Delhi District Court
K M Fincorp Llp Through Kapil Marwah vs Akashyog Health Products Pvt. Ltd on 3 January, 2025
IN THE COURT OF SH. ANKIT SOLANKI : JMFC NI
DIGITAL COURT NUMBER 01, WEST DISTRICT, TIS
HAZARI COURTS COMPLEX
KM FINCORP LLP
Vs.
AKASHYOG HEAL PRODUCTS PVT. LTD. & ORS.
CC NI ACT No. 1046/2021
U/S 138 Negotiable Instruments Act, 1881
1. CC NI Act number : 1046/2021
2. Name of the complainant : KM FINCORP LLP
3. Name of the accused : AKASHYOG HEALTH PRODUCTS
PVT. LTD. & ORS.
4. Offence complained of or proved : U/S 138 of Negotiable Instruments
Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Convicted
7. Date of judgment/order : 03.01.2025
Date of Institution: 26.03.2021
Date of Reserving Judgment/Order: 28.11.2024
Date of Pronouncement of Judgment/Order : 03.01.2025
JUDGMENT
1. Vide this Judgment, this court shall dispose of the present
complaint filed by KM FINCORP LLP (hereinafter referred to as
‘the complainant company’) against the accused persons U/S
138 of Negotiable Instruments Act, 1881 r/w Section 142
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:35:35
+0630CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
1 Out of 41
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI
Act‘).
Brief facts:
2. It is the case of the complainant company, that the
complainant company is a limited liability partnership
incorporated under the Limited Liability Partnership Act, 2008
and having its registered office address at 35/19, 2 nd Floor, East
Patel Nagar, New Delhi-110008. The complaint is engaged in
rendering services of financial advisory and debt syndication. Mr
Kapil Marwah is one of the partners of the complainant and has
been authorised to institute the present complaint on behalf of
the complainant including to sign, verify and file the present
complaint and to do all things related thereto. The accused
persons had issued 8 cheques in favour of the complainant
amounting to a total of Rs.30,00,000/- and when the said
cheques were presented for realization, the same were returned
dishonoured by the complainant’s bank. The accused no.1
company operates and primarily carries out its business activities
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:35:43
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CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
2 Out of 41
from the address of the accused no.1/company at Ranipur,Haridwar, Uttarakhand and also has its GST Registration at the
said Haridwar Address. The accused no.1/company is engaged in
manufacturing of noodles and allied products. The accused no.2,
3 and 4 are the present Directors of the accused no.1/company.
The accused no.2, 3 and 4 are In-charge of and are also
responsible for the conduct of the day to day business of the
accused no.1/company at present and even at the time of
issuance of the said cheques. The accused no.2 is the Promoter
and the Director of the company and head of the management
and also looks after the day to day business of the company. The
accused no.2 is also the signatory of the dishonoured cheques.
The accused no.3 is an employee of the company and director of
the company and looks after the management of the unit of the
accused no.1/Company at SIDCUL, Haridwar. The accused no.4
is a Director who is also responsible for looking after the
management and affairs of the accused no.1/company and is
actively involved and in-charge of the conduct of business of
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:35:49
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
3 Out of 41
accused no.1. He is also a relative of the accused no.2. Theaccused no.3 and 4 were party to the agreement of the
transaction between the complainant and accused no.1 and the
issuance of the cheques in question. The accused no.1/company,
through the accused no.2 approached the complainant through
Mr. Kapil Marwah, the partner of the complainant to engage the
complainant to render its services of financial advisory and debt
syndication. The said engagement includes assistance for
facilitating credit facilities for an amount of Rs.7,60,00,000/-
(Seven Crores and Sixty Lakhs Only) from a financial
institution. The accused number 2, 3 and 4 agreed to remunerate
the complainant for the services to be rendered by the
complainant. The remuneration as agreed between the
complainant and the accused persons was 4% of the total amount
of loan sanctioned along with 18% Goods and Services Tax
(GST) as applicable. The aforesaid agreement is also reflected in
the e-mails dated 29th November 2020 and 5th December 2020
exchange between the complainant (through its Partner, Mr.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:35:53
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
4 Out of 41
Kapil Marwah) and the accused no.1/company (through itsDirector, the accused no.2).
3. Pursuant to the aforesaid agreement, the complainant advised
the accused no.1/company and assisted it in facilitating the credit
being granted from Axis Bank to the tune of Rs.7,60,00,000/-
(Seven Crore Sixty Lakhs Only). Due to the services rendered by
the complainant, the credit facilities were sanctioned to the
accused no.1/company on 5th February 2021. On 05th February
2021, the accused no.2 forwarded the e-mail received by him
from Axis Bank to the complainant with regards to the
acceptance of sanction letter. On 10th February 2021, the accused
no.1 acknowledged it acceptance of the sanction letter. On
09.02.2021, Mr. Kapil Marwah, the partner of the complainant
sent an email to the accused no.1 and one of its Director, the
accused no.2 raising is invoice of financial advisory services and
debt syndication towards assistance in arranging credit facilities
sanction from Axis Bank.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:35:57
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CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
5 Out of 41
4.The accused no.1 issued eight cheques in favour of the
complainant amounting to a total of Rs. 30,00,000/- (Rupees
Thirty Lakhs). Particulars of the aforesaid cheques drawn on
Indian Overseas Bank, Faridabad Branch issued by the accused
no.1 in favour of the complaint are as follows:
Sr. Date of cheque Cheque no. Amount (in Rs.).
i) 09.02.2021 585703 4,00,000/-
ii) 09.02.2021 585704 4,00,000/-
iii) 09.02.2021 585705 4,00,000/-
iv) 09.02.2021 585706 4,00,000/-
v) 09.02.2021 585707 4,00,000/-
vi) 09.02.2021 585708 4,00,000/-
vii) 09.02.2021 585709 4,00,000/-
viii) 09.02.2021 585710 2,00,000/-
For the sake of brevity of reference hereinafter, the aforesaid
cheques will hereinafter be referred to as “the said cheques”. The
said cheques were signed by the accused no.2 being the Director
of the accused no.1. The accused no.2 is also responsible for the
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
6 Out of 41
day to day affairs and in-charge of the accused no.1/company.
The accused no.2 was present at the time when the cheques were
issued. Further, at the time when the said cheques were issued,
the accused no.2, 3 and 4 were in charge of an responsible for the
conduct of the business of the accused no.1/company.
5. On 9th February 2021, the said cheques were deposited by the
complainant with its Bank Axis Bank Ltd. 26/5, East Patel
Nagar, New Delhi-110008. The complainant vide its e-mail dated
10th February 2021, also informed the accused persons that the
said cheques were presented for payment as mutually agreed
between them.
6. On 11th February 2021, the said cheques were returned
dishonoured by the complainant’s bank vide return memo dated
11.02.2020 due to the reason “Insufficient Funds”. The
complainant after receipt of said dishonoured cheques, sent a
legal notice dated 03.03.2021 (statutory notice) to the accused
persons by e-mail and through registered post but despite
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:12
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CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
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receiving of the notice the accused persons did not bother to payback his outstanding dues to the complainant. The accused had
failed to pay the cheque amount to the complainant within
stipulated time of 15 days, hence this complaint U/S 138/142 NI
Act.
Proceedings before the Court:
7. The complaint was received by assignment in this Court. After
perusing the complaint and hearing the arguments of the
complainant on the point of summoning of the accused persons,
prima facie it appeared that the offence U/S 138 NI Act, has been
committed. Hence, cognizance of the offence U/S 138 NI Act
was taken against the accused persons on 12.10.2021 and
summons were issued to the accused.
8. Notice U/S 251 Cr.P.C. was framed against the accused no.2
and 4 on 17.02.2022 and accused no.3 on 02.04.2022 to which
the accused pleaded not guilty and claimed trial. The accused
persons further admitted that the cheque belongs to them and has
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:17
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CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
8 Out of 41
been dishonoured. Thereafter, considering the defence stated atthe time of framing of notice by the accused, this court decided
to allow cross examination of the complainant as per 145(2) NI
Act, and the case was tried as a summons case. During
complainant evidence, Partnr of complainant company has
examined himself as CW-1. After due cross examination of CW-
1 by the Ld. Counsel for the accused, CE was closed in the
present case on 23.07.2022. Statement of the accused no.2 and 4
U/S 313 CrPC was recorded on 11.10.2022, whereas the accused
no.3 was recorded on 04.11.2022. After that the case was fixed
for defence evidence. On 04.11.2022, accused no.2 Pratap Singh
was examined as DW1 and accused no.2 Mukund Yadav as
DW2. On 04.11.2022, vide joint statement of accused no.2, 3
and 4, DE was closed and the case was listed for final arguments.
9. Perusal of the record reveals that on 02.08.2023, an
application u/s 311 Cr.P.C. alongwith the order dated 04.05.2023
passed by Hon’ble High Court was filed and arguments were
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:23
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
9 Out of 41
heard on the said application. After hearing the arguments on theabovesaid application, the matter was kept for orders. However,
vide order dated 04.12.2023, the abovesaid application was
dismissed. On 04.12.2023, fresh application u/s 311 Cr.P.C. was
also filed by Ld. Counsel for the accused to summon the bank
witness. Arguments were also heard on the abovesaid application
and the matter was kept for orders on 17.02.2024. On
17.02.2024, the abovesaid application was allowed and the
matter was kept for DE. On 27.04.2024, Sh. Ramakanta Subudhi
was examined as DW3. Thereafter, DE was closed vide order
dated 27.04.2024 vide separate statement of accused no.2 and the
case was listed for final arguments. On 28.11.2024, final
arguments were heard on behalf of both the sides and the matter
was reserved for judgment on 03.01.2025.
Evidence:
10. To prove his case, the partner of the complainant company
has examined as CW1 and has led his evidence by way of
evidence affidavit Ex.CW1/A. Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:27
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
10 Out of 41
11. Complainant company has not examined any other witness in
this case.
12. The accused company has examined Sh. Pratap Singh as
DW1, Sh. Mukund Madhav as DW2 and Sh. Ramakanta
Subudhi as DW3 in this case to disprove the complainant’s case.
Arguments of both parties:
13. Ld. counsel for the complainant while reiterating the
contents of the complaint has argued that all the requirements of
Section 138, NI Act have been fulfilled by the complainant in
the present case. He argued that the cheques in question were
issued by the accused persons towards his legally enforceable
liability. He further argued that when the cheques were
presented before the bank for encashment, the same were
dishonored on presentation vide return memo dated 11.02.2020
for reason ‘Funds Insufficient’. Thereafter the legal notice
dated 03.03.2021 was sent to the accused persons to make the
payment within the 15 days stipulated period, but no payment
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
CC NI ACT No. 1046/2021 15:36:32
+0630KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
11 Out of 41
was made by the accused persons. Thus, all the ingredients ofsection 138 NI Act, have been duly satisfied and thus
presumption U/S 139 NI Act, has been validly raised against the
accused persons. Ld. Counsel submits that the accused persons
have failed to raise any probable defence to disprove the case of
complainant and to rebut the presumption U/S 139 NI Act.
Appreciation of evidence:
14. I have heard counsels on behalf of both the sides, perused the
record as well as relevant provisions of law.
15. Before appreciating the facts of the case in detail for the
purpose of decision, let relevant position of law be discussed
first. Section 138, NI provides as under:
“Section 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 the amount arranged to be paid from that account
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:37
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CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
12 Out of 41
by an agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be punished with
imprisonment for a term which may be extended 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.
16. It is well settled position of law that to constitute an offence
under Section 138, NI Act, the following ingredients are required
to be fulfilled:
I. drawing of the cheque by a person on an account maintained
by him with a banker,II. The cheque was issued for payment to another person for
discharge in whole/part any debt or liability;
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:41
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
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III. 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. RBI in its notification
DBOD.AML BC.No.47/14.01.001/2011-12 has reduced the
aforesaid period from 6 months to 3 months.
IV. Returning of the cheque unpaid by the drawee bank for want
of sufficient funds to the credit of the drawer or any arrangement
with the banker to pay the sum covered by the cheque;
V. Giving notice in writing to the drawer of the cheque within 30
days of the receipt of information by the payee from the bank
regarding the return of the cheque as unpaid demanding payment
of the cheque amount;
VI. Failure of the drawer to make payment to the payee or the
holder in due course of the cheque, of the amount covered by the
cheque within 15 days of the receipt of the notice.
The offence under Section 138, NI Act is made out against the
drawer of the cheque, only when all the aforementioned
ingredients are fulfilled.
17. In the present case at hand, the complainant has filed on
record eight original cheques. In notice under Section 251 CrPC,
the accused persons have admitted to issuing the cheques in
question to the complainant against the loan of Rs.7,60,00,000/-
(Seven Crores and Sixty Lakhs Only) and admitted the
signatures on the cheques in question. Therefore, ingredient
number I stands fulfilled in the present case. Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:46
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
14 Out of 41
18. As per the RBI guidelines, it is essential for the cheques in
question be presented within a period of three months from the
date on which they are drawn and the same be returned as unpaid
by the drawee bank for want of sufficient funds to the credit of
the drawer or any arrangement with the banker to pay the sum
covered by the cheques. In the case at hand, the cheques in
question were returned vide return memo dated 11.02.2020 due
to the reason “Funds Insufficient.” By implication thereof, the
cheques were presented within three months and the same were
returned for Funds Insufficient. Therefore, Ingredient number
III & IV stand fulfilled in the present case.
19. The legal notice dated 03.03.2021 was sent within 30 days of
return of the bank memo indicating cheques in question being
unpaid. The fact that the legal demand notice has made a clear
and unambiguous demand for payment of the cheques in
question is not disputed. The accused has admitted to the receipt
of legal demand notice in notice u/s 251 CrPC, the ingredient
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:50
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
15 Out of 41
number V stands discharged by virtue of giving of legaldemand notice within 30 days from the bank return memo.
20. Moving on, it is not disputed that the accused has not made
the payment of the cheques amount within 15 days of the receipt
of legal demand notice. Therefore, ingredient number VI also
stands fulfilled in the present case.
21. Let us now move on to ingredient number II,
21.1. The NI Act raises two presumptions in favour of the holder
of the cheque, i.e., complainant; firstly, with regard to the
issuance of cheque for consideration, as contained in Section
118(a) and secondly, with regard to the fact that the holder of
cheque received the same for discharge, in whole or in part, of
any debt or other liability, as contained in Section 139 of the Act.
21.2. Analysing all the concerned provisions of law and various
pronouncements in this regard, the Hon’ble Apex Court in the
case of Basalingappa v. Mudibasappa [AIR 2019 SC 1983] held
that:
I. Once the execution of cheque is admitted, Section 139 of the
Act mandates that a presumption be drawn that the cheque in
question was for the discharge of any debt or other liability.
II. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the probable
defence. The standard of proof for rebutting the presumption is
that of preponderance of probabilities.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:54
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
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III. To rebut the presumption, it is open for the accused to rely on
evidence led by him or 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
reference to the circumstances upon which they rely.
IV. That it is not necessary for the accused to come in the witness
box in support of his defence. Section 139 imposes an
evidentiary burden and not a persuasive burden.
It is therefore implied that the law regarding the presumption for
the offence under Section 138, NI Act, the presumptions under
Section 118(a) and Section 139 have to be compulsorily raised as
soon as the execution of cheque by the accused is admitted or
proved by the complainant and thereafter the burden is shifted
upon the accused to prove otherwise.
21.3. These presumptions shall end only when the contrary is
proved by the accused, that is, the cheque was not issued for
consideration and in discharge of any debt or liability etc. The
Hon’ble Apex Court in Kumar Exports v. Sharma Carpets
[(2009) 2 SCC 513], has laid down the benchmark for the burden
of proof that the accused has to raise a doubt as to the
presumption under Section 139, NI Act.
“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
prudent 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
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:36:59
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
17 Out of 41
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. The accused has
also an option to prove the non-existence of consideration and
debt or liability either by letting in evidence or in some clear
and exceptional cases, from the case set out by the complainant,
that is, the averments in the complaint, the case set out in the
statutory notice and evidence adduced by the complainant
during the trial. Once such rebuttal evidence is adduced and
accepted by the court, having regard to all the circumstances of
the case and the preponderance of probabilities, the evidential
burden shifts back to the complainant and, thereafter, the
presumptions under Sections 118 and 139 of the Act will not
again come to the complainant’s rescue.”
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:37:04
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
18 Out of 41
21.4. To put in a nutshell, the intent behind the NI Act is to
prevent financial frauds and affect the socio-economic well-
being of the country. If the burden is placed on the complainant
to prove the existence of liability against the accused, that would
be too harsh as most of these transactions are in the nature of
“friendly loan” and the accused would, in a normal
circumstance, always deny the liability. Therefore, the legislation
is drafted in a way so as to discharge the complainant from
proving the liability and a presumption is raised by virtue of
Section 139 read with Section 118(a) of the Act that the cheque
if issued by the accused, then the same is deemed to be in
discharge of some legally enforceable debt in favour of the
complainant. The presumption is rebuttable and the accused
“may” either prove that no legally enforceable debt existed or
punch holes in the story of the complainant and give rise to a
probable defence to rebut the presumption. As per the law
discussed above, the burden of proof on the accused to raise a
probable defence is that of “preponderance of probabilities”, and
not “beyond reasonable doubt.” Once a probable defence is
raised, then the onus is shifted to the complainant to establish
that a legally enforceable liability existed in his favour and the
burden of proof on complainant in this case is that of “beyond
reasonable doubt.”
21.5. The accused can rebut the presumption as raised under the
NI Act by (a) putting forth his defence at the time of framing of
notice u/s 251 CrPC; (b) cross-examining the complainant; (c)
when statement of accused is recorded u/s 313 CrPC; (d) or by
leading defence evidence, thereby demolishi15 ptng the case of
the complainant. It is amply clear that the accused does not need
to discharge his or her liability beyond the shadow of
reasonable doubt. He just needs to create holes in the case set
out by the Complainant.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:37:08
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
19 Out of 41
22. During final arguments stage, Ld. Counsel for the
complainant had argued that:
1. The complainant had assisted in procuring a loan of
Rs.7 Crores to the accused and had charged 4% commission
alongwith G.S.T. for the same. The agreement was limited to
getting the loan sanctioned. Since the complainant got the loan
sanctioned, it is the duty of the accused to pay Rs.35.87 Lakhs
as fee calculated at the rate of 4% on sanctioned amount of
Rs.7.6 Crores.
2. The complainant had sent a legal demand notice within
time, but the accused did not pay the amount stated in the
cheques in question. He had not replied to it as well.
3. The accused has admitted that he had approached the
complainant for getting the loan sanctioned.
4. The accused is well educated and had given signed
cheques which shows that he had admitted his liability.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
20 Out of 41
5. The accused never opposed presentment of the cheques,
although he was aware that the complainant was about to
present the cheques in his bank.
6. The accused had, through e-mail accepted that he was to
pay 4% commission to the complainant.
7. All ingredients of Section 138 NI Act have been
fulfilled in the present case.
8. Cheating cases have also been filed against the present
accused.
23. In support of his contentions, Ld. Counsel for the
complainant has relied upon the following judgments:
In case of Bichitranada Behera vs. State of Orissa & Ors.
2023 SCC Online SC 1307, it has been held that:
“Acquiescence would mean a tacit or passive
acceptance. It is implied and reluctant consent to an
act. In other words, such an action would qualify a
passive assent. Thus, when acquiescence takes
place, it presupposes knowledge against a particular
act. From the knowledge comes passive acceptance,
therefore instead of taking any action against any
alleged refusal to perform the original contract,
despite adequate knowledge of its terms, and instead
being allowed to continue by consciously ignoring it
and thereafter proceeding further, acquiescence does
Digitally
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ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
21 Out of 41
not take place. As a consequence, it reintroduces a
new implied agreement between the parties. Once
such a situation arises, it is not open to the party
that acquiesced itself to insist upon the compliance
of the original terms. Hence, what is essential, is the
conduct of the parties. We only dealt with the
distinction involving a mere acquiescence. When
acquiescence is followed by delay, it may become
laches. Here again, we are incline to hold that the
concept of acquiescence is to be seen on a case to
case basis.”
In case of Chairman, State Bank of India & Anr. Vs. M.J.
James (2022) 2 Supreme Court Cases, 301, it has been held
that:
“What is a reasonable time is not to be put in a
straitjacket formula or judicially codified in the form
of days, etc. as it depends upon the facts and
circumstances of each case. A right not exercised for
a long time is non-existent. Doctrine of delay and
laches as well as acquiescence are applied to non-
suit the litigants who approach the court/appellate
authorities belatedly without any justifiable
explanation for bringing action after unreasonable
delay. In the present case, challenge to the order of
dismissal from service by way of appeal was after
four years and five months, which is certainly highly
belated and beyond justifiable time. Without
satisfactory explanation justifying the delay, it is
difficult to hold that the appeal was preferred within
a reasonable time. Pertinently, the challenge was
primarily on the ground that the respondent was not
allowed to be represented by a representative of his
choice. The respondent knew that even if he were to
succeed on this ground, as has happened in the writ
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
22 Out of 41
proceedings, fresh inquiry would not be prohibited
as finality is not attached unless there is a legal or
statutory bar, as aspect which has been also noticed
in the impugned judgment. This is highlighted to
show the prejudice cause to the appellants by the
delayed challenge. We would, subsequently, examine
the question of acquiescence and its judicial effect in
the context of the present case.”
In case of Ashok Yeshwant Badave Vs. Surendra Madhavrao
Nighojakar (2001) 3 Supreme Court Cases 726, it has been
held that:
“For prosecuting a person for an offence under
Section 138 of the Act, it is inevitable that the
cheque is presented to the banker within a period of
six months from the date on which it is drawn or
within the period of its validity whichever is earlier.
When a post dated cheque is written or drawn, it is
only a bill of exchange and so long the same
remains a bills of exchange, the provisions of
Section 138 are not applicable to the said
instrument. The post dated cheque becomes a
cheque within the meaning of Section 138 of the Act
on the date which is written thereon and the 6
months period has to be reckoned for the purposes
of proviso (a) to Section 138 of the Act from the said
date. Thus while respectfully agreeing with the law
laid down by this Court in the case of Anil Kumar
Sawhney, we hold that six months period shall be
reckoned from the date mentioned on the face of the
cheque and not any earlier date on which the
cheque was made over by the drawer to the
drawee.”
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
23 Out of 41
In case of Purushottam Vs. Manohar K. Deshmukh & Anr., it
has been held that:
“The Ld. Counsel for the respondent submitted that
a cheque would not come within a definition of
cheque or bill of exchange if it is not drawn for
certain sum of money.For this purpose, he relied on
a decision of Andhra Pradesh High Court in case of
Avon Organics Ltd. Vs. Pioneer Products Limited
and Ors. 2004 (1) Crimes 567. The Ld. Counsel
submitted that as held by Andhra Pradesh High
Court, the complainant filling up amount portion
and the date in a cheque amounted to a material
alteration in a cheque without the consent of
authority who issued the cheque and rendered the
cheque invalid. A cheque has been defined as a bill
of exchange in section 6 of the Negotiable
Instruments Act. A bill of exchange is defined in
Section 5 as an instrument in writing containing an
unconditional order, signed by the maker, directing a
certain person to pay a certain sum of money.
Therefore, the High Court of Andhra Pradesh is
right in holding that the cheque must be for payment
of certain sum of money as required by Section 5
and 6 of the Negotiable Instruments Act. However,
there can also be no dispute that a cheque or bill of
exchange is a negotiable instrument, as defined in
section 13 of the Act. In view of the provisions of
section 20 of the act which were possibly not noticed
by the Andhra Pradesh High Court, it is open to a
person to sign and deliver a blank or incomplete
instrument, and it is equally open for the holder to
fill up blanks and specify the amount therein. This
does not amount to any alteration in the cheque,
since the cheque was not initially issued for any
different specified sum which was changed.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
24 Out of 41
Therefore, the decision of the Andhra Pradesh High
Court in Avon Organics Ltd case (Supra) may not be
helpful to the respondent for rebutting the
presumptions under Section 139 and under section
118 of the act which require a presumption to be
made that the negotiable instrument was made for
the consideration shown on the instrument, on the
date which it bears.”
“The Ld. Counsel for the respondent next submitted
that the implication of Section 20 of the Act had
been duly considered by the Andhra Pradesh High
Court in M/s Cement Agencies Vs. V. Vijaya Babu
and Anr.,1997(4) Crimes 273. In that case by the end
of financial year 1993-94 an amount of Rs.16,790/-
was payable by the accused and the accused issued
cheque on 26.07.1994. It was dishonoured on 30th
July, 1994 with an endorsement that it exceeds
arrangements. The defence taken by the accused was
that blank cheques were issued on 04.10.1991 and
the complainant had acknowledged on the counter
foil on the said cheques. First, question as to
whether section 20 of the Negotiable Instruments
Act enables a holder in due course of inchoate
instrument to put a date of his choice is not
addressed in the judgment of the Andhra Pradesh
High Court. When a drawer of a cheque delivers a
signed cheque, he obviously gives an authority to the
holder to put a date of his choice. Therefore, there
would be no question of the instrument becoming
time barred, since it would become time barred only
from the date on the cheque, which under Section
20, the holder had the authority to fill. Hence, the
decision of Andhra Pradesh High Court in M/s
Cement Agencies may also be not helpful to the
respondent.”
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
25 Out of 41
“Since a cheque is a promise made in writing to pay
certain sum, it would be covered by Clause 3 of the
Section 25 and, therefore, it would not be open for
the accused to say that there is no legally
enforceable liability. In view of this the Ld. Counsel
for the appellant submitted that the Ld. Magistrate
was in error in acquitting the accused holding that
the cheque was not given for legally enforceable
liability. Consequently, the acquittal of the
respondent for offence punishable under Section 138
of Negotiable Instruments Act cannot be upheld.”
In case of Rajesh Jain vs. Ajay Singh (2023) 10 Supreme
Court Cases 148, it has been held that:
“The Court will necessarily presume that the cheque
had been issued towards discharge of a legally
enforceable debt/liability in two circumstances.
Firstly, when the drawer of the cheque admits
issuance/execution of the cheque and secondly, in
the event where the complainant proves that cheque
was issued/executed in his favour by the drawer. The
circumstances set out above form the fact(s) which
bring about the activation of the presumptive clause.
[Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC
35].”
24. On the other hand, Ld. Counsel for the accused has
submitted that:
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
26 Out of 41
1. There was no written agreement between the
complainant and the accused with respect to 4%
commission.
2. In the e-mail filed on record by the complainant, he
had stated that the accused would get the principle
amount. However, the accused did not receive the
same. Therefore, there is no legal liability due
towards the complainant.
3. Undated cheques were given by the accused to the
complainant.
4. The complainant promised to sanction a loan of
around Rs.8-9 Crores for the accused. However, the
actual amount that got sanctioned was Rs.7 Crores
60 Lakhs.
5. The complainant had asked for cheques of Rs.5
Lakhs but the cheques in question are of different
amounts that is Rs.4 Lakhs and Rs.2 Lakhs.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
27 Out of 41
6. How can the complainant charge a processing fee
from the accused when bank itself does not charge
any processing fee?
7. Commission agreed as per the complainant was of
Rs.35.87 Lakhs but why is the total cheque amount
of Rs.30 Lakhs?
8. The agreement was that the complainant shall assist
the accused in “grant” of loan and not limited to
sanctioning and since the accused did not get the
loan, there is no question of any fees.
9. Invoice has been raised by the complainant before
sanctioning of the loan which is not possible.
10. Invoices have been signed by Sangeeta Marwah
who has not been called as a witness.
11. Cheques in question have been misused by the
complainant.
25. In support of his contentions, Ld. Counsel for the accused
has relied upon the following judgments:
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
28 Out of 41
In case of Bangalore Electricity Supply Company Ltd.
(BESCOM) Vs. E.S. Solar Power Pvt. Ltd., 2021 SCC Online
SC 358, it has been held that:
“The duty of the Court is not to delve deep into the
intricies of human mind to explore the undisclosed
intention, but only to take the meaning of words
used i.e. to say expressed intentions (Smt. Kamala
Devi Vs. Seth Takhatmal & Anr.). In seeking to
construe a clause in a contract, there is no scope for
adopting either a liberal or a narrow approach,
whatever that may mean. The exercise which has to
be undertaken is to determine what the words used
mean. It can happen that in doing so one is driven
to the conclusion that clause is ambiguous, and that
it has two possible meanings. In those
circumstances, the Court has to prefer one above
the other in accordance with the settled principles.
If one meaning if more in accord with what the
Court considers to the underlined purpose and
intent of the contract, or part of it, than the other,
then the court will choose former or rather thatn the
later. Ashville Investment Vs. Elmer Contractors.
The intention of the parties must be understood from
the language they have used. Considered in the light
of the surrounding circumstances and object of the
contract. Bank of India and Anr. Vs. K. Mohandas
and Ors. Every contract is to be considered with
reference to its object and the whole of its terms and
accordingly the whole context must be considered in
endeavouring to collect the intention of the parties,
even though the immediate object of inquiry is the
meaning of an isolated clause. Bihar State
Electricity Board, Patna and Ors. Vs. M/s Green
Rubber Industries and Ors.”
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
29 Out of 41
In case of Moolji Jaitha & Co. Vs. Seth Kirodimal, AIR 1961
Ker 21, it has been held that:
“To properly evaluate the aforesaid contentions of
the parties we have to consider the law regarding
offers counter offers and acceptance in the Law of
Contracts. It is well settled that the offeree must
unreservedly assent to the exact terms of the offer to
bring about a concluded contract. If, on the other
hand, while purporting to accept the offer as a
whole, he introduces a new term which the offeror
has had no opportunity of examining, he is in fact
merely making a counter offer. The effect of such a
counter offer in the eyes of law is to destroy the
original offer. It is equally well settled that an offer
once refused is dead and cannot, be accepted unless
renewed. But it is sometimes difficult to determine
whether a communication by the offeree amounts to
a counter offer or not. The offeree, for example may
be seeking further information before making up his
mind or may be but making an enquiry as to
whether the offeror will not modify his terms. Such
requests do not obliterate the original offer. Section
7 of the Indian Contract Act enacts the same rule
that in order to convert a proposal into a promise
the acceptance must be absolute i.e. that an
acceptance.”
“In the light of the above statement of the principles
of law regarding offers, counter offers and
acceptances if we examine the facts of this case,
what we find is that the defendant’s telegram dated
15.1.1952, Ext.B, is not an acceptance but only a
counter offer, offering to purchase 660 tins of
coconut oil at Rs.33 per tin. If that be so, the
original offer of the plaintiff, Ext. A, is obliterated.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
30 Out of 41
To this counter offer, Ext. B, the plaintiff replied by
Ext. C, by which also he did not accept the counter
offer in absolute and unqualified words but added a
term by demanding an advance remittance. This
demand for advance remittance by the plaintiff was
never accepted by the defendant at any stage in the
correspondence. Therefore, it is difficult to hold that
there was a concluded contract between the parties.
There is yet another difficulty which the plaintiff has
to surmount in this case. Even in demanding an
advance remittance Ext. C did not specify the
amount. Before the amount of advance demanded
was also fixed by agreement.”
In case of Badri Prasad Vs. The State of Madhya Pradesh,
(1971) 3 SCC 23, it has been held that:
“This brings us to the last point, namely, whether a
new contract was concluded between the
Government and the plaintiff. It is extremely
doubtful whether the letter dated February 1, 1995,
is an offer. It seems to be an invitation to the plaintiff
to make offer. Be that as it may, even if it is treated
as an offer, there was no unconditional acceptance
by the letter, dated February 5, 1995. The plaintiff
expressly reserved his right to claim a refund of
Rs.17,000/-. According to the letter of the Divisional
Forest Officer, dated February 1, 1995, the plaintiff
had to give up his claim to Rs.17,000/- which he had
already paid and had to pay a further sum of
Rs.17,000/-. The High Court, in our opinion, rightly
held that the alleged acceptance of the offer made
on February 1, 1995, was conditional and
qualified.”
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:38:15
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
31 Out of 41
In case of Kaliburn Engineering Ltd. Vs. Oil and Natural Gas
Corporation Ltd., (AIR 2000 Bom 405), it has been held that:
“In this factual matrix, my endeavour would be to
interpret this letter, Exh.1, as to whether this letter
would amount to acceptance of the offer made by the
plaintiff. As per Section 7 of the Contract Act, the
acceptance of the offer must be absolute. It must be
absolute and unqualified and it should be expressed
in some usual and reasonable manner unless the
tender prescribed by any other manner in which it
should be accepted. The cardinal principal, in the
light of the Section 7 of the Contract Act is that the
offer and acceptance of an offeror must be absolute
without giving any room of doubt. It is well settled
that the offer and acceptance must be based or
founded on three components: Certainly,
commitment and communication. A contract is built
upon three components as three pillors, certainty,
commitment and communication. If any one of three
components is lacking either in the offer or in the
acceptance there cannot be a valid contract. One of
the important components that is lacking in this case
is certainty. The offer and acceptance must be
devoid of any doubt either in the mind of the offeror
or accepter as the case may be. It must be clear and
unambigious. In this legal paradigm, we have to
examine the letter in question whether it amount to a
acceptance of an offer.”
26. Ld. Counsel for the accused has also relied upon the
following judgments:
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
32 Out of 41
Chhotey Lal Gupta vs. Union of India, AIR 1987 AlI 329
(Relevant Para no.15, 16, 17, 18, 19, 20, 21 and 25).
Union of India Vs. Uttam Singh Dugal & Co., AIR 1972 Del
110 (Relevant Para No.13, 14, 23, 27 and 29).
Hans Kumar Jain Vs. Renu Gandotra @ Poonam, 2015 SCC
Online Del 7846.
Indus Airways Pvt. Ltd. Vs. Magnum Aviation Pvt. Ltd. (2014)
12 SCC 539 (Relevant Para No.9).
Rangappa Vs. Sri Mohan (2010) 11 SCC 441.
Rajesh Jain Vs. Ajay Singh (2023) 10 SCC 148.
Krishna Janardhan Bhat Vs. Dattartrya G. Hegde (2008) 4
SCC 54.
Atul Pundhir Vs. Delhi Group & Anr. (2024) SCC 6648.
27. In the present case at hand, there are certain admitted facts
like:
1. The accused had approached the complainant for
getting a loan sanctioned.
2. The cheques in question have been signed by the
accused.
Digitally
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ANKIT SOLANKI
SOLANKI Date:
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33 Out of 41
3. The accused had received the legal demand notice from
the complainant and had not replied to it.
4. The accused had agreed to 4% commission to be given
to the complainant out of the total loan amount.
5. The accused had received an e-mail from the
complainant stating that the scope of the services was
limited to getting the loan sanctioned.
28. Now, the main contention in the present case is that whether
there is a concluded contract between the complainant and the
accused or not and if yes whether the scope of the contract was
limited to getting the loan sanctioned or it was extended to
disbursement of funds to the accused. To decide the contention,
it is pertinent here to read Section 7 of the Indian Contract Act,
1872.
29. It states that in order to convert a proposal into a promise the
acceptance must- Digitally
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ANKIT SOLANKI
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(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner, unless
the proposal prescribes the manner in which it is to be accepted.
If the proposal prescribes a manner in which it is to be accepted,
and the acceptance is not made in such manner, the proposer
may, within a reasonable time after the acceptance is
communicated to him, insist that his proposal shall be accepted
in the prescribed manner, and not otherwise; but, if he fails to do
so, he accepts the acceptance.
30. Now, Section 7 states that for a contract to be concluded,
there must be an absolute and unqualified acceptance.
31. The complainant had sent an e-mail dated 29.11.2020 to the
accused offering him to charge 5% commission on getting the
loan sanctioned. The e-mail has not been disputed.
32. The accused had replied to that e-mail on 05.12.2020 stating
4% agreed. Now, this mail, in the humble opinion of this court
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
35 Out of 41
amounts to counter offer. Therefore, the accused had given acounter offer to the complainant and the complainant had
accepted the same.
33. The accused had sent another e-mail dated 10.02.2021 to the
complainant stating ‘It is respectfully stated that we are
accepting your offer of loan sanctioned, as we received a letter
from your bank on e-mail dated 05.02.2021’.
34. It means that there was a concluded contract between the
accused and the complainant.
35. The other contention is whether the scope of the contract was
limited to getting the loan sanctioned to the accused by the
complainant or it was extended till the disbursement of the loan
by the bank to the accused.
36. The onus is on the accused to rebut the presumption u/s 118
and 139 of the NI Act. Also it is the accused who is averring that
the scope was till the disbursement of loan. Therefore, the onus
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
36 Out of 41
of the same is on the accused. The accused has produced noevidence that the scope of the contract between the accused and
the complainant was till disbursement of the loan by the bank to
the accused.
37. Also no witness has been produced by the accused in support
of his contention. Moreover, in his cross-examination, the
accused has admitted that there is no document on record to
show that the scope of the contract was beyond sanctioning of
the alleged loan. He has also stated that he had received an e-
mail dated 29.11.2020 by the complainant wherein the scope of
the contract was limited to sanctioning of the alleged loan.
38. He further stated that he did not agree to it and did not file a
reply to the mail. He thereafter stated that he had a conversation
with the complainant over phone and told the complainant that
he did not agree with the terms. However, he has not mentioned
the day or date on which this conversation, as alleged, took
place. No document has been placed on record or no witness has
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
37 Out of 41
been produced to prove that a telephonic conversation took placebetween the two. The accused had also testified that he had
received a sanction letter from the bank.
39. Therefore, the accused has not been able to prove that the
scope of the contract was not limited to getting the loan
sanctioned, rather it extended to disbursement of funds to the
accused.
40. Apart from that there are certain contradictions in the version
of the accused:
1. Firstly in his cross, the accused has stated that he never
took any financial assistance from the complainant
whereas in the statement of accused, he has categorically
admitted that he approached the complainant for grant of
the alleged loan from the bank.
2. Secondly the accused has in his cross-examination stated
that he had not replied to the e-mail sent by the
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
38 Out of 41
complainant whereas the complainant has placed onrecord dated 05.12.2020 sent by the accused to the
complainant stating that he agrees to 4% commission on
getting alleged loan sanctioned.
3. Thirdly the accused had stated that he had given blank
security cheques to the complainant, whereas at the stage
of examination, he had stated that 7 cheques were of Rs.4
Lakhs and one of Rs.2 Lakhs, which means that the
amount in the cheques in question were filled by the
accused only.
4. Also the accused had stated that he had not sent a reply to
the e-mail of the complainant but on perusal of documents
filed by the complainant, it is clear that the accused sent a
counter offer of 4% commission to the complainant. He
has agreed to the same at the stage of his examination
also. Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
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39 Out of 41
5. The accused has in his cross-examination stated that there
was no GST payable on the commission to be paid to the
complainant. However, the accused had issued cheques
totalling to Rs.30 Lakhs which is more than 4%
commission agreed between the complainant and accused.
It gives a hint that the accused was aware of 18% GST
payable on 4% commission.
6. Invoices of the transaction was delivered to the accused
which is Annexure C-5 and the complainant states that he
has paid 18% GST on the fee charged from the
complainant.
41. Taking into account the above discussion, this court is of the
considered opinion that there was a concluded contract between
the complainant and the accused and its scope was limited to the
complainant getting the loan sanctioned to the accused. The
same was duly performed by the complainant as the accused had
accepted the same through e-mail dated 10.02.2024. Therefore,
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.01.03
15:38:56
+0630CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
40 Out of 41
the accused owed a legal liability towards the complainant.
Thereafter, the accused has not been able to rebut the
presumption u/s 118 and 139 of the Act. Apart from that, there
are certain contradictions in the version of the accused.
42. In the humble opinion of this court, the complainant has been
successful in proving the case on the basis of preponderance of
probabilities.
43. Since all the ingredients of Section 138 NI Act have been
fulfilled, accused persons are convicted of the offence of Section
138 NI Act.
44. Copy of this Judgment be given free of cost to both the
parties.
Announced in open Court Digitally
signed by
ANKIT
Today on this 03.01.2025. ANKIT
SOLANKI
SOLANKI
Date:
2025.01.03
15:39:01
+0630(Ankit Solanki)
Judicial Magistrate First Class
(NI ACT) Digital Court No.1
Tis Hazar Courts, West, Delhi.
CC NI ACT No. 1046/2021
KM Fincorp LLP Vs. Akashyog Health Products Pvt. Ltd. & Ors.
41 Out of 41
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