Delhi District Court
Britelite Media Pvt. Ltd vs Sushil Kumar Bubna on 7 January, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-014242-2023
CRIMINAL APPEAL No.: 246/2023
1. M/s. BRITELITE MEDIA PVT. LTD.,
Office at; 30/15, Cassia Road,
Shipra Suncity, Indirauram,
Ghaziabad, Uttar Pradesh.
2. JAVED AKHTER,
Director, M/s. Britelite Media Pvt. Ltd.,
Office at; 30/15, Cassia Road,
Shipra Suncity, Indirauram,
Ghaziabad, Uttar Pradesh. ... APPELLANT
VERSUS
SUSHIL KUMAR BUBNA,
Proprietor, M/s. Bubna Advertising,
4272/3, Ansari Road,
Darya Ganj, New Delhi-110002. ... RESPONDENT
Date of Institution : 07.10.2023
Date when judgment was reserved : 29.11.2024
Date when judgment is pronounced : 07.01.2025
JUDGMENT
1. The present appeal has been preferred under Section
374 of the Code of Criminal Procedure, 1973 (hereinafter, referred
to as ‘Cr.P.C.’) against the judgment dated 07.08.2023 (hereinafter
referred to as ‘impugned judgment’), passed by learned
Metropolitan Magistrate (NI Act)-02/Ld. MM (NI Act)-02,
Central, Tis Hazari Courts, Delhi (hereinafter referred to as the
‘Ld. Trial Court/Ld. MM’) in case bearing; “Sushil Kumar Bubna
v. M/s. Britelite Media Pvt. Ltd., CC. No. 6632/2017”, convicting
the appellants for the offence punishable under Section 138
Negotiable Instrument Act (hereinafter referred to as ‘NI Act‘) and
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Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.01.07
16:31:35 +0530
the consequent order of sentence dated 14.09.2023 (hereinafter
referred to as ‘impugned order’), passed by the Ld. Trial Court,
awarding the appellant no. 2, simple imprisonment for a period of
03 (three) months and compensation/fine to the tune of Rs.
10,14,235.20/- (Rupees Ten Lakhs Fourteen Thousand Two
Hundred and Thirty Five and Twenty paise only) along with
interest at the rate of 9% (nine percent) per annum on the said
amount from the date of filing of the complaint, i.e., on 11.05.2017
till the date of judgment dated 07.08.2023, to be paid by the
appellants (appellant nos. 1 and 2), jointly and severally to the
respondent/complainant, in default of payment of compensation,
appellant no. 2 was further directed to undergo simple
imprisonment for a further period of 03 (three) months
(hereinafter impugned judgment and impugned order are
collectively referred to as the ‘impugned judgment and order’).
2.1. Succinctly, the genesis of the present proceedings is
the complaint, filed by/on behalf of the respondent/complainant,
though its Special Power of Attorney Holder/SPA Holder, namely,
Ankur Wadhwani, before the Ld. Trial Court in terms of the
provisions under Section 138 of NI Act. Under the said complaint,
it was inter alia contended that the complainant/respondent dealt in
advertising and media promotion through Newspapers, Radio,
Television, event organization, etc., under the name and style of
M/s. Bubna Advertising. It is further averred in the complaint that
the accused/appellant approached the respondent for advertising of
products of his client as well as promotion of their products
through newspaper, radio and print modes, etc. as well as for
sponsorship of events for promotional activities, against purchase
orders. As per the respondent, it used to regularly maintain account
books and during the course of business, sum of Rs. 18,42,007/-
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ABHISHEK Digitally signed by
ABHISHEK GOYAL
GOYAL Date: 2025.01.07 16:31:41
+0530
(Rupees Eighteen Lakhs Forty Two Thousand and Seven only)
was due and outstanding against the appellant as on 31.12.2016 in
the respondent’s account books, avowed to be duly maintained by
the respondent during the course of business. Relevantly, as per the
respondent, appellant made two payments of sum of Rs. 2,00,000/-
(Rupees Two Lakhs only) and Rs. 4,00,000/- (Rupees Four Lakhs
only), both, through RTGS modes on 02.02.2017 and 03.01.2017,
respectively. Correspondingly, as per the complaint, upon payment
of said amount, sum of Rs. 12,42,007/- (Rupees Twelve Lakhs
Forty Two Thousand and Seven only) was due and outstanding
against the appellant on 31.03.2017. As per the respondent, in
discharge of part liability towards the respondent for the work
done as per the order of the appellant, the appellant issued cheque
bearing no. 392285, dated 31.12.2016 for a sum of Rs.
10,14,235.20/- (Rupees Ten Lakhs Fourteen Thousand Two
Hundred and Thirty Five and Twenty paise only), drawn on PNB,
Kaushambi Branch, Ghaziabad, UP (hereinafter referred to as the
‘dishonoured cheque/cheque in question’). It is further averred by
the respondent that the appellant had assured that the said cheque
would be honored on presentation. However, when the cheque in
question/said cheque was presented by the respondent for
encashment with his banker, i.e., HDFC Bank, Darya Ganj branch,
Delhi, the same was returned unpaid for the remarks, “Insufficient
Funds”. Consequently, the respondent is asserted to have issued an
email dated 02.03.2017 to the appellant on his email address, i.e.,
[email protected], however, the appellant is asserted to
have avoided payment of the same for one or the other reasons.
Subsequently, the respondent issued a legal demand notice dated
29.03.2017 to the appellant under Registered AD cover and speed
post, however, neither any payment was made by the appellant nor
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ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.01.07
16:31:46 +0530
the legal notice, replied. Ergo, under such circumstances, the
respondent filed the aforenoted complaint in terms of the
provisions under Section 138 NI Act against the appellants herein.
2.2. Notably, consequent upon pre-summoning evidence
by way of affidavit having been tendered by the SPA holder of the
respondent and thereupon, Ld. Trial Court’s taking cognizance of
the offence on 24.05.2017, summons were issued to the
appellant/accused. Subsequently, upon the appellants entering
appearance before the Ld. Trial Court, notice under Section 251
Cr.P.C. was framed against the appellants vide order dated
12.09.2018, to which, the appellants plead not guilty and claimed
trial. Relevantly, during the course of trial, the SPA Holder of the
respondent examined himself as CW-1, while adopting his pre-
summoning evidence/ evidence by way of affidavit (Ex. C-1) as
well as, relying upon the documents, i.e., original SPA dated
09.05.2017 (Ex. CW1/1); copy of radio media purchase orders
(Ex. CW1/2 (Colly.)); true copy of attested ledger for the year
2015-16 & 2016-17 (Ex. CW1/3); two CDs pertaining to ledger
(Ex. CW1/4); Original bills from 19.10.2015 till 12.12.2016 (Ex.
CW1/5 to Ex. CW1/36); original credit notes (Ex. CW1/37 to Ex.
CW1/49); cheque bearing no. 392285, dated 31.12.2016 for a sum
of Rs. 10,14,235.20/- (Rupees Ten Lakhs Fourteen Thousand Two
Hundred and Thirty Five and Twenty paise only), drawn on PNB,
Kaushambi Branch, Ghaziabad, UP (Ex. CW1/50); cheque
dishonour memo dated 01.03.2017 (Ex. CW1/51); email exchange
between the respondent and appellant (Ex. CW1/52 (Colly.)); legal
demand notice dated 29.03.2017 (Ex. CW1/53); postal receipts
(Ex. CW1/54 to Ex. CW1/57); delivery and tracking reports of the
legal demand notice (Ex. CW1/58 to Ex. CW1/61); and certificate
under Section 65B of the Indian Evidence Act, 1872/Evidence Act
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Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
(Ex. CW1/62). Subsequently, on conclusion of respondent’s
evidence, recording of statement of the appellants under Section
313/281 Cr.P.C. on 31.01.2020, as well as on conclusion of
arguments on behalf of the parties, as aforementioned, the Ld.
Trial Court vide impugned judgment and order, while holding the
appellants guilty of the offence punishable under Sections 138 NI
Act, sentenced them in the manner, as noted hereinabove.
3.1. Learned Counsel for the appellants vehemently
contended that the impugned judgment and order were passed by
the Ld. Trial Court on mere conjunctures, surmises and in
contravention of the settled principles of law, deserving their
setting aside at the outset. In this regard, it was outrightly
submitted that there is no legally enforceable debt and/or liability
whatsoever due towards the respondent by the appellants. Even
otherwise, as per the Ld. Counsel, the complaint filed by the
respondent is grossly mala fide, misleading and frivolous. It was
further submitted that the Ld. Trial Court failed to appreciate that
there must be subsisting liability or debt on the date, when the
cheque was issued/delivered, however, in the instant case, neither
any legally enforceable debt or liability existed/subsisted on the
issuance of cheque in question or on the date of its presentation. As
per the Ld. Counsel, the cheque in question was issued as a post-
dated cheque/security in the month of November 2016 for the
work to be conducted by the respondent in December 2016, as also
specified under email correspondence dated 07/08.11.2016.
However, it was contended, since the entire activity was not
performed by the respondent, no question of existing debt or
liability is established in the instant case. Further, as per the Ld.
Counsel, the basis of the complaint in question is self made ledger
accounts and some invoices, which has no validity under law, as
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ABHISHEK GOYAL
GOYAL Date:
2025.01.07
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also reflected from the entries of the year 2015, whereas appellant
no. 1, admittedly, came into existence in March 2016,
demonstrating that the basis of the present complaint is forged and
fabricated documents. Even otherwise, the ledger and transaction
invoices have not even been certified by any competent
accountant, rather, the same have been certified by attorney
himself, who is neither an account person nor does he possess
requisite knowledge of established accounting procedure. Ld.
Counsel further submitted that the evidence of attorney in the
present case, cannot even otherwise, be considered to be valid
unless he has personal knowledge or the transaction and personally
involved in the procedure. However, in the instants case, the
attorney of the respondent himself disclosed that he was from sales
department of the complainant/respondent’s organization and not
from accounts department, besides the said attorney is neither
privy to any of the correspondences/emails nor marked thereon to
prove/depose of the contents thereof.
3.2. Learned Counsel for the appellants further
vehemently argued that the Ld. Trial Court was oblivious to the
fact that the appellants have successfully rebutted the presumption
which existed in favour of the respondent during the cross
examination of CW-1. It was further contended that the Ld. Trial
Court also failed to appreciate that the in the respondent’s cross-
examination, the appellant was able to rebut the presumption of
139 NI Act and had further put forward his/appellant’s
case/defence, as mandated under law on preponderance of
probabilities. Further, as per the Ld. Counsel, the impugned
judgment is erroneous on the face of it to the effect that the facts
which were not even pleaded by the complainant/respondent, not
even mentioned in the complaint, were incorporated/introduced in
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.07
16:31:59 +0530
the impugned judgment, which is not tenable under law. Ld.
Counsel further vehemently argued that appellant no. 1 is a
separate legal entity and alleged liability of proprietorship concern
of appellant no. 2 cannot be fastened/merged into the alleged
liability of appellant no. 1. It was further submitted that it was
never the case of the respondent that Britelite Media Corp.’s
alleged liability was ever agreed to be merged in the alleged
liability of appellant no. 1 company by appellant no. 2. Further, as
per the Ld. Counsel for the appellants, appellant no. 2 never agreed
or consented for merger of any alleged past liability of his other
proprietorship concern with appellant no. 1. As per the Ld.
Counsel, email dated 14.11.2016, relied upon by the respondent
was actually, answer/reply from appellant no. 2 to the query posed
by the respondent on the same day. However, as per the Ld.
Counsel, the respondent surreptitiously concealed/suppressed the
trailing email and only filed the email of appellant no. 2, solely to
mislead the Ld. Trial Court in order to obtain a favourable order.
Even otherwise, as per the Ld. Counsel, the cheque in question was
issued for a particular liability and could not have been used
against any other liability, has been done in the instant case,
rendering the proceedings bad in law.
3.3. Learned Counsel for the appellants further submitted
that the impugned judgment is manifestly erroneous in as much as
the same wrongly records that appellant no. 2 did not reply to the
legal notice of the complainant to show his bona fides. However,
as per the ld. Counsel, same is contrary to the material placed on
record by respondent himself and also admitted fact of the
complainant that appellant no. 2 immediately replied to the email
dated 02.03.2017 of the respondent/complainant, informing the
appellant of dishonour of cheque. Even otherwise, from a
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.07
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scrupulous analysis of the documents placed on record, as per the
Ld. Counsel, it would be explicit that the instant complaint was
filed by the complainant/respondent beyond the statutory
prescribed period of limitation, making the same liable to be
rejected on this sole ground. In the alternate, presuming that the
notice was duly issued by the respondent to the appellants herein,
same was delivered to the appellant beyond a period of thirty days,
as prescribed under law, vitiating the entire trial proceedings.
Correspondingly, as per the Ld. Counsel, the Ld. Trial Court failed
to even look into the material placed on record by the complainant
himself, much less, consider the same before passing the
impugned judgment. In this regard, Ld. Counsel further submitted
that there are admitted documents, filed by the complainant, which
are against the complainant/respondent and in favour of the
appellants herein. As per the Ld. Counsel, had the Ld. Trial Court
considered the said documents, placed on record by the
complainant himself, the impugned judgment would not have been
passed against the appellants. Further, as per the Ld. Counsel
emails dated 08.11.2016, 28.12.2016 and 02.02.2017 make it
abundantly clear that the appellant in bona fide manner and as a
part of accepted general practice of commercial/business
transactions, informed the respondent about the actual payment
made to the respondent for the work done, in lieu of the cheque in
question, etc., which was never refuted by the respondent. As per
the Ld. Counsel. Since the respondent never
refuted/disputed/objected to the said emails of the appellant, thus,
acquiesced and admitted to the contents thereof. Ld. Counsel
further submitted that the Ld. Trial Court further failed to
appreciate that almost 50% (fifty percent) of the cheque amount
was paid by the appellant before the same was presented for
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.01.07
16:32:07 +0530
encashment, which can be exhibited from the documents filed by
the complainant/respondent. Accordingly, Ld. Counsel submitted
that not only did the Ld. Trial Court failed to consider the truth of
circumstances and passed the impugned judgment in haste, rather,
did not properly appreciate/examine the facts of the present case,
wrongly holding the appellant guilty of the aforementioned
offences. Even otherwise, as per the Ld. Counsel, the impugned
order on sentence was passed by the Ld. Trial Court, inconsiderate
of the correct factual scenario, passing exorbitant sentence and
order of compensation against the appellants, besides no sentence
of imprisonment, as per the Ld. Counsel, could have been passed
by the Ld. Trial Court against appellant no. 2 herein, especially
when appellant no. 1 was directed to pay only compensation.
Consequently, the Ld. Counsel inter alia prayed that the present
appeal be allowed, and the impugned judgment and order be set
aside, and the appellant be acquitted of the alleged charges. In
support of the said contentions, reliance was placed upon the
decisions in; Indus Airways Pvt. Ltd. v. M/s. Magnum Aviation
Pvt. Ltd., (2014) 2 Crimes 105 (SC); SIL Import, USA v. Exim
Aides Silk Exporters, Bangalore, (1999) 4 SCC 567; K. R. Indira
v. Dr. G. Adinarayana, (2003) 8 SCC 300; Suman Sethi v. Ajay K.
Churiwal & Anr., (2000) 2 SCC 380; Uniplas India Ltd. & Ors. v.
State (Govt. of NCT of Delhi) & Anr., (2001) 6 SCC 8; Industrial
Credit & Development Syndicate now called ICDS Ltd. v.
Smithaben H. Patel, (1999) 3 SCC 80; M. Tech Developers Pvt.
Ltd. v. State of NCT of Delhi & Ors., SLP(Crl.) No. 15/2019,
dated 30.07.2019 (SC); Pandurang Dhondhi Chougule & Ors. v.
Maruti Hari Jadhav & Ors., (1966) 1 SCR 102; Mohinder Singh
Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Pawan
Kumar Ralli v. Maninder Singh Narula, Crl. Appeal No.
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.01.07
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1684/2014, dated 11.08.2014 (SC); Maninder Singh Narula v.
Pawan Kumar Ralli, Crl. MC No. 2961/2012, dated 15.01.2013
(DHC); Sarabjit Singh v. State NCT of Delhi, Crl. MC No.
2856/2015, dated 08.10.2015 (DHC); John K. Abraham v. Simon
C. Abraham & Anr., (2014) 2 SCC 236; Sudesh Kumar v. State of
UP & Anr., Neutral Citation: 2024:AHC:38337; A. Seating v.
Nandini Modulars, 2022 SCC Online Kar. 725; Brushman India
Ltd. & Anr. v. State & Anr., 2018 SCC Online Del. 12499; Mukesh
Sharma v. Satbir Singh, 2015 SCC Online Del. 11347; and Ganesh
Kumar G. & Ors. v. Nandini Modulors, 2022 SCC Online Kar.
725.
4.1. Per contra Ld. Counsel for the respondent submitted
that the impugned judgment and order were passed by the Ld. Trial
Court after due appreciation of the facts and circumstances of the
case as well as in consonance with the settled judicial precedents.
As per the Ld. Counsel, grounds of appeal in the instant case are
falsely created and based on a concocted story. On the contrary, as
per the Ld. Counsel, the order passed by the Ld. Trial Court are
correct and the appellants were correctly convicted and sentenced.
It was further contended that the testimony of the SPA Holder of
the complainant/CW-1 has not only been consistent, rather, lucidly
points towards the only inference of guilt of the appellant. As per
the Ld. Counsel, the respondent fairly proved his complaint and
the ingredients of the offence under Section 138 NI Act. Further,
the appellants, as per the Ld. Counsel, were not able to rebut the
presumption under Section 139 NI Act in the instant case. It was
further submitted that the SPA holder of the complainant was fully
conversant with the facts of the case, as well as able to depose on
behalf of the complainant. In this regard, Ld. Counsel further
submitted that even during the cross-examination by the counsel of
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ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.07
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the appellant, said SPA Holder specifically deposed that he dealt
with other company, i.e., Vishnu Pouch Packaging Pvt. Lts. and
that he had also dealt with Saloni Oils, which were the clients of
the appellant, proving that the said SPA Holder personally dealt
with the said clients of the appellants and also handled orders
placed by the appellants personally, being conversant with the
transaction involved.
4.2. Learned Counsel for the respondent further submitted
that admittedly both the respondent as well as the appellant were in
business relationship and the complainant duly maintained a
ledger account during the course of business, wherein the
particulars of transaction between the appellant and respondent
was duly recorded. Further, as per the Ld. Counsel, the appellant,
even at the stage of framing of notice under Section 251 Cr.P.C.,
admitted that the dishonoured cheque was issued by appellant no.
2, however, pleaded that the same was issued as security. Even
otherwise, as per the Ld. Counsel, where the appellant pleads that
the documents produced by the complainant/respondent were
forged/manipulated, onus was on the appellant to rebut the same in
terms of the provisions under Section 103 of the Evidence Act.
However, in the present case, as per the Ld. Counsel, neither any
evidence/documents produced by the appellant nor any
witness/defence evidence forthcoming to belie the case of the
respondent. Correspondingly, as per the Ld. Counsel the appellants
opted not to even reply to the legal demand notice dated
29.03.2017 or to produce any ledger account to demonstrate that
the appellants owed no liability towards the
complainant/respondent. In so far as the aspect of limitation in
filing the complaint in the instant case is concerned, Ld. Counsel
for the respondent strenuously contended that no such
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ABHISHEK GOYAL
GOYAL Date:
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defence/argument was raised by/on behalf of the appellants before
the Ld. Trial Court. Even otherwise, as per the Ld. Counsel, the
said emails were never sent by the respondent himself, rather, the
emails in question were mere general correspondence between the
employees of the complainant/respondent and the appellants. In
this regard, Ld. Counsel further submitted that the issue of
limitation is a mixed question of fact as well as law, which cannot
be raised by the appellants for the first time in the present
proceedings. Further, as per the Ld. Counsel, the email
correspondence dated 02.03.2017 does not amount to legal notice,
in strict sense, as envisaged under Section 138 NI Act. Ld. Counsel
strenuously reiterated that the facts and circumstances put forth as
well as the evidence placed on record, unerringly point out towards
the guilt of the appellants and that no fault can be attributed to the
findings of the Ld. Trial Court, which are based on proper
appreciation of facts as well as law. Accordingly, Ld. Counsel for
the respondent submitted that the present appeal deserves to be
dismissed at the outset, as grossly malicious and devoid of merits.
In support of the said contentions, reliance was placed upon the
decisions in; Rajesh Jain v. Ajay Singh, SLP (Crl.) No.
12802/2022, dated 09.10.2023 (SC); D.K. Chandel v. M/s.
Wockhardt Ltd., Crl. Appeal No. 132/2020, dated 20.01.2020
(SC); Kishan Rao v. Shankargouda, AIR 2018 SC 3173;
Kushalbhai Mahojibhai Patel v. A Firm of Mohmodhussain
Rahimbux, AIR 1981 SC 977; Anneta Hada v. M/s. Godfather
Travels & Tours Pvt. Ltd., AIR 2012 SC 2795; Padmini Polymers
Ltd. v. Unit Trust of India, 2003 Cri.LJ 1053; V.S. Yadav v. Reena,
Crl. Appeal No. 1136/2010, dated 21.09.2010 (DHC); Suresh
Chandra Goyal v. Amit Singhal, Crl. L.P. 706/2014, dated
14.05.2015 (DHC); Smt. Parvathamma M. v. Smt. Chandrakala
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GOYAL
GOYAL Date: 2025.01.07
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V., Crl. Appeal No. 508/2015, dated 14.06.2024 (Kar. HC); Shri.
Roshan v. Ramesh Vithal Shet, Crl. Appeal No. 2660/2009, dated
26.06.2014 (Kar. HC); M/s. Pratap Technocrats Pvt. Ltd. v. M/s.
Bharat Sanchar Nigam Limited, WP(C) No. 1712/2017, dated
30.05.2017 (DHC); and Shilpa Architects Planners & Designers v.
DCIT, Chennai, ITA No. 1059 to 1065/2017, dated 06.06.2019
(ITAT, Chennai).
5. The arguments of Ld. Counsel for the appellants as
well as that of Ld. Counsel for the respondent, heard and the
record(s), including the Trial Court Record, written
submission/written arguments, list of date of events and the case
laws, filed by/relied upon by the parties have been thoroughly
perused.
6. At the outset, this Court deems it prudent to enunciate
the extent of jurisdiction of this Court in appeal/appellate
jurisdiction. In this regard, this Court it is pertinent to outrightly
make a reference to the decision of the Hon’ble Supreme Court in
Padam Singh v. State of U.P., (2000) 1 SCC 621 , wherein the
Hon’ble Court, while delving into the ‘scope and ambit’ of
appellate court’s jurisdiction inter alia noted as under;
“2. … It is the duty of an appellate court to look
into the evidence adduced in the case and arrive at an
independent conclusion as to whether the said
evidence can be relied upon or not and even if it can be
relied upon, then whether the prosecution can be said
to have been proved beyond reasonable doubt on the
said evidence. The credibility of a witness has to be
adjudged by the appellate court in drawing inference
from proved and admitted facts. It must be
remembered that the appellate court, like the trial
court, has to be satisfied affirmatively that the
prosecution case is substantially true and the guilt of
the accused has been proved beyond all reasonable
doubt as the presumption of innocence with which the
accused starts, continues right through until he is held
guilty by the final court of appeal and thatCA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 13 of 44
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by ABHISHEK
ABHISHEK GOYAL
GOYAL Date: 2025.01.07
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presumption is neither strengthened by an acquittal
nor weakened by a conviction in the trial court…”
(Emphasis supplied)
7. Correspondingly, the Hon’ble Apex Court in
Narendra Bhat v. State of Karnataka, (2009) 17 SCC 785, iterated
in respect of the foregoing as under;
“3. This Court has in a series of judgments held
that a court exercising appellate power must not only
consider questions of law but also questions of fact
and in doing so it must subject the evidence to a
critical scrutiny. The judgment of the High Court must
show that the Court really applied its mind to the facts
of the case as particularly when the offence alleged is
of a serious nature and may attract a heavy
punishment.”
(Emphasis supplied)
8. Quite evidently, from a conjoint reading of the
aforenoted judicial dictates it is perspicuously deduced that the
jurisdiction of this Court in an appeal extends to reappreciation of
the entire material placed on record of the trial court and to arrive
at an independent conclusion as to whether the said evidence can
be relied upon or not. In fact, as aforenoted, court(s), while
exercising appellate power is not only required to consider the
question of law, rather, also question of facts to affirmatively reach
a conclusion of guilt or innocence of an accused. In fact, it is trite
law1 that non-re-appreciation of the evidence on record in an
appeal may affect the case of either the prosecution or even the
accused. Needless to reemphasize that the appellate court is to be
further wary of fact that presumption of innocence of an accused,
even extents until an accused is held guilty by the final court of
appeal and that such a presumption is neither strengthened by an
acquittal nor weakened by a conviction in the trial court.
9. Therefore, being cognizant of the aforesaid
1
State of Gujarat v. Bhalchandra Laxmishankar Dave, (2021) 2 SCC 735.
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principles, however, before proceeding with the determination of
the rival contentions of/on behalf of the parties, this Court deems it
pertinent to reproduce the relevant provisions under law/NI Act,
for the purpose of present adjudication, as under;
“118. 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;
(b) as to date: that every negotiable instrument
bearing a date was made or drawn on such date;
(c) as to time of acceptance: that every accepted
bill of exchange was accepted within a reasonable
time after its date and before its maturity;
(d) as to time of transfer: that every transfer of
negotiable instrument was made before its
maturity;
(e) as to order of indorsement: that the
indorsements appearing upon a negotiable
instrument were made in the order in which they
appear thereon;
(f) as to stamp: that a lost promissory note, bill of
exchange or cheque was duly stamped;
(g) that holder is a holder in due course: that the
holder of a negotiable instrument is a holder in due
course:
Provided that, where the instrument has been
obtained from its lawful owner, or from any person in
lawful custody thereof, by means of an offence or
fraud, or has been obtained from the maker or
acceptor thereof by means of an offence or fraud or for
unlawful consideration, the burden of proving that the
holder is a holder in due course lies upon him.
*** *** ***
138. Dishonour of cheque for insufficiency, etc.,
of funds in the account-Where any cheque drawn by a
person on an account maintained by him with a banker
for payment of any amount of money to another
person from out of that account for the discharge, in
whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the
amount of money standing to the credit of that account
is insufficient to honour the cheque or that it exceeds
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the amount arranged to be paid from that account by
an agreement made with that bank, such person shall
be deemed to have committed an offence and shall,
without prejudice to any other provision of this Act, be
punished with imprisonment for a term which may
extend to two years, or with fine which may extend to
twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall
apply unless-
(a) the cheque has been presented to the bank
within a period of six months from the date on
which it is drawn or within the period of its
validity, whichever is earlier;
(b) the payee or the holder in due course of the
cheque, as the case may be, 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 thirty days of the receipt of
information by him from the bank regarding the
return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or as the case may be, to the holder in due course
of the cheque within fifteen days of the receipt of
the said notice.
Explanation-For the purposes of this section, “debt
or other liability” means a legally enforceable debt or
other liability.
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.”
(Emphasis supplied)
10. At the outset, this Court observes that the objective
behind the introduction of the provision(s) under Section 138
under the NI Act, by virtue of amendment/insertion in the year
1989 is to inculcate faith in the efficacy of banking operations and
credibility in transacting business on negotiable instrument.
Notably, at the time of introduction of the said provision(s), the
legislature was cognizant of the fact that the civil remedies were
proving to be inadequate to curb the menace on the part of
unscrupulous persons and a need was felt for introduction of a
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penal provision to cease the propensity on the part of dishonest
persons to exploit negotiable instruments for personal gains.
Consequently, being wary of the imminent requirement for a penal
provision to bring about faith in monetary transactions, Chapter
XVII was introduced in the NI Act, comprising of the provisions
from Sections 138 to 148. In particular, penal provisions under
Section 138 NI Act were designed to1, “safeguard the faith of the
creditor in the drawer of the cheque, which is essential to the
economic life of a developing country like India. The provision
has been introduced with a view to curb cases of issuing cheques
indiscriminately by making stringent provisions and safeguarding
interest of creditors”. Notably, the Hon’ble Supreme Court in Goa
Plast (P.) Ltd. v. Chico Ursula D’Souza, (2004) 2 SCC 235 , while
inter alia analyzing the intent of introduction of Section 138 NI Act
as well as scope and objective of the said provision(s) observed as
under;
“26. The object and the ingredients under the
provisions, in particular, Sections 138 and 139 of the
Act cannot be ignored. Proper and smooth functioning
of all business transactions, particularly, of cheques as
instruments, primarily depends upon the integrity and
honesty of the parties. In our country, in a large
number of commercial transactions, it was noted that
the cheques were issued even merely as a device not
only to stall but even to defraud the creditors. The
sanctity and credibility of issuance of cheques in
commercial transactions was eroded to a large extent.
Undoubtedly, dishonour of a cheque by the bank
causes incalculable loss, injury and inconvenience to
the payee and the entire credibility of the business
transactions within and outside the country suffers a
serious setback. Parliament, in order to restore the
credibility of cheques as a trustworthy substitute for
cash payment enacted the aforesaid provisions. The
remedy available in a civil court is a long-drawn
matter and an unscrupulous drawer normally takes
various pleas to defeat the genuine claim of the
payee.”
1
Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305.
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(Emphasis supplied)
11. Relevantly, in order to attract culpability under the
provisions of 138 NI Act, the prosecution is inter alia required to
prove1 that; (a) the cheque was issued/drawn by a person on an
account maintained by him for payment of any sum of money to
another person from out of that account; (b) the cheque must have
been issued against the discharge, either in whole or in part, of any
debt or other liability, though, in the absence of proof to the
contrary, it shall be presumed that it was issued for the same; and
(c) the cheque was returned by the bank unpaid either because the
amount of money standing to the credit of that account is
insufficient to honour the cheque; or because it exceeds the amount
arranged to be paid from the account by an agreement with that
bank. Reference in this regard is further made to the decision of
Hon’ble Supreme Court in Kusum Ingots & Alloys Ltd. v. Pennar
Peterson Securities Ltd., (2000) 2 SCC 745 , wherein the Hon’ble
Court, while conscientiously analyzing the provisions under
Section 138 NI Act inter alia explicated the ingredients of the said
provision/offence, as under;
“10. On a reading of the provisions of Section 138
of the NI Act it is clear 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 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 the amount of money standing to
the credit of the account is insufficient to honour1
N. Doraisamy v. Archana Enterprises, 1995 SCC OnLine Mad 25
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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;
(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.”
(Emphasis supplied)
12. Here, it is further pertinent to observe that the
statute/NI Act also provides for raising of a presumption/statutory
presumption, casting/permitting a reverse burden on an accused
and requiring the accused to prove the non-existence of the
presumed fact. Quite evidently, Section 139 NI Act provides
for/creates one such exception(s) to the general rule as to the
burden of proof and shifts the onus on an accused to rebut the
presumption envisaged under law, against him. Another such
presumption under law being, under Section 118 NI Act.
Reference in this regard, is made to the decision of the Hon’ble
Supreme Court in Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148 ,
wherein the Hon’ble Court noted in regard the foregoing as under;
“33. The NI Act provides for two presumptions:
Section 118 and Section 139. Section 118 of the Act
inter alia directs that it shall be presumed, until the
contrary is proved, that every negotiable instrument
was made or drawn for consideration. Section 139 of
the Act stipulates that “unless the contrary is proved, it
shall be presumed, that the holder of the cheque
received the cheque, for the discharge of, whole or
part of any debt or liability”. It will be seen that the
“presumed fact” directly relates to one of the crucial
ingredients necessary to sustain a conviction under
Section 138…
34. Section 139 of the NI Act, which takes the
form of a “shall presume” clause is illustrative of a
presumption of law. Because Section 139 requires thatCA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 19 of 44
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the Court “shall presume” the fact stated therein, it is
obligatory on the Court to raise this presumption in
every case where the factual basis for the raising of the
presumption had been established. But this does not
preclude the person against whom the presumption is
drawn from rebutting it and proving the contrary as is
clear from the use of the phrase “unless the contrary is
proved”…”
(Emphasis supplied)
13. Strikingly, the Hon’ble Supreme Court in Rangappa
v. Sri Mohan, (2010) 11 SCC 441, while painstakingly evaluating
the intent and purpose behind the introduction of Section 139
under the Statute books/NI Act, observed as under;
“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 that extent, the impugned observations in
Krishna Janardhan Bhat [(2008) 4 SCC 54: (2008) 2
SCC (Cri) 166] 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 defence 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 defendant-accused cannot be expected to
discharge an unduly high standard or proof.”
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(Emphasis supplied)
14. Markedly, it is observed from above that the
presumption envisioned under Section 139 NI Act not only
pertains to the fact that the cheque in question was drawn in
discharge of debt or liability, rather, also includes a presumption
that there exists a legally enforceable debt or liability at the time of
such drawing. Congruently, Section 118(a) NI Act provides for a
presumption in favour of the complainant1 inter alia to the effect
that the negotiable instrument or the endorsement was made or
endorsed for consideration. Indisputably2, the burden to rebut the
presumption lies on an accused, by establishing probable defence.
Needless to further observe here that, though, in order to rebut the
statutory presumptions3, “an accused is not expected to prove his
defence beyond reasonable doubt as is expected of the
complainant in a criminal trial”, however, the law is settled4 that a
bare denial of the passing of the consideration or of existence of
debt/liability by an accused, would not serve the purpose or come
to the aid/rescue of an accused. In fact, law is well settled that
under such circumstances, it is expected from an accused to bring
‘something which is probable’, on record for getting the burden of
proof shifted to the complainant. Reference in this regard is made
to the decision in Kumar Exports v. Sharma Carpets, (2009) 2 SCC
513, wherein the Hon’ble Apex Court, explicated the law in regard
the foregoing as under;
“20. The accused in a trial under Section 138 of
the Act has two options. He can either show that
consideration and debt did not exist or that under the
particular circumstances of the case the non-existence
of consideration and debt is so probable that a prudent1
Kundan Lal Rallaram v. Custodian, Evacuee Property, 1961 SCC OnLine SC 10.
2
Rajaram v. Maruthachalam, 2023 SCC OnLine SC 48.
3
Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106.
4
Kishan Rao v. Shankargouda, (2018) 8 SCC 165.
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man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions an
accused is not expected to prove his defence beyond
reasonable doubt as is expected of the complainant in
a criminal trial. 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 him . However, the
court need not insist in every case that the accused
should disprove the non-existence of consideration
and debt by leading direct evidence because the
existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare
denial of the passing of the consideration and
existence of debt, apparently would not serve the
purpose of the accused. Something which is probable
has to be brought on record 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. Apart from adducing direct
evidence to prove that the note in question was not
supported by consideration or that he had not incurred
any debt or liability, the accused may also rely upon
circumstantial evidence and if the circumstances so
relied upon are compelling, the burden may likewise
shift again on to the complainant. The accused may
also rely upon presumptions of fact, for instance,
those mentioned in Section 114 of the Evidence Act to
rebut the presumptions arising under Sections 118 and
139 of the Act.”
(Emphasis supplied)
15. Similarly, the Hon’ble Supreme Court in
Basalingappa v. Mudibasappa, (2019) 5 SCC 418, summarized the
principles governing the raising as well as rebuttal of statutory
presumption, provided under the law/NI Act, in the following
terms;
“25. We having noticed the ratio laid down by this
Court in the above cases on Sections 118(a) and 139,
we now summarise the principles enumerated by this
Court in following manner:
25.1. Once the execution of cheque is admitted
Section 139 of the Act mandates a presumption that
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the cheque was for the discharge of any debt or other
liability.
25.2. 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
for rebutting the presumption is that of preponderance
of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him 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.
25.4. That it is not necessary for the accused to
come in the witness box in support of his defence,
Section 139 imposed an evidentiary burden and not a
persuasive burden.
25.5. It is not necessary for the accused to come in
the witness box to support his defence.”
(Emphasis supplied)
16. Ergo, being cognizant of the aforenoted principles,
this Court would now proceed with the assessment of the rival
contentions by/on behalf of the appellants and the respondent.
Pertinently, Ld. Counsel for the appellants outrightly contended
that the complaint in question was filed beyond the statutory
prescribed period of limitation by the respondent and that the same
was neither accompanied with any application for condonation of
delay nor any reasons, forthcoming on behalf of the respondent to
permit condonation of the said period. In particular, as aforenoted,
as per the Ld. Counsel for the appellants since the respondent
issued email dated 02.03.2017 to the appellant at its email’s id.
bearing [email protected], the period of limitation for filing
the complaint ought to be reckoned from the said date.
Consequently, as per the Ld. Counsel, the instant complaint,
having been filed only on 11.05.2017 was grossly barred by
limitation. However, in light of the submissions raised, this Court
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deems it apposite to outrightly note that it is cognizant of the
settled law1 that no format for notice/demand notice under Section
138 NI Act is prescribed under law and that it is sufficient that the
demand, as specified under the said provision, is in writing and
that of the amount of the dishonoured cheque. Correspondingly, it
is an accepted proposition of law that a notice has to be read as a
whole and in the demand notice, a demand for cheque amount is
required to be made. As a corollary, if no such demand is made 2,
then the demand notice would not pass the test of legal
requirement of section 138 NI Act. Reference in this regard is
made to the decision of the Hon’ble Supreme Court in Suman
Sethi v. Ajay K. Churiwal & Ors., MANU/SC/0062/2000 , where
the Hon’ble Court iterated the law in this regard, as under;
“8. It is well settled principle of law that the notice
has to be read as a whole. In the notice, demand has to
be made for the “said amount” i.e. cheque amount. If
no such demand is made the notice no doubt would
fall short of its legal requirement. Where in addition to
“said amount” there is also a claim by way of interest
cost etc. whether the notice is bad would depend on
the language of the notice. If in a notice while giving
up break up of the claim the cheque amount, interest
damages etc. are separately specified, other such
claims for interest, cost etc. would be superfluous and
these additional claims would be severable and will
not invalidate the notice. If, however, in the notice an
omnibus demand is made without specifying what
was due under the dishonoured cheque, notice might
well fail to meet the legal requirement and may be
regarded as bad.”
(Emphasis supplied)
17. Simultaneously, this Court is also conscious of the
recent dictates of the superior court(s)3, proclaiming that
notice/demand notice sent through ’email or WhatsApp’ mode, in
case it fulfils the requirement of Section 13 of Information
1
Aryan Biological Corporation and Ors. v. Vishwakarma Metal Box & Ors., MANU/DE/4992/2022.
2
K.R. Indira Versus Dr. G. Adinarayana, (2003) 8 Supreme Court Cases 300.
3
Rajendra v. State of U.P. & Ors., MANU/UP/0261/2024.
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Technology Act, 2000 (hereinafter referred to as the ‘IT Act‘),
would be a valid notice under Section 138 of the NI Act to the
drawer of cheque, and same will be deemed to be served on the
date of dispatch, itself. Nonetheless, this Court deems it further
pertinent to note in respect of the foregoing that it is equally a
settled law that where an offence under Section 138 NI Act is
asserted to be committed by a company, then, notice under Section
138 NI Act/demand notice ought/is required to be sent to the
company and that in the absence of serving any demand notice to
the company, the essential and mandatory step of serving a
demand notice to the drawer of the cheque fails. Pertinent in this
regard to make reference to the decision in HG Retail Solutions
Pvt. Ltd. v. Rajiv Kumar Saxena, MANU/DE/3092/2023, wherein
the Hon’ble High Court of Delhi in an akin situation, noted as
under;
“24. It is pivotal to highlight that as per section
141 NI Act, the principal accused is the company and
vicarious liability will only extend to those
responsible, once the principal accused i.e. the
company is also proceeded against. Thus if an offence
under section 138 NI Act has been committed by a
company, then the company ought to be sent the
demand notice, in order to comply with the statutory
steps contained in section 138 NI Act. Section 138 NI
Act mandates that demand notice be sent to the drawer
of the cheque. In the present case the cheque was
drawn by the director Karan Tomar for and on behalf
of the company HG Retail. Thus the company ought
to have been served the demand notice, as in the
absence of serving any demand notice to the
company, the essential and mandatory step of serving
a demand notice to the drawer of the cheque fails.
25. In the present case, admittedly no demand
notice was ever sent to the company i.e. the principal
accused. There cannot be a prosecution without
prosecuting the principal accused. The demand notice
was only sent to the directors of the company. The
company was made a party in the complaint u/s 138
NI Act, however the ingredient of section 138 NI Act
which postulates that a demand notice be sent to the
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drawer of the cheque, stands unfulfilled. The loan
agreement was also between the petitioner company
HG Retail and the respondent. The director was
merely acting on behalf of the company. Thus if the
default or non-payment is done at the behest of the
company, the company ought to have been sent a
demand notice. Even though the company was
arrayed as an accused in the complaint under 138,
however, without demand notice being served to the
company the complaint itself fails and cannot be
maintainable in terms of the provisions contained in
section 138 NI Act. It is only when the company is
prosecuted and proceeded against in compliance of
section 138 NI Act, that vicarious liability in terms of
section 141 NI Act will extend to its directors or
others responsible for the commission of the offence.
26. It is imperative that all the elements of Section
138 of the NI Act be duly satisfied prior to taking
cognizance of such a complaint. In the absence of
demand notice being served upon the company, which
serves as the drawer of the cheque, the complaint itself
fails to meet the requirements stipulated by Section
138 of the NI Act, as one of the essential elements
remains unsatisfied.”
(Emphasis supplied)
18. Markedly, in light of the aforenoted judicial dictates
when the facts of the instant case, in light of the aforesaid
contentions of Ld. Counsel for the appellants and that of the Ld.
Counsel for the respondent, are conscientiously evaluated, this
Court deems it pertinent to outrightly note that the issue of
limitation/complaint being barred by limitation has been raised
by/on behalf of the appellants for the first time in the present
appeal. Needless to mention that the appellants, neither raised the
said submission before the Ld. Trial Court nor the order of
cognizance of the Ld. Trial Court in the instant case, was ever
challenged by/on behalf of the appellants on the ground of
limitation. Further, even in the instant appeal, the issue of
limitation was raised by the Ld. Counsel for the appellants only for
the first time during the course of arguments and subsequently,
under the written arguments filed by/on behalf of the appellants.
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ABHISHEK GOYAL
GOYAL Date: 2025.01.07
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Notwithstanding the foregoing when the material placed on the
record is scrupulously analyzed, it is observed from a perusal of
email dated 02.03.2017 that the same was issued at the email
address bearing [email protected] and that there is no
indication, even to the slightest, to suggest that the said email was,
in fact, received/addressed to appellant no. 1, being the company
in the instant case. Even otherwise, no evidence/material has been
placed on record to demonstrate that the said email id. pertained to
appellant no. 1 or that the service of notice on the said email id.
would tantamount to service of notice to appellant no. 1 in the
instant case. Needless to mention nothing in this regard is even
forthcoming under the evidence of CW-1, either by cross-
examination or by means of suggestions to the said witness.
Accordingly, under such circumstances, this Court finds itself
difficult to be convinced that the issuance of email dated
02.03.2017 by/on behalf of the respondent to at email id. bearing
[email protected] would amount to compliance with the
aforenoted dictate of the Hon’ble High Court in HG Retail
Solutions Pvt. Ltd. v. Rajiv Kumar Saxena,
MANU/DE/3092/2023 (Supra.), i.e., the same would amount to
mandatory service of notice on the company/appellant no. 1 in
terms of the said judicial dictate in the absence of any evidence in
this regard forthcoming on record. On the contrary, legal notice
dated 29.03.2017 (Ex. CW/53) was issued by the respondent to
both the appellants, duly received at the appellants’ end on
31.03.2017 (as per the tracking receipts dated Ex. CW1/58 to Ex.
CW1/61). Needless to mention that the appellants did not deny the
receipt of legal notice dated 29.03.2017 neither at the time of
framing of notice under Section 251 Cr.P.C. on 12.09.2018 nor at
the time of recording of the appellants’ statement in terms of the
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 27 of 44
ABHISHEK ABHISHEK
Digitally signed by
GOYAL
GOYAL Date: 2025.01.07 16:33:27
+0530
provision under Section 313/281 Cr.P.C. on 31.01.2020. Pertinent
to note here that, though, it has been further contended by Ld.
Counsel for the appellants in the instant appeal that under the
notice framed under Section 251 Cr.P.C. on 12.09.2018 it has been
wrongly recorded that the appellants received legal notice due to
typographical error, however, the said contention does not find
favour with this Court. The same is for the reason that not only the
time of framing of notice on 12.09.2018 the appellants got
recorded, “I did receive the legal notice…”, rather, even after a gap
of more than one year, on 31.01.2020, at the time of recording of
statement under Section 313 Cr.P.C., similar admission was made
by the appellants. Clearly, such consistent admission on the part of
the appellants cannot, by any stretch of imagination, be termed to
be a typographical error in recording that the legal demand notice
dated 29.03.2017 (Ex. CW/53) was not received at the end of the
appellants. Needless to mention that no application/ proceeding
against the said ‘so called’ typographical error was ever
filed/initiated by/on behalf of the appellants at any stage during the
pendency of the proceedings before the Ld. Trial Court. On the
contrary, as aforenoted, it is only in the present appeal such an
assertion is raised by/on behalf of the appellants for the first time,
contrary to the records of the Ld. Trial Court. Lastly, this Court is
also not convinced with the submission of Ld. Counsel for the
appellants that even presuming the notice/legal demand notice to
be validly issued by the respondent on 29.03.2017, proceedings
would still be time barred as the notice was received by the
appellants on 31.03.2017, beyond 30 days of alleged dishonour of
cheque on 01.03.2017. On the contrary, in this regard, reference is
made to proviso (b) of Section 138 NI Act, which provides, “the
payee or the holder in due course of the cheque, as the case may be,
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 28 of 44
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.01.07
16:33:34 +0530
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
thirty days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid…”. Significantly,
from a perusal of the said provision, it is quite lucid that the law
prescribes for issuance of notice in writing to the drawer of the
cheque, within thirty days of the receipt of information by the
banker regarding the dishonour of cheque and not of the period of
receipt thereof by an accused, as otherwise contended by the Ld.
Counsel for the appellants. Even otherwise, presuming for the sake
of argument that the contention of Ld. Counsel for the appellants is
tenable under law, in the instant case, notice/demand notice dated
29.03.2017 was, in fact, received by the appellants on the thirtieth
day, i.e., on 31.03.2017, from the date of dishonour of cheque
mentioned under the return memo dated 01.03.2017, as noted from
the delivery receipts of the said notice.
19. In so far as the contention of Ld. Counsel for the
appellants pertaining to the SPA Holder of the respondent not
being personally aware of the facts of the present case, this Court is
in concurrence with the finding of the Ld. Trial Court that except
for mere blatant assertion to the said effect, nothing else/material is
forthcoming in this regard from the end of the appellants. In fact, in
this regard, this Court also observes that in his evidence by way of
affidavit (Ex. C-1), the said SPA holder specifically mentioned that
he was well acquainted with the facts of the present case and that
nothing material has been brought on record, even in the cross
examination of said SPA Holder/CW-1 to rebut the factum of his
personal knowledge of the facts of the present case. In fact, during
his cross-examination CW-1 inter alia specially asserted that he
joined with the respondent/M/s. Bubna Advertising in the year
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 29 of 44
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
16:33:40
+0530
2009 and that the ledger account Ex. CW1/3 was prepared by the
accounts department of the respondent under his/CW-1’s
supervision, bearing his signatures at point A. Apposite in this
regard to reproduce the relevant extracts from the cross-
examination of CW-1, dated 29.07.2019, as under;
“XXX by Sh. ***, Ld. Counsel for accused.
I am Assistant Manager Client Services with M/s
Bubna Advertising. I have not placed on record any
document relating to my job or my designation. M/s
Bubna Advertising was found in somewhere around
1985. I have not placed on record any document
regarding the inabilities as mentioned in the document
Ex.CW1/1 (SPA). I am working with abovesaid
organization since 2009.
It is correct that I have filed this case on the basis
of transaction with accused no. 1 company (M/s
Britelite Media Pvt. Ltd.). It is correct that the cheque
in question was issued by accused no. 1 company.
Vol. The cheque in question was issued by Mr. Javed.
It is correct that the cheque in question was issued by
Mr. Javed on the behest of company as a Director. As
far as, I remember the first transaction with the
accused no. 1 company was started somewhere in
2014. It is correct that document Ex.CW1/3 is ledger
account which is prepared by Account Department
under my supervision and same bears my signature at
Point A. I have signed the same in the capacity of SPA
Holder. It is wrong to suggest that I have no authority
to sign the Account ledger. It is wrong to suggest that
an Assistant Manager Client Services cannot signed
Account ledger…”
(Emphasis supplied)
20. Noticeably, it is observed from above that, though,
CW-1 asserted in his cross-examination that he had not placed on
record, any document relating to his job or designation regarding
his employment with the respondent, however, the appellants did
not summon and/or requisition the said documents from CW-1.
Correspondingly, CW-1 in his cross-examination dated
13.09.2019 further denied the suggestion that he had no personal
knowledge of the transaction pertaining to the appellant with the
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 30 of 44
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.07
16:33:44 +0530
respondent or the entire case. On the contrary, in his cross-
examination on the said date, CW-1 specifically avowed that it has
also dealt with Vishnu Pouch Packaging Pvt. Ltd. and Saloni Oils,
other clients of the appellants. Germane to reproduce the relevant
extracts from CW-1’s cross-examination dated 13.09.2019, as
under;
“XXX Sh. ***, Ld. Counsel for accused.
I have dealt with other company i.e. Vishnu Pouch
Packaging Pvt. Ltd. It is wrong to suggest that I have
not dealt with Vishnu Pouch Packaging Pvt Ltd. I
have dealt with Saloni Oils, one of the client of
accused company. I have dealt in radio domain for the
Saloni Oils. It is wrong to suggest that I have not dealt
with Saloni Oils. I do not remember the domain or any
other client of the accused company with which I
dealt.
It is wrong to suggest that I have no personal
knowledge of the transactions of the accused
company with the complainant. It is wrong to suggest
that I have no personal knowledge regarding the entire
case of the complainant. It is wrong to suggest that
cheque in question was given as PDC as security
against the future work/activity. It is wrong to suggest
that cheque in question was not given in discharge of
debt or liability. It is wrong to suggest that I have
misused the cheque in question which was given as
security. It is wrong to suggest that accused company
has reconciled all the accounts with the complainant.
It is wrong to suggest that I cannot depose since I have
no personal knowledge It is wrong to suggest that I am
deposing falsely.”
(Emphasis supplied)
21. Apropos the present discourse, this Court deems it
pertinent to deal with the contention of the Ld. Counsel for the
appellants at this stage inter alia to the effect that the dishonoured
cheques were not issued by him to the respondent against
discharge of any debt or liability. In order to deal with the said
contention, it is apposite to outrightly make a reference to the
appellants’ defence/plea of defence, raised/made at the time of
framing of notice under Section 251 Cr.P.C. on 12.09.2018, as
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 31 of 44
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
16:33:49 +0530
under;
“…Q. Do you plead guilty or have any defence to
make?
A. I do not plead guilty and claim trial. My plea of
defence is as under:
I admit my signature on cheque in question. I did
receive the legal notice. Cheque in question was
issued as PDC and security in November, 2016. Same
was issued for activity to be done by the complainant
in December, 2016 but entire activities were not done.
The payment regarding the activities done in that
month by the complainant has already been cleared by
us. Communications were done between the parties
wherein we informed the complainant that certain
activities were not done by them. We have sent debit
notes to them. Complainant insisted that they have
done all the activities but they did not furnish any
prooi regarding the same. There is no liability towards
the cheque in question Same has been misused.
Q. Do you want to lead DE?
A. Yes…”
(Emphasis supplied)
22. Correspondingly, in the statement of the accused
persons, recorded in terms of the provisions under Section 313/281
Cr.P.C. on 31.01.2020, appellants asserted to the similar effect as
under;
“…I am innocent. I admit my signature on cheque
in question. I signed the cheque in question in the
capacity of Director Britelite Media Pvt. Ltd. I did
receive the legal notice. Cheque in question was
issued as PDC and security in November, 2016. Same
was issued for activity to be done by the complainant
in December, 2016, but entire activities were not
done. The payment regarding the activities done in
that month by the complainant has already been
cleared by us. Communications were done between
the parties wherein we informed the complainant that
certain activities were not done by them. We have sent
debit notes to them. Complainant insisted that they
have done all the activities but they did not furnish any
proof regarding the same. There is no liability towards
the cheque in question. Same has been misused. The
document that complainant has submitted as proof of
execution of activities (ledger account) are false and
forged. I do not want to say anything else…”
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 32 of 44
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.07
16:33:53 +0530
(Emphasis supplied)
23. Notably, from a conjoint reading of the aforesaid, it is
observed that appellant no. 2 admitted his signatures on the
dishonoured cheque as well as of execution and issuance thereof as
the director of appellant no. 1. Undoubtedly, under such
circumstances, presumption under Section 139 NI Act would arise
in the instant case. However, in order to rebut the said presumption
appellants merely contended that the cheque in question was
issued as a post-date and security cheque in the month of
November 2016 for the activities to be done by the complainant in
December 2016, which were not performed by the
complainant/respondent. It was simultaneously asserted by the
appellants that despite exchange of correspondence regarding
pendency of work, no activities were performed by the respondent
and further that the appellants owed no dues towards the
respondent. However, in this regard, this Court deems it apposite
to note that as general proposition of law 1, repeated affirmed by
superior courts, the question whether a post-dated cheque is for
‘discharge of debt or liability’ depends on the nature of the
transaction. Consequently, where on the date of the cheque,
liability or debt exists or the amount has become legally
recoverable, the provisions under Section 138 NI Act would be
attracted in an instant case, otherwise not. Reference in this regard
is further made to the recent dictate of the Hon’ble Supreme Court
in Sripati Singh (since deceased) through his Son Gaurav Singh v.
State of Jharkhand & Ors., MANU/SC/1002/2021, wherein the
Hon’ble Court, while revaluating the issue regarding the
maintainability of the proceedings under Section 138 NI Act in the
event of dishonour of security cheque(s), noted as under;
1
Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458.
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 33 of 44 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.01.07 16:34:00 +0530
“16. A cheque issued as security pursuant to a
financial transaction cannot be considered as a
worthless piece of paper under every circumstance.
‘Security’ in its true sense is the state of being safe and
the security given for a loan is something given as a
pledge of payment. It is given, deposited or pledged to
make certain the fulfilment of an obligation to which
the parties to the transaction are bound. If in a
transaction, a loan is advanced and the borrower
agrees to repay the amount in a specified timeframe
and issues a cheque as security to secure such
repayment; if the loan amount is not repaid in any
other form before the due date or if there is no other
understanding or agreement between the parties to
defer the payment of amount, the cheque which is
issued as security would mature for presentation and
the drawee of the cheque would be entitled to present
the same. On such presentation, if the same is
dishonoured, the consequences contemplated Under
Section 138 and the other provisions of N.I. Act
would flow.”
(Emphasis supplied)
24. Clearly, it is only when legal debt or liability exists
against a drawer on the date of presentation of cheque, which
eventually gets dishonoured, provisions under Section 138 NI Act
would be attracted in a case. As a corollary, no liability can be
attributed to a drawer where a security cheque is presented prior to
the loan or installment maturing for repayment against which the
cheque was issued or where the entire liability or debt is
discharged prior to such presentation or in the cases of (altered)
understanding in relation to such presentation. Consequently, for a
drawer to avoid its liability under Section 138 of the NI Act on the
basis of ‘security deposit’ defence, is required to demonstrate that
on the date of the cheque, no legally recoverable debt or liability
was under existence. In the instant case, as aforenoted, the
appellants have averred that the cheque in question was issued for
December 2016 liability, whereas no work was carried out by the
respondent in this regard. However, except such blatant assertion,
no evidence/material has been placed on record by/on behalf of the
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 34 of 44
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.01.07
16:34:05 +0530
appellants to assert any December 2016 activity on the part of the
respondent. Nonetheless, Ld. Counsel for the appellants have also
referred to the ledger and invoices placed on record by the
respondent to aver that even under the said documents, no liability
equivalent to the cheque amount is demonstrable by the
respondent against the appellants. Significantly, in this regard,
when the ledger of appellant no. 1 ( Ex. CW-1/3), filed by the
respondent along with its complaint, for a period from 01.04.2015
till 31.03.2017, is evaluated, it is noted that the liability of
appellant no. 1 as on 31.03.2017 has been demonstrated as Rs.
12,42,007.00/- (Rupees Twelve Lakhs Forty Two Thousand and
Seven only). Further, as per the said complaint and evidence by
way of affidavit (Ex. C-1), it has been specifically averred by/on
behalf of the respondent that as on 31.03.2017, a sum of Rs.
12,42,007.00/- (Rupees Twelve Lakhs Forty Two Thousand and
Seven only) was due and payable by the appellants to the
respondent and that against part discharge of said liability, cheque
in question/dishonoured cheque was issued to the respondent for a
sum of Rs. 10,14,235.20/- (Rupees Ten Lakhs Fourteen Thousand
Two Hundred and Thirty Five and Twenty paise only). Pertinent in
this regard to reproduce the relevant extracts from CW-1’s
evidence by way of affidavit (Ex. C-1) as under;
“…3. That I say it is submitted the complainant
has been regularly maintaining the accounts books
and during the course of business a sum of Rs.
18,42,007/- (Rs. Eighteen Lacs Forty Two Thousand
and Seven Only) had been outstanding against the
accused as on 31/12/16 in the accounts books of the
complainant duly maintained by the complainant
during the course of business. It may be added that the
accused made two payments to the complainant i.e Rs.
2,00,000/- (Rs. Two Lacs Only) received online
through RTGS Transfer dated 02.02.17 and Rs.
4,00,000/- (Rs. Four Lacs) received online through
RTGS Transfer dated 03.01.17 into the account of twoCA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 35 of 44
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
16:34:10
+0530
payments a sum of Rs. 12,42,007/- (Rs. Twelve Lac
Forty Two Thousand and Seven Only) has
outstanding against the accused as on 31/03/17. The
true copy attested of ledger along with CD of the
ledger and the said CD of Ledger has been run
physically in the Laptop of the complainant before
this Hon’ble court and the said Ledger Ex. CW1/3
(colly) and CD is Ex. CW1/4. (2CDs).
4. That I say it is submitted in discharge of his
liability towards the complainant for the work done by
the complainant as per order of the accused of media
advertisement, the accused issued a cheque bearing
no. 392285 amounting to Rs. 10,14,235.20 (Rs. Ten
Lac Fourteen Thousand Two Hundred Thirty Five &
Twenty Paisa Only) dated 31/12/2016 drawn at PNB
Branch Kaushambi, Ghaziabad (U.P) – 201010 as part
payment of the advertisements work done by the
complainant as per orders of the accused and the
accused assured the complainant that the said cheque
would be honoured on its presentation. It may also be
added that the complainant also gave special
rebate/discount to the accused on their orders placed
with the complaint and issued the credit note with
regard to the same. Original Credit notes and Bills in
original duly received by the accused. The
Bills/Invoices are Ex. CW1/5 to CW1/36 & credit
notes are Ex. CW1/37 to CW1/49…”
(Emphasis supplied)
25. Significantly, the respondent along with the aforesaid
ledger also produced Invoices 19.10.2015 till 12.12.2016 (Ex.
CW1/5 to Ex. CW1/36) as well as original credit notes ( Ex.
CW1/37 to Ex. CW1/49). Prominently, from perusal of the records
of the Ld. Trial Court, it is noted that invoices Ex. CW1/5 to Ex.
CW1/19 were issued by the respondent in the name of BriteLite
Media Corp., whereas the invoices Ex. CW1/20 to Ex. CW1/36
were issued by the respondent in the name of BriteLite Media Pvt.
Ltd. Needless to mention, credit notes ( Ex. CW1/37 to Ex.
CW1/49) were all issued in the name of BriteLite Media Corp.
Appositely, in respect of the averment of the Ld. Counsel for the
appellants that since appellant no. 1 was incorporated on
07.03.2016, no liability against earlier invoices could be fastened
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 36 of 44
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
16:34:14
+0530
to the appellants, Ld. Trial Court, under the impugned judgment
noted as under;
“…29. The next contention of accused is that
Britelite Media Pvt. Ltd. was incorporated on
07.03.2016. The certificate of incorporation Ex.
CW1/D1 was put to CW1 and was objected to by Ld.
Counsel for complainant on ground of authenticity of
the document and on ground of being irrelevant. The
objection of the Ld. Counsel for complainant stands
disallowed as the same is a public document and the
certificate filed is under digital signature. Ld. Counsel
for complainant has argued that it was informed by
accused vide email dated 14.11.2016 that billing is to
be done in the name of Britelite Media Pvt. Ltd. It has
been further argued that it is the duty of the party to
inform the name in which billing is to be done. Perusal
of invoices dated Ex. CW1/5 to Ex. CW1/19 (dated
19.10.2015 till 04.08.2016) reflect that they were
drawn in the name of Britelite Media Corp. Many of
these are signed by the accused himself. Invoices Ex.
CW1/20 to Ex. CW1/36 (dated 05.11.2016 to
12.12.2016) were drawn in the name of Britelite
Media Pvt. Ltd. and many of them are signed by
accused. The signatures have not been denied by the
accused on any of the invoices, thus, the invoices
stand admitted. Since accused has signed invoices
both of the year 2015 and of the year 2016 and both on
behalf of Britelite Media Corp and Britelite Media
Pvt. Ltd., the contention of Ld. Counsel for
complainant is correct that the complainant company
was drawing the bills in the name as informed by the
accused and accused informed them by email dated
14.11.2016 that bill has to be drawn in the name of
Britelite Media Pvt. Ltd from now on. Thus, it can
safely be concluded that Britelite Media Corp is the
same as Britelite Media Pvt. Ltd. with accused no. 2
being at the helm of affairs of both of them being the
Director…”
(Emphasis supplied)
26. Relevantly, from a perusal of the above, though, this
Court is in agreement with the observation of the Ld. Trial Court
pertaining to the respondent’s objection pertaining to the relevance
and authenticity of document Ex. CW1/D1, being the certificate of
incorporation of appellant no. 1, as being without merits for the
reason of same being a public document and produced under
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 37 of 44
Digitally signed by
ABHISHEK ABHISHEK GOYAL
GOYAL Date: 2025.01.07
16:34:18 +0530
digital signatures before the Ld. Trial Court, however, the latter
observations of the Ld. Trial Court in the aforesaid para does not
find favour with this Court. In particular, this Court finds itself
difficult to concede that simply because the invoices Ex. CW1/5 to
Ex. CW1/19 (dated 19.10.2015 till 04.08.2016) and the invoices,
Ex. CW1/20 to Ex. CW1/36 (dated 05.11.2016 to 12.12.2016)
were all signed by appellant no. 2 and in view of the email dated
14.11.2016 issued to the respondent on behalf of the appellant,
BriteLite Media Corp. and BriteLite Media Private
Limited/appellant no. 1 can be deemed to be one and the same
entities under law. In this regard, it is outrightly asserted that from
a scrupulous analysis of the said invoices, in particular, invoice
dated 29.02.2016 (Ex. CW1/18), issued by the respondent to
BriteLite Media Corp., it is noted that the PAN No. of the said
entity is specified therein as; ‘ADSPA5246R’. In contrast, PAN
No. under the invoices Ex. CW1/20 to Ex. CW1/36 (dated
05.11.2016 to 12.12.2016), issued to BriteLite Media Pvt. Ltd., is
specified as; ‘AAGCB6496E’, which clearly controverts any such
presumption. However, even presuming for the sake of argument
that appellant no. 2 was working as helm of two entities and had
signed all the said invoices in question, in the considered opinion
of this Court, it would not be safe to presume that both the entities
are one and the same as nowhere under the email dated 14.11.2016
is there any indication of takeover/subsumption of liability of
BriteLite Media Corp. by BriteLite Media Pvt. Ltd. In fact, the said
email/email dated 14.11.2016 merely records as under;
“Mon, Nov 14, 2016 at 12:45 PM
Kunwar Javed Akhter <[email protected]>
To: Bubna Advertising
<[email protected]>
Cc: Rakesh Gupta
<[email protected]>, sushil bubna
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 38 of 44Digitally signed
by ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
16:34:23 +0530
<[email protected]>,
[email protected], Devender Jain
<[email protected]>, vishwanath
<[email protected]>
Deepesh Ji,
The billing should be done in the name of below:
Britelite Media Pvt. Ltd.
30/15, Cassia Road, Shipra Suncity,
Indirapuram, Ghaziabad 201014
Copy of PAN attached,
Thanks & warm regards, …”
(Emphasis supplied)
27. Quite evidently, it is seen from above that the email
dated 14.11.2016 merely records the particulars in whose name
billing is sought to be done by the respondent and does not record
of subsumption/takeover of liability of Britelite Media Corp. by
BriteLite Media Pvt. Ltd./appellant no. 1. In fact, this Court finds
credence in the submission of Ld. Counsel for the appellants that in
the absence of entire trailing correspondence to the said effect
being brought on record, no such presumption could even
otherwise be drawn. Needless to mention nowhere under its
complaint or at any stage during the trial, respondent averred or
proved that the liability of BriteLite Media Corp. was incorporated
into the liability of BriteLite Media Pvt. Ltd., entitling the
respondent to prepare a consolidated ledger account for the said
two entities. Accordingly, in the considered opinion of this Court,
there is nothing on record of the Ld. Trial Court to permit raising of
any such presumption that BriteLite Media Corp. and BriteLite
Media Pvt. Ltd. are one and same entities.
28. Markedly, during the course of present appeal, it has
been asserted by the appellants that BriteLite Media Corp. is, in
fact, a sole proprietorship concern of appellant no. 2 and that the
liability of appellant no. 2 cannot merge with the liability of
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 39 of 44
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.01.07
16:34:28
+0530
company simply for the commonality of appellant no. 2 in the said
two entities. Undoubtedly, this Court is mindful of the settled law1
that in case of proprietorship concern, it is only the proprietor who
can be held liable under Section 138 NI Act, on account of the fact
that proprietorship concern has no separate legal identity and
further that a sole proprietorship firm does not fall within the scope
and ambit of Section 141 NI Act. Correspondingly, on the aspect of
law, though, this Court is in agreement with the submission of the
Ld. Counsel for the appellants that there is no presumption of
merger of liability of proprietorship concern with that of company
solely for the reason of proprietor being also a director in the latter
entity/company, however, in the instant case, the factum of
BriteLite Media Corp. being a sole proprietorship concern does not
appear to have been brought to the notice of the Ld. Trial Court
from either the material placed on record by the appellants or even
under the cross examination of CW-1. Nevertheless, as aforenoted
it is not the case of even the respondent that the liability of
BriteLite Media Corp. was takeover by BriteLite Media Pvt. Ltd.
even under the complaint of the respondent or otherwise. Further,
as aforementioned, email dated 14.11.2016 also does not record of
any such takeover, rather, simply records that the billing by
respondent ought to be done in the name of appellant no. 1. As
aforenoted, from perusal of the invoices placed on record by the
respondent, it is noted that the invoices Ex. CW1/5 to Ex. CW1/19
(dated 19.10.2015 till 04.08.2016) were issued in the name of
BriteLite Media Corp., whilst, invoices, Ex. CW1/20 to Ex.
CW1/36 (dated 05.11.2016 to 12.12.2016) were issued by the
respondent in the name of appellant no. 1/BriteLite Media Pvt.
1
Raghu Lakshminarayanan v. M/s. Fine Tubes, (2007) 5 SCC 103; and M.M. Lal v. State NCT of Delhi,
MANU/DE/4881/2012: 2012 (4) JCC 284.
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 40 of 44
Digitally signed
ABHISHEK by ABHISHEK
GOYAL
GOYAL Date: 2025.01.07
16:34:32 +0530
Ltd. Undoubtedly, all the invoices were signed by appellant no. 2.
However, even under such circumstances, it cannot be presumed
that BriteLite Media Corp. and BriteLite Media Pvt. Ltd. are one
and the same entities and that their liability is common, even
presuming that appellant no. 2 was at the helm of affairs of both the
said entities as directors, considering that the law provides for
vicarious liability of, “every person who, at the time the offence
was committed, was in charge of, and was responsible to the
company for the conduct of the business of the company” along
with the company, in cheque dishonour cases in terms of the
provisions under Section 141 NI Act and not vice versa. Clearly, a
commonality of director in two entities, in the considered opinion
of this Court, can neither be sufficient to hold the said to entities to
be same/similar nor enough to consolidate the liabilities of two
such entities, presuming in the instant case that BriteLite Media
Corp. and BriteLite Media Pvt. Ltd., were, in fact, companies. On
the contrary, under the cross examination of CW-1 on 29.07.2019,
the appellants clearly demonstrated that appellant no. 1 was
incorporated on 07.03.2016, whereupon the question of any
liability qua the respondent prior to said point in time could not
have arisen. Correspondingly, CW-1 admitted under the said cross
examination that appellant no. 2 had been named a party in the
instant complaint as a director of appellant no. 1 only. Relevant
extract from CW-1’s said cross examination is reproduced as
under;
“…At this stage, a document is Ex. CW1/D1
relating to the accused of certificate of corporation is
shown to the witness and asked him confirm the date
of incorporation and witness replied that the date of
incorporation is 07th March, 2016 (Objected to by Ld.
Counsel for complainant on the authenticity of the
document and question is irrelevant). It is wrong to
suggest that the ledger which is Ex. CW1/3 is false
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 41 of 44Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.01.07
16:34:37
+0530
and frivolous since it bears transaction of accused no.
1 company relating to year 2015 whereas accused no.
1 company itself was incorporated in the year 2016.
It is correct that accused no. 2 Mr. Javed has been
made party in the present case in the capacity of
Director of accused no. 1 company…”
(Emphasis supplied)
29. Ergo, in light of the foregoing, when the material
placed on record is scrupulously evaluated, this Court,
unambiguously reaches a conclusion that the respondent has failed
to demonstrate liability to a tune of the cheque amount in question
against the appellants, in particular, against appellant no. 1 on the
date of presentation of the cheque in question. Needless to reiterate
that the consolidated ledger of appellant no. 1 (Ex. CW1/3) as well
as the invoices from 19.10.2015 till 12.12.2016 (Ex. CW1/5 to Ex.
CW1/36), produced by the respondent along with the complaint
incorporate and merge liabilities of two separate entities, i.e.,
BriteLite Media Corp. as well as BriteLite Media Pvt. Ltd. into
single entity, i.e., appellant no. 1. However, as aforenoted, neither
under the complaint or under the correspondence dated 14.11.2016
anything is forthcoming to demonstrate any such consolidation,
merger, takeover or subsumption of liability of BriteLite Media
Corp. into BriteLite Media Pvt. Ltd. Further, undoubtedly, under
the said ledger, as on 31.03.2017 liability to a tune of Rs.
12,42,007.00/- (Rupees Twelve Lakhs Forty Two Thousand and
Seven only) has been demonstrated by respondent against the
appellants. However, as aforenoted, in the absence of proof of
consolidation, merger, takeover or subsumption of liability of
BriteLite Media Corp. into BriteLite Media Pvt. Ltd., this Court
finds itself difficult to be convinced that the entire liability of
cheque amount falls on appellant no. 1, extending the liability even
to appellant no. 2 by virtue of provision under Section 141 NI Act.
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 42 of 44
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
16:34:42
+0530
Needless to reiterate that the appellants have duly proved on record
that appellant No. 1 was incorporated on 07.03.2016 and that
liability under the ledger produced by the respondent before the
Ld. Trial Court extends to a period prior in time to such
incorporation. Consequently, in the considered opinion of this
Court, the appellants, in the instant case, have been able to
successfully rebut the presumption under Section 139 NI Act by
preponderance of probabilities, reverting the burden back on the
respondent in the instant case. Further, as aforenoted, the
respondent has been unable to prove from the documents as well as
material placed on record, liability to a tune of the cheque amount
in question against appellant no. 1 on the date of presentation of
cheque. Needless to reiterate that appellant no. 2 was made a party
in the complaint in question as a capacity of director of appellant
no. 1 and not in his individual capacity and no material is placed on
record to demonstrate merger, takeover or subsumption of liability
of BriteLite Media Corp. into BriteLite Media Pvt. Ltd. or that the
said two entities being one and the same.
30. Conclusively, in light of the facts and circumstances
noted hereinabove, the respondent has not, in the opinion of this
Court, been able to unwaveringly and ‘beyond reasonable doubt’
to bring home the charge of offence under Section 138 NI Act
against the appellants herein. On the contrary, as aforenoted, the
appellants, in the instant case, have been able to successfully rebut
the presumption under Section 139 NI Act by preponderance of
probabilities, reverting the burden back on the respondent in the
instant case, which the respondent failed to discharge by
demonstrating liability to a tune of the cheque amount in question
against appellant no. 1 on the date of presentation of cheque.
Apposite at this stage to note that, though, this Court holds highest
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 43 of 44
Digitally signed
by ABHISHEK
ABHISHEK GOYAL
Date:
GOYAL 2025.01.07
16:34:47
+0530
regard for the decisions relied upon by Ld. Counsel for the
respondent, however, the same would not, in the considered
opinion of this Court come to the aid/rescue of the respondent in
the manner as prayed for the facts and circumstances of the said
cases/dictates are clearly, distinguishable.
31. Conclusively, in view of the above discussion, the
present appeal deserves to be allowed and is hereby allowed. As
such, in light of the foregoing, this Court reiterates that from the
facts and circumstances placed on record, the appellants cannot be
determined to be guilty ‘beyond reasonable doubt’ of offence
under Section 138 NI Act. Consequently, the judgment dated
judgment dated 07.08.2023 and order on senetence dated
14.09.2023, passed by Ld. MM (NI Act)-02, Central, Tis Hazari
Courts, Delhi in case bearing; ” Sushil Kumar Bubna v. M/s.
Britelite Media Pvt. Ltd., CC. No. 6632/2017″, convicting and
sentencing the appellants for the offence punishable under Section
138 NI Act, are hereby set aside.
32. Trial Court Record be sent back along with a copy of
this order/judgment.
33. Appeal file be consigned to record room after due
compliance.
Digitally
signed by
ABHISHEK
ABHISHEK GOYAL
GOYAL Date:
2025.01.07
16:34:53
+0530
Announced in the open Court (Abhishek Goyal)
on 07.01.2025. ASJ-03, Central District,
Tis Hazari Courts, Delhi
CA No. 246/2023 M/s. Britelite Media P. Ltd. & Anr. v. Sushil Kumar Bubna Page No. 44 of 44