The accused have the right to a fair trial to prove their defense and rebut the presumption under Section 139 of the NI Act.

JUDGMENT :

DEEPAK GUPTA, J.

1. This order shall dispose of two connected petitions as above, involving same parties.

CRM-M-8842-2020

2.1 Perusal of the paper book reveals that Smt. Kamal Mann (respondent herein) had filed complaint against accused-M/s Perfact Colour Digital Prints Pvt. Ltd. and Others (petitioners herein), seeking their prosecution under Section 138 of the Negotiable Instruments Act (for short ‘the NI Act’). It was alleged in the complaint that premises of the complainant (respondent) as mentioned in Para-1 of the complaint were taken on lease, for a period of nine years, by the accused vide lease deed dated 14.10.2009 @ Rs. 1,70,012/- per month, calculated at the rate of Rs. 17.50 per sq. ft. Rent was liable to be enhanced by 6% after every year during the first six years of the lease and, thereafter, @ 10% in the amount of rent after every year i.e. 7th, 8th and 9th year of the lease. Accused had agreed to pay the amount of rent on or before 7th of each calendar month in advance and in case of default, complainant was entitled to charge interest @ 18% per annum for the delayed period. Accused had also agreed to pay requisite service tax payable. Amount of TDS was agreed to be deducted from the rent amount and said TDS was to be deposited by the accused with Income Tax Department and necessary TDS certificate was agreed to be given by the accused to the complainant. Subsequently, complainant had availed loan facility from HDFC Bank. A tri-partite agreement was executed between the accused, the bank and the complainant, whereby accused agreed to issue cheques in respect of the rent amount payable in favour of Escrow account of the complainant with the afore-said bank regularly, which was to be adjusted by the Bank against loan amount availed by the complainant.

2.2 It was further alleged in the complaint that accused paid amount of rent and also issued requisite TDS certificates for some time but then started committing defaults in the payment. He also failed to deposit the amount of TDS deducted from the amount of rent payable and to furnish the requisite TDS certificate to the complainant. As on 20.03.2016, an amount of Rs. 35,42,372/- towards arrears of rent, an amount of Rs. 4,83,536/- as arrears of service tax, an amount of Rs. 8,78,530/- as interest payable by the accused on the arrears of rent for the delayed period and an amount of Rs. 76,589/- as interest on the arrears of service tax became payable by the accused to the complainant. Despite various requests made by the complainant to the accused and other Directors to pay the due amount, they were postponing the matter on one or the other pretext.

2.3 It was alleged further that on 07.04.2016, accused Nos. 2 and 3 being the authorised signatories/Directors of accused No. 1 - company, issued a cheque bearing No. 712251 dated 07.04.2016 drawn on Sector 10A, Khandsa, Gurgaon (Haryana) branch of Oriental Bank of Commerce, for an amount of Rs. 2,19,701/- favouring the complainant for adjustment of the amount of the cheque against the amount payable, assuring that cheque shall be encashed on presentation; and that balance outstanding amount shall be paid shortly. However, on presentation, the cheque was returned back unpaid with remarks “Insufficient Funds” vide Memo dated 04.05.2016. On the assurance given by the accused, cheque was presented twice again but both the times, it was returned unpaid with remarks “Funds Insufficient” vide Memos dated 18.05.2016 and 28.06.2016, compelling the complainant to issue a legal notice dated 25.07.2016, demanding the cheque amount to be paid within 15 days of the receipt of the notice. However, despite notice, accused failed to make the payment and so, the present complaint (Annexure P.6) was filed.

3. As it appears from the paper book, during trial, the complainant in order to support her case, relied on rent invoices Ex.C17 to Ex.C65, copies of which have been placed on record of the paper book as Annexure P-7 (colly). The