Delhi District Court
Subhash Chander Bhardwaj vs Pawan Garg on 10 March, 2025
IN THE COURT OF MS. DIVYA SINGH
JUDICIAL MAGISTRATE FIRST CLASS, DWARKA COURTS, NEW DELHI
Criminal Complaint No.: 7444/2018
Subhash Chander Bhardwaj ......... Complainant
Versus
Pawan Garg ......... Accused
1. Name & address of the complainant: : Subhash Chander
Bhardwaj, prop of
Bhardwaj Associate
B-16, New Multan Nagar
Rohtak Raod, Peeragarhi
Pachim Vihar, New
Delhi
2. Name & address of the accused : Pawan Garg,
R/o M-98, Guru Hari
Krishan Nagar, Paschim
Vihar, Delhi
3. Offence complained of : U/S 138, The
Negotiable
Instruments Act,1881.
4. Date of Institution of case : 15.02.2018
5. Plea of accused : Pleaded not guilty.
6. Final order : Convicted
7. Date of decision of the case : 10.03.2025
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signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
13:02:33
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JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case as
filed by the complainant, Subhash Chander Bhardwaj (hereinafter referred to
as the complainant) against accused Pawan Garg, (hereinafter referred to as
the accused). The present complaint has been filed against the accused u/s
138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the NI
Act).
2. The brief facts as alleged by the complainant in his complaint are that In the
month of May 2012 accused approached complainant for a friendly loan and
complainant advanced a friendly loan of Rs. 2,00,00,000/- in cash to the
accused and kep the property document in return. In discharge of the liability
accused issued one postdated cheque (cheques in question) bearing no
173019, dated 12.12.2017 Rs. 2,00,00,000 drawn at Punjab and Sind Bank,
Meera Bagh, Paschim Vihar, Delhi. When complainant presented the above-
mentioned cheque in question the same was returned unpaid by the banker
of the complainant vide cheque returning memos dated 09.01.2018 with the
remarks “Payment Stopped by drawer”
3. Thereafter, the complainant served a legal demand notice upon the accused
through his counsel on 18.01.2018 and upon the expiry of statutory period
when accused failed to make the payment of cheque in question,
complainant had filed the present complaint case.
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Digitally signed
by DIVYA
DIVYA SINGH
SINGH Date:
2025.03.10
13:02:55 +0530
4. In order to prove his case, complainant in the pre-summoning evidence,
examined himself as CW1 by way of affidavit Ex. CW1/1 and relied upon
following documents which are as follows:
1) Ex.CW1/A is the cheque in question.
2) Ex.CW1/B is the the cheque returning memo.
3) Ex.CW1/C is the legal notice.
4) Ex. CW1/D is the original postal receipt.
5) Ex. CW1/E is the tracking report.
5. Upon appreciation of pre-summoning evidence and upon finding prima facie
case against the accused, pre-summoning evidence was concluded on
16.02.2018 and summons were issued to accused on the very same day.
6. Thereafter Notice u/s 251 Cr.PC was framed against the accused on accused
on 04.07.2018 to which he pleaded not guilty and claimed trial. Accused
denied taking any loan from the complainant.
Accused admitted his signatures on the cheque in question but
denied filling in particulars except the date. Accused further denied receiving
of any legal demand notice.
7. Thereafter, complainant examined himself as CW-1, cross-examined by the
Ld. counsel for the accused on 05.09.2018, 06.03.2019, 11.07.2019 &
01.06.2022. Thereeafter, matter was listed for recording of statement u/s 313
Cr.PC.
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by DIVYA
DIVYA SINGH
SINGH Date:
2025.03.10
13:03:01 +0530
8. Statement of accused u/s 313 Cr.PC was recorded on 27.07.2022 wherein all
the incriminating evidence were put before the accused wherein Accused
denied having any personal dealings with the complainant. Accused enied
taking the amount from the complainant.
Accused admitted his signatures on the cheque in question but
denied filling in particulars except the date. Accused further deneid
receiving of legal demand notice.
9. Thereafter, the matter was listed for Defence Evidence and accused
examined Mr. Pramod Garg as DW-1 on 19.01.2024, cross-examined and
discharged. Mr. Arjun Prakash, Notice server Income Tax Department was
examined and cross-examine as DW-2 and matter was fixed for final
arguments.
10.Final arguments were concluded and record of the case and evidence of both
the parties was thoroughly perused.
11.In the final arguments, the counsel for complainant submitted that
complainant has been able to prove all the ingredients u/s 138 NI Act which
stood corroborated by the documentary evidence led in the evidence. The
counsel for complainant further submitted that accused has not brought any
defence and has neither rebutted the presumption arising in favour of the
complainant in terms of Section 118 & 139 of NI Act in as much as
testimony of complainant has remained uncontroverted in material
particulars.
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by DIVYA
DIVYA SINGH
SINGH Date:
2025.03.10
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On the other hand, counsel for accused stated that there were
many contradictions in the evidence of the complainant and as such
complainant has not been able to prove any liability of the accused.
12.Before proceedings to the merits of the case, it is important to lay down the
basic provision of Section 138 of NI Act,1881. In order to ascertain whether
accused has committed offence u/s 138 NI Act the following ingredients
have to be proved which are as follows:
A person must have drawn a cheque on an account maintained by
him in a bank for payment of a certain sum of money to another
person from out of that account for the discharge of any legally
enforceable debt or liability;
cheque has been presented to the bank within a period of three
months from the date on which it is drawn or within the period of
its validity whichever is earlier;
That cheque has been returned by the bank unpaid, either because
of the amount of money standing to the credit of the account is
insufficient to honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement made with
the bank;
The payee or the holder in due course of the cheque has made a
demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within 30 days of the
receipt of information by him from the bank regarding the return of
the cheque as unpaid; and
The drawer of such cheque fails to make payment of the said
amount of money to the payee or the holder in due course of the
cheque within 15 days of the receipt of the said notice.
13.It becomes imperative to mention that Section 139 of NI Act provides a
statutory presumption in favour of the drawee that the cheque was issued to
him in discharge of a debt or other liability of a legally enforceable nature.
Also, the said provision must be read along with Section 118 of NI Act
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Digitally signed
by DIVYA
DIVYA SINGH
Date:
SINGH 2025.03.10
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which states that every negotiable instrument is presumed to have been
drawn and accepted for consideration. That said, what follows is that trial
under section 138 NI Act is structured on the premise of the reverse onus of
proof theory since the offence is a document based technical one. The
journey of evidence begins not from the home of the prosecution story but
from the point of the defence. The presumptions carved out in favour of the
complainant are those of law and not those of facts.
14.In this regard, reliance can be placed on K. N. Beena v. Muniyappan (AIR
2001 SC 2895), it was observed as follows: –
“Thus, in complaints under Section 138, the Court has to presume
that the cheque had been issued for a debt or liability. This
presumption is rebuttable. However, the burden of proving that a
cheque had not been issued for a debt or liability is on the accused.
This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee
reported in (2001) 6 SCC 16 has also taken an identical view.”
15.The Hon’ble Hon’ble Supreme Court, in the case of Hiten P. Dalal vs.
Bratindranath Banerjee (AIR 2001 SC 3897), observed as follows:
“Because both Sections 138 and 139 require that the Court “shall
presume” the liability of the drawer of the cheque for the amounts
for which the cheque are drawn, as noted in State of Madras vs. A.
Vaidyanatha Iyer, (AIR 1958 SC 61), it is obligatory on the Court
to raise this presumption in every case where the factual basis for
the raising of the presumption had been established. It introduces
an exception to the general rule as to the burden of proof in
criminal cases and shifts the onus on to the accused (ibid).”
16.Further, it is a settled position that when an accused has to rebut the
presumption under Section 139 NI Act, the standard of proof for doing so is
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Digitally
signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
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that of “preponderance of probabilities”. As held in Rangappa vs. Srimohan
[(2010) 11 SCC 441], the Hon’ble Hon’ble Supreme Court has observed:
“Keeping this in view, it is a settled position that 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.
As clarified in the citations, 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.”
17.Thus, as laid down in catena of decisions it is an established law that onus
lies upon the accused to rebut the presumption and to establish that cheque
in question was not given in respect of any debt or liability, with the
standard of proof being preponderance of probability. Therefore, it becomes
critical to examine whether the explanation of the accused coupled with the
evidence on record is sufficient to dislodge the presumption envisaged by
Section 118 & 139 of NI Act.
18.Being cumulative, it goes without saying that it is only when all the
aforementioned ingredients are satisfied that the person who had drawn the
cheque can be deemed to have committed an offence u/s 138 NI Act. This
criminal liability can be attached by proving each of the elements of the
section under which liability is sought to be enforced. I shall now go on to
appreciate the evidence, documentary or oral, in the light of how
compellingly it satisfies each of such ingredient, if it all.
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Digitally
signed by
DIVYA
DIVYA SINGH
SINGH Date:
2025.03.10
13:03:30
+0530
Appreciation of Evidence and finding:
19. In the present matter, the cheque was returned unpaid for the reason ‘ Payment
Stopped by drawer’ on 09.01.2018. The record, complainant has brought to
substantiate his point are the cheque dated 12.12.2017, as Ex. CW1/A, cheque
return memo dated 09.01.2018 Ex. CW1/B. The legal demand notice Ex. CW1/C,
Postal receipt and Tracking report Ex. CW1/D and CW1/E. Let us examine the
potency of the defences taken by the accused one at a time.
20. In the facts of the present case, the signature on the cheque in question have not
been denied by accused and accordingly, this court raises presumption under
section 118(a) r/w section 139 of NI Act that the cheque in question were issued by
accused to the complainant in discharge of legally enforceable debt or liability and
it is now on the accused to raise a probable defence and to prove his case on the
basis of preponderance of probabilities.
In this regard the following judgments can be relied upon:
21. In the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan [1999(4) RCR
(Criminal) 309], it has been held by the Hon’ble Supreme Court as under:
“As the signature in the cheque is admitted to be that of the
accused, the presumption envisaged in Section 118 of the NI Act
can legally be inferred that the cheque was made or drawn for
consideration on the date which the cheque bears. Section 139 of
the Act enjoins on the court to presume that the holder of the
cheque received it for the discharge of any debt or liability.”
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signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
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22. Also, in the case of M/S Kalamani Tex vs P. Balasubramanian Criminal
Appeal No. 123 of 2021, the Hon’ble Supreme Court has held: The Statute
mandates that once the signature(s) of an accused on the cheque/negotiable
instrument are established, then the ‘reverse onus’ clause become operative.
23. To rebut the presumptions raised in favour of complainant, the defences taken
by the accused are elaborately discussed hereunder:
Firstly, accused in his defence has stated that he has not taken any
loan from the complainant and the cheque in question was issued in blank signed
manner for the purpose of purchasing a property which was eventually not
purchased.
Secondly, the complainant did not have the financial capacity to
advance the alleged loan to the tune of Rs. 2 crores and that the alleged loan
amount was unaccounted as it was not shown in the ITR by the complainant.
Thirdly, As per the averments made in the complaint the cheque in
question is issued for a time barred debt and the cheque issued for a time barred
debt does not attract penalty u/s 138 of NI Act.
24. The accused in his notice framed U/s 251 Cr.P.C on 4th of July 2018 has stated
that he has not taken any loan from the complainant and the cheque in question
was given to the complainant for the purchase of a property which was eventually
not purchased. He further stated that he knows the complainant as they were
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signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
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engaged in the same business of dealing with the property and that the cheque in
question has been misused by the complainant.
25. In order to prove his defence version, he has cross examined the complainant
CW1 who has denied the suggestions put to him that the cheque in question was
given to him for the purpose of certain property transaction which was never
materialised.
26. Thereafter, accused in his statement under Section 313 of CrPC has taken a
completely new defence, that he does not have any personal dealing with the
complainant, he does not owe anything to the complainant, his brother Parmod
Garg had some property dealings with the complainant due to which complainant
used to visit the office of his brother situated in Dwarka where accused used to
keep his blank signed cheques and complainant procured the same without his
knowledge and has misused the cheque. The accused has failed to present any
substantial evidence to support his claims.
27. At this stage, court deems it fit to place reliance on the case of M/S Kumar
Exports vs M/S Sharma Carpets, Special Leave Petition (Criminal) No. 955 of
2007), wherein it was stated that, “When a presumption is rebuttable, it only points
out that the party on whom lies the duty of going forward with evidence, on the
fact presumed and when that party has produced evidence fairly and reasonably
tending to show that the real fact is not as presumed, the purpose of the
presumption is over.”
It was further held that the accused in a trial under Section 138 of
the Act has two options. He can either show that consideration and
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signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
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debt did not exist or that under the particular circumstances of the
case the non-existence of consideration and debt is so probable that
a prudent man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions an accused is not
expected to prove his defence beyond reasonable doubt as is
expected of the complainant in a criminal trial. The accused may
adduce direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or liability
to be discharged by him. However, the court need not insist in
every case that the accused should disprove the non- existence of
consideration and debt by leading direct evidence because the
existence of negative evidence is neither possible nor
contemplated.
28. At the same time, it is clear that bare denial of the passing of the consideration
and existence of debt, apparently would not serve the purpose of the accused.
Something which is probable has to be brought on record for getting the burden of
proof shifted to the complainant. To disprove the presumptions, the accused should
bring on record such facts and circumstances, upon consideration of which, the
court may either believe that the consideration and debt did not exist, or their non-
existence was so probable that a prudent man would under the circumstances of the
case, act upon the plea that they did not exist.
29. It will be utter disregard to the established principle of evidence, if this court
accepts the oral explanation or answer given by the accused during notice framing,
at the stage of recording of statement under section 313 Crpc or submission made
at the time of final arguments, devoid of any documentary evidence to concretize
the proof. The story of the accused, in the absence of any credible evidence, cannot
be taken as gospel truth.
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Digitally
signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
13:03:57
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30. At this juncture, it is pertinent to note that the Hon’ble High Court of Delhi in
V.S. Yadav v. Reena CRL. A. NO. 1136 Of 2010 wherein it was held that:
“If mere statement under Section 313 Cr. P.C. or under Section
281 Cr. P.C. of accused of pleading not guilty was sufficient to
rebut the entire evidence produced by the complainant/
prosecution, then every accused has to be acquitted. But, it is not
the law. In order to rebut the presumption under Section 139 of
N.I. Act, the accused, by cogent evidence, has to prove the
circumstance under which cheques were issued.”
31. Also, as observed by the Hon’ble Supreme Court of India in Sumeti Vij vs
Paramount Tec Feb Industries (CRA 292/2021) LL 2021 SC 149,
” The statement of the accused recorded under 313 of the Code is
not a substantive evidence of defence, but only an opportunity to
the accused to explain the incriminating circumstance appearing in
the prosecution case of the accused”.
32. Further the ld counsel for the accused has stated that the complainant has
misused the blank signed security cheques for agreeing to sell the property. The
position with respect to security cheque is already well settled and reliance can be
placed on judgment as discussed by Hon’ble High Court of Delhi in the case of
Credential Leasing & Credits Ltd. Vs. Shruti Investments & Anr. (2015) 3 BC 691
wherein Hon’ble High Court has relied upon Suresh Chandra Goyal vs Amit
Singhal, Crl.. Appeal Nos. 601/2015 decided on 14.05.2015, holding that:
“There is no magic in the word “security cheque”, such that, the
moment the accused claims that the dishonoured cheque (in respect
whereof a complaint under Section 138 of the Act is preferred) was
given as a “security cheque”, the Magistrate would acquit the
accused. The expression “security cheque” is not a statutorily
defined expression in the NI Act. The NI Act does not per se carve
out an exception in respect of a ‘security cheque’ to say that a
complaint in respect of such a cheque would not be maintainable.
There can be mirade situations in which the cheque issued by theCC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally signed
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by DIVYA
DIVYA SINGH
Date:
SINGH 2025.03.10
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accused may be called as security cheque, or may have been issued
by way of a security,i.e. to provide an assurance or comfort to the
drawee, that in case of failure of the primary consideration on the
due date, or on the happening (or not happening) of a contingency,
the security may be enforced. While in some situations, the
dishonor of such a cheque may attract the penal provisions
contained in Section 138 of the Act, in others it may not.”
33. Further, accused in his defence has examined his brother Pramod Garg as
DW1. DW1 Sh. Pramod Garg stated in his examination in chief that, he knows
complainant since 1995-96 as they are doing same business. In 2012, he was
having a plot in Sec-23 Pocket 9, Plot no. 60 Dwarka in the name of Gupta
Property Pvt. Ltd., registered under Gupta Property Pvt. Ltd., where his brother-in-
law namely, Sh. Subhash Gupta, was a director. The plot was sold to the
complainant, he received Rs. 1.90 Crores from the complainant in favour of Gupta
Property Dealers Pvt. Ltd. from the account of Yash Mittal. As per the agreement
between him and complainant the title documents of the said plot were handed
over to the complainant, but the documents were not executed in favour of the
complainant at that time. It was agreed that the documents will be executed in
favour of prospective buyer afterwards. As per the witness it was first deal between
the complainant and Gupta properties, complainant asked for a security cheque
from Gupta properties, but they denied to issue any cheque. So, complainant asked
for a security cheque from his account, he was having blank signed cheques of his
brothers namely Rajesh Garg and Pawan lying with him, which he handed over to
the complainant in place of his own cheques and it is alleged that complainant
misused the said cheques. He also produced a conveyance deed in favour of Gupta
properties Ex. DW1/1 and documents executed by Gupta Properties Pvt. Ltd in
favour of Yash Mittal Ex. DW1/2.
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signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
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34. Although, the documents brought on record by the DW-1 Pramod Garg proves
that some transaction of Rs. 1.9 crores for property in Sec-23 Pocket 9, Plot no. 60
Dwarka has taken place between Yash Mittal and Gupta Properties, but nothing
has come on record to prove that the said transaction was between the complainant
and DW-1 Sh. Parmod Garg. On contrary, DW-1 has admitted during his cross-
examination that he is not part of Gupta Property Pvt. Ltd. in any sense. No
evidence or witness is brought on record to prove that the said property was held
by DW-1 in the name of Gupta Property Pvt. Ltd and the alleged transaction has
taken place between complainant and DW-1. In the present circumstances, it is
hard to believe that a transaction has actually taken place between complainant and
Sh. Pramod Garg for which he was asked by complainant to issue a security
cheque in his favour. Further, there is no explanation on record explaining as to
why the accused used to keep blank signed cheques in the office of his brother
DW-1 Pramod Garg and why the defence witness handed over the blank signed
cheques of the accused instead issuing his own cheques. The whole story put
forward by the DW-1 is having many unexplained gaps, hence rendering it
unreliable due to the lack of corroborating evidence.
35. Further, the witness brought on record by the accused DW1 himself has stated
that the property in Sec-23 Pocket 9, Plot no. 60 Dwarka was transferred in the
name of son of complainant, by executing a sale deed dated August 18, 2023,
registered on August 25, 2023, for which conveyance deed dated 05.01.2012, in
lieu of the settlement and for the consideration of Rs. 1.9 crores already paid in
aforementioned manner stated by the DW1 in his examination in chief. Although it
has already been observed that the story put forward by DW1 is unreliable but his
statement corroborates one fact that the complainant is having capacity to arrange
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DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
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and make payments in crores as the property which is alleged to be purchased by
the complainant in the name of his son is admittedly having value of Rs. 1.9 crores.
36. Furthermore, throughout the course of trial, the accused did not whisper
anything about the recourse he took to procure back the cheque handed over to the
complainant or as alleged misused by the complainant. Curiously enough, accused
has not disputed the documents placed on record by the complainant in the present
matter and the same remains uncontroverted. There is no presumption of law that
explanation given by the accused is truthful. Accused has not placed any material
before the court to rebut the statutory presumption.
37. Even if for the sake of arguments, if one were to assume that cheque in
question was in fact, issued for the purchase of property as stated by the accused in
the notice framed under section 251 Crpc, then a pertinent question arises as to
why the accused person did not ask for the return of the cheque when the deal was
not materialised and if the cheque was procured by the complainant from the office
of the brother of the accused then also a question arises that why the accused did
not file any complaint either with his bank or with the police in order to ensure that
the cheque was not misused. The failure to lodge or file any complaint or to ask for
the return of the cheque creates doubt around the story of defence. An adverse
inference can safely be drawn against the accused who has otherwise failed to
adduce any credible evidence to show that he indeed did everything as prudent
man to ensure that cheque with his signature is not misused. Further it has already
been observed that the version of DW1 that cheque in question was handed over as
blank signed security cheque by him to the complainant is not reliable. Therefore,
it is safe to say that accused has failed miserably to show or establish
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signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
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circumstances under which the cheque ultimately came into the possession of the
complainant.
38. Therefore, in view of the above discussion the defence taken by the accused
that the cheque was not issued by him for the purpose alleged by the complainant
and that the complainant has misused the cheque is without any force.
39. Another defence taken by the accused is that the complainant did not have the
financial capacity to advance the alleged loan to the tune of Rs. 2 crores and the
amount was unaccounted as the loan amount has not been mentioned in the ITR
filed by the complainant. The ld. Counsel for the accused has also argued that the
alleged loan was advanced in cash and no agreement/ document was executed and
also no receipts were taken from the accused. To prove this version the accused has
cross examined the complainant CW1 and has highlighted the portion of the cross
examination where in the complainant has stated that his income in the financial
year 2010 to 2011 as per the ITR filed by the complainant was approximately Rs
1,25,000 and that his income in the year 2011 to 2012 was approximately Rs.
3,17,000. In this regard learned counsel for the accused has also given a suggestion
that the complainant has not shown the advancement of loan of the rupees 2 crores
to the accused in his ITR.
40. Further, the ld. counsel for accused has relied on the following judgements:
Basalingappa Versus Mudibasappa, Supreme Court Of India, 2019(2) LRC
315(SC), wherein it was observed “Non-production of any document by the
complainant to show his earnings, and that he did not execute any document beforeCC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 16/32
Digitally signedDIVYA by DIVYA
SINGHSINGH Date:
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lending such huge amount of 6 lacs to the accused. Such circumstance raises
serious doubts on the transaction as claimed by the complainant.”
41. In the case of Col. R.P. Mendiratta v. Sandeep Choudhary, CRL.A.1125/2013,
the ld counsel for the accused has relied on para 20, “As per Section 269(ss) of
Income Tax Act, any loan to be advanced by one person to another for more than
Rs. 20,000/- must be by way of cheque and the plea of giving such a huge amount
of Rs. 44 lakhs in cash does not inspire confidence, more particularly; in view of
the fact that the bank statement of the complainant does not reflect that he was
having sufficient funds”.
42. In Sanjay Mishra v. Ms. Kanishka Kapoor, (2009) 4 Mah LJ 155, it was
observed that since the entire amount was paid in cash and the same was not
disclosed in the Income tax return. Thus, the alleged debt cannot be said to be a
legally recoverable debt.
43. In Vikas Gopi Bhagat V. Shivdas Pednekar and Another, (2019) 3 AIR Bom R
(Cri) 97, an has stated that it was observed by the Hon’ble Court that the
complainant had not shown the transaction in issue of 4,00,000/- advanced to the
accused in his Income Tax Returns 2010-2012. It is further admitted by the
complainant that he did not inform his Chartered Accountant about the present
transaction. He even was unable to tell the exact amount of turnover for the year
2010. According to him, he will have to consult his Chartered Accountant. He
states that since cash was lying in his hands, there was no need to withdraw any
amount from the Bank. The court in the above facts held in para 12 that the
complainant/appellant, has failed to discharge the burden of proof that it was a
legally enforceable debt or liability. The cash of Rs. 4,00,000/- was unaccounted,
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in the sense, no Income Tax Returns have been tendered by the
complainant/appellant.
44. Ld counsel for the accused has further placed reliance on R. Narender v.
Yakamma Keloth or Kalyan, (2021) 4 RCR (Cri) 844, K. Subramani v. K.
Damodar Naidu, (2015) 1 SCC 99, John K. Abraham v. Simon C. Abraham,
(2014) 2 SCC 236, wherein the courts has held that the complainant despite being
an income tax assesseeZz has failed to show the alleged debt/liability in ITR and in
absence of any documentary proof, the said debt or liability cannot be said to be a
legally recoverable liability within the meaning Section 138 of the Negotiable
Instruments Act income tax assessee has failed to show the alleged debt/liability in
ITR and in absence of any documentary proof, the said debt or liability cannot be
said to be a legally recoverable liability within the meaning Section 138 of the
Negotiable Instruments Act.
45. The complainant in this regard has relied on the following judgements:
In Lekh Raj Sharma vs Yash Pal Gupta on 30 June, 2015 decided
by the hon’ble Delhi High Court and has highlighted para 21. The
finding that, as the amount of loan disbursed to the respondent was
not shown in the balance sheet and ITR, the appellant could not be
said to have proved its case beyond reasonable doubt, is also
erroneous……….ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao,
2013 CRIJ (NOC) 572 Bombay (Decided on 19.07.2013), wherein
the Court observed:
“………… If some amounts are not accounted for, the person would
be visited with the penalty or at times even prosecution under the
Income Tax Act, but it does not mean that the borrower can refuse
to pay the amount which he has borrowed simply, because there is
some infraction of the provisions of the Income Tax Act. Infraction
of provisions of Income Tax Act would be a matter between the
revenue and the defaulter and advantage thereof cannot be taken by
the borrower. In my humble view, to say that an amount notCC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally
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disclosed in the income tax returns becomes irrecoverable would
itself defeat the provisions of Section 138 of the Negotiable
Instruments Act. Apart from the purpose of this Act, which has
been outlined by the learned Single Judge in Shri Deelip Apte
(supra) as well as in Sanjay Mishra (supra), it ought to be seen that
the moment a person seeks to recover through a cheque an amount
advanced in cash it gets amounted for in the system and the
revenue authorities can keep a track of that and if necessary tax the
person. To brand an amount which is not shown in Income Tax
Act as unaccounted money would be too farfetched and, therefore,
I am in respectful disagreement with the observations in Sanjay
Mishra (supra), which in fact amounts to reading an additional
requirement in Section 138 of the Negotiable Instruments Act, and
legislating that such amounts becomes irrecoverable. At the cost of
repetition, for saying that an amount not disclosed in income tax
returns cannot be legally recoverable liability, some provisions of
law to that effect would have to be shown. Such provision was not
noticed by me and even the learned Counsel for the respondent
could not show any such provision to me.” (Emphasis Supplied)
46. In Tedhi Singh vs Narayan Dass Mahant on 7 March, 2022 decided by the
Hon’ble Supreme Court of India it was observed: At the time, when the
complainant gives his evidence, unless a case is set up in the reply notice to the
statutory notice sent, that the complainant did not have the wherewithal, it cannot
be expected of the complainant to initially lead evidence to show that he had the
financial capacity. It is also open to him to establish the very same aspect by
pointing to the materials produced by the complainant himself. He can further,
more importantly, achieve this result through the cross examination of the
witnesses of the complainant. Ultimately, it becomes the duty of the Courts to
consider carefully and appreciate the totality of the evidence and then come to a
conclusion whether in the given case, the accused has shown that the case of the
complainant is in peril for the reason that the accused has established a probable
defence. In the reply notice the appellant has not set up any case that the
respondent did not have the financial capacity to advance the loan. In fact even we
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notice that there is no reference to the loss of the cheque book or signed cheque
leaf. No complaint was given of the loss of the cheque book or the signed cheque
leaf either to the police or to the bank.
47. Rohitbhai J Patel vs The State of Gujarat on 15 March, 2019 decided by the
Hon’ble Supreme Court of India it was observed:
The Hon’ble Apex Court observed that so far, the question of
existence of basic ingredients for drawing of presumption under
Sections 118 and 139 the NI Act is concerned, the accused could
not deny his signature on the cheques in question that had been
drawn in favour of the complainant on a bank account maintained
by the accused for a sum of Rs. 3 lakhs each. The said cheques
were presented to the Bank concerned within the period of their
validity and were returned unpaid for the reason of either the
balance being insufficient or the account being closed. Therefore,
the court held that all the basic ingredients of Section 138 as also
of Sections 118 and 139 are apparent on the face of the record. It
was further held 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.
48. In the present matter the complainant has denied all the suggestions put forth
by the accused and has stated in his cross examination on 11.07.2019 that he has
arranged the amount of Rs. 2 crores from the sale of property, from his wife, son,
from the sale of property of his son, the rental income of Rs. 22 lakhs received by
his son and from the Commission received by trading in real estate. The
complainant has also stated that he has received an amount of rupees 6-8 lacs
approximately as loan from his wife in the financial year 2012-2013. it is pertinent
to mention here that the cross examination of complainant was deferred for want of
these documents at request of the accused on 11.07.2019. The ITR of HUF and the
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Copy of the Sale documents relating to the property of the complainant sold were
produced by the complainant on the next date of hearing i.e. 14.08.2019 and on the
said date the matter was adjourned as the accused sought some time to go through
the documents. However, on the next date of hearing the accused chose not to
confront the complainant with these documents for the reasons best known to him
and as such no questions were asked regarding the said documents, herein an
adverse inference can be drawn against the accused for not confronting the
complainant with the said documents to prove his defence that the complainant
does not have the financial capacity to lend the loan to the tune of Rs. 2 Crores.
49. Before evaluating the contention of the counsels regarding the financial
capacity, it is pertinent to first discuss the position of law in relation to financial
capacity. In the case of M/S. Aps Forex Services Pvt. Ltd. vs Shakti International
Fashion 2020 SCC OnLine SC 193, it was observed by the Hon’ble Apex Court,
inter alia, as under: –
“20…In the present case, the accused never questioned the financial
capacity of the complainant. We are of the view that whenever the
accused has questioned the financial capacity of the complainant in
support of his probable defence, despite the presumption under
Section 139 of the N.I. Act about the presumption of legally
enforceable debt and such presumption is rebuttable, thereafter the
onus shifts again on the complainant to prove his financial capacity
and at that stage the complainant is required to lead the evidence to
prove his financial capacity, more particularly when it is a case of
giving loan by cash and thereafter issuance of a cheque. That is not
a case here.”
50. Similar views were expressed in Basalingappa vs.Mudibasappa, (2019) 5 SCC
418, wherein it was observed as under: –
“30. We are of the view that when evidence was led before the
Court to indicate that apart from loan of Rs.6 lakhs given to theCC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 21/32
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accused, within 02 years, amount of Rs.18 lakhs have been given
out by the complainant and his financial capacity being questioned,
it was incumbent on the complainant to have explained his
financial capacity. Court cannot insist on a person to lead negative
evidence….” (emphasis supplied).
51. The crux of the aforesaid decisions of the Hon’ble Supreme Court has been
summarized by the Hon’ble Kerala High Court in Sunitha vs Sheela Antony, 2020
SCC OnLine Ker 1750. In my view, the crux of the referred to above is the
following:
“The complainant has no obligation, in all cases under Section 138
of the Act, to prove his financial capacity. But, when the case of
the complainant is that he lent money to the accused by cash and
that the accused issued the cheque in discharge of the liability, and
if the accused challenges the financial capacity of the complainant
to advance the money, despite the presumption under Section 139
of the Act, the complainant has the obligation to prove his financial
capacity or the source of the money allegedly lent by him to the
accused. The complainant has no initial burden to prove his
financial capacity or the source of the money. The obligation in
that regard would arise only when his capacity or capability to
advance the money is challenged by the accused”.
52. Therefore, the cases in which the underlying debt, transaction or loan is
advanced by way of cash, the accused can raise a probable defence by questioning
the financial capacity of the complainant and once the said question is raised, the
onus shifts on the complainant to prove his financial capacity. Further it is also a
settled law that the admitted facts need not be proved.
53. In the present case, complainant denied all the suggestions put to him by the
counsel for accused that he had no financial capacity to lend the money to the
accused.
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54. It is pertinent form the record that at the time of framing of notice under section
251 Crpc the accused has stated that complainant is in the business of property
dealing. Further in his statement under section 313 Crpc accused has again stated
that complainant is in business of property dealing. Further the defence witness Sh.
Parmod Grag who is also the brother of the accused as mentioned earlier has
admitted in his chief examination that the complainant is doing property dealing
business. Further in his chief examination he implicitly admits that the complainant
has the capacity to arrange or to make payments in crores as he has stated that in
the year 2012 a plot was sold to the complainant, he received a cheque amounting
to Rs. 1.90 crores from the complainant in favour of Gupta Property Dealers Pvt.
Ltd. Further it has also been admitted by the defence witness that the deal of
property no 60 sector 23 pocket 9 Dwarka was also done through him and it was
sold to Sh. Subhash Chandra Bhardwaj. It clearly shows that the complainant had
requisite funds in the year 2012. Further in the statement of the affairs dated 31st
of March 2013 Mark X(colly) filed by the complainant wherein the complainant
has mentioned his current assets amounting to Rs 2 crores in his favour and against
Mr Pawan Garg. This document has not been challenged by the accused. Although
not conclusive in deciding the present matter and the court is not forming its
decision based on this document solely but it is corroborating the version of the
complainant and putting holes in the defence of the accused. Therefore, it is
evident that accused on one hand is stating that the complainant did not have
requisite funds to advance the loan in the year 2012 and on the other hand he is
stating that his brother had financial dealings in crores with the complainant for the
sale and purchase of the properties. The accused cannot be allowed to blow hot and
cold at the same time.
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55. Also, the accused has cross examined the complainant at length on multiple
dates and the complainant has sufficiently explained his financial capacity.
Although the accused has summoned DW2, notice server, Income tax department
who has placed on record the ITRs and acknowledgement for the assessment year
2013 to 2014 of the complainant however, same pertains to year 2013 to 2014 and
does not help with the case of the accused to establish that the complainant was not
having the capacity to lend the alleged loan in the year 2012.
56. The accused has failed to bring out any contradiction or any inconsistencies in
the cross examination of the complainant which questions his financial ability to
lend the amount in question.
57. The defence has failed to probablise the lack of financial capacity of the
complainant to advance the loan in question to the accused. Reliance can also be
based on the judgement of the Hon’ble Delhi High Court in a case titled as Sanjay
Arora vs Monika Singh Crl. A. 98/2017 wherein it has been held that:
“Mere admission of the complainant that he was earning only Rs.
12,000/- per month from his small business or his failure to file
income tax returns, or his omission to produce the bank passbook
or to examine Chhotu as a witness in corroboration, are
inconsequential. In order to rebut the statutory presumption, it was
the burden of the respondent to prove the facts that she had
pleaded in answer to the notice under section 251 Cr.P.C. No
material in support of such plea having come on record, the
statutory presumption under section 139 Negotiable Instruments
Act in the case at hand has not been rebutted.”
58. The accused has challenged the financial capacity to lend the amount in
question but not sufficiently enough to raise a doubt in his favour. For the reasons
mentioned in the above discussion the defense of the accused with regard to the
financial capacity of the complainant is untenable.
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59. Furthermore, the counsel for accused has contended that complainant stated in
his cross examination that he did not file the ITR in the year in which the loan was
advanced, yet such factor alone cannot be enslaving enough to shroud the
prosecution story with doubt. The averment of the counsel for accused regarding
non mentioning of loan amount in ITR or not filing the ITR to doubt the case of
complainant do not inspire confidence as culpability of offence under section 138
NI Act will not freeze for the reason that there is violation of section 269 of
Income Tax Act and the same does not prevent the operation of the statutory
presumption of section 139 of NI Act.
60. The prosecution u/s 138 of NI Act cannot be dismissed or stalled for non-
compliance of Section 269 SS of the Income Tax Act. Such violation may give rise
to an independent criminal offence, but on account of violation of the said
provision, the prosecution of the accused for the alleged dishonour of cheque u/s
138 NI Act does not become bad in law.
61. Another defence taken by the accused is that cheque in question is issued for a
time barred debt and the cheque issued for a time barred debt does not attract
penalty u/s 138 of NI Act as the cheque was issued in the year 2017 and loan was
advanced in 2012. Ld counsel has stated during the course of the final arguments
that as per section 18 of the Limitation Act, 1963 and Section 25(3) of the Indian
Contract Act, 1879, with regard to payment of time-barred debt, there must be a
distinct promise to pay either wholly or part of the same, in writing either signed
by the person concerned or by his duly appointed agent before the limitation period
of 3 years from the advancement of the loan. In absence of any such
acknowledgment in the present case, the debt in issue is barred by limitation and
thus is not recoverable.
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62. Ld counsel for the accused has relied on the following judgements in this
regard:
In A.V. Murthy vs. B.S. Nagabasavanna (2002) 2 SCC 642: The
Hon’ble Supreme Court held that a cheque issued for a time-barred
debt can be valid if it is accompanied by a fresh promise to pay
under Section 25(3) of the Indian Contract Act. However, if there
is no such promise, the debt remains unenforceable.
63. Hon’ble Supreme Court in S. Natarajan vs. Sama Dharman (2021) 6 SCC 413:
it was clarified that the question of whether a debt is time-barred is a mixed
question of law and fact that must be determined based on the evidence presented
during the trial. Also in the judgement of Yogesh Jain vs. Sumesh Chadha (2022):
it was held that the existence of a legally enforceable debt is crucial to establishing
liability under Section 138 of the NI Act. The mere issuance of a cheque does not
revive a time-barred debt unless there is evidence of a fresh promise to pay.
64. The ld. counsel for the accused has also relied on SASSERIYIL JOSEPH V.
DEVASSIA, wherein it has been held by the Supreme Court that, a cheque which
has been issued by the accused for a due which was barred by limitation, the penal
provision under Section 138 of the NI Act is not attracted. And has stated that,
Section 138 is attracted only if the cheque is issued for the discharge of a legally
enforceable debt or other liability.
65. In Amrit Sandhu Costar vs State and Anr, (2022) 294 DLT 97, The court in
para 23 and para 26 held that “During the period with effect from 2011 till
06.03.2017 i.e. day on which cheque was issued, there is no acknowledgement on
behalf of either the petitioner or Jasween Sandhu within meaning of section 18 of
the Limitation Act. The accused cannot be prosecuted for offence under section
138 of the NI Act, 1881 for issuance of cheque for time barred liability or debt.”
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66. C. Ramesh vs S. Sakhtivel, (2023) 2 MWN (Cri) DCC 40, wherein the Hon’ble
court in para 15 observed “Thus, by the time the cheque was issued, the debt was
barred by limitation, since there was no valid acknowledgement of the liability
within the period of limitation, the accused cannot be convicted under Section 138
of the Negotiable Instruments Act, since the time-barred debt cannot be construed
as a legally enforceable debt.”
67. In the case of The Bidar Urban Co-Operative Bank Ltd. v. Girish, ILR
2021 Kar 2437, the court in para 39 observed “the penal provision of Section 138
of the N.I. Act is applicable only to the cheques which are issued for the discharge
in whole or in part, of any debt or other liability, which according to Explanation
must be a legally enforceable debt or other liability. A cheque given in discharge
of a time barred debt will not constitute an unconditional undertaking or promise
in writing either expressly or impliedly so as to attract the criminal offence under
Section 138 of N.I Act.”
68. Jage Ram Karan Singh vs State, (2019) 265 DLT 374, the goods were sold in
2005, the cause of action to enforce the liability against the respondent No. 2
remained in existence up to July 2008, whereas the cheque in question had been
issued on 12.06.2009. The court therefore in para 33 held that “the alleged
responsibility of the respondent No. 2, if any, had already become time-barred as
on the date of the issuance of cheque and, therefore, the same cannot be said to be
in discharge of a legally enforceable debt or liability.”
69. Per contra, complainant has relied upon the observations of Hon’ble High
Court of Delhi in case titled as Rajeev Kumar Vs. State NCT of Delhi on 11
September, 2024 wherein it was held that “32. Therefore, a priori the cheque itselfCC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 27/32
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becomes a promise made in writing signed by the person to pay wholly or in part
debt, which otherwise, may not be payable due to law of limitation. Per section
25(3) of the ICA, this would be an agreement in itself. Section 139 presumption
under the NI Act which presumes that the cheque is in discharge in whole or part
liability of any debt or liability would therefore, actually come into play. The
contrary position of the accused that no debt or liability subsists having
extinguished by the law of limitation, would be then unmerited and untenable,
since a fresh agreement comes into operation by the tendering of the cheque. By
issuing the cheque, the drawer is acknowledging a legally enforceable liability and
he ought not be entitled to claim that the debt had become barred by limitation.”
70. In the present matter, it has to be determined whether the act of issuing the
cheque can be considered a fresh promise to pay, thus reviving the debt and
making it enforceable? Herein reference to Section 25(3) of Indian Contract Act is
relevant which provides that any agreement without consideration is a valid
agreement if it is made in writing and signed by the person or his agent for the
payment of a debt which might be a time barred debt.
71. At this stage the judgement “Rajeev Kumar vs. The State of Delhi & Anr.
(2024) CRL.L.P. 212/2021 & CRL.M.A. 20429/2021 of the hon’ble high court is
relied on. Hon’ble High Court of Delhi has held that furnishing of a cheque of a
time-barred debt effectively resurrects the debt itself by a fresh agreement through
the deeming provision under section 25(3) of ICA. Hon’ble High Court of Delhi
has held as following:
“The furnishing of a cheque of a time-barred debt effectively
resurrects the debt itself by a fresh agreement through the deeming
provision under section 25(3) of ICA. The original debt therefore,CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 28/32
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through section 25(3) of the ICA, becomes legally enforceable to
the extent of the amount the cheque has been given. This resonates
also with practical considerations. Persons who have chosen to
escape liability, can draw a cheque, in order to clear an earlier debt
upon persuasion by the creditor. By the act of drawing a cheque,
the promisor i.e. the drawer, is effectively stating that he has a
liability to pay the drawee. Drawing of the cheque in itself, is
acknowledgment of a debt or liability. It is the resurrection or the
revival of the prior debt which would trigger the provisions under
section 138 of NI Act. To deny a complainant/drawee of invoking
the penal provisions under section 138 of NI Act, despite the
categorical premise of section 25(3) of the Indian Contract Act
recognizing a fresh agreement to pay, would be an unfortunate
disentitlement.”
72. Thus, the issuance of the cheque by the accused effectively constitutes a fresh
promise to pay the previously time-barred debt, making it legally enforceable. The
issuance of the cheque is considered an acknowledgment of the debt, invoking
Section 139 of the NI Act, which presumes the cheque was issued for a legally
enforceable debt unless proven otherwise.
73. Further, in present case, it is not in dispute that the cheque in question was
signed by the accused. Thus, the execution of cheque is proved. Therefore, the
court is in agreement with the submissions made by the learned counsel for the
complainant as the judgements referred by the accused are based on the
circumstances on which the Hon’ble courts have passed their observations with
regard to the law under section 18 of the limitation act, however, the judgement on
which the complainant has placed his reliance is interpreting the scope of section
25 (3) of Indian contract act with regard to the cheque issued by the drawer after
the expiry of the limitation period. In view of the above discussion and the
observation of honourable High Court of Delhi in the case of as Rajeev Kumar Vs.
State NCT of Delhi the court is of the opinion that in the presence circumstances,
the defence of time barred debt by the accused holds no merits.
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74. Further, the legal notice was served by the complainant upon the accused on
the address of the accused. The accused stated during framing of u/s 251 Cr.PC
that he has not received the legal demand notice.
75. Perusal of the notice u/s 251 Cr.PC and statement u/s 313 Cr.PC and bail bonds
furnished by the accused reveals that address as mentioned by the accused on both
is the same address M-98, Guru Hari Krishan Nagar, Paschim Vihar, Delhi upon
which the legal demand notice that was sent by the complainant. Therefore, a
presumption of deemed service is drawn under section 27 General Clauses Act
which provides that where notice is sent to the correct address, the same shall be
presumed to have been duly served.
76. Law with respect to the delivery of legal notice by post and the presumption
with respect to the same has been succinctly put forth by the Hon’ble Supreme
Court in C C Alavi Haji vs Palapetty Muhammed (2007) 6 SCC 555. Para 13 of the
judgment is worth mentioning as under:
“According to Section 114 of the Act, read with Illustration (f)
thereunder, when it appears to the Court that the common course of
business renders it probable that a thing would happen, the Court
may draw presumption that the thing would have happened, unless
there are circumstances in a particular case to show that the
common course of business was not followed. Thus, Section 114
enables the Court to presume the existence of any fact which it
thinks likely to have happened, regard being had to the common
course of natural events, human conduct and public and private
business in their relation to the facts of the particular case.
Consequently, the court can presume that the common course of
business has been followed in particular cases. When applied to
communications sent by post, Section 114 enables the Court to
presume that in the common course of natural events, the
communication would have been delivered at the address of the
addressee. But the presumption that is raised under Section 27 of
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114 of Evidence Act refers to a general presumption, Section 27
refers to a specific presumption.
“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 complaint under Section 138 of the Act, make the
payment of the cheque amount and submit to the court that he had
made the payment within 15 days of the receipt of summons (by
receiving a copy of complaint with the summons) and, therefore,
the complainant is liable to be rejected. A person who does not pay
within 15 days of receipt of summons from the court alongwith the
copy of complaint Under Section 138 of the Act, cannot obviously
contend that there was no proper service of notice as required
under Section 138, by ignoring statutory presumption to the
contrary Under Section 27 of General Clauses Act and 114 of the
Evidence Act.”
77. Thus, in view of the law as above said and the fact that the address mentioned
on the legal notice being the same address given by the accused in his Notice
framed under Section 251 Cr.PC and statement recorded under section 313 Crpc,
defence of the accused that he did not receive the legal demand notice is without
merits.
78. Defence set up by the accused is neither definitive nor consistent with his
innocence. It was the sole burden and duty of accused to prove absence of liability
by raising a “probable defence”. However, he has failed to discharge his onus.
Except for making bare averments, accused has not led any cogent evidence which
could be termed as probable defence. Accused has not brought forth not even an
iota of evidence to pillar his defence. Accused did not bring any evidence to
impeach the credibility of the documents tendered by the complainant. Burden lied
heavily on the accused to have probablized the factum of repayment of repayment
of the loan amount. Therefore, considering the admission of the accused that
signature on the cheque in question belongs to him and compelling documentary
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evidence placed on record and failure of the accused to put forth any reasonable
and believable defence, the essential elements of the section 138 NI Act stand
assembled.
79. Ratio: Finally, having considered the totality of the facts and the circumstances
of the case, the accused has failed to rebut the presumption in favour of the
complainant as spelled under section 139 NI Act. The law as laid down under
section 138 NI Act, 1881 is made out against the accused. The weight of the
evidence adduced by the complainant to prove his case against the accused is
sufficient enough to impute criminality on the accused. Complainant has
successfully proved all the essential ingredients of Section 138 of the Act.
Therefore, accused is held guilty and convicted for commission of offence
punishable under section 138 of the Negotiable Instrument Act, 1881.
80. Let the convict be heard on the quantum of sentence separately.
81. Let the copy of this judgment be given to the convict free of cost.
Digitally
signed by
DIVYA
DIVYA SINGH
SINGH Date:
2025.03.10
13:06:42
+0530Announced in the open court on Divya Singh
10.03.2025 JMFC-NI Act -02,
South West District
Dwarka Courts, DelhiCC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 32/32