Delhi District Court
Negotiable Instruments Act vs Dattatraya G. Hegde" (2008) 4 on 24 September, 2020
IN THE COURT OF PARAS DALAL,
METROPOLITAN MAGISTRATE - 04, N. I. ACT,
SOUTHEAST DISTRICT, SAKET DISTRICT COURTS, DELHI.
JUDGMENT
Mr. Adesh Goel ....................Complainant
Versus
Arun Kumar Sharma ....................Accused
PS - Defence Colony
Under Section 138 of N. I. Act, 1881
a) Sl. No. of the case : CT No. 3007/2014
b) Alleged date of commission of offence : 19.10.2014 Approximately
c) Name of the complainant : Mr. Adesh Goel
Sh. R.B. Goel
R/o D81, Defence Colony
New Delhi110024
d) Name of the accused person(s) : Mr. Arun Kumar Sharma
S/o Sh. Brij Mohan Sharma
R/o E14, Naveen Shahdara,
New Delhi110032
e) Offence complained of : Under Section 138 of N. I. Act, 1881
f) Plea of accused : Pleaded not guilty
g) Final order : Convicted
h) Date of such order : September 24, 2020
BRIEF STATEMENT OF THE REASONS FOR DECISION :
1. Vide this judgment, this Court shall dispose off complaint for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 filed by the complainant Mr. Adesh Goel against accused namely Mr. Arun Kumar Sharma. In gist, it is Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 1 of 30 alleged in complaint that M/s. Zexus Air Service Pvt Ltd. was in process of starting the business of Air Services and had even submitted their file in Ministry of Civil Aviation but its Director Sh. Surender Kumar Kaushik could not obtain approvals from the said business, hence, through his source, the company M/s. Zexus Air Services Pvt. Ltd., Sh. Surender Kumar Kaushik and present accused Mr. Arun Kumar Sharma approached the complainant to get their job done from Ministry of Civil Aviation. Further it is alleged that with effect from April 2014 the complainant started liasioning for the above said work for clearance in the Ministry and to obtain approvals. The remuneration of the complainant for the job was fixed at Rs. 60 lacs. Towards this fees, it is alleged that accused Mr. Arun Kumar Sharma drew two cheques in question. Complainant presented the cheque, but same were dishonored with reasons 'payment stopped by drawer'. The complainant sent a legal demand notice on 01.10.2014 which was delivered and replied vide replies dated 17.10.2014, however no payment was made within statutory period of legal demand notice, hence, this complaint.
PRESUMMONING EVIDENCE & NOTICE
2. Presummoning evidence was led by the complainant side and after hearing complainant side, only accused Sh. Arun Kumar Sharma was summoned for offence punishable under Section 138 of The Negotiable Instruments Act, 1881. Since the cheque was not issued on an account maintained by M/s. Zexus Air Services Pvt. Ltd. or in personal capacity by Sh. Surender Kumar Kaushik, they were not summoned. After appearance of accused, it was ensured that copy of complaint has been supplied. Notice was put to the accused by my scholarly predecessor for offence punishable under Section 138 of The Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 2 of 30 Negotiable Instruments Act, 1881 on 15.05.2015 wherein the accused sought to substantiate his defence by way of application under section 145(2) NI Act. Vide the application, the accused took the defence that the accused has nothing to do with the company M/s. Zexus Air Services Pvt. Ltd. (hereinafter referred to as 'concerned company') and he never approached the complainant to get any job done from the Ministry of Civil Aviation as he was neither a Director or employee or connected with the concerned company in any way. It is further defended that the complainant has misused the cheques taken by him from the applicant on the pretext of a short term friendly loan with the understanding that the same shall be presented only on the clear cut instructions of the applicant. It is submitted that there was no instructions to the complainant to present the cheques and hence payment was stopped qua the cheques. Thereafter, matter was fixed for complainant's evidence and accused side was granted opportunity to crossexamine the complainant's evidence. COMPLAINANT'S POST NOTICE EVIDENCE
3. Complainant called in witness box a total of 13 witnesses and two expert witnesses (out of the two, one was dropped). The details are as under Name Designation Details CW1 - Sh. Kamal Field Executive, Produced CW1/1 i.e. bank statement of the complainant, Mishra ICICI Bank, however during cross examination admitted that he was Defence Colony not aware as to what he was tendering in Court and Branch, New Delhi further admitted that there is no authorization from the Bank for him to depose or for him to tender the document.
CW2 - Sh. Pawan Nodal Officer, Idea Stated that mobile number 9212001705 and 8826897010 Singh Cellular Ltd. did not pertain to Idea Company and hence he failed to produce the records.
CW3 - Sh. Israr Alternate Nodal Placed on record Ex. CW3/1 (Colly) i.e. record pertaining Babu Officer, Vodafone to mobile number 9711942715 from 02.05.2014 to Mobile Services 01.05.2015 alongwith copy of customer application form in the name of Arun Kumar Sharma and certificate u/S. 65B Evidence Act.
Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 3 of 30 Ex. CW3/2 (Colly) i.e. record pertaining to mobile number 9711306681 from 02.05.2014 to 01.05.2015 alongwith copy of customer application form in the name of Arun Kumar Sharma and certificate u/S. 65B Evidence Act.
CW4 - Sh. Nodal Officer, Ex. CW4/1 (Colly) i.e. record pertaining to mobile Chander Shekhar Bharti Airtel Ltd. number 8826897010 from 01.06.2014 to 01.05.2015 alongwith copy of customer application form in the name of M/s. Zexus Air Services Ltd. applied and taken under the signature of Mr. Ram Kishan Sharma, Director and certificate u/S. 65B Evidence Act.
***** Witness in his cross deposed that he had no personal knowledge about call details placed on record.
CW5 - Sh. Brij Manager, Ex.CW5/1 i.e. certified copy of statement of account no. Mohan Sharma Allahabad Bank, 50088588576 in the name of complainant for period Lajpat Nagar, New 12.06.2014 to 11.09.2014.
Delhi ***** The Manager deposed that the has not filed his authorization, as the Court summons was in the name of Manager and by his designation he was in the Court. The witness further admitted that Ex.CW5/1 was attested copy and not certified copy of the bank statement. The witness however denied the suggestion that the entire statement was forged and fabricated.
CW6 - Sh. J.D. Senior Manager, Ex.CW6/1 i.e. certified copy of statement of account
Tripathi Allahabad Bank, no.50151189183 with signatory names and addresses of
Tilak Nagar M/s. Zexus Air Services Pvt. Ltd. for the period
Branch, New Delhi 15.04.2014 to 01.05.2015.
*****
Witness admitted that certificate u/S. 65B Evidence Act was not filed, however denied that the document was forged and fabricated.
CW7 - Md. Deputy Manager, Ex.CW7/1 i.e. certified copy of statement of account no.
Nazim HDFC Bank, 50100031560796 of accused for period 15.04.2014 to
Hargovind 01.05.2015 and Ex.CW7/2 i.e. authority letter in favour of
Enclave, New the witness.
Delhi *****
Witness admitted not having filed Section 65B certificate, however denied that the statement was forged and fabricated.
CW8 - Mohd. Assistant Bank Ex.CW8/1 i.e. authority letter from the Branch Manager,
Nazir Manager, HDFC Ex.CW8/2 i.e. statement of account no. 50100031560796
Bank, Hargovind of accused for period 15.04.2014 to 01.05.2015 and
Enclave, New Ex.CW8/3 i.e. id proof of the witness.
Delhi *****
(Was denied as only summoned record were produced.)
Adesh Goel v. Arun Kumar Sharma
CT CASES 3007/2014 4 of 30
CW9 - Gopal Branch Manager, Ex.CW9/1 summoned record i.e. letter issued by Branch
Krishan SBI, DAP, Palam, Manager; Ex.CW9/2 i.e. record as per which Sh. Surender
New Delhi Kumar Kaushik and Sh Ram Kishan Sharma were the
authorised signatories of account no. 34036175194 of
M/s. Zexus Air Services Pvt. Ltd. Ex.CW9/3 (Colly)
account statement of above account for period 01.04.2014 to 01.05.2015 alongwith certificate under Bankers' Book Evidence Act and letter from Branch Manager.
***** Witness admitted having no personal knowledge about the transactions CW10 - Sh. Deputy Manager, Ex.CW10/1 authority letter; Ex.CW10/2 copy of id card Saurabh Tripathi ICICI Bank, of witness; Ex.CW10/3 (Colly) summary of account no.
Defence Colony, 194501500556 .
New Delhi *****
Witness admitted having no personal knowledge about the transactions CW11 - J.D. Senior Manager Ex.CW11/1 authority letter; Ex.CW11/2 copy of id card; Tripathi Operation, Tilak Ex.CW11/3 details of authorised signatory for account no.
Nagar Branch, 50151189183 for period 10.04.2013 to 01.03.2015. Allahabad Bank, Ex.CW11/4 letter for change of authorised signatory; New Delhi Ex.CW11/5 copy of account opening form; Ex.CW11/6 (Colly) certificate under Bankers' Book Evidence Act.
***** Witness admitted having no personal knowledge about the transactions Ex.CW12 - Sh. Officer, Allahabad Ex.CW12/1 authority letter in favour of witness; Gopal Kapur Bank Ex.CW12/2 copy of photograph, signatures ad employee code; Ex.CW12/3 (Colly) statement of account no.
50088588576 for period 01.06.2014 to 15.09.2014 alongwith certificate under Bankers' Book Evidence Act.
Ex.CW13 - Sh. Complainant (discussed in details in following paragraph) Adesh Goel Expert Witness - Expert witness for She opined that the dates appearing on the two cheques Ms. Jaya Shukla ascertain the were fundamentally same as that of admitted handwriting handwriting of the of the accused.
dates on the two *****
cheques in (cross examined in details as to the expert evidence)
question
Expert Witness - Expert witness (he was dropped by the complainant himself)
Adarsh Mishra
Adesh Goel v. Arun Kumar Sharma
CT CASES 3007/2014 5 of 30
4. Complainant himself stepped in witness box as CW13 and tendered fresh evidence by way of affidavit for his postnotice evidence and exhibited documents marked Ex.CW1/A to Ex.CW1/Q, the details of which are as under Exhibit No. Details Ex.CW1/A Letter issued by Sh. Surender Kumar Kaushik (Director of M/s.
Zexus Air Services Pvt. Ltd. in favour complainant
Ex.CW1/B & C Two cheques in question
Ex.CW1/D & E Return memo for the reason 'payment stopped by drawer'
Ex.CW1/F Copy of legal demand notice dated 01.10.2014
Ex.CW1/G, H & I Original postal receipts
Ex.CW1/J Reply to demand notice dated 17.10.2014 by Sh. Surender Kumar
Kaushik through his advocate
Ex.CW1/K Reply to demand notice dated 17.10.2014 by accused Sh. Arum
Kumar Sharma through his advocate
Ex.CW1/L Complaint under Section 138 of the Negotiable Instruments Act,
1881.
Ex.CW1/M Letter dated August 2014 issued by the Ministry of Civil Aviation in
the name of complainant
Ex.CW1/N, O & P Earlier return memos qua the same cheques for reasons 'funds
insufficient' and 'payment stopped by drawer'.
Ex.CW1/Q Letter of NOC issued by the Ministry of Civil Aviation dated
18.07.2014
5. The complainant as CW13 was crossexamined on 13.07.2016 and he stated that he was freelancer and had no license to work in Ministry of Civil Aviation. Witness volunteered that there was no license required to work in the concerned Ministry. Witness further deposed that agents were allowed to enter the concerned Ministry after authorisation from competent authority. Witness deposed that he was working on behalf of the company and was approached by its Director Sh. Surender Kumar Kaushik, the witness also Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 6 of 30 volunteered that he was working for accused to get the license for the company. It was further deposed that meeting was held in the office of the concerned Company and it was assigned to him in the last week of January 2014, but he could not remember the date. Witness deposed that he was not given any letter, but authorisation to work in the concerned Ministry on behalf of the concerned Company. Witness admitted there was no agreement in writing fixing the fees of Rs. 60 lacs. Witness admitted he was appointed/ authorised as an Executive Vice President by the company through Sh. Surender Kumar Kaushik and he had even received a letter from the concerned Ministry under that capacity. Witness admitted that accused was not a director, employee or signatory of concerned company, however stated that he had witnessed accused deal commercially with the company. Witness pleaded ignorance about any transaction of loan between the accused and the concerned company. Witness categorically deposed that accused drew the two cheques for liability of the concerned company and its director Sh. Surender Kumar Kaushik and denied the suggestion that they were given towards a proposed friendly loan from the accused. The witness further stated that cheques were handed over on 13.05.2014 and were duly filled by the accused so much so that the dates were also filled by the accused. Next the witness denied a series of suggestion made about handing of the cheque, his capacity to represent the company and misuse of the cheques in question, which were all denied. The complainant closed is evidence vide statement dated 13.07.2016.
STATEMENT OF ACCUSED
6. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 7 of 30 separately. Incriminating evidence was put to him. Accused denied all the allegations and stated that exhibited placed on record by witnesses from CW1 to CW12 were matter of record. As regards the deposition of CW13, the accused reiterated his defence that the cheques were issued towards a proposed friendly loan and were however misused without there being any direction from the accused to the complainant to present the cheque. DEFENCE EVIDENCE
7. Accused was given opportunity to lead defense evidence and he called in witness box four witnesses. Accused examined himself as DW1. DW2 was Sh. Ram Kishan Sharma who was Director of M/s. Zexus Air Services Pvt. Ltd. from period 2013 to 2017. DW3 is Sh. Sandeep Kumar, Manager Accounts in M/s. Zexus Air Services Pvt. Ltd. DW4 is Sh. Syed Faizal Huda, the expert witness who opined that the dates appearing in the cheque did not match the admitted handwriting of the accused.
8. Accused stepped in witness box as DW1 and in chief deposed that Surender Kaushik (Director of M/s. Zexus Air Services Pvt. Ltd.) was his friend for 45 yers and he was willing to start aviation business. He deposed that he was neither signatory, nor employee or agent or director of company M/s. Zexus Air Services Pvt. Ltd. And he averred that he met complainant 45 times in the office of the concerned company, and their he developed friendly relation with the complainant. However, accused averred absolute ignorance if complainant was working for concerned company for aviation license. Accused deposed that he never took any financial responsibility on behalf of Mr. Surender Kaushik or M/s. Zexus Air Services Pvt. Ltd. for carrying out the liasioning work. Accused deposed that he never witnessed execution of any contract for Rs. 60 Lac between complainant and Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 8 of 30 concerned company or the director and deposed that complainant approached him for financial help of Rs.60 Lacs for his personal needs and the complainant asked that he will get his helicopter sold in the market. DW1 deposed that he handed over cheque to the complainant in presence of one Sh. Raman Joshi in Defence Colony Club, New Delhi and they were undated. DW1 even admitted that at the time of handing over of cheques, he did not have financial capacity to pay Rs.60 Lacs. It was further deposed that he had no financial dealing with the concerned Company apart from Rs.25 Lacs loan which was later repaid by the company. The accused denied taking any responsibility to pay any amount due on the concerned Company. The witness was crossexamined at length and before discussing the cross examination it shall be necessary to state the documents put to the accused during cross examination -
Exhibit No. Details Ex.DW1/X (Colly) Prints of facebook account of one Arun Kumar Sharma was put the
accused alongwith certificate u/S.65B Evidence Act and the accused admitted the printout as that generated from his account Ex.DW1/X1 (Colly) Admitted Certified copy of ITR for the period of 2014/15 of the accused Ex.DW1/X2 (Colly) Admitted Copy of Leave to defend filed by the accused himself before Ld. ADJ Court, Saket Ex.DW1/X3 (OSR) Offer letter dated 07.12.2016 in favour of the accused from concerned company Ex.DW1/X4 (Colly) Account ledger inquiry Ex.DW1/X5 Pen drive make San disk containing alleged conversation between accused, complainant and accused's friend. Clip from 17min.:07sec. to 17min.:17sec. was played in the Court, which was admitted by the accused to contain his voice.
Ex.DW1/X6 Certificate under Section 65B Evidence Act Ex.DW1/X7 Translated transcript of the entire conversation totalling 53 pages. Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 9 of 30
Ex.DW1/X8 (OSR) Copy of RTI reply received from PIOcumAdditional DCP, South East, alleged complainant filed by the accused against the concerned company. Accused denied making any such complaint
9. During crossexamination, accused deposed that apart from Rs.25,00,000 loan, he had two other transaction with the concerned Company of Rs.2,00,000/ and Rs.10,000/. Accused deposed that Rs.2,00,000/ was an RTGS made by the concerned Company in his favour for his personal use since he used to have regular transactions with Sh. Surender Kaushik (Director). Accused admitted he had shown no transaction with the concerned Company in his ITRs. Accused was questioned about his action when cheques were presented, to which the accused deposed that on receiving messages from his bank, he stopped payment qua both the cheques and even contacted the complainant as to why he presented the cheque without instruction, however it was admitted that nothing in written was communicated. At this stage, the facebook account profile printouts were put to the accused wherein he admitted that he has posted himself as Director of Zoom Airways. The accused even deposed that due to his experience he was appointed as employee/director procurement in December, 2016 by Zoom Airways (M/s. Zexus Air Services Pvt. Ltd.). Accused admitted being in telephonic conversation with complainant and also meeting him at Defence Colony Club. The accused admitted that at the time of presentment, his account did not have sufficient balance to honour the cheque. The accused stated that he in his reply dated 17.10.2017 Ex.CW1/K to demand notice dated 01.10.2017 submitted that he had no connection with the concerned Company, however he defended his earlier stand that he only joined as Director in 2016 and not when the alleged cheque were drawn. Accused admitted Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 10 of 30 his annual ITR Ex.DW1/X1 of Rs.56 Lakhs. Ex.DW1/X2 (Colly) was admitted to be leave to defend filed by the accused before Ld. ADJ Court, wherein accused deposed that he had denied any relationship with concerned Company, the same was objected to by the accused side, since the averment stated 'was' and it was argued that it was made with respect to relevant time and accused had joined Company only in December 2016.
10. On 10.07.2019, the complainant side made an endeavour to put on record a purported conversation between the complainant, accused and accused's friend. The whole conversation is stated to be 1hour:03minutes:06seconds long. The entire conversation was put in a pen drive and placed on record as Ex.DW1/5, the certificate under Section 65B Evidence Act is Ex.DW1/6 and the transcript translated in HindiEnglish text is Ex.CW1/7. Out of the entire conversation, the complainant side played on the phone the audio recording from 17min:07sec to 17min:17sec wherein the accused identified and admitted his voice in the conversation. The complainant sought reliance on audio clip from 18min:44sec to 19min:21sec wherein it was alleged that accused stated 'aapko mai ek chiz aur bataun, humara aur Adesh Goel ji ka koi jhagda nahi hai. In ha********* ki wajah se hum ye Duggar aur Koustav Dhar arey bhayi jab tumhe inhone approval karai hi to inko paisey de. 60 lakh rupaye dene the. Approval karwa di, paisey nahi diye saalon ne. Cheque saalon ne mere se leke de rakhe hain. Mere cheque inko pakda diye. Ab inko toh case karna hi karna tha. Inki kya galti, Inko to paisey nikalne hain Inhone case kar diya. Ab inko bhi pta hai, Inko bhipta hai paise maine nahi den. Paisey Zoom ne dene hain. Paise maine nadi dene, paisey Zoon ne dene hain. Mereko bhi pata hai inko paisey milne chahiye'. Complainant replied 'bhayi dekho jo kaam humne kiya hai ushi ke chakkar me inhone Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 11 of 30 cheque diye hain', to which the accused replied 'han'. The entire transcript was placed on record and there was not even a single objection from the accused side. Neither the audio clip played on phone, nor the exhibition of pen drive and not even the transcript was objected to as to mode of proof or admissibility. Another document which was a purported complaint filed by the accused against the concerned Company was placed on record Ex.DW1/X8 (Colly), however, the accused denied making any complaint to the police.
11. DW2 was Ram Kishan Sharma, Director of M/s. Zexus Air Services Pvt. Ltd. was called in witness box and deposed that he was director from 2013 to 2017. Witness firstly admitted Ex.DW2/A which was a letter dated 21.06.2015 by Sh. Surender Kumar Kaushik, Chairman and Managing Director M/s. Zexus Air Services Pvt. Ltd. addressed to accused confirming receipt of Rs.25 Lacs as loan. DW2 duly identified the signatures of the director. DW2 further deposed that he alongwith CEO Mr. Vinni Kurup were looking after the work with Ministry for getting the license and they obtained the license in July 2014. The witness denied that complainant was ever employed as agent or free lancer or liasioning with the Ministry of Civil Aviation. The witness further deposed that there was no need to appoint the complainant on any such post, nor the company could have paid the fees of Rs.60 Lacs. The witness was put following documents and they were either admitted or denied -
Exhibit No. Details Admission or Denial/ Remark
Ex.DW2/A Letter dated 21.06.2014 written by Sh. S.K Duly identified the signature of Sh.
Kaushik acknowledging receipt of Rs.25 S.K Kaushik
Lacs
Ex.DW2/B Certificate of Incorporation of concerned Duly admitted
Company
Ex.DW2/C Form 32, Form 11 with Certificate Duly admitted
Adesh Goel v. Arun Kumar Sharma
CT CASES 3007/2014 12 of 30
(Colly) u/S.65B Evidence Act
Ex.DW2/D ITR of concerned Company for Duly admitted, also admitted that
Assessment Year 2014-15 and 2015-16 purported loan given by accused to
Company was not disclosed in ITRs
Ex.DW2/E Document i.e. Loan letter and three No concern with the witness, no
promissory notes with regard to loan given question asked by accused to concerned Court Ex.DW2/F Copy of email written by Sh. S.K. Kaushik Witness denied any knowledge of the alongwith Company's documents related same, did not deny that the same was to NOC sent from personal mail of one of the Director Ex.DW2/G NOC in favour of the Complainant Duly Admitted Company Ex.DW2/H Criminal case against concerned Company Duly admitted that such a case was by Sh. Lakhsya Arora filed u/S.138 NI Act pending against the concerned Company, filed by one of its pilot and the same was settled by the Company Mark.DW2/I Calls made by the complainant to him Duly Admitted Ex.DW2/J LinkedIn profile of the witness Duly Admitted
12. DW3 Sh. Sandeep Kumar, Account Manager at M/s. Zexus Air Services Pvt. Ltd. was summoned witness to bring on records of the concerned Company i.e. loan account of accused towards the concerned company and statement of bank account of the company. Both were placed on record as DW3/2 and DW3/3. Statement of bank account showing return of amount of Rs.25 Lacs by way of RTGS was exhibited at point A in Ex.DW3/4. The witness was put following documents and they were either admitted or denied -
Exhibit No. Details Admission or Denial/ Remark Ex.DW3/DW1 Bank Statement of concerned Company of Duly Admitted account bearing no.34036175194 Ex.DW3/DX2 DIR 12 of concerned Company Duly Admitted Ex.DW3/DW3 Form MGT7 of concerned Company Duly Admitted Ex.DW4/DX4 Net worth of concerned Company of about Pleaded no knowledge about personal Rs.20.5 crores affidavit Ex.DW3/DX5 ITR of concerned Company Duly Admitted Ex.DW3/DX6 ITR of concerned Company pertaining to Duly Admitted Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 13 of 30 year 2016-17 & 2016-17 Ex.DW3/DX7 Death Certificate of Sh. Surender Kumar Produced by witness himself Kaushik showing date of birth as 01.12.1952 Ex.DW3/DX8 Copy of Passport of Sh. Surender Kumar Pleaded ignorance as to difference of Kaushik as 12.01.1952 date from the death certificate on record.
Ex.DW3/DX9 Civil Aviation Norms and purported Stated that no such clearance was
violation by Director of concerned required.
Company's Directors
Ex.DW3/DX10 Email sent by Sh. S.K. Kaushik to the Pleaded ignorance, however did not
complainant for the services rendered deny the personal email of the
Director Sh. S.K. Kaushik
Ex.DW3/DX11 Letter issued to complainant by Jet Objected to as to mode of proof and
Airways no questions asked
13. Apart from the above material and formal witnesses, the accused challenged that the date on the cheque was not in his handwriting as he had handed over blank cheques for a proposed personal loan to be given at later stage, however the complainant had deposed that dates were duly filled by the accused himself. Therefore, accused was granted opportunity to examine an expert witness. Subsequently, the complainant requested examination of his own expert witness as he did not repose faith in the expert witness of the accused. The complainant eventually called two experts of his own, however he himself sought to examine only one. Ms. Jaya Shukla was examined as expert witness by the complainant side and Mr. Syed Faizal Huda was examined as expert in handwriting by accused side. Both the experts supported the stands of their parties and both the reports were contradictory in conclusion. Defence evidence was closed vide Order dated 14.08.2020.
14. Final arguments from both sides were heard at length on 11.09.2020 and defence side even filed written arguments. Case file perused.
Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 14 of 30 POINTS FOR DETERMINATION : 15.1 Whether the complainant has been able to establish ingredients of offence
punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of reasonable doubt against the accused or not?
15.2 Final order.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS
16. To bring home conviction for offence punishable under Section 138 of The Negotiable Instruments Act, 1881, the complainant is obliged to prove :
(a) The cheque(s) was/were drawn/issued by the accused person(s) to the complainant on an account maintained by him/her/them/it with the bank for discharge, in whole or in part, of any debt or liability.
(b) The cheques(s) was/were presented to the bank within a period of six months or within period of its/their validity.
(c) The cheque(s) so presented for encashment was/were dishonored.
(d) The payee/complainant of the cheque(s) issued a Legal Demand Notice within 30 days from the receipt of information from the bank regarding dishonourment of the cheque(s).
(e) The drawer of the cheque(s) failed to make the payment within 15 days of receipt of aforesaid Legal Demand Notice.
(f) The complaint was presented within one month after the expiry of above 15 days.
Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 15 of 30 UNDISPUTED/UNCONTROVERTED FACTS
17. At the outset, it is pertinent to mention herein that it is not in dispute that cheque in question belong to the accused, it bears his signatures, it was drawn on an account maintained by the accused with a bank and cheques in question were dishonored as alleged. The accused even admitted that the amount was filled by him. So, there is no need of discussion qua said ingredients and same can be regarded as being duly proved on record and being noncontroverted. The reply filed by the accused is also on record and hence the receipt of demand notice is not denied, therefore no need to discuss the said ingredient under Section 138 NI Act.
CONTENTIONS 18.1(a) The accused side has taken two fold defence, firstly that he was not an employee, director or in any way connected to the concerned Company and had never accepted to pay the concerned Company's debt; and secondly, that the cheque duly filled, except the date, was given to the complainant for a proposed friendly loan of Rs.60 Lacs, however he came to know about the financial standing of the complainant and did not advance any loan, yet the complainant misused his cheques. The present cheques therefore, was argued to be without any consideration and since no legally recoverable debt was due, the accused deserves acquittal. During the written as well as oral arguments, the accused side substantiated materially the defence and pleaded that there was no role of liasioning in the Ministry of Civil Aviation and therein any case was no occasion to pay such a huge amount only for getting a license for aviation business. In addition to above, it was argued that the complainant failed to show any role played by him to get the license, the Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 16 of 30 complainant was unregistered with the Ministry as well as Service Tax department, no ledger or account was maintained. The absence of any written agreement was also argued as one of the defence and further it was argued that there was no agreement between the complainant and accused qua admittance of liability of the concerned Company by the accused.
18.1(b) On the other hand, it is the contention of the complainant side that accused has failed to prove the two defences taken. It was argued that qua the first defence, the accused took a false stand ever since his reply to demand notice dated 17.10.2014. The accused stated that he had no role or connection with the concerned company as director or employee, however from records it was proved that he was in regular touch with concerned Company's CMD Sh. S.K. Kaushik, he was having relations with him and had even advanced loan to the company, moreover, Rs.2 Lacs was paid to the accused from the company's account for a personal liability of the CMD, as was deposed by the accused himself. It was further argued that the accused had intentionally concealed about loan advanced to the company, and later even it was shown that he was appointed as Director with the concerned Company. As against the second defence, it was argued, that the accused himself in his reply dated 17.10.2014 stated that he only met 45 times and yet he offered to advance Rs. 60 Lacs which is quite unbelievable. It was further argued that the accused took no steps to protect himself, not even a police complaint was filed against the complainant for misuse of cheques. As regards the oral arguments were concerned, the complainant stated Section 138 applies for cheque drawn on debt or any other liability. It was further contended that the accused had himself suffered an extrajudicial confession in form of an Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 17 of 30 audio recording which is Ex.DW1/5 and accused not only admitted his voice but did not question anything about the entire conversation of over one hour. The complainant further stated that the concerned Company was not able to obtain licence for aviation business despite repeated efforts and it was only after he gave his services that the license was obtained. The accused took refuge to the documentary evidence to show that he was in regular contact with the Director of the concerned Company, there was letter of appointment in favour of the complainant as Executive Vice President to represent the company with the Ministry and further the Ministry had even written to the concerned Company through the Complainant recognised as Executive Vice President. The complainant thus stated that even though the entire agreement was oral, but there are circumstances, oral as well documentary evidence to prove the entire transaction and existence of legally recoverable debt. The complainant further submitted that since no amount was paid, the accused drew cheques in discharge of the liability, hence, all ingredients of commission of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stands established on record, therefore, accused should be held guilty in this matter.
18.2 Submissions of both side considered.
Section 118 (a) of The Negotiable Instruments Act, 1881 provides as under : "Section 118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumption 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, was indorsed, negotiated or transferred for consideration;........."
Section 139 of The Negotiable Instruments Act, 1881 provides as under : "Section 139 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."
Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 18 of 30
In matter of "Krishna Janardhan Bhat Vs. Dattatraya G. Hegde" (2008) 4 SCC 54, Hon'ble Supreme Court of India has observed : "32. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of the accused and that of the prosecution in a criminal case is different."
"34. Furthermore, whereas prosecution must prove the guilty of an accused beyond all reasonable doubt, the standard of proof so as to prove a defense on the part of the accused is 'preponderance of probabilities'. 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 he relies."
In matter of "Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm" (2008) 7 SCC 655, Hon'ble Supreme Court of India (though it was a civil matter related to promissory note, but is relevant to refer herein) has held : "17. Under Section 118 (a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the nonexistence of consideration by brining on record such facts and circumstances which would lead the court to believe the nonexistence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal."
In matter of "Bharat Barrel & Drum Mfg. Co. V. Amin Chand Payrelal"
(1999) 3 SCC 35, Hon'ble Supreme Court of India (though it was also a civil matter related to promissory note, but is relevant to refer herein) has held : "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118 (a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the nonexistence of a consideration by raising a probable defense. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the nonexistence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under the law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the nonexistence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118 (a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defense. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist."
Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 19 of 30 In matter of "Rangappa Vs. Sri Mohan" (2010) 11 SCC 441 which is a Full Bench Decision, Hon'ble Supreme Court of India while discussing above said provisions, judgments and other case law on the point has held : "26. 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 the extent, the impugned observations in Krishna Janardhan Bhat may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defense wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant".
"27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendantaccused cannot be expected to discharge an unduly high standard or proof."
"28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defense which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defense and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own." 18.3 So, precisely there is initial presumption of legally enforceable debt or liability against the accused side, but same is rebuttable. The standard of proof for rebuttal is preponderance of probabilities. Accused side can lead evidence in defense, even can rely on materials submitted by complainant and can rely upon circumstances also to show non existence of consideration or it being improbable and need not adduce evidence of his own for the same.
ACCUSED'S DEFENCE OF REASON FOR ISSUANCE OF CHEQUE 18.4 The accused has admitted the factum of issuance of cheque, however denied writing the date himself and also that it was towards consideration as alleged by the complainant. Instead the accused side defended that the two cheques were for a proposed friendly loan which was to be advanced to the complainant, however having come to know Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 20 of 30 the financial credibility of the complainant, the accused denied advancement of loan, but the complainant misused the two cheques in question. The defence of the accused seems unnatural to believe. The accused vide his reply Ex.CW1/K dated 17.10.2014 stated that he had only met complainant some 45 times at concerned Company's office, yet the accused was willing to advance such a huge amount to a complete stranger without any interest. During the entire trial, the bank statement of the accused have come on record through CW7 and considering the account statement, the financial capacity of the accused is seriously doubted. Moreover, the accused during his crossexamination stated that he did not have sufficient balance to honour the cheque and further in the cross examination, the accused admitted his ITRs for the relevant period of Rs.56 Lacs only. The said defence therefore, does not hold any merits and is baseless. The accused even deposed that the cheques for proposed friendly loan was handed over to the complainant in presence of one Mr. Raman Joshi, however no endeavour was made to call the said witness to prove the fact.
ACCUSED'S RELATIONSHIP WITH THE CONCERNED COMPANY AND ADMITTANCE OF LIABILITY 18.5 The accused has ever since his reply dated 17.10.2014, denied having any
relation with the concerned Company. The accused denied being Director, employee or in any manner connected with the concerned company. The accused maintained this defence until his statement under section 313/281 CrPC was recorded. During crossexamination however documents were put to the accused, wherein his association with the concerned Company was known. The accused subsequent to the transaction in question was even Director of the concerned Company from December 2016. The said fact was not only Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 21 of 30 admitted by the accused himself but was also deposed by DW2 and DW3, who were associated with the concerned Company. The accused during his crossexamination stated that he had good relations with Sh. S.K. Kaushik, CMD of concerned Company and through him had met the complainant several times. The accused, DW2 and DW3 even deposed that accused had advanced Rs 25 lacs to the company which was never stated in the company ITRs. Even the repayment was not stated in the ITRs. Apart from the above loan, the accused was also related with two transactions of Rs.2 Lacs and Rs.10,000/. As against Rs.2 Lac transaction, the accused and DW3 deposed that the Sh. S.K. Kaushik, then CMD had some personal business affairs with the accused and the payment was made from Company's account. During argument, the complainant side has even argued that out of Rs.25 Lacs which is stated to have been advanced by the accused to the concerned Company, Rs. 2 Lacs was actually transferred from some Company's account (which had no concern with the accused), yet it was shown on record that the said money was received from the accused as part of Rs.25 Lacs loan.
18.6 The deposition and the records thus show that the accused was actively involved in affairs of the concerned company so much so that he later become its Director from December 2016. He had personal as well as business transaction with the Company and its then CMD, yet the accounts books of the Company never clearly stated the true pictures of transactions. The accused himself admitted meeting with the complainant at concerned Company's Office and in Defence Colony Club. From this discussion, it can be gathered that the concerned Company was not maintaining proper accounts and not everything was done on papers, rather a lot of transaction occurred on oral terms. As far as Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 22 of 30 admittance of liability is concerned, Section 138 Negotiable Instruments Act is attracted for legally recoverable debt or any other liability. It is a settled law, that cheque issued even for the debt of other falls within the ambit of 'any other liability' and the provisions of Section 138 are attracted.
EXPERT WITNESS AS TO DATE ON THE CHEQUE 18.7 The two defence of the accused therefore falls flat and there is already a presumption in favour of the complainant qua the cheque and consideration. The cheque was duly filled by the accused himself as regards to the amount and name. The accused states that the cheques were undated, however, his defence of proposed friendly loan to be advanced, already stands disproved. The complainant examined CW14 as private expert to show date appearing on the cheques was in handwriting of accused, whereas DW4 stood in for the defence to state that the dates appearing on the cheque were not in the handwriting of the accused. It is a settled law that private handwriting expert testimony and report are a weak piece of evidence. Before going into the merits of the reports, attention is drawn to provisions of Section 20 of the Act which relates to inchoate instrument. It is a settled law that drawing and handing over of an undated cheque gives a prima facie authority to the drawee to fill the particulars. Therefore, to deliberate on whether the accused filled the date or not is a fruitless exercise in the facts and circumstances of the present case. The same could have been relevant, had there been some merits in the defence of the accused that he was to advance friendly loan to the complainant, but that defence has already been disproved.
LEGALITY OF THE CONSIDERATION Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 23 of 30 18.8 Based on the discussion above, the accused has not been able to discharge his
burden of proof and the complainant has presumption in his favour sufficient for conviction of the accused. The legality of the transaction or consideration was never challenged during the entire trial. DW2 and DW3 did depose that concerned Company could not afford to have paid such a huge sum as remuneration/ fee, however both the witnesses pleaded ignorance when the conduct of then CMD Sh. S.K. Kaushik was put to them. DW2 admitted the signatures of CMD S.K. Kaushik on letter of appointment and also that he was regularly managing the affairs of the concerned Company. Further, accused himself admitted that he used to meet complainant in the office of concerned Company with Sh. S.K. Kaushik. DW3 although pleaded ignorance of the factum of emails written by Sh. S.K. Kaushik to the Complainant, yet he did not deny the emails sent by Sh. S.K Kaushik to the complainant acknowledging his services. There are documentary evidence to show that complainant for proper representation of concerned Company in the Ministry of Civil Aviation, was appointed Executive Vice President. DW2 deposed that the offer was made, which complainant failed to accept. However, the accused side could not disprove the emails written by Sh. S.K. Kaushik to the complainant. The letter written by the Ministry of Civil Aviation to the concerned Company wherein the Complainant was stated to be Executive Vice President. If the defence was true, then how the Ministry of Civil Aviation wrote to the concerned Company through the Complainant acknowledging his post? DW1/ accused deposed complainant used to meet Sh. S.K. Kaushik in concerned Company's office. The above is sufficient to point out that the complainant was in touch with Sh. S.K. Kaushik, he Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 24 of 30 was appointed, his services were acknowledged via emails and he even represented the company before the Ministry.
LEGALITY OF CONSIDERATION 18.9 The next point is whether Rs.60 Lacs was a legal amount due or an illegal means employed to obtain license. The accused side has not challenged the legality of the consideration in the entire trial. DW2 and DW3 did depose however, that the concerned Company was not in a position to pay such a huge amount. During cross examination however, DW3 admitted that the net worth even before starting the aviation business was disclosed to be more than Rs.20.5 Crores. The concerned Company's operated its aviation business subsequently and still have license running under Zoom Air Services, as was deposed by defence witnesses. DW1 admitted his facebook profile picture wherein he is seen posing infront of an aircraft in the name of Zoom Air Services. The burden to prove that the consideration was illegal and consequently to say that an agreement is void due to illegal consideration is strictly on the accused side. The accused side has only during the final oral and documentary arguments took this as a defence. However, it has to be kept in mind that the cheque were duly filled for the exact sum and promised payment through bank transaction adds some credence to the transaction. The services of complainant was acknowledged by Sh. S.K. Kaushik and there is nothing on record to blatantly presume the entire transaction as illegal. It is on record that the concerned Company initiated process to apply for aviation business license in May 2013 and process continued over several communications to rectify the paperwork. Complainant stated that he was first contacted in January 2014 and from April 2014 he was officially working as representative of the Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 25 of 30 concerned Company. Next the Ministry had even replied to the concerned Company through the complainant as Executive Vice President and in July 2014, finally initial license was granted. Therefore, from the oral averments, conduct of Sh. S.K. Kaushik, mode of payment employed and the nature of work involved, it cannot be said that the consideration was illegal. Accused side has not been able to show that the consideration was illegal, or there was illegal means involved in obtaining the license. Another important piece of evidence is Ex.DW1/5 to ExDW1/7 which only strengthens the case of the complainant. EXTRAJUDICIAL CONFESSION - AUDIO RECORDING 18.10 Complainant placed an audio recording on record Ex.DW1/5, the same was supported by a certificate u/S. 65B Evidence Act exhibited as Ex.DW1/6 and Ex.DW1/7 was the HindiEnglish transcript of the entire conversation which lasted 1hour:03minute:06 seconds. The complainant submitted that he had a meeting with accused and one of his friend in a public place. The entire conversation was recorded over his phone by the complainant. During crossexamination, an 11 seconds clip from 17min.:07sec to 17min:17sec was played to the accused wherein he identified and admitted that it had his voice. The voice of the accused was identified in the Court in the recording and the entire conversation was stated to have been transferred to a pendrive Ex.DW1/5 and placed on record. The transcript in English vernacular (but containing Hindi conversation) was placed on record as Ex.DW1/7. There was no objection from the accused side to the exhibition of all three documents. The accused side did not challenge the primary or the secondary evidence. The accused neither object to the transcript being exact and true, nor did the accused side offered any explanation under which circumstances the conversation was Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 26 of 30 made. The most relevant portion of the conversation came between 18min:44sec to 19min:21sec, wherein the voice identifiable to be of the accused is heard admitting the liability, the transaction and that the cheque were given even though the liability was on the concerned Company. Within this time, the complainant reiterated that he was seeking amount for his services rendered, which was replied in affirmative by the accused. A bare perusal of the entire conversation would further reveal that the entire conversation was to once again gather resources to restart a business in aviation. The complainant can be heard explaining to the other two persons about the steps to be taken, the resources to be collected and various facets of starting the business. If the conversation is be believed to be true, two facts emerges, first, the accused admitted the entire liability and it is nothing short of an extrajudicial confession made without any threat, coercion or promise; and secondly, the complainant had apt knowledge about the trade/business.
18.11 In the above context, the acknowledgment written by Sh. S.K. Kaushik to the complainant is taken into account, that the transaction was legal and the complainant did provide useful service to the accused side. The payment through banking mode further adds authenticity to the transaction. The audio recording played on the phone in the Court and placed on record via pen drive alongwith the transcript makes the three voices clearly identifiable and distinguishable in tone, dialect and features. Nevertheless, the accused has raised no objection to exhibition of any of the three documents and the same was not challenged for a long time. It was only in August 2020 at the final argument stage that an application was moved for forensic analysis of the tape, however, the same was dismissed on merits and there was no appeal or revision preferred against that order.
Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 27 of 30 18.12 From the above discussion, a presumption exists in the favour of the
complainant and it is the accused who is to discharge the onus. The accused has miserably failed to discharge the same. The accused has not only failed to prove the defence taken, but has also failed to prove as to why the complainant was in possession of his cheques which were duly filled specifying the name as well as the amount. The accused has not shown any cogent evidence that the consideration involved was illegal or that there was no legally recoverable debt due. Moreover, the accused did not protest filing of the present complainant, nor any police complainant was filed promptly against the alleged misuse of the present cheques in question. Even though the legal demand notice was issued and served on the accused, however, no protest or police complainant was filed. In the light of the documentary evidences adduced by the complainant and mere verbal statement of the accused, the defense is not tenable. The accused has been unable to rebut the presumption which exits in favour of the complainant.
18.13 The accused side has relied on Rajendra Kumar @ Rajesh Kumar Balksihan Agarwal v. State of Gujarat passed by the Hon'ble High Court of Gujarat in Criminal Appeal No. 1353 of 2010, to argue that a return memo not duly stamped by the Bank cannot be a source of presumption as per the Act. In the present case, however, not only the return memo, but account statement of complainant as well as accused is on record. The accused has even admitted the reason for dishonour and therefore, merely non availability of presumption based on return memo as of no consequences when there are other cogent reason to prove dishonour of cheques. The accused side has relied on other judgment of BPDL Investment private Ltd. v. Maple Leave Trading Pvt. Ltd ., 129 (2006) DLT (94), Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 28 of 30 however the facts are clearly distinguishable as it relates to different reason for dishonour of cheque and pertains to Civil Summary Suit and not complaint under Section 138 NI Act. Similarly, the facts of other two judgments relied by the accused side of Basalingappa v. Mudibasaappa, 2019 (1) DCR 612 and Rajinder Singh Verma v. Haji B.K. Hanchmani are clearly distinguishable and not applicable to the facts and circumstances of the present case, as the former involved of personal loan which could not be proved by the complainant and the latter relates to case where the signature on the cheque was not proved to be that of the accused. The other judgments relied by the accused of Krishna Janardhan Bhat v. Dattatraya, (2008) 4 SCC 54; Mallavarapu Kasivisweshwara Rao v. Thadikonda Ramulu Firm,(2008) 7 SCC 655; and Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35 are clearly distinguished in facts and circumstances of the present case. FINAL CONCLUSION
19. It stands established on record in the form of evidence of the complainant given vide affidavit (which can be read in evidence at all stages as per judgment of "Rajesh Agarwal Vs. State & Anr." 171 (2010) DELHI LAW TIMES 51), documents exhibited in evidence, admission(s) of accused during notice/accusations explained to him and statement of accused recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 that complainant rendered services the concerned Company, accused voluntarily drew the cheques towards the liability of the concerned Company, cheques got dishonored on presentment, complainant served legal demand notice upon accused demanding the cheque amount in question, however, accused Adesh Goel v. Arun Kumar Sharma CT CASES 3007/2014 29 of 30 failed to make the said payment within statutory period despite service. So, all the ingredients of offence punishable under Section 138 of The Negotiable Instruments Act, 1881 stands established on record. The defence raised by accused side are not sustainable as per above discussions.
FINAL ORDER
20. In view of the aforementioned facts and circumstances, this Court is of the opinion that complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 beyond shadow of any reasonable doubt. Accordingly, accused namely Arun Kumar Sharma stands convicted for offence punishable under Section 138 of The Negotiable Instruments Act, 1881.
Announced in the open Court PARAS Digitally signed by
PARAS DALAL
on September 24, 2020.
DALAL Date: 2020.09.24
12:21:19 +0530
(PARAS DALAL)
M.M.04/N.I.Act/SouthEast,
Saket/Delhi/24.09.2020
Adesh Goel v. Arun Kumar Sharma
CT CASES 3007/2014 30 of 30