Delhi District Court
Mohd. Qamar vs Nagesh Shankar Singh on 25 July, 2025
IN THE COURT OF SH. PANKAJ RAI
JUDICIAL MAGISTRATE FIRST CLASS- 01, KARKARDOOMA COURTS:
NORTH EAST DISTRICT, DELHI
CT No. 656/2016
Mohd. Qamar vs Nagesh Shankar Singh
1. Complaint Case number : 656/2016
2 Name and address of the : Mohd. Qamar
complainant Proprietor of M/s. Paradise Interiors
E-442, Street No.20,
Old Mustafabad, Delhi-110096.
3. Name and address of the : Nagesh Shankar Singh
accused Proprietor of M/s. Studio Svelte
Architects and Interiors
F-312, Sector-63,
Noida-201301, U.P.
4. Offence complained of : Section 138 of the Negotiable Instruments Act,
1881.
5. Plea of the accused : Pleaded not guilty and claim trial.
6. Final Order : Acquitted
7. Date of Institution / : 22.12.2015
transfer
8. Date of Reserving the : 10.06.2025
Judgment
9. Date of pronouncement : 25.07.2025
Judgment:
1. Vide this judgment I shall dispose of the complaint filed by the complainant
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to
as the 'Act ').
2. Brief facts relevant for the decision of the case are as under:-
It is the case of the complainant that he is into the work of interior designing in
buildings and flats under the name and style of "M/s. Paradise Interiors" as its
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PANKAJ RAI
PANKAJ Date:
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proprietor. That the accused ordered the complainant to perform the work of
interior designing etc. for various sites including sample flats at Sunshine Hills,
Sector-78, UP and at the flat of one Avni Kumar at Supretech, Vaishali,
Ghaziabad, UP and at the house of one GC Jain, Ashok Vihar, Delhi and work for
modular kitchen in a flat at South Extension, Part-II, Delhi as well as other
miscellaneous work at different point of time as per requirement of accused. That
the complainant performed those works as assigned from time to time by the
accused. That in discharge of liability towards the complainant, the accused issued
two post-dated cheques in question i.e. cheque bearing no. 479370 dated
07.06.2013, 479371 dated 07.07.2013 for an amount of Rs.2,50,000/- and
Rs.3,00,000/- respectively and both were drawn on Indian Mercantile Cooperative
Bank, Naya Bans, Sector-15, Noida, UP, in favour of the complainant. However,
vide cheque return memos dated 29.08.2013, with remarks insufficient 'funds', the
cheques in question were dishonoured. The complainant further stated that the
accused failed to repay the cheque amount despite due service of legal notice dated
16.09.2013 which was delivered to the accused. As such no payment was made to
the complainant within stipulated time and therefore, accused deserves to be
convicted for the offence punishable under Section 138 of Negotiable Instruments
Act with respect to the cheque in question.
3. The accused, who appeared to face the trial subsequent to the process being
served upon him, put forth a competing version at the time of framing of notice
that the cheques in question were issue to the complainant as certain contracts were
assigned to him with respect to projects and that the complainant has not
performed his part within the time frame and because of which the accused
suffered penalty of Rs.2 crores. He admitted his signatures on the cheques in
question but disputed the receipt of legal demand notice.
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Date:
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4. To prove its case the complainant has examined himself as CW-1, who
reiterated the version of the complaint and relied upon his evidence by way of
affidavit (Ex.CW1/1) alongwith the following documents to prove the liability of
the accused :-
(a) Ex.CW1/A and Ex.CW1/B : Original cheques in question;
(b) Ex.CW1/C to Ex.CW1/G : Original cheque return memos;
(c) Ex.CW1/H : Office copy of legal notice dated 16.09.2013; and
(d) Ex.CW1/I : Reply of accused.
5. The Complainant was cross examined as CW-1 by Ld. Counsel for the
accused. Thereafter, CE was closed vide order dated 27.08.2024. The statement of
accused under section 313 Cr.P.C/351 BNSS was recorded on 25.01.2025 and he
chose to lead DE. However, on 24.04.2025 DE was closed upon the statement of
Ld. Counsel for accused that accused does not want to lead DE. The matter was
then listed for final arguments.
6. Arguments heard. Record perused.
7. To make any person liable under Section 138 Negotiable Instruments Act
(hereinafter to be read as 'The Act'), the following ingredients are required to be
proved by the complainant:
(i) Person must have drawn a cheque on an account maintained by him in
a bank for payment of a certain amount of money to another person from
out of that account;
(ii) The cheque should have been issued for the discharge, in whole or in
part, of any debt or other liability;
(iii)That cheque has been presented to the bank within a period of three
months from the date on which it is drawn or within the period of its
validity whichever is earlier;
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(iv)That cheque is returned by the bank unpaid, either because of the
amount of money standing to the credit of the account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid from
that account by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque makes a demand
for the payment of the said amount of money by giving a notice in
writing, to the drawer of the cheque, within 30 days of the receipt of
information by him from the bank regarding the return of the cheque as
unpaid; and
(vi) The drawer of such cheque fails to make payment of the said amount
of money to the payee or the holder in due course of the cheque within 15
days of the receipt of the said notice.
8. In the case in hand the receipt of legal demand notice has been admitted by
the accused at the time of recording of statement of accused under section 351
BNSS on 25.01.2025. Moreover, issuance of the cheques by the accused and the
signatures of accused on the cheques in question are not disputed. In a case under
Negotiable Instrument Act, the complainant need not to prove the existence of
liability as once these facts that the cheque in question belongs to the accused and
the signature on the cheque in question are of the accused are established, a
presumption of the cheques having been issued in discharge of a legally
recoverable liability and drawn for good consideration, arises by virtue of Section
118 (a) and Section 139 of the NI Act and the court presumes that the cheque was
issued in discharge, in whole or in part, of any debt or their liability. At this stage,
with the help of the presumption under Section 139 of the Act, the case of the
complainant stands proved. When the presumption is raised in favour of the
complainant, the burden shifts upon the accused to disprove the case of the
complainant by rebutting the presumption raised in favour of the complainant.
Being the rule of reverse onus, it is the duty on the accused to prove that he does
not owe any liability towards the complainant. The accused can displace this
presumption on the scale of preponderance of probabilities by raising a probable
defence and the lack of consideration or a legally enforceable debt need not be
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proved beyond all reasonable doubts. The accused has to make out a fairly
plausible defence which is acceptable to the court. This the accused can do either
by leading own evidence in his defence, or by raising doubt on the
material/evidence brought on the record by the complainant. For this, reliance is
placed upon the judgment of Apex Court in case title Rangappa v. Sri Mohan
(2010) 11 SCC 441 and Kumar Exports v. Sharma Carpets (2009) 2 SCC 513.
9. Therefore, the main question which is to be adjudicated by this court is as to
whether the accused, on a scale of preponderance of probabilities, has raised any
probable defence and has led evidence sufficient to discredit the case of the
complainant so as to shift the onus placed upon him to the complainant or not.
10. Ld. Counsel for the accused had argued that the complainant failed to prove
the existence of legally recoverable debt and many contradictions have emerged in
the complainant's case. It is noteworthy that the following contradictions have
emerged in the case of complainant during his cross-examination in this regard. In
the cross-examination dated 24.02.2020 he has deposed that the first project of
Sunshine, Helios was provided to him by the accused in the year 2011 and that
there was no written agreement between him and accused regarding this project
and that the rates regarding the said project was given by him to the accused in
writing and that the total estimate of the project was about Rs.5-5.5 lakhs and that
no bill/invoice was raised by him. However, in the cross-examination dated
27.08.2024 he has deposed that he does not remember as to whether he has made
any such contract regarding Sunshine, Helios in the year 2011. He also admits that
he does not remember the exact amount of the said project. He also admits that he
does not remember how much amount he has taken or received from the accused.
On one hand, he deposed in his cross-examination on 24.02.2020 that he did not
received Rs.5.5 lakhs from the accused qua the first project and that part payment
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PANKAJ
PANKAJ RAI
RAI Date:
2025.07.25
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of Rs.1.5 lakhs was received in installments through cheque and cash. On the other
hand, in his cross-examination on 27.08.2024 he received payment of Rs.50,000/-
to Rs.60,000/- from the accused in the abovesaid project. Thus, it appears that the
complainant is not sure footed about the facts of his own case.
11. Even as regards the second project of one Avni Kumar, Supertech,
Ghaziabad contradictions have emerged in the case of complainant. He has
deposed in the cross-examination that dated 24.02.2020 that the amount involved
in the said project was Rs.11-11.5 lakhs and that this project was completed in
August, 2011 and that he has received part payment of Rs.2.5 lakhs through
cheque and cash from the accused. However, in his cross-examination on
27.08.2024 he came up with a new story that he has received Rs.4 lacs in cash in
the said project and that Rs.8 lacs are pending against the accused.
12. As regards, third project of one GC Jain, Ashok Vihar, Delhi he has
deposed in his cross-examination on 24.02.2020 that no amount was fixed for this
project and that he has stopped working for the accused after completing the work
of approximately Rs.3,00,000/- and that during this period he has received
payment of Rs.1,00,000/- from the accused. However, in his cross-examination on
27.08.2024 he improvised his version and deposed that the said project was of
approximately Rs.3,50,000/-.
13. Moreover, he has deposed in his cross-examination on 27.08.2024 that all
the project was fixed for a total amount of Rs.17,50,000/- and that accused had
only given him Rs.6,50,000/- in cash. He has also admitted that he has no
document issued by the accused qua the above projects. The complainant has also
deposed that he is claiming Rs.11,00,000/- from the accused but accused had
finalised the amount of Rs.8,00,000/-. Admittedly, the above crucial facts are also
not mentioned in the complaint or in the affidavit-in-evidence. The admitted
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Date:
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payment of one cheque of Rs.2,50,000/- was also not mentioned anywhere by the
complainant. He has also admitted that he has not filed any proof regarding
completion of all the projects assigned by the accused. The averments in the
complaint are also vague inasmuch as there is no description therein as to what
other sites were assigned to him and as to what miscellaneous work at different
point of time he has performed as alleged and as to when he has performed it and
how much amount became due thereby. The cross-examination of complainant
shows that he himself is not sure about the exact liability of accused.
14. It is a settled law that section 138 NI Act contemplates a case of strict,
ascertained and crystallised liability and the accused is entitled to be acquitted if he
shows that no such liability for the cheque amount exists against him when it was
presented for encashment. Reliance is also placed upon the judgment of Hon'ble
High Court of Delhi in Credential Leasing & Credits Ltd. v. Shruti Investments &
Another 223 (2015) DLT 343 wherein it was held that:
"28. ... ... ... the scope of Section 138 NI Act would cover cases
where the ascertained and crystallised debt or other liability exists on
the date that the cheque is presented, and not only to case where the
debt or other liability exists on the date on which it was delivered to
the seller as a post-dated cheque, or as a current cheque with credit
period. The liability, though, should be in relation to the transaction
in respect whereof the cheque is given, and cannot relate to some
other independent liability. If, on the date that the cheque is
presented, the ascertained and crystallised debt or other liability
relatable to the dishonoured cheque exists, the dishonour of the
cheque would invite action under Section 138 NI Act. There could
be situations where, for example, an issue may be raised with regard
to the quality, quantity, deficiency, specifications, etc. of the
goods/services supplied, or accounting. It would have to be
examined on a case to case basis, whether an ascertained or
crystallised debt or other liability exists, which could be enforced by
resort to Section 138 NI Act, or not."
15. It is manifest from the evidence of the complainant that he is changing his
version as per his own convenience. He is neither sure shot about the facts of the
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PANKAJ
PANKAJ RAI
RAI Date:
2025.07.25
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case nor there is clarity regarding the exact amount he is claiming against the
accused. There is no explanation from the complainant as to why the above
mentioned facts, including the payments received from the accused, were not
mentioned by him in his complaint or in affidavit-in-evidence. This further creates
a doubt in the mind of the court as regards the exact quantum of liability against
the accused. Under such circumstances, the suggestions given to complainant
during his cross-examination that the accused has issued security cheques to the
complainant, though denied on the part of complainant, also becomes relevant. The
accused has promptly replied to the legal demand notice also. It appears that there
exists contractual dispute between the parties regarding the completion of work
contract and there are disputed issues of facts as to who is in the actual breach of
contract and as to whether the work performed was of sub-standard quality or not
and as to who has suffered monetary losses etc. on that account and these are
matters of evidence before civil court and the complainant has given criminal
colour to purely civil contractual dispute. There are also various inconsistencies
and contradictions in the case of the complainant as projected in the complaint and
his deposition in the cross examination as noted above. Apart from the cheque in
question, there is no other evidence produced by the complainant in his cross-
examination to substantiate his projected case. It is a settled principle of law that
the case of the complainant has to stand on its own legs and that it cannot derive
any strength from the weakness of the defence. The suspicious circumstances
arising in the present case will certainly give advantage to the accused.
16. In Anss Rajashekar v. Augustus Jeba Ananth (2020) 15 SCC 348 a two
Judge Bench of Apex Court, reiterated the decision of the three-judge bench of
Apex Court in Rangappa v. Sri Mohan (supra) on the presumption under Section
139 of the NI Act. The court held:
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PANKAJ Date:
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"12. Section 139 of the Act mandates that it shall be presumed,
unless the contrary is proved, that the holder of a cheque received it,
in discharge, in whole or in part, of a debt, or liability. The
expression "unless the contrary is proved" indicates that the
presumption under Section 139 of the Act is rebuttable. Terming this
as an example of a "reverse onus clause" the three-Judge Bench of
this Court in Rangappa held that in determining whether the
presumption has been rebutted, the test of proportionality must guide
the determination. The standard of proof for rebuttal of the
presumption under section 139 of the Act is guided by a
preponderance of probabilities. This Court held thus:
"28. In the absence of compelling justifications, reverse onus clauses
usually impose an evidentiary burden and not a persuasive burden.
Keeping this in view, it is a settled position that when an accused has
to rebut the presumption under Section 139, the standard of proof for
doing so 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 liability, the
prosecution can fail. As clarified in the citations, the accused can
rely on the materials submitted by the complainant in order to raise
such a defence and it is conceivable that in some cases the accused
may not need to adduce evidence of his/her own."
17. In the case of Kulvinder Singh v. Kafeel Ahmad, 2014 (2) JCC (NI) 100 it
was observed by Hon'ble Delhi High Court that -
"The basic principle in Criminal law is that the guilt of
respondent/accused must be proved beyond reasonable doubt and if
there is slightest doubt about commission of an offence then the benefit has to accrue to him".
18. Therefore, in present matter the accused has been able to raise a reasonable probable defence by punching holes in the case of the complainant itself on the basis of the materials already brought on record by way of cross-examination of the complainant, which has created doubt about the passing of consideration and existence of a legally enforceable debt or liability, and has been able to rebut the presumptions under sections 118 and 139 of the Act and the reverse onus cast upon him has been discharged.
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PANKAJ
PANKAJ RAI
RAI Date:
2025.07.25
19. Since the accused has rebutted the statutory presumptions, the onus again shifts back upon the complainant. Now the presumptions under Sections 118 and 139 of the Act will not again come for the rescue of the complainant. The service of legal demand notice is also not proved by the complainant. In the instant case, complainant has miserably failed to establish his case beyond reasonable doubt by proving all the ingredients under Section 138 N I Act.
20. In view of the above discussion, complaint stands dismissed and the accused stands acquitted of the offence under Section 138 Negotiable Instruments Act,1881.
21. Accordingly, accused Nagesh Shankar Singh is acquitted of the offence under section 138 of the N.I. Act.
File be consigned to record room after due compliance.
Digitally
signed by
PANKAJ PANKAJ RAI
Announced in the Open Court RAI
Date:
2025.07.25
16:21:20
on 25th Day of July, 2025 +0530
(PANKAJ RAI)
Judicial Magistrate First Class-01, NE/KKD/25.07.2025 C.T. No. 656/16 Mohd.Qamar vs Nagesh Shankar Singh Page No. 10/10