Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 26, Cited by 0]

Delhi District Court

Mandeep Singh Chhatwal vs . Sanjeev Channana on 30 January, 2020

                  IN THE COURT OF SH. VIPUL SANDWAR
      METROPOLITAN MAGISTRATE ­05 (N.I. ACT), PATIALA HOUSE COURTS :
                              NEW DELHI

 CC No. 14951/17
 Mandeep Singh Chhatwal Vs. Sanjeev Channana

1.     Complaint Case number           : 14951/17

2      Name of the complainant : Mr. Mandeep Singh Chhatwal
                                 C­7, Green Park Extension, New Delhi.
3.     Name and address of the : Shri Sanjeev Channana
       accused                   S/o Late Sh. I.K. Channana
                                 R/o D­37, Panchsheel Enclave, New
                                 Delhi.

                                         Also at: C­34, Soami Nagar, New Delhi.
4.     Offence complained of           : Section 138 of the Negotiable
                                         Instruments Act, 1881.

5.     Plea of the accused             : Pleaded not guilty and claimed trial.
6.     Final Order                     : Acquittal

7.     Date of Institution            : 31.03.2011
8.     Date of Reserving          the : 04.11.2019
       Judgment

9.     Date of pronouncement           : 30.01.2020


                                     JUDGEMENT:

1. Briefly stated, case of the complainant is that the complainant and one Mr. Amanpreet Singh Kohli had entered into an agreement to sell dated 01.06.2007 (hereinafter referred to as "Saket ATS") with the respondent for purchasing entire basement and first floor of proposed building to be constructed on property bearing C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 1/35 no. J­282, Saket, New Delhi alongwith proportionate share of ownership rights in land underneath the building for a total sale consideration of Rs. 1,60,00,000/­ (Rs. One Crore and Sixty Lakhs).

2. In furtherance of the agreement, the complainant and Mr. Amanpreet Singh Kohli paid a sum of Rs. 1,35,00,000/­ (Rs. One Crore and Thirty Five Lakhs) to the respondent. That the respondent was required to clear water and electricity charges, house tax or any other dues in relation to the said property and execute a sale deed and hand over possession to the complainant and Mr. Amanpreet Singh Kohli. That the respondent was also given an option to repurchase the said property from the complainant and Mr. Amanpreet Singh Kohli within 24 months from the date of agreement by refunding the amount received from them back to them along­with profit.

3. The respondent was not willing to execute the sale deed and in fact, the respondent had entered into another agreement with some third party to sell the said property thereby cheating the complainant and Mr. Amanpreet Singh Kohli, the respondent requested the complainant and Mr. Amanpreet Singh Kohli that they cancel the agreement to sell and the respondent would refund the amount taken from them i.e. Rs. 1,35,00,000/­ (Rs. One Crore and Thirty Five Lakhs) along­with profit of Rs. 1,11,50,000/­ (Rs. One Crore Elevan Lakhs) i.e. The respondent would pay a total amount of Rs. 2,46,50,000/­ (Rs. Two Crore Forty Six Lakhs & Fifty Thousand) to the complainant and Mr. Amanpreet Singh Kohli.

4. Thereafter, a cancellation agreement was drawn on 23.09.2009 (hereinafter referred to as "Saket Cancellation Agreement"). The respondent paid an amount C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 2/35 of Rs. 1,35,00,000/­ (Rs. One Crore and Thirty Five Lakhs) and towards part payment of the balance, paid Rs. 23,50,000/­ (Rs. Twenty Three Lakhs and Fity Thousand) and for the remaining amount of respondment gave to the complainant and a post dated cheque bearing no. 000235 dt. 01.08.2010 for a sum of Rs. 65,50,000/­ drawn on Kotak Mahindra Bank, New Delhi (hereinafter referred to as 'cheque in question') and a cheque of Rs. 22,50,000/­ to Mr. Amandpreet Singh Kohli.

5. Complainant presented the said cheque to his banker i.e. Standard Chartered Bank, but the said cheque was returned upaid as dishonored with remarks 'refer to drawer' vide return memo dated 20.01.2011. The legal notice dated 16.02.2011 was duly sent by the complainant to the accused by speed post as well as courier in this regard within the prescribed period of limitation. The accused failed to pay the cheque amount within the statutory period. Hence, the present complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') has been filed.

6. Accused entered appearance in the present matter for the first time on 03.03.2012 after issuance of NBWs and was admitted to bail on the same day i.e. 03.03.2012. Notice under Section 251 Cr.P.C. was served upon accused on 26.09.2012, to which he pleaded not guilty and claimed trial. Thereafter, accused was allowed to cross­examine the complainant u/s 145 (2) NI Act. After cross examination of the complainant, matter was fixed for statement of the accused under Section 313 Cr.P.C and the same was recorded on 17.04.2017. Matter was thereafter fixed for final arguments.

C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 3/35

EVIDENCE

7. In order to support his case, the complainant Mandeep Singh Chhatwal had stepped into the witness box as CW­2 and tendered his affidavit Ex.CW1/A into evidence wherein averments made in the complaint were reiterated. He also relied upon various documents such as cancellation agreement which is Ex. CW1/1, orgiinal cheque in question Ex.CW1/2, the returning memo Ex.CW1/3, post receips, courier rceipts and return envelopes are collectively Ex. CW1/4 (Colly). Sh. Mandeep Bedi examined as Ex. CW3 and Sh. Amanpreet Singh examined as CW­

1. No other witness was examined by the complainant.

8. On the other hand, accused examined Sanjeev Channa as DW­2 after his application under S. 315 Cr. P.C was allowed vide order dated 11.04.2018.

APPLICABLE LAW

9. Before appreciating the facts of the case in detail for the purpose of decision, let relevant position of law be discussed first. Now, Section 138 Negotiable Instrument Act provides as under:

Section 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 C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 4/35 may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless ­ (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, 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.
It is well settled position of law that to constitute an offence under S.138 N.I. Act, the following ingredients are required to be fulfilled: (1) drawing of the cheque by a person on an account maintained by him with a banker, for payment to another person from out of that account for discharge in whole/part any debt or liability; (2) cheque has been presented to the bank within a period of six months (now three months) from the date on which it is drawn or within the period of its validity whichever is earlier; (3) returning the cheque unpaid by the drawee bank for want of sufficient funds to the credit of the drawer or any arrangement with the banker to pay the sum covered by the cheque, (4) giving notice in writing to the drawer of the cheque within 30 days of the receipt of information by the payee from the bank regarding the return of the cheque as unpaid demanding payment of the cheque amount, (5) failure of the drawer to make payment to the payee or the holder in due course of the cheque, of the amount covered by the cheque within 15 days of the receipt of the notice.
Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 5/35 offence under Section 138 of the N I Act.
The Act raises two presumptions in favour of the holder of the cheque i.e. complainant in the present case; firstly, in regard to the passing of consideration as contained in Section 118 (a) therein and, secondly, a presumption under Section 139, that the holder of cheque receiving the same of the nature referred to in Section 138 for discharge, in whole or in part, of any debt or other liability.
Analysing all the concerned provisions of law and various pronouncements in this regard, the Hon'ble Apex Court in Basalingappa v. Mudibasappa, AIR 2019 SC 1983, noted at para 23 as follows [Bharat Barrel and Drum Manufacturing Company v. Amin Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441 referred]:
(i) Once the execution of cheque is admitted, Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposes an evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to support his defence.
C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 6/35

To put in nutshell, the law regarding the presumption for the offence under Section 138 N.I. Act,is that the presumptions under Sections 118(a) and 139 have to be compulsorily raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted upon the accused to prove otherwise. These presumptions shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability etc. The onus to prove the issuance of the cheque lies upon the complainant, and the same has to be proved beyond reasonable doubt, unless the accused admits the same. Once the issuance of cheque is established, either by admission or by positive evidence, the presumption under Section 139 of the Negotiable Instruments Act, 1881 arises. We can summarize the general principles in the following way:

Onus of proof: Section 139 of the Negotiable Instruments Act, 1881 states that it shall be presumed, unless the contrary is proved that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. Therefore, here the onus shifts upon the accused to prove the nonexistence of debt or other liability. Section 139 of the N.I. Act uses the word "shall presume", which means that the presumption under Section 139 is rebuttable.
Standard of proof: The standard of proof required to rebut the presumption under Section 139 is that of "preponderance of probabilities". Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or other liability, the onus shifts back to the complainant to prove by way of evidence, beyond reasonable doubt, that the cheque in question was issued by the accused in discharge, whole or in part, of any debt or other liability, and now the presumptions under Section 118 (a) and Section 139 will not come to the aid of the complainant.
Mode of Proof: The accused may adduce direct evidence to prove that the C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 7/35 cheque in question was not supported by consideration, and that there was no debt or liability to be discharged by him. However, the Court need not insist in every case that the accused should prove the nonexistence of the consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that a bare denial of passing of consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances upon the consideration of which, the Court may either believe that the consideration and debt did not exist, or their nonexistence was so probable that a prudent man would, under circumstances of the case, act upon the plea that they did not exist.
As discussed above, from the legal provisions and the law laid down in various judgments, it can be safely gathered that it is for the accused to rebut the presumptions. He can do so by cross examining the complainant, leading defence evidence, thereby demolishing the case of the complainant. It is amply clear that the accused does not need to discharge his or her liability beyond the shadow of reasonable doubt. He just needs to create holes in the case set out by the complainant. accused can say that the version brought forth by the complainant is inherently unbelievable and therefore the prosecution cannot stand. In this situation the accused has nothing to do except to point inherent inconsistency in the version of the complainant or the accused can give his version of the story and say that on the basis of his version the story of the complainant cannot be believed.
ARGUMENTS AND APPRECIATION OF EVIDENCE
10. It is pertinant to mention here, before going further, that apart from the cancellation agreement as mentioned in the facts above, two other C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 8/35 cancellation agreements ie. Cancellation agreement for Saket and Cancellation Agreement were also entered into between the same parties and apart from the present complaint,4 other complaint cases i.e. Mandeep Singh Chhatwal v. Jagdambey Builders Pvt. Ltd. CC No. 14952/17, Amanpreet Singh Kohli v. Sanjeev Channana CC No. 24631/16, Amanpreet Singh Kohli v.

Jagdambey Builders Pvt. Ltd. CC No. 22836/16 and Amanpreet Singh Kohli v Jagdambey Builders Pvt. Ltd. CC No. 22871/16 which are connected will be decided alongwith the present complaint. Though separately filed, common evidence was also recorded when the cases were clubbed in one court. Therefore, appraisal of evidence will be done by taking into account all the complaints and the agreements/ cancellation agreements involved.

11. Ld. counsel for the complainant has argued that all the requirements of Section 138 NI Act have been met with in the present case and, hence, the accused be convicted. I have heard the arguments and also gone through the record carefully.

As the accused has not disputed the issuance of cheques or the signatures on the cheques in the present case, presumptions under Section 118 (a) read with Section 139 of NI Act about the cheques in question having been issued for consideration and in discharge of legal liability arise in favour of the complainant. Accused has not disputed dishonor of cheques in question.

In reply to the notice u/s 251 CrPC, the accused has stated that the cheque in question was given as a security cheque to the complainant. Further, he C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 9/35 has stated that the details with respect to the cheque in question were not filled in the Safdarjung Cancellation Agreement in his presence and that the cheque was not issued in furtherance or discharge of legal liability.

12. In his examination under S. 313 CrPC accused stated that the Safdarjung ATS (Ex. CW3/DC)[cw1/dX1] was never finalized as the said agreement was not executed by Newport Construction Company Pvt. Ltd., which was a party to the Safdarjung ATS. Further, the accused denied the entire transaction by stating that neither was the sale of 35% of undivided interest in a property practical nor possible and that when the entire sale consideration was Rs. 86 lacs, there was no reason why the complainant and other parties would pay the accused Rs. 85 lacs in advance. Further, the accused stated that the Safdarjung Cancellation Agreement was executed by him under coercion in a polic station. To a specific question regarding the Legal demand notice, the accused denied receiving of the same.

It has been held by Hon'ble High Court of Delhi in V. S. Yadav v. Veena Crl. App1136 of 2010 that:

It must be borne in mind that the statement of accused under Section 281 Cr. P.C. or under Section 313 Cr. P.C. is not the evidence of the accused and it cannot be read as part of evidence. The accused has an option to examine himself as a witness. Where the accused does not examine himself as a witness, his statement under Section 281 Cr. P.C. or 313 Cr. P.C. cannot be read as evidence of the accused and it has to be looked into only as an explanation of the incriminating circumstance and not as evidence. There is no presumption of law that explanation given by the accused was truthful.
Offence under Section 138 of N.I. Act is a technical offence and the complainant is C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 10/35 only supposed to prove that the cheques issued by the respondent were dishonoured, his statement that cheques were issued against liability or debt is sufficient proof of the debt or liability and the onus shifts to the respondent/ accused to show the circumstances under which the cheques came to be issued and this could be proved by the respondent only by way of evidence and not by leading no evidence.
The Supreme Court in Krishna Janardhan Bhat v.
Dattatraya G. Hegde, 2008 Crl. L.J. 1172 has stated that:
Mere pleading not guilty and stating that the cheques were issued as security, would not amount to rebutting the presumption raised under Section 139 of N.I. Act. If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued.

13. Therefore, in view of the above discussion whatever that has been stated by accused in reply to notice under S. 251 CrPC or in his examination under S. 313 CrPC are only explanation of the incriminating circumstances against him and cannot be considered evidence.

14. Ld. counsel for accused has at the outset taken a defence that there is no legal liability of the accused since the Safdarjung ATS, Saket ATS and Malviya Nagar ATS, despite being the principal documents, have not been proved by the Complainants. It is submitted that liability of the accused (as submitted by the Complainants) allegedly accrues from the Safdarjung Cancellation Agreement, Saket Cancellation Agreement and Malviya Nagar Cancellation Agreements C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 11/35 (collectively referred to as "Cancellation Agreements"), which themselves arise out of the Safdarjung ATS, Saket ATS and Malviya Nagar ATS, being agreements which have not been proved.

Safdarjung ATS (CC No. 22836/16 and CC No. 14952/17)

15. In brief, Ld. Counsel for the accused has submitted that the Safdarjung ATS was never finalised as: (i) the copy of the Safdarjung ATS was not produced by the complainant despite a specific mention in the Safdarjung Cancellation Agreement that a copy of the same has been provided to the complainant; (ii) not probable that three persons would agree to purchase 35% of the undivided interest in one floor;

(iii) one of the parties to the Safdarjung ATS, i.e., New Port has not signed it despite being the party who had allegedly paid 50% of the sale consideration; (iv) no rationale for paying Rs. 85 lacs out of Rs. 86 lacs as advance, that too, entirely in cash; (v) no rationale for not filing a suit for specific performance after the expiry of the agreed period of 75 days; (vi) no rationale for entering into the Malviya Nagar ATS on 21.07.2007, i.e., after expiry of 75 days from execution of the Safdarjung ATS, when the Safdarjung ATS was not honoured by the accused; (vii) no proof of payment apart from the Safdarjung ATS itself; (viii) the witness to the Safdarjung ATS was Mr. Mandeep Bedi, who is a friend of the Complainants.

16. Firstly, the failure on part of the complainant to bring the copy of the Safdarjung ATS by itself is not detrimental to the presumption under Section 139 NI Act, since the complainant has relied on the Safdarjung Cancellation Agreement to establish the liability of the accused. Further, once the original Safdarjung ATS has been placed on record by the accused, the non­production of the Safdarjung ATS by the complainant does not point towards its non­finalization/execution.

C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 12/35

17. Secondly, it is interesting to note that while the Ld. Counsel for the accused has submitted that it is improbable that an agreement for sale of 35% undivided interest would be agreed upon, the accused/DW­2 in his examination in chief on 11.04.2017 stated that: "The complainants henceforth also intended to invest in our deals and subsequently 3 agreements were prepared for the property situated in Safdarung Enclave, Malviya Nagar and Saket. The said agreements were not enforced as no transactions took place. Further, the said agreements were not even signed by all the parties to the agreement."

18. A perusal of the aforesaid statement indicates that while the accused has stated that the agreements were not enforced since no transactions took place and not all parties had signed them, he has admitted to them being prepared. As a result, the terms of the Safdarjung ATS, regardless of their impracticality, cannot be used to evince the non­finalization of the said ATS.

19. Thirdly, it has been submitted by the Ld. Counsel for the accused that the Safdarjng ATS was not finalized since the same was not signed by New Port, being a party which had purportedly paid 50% of the sale consideration to the accused. A perusal of the Safdarjung ATS, Ex. CW3/DC, shows that the same has not been signed by New Port. Further while the complainant in his cross­examination dated 20.02.2016 had stated that the Safdarjung ATS was executed by "myself and Mr. Amanpreet Singh Kohli and M/s New port Constructions Pvt. Ltd.", in his cross­examination dated 30.05.2016, he has stated that:

C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 13/35
"It is correct that Ex. CW1/D­2 is not signed by New Port Construcion Pvt. Limited". It was further voluntarily stated by the complainant that the accused was supposed to get the agreement to sell signed by New Port, which was delayed by the accused. Mr. Amanpreet Singh Kohli in his cross­examination dated 24.09.2015, has also stated that the said Safdarjung ATS has not been signed by New Port. As such, the complainant and Amanpreet Singh Kohli have themselves admitted that the Safdarjung ATS has not been executed by New Port. While Ld. Counsel for the complainant has argued that the Safdarjung Cancellation Agreement has been signed by New Port, which indicates that the Safdarjung ATS was executed as well, however, the same is not tenable since the original Safdarjung ATS which has been produced by the accused (and not objected to by the complainant) clearly shows that the same has not been signed by New Port. No person from New Port has been called as a witness to testify to the contrary.
20. Further, CW­3/Mr. Mandeep Bedi, who is a witness to the Safdarjung Cancellation Agreement, in his cross­examination dated 14.07.2016, has stated that "I do not know who had signed the agreement Ex. CW1/1 in CC No. 412/14 on behalf of M/s Newport Construction Private Ltd.........Exhibit CW1/1 was executed at the place of the accused at Panchseel Enclave in the presence of Mr. I.K. Channana, Mr. Sanjeev Channana, Mr. Amanpreet Singh Kohli, the complainant and myself." Further, the complainant in his cross­ examination dated 05.07.2017, has stated that "at the time of entering into the Cancellation Agreement, no one was present on behalf of New Port Construction Co.". Further, it was voluntarily submitted by him C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 14/35 that the accused himself got the Cancellation Agreement signed by New Port. A persual of the said statements evidences neither the complainant nor the witness saw New Port executing the Safdarjung Cancellation Agreement. Thus, the argument of the Ld. Counsel of the complainant in this regard is not tenable.
21. Per Section 10 of the Indian Contract Act, 1872, a contract is said to be concluded only if it is made with the free consent of all the parties to the contract. Further, Section 13 of the Indian Contract Act, 1872 states that "two or more persons are said to consent when they agree upon the same thing in the same sense" . In the present case, the signatures appended on the Safdarjung ATS is the only mode by which consent qua the terms of the said ATS is expressed. In view of the provisions of the Indian Contract Act, 1872 and the fact that New Port has admittedly not signed the Safdarjung ATS, the validity of the said ATS is doubtful. It is pertinent to note that Mr. Mandeep Bedi, i.e., CW­3, who has signed as a witness on the Safdarjung ATS, in his cross­examination dated 16.03.2016 had stated that:
"At presently I do not remember anything about the Agreement to Sell, if any, was executed between the complainant, Mandeep Singh Chattwal, Newport Construction Pvt. Ltd. and the accused." Mr. Bedi/CW­3 had stated that he could not recollect the same as it was an old matter. It is interesting to note that while deposing Mr. Bedi/CW­3 stated that he knows about the Cancellation Agreement which was executed in 2009, but did not remember signing the Safdarjung ATS, which was executed only 2 years before the said cancellation agreement. The non­execution of the Safdarjug ATS by New Port gains significance for the fact that the said party was to pay 50% of the sale consideration to the accused and the Safdarjung Cancellation Agreement categorically records that the same was paid by New Port at the time of C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 15/35 the Safdarjung ATS and also returned at the time of the Cancellation Agreement. As such, the non­execution of the said ATS by New Port does adduce the argument advanced by the accused with respect to non­finalization of the Safdarjung ATS.
22. Further, the complainant and Amanpreet Singh Kohli in their cross­ examination dated 05.07.2017 and 28.01.2016 respectively have categorically stated that they did not file any suit for specific performance and did not give any legal notice to the accused after the expiry of 75 days from the date of execution of the Safdarjung ATS. That is to say that they did not take recourse of any legal remedy when the accused did not execute the sale deed. Given that per the submissions of the complainant, they had paid Rs. 85 lacs out of Rs. 86 lacs, their conduct of not taking any recourse to legal remedies; and waiting for 2 years to sign the Safdarjung Cancellation Agreement, does not seem to be an act which is consonance with actions of a prudent/reasonable man. Additionally, Amanpreet Singh Kohli in his cross­examination dated 27.08.2015, had stated that he had entered into certain other agreements with the accused after the execution of the Cancellation Agreements and had paid an amount of Rs. 2.05 crore to the accused in respect of the same. Further, in his cross­examination dated 20.01.2016, the complainant has stated that he had entered into another agreement with the accused for the purchase of 3 flats at Mehrauli. Such conduct of the complainant of continually engaging in transactions with the accused even after 3 agreements of similar nature had not been acted upon by the accused is not in line with the actions of a prudent man and point towards the non­existence of liability of the accused.
C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 16/35
Saket ATS (CC No. 14951/17 and CC No. 24631/17)
23. In brief, Ld. Counsel for the accused has submitted that the Saket ATS was never executed since (i) there were no signatures of the complainant on the first three pages of the Saket ATS (Ex. CW1/D1) and the fourth page is cancelled; (ii) no rationale for paying Rs. 1.35 crore out of Rs. 1.60 crore as advance, that too, entirely in cash; (iii) no rationale for not filing a suit for specific performance after the expiry of the agreed period of 18 months.
24. At the oustet, it is to be considered that the complainant and the accused have placed on record two different versions of the Saket ATS. While the ATS placed on record by the complainant (i.e., Mark P3) is a photocopy, the original has been brought by the accused (Ex. CW1/D1). The last page of the original Saket ATS, Ex. CW1/D1 is cancelled and contains no terms regarding repurchase of the property by the accused whereas the last page of the photocopy, i.e., Mark P3 is not cancelled and contains the terms of repurchase of the said property by the accused after refunding the sale consideration along with some lump sum profit. As such, each party has brought a self­serving version of the Saket ATS.
25. Firstly, a perusal of both versions of the Saket ATS shows that while all other parties have signed on all pages of the said ATS, the complainant has only signed on the fourth/last page of the ATS. No reason has been given for the same. The same gains prominence since the complainant has alleged to have paid 74.5% of the total sale consideration to the accused. Further, the accused has submitted that the said ATS was never finalized and hence, the last page was cancelled.On the other hand, the complainant in his cross­examination dated 05.07.2017 has stated that the said cancelled page was replaced with the fourth page containing C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 17/35 the details of the re­purchase clause (photocopy of which has been placed on record). He has further submitted that the accused has removed the last page which was agreed upon and placed the crossed page on record.
26. Per Section 64 of the Indian Evidence Act, 1872, documents must be proved by primary evidence except in cases hereinafter mentioned, i.e., Section 65, 65A and 65B. The version of Saket ATS placed on record by the accused is primary evidence, being the original and it has been admitted by the complainant that he has signed at point 'AA' on the last page of the original Saket ATS brought by the accused; and he has not been able to prove that when and why the last page of the agreement was changed. As such, the accused has raised a reasonable probabiltiy of the Saket ATS not having been finalized and duly executed.
27. Further, as set out above, the actions/conduct of the complainant and Mr. Manpreet Singh Kohli in not filing a suit for specific performance despite having paid Rs. 1.35 crore out of Rs. 1.60 crore is not in accordance with the conduct of a prudent man and do weigh in favour of non­occurence of the aforesaid transactions.
Malviya Nagar ATS (CC No. 22871/16)
28. In brief, the Ld. Counsel for the accused submitted that the Malviya Nagar ATS was not concluded. His submissions were as follows­:
(1) That the agreement to sell, a photocopy of which, according to the Cancellation agreement was supposed to be in the posession of the complainant was not produced in the court.
(2) That the Malviya nagar ATS was signed and payments were made in cash C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 18/35 even when on 10.07.2007 the buy back period of the Safdarjung property had expired and accused was unwilling to perform his part of the contract. (3) That there was no rationale for not filing a suit for specific performance after the expiry of the agreed period which was only 20 days from the date of execution of the ATS which suggests that the construction was complete at the time when ATS was signed but neither posession of the property was taken neither efforts were made to get the sale deed registered.
29. The primary thing to be taken into consideration is the non placement of even copy of ATS of Malviya nagar property by the complainant, let alone placing the original. The accused's contention with this regard stands backed up due to the absence of the said ATS on record. Further, no reasonable explanation could be adduced from the statements of Amanpreet Singh Kohli that why he unreluctanty had entered into another ATS with the accused and had paid him the full amount then and there on its execution when he was totally aware of the accused's past conduct of non performance. It is expected of a prudent man to learn from his past acts and not move without taking into considerations the probable consequences.

Further, as set out in his cross examination dated 21.01.2016 Amanpreet Singh Kohli has admitted to have signed more agreements with I.K Chanana in september 2009 after execution of the cancellation Agreements. Additionally, as set out above, the actions/conduct of the Amanpreet Singh Kohli in not filing a suit for specific performance despite having paid the full amount of Rs.15 lacs is not in accordance with the conduct of a prudent man and do weigh in favour of non­ occurence of the aforesaid transactions.

30. Ld. Counsel for the accused has submitted that though the ATS in respect C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 19/35 of all the properties were never finalized, the accused was coerced into signing the blank versions of the Cancellation Agreements while he was detained at Special Cell, PS Lodhi Colony, at the behest of the complainant and Amanpreet Singh Kohli. At this stage, it is important to note that the accused has not adduced any direct evidence in support of submission that he was coerced. In fact in his cross­ examination dated 05.06.2018 he has stated that "I cannot show any document or any material to show that I had gone to Special Cell, PS Lodhi Colony on 23.09.2009" and that "It is correct that I had not filed any complaint or any case against the complainants or the police officers stating that I had been threatened to execute the cancellation agreements in this case".

31. Ld. Counsel for the accused has on the other hand relied upon the inconsistencies in the testimony of the complainant, Amanpreet Singh Kohli and the witness to the Cancellation Agreements and upon the terms of the Cancellation Agreements to show that the Cancellation Agreements could not have been freely executed by the accused.

Safdarjung Cancellation Agreement (CC No. 14592/17 and CC No. 22836/16)

32. In brief, the Ld. Counsel for the accused in support of the argument has submitted that: (i) the lump sum profit mentioned in the Safdarjung Cancellation Agreement is not the same as the re­purchase clause in the alleged Safdarjung ATS; (ii) while New Port has signed the Cancellation Agreement, the agreement does not accord any profit to it; despite it allegedly having paid 50% of the sale C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 20/35 consideration; (iii) the date of the cheques in question is in itself contrary to the terms of the Cancellation Agreements; (iv) the complainant and the witness have deposed differently as to the place of execution of the Safdarjung Cancellation Agreement.

33. With regard to the first submission, it is correct that while the re­purchase clause of the Safdarjung ATS had contemplated refund of the sale consideration along with 10% interest, the Safdarjung Cancellation Agreement states that in terms of the Safdarjung ATS the complainant and Amanpreet Singh Kohli are entitled to lump sum profit of Rs. 37,00,000. As such, the same is inconsistent with the terms of the Safdarjung ATS. The accused has used this fact to show that while he had been coerced to sign the blank Cancellation Agreements, the terms such as the profit amount were filled in by the complainant without the presence/consent of the accused. It is a matter of record that the amount of lump sum profit has been filled in by hand by the complainant. The same has been admitted by the complainant in his cross­examination.

34. Further, it is pertinent to note that as submitted by the accused, while the Cancellation Agreement has been signed by all parties (including New Port), the profit of Rs. 37 lacs is distributed between the complainant and Amanpreet Singh Kohli. Consequently, cheques of Rs. 17 lac and Rs. 10 lac have been issued to the complainant and Amanpreet Singh Kohli respectively. The complainant and Amanpreet Singh Kohli have stated in their cross­examination dated 28.01.2016 that New Port was not to receive any profit under the Cancellation Agreement since New Port had mutually settled the matter with the accused separately. Further, it is also admitted by them, that the factum of the separate settlement between New C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 21/35 Port and the accused has not been mentioned in the recital of the Cancellation Agreement. However, no one from New Port has been examined by the complainant to testify on the said subject.

35. Additionally, a perusal of the Cancellation Agreement indicates that the lump sum profit had to be paid within 10 months from the date of execution of the Cancellation Agreement, i.e., 23.09.2009. However, the cheque which, by the version of the complainant was purportedly given by the accused to the complainant for paying the profit at the time of execution of the Cancellation Agreement, is dated 01.08.2010 (a fact recorded in the Cancellation Agreement), which is beyond the period of 10 months. This fact also raises an apprehsion as regards the details in the blank spaces of the Cancellation Agreement being filled later and not at the time of the execution of the Cancellation Agreement.

36. Further, while the witness Mandeep Bedi to the execution of the cancellation agreement has deposed in his cross examination that the place of execution of the said agreement was the residence of the accused in Panchsheel Enclave; on the contrary, Amanpreet Singh Kohli in his cross examination dated 04.06.2013 has stated the place of execution to be the office of the accused in Swami Nagar.Such inconsistent statements on the part of complainant witnesses raises a doubt on the due execution of the Cancellation Agreement.

37. Further, the complainant witness Mandeep Bedi in his cross examination dated 05.07.2017 has stated the number of Cancellation Agreements to be 3,while in his cross examination dated 28.09.2016 he has deposed that there were only 1/2 Cancellation Agreements, which again raises suspicion on the execution of the said Cancellation Agreements. Further, witness Mandeep Bedi in his cross examination C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 22/35 dated 14.07.2016 has deposed to the fact of the presence of I.K Chanana apart from parties to the agreement. However,he being present at the time of execution of the Cancellation Agreements has not attested on the same. Further witness Mandeep Bedi, complainant Mandeep Chatwal and accused Sanjeev Chanana in their cross examination respectively have stated that New Port construction has not signed the Cancellation Agreements in their presence.

38. Additionally, the photocopy of the Safdarjung Cancellation Agreement produced by the complainant as part of the pre­summoning evidence in Mandeep Singh Chhatwal v. Jagdambey Builders CC No.14952/17 (filed on 31.03.2011); which is a later instituted suit, does not bear the signatures of New Port. On the other hand, the original placed on record in the earlier instituted Amanpreet Singh Kohli v. Jagdambey Builders CC No. 22836/16 (filed on 01.02.2011), bear the signatures of New Port. While Amanpreet Singh Kohli in his cross­examination dated 28.01.2016 has deposed that the accused got the Safdarjung Cancellation Agreement signed by New Port later on. While on the other hand, the original Cancellation Agreement bearing signature of New Port has also been produced by the complainant himself. A cumulative reading of the aforesaid facts indicates that the execution of the Safdarjung Cancellation Agreement has not been established.

Saket and Malviya Nagar Cancellation Agreement (CC No. 14951/17, CC No. 24631/17 and CC No.22871/16)

39. In brief, Ld. Counsel for the accused in support of the argument has submitted that:

(i) the lump sum profit mentioned in the the Saket Cancellation Agreement and Malviya Nagar Cancellation Agreement is not the same as the re­purchase clause C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 23/35 in the alleged Saket ATS and Malviya Nagar ATS and also there was unreasonable and unconsciousnable calulation of the profits of Rs. 1,11,50,000 and Rs. 10,00,000 as mentioned in the Cancellation Agreements of Saket ATS and Malviya Nagar ATS respectively (iii) the payment of the entire consideration in cash is improbable
(iv) the date of the cheques in question is in itself contrary to the terms of the Cancellation Agreements;(v) the complainant and the witness have deposed differently as to the place of execution of the Saket ATS and the Malviya Nagar ATS Cancellation Agreement.

40. Firstly, it is a matter of record, that two different versions of the Saket ATS have been placed on record by the complainant and the accused. While there is no mention of lump sum profit in the version brought by the accused, the complainant's version (which is a photocopy) solely states that in the event of re­ purchase, a lump sum profit will be given. As such, there is no basis for the amount of Rs. 1,11,50,000 in the Saket ATS. Neither has any explanation or basis provided in the Saket Cancellation Agreement or in the deposition of the complainant and Amanpreet Singh Kohli. With respect to the Malviya Nagar Cancellation Agreement, since the Malviya Nagar ATS has not been placed on record, no comparison can be made. However, the argument of the accused that a prudent man would not agree to grant a profit of Rs. 10,00,000 over an investment of Rs. 15,00,000 over a period of 2 years, does seem tenable, especially in the absence of any explanation by Amanpreet Singh Kohli. As set out above, the date of the cheque, i.e., 01.08.2010, is beyond the period of 10 months and Mr. Amanpreet Singh Kohli and the witness Mandeep Bedi have deposed differently as regards the place of execution of the Cancellation Agreement. These facts do raise a question on the due execution of the Cancellation Agreements.

C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 24/35

Appreciation of evidence

41. As discussed above, in these cases, it is not disputed that the alleged source of liability stems from the Cancellation Agreements. It is clear from the perusal of the Cancellation Agreements that the key term of the said agreements qua the present cases, i.e., the amount of profit and the cheque numbers, have been filled in hand and are not printed. It is also not in dispute that the Cancellation Agreements bear the signature of the accused. The primary defence of the accused is that he was coerced by the complainant and Amanpreet Singh Kohli into signing the blank Cancellation Agreements and that he in fact cannot be considered to have executed the Cancellation Agreements since the terms of the Cancellation Agreement were not filled in his presence. Further, he has also stated that since the ATS with respect to the Safdarjung, Saket and Malviya Nagar properties were in fact never executed and no transactions took place; the Cancellation Agreements are null and void, since they seem to cancel transactions that never took place. It is important to note that the complainant and Amanpreet Singh Kohli have admitted to receiving the amount allegedly paid as principal amount under the ATS and are claiming that the cheques in question have been issued in discharge of the liability of the accused qua the profit component recorded in the Cancellation Agreements. The complainant and Amanpreet Singh Kohli have placed on record the original Cancellation Agreements with respect to all three properties.

C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 25/35

42. Per Section 91 of the Indian Evidence Act, 1872 ("Evidence Act"), it is trite law that "when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document,....., no evidence shall be given in proof of the terms of such contract, or of grant or of disposition of property, or of such other matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained." As such, in the presence of an original document which records the obligation of the accused to pay profit component to the complainant and Amanpreet Singh Kohli, primary and due importance has to be given to the same. Section 92 of the Evidence Act reiterates this principle by stating that when the terms of the contract have been proved according to Section 91, then no evidence of any oral agreement or statement shall be admitted, as between the parties for the purpose of contradicting, varying, adding to, or subtracting from, its terms. However, Section 92 also carves out certain exceptions to the rule of exclusion of oral evidence by documentary evidence, its proviso 1 recognises that "any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law". It is also settled law that an accused in Section 138 NI Act proceedings is required to prove his defence C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 26/35 by the standard of preponderance of probabilities; and such preponderance of probabilities can be inferred not only from the material brought on record by the accused but also on the basis of the circumstances upon which he relies. In the present case, from a perusal of the documents it may be considered that the accused has challenged the Cancellation Agreements on grounds of:

(i) coercion;
(ii) want of due execution;
(iii) want or failure of consideration.

Coercion

43. The accused has submitted that he was made to execute the said Cancellation Agreements under coercion at the Special Cell, PS Lodhi Colony, where he was detained till late at night on 23.09.2009, in relation to a complaint filed by Amanpreet Singh Kohli. However, the accused has been unable to produce any document/evidence to show that he was in fact called at the PS Lodhi Colony on 23.09.2009. As such, a case for invalidity of the Cancellation Agreements on this ground is not prima facie made out.

Want of Due Execution C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 27/35

44. While Section 2(12) of the Indian Stamp Act, 1899 defines the terms "executed" and "execution", used with reference to instruments as "signed" and "signature", the Bombay High Court in Bhavaji Harbum v. Devi Punja ILR 19 Bombay 635 has stated that execution is the last act or series of acts, which complete it. It may be defined as formal completion. Additionally, the Orissa High Court in State of Orissa v. Khetra Mohan Singh (AIR 1965 Orissa 126) observed that execution of document means that the executant must have signed or put his thumb impression, only after the contents of the document have been fully stated and read by the executant before he put his signature thereon. Accordingly, it was held that mere admission of the initial by the executant would not tantamount to an admission of the document.

45. In the present case, the accused has submitted that while he had signed the Cancellation Agreements, the same were blank and were signed by him only under coercion. In support of his argument, he has relied on the terms of the Cancellation Agreement and inconsistencies in the testimony of the complainant's witnesses as to place/time of execution, to evince that he had not signed the Cancellation Agreements after reading the terms filled in by hand.

Safdarjung property

46. As discussed above,the complainant in the present case could not show the reason for the absence of the signatures of New Port constructions on ATS of the C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 28/35 Safdarjung property,despite it having a share of 50% in the sale consideration. Also there was no receipt for the amount paid at the time of ATS,placed on record before the court. Absence of signatures of New Port(one of the parties to the ATS) indicates that there was no proper execution of the said document. Also after the expiry period of 75 days( as mentioned in the ATS for the performance of the agreement) no suit for specific performnace was ever filed by the complainant.Further,regarding the execution of the Cancellation Agreement, it is admitted by the complainant Manpreet Chatwal, witness Amanpreet Singh Kohli and the accused Sanjeev Chanana that the Cancellation Agreement was not signed by New Port in their presence. Also it is evident that while the Cancellation Agreement contains the term 'profit',the ATS does not talk about profits and only contains a provision for interests. Further, the lump sum amount mentioned in ATS and the Cancellation Agreement is not the same. Also the cancellation agreement does not mention New Port as a party for the purpose of distribution of the profits and the fact that New Port has mutually settled with the accused has also not been proved.Further,the date of cheque to be paid at the time of Cancellation Agreement already exceeds the prescribed period of 10 months in which the payment was to be made. Further, complainant's act of entering into agreements related to properties at Mehrauli,after the cancellation agreements were entered into has raised a suspicion on the complainant's conduct. Further, different depositions of the complainant and the witness regarding the place of execution of the cancellation agreement (whether at Soami Nagar or Panchsheel Enclave) raises a doubt on a proper execution of the agreements with the free consent of the parties.

47. In a nutshell, no Cancellation Agreement(which forms the bais of the C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 29/35 liability in the case) could be proved in the absence of a duly executed ATS( which is foundation of the Cancellation Agreement).

Keeping in view the rest of the evidences showing complainant's suspicious conduct, a reasonable doubt has been raised by the accused on the complainant's case.

Saket property

48. As dicussed above,the ATS to the Saket property has two versions. The version placed on record by the accused(original ATS) has to be taken into consideration by the reason of it being the primary evidenve to the agreement. A perusal of the ATS indicates that it does not contain signatures of the complainant on its first three pages. However, the other parties to the agreement have affixed their signature on every page of the said ATS.Also the fourth page of the ATS is cancelled. Further,after the expiry period of 24 months(as mentioned in the ATS for the performance of the agreement) no suit for specific performnace was ever filed by the complainant. Keeping in view the cancelled page,unsigned pages of the ATS and absence of any suit for specific performance by the complainant; proper execution of the ATS could not be made out. Further, regarding the execution of the Cancellation Agreement, while there is no mention of lump sum profit in the version brought by the accused, the Cancellation Agreement states that in terms of ATS in the event of re­purchase, a lump sum profit of Rs. 1,15,00,000 will be given. It is highly improbable for a prudent man under reasonable circumstances to give his assent and sign to the Cancellation Agreement with such unreasonable amount of profit as one of its terms, and that too when no such mention had ever been made in the ATS placed on record. Further, the complainant has also not given any rationale for arriving at the said amount. Additionally,the complainant's act that he C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 30/35 had entered into agreements related to properties at Mehrauli, after the cancellation agreements were executed has raised a suspicion on the complainant's conduct. Also, different depositions of the complainant and the witness regarding the place of execution of the cancellation agreement (whether at Swami Nagar or Panchsheel Enclave) raises a doubt on a proper execution of the agreements with the free consent of the parties.

49. In a nutshell, no Cancellation Agreement (which forms the basis of the liability in the cases) could be proved in the absence of a duly executed ATS( which is foundation of the Cancellation Agreement).

In view of the above discussion, the accused has raised a reasonable doubt as regards the due execution of the Safdarjung and Saket Cancellation Agreements.

Want or Failure of Consideration

50. It is trite law that in terms of Section 25 of the Indian Contract Act, 1872, agreements without consideration are void. In the present case, the Cancellation Agreements clearly record that the "in terms of the said Agreement (i.e., ATS), the first party (i.e., the accused) has right to re­purchase the said share in the said portion of the second party (i.e., the complainant/Amanpreet Singh Kohli, as the case maybe), by refunding the amount received from the second part plus lumpsum profit of Rs. [depending upon the cancellation agreement in question] to the second party". It is clear from a perusal of the said clause that the (i) the obligation of the accused to pay lump sum profit to the complainant/Amanpreet Singh Kohli stems from the re­purchase clause of the respective ATS; and (ii) that the payment of the profit along with refund is in consideration of the re­purchase of the portion, the rights of which were given by virtue of the ATS to the C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 31/35 complainant/Amanpreet Singh Kohli. Per the accused, ATS in respect of none of the properties were executed or given effect to; and hence, the Cancellation Agreements are void for want of consideration.

51. It is correctly set out above that a document is considered to be executed only if the last act or series of acts which are required to be done to complete it have been performed. Admittedly, New Port, which is purported to have paid 50% of the sale consideration to the accused has not signed the Safdarjung ATS. As such, the said agreement cannot be considered to have been executed. Further, despite this objection being taken by the accused, the complainant has not examined any one from New Port to prove due execution. It is also interesting to note that while the Safdarjung ATS only uses the term refund of principal amount along with interest, the Safdarjung Cancellation Agreement states that in terms of the Agreement (i.e., the ATS) accused is obligated to pay profit @ Rs. 37 lacs. Accordingly, as regards, the Safdarjung property and cheque numbers in CC No. 14952 and CC No. 22836/16 , the accused has raised a reasonable doubt that the Safdarjung ATS was in fact never executed and hence, the Safdarjung Cancellation Agreement is void for lack of consideration.

52. In relation to the Saket property, as set out above, two versions of the Saket ATS have been placed on record; the original by accused and the photocopy by the complainant. The complainant has admitted to his signature on the last page of the Saket ATS brought by the accused and also admitted to the fact that the first three pages of the Saket ATS does not bear his signature, while they bear the signature of all the other parties. Per Section 64 of the Evidence Act, primary evidence is to be regarded and given importance above the secondary evidence. As such, the C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 32/35 original Saket ATS would be given prominence over the photocopy brought by the complainant. From a perusal of the last page of the Saket ATS, it is clear that the re­purchase clause does not mention any clause regarding the payment of profit on re­purchase; and in fact the said page has also been cancelled; indicating towards the non­execution of the said ATS. This fact coupled with the abovementioned fact of no suit for specific performance being filed by the complainant; no evidence of consideration having changed hands, raises a reasonable doubt about the non­ execution of the Saket ATS; thereby making room for the Saket Cancellation Agreement being void for lack of consideration.

53. Lastly, with respect to the Malviya Nagar property, neither original nor photocopy of the Malviya Nagar ATS has been placed on record by Amanpreet Singh Kohli, pointing towards non­execution of the same. It is pertinent to note that the Malviya Nagar Cancellation Agreement specifically records that a photocopy of the Malviya Nagar ATS, duly signed by the accused, was in possession of Amanpreet Singh Kohli. As such, non­production of the same does indicate non­ execution thereof. Further, the alleged timing of execution of the Malviya Nagar ATS, i.e., after the accused had already failed to deliver on the Safdarjung property; also raises a reasonable doubt about the due execution of the said ATS. While the ATS was not produced by the parties, it is stated by Amanpreet Singh Kohli in his cross examinantion dated 28.01.2016 that the agreement was to be concluded within a period less than 30 days from the date of its execution. Further it was stated by him that "I had also not taken the possession of the shop in Malviya Nagar. I also not got the said shop mutated in my name despite making the complete payment and though it was stated in the Agreement to sell that i could have got the shop C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 33/35 mutated". Such behaviour of Amanpreet Singh Kohli from the stand point of a prudent man is inconsistent with the due execution of Malviya Nagar ATS.

54. It is also pertinent to note that the complainant has been unable to account for the source of income for paying such huge amounts of money to the accused within a short span of time and have not placed on record any ITR statements which could show the same. Further, the complainant/Amanpreet Singh Kohli has admitted to the fact that while most/entire sale consideration was paid at the time of executing the said ATS without receiving possession, there was no receipt of the same; other than the ATS itself. These facts also add to the fact that the ATS itself is uncorroborated and unproved.

55. In light of the above, and the fact that the complainant and Amanpreet Singh Kohli have admitted to have received the principal amount paid by them; the accused has raised a probable defence that he was not obligated to pay the profit in question and hence, the cheques were not issued by him in discharge of a legal liability or debt.

CONCLUSION

56. In the light of the above discussions and observations, this Court is of the opinion that the accused has been able to rebut the presumption drawn under Section 139 of the NI Act in favour of the complainant. Further, the complainant has failed in proving his case beyond the shadow of reasonable doubts. Accordingly, this court exonerates the accused for the offence u/s 138 of the NI Act. The accused is hereby acquitted. Bail bonds are cancelled and surety stands C.C. No. 14951/17 Mandeep Singh Chhatwal Vs. Sanjeev Channana Page No. 34/35 discharged. Endorsement, if any, stands cancelled.

Digitally signed by 
                                                          VIPUL       VIPUL SANDWAR
                                                          SANDWAR     Date: 2020.01.30

Announced in the Open Court
                                                                      16:31:28 +0530



on 30th Day of January, 2020                         (VIPUL SANDWAR)
                                              Metropolitan Magistrate­05, NI Act
                                               PHC/New Delhi/30.01.2020




C.C. No. 14951/17     Mandeep Singh Chhatwal Vs. Sanjeev Channana   Page No. 35/35