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Delhi District Court
Rajinder Kumar vs Gaurav Kapoor on 12 June, 2025
IN THE COURT OF BHUJALI,
JMFC. - 01, NORTH DISTRICT
ROHINI COURTS, DELHI.
JUDGMENT
Rajinder Kumar
R/o I-4/92, 2nd Floor, Sector 16,
Rohini Delhi 110089
………….Complainant
Versus
Gaurav Kapoor S/o Sh. Kamal Kapoor
F-17/27 and 28 ,Sector 15,
Rohini Delhi 110085
……………. Accused
a) Unique/new case number : 3399/2016
b) Name of complainant : Rajinder Kumar
c) Name of accused person(s) :Gaurav Kapoor S/o Sh. Kamal
Kapoor
F-17/27 and 28 Sector 15,
Rohini Delhi 110085
e) Offence complained of : Under Section 138 of N. I.
Act,1881
f) Plea of accused person(s) : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 12.06.2025
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 1 of 17
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
(As mandated u/s 355 (i) of the Code of Criminal Procedure, 1973.)
Case of the complainant
1. The present Judgment is a result of culmination of trial initiated on
the complaint filed by the complainant alleging that the complainant and
accused were known to each other and by showing the rosy dreams of
high interest the accused obtained a loan of Rs 5,10,000/- at 48% per
annum interest in May 2012 from the complainant and to discharged the
said liability the accused issued and handed over the a cheque no.
060135 dated 26.10.2012 drawn on SBI, Pascon Building, Garg Trade
Centre, Sector 11, Rohini Delhi in favour of the complainant to clear up
liability towards the complainant. The complainant after consultation
with the accused presented the aforesaid cheque through his banker, but
the aforesaid cheque was dishonoured by the banker of the accused for
the reason “Payment stopped by drawer”. Banker of the accused
accordingly sent their cheque returning memo alongwith aforesaid
dishonoured cheque to the banker of the complainant. The cheques and its
returning memos were sent to the complainant by his banker. On
receiving back the said dishonoured cheque, the complainant served the
requisite notice dated 01.11.2012 to the accused through his counsel
through Speed Post informing the accused that his cheque as mentioned
above has been received back dishonoured with the remarks “Payment
stopped by drawer” Further the accused was called upon to remit the
payment of amount of the said cheque within 15 days from the receipt of
this notice, but the accused despite of the service of the said demand
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 2 of 17
notice, failed to remit the payment due under the aforesaid cheque.
2. Since, the legal demand notice went unheeded, the complainant
was constrained to file the present case. The complainant examined
himself as CW-1. CW1 tendered affidavit Ex. CW-1/A and documents
Ex. CW-1/1 to Ex. CW-1/10. During cross-examination, copy of bank
statement of complainant was marked as Mark A. The ITR pertaining to
the assessment year 2013-2014 of the complainant was brought by the
complainant and the same was inadvertently marked as Mark A again.
The Defence
3. On the other hand, the accused in his plea of defence recorded on
22.11.2013, pleaded not guilty and claimed trial and took the defence that
the cheques in dispute had only been signed by him. Other particulars had
not been filled up by him. In defence accused examined himself as DW
01, Ms. Neelam Kapoor as DW -02 and Ms. Pooja Nagpal as DW -03.
The witness DW 3 Ms Pooja Nagpal was confronted with certified copy
of case titled as Rajinder Kumar Vs Pooja, CC NO. 22/2023 which is
pending in the court of Ld. ACJM, North, Rohini, Delhi(the said copy
was Ex. DW3/A). Ordersheet dated 24.02.2022 of Ld. MM, North,
Rohini, Delhi was shown to the DW 2 Ms Neelam Kapoor(the copy of
the said ordersheet was Ex. DW2/A).
The Law
4. This, in sum and substance, is that factual position in the present
case.
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 3 of 17
5. To bring home the guilt of the accused, the complainant has to
prove beyond reasonable doubt elements of Section 138 Negotiable
Instrument Act by crossing the following legal benchmarks.
a) The cheque was drawn by drawer on an account maintained
by him with the banker for payment of any amount of money out of that
account to the complainant.
b) The said payment was made for discharge of a legally
enforceable debt or other liability, in whole or in part.
c) The said cheques were returned unpaid by the bank.
d) The cheques were presented to the bank within a period of
three months from the date on which it was drawn or within the period of
its validity whichever is earlier.
e) The payee or the Holder in due course of the cheques as the
case may be made a demand for the payment of the said amount of
money by giving the notice in writing to the drawer of the cheques within
30 days of the receipt of information by him from the bank regarding the
return of the cheques as unpaid.
f) The drawer of the cheque fails to make the payment of the
said amount of money to the payee or as the case may be the Holder in
due course of the cheques within 15 days of the receipt of the said notice.
Appreciation of Evidence and Application of the law to the facts of
present case
(i) Issuing of Cheque
6. The first ingredient of offence u/s 138 N.I.Act which has to be
established by the complainant is that the cheque(s) in dispute was drawn
by the accused on an account maintained by him with his banker . To that
effect, complainant as CW-1 deposed through his affidavit to discharge
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 4 of 17
his liability the accused issued and handed over the a cheque no. 060135
dated 26.10.2012 drawn on SBI, Pascon Building, Garg Trade Centre,
Sector 11, Rohini Delhi (Ex. CW-1/3) from his bank account. The
accused in plea of defence stated that the cheques in dispute had only
been signed by him. Other particulars had not been filled up by him.
However, this defence of the accused is not tenable because no law
requires that all the columns must be filled in by he drawer/maker
himself. If signature on the cheque is admitted, the same will be
sufficient. Concept of blank signed cheque is virtually immaterial in view
of several judgment of Hon’ble High Court of Delhi viz. Ravi Chopra
Vs. State And Anr. 2008 (2) JCC (NI) 169 and Vijender Singh Vs M/s
Eicher Motors Limited & anr. Crl. M.C.No. 1454/2011 decided on
05.05.2011.
7. 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 on the accused.
8. Thus, it has been established that the cheque in dispute was drawn
by the accused on his account maintained by him with his banker
(ii) Presentment and Dishonour of Cheque(s)
9. The next ingredient to be proved by the complainant is that when
the cheque in dispute was presented for encashment, it was returned by
the bank unpaid. Complainant as CW-1 has deposed in his affidavit that
cheques in dispute was presented for encashment but the same was
dishonored due to “Payment stopped by drawer” in the account of the
accused. To substantiate his deposition CW-1 has brought on record
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 5 of 17
original Cheque (Ex. CW-1/3), original returning memo (Ex. CW-1/6).
The genuineness of the same has not been disputed by the accused.
10. Moreover, Section 146 of the Negotiable Instruments Act provides
that, the Court shall, in respect of every proceeding under this Chapter, on
production of bank’s slip or memo having thereon the official mark
denoting that the cheque has been dishonoured, presume the fact of
dishonour of such cheque, unless and until such fact is disproved.
Therefore, the factum of presentment of cheque within its period of
validity and the factum of its dishonor stands established.
(iii) Legal Demand Notice
11. The next ingredient to be proved by the complainant is that after
the dishonor of the cheque, a legal demand notice was sent to the accused
person within statutory period of 30 days of the receipt of information
about dishonor of cheque and that the accused failed to make payment of
the cheque amount within 15 days of the receipt of the said notice
12. Original postal receipts Ex. CW-1/8 ,returned envelope Ex CW-1/9,
legal demand notice dated 01.11.2012 has been placed on record as Ex.
CW-1/7. Perusal of file shows that the legal demand notice was sent
within the limitation period and was refused by the accused.
13. The accused in his statement u/s 313(5) Cr.PC stated that he did not
receive the legal demand notice. However, the accused had not disputed
his address on the legal demand notice.
14. Therefore, in such circumstances presumption under section 114 of
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 6 of 17
Evidence Act and Section 27 of General Clauses Act can be raised to the
effect that the notice was duly served upon the accused. When the notice
is sent by registered post by correctly addressing the drawer of the
cheque, the mandatory requirement of issue of notice in terms of Clause
(b) of proviso to Section 138 of the Act stands complied with. Needless to
emphasize that if any accused wants to contend that she or he has not
received the legal demand notice, such accused is at liberty to make the
payment of cheque within 15 days from the service of summons as held
by three judges bench of Hon’ble Supreme Court in C.C Alvi Haji Vs.
Palapetty Muhammed and another (2007) 6 SCC 555 wherein it has
been held as under:-
“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 alongwith the copy of the
complaint under Section 138 of the Act, cannot
obviously contend that there was no proper
service of notice as required under Section 138,
by ignoring statutory presumption to the contrary
under Section 27 of the G.C. Act, and Section 14
of the Evidence Act. In our view, any other
interpretation of the proviso would defeat the very
object of the legislation.”
15. Admittedly, accused did not make the payment of cheque
amount within 15 days of receipt of the demand notice and therefore
cause of action against the accused arose and the present complaint was
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 7 of 17
filed on 04.12.12 i.e. well within the limitation period.
(iv) Legally Enforceable Debt or other Liability- Presumption
16. Once the fundamental ingredients which gives rise to cause of
action u/s 138 N.I.Act have been established a mandatory presumption
u/s 139 of N.I.Act, is effected in favour of complainant and it also
extends to the existence of legally enforceable liability itself.
17. Accused having admitted the signature on the cheque, the
presumption under Sections 118(a) and 139, NI Act had come into effect.
For reference, aforesaid provisions are extracted as under:
“118. Presumptions as to negotiable instruments —
Until the contrary is proved, the following
presumptions
shall be made: —
(a) of consideration: — that every negotiable
instrument was made or drawn for consideration,
and that every such instrument, when it has been
accepted, indorsed, negotiated or transferred, was
accepted, indorsed, negotiated or transferred for
consideration;
139. Presumption in favour of holder — It shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature
referred to in section138 for the discharge, in whole
or in part, of any debt or other liability.”
18. A three judged bench of Hon’ble Supreme Court in Rangappa Vs.
S.Mohan (2010) 11 SCC 441 has held that:
“In the 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 dept or
liability. To the extent, the impugned observations inCC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 8 of 17
Krishna Janardhan Bhat (supra) may not be correct.
However, this does not in any way caset doubt on the
correctness of the decision in that case since it was
based on the specific facts and circumstances therein.
As noted in the citations, this is of course in the
nature of a rebuttable presumption and it is open to
the accused to raise a defence wherein the existence
of a legally enforceable debt or liability can be
contested. However, there can be no doubt that there
is an initial presumption which favours the
complainant.
19. Since in the present case, the complainant has successfully
established that the cheques in dispute were issued by the accused and the
same got dishonored and the accused failed to make the payment even
after service of statutory notice, a presumption u/s 139 N.I.Act is drawn
in favour of the complainant to the effect that the cheque in dispute was
issued by the accused for a legally enforceable debt.
(v) Rebuttal of Presumption by Accused
20. Hon’ble Supreme Court in Rangappa Vs. S.Mohan decided on
07.5.2010 has further held :-
“However, it must be remembered that the
offence made punishable by Section 138 can be
better described as a regulatory offence since the
bouncing of a cheque is largely in the nature of a
civil wrong whose impact is usually confined to
the private parties involved in commercial
transaction. In such a scenario, the test of
proportionality should guide the construction
and interpretation of reverse onus clauses and
the accused /defendant cannot be expected to
discharge an unduly high standard or proof. In
the absence of compelling justifications, reverse
onus clauses usually impose an evidentiaryCC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 9 of 17
burden and not a persuasive burden. Keeping
this in view, it is a settled position that when an
accused has to rebut the presumption under
Section 139, the standard of proof for doing so is
that of ‘preponderance of probabilities.
Therefore, if the accused I sable to raise a
probable defence which creates doubts about
the existence of a legally enforceable debt or
liability, the prosecution can fail. As clarified in
the citations, the accused can rely on the
materials submitted by the complainant in order
to raise such a defence and it is conceivable
that in some cases the accused may not need to
adduce evidence of his /her own.”
21. The presumption raised under section 139 is rebutable. The
defendant can prove non existence of consideration by raising a probable
defence. The burden upon the defendant of proving non existence of
consideration can be either direct or by bringing on record the
preponderance of probabilities by reference to the circumstances upon
which he relies. In case where the defendant fails to discharge the initial
onus of proof by showing the non existence of the consideration, the
plaintiff would invariably be held entitled to the benefit of presumption
arising under section 139 in his favour. In such a scenario the test of
proportionality should guide the construction and interpretation of reverse
onus clauses and the accused defendant can not be expected to discharge
an unduly high standard of proof. In the absence of compelling
justification, reverse onus clauses usually impose an evidentiary burden
not a persuasive burden.
22. In the present case, the court holds that the accused has succeeded
to rebut the mandatory presumption of law and has successfully
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 10 of 17
controverted the story of the complainant. The opinion of the court is
based upon following observations:
The accused has consistently taken the defence that he had never issued
the cheque to the complainant and the same was issued to one Ms Jyoti
Gera for security to a committee ( finance pooling arrangement ). The
accused have examined himself, his mother Ms. Neelam Kapoor and one
Ms. Pooja Nagpal in support of his defence.
The accused has taken contradictory defences with regard to his
signatures on the promissory note, sometimes admitting and sometimes
denying his signatures upon the same. The promissory note has been
filed on record by the complainant regarding the alleged loan advanced
i.e. Ex CW-1/4. Even if we believe that the promissory note has ben
signed by the accused, perusal of the promissory note shows that the
same belong to some ” M/s Dev Raj Finance Company” . However the
complainant has not made any averment in his complaint or during the
trial that he was operating such finance company by such name and the
accused approached the said Finance Company for a loan. It is also not
the case of the complainant that he met the accused through the said
finance company. This raises doubt upon the version of the complainant
that if the said loan is alleged to be friendly loan with the accused why a
promissory note belonging to a finance company has been produced on
record. And if the loan was not an informal friendly cash loan and was
taken through a finance company, no such loan agreement with the
finance company has been filed on record. This raises the suspicion that
the complainant has not come before the court with clean hands and is
hiding material facts about the said finance company. Additionally, theCC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 11 of 17
complainant stated that he have filed 10-12 other cases u/s 138 NI Act
against other persons.
One of the defences raised by the accused is that the complainant never
advanced such huge amount of loan i.e. Rs. 5,10,000/- to the complainant
and had no financial competence to advance the amount .It is settled
position of law that the complainant has no obligation, in all cases under
Section 138 of the Act, to prove his financial capacity. But, when the case
of the complainant is that he lent money to the accused by cash and that
the accused issued the cheque in discharge of the liability, and if the
accused challenges the financial capacity of the complainant to advance
the money, despite the presumption under Section 139 of the Act, the
complainant has the obligation to prove his financial capacity or the
source of the money allegedly lent by him to the accused.
23. Relying upon the decision of the Apex Court in
Basalingappa vs. Mudibasappa, (2019) 5 SCC 418, it is held by this
Court once there is probable defence on behalf of the accused and the
accused challenges the financial competence of the complainant,
thereafter the burden shifts on the complainant to prove his financial
capacity and other facts. A complainant in a cheque bounce case is bound
to explain his financial capacity, when the same is questioned by the
accused.
When it is proved that the complainant had no source of income to lend
huge amount to the accused, the accused is entitled to acquittal. The same
was also held in judgment dated 15-11-2014 in the case of K Subramani
Vs K Damodar Naidu reported in (2015) 1 SCC 99.
During the Cross examination of the complainant as CW-1, the
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 12 of 17
complainant was extensively questioned regarding the source of the funds
and the financial competence. The complainant in response stated that he
have not shown in his ITR the present loan transaction. The complainant
further admitted that he was not having any financial capacity to give the
loan in question to the accused. However he further stated that he had
borrowed money at 5% to 7% per month. Now the complainant has stated
in his complainant that accused by inducing the complainant and showing
rosy dreams of high interest had taken the loan at 4% per month interest.
Which is not in harmony to the stand taken by the complainant during
cross examination as the complainant himself taken loan at 5-7% interest
per month to lend to the accused, whereby instead of rosy dreams of high
interest, the complainant would be continuously loosing money due to
higher rate of interest on his part. An adverse inference can safely be
drawn against the complainant who failed to show that he acted as a
reasonably prudent person by taking loans at higher rates of interest to
lend to the accused at lower rates of interest.
The complainant failed to provide names of of the person from whom he
had taken the alleged loans . The complainant stated that he have taken
loan approximately from 5-6 persons and given loan to approximately 7-8
persons . However the names of such persons were not properly disclosed
and neither the amount or date of these financial transactions were
specified during cross examination . The complainant stated that he had
taken loan from Manjeet Sharma and Gopal Goyal but he do not
remember the date. The complainant also failed to examine any such
person from whom he had taken the loans . He stated that he had taken
loan to the tune of Rs. 50 lacs from the 5-6 persons who are resident of
Delhi. The complainant stated that he have filed 10-12 other cases u/s 138
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 13 of 17
NI Act against other persons. Thus it is evident that the complainant
himself is heavily in debt as per his own version.
The complainant has filed on record Ex CW-1/1 i.e. the copy of his
passbook reflecting a cash withdrawal at point A. Perusal of the same
shows that a huge sum of Rs 30 lakhs was received in the account of
complainant on 22.05.2012 and the same was withdrawn within the
following three days. Perusal of passbook shows that several time 9 lakhs
rupees have been withdrawn from the account of complainant. Whole
amount of Rs 29 lakhs has been withdrawn. The complainant no where
specified for what purpose the amount of Rs. 29 lakhs was withdrawn
even when the alleged loan advanced was only RS 5,10,000/-. It cannot
be ruled out that the amount of Rs. 29 laks was withdrawn for own
personal needs as the alleged loan to the accused was only RS 5,10,000/-.
In Kumar Exports Vs. Sharma Carpets, (2009) 2 SCC 513, wherein
the Apex Court examined as to when complainant discharges the burden
to prove that instrument was executed and when the burden shall be
shifted as follows.
“18. Applying the definition of the word “proved” in
Section 3 of the Evidence Act to the provisions of
Sections 118 and 139 of the Act, it becomes evident
that in a trial under Section 138 of the Act a
presumption will have to be made that every
negotiable instrument was made or drawn for
consideration and that it was executed for discharge
of debt or liability once the execution of negotiable
instrument is either proved or admitted.
As soon as the complainant discharges the burden to
prove that the instrument, say a note, was executed by
the accused, the rules of presumptions under Sections
118 and 139 of the Act help him shift the burden on the
accused. The presumptions will live, exist and survive
and shall end only when the contrary is proved by theCC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 14 of 17
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.
19.The use of the phrase “until the contrary is proved”
in Section 118 of the Act and use of the words “unless
the contrary is proved” in Section 139 of the Act read
with definitions of “may presume” and “shall presume”
as given in Section 4 of the Evidence Act, makes it at
once clear that presumptions to be raised under both
the provisions are rebuttable. When a presumption is
rebuttable, it only points out that the party on whom
lies the duty of going forward with evidence, on the
fact presumed and when that party has produced
evidence fairly and reasonably tending to show that
the real fact is not as presumed, the purpose of the
presumption is over.
20. The accused may adduce direct evidence to prove
that the note in question was not supported by
consideration and that there was no debt or liability to
be discharged by him. However, the court need not
insist in every case that the accused should disprove
the non-existence of consideration and debt by leading
direct evidence because the existence of negative
evidence is neither possible nor contemplated. At the
same time, it is clear that bare denial of the passing of
the consideration and existence of debt, apparently
would not serve the purpose of the accused. Something
which is probable has to be brought on record for
getting the burden of proof shifted to the
complainant.”
In Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand
Pyarelal, (1999) 3 SCC 35 wherein the Court dealt with the presumption
of S 118 of the Negotiable Instruments Act and held thus:
“Though the evidential burden is initially placed on
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 15 of 17
the defendant by virtue of S.118 it can be rebutted
by the defendant by showing a preponderance of
probabilities that such consideration as stated in the
pronote, or in the suit notice or in the plaint does
not exist and once the presumption is so rebutted,
the said presumption ‘disappears’. For the purpose
of rebutting the initial evidential burden, the
defendant can rely on direct evidence or
circumstantial evidence or on presumptions of law
or fact.
Once such convincing rebuttal evidence is adduced
and accepted by the Court, having regard to all the
circumstances of the case and the preponderance of
probabilities, the evidential burden shifts back to
the plaintiff who has also the legal burden.
Thereafter, the presumption under S.118 does not
again come to the plaintiff’s rescue. Once both
parties have adduced evidence, the Court has to
consider the same and the burden of proof loses all
its importance.”
The accused has successfully created reasonable doubt in the version of
the complainant and disputed his financial capacity and punched
sufficient holes in the story of the complainant.
24. In demonstrating the probability of his defence, the standard
of proof which the accused is required to meet is preponderance of
probability and not beyond reasonable doubt. On the appreciation of
entire gamut of evidence placed before the court and the totality of
circumstances obtaining in the case, the accused has been able to
establish by preponderance of probability that he does not have liability
for the cheque amount towards the complainant. The accused has been
able to punch sufficient holes in the story of the complainant disputing his
financial capacity and successfully able to rebut the presumption u/s 139
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 16 of 17
N.I.Act, which has been raised in favour of the complainant. Whereafter,
the onus fell upon the complainant to prove his case beyond
reasonable doubt and the complainant has failed to do so.
CONCLUSION
29. As such, I hold that accused succeeded to rebut the mandatory
presumption of law drawn in favour of the complainant.
30. I accordingly return a finding of not guilty against the
accused Gaurav Kapoor.
31. The accused Gaurav Kapoor is hereby acquitted for the offence
as punishable under Section 138 N.I.Act, 1881.
32. This judgment contains total 17 pages and all pages bear the
signature of undersigned.
33. This judgment is announced in the open court and dictated directly
in the computer.
Dictated and announced in the open Court. Digitally signed
by BHUJALI
BHUJALI Date:
2025.06.12
16:39:47 +0530
(Bhujali)
JMFC-1/North/Rohini/Delhi
12.06.2025.
Judgment contains 17 pages.
CC No. 3399/2016 Rajender Kumar Vs Gaurav Kapoor Page 17 of 17
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