M/S RAGHAV ADITYA CHITS PVT. LTD. & ANR vs M/S MAYA TOYS

2023-10-12 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 26.07.2023
Pronounced on: 12.10.2023

+ CRL.M.C. 1212/2020 & CRL.M.A. 4709-12/2020 & 13103/2022

M/S RAGHAV ADITYA CHITS. PVT. LTD.
& ANR. …. Petitioners
Through: Mr. Arvind Singh and Mr. Manoj Kumar, Advocates.
versus

M/S MAYA TOYS ….. Respondent
Through: Mr. Shri Singh, Ms. Ipsita Agarwal and Mr. Gaganjot Singh, Advocates.

+ CRL.M.C. 1227/2020 & CRL.M.A. 4739-42/2020 & 13202/2022

M/S RAGHAV ADITYA CHITS PVT. LTD.
& ANR. …. Petitioners
Through: Mr. Arvind Singh and Mr. Manoj Kumar, Advocates.
versus

M/S MAYA TOYS ….. Respondent
Through: Mr. Shri Singh, Ms.Ipsita Agarwal and Mr. Gaganjot Singh, Advocates.

+ CRL.M.C. 1228/2020 & CRL.M.A. 4743-46/2020 & 13154/2022

M/S RAGHAV ADITYA CHITS PVT. LTD.
& ANR. …. Petitioners
Through: Mr.Arvind Singh and Mr.Manoj Kumar, Advocates.
versus

M/S MAYA TOYS ….. Respondent
Through: Mr.Shri Singh, Ms.Ipsita Agarwal and Mr.Gaganjot Singh, Advocates.

CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. This judgment shall govern the disposal of CRL.M.C. 1212/2020, 1227/2020 and 1228/2020, along with pending applications, arising out of similar set of facts, contentions, and prayers.
2. These petitions have been filed on behalf of the petitioners under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking the following reliefs:
i. Setting aside orders dated 09.05.2019 passed by the learned Metropolitan Magistrate-02 (NI Act), South, Saket Courts, New Delhi, in C.C. No. 466867/2016, 466868/2016, and 466869/2016, all titled Maya Toys (Saket) vs. Raghav Aditya Chits Pvt. Ltd.& Anr.;
ii. Setting aside the common order dated 31.08.2019 passed by the learned District and Sessions Judge (South), Saket Court, New Delhi, in Criminal Revision petitions bearing no. 231/2019, 232/2019, and 233/2019, all titled Raghav Aditya Chits Pvt. Ltd. & Anr. vs Maya Toys (Saket),upholding the orders dated 09.05.2019 passed by the learned Metropolitan Magistrate;
iii. To send to cheques in question to FSL/Truth Lab or any other authority to for comparison of signatures on the cheque with specimen signatures and handwriting or with specimen signatures of petitioner no. 2/accused available with the banker of accused company.
3. Brief facts of the case, as per the complaint filed under Section 138/141 read with Section 142 of Negotiable Instruments Act, 1881 (NI Act) and read with Section 406/420/422 of Indian Penal Code 1860, are that the complainant/respondent i.e. M/s. Maya Toys (Saket) was an engaged in the business of toys and the accused no. 1/petitioner no. 1 i.e. Raghav Aditya Chits Pvt. Ltd. was a private chit fund having its office in Munirka, Delhi and accused no. 2/petitioner no. 2 i.e. Sumit Bodhraj was the Director of accused company. As per the complaint, the complainant was lured by the Director of accused company to contribute a monthly subscription for 25 months for a total chits value of Rs.30,00,000/- and the said monthly subscription was to vary between Rs.1,20,000/- to Rs.90,000/- per month and a passbook had also been issued by the accused company to the complainant. It is alleged that the complainant had started depositing the amount with the accused company with effect from 17.12.2011 and had regularly did so till 21.01.2014 i.e. for a complete period of 25 months. Against the said payments made by the complainant, the accused persons were to make a total payment of Rs.28,50,000/- to the complainant. It is stated that towards the said payment, the accused no. 1 through accused no. 2 had first issued a cheque of Rs.1,50,000 which was honoured on presentation and, thereafter, had issued three cheques bearing number 682801, 682802 and 682803 dated 28.01.2014, 30.01.2014 and 02.02.2014 respectively, drawn on Canara Bank, Munirka, New Delhi for a sum of Rs.9,00,000/- each. As alleged, cheque bearing no. 682801, dated 28.01.2014, was presented by the complainant with its bank i.e. Bank of India, Hauz Khas, New Delhi, but the same had got dishonoured vide returning memo dated 04.02.2014 for the reasons Reject-Funds. Thereafter, on the assurance of accused, the complainant had again presented the said cheque for encashment with its bank but the same had again got dishonoured on 24.02.2014 with the remarks R/F/I. It is alleged that the accused had again pleaded about his financial difficulty and had requested the complaint to again present the cheque and had assured that it would be cleared on presentation, and accordingly, the complainant had again presented the same cheque for encashment but the same had got dishonoured for the third time on 08.03.2014 with the remarks Reject-Funds. Similarly, cheque no. 682802, dated 30.01.2014, was presented by the complainant for encashment but the same had got dishonoured for the reasons Reject-Funds on 03.03.2014. Thereafter, upon the request made by accused, the complainant had again presented the cheque with its bank but the same had again got dishonoured upon presentation on 08.03.2014 with the remarks Reject-Funds. In respect of third cheque bearing no. 682803, dated 02.02.2014, the complaint had presented the same for encashment but the same had got dishonoured for the reasons Reject-Funds on 05.03.2014. Again upon presentation, the cheque had got dishonoured on 08.03.2014. After that, the complaint had issued a legal notice dated 25.03.2014 under Sections 138/141 of NI Act and Section 420 of IPC and had called upon the accused to make the payment of dishonoured cheques within 15 days. However, upon failure of the accused to make any payment, the present complaints i.e. C.C. No. 466867/2016, 466868/2016, and 466869/2016were filed before the learned MM by the complainant.
4. The accused persons were summoned vide order dated 21.11.2014 by the learned MM. Notice under Section 251 of Cr.P.C. was framed vide order dated 08.01.2016 and the accused had pleaded not guilty and claimed trial. The application filed under Section 145(2) of NI Act by the accused seeking cross-examination of the complainant was dismissed vide order dated 04.08.2016 on the ground that since the accused had taken defence that cheques had not been signed by him and he had not issued the same to complainant, no cross-examination was warranted in the present case. The revision petition against the said order was also dismissed by the learned Additional Sessions Judge, South district, Saket Court vide judgment dated 14.12.2016 on the ground that in view of the defence taken by the accused, nothing is required to be put in cross-examination to the complainant and the defence taken by the accused can be proved by him by leading defence evidence.
5. Thereafter, the accused had led the defence evidence and finally on 21.12.2018, the accused had filed an application for sending the cheques in question for comparison of signatures with the specimen signatures and writing of accused no. 2 to FSL. The learned MM after seeking reply from the complainant and after hearing arguments had dismissed the said application vide order dated 09.05.2019 and had put up the matter for remaining defence evidence or for final arguments. Aggrieved by the said order, the petitioners/accused persons had approached the learned Sessions Court by way of revision petitions and vide order dated 31.08.2019, the said revision petitions had been dismissed by the learned Sessions Court.
6. Aggrieved by the orders of learned MM and learned Sessions Court, the petitioners have approached this Court seeking setting aside of the aforesaid orders and for sending the cheques in question for comparison of signatures to the FSL.
7. Learned counsel for the petitioners argues that the application seeking comparison of the signatures by FSL/Truth Lab or any other authority is neither in contradiction to the spirit of NI Act nor barred by any law, and would in fact establish the truth which is the very purpose of adjudication of case. It is stated that the application filed by the accused seeking cross-examination of the complainant and his witnesses had been dismissed and, thus, the defence taken by the petitioners would be of no consequence or use until and unless the cheques in question are sent to FSL for comparison of the signatures. It is also argued that presumption under Section 139 of NIAct would come into picture only when the signatures on the cheque are admitted and not otherwise, and in the present case, the accused had taken the defence at the initial stage itself that he had not signed the cheque in question. It is argued that the Courts below have based their opinion on irrelevant considerations and these orders ought to be set aside. It is also submitted that delay in filing of the application for sending cheques to FSL was not voluntary but due to existent circumstances. Therefore, it is argued that present petitions be allowed.
8. Learned counsel for respondent/complainant, on the other hand, argues that learned Sessions Court has dealt with all the contentions raised before this Court by the petitioners and had dismissed their revision petitions by way of reasoned order. It is stated that the complainant has been able to successfully prove the existence of a legal liability of the petitioners to pay a sum of Rs.28,50,000/- by way of showing the passbook issued by the accused to the complainant. It is also stated that the cheques in question bear the same account number which is maintained by the accused company for the purpose of accepting deposits and making repayments. It is also stated that the signatures of accused on the checques in question match with the specimen signatures on the records of Canara Bank, produced and exhibited by DW-2 i.e. Mr. Manish Kumar before the Trial Court. It is also stated that the cheques were dishonoured for the reasons Reject-Funds and not because of mismatch of signatures. It is also stated that another cheque issued for a sum of Rs.1,50,000/- by the accused from of the same cheque-book bearing cheque no. 682804 was honoured upon presentation. It is also submitted that the petitioners have failed to show that the cheques had either been stolen or as to how they had come in the possession of petitioners. It is also stated that petitioners are habitual offenders and have several similar proceedings pending against them, and that in a similar case, the Trial Court as well as this Court had rejected the petitioners belated plea for comparison of signatures. Therefore, it is prayed that present petitions be dismissed.
9. The arguments addressed by learned counsel for the petitioners as well as learned counsel for respondents have been heard and the material placed on record as well as the Trial Court Record has been perused.
10. The relevant portion of the order dated 31.08.2019 passed by learned Sessions Court, vide which the revision petitions filed by the petitioners were dismissed, reads as under:
…6.2 In the instant case, admittedly, the revisionist no.2 is the Director of revisionist no.1. As per revisionist no.2 / accused no.2’s own testimony, there are two Directors in the revisionist no.1 company that is, the revisionist no.2 and his wife Ms. Mansi Wadhwa; his wife Ms. Mansi Wadhwa is not a professional director and is not involved in the day to day affairs of the company; and that it is the revisionist no.2, who is responsible for day to day affairs of the company. Further, the revisionist no.2 in his cross-examination has also admitted that the revisionist no. 1 / accused no. 1 company maintain its current account no. 1305201001828 with Canara Bank, Munirka branch New Delhi. After seeing the cheques in question he admitted that the account number missioned on each of these cheques is same as the account maintained by the revisionist no.1/ accused no.1 company with Canara Bank branch.
6.2.1 It is noteworthy that the revisionist no.2 has also stated in his complaint that the first cheque of Rs. 1,50,000/- issued in his favour from the same current account of the revisionist no.1, was honoured. This fact was even put to the revisionist no.2 in cross examination and his attention was drawn to the statement of revisionist no.1’s current account with Canara Bank which showed payment / debit of Rs.1,50,000/- lacs in the said account vide cheque no. 682804. The revisionist no.2 simply stated that he did not remember the same.
6.3 Further, perusal of the cheques in question on record, shows that the said cheques were issued by the Director of the revisionist’s company. Although, the revisionist no.2 has disputed that the signatures on the same are his.
6.4 In view of the above facts and circumstances more particularly that the dishonoured cheques in question were issued from the account of revisionist no.1 of which the revisionist no.2 is the director and Incharge of / responsible for its day to day affairs; and in absence of any specific averments that the said cheques were either misused or stolen etc. or that any complaint / FIR in that respect was lodged. Mere denial of signatures on the said cheques can hardly be the reason sufficient to refer the cheques in question to FSL.
***
6.5 As far as the revisionist’s general plea that the respondent has misused the blank cheques of the revisionist no.1 company is concerned, in view of the presumption under law, the onus is upon the revisionists to demonstrate such misuse; how the cheques came into the hands of the respondent etc. The revisionists’ evidence has been going on for more than two years. Nothing prevented the revisionist from seeking opinion of handwriting expert, if so desired by him, and producing the concerned expert as a witness. Such belated application simply denying his signature making general averment of misuse without any specifies, clearly reflect an intention to delay the trial, by the revisionists.
7.0 For the foregoing reasons, I find no merit in these revision petitions…

11. This Court has also gone through the Trial Court Record of the present case and a careful analysis and examination of the same reveals the following crucial facts:
a) Though the petitioner no. 2 had taken a plea at the initial stage itself that he had not issued the cheques in question or signed on the same, the application seeking comparison of signatures on the cheques by sending them to to FSL was filed at a belated stage in December, 2018, when the defence evidence had almost been concluded and the final arguments in the case were to be heard.
b) It is not disputed that petitioner no. 2 was responsible for day-to-day affairs and management of the accused company/petitioner no. 1, including being the authorized signatory of the company at the time when the cheques in question had been allegedly issued.
c) In the cross-examination, petitioner no. 2 had admitted that the accused company maintained its current account with Canara Bank,Munirka branch, Delhi and the account number mentioned on each of the cheques in question was same as that of the account maintained buy accused company with Canara Bank.
d) As per complainant, the accused had also issued a cheque of Rs.1,50,000 towards partial discharge of liability which had got encashed, and during the course of trial, the statement of the bank account of accused company also reflected debit of Rs.1,50,000 in favour of the complainant vide cheque no. 682804, however, the petitioner no. 2 had simply stated that he did not remember the same or that he will have to check the records.
e) It is also crucial to note that the cheques in question are numbered as 682801, 682802 and 682803, whereas the cheque of amount of Rs.1,50,000 which had got honoured and encashed upon presentation by the complainant was numbered as 682804.
f) The petitioner no. 2 has merely stated that he had not signed the cheques in question, however, he has not averred anything regarding as to how three cheques of the accused company had gone into the possession of the complainant, at the time when petitioner no. 2 was in-charge of responsible for day-to-day affairs of the company as well as its authorized signatory, and as to why the accused had not lodged any complaint regarding theft or misuse of the said cheques in question.
g) As admitted by petitioner no. 2 in his cross-examination, about 8-10 cases of NI Act were pending against him and the accused company and about three civil suits had already been decreed against the accused company.
12. A perusal of record also reveals that there are several other cases pending against the accused persons regarding alluring and duping people on the pretext of seeking investments in the chit funds and then issuing cheques towards repayment, and upon dishonour of the cheques, plea is taken that the cheques had not been signed by the accused without disclosing anything as to how the respective complainants had got the possession of such cheques. In this regard, this Court takes note of an order passed by Co-ordinate Bench of this Court in Crl.M.C. 343/2021 titled Raghav Aditya Chits Pvt. Ltd. v. Vijay Rekhiwhere in a similar case, the application seeking referral of cheques to FSL for comparison of signatures was dismissed by the Trial Court and by this Court also. The Trial Court Record also reflects a civil suit filed by one Mr. Lajpat Rai Madan against the same accused persons on the similar grounds that they had taken money from the said person by way of a chit fund scheme and had issued cheques which had got dishonoured. The judgment dated 21.08.2018 passed in the said civil suit reveals that similar defence regarding not issuing cheques and signatures being forged by the plaintiff was taken by the accused therein and it was observed by the Court concerned that the whole case of the accused was based on bare denials without explaining as to how the cheques had reached into the hands of the plaintiff therein. Though the petitioner no. 2 herein had also denied existence of any relation or issuance of any passbook or cheques to the complainant, he had failed to explain as to how and why an amount of Rs.1,50,000/- had got debited from the bank account of accused company and transferred to the bank account of complainant, and the documents placed on record by the complainant also prima facie reflects transaction between the accused company and the complainant.
13. Having gone through the records of the case and examined the same, this Court is of the opinion that these applications filed by the petitioners are devoid of any merit. Thus, in view of the aforesaid facts and circumstances, this Court does not find any infirmity with the order of learned Sessions Court which has been impugned before this Court.
14. Accordingly, these petitions are dismissed along with pending applications if any.
15. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J
OCTOBER 12, 2023/

CRL.M.C. 1212/2020 &connected matters Page 1 of 13