[ENTITY] vs. FTI Software CC. No. 3293/12 IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE-05 (NI ACT), DWARKA COURTS, DELHI CC No. 3293/12 (Old CC No. 4763/1/09) ID No. 02405R0531842009 [ENTITY] s/o Sh. Daya Shankar Verma, R/o H. No. R2F-271, Street No. 20, Sadh Nagar, Palam Colony, New Delhi-110045. Complainant Vs. 1. FTI Software Pvt. Ltd. 1101-A, G. D.-ITL Tower, Plot No. B-08, Netaji Subhash Place, Pitam Pura, Delhi-110034. 2. Ms. [ENTITY], d/o Sh. R. K. Malhotra r/o Flat no. 57-C, Jhung Apartment, Sector-13, Rohini, Delhi-110085. Also At FTI Software Solutions Pvt. Ltd. 1101-A, G. D.-ITL Tower, Plot No. B-08, Netaji Subhash Place, Pitam Pura, Delhi-110034. Accused Persons Date of Institution : 26.08.2009 Offence Complained of : u/[SECTION] [ACT] Plea of Accused : Not Guilty Date of Reserving order : 08.08.2013 Date of Decision : 22.08.2013 Decision : Convicted JUDGMENT
1. The present complaint has been filed by the complainant stating that accused no. 2 is the Managing Director of accused [ENTITY] vs. FTI Software CC. No. 3293/12 no. 1 and father of accused no. 2 is working with the father of the complainant and both had good terms. Complainant states that accused no.2 through her father approached the complainant through his father to borrow a loan of Rs. 9,00,000/- in June, 2007. It is submitted that accused no. 2 requested for the said loan amount for short period.
2. It is submitted that complainant provided the said loan amount to accused no. 2 in the month of June, 2007 and accused no. 2 and her father executed two receipts in favour of complainant for a sum of Rs. 4,00,000/- and 5,00,000/- after receiving said loan amount. Complainant states that accused no. 2 obtained said loan amount for a short period and the same was to be returned in September, 2007. It is stated that accused no. 2 requested for some more time in September, 2007 and promised to repay the said loan amount in December, 2007 but accused no. 2 failed to keep up her words.
3. It is submitted that after repeated visits and demand of the complainant, accused no. 2 issued two post dated cheques in favour of the complainant i.e. cheque bearing no. 563632 dated 05.03.2009 for a sum of Rs. 5,00,000/- and 563633 dated 02.04.2009 for a sum of Rs. 4,00,000/- both drawn on ICICI Bank, Vikas Puri, Delhi (hereinafter referred to as 'cheques in question') to repay the said loan amount. The cheques were presented for encashment, however, the same were returned unpaid vide return memo dated 09.06.2009 due [ENTITY] vs. FTI Software CC. No. 3293/12 to insufficient funds.
4. Complainant submits that a legal notice dated 08.07.2009 was also served upon the accused, however, despite service of the legal notice, the accused has not made the payment of the cheques in question to the complainant till date.
5. Feeling aggrieved from the conduct of the accused, complainant has filed the present complaint praying that accused be summoned, tried and punished in accordance with [SECTION] of [ACT].
6. Pre-summoning evidence was led by the complainant on 29.09.2009. Prima facie case was made out against the accused and she was summoned vide order of the same date.
7. Accused entered appearance on 03.12.2009 through her counsel and notice was framed upon her on 10.03.2011 to which the accused pleaded not guilty and claimed trial. Plea of defence of the accused was recorded.
8. In post summoning complainant's evidence, complainant examined himself as CW1 and adopted his pre-summoning evidence by way of affidavit Ex. CW1/A. CW1 also relied upon the documents Ex. CW1/1 to Ex. CW1/14. Ex. CW1/1 and Ex. CW1/2 are the receipts, Ex. CW1/3 and Ex. CW1/4 are the cheques in question, Ex. CW1/5 and Ex. CW1/6 are the returning memo, Ex. CW1/7 is the copy of notice dated [ENTITY] vs. FTI Software CC. No. 3293/12 08.07.2009, Ex. CW1/8 to Ex. CW1/11 are the postal receipts dated 08.07.2009, Ex. CW1/12 to Ex. CW1/14 are the unserved postal cover of registered AD. During cross- examination, CW1 was confronted with document Ex. CW1/AX1 i.e. the agreement deed dated 18.07.2007, copy of e-mails Mark-A to E, CD Mark-F, certified copy of affidavit filed in the civil suit between the parties i.e. Ex. CW1/X and certified copy of deposition of complainant recorded therein i.e. Ex. CW1/Y.
9. Statement of accused under [SECTION] [ACT] was recorded on 08.09.2011.
10. In Defence evidence, accused examined herself on Oath under [SECTION] [ACT] as DW1. In her examination, DW1 deposed that she is the Director of the accused no. 1 and she started this company in February, 2007 at District Centre, Janakpuri. DW1 deposed that her father and father of the complainant work in the same office so she knew the complainant through her father. DW1 stated that the complainant along with his father and brother, came to her office for the recruitment and training of the complainant and since the complainant was known to her through her father, therefore, DW1 recruited complainant in her company as Business Development Executive in the month of June, 2007. DW1 stated that the main work assigned to the complainant in her office was to arrange for the projects for the company with her help and supervision. DW1 deposed that in the [ENTITY] vs. FTI Software CC. No. 3293/12 meanwhile, the complainant approached and showed his desire through his father that he was willing to invest in incorporating a call center. DW1 states that initially she refused but lateron she, her father and the father of the complainant along with the complainant decided to start and incorporate the call center as the subsidiary of FTI Softwares Solutions Pvt. Ltd. in the name of FTI BPO Services and for this purpose, the father of the complainant got an agreement made stating that the company which was going to be incorporated shall be a partnership firm in between accused and the complainant.
11. DW1 further deposed that since the existing office of FTI Softwares Solutions Ltd. was a small office, so they opened a new office on rent at Vikas Puri for this newly incorporated company which was not registered. DW1 states that as per the agreement, the sharing of the profit or loss in the said company was agreed to a percentage of 80% and 20%. and initially they had invested a sum of Rs. 5 lac in this company (call center). DW1 deposed that it was a recession time and they were not receiving payments from her clients and she was alone managing the IT company and the BPO without the help of the complainant. DW1 stated that prior to February, 2009, the companies had been closed and thereafter, the complainant along with his father and two-three people came to her office in February, 2009 and they asked for money from her. DW1 deposed that earlier also, complainant had [ENTITY] vs. FTI Software CC. No. 3293/12 demanded money from her on several occasions. DW1 stated that her father was on bed rest due to tuberculosis and when the complainant and other persons came to her office, they humiliated her and asked for money and cheques.
12. DW1 further deposed that some arrangement was arrived at between her father and the father of the complainant and her father asked the father of the complainant to take certain cheque and not to harass her. DW1 states that she gave two blank cheques to the complainant with the assurance from the complainant that they would talk about the matter in detail. DW1 states that the cheques were not given for the purpose of encashment and in between, a sum of Rs. 2,50,000/- was also given to the complainant on different dates on the request of the complainant since there was wedding of the brother of the complainant. DW1 deposed that thereafter, complainant brought a notice to her office on 30.11.2009 which was accepted by her and she appeared before the Court in December, 2009.
13. DW1 deposed that the cheques in question were given to the complainant under pressure since he was not leaving her office and was shouting at her before the entire staff. DW1 deposed that she does not owe any liability towards the complainant. During cross-examination, DW1 brought on record, five e-mails i.e. Ex. DW1/X, resignation letter of an employee of FTI BPO services i.e. Ex. DW1/Y, Attendance and salary register i.e. Ex. DW1/Z, e-mails which show the [ENTITY] vs. FTI Software CC. No. 3293/12 existence of FTI BPO services i.e. Ex. DW1/ZA and she was confronted with certified copy of affidavit filed in a civil suit between the parties along with cross-examination recorded in the said case i.e. Ex. DW1/ZB.
14. Final arguments were advanced at length by Sh. S. D. Vashisht, Ld. counsel for complainant and Sh. [ENTITY], Ld. Counsel for accused.
15. I have considered the submissions and perused the record carefully.
16. [SECTION] of [ACT] has been enacted to lend credibility to the financial transactions. The main ingredients of the offence under [SECTION] [ACT] are:
(I) Drawing up of a cheque by the accused towards payment of an amount of money for the discharge in whole or in part of any debt or any other liability (II) Return of the cheque by the bank as unpaid. (III) The drawer of the cheque fails to make the payment of the said amount of money within 15 days of the receipt of notice under [SECTION].
17. Apart from this, [SECTION] [ACT] lays down a presumption in favour of the holder of cheque in following terms, "It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the [ENTITY] vs. FTI Software CC. No. 3293/12 nature referred to in [SECTION], for the discharge, in whole or in part, of any debt or other liability".
18. Thus, in cheque dishonor cases, what the courts have to consider is as to whether the ingredients of the offence enumerated in [SECTION] of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by [SECTION] of the Act.
19. In the present case, complainant has placed on record receipts Ex. CW1/1 and Ex. CW1/2, cheques Ex. CW1/3 and Ex. CW1/4, return memos Ex. CW1/5 and Ex. CW1/6, legal notice Ex. CW1/7 and postal proofs Ex. CW1/8 to Ex. CW1/14 to prove his case against the accused. The receipts Ex. CW1/1 and Ex. CW1/2 signed by the accused clearly states that she has taken a loan of Rs. 5 lac and Rs. 4 lac respectively from the complainant. Accused in her cross- examination recorded on 05.07.2013, admits that the receipts Ex. CW1/1 and Ex. CW1/2 bears her signatures. In her entire deposition, accused has failed to challenge the contents of receipts Ex. CW1/1 and Ex. CW1/2 thereby leading to the inference that accused admits the contents thereof. In her statement under [SECTION] [ACT] as well, accused admits that an amount of Rs. 9 lac was invested by the father of the complainant in her company by the name of FTI Software Solutions. Thus whether the accused calls the sum of Rs. 9 lac as investment or whether the complainant calls the same as a loan, the fact remains that an amount of Rs. 9 lac was [ENTITY] vs. FTI Software CC. No. 3293/12 received by the accused from the complainant or his father for her business.
20. Accused has raised a plea about a call center to be opened for the benefit of the complainant at his behest for the purpose of which the amount of Rs. 9 lac was taken. Accused has placed on record several documents to show that complainant was connected with FTI BPO services. However, the said documents do not aid the defence of the accused. The e-mails which have been filed by the accused on record i.e. Ex. DW1/ZA are without any certificate under [SECTION] [ACT] and thus are inadmissible. The document Ex. DW1/Z nowhere states the name of FTI BPO Services and thus the said document also fails to support the case of the accused. Accused states in her cross-examination recorded on 05.07.2013 that she cannot produce any resignation of any employee of FTI BPO services addressed to the complainant since he was never active in the working of FTI BPO services. Ex. CW1/AX1 is the copy of agreement made between the parties for setting up of FTI BPO services but the said document nowhere proves that the FTI BPO services has been actually set up and the same was functional. Thus, there is no cogent evidence on record which can show that the said call center by the name of FTI BPO services was being operated by the complainant alone or for his own benefit.
21. Now so far as the cheques are concerned, accused admits that the cheques in question bear her signatures and [ENTITY] vs. FTI Software CC. No. 3293/12 she had given the same to the complainant. In her reply to the notice framed on 10.03.2011, accused states that the cheques in question were given as security cheque for running of a call center. However, in her testimony, accused states that complainant had forcefully taken the cheques from her in the month of February, 2009 and she had issued the same under pressure. Thus accused has taken diagonally opposite stands at the same time which impinges upon the veracity of the defence of the accused.
22. If the first stand of the accused is considered, it is seen that accused has not placed on record any evidence whatsoever to show that the cheques in question were issued as security cheques and if the second stand of the accused is considered, it is seen that accused has not filed any complaint against the complainant for wrongfully taking cheques from her. Accused states that she was threatened by the complainant not to take any steps and thus she has refrained from filing any complaint against the complainant. Even if the accused was so threatened by the complainant as alleged by her, there is no reason as to why the accused could not issue instructions to her bank to stop the payment of the cheques given by her to the complainant. The cheques are dated 05.03.2009 and 02.04.2009 and were presented on 09.06.2009, thus there was sufficient time available with the accused to take steps against the complainant or to issue instructions to her bank to stop the payment of the cheques in [ENTITY] vs. FTI Software CC. No. 3293/12 question. However, accused has failed to take any such steps for the reasons best known to her and such state of affairs calls for an adverse inference to be drawn against accused.
23. Further accused has placed on record a CD Mark-F along with its transcript (the envelop containing CD Mark-F bearing seal 'SA' was opened while perusing the record and sealed back with the seal of the Court) to prove that they have made a payment of Rs. 2.5 lac to the complainant. However, the CD Mark-F is not accompanied with any certificate under [SECTION] B [ACT] and thus is inadmissible. Even otherwise, as can be seen from transcript, the conversation is replete with the admissions made by father of the accused of his liability towards the father of the complainant and there is no specific amount stated which was taken by the father of the accused from the father of the complainant out of which a sum of Rs. 2.5 lac was paid. Thus, it is not possible to relate the conversation recorded in the CD Mark-F with the present case and as such the CD Mark- F fails to support the case of the accused.
24. Ld. counsel for accused has raised various arguments with regard to the loan transaction such as contradictions qua the place where the loan was disbursed, the person in whose presence the loan was disbursed and so forth. However, once accused admits that a sum of Rs. 9 lac was invested by the complainant in her company, the complainant would not be required to prove the exact details of the entire transaction. In [ENTITY] vs. FTI Software CC. No. 3293/12 the case of [PRECEDENT], it was held that for establishing requirements in [SECTION], there is no burden on the part of the complainant to prove before the Court the entire details of the transaction resulting in issuance of cheque.
25. Thus in view of the entire observations made above, it is held that complainant has been able to prove that the cheques in question were issued by the accused towards discharge of her liability and accused has failed to rebut the case of the complainant or the presumptions in his favour.
26. So far as the second ingredient is concerned, accused has not raised any dispute qua the dishonour of the cheques. Even otherwise, the cheque return memos dated 09.06.2009 are sufficient to prove the dishonour of the cheques due to insufficient funds and thus the second ingredient is taken to be established on record by the complainant.
27. Coming to the third aspect, accused has denied that she has received the legal notice. However, accused admits that she has been served with the process of the Court pursuant to which she appeared before the Court. Thus the decision of Hon'ble Supreme Court in [PRECEDENT] would be applicable wherein Hon'ble Apex Court has held that even if the accused didn't receive the legal demand notice he/ she can pay the cheque amount within 15 days of service of summons [ENTITY] vs. FTI Software CC. No. 3293/12 from the court but if he/ she fails, he/ she can't contend that he/ she has not received the legal demand notice.
28. Thus in view of the observations made above, it is held that the ingredients of offence under [SECTION] [ACT] have been proved against the accused and the accused has failed to rebut the presumption contained in [SECTION] of the Act. Accused is convicted accordingly of the offence punishable under [SECTION] [ACT].
Announced in Open Court 22.08.2013 ([ENTITY]) METROPOLITAN MAGISTRATE-05 NEGOTIABLE INSTRUMENTS ACT DWARKA COURTS, NEW DELHI 22.08.2013