Delhi District Court
Vinnu Goel vs Ms/ Assotech Ltd. And Others on 11 August, 2025
DLST020239332017
IN THE COURT OF SH. NITIN SHAH, JMFC-05,
N.I. ACT, SOUTH DISTRICT, SAKET, NEW DELHI
CC No. : 12632/2017
U/s : 138 N. I. Act
PS : Saket
Vinnu Goel vs. M/s Assotech Ltd.
JUDGMENT
1. CC No. : 12632
2. Date of institution of the case : 26.10.2017
3. Name of complainant : Mrs. Vinnu Goel
w/o Sh. Satish Goel
R/o 154, Neb Sarai,
IGNOU Road, New Delhi
4. Name of accused, parentage
and address : M/s Assotech Ltd.
Office at 148-F, Pocket-IV,
Mayur Vihar, Phase-1,
Delhi-91. (Accused no. 1)
Through Managing Director
Sanjeev Srivastava (Accused no. 2)
5. Offence complained of : 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : Acquittal
8. Date on which order was : 31.07.2025
reserved
9. Date of pronouncement : 11.08.2025
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FACTUAL BACKGROUND OF THE CASE
1. The present complaint has been filed by Mrs. Vinnu Goel (hereinafter
complainant) through SPA holder Mr. Keshav Kumar against M/s Assotech Ltd.
(hereinafter accused company) and Sh. Sanjeev Srivastava (hereinafter accused no.
2) under 138 of Negotiable Instrument Act.
2. The substance of allegation as contained in the complaint are as
follows :
a) The accused company is engaged in business of Real Estate
Development, construction of multi-storeyed housing and commercial complexes,
infrastructural development, civil construction works and other related works and
accused no. 2 is its managing director.
b) Initially, complainant invested a sum of Rs. 2.5 crores in the
group housing projects of the accused no. 1 company. With respect to the same, two
agreements were executed between the parties i.e. first agreement dt. 09.11.2011 in
which complainant invested Rs. 1.5 crores at the group housing project of the
second party at Sec-99, Gurgaon, Haryana, second agreement dt. 15.11.2011 in
which in which complainant invested Rs. 1 crores at the group housing project of
the second party at Crossing Republik, NH-24, Ghaziabad.
c) Various cheques were issued from time to time by the accused
no. 1 company in favour of the complainant towards repayment of the aforesaid
amounts alongwith the interest due thereupon, however the said cheques were
dishonoured and complainant had filed two criminal complaints against the accusedCC No. 12632/17 (Nitin Shah)
Vinnu Goel vs. Assotech Ltd. Page no 2 of 24 JMFC-05 (NI Act)/South
DLST020239332017u/s 138 NI Act and arbitration was also invoked. Thereafter matter was amicably
settled between the parties and accused no. 1 company vide compromise deed dt.
29.01.2016.
d) In pursuance of the said compromise deed, total liability of the
accused company towards the complainant as on 18.02.2016 stood at Rs.
4,82,50,639/-. In terms of the compromise deed, the accused company had to give
to the complainant 3 fully paid up flats/apartments amounting to Rs. 3,74,40,000/-
and it was agreed that an amount of Rs. 3,00,00,000/- had to be adjusted against the
total liability of Rs. 4,82,50,639/- of the accused company.
e) In addition to it, the accused company had also agreed to pay
the complainant Rs. 1,82,50,639/- in 18 monthly installments of different amounts.
Accordingly, 18 postdated cheques were issued by the accused company to the
complainant.
f) The present complaint has been filed for following cheques :
Serial No. Cheque No. Date Amount
1. 017161 15.07.2017 Rs. 12,00,000/-
2. 017162 15.08.2017 Rs. 6,76,583/-
g) The aforementioned cheques in question were returned unpaid
vide cheque return memo dt. 14.09.2017 with remarks “Funds Insufficient”.
Thereafter, complainant issued a legal demand notice dated 23.09.2017 calling
upon the accused to pay the amount of the aforesaid cheque within the stipulated
period but the accused did not make the payment within the statutory period.
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PROCEEDINGS BEFORE COURT
3. The complainant tendered his evidence by way of affidavit and relied
upon following documents:-
a) SPA Mark- CW1/A
b) Articles of agreement dt. 09.11.2011 Mark- CW1/B
c) Articles of agreement dt. 15.11.2011 Mark-CW1/C
d) Compromise deed dt. 29.01.2016 Mark-CW1/D
e) Cheques in question Ex. CW1/E colly.
f) Return memo dt. 14.09.2017 Ex. CW1/E colly
g) Legal notice dt. 23.09.2017 alongwith Ex. CW1/F colly.
tracking report and postal receipt
h) Evidence by way of affidavit Ex. CW1/1
4. Upon appreciation of pre-summoning evidence, accused was
summoned for an offence punishable under Section 138 of NI Act and notice under
Section 251, Code of Criminal Procedure, 1973 (herein after referred to as Cr.P.C.)
was served upon accused on 30.08.2022 to which he pleaded not guilty and
claimed trial. The accused took the defence that there was a buy back agreement
between the complainant and accused. Cheques in question were given to the
complainant as security at the time of execution of the said agreement, however,
complainant presented the said cheques without cancellation of allotment of
property in question. He further submits that he do not remember whether he had
received the legal demand notice or not.
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5. Thereafter, on oral plea of accused, application u/s 145 (2) of NI Act
was allowed vide order dated 30.08.2022 and the accused was granted opportunity
to cross examine the complainant as well as his witnesses, if any.
6. The complainant has only examined himself as CW-1. In the post
summoning evidence, the complainant (CW1) has adopted her pre-summoning
evidence. Thereafter complainant did not cross examine by the accused despite
numerous opportunities.
7. Accused was, thereafter, examined U/s 281 r/w Sec 313 Criminal
Procedure code, 1872 on 10.12.2024 and additional statement of accused u/s 313
CrPC was also recorded on 11.06.2025 wherein entire incriminating evidence was
put to him. The accused took defence that he has no liability towards the cheque in
question.
8. In order to raise his defence, Sh. Rajeev Shrivastava was examined as
DW-1 and the accused examined himself as DW-2 after allowing the application u/s
315 CrPC.
The defence evidence was closed on 16.01.2025 and the matter was
fixed for final arguments.
9. I have considered the rival submissions of the parties and perused the
entire evidence led by the parties and the material available on record.
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FINAL ARGUMENTS
10. During the course of final arguments, Ld. Counsel for complainant
argued that all the documents annexed with the complaint are admitted. Cheques in
question were given in pursuance of execution of the compromise deed and the
same is also an admitted document. It is further submitted that till date no winding-
up order has been passed against the accused company and accused no. 2 is still
functioning as managing director of the accused company. In so far as legal notice
is concerned, summons was served at the address of the accused company, pursuant
to which the accused appeared before the court. It is also contended that even if it is
assumed that accused company cannot be convicted on account of it being under
liquidation, the accused no. 2, being a natural person and the signatory to the
cheques, can nevertheless be prosecuted.
11. Per contra, Ld. Counsel for accused no.2 argued that the essential
ingredients of Section 138 NI Act are not fulfilled in order to constitute a valid
complaint as legal notice sent to the accused was not proper and same is also
deposed by the defence witnesses. It is further submitted that legal notice sent by
the complainant to the accused company is invalid as the offices of the accused
company were sealed after appointment of the provisional liquidator. It is further
submitted that control over the property and books of the company were handed
over to the provisional liquidator. Therefore, the accused no.2 was not in charge and
responsible for the functioning of the accused company.
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12. Further, Ld. Counsel on behalf of official liquidator has argued that
cause of action arose after initiation of the winding up proceeding, therefore, there
is no liability against the company.
PRELIMINARY OBJECTION
13. Before dwelling into the facts of the present case, it is pertinent to first
deal with the preliminary objection taken on behalf of the accused in relation to the
maintainability of the present complaint case. Ld. Counsel for complainant has
taken the following objection:
“No averment has been made to the effect that accused no. 2 was
incharge and responsible at the time of offence”.
14. It has been argued that by Ld. counsel for accused that after going
through the complaint and the evidence, the complainant has not made any
averment to the effect that accused no. 2 was incharge and responsible of the
accused company at the time of the offence. It is further argued that in the absence
of such an averment, no charge is made out against the accused no. 2.
15. It is not disputed that the accused no. 2 is managing director of the
accused company. It is settled position of law that if the accused is a managing
director, it is not necessary to make specific averment in the complaint to this
effect. Same is held by Hon’ble Supreme Court in National Small Industries
CC No. 12632/17 (Nitin Shah)
Vinnu Goel vs. Assotech Ltd. Page no 7 of 24 JMFC-05 (NI Act)/South
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Corporation Limited vs. Harmeet Singh Paintal & Anr. (2010) 3 SCC 330:
“39…………
(V) If the accused is managing director or a joint
managing director then it is not necessary to make
specific averment in the complaint and by virtue of their
position, they are liable to be proceeded with.
………………”
16. Therefore, in view of the above, the objection taken by the Ld.
Counsel for accused stands rejected.
INGREDIENTS OF OFFENCE UNDER SECTION 138 NI ACT
17. Before delving into discussion over the facts of the present case, it
would be apposite to discuss the legal standards required to be met by both sides
in trial of offence under Section 138 NI Act. In Gimpex Private Limited vs.
Manoj Goel (2022) 11 SCC 705 (Decided on October 08, 2021) Hon’ble
Supreme Court has divided the ingredients forming the basis of the offence un-
der Section 138 of the NI Act in the following structure:
1) The drawing of a cheque by person on an account main-
tained by him with the banker for the payment of any
amount of money from that account to another person;
2) The cheque being drawn for the discharge in whole or in
part of any debt or other liability;
3) Presentation of the cheque to the bank arranged to be paid
from that account,
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4) The return of the cheque by the drawee bank as unpaid ei-
ther because the amount of money standing to the credit of
that account is insufficient to honour the cheque or that it
exceeds the amount.
5) A notice by the payee or the holder in due course making a
demand for the payment of the amount to the drawer of the
cheque within 30 days of the receipt of information from the
bank in regard to the return of the cheque; and
6) The drawer of the cheque failing to make payment of the
amount of money to the payee or the holder in due course
within 15 days of the receipt of the notice.
APPRECIATION OF EVIDENCE
18. The accused can be held guilty of the offence under Section 138 NI
Act only if the above-mentioned ingredients are proved by the complainant co-
extensively. Moreover, conditions stipulated under Section 142 NI Act have to
be fulfilled in addition to above-mentioned ingredients. Hence, unless all the
above ingredients are fulfilled in a trial under Section 138 NI Act, accused can-
not be held liable.
With Respect To First, Third And Fourth Ingredient:
19. It is pertinent from the pleadings and evidence adduced by the par-
ties that there is no dispute qua the proof of first, third and fourth ingredient. The
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complainant had proved the original cheques vide Ex. CW1/E colly., which the
accused had not disputed as being drawn on the account of the accused company
and is duly signed by the accused no.2. Accused, during framing of notice under
Section 251 CrPC has admitted that cheques in question bear his signature. It
was not disputed that the cheque in question were presented within period of va-
lidity. The cheques in question were returned unpaid vide return memos Ex.
CW1/E colly. with the remarks “Funds Insufficient”. The said reason is duly cov-
ered within the scheme of NI Act. Therefore, requirement of first, third and
fourth ingredients stand fulfilled in the present matter.
With Respect To fifth and sixth Ingredient:
20. In case of CC Alavi Haji Vs. Palapetty Muhammed (2007)6
SCC555 (Decided on May 18, 2007) Hon’ble Supreme Court has held that giv-
ing a legal notice to the drawer before filing of complaint under Section 138 of
NI Act is a mandatory requirement. As far as proof of fifth and sixth ingredient
is concerned, the complainant sent a legal demand notice to the accused on
23.09.2017 and also filed speed post receipt (Ex. CW/F colly). Accused during
the stage of notice under Section 251 Cr.P.C. submitted that “I do not remem-
ber whether I had received legal demand notice or not”. Similarly, at the
stage of statement under Section 313 Cr.P.C, accused submitted that he did not
receive legal demand notice as the office of the company address was already
sealed. Perusal of above documents reveals that legal demand notice was sent on
the proper address of the accused and by virtue of presumption u/s 27 General
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Clauses Act accused is deemed to have received the legal notice, if the notice has
been sent to correct address by post.
21. Even otherwise, law expects a person pleading non-receipt of any
demand notice to prove his bona fide by making the payment of the cheque
amount within 15 days of receiving court summons. This is crystallized by the
verdict of Hon’ble Supreme in C.C. Alavi Haji v. Palapetty Muhammed & anr
(supra)
“17. It is also to be borne in mind that the requirement of
giving of notice is a clear departure from the rule of Crimi-
nal Law, where there is no stipulation of giving of a notice
before filing a complaint. Any drawer who claims that he
did not receive the notice sent by post, can, within 15 days
of receipt of summons from the court in respect of the com-
plaint under section 138 of the Act, make payment of the
cheque amount and submit to the Court that he had made
payment within 15 days of receipt of summons (by receiving
a copy of complaint with the summons) and, therefore, the
complaint is liable to be rejected. 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 Sec-
tion 27 of the G.C. Act and section 114 of the Evidence
Act.”
22. In the case at hand, processes against the accused persons were sent
on the same address as mentioned in the legal demand notice and the accused
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had appeared in pursuance of the same. Moreover, after appearance of accused
before the court, accused has failed to pay the cheque amount to the complainant
and thus is precluded from raising the plea of non-service of demand notice.
Thus, it is proved that the legal notice was sent to accused within thirty days of
receipt of intimation of dishonor of cheque in issue. Hence, fifth and sixth ingre-
dient also stand fulfilled.
RAISING OF PRESUMPTION
23. The accused has admitted his signatures upon the cheque in question
in his statement u/s 294 CrPC.
24. As per the scheme of the NI Act, once the accused admits signature on
the cheque in question, certain presumptions are drawn, which result in shifting of
onus. Section 118(a) of the NI Act lays down the presumption that every negotiable
instrument was made or drawn for consideration. Another presumption is
enumerated in Section 139 of NI Act laying down the presumption that the holder
of the cheque received it for the discharge, in whole or part, of any debt or other
liability.
25. The combined effect of these two provisions is a presumption that the
cheque was drawn for consideration and given by the accused for the discharge of
debt or other liability. Both the sections use the expression “shall”, which makes it
imperative for the court to raise the presumptions, once the foundational facts
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required for the same are proved. Reliance is placed upon the judgment of the
Hon’ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee, Kumar
Exports vs. Sharma Carpets (2009) 2 SCC 513 and Bir Singh vs. Mukesh Kumar
(2019) 4 SCC 197.
26. Therefore, in the instant case, since the accused has admitted his
signatures on the cheques in question, the aforementioned statutory presumptions
would be raised in favour of the complainant regarding the fact that the impugned
cheque has been drawn for consideration and issued by the accused in discharge of
legally enforceable debt.
APPRECIATION OF EVIDENCE QUA SECOND INGREDIENT
(Existence of Legally enforceable debt/liability as per the cheque amount)
27. The presumptions contemplated in the NI Act are rebuttable
presumptions and once the same are raised, it is for the accused to rebut the same
by establishing a probable defence. The principles pertaining to the presumptions
and the onus of proof were recently summarized by the Hon’ble Apex Court in
Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
“25.1. Once the execution of cheque is admitted Section 139
of the Act mandates a presumption that 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
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
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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.”
28. In this case, the accused in order to rebut the statutory presumption
has made the submission that cause of action had arisen after initiation of winding
up proceeding of the accused company, therefore, the accused company is not liable
for the offence, and since the liability of accused no. 2 is vicarious in nature by
virtue of Section 141 NI act, he shall also not be held liable.
29. At the time of framing of notice u/s 251 CrPC, both the accused has
taken the defence that there was a buy back agreement between complainant and
accused. Cheques in question were given to the complainant as security at the time
of execution of the said agreement. However, complainant presented the said
cheques without cancellation of allotment of property in question.
30. It is in the statement of accused u/s 313 CrPC, it has been stated that
cheques in question were issued by the accused company in pursuance of the
settlement arrived between complainant and accused company. It is further stated
that accused company had already gone into liquidation on the date of presentation
of cheque and accused no. 2 did not have access to the accounts of the company.
Accused no. 2 claims to have no liability towards the complainant since the accused
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company had already gone into liquidation on 08.02.2016 and consequently, board
of directors were suspended.
31. As per the testimony of DW-1, upon perusal of the return memo, he
stated that as on dated 24.08.2016, he was not functioning as a director, as the high
court had on 08.02.2016 already appointed a provisional liquidator. Copy of order
of appointment of provisional liquidator is marked as Mark-A. Nothing material has
been elicited from the said witness.
32. As per the examination-in-chief of the accused no.2 (DW-2), he was
director of accused company from 1996 till 08.02.2016. He had issued cheques in
question as per the directions of board of directors. On 08.02.2016, official
liquidator attached to Hon’ble High court of Delhi was appointed as the provisional
liquidator of the company which led to discharge of the board, and he was no more
director of the accused company. The provisional liquidator had taken over the
accused company, therefore, he could not tell the reason for dishonor of cheques.
33. Having regard to the defence taken by the accused, it becomes
necessary to examine the effect of the liquidation proceedings, if such proceedings
commenced prior to the accrual of the cause of action.
34. In this regard, reliance can be placed on Kusum Ingots and Alloys
Ltd vs Pennar Peterson Securities Ltd. And Ors (2000)2 SCC 745 wherein it
has been held that:
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“2. The common question that arises for consideration in
these appeals is whether a company and its Directors can
be proceeded against for having committed an offence
under section 138 ot the Negotiable Instruments Act, 1881
(for short ‘the NI Act‘) after the company has been declared
sick under the provisions of The Sick Industrial Companies
(Special Provisions) Act, 1985(for short ‘SICA’) before the
expiry of the period for payment of the cheque amount. The
answer to the question depends on interpretation of section
138 of the NI Act and its interaction with the relevant
provisions of SICA. Since the relevant facts involved in all
the cases are similar and a common question of law arises
in all the cases they were heard together, and they are being
disposed of by this judgment.
XXXX XXXX XXXX
19- The question that remains to be considered is whether
section 22 A of SICA affects a criminal case for an offence
under section 138 NI Act. In the said section provision is
made enabling the Board to make an order in writing to
direct the sick industrial company not to dispose of, except
with the consent of the Board, any of its assets – (a) during
the period of preparation or consideration of the scheme
under section 18; and (b) during the period beginning with
the recording of opinion by the Board for winding up of the
company under sub-section (1) of section 20 and up to
commencement of the proceedings relating to the winding
up before the concerned High Court. This exercise of the
power by the Board is condi- tioned by the prescription that
the Board is of the opinion that such a direction is
necessary in the interest of the sick industrial company or
its creditors or shareholders or in the public interest. In a
case in which the BIFR has submitted its report declaring a
company as ‘sick’ and has also issued a direction under
section 22-A restraining the company or its directors not to
dispose of any of its assets except with consent of the Board
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then the contention raised on behalf of the appellants that a
criminal case for the alleged offence under section 138 NI
Act cannot be instituted during the period in which the
restraint order passed by the BIFR remains operative
cannot be rejected outright. Whether the contention can be
accepted or not will depend on the facts and circumstances
of the case. Take for instance, before the date on which the
cheque was drawn or before expiry of the statutory period
of 15 days after notice, a restraint order of the BIFR
under Section 22-A was passed against the company then
it cannot be said that the offence under section 138 NI Act
was completed. In such a case it may reasonably be said
that the dishonouring of the cheque by the bank and
failure to make payment of the amount by the company
and/or its directors is for reasons beyond the control of the
accused. It may also be contended that the amount
claimed by the complainant is not recoverable from the
assets of the company in view of the ban order passed by
the BIFR. In such circumstances it would be unjust and
unfair and against the intent and purpose of the statute to
hold that the Directors should be compelled to face trial in
a criminal case. …….” (emphasis supplied)
35. Further, it has been held in M.L. Gupta & Anr. vs. Ceat Financial
Services Limited: (2007) 136 DLT 308 :-
“8. We are, however, concerned with the position where
cheque presented is dishonoured and complaint is filed
under Section 138 of the Negotiable Instruments Act
against the company and the Directors after the company
has already been ordered to be wound up. Whether such a
complaint would be maintainable is the question and the
legal position on this aspect is what needs to be
determined.
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9. To answer this question, we may have first to take note
of the necessary legal consequences of the winding up of a
company and orders of appointment of Official
Liquidator/Liquidator. By operation of law, i.e. by virtue
of determined.
the Companies Act, it would result in discharge of all the
employees and the Officers from the service of the
company including Board of Directors. Affairs of such a
company are taken over by the Official Liquidator and the
Official Liquidator has to disburse the payment in
accordance with the Companies Act. Section 536 of the
Companies Act now comes into play fully and
disbursement of any amount would be void. If the cheque
is presented at this stage, payment thereof is legally
barred. Bank, on which cheque is issued is precluded from
honouring the cheque. In the instant case itself, account
was closed by the Official Liquidator and that was the
reason for dishonour of cheque. It is also to be borne in
kind that after the winding up orders and the taking of
over the affairs of the company by the Official Liquidator
since erstwhile Directors seize to be the Directors as on
the date of presentation of the cheque, they are not
incharge of day to day affairs of the company. Offence is
committed under Section 138 of the Act only on the
dishonour of the cheque and issuance of notice for demand
to pay the amount. As on that date, no such notice could be
issued to the company which was in liquidation and the
creditors are now to be paid as per the scheme of the
Companies Act. Therefore, liability on them also cannot be
fastened under Section 141 of the Negotiable Instruments
Act.
XXXXX XXXXXX XXXXX
16. Thus, what is emphasized is that actual offence has to
be committed by the company and then alone the
Directors can become liable for the offence. When theCC No. 12632/17 (Nitin Shah)
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presented thereafter, it cannot be said that the company
has committed the offence as it is because of legal bar
that it is precluded from making the payment. Once
dishonour of the cheque by the Bank and failure to make
payment of amount by the company is beyond its control,
the Directors (who are in fact ex-Directors) can also not
be held liable. Sustenance for this proposition can be
drawn from another judgment of the Supreme Court in the
case of Kusum Ingots & Alloys Ltd., etc. v. Pennar
Peterson Securities Ltd., [2000] 100 Company Cases 755
(SC). That was a case where reference in respect of the
company was pending before the Board of Industrial and
Financial Reconstruction (for short ‘BIFR’) under the Sick
Industrial Companies (Special Provisions) Act, 1985
(SICA). The Court held that mere registering the reference
would not be sufficient to bar the proceedings under
Section 138 of the N.I. Act even by virtue of Section 22 of
SICA as Section 22 which provided that no proceedings
would be instituted against the company related to only to
civil proceedings and does not include criminal
proceedings. However, the Court further held that position
would be different if order is passed by the BIFR under
Section 22A of SICA restraining
the company or its Directors from disposing of the assets
of the company…..” (emphasis supplied)
36. Furthermore, in the case of RE- M/S CATMOSS RETAIL PVT.
LTD vs .. Respondent 2024 SCC online 776, it has been held that:
“11. All said and done, what needs to be emphasized is that
it has been a consistent legal proposition that if the demand
notice and the cognizance of complaint under
Section 138 of the NI Act is taken after initiation of winding
up proceedings and/or IBC proceedings, the proceedingsCC No. 12632/17 (Nitin Shah)
Vinnu Goel vs. Assotech Ltd. Page no 19 of 24 JMFC-05 (NI Act)/South
DLST020239332017under Section 138 of the NI Act cannot continue not only
against the corporate debtor but also its directors. It is
pertinent to mention that this Court in an earlier case
titled Govind Prasad Todi v. Govt. of NCT of Delhi16 rightly
distinguished the aspect in the case P. Mohanraj (supra),
wherein 51 cheques were issued by the company in favour of
the respondent towards the amounts payable from 21.09.2015
to 11.11.2016 and it was a case where statutory notice of
demand under Section 138 read with Section 141 of the NI
Act was issued on 21.03.2017 while the commencement of
Corporate Insolvency Resolution Process17 under Section 14
of the IBC came to be enforced on 06.06.2017. It was a case
where the cheques had got dishonoured and even demand
notices were issued prior to the moratorium kicking in. In
other words, if the statutory demand notice is issued before
the moratorium sets in or winding up proceedings are
initiated and cognizance of the offence is taken subsequent
to the moratorium or winding up proceedings kicking in, the
prosecution against the corporate debtor and its directors
cannot be allowed to be continued. Incidentally, the same
view had been taken in the decisions of ML
Gupta (supra); Ratan Lal Garera (supra); and Vijay Steel
Tubes & Fittings (supra) decided by this Court……”
37. From the aforesaid cases, it emerges that if upon presentation of the
cheque, the legal notice is issued after the initiation of winding-up proceedings,
then, since making the payment is beyond the control of the accused, no offence is
made out. Moreover, in cases where the main accused is the company and the
offence is not proved against it, the same cannot be made out against its directors.
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DLST020239332017
38. In the facts of the present matter, appointment of the provisional
liquidator by Hon’ble High Court of Delhi in CO./PET. 357/2015 dated 08.02.2016
is not in dispute. Cheques in question are of dated 15.07.2017 and 15.08.2017.
Same were dishonored vide returning memos dated 14.09.2017. Legal demand
notice was sent to the accused persons on 23.09.2017. Thus, it is evident that the
cause of action arose subsequent to the initiation of the winding-up proceedings.
Furthermore, even the dates of the cheques in question are subsequent to the
commencement of such proceedings. Therefore, in light of the above cited cases
after appointment of the provisional liquidator, making of payment to the
complainant was no longer within the control of the accused company.
39. Further, it is also pertinent to mention that in said petition vide order
dated 08.02.2016, Hon’ble High Court of Delhi also injuncted company and its
directors, agents and servants to create any third-party interest in its assets.
Therefore, it is necessary to reproduce relevant portion of said order of Hon’ble
High Court of Delhi whereby winding up proceeding was initiated against the
accused company:
“……………………………………………………………
3.1 Accordingly, CP 357/2015 is admitted.
3.2 The Official Liquidator (OL) attached to this court is
appointed as the Provisional Liquidator. The learned counsel
for the petitioners will supply a complete copy of the paper
book to the OL. Consequently, the following applications filed
for the purpose of appointment of the provisional liquidator
are disposed of : CA 1550/2015 in CP 357/2015; CA
1563/2015 in CP 362/2015; CA 1566/2015 in CP 363/2015;
CC No. 12632/17 (Nitin Shah)
Vinnu Goel vs. Assotech Ltd. Page no 21 of 24 JMFC-05 (NI Act)/South
DLST020239332017
CA 1801/2015 in CP 433/2015; and CA 1804/2015 in CP
434/2015.
3.3 Citations shall be published by the petitioners in the
Business Standard [(in English), Delhi Edition], the Jansatta
[(in Hindi), Delhi Edition] and the Official Gazette, as well.
3.4 The respondent company and its Directors, agents and
servants are injuncted from transferring, selling or creating
any third party interest in its assets.
3.5 The OL will seal the premises in which the assets, books
of accounts, documents and other records of the respondent
company are stored after preparing an inventory in that
behalf.
3.6 The Directors will file the statement of affairs of the
respondent company within 21 days from today. The
Directors will also appear
before the OL, on 01.03.2016, at 11.00 a.m. for recording of
their statement under Rule 130 of the Companies (Court)
Rules, 1959.
3.7 The OL will also have the assets of the respondent
company valued and, accordingly, place the valuation report
so generated, before this court.
3.8 The Directors of the respondent company will also file an
affidavit with the OL, setting out the details and the location
of the assets, which would include the immovable and
movable properties, details of the debtors and creditors, as
also the location of all the offices and /or place of business of
the respondent company.
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DLST020239332017
3.9 In case police assistance is required, the same shall be
extended by the Station House Officer (SHO) of the concerned
area on a
request being made by the OL in that behalf.
……………………………………………..”
40. That apart, it has also been argued on behalf of the complainant that
even after appointment of the provisional liquidator, the accused no. 2 had acted on
behalf of the company. For this purpose, reference may be had to the cross-
examination of the accused no.2 dated 16.01.2025 wherein it was deposed, “I have
not settled any claim of any investor on my own. However, after 11.02.2019 the
Hon’ble High Court of Delhi had appointed a Court Commissioner to supervise the
projects of the company, and I was directed to complete the pending work of the
accused no.1 company under the supervision of the court commissioner and during
the said exercise some claims may have been settled.”
41. Hence, in the light of discussion and the authorities cited in the
aforegoing para(s), it is apparent that the case of the complainant fails in view of
disability of accused persons to pay cheques amount on account of initiation of
winding-up proceedings. Consequently, it can be said that the accused persons have
been able to raise the probable defence. Thereafter, onus is again shifted to the
complainant to prove the case beyond reasonable doubt which the complainant has
failed to do so.
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DLST020239332017
CONCLUSION:
42. In the result of the analysis of the present case, the accused no. 1
company M/s Assotech Ltd. and Sanjeev Srivastava, accused no. 2 are hereby
acquitted of the offence punishable under Section 138, Negotiable Instruments
Act, 1881.
43. This judgment contains 24 pages. This judgment has been signed and
pronounced by the undersigned in open court.
44. Copy of this Judgment be given dasti free of cost as per rules.
Digitally
signed by
NITIN NITIN SHAH
Date:
SHAH 2025.08.11
16:07:18
+0530
Announced in the open Court (NITIN SHAH)
on 11.08.2025 JMFC-05 (NI ACT) SOUTH/SAKET
NEW DELHI
CC No. 12632/17 (Nitin Shah)
Vinnu Goel vs. Assotech Ltd. Page no 24 of 24 JMFC-05 (NI Act)/South