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Delhi District Court
Laxman Dass vs Rameshwar Dass on 13 May, 2025
IN THE COURT OF SH. RISHABH TANWAR,
JUDICIAL MAGISTRATE FIRST CLASS/NI ACT-01/WEST/TIS
HAZARI COURT/DELHI
CT Cases no. 14777/2018
CNR No. DLWT020185072018
LAXMAN DASS
S/o Sh. Molder Ram,
R/o K-169, J.J. Colony,
Wazirpur, Delhi-110052 .........Complainant
Vs.
RAMESHWAR DASS
S/o Late Sh. Pritam Dass,
R/o H.No.3024, Gali No.2,
Dharampura, Gandhi Nagar
Delhi-110031 ............Accused
::J U D G M E N T:
:
1. Date of institution of case : 14.12.2018
2. Date of reserving the judgment : 25.04.2025
3. Date of pronouncement of judgment : 13.05.2025
4. Offence complained or proved : 138 N.I. Act
5. Plea of Accused : “Not Guilty”
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 1/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:37:57
+0530
6. Final Order : CONVICTION
7. Date of Final Order : 13.05.2025
BRIEF FACTS AND REASONS FOR DECISION
1. The present case has arisen out of a complaint filed under section 138
read with section 142 of Negotiable Instrument Act, 1881 (hereinafter
referred to as N.I. Act) by one Laxman Dass (hereinafter referred to as ‘the
Complainant’) for dishonor of cheque bearing number 051322 dated
08.10.2018, for an amount of Rs.7,20,000/- drawn on Central Bank of India,
Anand Parbat Branch (hereinafter referred to as ‘the cheque in question’)
issued by one Rameshwar Dass, (hereinafter referred to as ‘the accused’) in
favor of the complainant.
2. The brief facts of the case are as follows: The accused is a close friend
of the complainant and well acquainted with him, as they were colleagues in
the same department. According to the complainant, the accused was
frequently in need of financial assistance, and on various occasions, the
complainant and his wife provided monetary support. This assistance was
offered for several needs, including the construction of the accused’s house,
the marriage of his daughter, payment of electricity bills, and other financial
requirements. In total, the amount owed by the accused is Rs.7,20,000/-.
Furthermore, it is alleged that in the first week of March 2016, when the
complainant requested repayment, the accused issued a cheque bearing no.
230273 dated 21.03.2016 for the sum of Rs.7,20,000/-, drawn on United
Bank of India, Shahzadabagh Branch, Old Rohtak Road.
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 2/22
Digitally
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:38:06
+0530
3. It is further alleged that the said cheque was dishonoured with the
remark “funds insufficient” as noted in the return memo dated 17.05.2016.
The complainant, due to cordial relations, asked the accused for the reason
of cheque dishonour. The accused requested additional time until November
2016 and subsequently requested an extension of six months until March
2017. In the last week of June 2017, the complainant visited the accused
seeking repayment of Rs.7,20,000/-, to which the accused again requested
more time. Following multiple visits, the accused issued a new cheque
bearing no.051322 dated 08.10.2018 for Rs.7,20,000/- in favour of the
complainant. This cheque was also dishonored upon presentation, as
indicated by the return memo dated 10.10.2018 from the complainant’s
bank, with the remark ‘funds insufficient’. The complainant then issued a
legal demand notice dated 15.10.2018 under section 138(b) NI Act. The
present complaint was filed when the accused failed to pay the amount
despite receipt of the legal demand notice.
4. The complainant examined himself as CW-1 on 14.12.2018 and
tendered his evidence on affidavit which was exhibited as Ex. PW-1/X. He
also placed reliance on the following documents: –
(a) Ex. CW1/1 is the cheque in question.
(b) Ex. CW1/2 is bank return memo dt. 10.10.2018.
(c) Ex. CW-1/3 is the legal demand notice dt. 15.10.2018.
(d) Ex. CW-1/4 and Ex.CW1/5 are the postal receipts.
(e) Ex. CW1/6 and Ex.CW1/7 are the tracking reports.
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 3/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:38:10
+0530
5. The defense of the accused under section 251 Cr.P.C. was recorded,
after serving upon him the substance of accusation on 20.07.2019 wherein
he pleaded not guilty and stated that he had taken Rs.2,00,000/- from the
complainant in the year 2012 at 5% per month interest. He further stated that
he had repaid the amount by the year 2013. He further stated that he had
given the cheque in question as blank, signed cheque to the complainant in
the year 2014 and other particulars were not filled by him. He further stated
that he had again borrowed Rs.2,00,000/- at 5% per month interest from the
complainant in the year 2014. He further stated that he had not returned the
said amount, but he had repaid some portion of the interest. He denied
received the legal demand notice, however admitted that the address
mentioned on the same was his correct address.
6. This court had allowed the accused to cross-examine the complainant
on 20.07.2019. The complainant’s evidence on affidavit (Ex. PW-1/X) was
read as his examination in chief under section 145(1) NI Act. CW-1 was
cross-examined by Ld. Counsel for the accused. Complainant further
examined one Sh. Adarsh Kumar Seth as CW-2 and one Sh. Manoj Kumar
as CW-3 and they were duly cross-examined by Ld. Counsel for the accused
on 11.01.2023 and thereafter complainant evidence was closed.
7. The Statement of accused u/s. 313 Cr.P.C. was recorded on
11.01.2023 wherein he stated that complainant gave him a loan of
Rs.1,50,000/- and Rs.50,000/- in the month of February 2014 on 5% interest
and he used to give Rs.10,000/- as interest per month to the complainant
from February 2014 to 31.12.2018. He further stated that a blank signed
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no.Digitally
4/22
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:38:14
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cheque i.e. cheque in question was given to the complainant before taking
the loan and complainant has misused the cheque in question. He further
stated that he could not return the loan amount of Rs.2,00,000/-, however he
paid the interest on the said loan till 2018. He further denied receiving legal
demand notice but admitted that address upon the same is correct. He further
stated that he had no legal liability towards the complainant as alleged by
him and he has filed a false case against him.
8. The accused examined himself as a witness under section 315 Cr.P.C.
He was duly cross-examined by the Ld. Counsel for the complainant.
9. Accused also examined one bank witness Ms. Achla Gupta from SBI
Bank, Shastri Nagar branch as DW-2 who had brought the certified copy of
the bank account statement of the accused for the period 06.06.2013 –
28.02.2014 and the same was marked as Ex. DW-2/1 (colly.). The accused
has examined one Devender Kumar, Ahlmad from the court of Ld. ADJ-II,
Shahdara Dist. Karkardooma Court as DW-3, who had brought the complete
judicial file bearing CS no. 612/2021 titled as ‘Laxman Dass vs. Rameshwar
Dass‘ and placed on record the certified copy of the same (Ex. DW-3/A).
10. Since the accused did not examine any further witnesses, the stage of
defense evidence was closed and subsequently, the case was put up for final
arguments.
THE APPLICABLE LAW
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 5/22
Digitally signed
RISHABH by RISHABH
TANWAR
TANWAR Date: 2025.05.13
14:38:17 +0530
11. Before appreciating the facts of the case in detail for the purpose of
decision, let relevant position of law be discussed first. It is well settled
position of law that to constitute an offence under S.138 N.I. Act, the
following ingredients are required to be fulfilled:
(1) That the cheque in question has been drawn by a person on an
account maintained by him with a banker, for payment to another
person from out of that account.
(2) The cheque has been drawn for discharge in whole/part any debt
or liability.
(3) That the said 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.
(4) That the cheque was returned dishonoured by the drawee bank for
want of sufficient funds or the same exceeded any arrangement
with the banker to pay the sum covered by the cheque.
(5) That the complainant gave 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 demanding
payment of the cheque amount.
(6) The accused has received the legal notice.
(7) Lastly that the accused failed to make payment to the payee (the
complainant), or the holder in due course, the cheque amount
within 15 days of the receipt of the notice.
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 6/22
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:38:20 +0530
12. 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 under Section 138 of the N I Act. The Act also raises two
presumptions in favour of the holder of the cheque namely first, in Section
118(a) which says that every negotiable instrument was made or drawn for
consideration, and, second, a presumption under Section 139, that the holder
of cheque receiving the same of the nature referred to in Section 138 for
discharge, in whole or in part, of any debt or other liability. Analysing all the
concerned provisions of law and various pronouncements in this regard, the
Hon’ble Apex Court in ‘Basalingappa v. Mudibasappa, AIR 2019 SC 1983′,
noted at para 23 Bharat Barrel and Drum Manufacturing Company v. Amin
Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State
of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v.
Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets,
(2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441]:
(i) Once the execution of cheque is admitted, Section 139 of the
Act mandates a presumption that the cheque was for the discharge
of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption
and the onus is on the accused to raise the probable defence. The
standard of proof for rebutting the presumption is that of
preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on
evidence led by him or accused can also rely on the materials
submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 7/22
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:38:24 +0530
from the materials brought on record by the parties but also by
reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box
in support of his defence, Section 139 imposes an evidentiary
burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to
support his defence.
ARGUMENTS ADVANCED ON BEHALF OF THE PARTIES
13. Sh. Bharat Singh, Ld. counsel for the complainant has argued that the
complainant has been able to prove all the pre-requisites of Section 138 NI
Act against the accused and the accused has failed to rebut the presumption
u/s. 138 NI Act. Ld. counsel has prayed that the accused be convicted of the
offence u/s. 138 NI Act. Ld. Counsel has relied upon the following
judgments in support of his arguments:
a. Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197
b. Kishan Rao vs. Shankar Gouda Criminal Appeal No. 803/2018
(SC)
c. Rajesh Jain Vs. Ajay Singh Criminal Appeal No. 3126/2023 (SC)
14. Per contra, Sh. M. L. Bajaj, Ld. Counsel for the accused has argued
that the complainant has not explained any details of the loan, when it was
given and how the same was given. It is also argued that the complainant has
not shown the same in his Income Tax Returns (I.T.R.). Ld. Counsel has
further argued that the complainant has examined interested witnesses,
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 8/22
Digitally
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:38:28
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whose names were not involved in the list of witnesses at the time of filing
the complaint. Ld. Counsel has prayed that the accused be acquitted of the
offence alleged against him. Ld. Counsel has relied upon the following
judgments in support of his arguments:
a. Raja Ram (since dead) (Through LRs.) vs. Maruthachalam (since
dead) (Through LRs.) Criminal Appeal no. 1978/2013 (SC)
b. Vijay vs. Laxman and Anr. Criminal Appeal no. 261/2023 arising
out of SLP (Crl.) No. 6761/2020 decided on 07.02.2023.
c. John. K. Abraham vs. Simon C. Abraham & Anr Criminal Appeal
No. 9505/2011.
POINTS OF DETERMINATION
15. The following points of determination arise in the present case:
A. Whether the complainant has successfully proven the facts which
would raise the presumption u/s. 118 r/w Section 139 of NI Act by
proving that the cheque in question bears the signature of the accused?
B. If yes, whether the accused has been successful in raising a probable
defence to rebut the presumption under section 139 NI Act?
C. If yes, whether the complainant has proved its case, beyond the
shadow of reasonable doubt, without taking the aid of presumption
under section 139 NI Act?
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 9/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:38:31
+0530
FINDINGS OF THE COURT
Points of determination number (A):
16. Whether the complainant has successfully proven the facts which
would raise the presumption u/s. 118 r/w Section 139 of NI Act by proving
that the cheque in question bears the signature of the accused?
17. It is settled law that once the signature upon the cheques in question
has been admitted by the accused, certain presumptions are drawn, which
result in shifting of onus. Section 118(a) of the NI Act lays down the
presumption that every negotiable instrument was made or drawn for
consideration. Another presumption is enumerated in Section 139 of NI Act.
The provision lays down the presumption that the holder of the cheque
received it for the discharge, in whole or part, of any debt or other liability.
18. The combined effect of these two provisions is a presumption that the
cheque was drawn for consideration and given by the accused for the
discharge of debt or other liability. Both the sections use the expression
“shall”, which makes it imperative for the court to raise the presumptions,
once the foundational facts required for the same are proved. Reliance is
placed upon the judgment of the Hon’ble Supreme Court in ‘Hiten P. Dalal
vs. Bratindranath Banerjee (2001) 6 SCC 16′.
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 10/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:38:35
+0530
19. The Hon’ble Supreme Court in ‘Kumar Exports vs. Sharma Carpets
(2009) 2 SCC 513′, while elaborating upon the interplay of section 118(a)
r/w 139 of the N I Act, has held that:
“14. Section 139 of the Act provides that it shall be presumed,
unless the contrary is proved, that the holder of a cheque received the
cheque of the nature referred to in section 138 for the discharge, in
whole or in part, of any debt or other liability.
15. Applying the definition of the word “proved” in section 3 of
the Evidence Act to the provisions of sections 118 and 139 of the Act,
it becomes evident that in a trial under section 138 of the Act a
presumption will have to be made that every negotiable instrument
was made or drawn for consideration and that it was executed for
discharge of debt or liability once the execution of negotiable
instrument is either proved or admitted. As soon as the complainant
discharges the burden to prove that the instrument, say a note, was
executed by the accused, the rules of presumptions under section 118
and 139 of the Act help him shift the burden on the accused. The
presumption will live, exist and survive and shall end only when the
contrary is proved by the accused, that is, the cheque was not issued
for consideration and in discharge of any debt or liability. A
presumption is not in itself evidence, but only makes a prima facie
case for a party for whose benefit it exists.”
20. In the present case, the accused at the time of framing of notice u/s
251 and statement recorded u/s 313 Cr.P.C has admitted his signatures on the
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 11/22
Digitally signed
RISHABH by RISHABH
TANWAR
TANWAR Date: 2025.05.13
14:38:39 +0530
cheques in question. Once signatures are admitted, the presumption under
section 118(a) r/w 139 NI Act becomes operative in favour of the
complainant in the present case.
21. Accordingly, the point of determination number A is decided in the
affirmative.
Points of determination number (B):
22. There is no dispute with respect to the ingredients no. (1), (3), (4), (5)
and (7) as defined in the paragraph no. 11, as they are admitted facts in the
present case. As per section 58 Indian Evidence Act 1872 (hereinafter
“I.E.A.”) (corresponding section 53 of Bharatiya Sakshya Adhiniyam 2023),
the complainant need not prove the admitted facts.
23. The point of focus of this judgment would hereinafter be on the fact in
issue i.e., (a) whether the legal demand notice under section 138(b) NI Act
was served upon the accused, and (b) whether the cheques in question were
issued by the accused in favour of the complainant in discharge of the
legally recoverable liability?
24. As far as point no. (a) is concerned. The accused has denied receiving
legal notice. When her defense under section 251 Cr.P.C. was recorded, she
had stated that the address mentioned on the legal demand notice was cor-
rect. The burden of proving that he had not received the legal notice was on
the accused. Section 103 I.E.A. lays down the rule that the burden of proving
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 12/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:38:44
+0530
a particular fact is on the person who asserts that fact. Since the accused ad-
mitted that the address on the legal notice was correct, there was limited
scope for him to prove that the legal notice was not served upon him. Sec-
tion 27 of the General Clauses Act establishes a presumption of service with
respect to letters or documents sent through post and states: “… the service
shall be deemed to be effected by properly addressing, pre-paying, and post-
ing by registered post, a letter containing the document, and, unless the con-
trary is proved, to have been effected at the time at which the letter would be
delivered in the ordinary course of post. ” There has been no dispute regard-
ing the complainant sending the legal demand notice to the accused via pre-
paid registered post. The accused has also acknowledged that his address on
the legal demand notice was correct. Therefore, the presumption under sec-
tion 27 of the General Clauses Act applies in this case, and it can be assumed
that the legal demand notice was served upon the accused in the ordinary
course of business.
25. Moreover, the Hon’ble Supreme Court in the case of “C.C. Alavi Haji
vs Palapetty Muhammad & Anr AIR 2007 SC (SUPP) 1705″ held that: “17.
It is also to be borne in mind that the requirement of giving of notice is a
clear departure from the rule of Criminal Law, where there is no stipulation
of giving of a notice before filing a complaint. 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 submit to the Court that he
had made payment within 15 days of receipt of summons (by receiving a
copy of complaint with the summons) and, therefore, the complaint is liable
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 13/22
Digitally
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:38:49
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to be rejected. A person who does not pay within 15 days of receipt of the
summons from the Court along with the copy of the 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 the G.C. Act and Section 114 of the
Evidence Act.”
26. There is no dispute the fact that the accused has not paid the amount
of the cheques in question within 15 days of appearing in this court.
Consequently, based on the aforementioned caselaw, the accused cannot
claim that he did not receive the legal demand notice, and no liability can be
attributed upon him.
27. Let us now consider the point no. (b) i.e., whether the accused had
been able to prove that the cheques were not issued towards any legally
recoverable debt or any other liability?
28. It is the case of the complainant that he used to financially help the ac-
cused from time to time as per his requirements and especially during con-
struction of his house, at the time of marriage of his daughter and for elec-
tricity bills. He further claims to have given a total sum of Rs.7,20,000/- to
the accused.
29. On the other hand, the accused had taken a defense that he had bor-
rowed Rs.2,00,000/- from the complainant in the year 2012 at 5% per month
which he had repaid in the year 2013 for which he had given a blank signed
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 14/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:38:53
+0530
cheque to the complainant. He has further taken a defense that he again bor-
rowed a sum of Rs.2,00,000/- on the same interest rate from the complainant
in the year 2014 and he had not returned the said loan, though he had repaid
some portion of the interest. When the accused had examined himself as a
witness in the present case, he had admitted in his cross-examination that the
complainant used to financially help him and he also admitted that the com-
plainant had helped him financially at the time of his daughter’s wedding,
for construction of his house and payment of electricity bills. Therefore, the
accused has partly admitted the case of the complainant leaving the dispute
only with respect to the quantum of loan given to the complainant to the ac-
cused.
30. Ld. Counsel for the accused has argued that no loan agreement was
drawn between the parties, nor the complainant has proved any receipt for
any alleged loan given to the accused. The said argument is not tenable as
the accused himself has admitted that complainant used to financially help
the accused and therefore complainant was not required to bring on record
any documentary form of evidence. It is further argued on behalf of the ac-
cused that the complainant has not explained or given any details as to what
amount was given to the accused and on which occasions. Even though
CW-1 admitted in his cross-examination that he had not explained the same
in his complaint or evidence by way of affidavit, however it cannot be lost
sight of in the society people do help each other financially without any for-
mal document or record, out of friendly relations or mutual acquaintance.
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 15/22
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:38:58 +0530
31. The Hon’ble High Court of Delhi in the case of ‘Amit Jain vs. Sanjeev
Kumar Singh & Anr. 2024 DHC 6207′ had observed the following:
“17. We often find that acquittals in Section 138 NI Act
proceedings place the burden of proving the existence of the debt on
the complainant, which is diametrically opposite to the presumption
placed on the accused under Section 139 NI Act. The accused often
gets away with an acquittal, despite having tendered and even
admitting to the cheque, merely because the complainant is unable to
produce documents to support the existence of the debt (usually in the
form of a friendly loan provided in cash, which does not have any
document trail). It would be unwise for the court to not acknowledge
that friendly cash loans are provided by parties, sometimes based on
small savings of the lender. In these circumstances rather than
focussing on the question as to why the accused gave the cheque in
the first place (which he or she admits), the complainant is left
unhinged for inability to provide any documentation. Often when
accused is asked by the court, as to for what purpose they gave the
cheque in the first place, a cogent and rational answer is not
forthcoming.
18. Presumption under Section 139 read with Section 118 of the
NI Act is essentially based on pure common sense. Instead of having
the accused prove to the contrary, the accused is acquitted, as in this
case, without having led any defence evidence and purely relying
upon the inconsistencies in the affirmative proof provided by theCC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 16/22
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:39:03 +0530
complainant. The law and its application, is therefore turned on its
head.”
32. It is notable that it is not the case of the accused in the present
complaint that he had never borrowed any money from the complainant, on
the contrary he only disputes the quantum of the sum advanced to him as
loan. Therefore in the light of the aforesaid judgment, the fact that the
complainant has not mentioned as to what he had lent to the accused and on
which dates has not affected his case in the present case.
33. Furthermore, in the present case, the accused has admitted taking loan
from the complainant though not perfectly aligning with the claim of the
complainant. It is pertinent to note that the complainant had confronted the
accused with the certified copies of the record of civil suit bearing
no.6112/2021 titled as ‘Laxman Das Vs. Rameshwar Das‘ wherein he had
filed written statement stating that he had never accepted any money from
the complainant, which is contrary to the stand taken by the accused in the
present case. Upon confrontation in his cross-examination, he denied the
contents of the written statement Ex.DW1/C2 although admitted that the
same has been drafted by his counsel on his behalf. Furthermore, DW-3, ex-
amined by the accused as his witness, has proved the written statement Ex.
DW-1/C2 by bringing on record the certified copy of the record of the case
(Ex. DW-1/A).
34. Furthermore, the accused has deposed in his examination in chief that
he had given 4-5 cheques to the complainant whereas he had stated in his
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 17/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:39:06
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statement u/s.313 CrPC that he had given only one blank signed cheque to
the complainant and in his statement u/s.251 CrPC accused has stated that he
had given two blank signed cheques to the complainant in 2013-2014 re-
spectively. Accused has taken contrary stands with respect to the number of
cheques that he has issued to the complainant. Accordingly, the defense of
the accused that he had issued security cheques to the complainant does not
appear to be reliable in view of the contrary stands taken by him.
35. The accused has claimed that he had given security cheques to the
complainant which the latter has misused at the time of recording his
defense u/s.251 CrPC he had stated that the signature on the cheque in
question belonged to him, but other particulars were not filled by him. The
complainant in his cross-examination has stated that one Adarsh Kumar Seth
had filled the cheque in question at the instance of the accused in the
presence of complainant, the accused, one Manoj Kumar. The complainant
has examined the said Adarsh Kumar and Manoj Kumar as CW-2 and CW-3
respectively, who have corroborated the statement of complainant, and their
testimonies has remained unimpeached during their cross-examination. The
argument of the Ld. counsel for the accused that CW-2 and CW-3 are
interested witnesses cannot be sole ground to dispose the otherwise reliable
testimonies of CW-2 and CW-3. The testimonies of the witnesses cannot be
disregarded solely on the ground that they are related to the parties in whose
favour they have deposed. (Reliance is placed upon ‘Baban Shankar Daphal
& Ors. vs. The State of Maharashtra 2025 INSC 97′ wherein it was held that
“29. …Therefore, in evaluating the evidence of a related witness, the court
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 18/22
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.13
14:39:11
+0530
should focus on the consistency and credibility of their testimony. This
approach ensures that the evidence is not discarded merely due to familial
ties, but is instead assessed based on its inherent reliability and consistency
with other evidence in the case.”). Therefore, the testimony of CW-1, being
corroborated with CW-2 and CW-3, has proved the fact that the cheque in
question had been filled by CW-2 at the instance of the accused and the
same were given to the complainant.
36. As far as the defense of the accused that he had taken Rs.2,00,000/-
from the complainant at two different occasions and had given one security
cheque each does not appear to be reliable as the accused has not proved that
he had either issued any stop payment instructions to the bank or sent any
notice to the complainant to either return the cheques or stopping him from
using the same. Any reasonable prudent person in the place of the accused
would have chosen the afore-mentioned course of action without the same
the testimony of the accused does not inspire confidence and the same is li-
able to be discarded. The Hon’ble High Court of Delhi had observed in the
case of “V.S. Yadav vs Reena 2010 SCC OnLine Del 3294″ that:
“8. … The Trial Court in this case turned a blind eye to the
fact that every accused facing trial, whether under Section 138 of N.I.
Act or under any penal law, when charged with the offence, pleads not
guilty and takes a stand that he has not committed the offence. Even in
the cases where loan is taken from a bank and the cheques issued to
the bank stand dishonoured, the stand taken is same. Mere pleading
not guilty and stating that the cheques were issued as security, would
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 19/22
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:39:15 +0530
not give amount to rebutting the presumption raised under Section 139
of N.I. Act. 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. It was for the accused to prove if no loan was
taken why he did not write a letter to the complainant for return of the
cheque. Unless the accused had proved that he acted like a normal
businessman/prudent person entering into a contract he could not have
rebutted the presumption under Section 139, N.I. Act. If no loan was
given, but cheques were retained, he immediately would have
protested and asked the cheques to be returned and if still cheques
were not returned, he would have served a notice as complainant.
Nothing was proved in this case.”
37. The accused had examined DW-3 who had proved the certified copy
of the civil suit filed by the complainant against the accused. The said record
does not help the accused to escape his liability, rather confirms the written
statement filed by the accused therein, in which he had denied accepting any
financial help from the complainant, whereas in his cross-examination
conducted in the present case, he had admitted receiving financial help from
the complainant. Furthermore, the accused has failed to explain the rationale
of examining DW-2, who had just brought his account statement on record.
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 20/22
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:39:19 +0530
Therefore, Neither DW-2 nor DW-3 have been able to help the accused in
the present case.
38. In the considered finding of this court, the accused has failed to raise a
probable defence, on the scale of preponderance of probability and has failed
to rebut the presumption under section 139 NI Act. Accordingly, the point of
determination no. (ii) is decided in the negative. Consequently, it would not
be necessary to discuss the point of determination no. (iii).
39. It is trite law that when the accused has failed to rebut the presump-
tion under section 139 NI Act, the court can proceed to convict the accused.
reliance is placed upon the judgment of Hon’ble Supreme Court in Supreme
Court in ‘Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148′, which discusses
the correct approach in dealing with presumption under Section 139 ob-
served as under; relevant extracts are reproduced hereunder:
“54. …Once the presumption under Section 139 was given ef-
fect to, the courts ought to have proceeded on the premise that the
cheque was, indeed, issued in discharge of a debt/liability. The entire
focus would then necessarily have to shift on the case set up by the ac-
cused, since the activation of the presumption has the effect of shifting
the evidential burden on the accused. The nature of inquiry would
then be to see whether the accused has discharged his onus of rebut-
ting the presumption. If he fails to do so, the court can straightaway
proceed to convict him, subject to satisfaction of the other ingredients
of Section 138….”
CC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 21/22
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:39:23 +0530
CONCLUSION
40. Accordingly, this Court finds the accused Sh. Rameshwar Dass, S/o
Late Sh. Pritam Dass ‘guilty’ of the offence under Section 138 NI Act and
consequently he is convicted of the said offence.
41. This judgement contains 22 pages, and each page has been signed by
the undersigned as per rules.
42. Let the copy of digitally signed judgment be uploaded on the website
of Tis Hazari District Court as per rules. Digitally
signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.13
14:39:27
+0530Announced in open Court (RISHABH TANWAR)
On 13th Day of May 2025 JMFC (NI ACT-01)/West District
Tis Hazari Court/DelhiCC No. 14777/2018 Laxman Dass Vs. Rameshwar Dass pg. no. 22/22
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