Delhi District Court
Promila Kumar vs Tybros Infratech Private Limited on 30 April, 2026
IN THE COURT OF MS. JAYANTI CHANDER,
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT) - 07,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI.
1 Complaint Case Number : Ct. Case No. 4967/2021
2 Name & Address of : Ms. Promila Kumar
Complainant W/o Sh. Suresh Kumar
R/o- D-5/6, Vasant Vihar,
New Delhi - 110057
3 Name & Address of : M/s Tybors Infratech (P)
Accused Ltd.
Registered office at - 5/54,
3rd floor, Main Shankar
Road, Old Rajinder Nagar,
New Delhi - 110060
Mr. Vivek Tyagi,
Director
M/s Tybros Infratech (P)
Ltd.
5/54, 3rd floor, Main Shankar
Road, Old Rajinder Nagar,
New Delhi - 110060
4 Offence complained of : Section 138 r/w142,
Negotiable Instruments Act
1881
5 Plea of guilt : Pleaded not guilty
6 Date of institution : 28.09.2021
7 Date on which case was : 22.04.2026
reserved for judgment
8 Date of judgment : 30.04.2026 Jayanti by
Digitally signed
Jayanti
chander
chander 19:34:02
Date: 2026.04.30
+0530
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 1 of 21
9. Decision : Conviction
JUDGMENT
1. Vide this judgment, this court shall dispose of the
aforementioned complaint case filed by the complainant Ms.
Promila Kumar against the accused, namely M/s Tybors Infratech
(P) Ltd and Mr. Vivek Tyagi (Director) in respect of the dishonor
of cheques bearing number 319227 dated 21.04.2021 for an
amount of Rs. 60,143/- (Rupees Sixty thousand one hundred forty
three) drawn on Federal Bank, Hauz Khas, New Delhi(here and
after referred to as the “cheque in question”).
BRIEF FACTS OF THE CASE
2. Succinctly, it is the case of the complainant that
accused is a real estate developer and the complainant had
purchased a cottage bearing no. CD-2F at Pocket-G, in a project
of accused no. 1, i.e. ‘Essence of Nature Cottages Villas’ situated
in the revenue estate of villages Michili, P.O. Seam, Tehsil
Bhikiasain, District Almora, Uttarkhand and was issued an
allotment letter dated 28.04.2015 for the same. Accused no. 2 Sh.
Vivek Tyagi (Director) of the accused no. 1 is a signatory of the
agreements entered between the complainant and accused no. 1.
The complainant made a payment of Rs. 59,40,000/- towards the
sale consideration of cottage and also made a payment of Rs.
1,83,546/- towards payment of Service Tax and receipts to accused
no. 1. Thereafter, the complainant entered into an ‘Assured Return
Agreement’ dated 28.04.2015 with accused no. 1 in which a
specific return on payments made was assured. Despite several
CT Cases 4967/2021 Digitally signed
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 2 of 21 by Jayanti
Jayanti chander
chander Date:
2026.04.30
19:35:08 +0530
requests, the accused did not repay the loan amount. In discharge
of his legal liability, the accused issued the cheques in question.
3. On presentment upon the instructions of the
accused, the cheque in question was returned with remarks “Refer
to drawer” vide returning memo dated 17.07.2021 exhibited as Ex.
CW1/3. Thereafter, complainant sent a notice of demand Ex.
CW1/4 calling upon the accused to pay the cheque amount within
15 days. The postal receipt and tracking report is exhibited as Ex.
CW1/5 respectively. The tracking report confirmed delivery on the
alleged address of accused on 16.08.2021. The original postal
envelop is exhibited as Ex.CW1/6. It is further stated that despite
service of legal notice, the accused failed to make the payment,
hence, the complainant moved to the court with the present
complaint under section 138 of the Negotiable Instruments Act,
1881, (here in after referred to as the “NI Act“). The complainant
has placed on record cheque in question Ex. CW1/2.
4. Upon prima facie consideration of the pre-
summoning evidence, the accused was summoned vide order
dated 19.02.2022 and directed to furnish bail bond and surety
bond.
5. Upon the appearance of the accused, notice under
section 251, Code of Criminal Procedure 1973 (hereinafter
referred to as “CrPC“) was framed on 13.05.2022 to which the
accused pleaded not guilty. The accused stated that the cheques in
question bears his signatures and rest of the details were filled by
the Accounts Department. The accused admitted that the accused
CT Cases 4967/2021
Digitally signed
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 3 of 21 by Jayanti
Jayanti chander
chander Date:
2026.04.30
19:36:14 +0530
company (accused no. 1) entered into an Assured Return
Agreement with the complainant as mentioned in the complaint
and pursuant to the agreement post-dated cheques were issued to
the complainant. The accused further stated that the cheques
issued for a period of 30 months were duly honored. However,
subsequently due to Covid 19 the construction of the cottage could
not be completed and its possession could not be handed over to
the complainant. The accused stated his readiness and willingness
to construct and hand over the cottages to the complainant if some
more time is given. Also, the accused admitted that the rental is
due. However, the same could not be paid owing to the pandemic
of Covid 19. The accused denied having received the legal demand
notice, however, admitted the address mentioned is the current
office address which was closed during Covid 19.
COMPLAINANT EVIDENCE
6. The accused was allowed to cross-examine the
complainant witnesses vide order dated 09.01.2024, the
complainant stepped in witness box as CW-1 and adopted her
affidavit of pre-summoning Ex. CW1/A as her evidence reiterating
almost all facts of complaint, stating all exhibits. Thereafter, CW-1
was cross-examined by the counsel for the accused. In her cross-
examination, CW-1 deposed that the agreement for Cottage was of
Rs. 69 lakhs approximately. CW-1 identified signatures at point A,
B and C on page number 67 and 13 of the agreement Mark CW1/1
as that of her husband. The application form placed before CW-1
and was taken on record as Ex. CW1/1 (OSR). CW-1 deposed that
the meeting at the office of the accused company after signing the
Assured Return Agreement Mark – CW1/1 were attended by her
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 4 of 21 Digitally signed
by Jayanti
Jayanti chander
chander Date:
2026.04.30
19:36:47 +0530
husband and her son. CW-1 further deposed that her husband
visited the office of accused company after the dishonor of the
cheques in question and also had telephonically contacted accused
no. 2 several times.
7. Shri Manu S Kumar, Son of complainant was
examined as CW-2. The Assured Return Agreement was exhibited
as Ex. CW2/1 (OSR) which was earlier marked as CW1/1. CW-2
stated that he is a nominee as mentioned in the agreement. CW-2
deposed that all the communications with the accused were
undertaken by his father. All these suggestions put to the witness
were specifically denied by him.
8. Complainant closed his evidence vide his separate
statement dated 30.08.2025 and thereafter, the matter was fixed for
recording of statement of accused.
STATEMENT UNDER SECTION 313 CRPC
9. On 10.10.2025 the statement of the accused under
section 313, CrPC, read with section 281 CrPC was recorded
wherein the entire incriminating evidence was put to him. In
response, the accused reiterated the defence taken in the notice
framed under section 251, CrPC. Additionally, the accused stated
that the complainant and her husband applied for booking a cottage
project on 20th April 2015 and subsequently, the agreement was
entered as per which “CD2G” Cottage was allotted to the
complainant upon payment of Rs. 59,40,000/- out of the total
consideration of Rs. 71,00,000/-. It was agreed that the remaining
amount of Rs. 11,60,000/- was to be paid upon the basic
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 5 of 21 Digitally signed
Jayanti by Jayanti
chander
chander Date:
2026.04.30
19:39:05 +0530
construction of the cottage for fully furnishing and finishing of the
constructed cottage. The accused also stated that the accused
company made further payment of returns @ of 16% for 12
months, in addition to the payment already made for 30 months.
So, an amount of Rs. 34,05,060,600 was paid to the complainant,
who neither cancelled the agreement nor made the payment of Rs.
11,60,000/- to the accused company and the allotted unit is in the
complainant’s name till date. The security cheque including the
cheques in question were to be in cash by the complainant in the
event of termination of the contract due to non-delivery of the
possession in case the complainant honored the contract. The
complainant’s brother misused the cheques in question with the
malafide intent by suppressing the fact of payment of huge amount
of Rs. Rs. 34,05,060,600 already received and want to obtain
monthly returns for indefinite period. Without payment of balance
of Rs. 11,60,000/- the accused also stated that phase one is already
delivered to the buyers and the present cottage falls in phase two
which is about to get completed. The accused admitted the post-
dated duly filled cheques in question that were given to the
complaint after signing the same.
DEFENCE EVIDENCE
10. The accused chose to lead evidence in defence and
the application u/s 315 Cr.PC (now section 353 BNSS) was
allowed on 05.12.2025. DW-1 himself deposed that it is not a
residential project but a project where the complainant along with
her family could visit on holidays and also get revenue share. The
cottage was booked on 20th April, 2015 by the complainant. DW-1
deposed that the unit of cottage allotted to the complainant was
CT Cases 4967/2021 Digitally signed
by Jayanti
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 6 of 21 Jayanti chander
chander Date:
2026.04.30
19:39:46 +0530
supposed to be completed within 36 months from the date of
entering into agreement i.e. 28.04.2015 Ex. CW-1/D1. DW-1
admitted the address mentioned in the legal notice to be his correct
address. DW-1 deposed that as per the agreement only the
furnishing and finishing of the unit is pending since the balance
payment has not been received by the complainant. DW-1 further
deposed that the cottage was to be developed in April 2018 as per
the master agreement signed on 28.04.2015. DW-1 admitted that
there is nothing on record in writing in relation to the demand of
the remaining amount by the complainant.
11. DW-1 placed on record the copy of the sale deed
executed by accused no. 1. Sh. Ajit Kumar Nima exhibited as
Ex.DW1/A (OSR) in order to show the procedure followed in
handing over the possession of a duly constructed cottage. DW-1
deposed that the possession of cottage is handed over on the date
when the conveyance deed is executed and intimation for the
completion of unit and subsequent execution of the conveyance
team is intimated to the allottee on phone and not in writing. DW-1
also deposed that it has been explained in Clause 37 of Ex.
CW-2/D1 as to how and when the remaining payment of
Rs.11,60,000/- is to be paid as charges for furnishing cost by the
buyer. DW-1 further deposed that the offer of possession and
delivery of possession was to be given only after the registry,
however, there was no complete payment by the complainant and
no subsequent registry in the present case. DW-1 denied all the
suggestions put to him.
CT Cases 4967/2021 Digitally signed
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 7 of 21 Jayanti by Jayanti
chander
chander Date: 2026.04.30
19:46:56 +0530
12. Thereafter, defence evidence was closed vide
statement dated 06.03.2026. It is pertinent to note that the
documents produced in evidence were placed on record in the
connected case CC No. 28627/2019 at request and for
convenience.
FINAL ARGUMENTS
13. Final arguments were heard on 22.04.2026 on behalf
of both the parties and written arguments were submitted on behalf
of complainant. Subsequently, written arguments were filed by Ld.
Counsel for accused.
14. Learned counsel for the complainant submitted that
the accused has admitted his signatures on the cheques in question
and the ingredients of the offence are made out the accused is
liable under section 138, NI Act. Learned counsel for complainant
further submitted that the execution of Assured Return Agreement
Ex. CW1/1 has not been denied by the accused. Learned counsel
for complainant further submitted that the Assured Return
Agreement executed between the parties provides that the assured
returns shall be paid by the accused to the complainant even in
case of a default until and unless a force measure clause is in
operation. Learned counsel for complainant further submitted that
the force measures clause would come in operation only if a
communication in writing is sent by the accused to the
complainant or it is agreed in writing between both the parties at
the force majeure is in operation. Learned counsel for complainant
further submitted that there is a typographical error in the date of
execution of the Assured Return Agreement as stated in the
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 8 of 21
Jayanti Digitally signed by
Jayanti chander
chander Date: 2026.04.30
19:56:56 +0530
complaint and evidence by way of affidavit which has been
rectified to 28th March 2015 in the testimony of CW-2.
Furthermore, stamp duty mentioned on the agreement is dated 27th
April 2015 and thus this confusion or typographical error arose
due to the same fact. Ld. Counsel for complainant relied upon
several judgments including Basalingappa Vs.
Mudibasappa(MANU/SC/0502/2019), Rangappa Vs. Mohan
(MANU/SC/0376/2010), Narbada Devi Gupta Vs. Birendra
Kumar Jaiswal and Ors. (MANU/SC/0862/2003).
15. Per contra, Ld. counsel for the accused submitted
that firstly the complaint and evidence by way of affidavit of CW-2
avers that the Assured Return Agreement is dated 28.04.2015
whereas the Assured Return Agreement exhibited as Ex. CW 2 /1
is dated 28.04.2015. So, the agreement placed on record Ex.
CW2/1 which was earlier marked as Mark – CW1/1 is a forged and
fabricated document from which the alleged liability of the
accused against arises against the complainant. Learned counsel
for the accused further submitted that the husband of CW -1 i.e.
Sh. Suresh Kumar is a material witness who took active part in the
transaction on behalf of complainant and who has not been
examined by the complainant. Learned counsel for accused further
argued that the basic document that is the Assured Return
Agreement from which the alleged liability of the accused is stated
to be arising is a false and fabricated document since
complainant himself has not been consistent with respect to the
date of execution of the agreement.
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 9 of 21
16. Learned counsel for accused further submitted that
the complainant has hidden the fact that all the cheques mentioned
in the Assured Return Agreement were duly honored. The
complainant has approached the court with unclean hands.
Learned counsel for accused argued that the burden of proof on the
accused is to the standard of preponderance of probabilities which
can be discharged either by punching holes in the testimony of the
complainant or by producing cogent evidence in support of the
version of the accused. In the instant case, the accused has punched
holes in the version of the complainant and also adduced cogent
evidence in her support to prove that there is no outstanding legal
liability to the tune of the cheque amount. Ld. Counsel for accused
relied upon several judgments including Basalingappa Vs.
Mudibasappa(MANU/SC/0502/2019), Rangappa Vs. Mohan
(MANU/SC/0376/2010), Rajkumar Singh Vs. State of Rajasthan
(MANU/SC/0468/2013).
17. Rival submissions have been considered and record
of the case has been perused.
INGREDIENTS OF OFFENCE UNDER SECTION 138 NI ACT
18. Before delving into the factual matrix of the present
case, it is significant to underpin the essential ingredients to be
established in order to attract the liability under section 138, NI
Act as follows:
(i) The accused issued a cheque on an account
maintained by him with a bank.
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 10 of 21 Digitally signed
by Jayanti
Jayanti chander
chander Date:
2026.04.30
19:57:04 +0530
(ii) The said cheque has been issued in discharge, in
whole or in part, of any legal debt or other liability,
which is legally enforceable.
(iii) 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.
(iv) The cheque in question, when presented for
encashment, was returned unpaid.
(v) 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.
(vi) The drawer of the cheque failed to make the
payment within 15 days of the receipt of aforesaid
legal notice of demand.
APPRECIATION OF EVIDENCE
19. The accused can be held guilty of the offence under
Section 138 NI Act only if the above-mentioned ingredients are
proved by the complainant co-extensively. Moreover, conditions
stipulated under Section 142 NI Act have to be fulfilled in addition
to above-mentioned ingredients.
WITH RESPECT TO FIRST, THIRD AND FOURTH
INGREDIENT
20. The Complainant has adduced by way of
documentary evidence the original cheques Ex. CW1/2 and Ex.
CW1/4 and the return memos Ex. CW1/3 and Ex. CW1/5
mentioning reason of dishonor as “funds insufficient” respectively.
CT Cases 4967/2021 Digitally signed
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 11 of 21 Jayanti by Jayanti
chander
chander Date: 2026.04.30
19:57:09 +0530
The accused has admitted his signatures on the cheques in
question. The accused stated in his statement u/s 251 Cr.PC that
the Cheques in question Belong to the Accused company Bracket
accuse number one. The accused also stated that the cheques were
filled by the account department and thereafter signed by him
and issued to the complainant. Thus, the issuance of duly filled
cheques in question has been admitted by accused number 2 on
behalf of accused number 1. Furthermore, the accused has also
admitted the execution of Assured Return Agreement as per which
the payments reflected in the cheques in question were agreed to
be done by accused number 1 to the complainant. Hence, first,
third and fourth ingredients stand proved.
WITH RESPECT TO FIFTH AND SIXTH INGREDIENT
21. The perusal of postal receipts and tracking report
exhibited as Ex. CW1/7 reveal that legal demand notice was de-
livered on the address admitted by the accused to be his correct
address on 26.07.2026. The accused has admitted the other ad-
dress mentioned in the legal notice is the correct office address of
accused number 1 company. Although, the accused has denied
having received the legal notice.
22. The Hon’ble Supreme Court in the case of C.C Alavi
Haji vs. Palapetty Muhd. & Anr.1 held that any drawer who claims
that he did not receive the notice sent by post, can, within 15 days
of receipt of summons from the court in respect of the complaint
under Section 138 of the Act, make payment of the cheque
amount and who does not pay within 15 days of receipt of the
1
C.C Alavi Haji vs. Palapetty Muhd. & Anr
Jayanti Digitally signed by
CT Cases 4967/2021
Jayanti chander
chander Date: 2026.04.30
19:57:16 +0530
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 12 of 21
summons from the Court along with the copy of the complaint
under Section 138 of the Act, cannot contend that there was no
proper service of notice as required under Section 138, by ignor-
ing statutory presumption to the contrary under Section 27 of the
General Clauses Act and Section 114 of the Evidence Act.
23. This court finds that despite due service of the legal
demand notice and summons in the present case, the accused has
failed to repay the legal debt with 15 days of receipt of legal no-
tice and subsequently, within 15 days of service of summons re-
spectively. Hence, fifth and sixth ingredient also stand fulfilled.
WITH RESPECT TO SECOND INGREDIENT
24. As per the scheme of NI Act and recent precedents,
once the accused admits signature on the cheques in question,
presumption of law under section 139 of the Act shall be drawn.
In the recent judgment, Kalamani Tex v. P. Balasubramaniyan,2 the
larger bench of the Hon’ble Supreme Court, held that:
“U/s 118 & 139, once issuance of cheque and
signature admitted, it is required to presume
that the cheque was issued as consideration
for a legally enforceable debt.”
The same was re-iterated in the case of Hiten P. Dalal vs.
Bratindranath Banerjee.3
25. In the present case the accused has admitted his
signatures on the cheque in question. Thus, the ingredients of
2
Kalamani Tex v. P. Balasubramaniyan
3
Hiten P. Dalal vs. Bratindranath Banerjee
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 13 of 21
offence u/s 138 NI Act are presumed u/s 139 NI Act. To discharge
the evidentiary onus of proof under section 102, IEA, the accused
may rely on the complainant evidence to rebut the existence of
legally enforceable debt as was enunciated in the case of
Rangappa Vs. Sri Mohan4. However, the evidence should create
doubt to the standard of preponderance of probabilities.
26. Ld. Counsel for the complainant further argued that
the ingredients of offence under section 138 NI Act have been
made out as the accused has admitted due issuance of the cheques
in question. Ld. Counsel for complainant submitted that the burden
thereafter shifted on the accused who has failed to rebut the case
beyond preponderance of probability.
27. Ld. counsel for the accused submitted that the date
mentioned in the Assured Return Agreement Ex. CW-1/1 is 28 th
March 2015 whereas the date stated in the averments of the
complaint and evidence by way of affidavit of CW-1 and CW-2 is
28th April 2015. Learned counsel for accused argued that the
agreement placed on record is forged and fabricated. Learned
counsel for accused further submitted that the execution of the
agreement has not been proved by any witness and the material
witness Mr. Suresh Kumar has not been examined as a witness.
Learned counsel for accused further submitted that the accused has
come to the court with unclean hands as they have not disclosed
that they received payment of assured returns for the first 30
months for which the cheques were also honored.
4
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 14 of 21 Digitally signed
Jayanti by Jayanti
chander
chander 19:57:22
Date: 2026.04.30
+0530
28. The documents, that is, original cheques CW1/2, Ex.
CW1/4 and return memos Ex. CW1/3, Ex. CW1/5 respectively are
documentary proofs in support of the version of the complainant.
It is pertinent to know that Ex. CW-2/1 was exhibited after the
original agreement was produced before the Court. Learned
counsel for complainant submitted that the date 28 th April 2015
instead of 28th March 2015 is a typographical error in the
complaint and evidence by way of affidavit which was duly
rectified at the time of deposition by CW-2 in his evidence.
Learned Counsel for complainant further submitted that this
clerical error is not fatal to the case of the complainant.
29. The contention raised by Learned Counsel for
accused regarding the discrepancy in the dates mentioned in the
complaint appears to be a clerical error. It is pertinent to note that
DW 1 has specifically deposed in his examination in chief that the
cottage was booked on 20.04.2015 by the complainant. DW-1 also
deposed that the cottage was to be developed as per the Master
Agreement signed on 28.04.2015. It is also pertinent to note that
the date written on the stamp paper is 27th April 2015. The date of
execution of agreement as mentioned in the same document is 28th
March 2015.
30. It has also to be kept in mind that none of the parties
either the complainant or the accused have clearly spelled out as
to what was the actual date of execution. In that sense both the
parties are faulty at their ends to be able to clarify the date of actual
execution of the agreement as the stamp paper bears the date of
27thApril 2015. Hence, it can be inferred that the contention raised
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 15 of 21 Digitally signed
by Jayanti
Jayanti chander
chander Date:
2026.04.30
19:57:27 +0530
by Learned Counsel for accused is devoid of any cogent proof of
actual agreement as no Assured Return Agreement has been placed
on record by the accused.
31. Learned Counsel for the accused alleged that the
present agreement is a forced and fabricated one. It is also
pertinent to note that the statements of DW-1 himself clarify that
the agreement was executed after 20th of April 2015 as per him.
Also, the accused has not denied his signatures on the agreement
CW-2/1 and the accused has rather relied upon the different
clauses stated in that agreement in Cross examination. It can be
derived from the statements of DW-2 and averments of the
complainant that the agreement might have actually been executed
in April 2015. So, a fresh argument regarding the aforesaid
agreement being forced and fabricated has contradictions and
inconsistencies with the statement of DW1 Which have been
stated in his cross examination on oath.
32. Learned Counsel for complainant further argued that
the age of the complainant is 78 years and that of the husband of
complainant Sh. Suresh Kumar is 84 years and hence the nominee,
their son, was examined as CW2. It is pertinent to note that the
standard of preponderance of probabilities has to be proved either
by punching holes in version of the Complaint or by adducing
cogent evidence. In the case at hand, the accused has raised
objections which are not fatal to the case of the complainant. The
documentary evidence which has been placed on record by the
complainant has not been denied specifically by DW 1 in his
depositions and it has rather been relied upon by DW1. So non
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 16 of 21 Jayanti Digitally signed by
Jayanti chander
chander Date: 2026.04.30
19:57:31 +0530
examination of Sh. Suresh Kumar does not by itself become a
ground of the discharge of burden of preponderance of
probabilities casted upon the accused when the accused has
himself admitted that Assured Return Agreement was executed
between him and the complainant. Furthermore, the accused has
not specifically denied his signatures on the Assured Return
Agreement and rather relied upon clause 37 of the Assured Return
Agreement in his cross examination as DW1. It is important to
underpin at this stage that the accused has not denied the execution
of the cheques in question. The due execution of the cheques in
question has duly been admitted by the accused number 2.
33. Once the cheques in question are proved to be duly
issued and the Assured Return Agreement is complimenting the
cheques in question the onus shifts on the accused to prove his
version of the case.
34. Learned Counsel for accused submitted that
construction of the cottage could not be completed in its entirety
due to the Covid 19. Learned Counsel for complainant submitted
that the construction was to be completed by 2018. The COVID
19 pandemic emerged in mid of 2019. Learned Counsel for
complainant further submitted that even in case of Force Majeure
(Covid-19) the agreement specifies that there was requirement of
a communication between the complainant and the accused
acknowledging that the Force Majeure clause is in operation.
There was no such communication for invocation of the clause of
Force Majeure. Learned counsel for complaint further submitted
that even the communication of completion of basic structure of
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 17 of 21
Digitally signed
by Jayanti
Jayanti chander
chander Date:
2026.04.30
19:57:37 +0530
the cottage was to be done in writing by the accused to the
complainant with a notice of payment of remaining amount of Rs
11,60,000/- for full and final furnishing of the cottage. Even this
communication was also not made by the accused to the
complainant.
35. There are two points of determination in the above
contention of learned Counsel for accused. Firstly, whether due to
Covid -19 (Force Majeure) the construction of the cottage could
not be completed. Secondly whether the clause of Force Majeure
was in operation at the time when the cottage was to be
constructed. With respect to the first point of determination, it is
pertinent to note that accused number 2 has stated in his statement
of defence under section 313 Cr.PC (now section 351, BNSS) that
the construction of the cottage was to be completed in 2018. The
version of the accused that the construction could not be completed
due to Covid 19 does not appear to be the initiation of delay in
construction of Cottage as Covid 19 pandemic restrictions were
imposed in mid-2019. Moreover, it is an admitted position by
accused himself that the cottage was to be constructed by 2018.
There is no reason of delay stated by accused number 2 in
construction of the cottage after 2018.
36. With respect to the second point of determination,
the Assured Return Agreement Ex. CW2/1 spells out the procedure
to be followed by the parties to invoke the clause of Force
Majeure in which case the accused shall not be liable to pay the
assured return agreed between the parties to the complainant. It is
pertinent to note that no meeting was called and no written
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 18 of 21 Digitally signed
Jayanti by Jayanti
chander
chander Date: 2026.04.30
19:57:42 +0530
agreement was made for the operation of clause of Force
Majeure as agreed in the agreement Ex. CW2/1. Hence, even if the
event of Force Majeure, that is clause 31 and 32 of ExCW1/2, was
to brought in force by either of the parties, there is no proof of
operation of the clause of Force Majeure adduced by the accused
along with his oral statements. As per clause 32 of Ex CW1/2, the
accused company could alter the terms of agreement or terminate
the agreement and refund the amount paid by the buyer. However,
there is no evidence adduced by the accused to have done the
same. In light of the timelines and chain of events, it cannot be
presumed that the operation of Force Majeure clause took place in
the instant case. Hence, the argument of learned counsel for
accused that the delay was due to Force Majeure is not
sustainable.
37. Furthermore, the accused DW-2 stated in his
statement recorded under section 313 Cr.PC (now 351 BNSS) that
he is still ready to complete the cottage if the complainant so
allows. DW-2 further stated in his evidence that the cottage is still
in the name of the complaint. It is also pertinent to note that the
accused has admitted in his cross examination as DW2 that he did
not intimate in writing to the complainant regarding the
completion of the construction of cottage as stipulated the Assured
Return Agreement. The accused stated that the cottages of phase 1
have been constructed. However, there is no clarification that the
cottages of phase 2 under which the cottage of the complaint falls
has been constructed till date or not. An inference can be drawn
that even on the date of presentation of the cheque the construction
of basic structure of the cottage was not completed.
CT Cases 4967/2021 Digitally signed
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 19 of 21
by Jayanti
Jayanti chander
chander Date:
2026.04.30
19:57:47 +0530
38. The documentary evidence including the cheque in
question, return memo, legal notice and postal receipts and the
admission of accused fulfill the ingredients of offence u/s 138 NI
Act. However, the accused has not placed on record cogent
evidence to rebut the complainant’s story. It is a cardinal rule of
evidence that documentary evidence weighs more than the oral
statements. So, oral arguments are not sufficient to discharge the
burden of proof of the accused when the accused no. 2 himself is
relying upon the documents placed on record by the complainant
to establish his case.
39. Once the burden of proof has shifted on the accused
and he has failed to rebut the case of the complainant by cogent
evidence, the offence u/s 138 NI Act remains proved.
CONCLUSION
40. This court finds that the complainant has sufficiently
discharged his initial burden of proving the essential ingredients
of offence under Section 138 of NI Act read with section 141 of
NI Act as per law. Accused number 2, admittedly director of
accused number 1, was responsible for the conduct of business of
the accused company when the offence took place. As such, the
accused has failed to rebut the presumption to the standard of
preponderance of probabilities. Accordingly, the offence under
Section 138 of the Negotiable Instruments Act, 1881 remains
‘proved’.
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 20 of 21
41. Accordingly, the accused no. 1 company M/s Tybors
Infratech (P) Ltd. and its director accused no.2 Vivek Tyagi are
convicted of the offence under Section 138 of the Negotiable
Instruments Act, 1881.
42. This judgment contains 21 pages and each page has
been signed by the undersigned.
Announced in open Court on 30th April, 2026.
Jayanti Chander
JMFC (NI Act)-07/South
District/Saket Courts/New Delhi
30.04.2026
Jayanti Digitally signed by
Jayanti chander
chander Date: 2026.04.30
19:57:53 +0530
CT Cases 4967/2021
Promila Kumar Vs M/s Tybros Infratech Private Ltd. And Anr. 21 of 21
