Delhi District Court
M/S Essel Platinum Tower Llp vs M/S Hitech Drilling Works And Anr on 30 September, 2024
IN THE COURT OF SH. SIDDHANT KUMAR,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-06,
SOUTH DELHI DISTRICT, SAKET, NEW DELHI
JUDGMENT
DLST020064852017 CT Cases 4208/2017 M/S Essel Platinum Tower Llp Vs. M/S Hitech Drilling Works And Anr PS : Hauz Khas M/S ESSEL PLATINUM TOWER LLP Office at Mehrauli Gurgaon Road, Essel Tower, DLF City, Iffco Chowk, Gurgaon-122002 (Haryana) ..............Complainant Versus M/S Hitech Drilling Works Office at 1019/7, Mehrauli, New Delhi-110030 ......... Accused No.1 Mr. Amit Kumar Gupta Proprietor/Partner of Accused no.1 Office at 1019/7, Mehrauli, New Delhi-110030 ......... Accused No.2 Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.09.30 CT Case No. 4208 of 2017 15:45:08 +0530 M/S Essel Platinum Tower Llp Vs. M/S Hitech Drilling Works And Anr Page No.1 of 21 Date of registration : 21.04.2017 Date of Judgment : 30.09.2024 Decision : Acquitted FACTS
1. The instant proceedings have originated out of a complaint filed by M/s Essel Platinum Towers LLP through it Authorized Representative against Mr. Amit Kumar Gupta proprietor of M/s Hitech Drilling Works for the offense under Section 138, Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act").
2. Brief facts of the complaint are that the complainant is a Limited Liability Partnership registered under the relevant provisions of the Limited Liability Partnership Act, 2008. The complainant is a multi-disciplinary law firm. The complainant is engaged in the business of Real Estate whereas the accused is engaged, inter alia, in the business of construction of piling work etc.
3. There was a work order/agreement dated 24.01.2017 for construction of piling work of Platinum Tower at IFFCO Chowk, Sector-29, Gurgaon executed between the parties. In terms of the agreement, the complainant paid the accused, through RTGS, a sum of Rs. 4,95,000/-, as Mobilization Advance after deduction Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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of TDS (Rs. 5000). Simultaneously, the accused handed over an undated cheque bearing no. 290657 for a sum of Rs. 5,00,000/- to the complainant with the assurance that in the event of the failure of the Accused to start/carry the awarded work, the complainant may cancel the agreement and present the aforesaid cheque for encashment.
4. As the accused failed to commence the work, the complainant terminated the agreement which resulted in the accused being liable to refund the amount of RS. 5 lakhs to the complainant.
5. The Complainant presented the aforesaid cheque for encashment by putting the date thereon as 18.02.2017 with its banker Kotak Mahindra Bank, Green Park, New Delhi. THe cheque returned unpaid with the reason 'Funds insufficient' vide return memo dated 21.02.2017. The complainant issued a legal demand notice dated 07.03.2017 under Section 138 of NI Act was sent to the accused. The accused failed to pay within the statutory period. Thus, the complaint was filed u/s 138 NI Act.
APPEARANCE OF ACCUSED AND TRIAL
6. The AR of the complainant was examined on oath. In support of their case, the AR had filed evidence by way of affidavit i.e. Ex.CW-1/14 which reiterated the contents of the complaint. He relied upon the following documents :
Digitally signed by SIDDHANTSIDDHANT KUMAR KUMAR Date:
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(i) Original board resolution dated 11.04.2017 as
Ex.CW-1/1.
(ii) Original agreement dated 24.01.2017 as Ex.CW-1/2
(iii) Original cheque as Ex. CW-1/3;
(iv) Return memo as Ex.CW-1/4 (colly);
(v) Legal Demand Notice as Ex.CW-1/5;
(vi) Postal receipts of speed post are Ex.CW-1/6 and
Ex.CW-1/7;
(vii) Courier receipts as Ex.CW-1/8 and Ex.CW-1/9;
(vi) Tracking report of speed post receipt as Ex.CW-1/10 and Ex.CW-1/11;
(vii) Tracking report of courier receipt as Ex.CW-1/12 and Ex.CW-1/13;
7. After perusing the complaint and documents annexed with it, Ld. Predecessor took cognizance and summons were issued to the accused on 21.04.2017. The accused appeared before the Court on 07.06.2017. Since, the offense u/s 138 NI Act is bailable, the accused was admitted to bail.
8. Thereafter, notice u/s 251 Cr.P.C. was served upon him and explained to him on 02.08.2017. He pleaded not guilty and claimed trial. He agreed that the parties entered into a contract for drilling work for which some amendment was required in the machinery. He had asked the complainant to make advance payments because of the amendment in machinery a huge investment was required. He stated that he incurred huge Digitally signed SIDDHANT by SIDDHANT KUMAR CT Case No. 4208 of 2017 KUMAR Date: 2024.09.30 15:45:24 +0530 M/S Essel Platinum Tower Llp Vs. M/S Hitech Drilling Works And Anr Page No.4 of 21 expenses for the contract. He admitted to issuing blank signed cheque for RTGS transfer to the complainant. The accused also stated that the work done by him got delayed due to the time taken in the amendment in the machinery and death in his family. He approached the complainant to condone the delay but the complainant refused to accommodate him. On refusal, the accused mobilized his amended machinery to Pune and thereafter, the complainant approached him for the work of Rs. 5 lakh which could not be done as the machinery was already moved and the complainant refused to give time for alternative arrangement. He denied liability to pay the cheque amount to the complainant.
9. Accused was allowed u/s 145 (2) NI Act to cross examine the complainant. Considering the nature of evidence, the matter was now tried as a summons case. Thereafter, the matter was listed for CE.
10. The complainant was cross-examined on 19.02.2018. On being asked he answered that the agreement between the complainant company and accused firm was executed on 24.01.2017 in his presence and he had signed the same on behalf of the complainant company. They had given Rs.5 lakhs to accused no.2 as advance and they had not taken any money from accused persons. He had sent termination letter to Mr. Amit Gupta might be in March 2017, however, he did not remember the exact date of the same. They had given contract to M/s Digitally signed by SIDDHANT KUMAR SIDDHANT Date: KUMAR CT Case No. 4208 of 2017 2024.09.30 15:45:29 M/S Essel Platinum Tower Llp Vs. +0530 M/S Hitech Drilling Works And Anr Page No.5 of 21 Creative Projects Pvt. Ltd. After sending termination to accused persons. They had taken one security cheque from accused persons att the time of handing over the contract. He answered that they have taken signed cheque of Amit Gupta, but the column apart from the signatures was blank and voluntarily stated that the same was already a part of the payment terms in the agreement entered into by the parties. He denied the suggestion that the accused had met with huge loss of Rs.20 lakhs due to the reason that the contract was given to third party arbitrarily.
11. Accused was examined without oath u/s 313 Cr.P.C on 22.03.2018 and all the incriminating evidence was put to him. He stated that he gave a blank signed cheque to the complainant because the complainant asked for the purpose of transferring the amount in his account by way of RTGS. The cheque was given as a security only and to facilitate the complainant to complete the transaction of RTGS. He had taken a specialized job for which no other party was ready. He had entered into a contract for drilling with the complainant, it was a specialized job for which some amendments were required in the machines. Because of nature of job the contract was given to him @ Rs.1450/- per running meter while the other party was asking for Rs.950/- per meter. He was assured to pay higher rate because of specialized job. He started doing amendments in machines after mobilizing the tools and labour. All of sudden complainant stopped his work and asked his labour to leave the site and they pressurize him for Digitally signed by SIDDHANT KUMAR SIDDHANT Date: KUMAR 2024.09.30 CT Case No. 4208 of 2017 15:45:36 +0530 M/S Essel Platinum Tower Llp Vs. M/S Hitech Drilling Works And Anr Page No.6 of 21 mobilizing the machines first then to do other work. He contacted the complainant and seeks more time, but the complainant refused to give some time and mobilize the third party for the same contract. After completion of amendments in machinery, he approached the complainant to condone the delay and to let him do the work of one side as there were three sides of the plots and two other sides were already under the work by third party but complainant refused. Thereafter, the complainant presented the cheque. He telephonically contacted the complainant as well as by way of mail and the complainant assured him that it was just a formality and nothing else would be done. He denied issuance of any termination letter to him till or his firm till date by the complainant. He and his firm have no legal liability to pay the cheque amount to the complainant. He denied receiving the legal notice.
12. Ld. Counsel for the accused filed an application to examine the accused as witness. The accused was cross examined on oath on 15.05.2018 and 05.03.2020 as DW-1. On being asked he admitted that agreement Ex.CW-1/2 bears his signature at point A on each page and voluntarily stated that the agreement was got signed by him and non had signed the agreement on behalf of complainant at that time and he was told that the boss of complainant was not there and when he came back, he would sign the agreement and copy would be given to him, however, addition had been on the fourth page without providing him hard copy and he had been only sent a copy by Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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way of whatsapp. He admitted that the fourth page of agreement Ex.CW-2, bears his signature at point A and voluntarily stated that he signed the fourth page, it was blank and his signature had been taken on the pretext that whenever terms would be recorded he would be given copy of the same. He denied the suggestion that he had signed the fourth page of the agreement Ex.CW-2 after reading the contents of all terms written therein. He admitted that he had not filed any police complaint against the complainant till date that his signatures had been obtained on the blank page. He admitted that he had not made any complaint to the complainant till date regarding taking signatures on blank papers without bringing the later on added terms in his knowledge and voluntarily stated that he had made oral communication with the complainant and he was assured that these terms had been written only for the name sake. He admitted that as per the terms of agreement Ex.CW-1/2, he had received a sum of Rs.4,95,000/- from the complainant through RTGS after deduction of TDS charges of Rs.5000/-. He admitted that he had handed over the cheque in question to the complainant after signing the same and it was not a cancelled cheque and voluntarily stated that he had handed over the said cheque as security.
13. He brought certain documents on record which are Ex.DW-1/X1 (Colly). He admitted that some of the bills produced by him on 05.03.2020 were all handwritten. He had not filed any recovery/civil suit against the complainant company Digitally signed SIDDHANT by SIDDHANT KUMAR CT Case No. 4208 of 2017 KUMAR Date: 2024.09.30 15:45:47 +0530 M/S Essel Platinum Tower Llp Vs. M/S Hitech Drilling Works And Anr Page No.8 of 21 therein for any outstanding or breach on the part of the complainant company. He denied the suggestion that he had stated that he suffered huge loss i.e. of around Rs.20 lakhs just as a counter blast and without any basis. He denied the suggestion that he had abandoned the work because of which the complainant company had to engage new contractors whereby had to spend money from their pocket thereby causing loss to the company.
14. The accused also examined Mr. Ganpath as DW-2 on 20.12.2022. DW-2 stated in his examination of chief that he was working as a helper with Jaymin Maru from January to March 2017. He had altered the machine DTH boring machine which has taken 2-3 months time. He had shifted total hydrolic system from back side to left hand site of of the truck due to special requirement of work. He had worked in Lucky Workshop at Mangolpuri Industrial Area, Phase-2. He had received payment from Amit Gupta proprietor of Hitech Drilling Works. He stated that they had made the payment in cash. DW-2 was cross- examined on 19.04.2023. On being asked he answered that he had done some alteration of a hydraulic system which was asked to be performed by Mr. Amit Gupta. He did not know and he was not aware that the said machinery had come from which place and for what purpose. He did not know where this machine was earlier being used and was going to be used after the alteration. He denied the suggestion that he was an interested witness and deposing at the behest of the accused.
Digitally signed by SIDDHANT SIDDHANT KUMAR
KUMAR Date:
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15. The accused also examined Mr. Puran Singh as DW-3 on 20.12.2022 . DW-3 stated in his examination of chief that he was working as a helper with Jaymin Maru from January to March 2017. He had altered the machine DTH boring machine which has taken 2-3 months time. He had shifted total hydrolic system from back side to left hand site of of the truck due to special requirement of jo work. He had worked in Lucky Workshop at Mangolpuri Industrial Area, Phase-2. He had received payment from Amit Gupta proprietor of Hitech Drilling Works. He stated that they had made the payment in cash. DW-3 was cross- examined on 19.04.2023. On being asked he answered that he had done some alteration of a hydraulic system which was asked to be performed by Mr. Amit Gupta. He did not know and he was not aware that the said machinery had come from which place and for what purpose. He did not know where this machine was earlier being used and was going to be used after the alteration. He denied the suggestion that he was an interested witness and deposing at the behest of the accused. Thereafter, DE was closed and the matter was listed for final arguments.
ARGUMENTS
16. The learned counsel for the complainant argued that the accused is liable under Section 138 of the Negotiable Instruments Act as all the statutory requirements have been met. The accused admitted issuing the cheque in question and signing it, which Digitally signed by SIDDHANT KUMAR SIDDHANT Date: KUMAR 2024.09.30 CT Case No. 4208 of 2017 15:45:57 M/S Essel Platinum Tower Llp Vs. +0530 M/S Hitech Drilling Works And Anr Page No.10 of 21 raises the statutory presumption under Sections 118 and 139 of the NI Act that the cheque was issued for a legally enforceable debt or liability. The counsel contended that the accused failed to rebut this presumption adequately. The complainant's case rests on the fact that the accused failed to fulfill his obligations under the work order/agreement, which led to its termination. As a result, the complainant is entitled to a refund of ₹5 lakhs, which was secured by the undated cheque issued by the accused. Counsel further highlighted that documentary evidence, including the work order/agreement (Ex. C-2), the cheque return memo, and the statutory legal notice, establishes the complainant's claim. The accused's defense that the cheque was issued as security and not for a specific liability is unsubstantiated, as the accused did not provide any documentary proof or credible evidence to support this contention.
17. Per contra, Ld. Counsel for the accused denied the accusations of the complainant. The learned counsel for the accused primarily argued that the complainant failed to establish the accused's liability under Section 138 of the Negotiable Instruments Act. First, the accused admitted issuing the cheque but contended that it was given as a security deposit and not for any outstanding liability. The counsel emphasized that the complainant's claim is based on the termination of the work order, which was not validly canceled as per the terms of the agreement, particularly Clause 22, which required a two-week notice prior to termination. The complainant failed to produce Digitally signed by SIDDHANT SIDDHANT KUMAR CT Case No. 4208 of 2017 KUMAR Date:
2024.09.30 M/S Essel Platinum Tower Llp Vs. 15:46:01 +0530 M/S Hitech Drilling Works And Anr Page No.11 of 21 any evidence showing that such notice was served. Further, the defense relied on the testimonies of DW-2 and DW-3, workers employed by the accused, who testified that amendment work on the machines was performed as required under the work order. This supports the accused's position that the work was not abandoned and no valid reason for termination existed. The counsel also argued that since the complainant could not prove proper termination of the work order or show any outstanding liability after the alleged termination, the statutory presumption under Section 139 of the NI Act has been successfully rebutted by the accused. Therefore, the cheque in question cannot be considered as issued for the discharge of a legally enforceable debt or liability.
LEGAL POSITION
18. The requirements which needs to be fulfilled by the complainant as per Section 138 are the following -
i) The accused issued a cheque on a bank account maintained by him;
ii) The said cheque must have been issued, wholly or partly, in discharge of a 'legal debt or other liability';
iii) The said cheque was presented before the bank within 3 months from the date of issuance and was dishonored;
iv) The payee issued a legal demand notice, within 30 days of receipt of information of dishonor of the cheque;
v) The drawer failed to make payment within 15 days of Digitally signed by SIDDHANT KUMAR SIDDHANT Date: KUMAR 2024.09.30 CT Case No. 4208 of 2017 15:46:07 M/S Essel Platinum Tower Llp Vs. +0530 M/S Hitech Drilling Works And Anr Page No.12 of 21 receipt of the said legal demand notice;
19. Further, the NI Act raises two important legal presumptions in favor of the holder of the cheque as soon as the execution of cheque is proved. As per Section 118(a), NI Act, it shall be presumed that every negotiable instrument was 'made, accepted, transferred, negotiated or endorsed for consideration, unless the contrary is proved'. Furthermore, as per section 139, NI Act, it shall be presumed that 'the holder of cheque, received the cheque for the discharge, in whole or in part, of any debt or other liability, unless the contrary is proved.'
20. The aforementioned presumptions were elucidated down by the Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491 held as follows:
(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 defense. 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 defense. 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.
Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date: 2024.09.30 CT Case No. 4208 of 2017 15:46:11 +0530 M/S Essel Platinum Tower Llp Vs. M/S Hitech Drilling Works And Anr Page No.13 of 21
(iv) That it is not necessary for the accused to come in the witness box in support of his defense, Section 139 imposed an evidentiary burden and not a persuasive burden.
APPRECIATION OF EVIDENCE and FINDINGS
21. The complainant has crucially adduced evidence demonstrating the issuance of the cheque by the accused, as admitted by the accused's proprietor. Additionally, the complainant has presented documentary evidence establishing the existence of a professional relationship between the parties, including the work order/agreement dated 24.01.2017. This agreement explicitly mentions the advance payment of ₹5 lakhs and the issuance of an undated cheque. The cheque in question was dishonored due to insufficient funds, as evidenced by the return memo dated 21.02.2017. Furthermore, the statutory legal notice dated 07.03.2017 was sent to the correct address of the accused, which is the same address mentioned in the agreement. The postal receipts and tracking report of the notice are also on record. These documentary pieces of evidence collectively support the complainant's case and substantiate the fulfillment of ingredients under Section 138 of the Negotiable Instruments Act.
22. The accused has admitted to issuing the cheque in question to the complainant and has also acknowledged his signature on it. In line with the settled legal principles, as elucidated by the Hon'ble Supreme Court, this admission triggers the statutory Digitally signed by SIDDHANT SIDDHANT KUMAR CT Case No. 4208 of 2017 KUMAR Date:
2024.09.30 M/S Essel Platinum Tower Llp Vs. 15:46:15 +0530 M/S Hitech Drilling Works And Anr Page No.14 of 21 presumption under Section 118 and Section 139 of the Negotiable Instruments Act. This presumption operates in favor of the complainant, indicating that the cheque was issued for the discharge of a legally enforceable debt or liability. However, this presumption is not absolute and is rebuttable. The initial burden shifts to the accused to produce evidence or raise a credible defense that challenges the existence of the alleged debt or liability. The accused must demonstrate a probable defense through material on record that casts doubt on the complainant's case. If the accused is successful in raising such doubt, the burden shifts back to the complainant to prove the liability beyond reasonable doubt.
23. As discussed above, the burden is upon the accused to rebut the presumption against him, the court shall examine the defense taken by him and come to a conclusion whether he has raised a probable defense by establishing that there existed no legal liability for the cheque or by preponderance of probabilities. Reliance is made upon the judgment of Hon'ble Supreme Court of India in Rajesh Jain v. Ajay Singh Special Leave Petition (Crl.) No.12802 of 2022, whereby the Apex court held - "Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused. The nature Digitally signed by SIDDHANT KUMAR SIDDHANT Date: CT Case No. 4208 of 2017 KUMAR 2024.09.30 15:46:20 M/S Essel Platinum Tower Llp Vs. +0530 M/S Hitech Drilling Works And Anr Page No.15 of 21 of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly".
24. The defense of the accused lies upon the Non-existence of a legally enforceable debt at the time of issuance/presentation of the cheque. The accused disputes the existence of any legally enforceable debt or liability during the issuance or presentation of the cheque. He maintains that no financial obligation existed that would justify the complainant being entitled to the cheque amount.
25. Throughout the trial, the accused admitted that a work order/agreement was executed between the parties. The said agreement, marked as Ex. C-2, is on record, and during cross- examination, the accused acknowledged his signatures at Point A on each page. While the accused claimed that he signed the fourth page when it was blank, this assertion has neither been supported by evidence nor proved, rendering Ex. C-2 an admitted document. The contents of Ex. C-2 define the terms and conditions governing the business relationship between the Digitally signed SIDDHANT by SIDDHANT KUMAR CT Case No. 4208 of 2017 KUMAR Date: 2024.09.30 M/S Essel Platinum Tower Llp Vs. 15:46:25 +0530 M/S Hitech Drilling Works And Anr Page No.16 of 21 parties. This document is a crucial piece of evidence, especially in determining the existence of the accused's liability. The payment terms outlined in Ex. C-2 confirm that the complainant paid ₹5 lakhs to the accused--a fact that has been admitted by the accused. The same clause also refers to the undated cheque, further corroborating the complainant's case.
26. The accused contends that the agreement was never terminated or canceled as per the terms stipulated in the agreement. He relied on Clause (22) of the Terms and Conditions in Ex. C-2, which states: "EPTLLP will have the full right to cancel the work order after two weeks' notice in the event of your failure to execute the work as per the schedule or maintain the acceptable quality of the work as well as the materials used at the site or non-compliance with any other conditions required in this work order." Learned counsel for the accused argued that this clause mandates that a two-week notice be given by the complainant before canceling the work order.
27. Upon perusal of this clause in conjunction with other terms and conditions, it is evident that a two-week notice was indeed required prior to canceling the order. During cross-examination, the complainant's Authorized Representative (AR) deposed that a termination letter was sent to Mr. Amit Gupta, possibly in March 2017, but he could not recall the exact date. He further undertook to produce the termination letter, but the said letter was never brought on record. Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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28. The court is of the opinion that the termination letter was a crucial piece of evidence necessary to prove that the work order was canceled in accordance with the terms of the agreement. The absence of this document weakens the complainant's assertion regarding proper cancellation as per Clause (22).
29. The complainant's case hinges on the assertion that the accused failed to fulfill his obligations under the work order, prompting the complainant to terminate the agreement, thereby making the accused liable to refund or pay ₹5 lakhs to the complainant. This claim is specifically made in Paragraph 8 of the complaint. Accordingly, the alleged liability arises out of the termination of the work order. However, as discussed earlier, the termination process was governed by Clause 22 of the terms and conditions, which required a two-week notice before canceling the work order. The complainant has failed to provide any evidence of such a notice being issued, which was a necessary step under the agreement. In the absence of proof of compliance with this contractual requirement, the complainant's claim regarding the proper termination of the work order remains unsubstantiated.
30. In the present case, the accused has successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act. While the statutory presumption initially operated in favor of the complainant, suggesting that the cheque was issued for a Digitally signed by SIDDHANT SIDDHANT KUMAR CT Case No. 4208 of 2017 KUMAR Date:
2024.09.30 M/S Essel Platinum Tower Llp Vs. 15:46:35 +0530 M/S Hitech Drilling Works And Anr Page No.18 of 21 legally enforceable debt, the accused has raised credible doubts about the existence of such liability. The complainant's claim primarily relied upon the alleged cancellation of the work order/agreement, which the complainant argued made the accused liable for the refund of ₹5 lakhs. However, the terms governing cancellation, specifically Clause 22 of the agreement, required a two-week notice to be issued before the termination could take effect. The complainant failed to produce any evidence that such notice was provided, which was a critical requirement to establish the validity of the termination and the ensuing liability. By exposing this procedural failure and undermining the basis of the complainant's claim, the accused has effectively rebutted the presumption against him. As a result, the burden of proof has now shifted to the complainant to establish his case. As discussed in Rajesh Jain v. Ajay Singh (supra), the complainant now has to prove his case beyond reasonable doubt without the aid of the presumptions by relying upon the material on record.
31. Upon analyzing the complainant's case with the material on record, it is evident that the complainant has based the alleged liability of ₹5 lakhs on the purported termination of the work order/agreement. However, as discussed, the termination was not carried out in accordance with Clause 22 of the agreement, which mandated a two-week notice--a key procedural step the complainant failed to prove was taken. Additionally, the accused presented a robust defense by examining two of his workers, Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
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DW-2 and DW-3, to demonstrate that amendment work was indeed carried out on the machines as per the complainant's work order. Their testimonies lend support to the accused's claim that the work under the agreement was not abandoned or left incomplete, thereby undermining the complainant's assertion that the work order was terminated due to non-performance. In the absence of proof regarding the proper termination of the agreement and considering the testimonies of DW-2 and DW-3, the complainant's case fails to establish the accused's liability convincingly.
32. After thoroughly considering the evidence, the testimonies, and the arguments presented by both parties, the court finds that the accused had successfully rebutted the statutory presumption under Section 139 of the Negotiable Instruments Act. While the accused admitted to issuing and signing the cheque, he provided a credible defense by demonstrating that the cheque was issued as a security deposit under the work order/agreement, and not for the discharge of a legally enforceable debt. The complainant's case primarily rested on the alleged termination of the agreement, which was supposed to trigger the accused's liability to return ₹5 lakhs. However, the complainant failed to prove that the termination process was carried out in accordance with Clause 22 of the agreement, which required a two-week notice. Additionally, the defense witnesses, DW-2 and DW-3, testified that work was carried out on the machines as per the agreement, further undermining the complainant's claim that the work order Digitally signed by SIDDHANT SIDDHANT KUMAR CT Case No. 4208 of 2017 KUMAR Date:
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33. Given the failure of the complainant to prove the termination and the lack of evidence supporting the alleged outstanding liability, the court concludes that the accused has raised sufficient doubt regarding the existence of a legally enforceable debt and the complainant has failed to prove his case beyond reasonable doubt. Consequently, the accused is acquitted of the charge under Section 138 of the Negotiable Instruments Act.
This Judgment contains 21 pages and each page bears the signature of Ld. Presiding Officer.
A copy of the order be uploaded on District Courts website.
Pronounced in the open court today i.e. on 30.09.2024. Digitally signed by SIDDHANT SIDDHANT KUMAR KUMAR Date:
2024.09.30 15:46:52 +0530 (Siddhant Kumar) JMFC (NI Act-06) South District, Saket Courts, New Delhi 30.09.2024 CT Case No. 4208 of 2017 M/S Essel Platinum Tower Llp Vs. M/S Hitech Drilling Works And Anr Page No.21 of 21