Delhi District Court
Shri Arvind Kumar vs . M/S P. Aryan Art Gallery Pvt. Ltd. on 23 March, 2023
IN THE COURT OF MS. AAYUSHI SAXENA
METROPOLITAN MAGISTRATE (SOUTH) 01,
N.I. ACT, SAKET COURTS : NEW DELHI
CC No.34249/2019
Shri Arvind Kumar Vs. M/s P. Aryan Art Gallery Pvt. Ltd.
1.Complaint Case number : CC No. 34249/2019 2 Name of the complainant : Shri Arvind Kumar Proprietor of M/s Namah Construction Co., G-46, 2nd Floor, Saket, New Delhi.
3. Name and address of the : 1. M/s P. Aryan Art Gallery accused Pvt. Ltd., Having its office at D-25, Defence Colony, New Delhi-110024.
2. Pragya Arya, R/o D-27, Upper Ground Floor, Gulmohar Park, New Delhi.
3. Vikram Singh, R/o D-27, Upper Ground Floor, Gulmohar Park, New Delhi.
4. Offence complained of or : Under Section 138 of the proved Negotiable Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Final Order : Acquittal CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 1 of 26
7. Date of Institution : 24.10.2019
8. Date of Reserving the : 04.03.2023 Judgment
9. Date of pronouncement : 23.03.2023 Judgment:
1. The instant complaint is in respect of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act").
2. Succinctly, the chain of facts leading to filing of the present complaint, as has been averred in the present complaint, are as follows:
The complainant has entered into an agreement with accused no.1 for construction of building in plot no. N-6, South Extension, Part-I, New Delhi.(The said property will now be referred to as "Property in question "). It is the case of the complainant that unauthorized construction had been raised by the accused persons in violation of the sanctioned plan in the said property in the shape of extra floors as well as deviations at the basement, therefore, the concerned authority got booked the said unauthorized construction and deviations as per law. To remove the said CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 2 of 26 unauthorized construction, deviations and alteration, the accused persons engaged the complainant for said work, which was accordingly done by the complainant to the entire satisfaction of accused persons and it was settled that the accused persons shall pay a sum of Rs.15,00,000/- towards the services provided by the complainant for removal of unauthorized construction, deviation and alterations. Further, it is the case of the complainant that the accused persons entered into an agreement to sell with the prospective buyer, therefore, the complainant had approached the accused persons to clear his dues of Rs.15,00,000/- for which, the accused persons issued two cheques bearing no. 000836 dated 04.07.2019 for Rs.11,00,000/- from account of accused no.2 and cheque bearing no. 031369 dated 04.07.2019 for Rs.4,00,000/- from the account of accused no.3, both drawn on HDFC Bank, D-23, Defence Colony, New. (hereinafter referred to as "cheques in question "), in favour of the complainant but accused persons requested the complainant not to present the said cheques and sought some time. Thereafter, the complainant presented the said cheques which were returned unpaid by the banker of the complainant vide returning memo dated 30.08.2019, with the remarks 'payment stopped by drawer'. Thereafter, he got issued Legal Demand Notice dated 18.09.2019 within the CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 3 of 26 statutory period of time, through his counsel, but despite service of the said legal notice the accused persons failed to pay the cheque amount and aggrieved by the non receipt of payment, the complainant was constrained to file the present complaint.
3. Pursuant to filing of the said complaint, the complainant, filed his pre summoning evidence by way affidavit Ex.CW-1/A and has relied upon various documents mentioned therein.
4. Ld. Predecessor of this Court took cognizance of the offence under section 138 NI Act vide order dated 09.01.2020 and ordered for issuance of summons for attendance of the accused.
5. Thereafter, the accused no.2 and accused no 3. entered appearance on 07.07.2022.
5.1. On that very date, the complainant submitted that he did not wish to proceed against accused no.1 company and he prayed for dropping of accused no.1 company. In view of the said submission, statement of the complainant was recorded separately.
5.2. Accused no 2 and Accused no. 3 were then admitted to bail.
5.3. On 07.07.2022 itself, notice under Section 251 CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 4 of 26 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was given to accused no.2 and 3 and they were asked whether they pleaded guilty or claimed trial. In reply to this, accused no.2 and accused no.3 pleaded not guilty and claimed trial.
5.4. In his statement of defence recorded at that very date, accused no.2, inter-alia, stated that cheque bearing no.031369 belonged to his father and other cheque i.e. bearing no.000836 belonged to him and he admitted his signatures on cheque bearing no.000836 . Accused no.2 further stated that the complainant had approached him for a loan of Rs.15,00,000/- in May, 2019 and for the same, he gave said cheque to the complainant. Further, he did not have Rs.15,00,000/- at that time, so he gave a cheque of Rs.11 lakh to the complainant. Also, the complainant asked for 6 month time to repay the said loan. He further stated that the complainant did not execute any loan agreement despite repeated reminders and thereafter, accused no.2 issued stop payment instructions to his banker. Accused no.2 also requested the complainant to return his cheque but the complainant did not return. Accused no.2 further stated that he was not liable to pay any amount to the complainant. Also, he sated that he had received legal demand notice from the complainant and he replied to CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 5 of 26 the same.
5.5. In his statement of defence recorded at that very date, accused no.3, inter-alia, stated that cheque bearing no.031369 belonged to him and he admitted signature on the same. He further stated that other cheque i.e. bearing no.000836 belonged to his son Pragya Arya. Accused no.3 also stated that his son Pragya Arya had asked him to hand over a cheque and he gave him a blank signed cheque. Further, he stated that he was not aware that his cheque was given to the complainant. He also stated that he was not aware about receiving of legal demand notice or any reply given.
5.6. As the statements of defense of accused persons revealed a specific defense, hence they were allowed to cross examine the complainant witness under section 145 (2) NI Act.
5.7. Given the nature of the allegations, this Court had directed that the case shall be tried as a Summons case under Chapter XX of Cr.P.C.
6. During the course of the trial, the complainant examined himself as CW1 on 17.11.2022 and relied on the affidavit Ex.CW1/A filed by him at the pre-summoning stage and adopted the same in his examination in chief. He also relied upon the documents already exhibited as Ex.CW1/1 to CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 6 of 26 Ex.CW1/7 and Ex. CW1/B. The said witness was cross-
examined by the Ld. counsel for the accused and document Ex.CW1/D1, Mark CW1/D2 and Mark CW1/D3 were taken on record.
7. Thereafter, CW2 Sh. Raman Lal Sharma, ASO, MCD Office, Lajpat Nagar, Jal Vihar, New Delhi was examined on 08.12.2022 and cross examination was nil despite being given opportunity. Documents Ex.CW2/1 (colly) (OSR), Ex.CW2/2 (colly) (OSR) and Mark A were taken on record. Thereafter, on the submissions of the complainant, CE stood closed.
8. After closure of complainant's evidence on 08.12.2022 statements of accused persons under Section 313 Cr.P.C. read with Section 281 Cr.P.C. were recorded on that very date, whereby circumstances appearing against them in evidence were put to them. Accused no.2 and 3 reiterated their defence, taken by them at the time of framing of notic under Section 251 Cr.P.C.
9. Pursuant thereto, on 08.12.2022 itself, the case was fixed for defence evidence. On 05.01.2023 DW1 (accused no.2) was examined in chief and partly cross examined. On 31.01.2023, DW1 further cross examined and discharged and documents Mark DW1/X (colly) and Ex.DW1/C1 were taken on record. On that very date, DE was closed on submission of ld. Counsel for the accused and the matter was fixed for final CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 7 of 26 arguments.
10. Thereafter final arguments were heard on behalf of both the sides. Written submissions were also filed on behalf of the complainant and the accused.
11. I have heard the parties and carefully perused the record.
12. Before delving into the facts of the present case, it is necessary to look at the legal framework regarding Section 138 NI Act. The Hon'ble Supreme Court of India in Kusum Inglots & Alloys Ltd and Ors v. K Pennar Peterson Securities Ltd and Ors., (2000) 2 SCC 745 has clearly laid down the ingredients which are to be satisfied for making out a case under Section 138 NI Act, which are being reproduced hereunder:
(i) a 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 for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period of six months(Reduced to three months vide RBI circular dated 4.11.2011.) from the date on which it is drawn or within the period of its validity whichever is earlier;CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 8 of 26
(iii) 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;
(iv) 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 15 days (now 30 days w.e.f.
06.02.2003) of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) 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;
If the aforementioned ingredients are satisfied then the person who has drawn the cheque shall be deemed to have committed an offence. In the explanation to the section clarification is made that the phrase "debt or other liability" means a legally enforceable debt or other liability.
13. Adverting now to the facts of the present case, as it has already been mentioned above, when the accused no. 2 and accused no. 3 were given notice under Section 251 Code of Criminal Procedure,1973(hereinafter referred to as Cr.P.C.), CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 9 of 26 they admitted issuance of cheques in question Ex. CW-1/1 and Ex. CW1/2 to the complainant and their signatures on the said cheques. Therefore, once the accused persons have admitted issuance of cheques which bears their signatures, there is a presumption that there exists legally enforceable debt or liability under Section 139 NI Act.
14. Presumption under Section 139 NI Act:
"Section 139 NI Act states 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" (emphasis supplied) 14.1. Section 139 NI Act is a type of reverse onus clause, which stipulates a presumption in the favour of the Complainant as to fact of a cheque being received in discharge of a legal debt or liability.
14.2. Further, Section 118 (a) of the NI Act, states as follows:
"Presumptions as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made:
(a) of consideration - that every negotiable instrument CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 10 of 26 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;"
15. The following proposition can be summarized on a perusal of the judgments of the Hon'ble SC in APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers and Ors. [AIR 2020 SC 945]; Rohitbhai Jivanlal Patel v. State of Gujarat and Ors . [AIR 2019 SC 1876]; Basalingappa v. Mudibasappa , [(2019) 5 SCC 418]; ("Basalingappa Case") Kumar Exports v. Sharma Carpets , [(2009) 2 SCC 513] ; K.N. Beena v. Muniyappan and Anr ., [(2001) 8 SCC 458]; and Dhanvantrai Balwantrai Desai v. State of Maharashtra [1964 Cri. LJ 437]:
(i) Once the execution of cheque is admitted, Section 139 of the NI 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, the accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 11 of 26 liability to be discharged by him. While direct evidence cannot be insisted upon in any every case; bare denial of the passing of the consideration and existence of debt, would not serve the purpose of the accused;
(iv) Something which is probable has to be brought on record by the accused 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 consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist;
(v) The words "unless the contrary is proved" which occur in Section 139, make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists.
Unless, therefore, the explanation is supported by proof, the presumption created by Section 139 NI Act cannot be said to be rebutted;
(vi) To rebut the presumption, it is open for the accused to CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 12 of 26 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;
(vii) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
16. Let us now see, whether the accused no 2 and 3 have been able to prove their defence by leading cogent evidence or not.
17. In a nutshell, the defence of accused no. 2 i.e. Pragya Arya is that the complainant had approached him in May 2019, asking for a loan of Rs.15 lakhs. Since he did not have the requisite amount with him at that time, so he gave an amount of Rs. 11 lakhs, from his account vide cheque bearing number 000836 (i.e. Ex. CW1/2) and remaining amount of Rs. 4 lakhs was given to the complainant from account of ac- cused no 3 vide cheque bearing no. 0311369( i.e. Ex. CW1/1).
The defence of accused no 3,i.e. Vikram Singh, is that his son i.e. accused no. 2, had asked him to handover a blank signed cheque but he was unaware that his cheque was given to the complainant.
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 13 of 2618. Now, the case of the complainant is that the com-
plainant had entered into an agreement with M/s P. Aryan Art Gallery Pvt. Ltd for construction of building in Plot No. N-6, South Extension, Part-1, New Delhi i.e. the property in ques- tion. Further, for the unauthorized construction raised by the accused, the complainant was engaged by the accused to re- move the unauthorized construction and for that the accused persons became liable to pay an amount of Rs. 15,00,000/-, for which the accused persons issued the cheques in question to the complainant.
19. At the outset, let us advert our attention towards the re-
ply to legal demand notice dated 30.09.3019, sent on behalf of M/s P. Aryan Art Gallery Pvt. Ltd to the complainant.
19.1. Vide Para 1 of the said reply it has been admitted that there was a written agreement between the com- plainant and M/s P. Aryan Art Gallery Pvt. Ltd regard- ing the property in question.
19.2. Further in Para 2 of the said reply, it has been mentioned that full and final payment towards con- struction was made by M/s P. Aryan Art Gallery Pvt. Ltd and the complainant had issued proper bill with GST and other taxes and a receipt was also issued by the complainant.
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 14 of 2619.3. As regards the cheques in question, in Para 3 of the said reply, defence of accused no. 2 i.e. Pragya Arya is that the complainant had approached him in May,2019, asking for a loan of Rs.15 lakhs. Since he did not have the requisite amount with him at that time, so he gave an amount of Rs. 11 lakhs, from his account vide post dated cheque bearing number 000836 (i.e. Ex. CW1/2) and remaining amount of Rs. 4 lakhs was given to the complainant from account of accused no 3 vide post dated cheque bearing no. 0311369 (i.e.Ex. CW1/1). The complainant was supposed to handover duly signed loan agreement but the complainant failed to do so and despite asking, the complainant even failed to return back the cheques.
20. Now, when CW1 was cross examined by Ld. Counsel for the accused on 17.11.2022, he admitted that there was a written agreement for construction of the property in question. He also admitted that full and final payment was made in the year 2018. CW1 also admitted that after completion of the work, the complainant issued NOC to the accused which was then exhibited as Ex. CW1/D1.
21. It is the complainant's case that the complainant had provided its services for removal of unauthorized construc- tion, additional deviation etc. and towards the services ren-
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 15 of 26dered by the complainant, the accused persons issued the cheques in question for Rs. 15 lakhs.
21.1. When CW1 was cross examined by Ld. Counsel for the accused on 17.11.2022, at page 2 of the deposi- tion sheet, he stated that he could not give the exact date as to when the above building was booked for unauthorized construction and he volunteered that it would have been in mid- 2018. He also stated that he did not remember as to when he was engaged for re- moval of unauthorized construction in the said building. He also stated that he did not raise any invoice or bill for the said work.
21.2. From the above deposition of CW1, it is clear that CW1 has feigned his ignorance regarding the de- tails of the unauthorized construction work, which is difficult to believe as it is the complainant's own case that the cheques in question were given by the accused for the work done by the complainant for removing unauthorized construction.
22. It is also pertinent to note that, admittedly, for the ear-
lier transaction between the complainant and the accused, the complainant had issued NOC cum final receipt Ex. CW1/D1.
23. For the alleged transaction of removal of unauthorized construction, as per deposition of CW1, no bills were raised CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 16 of 26 by the complainant for, which seems to be quite improbable. While dealing in commercial business transactions, bills are raised for the work done and payment is made as per the bills. However, in the present case, the complainant did not raise any bill for the work done by him. This omission on the part of the complainant raises some doubt on its case.
24. During cross examination of CW1 on 17.11.2022, Ld. Counsel for the accused had shown photocopy of Completion Certificate dated 08.05.2018, to which CW1 had stated that he had no knowledge about the same. The said document was marked as Mark CW1/D2.
24.1. It is pertinent to note that the complainant had examined Sh. Raman Lal Sharma, ASO, MCD Office, Lajpat Nagar, as CW2. He had brought the record per- taining to the property in question. He has also proved on record the completion certificate dated 08.05.2018, which was marked as Mark A. So, the completion certificate dated 08.05.2018, in re- spect to the property in question, also stands proved.
24.2. CW1, during his cross examination, had stated that the property in question might have been booked for unauthorized construction in mid-2018. If that's the case, then it improbable that Completion-cum-Occu- pancy Certificate was issued by SDMC on 08.05.2018.
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 17 of 26Even if the case of the complainant is to be believed, that the property was booked for unauthorized con- struction in May-2018, for which the complainant was engaged by the accused persons and the accused per- sons became liable to pay Rs. 15 lakhs, then why did the complainant issue NOC Ex. CW1/D1 in favour of the accused on 24.01.2019.
24.3. Interestingly, CW1 has failed to state as to when the complainant was engaged by the accused to remove unauthorized construction. In absence of any definite answer by CW1 and in the light of the documentary ev- idence, the case of the complainant does not inspire confidence of this court.
24.4. The complainant has failed to bring on record any document showing that he was engaged by the ac- cused to remove unauthorized construction of the prop- erty in question for which the accused persons became liable to pay Rs. 15 lakhs. A perusal of cross examina- tion of CW1 shows that he was not even aware about when the complainant was engaged by the accused for removing unauthorized construction nor were any re- cipts/bills raised by the complainant for the said work, which makes the case of the complainant doubtful.
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 18 of 2625. Now, when DW1 was cross examined on 05.01.2023, and he was asked a question by Ld. Counsel for the com- plainant that "Is it correct that you sent a message to the com- plainant stating that by 03.07.2018, you would clear the ac- count with the complainant?", DW1 answered that he was not aware about the same as they had already closed the account of the complainant by 2017 and thereafter the complainant did not do any work on their site. On this point, it has been argued by Ld. Counsel for the complainant that if the account was closed in 2017, then why was the accused dealing with the complainant through WhatsApp. Further, it has been argued on behalf of the complainant that in order to falsify the de- fence of the accused, the WhatsApp chat Mark DW1/X was put to DW1 and he has admitted the same.
25.1. Admittedly, DW1 had communication with Sh.
Arvind Kumar till 12.07.2019. It is important to note that DW1 also deposed that the accused persons were demanding their cheques back as they were not inter- ested to advance loan to the complainant. He also stated that they had issued stop payment instructions to their banker.
So, from the above it appears that in order to get back their cheques, the accused persons were still dealing with the complainant.
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 19 of 2626. It is pertinent to note that, during cross examination of DW1, no question has been asked to him by Ld. Counsel for the complainant regarding payment of Rs 15 lakhs by way of the cheques in question, for the alleged services rendered by the complainant to remove unauthorized construction.
27. A suggestion was put to DW1 by Ld. Counsel for the complainant to which he stated that "It is wrong to suggest that civil work was carried by the complainant in the year 2018-2019". If the complainant wanted to prove that civil work was done by the complainant in 2018-2019, then the complainant should have same should have evidenced the same by some documentary proof, more so , when the com- plainant has himself admitted that it had issued NOC to the accused on 24.01.2019, which is Ex. CW1/D1.
28. In the written submissions filed by the complainant , the complainant has relied on judgment of Hon'ble Supreme Court in K.N. Beena Vs. Muniyappan & Anr(2001) 8 SCC 458 and the judgment of Hon'ble Delhi High Court in V.S. Yadav Vs. Reena 172(2010) DLT 561 wherein it has been succinctly held that that mere denial or rebuttal by the accused in reply to legal demand notice is not enough and the accused has to prove by cogent evidence that there was no debt or liablility. Also, the accused has to prove by cogent evi- dence the circumstances under which the cheque was issued. In the present case, the defence of the accused, that the CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 20 of 26 cheques were issued towards the proposed loan ipso facto does not by itself rebut the presumption.
It is a settled law that mere denial or rebuttal by the accused is not enough and he has to bring on record some cogent evi- dence in order to prove its defence.
28.1. Adverting to the facts of the present case, it is an admitted position that the complainant and the accused had some transaction for the property in question, for which NOC was also given by the complainant, which is Ex. CW1/D1. Even the copy of completion certificate was brought on record by Ld. Counsel for the accused, which was shown to CW1 and the same was then marked as Mark CW1/D1. The said document was later on proved by CW2, who had also produced copy of completion certificate for the property in question, which was marked as Mark A. 28.2. As already discussed above, during deposition of CW1, CW1 stated that he was unaware as to as to when the property in question was booked for unauthorized construction. He was also not aware whether any com- pleteion certificate was issued by the concerned author- ity on 08.05.2018. He also did not remember as to when he was engaged by the accused for removal of unauthorized construction of the said building. He also CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 21 of 26 stated that there was a verbal agreement regarding his engagement and he did not remember the date, month and year when he started the work towards Rs. 15 lacs engagement or when he finished the same. He also stated that he did not raise any invoice or bill for the said work.
28.3. The statements of CW1 show how oblivious he was regarding his own case. The complainant has not filed even a single document to show that he was en- gaged by the accused to remove the unauthorized con- struction and for the same and for that the accused be- came liable to pay Rs. 15 lakhs to the complainant, de- spite specific questions being put to him during his cross examination.
29. It has been argued by Ld. Counsel for the complainant that the accused no. 2 has stated that he did not ask for return of the cheques in written but he had orally asked for the same. Further, it has been submitted that the inaction on the part of the accused to take steps for stopping misuse or wrong en- cashment of his cheque suggests that he never took steps to procure back his alleged signed cheque.
29.1. In this regard it is pertinent to note that the ac-
cused persons have duly replied to the legal demand notice sent by the complainant.
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 22 of 2629.2. Also, during cross examination of DW1 of 31.01.2023, he stated that "It is correct that I have never demanded the return of the cheques in question from the complainant either in chatting message or let- ter in writing (vol. I had asked the complainant ver- bally).
29.3. Also, during cross examination of DW1 on 31.01.2023, he stated that there was no point of talking to the complainant as he was not returning the cheques and they had already issued stop payment instructions to their banker.
29.4. So, from the above discussion, it cannot be said that there was complete inaction on part of the accused for return of the cheques in question.
30. It has been argued by Ld. Counsel for the complainant that during framing of notice, under Section 251 Cr.P.C., ac- cused no. 3 Vikram Singh has admitted that he is liable to pay the cheque amount to the complainant. In this regard, it has been argued on behalf of accused no 3 that the same might have been recorded wrongly, as throughout the proceedings the accused persons have denied their liability qua the cheques in question.
30.1. A perusal of the file shows that an application dated 03.03.2023 was filed on behalf of Vikram Singh.
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 23 of 26By way of the said application, it has been submitted on behalf of accused Vikarm Singh that though in the no- tice under Sectiom 251 Cr.P.C. of Vikarm Singh it has been written that he is liable to pay the cheque amount to the complainant but the same is factually incorrect and the same might be a clerical mistake. It has been further submitted that the defence of Vikarm Singh was always that the cheque was not given by him but the same was given by Pragya Arya, i.e. accused no. 2. Fur- ther, it is also submitted by Ld. Counsel for the accused that the accused Vikarm Singh has denied the circum- stances put to him while recording his statement under Section 313 Cr.P.C.
30.2. It is correct that while framing of notice of Vikram Singh under Section 251 Cr.P.C. on 07.07.2022, in his defence accused Vikram Singh has stated that he is liable to pay the cheque amount to the complainant. However, if the notice under Section 251 Cr.P.C. is read as a whole, the accused Vikarm Singh has stated that his son Pragya Arya i.e. accused no. 2 had asked him to hand over the cheque to him and he also stated that he was not aware that the cheque was given to the com- plainant.
30.3. Also, at the stage of recording of statement of ac-
cused under Section 313 Cr.P.C., he denied the incrimi-
CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 24 of 26nating evidence that was put to him and also stated that he is not liable to pay any amount to the complainant. He also stated that he was not aware about the present transaction. Moreover, when CW1 was cross examined by Ld. Counsel for the accused on 17.11.2022, he stated that "I do not know if Thakoor Vikram Singh has any say in P. Aryan Art Gallery Pvt. Ltd. All the agreements etc. used to be signed by Pragya Arya." Further at page 4 of the said cross examination, CW1 has deposed that "I have filed a case against Gaurav Khattar, pending in the Tis Hazari Court, the said case was pending at the time when I obtained the cheques from Pragya Arya."
30.4. So, from the above it seems that in notice under Section 251 Cr.P.C., of Vikarm Singh, it was inadver- tently written that "I am liable to pay cheque amount to the complainant". It also seems that the accused Vikarm Singh had signed the said notice without noticing the same.
In view of the above, the application is disposed off ac- cordingly.
31. It is a settled law that the standard of proof on the ac-
cused is evidently pre-ponderance of probabilities. It is a settled position that when an Accused has to rebut the presumption Under Section 139, the standard of proof for CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 25 of 26 doing so is that of "preponderance of probabilities". The infer- ence of pre-ponderance of probabilities can be drawn not only from the materials on record but also by reference to the cir- cumstances upon which the accused relies. The accused does not have to prove its defence beyond reasonable doubt 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 the prosecution has to prove its case beyond reasonable doubt.
Conclusion
32. In view of the above discussion, In my considered opinion, the accused no. 2 and accused no.3 have been able to raise a probable defence in their favour and the complainant has not been able to prove its case beyond reasonable doubt. Hence, accused no.2 Pragya Arya and accused no.3 Vikram Singh, are hereby acquitted for offence punishable under Section 138 NI Act. Copy of this judgment be given free of cost to both the sides.
Digitally signed by AAYUSHISAXENA Announced in the open Court on 23.03.2023 AAYUSHI Date:
SAXENA 2023.03.24 15:47:14 +0530 (Aayushi Saxena) Metropolitan Magistrate-01 (South), NI Act/Saket/New Delhi/23.03.2023 CC No.34249/2019 Shri Arvind Kumar Vs. M/S P. Aryan Art Gallery Pvt. Ltd. Page 26 of 26