Delhi District Court
Mohd. Panbul Ansari vs . Ymds Construction Pvt. Ltd & Anr. Page 1 ... on 15 May, 2023
IN THE COURT OF SHRI HARSHAL NEGI:MM-05(NI ACT):
SOUTH-WEST DISTRICT:DWARKA COURTS:NEW DELHI
Ct Cases No.7863/2019
CNR No.DLSW02-009174-2019
Mohd. Panbul Ansari
S/o Mohd. Taslimuddin Ansari
R/o Plot No.31, Qutub Vihar
Phase-I, F Block, Gali No.6
Goyla Dairy, D C Goyla
South West Delhi
New Delhi-110071 ...Complainant
Versus
1. M/s YMDS Construction Pvt Ltd.
Through its Director
2. Mr. Dharmender Yadav
Director M/s YMDS Construction Pvt Ltd.
Both at: Plot No.12A, Block-C,
Ram Shyam Enclave, Chipiyana,
Gautam Budh Nagar, UP-201301
Also at: D-38 & 39, 3rd Floor
Flat No.7, Devli Road,
Khanpur, Krishna Park
New Delhi-110062 ...Accused
Offence complained of : U/s 138, NI Act, 1881
Date on which the complaint : 22.02.2019
was instituted
Plea of the Accused : Pleaded not guilty
Date of Pronouncement of judgment : 15.05.2023
Ct. Cases 7863/2019
Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 1 of 19
JUDGMENT
1. At the outset it is imperative to set forth the facts which the complainant has stated in his complaint as well as the affidavit. It is the case of the complainant that he was doing plaster work in the company i.e. accused no 1 of which accused no 2 is the director, as a sub-contractor since January 2018 and since then he had done a total work of Rs 25 Lakhs. That out of the said amount the accused no 2 has given Rs 9 Lakhs to him on different dates, however, the remaining payment has not been paid by the accused no. 2. That, thereafter, the accused no 2 prepared a summary of outstanding showing a balance of Rs 13,74,329/-. That to discharge the financial liability the accused no 2 issued cheque bearing no 366202 dated 20.11.2018 of Rs 14,00,000/- drawn on Indian Bank, Indrapuran, New Delhi to the complainant with an assurance of its encashment. The complainant presented the cheque in his account which were returned with the remarks "Funds Insufficient" dated 01.01.2019. Thereafter, complainant served a legal notice dated 21.01.2019 upon the accused no 1 and accused no 2 through his counsel demanding the said amount. Despite service of aforesaid legal notice the money was not repaid by the accused no 1 & 2. Thereafter, complainant has filed the present complaint case Material on Record
2. The accused no 2 entered appearance on 26.11.2021. Notice under Section 251 Cr PC dated 26.11.2021 was framed Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 2 of 19 accordingly to which the accused no 2 pleaded not guilty and claimed trial. The accused no 2 admitted his signatures on the cheque in question. He stated that his staff filled the particulars of the cheque. He stated that he might have received the legal notice but is not able to remember. He also stated that the complainant and he are contractor and used to work together. That the cheque in question was given to the complainant in furtherance of the work done. That this cheque in question was handed over by his staff to the complainant.
3. Thereafter, application under Section 145 NI Act was filed by the accused no 2 to cross examine the complainant and the same was allowed.
4. The Complainant in his examination in chief adopted his pre-
summoning evidence as his post summoning evidence and also relied on the documents following documents:
a) Original cheque in question Ex.CW1/1
b) Original Return Memo Ex CW1/2
c) Copy of the legal notice Ex CW1/3.
d) Original Postal receipts Ex CW ¼.
e) Delivery reports Ex CW1/5 to Ex CW1/8 along with certificate under Section 65 B Evidence Act.
f) Copy of bill dated 25.10.2018 is Mark A.
5. The complainant was cross examined on 06.05.2022. In his cross examination he stated that he have been in plaster work since 2011. That he have employed labour for carrying out his business. That there is no written agreement entered between him and the labours. That he used to make payment to labours in cash only. That he used to take money from his work done Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 3 of 19 sometimes in cash and sometimes in cheque. That he have known the accused no 2 since 2016 and have worked with accused no 2 since 2018. That he is aware the works carried out by the accused no 2. That the accused no 2 was involved in construction work and plaster work. That the accused no 2 used to take work of construction from his client namely Supertech. That he worked on behalf of the accused no 2 and carried out his work of construction i.e. plaster work of his clients. That he have no relation with Supertech. He voluntarily stated that he used to carry out plaster work at the behest of the accused no 2 and his company YMD Constructions. That the accused no 1 company was constructing flats in which he was carrying out plaster work. That he have carried out the external and internal plaster work of around 25-30 flats. That the flats were constructed in an apartment in NOIDA around Sector-118. That he cannot exactly recall the sector. That it was around 32 floors apartment. That he did not complete the remaining work since the cheque which was issued by the accused no 2 for his payment got bounced. That the complainant never made complete payment of the work done by him. That the accused no 2 had made him the payment of around Rs.11 lakhs against the due payment of Rs.30 lakhs. He voluntarily stated that the bill which raised was of Rs.25 lakhs. He denied the suggestion that since he have not completed his work, no bill was framed by the accused no 1 company. That Mark A is the bill which was made by the accused no 1 company. That it was created by one Mr. Tayal, General Manager of the accused no 1 company and billing Engineer Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 4 of 19 Akram Khan. He denied the suggestion that that Mark-A was created by him in connivance with the staff of Supertech. He voluntarily stated that he have no relations with staff of Supertech. That he is not aware of the building/apartment. That his only information was that he was working with the accused no 1 company and as per his directions the plaster work was done by him. He denied the suggestion that the company used to make payment sometimes Rs.2000/-, Rs.4000/- and Rs.6000/-to him in cash. He voluntarily stated that as he have said earlier that he have received Rs.11 lakhs from the accused no 2 and the payment was to be made as above. That the above said amount of Rs.11 lakhs which was paid by the accused no 2 included the expenses of the labour such as their food etc. That the accused no 2 never informed him about the reason for non-payment of the remaining amount. That he stopped working on the remaining project when the cheque got dishonoured. That the cheque in question was given around 15 days prior of the date mentioned in the cheque. That the cheque was handed to him by staff of the accused no 2 in his presence. He voluntarily stated that the accused no 2 directed to staff to frame the cheque and give it to him. He denied the suggestion that he entered into the connivance with the staff of the accused no 2 with respect to cheque in question. He also denied the suggestion that cheques were being kept in signed manner in the office of the accused no
2. He voluntarily stated that it is only the accused no 2 who knows it. That he could not have possibly known about it. That he had contacted the accused no 2 2-3 times and the complainant Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 5 of 19 assured him that the remaining payment will be made. That no written agreement was made between him and the accused no 2 with respect to the construction work to be carried out. That he used to carry out the plaster work as per directions and instruction of accused no 1 company since he also know the accused no 2 earlier and he was also earlier working with Supertech. That he does not know that the plaster work carried out belonged to Supertech. That he only carried the plaster work on the instructions of the accused no 1 company. That the accused no 2 used to take his signature on a voucher at the time of handing over the payment in cash to him. He voluntarily stated that the cheque in question was handed over to him and his signatures were taken on a voucher. (At this stage, counsel for accused confronted document Mark A.) The complainant further stated that the signature at point A in Mark-A belongs to him. That the signature at point B in Mark-A is of Mr. Tayal, who was general Manager in the company. He denied the suggestion Mr. Tayal is not the employee of accused company but of Supertech.
6. The complainant closed his evidence on 06.05.2022.
7. The statement of the accused no 2 under Section 313 CR PC was recorded on 21.05.2022. He stated that Mark A created by the complainant in collusion with his staff. He affirmed that the complainant has a total work of Rs.25 lakhs. That he has done a total work of Rs. 15 Lakhs approximately. That he have returned around 12 to 13 Lakhs to the complainant already. That he have never issued the cheque in question. That the cheque in question Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 6 of 19 has been taken by the complainant in collusion with his staff. The complainant worked under him and RS.15 Lakhs approx was due and he have already made the payment of around Rs.12- 13 Lakhs. That he is only entitled to pay Rs.1 to 2 Lakhs.
8. The accused no 2 opted to lead his defence evidence and examined himself as DW 1 on 01.09.2022.
9. In his examination in chief dated 01.09.2022 he stated that he is only entitled pay Rs.1 lakh to Rs.1.50 lakhs to the complainant. That the cheque in question was given by his staff without his knowledge. That the complainant has carried out total work of around Rs.14 to Rs.15 lakhs only. That he have already paid Rs.12-13 lakhs to the accused. That some amount was paid in cash and some amount was paid through bank.
10. The accused was cross examined on 01.09.2022. He stated that the cheque in question was in possession of Lokesh who was in his staff. That he is the Director of the accused no 1 company. That Mr. Lokesh used to manage store and accounts. He denied the suggestion that he had issued the cheque in question to the complainant with full knowledge. He denied the suggestion that the cheque in question was given by him. He affirmed that he assured the complainant that he will return his amount. He voluntarily stated that the amount is not the amount which is claimed in the cheque in question. He affirmed that the complainant worked in the capacity of the sub-contractor in his company namely YMDS Construction Pvt. Ltd. He also affirmed that the complainant carried out the plaster work for YMDS Construction Pvt Ltd. He further stated that Mr. Lokesh who was Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 7 of 19 his accountant used to have his 2-3 blank signed cheques which were required for business purpose. He affirmed that Mr. Lokesh used to hand over the cheques in his possession after his prior approval. He voluntarily stated that his approval was not taken with respect to the cheque in question. He denied the suggestion that he had handed over the cheque in question to complainant in person in presence of Mr. Lokesh. He further stated that he is not aware how much amount he have returned through cheque to the complainant and how much have given to the complainant in cash.
11. The Court then put the question to the witness as to whether the address mentioned in the legal notice is his correct address. The witness stated that the address D-38-39, 3rd floor, Flat no.7, Devli Road, mentioned in the legal notice is his correct address.
12. He further stated that he does not personally maintain any books of account. He further stated that YMDS Construction Pvt Ltd i.e., accused no 1 maintains its books of accounts. That he has not taken any receipt in writing with respect to the amount given to the complainant in cash.
13. The accused no 2 was further cross examined on 22.09.2022 and produced vouchers/receipts which reflects that he had made payment to the complainant. The same were Ex. DW1/1 (OSR) (running into 10 pages). He stated that he is not aware who has signed the voucher Ex.DW1/1. That he used to take vouchers and used to identify the vouchers by the name in which it was issued. That he used to give the amount to one accountant namely Lokesh who used to disburse the amount to sub-
Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 8 of 19contractor including the complainant. That he does not know whose signature are on Ex.DW1/1. He affirmed that Ex.DW1/1 does not bear any stamp of accused company. He also affirmed that the receiving part in Ex.DW1/1 is blank and does not mention any details. He further affirmed that point A in Ex.DW1/1 is blank and does not bear any receiving/signature. He further stated that the complainant used to hire the labours for the work and labour used to take the amount and they used to sign on receiving which is reflecting in Ex.DW1/1. That he cannot tell the name of the labours because they were hired by the complainant.
14. He further stated that he run two firms one is D S Construction and YMDS Constructions. That one of the vouchers at point B in Ex.DW1/1 is of D S Constructions. That both his firms were carrying two separate works. That D S Construction was carrying out Civil work and YMDS Construction was carrying of finishing work such as tiles work at the same premises and due to non-availability of voucher one of the vouchers was issued through D S Construction which is reflecting at point B in Ex.DW1/1. He denied the suggestion that Ex.DW1/1 i.e., voucher is forged and fabricated. He also denied the suggestion that no payment was given to the complainant against the voucher dated 20.01.2018 which is in Ex.DW1/1. He affirmed that there is no signature in voucher dated 01.05.2018 at point C in Ex.DW1/1. He also affirmed that there is no signature in voucher dated 24.10.2018 at point D in Ex.DW1/1. He further affirmed that voucher Number at point E in Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 9 of 19 Ex.DW1/1 is not mentioned. He also affirmed that voucher Number at point F in Ex.DW1/1 is not mentioned. He affirmed that voucher Number at point G in Ex.DW1/1 is not mentioned. He further affirmed that voucher Number at point H in Ex.DW1/1 is not mentioned. He also affirmed that voucher Number at point I in Ex.DW1/1 is not mentioned. He also affirmed that voucher Number at point J in Ex.DW1/1 is not mentioned. He denied the suggestion that the complainant never hired any labour.
15. The accused no 2, thereafter, closed his defence evidence on 23.01.2023.
16. Evidences and documents on record perused carefully.
Arguments heard.
Law Point
17. Before analyzing the material on record, it is imperative to set forth the legal benchmark which governs the adjudication of cases under Section 138 NI Act. A bare reading of Section 138 NI Act reveals that in addition to the cheque being issued for the discharge, in whole or in part, of any debt or other liability; following are the ingredients which constitute an offence:-
a. that a person drew a cheque on an account maintained by him with the banker; a. that such a cheque when presented to the bank is returned by the bank unpaid;
b. that such a cheque was presented to the bank within a period of six months from the date it was drawn or within the period of its validity whichever is earlier;
c. that the payee demanded in writing from the drawer of the cheque the payment of the amount of money due under the cheque to Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 10 of 19 payee; and d. such a notice of payment is made within a period of 30 days from the date of the receipt of the information by the payee from the bank regarding the return of the cheque as unpaid.
(Para 26, N. Harihara Krishnan vs J. Thomas, (2018) 13 SCC 663, referred to in Himanshu vs B. Shivamurthy (2019) 3 SCC 797) Section 138 is to be read with the presumption, being a rebuttable presumption, as contained in Section 139. Section 139 provides that:
"Presumption in favour of holder - 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."
18. Thus, in cheque bouncing cases, the judicial scrutiny revolves around the satisfaction of ingredients enumerated under Section 138 NI Act and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 NI Act. Section 139 is an example of reverse onus clause which usually imposes an evidentiary burden and not a persuasive burden. In other words, Evidence of a character, not to prove a fact affirmatively, but to lead evidence to show non-existence of a liability. Further the law is well settled that when an accused has to rebut the presumption under Section 139, the standard of proof of doing so is that of "preponderance of probability"
Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 11 of 19(Rangappa vs Sri Mohan (2010) 11 SCC 441). Once execution of cheque is admitted, it is a legal presumption under Section
139 of Negotiable Instrument Act, the cheque was issued for discharging legally enforceable debt.
19. Attention is also invited to Section 118(a) wherein a presumption of the cheque having been issued in discharge of a legally sustainable liability and drawn for good consideration, arises. Section 118 of the N.I Act provides:-
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made: (a) of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
20. Hence, it can be seen that from its very inception a presumption that the cheque was issued in discharge of a debt or other liability subsists in favour of the Complainant and onus rests upon the accused to rebut the existing presumption on the touchstone of preponderance of probability.
21. Further, the accused in a trial under Section 138 has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed (Para 20, Kumar Exports vs Sharma Carpets (2009) 2 SCC 513). The accused can also show that he has already returned the amount taken by him.
Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 12 of 19Analysis & Conclusion
22. Now, the law is also well settled that "once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favor of the complainant." (Rangappa v. Mohan, AIR 2010 SC 1898). Reference can also be made to K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, wherein it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
23. In this matter, the accused has admitted his signature.
Therefore, the presumption under Section 139 NI Act does get raised in favor of the complainant and against the accused. Thus, the accused now has to rebut the presumption on the touchstone of preponderance of probabilities. In the present matter there exists inherent discrepancies in the case of the complainant which has come to light through the cross examination of the complainant.
24. The following are the brief facts of the complainant as per his Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 13 of 19 evidence by way of affidavit:
a) That he since January 2018 had carried out total work of Rs 25 Lakhs.
b) That out of Rs 25 Lakhs the accused has given him only Rs 9 Lakhs.
c) That as per Mark A, which was created by the accused, the total outstanding is of Rs 13,74,329/- and that the cheque has been issued in furtherance payment of the said outstanding amount.
25. On the reading of the case of the complainant and his cross examination certain doubts does arise in his case as to the amount of the cheque or in other words, as to the amount of outstanding due at the time of presentation of the cheque.
26. At the outset, it can be noticed that as per the case of the complainant himself the outstanding is of Rs 13,74,329/-. However, the amount which has been claimed by the complainant is of Rs 14 Lakhs. Thus, as can be seen an additional amount of Rs 25,671/- has been claimed by the complainant. However, no explanation has come forth as to for what purposes or charges the additional amount of Rs 25,671/- has been added and included in the amount of Rs 14 lakhs by the complainant in the cheque in question. Thus, the doubt in the case of the complainant as to the amount of "legally recoverable debt" arises at the inception.
27. Now, the complainant relied on Mark A. Mark A is a photocopy and not the original. Throughout the trial original of this document was not brought on record. A perusal of Mark A reflects that there is no clarity as to who are the parties involved and for what purpose this Mark A was framed and by whom.
Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 14 of 19Mark A simply reflects payment summary. It further notes "Project: The ROMANO SEC 118 NOIDA", "Contractor:
Ansari", "Period: 24.10.2018", "Bill No: 1ST R.A. UPDATE", "Work: Plaster" and "PAN NO: ABKP17477Q". It is not in any letterhead. Perusal of Mark A nowhere goes on to establish that this has been created by the accused no. 2. As a matter of fact, it cannot be deduced from Mark A that the same has been created or issued by the accused no 2 and YMDS Construction. It is not the case of the complainant that Mark A bears the signature of the accused. The complainant stated that signature at Point A in Mark A belong to him and signature at point B is of one Mr Tayal who as per the complainant was the general manager of YMDS Construction. However, prima facie look of signature at point B it is not possible to decipher as to who is the author of those signature. The sum and substance of the examination of Mark A reveals that it cannot be plausibly stated as to who is the author of the document Mark A and who are the parties involved. On perusal of Mark A it cannot be said with certainty that this was entered between the accused and complainant. Thus, Mark A remains a doubtful document for lack of clarity.
28. Another discrepancy in the case of the complainant is that the complainant stated that he carried out total work of Rs 25 Lakhs. However, in his cross examination dated 06.05.2022 he categorically stated that he did not complete the remaining work since the cheque which was issued by the accused for his payment got bounced. Of what amount the remaining work was worth remains unclear. Was the remaining work included in the Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 15 of 19 total work of Rs 25 Lakhs or the total work was of a certain amount and the complainant carried out only the work of worth Rs 25 Lakhs? If the total work was of certain amount, then what was that amount? No clarification or answers can be deducible from the case of the complainant.
29. Furthermore, if it is the case of the complainant that he did not complete the work since the cheque in question got bounced i.e., on 01.01.2019 being the date of dishonor. Then there exist certain doubts with respect to the work carried and the amount involved. The case of the complainant is silent with respect to the duration till which the work was to be carried out. He simply states that since January 2018 he carried out work of Rs 25 Lakhs for the complainant. Till when he carried out such work and what was the original contract amount and duration remains elusive in the case of the complainant. Further in his cross examination dated 06.05.2022 he stated that the due payment was of Rs 30 Lakhs and then voluntarily stated that the bill which was raised was of Rs 25 Lakhs. Thus, what is deducible is that the total work was of Rs 30 Lakhs and the complainant carried only work worth Rs 25 Lakhs. He also stated that accused has made payment of Rs 11 Lakhs against the due payment of Rs 30 Lakhs. Now, if the above stated statement is to be relied on, then the outstanding is of Rs 19 Lakhs and not what has been claimed by the complainant. This, read in the light of the statement of the complainant that he did not carry out the complete work since the cheque in question bounced raises doubt with respect to the issuance of cheque as well as the actual Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 16 of 19 amount that remains outstanding.
30. It is an admitted position between both the parties that the complainant did indeed carry out work for the accused. In the present matter the dispute is with respect to the amount of work carried out and the amount of remaining outstanding. The following are the position of the complainant and the accused:
Complainant Accused
The total work was of Rs 25 The total work was of Rs 25
Lakhs. (However, in cross Lakhs. (Statement under Section
examination changed this position 313 CRPC.)
and claimed that total work was of
Rs 30 Lakhs.)
That he carried total work of Rs That the complainant carried out
25 Lakhs. total work of Rs 14 to 15 Lakhs
only. (Testimony as DW 1.)
Accused gave Rs 9 Lakhs out of That accused has returned around
Rs 25 Lakhs. (However, in cross Rs 12 to 13 Lakhs to the
examination changed this position complainant. (Testimony as DW
and claimed that Rs 11 Lakhs was 1.)
paid out of Rs 30 Lakhs.)
The total outstanding remained Rs That accused is entitled to pay 1374329/-. (However, the cheque only Rs 1 to Rs 1.50 Lakhs. amount is of Rs 14,00,000/-.) (Testimony as DW 1.) The cheque in question was taken by complainant in collusion with his i.e. accused staff and without his i.e. complainant's knowledge.
(Statement under Section 313 CRPC and testimony as DW 1.)
31. What is interesting to note in the present matter is that the amount is a substantial amount of Rs 25 Lakhs and no documents whatsoever was executed between the parties. Though there exists a categorical admission on part of both the parties that the work between them was of Rs 25 Lakhs.
Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 17 of 19However, there exists no documents on record brought in by the complainant which could go on to establish or even suggest that the work of Rs 25 Lakhs was indeed carried out by him. Reliance placed on Mark A does not come to much aid of the complainant as the document Mark A is not reliable and not much credence can be placed on the same for the reason which have already been discussed above.
32. It does stand proved that the complainant did indeed carry out plaster work for the accused. The doubt is with respect to the amount of work actually carried out since the complainant stated that the total work was of Rs 30 Lakhs and he carried Rs 25 Lakhs. The case of the complainant has to stand on its own footing and the complainant has to establish that the "legally enforceable debt" is of the amount which reflecting in the cheque in question and which was demanded by him in his legal notice. In the present matter the amount claimed in the cheque i.e., Rs 14 Lakhs is not the outstanding amount which was due as per the complainant i.e., Rs 13,74,329/-.
33. In the facts of the present case the case of the complainant appears to be standing on a loose footing in view of the lack of proof of carrying out the work of Rs 25 Lakh. This, viewed in the light of the other submissions made by the complainant as to the actual contract being of Rs 30 Lakhs and lack of details as to the duration of the work does create a doubt as to the actual amount that remains outstanding.
34. The Complainant has miserably failed to establish/prove his case against the accused based on the material brought on Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 18 of 19 record. Further, the accused has also been able to create a reasonable doubt through the cross examination and defence raised in the case of the complainant on the touchstone of preponderance of probabilities and has thus been successful to discharge his burden against the presumption under Section 139 NI Act.
35. Accordingly, the accused Dharmender Yadav S/o Sh. Krishan Yadav Sahani is acquitted of the offence under section 138 of the Act.
This Judgment contains 19 pages.
Every Page of this Judgment has been signed by me.
Digitally signed by HARSHAL NEGIHARSHAL Date:
NEGI Announced in the open court 2023.05.15 16:31:41 on this day of 15th May, 2023 +0530 (HARSHAL NEGI) MM(NI Act)-05/South-West District Dwarka Courts/New Delhi Ct. Cases 7863/2019 Mohd. Panbul Ansari Vs. YMDS Construction Pvt. Ltd & Anr. Page 19 of 19