9911796707
TMI Blog2024 (10) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... e. First and foremost, even though CW1 Sh. Ritin Behl had deposed on the basis of an SPA but it is a settled law that irrespective of the Special Power of Attorney in favour of the witness, he is a competent witness to depose about the facts which are in his knowledge. Furthermore, the entire case under Section 138 N.I. Act was based on the documents - it was for the petitioners to have led cogent evidence in their defence, which they have miserably failed to do. Once the signatures on the cheque were admitted, the presumption under Section 139 NI Act worked in favour of the complainant and the onus was on the petitioners/accused to prove that the cheques were not issued in discharge of the legally recoverable debt. However, neither the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and the Complaint under Section 138 N.I. Act got filed. 3. The learned M.M framed the Notice under Section 251 Cr.P.C. on 23.07.2016, wherein the petitioner took the defence that he had given the cheques to Mr. Nitin Chawla from whom he had taken over the Company in October, 2011 and with whom he had certain disputes. He also had some liability of payments towards the complainant. Mr. Nitin Chawla applied for 50:50 partnership in ROC but it did not materialize as the documents were not complete. The petitioner took the defence that he had not signed the cheque and did not know the complainant and had no liability of making a payment under the dishonoured cheque. 4. The complainant/respondent No. 2 in his post summoning affidavit, prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled an Appeal bearing CA No.492/2019 before the learned ASJ who, vide his judgment dated 13.5.2024 upheld the Order of Conviction though the Order of Sentence was modified with the observation that accused No. 1 was a Company and being a legal entity, it cannot be send to imprisonment. The sentence of imprisonment was thus, limited to the petitioner No. 2 and 3 who were the Directors, to undergo to sentence and pay the fine as directed by the learned M.M. 8. Aggrieved by the said Order of conviction as upheld by learned ASJ, it has been challenged in the present Revision Petition on the grounds that the respondent had examined CW1 Dr. Ritin Behl, who was the SPA holder of the complainant and had no personal knowledge about the transaction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sign the same. Further, petitioner No. 2 and 3 were not the Directors as the time of signing of the Lease Deed. Both Courts failed to appreciate that the basic ingredients of Section 138/141/142 N.I. Act had not been proved. The impugned judgment is therefore, liable to be set aside. 12. Submissions heard. 13. The complainant/respondent had averred in his complaint that the impugned cheque Ex.CW1/D was issued by the petitioner No. 1 Company under the signatures of its Director petitioner No. 2, which on presentation was dishonored. 14. The first ground which has been taken on behalf of the petitioners is that the complainant has failed to step into the witness box and only CW1 Sh. Ritin Behl the SPA holder, who has been examined and he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in the affairs of the Company are vicariously responsible for the acts done for and on behalf of the Company. In the light of specific provision under Section 141 N.I. Act making the Company and its Directors, Manager, Secretary or other Officer of the Company liable. Admittedly, petitioner No. 2 and 3 herein i.e. accused Gurdeep Singh Basin and Sukhdeep Singh Bhasin were the two Directors of petitioner No. 1 Company and the cheque had been issued for and on behalf of the Company under the signatures of petitioner No. 2. This argument has no merit. 17. The complainant has further proved the Lease Deed Ex.CW1/C vide which the petitioners were inducted as a tenant in the suit premises of the complainant vide Lease Deed and the impugned c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
