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TMI Blog2023 (9) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... es Private Limited who is the petitioner in CRL.M.C. 948/2019 (hereinafter referred to as "M/s Shalini Securities Private Limited") and Amandeep Singh who is respondent no. 2 in CRL.M.C. 948/2019 and petitioner in CRL.M.C. 4126/2019 (hereinafter referred to as "Amandeep Singh"). 2. Lokesh Thakkar pleaded that he and Amandeep Singh were into real estate business and known to each other since 2009. Amandeep Singh along with his brother and other family members prevailed upon Lokesh Thakkar to enter into financial terms with them and also to become business partner and to invest in M/s Shalini Securities Private Limited as Amandeep Singh had assured Lokesh Thakkar of huge gains by investment in the project of Amandeep Singh. Lokesh Thakkar, on assurance of Amandeep Singh, had decided to invest in the ongoing project of Amandeep Singh. Lokesh Thakkar, during the period with effect from 2009 to 2017, had paid to Amandeep Singh Rs. 10 crores 40 lakhs through cash and bank transfer to invest in the ongoing project of Amandeep Singh. Lokesh Thakkar had arranged the said amounts by selling his own properties and by taking loan from relatives and from the market. Amandeep Singh returned Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- Present complaint case is based upon the allegations that the accused issued the cheques in question in discharge of his liability as mentioned in the complaint. On presentation, the said cheques were dishonoured. Thereafter, legal notice was sent by the complainant within stipulated period. Despite service, accused failed to make the payment. The complainant has filed this complaint within the period of limitation, praying of initiation of proceedings against the accused Under Section 138 of Negotiable Instrument Act. The complainant has filed cheques in original of the return memo, copy of legal notice and postal receipts in original. Heard, record perused. Cognizance of the offence Us 138 Negotiable Instrument Act is taken. Pre-summoning evidence by way of an affidavit of complainant is already on record. Same is tendered in evidence. The complainant closes his pre-summoning evidence. In the present matters, the complainant has summoned Shalini Securities Pvt. Ltd. as accused no. 1 as per the cheques filed on record. They have been signed by the director of accused no. 1. In the light of this, there is enough prima facie evidence on record to summon accused no. 1 Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Shalini Securities Private Limited. Amandeep Singh was not involved in the day to day activities of M/s Shalini Securities Private Limited. Amandeep Singh was not authorised to act on behalf of M/s Shalini Securities Private Limited having resigned from M/s Shalini Securities Private Limited in 2012. It appears from the complaint that Amandeep Singh had issued the cheques in question in his personal capacity and not on behalf of M/s Shalini Securities Private Limited. Amandeep Singh might have retained cheques of M/s Shalini Securities Private Limited deliberately which were lying within him in the year 2012 in his financial capacity being Director of M/s Shalini Securities Private Limited. Amandeep Singh has tendered his resignation on 05.11.2012 and as such Amandeep Singh ceased to be the Director and the authorised signatory of M/s Shalini Securities Private Limited from 05.11.2012. 4.2 After M/s Shalini Securities Private Limited came to know that the cheques in question were deposited in its account, a written complaint was made to the SHO, P.S. Subhash Place, Delhi on 24.04.2018 vide DD no.32B regarding the alleged fraud committed upon M/s Shalini Securities Private Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Securities Private Limited as per section 141 of NI Act. Even otherwise, the cheques in question were not issued in the discharge of legally enforceable debt. The dispute between Amandeep Singh and Lokesh Thakkar is of a civil nature. The present complaint is gross abuse of the process of law. The cheques in question, being signed by only one Director of M/s Shalini Securities Private Limited, are not enforceable in the eyes of law. The complaint does not fulfill the necessary ingredients of section 138 of NI Act. It is prayed that the impugned order whereby Amandeep Singh was summoned for the offence punishable under section 138 of NI Act be set aside. 6. The counsel for M/s Shalini Securities Private Limited argued that Lokesh Thakkar, as admitted by him in the complaint bearing CC no. 37/1/2018 (new Ct. no. 3062/2018), has entered into monetary transaction with Amandeep Singh in his personal capacity who has also returned Rs. 1 crores 28 lakhs to Lokesh Thakkar through his own bank account and in cash. Lokesh Thakkar has never paid or credited any amount to M/s Shalini Securities Private Limited. In these circumstances, there is no legally enforceable debt against M/s Shalini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions. It is argued that Amandeep Singh, at the time of alleged dishonour of the cheques, was neither the Director nor authorized signatory or holding any position in M/s Shalini Securities Private Limited. Amandeep Singh was not having any concern with M/s Shalini Securities Private Limited in any manner. The essential ingredients of section 138 of NI Act are not satisfied as the cheques in question were issued from the bank account which was not operational in the name of Amandeep Singh. Amandeep Singh is not the drawer of the cheques in question and the cheques in question are not valid in the eyes of law. Amandeep Singh has already resigned from M/s Shalini Securities Private Limited in the year 2012 and the alleged cheques were dishonored in the year 2018 vide return memo dated 24.04.2018. As per Form-32, Amandeep Singh is not associated with M/s Shalini Securities Private Limited since 05.11.2012 as such, he cannot be said to be in-charge of and responsible for the affairs of the M/s Shalini Securities Private Limited. There is no specific allegation against Amandeep Singh and the complaint is liable to be dismissed. The counsel for Amandeep Singh cited the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. 10. The Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of "Funds Insufficient" vide cheque return memos dated 24.04.2018. Lokesh Thakkar has made necessary allegations and averments against M/s Shalini Securities Private Limited and Amandeep Singh in the complaint. It is also apparent from the record that Amandeep Singh had resigned as Director from M/s Shalini Securities Private Limited in the year 2012 with effect from 05.11.2012 i.e. long before the issuance of cheques in question and the Amandeep Singh after tendering his resignation to M/s Shalini Securities Private Limited ceased to be a person who was responsible for the affairs of M/s Shalini Securities Private Limited. However, it is also pleaded and alleged by Lokesh Thakkar that the cheques in question were delivered/handed over to him by Amandeep Singh. It is for the Amandeep Singh to explain how he came into the possession of the cheques of the account of M/s Shalini Securities Private Limited even after he resigned as Director with effect from 05.11.2012. It is also apparent from the perusal cheques in question that these cheques were issued from the account maintained on behalf of M/s Shalini Securities Private Limited and were signed by Amandeep Singh. It is for M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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