Delhi High Court

Shalini Securities Private ... vs Lokesh Thakkar & Anr on 14 September, 2023

                          $~

                          *      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
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                                  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