IN THE COURT OF MS [ENTITY]: MM-03 (NI ACT) PHC: NEW DELHI Judgment In the matter of: - CC No.: 7180-19 ANKUR GROVER Complainant S/o Rakesh Kumar Grover R/O 2101, Mohinder Apartments, Plot No.17, Sector 12, Dwarka, New Delhi-110078 Vs. M/S TECHNOBRAVE TECH SUPPORT INDIA PVT. LTD. Accused no.1 A-3/215-216, Sector 5, Rohini New Delhi 110085 ABHAY KUMAR SHARMA Director, [ENTITY] Tech Support India Ltd Accused no.2 A-3/215-216, Sector 5, Rohini New Delhi 110085 ANIL KUMAR SHARMA Director, [ENTITY] Tech Support India Ltd Accused no.3 A-3/215-216, Sector 5, Rohini New Delhi 110085 Date of Institution of Complaint 19.02.2018 Offence Complained of u/s 138 N.I. Act Plea of Accused Not Guilty Date of Final Arguments Heard 27.11.2019 Decision Accused no.1 - Acquittal Accused no. 2 - Acquittal Accused no.3 - Dropped Date of Decision 02.12.2019 [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 1 of 21 BRIEF REASONS FOR THE DECISION OF THE CASE 1. Brief facts as alleged by the complainant are that accused no. 2 is his childhood friend and both have enjoyed good friendly relations ever since. In the month of March 2017, accused no. 2 [ENTITY] approached the complainant with the request to lend Rs.30 Lakhs to clear the debts and liabilities of the accused no.1 Company, of which he is a director. As per the request of the accused, the complainant started transferring funds from 22.03.2017 onwards and a total amount of Rs.23,36,000/- was lent to the accused through electronic transfer, cash payment, PayTM etc in the account of the accused company and its associates and vendors as per the instructions of accused no.2. The complainant even borrowed loan from bank of Rs.12 Lakhs to arrange for the above said funds. The accused to repay his liability, firstly issued two cheques bearing no. 00023 and 00024 dated 26.06.2017 both drawn on Laxmi Vilas Bank for Rs.5,00,000/- each. However, the same were returned unpaid vide returned memo dated 28.06.2017. At request and assurance of accused no.2, the complainant refrained from initiating any legal action. However, thereafter to settle the terms of transaction thereon, a promissory note dated 06.07.2017 (Mark CW1/2) was executed between the complainant and accused no.2 [ENTITY] whereby the accused undertook to repay the complainant the entire principle amount of Rs. 23,36,000/- in two installments i.e. Rs 15,00,000/- by 25.07.2017 and Rs 8,36,000/- by 15.09.2017 and any unpaid principle thereon to be paid at an interest of 24% per annum. 2. Accused no. 2 handed over to the complainant, five cheques of Rs. 5,00,000/- each [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 2 of 21 drawn on account of the accused company for the purpose of security. Three of these cheques are the subject matter of the present complaint which on presentation, were returned dishonored on account of "Funds Insufficient". Details of these cheques are as follows: Cheque Cheque Amount Dishonor Reason of Drawn on No. Date (Rs) Date Dishonor ICICI 026945 01.12.2017 5,00,000/- 05.12.2017 Funds Insufficient Bank ICICI 026946 20.11.2017 5,00,000/- 05.12.2017 Funds Insufficient Bank 3. Thereafter, the complainant sent a legal demand notice dated 26.12.2017 demanding the amount due. However, despite service of the legal demand notice, the accused did not repay within 15 days of the stipulated period. Therefore, the present complaint under [SECTION] of the [ACT]hereinafter called "the act"). 4. After perusal of material on record, prima facie case was made out and cognizance was taken by the court vide order dated 19.04.2018. Accused persons appeared on summons and secured bail. An application for discharge was moved by accused no.3 [ENTITY] on the ground that though he is a director of the accused company upon whose account the impugned cheques are drawn, no specific allegations were made against him in the complaint. The application was allowed and he was discharged of the offence under [SECTION] [ACT] vide order dated 01.12.2018. 5. Notice u/[SECTION] [ACT] was framed upon accused no.1 through its director [ENTITY] and accused no.2 in person on 17.11.2018. In the plea of defence, it was submitted that though the impugned cheques were issued against due liability, the same were presented by the accused before the agreed time of July 2018, without [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 3 of 21 his authorization or any prior intimation. Further he also submitted that complainant has presented the cheque for an incorrect amount and his liability is Rs. 4-5 lacs less than the amount of the impugned cheques. 6. Accused cross examined the complainant as CW1. Further the complainant also examined one Sh. [ENTITY] as CW2 to prove the execution of the promissory note dated 06.07.2017 (Mark CW1/2) between the complainant and accused no.2. Thereafter, CE was closed vide order dated 08.07.2019. 7. All incriminating evidence was put to the accused and statement under [SECTION] read with [SECTION] was recorded wherein accused no.2 denied the claim of the complainant and submitted that the complainant had made an investment in his company M/S [ENTITY] Tech Support India Pvt Ltd. on profit sharing basis. Further the impugned cheques were issued for security purpose only which have been misused by the complainant. 8. In defence, only accused no.2 examined himself as a witness DW1, wherein he reiterated that the complainant had invested in his company on profit sharing basis and it was agreed between them that in case of losses no one will have any claim against each other. Further he submitted that the it was agreed between the parties that the accounts will be reconciled at the end of the financial year i.e. after March 2018 and only then payments will be made. However, the complainant presented his security cheques before such time without any intimation. With respect to the promissory note relied upon by the complainant (Mark CW1/2), the accused deposed that the complainant made him sign the same on the pretext that it was only a formality required for accounting purposes and the same would not have any consequence. Since the accused shared long friendly relations with the [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 4 of 21 complainant, he signed them without even reading its contents. Further he disputed the presence of any witness at the time of execution of such document. No other witnesses were sought to be examined by accused and therefore Defence Evidence was closed vide order dated 12.09.2019. 9. Thereafter, final arguments were advanced on behalf of both parties. Ld. counsel for accused submitted that the accused has successfully rebutted the presumption against him under [SECTION] [ACT] and it is clear from the evidence on record that the impugned cheques were given as security against the investment made by the complainant in the accused company which was to be returned as and when profits were made, after the reconciliation of accounts. Ld. counsel submits that certain payments were also made by the accused to the complainant as return on such investment as reflected at entry shown at points A, B, C, D and F in statement of account Ex.CW1/X1/D and at points A and B and F in Ex.CW1/X/B. Further, Ld. counsel contends that promissory note relied upon by the complainant (Mark CW1/2) though signed by the accused was signed by him in good faith without reading its contents on the assurance of the complainant that same was only a formality and therefore cannot be held to be binding being non est factum. 10. Ld. counsel for accused also points out that in his cross examination as CW-1, the complainant has deposed to have availed loans from banks, friends and family to fund the transaction. It is his contention that it is highly unlikely that any person would avail loan from a third party to further extend such loan. Again, the money was lent by the complainant not as a lump sum amount but in installments of varying amounts and many of these transactions were made directly into the account of the vendors of the accused company. Further no money was transferred into the personal account of accused no. 2 [ENTITY] and therefore it is [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 5 of 21 evident that the complainant had transferred money to the accused not as a lender but as an investor. Further Ld. counsel submits that the complainant has not placed on record any ITR or written loan agreement etc. to prove the present transaction and therefore has not proved his case beyond reasonable doubt as laid by the Honorable Supreme Court in the judgement of case titled as [PRECEDENT], [PRECEDENT]. 11. Per contra Ld. counsel for complainant has submitted that the accused has presented a false defence and a concocted story. The accused approached the complainant only as a friend but not as a director of the complainant company, seeking assistance to clear the debts of his company Techno Brave Tech Support India Ltd. Prior to the impugned cheques, accused no. 2 had earlier also issued two cheques bearing no. 00023 & 00024 drawn on Laxmi Villa Bank drawn upon his personal account to discharge his liability. However, those two cheques as well were returned unpaid upon presentation and only after that the promissory note (Mark CW1/2) was executed. Therefore, it is submitted that the intention of accused no.2 from the very beginning was to defraud the complainant. Further with respect to the contention that the accused signed the promissory note (Mark CW1/2) without reading its contents, Ld counsel submits that accused no. 2 [ENTITY] is well educated, in fact he holds a degree of masters in management and therefore he can be expected to be well acquainted of the consequences of signing a document. Thus, it cannot be accepted to be true that he signed the document without reading it. In fact, it is extremely implausible for any prudent man to sign a document on all its pages without reading its contents. Further the document has also been duly notarized and therefore it is clear that the accused is deliberately presenting a false account of affairs in this court. Contrary [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 6 of 21 to the submissions of Ld. counsel for accused, Ld. counsel for complainant submits that the accused has taken Rs. 20,000/- through PayTM in his personal account on 06.04.2017 as part of the present transaction. 12. In respect of the contention that the ITR or written document of the transaction has not been placed on record, Ld. counsel for complainant submits that the transaction and the ability to fund such transaction has never been disputed by the accused. The only disputed fact as per the accused is the nature of transaction. The accused has well admitted that he has availed financial facility from the complainant. The cheques have been presented only for the amount due after the adjusting payments received against the total principal amount only. In fact, the complainant has not even made a claim for 24% interest as agreed between the parties in the promissory note Mark CW1/2. 13. Ld counsel for accused in rebuttal submitted that the previously issued cheques by accused no. 2 from his personal account maintained in Lakshmi Vilas Bank, as mentioned by Ld. counsel are not the subject matter of the present complaint and therefore have no relevance. Further the complainant never took any legal action with respect to those cheques and therefore it cannot be said to have any material consequence in the present case. With respect to the promissory note relied upon by the complainant. Ld. counsel submits that there was no witness to the said document nor the same was ever notarized in the presence of accused no. 2. Even otherwise the terms of the promissory note were not acted upon as per its terms and the cheques were presented after the agreed date on the promissory note and therefore it cannot be held to be binding. 14. During the consideration of the file, this court observed that the present complaint [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 7 of 21 had been filed beyond the stipulated period of limitation and an application for condonation of delay of 10 days filled with the complaint remained undecided till date. Accordingly, an opportunity was granted to both parties to advance arguments in this regard. 15. Ld. counsel for the complainant while submitting that the delay so caused in filing the complaint was neither intentional or deliberate cited his own medical condition for such delay. It is submitted that the counsel had undergone a renal surgery at Apollo Hospital on 19.01.2018 and thereafter he was advised bed rest and therefore due to the non-availability of the counsel the complainant could not pursue his legal rights. 16. Per contra. Ld. Counsel for accused while strongly objecting to the above said application submitted that firstly, contrary to the submission of ld. Counsel that delay in filing the present complaint is for 14 days since the complainant had received the reply from the accused herein on 06.01.2018. Further the medical documents annexed are all photostates and do not possess any stamp of the doctor of the hospital. Even if they are relied upon as is that the counsel got admitted on 18.01.2018 for a surgery on 19.01.2018, there were 13 days before such surgery and 18 days after such surgery to file the present complaint. Further, the affidavit annexed with the application is signed by the complainant and not the counsel. He therefore objects to the veracity of the same since the complainant cannot vouch for the circumstances of his counsel. Further no bed rest has been mentioned on the documents annexed and all vitals in the medical report seem normal. Therefore, he submits that no sufficient cause has been established by the complainant for the delay so caused. [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 8 of 21 17. I have considered the rival submissions and perused the record. I shall first deal with the defences put forth by the accused in light of the evidence and later decide the technical ground of delay in filing the complaint. a) Defence of security cheques i. The defence of the accused as enumerated in his plea of defence to the notice framed under [SECTION] [ACT] is that the impugned cheques were security cheques which were to be presented after approximately July 2018, however the complainant filled the cheque without any authorization and presented it for encashment before the agreed time. Now, the scope of security cheques under [SECTION] [ACT] was discussed by the Honorable Delhi High Court in [PRECEDENT]. Relevant para is enumerated as follows: "28. In my view, therefore, the scope of [SECTION] [ACT] would cover cases where the ascertained and crystallised debt or other liability exists on the date that the cheque is presented, and not only to case where the debt or other liability exists on the date on which it was delivered to the seller as a post-dated cheque, or as a current cheque with credit period. The liability, though, should be in relation to the transaction in respect whereof the cheque is given, and cannot relate to some other independent liability. If, on the date that the cheque is presented, the ascertained and crystallised debt or other liability relatable to the dishonoured cheque exists, the dishonor of the cheque would invite action under [SECTION] [ACT]. There could be situations where, for example, an issue may be raised with regard to the quality, quantity, deficiency, specifications, etc. of the goods/services supplied, or accounting. It would have to be examined on a case to case basis, whether an ascertained or crystallised debt or other liability exists, which could be enforced by resort to [SECTION] [ACT], or not." [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 9 of 21 ii. Therefore, even in the present facts and circumstances, where the accused has admittedly signed the cheques in question and handed them against the running business transaction, he cannot escape his liability by mere averment that the cheques in question were security cheques and were not issued for discharge of liability, if it is established that an ascertained and crystallized debt or other liability existed on the date when the cheque was presented. What needs determination therefore, is whether any legally recoverable liability existed on the date of presentation of the cheque. iii. Further even if blank or undated cheques were handed over to the complainant by the accused and it was the complainant who affixed the name of payee, date and the amount thereon, even if against the agreement between parties, the same will not be a material alteration so as to render the impugned cheques void as laid by the Honorable Delhi High Court in judgement in case titled [PRECEDENT]. iv. There is no law that a person drawing the cheque has to necessarily fill it up in his own handwriting. When a blank cheque is signed and handed over, it means that the person signing it has given implied authority to the holder of the cheque, to fill up the blank which he has left. A person issuing a blank or undated cheque is supposed to understand the consequences of doing so. He cannot escape his liability only on the ground that blank or undated cheque had been issued by him. Reliance is placed upon the decision of Honorable Delhi High Court in judgement in case titled The [PRECEDENT] (Decided on 26.05.2011). However, the accused cannot fill and present the cheque for an amount more [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 10 of 21 than what is due to him on the date of presentation. Accordingly, this court shall now go on to determine the liability of accused on the date of presentation of the impugned cheques. b) Defence of non-existence of any legal liability i. The accused has denied the claim of the complainant on the ground that the complainant had not extended any loan but had instead invested in the accused company as an investor on a profit sharing basis and the impugned cheques were to be presented for encashment if required after reconciliation of the accounts at the end of financial year on 31st March 2018. Therefore, the accused has neither disputed the receipt of Rs. 23,36,000/- nor has he raised any controversy as to the issuance of the impugned cheques in favor of the complainant. He is solely denying his liability on the ground that since no reconciliation of accounts was done upon the investment so made by the complainant as agreed, the impugned cheques were devoid of any liability on the date of presentation since no profits were due on such date. ii. Now though the accused has contended that the complainant had advanced money to the accused as an investor with the agreement to share profit, not once has he deposed as to the details thereof. No submissions have been made as to what was the total amount so agreed to be transferred/invested, what was the settled mode of investment, what was the profit or loss sharing percentage, what was the period of investment etc. Only vague submission that money was advanced as an investment has been made repetitively. In absence of any details thereof, the version of accused does inspire much confidence. [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 11 of 21 iii. Again, though the accused is a private limited company and accused no. 2 is only one of the directors. No resolution of the board of directors or any minutes of meeting of the accused company have been placed before this court to substantiate the submission. DW 1 has submitted in his deposition that there was no written agreement to show that the complainant paid the said amount as an investor. Thus, as per the accused there was only an oral understanding to this effect. This court therefore, finds it difficult to understand as to how a company which has a separate juristic identity or a director thereof can so casually accept investment, that too on profit sharing basis from an investor, without executing any proper investment or partnership deed and detailing the terms and conditions of such transaction. Again, though ld. counsel for accused is vehemently questioning the claim of the complainant on the ground that the complainant has not shown the present loan transaction in his Income- Tax returns, no document has been placed on record by the accused company to show as to, how and under what head is the alleged investment shown in the books of the accused company i.e. balance sheet for Financial year 2017- 18 and profit and loss statement for financial year 2017-18 which is a statutory compliance for any and every private limited company. This further makes the narrative of the accused implausible. iv. Now while the accused has failed to place on record any documentary evidence to substantiate his version, the complainant has heavily relied upon a promissory note executed between the complainant and accused no. 2 dated 06.07.2017 (Mark CW1/2) wherein it has been stated that the present complainant has lent to the accused herein a sum of Rs. 23,36,000/ - in parts from 22.03.2017 to 25.07.2017 as enumerated in Mark CW1/1 of the promissory note and the accused undertakes to return Rs. 15,00,000/- by [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 12 of 21 25.07.2017 and remaining Rs. 8,36,000/- by 15.09.2017 and in default shall additionally pay 24% interest upon the outstanding amount. It is also mentioned in the para 6 of the said promissory note (Mark CW1/2) that five cheques including the impugned cheques have been handed over by the accused to the complainant as security against the above said repayment and in case the borrower i.e. the present accused fails to repay the same, the lender i.e. the present complainant will be at liberty to present these cheques. The complainant has also examined CW2 on oath who has identified his signatures on the document as a witness at point A. v. Upon confrontation with the promissory note dated 06.07.2017 (Mark CW1/2), the accused has admitted having signed the same. However, he has submitted that he had signed the same under the belief and upon the assurance of the complainant that the promissory note was required by him for some accounting/taxation purpose and the same is not meant to be followed in letter and spirit. Further he has deposed that since the parties shared long standing friendly relations, he without doubting the intentions of the complainant signed the promissory note without even reading its contents. Therefore, as per the accused, the promissory note (Mark CW1/2) does not reflect the true intention or the transaction between the parties and since he signed the same without reading or understanding the contents, solely due to trust and relationship between the parties, the same cannot be said to be binding upon him. The accused has also disputed the presence of witness CW2 Sh. [ENTITY] at the time of execution of the promissory note. vi. Now though the promissory note (Mark CW1/2) is a photocopy and is inadmissible in law, since the accused has admitted his signatures upon the [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 13 of 21 same and not disputed the contents thereof, it cannot be excluded as an evidence in toto. Again, since the document and its contents are admitted and the dispute is only in regards to the circumstances in which it was signed by the accused, existence or non-existence of witness [ENTITY] (CW2) and notarization of the promissory note is of no consequence in deciding the liability of the accused in the instant case. vii. Now, where a written document clearly specifying the transaction between the parties i.e. the promissory note has been placed on record, execution whereof is not disputed and one of the parties i.e. accused no 2 in the present case pleads that contrary to such written contract, there existed a varying intention or a separate oral agreement between such parties, it is upon him to lead such cogent evidence to prove the same as provided under [SECTION] & [SECTION] of the [ACT]. Now where accused no. 2 alleges that he signed the document without reading the contents thereof, in good faith, it is for him to lead such evidence to establish the same. Simply by pleading ignorance of the contents of a document he cannot escape the liability thereof, for every individual is presumed to know the consequences of his actions. viii. The accused herein is around 33 years old. He is well educated, holds a MBA degree and is a director in a private limited company which deals provides technical solutions to vendors on global scale. Like any other rational person, the accused herein can also be expected to know the contents of the documents before signing it. Therefore, in absence of any other corroborative evidence, this court finds it difficult to believe that the accused indeed signed the promissory note dated 06.07.2017 without reading the same solely upon the insistence of his alleged investor i.e. the complainant only because the two [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 14 of 21 were childhood friends. ix. Again, where the only rebuttal of the accused with respect to the promissory note is that it was signed only as a formality and not as a binding contract, the accused has not posed even a single suggestion or question these lines to the complainant in his cross examination as CW1. Also no explanation has been furnished as to what was the exact alternate purpose the document was executed for. Where the complainant has himself submitted that he is a salaried employee and he has not shown the present transaction in his income tax returns, this court is prompted to ask that what other compliance or accounting formality etc could the complainant require the said promissory note for. Again no question or suggestion in this regard has been made in cross-examination. The accused therefore has not been able to convincingly establish that the promissory note was signed by him in ignorance of its true intent. x. Now even if the contention of the accused is assumed to be true and the promissory note was executed only as a formality and not as a binding contract, then why is it that the note mentions the correct amount so transferred, correct dates of such transfers, correct name of all beneficiaries of these transactions including the accused company, correct details of the security cheques including the impugned cheques but allegedly mentions the wrong nature of the transaction. In other words, what was stopping the accused from insisting that the transaction be mentioned as an investment and not as a loan in the said promissory note or to details the profit sharing percentage etc. Further, though ld. counsel for accused has propounded that earlier issued cheques bearing number 00023 and 00024 drawn on Laxmi [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 15 of 21 Villas Bank dated 26.06.2017 drawn upon the personal account of accused no. 2 were not related or relevant for the transaction in question, then why is it that the same have been mentioned in the said promissory note. Even in his deposition, accused no.2 has not denied the existence or dishonor of these cheques, he has simply submitted that certain payment was released regarding these cheques, however he did not provide any further details thereof. In such circumstances, the version of the accused does not seem very reliable. xi. Next, with respect to the details of transactions enumerated in Mark CW1/1 of the promissory note (Mark CW1/2), the accused has no where disputed the receipt of the alleged amount of Rs.23,36,000/- by him or his vendors. He has only submitted that the same were received as investment and not as any loan. In such circumstances therefore, the ability of the complainant to extend such amounts of money is not disputed by the accused. Accordingly, the submissions of ld. counsel that it is difficult to believe that the complainant himself availed loan from his friends, family and a personal loan from bank to further extend loan to the accused does not seem to have any bearing. xii. Also only because the complainant borrowed money from multiple sources to lend to the accused, it cannot be said that the same was not lent as a loan but as an investment especially when there is nothing on record to support the same. Similarly, only because the money was advanced in installments over a period of two-three months and sent to the account of both the accused company and its vendors it cannot be conclusively laid that the amount was intended to be granted as an investment and not a loan, for there is nothing withholding an individual from giving a loan in parts or to extend it to some third party at the insistence of the borrower. Submissions of ld. counsel for [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 16 of 21 accused in this regard therefore seem unsustainable. xiii. Now even if the submissions of the accused are assumed to be true that the complainant had indeed invested in the accused company through accused no.2 and that it was agreed between the parties that upon reconciliation of the account on 31.03.2018, the profit or loss shall be remitted to the account of the complainant, neither any submissions have been laid that any such attempts for reconciliation of accounts were made at the end of financial year nor any averments have been made as to what was the profit made or loss suffered by the accused company with respect to the investment so received by the accused company. This court is therefore curious to know that if the complainant had indeed made an investment, why wasn't this investor not intimated and remitted his due share at the end of the period of investment i.e. end of FY 2017-18 as averred by the accused. A private limited company cannot be expected to allow a fall out between one of its directors (i.e. accused no.2) and his childhood friend (i.e. the present complainant) be a reason for non-compliance of its contract. xiv. Again, if there was indeed an oral contact between the parties that the impugned cheques will only be presented after reconciliation of account after the end of the financial year and the complainant did not adhere to his end of the bargain and instead stopped making further investments as alleged, then why didn't the accused company not initiate any legal action for breach of contract etc. either before or after the institution of the present complaint case. Again no reason has been laid as to how all cheques given as security for the transaction between parties were dishonored on account of "Drawer signature mismatch" since it is not ordinary for businessmen to make such mistakes in [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 17 of 21 their course of business. Accordingly, the narration of the accused does not seem plausible and therefore it cannot be said that the impugned cheques were devoid of liability on the date of its presentation. c) Defence of quantum of liability i. Another defence raised by the accused is that he does not owe the complainant the amount so alleged by him and his liability is four to five lacs less than the total amount of the impugned cheques. He has relied upon the entries at points A, B, C, D and F in Ex.CW1/X1/D in the statement of account of the accused company and at points A and B and F in Ex.CW1/X/B to show that certain payments qua the said transaction were made by the accused in the account of the complainant. In his cross-examination, the complainant has neither admitted nor denied the same and has instead submitted that he can depose about them only after confirmation from his own account. ii. I have carefully perused the statement of accounts of the accused company Ex.CW1/X1/D & Ex.CW1/X/B. Firstly, both the statements are computer generated print outs and no certificate under [SECTION] has been annexed along with them, they are inadmissible in the court of law. Secondly, even if the statement is read in evidence, the entries so relied upon by the accused are deposits and not withdrawals. In other words, contrary to the submission of the accused, the entries do not reflect any payment to the account of the complainant but instead are deposits in the account of the accused company M/S [ENTITY] Tech Support India Private Ltd by the present complainant. In fact, the said entries correspond with the details of loan extended by complainant as enumerated in Mark CW1/1 of the promissory note dated [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 18 of 21 06.07.2017 (Mark CW1/2) execution of which is not disputed by the accused and also with the bank statement of complainant's account (Ex CW1/14A). Therefore, the said entries instead reinforce the claim of the complainant. Again, while the accused has suggested in the cross-examination of the complainant that interest on the investment was payable on monthly basis and has also alleged repayment of other amount, no other bank statement or acknowledgment or receipt of any such repayment has been placed on record by the accused and therefore the accused has failed to assail the claim of the complainant. iii. Accordingly, the accused has failed to establish any probable defence. 18. Now coming to the application for condonation of delay, it is a settled law that it is not the quantum of delay that matters but the reason thereof. What needs to be seen while deciding such application therefore, is if such applicant has been able to establish a "Sufficient cause". In the instant case, the legal demand notice was sent by the complainant on 26.12.2017 through Speed post. Though no tracking report has been annexed, the notice can be reasonably expected to have been delivered to the accused who is residing in the same city by 28.12.2017. Therefore, the cause of action arose on 12.01.2018 and accordingly the complaint should have been filed before 13.02.2018. However, it was preferred on 19.02.2018 i.e. after a delay of 7 days. 19. The complainant has cited ill-health of his counsel as the reason of such delay. However, apart from bare averments there is nothing to substantiate the submissions. The medical documents annexed with the application are merely photocopies and therefore inadmissible. Even otherwise, no medical certificate [PRECEDENT] [ENTITY] Vs [ENTITY] & Anr Page 19 of 21 describing the illness and advising rest has been placed on record but only photocopies of lab reports which do not bear any stamp etc. The case doctor has not been called as witness to prove the same. Further, though the application for condonation of delay is signed by ld. counsel for complainant, the affidavit annexed bears signature of the complainant who is in no position to depose on oath about the situation of his counsel. In such circumstances, there is no reason to acknowledge that such documents reflect the true state of affairs. 20. Even if the said documents are so relied upon, no satisfactory explanation has been furnished as to the delay pre and post such surgery. Only because during the prescribed period, on 19.01.2018, the counsel for complainant underwent a surgery, it cannot be assumed that he continued to remain unwell enough to not file the present complaint. Again, no submissions have been made if the complainant during this time tried to engage another advocate for the said purpose, for there no necessity of law either in [ACT] or in [ACT] that a complaint has to be filed by a complainant through a counsel only. The same can be very well be done by the complainant himself who in the present case is well educated and was already contesting another matter against the same accused persons at that time, i.e. [CASE NUMBER] titled [ENTITY] vs M/S [ENTITY] & Ors. 21. Now, though generally courts are guided by a liberal approach while deciding application for condonation of delay, the present matter being a complaint case under [SECTION] of [ACT] which itself is a special provision requires a strict interpretation. A complaint under [SECTION] of [ACT] can not be treated as a suit for recovery. Strict timelines have been laid by the statute with a purpose and failure to adhere to the same cannot be allowed leniently since such condonation not only takes away a substantive right accrued in favor of the respondent but will
also brand him an accused. Accordingly, such delay can only be condoned in extraordinary circumstances which are sufficiently established. In the instant case, however, the complainant has failed to establish any such exceptional situation. Therefore, application for condonation of delay stands dismissed.
22. In view of the above discussion, accused no. 1 M/S [ENTITY] Tech Support India Private Limited and accused no. 2, [ENTITY], S/o [ENTITY] stand acquitted of the offence u/[SECTION] of [ACT].
Announced in Open Court ([ENTITY]) on 2nd of December, 2019 MM(NI)-03/NDD/PHC