While refusing to quash a complaint filed under Section 138 of the Negotiable Instruments Act (NI Act) against Shalini Securities Private Limited (petitioner) and its ex-director for issuing cheques after its director's resignation, the Delhi High Court has emphasized that the issues raised in the present complaint necessitated evidence and cannot be decided through the present petitions.

A Single Judge Bench of Justice Sudhir Kumar Jain observed that “The important issue which is to be decided by the trial 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”.

The Bench further added that “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”.

Advocate Harsha Gollamudi appeared for the Petitioner, whereas Advocate Abhishek Keer appeared for the Respondent.

The brief issue involved in the present case was that Lokesh Thakkar (respondent herein) contended that he and Amandeep Singh (ex-director of Shalini Securities Private Limited) were involved in the real estate business. Amandeep Singh, persuaded Lokesh Thakkar to enter into financial arrangements with them, become a business partner, and invest in M/s Shalini Securities Private Limited. Amandeep Singh had promised Lokesh Thakkar significant gains through this investment. Over the period from 2009 to 2017, Lokesh Thakkar had transferred a total of Rs. 10 crores and 40 lakhs to Amandeep Singh, both in cash and through bank transfers. However, In July 2017, Lokesh Thakkar encountered difficulties in paying the interest on the loans he had acquired from the market, which he had invested in Amandeep Singh's project. As a result, Lokesh Thakkar approached Amandeep Singh to claim his share of the profits. In an attempt to settle the matter, Amandeep Singh provided Lokesh Thakkar with 11 post-dated cheques, each valued at Rs. 50 lakhs, drawn from the account of M/s Shalini Securities Private Limited. However, these cheques were dishonored by the bank due to insufficient funds. Subsequently, Lokesh Thakkar filed a complaint under Section 138 of the NI Act. M/s Shalini Securities Private Limited and Amandeep Singh, feeling aggrieved by the situation, filed the present petition seeking the quashing of the complaint in question.

After considering the submission, the Bench found from the record that Amandeep Singh had resigned as a Director from M/s Shalini Securities Private Limited in the year 2012, and this occurred well before the issuance of the disputed cheques.

Therefore, after tendering resignation to M/s Shalini Securities Private Limited, Amandeep Singh was no longer a person responsible for the affairs of the company, added the Bench.

The Bench took note of the fact that Lokesh Thakkar had alleged that the disputed cheques were delivered/handed over to him by Amandeep Singh, and found that it was the responsibility of Amandeep Singh to provide an explanation regarding how he came into possession of these cheques from the account of M/s Shalini Securities Private Limited, especially after his resignation as Director.

Furthermore, upon examination of the cheques in question, the Bench found that the cheques were issued from the account held on behalf of M/s Shalini Securities Private Limited and were signed by Amandeep Singh.

Thus, the Bench highlighted that the burden of proving how these cheques came into Amandeep Singh's possession and under what circumstances they were issued in favour of Lokesh Thakkar rested on M/s Shalini Securities Private Limited and Amandeep Singh, and these issues cannot be conclusively decided without the presentation of evidence during the proceedings.

Therefore, the High Court concluded that, at this stage, M/s Shalini Securities Private Limited and Amandeep Singh should not be allowed to take advantage of their actions in issuing the disputed cheques in favour of Lokesh Thakkar, and dismissed the petition with a cost of Rs. 25,000 imposed on each of M/s Shalini Securities Private Limited and Amandeep Singh, to be paid to Lokesh Thakkar before the trial court on the next date of hearing.

Cause Title: Shalini Securities Private Limited and Anr v. Lokesh Thakkar and Anr. [2023: DHC: 6681]

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Delhi High CourtJustice Sudhir Kumar JainNegotiable Instruments Act

Pankaj Bajpai