Delhi District Court
Sukhpal Singh vs Rishi Batra on 13 June, 2025
IN THE COURT OF Ms. SHUBHANGI SRIVASTAVA
JUDICIAL MAGISTRATE FIRST CLASS-05
SOUTH EAST, SAKET COURT, NEW DELHI
EARLIER: JUDICIAL MAGISTRATE FIRST CLASS DIGITAL
COURT-05
SOUTH WEST, DWARKA COURT, NEW DELHI
Criminal Complaint No.: 25381/2021
Sukh Pal Singh ......... Complainant
Versus
Rishi Kumar Batra ......... Accused
1. Name & address of the complainant : Sukh Pal Singh,
S/o Lt. Sh. Mam
Chand,
R/o H. No. 16, Gali
no. 2, B- Block,
Nasirpur, New
Delhi -110045.
2. Name & address of the accused : Rishi Batra,
S/o Sh. Satish
Kumar Batra
R/o H. No. 16,
Gali no. 2,
B- Block,
Nasirpur, New
Delhi-110045.
3. Offence complained of : U/S 138, The
Negotiable Instruments SHUBHANGI
SRIVASTAVA
Act,1881.
4. Date of Institution of case : 26.10.2021
Digitally signed
by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:48:17 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 1 of 25
5. Plea of accused : Pleaded not guilty.
6. Final order : Convicted
7. Date of decision of the case : 13.06.2025
JUDGMENT
A: Factual Matrix of the Case
1. Briefly stated, the factual matrix of the present complaint case
is that the accused, Sh. Rishi Batra and the father of the accused, namely
Sh. Satish Kumar Batra were property dealers and were engaged in the
business of selling residential plots and flats. The accused approached the
complainant for the sale of Flat Bearing No. RZ-E-27B and 28A situated at
Chankya place, Uttam Nagar, New Delhi-110059 (hereinafter “property in
question”). Thereafter, the complainant and the father of the accused
entered into an agreement to sell dated 08.10.2020, in presence of two
witnesses i.e. the accused and one Sh. Virender Singh Tomar. The father of
the accused agreed to sell the property in question in favour of the
complainant for a total consideration amount of Rs.46,50,000. The
complainant also paid an amount of Rs.15,00,000 as earnest money and
agreed to pay the remaining amount of Rs. 31,50,000 upon execution of
sale deed.
2. The complainant later found out that the accused and the
father of the accused were intending to sell the property in question to a
third person and thereafter, the complainant confronted the accused about
it. Pursuant to which, the accused agreed to return the earnest
money/bayana amount to the complainant and accordingly, issued a cheque
SHUBHANGI
bearing no. 000070 dated 19.06.2021 drawn on HDFC Bank, Branch South SRIVASTAVA
Extension, New Delhi amounting to Rs. 15,00,000 (hereinafter “cheque in
question”) in favour of the complainant. The said cheque in question when Digitally signed
by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 2 of 25 15:48:29 +0530
presented by the complainant was returned unpaid vide return memo dated
13.09.2021 for reason “Refer to Drawer”.
3. The complainant accordingly, sent a legal notice dated
17.09.2021 to the accused demanding the payment of cheque amount in
question within fifteen days of receipt of the notice. The accused when
failed to pay the cheque amount in question, the complainant filed the
present complaint against the accused under Section 138 of Negotiable
Instruments Act, 1881 (hereinafter “NI Act“).
B. Appearance of accused, framing of notice and proceedings incidental
thereto:
4. Vide order dated 07.12.2021, this court took the cognizance in
the present matter and upon a prima facie case being found out summons
were issued to the accused to appear before the court. Accordingly, the
accused entered his appearance on 04.02.2023 upon execution of Bailable
Warrants and accused was admitted to bail subject to furnishing of personal
bond and surety bond in the sum of Rs. 10,000 each.
5. Thereafter, vide order dated 19.03.2024, notice under Section
251 of Criminal Procedure Code, 1973 (hereinafter “Cr.P.C“) was put to the
accused. The accused in his notice, pleaded not guilty and claimed trial.
The accused though, admitted that the cheque in question is from his
account and also admitted his signatures on the cheque, however, denied
SHUBHANGI
issuing the cheque in question to the complainant and stated that the cheque SRIVASTAVA
was taken from him by his father and was handed over to the complainant
Digitally signed
by the father of the accused. The accused also denied filling the particulars by SHUBHANGI
SRIVASTAVA
in the cheque in question other than the amount on the cheque. The accused Date: 2025.06.13
15:48:40 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 3 of 25
stated that the complainant had purchased a property in Chankya palace,
Janakpuri from the father of the accused. The accused further stated that the
complainant paid a total amount of Rs.15,00,000 to the father of the
accused for the said property, out of which Rs.4,00,000 was given in cash
and Rs.11,00,000 was paid by cheque. The accused stated that the
complainant did not pay the remaining amount of sale consideration and
accordingly, the agreement could not be materialized. It was further stated
that as per the agreement to sell, the father of the accused was entitled to
forfeit the earnest money and the complainant is bound by the said
agreement. The accused also alleged that the cheque in question was given
to the complainant as a security cheque and the complainant has misused
the cheque in question.
6. Admission/ Denial of Documents under Section 294 Cr.P.C
was also put to the accused, under which, the accused admitted that the
cheque in question was from his account and also admitted his signatures
on the cheque in question. The accused further also admitted the receipt of
legal notice from the complainant and the bank return memo.
7. An application under Section 145(2) of NI Act was also filed
by the accused which was allowed by this court vide order dated
15.02.2025 and accused was granted an opportunity to cross examine the
complainant and its witnesses.
C. Complainant’s Evidence
SHUBHANGI
SRIVASTAVA
8. In order to prove its case, the complainant examined himself
as CW-1 and relied upon his evidence by way of affidavit, Ex. CW 1/A,
Digitally signed
by SHUBHANGI
wherein the contents of the complaint have been reiterated by CW-1 in Ex. SRIVASTAVA
Date: 2025.06.13
15:48:50 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 4 of 25
CW 1/A. The complainant also relied upon the following documents to
prove its case which are as follows:
a) Copy of Agreement dated 14.12.2020 Mark A
b) Copy of Receipt of Rs. 15,00,000 Mark B
c) Cheque in question Ex. CW 1/1
d) Return Memo dated 13.09.2021 Ex. CW 1/2
e) Legal Demand notice Ex. CW1/3
f) Postal Receipt of Legal Demand Notice Ex. CW1/4
9. Thereafter, CW-1 was duly cross examined by Ld. Counsel for
accused on 11.03.2025. The Complainant did not examine any other
witnesses and closed his evidence by way of separate statement on
11.03.2025. The matter was then listed for recording the statement of the
accused under Section 313 Cr.P.C read with Section 281 Cr.P.C.
D. Statement of the accused under Section 313 Cr.P.C read with Section
281 Cr.P.C.
10. The statement of the accused under Section 313 Cr.P.C read
with Section 281 Cr.P.C was recorded by this court on 08.04.2025 and all
the incriminating evidences put forward by the complainant was put to the
accused wherein, the accused reiterated the defence took by him in the
notice put to him under Section 251 Cr.P.C. and stated that the property in
question was sold by the father of the accused to the complainant. The
accused agreed that an amount of Rs.15,00,000 was paid by the
SHUBHANGI
complainant as earnest money. The accused further stated the complainant SRIVASTAVA
wanted to re-sell the property in question and for the same, the complainant
approached the father of the accused. The accused further stated that the Digitally signed
by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 5 of 25 15:49:01 +0530
father of the accused handed over the cheque in question to the complainant
for security and it was decided that when the property in question is re-sold,
the father of the accused shall repay the amount to the complainant and the
complainant shall return the cheque in question. The accused further stated
that the complainant did not return the cheque in question and also misused
the same. The accused also stated that the cheque in question was presented
by the complainant twice, pursuant to which, the accused stopped the
payment. The accused further stated that the property in question is
currently locked and not being used and that the keys of the property are
also in possession of the accused. The accused further stated that he is
willing to hand over the possession of the property in question to the
complainant, upon payment of the remaining balance amount by the
complainant on bank interest rate to be calculated from the date of
agreement. The accused further stated that he does not wish to lead defence
evidence and therefore, no witnesses were examined by the accused in his
defence. Accordingly, the matter was listed for final arguments.
E. Final Arguments
11. Final arguments were addressed by both the parties and were
heard in length by this court.
12. The complainant in his final arguments has argued that the
accused has admitted the agreement to sell (Mark A) entered into between
the complainant and the father of the accused and hence, the accused
cannot later deny the validity of the said agreement. The complainant SHUBHANGI
SRIVASTAVA
further argued that the accused is still in the possession of the keys of the
property in question and hence, the accused has neither repaid the earnest Digitally signed
by SHUBHANGI
money to the complainant nor has given the possession of the property to SRIVASTAVA
Date: 2025.06.13
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CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 6 of 25
the complainant. The complainant further alleged that the accused was a
witness to the agreement to sell and hence, the accused was fully aware of
the contents of the agreement. The accused has not adduced any evidence
to prove his case. The complainant also argued that the legal notice is also
admitted by the accused and further, no reply was filed by the accused and
hence, it can be presumed that the accused has admitted the contents of the
legal notice. The complainant further argues that the accused has admitted
that the cheque in question is from his account and has further, not disputed
the amount in the cheque in question. The accused has also admitted his
signatures on the cheque in question and hence, the presumption under
Section 139 of NI Act is raised in favor of the complainant. The
complainant has finally argued that the accused has not been able to rebut
the presumption u/s139 of NI Act and the complainant has been able to
prove its case beyond reasonable doubt.
13. Per Contra, the accused in his final argument, has argued that
the agreement to sell was entered into between the complainant and the
father of the accused and hence, the real dispute is not with the accused.
The accused further argued that the cheque in question was given to the
complainant as a security cheque as the complainant started committing
violence. The accused also argued that the agreement to sell is not valid,
however, if the same is to be considered valid, then as per clause 8 of the
agreement to sell, the earnest money is liable to be forfeited, as the
complainant failed to perform it. The accused further argued that the legal SHUBHANGI
SRIVASTAVA
notice filed by the complainant is not valid as the same does not bear the
signature of the complainant. The accused argued that the complainant has Digitally signed by
SHUBHANGI
SRIVASTAVA
failed to prove its case beyond reasonable doubt and the accused has been Date: 2025.06.13
15:49:26 +0530
able to raise doubt in the case of the complainant.
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 7 of 25
14. I have heard the submissions made by counsel for both the
parties and have also perused the record thoroughly.
F. Legal provisions and the legal principles:
15. Before appraising the facts and appreciating the evidences of
the present case in detail, it is imperative to encapsulate the relevant legal
provisions germane to the adjudication of the present case. The present
complaint case has been filed under Section 138 of the NI Act alleging the
dishonour of the cheque in question bearing number 000070 dated
19.06.2021 amounting to Rs. 15,00,000.
16. Section 138 of the NI Act mandates that the dishonour of a
cheque is an offence. It is therefore imperative to refer the bare provision of
Section 138 of the NI Act and the same is as follows:
“Where any cheque drawn by a person on an account
maintained by him with a banker for payment of any
amount of money to another person from out of that
account for the discharge, in whole or in part, of any
debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the
credit of that 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
that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to
any other provisions of this Act, be punished with SHUBHANGI
SRIVASTAVA
imprisonment for a term which may be extended to
two years, or with fine which may extend to twice the
amount of the cheque, or with both. Digitally signed
by SHUBHANGI
Provided that nothing contained in this section shall SRIVASTAVA
apply unless- Date: 2025.06.13
15:49:38 +0530CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 8 of 25
(a)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;
(b)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; and
(c)the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or, as the case may be, to the holder in due course of
the cheque, within fifteen days of the receipt of the
said notice. Explanation. –For the purposes of this
section, “debt or other liability” means a legally
enforceable debt or other liability.]”
17. In the case of Kusum Ingots and Alloys Ltd. vs. Pennar
Peterson Securities Ltd. (2000) 2 SCC 745, the Hon’ble Supreme Court has
expounded the ingredients which are required to be fulfilled in order to
constitute an offence under Section 138 of the NI Act. The relevant portion
of the said judgment laying down the ingredients to be satisfied for making
out a case under Section 138 of the NI Act is reproduced as under:
i. First Ingredient: “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. Second Ingredient: “that cheque has been presented to SHUBHANGI
SRIVASTAVA
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 SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:49:51 +0530CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 9 of 25
iii. Third Ingredient: “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. Fourth Ingredient: “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 15 days of the receipt of information by him from the
bank regarding the return of the cheque as unpaid”;
v. Fifth Ingredient: “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”
18. A drawer of the cheque can be said to have committed an
offence under Section 138 of the NI Act only when all the above-mentioned
ingredients are fulfilled. It is pertinent to note that Section 138 of the NI
Act cannot be read in isolation and it has to be read with certain legal
presumptions which arise in favour of the payee or holder in due course
and the said presumptions are enunciated under Section 139 and 118 of the
NI Act. Section 139 of the NI Act reads as follows: SHUBHANGI
SRIVASTAVA
“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 Digitally signed
the discharge, in whole or in part, or any debt or other liability.” by SHUBHANGI
SRIVASTAVA
Furthermore, Section 118 (a) of the NI Act deals with presumption of Date: 2025.06.13
15:50:01 +0530
consideration and provides that:
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 10 of 25
“Until the contrary is proved, it shall be presumed that every
negotiable instrument was made or drawn for consideration, and
that every such instrument, when it has been accepted, endorsed,
negotiated or transferred, was accepted, endorsed, negotiated or
transferred for consideration.”
G. Undisputed/ Uncontroverted facts
19. In the present case, the accused in the notice put to him under
Section 251 Cr.P.C., in the admission/denial of documents under Section
294 Cr.P.C and further in his statement recorded under Section 313 Cr.P.C
has admitted the fact that the cheque in question is from his own account.
Therefore, it is not in dispute that the cheque in question i.e Ex. CW 1/1 has
been drawn on an account maintained by the accused. Further, the accused
in the admission/ denial of documents has also admitted the bank return
memo i.e. Ex. CW 1/2. Hence, the bank return memo stating the reason for
the return of the cheque in question as “Refer to Drawer” is also not in
dispute. Further, the accused has also admitted the receipt of legal notice
which is Ex. CW 1/3. The accused has further also admitted his signatures
on the cheque in question. Hence, all the essential ingredients of Section
138 NI Act can be said to have been fulfilled.
H. Points for determination:
Thus, following points remain to be determined by this court:
a) Whether the presumption under section 118(a) and section 139 of the SHUBHANGI
SRIVASTAVA
NI Act can be raised in favour of complainant in the present case?
b) If the answer to the aforesaid is in affirmative, whether the accused Digitally signed
by SHUBHANGI
SRIVASTAVA
has been able to rebut the said presumptions by raising a probable defence? Date: 2025.06.13
15:50:12 +0530I. Reasons for the decision:
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 11 of 25
a) Whether the presumption under section 118(a) and section 139 of the
NI Act can be raised in favour of complainant in the present case?
20. The first question which needs to be determined is whether the
presumption under Section 118(a) and Section 139 of the NI Act can be
raised in favour of complainant in the present case. Section 118 (a) and
Section 139 of the NI Act provide for legal presumptions as to the issuance
of the cheque by the accused in favour of the complainant for consideration
and in discharge of a legally enforceable debt or other liability.
21. In Rangappa V. Sri Mohan, (2010) 11 SCC 441, a three-judge
bench of the Hon’ble Supreme Court of India observed that, Section 139 of
the NI Act is stated to be an example of a reverse onus clause which is in
tune with the legislative intent of improving the credibility of negotiable
instruments. The Hon’ble Supreme Court observed that the offence
under Section 138 of the NI Act is at best a regulatory offence and largely
falls in the arena of a civil wrong and therefore the test of proportionality
ought to guide the interpretation of the reverse onus clause. It was further
held that in a case where the accused admits the cheque from his account
and also admits his signature on the cheque in question, the presumption
under Section 118 of NI Act and under Section 139 of NI Act shall be
raised by the court. As both the provisions use the phrase “shall”, hence, it
is a mandatory presumption and the court is bound to raise the said
presumptions once both the facts are admitted by the accused.
SHUBHANGI
22. In K. Bhaskaran vs. Sankaran Vaidhyan Balan (1999) 7 SCC SRIVASTAVA
510, it has been held by the Hon’ble Supreme Court that if the signature on
Digitally signed
the cheque is admitted to be that of the accused, then the presumption as by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:50:23 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 12 of 25
provided under Section 118 of the NI Act is applicable and it can legally be
inferred that the cheque was made or drawn for consideration on the date
which the cheque bears. Furthermore, in Kalamani Tex vs. P.
Balasubramanian (2021) 5 SCC 283, it was further held by the Hon’ble
Apex Court as follows:
“The statute mandates that once the signature(s) of
an accused on the cheque/negotiable instrument is
established, then these ‘reverse onus’ clauses become
operative. In such a situation, the obligation shifts upon
the accused to discharge the presumption imposed upon
him.”
23. In this context, it is also imperative to refer the decision of the
Hon’ble Apex court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418
wherein it was held as follows:
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. SHUBHANGI
SRIVASTAVA
Digitally signed
by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:50:34 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 13 of 25
24. Now upon application of the said legal principles in the
present facts and circumstances of the case, it is apparent that the accused,
in the notice put to him under Section 251 Cr.P.C, in the admission denial
of documents under Section 294 Cr.P.C and in his statement recorded under
Section 313 Cr.P.C, has admitted the fact that the cheque in question was
from his account and further admitted his signatures on the cheque in
question. Therefore, it is concluded that the presumption under Section
118(a) and Section 139 of the NI Act is raised in favour of complainant in
the present case. Thus, it is presumed that the cheque in question was
issued in favour of the complainant in discharge of a legally recoverable
debt or other liability.
b) Whether the accused has been able to rebut the said
resumptions by raising a probable defence?
25. At this stage, it is imperative to understand that though the
presumptions under Section 118 and 139 of NI Act are mandatory
presumptions as it uses the term “shall”, however, the said presumptions
are rebuttable in nature. It is further to be understood that once the
presumptions under Section 118 and Section 139 of NI Act are raised by
the court, the burden to rebut the said presumptions fall on the accused. In
the present case, as already discussed, presumptions under Section 118 and
Section 139 of NI Act have been raised by this court, Hence, now the
burden shifts on the accused and the moot question to be determined is
whether the accused has been able to rebut the said presumptions by raising
a probable defence. SHUBHANGI
SRIVASTAVA
26. In Rangappa vs. Sri Mohan (2010) 11 SCC 441 it was held by
Digitally signed
a three-judge bench of the Hon’ble Supreme Court of India that “an by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:50:45 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 14 of 25
accused cannot be obligated to rebut the presumption drawn through an
unduly high standard of proof.” This is in light of the observations laid
down by a coordinate Bench of the Hon’ble Supreme Court in Hiten P.
Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 whereby it was clarified
that the rebuttal ought not to be undertaken conclusively by an accused,
which is reiterated as follows:
“23. 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’
[Section 3, Evidence Act].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 reasonable probable,
the standard of reasonability being that of a reasonable
man.”
27. It is a settled law that the presumption under Section 118(a)
and Section 139 of the NI Act is a rebuttable presumption and the accused
can rebut the said presumption by raising a probable defence on a scale of
preponderance of probabilities or by discrediting or creating doubt on the
case of the complainant. The standard of proof expected from the accused
to establish the probability of his defence is not the same as the standard of SHUBHANGI
SRIVASTAVA
proof expected from prosecution or complainant in a criminal trial. While
the complainant or prosecution is expected to prove its case beyond Digitally signed
by SHUBHANGI
reasonable doubt, the accused is expected to prove his defence on the scale SRIVASTAVA
Date:
2025.06.13
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of preponderance of probabilities. Therefore, it is imperative to analyse the
facts, appreciate the evidences on record and examine the defence of the
accused in the present case.
DEFENCES TAKEN BY THE ACCUSED
The cheque in question was issued as a security cheque
28. The accused, in the notice put to him under Section 251 Cr.P.C
and in his statement recorded under Section 313 Cr.p.C has taken the
defence that the cheque in question was issued to the complainant for the
purpose of security. In this context, it is imperative to refer to the decision
of the Hon’ble Supreme Court in Sripati Singh Vs. State of Jharkhand
(2021) SC 606, in which it is laid down 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 time
frame 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 be entitled to present the same. On such
presentation, if the same is dishonoured, the SHUBHANGI
consequences contemplated under Section 138 SRIVASTAVA
and the other provisions of N.I. Act would
flow”. Digitally signed
by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:51:05 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 16 of 25
29. In the present case, the accused has stated that an amount of
Rs.15,00,000 was given by the complainant to the father of the accused as
earnest money/bayana. However, later, the complainant decided to re-sell
the property in question and for the same, the complainant approached the
father of the accused. The father of the accused gave the cheque in
question, admittedly signed by the accused, to the complainant as a security
cheque. Further, the father of the accused assured the complainant that in
case the property in question is re-sold, the father of the accused shall repay
the entire amount to the complainant and the complainant agreed to return
the cheque in question. Thus, the accused has admitted that pursuant to the
agreement to sell, an oral agreement was entered between the complainant
and the father of the accused to re-sell the property in question and for the
same, the cheque in question was given to the complainant as a security
cheque. Further, the accused has nowhere stated that the property in
question was re-sold by the father of the accused. Rather, the accused in his
statement recorded under section 313 Cr.P.C has stated that the keys of the
property in question is still in his possession.
30. Thus, if the version of the accused is to be believed, then it
can be inferred that an assurance was given to the complainant that the
property in question shall be re-sold and then the entire amount shall be
repaid to the complainant. Upon the said assurance, the complainant had
taken the cheque in question amounting to Rs.15,00,000. The accused or
the father of the accused neither re-sold the property in question nor re-paid
the admitted amount of Rs.15,00,000 to the complainant. Further, the
property in question is also in the possession of the accused, as the keys of
SHUBHANGI
the property is admitted to be in the possession of the accused. As a result, SRIVASTAVA
the fact that the cheque in question was only given as a security cheque is
Digitally signed
not a tenable defence. by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:51:16 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 17 of 25
31. The purpose of a security cheque is to assure the other party that
the payment/loan amount shall be paid and in case, the same is not paid
within a stipulated period/reasonable time, the party shall have the right to
secure the payment by depositing the cheque in the bank. In the present
case also, nothing has been brought on record by the accused to prove that
the amount of Rs.15,00,000 was repaid to the complainant. Further, the
accused has not even asserted the fact that an amount of the cheque has
been repaid to the complainant. In these circumstances, when the cheque
amount has not been repaid to the complainant, the accused cannot later
come up with the defence that the cheque was only issued for security
purpose.
The particulars in the cheque in question were not filled by the accused
32. The accused has admitted his signatures on the cheque in
question and has also admitted the amount in the cheque in question.
However, the accused has denied filling in the particulars like the name and
the date on the cheque in question. The position in law has been explained
in the judgment of Hon’ble Delhi High Court in Ravi Chopra Vs State &
Anr (2008), the court observed that “under the scheme of the NI Act it is
possible for the drawer of a cheque to give a blank cheque signed by him to
the payee and consent either impliedly or expressly to the said cheque
being filled up at a subsequent point in time and presented for payment by
the drawee. There is no provision in the NI Act which either defines the
difference in the handwriting or the ink pertaining to the material
particulars filled up in comparison with the signature thereon as SHUBHANGI
SRIVASTAVA
constituting a ‘material alteration’ for the purposes of Section 87of NI Act.
What however is essential is that the cheque must have been signed by the Digitally signed
by SHUBHANGI
drawer. If the signature is altered or does not tally with the normal SRIVASTAVA
Date: 2025.06.13
15:51:28 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 18 of 25
signature of the maker, that would be a material alteration. Therefore, as
long as the cheque has been signed by the drawer, the fact that the ink in
which the name and figures are written or the date is filled up is different
from the ink of the signature is not a material alteration for the purposes of
Section 87 of NI Act.”
33. In consideration of above, it is a settled law that filling of
particulars of cheque by any person other than the drawer does not
invalidate the cheque and shall still attract the presumption under Section
139 of the NI Act. The same was held by the Hon’ble Supreme Court of
India in the decision cited as Bir Singh Vs. Mukesh Kumar 4 SCC CC.
Thus, mere denying of the fact that the particulars in the cheque in question
were not filled by him, does not discharge the burden of proof of the
accused in light of admitting the signatures on the cheque in question.
Existence of Debt or Liability
34. In the present case, the complainant in his evidence by way of
affidavit (Ex. CW1/A) has testified that he had entered in an agreement to
sell (Mark A) with the father of the accused and has paid an amount of
Rs.15,00,000 as earnest amount. The complainant later got to know that the
father of the accused was selling the property in question to a third person,
and hence, approached the father of the accused for refund of earnest
money in accordance with the agreement. Pursuant to which, the accused
issued the cheque in question to the complainant. The cheque in question
and return memo are exhibited by the complainant.
SHUBHANGI
SRIVASTAVA
35. On the other hand, the case of the accused is different. The
accused admitted the agreement to sell entered between the complainant
Digitally signed
and the father of the accused. However, the accused stated that the by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:51:38 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 19 of 25
transaction was between the complainant and the father of the accused and
hence, the accused does not owe any liability towards the complainant.
36. In this context, it is imperative to analyse that the accused has
admitted the cheque in question is from his account and that the cheque in
question bears his signature. The fact that the accused is the drawer of the
cheque is not denied. The Hon’ble Supreme Court in Bijoy Kumar Moni v.
Paresh Manna & Anr. (2024 INSC 1024) discussed the Scope of the
expression “any debt or other liability” appearing in Section 138 of NI Act
and held that:
“52. Section 138 of the NI Act NI Act does not envisage
that only those cases where a cheque issued towards the discharge
of the personal liability of the drawer towards the payee gets
dishonoured would come within the ambit of the provision. The
expression “of any debt or other liability” appearing in Section
138 NI Act when read with the Explanation to the provision is
wide enough to bring any debt or liability which is legally
enforceable within its fold. Thus, the requirement under the
provision is that the debt or any other liability has to be legally
enforceable and the emphasis is not on the existence of such debt
or other liability between the drawer and the payee. A number of
decisions of this Court have clarified that even those cases where
a person assumes the responsibility of discharging the debt of
some other person, and in furtherance thereof draws a cheque on
an account maintained by him, which subsequently gets
dishonoured upon being presented before the drawee, would be
covered by Section 138 if the payee is able to establish that there
was some sort of an arrangement by way of which the debt was
assumed by the drawer”.
37. In another judgment delivered by the Hon’ble Supreme Court
SHUBHANGI
in ICDS Ltd. v. Beena Shabeer and Another reported in (2002) 6 SCC 426, SRIVASTAVA
reference was made to the nature of liability which is incurred by the one
who is a drawer of the cheque and observed that if the cheque is given Digitally signed
by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:51:48 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 20 of 25
towards any liability or debt which might have been incurred even by
someone else, the person who is the drawer of the cheque can be made
liable under Section 138 of the Act.
38. Thus, upon applying the above-discussed principles to the
present case, it can be clearly inferred that even though the transaction and
agreement to sell took place between the complainant and the father of the
accused and that the complainant paid the earnest money of Rs.15,00,000
to the father of the accused, the accused cannot be exonerated of his
liability. The accused is the drawer of the cheque in question. The Hon’ble
Supreme Court in Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 has
held, that bare denial of the passing of the consideration and existence of
debt, apparently would not serve the purpose of the accused. Something
which is probable has to be brought on record for getting the burden of
proof shifted to the complainant.
39. The fact that the cheque in question was drawn from an
account maintained by the accused and was signed by the accused are
sufficient to raise presumption under Section 139 of the NI Act. Further, the
accused cannot later deny his liability towards the complainant by stating
that the transaction was only between the complainant and the father of the
accused. Even though, the accused was discharging the liability of his
father, the same is sufficient to arise a liability of the accused within the
meaning of Section 138 of NI Act.
40. The accused has also stated that the cheque in question was
issued to the complainant by the father of the accused and not by him. In
SHUBHANGI
this context, it is imperative to note that the accused has stated that the SRIVASTAVA
father of the accused has asked the accused to issue the cheque in question
Digitally signed
by SHUBHANGI
to the complainant and the accused accordingly, gave the cheque in SRIVASTAVA
Date: 2025.06.13
15:51:58 +0530
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 21 of 25
question to the father of the accused. Even if the version of the accused is
to be believed, the entire thing took place within the knowledge of the
accused and the accused has nowhere alleged any foul play or act of
compulsion or coercion while issuing the cheque in question. The cheque in
question was wilfully signed by the accused and the amount in the cheque
in question was also filled by the accused. Further, the accused on his own
will gave the cheque in question to his father, which was later handed over
to the complainant. Thus, the accused cannot later deny owing any liability
towards the complainant on the ground that the cheque in question was not
directly handed over to the complainant by him, rather it was given by the
father of the accused.
Forfeiture of Earnest Money
41. The complainant in his complaint has relied upon copy of
agreement to sell (Mark A) entered between the complainant and the father
of the accused. The original agreement to sell has not been brought on
record by the complainant. However, the said agreement to sell has been
relied upon even by the accused in his statement put to him under Section
313 Cr.P.C. The accused has admitted that the agreement to sell was
entered between the complainant and the father of the accused and has
stated that as the complainant failed to execute the sale deed, hence, as per
the agreement to sell, the earnest money/bayana amount paid by the
complainant, stands forfeited. As the agreement to sell has been admitted
by the accused, the same is taken into consideration.
42. Having said that, it is also pertinent to mention that the
SHUBHANGI
accused in his statement under Section 313 Cr.P.C has stated that the SRIVASTAVA
complainant did not pursue the agreement and further approached the father
of the accused for the re-sale of the flat. Pursuant to which, the cheque in Digitally signed
by SHUBHANGI
SRIVASTAVA
Date:
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 22 of 25 2025.06.13
15:52:10 +0530
question was issued as a security cheque to the complainant. On one hand,
the accused is relying on the agreement to sell and is taking the defence that
as the complainant failed to execute the agreement, hence the bayana
amount is liable to be forfeited. On the other hand, the accused himself is
stating that the father of the accused agreed to re-sell the property in
question and agreed to pay the amount to the complainant. This version of
the accused casts serious doubts on the conduct of the accused and makes it
further unreliable.
43. It is pertinent to mention that the accused has stated that the
complainant failed to execute the sale deed, however, no evidence has been
adduced by the accused to prove that there was a willingness on the part of
the father of the accused to execute the sale deed. In an ordinary course of
business, when one party fails to execute sale deed, it is quite plausible that
some efforts are made by the other party to show willingness to perform on
their part. However, the same has neither been asserted and nor being
proved in the present case. Further, the fact that the cheque in question was
issued to the complainant itself corroborates the fact that the accused and
the father of the accused did not pursue the agreement to sell. There
appears no ground to believe that even though the accused and the father of
the accused were willing to perform the agreement, however, the cheque in
question was issued to the complainant for security purpose. Hence, this
defence of the accused is also highly tenable and defies logic.
Misuse of the cheque in question by the complainant
44. The accused has further argued that the complainant has filed
a false case against him by misusing the cheque in question. In this context, SHUBHANGI
SRIVASTAVA
it is important to understand that the accused has neither proved nor averred
about any steps that were taken by him against the complainant for the Digitally signed
by SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 23 of 25 15:52:18 +0530
misuse of the cheque in question as alleged by him. Any prudent man of
ordinary understanding would be vigilant enough to ensure that a blank
signed cheque given by him to another person is returned at the given time.
Further, even if the accused did not take his cheque back from the
complainant, then the accused could have proceeded against the
complainant at the time when the cheque was presented by the complainant
and the same got dishnoured. The accused could have also written to the
bank or inquired from the bank about the alleged misuse of the cheque in
question. Further, the accused did not take any action against the
complainant when the legal notice demanding the cheque amount in
question was sent by the complainant to him. It is pertinent to mention that
the receipt of the legal notice is admitted by the accused. The conduct of
the accused in not lodging any complaint against the complainant for the
alleged misuse of the cheque in question is indeed perplexing and defies
logic and it also raises an adverse inference against the accused. In these
circumstances, the defence raised by the accused does not even appear to
be probable and the said defence has remained unproved during the entire
trial. Merely making a statement that the cheque was misused or that it does
not represent any legally recoverable debt or liability is not sufficient in
itself to rebut the statutory presumptions envisaged under the NI Act.
Therefore, the argument as to the alleged misuse of the cheque in question
is bereft of any merits
45. It is also pertinent to mention that the accused has nowhere
disputed the amount of the cheque in question. Merely asserting that the
accused does not owe any liability towards the complainant is not sufficient
SHUBHANGI
to discharge the burden cast upon the accused to disprove the legal liability SRIVASTAVA
presumed in favour of the complainant.
Digitally signed
by SHUBHANGI
K. Decision: SRIVASTAVA Date: 2025.06.13 15:52:28 +0530 CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 24 of 25
46. In the considered opinion of this court, the accused has not
been able to raise a probable defence even on the scale of preponderance of
probabilities. The accused has failed to probabalise his defence even on the
scale of preponderance of probabilities and has miserably failed to rebut the
mandatory presumptions of law envisaged under Section 118 and 139 of
the NI Act. All the facts, circumstances and the evidences on record when
considered and analysed together render the defence of the accused
unworthy of credence and also cast a grave suspicion and doubt on the
defence put forth by the accused. Furthermore, nothing substantial has been
brought on record by the accused during the entire trial to falsify and
discredit the case of the complainant. The defence of the accused has not
been substantiated by any cogent evidence and the entire defence of the
accused is unworthy of credence for various reasons, as already discussed.
47. Accordingly, the accused is hereby convicted for the offence
punishable under section 138 of the NI Act.
SHUBHANGI
Announced in the Open Court on this 13 June, 2025. th SRIVASTAVA
This Judgment consists of 25 signed pages. Digitally signed by
SHUBHANGI
SRIVASTAVA
Date: 2025.06.13
15:52:40 +0530
(Shubhangi Srivastava)
JMFC-05 (NI ACT)/South-East
Saket Courts, Delhi/13.06.2025
Earlier-JMFC, NI(DC-05)
South-West District,
Dwarka Courts, New Delhi
CC NO. 25381/2021 Sukh Pal Singh vs. Rishi Kumar Batra page 25 of 25
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