Delhi District Court
Sanjeev Puri (Senior Citizen) vs Shri Ankur Ghildiyal on 23 December, 2024
IN THE COURT OF SH. SHIVAM GUPTA. : LD. JUDICIAL
MAGISTRATE FIRST CLASS-NI ACT, DIGITAL COURT-02
NEW DELHI DISTRICT, PATIALA HOUSE COURTS COMPLEX:
NEW DELHI
Shri Sanjeev Puri
Versus
Shri Ankur Ghildiyal
CC No. 5262/2021
U/S 138 Negotiable Instruments Act, 1881
1. CNR number : DLND02-015242-2021
2. Name of the complainant : Shri Sanjeev Puri
S/o: Late Shri Y.P. Puri,
R/o: EA-9, Inderpuri,
New Delhi-110012
Through its attorney holder
Smt. Sangeeta Puri
W/o: Shri Sanjeev Puri
3. Name of the accused, parentage : Shri Ankur Ghildiyal
and residential address S/o: Shri H.C. Ghildiyal
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 1 of 28
SHIVAM Digitally signed by
SHIVAM GUPTA
GUPTA 16:12:43 +0530
Date: 2024.12.24
R/o: H.No. D-35, Pusa Institute
IARI, New Delhi-110012
Presently at:
EA9, 2nd floor Inderpuri,
New Delhi-110012
4. Offence complained of or proved : U/S 138 of Negotiable Instruments
Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : CONVICTED
7. Date of judgment/order : 23.12.2024
Date of Reserving Judgment/Order : 22.11.2024
Date of Pronouncement of Judgment/Order : 23.12.2024
ARGUING COUNSELS
For the Complainant : Sh. Sumesh Gandhi
For the Accused : Sh. Nitish Kumar Rai
JUDGMENT
1. Vide this Judgment, this court shall dispose of the present complaint filed
by Sh. Sanjeev Puri through his Attorney Holder Smt. Sangeeta Puri W/o Sh.
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 2 of 28
Sanjeev Puri (hereinafter referred to as ‘the complainant’) against Sh. Ankur
Ghildiyal (hereinafter referred to as ‘the accused person’) U/S 138 of Negotiable
Instruments Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881
(hereinafter referred to as ‘NI Act‘).
Brief facts:
2. It is the case of the complainant that That the father of the accused entered
into an agreement sell and purchase with the wife of the Complainant qua the
second floor of the property dated 11.07.2021 for a total sum of Rs.1,92,00,000/-
out of which Rs. 15,00,000/- were paid on the date of execution of the
agreement to sell and purchase i.e., 11.07.2021. Subsequently, a sum of
Rs.39,00,000/- were paid by the father of the accused as part payment out of
total consideration amount. Subsequently, it was requested by the accused, his
wife and his parents that the sale deed would be executed in favour of the
mother of the accused namely Smt. Digambari Ghildiyal. It was also requested
on the part of the accused and his wife and also by his parents that they intended
to provide the property under sale to the mother of the accused. Last but not the
least, since the property was in raw condition (since after taking the possession
back from its previous owner after the settlement), it was also requested on the
part of the accused and his wife that the property under sale be given fully
furnished qua which the payment would be made by the accused and his wife.
Obviously, the amount to be spent in furnishing the house was not the part of the
total sale consideration amount.That an estimation had taken place which comes
to Rs.40,00,000/- approximately. Needless to say, that the property under sale
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 3 of 28
was fully furnished by the Complainant out of his own funds and resources. The
entire work was done up-to the mark and the accused and his wife were fully
satisfied with the same. That as per the agreement, the accused and his wife were
supposed to clear the entire amount spent in furnishing the property under sale
on or before handing over the possession and execution of the sale deed. The
sale deed qua the property under sale had taken place on 27.08.2021. That on
27.08.2021, the accused and his wife had issued three cheques while discharging
their liability qua the payments (Rs.40 Lacs) spent by the Complainant in
furnishing the house. It is relevant to mention that while issuing the cheque, the
accused and his wife had also taken a discount of Rs. 1,36,500/- out of total
liability of Rs.40 lacs and thereby issued the following cheques with the
assurance that the same would be honoured. That, when the complainant
presented two cheques which are in question, both the cheques were returned
unpaid.
DETAILS OF THE CHEQUES IN QUESTION:
Cheque Cheque Date of the Cheque Date of Reasons
number
amount cheque drawn on return for
memo dishonour
000009 Rs. 03.09.2021 Kotak Drawers
30,00,000/- Mahindra 06.09.2021 Signatures
Bank Differ
000010 Rs. 03.09.2021 Kotak 04.09.2021 Payment
6,00,000/- Mahindra stopped by
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 4 of 28
Bank the drawer
The complainant after receipt of the said dishonoured cheques, sent a legal
notice dated 10.09.2021 in writing to the accused through his counsel which was
dispatched on 13.09.2021 through Speed post. The accused person has sent a
reply to the legal demand notice which is dated 14.09.2021. That, the accused
had failed to pay the cheque amount to the complainant within stipulated time of
15 days, hence this complaint U/S 138/142 NI Act.
Proceedings before the Court:
3. The complaint was received by assignment in this Court. After perusing
the complaint and hearing the arguments of the complainant on the point of
summoning of the accused, prima facie it appeared that the offence U/S 138 NI
Act, has been made out. Hence, cognizance of the offence U/S 138 NI Act was
taken against the accused on 25.11.2021 and summons were issued to the
accused person.
4. Notice U/S 251 Cr.P.C. was framed against the accused on 22.02.2022, to
which the accused pleaded not guilty and claimed trial. Thereafter, considering
the defence stated at the time of framing of notice by the accused, and arguments
advanced by both the parties this court decided to allow cross examination of the
complainant as per 145(2) of the NI Act on 05.04.2022, and the case was tried as
a summons case. During complainant evidence, complainant has examinedCC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 5 of 28
himself as sole witness CW-1. Though the case was filed on authority of the
complainant by his wife, but the complainant examined himself as his condition
improved at that time. After due cross examination of CW-1 by the Ld. Counsel
for the accused, complainant’s evidence was closed in the present case on
10.05.2023. Statement of the accused U/S 313 CrPC was recorded on
05.03.2024 wherein the accused stated that he will lead defence evidence. On
02.05.2024 the accused person examined himself as DW1, the sole witness and
DE was closed by the order of the court. However, DE was re-opened on an
application u/Sec. 311 of CrPC and Ms. Digambari Ghildiyal, mother of the
accused person was examined and cross-examined as DW2 on 05.11.2024 and
then DE was closed on the same day.. The matter was listed for final arguments
on 22.11..2024. On 22.11.2024, the final arguments of the parties were heard at
length. The Ld. Counsel for the complainant and the accused person have filed
written submissions on which they had based their case.
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 6 of 28
Evidence:
5. To prove his case, complainant has examined himself as CW1 and has led
his evidence by way of evidence affidavit Ex. CW1/A and has relied upon the
following documents:-
S. No. DOCUMENT EXHIBIT
1. Power of Attorney in favour of Smt. Sangeeta Puri CW1/1
2. Original Cheque bearing number 000009 CW1/2
3. Original Cheque bearing number 000010 CW1/3
4. Cheque return memo dated 06.09.2021 for cheque CW1/4
bearing number 000009
5. Cheque return memo dated 04.09.2021 for cheque CW1/5
bearing number 000010
6. Postal receipts CW1/7
7. Legal demand notice CW1/6
8. Tracking report CW1/8
9. Reply to the legal demand notice CW1/9
10. Copy of Sale deed Mark A
Colly
11. Complaint CW1/D1
12. Affidavit regarding the complaint CW1/D2
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 7 of 28
13. Notice dated 11.02.2021 for rectification/recall of sale Mark B
deed
14. Certified copy of cross examination of accused person DW1/P1
in the recovery suit.
15. Complaint filed by the accused person before police DW1/P2
16. Affidavit (Vinod Kumar Sharma) DW1/P3
6. The accused person has not brought any document on record. DW2 who is
the mother of the accused person has brought the following documents in
support of the case of the accused person:
S. DOCUMENT EXHIBIT No. 1. Copy of agreement to sell DW2/1 2. Sale deed DW2/2 3. Letter Written to MCD Mark A 4. Photographs Mark B (Colly) 5. Affidavit of property dealer Mark C 6. Renovation agreement Mark D CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 8 of 28
7. The Ld. Counsel for the complainant and the Ld. Counsel for the accused
orally argued at length and both the parties have also submitted written final
submissions.
Arguments of both parties:
8. COMPLAINANT’S ARGUMENTS
The complainant while reiterating the contents of the complaint has
argued that all the requirements of Section 138, NI Act have been fulfilled by
the complainant in the present case. The Ld. Counsel for the complainant
further argued that the Ld. Counsel for the accused has not put necessary
suggestions to the complainant in his cross-examination, i.e.,
i) the cheques were issued without any consideration
ii) when the accused demanded the cheques, it was told by the
complainant that those were misplaced
As per the settled law in the case of A.E.G. Carpiet v. A.Y. Derian,
Calcutta HC, AIR 1961 CAL 359, a person has to put his case in cross-
examination. The Ld. Counsel for the complainant has further argued that there
is an admission on the part of the accused in his cross-examination that the sale
consideration was Rs. 1,92,00,000/-, whereas in the entire case the accused
person kept harping that the sale consideration was Rs. 60,00,000/-. Further,
DW-2 exhibited the agreement to sell dated 11.07.2021 which shows that the
sale consideration was Rs. 1,92,00,000/-. The Ld. Counsel for the complainant
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 9 of 28
has further argued that during the cross-examination the accused person
introduced a new story by stating that the mother of Ankur Ghildiyal who
appeared as DW-2 and advanced a sum of Rs. 39,00,000/- to the wife of the
complainant even though she has not stated about the same in her evidence. The
Ld. Counsel for the complainant has further argued that the bone of contention
in the examination-in-chief of the accused person was;
A. that stilt parking was lying sealed
B. when the accused person requested the complainant to return the
cheques, it was told that the cheques were misplaced
C. no renovation work has been done by the complainant and rather
the renovation work was done through one M/s Homelane
D. complainant had blocked the staircase
However Point A, B and D as discussed above do not affect the case of the
complainant whereas Point C has been averred without any document or proof.
The Ld. Counsel for the complainant has further argued that the accused has
admitted certain facts such as; cheques in question were issued on the date of
execution of sale deed, signatures of the accused on the cheque in question,
particulars on the cheques filled by the accused person, receipt of legal demand
notice. The Ld. Counsel for the complainant has further argued that in the reply
to the legal demand notice, the accused person has not mentioned anything about
the factum of misplacement of the cheques. The Ld. Counsel for the complainant
has further argued that in the cross-examination of Ankur Ghildiyal in the court
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 10 of 28
of Ld. ADJ, PHC, NDD has admitted that renovation work was conducted and
the cheques in question were issued towards the discharge of the liability and the
said suit was decreed in favour of the complainant. The Ld. Counsel for the
complainant has further argued that Ankur Ghildiyal has admitted that he raised
a loan from his bank towards the repair and renovation to the extent of Rs.
36,00,000/-, however it was conducted that he had returned the loan amount but
no document has been produced in support of the above contention. The Ld.
Counsel for the complainant has further argued that a complaint to the local
police on 03.09.2021 was lodged after the issuance of the cheques in question
and perusal of the complaint shows that there is no reference of the word
misplacement. The Ld. Counsel for the complainant has further argued that the
accused person has admitted that they have not made any payment after the
receipt of the legal notice. The Ld. Counsel for the complainant has further
argued that the accused person has not made any complaint to the police as
regard to the cheques in question and not filed any suit seeking declaration to
declare the cheques being null and void and without consideration. The law says
that a person has to act as a prudent person as laid down in the case of V.S.
Yadav v. Reena, 2010 (4) JCC NI 323. The Ld. Counsel for the complainant has
further pointed out the contradictions in the case of the accused.
Further, the Ld. Counsel for the complainant has argued that the accused
has admitted that the cheque in question bears his signature. Therefore, the
presumption under Section 118(a) and Section 139 of NI Act has been raised
and the accused has failed to rebut the presumption. The Ld. Counsel for the
complainant has relied upon the following judgments:
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 11 of 28
1. M/s Kalamani Tex and Anr. v. Balasubramanial, Crl. Appl. No.
123/2021, Supreme Court.
2. Rangappa v. Sri Mohan, 2010, Supreme Court.
The complainant has further argued that the accused has not been able to
raise any probable defence. Therefore, accused be convicted for the offence
U/S 138 NI Act with maximum punishment.
9. ACCUSED’S ARGUMENTS
Per contra, learned counsel for the accused while opposing the present
case has argued that the accused has categorically denied that any renovation
work was carried out by the complainant. Further the complainant has failed to
provide any documents such as receipts, bills, or proof of payment for materials
or labour which are essential to substantiate the claim that renovation work was
done by the complainant. The Ld. Counsel for the accused has relied upon
Rajco Steel Enterprises v. Kavita Saraff & Anr., 2024 SCC Online SC 518
wherein it has been held that if the complainant fails to produce records,
evidence or details with regard to the work for which the cheque was issued,
then the accused cannot be held liable for owing legal debt. A similar position
of law has been held in Roots Production Pvt. Ltd. v. Aarti Arora, 2022, SCC
Online Del 3173. The Ld. Counsel for the accused has further argued that the
complainant has failed to show that he is the “holder in due course”, therefore
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 12 of 28
no presumption u/s 139 read with Section 118, NI Act would be raised. The Ld.
Counsel for the accused has further argued that the complainant failed to do the
renovation work, therefore the accused got the renovation done by Home Vista
Decor and furnishing Pvt. Ltd. and the renovation agreement is put on record as
Mark D. The Ld. Counsel for the accused has further argued that the
complainant has filed a false and fabricated case which has no credibility as
there is no document on record to substantiate the claims of the complainant.
Thus, he argued that the complaint should be dismissed and the accused
be acquitted.
10. COMPLAINANT’S REBUTTAL
The Ld. Counsel for the complainant in his rebuttal has stated that the
facts are incorrectly mentioned in the written submissions filed by the Ld.
Counsel for the accused. The Ld. Counsel for the complainant has further
argued that the complainant in his cross-examination as CW-1 has not stated
the name of the persons who have done the renovation work and he has not
produced any bills or receipt regarding the renovation work, as the same was
never specifically asked by the Ld. Counsel for the accused. Ld. Counsel for
the complainant has further argued that judgments cited by the Ld. Counsel for
the accused, that is, Roots (supra) and Rajco Steel (supra) are not applicable to
the present case as Roots (supra) is a judgment in the case of a company where
things are to be done in a written contract and in that case, the accused
succeeded in rebutting the presumption. Further, in Rajco steel (supra), the
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 13 of 28
transaction shown by the complainant was found to be as regard to some other
transaction for which the cheques were issued. The Ld. Counsel for the
complainant has further argued that the accused person in document exhibited
Ex. DW1/P1 has admitted that the cheques in question were issued in discharge
of the legal liability.
Legal Provisions
11. I have heard counsels on behalf of both sides and perused the record
carefully.
12. Before deciding the present complaint case, let the legal provisions be
considered.
“Section 138.- Dishonour of cheque for insufficiency,
etc., of funds in the account.-
Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any
amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt
or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of
that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that accountCC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 14 of 28
by an agreement made with that bank, such person shall
be deemed to have committed an offence and shall,
without prejudice to any other provisions of this Act, be
punished with imprisonment for a term which may be
extended to two years, or with fine which may extend to
twice the amount of the cheque, or with both:”
Provided that nothing contained in this section shall
apply unless:
(a) The cheque has been presented to the bank within a
period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
(b) The payee or the holder in due course of the cheque,
as the case may be, 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 thirty days of the
receipt of information by him from the bank regarding
the return of the cheque as unpaid; and
(c) The drawer of such cheque fails to make the payment
of the said amount of money to the payee or, as the case
may be, to the holder in due course of the cheque, within
fifteen days of the receipt of the said notice.
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 15 of 28
Explanation — for the purposes of this section, “debt or
other liability” means a legally enforceable debt or other
liability.
For fastening liability U/S 138 Negotiable Instruments Act, following
are the requirements :-
I. Drawing of the cheque by a person on an account maintained by him with a
banker,II. The cheque was issued for payment to another person for discharge in
whole/part any debt or liability;
III. Cheque has been presented to the bank within a period of six months from
the date on which it is drawn or within the period of its validity whichever is
earlier. RBI in its notification DBOD.AML BC.No.47/14.01.001/2011-12 has
reduced the aforesaid period from 6 months to 3 months.
IV. Returning of the cheque unpaid by the drawee bank for want of sufficient
funds to the credit of the drawer or any arrangement with the banker to pay the
sum covered by the cheque;
V. Giving notice in writing to the drawer of the cheque within 30 days of the
receipt of information by the payee from the bank regarding the return of the
cheque as unpaid demanding payment of the cheque amount;
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 16 of 28
VI. Failure of the drawer to make payment to the payee or the holder in due
course of the cheque, of the amount covered by the cheque within 15 days of the
receipt of the notice.
The offence under Section 138, NI Act is made out against the drawer of the
cheque, only when all the aforementioned ingredients are fulfilled.
13. Further Section 118 Clause (a) of Negotiable Instruments Act provides for
presumptions regarding the consideration for the Negotiable Instruments. It
reads as under: –
“That every negotiable instrument was made or drawn for
consideration and that every such instrument when it has
been accepted, endorsed, negotiated or transferred was
accepted, endorsed, negotiated or transferred for
consideration”.
Section 146 of Negotiable Instruments Act reads as under
:- “The court shall, in respect of every proceedings under
this chapter on production of bank’s slip or memo having
thereon official mark denoting that the cheque has
dishonored, presume the fact of dishonor of such cheque,
unless and until such fact is disproved.”
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 17 of 28
Section 139 of the Negotiable Instruments Act provides
for presumption in favour of a holder. It reads as under :-
“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, or any debt or other liability.”
The combined reading of above said sections, raises a presumption in favour of
the holder of the cheque that he has received the same for discharge in whole or
in part of any debt or other liability. However, it is a settled principle of law that
the presumption U/S 139 Negotiable Instruments Act, can be rebutted by the
accused by raising a probable defence but the burden of proof is on the accused.
14. The principles pertaining to the presumptions and the onus of proof as
recently summarized by the Hon’ble Apex Court in Basalingappa vs.
Mudibasappa (2019) 5 SCC 418 as under:
“25. We having noticed the ratio laid down by this Court
in the above cases on Section 118(a) and 139, we now
summarize the principles enumerated by this Court in the
following manner:
25.1. Once the execution of cheque is admitted, Section
139 of the Act mandates a presumption that the cheque
was for the discharge of any debt or other liability.
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 18 of 28
25.2. The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
25.3. 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. 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.
25.4. That it is not necessary for the accused to come in
the witness box in support of his defence. Section 139
imposes an evidentiary burden and not a persuasive
burden.
25.5. It is not necessary for the accused to come in the
witness box to support his defence.”
15. Now, it is upon the accused to displace this presumption on a scale of
preponderance of probabilities and the lack of consideration or a legally
enforceable debt, but it need not be proved to the hilt or beyond all reasonable
doubts. The accused can either prove that the liability did not exist or make the
non-existence of liability so probable that a reasonable person ought under the
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 19 of 28
circumstances of the case act on the supposition that it does not exist. Thus, the
accused can do so either by leading his own evidence in defence or even by
punching holes in the case of the complainant in cross-examination.
16. The accused has to come forth with a convincing defence that appeals to
common sense and basic rationality. Only in a case where the accused comes up
with a convincing defence to counter liability, that the presumption can be
stated to have been rebutted.
Appreciation of evidence:
17. Coming to the present case, the presumptions under Sec. 118 and Sec. 139
of NI Act are raised in favour of the complainant, as the accused had admitted
that the cheques in question bears his signatures. The accused has disputed the
existence of the legal liability against him, by stating that the accused person
has done the renovation work at his expense and the cheques in question were
given as security which have been misused by the complainant.
The question to be decided for ascertaining the liability of the accused person is:
whether there existed a legally enforceable debt or liability to the extent
mentioned in the cheque, against the accused?
18. The term “legally enforceable debt” is defined in the Explanation to
Section 138 of the Indian Negotiable Instruments Act. It refers to a debt or other
liability that can be lawfully recovered through the due process of law. In order
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 20 of 28
for Section 138 to apply, the debt or liability must be legally enforceable. As per
Basalingappa vs. Mudibasappa (Supra) to rebut the presumption and prove to the
contrary, it is open to the accused to raise a probable defence, wherein the
existence of a legally enforceable debt or liability can be contested. The words
‘until the contrary is proved’ occurring in Section 139, do not mean that the
accused must necessarily prove the negative that the instrument is not issued in
discharge of any debt/liability, but the accused has two options. The first option
is to prove that the debt/liability does not exist and conclusively establish with
certainty that the cheque was not issued in discharge of a debt/liability. The
second option is to prove the non-existence of debt/liability by a preponderance
of probabilities by referring to the circumstances of the case.
19. The case of the complainant here is that the cheques in question were
issued in discharge of liability of the accused which was Rs. 40,00,000/- for the
renovation work carried out by the complainant. Per contra, the accused person
has stated that the complainant has not carried out the renovation work, rather
the same has been done at the expense of the accused himself.
20. The Ld. Counsel for the accused has argued that the complainant has not
done the renovation work as claimed further the complainant has not annexed any
document, such as receipt, bills or proof of payment for materials and labor,
which are essential to substantiate the claim of the complainant. To compliment
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 21 of 28
his argument, the Ld. Counsel for the accused person has relied upon Rajco Steel
Enterprises v. Kavita Saraff & Anr., 2024 SCC Online SC 518 wherein it has
been held that if the complainant fails to produce records, evidence or details with
regard to the work for which the cheque was issued, then the accused cannot be
held liable for owing legal debt; and Roots Production Pvt. Ltd. v. Aarti Arora,
2022, SCC Online Del 3173, wherein a similar position of law has been held. The
complainant in his cross examination has also admitted by stating:
“…It is correct that I have not mentioned the name of
which person through which I have conducted any type
of renovation in the said property. It is correct that I have
not filed any bill as regard to the repair and renovation
conducted by me in the said property…”
However, the Ld. Counsel for the complainant has correctly argued that the
complainant was never asked about the names of the person who did the
renovation work or any bills regarding the same, by the Ld. Counsel for the
accused. The accused person in his defence taken under Section 251 of CrPC has
admitted his signatures on the cheques in question. Therefore, as per Section 118
read with 139 of NI Act there exists a presumption of existence of legal liability
in favour of the complainant. Further the accused person in his cross examination
in the recovery suit, dated 20.02.2024, which is Ex. DW1/P1 in that case and is
on record in the presence case, has stated:
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 22 of 28
“…The cheques in question were got issued by me after
the performance of the contract of repair renovation as
averred by the plaintiff in the suit…”
Further in the same cross examination the accused person has stated:
“…It is correct that cheques in question were
issued towards the discharge of the liability…”
From the above it is clear that the accused person has admitted the existence of
legally enforceable debt against him. Therefore, the argument of the Ld. Counsel
for the accused person that no proof regarding the renovation work has been put
on record by the complainant, does not hold any ground as the accused person has
admitted to the existence of the legal liability.
Further the above admission also contradicts the defence taken by the accused
person taken in the notice framed under Section 251 of CrPC i.e. the cheques
were given as security.
21. The Ld. Counsel for the accused person has further argued that the accused
person had raised a loan of Rs. 36,00,000/- for the renovation work, however the
same was returned by the accused person as there was no renovation work done
by the complainant. However, the accused person has not brought anything on
record to show the same. Furthermore, even if the loan was returned and the
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 23 of 28
amount was not paid to the complainant, the legal liability stands and the accused
person has admitted that the cheques were issued for the legal liability.
22. The Ld. Counsel for the complainant has correctly pointed out that the
bone of contention in the examination-in-chief of the accused person was;
a. that stilt parking was lying sealed
b. when the accused person requested the complainant to return
the cheques, it was told that the cheques were misplaced
c. no renovation work has been done by the complainant and
rather the renovation work was done through one M/s Homelane
d. complainant had blocked the staircase
However Point A, B and D as discussed above do not affect the case of the
complainant. Qua Point C the mother of the accused person DW2, has brought
on record the payment receipts along with agreement with Homevista Decor and
Furnishing Private Limited, dated 29.01.2023, which is on record as Mark D.
The payment receipts are of value approximately Rs. 2 lakhs. This court finds it
hard to believe that the renovation work which was estimated to be of value Rs.
40 lakhs could be done in Rs.2 lakhs, as the accused person has stated that he got
the renovation work done at his end. The story of the accused person that the
renovation work has been done at his expense seems dubious. Therefore, even
though the complainant has not put any proof of renovation, the accused has not
been able to rebut the presumption as the accused person has also not brought
anything on record to show that the renovation work was done by him.
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 24 of 28
23. The accused person had lodged a police complaint on 03.09.2021, after
the issuance of the cheques in question and perusal of the complaint shows that
there is no reference of the word misplacement in the aforesaid complaint as
stated by the accused in his cross-examination. When the accused was asked a
specific question, i.e.,
“Q: I put it to you that in the Complaint Ex. DW1/P2,
there is no reference of the cheques in question. What do
you have to say?
A: I had said so and the same is from Point A to Point
A1.”
A bare reading of the Ex. DW1/P2 from Point A to Point A1 reads as:
“We have not spent our hard-earned money to purchase a
MCD sealed parking property.”
It is clear that the above line does not mention anything about the misplaced
cheques and the same does not corroborate the version of the accused person.
Furthermore, the Ld. Counsel for the complainant has correctly argued that the
accused person has not made any complaint to the police as regard to the
cheques in question and not filed any suit seeking declaration to declare the
cheques being null and void and without consideration. The law says that a
person has to act as a prudent person as laid down in the case of V.S. Yadav v.
Reena, 2010 (4) JCC NI 323.
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 25 of 28
24. The mother in law of the accused person DW2 has also put on record
certain photographs which are Mark B and a complaint made to MCD by her,
Mark A. However, the above documents are not relevant for the present case as
the case is regarding renovation work. Moreover, the witness has not deposed as
to what is the date and time when the photographs were taken.
25. The contradictions and inconsistencies raised by the accused alone in
absence of any other evidence or supporting material is not sufficient to put any
dent in the testimony of the complainant. In that regard, the Hon’ble Supreme
Court of India in Rohitbhai J. Patel v. The State of Gujarat, Criminal Appeal no.
508/2019 held as follows:
“Needless to reiterate that the result of such presumption
is that existence of a legally enforceable debt is to be
presumed in favour of the complainant. When such a
presumption is drawn, the factors relating to the want of
documentary evidence in the form of receipts or accounts
or want of evidence as regards source of funds were not
of relevant consideration while examining if the accused
has been able to rebut the presumption or not. The other
observations as regards any variance in the statement of
complainant and witness; or want of knowledge about
dates and other particulars of the cheques; or washing
away of the earlier cheques in the rains though the officeCC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 26 of 28
of the complainant being on the 8th floor had also been
of irrelevant factors for consideration of a probable
defence of the appellant it is noticed that the Trial Court
proceeded on a misplaced assumption that by mere denial
or mere creation of doubt, the appellant had successfully
rebutted the presumption as envisaged by Section 139 of
the NI Act. In the scheme of NI Act, mere creation of
doubts is not sufficient.”
26. The version of the complainant has remained consistent throughout. The
complainant has stated in the complaint, evidence by way of affidavit and his
cross examination, that the renovation work was done by him and the accused
person issued the cheques in question for his liability. Moreover, the same has
not been shaken by the accused person and the accused person has admitted that
the cheques in question were issued by him for existing legal liability. The
burden was on the accused to come forth with a convincing defence that appeals
to common sense and basic rationality, and show that the renovation work was
done by him and thus there existed no legally enforceable debt on him. Only in a
case where the accused person comes up with a convincing defence to counter
liability, the presumption can be stated to have been rebutted. In this case, the
accused has completely failed to rebut the presumption which arises from the
issuance of cheque, wherein the issuance of cheque is admitted by both the
parties.
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 27 of 28
In light of the above observations, this court finds that a legally recoverable debt
existed in favour of the complainant.
Conclusion:
27. Thus, in the opinion of this court, the accused has failed to shake the case
of the complainant and highlight infirmities in his case so as to rebut the
presumptions raised in the favour of the complainant u/s 139 read with Section
118, NI Act. Furthermore, cross-examination of the complainant by the accused
also did not shake the veracity of the complainant’s testimony and the documents
on record. Thus, the presumptions in favour of the complainant have not been
rebutted by the accused. In light of this, accused Sh. Ankur Ghildiyal S/o Sh. HC
Ghildiyal, is convicted for the offence U/S 138, N.I. Act.
Copy of the judgment be given to the accused free of cost.
Judgment pronounced in the open court on 23.12.2024.
This judgment consists of 28 pages and all the pages are duly signed by me.
(Shivam Gupta)
Judicial Magistrate First Class(N.I.Act),
Digital Court-02
PHC/New Delhi 23.12.2024
CC No. 5262 of 2021 Shri Sanjeev Puri Versus Shri Ankur Ghildiyal Page 28 of 28