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2018 Supreme(Del) 2079
IN THE HIGH COURT OF DELHI AT NEW DELHI
MUKTA GUPTA, J.
Sharda CAPSEC Ltd. – Appellant
Versus
State of NCT of Delhi and Others – Respondents
CRL. A. No. 442 of 2017
Decided On : 05-09-2018
For the Appellant : Mr. Ravinder Singh.
For the Respondents: Ms. Meenakshi Chauhan, Mr. Satender Kumar Garg.
The liability of the accused on the date of the cheque alone is material for criminal liability under Section 138 of the NI Act.
Headnote:
NI Act - Negotiable Instruments - Section 138 - 138 NI Act
Fact of the Case:
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act against respondent No. 2, a company, for dishonor of a cheque issued as repayment of a loan and buy back agreement.
Finding of the Court:
The Trial Court found that the appellant failed to prove the legal liability of the respondent No. 2 and that the buyback agreement required the appellant to sell shares if their value exceeded a certain amount, which was not done. The court also noted discrepancies in the amount claimed and the actual calculation.
Issues: The extent of liability of the accused, authorization of the signatory, validity of the defense, and dishonor of the cheque.
Ratio Decidendi: The liability of the accused on the date of the cheque alone is material for criminal liability under Section 138 of the NI Act. The court will not interfere in an appeal against acquittal unless the finding is perverse, based on no evidence, or contrary to the evidence on record.
Final Decision: The appeal was dismissed as the Trial Court's finding was not considered to be perverse or contrary to the evidence on record.
MUKTA GUPTA, J.
1. During the course of trial the petitioner as complainant impleaded four accused being respondent Nos. 2 to 5 herein. Respondent Nos. 3 to 5 could not be arrested and were declared proclaimed offender and thus the trial proceeded only against respondent No. 2, a company incorporated under the Indian Companies Act. Respondent No. 2 contested the complaint through its authorized representative.
2. Case of the appellant in the complaint filed under Section 138 Negotiable Instruments (in short ‘NI Act’) before the learned Metropolitan Magistrate was that the appellant and respondent No. 2 both are the companies registered under the Companies Act. Respondent No. 2 through its Director Prem Chand Gupta approached the appellant company and took a financial loan of Rs. 10.03 lakhs and a buy back agreement to this effect was executed between the parties on 1st October, 1996 which was executed before the learned Trial Court as Ex. CW-1/3. Since the respondent No. 2 company failed to honour the said buy back agreement and did not buy back the shares @ 12.50 on 15th October, 1997 as agreed, the appellant sent oral/written reminders vide letters dated 15th October, 1997, 29th January, 1998 and 29th April, 1998 and registered letters dated 27th May, 1998 and 15th July, 1998 duly exhibited before the learned Trial Court but no reply was received from the respondent No. 2. Prem Chand Gupta met Chairman-cum-Managing Director of the appellant company CW-1 and reconciled the statement of account and agreed to repay the loan amount along with the quarterly compound interest @ 3% and issued a cheque number 486831 dated 21st December, 1998 for an amount of Rs. 17,02,015/- drawn on State Bank of India, Uttar Pradesh towards discharge of his liability and took back all the shares lying with the appellant. The said cheque was issued by Prem Chand Gupta on behalf of respondent No. 2 herein and was exhibited as Ex.CW-1/9 before the learned Trial Court. On presentation during the validity period the cheque was returned unpaid with the remarks “Refer To Drawer”. Statutory demand notice was sent which was received by the respondent No. 2 and its Director who sent the reply and raised false and frivolous pleas. The legal notice and the reply thereto were exhibited as Ex. CW-1/13 and CW-1/15 respectively.
3. The plea taken by the respondent Nos. 2 in the reply dated 12th February, 1999 was that though a buy back agreement was entered into however, a blank signed cheque was procured by the appellant in connivance with one of its staff members and there was no legally enforceable liability against the respondent no. 1 and in favour of the appellant. The case of the respondent No. 2 is that there is no provision for interest in the buyback agreement Ex. CW-1/3 much less of 3% compound interest per annum. No request was made to respondent No. 2 to buy back the shares and repay the amount in terms of the buyback agreement along with the 3% quarterly compound interest. Cheque amount in dispute was Rs. 17,02,015/- as against the alleged liability of Rs. 10,03,000/- even as per the complainant which is highly improbable. It is the case of the respondent No. 2 that the defence taken was more probable and trustworthy. Further the appellant failed to prove the legal liability of Rs. 17,02,015/-. There is no admission of DW-1 that the cheque in question was signed by accused No. 2. Thus the impugned judgment suffers from no illegality.
4. The learned Trial Court considering the evidence on record framed four questions for consideration as under:
“(i) The extent of liability of the accused on the date of cheque in question.
(ii) Whether the signatory/accused was authorized person to enter into loan agreement with the complainant and issue the cheque on behalf of accused company.
(iii) Whether the defence of the accused of other particulars of the cheque in question, except his signatures, being filled by some one else is a valid defence in the eyes o
