It is also pertinent to note that in one suggestion in cross-examination dt. 30.10.2013, the Accused has suggested that Mark A is not the photocopy of the loan agreement executed between the parties on 20.01.2010, implying the existence of a different loan agreement between the parties. However, no other version of the loan agreement has been brought on record by the Accused persons to raise any probable defence and there is no express denial of his signatures on Mark A. On the other hand, the Complainant has in the legal demand notice, complaint and in the cross-examination stated that the cheques in question were issued as security for the loan given pursuant to Mark A, whereby the security cheques were to be encashed in case of non-repayment of the loan amount by 30.09.2010. Hence, upon the basis of the material on record, the version of the Accused does not inspire confidence.
(b) Misuse of cheques issued as security Accused has submitted that even as per the Complainant's version, the cheques in question were issued as security, with respect to which a complaint under Section 138 NI Act is not maintainable. He has further submitted that the Page 23 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Accused was not informed/intimated prior to presentation of cheques in question, which is a vital requirement in respect of security cheques. It is noted that the presumption under Section 139 NI Act cannot be dislodged by the fact of the cheques in question being security cheques, alone. The Hon'ble High Court of Delhi in Suresh Chandra Goyal v. Amit Singhal, Crl. L.P, 706/2014 has succinctly observed that:
"Section 138 of NI Act does not distinguish between a cheque issued by the debtor in discharge of an existing debt or other liability, or a cheque issued as a security cheque on the premise that on the due future date the debt which shall have crystallized by then, shall be paid. So long as there is a debt existing, in respect whereof the cheque in question is issued, in my view, the same would attract Section 138 of NI Act in case of its dishonour."
(emphasis supplied) Additionally, the Hon'ble High Court of Delhi in the aforesaid decision also referred to the judgments of the Hon'ble SC in ICDS Ltd. v. Beena Shabeer & Anr. (2002) 6 SCC 426; and Hon'ble High Court of Bombay in Sai Auto Agencies through its partner Dnyandeo Ramdas Rane v. Sheikh Yusuf Sheikh Umar, 2011 (1) Crimes 180 ("Sai Auto Agencies Case") to buttress the aforesaid observation. In fact, the Hon'ble High Court of Bombay in Sai Auto Agencies Case (supra) noted that:
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Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 "9. Even if blank cheque has been given towards liability or even as security, when the liability is assessed and quantified, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid the criminal liability arising out of Section 138 of the Negotiable Instruments Act."
(emphasis supplied) Therefore, the defence of cheque being a security cheque does not by itself rebut the presumption. Further, as noted above, since Section 138 NI Act does not distinguish between a security cheque and other cheque, an added requirement of intimation prior to presentation of cheque cannot be read into the NI Act. In fact, Clause 5.1 of the loan agreement, i.e., Mark A provided that:
"The Lender agrees that the post-dated cheques for the principal repayment furnished to it by the Borrower shall be presented for payment only in the event the Borrower has defaulted in repayment of principal and interest. The Borrower hereby agrees and undertakes to arrange the funds to honour the post-dated cheques presented by the Lender. The post-dated cheque shall be released to the Borrower after repayment of the entire loan."
Further, as per Clause 4.1 of the loan agreement, the duration of the loan period was till 31.05.2010, to be extendable till 30.09.2010. This Clause also provided that "however the same may be extended up to 30th September 2010 being the last date to make the payment. Thereafter, it shall be automatically be construed that the Borrower is in default."
Page 25 of 34Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 The cheques in question were mentioned in the schedule to Mark A and were dated as of 30.09.2010 and have been admittedly presented after 30.09.2010, i.e., the duration of the loan period. It is not the case of the Accused persons that the said loan has been repaid by them. As set out above, the Accused has been unable to prove that the agreement is forged or executed under undue influence and has implicitly admitted the execution of the loan agreement. Further, the advancement of Rs. 4.35 crores by the Complainant on 19.01.2010 and 20.01.2010 to the Accused is evident from perusal of Ex. CW1/X7, a document put to the Complainant by Ld. Counsel for the Accused in cross-examination dt 09.05.2014.
Further, the suggestions in the cross-examination dt. 09.05.2014 as to payment of Rs. 5.35 crores by the Accused to the Complainant between the period of 16.01.2010 to 20.01.2010 is neither stated by the Accused persons to be repayment in terms of this loan agreement nor appears to be repayment in terms of this loan agreement as substantial payments, i.e., Rs. 1,87,15,669 and Rs. 1,86,00,000 were made by the Accused to the Complainant on 18.01.2010; i.e., prior to the execution of the present loan agreement, Mark A, and advancement of funds by the Complainant to the Accused. The Complainant in his cross- examination dt. 09.05.2014, has explained that the said payment was received by the Complainant as satisfaction of maturity payments pursuant to mortgage agreements, Ex. CW1/X1 to Ex. CW1/5. In this regard, the Complainant has also placed on record a photocopy of the letter of closure and satisfaction of the mortgage deeds issued by the Accused, i.e., Mark P. Apart from mere Page 26 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 suggestions as to the same being forged and fabricated, nothing has been brought on record by the Accused to dislodge the authenticity of the letter and sequence of events narrated by the Complainant, who has deposed on oath. Further, as noted by the Hon'ble SC in Kumar Exports Case, the circumstantial evidence has to be seen from the point of a reasonable/prudent man. Hence, when there was no liability existing against the cheques in question, why did the Accused not take any legal action for getting the security cheques back, or in the least, issue a written notice to the complainant to return the said cheques. The Hon'ble Delhi High Court in VS. Yadav v. Reena, 172 (2010) DLT 561, where the accused had similarly pleaded that no loan was ever taken and yet the security cheques were not returned by complainant; noted that:
"In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued. It was for the accused to prove if no loan was taken why he did not write a letter to the complainant for return of the cheque. Unless the accused had proved that he acted like a normal businessman/prudent person entering into a contract he could not have rebutted the presumption under section 139 N.I. Act. If no loan was given but cheques were retained, he immediately would have protested and asked the cheques to be returned and if still cheques were not returned, he would have served a notice as complainant. Nothing was proved in this case."
(emphasis supplied) Page 27 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Similarly, the Hon'ble SC in Shree Daneshwari Traders v. Sanjay Jain & Anr., AIR 2019 SC 4003, observed that:
"the defence of the Respondent that though he made payment for the commodities/rice bags, the blank cheques were not returned by the Appellant- complainant is quite unbelievable and unacceptable."
(emphasis supplied) Moreover, recently, the Hon'ble SC in APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Ors., AIR 2020 SC 945 has noted that:
"However, to rebut the presumption, the accused was required to lead the evidence that full amount due and payable to the complainant has been paid. In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in the absence of further evidence to rebut the presumption."
(emphasis supplied) In view hereof, the defence of the accused is only by way of mere/bare denial and does not inspire confidence from the stand point of a reasonable man.
(c) Rotation of funds Ld. Counsel for the Accused has submitted during the course of arguments that a perusal of the chart of flow of funds, i.e., Mark Q4 and Q5, which has been admitted by the Complainant in the cross-examination dt. 01.11.2014, shows that the amount transferred by the Complainant has not been utilized by the Accused and the funds have been rotated between the accounts of the Complainant, Page 28 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Accused, one Mr. Ravi Sharma and one company namely, Astute Real Estate Pvt. Ltd. The Accused has examined the Senior Technical Assistant Officer, Registrar of Companies of Delhi and Haryana, as DW1 and has placed on record Form 20B and Form 23AC for the financial years 2008 to 2012 in respect of Astute Real Estate Pvt. Ltd., i.e., Ex. DW1/2 to Ex. DW1/11 to show the financial transactions with Astute Real Estate Pvt. Ltd. It is an admitted fact that Mark Q4 and Mark Q5 are copies of the annexures to the report of the Serious Fraud Investigating Officer ("SFIO"). It is also noted that the Complainant has submitted in relation to Mark Q4 and Mark Q5 in cross examination dt. 01.11.2014 that: "This is an annexure to the SFIO Report and I believe that it should be correct." While there is no express admission of the content of the transactions noted therein; in cross-examination dt. 09.05.2014, the Complainant has accepted the transactions between himself and Accused No. 1, himself and Mr. Ravi Sharma and himself and Astute Real Estate Pvt. Ltd., which were put to him specifically. However, with respect to transactions between the Accused No. 1 and Mr. Ravi Sharma or Astute Real Estate Pvt. Ltd. or between Ravi Sharma and Astute Real Estate Pvt. Ltd.; he has submitted that he had no knowledge of the same as the transactions did not pertain to him (ref. cross examination dt. 09.05.2014). It is also a matter of fact that the complete report of the SFIO has not been placed on record. However, the Complainant in his cross-examination dt. 01.11.2014 has stated that the transactions in mentioned in the cross examination of 09.05.2014; i.e., the transactions set out in Mark Q4 and Mark Q5, were friendly loan transactions Page 29 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 with one Mr. Ravi Sharma and M/s Astute Real Estate Pvt. Ltd.; which have been found to be genuine by the SFIO.
Ld. Counsel for Accused No. 1 has submitted that the flow of funds in Mark Q4 and Mark Q5 shows that the transactions between the Complainant, Accused No. 1, Ravi Sharma and Astute Real Estate Pvt. Ltd. are circular in nature and hence, the Accused owes no liability to the Complainant. Hence, the contention of the Accused is that the nature of transaction with the Complainant was not of a loan transaction, but was a mere rotation of funds. However, no defence evidence has been brought on record by the Accused in this regard. He has not examined the other two parties, i.e., Mr. Ravi Sharma and Astute Real Estate Pvt. Ltd., involved in this purported flow of funds. Additionally, no explanation has been given for advancing the security cheques in question to the Complainant if the purpose was only rotation of funds; especially when there is no express denial by the Accused qua execution of the loan agreement, Mark A. In the absence of further proof and elaboration by way of evidence on the rationale/modus of these transactions, and the proof of transaction itself; it cannot be assumed that there was no liability of the Accused in terms of the loan transaction.
Further, the terms of the loan transaction have been reduced in writing in the form of loan agreement, Mark A. However, the Accused is purporting to vary the terms of the said agreement by way of suggestions put to the Complainant in his cross-examination, i.e., oral evidence. This is barred in view of Section 91 and Section 92 of the Indian Evidence Act, 1872. Admittedly, an amount of Rs. Page 30 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 4.35 crore has been advanced to the Accused by the Complainant on 19.01.2010 and 20.01.2010. Further, after the advancement of this amount by the Complainant; the Accused no. 1 has transferred an amount of Rs. 1,70,00,000 to the Complainant on 20.01.2010. The Complainant in his cross-examination dt. 09.05.2014 has explained that the said payment was a part of maturity payments in respect of mortgage deeds, Ex. CW1/X1 to Ex. CW1/X5, executed with the Accused No. 1. The existence of these mortgage deeds has not been disputed by the Accused No. 1. In fact, Accused No. 1 has submitted by way of suggestions that these mortgage deeds are still in operation (ref. cross-examination dt. 09.05.2014). Accordingly, in light of the bulk nature of commercial transactions between the parties, involvement of two other entities in the purported flow of funds, and in the absence of the Accused leading any defence evidence to prove the parallel understanding between the parties or the rationale for such rotation of funds; no implication as to extinguishment of the liability of the Accused towards the Complainant can be made.
32.In these circumstances and in view of the above detailed discussion, this Court is of the considered opinion that the Accused no. 1 has failed to rebut the presumption under Section 139 of NI Act and ingredients of Section 138 of NI Act are fully proved against Accused No. 1.
Vicarious Liability of Accused No. 2 and Accused No. 3
33.Coming to the role of Accused No. 2 and Accused No. 3, it is noted that the cheques in question and the loan agreement, Mark A, have been admittedly signed by Page 31 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 Accused No. 2. Accused No. 2 has also not raised any plea as to his non-involvement in the day-to-day affairs of the Accused No. 1 at the time of framing of notice under Section 251 CrPC, statement of accused under Section 313 CrPC or even at the time of cross-examination of the Complainant. In fact, throughout the proceedings, Accused No. 1 company has been represented by Accused No. 2. Further, the Accused No. 2 has admitted to dealing with the Complainant on behalf of Accused No. 1 company in his defence to notice under Section 251, CrPC and in his statement under Section 313 CrPC. In the case of National Small Industries Corporation Ltd. v. Harmeet Singh Paintal and Ors., (2010) 3 SCC 330 ("National Small Industries Case"), it has been held that no specific averment is required against the accused who was the Managing Director/ Joint Managing Director of the accused company or who is signatory of the cheque, as they by virtue of their position are vicariously liable for the offence punishable under section 138 read with 141 of the NI Act. Given that the cheques in question have been signed by Accused No. 2 and in light of the facts laid out above, all ingredients stand proved against Accused No. 2.
34.On the other hand, Accused No. 3 has consistently argued that the Complainant has not pleaded any fact to implead Accused No. 3 as the director responsible for day- to-day affairs of the company at the time the offence was committed and was in charge of the conduct the business of the company, in his complaint as well as evidence affidavit. Further, no specific role has been borne out from the cross- examination of the Complainant as well. Accused No. 3 has also drawn attention to cross-examination of the Complainant dt. 08.08.2013, wherein the Complainant has stated that "I do not have any document signed by Neelam Goyal in her individual Page 32 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 capacity or Director of Accused No. 1 Company." Admittedly, the cheques in question and the transaction documents have not been signed by Accused No. 3. Further, no specific role has been attributed to her in the functioning of the Accused No. 1 company. She has even resigned from the board of directors of Accused No. 1 company after framing of notice in the present case. Despite opportunity, no evidence to prove the exercise of control by Accused No. 3 over the day-to-day affairs of Accused No. 1 company has been brought on record by the Complainant. Accused No. 3 has argued in her defence the law laid down in National Small Industries Case, wherein it was held that there is no presumption of vicarious liability against the directors. The Complainant is duty bound to plead and prove that the director was in charge of business of the company and had the knowledge about the transaction in question. The burden will then shift on the accused person to prove that he was not responsible for the business of the company or that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence.
35.In view of the law laid down and considering the deposition of Complainant, it is clear that Accused No. 3 cannot be held to be vicariously liable for the offence under section 141 of the NI Act, in the absence of specific stipulation as to her role in the day-to-day functioning of the company/transaction in question, on the sole ground of her being a director in the Accused No. 1 company.
CONCLUSION
36.Therefore, Accused No. 1 is convicted for commission of offence punishable under Section 138 of the NI Act. The management of the Accused No. 1 was being carried Page 33 of 34 Satyendra v. Omway Buildestate Private Ltd. & Ors. CC No.619012 /2016 out by Accused No. 2, even Mark A, Ex. CW1/B and Ex. CW1/C have been signed by him being the director/authorized signatory of Accused No. 1 and hence, he stands convicted being director/ authorised signatory of the present cheques in question for offence punishable under Section 138 read with Section 141 of the NI Act. The Accused No. 3 stands acquitted of the offence punishable under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. Let them be heard on the quantum of sentence on 14.09.2021 at 12:00 noon. ORDER: ACCUSED NO. 1 AND ACCUSED NO. 2 CONVICTED; ACCUSED NO. 3 ACQUITTED Announced in Open Court (Twinkle Chawla) 02.09.2021 MM (NI-Act 02), South East Saket Court, New Delhi Note: This judgment contains 34 pages and each page has been signed by me.
(Twinkle Chawla) MM (NI-Act 02), South East Saket Court, New Delhi Page 34 of 34