Delhi District Court
Susheela Rani vs Msd Captainnova Pvt.Ltd on 1 February, 2025
IN THE COURT OF Ms. AASTHA SHARMA, LD. JMIC (N.I. Act)-09,
SOUTH-WEST DISTRICT, DWARKA COURTS COMPLEX:
DELHI
SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR.
Ct. Cases No. 15149/2020
U/S 138 Negotiable Instruments Act, 1881
1. CNR number DLSW02-027752-2020
2. Name of the complainant Ms. Susheela Rani
Proprietor of M/s Commercial
Kitchen Service, O/o C-36,
Jeevan Park, Pankha Road, New
Delhi-59.
1. MSD Captainnova Pvt. Ltd.
3. Name of the accused person(s), Through its Director Monika
parentage & residential address
2. Monika (Authorised
Signatory)
O/o Sh. 8/4-8, Ram Jhanki
Dham, Shivpur, Varanasi, UP
221003
4. Offence complained of or proved U/s 138 of Negotiable
Instruments Act, 1881
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 1
5. Plea of the accused Pleaded not guilty and claimed
trial
6. Final Judgment/order Acquitted
7. Date of judgment/order 01.02.2025
Date of Institution: 09.10.2020
Date of Reserving Judgment/Order: 20.12.2024
Date of Pronouncement of Judgment/Order: 01.02.2025
ARGUING COUNSELS:
Ld. Counsel for the complainant: Sh. Yashwant Gehlot, Ld. Counsel for
complainant.
Ld. Counsel for the Accused: Sh. Pranshu Vashisht, Ld. Counsel for accused
alongwith accused through VC.
JUDGMENT
1. Vide this judgment, this Court shall dispose of the present complaint filed by
the complainant Ms. Susheela Rani (hereinafter referred to as “complainant”)
against 1. MSD Captainnova Pvt. Ltd. (hereinafter referred to as “Accused no.
1”) and 2. Ms. Monika, Authorised Signatory and Director of Accused no. 1
(hereinafter referred to as “Accused no. 2”) under Section 138 of the Negotiable
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 2
Instruments Act, 1881 read with Section 142 of Negotiable Instruments Act,
1881 (hereinafter referred to as “NI Act“).
Brief facts of the case:
2. It is the case of the complainant,
A. That, the complainant is engaged in the business of wholesale and supply of
kitchen materials and equipments and sole proprietor of M/s Commercial
Kitchen Service. That, the abovesaid accused company is the valuable customer
of the complainant and in November 2019, accused company approached the
complainant for purchasing the materials and equipments mentioned in the
invoices/bill no. 26 dated 25.11.2019, i.e., 2 tandoor gas, 5 hood S.S., Air
Cooler, 2 exhaust fan 24, 3 exhaust fan 18 and gas pipe line, 33 GI Sheets
which were supplied by the complainant through transport at Varanasi and the
same was acknowledged and received by the accused company for a total sum
of Rs. 3,08,864.87/- including IGST.
B. That, the accused company again approached the complainant for purchasing
of kitchen material and the same was supplied by the complainant through
transport and bill/invoice no. 28 dated 17.12.2019 was raised and the material
was acknowledged and received by the accused company as ordered by the
accused company for a total sum of Rs. 7,52,840/- including IGST. E-way bill
dated 17.12.2019 for a sum of Rs. 7,52,840/- for the material supplied to the
accused company by the complainant which was acknowledged and received by
the accused company and the said accused company assured the complainant
that the payment of above invoices shall be made within one month.
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 3
C. That, thereafter in the month of January 2020, complainant approached the
accused company for the pending amount against the bills/invoices no. 26 and
28 dated 25.11.2019 and 17.12.2019 and the accused company made some part
payments regarding the same. That, there was a balance amount of Rs.
3,11,543/- and in order to discharge their partial liability, the accused company
issued cheque bearing no. 000007 and 000008 drawn on IDFC First Bank Ltd.,
Varanasi-221010 amounting to Rs. 1,50,000/- and Rs. 1,61,543/- dated
12.01.2020 and 30.01.2020 in favour of the complainant towards the part
payment which was signed by the authorised signatory/director of the company,
i.e., accused no. 2 and at the time of issuing the cheque, the accused authorized
signatory of the company assured the complainant that the same shall be
honoured on presentation. That, thereafter the accused company made payment
towards cheque bearing no. 000007 dated 12.01.2020 amounting to Rs.
1,50,000/-.
D. That, on assurance of the accused company, complainant had presented the
aforesaid cheque bearing no. 000008 amounting to Rs. 1,61,543/- for
encashment on 30.03.2020 with his banker namely Bandhan Bank Ltd.,
Janakpuri Branch, New Delhi, however the cheque was returned dishonoured
with the remarks “Funds Insufficient” vide returning memo dated 19.04.2020.
E. In these circumstances, the complainant got issued a statutory legal demand
notice to the accused through his counsel, dated 20.04.2020, thereby requiring
the accused to pay the amount of the aforesaid cheque 000008, amounting to a
total of Rs. 1,61,534/- within a period of 15 days from the receipt of the said
notice. The said notice under Sec. 138 of NI Act was sent to the accused
through Registered AD and Speed Post at his correct address on 18.05.2020. It
is further submitted by the complainant that the said notice was sent at the last
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 4
known address of the accused person and was duly served upon the accused
person.
F. That despite service of the above stated notice of demand, the Accused has
deliberately and wilfully failed to comply with the said notice of demand and
has failed to pay the amount of the aforesaid cheque within the stipulated period
of 15 days from the date of receipt of the said notice. Consequently, this case
was filed by the complainant against the accused, which was within limitation
period as laid down u/s 138, NI Act.
Proceedings before the court:
3. Upon a prima facie consideration of pre-summoning evidence, it appeared
that the offence u/s 138 NI Act has been made out. After leading pre-
summoning evidence by the complainant, cognizance of the offence u/s 138, NI
Act was taken against the accused person and he was summoned vide order
dated 10.02.2021. Thereafter, on accused entering into an appearance on
23.11.2021, she was granted bail and a separate notice was framed against the
accused no. 1 company and accused no. 2 Director, u/s 251 of the Code of
Criminal Procedure, 1973 (hereinafter “CrPC“) on 20.05.2022, which was read
over and explained to them, to which the accused persons pleaded not guilty and
claimed trial. At the stage of framing notice, the following aspects were
admitted/denied by them:
(i) Issuance of cheque to the complainant : Admitted
(ii) Signatures on the cheque in question : Admitted
(iii) Receiving the legal demand notice : Admitted
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 5
In her defense, the accused no. 2 has stated that she is the AR and managing
director of MSD Captainnova Pvt. Ltd. and the accused company used to
purchase kitchen materials from the complainant and the cheque in question
was given as a post-dated cheque in advance as security for the transactions
between the complainant and the accused. It is further stated by the accused that
all payments of outstanding bills have been made to the complainant through
account transfer and that the complainant has misused the cheque in question.
4. During the trial, the complainant has led the following oral and documentary
evidence by way of an affidavit Ex. CW1/A, against the accused to prove its
case beyond reasonable doubt and relied upon the following documents :-
● The Invoice dated 25.11.2019 is exhibited as Ex-CW1/1 & Ex-
CW1/2.
● The original cheque in question dated 30.01.2020 is Ex-CW1/3.
● The original returning memo is Ex-CW1/4.
● The legal notice is exhibited as is Ex-CW1/5.
● The speed post receipt is Ex-CW1/6.
Thereafter, the accused persons were granted an opportunity to cross-examine
the complainant CW-1 under Section 145(2), NI Act and the complainant
witnesse was duly cross-examined by the Ld. Counsel for accused. Thereafter,
CE was closed vide order dated 06.09.2022.
5. Thereafter, before the start of defence evidence, in order to allow the accused
to personally explain the circumstances appearing in evidence against him, his
statement under Section 313 CrPC was recorded without oath.
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 6
6. The accused opted to lead defence evidence during the statement under
Section 313 CrPC, and he examined himself as DW-1, vide an application u/s
315 CrPC moved on behalf of the accused which was allowed by this Hon’ble
court in the interest of justice vide order dated 11.10.2022. DW-1 was
examined, cross-examined and discharged. DE was closed vide a separate
statement of the accused on 23.11.2022.
7. Thereafter, the matter was listed for final arguments. After hearing the final
arguments from both sides and on the basis of the written submissions on record
by both the parties, the matter was reserved for pronouncement of judgment.
Arguments advanced by both the parties:
8. 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. Ld. counsel for the complainant
submits that the payments are made by the accused to one Deepak Chaudhary in
his individual capacity, and not to the complainant. Ld. Counsel for the
complainant submits that the complainant firm is a sole proprietorship and no
other individual apart from the complainant had any authority to engage in
financial transactions.
9. Ld. Counsel for the complainant submits that no amount has been received by
the complainant vide invoice no. 28 and therefore legally enforceable liability is
made out. It is further submitted by Ld. Counsel for the complainant that the
accused no. 2 has admitted to the issuance of cheque and the signatures on the
cheque in question.
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 7
Since all the ingredients u/s 138, NI Act have been fulfilled, the accused is
liable for the offence u/s 138, NI Act and be punished with maximum
punishment in accordance with law and be punished with imprisonment for a
term of two years and fine of double of the amount of the said cheque.
10. Per contra, Ld. counsel for accused submits that the name of Deepak
Chaudhary is mentioned as CEO on the official website of the complainant firm
and the GST bill is registered in the name of Deepak Chaudhary and he
represented himself to be the authorised individual on behalf of Commerical
Kitchen Services, which is why the payment was made to Deepak Chaudhary.
11. Ld. Counsel for the accused further submits that the complainant is
submitting that Deepak Chaudhary is a mere employee of the firm, however
Deepak Chaudhary was represented as CEO on public platforms of Commercial
Kitchen Services. It is further submitted by the Ld. Counsel for the accused that
Deepak Chaudhary and the complainant are family members and therefore the
complainant must be aware about the financial transactions of accused with
Deepak Chaudhary. It is further submitted by Ld. Counsel for the accused that
Deepak Chaudhary and complainant are one unit and since all due payment has
been made, no legally enforceable liability is made out against the accused.
12. Ld. counsel for the accused, in consequence, has prayed that the accused be
acquitted as the conditions for Section 138, NI Act have not been fulfilled and
the complainant has misused the cheques against the accused.
Appreciation of evidence:
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 8
13. I have heard counsels on behalf of both the sides, perused the record as well
as relevant provisions of law.
14. 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 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 aCt. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 9
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.
15. 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;
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;
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 10
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.
16. In the present case at hand, the complainant has filed on record the original
cheque, i.e., bearing no. 000008 dated 30.01.2020 amounting to Rs. 1,61,543/-,
drawn on IDFC Bank, Varanasi (Ex. CW1/3). In notice under Section 251
CrPC, the accused has admitted that the cheque in dispute belongs to him. It is
also not disputed that the cheque in question is not drawn on the account
maintained by the accused person and it is impliedly admitted therefore that the
accused is the drawer of the cheque. Therefore, ingredient number I stands
fulfilled in the present case.
17. As per the RBI guidelines, it is essential for the cheque in question be to
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 cheque. In the case at hand, the cheques in
question, i.e., cheque bearing no. 000008 Ex. CW1/3 dated 30.01.2020 was
returned vide return memo dated 18.04.2020 (Ex. CW1/4) due to the reason
“funds insufficient.” By implication thereof, the cheque was presented within
three months and the same was returned for want of sufficient funds to the
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 11
credit of the drawer. Therefore, Ingredient number III & IV stand fulfilled in the
present case.
18. The legal notice dated 20.04.2020 (Ex. CW1/5) was dispatched on
18.05.2020 vide speed post (Ex. CW1/6), i.e., within 30 days of return of the
bank memo indicating cheque in question being unpaid. The fact that the legal
demand notice has made a clear and unambiguous demand for payment of the
cheque in question is not disputed. The accused has admitted to the receipt of
legal demand notice in notice u/s 251 CrPC. Furthermore, as per the
presumption raised under Section 114 of Indian Evidence Act, 1872 and Section
27 of General Clauses Act, if the legal demand notice is sent at the correct
address, then the same shall be deemed to have been duly served. As per the
precedent laid down by the Hon’ble Supreme Court in C.C. Alavi Haji v.
Palapetty Muhammed, (2007) 3 SCC (Cri),
“A person who does not pay within 15 days of receipt of the summons from the
court along with the copy of the complaint under Section 138 of the Act, cannot
obviously contend that there was no proper service of notice as required under
Section 138, by ignoring statutory presumption to the contrary under Section 27
of the GC Act and Section 114 of the Evidence Act.”
In K. Bhaskaran vs Sankaran Vaidhyan Balan and Anr, Appeal (crl.) 1015 of
1999 (SC) (hereinafter referred to as “K. Bhaskaran”), the Hon’ble SC observed:
“On the part of the payee he has to make a demand by
`giving a notice’ in writing. If that was the only
requirement to complete the offence on the failure of
the drawer to pay the cheque amount within 15 daysCt. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 12
from the date of such `giving’ the travails of the
prosecution would have been very much lessened. But
the legislature says that failure on the part of the drawer
to pay the amount should be within 15 days `of the
receipt’ of the said notice. It is, therefore, clear that
`giving notice’ in the context is not the same as receipt
of notice.”
The burden of giving notice within 30 days of return of bank memo, falls on the
complainant/payee to constitute the offence u/s 138, NI Act. If the notice is sent
on the correct address, then the presumption u/s 27 General Clauses Act and
Section 114, Indian Evidence Act arises in the favour of the complainant/payee.
Therefore, it is deemed that the legal notice was duly served on the accused
person.
The ingredient number V is fulfilled by virtue of giving of legal demand notice
within 30 days from the bank return memo. The receipt of legal demand notice
by the accused is deemed to be admitted as per the discussion above.
19. Moving on, it is not disputed that the accused has not made the payment of
the cheque amount within 15 days of the receipt of legal demand notice.
Therefore, ingredient number VI also stands fulfilled in the present case.
20. Let us now move on to ingredient number II,
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
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 13
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.
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.
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 theCt. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 14
accused is admitted or proved by the complainant and thereafter the burden is
shifted upon the accused to prove otherwise.
21. 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 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 andCt. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 15
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 byCt. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 16
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.”
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 heavy a burden 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.”
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 17
22. 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 demolishing 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. Accused can say that the
version brought forth by the complainant is inherently unbelievable and
therefore the prosecution cannot stand.
23.In light of the above discussion, since the accused has admitted to issuance
of cheque, admitted the signatures on the cheque and legal notice has also been
deemed to be served, what is left to be seen is whether the accused has been
able to rebut the presumption against him, i.e., whether the accused is able to
raise a probable defence which creates doubts about the existence of a legally
enforceable debt?
24. The complainant has placed on record two invoices dated 25.11.2019 (Ex.
CW1/1 and Ex. CW1/2) amounting to Rs. 3,08,864/- and invoice dated
17.12.2019 (Ex. DW1/X1) amounting to Rs. 7,52,840/-, thereby taking the total
liability of the accused to be Rs. 10,61,704/-. The complainant in his complaint
has stated that the accused had made part payments vide invoice no. 26 and 28
dated 25.11.2019 and 17.12.2019 and only a liability of Rs. 1,61,543/- remains
to be paid by the accused. The case of the accused is that the cheque in question
was handed over as a post-dated security cheque and all the outstanding dues
have been paid to the complainant by the accused. The accused has placed on
record his bank account statements indicating payment made to the complainant
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 18
and authorised representative of the complainant against the liability as stated in
the cheque in question, Ex. DW1/1 (Colly.).
Perusal of records placed as exhibit by the accused Ex. DW1/1 (Colly.) from
Page number 1 to 7 indicates total payment of Rs. 10,82,000/- made by the
accused, some of them made directly to Commercial Kitchen Services and some
payments made to Deepak Chaudhary. The complainant in their final arguments
have stated that the complainant firm Commercial Kitchen Services is a
proprietorship firm and only has the complainant as the authorised person and
no one else, therefore the payments made to Deepak Chaudhary are not towards
the legally enforceable liability.
As per Ex. DW1/1 (Colly.), payment by the accused dated 17.12.2019
amounting to Rs. 1,65,000/-, payment dated 13.01.2020 amounting to Rs.
50,000/- and payment dated 15.02.2020 amounting to Rs. 72,000/- was made to
Deepak Chaudhary on his official email id. Further perusal of record also
indicates that any official communication regarding business transactions which
were done between the complainant and the accused were done by Sh. Deepak
Chaudhary. Furthermore, name of Sh. Deepak Chaudhary is provided as the
contact person for Commercial Kitchen Services on several platforms such as
Linkedin, Google and various other business platforms. Furthermore, the GST
is registered in the name of Sh. Deepak Chaudhary and he is reflected as the
CEO of the complainant firm. The accused has placed enough material on
record to indicate that Deepak Chaudhary was an authorised person to whom
the payments have been made in pursuance of the liability owed by the accused
to the complainant, and not in terms of any personal transaction that the accused
had with Deepak Chaudhary. The accused thereby has raised a probable defence
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 19
in his favour. Moreover, the complainant has not produced Deepak Chaudhary
as a witness to prove that the transactions made by the accused to Deepak
Chaudhary were not towards the invoices in question, but towards a separate
transaction. It is therefore right to conclude that the accused has made the due
payment to an authorised person of the complainant proprietorship who has
been in contact with the accused about the business dealings, i.e., Deepak
Chaudhary.
25. Furthermore, the accused has proved that they have made a payment of Rs.
10,82,000/- vide the bank statements placed on record by Ex. DW1/1, against
the liability invoked by invoices exhibited as Ex. CW1/1 & Ex. CW1/2 and Ex.
DW1/X1 amounting to Rs. 10, 61,704/-, which is more than the sum owed by
the accused to the complainant. The complainant has therefore been unable to
prove that the cheque in question was presented for the legally enforceable
liability of Rs. 1,61,534/- as stated by him in his complaint. Recently, the
Hon’ble Supreme Court in Dashrathbhai Trikambhai Patel v. Hitesh M. Patel
(2023) 1 SCC 578, had observed in Para 34.1 of its judgment that “for the
commission of offence u/s 138 NI Act, the cheque that is dishonoured must
represent a legally enforceable debt on the date of maturity or presentation.”
In view of the aforesaid findings and analysis, this court has arrived at an
irresistible conclusion that the accused has been able to cast a shadow of
reasonable doubt upon the case of the complainant by rebutting the mandatory
presumption resting in its favour. Once the accused had created a probable
defence as to the legally enforceable liability, the onus shifted on the
complainant to prove the existence of legally enforceable liability of the
accused, as on the date of the drawal or presentation of the impugned cheques,
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 20
which has not been fulfilled by the complainant in the present case by bringing
any documentary proof or oral evidence on record to substantiate his claim.
Since this basic ingredient which is pivotal to attract liability under Section 138
NI Act has not been proved by the complainant, accordingly, no offence of
dishonour of the impugned cheque under the said Section is made out.
26. In light of the discussion above, ingredient no. II has also not been fulfilled
in the present case.
Conclusion:
27. In view of the aforesaid discussion, the accused no. 1 MSD Captainnova
Pvt. Ltd. and accused no. 2 Monika Singh have been successful in establishing a
probable defence on a standard of preponderance of probabilities to rebut the
presumption under Section 118 and 139 of the NI Act by punching holes in the
case of the complainant and making the case of the complainant doubtful. The
accused has been successful in establishing a probable defence and as a
consequence, questioning the existence of legally enforceable liability in favour
of the complainant and that the cheque was not issued by accused in discharge
of existing legally enforceable debt or liability owed to the complainant. In the
result of the analysis of the present case, the accused no. 1 MSD Captainnova
Pvt. Ltd. and accused no. 2 Monika Singh are hereby acquitted of the offence
punishable under Section 138, Negotiable Instruments Act, 1881.
PRONOUNCED IN THE OPEN COURT
TODAY ON 01.02.2025.
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 21 Digitally signed by AASTHA AASTHA SHARMA SHARMA Date: 2025.02.01 16:30:32 +0530 (Aastha Sharma) Judicial Magistrate-Ist Class (NI Act)-09/South-West, Dwarka/01.02.2025
This judgment consists of 21 pages and all pages are duly signed by me.
Ct. Cases No. 15149/2020 SUSHEELA RANI v. MSD CAPTAINNOVA PVT. LTD. & ANR. 22