Delhi District Court
Joginder Singh vs Anurag Malik on 19 February, 2024
IN THE COURT OF MS. ANAM RAIS KHAN,
METROPOLITAN MAGISTRATE -01 (NI ACT),
NEW DELHI DISTRICT, PHC, NEW DELHI
1. Complaint Case : 26259/2016
number DLND020055232015
2. Name & address of the : Joginder Singh
complainant S/o Sh. Jageram
R/o H.No. 250-A, Village
Munirka, New Delhi.
3. Name and address : Anurag Malik
of the accused S/o Satbir Malik
R/o H.No.1, Sector 45,
Gurgaon, Haryana.
4. Offence complained : Section 138, Negotiable
Instruments Act, 1881.
5. Plea of the guilt : Pleaded not guilty
6. Final Order : Acquitted
7. Date of institution : 04.10.2012
8. Date on which : 06.02.2024
reserved for judgment
9. Date of judgment : 19.02.2024
CC No. 26259/2016 Page 1 of 18
BRIEF STATEMENT OF FACTS AND REASONS FOR
THE DECISION
1. Vide this judgement, this court shall dispose of the
aforementioned complaint case filed by the complainant, namely,
Joginder Singh against the accused, namely, Anurag Malik in
respect of dishonour of one cheque bearing no. 404856 dated
30.06.2012 for an amount of Rs.27,78,000/- (Rs. Twenty Seven
Lacs Seventy Eight Thousand only) drawn on Oriental Bank of
Commerce, Sector 45, Kanhai, Gurgaon-122003 (hereinafter
referred to as the "Cheque in question").
2. Shorn of unnecessary details, it is the case of the
complainant that the parties were partners in a property
consultancy and dealership since about five years and in the
course of business activity, he made a transaction with respect to
two plots, first belonging to Sh. Jagtar s/o Inder Singh R/o
Village Jaitpur, PO Badarpur, New Delhi, measuring 150 sq.
yards allotted by DDA under alternative plots scheme and second
plot belonging to Sh. Mange s/o Pokhar, R/o V.P.O. Kakrola,
New Delhi which was also allotted under the same scheme by the
DDA. It is alleged that on 10.03.2012 the accused expressed his
interest in the above-mentioned two plots and agreed to pay an
amount of Rs. 97,78,000/- to the complainant in lieu of the
above-mentioned plots. It is further the case of the complainant
that the accused went with him to the house of Sh. Rajesh Sejwal
S/o Maan Singh, R/o F-152, Near Anurag Centre, Village, Lado
Sarai, New Delhi where the files of the above-mentioned plots
were kept and the final total amount of both the plots was settled
between the parties in his presence. It is further alleged that the
accused issued the cheque in question in favour of the
CC No. 26259/2016 Page 2 of 18
complainant and further asked him to treat the amount of Rs. 25
Lacs which the complainant owed to him in a previous
transaction as bayana amount and agreed to pay the balance
amount of Rs.45 Lacs within a period of two months. Thereafter,
it is alleged that to the shock of the complainant, he received two
notices sent by the advocate of the accused regarding the
dishonour of the cheques issued by him in favour of the accused
for an amount of Rs. 25 Lacs which he had only given for
security purpose and was adjusted by him in the transaction of
the aforesaid plots. Thereafter the complainant allegedly
contacted the accused, however, he refused to meet him on one
pretext or other and refused to settle the present matter. Hence,
seeing no other alternative the complainant deposited the cheque
in question, which was returned dishonoured for the reason
"payment stopped by drawer" vide bank return memo dated
09.07.2012. Thereafter the complainant sent a legal demand
notice dated 04.08.2012 through registered post on 07.08.2012
and speed post on 06.08.2012 which was duly served upon him.
Since the accused failed to pay the amount of the cheque in
question within the statutory period of 15 days from the receipt
of legal demand notice, hence, the complainant has moved this
court with the present complaint under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as the
"NI Act").
3. In the pre-summoning evidence, the complainant namely
Joginder Singh examined himself on affidavit being Ex. CW1/1
and placed on record certain documents i.e. cheque in question
being Ex. CW1/A, bank return memo dated 06.07.2012 being
Ex. CW1/B, office copy of legal demand notice dated
CC No. 26259/2016 Page 3 of 18
04.08.2012 being Ex. CW1/C, original postal receipts being Ex.
CW1/D (Colly), returned envelopes being Ex. CW1/E (Colly)
and complaint being Ex. CW1/F.
4. At this stage, complainant also examined Sh. Rakesh
Kapoor, Officer from Punjab & Sind Bank, GHPS Vasant Vihar
as CW-2. He brought the summoned record i.e copy of the
certificate of confirmation of the savings bank of the complainant
as well as deposition of the cheque in question i.e. Ex. CW2/A
and the statement of account of the complainant i.e. Ex. CW2/B.
5. Upon prima facie consideration of the pre-summoning
evidence, the accused was summoned vide order dated
19.12.2012.
6. Upon appearance of the accused, notice under Section 251,
Cr.P.C. was served upon him on 16.04.2013 to which he pleaded
not guilty and claimed trial. At this stage, the accused stated that
there is no transaction with the complainant regarding the sale/
purchase of the plots and he advanced a loan of Rs. 25 Lacs to
the complainant which was admitted and a case regarding the
amount of Rs. 25 Lacs is pending in the court of Ld. CMM,
Gurgaon. He further stated that the present case is false and
frivolous and the cheque in question was blank bearing his
signatures only which was misplaced. He further stated that an
intimation/police report was lodged regarding the same at PS
Gurgaon. He denied the receipt of the legal demand notice as
well as his liability towards the complainant.
7. After an application under Section 145 (2) NI Act moved
on behalf of the accused was allowed vide order dated
26.04.2013, the complainant was re-called for his cross
examination.
CC No. 26259/2016 Page 4 of 18
8. The complainant who deposed as CW-1 adopted his pre-
summoning evidence at the post-summoning evidence stage.
CW-1 was extensively cross-examined by Ld. Counsel for the
accused. During the course of his cross examination, CW-1 was
confronted with copy of receipt i.e. Mark A, reply dated
27.07.2012 i.e. Ex. CW1/DA (OSR) and copy of two
recommendation letters i.e. Mark X1 and Mark X2 respectively.
9. Since no other witness was sought to be examined on
behalf of the complainant, CE was closed vide separate statement
of Ld. Counsel for the complainant and order dated 09.06.2022.
10. Statement of accused under Section 313 read with Section
281 Cr.P.C was recorded on 09.06.2022 whereby the entire
incriminating evidence was put to him. At this stage, the accused
denied any transaction regarding a plot with the complainant
belonging to a third party. He also denied the issuance of the
cheque in question in lieu of bayana amount. He admitted the
cheque in question and his signatures on it and stated that he had
not filled the remaining particulars. He stated that the cheque in
question was misplaced and an FIR was also lodged regarding
the same. He stated that the complainant had taken a loan of Rs.
25 Lacs from him and thereafter the complainant has filed the
present case as an after thought. He denied his liability towards
the complainant.
11. Since the accused chose to lead defence evidence, the
matter was adjourned for filing of application under Section 315
Cr.P.C and list of defence witnesses, if any.
12. At this stage, accused examined Sh. U.S. Choudhary,
Incharge, Record Room, Saket Court, Delhi as DW-1. DW-1
brought the record of complaint case no. 623946/2016 and the
CC No. 26259/2016 Page 5 of 18
certified copy of the orders dated 26.06.2018 and 27.06.2018 i.e.
Ex. DW1/1 (Colly). He was duly cross examined by Ld. Counsel
for the complainant.
13. Thereafter, accused examined Sh. Vikas, ASO, LAB
(Residential) DDA Vikas Sadan who deposed as DW-2. He
brought the Demand -cum-Allotment Letter and approval of
mutation i.e. Ex. DW2/1 (Colly). He was duly cross examined
by Ld. Counsel for the complainant.
14. After the application under Section 315 Cr.P.C moved on
behalf of the accused was allowed vide order dated 02.08.22,
accused himself deposed as DW-3. He was duly cross examined
by Ld. Counsel for the complainant.
15. Since no other witness was sought to be examined in
defence, DE was closed vide separate statement of the accused
dated 22.08.2023. Accordingly, the matter was adjourned for
advancement of final arguments.
16. Final arguments were advanced on behalf of both the
parties on 06.02.2024.
17. Rival submissions have been considered and record of the
case has been carefully perused.
18. It is the sole defence of the accused there is no legally
enforceable debt or liability to the tune of the amount of the
cheque in question in favour of the complainant and against the
accused as on the date of its drawl or presentation.
19. Before delving into the facts of the present case, it is
relevant to discuss the law applicable to the present proceedings.
To bring home a liability under Section 138 of the NI Act,
following elements must spring out from the averments in the
complaint and the evidence adduced by the complainant, which
CC No. 26259/2016 Page 6 of 18
are:
"(a) The accused issued a cheque on an account
maintained by him with a bank.
(b) The said cheque has been issued in discharge, in
whole or in part, of any legal debt or other liability,
which is legally enforceable.
(c) The said cheque has been presented to the bank
within a period of three months from the date of
cheque or within the period of its validity.
(d) The aforesaid cheque, when presented for
encashment, was returned unpaid/dishonoured.
(e) The payee of the cheque issued a legal notice of
demand to the drawer within 30 days from the receipt
of information by him from the bank regarding the
return of the cheque.
(f) The drawer of the cheque failed to make the
payment within 15 days of the receipt of aforesaid
legal notice of demand."
20. Once the other ingredients mentioned in the foregoing
paragraph are established by the complainant, then as soon as the
execution of the cheque in question is admitted by the accused, a
factual base is established to invoke the presumption of cheque
having been issued in discharge, in whole or in part, of any debt
or other liability by virtue of Section 118(a) read with Section
139 of NI Act. This is a reverse onus clause, which means that
unless the contrary is proved, it shall be presumed that the
cheque in question was drawn by the accused for a consideration
and that the complainant had received it in discharge of a debt/
liability from the accused. In the case titled Bir Singh Vs.
Mukesh Kumar, (2019) 4 SCC 197, it was held by Hon'ble
Supreme Court of India that once the accused has admitted the
signatures on the cheque in question, then the court is bound to
raise presumption under Section 139 NI Act.
21. It has been held by Hon'ble Supreme Court of India in the
CC No. 26259/2016 Page 7 of 18
judgment titled Rangappa Vs. Sri Mohan, (2010) 11 SCC 441
that a reverse onus clause usually imposes an evidentiary burden
and not a persuasive burden and 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. It was further held that 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.
22. In the present case, in order to discharge his initial burden
to prove the above mentioned ingredients, the complainant relied
upon his complaint, his own evidence affidavit and placed on
record several documents being Ex. CW1/A to Ex. CW1/E. Ld.
Counsel for the complainant submitted that the accused has
already admitted his signatures on the cheque in question and
hence presumption of the said cheque having been issued in
discharge of a debt or other liability arises in favour of the
complainant in terms of Section 118 (a) read with Section 139 of
NI Act. He further argued that the documentary evidence brought
forth in the form of the cheque in question being Ex. CW1/A,
bank return memo being Ex. CW1/B and legal demand notice
being Ex.CW1/C coupled with the fact that the complainant
received no payment within 15 days of the service of the legal
demand notice coupled with the admission of the accused, duly
proves all the ingredients of the offence under Section 138 NI
Act. He thus submitted that since all the ingredients laid down
under Section 138 NI Act are fulfilled, the accused should be
CC No. 26259/2016 Page 8 of 18
convicted.
23. In the case at hand, since the complainant who deposed as
CW-1 has discharged his initial burden on the basis of the
documents mentioned hereinbefore and the admission of the
accused, all the other ingredients of the offence under Section
138 of the NI Act stand successfully established. Further, since
the accused has admitted his signatures on the cheque in question
and the fact of issuance of the same from his account, thus, the
presumptions under Sections 118(a) and 139 of the NI Act arise
against the accused with respect to the existence of legally
enforceable debt/liability in favour of the complainant. The onus
is now upon the accused to rebut the mandatory presumptions
under the NI Act by raising a probable defence to show that the
cheque in question was not issued in discharge of a debt/ liability.
24. In order to rebut the mandatory presumptions, the accused
has raised a sole defence that there is no legally enforceable debt
or liability to the tune of the amount mentioned on the cheque in
question against the accused and in favour of the complainant as
on the date of its issuance or presentation on the ground that no
transaction of sale of the plots in question ever took place
between the parties.
25. Ld. Counsel for the accused argued that no document
whatsoever has been produced by the complainant with respect to
the execution of any agreement to sell between the parties in
furtherance of which the amount of bayana/earnest money was
allegedly paid by the accused to him. He submitted that
admittedly, the plots in question are still not in possession of the
complainant or the accused and in fact, the said plots were never
allotted by DDA to Mange or Jagtar even till the filing of the
CC No. 26259/2016 Page 9 of 18
present complaint. He further submitted that it has also been
admitted by the complainant during the course of his cross-
examination that the ownership of the said plots was also not
transferred in his name till the date of filing of the present
complaint and hence, no question of the transfer of the said plots
by the complainant to the accused arises when he had no right,
title or interest to execute a sale deed/agreement to sell in his
favour. He further submitted that the complainant failed to
examine Jagtar, Mange or Inderjeet in support of his contentions
which raises suspicion regarding the case set up by him.
26. Ld. Counsel for the accused argued that FIR i.e. Ex.
DW3/1 clearly probablises the defence version that the cheque in
question was never issued in favour of the complainant but was
in fact lost. He further submitted that Mark X1 and Mark X2
clearly mention that the plots in question can not be sold or
transferred and hence complainant could not have any right, title
or interest to further transfer the same in favour of the accused.
27. Ld. Counsel for the accused argued that since the
complainant has miserably failed to establish the factum of
execution of agreement to sell or a consequent sale deed with
respect to the two plots in question, the cheque presented for the
alleged earnest money for the said plots cannot represent a
legally enforceable debt or liability in his favour. Accordingly he
concluded by submitting that the accused has successfully
probabilised his plea of defence which rebuts the mandatory
presumption resting in favour of the complainant and is thus
entitled to acquittal in the instant case.
28. Per contra, Ld. Counsel for the complainant refuted all the
contentions of the accused by stating that the mandatory
CC No. 26259/2016 Page 10 of 18
presumption under Section 139 read with Section 118 of the NI
Act regarding the existence of a legally enforceable liability is in
favour of the complainant and the accused has miserably failed to
rebut the same. He argued that there are several contradictions in
the defence of the accused as it has been stated by the accused
during his testimony as DW-3 that the cheque in question was
stolen and misused, however, in his plea of defence recorded at
the stage of framing of notice under Section 251 Cr.P.C as well as
his statement U/s 313 Cr.PC it has been mentioned that the blank
signed cheque in question was misplaced and an
intimation/police complaint was lodged regarding the same. He
further submitted that FIR i.e Ex. DW3/1 neither mentions the
factum of alleged theft of the cheque in question and the same
has also not been proved by the accused as per law as no police
official from P.S. Sector 40 Gurgaon was called to prove it.
29. He lastly argued that since all the ingredients of the
offence under Section 138 NI Act have been fulfilled and the
accused has failed to rebut the mandatory presumptions, he
should be convicted of the said offence.
30. After a careful perusal of the record and on patiently
hearing the parties at length, apropos the existence of legally
enforceable debt/liability of the accused, this court has arrived at
the following findings:
30.1. Despite vehement and repeated objections being raised
during the course of his cross examination, complainant failed to
produce any documentary proof which could establish his title to
execute an agreement to sell with the accused regarding the plots
in question even till the culmination of the present trial. In fact,
in his testimony, he categorically admitted that the ownership of
CC No. 26259/2016 Page 11 of 18
the plots in question was never transferred to him and that he is
not even aware whether the said plots were converted to free hold
or not. Relevant extracts of his cross examination dated
18.10.2016 and 28.08.2019 are reproduced hereunder;
Cross examination of CW1 dated 18.10.2016
"I had made a payment of Rs.30,00,000/- in cash
to Inder Malik for the property belonging to
Mange Ram and as far as I remember I paid an
amount of Rs.10,00,000/- to Rs.12,00,000/- in
cash to Jagtar Singh. After having paid the
amounts to Inder Malik and Jagar Singh, the
properties were not transferred in my name."
***
Cross examination of CW1 dated 28.08.2019 "It is correct to that the plots were not alloted by the DDA to Mange and Jagtar till the date of filing of the present complaint. It is correct to that the ownership of the plots of Jagtar and Mange had not been transferred in my name till the filing of the complaint. Vol. I had entered into agreement to sell/ GPA/ Will and receipt with Jagtar for his plot and Inder Malik for plot of Mange Ram.
The plot pertaining to Jagtar has not been allotted by DDA till date. The plot pertaining to Mange has been allotted to Mange by DDA. Presently the said plot is in the possession of Mange. There is some proceedings between farmer and Mange with respect to the said plot in some court but I do not know the details thereof. I do not know that if the said plot belonging to Mange has been converted into freehold or not. I cannot say the amount paid to DDA for taking possession of the said plot belonging to Mange. I also cannot say if Mange had paid the demanded amount to DDA. It is correct that none of the aforesaid two plot are in the name of accused."
30.2. Complainant repeatedly expressed his inability to produce any documentary evidence to establish his title to the plots in question or that of Inder Malik, Jagtar or Mange on the pretext CC No. 26259/2016 Page 12 of 18 that the accused ran away with the complete file of property papers. It is astonishing to note that no efforts were made by the complainant thereafter to obtain copy of title deeds executed in his favour or lead secondary evidence to prove the factum of their execution. The relevant extracts from the testimony of complainant as CW-1 recorded on 26.04.2013 and 18.10.2016 are as follows:
Cross examination of CW1 dated 26.04.2013 "Yes, some documents were executed between me and Jagtar for eg. Agreement, affidavit, recommendation letter, original of demand letter etc. No documents were executed between me and Mange as I had purchased the same from Inder Malik who is also a property dealer in Vasant Kunj. Normal documents which were executed in a property transaction were executed between Mange and Inder Malik and all these documents were taken by the accused on the pretext of verifying the same from DDA office.
Q. What documents were executed between you and Inder Malik?
A. A receipt was executed and the entire kit of documents was handed over to me. The receipt was on a plain piece of paper."
*** Cross examination of CW1 dated 18.10.2016 "Voluntarily. Accused ran away with whole file and documents. It is wrong to suggest that my voluntary statement is false. I have not filed for duplicate copies of above-said title deeds."
30.3. The factum of transaction with respect to the plot allotted to Mange being conducted through Inder Malik was never disclosed in the complaint or evidence affidavit of the complainant.
30.4. Material witnesses to the transaction like, Mange, Jagtar, Inder Malik and Rajesh Sejwal from whose residence the papers CC No. 26259/2016 Page 13 of 18 were allegedly taken by the accused, were not examined as complainant witness to corroborate the claims made in the complaint. In fact the witnesses to the agreement to sell, GPA, Will etc. were neither mentioned in the complaint nor examined by the complainant in CE. Such a conduct raises serious doubts regarding the veracity of facts stated in the complaint. 30.5. There is dearth of quintessential details in the statements of the complainant on oath at different stages of the trial. He has feigned ignorance on the vital aspects of the case and has ducked the relevant questions put to him which clearly implies that his testimony could not stand the test of cross examination.
Consequently, his version does not inspire the confidence of the court. The relevant extracts from the testimony of complainant as CW-1 recorded on 26.04.2013, 18.10.2016, 05.07.2019 and 28.08.2019 are as follows:
Cross examination of CW1 dated 26.04.2013 "Q. Is it correct that you had received the legal notice pertaining to the aforesaid cheques of Rs.12.5 lacs each prior to the presentation of the cheque ExCW1/A?
A. I do not remember clearly about this fact. Vol : I had told the entire correct story of what had happened between me and accused in my reply to the said legal notice.
Yes, I can file that reply in this court proceedings. It is with my lawyer who is also present today in the court. Q. In your affidavit, you have mentioned that in the course of business activity, you made transaction of two plots, one belong to Sh Jagtar measuring 150 sq yards allotted by DDA under alternative plot scheme and another plot belonging to Sh Mange measuring 80 sq yards which was also allotted by DDA under the same scheme. When did you carry out transactions of these plots?
A. It may be in the month of March 2012, second week so far as I remember.CC No. 26259/2016 Page 14 of 18
Q. What documents were executed between you and Inder Malik?
A. A receipt was executed and the entire kit of documents was handed over to me. The receipt was on a plain piece of paper.
No, I have not mentioned this fact of transaction with Inder Malik in my complaint or affidavit."
*** Cross examination of CW1 dated 18.10.2016 "I have not brought today the reply which I have alleged to have made to the notice of the accused as deposed by me earlier, however, I can produce the same if so directed. Recommendation letters were issued by Land & Building Department of Government of NCT of Delhi in the name of Mange Ram and Jagtar Singh. I cannot produce the said recommendation letters since accused ran away with said documents."
*** Cross examination of CW1 dated 05.07.2019 "I have not brought the reply sent on my behalf to the legal notice sent by the accused upon the dishonour of two cheque of Rs.12.5 Lakhs each issued by me, as referred in my earlier deposition dated 26.04.2013."
*** Cross examination of CW1 dated 28.08.2019 "I cannot answer if I had made any payment to Sunder Lal and it has no relation with the present case. It is incorrect to suggest that I have deliberately evaded to answer the question."
30.6. Complaint is bereft of the material details like nature of documents, if any, executed between the parties. Complaint simply mentions that complainant carried out a transaction with respect to plots in question, however, the nature of transaction is not specified. In fact the sole purpose behind presentation of the cheque in question which is apparent from a bare perusal of the complaint seems to be the fact that the complainant was aggrieved of the accused sending him legal demand notice with respect to dishonour of his two cheques. Relevant extracts of the CC No. 26259/2016 Page 15 of 18 complaint is reproduced herein below;
"6. That the complainant was shocked to receive the two notices sent by the Advocate of the accused regarding dishonour of the cheques issued by the complainant to the accused amounting to Rs.25,00,000/- (Rupees Twenty Five Lakhs only) which the complainant had given for the purpose of security only and the same had been adjusted by the accused in the transaction of plots as mentioned in Paras 3 and 4 above.
7. That the complainant immediately contacted the accused but the accused always made flimsy excuses and totally avoided meeting the complainant on one pretext or the other and refused to settle the matter. Seeing no other alternative the complainant deposited the cheque bearing No. 404856 signed and issued by the accused of Rs.27,78,000/- (Rupees Twenty Seven Lakhs and Seventy Eight Thousand only) dated 30.06.2012 drawn on Oriental Bank of Commerce, branch Kanhai, Gurgaon, (Haryana), but to his utter shock and dismay his bankers M/s Punjab & Sind Bank, New Delhi, informed the complainant on 09.07.2012 that the payment of the said cheque had been stopped by the drawer."
30.7. If the version of the complainant with respect to prospective allottment of the plots in the name of Jagtar and Mange is to be believed, it at best indicates an agreement to sell the plots in anticipation of their future allotment to the allottees. This is as absurd as it sounds. Relevant extract of the cross examination of CW-1 conducted on 28.08.2019 is reproduced hereinbelow;
"It is correct that the recommendation letters were issued to Jagtar and Mange in lieu of the land acquired by the Delhi Govt. It is correct that the plots are allotted by the DDA on the basis of recommendation letter, as and when the said plots are available. The plots were to be allotted in the name of Jagtar and Mange. There is no time limit or the CC No. 26259/2016 Page 16 of 18 allotment of plots by DDA after the issuance of the recommendation letters. The plots are allotted by DDA at a cost depending on the time when it is allotted. At the time of issuance of recommendation letter the price to be paid by the allottee is not known. The plots allotted are lease hold by the DDA and the same can be converted into free hold by any person who whom the person having the recommendation letter in its favour entered into the transaction. It is incorrect to suggest that the recommendation letter is not marketable and the conversion of the plot into free hold can be done only by the person who is allotted the plot by the DDA based on the recommendation letter. It is incorrect to suggest that the payment for such conversion is also to be made by the person in whose favour the recommendation letter is issued."
30.8. The accused has been successful in plugging loopholes in the case of the complainant which remained explained by him even till the fag end of the trial.
31. In the backdrop of the foregoing discussion, this court has no hesitation to hold that the accused has been able to rebut the mandatory presumption resting against him. Complainant on the other hand has utterly failed to prove his case beyond reasonable doubt qua the existence of liability of the accused to the tune of amount of the cheque in question as on the date of its drawl or presentation. Since this basic ingredient which is pivotal to attract liability under Section 138 NI Act has not been proved by the complainant, accordingly, no offence of dishonour of the cheque in question under the said Section is made out.
32. It is imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence. In the present case, the CC No. 26259/2016 Page 17 of 18 accused has clearly presented a defence that is more probable than the complainant's story and consequently, the benefit of doubt must go to him.
FINAL ORDER
33. In view of the aforesaid discussion, this court finds the accused Anurag Malik S/o Satbir Malik not guilty of the offence under Section 138 Negotiable Instruments Act, 1881 and acquits him accordingly.
This judgment contains 18 pages and each page has been signed by the Presiding Officer.
ANAM Digitally signed by
ANAM KHAN
Announced in open KHANRais
(Anam
Date: 2024.02.19
Khan)
16:25:15 +0530
Court on 19.02.2024 MM(NI Act)-01/PHC/ND
CC No. 26259/2016 Page 18 of 18