Document Fragment View

Matching Fragments

13. Ld. Counsel for the accused started his part of final arguments by relying on provisions of the The Indian Stamp Act, 1899 and The Notaries Act, 1952 along with The Notaries Rules, 1956. he argued that SPA of the complainant, Sh. Nitin Kumar lacks authority to file complaint and depose on oath as the original SPA is stamped insufficiently and notarised without any bearing any number of Notary Public. He contended that complaint is barred by limitation. He submitted that the complaint vexes the accused unlawfully as the CS(COMM) No. 47-2024 filed by the complainant against the accused based on same facts has already been decreed and the instant litigation inflicted double jeopardy on the accused. He questioned the authenticity of invoices as the same were not signed by the accused. He prayed for acquittal of the accused.

Ct. Case No 10040/2020 KUMAR 2025.08.07 15:55:41 +0530 Page No. 9 of 19.
M/s Devi Karam Associates vs. M/s Awe World 20 NIA and the judgment of Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197.

Findings on validity of SPA (Ex. CW1/1)

19. Complaint was filed by SPA holder Nitin Kumar on behalf of complainant registered partnership firm, M/s Devi Karam Associates vide SPA dated 24.07.2020. The same is witnessed by Priyanka and Kriti, executed by partner Inderjeet Jaitley on behalf of complainant firm and notarised by Notary Public Delhi dated 27.07.2020. In the CE dated 20.05.2022 and 27.07.2022, neither any question was asked nor any suggestion was given by ld. Counsel for the accused challenging hinting at invalidity of the SPA (Ex. CW1/1) on the ground of improper notarisation. No suggestion or application was made to call the Notary Public to testify in Court. No protest was made from the side of accused as to marking the SPA Ex. CW1/1. At no point of time, execution of SPA was challenged. Signatures of the Executant and witnesses were never disputed. The SPA Ex. CW1/1 is original SPA taken on record. The same bears stamp, sign, date and "ATTESTED" stamp of the Notary Public. The witness CW1 has appeared in witness box as a consequence of execution of SPA in his favor, he has withstood the test of cross-examination and at no point admitted the SPA to be insufficiently stamped or improperly notarised. The mere fact that the ld. Counsel for the accused carried on cross-examination of CW1 on several dates subsequent to the marking of the SPA as an Exhibit, is itself SHIV by SHIV KUMAR Ct. Case No 10040/2020 Date:

KUMAR 2025.08.07 15:55:45 +0530 Page No. 10 of 19.
M/s Devi Karam Associates vs. M/s Awe World suggestive of the intention of the side of the accused to rely on powers of CW1 to depose as a valid SPA holder. The Notaries Act, 1952, The Notaries Rules, 1956 and The Indian Stamp Act, 1899 do not state that improperly notarised or insufficiently stamped SPA cannot be read in evidence. Notarised documents carry with them strong presumption under section 85 of the Indian Evidence Act and the same is raised by this Court herein. The omission of details of registration number of Notary Public on Ex. CW1/1 appears to be a bonafide omission made in the regular course of work. It is settled law that power of attorney though insufficiently stamped or bearing stamp of notary but registration number being missing, is admissible in law unless patently barred by law. During the final arguments, ld. Counsel for the accused had made reference to and relied on various exhibits taken on record from the side of the complainant and attempted to hint at innocence of the accused, but did not question that the invoices, email communications and other documents cannot be read in evidence because the same are illegally exhibited as such having been filed by improper SPA. Marking of complainant's exhibits is neither objected to by the side of the accused nor challenged before Hon'ble Superior Courts yet. Therefore it is concluded that the side of the accused has conceded to the mark of exhibits on the documentary evidence placed on record by the SPA. In these circumstances, the side of the accused cannot be allowed to blow hot and cold at the same time. Accordingly, it is held that Ex. CW1/1 constitutes valid SPA in favor of CW1.

21. The SPA holder/ CW Sh. Nitin Kumar was cross-examined (CE). In CE dated 20.05.2022, he denied the suggestion that the accused never received goods mentioned in invoices Ex. CW1/2 (colly). In CE dated 27.07.2022, he deposed that SPA Ex. CW1/1 was executed at the office of the complainant at Uttam Nagar, Delhi and was forwarded to their advocate and got notarised. He admitted that proper details of notary are not mentioned but voluntarily stated that SPA bears the seal of Notary alongwith Digitally signed by SHIV SHIV KUMAR Ct. Case No 10040/2020 Date: