Full Judgement
Delhi High Court
Shalini Securities Private ... vs Lokesh Thakkar & Anr on 14 September, 2023
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: July 26, 2023
Decided on: September 14, 2023
+ CRL.M.C. 948/2019 & CRL.M.A. 3781/2019
SHALINI SECURITIES PRIVATE LIMITED
..... Petitioner
Through: Mr. Harsha Gollamudi and
Mr. Vishal Kapoor,
Advocates.
V
LOKESH THAKKAR & ANR ..... Respondents
Through: Mr. Abhishek Keer
Advocate for R-1.
Ms. Muskaan Dewan, Mr.
Alok Kumar Pandey, Ms.
Garima Khandelwal and Mr.
Kunal Prakash, Advocates
for R-2.
+ CRL.M.C. 4126/2019 & CRL.M.A. 34038/2019
AMANDEEP SINGH ..... Petitioner
Through: Ms. Muskaan Dewan, Mr.
Alok Kumar Pandey, Ms.
Garima Khandelwal and Mr.
Kunal Prakash, Advocates.
V
STATE OF NCT OF DELHI & ANR ..... Respondents
Through: Mr. Utkarsh, APP for the
State/R-1.
Mr. Abhishek Keer,
Advocate for R-2.
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 1
12:02:02
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. Lokesh Thakkar, who is respondent no. 1 in
CRL.M.C.948/2019 and respondent no. 2 in CRL.M.C.4126/2019
(hereinafter referred to as "Lokesh Thakkar") filed a complaint
titled as Lokesh Thakkar V M/s Shalini Securities Private
Limited & Another bearing complaint case no.37/1/2018 (new Ct.
no.3062/2018) under sections 138/141 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as „NI Act‟) against M/s Shalini
Securities 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
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 2 12:02:02 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. 1 crore 28 lakhs to Lokesh Thakkar through bank
transfer and by cash, however, Rs. 9 crores 12 lakhs were due along
with interest and profit towards Lokesh Thakkar. Lokesh Thakkar, in
July 2017, found that it was very difficult to make the payment of
interest on the amount which he had borrowed from the market as
loan and invested in the project of Amandeep Singh and accordingly,
Lokesh Thakkar approached Amandeep Singh to get his share out of
the profits. Amandeep Singh had started to avoid Lokesh Thakkar
and therefore, Lokesh Thakkar started insisting Amandeep Singh to
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 3 12:02:02 return his money and share in the profits. Lokesh Thakkar and
Amandeep Singh, on 21.08.2017, at the instance of the local police,
had decided to settle their pending disputes amicably. Amandeep
Singh, out of the settlement, had handed over 11 post-dated cheques
each amounting to Rs. 50 lakhs from the account of M/s Shalini
Securities Private Limited which were signed by Amandeep Singh.
The details of the cheques are as under:-
S. No. Date Cheque No.
1. 02.04.2018 58310
2. 03.04.2018 58311
3. 05.04.2018 58312
4. 06.04.2018 58313
5. 06.04.2018 58314
6. 07.04.2018 58315
7. 09.04.2018 58316
8. 10.04.2018 58317
9. 11.04.2018 58318
10. 12.04.2018 58319
11. 13.04.2018 58320
2.1 Lokesh Thakkar and Amandeep Singh also agreed on various
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 4
12:02:02
other terms and conditions of the settlement. Lokesh Thakkar had
deposited the 11 cheques of Rs. 50 lakhs each drawn on Bank of
Maharashtra, Pitampura Branch in his bank account maintained with
State Bank of India, G.T. Kamal Road but were dishonored by the
bank with the endorsement "Funds Insufficient".
2.2 Lokesh Thakkar issued a legal notice dated 19.05.2018 to M/s
Shalini Securities Private Limited and Amandeep Singh but they did
not pay the cheque amount to Lokesh Thakkar despite notice. Hence,
Lokesh Thakkar had filed the complaint bearing CC no.37/1/2018
(new Ct. no.3062/2018) under section 138 of NI Act.
3. The court of Ms. Sadhika Jalan, MM-06, North District,
Rohini Courts, Delhi (hereinafter referred to as "trial court") vide
order dated 06.10.2018 (hereinafter referred to as "impugned
order") had taken cognizance under section 138 of NI Act and
accordingly summoned M/s Shalini Securities Private Limited and
Amandeep Singh for the offence punishable under section 138 of NI
Act. The impugned order is reproduced as under:-
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
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 5 12:02:02 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 Shalini Securities Pvt. Ltd.
In respect to accused no. 2, as per the form 32 filed on record by the complainant, accused no. 2 was not the Director of the company when the cheque in question was signed and was dishonoured. However, it has been alleged by the complainant that it was the accused no. 2, who had signed the cheques on behalf of the company and in light of this averment that the accused no. 2 is the signatory of the cheques, he too be summoned for the next date of hearing. Accordingly, both this accused be summoned on filing of PF and RC returnable on 22.11.2018. Summons shall be accompanied with a copy of complaint. Steps be taken within seven days.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 6 12:02:02
4. M/s Shalini Securities Private Limited, being aggrieved, filed
the petition bearing CRL.M.C. 948/2019 for quashing of the
impugned order and complaint bearing CC no.37/1/2018 (new Ct.
no.3062/2018).
4.1 M/s Shalini Securities Private Limited pleaded that Amandeep
Singh i.e. purported signatory of the cheques in question was neither
a Director nor an Authorised Representative of M/s Shalini Securities
Private Limited and was also not a person in-charge of and
responsible for the day to day functioning of M/s Shalini Securities
Private Limited. Amandeep Singh had resigned from the M/s Shalini
Securities Private Limited in the year 2012. No debt is due against
M/s Shalini Securities Private Limited towards Lokesh Thakkar. The
joint trial in respect of the 11 cheques is against the legal provision as
contained in section 219 of the Code of Criminal Procedure, 1973
(hereinafter referred to as "the Code"). Lokesh Thakkar, in the
complaint, alleged that he had paid Rs. 10 crores 40 lakhs in cash and
through bank transfer to Amandeep Singh during the period with
effect from 2009 till 2017 but Lokesh Thakkar has not placed
complete details of the payments to Amandeep Singh but placed
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 7 12:02:02 photocopy of self written notes showing payment of certain amounts
to one Tarandeep Singh, but the said Tarandeep Singh is not
arraigned as accused in the complaint. M/s Shalini Securities Private
Limited was not having any dealing with Lokesh Thakkar and Rs. 10
crores 40 lakhs were not paid to M/s Shalini Securities Private
Limited. On 21.08.2017, when Lokesh Thakkar is stated to have
entered into settlement with Amandeep Singh, Amandeep Singh was
neither a Director nor a share-holder nor even an authorised signatory
of 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
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 8 12:02:02 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 Limited. A letter was also written
to the Branch Manager, Bank of Maharashtra, Kohat Enclave Branch,
New Delhi on 01.05.2018 requesting the Manager to stop payment
against the cheques in question. Praveen Babbar was appointed as
Additional Director of M/s Shalini Securities Private Limited on
31.12.2016 and was subsequently appointed as Director of M/s
Shalini Securities Private Limited on 30.09.2017 and he was
authorised to act on behalf of M/s Shalini Securities Private Limited.
4.3 Amandeep Singh was the authorised signatory being the
Director of the M/s Shalini Securities Private Limited only for the
period with effect from 01.07.2010 to 28.05.2012. The cheques in
question were issued by the bank during the period when Amandeep
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 9 12:02:02 Singh was the Director of M/s Shalini Securities Private Limited
which reflects that Amandeep Singh had deliberately and with
malafide intention, issued the cheques in question.
4.4 There was no legally enforceable debt due towards M/s Shalini
Securities Private Limited qua Lokesh Thakkar. The impugned order
and the complaint bearing CC no.37/1/2018 (new Ct. no.3062/2018)
are liable to be set aside.
5. Amandeep Singh also filed the CRL.M.C. 4126/2019 under
section 482 Cr.P.C. for quashing of entire proceedings and the
impugned order dated 06.10.2018. Amandeep Singh narrated the
facts as stated by Lokesh Thakkar in the complaint under section 138
of NI Act as mentioned hereinabove. Amandeep Singh challenged
the impugned order on the grounds that the impugned order was
passed by ignoring and overlooking the fact that Amandeep Singh
was not the Director of M/s Shalini Securities Private Limited at the
relevant time when the alleged offence is stated to have been
committed. Amandeep Singh was neither the Director nor having any
relations with M/s Shalini Securities Private Limited when the
cheques in question were issued in April 2018. Amandeep Singh had
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 10 12:02:02 resigned as Director of M/s Shalini Securities Private Limited in the
year 2012 as such, he cannot be held responsible for the dishonour of
the cheques in question. Praveen Babbar and Priyanka Babbar are the
only two directors of M/s Shalini Securities Private Limited with
effect from 31.12.2016 and 12.06.2017 respectively. There are no
specific allegations against Amandeep Singh. Amandeep Singh
cannot be said to be in-charge and responsible for the conduct of
business of M/s Shalini 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
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 11 12:02:02 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 Securities Private Limited. Amandeep Singh has already
resigned from M/s Shalini Securities Private Limited on 05.11.2012
i.e. long before the date of the cheques in question which were
fraudulently signed by Amandeep Singh without any authority. The
cheques in question are invalid instruments being signed by
Amandeep Singh who was not authorised to sign it. The trial court
vide the impugned order has taken cognizance for the offence
punishable under section 138 of NI Act which is not in accordance
with law. No triable issue is raised qua M/s Shalini Securities Private
Limited in the present complaint and any offence which could be
made out is against Amandeep Singh only. The cheques in question
were signed, issued and dishonoured during the period with effect
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 12 12:02:02 from 21.08.2017 to 13.04.2018 when Amandeep Singh was not
associated with M/s Shalini Securities Private Limited. There is no
sufficient ground to proceed against M/s Shalini Securities Private
Limited. The counsel for M/s Shalini Securities Private Limited cited
the judgment dated 04.11.1997 passed by the Supreme Court in Pepsi
Foods Ltd. And Another V Special Judicial Magistrate and
Others, (1998) 5 SCC 749 wherein it was observed as under:-
28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
7. The counsel for Amandeep Singh also advanced oral
arguments and submitted written submissions. It is argued that
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 13 12:02:02 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 judgments passed by the
Supreme Court in Jugesh Sehgal V Shamsher Singh Gogi, (2009)
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 14 12:02:02 14 SCC 683; DCM Financial Services Ltd. V J.N.Sareen and
Another, (2008) 8 SCC 1; Anil Kumar Sahni V Gulshan Rai,
(1993) 4 SCC 424 and NSIC Ltd. V Harmeet Singh Paintal and
Another, (2010) 3 SCC 330.
8. The counsel for Lokesh Thakkar advanced oral arguments and
also submitted written submissions. He argued that the impugned
order is a speaking and reasoned order and should not be interfered
with. M/s Shalini Securities Private Limited and Amandeep Singh
were summoned by the trial court after due application of mind under
the given facts and circumstances of the case. Amandeep Singh
issued 11 cheques each amounting to Rs.50,00,000/- (Rupees Fifty
Lakhs only) being purported authorised signatory of M/s Shalini
Securities Private Limited and those cheques were presented within
06 months from the date of issuance which were got dishonored on
the ground "Funds Insufficient". It is for M/s Shalini Securities
Private Limited to prove that why Amandeep Singh was allowed to
retain possession of its cheque-book after he allegedly resigned as
Director in the year 2012. The present petitions is filed by M/s
Shalini Securities Private Limited and Amandeep Singh only to
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 15 12:02:02 escape from the trial which is against the settled principles of law and
the present petitions are liable to be dismissed with heavy cost. The
counsel for Lokesh Thakkar cited the judgments passed by the
Supreme Court in Medchl Chemicals & Pharma (P) Ltd. V
Biological E. Ltd. & Others, (2000) 3 SCC 269; N. Rangachari V
Bharat Sanchar Nigam Ltd., (2007) 5 SCC 108; Nipam Kotwal &
Ors v. M/s Dominos Printech India Pvt. Ltd., (2007) SCC OnLine
Del 156 and NSIC Ltd. V Harmeet Singh Paintal and Another,
(2010) 3 SCC 330.
9. Section 138 of the NI Act reads as under:-
138. Dishonour of cheque for insufficiency, etc., of funds in the account. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall 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--
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 16 12:02:02
(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 Court in Kusum Ingots & Alloys Ltd. V
Pennar Peterson Securities Ltd. & Others, (2000) 2 SCC 745 laid
down the following ingredients for taking cognizance under section
138 of the NI Act:-
(i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability
(ii) That cheque has been presented to the bank within a period of six months from the date on which it is drawn of within the period of its validity, whichever is earlier
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 17 12:02:02
(iii) That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank
(iv) The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid
(v) The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course within 15 days of the receipt of the said notice
(vi) The complaint is to be filed within one month from the date of expiry of the 15 days from the receipt of the notice.
11. It is reflecting from the complaint bearing CC no.37/1/2018
(new Ct. no.3062/2018) that Lokesh Thakkar and Amandeep Singh
were known to each other since 2009 and Lokesh Thakkar had
decided to invest in the project of Amandeep Singh. Amandeep Singh
also assured Lokesh Thakkar of windfall gains on investment.
Lokesh Thakkar, during the period with effect from 2009 to 2017,
had paid Rs. 10 crores 40 lakhs through cash and bank transfer to
Amandeep Singh. Amandeep Singh has returned back Rs.1 crore 28
lakhs to Lokesh Thakkar through bank transfer and by cash.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 18 12:02:02 Amandeep Singh did not return Rs. 9 crores 12 lakhs along with
interest and share of Lokesh Thakkar in the profits. Subsequently,
financial dispute is stated to have arisen between Lokesh Thakkar
and Amandeep Singh. Amandeep Singh, as Director of M/s Shalini
Securities Private Limited, issued 11 cheques, each amounting to
Rs.50 lakhs, in the month of April 2018 which were got dishonored
on the ground 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
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 19 12:02:02 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/s Shalini Securities Private Limited and
Amandeep Singh to prove during the evidence how the cheques in
question came into possession of Amandeep Singh and under what
circumstances these cheques were issued in favour of Lokesh
Thakkar and these issues cannot be decided without evidence. At this
stage, it cannot be said that Amandeep Singh is not liable to pay the
cheque amounts and accordingly the impugned order is bad in respect
of Amandeep Singh as well as M/s Shalini Securities Private Limited.
It also cannot be said that the cheques in question were not issued
towards any legally enforceable debt and were without any liability.
At this stage, it also cannot be said that the Amandeep Singh had
signed the cheques in question without any authority although he had
resigned as Director from M/s Shalini Securities Private Limited in
the year 2012. The important issue which is to be decided by the trial
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 20 12:02:02 court is that under what circumstances Amandeep Singh had issued
the cheques in question in favour of Lokesh Thakkar particularly
when he had resigned as Director from the M/s Shalini Securities
Private Limited in the year 2012. M/s Shalini Securities Private
Limited and Amandeep Singh at this stage cannot be allowed to take
advantage of their acts committed by issuance of the cheques in
question in favour of Lokesh Thakkar. Lokesh Thakkar is appearing
to be the holder of cheques in question and is entitled for
presumption under section 139 of NI Act. It is for M/s Shalini
Securities Private Limited to establish on record by leading probable
defence that the cheques in question were not issued towards
discharge of legally enforceable debt and are not valid instruments in
the eyes of law as Amandeep Singh was not having any authority to
sign and issue the cheques in question. The issues raised in the
present complaint bearing CC no.37/1/2018 (new Ct. no.3062/2018)
require evidence and cannot be decided in the present petitions.
12. The arguments advanced on behalf of M/s Shalini Securities
Private Limited and Amandeep Singh and case laws referred in their
written submissions are perused and considered in the right
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 21 12:02:02 perspective, but do not provide any help to the pleas and contentions
of M/s Shalini Securities Private Limited and Amandeep Singh.
13. The counsel for M/s Shalini Securities Private Limited referred
the judgment passed by the Supreme Court in Anita Malhotra V
Apparel Export Promotion Council and Another (2012) 1 SCC
520 wherein it was observed that the criminal proceedings for the
dishonour of the cheques in question against the non-executive ex-
Director who has resigned from the company six years back are liable
to be quashed. However, in the present case, the cheques in question
were issued by Amandeep Singh from the account of M/s Shalini
Securities Private Limited. The issue whether there is any liability
against M/s Shalini Securities Private Limited and Amandeep Singh
qua the cheques in question can only be decided by evidence during
the trial.
14. Accordingly, the present petitions are dismissed with the cost
of Rs.25,000/- (Rupees Twenty Five Thousand only) each on M/s
Shalini Securities Private Limited and Amandeep Singh which is to
be paid to Lokesh Thakkar before the trial court on the next date of
hearing.
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 22 12:02:02
15. The present petitions along with pending applications are
accordingly disposed of.
DR. SUDHIR KUMAR JAIN (JUDGE) SEPTEMBER 14, 2023 j/am
Signature Not Verified Digitally Signed By:JITENDRA Signing Date:15.09.2023 CRL.M.C. 948/2019 & CRL.M.C. 4126/2019 Page 23 12:02:02
