Delhi District Court
Shivaji Singh vs Shalini Pandey on 11 June, 2025
IN THE COURT OF MS. PRIYANKA GARTAN: JMFC NI DIGITAL
COURT NUMBER 02, NORTH DISTRICT, ROHINI COURTS
COMPLEX
SHIVAJI SINGH Vs. SHALINI PANDEY
(Prashant Vihar)
CC NI ACT No. 112/2021
U/S 138 Negotiable Instruments Act, 1881
In the matter of:
Sh. Shivaji Singh
S/o Sh. Ahivaran Singh
R/o B-306,J.J. Colony,
Shahbad Dairy, Pehlad Pur Banger,
Delhi-110042 ...... Complainant
Vs.
Shalini Pandey
D/o Sh, Surender Pandey
R/o G-4/5, Near Jain Bharti Public School,
Sector- 16, Rohini,
Delhi-110085. ...... Accused
Date of Institution : 17.12.2020
Date of Reserving Judgment/Order : 02.04.2025
Date of Pronouncement of Judgment/Order : 11.06.2025
JUDGMENT:
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
FACTUAL MATRIX-
1. This is a complaint case filed under Section 138 of Negotiable Instrument
Act (hereinafter referred to as “NI Act“) by Sh. Shivaji Singh (complainant)
Digitally signed
by PRIYANKA
PRIYANKA Date:
In the matter of: 2025.06.11
SHIVAJI SINGH Vs. SHALINI PANDEY 1 out of 17 +0530
15:31:17
against Ms. Shalini Pandey (accused) in respect of cheque bearing no.
218994 dated 10.09.2020 of Rs. 4,00,000/- drawn on Bank of Maharashtra,
Rohini, Sec 22,Delhi 110085.
2. The brief facts of the complaint are as:
2.1. The complainant was in good friendly terms with the family of the
accused and the accused alongwith her father had approached the
complainant for friendly loan on different occasions and received Rs.
40,000/- in cash on 04.10.2018, Rs. 50,000/- in cash on 10.12.2018, Rs.
65,000/- in cash on 13.03.2019, Rs. 60,000/- in cash on 09.08.2019 and Rs.
1,85,000/- in cash on 25.12.2019 totally to laon amount of Rs. 4,00,000/-.
2.2. On 10.09.2020 the accused issued the cheques in question, however, on
presentment the cheques in question were dishonoured with remarks ”
insufficient funds ” vide return memo dated 25.09.2020.
2.3. Then the complainant sent legal demand notice dated 05.10.2020
through speed post to the accused, but to no avail. Hence, the present
complaint.
PROCEEDINGS BEFORE THE COURT-
3. The complainant tendered his pre-summoning evidence on affidavit. On a
prima facie case being made out against Ms. Shalini Pandey (hereinafter
referred to as accused), the cognizance was taken and the accused was
summoned.
4. Particulars of the offence and substance of the accusations, as per the
provisions of Section 251 of Criminal Procedure Code 1973 (hereinafter
called “CrPC), were explained to the accused to which the accused pleaded
not guilty and claimed trial. The accused admitted his signatures on the
cheque in question but the particulars were filled by the accused. The accused
has also admitted receiving of legal demand notice. In his defence recorded
on the same day, the accused stated that “on 12.01.2020 her father borrowed
a sum of Rs. 1,00,000/- from the complainant and the cheque in question was
issued as blank signed cheque by the accused on request of her father, she
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
In the matter of: 15:31:27 +0530 SHIVAJI SINGH Vs. SHALINI PANDEY 2 out of 17
does no0t know the complainant personally. It was decided between the
complainant and her father the amount will be repaid in 16 instalments of Rs.
6,000/- per month and the last instalment was of Rs. 4,000/-. Due to covid the
father of the accused could not pay the instalments after 6 instalment.”
5. Pursuant to the defence raised by the accused in the application U/s 145(2)
NI Act, accused was granted right to cross examine the complainant which
was not objected by the Ld. Counsel for the complainant and the matter was
then fixed for CE.
6. Thereafter, complainant led her evidence by examining himself as CW-1 in
post summoning evidence, wherein he adopted his pre- summoning evidence.
He relied upon the following documents:
Ex. CW1/1 : original Cheques in question
Ex. CW1/2: Return memos
Ex. CW1/3: Original Advice memo
Ex. CW1/4: Copy of legal notice
Ex. CW1/5: postal receipts.
Ex. CW1/6 and Ex. CW1/7 : Tracking Report.
The CW1 in his affidavit reiterated the contents of the complaint. CW1 was
cross-examined by the Ld. Counsel for the accused and discharged. Witnesses
mentioned at Sr. no. 2 and 3 were dropped after recording of statement of
accused under Sec 294 Cr.P.C. As no other witness was to be produced by the
complainant, CE was closed and matter was put up for recording of statement
under sec 313 Cr.P.C.
7. Thereafter, statement of accused was recorded under Section 313 Cr.P.C. r/w
section 281 Cr.P.C. where all the incriminating evidence was put to the
accused. The accused stated that a loan of Rs. 1,00,000/- was taken by the
father of the accused for her wedding and a blank signed cheque was issued
by her as her father’s cheque was completely filled and a picture was taken
by her before giving it.Out of the total amount Rs. 36,000/- has already been
Digitally signed
by PRIYANKA
PRIYANKA Date:
In the matter of: 2025.06.11
15:31:39 +0530
SHIVAJI SINGH Vs. SHALINI PANDEY 3 out of 17
repaid in six instalments. During the recording of statement, the accused
stated that he wish to lead DE in the matter and matter was fixed for DE.
8. In the defence evidence the accused examined herself as DW1 and she
produced photo of the cheque in question which was taken before handing it
over to the complainant Ex. DW1/1 and thereafter DE was closed vide order
dated 01.03.2025. The matter was then fixed for final arguments.
9. Final arguments were advanced by both the parties. I have heard counsel for
both the parties, perused the record and have gone through the relevant
provisions of the law.
INGREDIENTS OF THE OFFENCE AND DISCUSSION-
10. It would be apposite to first consider the legal position serving as base to the
offence underlying Section 138 NI Act. The following legal requirements
need to be satisfied in order to constitute an offence u/s 138 NI Act, as held
by Hon’ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd.
v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained by
him in a bank for payment of a certain amount of money to another
person from out of that account for the discharge of any debt or other
liability;
(ii) that the cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity whichever is earlier;
(iii) that the cheque is 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;
(iv) that the payee or the holder in due course of the cheque 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
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
15:31:45
+0530
In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 4 out of 17
of information by him from the bank regarding the return of the cheque
as unpaid;
(v) that 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;
The above legal requirements are cumulative, meaning thereby that
only if all the aforementioned ingredients are satisfied can the person who had
drawn the cheque be held liable for offence u/s 138 NI Act.
11. Burden of proof: The claim based under the provisions of Negotiable
Instruments Act is an exception to the general rule of law that burden of
proof lies on the prosecution. The two specific provisions viz. Section 118 (a)
and 139 of NI Act contemplates that a presumption is attached in regard to
each and every negotiable instrument that the same was drawn and issued
against due discharge of the liability and thus, whenever any claim is made
on the basis of a negotiable instrument, the presumption has to be drawn in
favour of the holder of the cheque (drawee) and the law has put the burden to
rebut the presumption on the accused that the cheque was not issued by him
against discharge of a debt or a liability. In case, the accused is not able to
rebut the presumption and fails to prove his defence, the presumption
becomes absolute and it has to be assumed that the cheque was issued by the
accused in discharge of debt or liability and consequently, accused is
assumed guilty of the offence. It was held by Hon’ble Supreme Court in the
case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section
139 of N.I. Act also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement with the
respondent claimant that the presumption mandated by Section 139 of
the Act does indeed include the existence of a legally enforceable debt
or liability.
Hon’ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath
Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section
Digitally signed
by PRIYANKA
PRIYANKA Date:
In the matter of: 2025.06.11
SHIVAJI SINGH Vs. SHALINI PANDEY 5 out15:31:56
of 17 +0530
139 NI Act is a presumption of law and not a presumption of fact and thus, this
presumption has to be drawn in favour of the drawee and the burden to rebut
the presumption with the probable defence is on the accused.
This is indeed an instance of the rule of ‘reverse onus’, where it is
incumbent on the accused to lead what can be called ‘negative evidence’ i.e. to
lead evidence to show non-existence of liability. Keeping in view that this is a
departure from the cardinal rule of ‘presumption of innocence’ in favour of the
accused and that negative evidence is not easy to be led by its very nature, it is
now settled that the accused can displace this presumption on a scale of
preponderance of probabilities and the lack of consideration or a legally
enforceable debt need not be proved to the hilt or beyond all reasonable doubts.
The accused can either prove that the liability did not exist or make the non-
existence of liability so probable that a reasonable person, ought under the
circumstances of the case, act on the supposition that it does not exist. He can
do so either by leading own evidence in his defence or even by punching holes
in the case of the complainant in the testing ordeal of cross-examination. This
can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of a
presumption of law exist, no discretion is left with the Court but to draw the
statutory conclusion, but this does not preclude the person against whom the
presumption is drawn from rebutting it and proving the contrary. A fact is said
to be proved when, “after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the
supposition that it exists”. Therefore, the rebuttal does not have to be
conclusively established but such evidence must be adduced before the Court in
support of the defence that the Court must either believe the defence to exist or
consider its existence to be reasonably probable, the standard of reasonability
being that of the ‘prudent man’. Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
15:32:06 +0530In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 6 out of 17
Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008
Hon’ble Supreme Court held that the accused has to rebut the presumption and
mere denial of passing of consideration is no defence.
It is, thus, clear that in cases of Section 138 NI Act, upon proof of
foundational facts, law presumes in favour of drawee that the cheque was
issued by the accused in discharge, wholly or in part, of legally enforceable
debt or liability and the burden to rebut the same is upon the accused. The
burden does not have to be conclusively established but the accused has to
prove his defence on preponderance of probability.
12. Now applying the above law to the facts of the present case, it has to be
adjudged whether the legal requirements laid down hereinabove have been
fulfilled in the instant case.
13. The first legal requirement is:
“A person must have drawn a cheque on an account maintained by him in a
bank for payment of a certain amount of money to another person from out of
that account for the discharge of any debt or other liability.”
At the outset, it has to be proved that the accused had issued the cheques in
question on his account maintained with a bank for discharge of any debt or other
liability. In the instant case, accused has admitted his signature on the cheques in
question in his statement recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C.
The cheques in question have also been drawn on the account maintained by accused.
The said fact has not been denied by accused at any stage of proceeding.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian: 2021
SCC Online SC 75 Hon’ble Supreme Court held that:
“14. Adverting to the case in hand, we find on a plain reading of its
judgment that the trial court completely overlooked the provisions and failed to
appreciate the statutory presumption drawn under Section 118 and Section 139
of NI Act. The statute mandates that once the signature(s) of an accused on the
cheque/negotiable instrument are established, then these ‘reverse onus’ clauses
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
15:32:16 +0530
In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 7 out of 17
become operative. In such a situation, the obligation shifts upon the accused to
discharge the presumption imposed upon him.”
The above said principle has also been crystallized by Hon’ble Supreme Court
in the case of Basalingappa v. Mudibasappa: (2019) 5 SCC 418, by observing that:
“25. We having noticed the ratio laid down by this Court in above cases on
Sections 118(a) and 139, we now summarize the principles enumerated by this Court
in following manner:
(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 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 imposed 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.”
13.1. In the instant case, the accused having admitted his signature on the
cheques in question and the said cheques being drawn on the bank account of
accused, the mandatory presumption automatically arises in favour of
complainant by virtue of Section 118(a) r/w 139 NI Act that the cheques in
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
15:32:25 +0530
In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 8 out of 17
question were issued by him in discharge of, whole or part of, legally
enforceable debt or liability.
13.2. Now the burden shifts upon the accused to rebut the above presumption
by raising a probable defence, by leading evidence or bringing such facts on
record in the cross-examination of the complainant that could make the
latter’s case improbable. If, in such a case, the accused is proved to have
discharged the initial onus of proof placed on him by showing that the
existence of consideration was improbable or doubtful or illegal, then the
onus will again shift back to the complainant who will then be under an
obligation to prove it as a matter of fact and failure to do so will disentitle
him to any relief on the basis of the negotiable instrument (as held in Satish
Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT 289).
13.3. The accused has chosen to do so by cross examining the complainant
and buy examining herself as defence witness. During the cross examination,
CW1 deposed that he has studied up to 10 th standard and he does not have
any diploma and he does not know how to read and write English, in 2018 he
used to work as a field officer in security department of Sapna enterprises at
monthly salary of Rs. 38,200/-, he has a family of 4 including two children,
his wife and himself, his son is studying in govt school and daughter is
pursuing JBT and wife is working in private sector, his expenditure is around
15-16 thousand and saving around Rs. 25,000/-. He knows the accused’s
father Surender Pandey since 15-16 years and met him for first time in
sector-11 Rohini, he had good friendly terms and used to visit each other
frequently, Surender Pandey has one daughter and one son, he is not aware in
which school Surender Pandey son studied and he must be around 22-23
years old, he is not aware in which school the accused has studied and about
her educational institution but he knows that she is post graduate.
13.4. The complainant further deposed that he gave loan 5 times to the
accused, twice in 2018, thrice in 2019, he does not remember the exact date
and month of loan except loanof Rs. 1,85,000/- given on 25.12.2019,
however the dates are mentioned in my diary, no money was withdrawsn
Digitally signed
by PRIYANKA
PRIYANKA Date: 2025.06.11
In the matter of: 15:32:33 +0530
SHIVAJI SINGH Vs. SHALINI PANDEY 9 out of 17
from bank account, he has Rs. 5-8 lakhs as agricultural income, at the time of
advancing loan of Rs.40,000/- on 04.10.2018 to Surender Pandey signatures
were obtained in the diary, the diary could not be produced before the court
as the same was taken by the accused after issuing the cheque in question, no
other proof is available for advancement of the loan other than the diary and
the cheque in question.
13.5. The complainant also deposed that he files ITRs and the agricultural
income is not reflected in the ITR, the loan was taken by Surender Pandey
for his business needs on interest and for the same he used to come to my
home, there is no proof regarding the making of loan request by the Surender
Pandey. During cross examination the complainant further deposed that
Surender Pandey has not given any money after the alleged loan, the loan
was advanced at 2% per month interest, and Rs. 6,000/- was paid as interest
only on loan advanced in 2018, he does not has any money lending business
to lend money on interest, the cheque in question was given as completely
filled cheque by the accused at her residence to the complainant on
10.09.2020.
13.6. Further in defence evidence the accused examined herself as DW1 and
deposed that on 12.01.2020 her father Surender Pandey took loan of Rs.
1,00,000/- from the complainant and which was to be repaid by the father of
the accused in 16 instalments and out of which Rs. 36,000/- has already been
repaid.
13.7. The accused has cross examined the complainant to suggest that the
complainant only had relation with the father of the accused and loan of Rs.
1,00,000/- was advanced to the father of the accused for her marriage and the
complainant had misused the cheque in question to file false case as the
accused has no legal liability.
13.8. The accused has admitted her signature on the cheque in question,
however, she has chosen to defend the case against him. In brief, the defence
as raised by accused is that the cheques in questions were security cheques
issued for loan of Rs. 1,00,000/- which was advanced to her father and the
Digitally signed
by PRIYANKA
PRIYANKA Date: 2025.06.11
In the matter of: 15:32:40 +0530
SHIVAJI SINGH Vs. SHALINI PANDEY 10 out of 17
same was to be paid in 16 instalments and 6 of which has already been repaid
and the complainant has misused her security cheque to file false case against
her.
13.9. However, in view of the legal presumption which already stood in
favour of complainant by virtue of the section 139 NI Act, the burden was in
fact upon the accused to rebut such presumption and prove that the
complainant has presented the cheque amount for an amount for which the
accused is not liable. To rebut the presumption the accused has not led any
defence evidence and has only tried to prove his case by pointing deficiencies
in the case of the complainant.
13.10. The facts that are not in dispute are that cheque in question bears
signature of the accused and the accused received the legal demand notice. It
is also admitted that the cheque in question was given as security cheque to
the complainant against a loan, however, the amount of the loan is disputed.
13.11. Now delving in the defence raised by accused, it is clear that
complainant has failed to shake the credibility of defence witness. Accused
has, throughout the trial, remained consistent on his defence that he did not
borrow Rs. 4,00,000/- from the complainant rather loan of Rs. 1,00,000/- was
taken by her father. To do so the accused has challenged the relationship of
the accused and the complainant to successfully raise a doubt to the story of
the complainant that the accused was involved in the transaction. During the
cross examination the complainant deposed that he does not know about the
education institution or accused or the accused or her brother and he is not
aware if brother of the accused is still studying or doing business. Further,
during the cross examination the complainant has admitted that the loan was
advanced to the father of the complainant in different statements i.e. “I gave
first loan of 40,000/- to Surender Pandey on 04.10.2018 and thereafter four
more times, that is a total of 5 times, to the tune of Rs. 4 lakhs. I gave loan
twice in 2018, thrice in 2019. I gave Rs. 1,85,000/- on 25.12.2019 which was
my fifth loan. I do not remember the exact date and month of the
advancement of the earlier loan. (Vol. It is mentioned in my diary).” and then
Digitally signed
by PRIYANKA
PRIYANKA Date: 2025.06.11
In the matter of: 15:32:49 +0530
SHIVAJI SINGH Vs. SHALINI PANDEY 11 out of 17
“Surender Pandey took the alleged loan from me for his business needs and
the money was taken on interest for each transaction….. Surender Pandey
used to come to my residence for taking the alleged loan. After 8-10 days of
his loan request, I used to give him the money. I do not have any oroof
regarding the making of the loan request by Surender Pandey. The deposition
of the complainant itself raises doubt in the involvement of the accused in
taking loan from the complainant.
13.12. Further, to rebut the presumption the accused has raised doubt regarding
the conduct of the complainant as the complainant has deposed that the only
proof of the transaction i.e. the diary which contained the signature of the
accused against the receiving of the loan and the other details of the loan,
was taken by the accused at the time of handing over the cheque in question.
During the cross examination the complainant deposed ” At the time of
advancing the alleged loan of Rs. 40,000/- on 04.10.2018 to Surender
Pandey, I got him to sign in my diary. I will not be able to produce the said
diary before the Court. (Vol. The diary was taken by Shalini Pandey from me
after she gave me the cheque in question). The diary recorded the signature
of Surender Pandey each time the loan was given to him. (Vol. At the time of
advancement of first loan of Rs. 40,000/- Surender Pandey signed in the
diary and Shalini Pandey signed for the next four transactions. Apart from the
cheque in question and the entries in the diary, I do not have any other proof
of the advancement of the said loan. (Vol. The diary had the signature as well
as the Aadhar Card of Surender Pandey).” Further durng the cross
examination the complainant deposed that “Que. When you give any
business loan to anybody, do you take anything from the borrower to secure
it? Ans. Yes, I take his signature in diary. Que. Would you agree that a man of
ordinary prudence will not return the proof of loan transaction to the
borrower before the repayment of the loan? Ans. Yes, (Vol. When the cheque
in question was given to me, at the same time my diary which had his
signature was returned to Surender Pandey. It is wrong to suggest that I am
deposing falsely.” All these facts shows that the diary was very essential to
Digitally signed
by PRIYANKA
PRIYANKA Date: 2025.06.11
In the matter of: 15:32:56 +0530
SHIVAJI SINGH Vs. SHALINI PANDEY 12 out of 17
the case of the complainant which was alleged to be handed over to the
accused. However, the same is very suspicious of the conduct of the
complainant as no prudent person will ever handover such an essential
evidence to the accused.
13.13. Further, the accused has pointer towards major discrepancy in the story
of the complainant i.e. in the complaint the complainant has alleged that the
loan was advanced as friendly loan and without interest, however, during the
cross examination the complainant deposed that “Surender Pandey took the
alleged loan from me for his business needs and the money was taken on
interest for each transaction. I am not aware whether or not this has been
mentioned in the complaint. I signed the pre-summoning affidavit and
complaint at my residence.” And when specifically asked in question and
answer the complainant deposed as follows:
“Que. Has Surender Pandey given any money to you after the alleged loan
transaction?
Ans. No. (Vol. The accused gave interest amount for three months).
Que. What was the rate of interest?
Ans. 2% per month.
Que. How much amount was received as interest amount by you in those
three months?
Ans. Rs. 6,000/- (Vol. The interest amount was paid not on the entire loan but
only on the loan advanced in 2018).
Que. Is it correct that you have mentioned in your complaint that the loan
advanced to the accused was a friendly loan without any interest?
Ans. No.
Que. Have you mentioned anywhere in your complaint that you received Rs.
6,000/- as interest amount from the accused?
Ans. No.
Que. How much interest amount was outstanding till the date of filing of the
complaint?
Ans. I have not calculated the same. Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
15:33:03 +0530
In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 13 out of 17
Que. It is put to you that you have nowhere mentioned in your complaint
about the interest liability of the accused, what do you have to say?
Ans. I am not aware of what is mentioned in the complaint.”
From the testimony of the complainant it is clear that there exists material
contradictions in the story of the complainant regarding the interest.
Moreover, during the final arguments the Ld. Counsel for the accused has
argued that the interest as stated by the complainant and the amount received
as interest do not mathematically add as the loan advanced in 2018 is Rs.
90,000/- and the interest at 2% will be 18,00 per month and for three months
it will be 5,400 which is less than 6,000 as alleged by the complainant. After
testing the deposition of the complainant on the scale of prudency it becomes
clear that the version of the complainant is not believable and a probable
defence is raised by the accused.
13.14. Further, during the cross examination the complainant has also admitted
that he is not an income tax payee. All these facts together raise a doubt in
the story of the complainant and makes the defence of the accused most
probable. It is no doubt true that complainant is not burdened to prove his
complaint filed u/s 138 NI Act and the presumption of legal liability
envisages the shifting of burden upon accused to disprove her liability.
However, such burden upon accused was only to make out a reasonable and
probable defence in her favour on the touchstone of preponderance of
probability. The test being that of a prudent person.
14. Another contention raised was that the particulars of the cheque were
not filled by the accused and hence the cheque has been misused.
However, the said contention is also without any merits. By virtue of
Section 20 NI Act, a right has been created in the holder of the cheque.
When a blank cheque is signed and handed over, it means that person
signing it has given an implied authority to any subsequent holder to
fill it up. Prima facie, holder thereof is authorized to complete the
incomplete inchoate instrument. Thus, merely the allegation of
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
15:33:11 +0530
In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 14 out of 17
issuance of incomplete negotiable instrument does not create absolute
defence in favour of the accused. There is no law that a person drawing
the cheque must necessarily fill it up in his own handwriting. Hence,
once accused has admitted his signature on cheques, he cannot escape
his liability on the ground that same has not been filled in by him. A
person issuing a blank cheque is supposed to understand the
consequences of doing so. Thus, this defense is of no assistance to
accused. (Jaspal Singh v. State, Crl. Rev. 160/2016, by Hon’ble High
Court of Delhi, & Ravi Chopra v. State 2008 (102) DRJ 147, relied on.)
14.1. The accused discharged this burden by cross-examining the
complainant witnesses to suggest that she did not take any loan from the
complainant and the cheque in question was issued against the loan of Rs.
1,00,000/- which was taken by the father of the accused. Accused also
discharged this burden by leading unflinching defence evidence. Now the
burden was upon complainant to prove his case beyond reasonable doubt.
The complainant cross examined the accused wherein the accused has
deposed that she has not repaid any loan and she has not taken any loan from
the complainant. During the cross examination of the accused the
complainant could not shake the credibility of the accused . Hence, the case
of the complainant could not stand on its own legs to make the court believe
the authenticity of the alleged loan transaction.
14.2. Thus, accused has been able to successfully rebut the presumption of
law and discharge the burden of proof by raising a probable defence that the
cheque in question was not issued in discharge of legal debt or liability. The
first legal requirement is, thus, proved in favour of accused.
15. The second legal requirement is:
“That cheque has been presented to the bank within a period of six months
from the date on which it is drawn or within the period of its validity
whichever is earlier.” Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.06.11
15:33:19
+0530In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 15 out of 17
The cheques in question Ex. CW-1/1is dated 10.09.2020. The cheque returning
memo are Ex. CW-1/2 dated 25.09.2020, which proves that the cheques in
question were presented within the period of its validity. Thus, the second legal
requirement is adjudicated in favour of complainant.
16. The third legal requirement is:
“That cheque is 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.”
Section 146 NI Act presumes the fact of dishonour of cheque upon
production of bank’s slip or memo having the official mark denoting that the
cheque in question has been dishonoured. This is also a rebuttable
presumption and upon production of such bank memo, the burden shifts upon
accused to disprove the same. In the instant case, a presumption has been
raised in favour of complainant by virtue of Section 146 NI Act that the
cheque in question was dishonoured for the reason stated therein viz.
Insufficient Funds and therefore, the burden now shifts upon the accused to
rebut this presumption by establishing some reasonable justification for the
same. But the accused has failed to disprove the same.
Thus, the third legal requirement is adjudicated in favour of complainant.
17. The fourth legal requirement is:
“The payee or the holder in due course of the cheque 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.”
In the instant case, the cheques in issue were returned dishonoured on
25.09.2020. The complainant sent a legal notice dated 05.10.2020 (Ex.CW-
1/4) addressed to the accused. Postal receipts dated 05.10.2020 are Ex. CW-
1/5. The date of postal receipt proves that the legal notice was sent to accused
within thirty days of receipt of information of dishonour of cheque in issue.
The fourth legal requirement is, thus, adjudicated in favour of complainant.
Digitally signed
by PRIYANKA
PRIYANKA Date: 2025.06.11
In the matter of: 15:33:26 +0530
SHIVAJI SINGH Vs. SHALINI PANDEY 16 out of 17
18. The fifth legal requirement is:
“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.”
The tracking report proves delivery of legal notice which is Ex. CW1/6 and
Ex. CW1/7. The same was sent through speed post via postal receipts. The
receiving of the legal demand notice has been admitted by the accused.
Thus, the fifth legal requirement is adjudicated in favour of complainant.
19. All the legal requirements constituting an offence u/s 138 NI Act being
cumulative in nature, the fact that the first legal requirement has not been
proved in favour of complainant, the ingredients necessary to bring home the
guilt of accused remain incomplete. Accordingly, Ms. Shalini Pandey
(accused) is held ‘not guilty’ for the alleged offence u/s 138 NI Act.
20. Copy of this Judgment be given free of cost to both the parties.
(This judgment contains 17 pages which have been digitally signed by the
undersigned)
Announced in open Court Digitally signed
by PRIYANKA
Today on this 11.06.2025 PRIYANKA Date:
2025.06.11
15:33:32 +0530
(PRIYANKA GARTAN)
Judicial Magistrate First Class
(NI ACT) Digital Court No.2
North District Rohini Courts,
Delhi.
In the matter of:
SHIVAJI SINGH Vs. SHALINI PANDEY 17 out of 17