Delhi District Court
Ram Kumar Chauhan vs Raghuraj Singh on 10 June, 2025
IN THE COURT OF SH. ANMOL NOHRIA,
JUDICIAL MAGISTRATE FIRST CLASS-02, NORTH EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
CT Cases No. : 485/2018
u/S : 138 N. I. Act
P.S. : Karawal Nagar
Ram Kumar Chauhan Vs. Raghuraj Singh
CNR No. : DLNE020007652018
-: J U D G M E N T :-
1. CT Cases No. : 485/2018
2. Date of institution of the case : 22.03.2018
3. Name of complainant : Ram Kumar Chauhan
S/o Late Mahipal Singh,
R/o H. No. C-5/3, Dayalpur,
Matawali Gali, Delhi-110094
Digitally signed
by ANMOL
ANMOL NOHRIA
NOHRIA Date:
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4. Name of accused, parentage
and address : Raghuraj Singh
(Bharat Petrol Pump Wale)
S/o Sh. Nawab Singh,
R/o Vill.+Post+Tehsil -
Shikarpur
Near Khurja Bus Stand, Shikarpur
Distt.-Bulandshahar, UP.
5. Offence complained of : u/S 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : Convicted
8. Date on which order was
reserved : 25.03.2025
9. Date of pronouncement : 10.06.2025
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ANMOL NOHRIA
NOHRIA Date:
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1. The instant matter has originated out of a complaint under
section 200 Cr.PC read with Section 142 Negotiable Instruments Act
(hereinafter referred to as the 'N I Act'), filed by the complainant against the
accused under Section 138 N I Act alleging that cheque bearing number -
892775 dated 05.11.2017 amounting to Rs.2,00,000/- drawn on SBI
Sikarpur, Bulandshaher issued by the accused in favour of the complainant,
in discharge of a legal debt or other liability, has been dishonored and the
accused has not paid the said amount even after receiving the prescribed
legal demand notice. By virtue of this judgment, the present complaint is
being disposed off.
BRIEF REASONS FOR THE DECISION OF THE CASE
FACTUAL BACKGROUND OF THE CASE:
2. Briefly stated facts of this case as per complaint are that
complainant and the accused are friends since long and having close relation
with the accused. Accused on may occasions had told about his family
problems and requested the complainant to advance friendly loan of
Rs.2,00,000/- for a period of one month. Thereafter, in the month of
October, 2017, complainant paid the same with the assurance that accused
would return the amount on or before November, 2017. After one month
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ANMOL NOHRIA
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when the complainant approached the accused, he in order to discharge his
legal liability towards the complainant issued cheque bearing number –
892775 dated 05.11.2017 amounting to Rs.2,00,000/- drawn on SBI
Sikarpur, Bulandshaher to the complainant. However, upon presentation the
same were returned unpaid by the complainant’s banker with remarks “fund
insufficient”. Complainant got issued a legal notice dated 09.02.2018 but,
no payment was made by the accused and hence, the present complaint was
filed under Section 138 Negotiable Instruments Act.
PROCEEDINGS BEFORE COURT
3. On the basis of pre-summoning evidence, accused was
summoned by the court for the offence under Section 138 of Negotiable
Instrument Act. The accused put in his own appearance and thereafter
notice under Section 251 Cr.P.C. was framed upon the accused on
20.04.2022 to which accused pleaded not guilty and claimed trial. In his plea
of defence, the accused stated that he had taken loan of Rs.20,000/- and
issued cheque in question as blank security cheque, thereafter he asked the
complainant to take the amount and return his cheque, which the
complainant refused to do and thereafter he suffered paralytic attack and was
bed ridden for two years and he has no liability of cheque amount towards
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ANMOL NOHRIA
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complainant. Statement under Section 294 Cr.P.C of the accused was also
recorded on 20.04.2022, wherein he has admitted his signatures on the
cheque in question but denied receiving any legal demand notice.
4. The accused has orally made a request under Section 145 (2)
NI Act to cross examine the complainant and request has been allowed to
cross examine the complainant.
5. During the trial, complainant has led the oral and documentary
evidence against the accused to prove his case beyond reasonable doubt.
The following evidence are as under:
Oral Evidence
CW1 Ram Kumar Chauhan (complainant)
Documentary Evidence
Ex. CW1/1 Evidence affidavit
Ex. CW1/2 Cheque bearing no. 892775
Ex. CW-1/3 Cheque return memo dated 07.11.2017
Ex. CW-1/4 Cheque return memo dated 02.02.2018
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Ex. CW1/5 Legal demand notice dated 09.02.2018, postal receipt
& tracking report
6. The complainant was cross examined at length by the counsel
for the accused on. Thereafter, no other witness was examined by the
complainant and the complainant’s evidence was closed vide order dated
01.02.2024. Statement of accused was recorded under Section 313 of The
Code of Criminal Procedure, 1973 read with Section 281 of The Code of
Criminal Procedure, 1973 on 14.08.2024. Incriminating evidence was put to
him wherein he has denied all allegations.
7. Accused submitted that he wants to examine Dushyant as a DW
and permission was granted to the accused to lead DE and examine the said
witness. However, vide 26.11.2024 the DE was closed as counsel for the
accused submitted that he does not want to lead DE.
8. Trial was concluded and thereafter, matter was fixed for final arguments
and final arguments were addressed by both the parties.
8. It has been argued on behalf of the complainant that he has
been able to prove his case by way of presumptions in his favor and the
accused has failed to rebut the same by leading any cogent evidence. It hasDigitally signed
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been further argued that the accused in his statements has denied receiving
legal demand notice, however presumptions of law are in his favor and also
as per the track report notice has been delivered to the accused. It has been
further argued that the accused failed to discharge the burden cast upon him;
and has put forward a false defence, consequently, the case of the
complainant stands proved in view of the same.
9. Per contra, written arguments have been filed on behalf of the
accused and it has been argued for the accused that the accused has been
able to rebut the presumptions drawn against him by punching holes in the
version of the complainant and has been able to show that the transaction as
per the version of the complainant does not exist and the accused has never
issued the cheque in question to the complainant for discharge of legally
enforceable debt. It has been further argued that the accused is defending the
present case upon the following grounds:-
i. Accused has never received the legal demand notice;
ii. The impugned cheque is a security cheque issued to the
complainant;
iii. The accused does not have liability as per the version of the
complainant.
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ANMOL NOHRIA
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10. He has placed reliance upon John K Abraham vs. Simon C.
Abraham & Anr, 2014(1) Civil Court Cases 001 (SC); Sri Datttatraya vs.
Sharanappa, SLP (Cr) No. 13179 of 2023 dated 07.08.2024.
11. I have heard the counsels for both the parties; perused the
record and have gone through relevant provisions of the law and the
judgments relied upon by both the parties.
INGREDIENTS OF OFFENCE AND DISCUSSION-
12. Before dwelling into the facts of the present case, it would be
apposite to discuss the legal standards required to be met by both sides. In
order to establish the offence under Section 138 of NI Act, the prosecution
must fulfill all the essential ingredients of the offence. Perusal of the bare
provision reveals the following necessary ingredients of the offence:-
First Ingredient: The cheque was drawn by a person
on an account maintained by him for payment of
money and the same is presented for payment within a
period of 3 months from the date on which it is drawn
or within the period of its validity;
Second Ingredient: The cheque was drawn by the
drawer for discharge of any legally enforceable debt
or other liability;
Third Ingredient: The cheque was returned unpaid by
the bank due to either insufficiency of funds in theDigitally signed
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account to honour the cheque or that it exceeds the
amount arranged to be paid from that account on an
agreement made with that bank;
Fourth Ingredient: A demand of the said amount has
been made by the payee or holder in due course of the
cheque by a notice in writing given to the drawer
within thirty days of the receipt of information of the
dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment
of the said amount of money within fifteen days from
the date of receipt of notice.
13. 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 NI Act
14. The accused can only be held guilty of the offence under
Section 138 NI Act if the above-mentioned ingredients are proved by the
complainant co-extensively. Additionally, the conditions stipulated under
Section 142 NI Act have to be fulfilled.
APPRECIATION OF EVIDENCE-
15. Notably, there is no dispute qua the proof of first, third and
fifth ingredient. The complainant had proved the original cheque vide Ex.
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CW1/2 which the accused had not disputed as being drawn on the account
of the accused. It was not disputed that the cheque in question was presented
within its validity period. The cheque in question was returned unpaid vide
return memos Ex. CW1/3 and Ex. CW1/4; and the same have not been
disputed by the accused at any stage; also the same bear the sign and stamp
of the bank and presumption u/s 146 NI Act can be drawn for the same; as
such the same is proved in view of the same. Notably, no dispute has been
raised qua the fifth ingredient as such the same is deemed to be proved that
no payment has been made after issuance of legal demand notice.
16. The questions which arise for consideration in the present
matter are :-
a) Whether the legal demand notice issued by the complainant, has been
served upon the accused?
b) Whether presumption under section 118(a) read with section 139 of the
Act can be raised in favour of complainant in the present case?
c) Whether the impugned cheque was issued by the accused in discharge of
a legally enforceable debt as per the version of the complainant?
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ANMOL NOHRIA
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17. I shall be deciding the above mentioned points of determination
separately.
a) whether the legal demand notice issued by the complainant, has
been served upon the accused?
18. The issuance and service of legal demand notice is one of the
statutory requirements in order to bring home the guilt of the accused under
section 138. Any defect in the statutory requirement would go to the very
root of the proceedings as such it is essential to first discuss whether the
legal notice issued by the complainant in compliance with the provisions of
section 138 or not.
19. Proviso (b) appended to Section 138 with respect to legal
demand notice is reproduced below for ready reference:
“The payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment of
the said amount of money by giving a notice in writing,
to the drawer of the cheque, within thirty days] of the
receipt of information by him from the bank regarding
the return of the cheque as unpaid;”
20. As such, it is necessary that the payee or holder in due course
makes demand of money due by giving a notice to the drawer, in writing,
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within 30 days of receipt of information from the bank regarding the return
of the cheque is dishonoured. The object of notice is to give a chance to the
door of the cheque to rectify his omission and also to protect an honest
drawer. Reliance is placed upon, Central Bank of India vs Saxons Farms,
1999(39) ACC891(SC).
21. In the landmark decision of Hon’ble Supreme Court of India
in matter of “C. C. Alavi Haji Vs. Palapetty Mohd. & Anr.” reported in
(2007) 6 Supreme Court Cases 555 held that as under:-
“16. 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 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 andDigitally signed
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Section 114 of the Evidence Act. In our view, any other
interpretation, of the proviso would defeat the very
object of the legislation. As observed in Bhaskarans
case (supra), if the giving of notice in the context of
Clause (b) of the proviso was the same as the receipt of
notice a trickster cheque drawer would get the
premium to avoid receiving the notice by adopting
different strategies and escape from legal
consequences of Section 138 of the Act.”
22. In the instant case, the accused in his statement u/s294 has
denied receiving the legal demand notice. However, during the entire trial
no dispute has been raised by the accused qua the same at the stage of
evidence, apart from suggestions qua non receiving, however, nowhere the
address has been denied by the accused. Perusal of the record shows that,
the accused has furnished the bail bonds from the very same address as
mentioned upon the legal demand notice Ex. CW1/5 and also the summons/
warrants have been served upon the accused at the very same address.
Notably, the accused at the stage of notice u/s251 and at the stage of
statement of accused u/s313 CrPC, accused has also in his particulars stated
the very same address as mentioned on legal demand notice, Ex. CW1/5.
23. The perusal of the address mentioned on the memo of parties,
the legal demand notice, bail bonds furnished by the accused,
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summons/warrants and statement u/s313 shows that addresses are same; and
also as per the track report(not proved) the notice has been served. In view
of the discussion above I am of the considered opinion that the plea of the
accused that he has not received the legal demand notice is not tenable.
24. Hence, placing reliance upon Hon’ble Supreme Court of India
in matter of “C. C. Alavi Haji Vs. Palapetty Mohd. & Anr(Supra), there is a
deemed delivery of legal demand notice.
25. Ergo, this contention of accused does not hold any water and is
dismissed as devoid of any substance and merit.
b.) Whether presumption under Section 118(a) read with Section 139
of the Act can be raised in favour of complainant in the present
case?
26. As per the scheme of the NI Act, once the accused admits
signature on the cheque in question, 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.
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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.
27. 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, Hiten P. Dalal vs.
Bratindranath Banerjee (2001) 6 SCC 16.
28. The Hon’ble Supreme Court in Kumar Exports vs. Sharma
Carpets (2009) 2 SCC 513, while discussing the contours of section 118(a)
r/w 139 of the N I Act, has held interalia the following:
“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 intstrumentDigitally signed
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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.”
29. In the instant case, the accused at the time of framing of notice
u/s 251 and statement recorded u/s 313 Cr.P.C has explicitly admitted the
issuance of cheque to the complainant albeit the accused contends that the
cheque was blank and further the purpose for issuance of cheque has been
disputed.
30. At this stage a reference has to be sought from section 20 of NI
Act which talks about inchoate instruments. As per the provision if a person
gives a duly signed cheque which is either blank or partly filled then he is
deemed to have given implied authority to the holder to fill up the particular
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in it and complete the cheque, thus making the drawer liable for the payment
mentioned in it. It is immaterial that the cheque may have been filled by any
person other than the drawer, if the cheque is duly signed by the drawer. If
the cheque is otherwise valid, the penal provision of section138 would be
attracted.
31. Further, the Hon’ble Supreme Court in the case of Bir Singh vs.
Mukesh Kumar (2019) 4 SCC 197 wherein the Apex Court while upholding
the validity of blank signed cheque in a proceeding u/s 138 of the Act has
interalia held the following:
“If a signed blank cheque is voluntarily presented to a
payee,towards some payment, the payee may fill up the
amount and other particulars. This in itself would not
invalidate the cheque. The onus would still be on the
accused to prove that the cheque was not in discharge
of a debt or liability by adducing evidence.”
32. Notably, in the case of Suresh Chandra Goyal Vs. Amit Sing-
hal, Crl.L.P. 706/2014, it was held by the Hon’ble Delhi High Court that:
“The appellant was well within his rights to enforce the
security in respect whereof the cheques in question were
issued and to seek to recover the outstanding debt by
encashment of the said cheques. Since the cheques inDigitally signed
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question were dishonoured upon presentation, the ac-
cused suffered all consequences as provided for in law
and the appellant became entitled to invoke all his
rights as created by law. Thus, the appellant was en-
titled to invoke Section 138 of the NI Act; issue the stat-
utory notice of demand, and; upon failure of the ac-
cused to make payment in terms of notice of demand – to
initiate the complaint under Section 138 of the NI Act.”
33. It is noteworthy that the Hon’ble Apex Court in the case of Sri-
pati Singh Vs. The State of Jharkhand and Ors., AIR 2021 SC 5732, has
held that:
“16. A cheque issued as security pursuant to a financial
transaction cannot be considered as a worthless piece
of paper under every circumstance. ‘Security’ in its true
sense is the state of being safe and the security given
for a loan is something given as a pledge of payment. It
is given, deposited or pledged to make certain the
fulfilment of an obligation to which the parties to the
transaction are bound. If in a transaction, a loan is
advanced and the borrower agrees to repay the amount
in a specified timeframe and issues a cheque as security
to secure such repayment; if the loan amount is not
repaid in any other form before the due date or if there
is no other understanding or agreement between the
parties to defer the payment of amount, the cheque
which is issued as security would mature for
presentation and the drawee of the cheque would beDigitally signed
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entitled to present the same. On such presentation, if
the same is dishonoured, the consequences
contemplated Under Section 138 and the other
provisions of N.I. Act would flow.
17. When a cheque is issued and is treated as ‘security’
towards repayment of an amount with a time period
being stipulated for repayment, all that it ensures is
that such cheque which is issued as ‘security’ cannot be
presented prior to the loan or the instalment maturing
for repayment towards which such cheque is issued as
security. Further, the borrower would have the option
of repaying the loan amount or such financial liability
in any other form and in that manner if the amount of
loan due and payable has been discharged within the
agreed period, the cheque issued as security cannot
thereafter be presented. Therefore, the prior discharge
of the loan or there being an altered situation due to
which there would be understanding between the
parties is a sine qua non to not present the cheque
which was issued as security. These are only the
defences that would be available to the drawer of the
cheque in a proceedings initiated Under Section 138 of
the N.I. Act. Therefore, there cannot be a hard and fast
Rule that a cheque which is issued as security can
never be presented by the drawee of the cheque. If such
is the understanding a cheque would also be reduced to
an ‘on demand promissory note’ and in all
circumstances, it would only be a civil litigation to
recover the amount, which is not the intention of the
statute. When a cheque is issued even though asDigitally signed
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‘security’ the consequence flowing therefrom is also
known to the drawer of the cheque and in the
circumstance stated above if the cheque is presented
and dishonoured, the holder of the cheque/drawee
would have the option of initiating the civil proceedings
for recovery or the criminal proceedings for
punishment in the fact situation, but in any event, it is
not for the drawer of the cheque to dictate terms with
regard to the nature of litigation.”
34. Further, in case of Credential Leasing & Credits Ltd. Vs.
Shruti Investments & Ors., 2015 (4) JCC 252, it was held that:
“30. Thus, I am of the considered view that there is no
merit in the legal submission of the respondent accused
that only on account of the fact that the cheque in
question was issued as security in respect of a
contingent liability, the complaint under Section 138 of
the NI Act would not be maintainable. At the same time,
I may add that it would need examination on a case to
case basis as to whether, on the date of presentation of
the dishonoured cheque the ascertained and
crystallised debt or other liability did not exist. The
onus to raise a probable defence would lie on the
accused, as the law raises a presumption in favour of
the holder of the cheque that the dishonoured cheque
was issued in respect of a debt or other liability. As
settled by the Supreme Court, the said onus obliges the
accused to raise a defence – either by picking holes inDigitally signed
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the case of the complainant and/ or by positively
leading defence evidence which leads the Court to
believe that there is a probable defence raised by the
accused to the claim of the complainant with regard to
the existence of the debt or other liability. The said
onus does not cast as stringent an obligation on the
accused, as it casts on the complainant, who has to
prove beyond reasonable doubt the guilt of the
accused.”
35. Thus, it is a settled of the proposition of law that a check issued
a security, pursuit of financial transaction, cannot be considered as a
worthless piece of paper. It is given to ensure the fulfillment of an obligation
undertaken. If a check issued to secure repayment of a loan advanced and if
the loan is not repaid on or before the due date, the drawee would be entitled
to get the cheque for payment, and if such a cheque is dishonored, the
consequences contemplated under section 138 NI act would follow.
Reliance is placed upon Sripati Singh v. State of Jharkhand,2021
SCCOnline1002. Further as to the plea of cheque being a security check, it
was held in ICDS v. Beena Shabir & Anr. (2002)6 SCC 426, that security
checks would also fall within the purview of section 138 NI act and a person
cannot escape is liability unless he proves that the debt or liability for which
cheque was issued as security is satisfied otherwise.
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36. Ergo, in light of the above discussion, this court is of the
considered view that, the ground that the cheque in question is a blank
security cheque does not hold water with this court and even in case of
blank signed cheque, the statutory presumptions under section 118(a) and
139 would be raised in favour of the complainant. Therefore, in instant case,
since, the accused has admitted the execution of impugned cheque, the
aforementioned statutory presumptions would be raised in favour of the
complainant regarding the fact that the impugned cheque have been drawn
for consideration and issued by the accused in discharge of legally
enforceable debt.
c). Whether the impugned cheque was issued by the accused in
discharge of a legally enforceable debt as per the version of the
complainant?
37. The presumptions contemplated in the NI Act are rebuttable
presumptions and once the same are raised, it is for the accused to rebut the
same by establishing a probable defence. The principles pertaining to the
presumptions and the onus of proof were recently summarized by the
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Hon’ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418
as under:
“25. We having noticed the ratio laid down by this
Court in the above cases on Section 118(a) and 139,
we now summarize the principles enumerated by this
Court in the following manner:
25.1. Once the execution of cheque is admitted
Section 139 of the Act mandates a presumption that
the cheque was for the discharge of any debt or other
liability.
25.2. The presumption under Section 139 is a
rebuttable presumption and the onus is on the
accused to raise probable defence. The standard of
proof for rebutting the presumption is that of
preponderance of probabilities.
25.3. To rebut the presumption, it is open for the
accused to rely on evidence led by him or the accused
can also rely on the materials submitted by the
complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be
drawn not only from the materials brought on record
by the parties but also by reference to the
circumstances upon which they rely.
25.4. That it is not necessary for the accused to come
in the witness box in support of his defence. Section
139 imposed an evidentiary burden and not a
persuasive burden.
25.5. It is not necessary for the accused to come in
the witness box to support his defence.”
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38. In the instant case, the accused has taken the defence that he
had only taken Rs.20,000 from the complainant and the had told the
complainant to take back the same, which the complainant did not do and he
is still ready to repay Rs.20,000 and has no legal liability to pay the cheque
amount.
39. To rebut the presumptions accused has relied upon the cross
examination of the complainant. Perusal of the cross examination of the
complainant shows that no question qua the amount of Rs.20,000 has been
asked by the accused. However, questions on financial capacity has been
asked to which complainant has disclosed his income to be Rs.4,00,000 per
month but same has not been denied by the accused. Though, complainant
has been asked qua he is ITR which he has answered in affirmative and
stated that the loan reflects in his ITR; qua which it has been argued by the
counsel for the accused that the complainant has not produced his ITR to
show his financial capacity or to affirm the advancement of loan and relied
upon the judgement of Hon’ble Delhi High court in Vipul Kumar Gupta Vs.
Vipin Gupta. However, the same does not come to the aid of the accused as
the accused has never denied the said fact or asked for the production of
ITR; and there is no question of non-disclosure as to the source of income or
his financial capacity.
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40. Further, it has been argued for the accused that the complainant
is not aware as to the details of the transaction and has not disclosed the date
of advancement or place of advancement and is even unaware as to who has
written the cheque in question as disclosed from his cross examination read
with the evidence affidavit; and placed reliance upon John. K. Abraham vs.
Simon C. Abraham & Anr.; however, the same does not inspire the
confidence of the court as accused has himself admitted that he had taken a
sum of Rs.20,000 from the complainant which infact is an admission of the
transaction. Though, the complainant has not specifically mentioned any
date of advancement yet he has kept his stand during the cross examination
on the lines as mentioned in the evidence affidavit by stating that same was
advanced in October 2017. As regards the particulars of the cheque in
question, the same does not hold water with this court as discussed above;
specially when the issuance of the cheque is not disputed and qua the fact
the principle of ‘falsus in uno, falsus in omnibus’ does apply to the Indian
Evidence Act.
41. The onus upon the accused to punch holes in the version of the
complainant through his cross examination, however from the discussion
above it is clear that accused has failed to do so in the version put forward
by the complainant, in order to rebut the presumption.
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42. The other method whereby, accused can rebut the presumption
is by leading his own evidence; and for that purpose accused had sought
permission of the court to lead DE and examine his nephew namely
Dushyant as a DW. However, on 26.11.2024 counsel for the accused
submitted that he does not want to lead DE and DE was closed without
examining any witness.
43. At this stage reference may be drawn from Section 114 of the
Indian Evidence Act which in illustration (g) states that evidence which
could be and is not produced would, if produced, be unfavourable to the per-
son who withholds it; and in terms of Section 114(g), a negative inference
can be drawn against the accused, wherein the non-production of the said
witness in DE, shakes the legs of the defence of the accused.
44. Section 101 of Indian Evidence Act clearly stated who ever
desires any court to give judgment as to any legal right or liability dependent
on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the
burden of proof lies on that person. An obligation to prove the case set up by
the party who comes first to court i.e., whatsoever comes to court for a
remedy has to prove his case. In otherwords “he who asserts must prove” the
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standard of proof in civil cases is preponderance of probability, while in the
criminal cases the standard of proof is beyond the reasonable doubts. If no
evidence at all is adduced by either side, the person on whom the burden of
proof lies would fail. One who asserts a particular fact is in existence, then
he has to prove the said fact unless and until the law says that the burden lies
on anymore else.
45. It has been held by the Hon’ble Supreme Court of India in
‘Rohitbhai Jivanlal Patel v. State of Gujarat & Anr. [(2019) 18 SCC
106] –
“17. On the aspects relating to preponderance of
probabilities, the accused has to bring on record such
facts and such circumstances which may lead the
Court to conclude either that the consideration did
not exist or that its non- existence was so probable
that a prudent man would, under the circumstances
of the case, act upon the plea that the consideration
did not exist. This Court has, time and again,
emphasized that though there may not be sufficient
negative evidence which could be brought on record by
the accused to discharge his burden, yet mere denial
would not fulfil the requirements of rebuttal as
envisaged under Section 118 and 139 of the NI Act.
…”
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46. The onus upon the accused was to rebut the presumptions by
raising a probable defence or to dislodge the version of the complainant
upon preponderance of probabilities; that there was no liability was upon the
accused, and accused has failed to bring on record any evidence or
circumstance to show that the same or to prove his own version.
47. Thus, in view of the discussion above it can be concluded that
the, the version put forward by the accused is highly unbelievable and does
not hold water with this court and the accused has failed to create a probable
doubt to rebut the presumptions through the cross examination of the
complainant or by way of independent evidence, in the version of the
complainant, accordingly, the defence taken by the accused that does not
find merit and the accused has failed to rebut the presumption raised under
section 139 of NI Act.
48. Consequently, it can be said that the cheque in question was
issued by the accused in discharge of legally recoverable debt/
liability/owed towards the complainant thus, the second ingredient to the
offence under section 138 of NI Act stands proved.
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CONCLUSION:
49. To recapitulate the above discussion, the complainant has been
successful in establishing his case beyond reasonable doubt with the aid of
presumptions of law raised in his favor under section 118 and 139 of the NI
Act by and other evidence. In the result of the analysis of the present case,
the accused Raghuraj Singh is hereby convicted for the offence
punishable under Section 138, Negotiable Instruments Act, 1881.
50. This judgment contains 29 pages. This judgment has been
signed and pronounced by the undersigned in open court.
51. Let a copy of the judgment be given free of cost to the convict.
52. Let a copy of the judgment be uploaded on the official website
of District Courts, Karkardooma forthwith.
Announced in the open Court
On 10th June, 2025
(Anmol Nohria)
JMFC-02/NE/KKD/Delhi
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