Delhi District Court
Ms Biba Apparels Pvt. Ltd vs Indrajeet Dey Anr on 12 January, 2026
IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS, (NI ACT)-04,
SOUTH, SAKET, NEW DELHI
Presided over by- Sh. Shiva Parashar, DJS
In the matter of :-
M/s Biba Apparels Pvt. Ltd. DLST020019942014
Through its AR Sh. Avaya Kumar Pati,
Office at: Capital Cyber Scape, Sector 59,
Golf Course Extension, Gurugram- 122102
.... Complainant
VS.
1. Indrajeet Dey
S/o Sh. Devasheesh Dey,
R/o 161, Annapurna Nagar,
Ujjain, Madhya Pradesh- 456010
2. Puja Dey
W/o Sh. Indrajeet Dey, R/o 161, Annapurna Nagar,
Ujjain, Madhya Pradesh- 456010
.... Accused
1. Name of Complainant : M/s Biba Apparels Pvt. Ltd.
2. Name of Accused : Indrajeet Dey & Puja Dey
Section 138, Negotiable Instruments
3. Offence complained of or proved :
Act, 1881
4. Plea of Accused : Not Guilty
5. Date of Filing : 18.12.2014
6. Date of Reserving Order : 15.11.2025
7. Date of Pronouncement : 12.01.2026
8. Final Order : Acquittal
Argued by: - Sh. Atul Guleria, Ld. Counsel for the complainant.
Sh. Neeraj Kumar Mishra, Ld. Counsel for the accused.
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Digitally signed
by SHIVA
SHIVA PARASHAR
PARASHAR Date:
2026.01.12
16:59:51 +0530
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
FACTUAL MATRIX
1. The present complaint is filed against the accused persons Indrajeet
Dey and Puja Dey under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as "NI Act"). The substance of allegations and assertions of
the complainant, M/s Biba Apparels Pvt. Ltd., is that the accused no. 1 worked at
the complainant company as a National Business Development Manager from
14.11.2011 to 31.10.2013. It is alleged that in the month of August, 2013 when the
senior officials of the Complainant Company were out of station on company
assignments, the accused no. 1 generated "customer codes" for non-existent
customers and thereafter purchase orders for such fictitious customers were
processed and goods were delivered. In this manner, the accused no. 1 had
embezzled an amount of Rs. 43,51,984/- (Forty Three Lakh Fifty One Thousand
Nine Hundred Eighty Four Rupees). Thereafter, it came to the knowledge of the
senior officials that accused no. 1 had embezzled the money and accordingly, he
was confronted, upon which accused no.1 confessed his guilt and agreed to repay
the entire amount. However, despite repeated opportunities, the accused failed to
make the payment. It was then that accused no. 2 who is the wife of accused no. 1,
agreed to share the liability of accused no. 1 and accordingly, both of them issued
post-dated cheques towards part payment in favour of the complainant.
2. In order to discharge the outstanding liability, accused no. 1 issued
cheque bearing No. 079988 dated 02.09.2014 for an amount of Rs. 10,00,000/- (Rs.
Ten Lakh) drawn on Axis Bank, Green Park, Delhi (hereinafter referred to as
"cheque in question"). The accused no. 2 also issued a cheque bearing No. 735828
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Digitally signed
by SHIVA
SHIVA PARASHAR
PARASHAR Date: 2026.01.12
16:59:56 +0530
dated 06.10.2014 for an amount of Rs. 10,00,000/- (Rs. Ten Lakh) drawn on ING
Vysya Bank, Janakpuri, Delhi (hereinafter also referred to as "cheque in question").
The said cheques, when presented, were returned unpaid vide return memo dated
10.10.2014 by the bank with remarks, "Funds Insufficient". The complainant then
issued a consolidated demand notice dated 01.11.2014, through its counsel upon
both the accused persons. Even after the receipt of the demand notice, the accused
persons failed to pay the cheque amount within the stipulated period and hence, the
present complaint.
3. On finding a prima facie case against the accused persons, they were
summoned to face trial vide order dated 20.12.2014 and after their appearance,
notice of accusation under Section 251, Code of Criminal Procedure, 1973
(hereinafter referred to as "CrPC") was served upon them on 12.08.2016. In reply
to the notice of accusation, the accused persons pleaded not guilty and claimed trial.
Accused no. 1 disputed his liability on the ground that the cheque in question was
given to the AR of complainant for one LIC policy. Accused no. 2 disputed her
liability as well on the ground that she had purchased goods from the complainant
and the payment qua the same had already been made by her.
4. During the trial, the complainant has led the following oral and
documentary evidence against the accused to prove its case beyond reasonable
doubt:-
ORAL EVIDENCE
CW 1 : Avaya Kumar Pati (AR of Complainant)
DOCUMENTARY EVIDENCE
Ex.CW1/A : Authority letter
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by SHIVA
SHIVA PARASHAR
PARASHAR Date:
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Ex.CW1/B : Complaint dated 27.02.2014
Ex.CW1/C1 : Acknowledgement of debt dated 28.03.2014
Ex.CW1/C2 : Acknowledgement of debt dated 15.05.2014
Ex.CW1/D1 : Cheque bearing no. 079988
Ex.CW1/D2 : Cheque bearing no. 735828
Ex.CW1/E1 : Return memo
Ex.CW1/E2 : Return memo
Ex.CW1/F : Legal demand notice
Ex.CW1/G1 : Original postal receipt
Ex.CW1/G2 : Original postal receipt
Ex.CW1/G3 : Original postal receipt
Ex.CW1/G4 : Original postal receipt
Ex.CW1/H1 : Tracking report
Ex.CW1/H2 : Tracking report
Ex.CW1/H3 : Tracking report
Ex.CW1/A1 : Authority letter dated 05.07.2023
Mark-A1 : Appointment letter of accused no. 1
Mark-A2 : Personal data form
Mark-A3 : Booking confirmation letter
Ex.CW1/I : Evidence by way of affidavit of CW1
Ex.CW1/IR : Evidence by way of affidavit of CW1
5. During the stage of cross-examination of AR of complainant, upon the
failure of accused persons to cross-examine the AR, the opportunity was closed
vide order dated 20.05.2019. However, another opportunity was given to the
accused persons to cross-examine the AR of complainant while allowing their
application u/s 311 Cr.P.C. vide order dated 22.11.2019. Thereafter, the previous
AR of complainant had resigned from his office and a new AR was substituted and
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by SHIVA
PARASHAR
SHIVA
Date:
PARASHAR 2026.01.12
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accordingly, his evidence affidavit Ex.CW2/J was tendered in evidence but before
the new AR could be cross-examined, he had also resigned from his office and
accordingly, the AR was again substituted on 16.02.2024. Accordingly, a fresh
evidence affidavit was tendered by Avaya Kumar Pati and he was again examined,
cross-examined and discharged.
6. Thereafter, before the start of defence evidence, in order to allow the
accused persons to personally explain the incriminating circumstances appearing in
evidence against them, the statements of the accused persons were recorded without
oath under Section 313 Cr.P.C. on 31.08.2024. In reply, the accused persons
accepted the dishonour of cheques in question; however, they denied their liability.
Previously, the statement of accused no. 1 was recorded u/s 313 Cr.P.C. on
07.09.2019 as well.
Thereafter, the accused persons refused to lead any evidence in their
defence and accordingly, the defence evidence was closed on 12.07.2025.
ARGUMENTS-
7. The final arguments were heard in the matter. I have heard the ld.
counsels appearing for the parties and have given my thoughtful consideration to
the material appearing on record.
8. It has been argued by the ld. counsel for the complainant that all the
ingredients of the offence are fulfilled in the present case. He has argued that it is
proved from the material on record that accused no. 1 had embezzled more than Rs.
43 lakhs of the complainant and the same is proved by his hand written confession
Ex.CW1/C1 and Ex.CW1/C2. Further, the defence of both the accused persons is
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by SHIVA
SHIVA PARASHAR
PARASHAR Date:
2026.01.12
17:00:09 +0530
not coherent and they have taken contradictory stands during the different stages of
trial. As such, the accused persons have failed to raise a plausible defence whereas
the case of complainant is proved through documents itself. In addition, the accused
persons have raised disparate defences in their Notice under Section 251 Cr.P.C.
and in their statements recorded under Section 313 Cr.P.C. As such, it is prayed that
the accused persons be punished for the said offence.
9. Per contra, ld. counsel for the accused has argued that the complainant
has failed to establish its case beyond reasonable doubt. He submits that the
accused persons have no legally enforceable liability towards the complainant as
the complainant has failed to place on record the bills/invoices of sale to fictitious
customers, proof of delivery/builty in favour of the fictitious customers and the
actual loss of money through a ledger or an audit report. It is also argued by ld.
Counsel for the accused that a consolidated legal demand notice is sent to the
accused persons which is not permissible as per law. Further, the cheques in
question were taken from the accused persons under duress. It is further argued that
the complainant has failed to prove that accused no. 1 had the means and authority
to create new customer codes and additionally, a list of such newly created
customer codes have not been placed before the Court. As such, it is prayed that the
accused persons be acquitted.
INGREDIENTS OF OFFENCE AND DISCUSSION
10. Before dwelling into the facts of the present case, it would be
apposite to discuss the legal standards required to be met by both sides. In order to
establish the offence under Section 138 of NI Act, the prosecution must fulfil all the
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by SHIVA
PARASHAR
SHIVA
PARASHAR Date:
2026.01.12
17:00:16
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essential ingredients of the offence. Perusal of the bare provision reveals the
following necessary ingredients of the offence:-
First Ingredient: The cheque was drawn by a person on an account maintained
by him for payment of money and the same is presented for payment within a
period of 3 months from the date on which it is drawn or within the period of
its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any
legally enforceable debt or other liability;
Third Ingredient: The cheque was returned unpaid by the bank due to either
insufficiency of funds in the account to honour the cheque or that it exceeds the
amount arranged to be paid from that account on an agreement made with that
bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or
holder in due course of the cheque by a notice in writing given to the drawer
within thirty days of the receipt of information of the dishonour of cheque from
the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of
money within fifteen days from the date of receipt of notice.
11. The accused can only be held guilty of the offence under Section 138
NI Act if the above-mentioned ingredients are proved by the complainant co-
extensively. Additionally, the conditions stipulated under Section 142 NI Act have
to be fulfilled.
12. The proof of first and third ingredient is not disputed. The complainant
has proved the original cheques, Ex. CW1/D1 and Ex.CW1/D2 which the accused
persons have not disputed as being drawn on their account. It is not disputed that
the cheques in question were presented within the validity period. The cheques in
question were returned unpaid vide return memo, Ex. CW1/E1 and Ex.CW1/E2 due
to the reason, "Funds Insufficient". As such, on the basis of the above, the first and
third ingredient of the offence under Section 138 NI Act stands proved.
13. With regard to the fourth and fifth ingredient, the complainant has
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SHIVA
SHIVA PARASHAR
PARASHAR Date:
2026.01.12
17:00:21
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proved on record legal notice Ex. CW1/F, original postal receipts Ex. CW1/G1 to
Ex.CW1/G4. The cheques in question were dishonoured vide return memo Ex.
CW1/E1 and Ex. CW1/E2 dated 10.10.2014. The legal notice was addressed to the
accused persons and sent by the counsel for complainant is dated 01.11.2014. The
receipt of legal demand notice is denied by the accused persons in their statement
recorded u/s 251 Cr.P.C. The tracking reports filed along with the complaint show
that the notice was delivered on the same address as mentioned in the arrest memo
dated 30.11.2015 of accused no. 1. Further, the same address has also been noted by
the accused persons in their statements before the court. The address mentioned on
the legal demand notice is not disputed by the accused persons during any stage of
trial. Further, proviso (f) of Section 114 of the Indian Evidence Act, 1872 entails a
presumption in regard the common course of business. In C.C. Alavi Haji vs.
Palapetty Muhammed and Ors., 2007(3)A C R2738(SC), it was observed:
"12. According to Section 114 of the Act, read with illustration (f)
thereunder, when it appears to the Court that the common course
of business renders it probable that a thing would happen, the
Court may draw presumption that the thing would have happened,
unless there are circumstances in a particular case to show that the
common course of business was not followed. Thus, Section 114
enables the Court to presume the existence of any fact which it
thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private
business in their relation to the facts of the particular case.
Consequently, the court can presume that the common course of
business has been followed in particular cases. When applied to
communications sent by post, Section 114 enables the Court to
presume that in the common course of natural events, the
communication would have been delivered at the address of the
addressee. But the presumption that is raised under Section 27 of
the G.C. Act is a far stronger presumption. Further, while Section
114 of Evidence Act refers to a general presumption, Section 27
refers to a specific presumption."
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by SHIVA
SHIVA PARASHAR
PARASHAR Date:
2026.01.12
17:00:26 +0530
Thus, when the tracking report shows the post as delivered, it may be
safely presumed that the same was delivered to the addressee mentioned therein.
Therefore, it is proved that the legal notice was delivered to the accused persons.
No dispute was raised on this issue by the counsel for the accused during
arguments. The fact that the payment was not made within 15 days of the receipt of
the legal notice is also not disputed. Therefore, the fourth and the fifth ingredient of
the offence also stands proved.
14. Now it remains to be ascertained if the second ingredient is proved or
not. As far as the proof of second ingredient is concerned, it has to be proved that
the cheques in question were drawn by the drawer for discharging a legally
enforceable debt. In the present case, the signatures of the accused persons on the
cheques in question are not denied. In the plea of accused persons recorded u/s 251
Cr.P.C, the accused persons have admitted being a signatories to the cheques in
question. Signatures were also admitted by the accused persons when their
statements under Section 313 Cr.P.C. was recorded. Under the NI Act, once the
accused admits his signatures on the cheque, certain presumptions are drawn, which
result in shifting of onus. Section 118(a) of the NI Act lays down the presumption
that every negotiable instrument was made or drawn for consideration. The second
presumption is contained under Section 139 of NI Act which casts a reverse onus
upon the accused. The provision lays down the presumption that the holder of the
cheque received it for the discharge, in whole or part, of any debt or other liability.
15. It has been held by a three-judge bench of the Hon'ble Apex Court in
the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption
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by SHIVA
SHIVA PARASHAR
PARASHAR Date:
2026.01.12
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contemplated under Section 139 of NI Act includes the presumption of existence of
a legally enforceable debt. Once the presumption is raised, it is for the accused to
rebut the same by establishing a probable defence on the standard of preponderance
of probabilities to prove that there was no legally enforceable debt or other liability.
In order to rebut the presumption, it is open for the accused to rely on evidence led
by him or the accused can also rely on the materials submitted by the complainant
in order to raise a probable defence and it is not necessary for the accused to come
in the witness box in support of his defence. In the present case, the contentions
raised by the ld. counsel for the accused to rebut the presumption are discussed
below.
16. NO PROOF OF ALLEGED FRAUD.
16.1. Ld. Counsel for the accused has argued that the complainant has failed
to place on record any proof of fictitious customer codes, invoices and the actual
delivery to such fictitious customers. The crux of allegations of complainant are
based upon a handwritten admission of accused no.1 which the accused has
disputed and denied before the court.
16.2. A perusal of the cross-examination of AR of complainant reveals the
following discrepancies in the facts alleged by the complainant:-
I. Firstly, the AR of complainant has admitted that the date of creation and the
total number of newly created customer codes/Ids are not mentioned in the
complainant and the evidence affidavit. Further, the complaint and the
evidence affidavit are also silent upon the individual and cumulative sales
made to each such newly created fictitious customer codes. As such, the
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PARASHAR
SHIVA
Date:
PARASHAR 2026.01.12
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complainant has not given any names, particulars and details of sale made to
these fictitious customer codes which were alleged to be created by accused
no.1.
II. Secondly, the AR of complainant has also admitted that he has not annexed
any document to show the actual delivery of goods to the new customer
codes alleged to be created by accused no.1. As such, if the goods, at the first
place, were never delivered to any customer then the aspect of payment and
loss does not arise.
III. Thirdly, AR has also admitted that he has not placed any document on record
to show that goods were supplied to the customers upon the directions of
accused no.1. It is further admitted by the AR that without entry and billing,
no goods can be taken out from the company. However, the complainant has
not placed on record any such entry of release of goods from the warehouse
for delivery or a bill/invoice to that respect.
IV. Fourthly, AR has again admitted that the complainant has not annexed any
bill, invoices, receipt, customer name, dispatch register or any other
document pertaining to supply and receiving of goods by any customer.
V. Fifthly, the AR has stated that the loss occasioned to the complainant was
reflected in the audit report of complainant however, the same was not filed
along with the complaint before the court. He has further submitted that the
report was not filed because it does not specifically reflect each default
payment. AR has also admitted that he has not filed any Ledger of any
particular customer to show default payment as well. As such, the
complainant has failed to show an actual loss of around Rs. 43,00,000/- on
account of alleged misgivings of accused no.1.
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PARASHAR
SHIVA
Date:
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VI. Sixthly, the AR of complainant has stated, "In the present case, the bill was
raised in the name of the customer, however the goods were not received by
the customer. Accused no.1, who was looking after was the authority with
regards to supply of goods and bringing back the payment, the discrepancy
occurred. Therefore, no delivery receipt was signed by the customer." As
such, the above statement is in contradiction to the earlier statements of AR
of complainant that goods were delivered to the relatives of accused no.1.
Even otherwise, if it is believed that the goods had never been delivered to
any customers and additionally, in view of the absence of any proof of the
fact that the same goods had left the warehouse of the complainant, it can be
safely presumed that no loss had actually occasioned to the complainant.
VII. Seventhly, the AR of complainant has admitted that the paperwork for the
creation of a new customer code has to be necessarily supported by the boss
of Business Development Manager. However, the AR has been unable to
explain then how in the absence of such endorsement of boss of accused no.1
that the new customer codes were created. Additionally, the customer codes
are generated by an Account Executive upon the paperwork submitted by the
Business Development Manager. As such, the paperwork submitted towards
the creation of customer codes has also not been placed on record by the
complainant.
16.3. As such, the sheer lack of any documentary evidence of bills/receipts
and delivery of goods along with the absence of any proof of generation of fake
customer codes by accused no.1 have created doubts upon the factum of the alleged
transaction itself. The AR of complainant has not been able to explain the absence
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SHIVA PARASHAR
PARASHAR Date:
2026.01.12
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of following documents/details:
List/details of customer codes created by accused no.1,
Bills/invoices of purchase orders of such newly created customers,
Proof of transportation/builty and details of entries of dispatch of
goods from warehouse and the receipt of delivery to such customers,
&
Ledger/Audit report which shows that the complainant had suffered
an actual loss of around Rs. 43 lakhs.
17. A CONSOLIDATED NOTICE IS SENT UPON BOTH THE ACCUSED
PERSONS.
17.1. It is argued by ld. Counsel for accused that the complainant has not
made a proper demand of individual cheque amounts from both the accused
persons. For the sake of brevity, the relevant portion of legal demand notice dated
04.11.2014 is reproduced as follows:
"In the aforesaid circumstances, I on behalf of my client above
named, call upon you both the abovenamed Addressees to pay my
client a sum of 20,00,000/- (Rupees Twenty Lac only) being part-
payment of total outstanding dues of Rs.43,51,984.68/- (Rupees
Forty Three Lakhs Fifty One Thousand Nine Hundred Eighty Four
and Sixty Eight Paise only) on account of dishonour of
aforementioned cheques issued by you the addressees, within
instructions to initiate appropriate proceedings against you under
section 138 of the Negotiable Instrument Act, 1881 as amended."
17.2. Reference here is now made to the observations of Hon'ble Supreme
Court in Suman Sethi vs. Ajay K. Churiwal and Ors., AIR2000SC 828:
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by SHIVA
SHIVA PARASHAR
PARASHAR Date: 2026.01.12
17:00:51 +0530
8. It is well settled principle of law that the notice has to be read as
a whole. In the notice, demand has to be made for the "said
amount" i.e. cheque amount. If no such demand is made the notice
no doubt would fall short of its legal requirement. Where in
addition to "said amount" there is also a claim by way of interest
cost etc. whether the notice is bad would depend on the language
of the notice. If in a notice while giving up break up of the claim
the cheque amount, interest damages etc. are separately specified,
other such claims for interest, cost etc. would be superfluous and
these additional claims would be severable and will not invalidate
the notice. If, however, in the notice an omnibus demand is made
without specifying what was due under the dishonoured cheque,
notice might well fail to meet the legal requirement and may be
regarded as bad.
xxx xxx xxx
12. In the notice in question the "said amount" i.e. the cheque
amount has been clearly stated. Respondent No. 1 had claimed in
addition to the cheque amount, incidental and notice charge. These
two amounts are severable. In the notice it was clearly stated that
failure to comply with the demand necessary legal steps will be
taken up. If respondent No. 1 had paid the cheque amount he
would have been absolved from the criminal liability under
Section 138, Regarding other claims, a civil suit would be
necessary.
As such, the complainant has made a demand for a consolidated sum
of Rs. 20,00,000/- from both the accused persons and it has not been made clear if
the said amount has to be jointly or severally paid by both the accused persons. The
complainant has failed to make a separate demand towards each cheque amount i.e.
Rs. 10,00,000/- from each accused person. Even further, the complainant has failed
to distinguish that out of the two cheques, which cheque was issued by accused
no.1 and which cheque was issued by accused no.2. Moreover, the complainant has
failed to disclose the alleged part payment of Rs. 14,00,000/- by accused no.1 in
their notice.
Accordingly, in view of the above discussion, it can be safely
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SHIVA PARASHAR
PARASHAR Date:
2026.01.12
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concluded that the legal demand notice sent by the complainant to the accused
persons does not adhere to the necessary conditions of proviso b of Section 138 NI
Act.
18. In the facts of the present case, the accused persons have been able to
raise a probable defence of the absence of any such alleged fraudulent transaction
by accused no.1 and the complainant has been unable to rebut the same. Therefore,
in view of the discussion in the foregoing paragraphs, the inevitable conclusion is
that the accused persons have been successful in proving that there was no legally
enforceable debt towards the complainant on the date of presentation of cheques in
question. Therefore, the second ingredient is not fulfilled in the present case.
As such, the accused persons have been able to rebut the presumptions
under Sections 118 & 139. However, the complainant has not been able to the
alleged generation of fake customer codes and sale of goods to such fake
customers. In absence of any material to the contrary, it can be safely presumed that
accused no.1 did not commit the alleged acts committed by him Therefore, the
accused persons have been able to punch holes in the version of the complainant
and the complainant has failed to prove that the cheques in question were issued in
lieu of payment towards settlement of fraudulent amount.
CONCLUSION -
19. To recapitulate the above discussion, the accused persons have been
successful in establishing a probable defence on a standard of preponderance of
probabilities to rebut the presumption under Section 118 and Section 139 of NI Act
by punching holes in the case of the complainant and making the version of the
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SHIVA
SHIVA PARASHAR
PARASHAR Date:
2026.01.12
17:01:00
complainant doubtful. Cogent evidence is required to be proved beyond reasonable
doubt to secure conviction in a criminal trial. The accused persons have been
successful in establishing a probable defence from the evidence of the complainant
and the circumstances of the case that there was no legal liability of the cheque
amount. This court has no hesitation to hold that the case of the complainant is
more unlikely than that of the accused. The complainant has been unable to rebut or
refute the defence of absence of any documentation regarding the customer codes
and sale of goods.
19. As such, the complainant has failed to prove the offence beyond
reasonable doubt and the accused has been able to raise a probable defence.
Resultantly, the complaint of the complainant is dismissed and the accused persons
Indrajeet Dey & Puja Dey are hereby acquitted of the offence of Section 138 of the
Negotiable Instruments Act, 1881.
ORDER:- ACQUITTED Digitally signed by SHIVA PARASHAR SHIVA Date:
PARASHAR 2026.01.12 Pronounced in open court on 12.01.2026. 17:01:04 +0530 (Shiva Parashar) JMFC (NI Act)-04, South Saket, New Delhi Note: This judgment contains 16 pages and each page has been signed by me.
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