Delhi District Court
Bindu Alias Bindu Kumari Alias Renu … vs Ankesh Kumar Patel on 15 July, 2025
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
DLSE010010582025
CRL. APPEAL No. 44/2025
BINDU @ BINDU KUMARI @ RENU SINGH
D/O LALARAM
R/o H. NO. 1-1001, N-BLOCK, MANGOLPURI
NORTH WEST, DELHI-110083
Also At:
H.NO. B-110, GALI NO. 5
(NEARBY SHIVANI SCHOOL),
AMBEDKAR COLONY, CHATTARPUR,
SOUTH DELHI, NEW DELHI-110074
....Appellant
versus
ANKESH KUMAR PATEL
S/o SH. YOGESHWAR PRASAD
R/o H.NO. J-21, PREM NAGAR,
JAITPUR, SOUTH DELHI-110044.
...Respondent
Date of institution : 30.01.2025
Date of Reserving judgment : 06.06.2025.
Date of Pronouncement : 15.07.2025
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LOVLEEN
Digitally signed
by LOVLEEN
Date:
2025.07.15
16:23:25
+0530
JUDGMENT
1. This is an appeal under section 415 (2) BNSS, 2023 preferred by the
appellant/convict against the impugned judgment dated 25.10.2024 and
order on sentence dated 16.11.2024 passed by Court of Ld. Judicial
Magistrate First Class-(NI Act), Digital Court- 02, South East District in
CC 10155/2022 titled Ankesh Kumar Patel Vs. Bindu @ Bindu Kumari,
whereby the appellant/ convict Bindu @ Bindu Kumari @ Renu Singh was
convicted of the offence punishable under Section 138 of Negotiable
Instruments Act and was directed to pay a fine of Rs.1,70,000/- to the
complainant/ respondent within 60 days from the date of order. In default
of payment of the above stated fine, the appellant/ convict is to undergo
simple imprisonment for a period of three months. For the sake of
convenience, the appellant/ convict herein shall be referred to as ‘accused’
and the respondent herein shall be referred to as ‘complainant’.
BRIEF FACTS
2. The facts of the case put forth by the complainant against the
accused have been correctly noted by the Ld. Magistrate in her impugned
judgment. The relevant paragraphs are reproduced hereinafter for ready
reference:-
“…………………………………………………………………………..
………………………………………………………………. …………
2. The complainant’s case is that the complainant and accused are
well known to each other and they were having friendly relations.
In the first week of December, 2019, the accused requested and
demanded a friendly loan of Rs. 1,70,000/-from the complainantCrl. Appeal No: 44/2025 Bindu @ Bindu Kumari @ Renu Singh vs Ankesh Kumar Patel 2/33
LOVLEENDigitally signed
by LOVLEEN
Date: 2025.07.15
16:23:29 +0530
for starting a shop for business on assurance that the loan amount
shall be returned within one year. Thereafter, believing the version
of accused and considering the need and friendly relations, the
complainant gave a friendly loan of Rs. 1,70,000/- to the accused
through DD bearing no. 864902 of PNB, Branch Nehru Enclave,
Kalkaji, New Delhi on 31.12.2019. Thereafter, accused again
requested and demanded a friendly loan of Rs. 30,000/- from
complainant for her business and promised to refund the same
within one year. The said amount of Rs. 30,000/- was transferred
by the complainant in the bank account of accused.
3. On several demands of the complainant, the accused returned
only Rs. 30,000/- out of the total loan amount of Rs. 2,00,000/-,
while the remaining outstanding liability of the accused is of
Rs.1,70,000/-. In discharge of her legal liability, accused issued a
cheque bearing no. 000023, dated 31.05.2022, Bandhan Bank,
Branch Vasant Kunj, New Delhi 110070 of Rs. 1,70,000/-
(hereinafter referred to as the ‘cheque in question’) in favor of the
complainant but when the said cheque was presented three times
by the complainant, the same was dishonoured for the reason
“funds insufficient” vide return memo dated 02.06.2020,
08.06.2022 and 16.08.2022.
4. Thereafter, the complainant sent a legal demand notice dated
30.08.2022 U/S 138 of the NI Act asking the accused to make the
payment of the cheque amount, which was duly served upon the
accused, however, accused failed to make the payment despite
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Digitally
signed by
LOVLEEN
LOVLEEN Date:
2025.07.15
16:23:35
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delivery of the legal demand notice. Hence, being aggrieved, the
complainant has filed the present complaint and prayed that the
accused be summoned, tried and punished under Section 138 of
the NI Act. ………… …………………………………………….
……………………………………………………………………”
TRIAL
3. Vide order dated 15.12.2022, the Ld. Magistrate concerned
summoned the accused to face trial u/s 138 NI Act. On 24.04.2023, a notice
u/s 251 Cr.P.C. was framed upon the accused wherein she admitted her
signatures on the cheque. She also admitted that all the particulars were
filed by her except date on the cheque in question. She also admitted the
service of legal demand notice and the address mentioned on the same to be
correct. In defence, accused submitted that:- “I have taken Rs. 1,70,000/-
from the complainant out of which I have already returned Rs. 1,20,000/-
to the complainant by making payment of Rs. 10,000/- every month. I had
given the cheque in question to the complainant when I had taken loan
from him. I have outstanding liability of Rs. 50,000/- towards the accused.”
(emphasis supplied)
4. During trial, the complainant examined himself as CW-1 in support
of his allegations against the accused in this case. Statement of accused was
recorded u/s 313 Cr.P.C. In defence evidence, the accused examined herself
as DW-1 and one Vikram Vig as DW-2. Upon the conclusion of trial,
accused was convicted of the offence punishable u/s 138 NI Act vide the
impugned judgment dated 25.10.2024.
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LOVLEEN
Digitally signed
by LOVLEEN
Date: 2025.07.15
16:23:38 +0530
GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement
are as under :
A). Because the Ld. Trial Court failed to appreciate and
properly evaluate the material evidence on record, specifically
the WhatsApp chat between the Appellant and the
Respondent/Complainant dated 28.05.2022 (exhibitedDW1/A).
The said WhatsApp chat clearly establishes that the
Respondent/Complainant was already in possession of the
alleged cheque on the said date, as he threatened the Appellant
that, in the event of her failure to make the monthly instalment,
he would present the alleged cheque for encashment.
Furthermore Respondent/Complainant admitted in WhatsApp
chat that the alleged cheque is an old cheque as evident from
the conversation between the Appellant and
Respondent/Complainant dated on WhatsApp dated
11.07.2022.
This evidence directly contradicts the
Respondent/Complainant’s deposition before the Learned Trial
Court, wherein he falsely stated that he received the alleged
cheque from the Appellant on 31.05.2022. Such an inconsistent
and contradictory statement on the part of the
Respondent/Complainant not only undermines the credibility
of his testimony but also demonstrates his mala fide intent to
falsely implicate and harass the Appellant.
The Learned Trial Court erred in failing to consider this
glaring contradiction, which is critical the to of determination
of the genuineness the Respondent/Complainant’s case. This
oversight has resulted in a gross miscarriage of justice,
warranting interference by this Hon’ble Court.
The Learned Trial Court erred in law and fact by failing to
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Digitally
signed by
LOVLEEN
LOVLEEN Date:
2025.07.15
16:23:41
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appreciate the material evidence on record, which
unequivocally demonstrates that out of the alleged total
amount of Rs. 1,70,000/-, the Appellant had already repaid a
sum of Rs. To 1,20,000/- to the Respondent/Complainant. This
fact is conclusively established through the WhatsApp
communications exchanged the between Appellant and the
Respondent/Complainant, exhibited as DW1/A, and further
corroborated by the Appellant’s bank statements, exhibited as
DW1/B.The specific bifurcation of the payments made by the
Appellant, as supported by the aforementioned evidence, is as
follows:
a) From August 2020 to May 2021 Rs.50,000/-withdrawn from
the Appellant’s ATM by the Respondent/Complainant on
several occasions.
b) June 2021 5,000/- paid at the residence of the Appellant.
c) July 2021 5,000/- paid at a metro station.
d) 11.08.2021 5,000/- paid at a metro station.
e) 06.09.2021 10,000/- paid at TV Hospital.
f) 05.10.2021 9,999/- transferred via PhonePe.
g) 09.11.2021 9,000/- transferred via PhonePe.
h) 08.12.2021 6,000/- paid at Chhattarpur Mandir.
i) 08.02.2022 10,000/- paid at Chhattarpur Cafe.
j) 01.04.2022 10,000/- paid at Chhattarpur Cafe.
The evidence unequivocally proves that the
Respondent/Complainant received the aforementioned
payments, leaving an outstanding balance far less than the
alleged amount of Rs1,70,000/-. The Learned Trial Court
failed to appreciate the Appellant’s contention that the
Respondent/Complainant, despite receiving substantial
payments of Rs. 1,20,000/-, sought to misuse the provisions of
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Digitally
signed by
LOVLEEN
LOVLEEN Date:
2025.07.15
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Section 138 of the Negotiable Instruments Act, 1881, to
unjustly enrich himself and harass the Appellant.
The Trial Court further erred in not considering that the
payments made by the Appellant were corroborated by
contemporaneous WhatsApp communications, as well as
banking records, which were not challenged or disproved by
the Respondent/Complainant.
B). Because in the WhatsApp chat between the Appellant and
Respondent/Complainant dated 11.07.2022,
Respondent/Complainant texted the Appellant –
“Unhone bola ki madam ko bola hu kijitna Paisa baki hai usme
se kuch cash Dene ke baad”, “Jo bachega uska cheque de
degi”, “Or old 1,70,000 ka cheque Return kardena hai”, “Or
Aap batayiye”
The above conversation clearly shows that the Appellant was
making regular payments to Respondent/Complainant and the
recovery amount was far less than the amount of mentioned on
alleged cheque i.e. Rs. 1,70,000/-.
C). Because the legally enforceable debt was only Rs. 50,000/-
as on the date of presentment of cheque, at the time of issuing
legal demand notice and at the time of filing of the complaint
U/S 138 Negotiable Instrument Act, 1881 in case titled as
“ANKESH KUMAR PATEL VS. BINDU @ BINDU KUMARI
@RENU SINGH” with case No. CC NI ACT 10155/2022
before learned Trial Court.Itis pertinent to mention herein that
the Hon’ble Supreme Court in its judgement in Dashrathbhai
Trikambhai Patel v. Hitesh Mahenrabhai Patel. (Crl. A. No.
1479/2022), observed that Sections 138 and 56 of NI Act, 1881
mandate that when a part-payment of the debt is made after
the cheque was drawn but before the cheque is encashed, such
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LOVLEEN
Digitally signed
by LOVLEEN
Date: 2025.07.15
16:23:49 +0530
payment must be endorsed on the cheque under Section 56 of
the Act, 1881. As such, the cheque cannot be presented for
encashment without recording the part payment, and such an
endorsement can be made by a). recording the part payment,
or b). the debt in the cheque or a note appended to the cheque.
In consequence, if the unendorsed cheque is dishonoured on
presentation, the offence under Section 138 would not be
attracted since the cheque does not represent a legally
enforceable debt at the time of encashment.
Furthermore, the Supreme Court also laid specific emphasis on
the High Court of Kerela Division Bench’s case of Joseph
Sartho υ. Gopinathan, that since “the representation in the
cheque was for a sum higher than the amount that was due on
the date that it was presented for encashment, the drawer of
the cheque cannot be convicted for the offence under Section
138 of the Act, 1881.”.
Therefore, the Ld. Trial Court could not have convicted the
appellant under sec 138 of NI Act, 1881 as part payments
amounting to a sum of Rs. 1,20,000/-was made by the
appellant after the cheque was drawnbut before the cheque
was presented for encashment. That the sum of Rs. 1,70,000/-
represented on the cheque, as such, was not a legally
enforceable debt on the date of presentment of cheque.
D). Because in para 27 of the impugned order, Ld. Trial Court
observed that the Appellant admitted receiving a sum of Rs.
5,000 and Rs. 25,000 into her bank account from the
complainant on 04.02.2020 and 05.02.2020, but the Ld. Trial
Court missed to see fact that the the said transaction is not
being reflected in the bank statement of Appellant exhibited as
DW1/B. The relevant portion of the final order is reproduced
herein;
LOVLEEN
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Digitally signed
by LOVLEEN
Date: 2025.07.15
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“During defence evidence, DW-1 admitted receiving a sum of
Rs. 5,000 and Rs. 25,000 into her bank from the complainant
on 04.02.2020 and 05.02.2020, She deposed that this amount
was transferred by the complainant to the accused as he
urgently required cash, but had forgotten his ATM card at
home, therefore he transferred the said amount to the account
of the accused and withdrew the same from the account of the
complainant. The accused placed reliance upon her bank
statement from 01.12.2019 till 31.12.2022 which is-Ex. DWI/B
(colly). During cross examination, upon specifically being
asked if she could show the withdrawal of Rs. 5,000 and Rs
25,000 from her account, DW-1 deposed that she could not
show the same as the same was not reflecting in Ex. DW1/B.”
E). Because Para no. 30 and 31 clearly shows that the Ld.
Trial Court got confused between the fact of the case and
statement made by the DW2. DW 2 in his statement states that
in the month of Nov,2022 appellant borrowed a sum of Rs.
60,000/- to repay the Complainant against the full and final
settlement of Rs. 50,000/-.That the Ld. Trialcourt erroneously
included the said amount in total payment made by the
appellant to Complainantreached to the conclusion in para no.
31 that there is contradiction in the statement of DW – 2 and
the Appellant. The relevant portion of the final order is
reproduced herein;
“30. On the other hand, DW-2 deposed in his examination in
chief that the accused had paid Re 1, Rs. 9,999/- and Rs.
9000/-through Phone Pay to the complainant in his presence,
however, during cross examination he stated that he cannot tell
the date, month or year when the accused had paid Rupee One,
Rs. 9,999/- and Rs. 9,000/- through Phone Pay to the
complainant as it was not given in his presence. He furtherLOVLEENCrl. Appeal No: 44/2025 Bindu @ Bindu Kumari @ Renu Singh vs Ankesh Kumar Patel 9/33
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LOVLEEN
Date: 2025.07.15
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stated that the accused returned Rs. 1,20,000 to the
complainant, out of which Rs. 50,000 was made in his presence
at Chhatarpur metro station by way of ATM withdrawal by
complainant from account of the accused, Rs. 60,000 was
borrowed by the accused from DW-2 to be paid to the
complainant, Rs. 19,000 was paid in the presence of DW-2
through PhonePay, and Rs. 40,000 was paid in his presence in
4 instalments of Rs. 10,000 each paid at Chhatarpur metro
station, Nehru Place, Chhatarpur Café, and Burger King at
PVR Anupama.
31. The aforementioned payments amount to a total of Rs.
1,69,000/- whereas the accused in her evidence admitted to
paying only Rs. 1,20,000 to the complainant, and the same is
also reflected in Ex. DW 1/A. When DW-2 was confronted
with the said contradiction, he stated that he could not tell if
Ex. DW/1A was a wrong document. He further stated that the
additional amount may have been paid on account of
interest”
F). Because in Para no. 33 the Ld. Trial court misinterpreted
the testimony of DW2. The Ld. trial court in the said para of
the impugned judgment observed that DW2 in his testimony
deposed that he advanced Rs. 60,000/- to the
Appellant/accused sometime in the November December
2022for making payment to the Respondent/Complainant,
however the complaint was already been filed in October
2022. The Ld. Trial court, failed to consider that the amount
was borrowed by Appellant to arrive at full and final
settlement with the Respondent/ Complainant by making a
payment of Rs. 50000/- out of the borrowed amount of Rs.
60.000/-This fact is also deposed by the Appellant in court
during trial wherein she deposed that she offered to pay Rs.
50,000/- as full and final settlement which was refused by
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signed by
LOVLEEN
LOVLEEN Date:
2025.07.15
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Respondent/Complainant. This fact is also admitted by the
Respondent/Complainant in his cross-examination dated
04.09.2023 wherein he deposed “It is correct that on previous
date of hearing, accused was ready and willing to give me Rs.
50,000/- which I refused. (the outstanding amount is
Rs.1,70,000/- and not Rs. 50,000/-).
G). Because the impugned judgment and order is entirely
based on the presumption drawn on by the Ld. Trial Court
under section 118A and 139 of the Negotiable Instrument Act.
Ld. trial court failed to appreciate the fact that the Appellant
placed sufficient material and evidence on record to rebut the
presumption under enumerated under section 118A and 139of
the Negotiable Instrument Act.
Ld. trial court failed to appreciate that once the accused
adduces evidence to the satisfaction of the Court that on a
preponderance of probabilities there exists no debt/liability in
the manner pleaded in the complaint or the demand notice or
the affidavit-evidence, the burden shifts to the complainant and
the presumption ‘disappears’ and does not haunt the accused
any longer. The onus having shifted to the complainant, he is
obliged to prove the existence of a debt/liability as a matter of
fact and his failure to prove it would result in dismissal of his
complaint case.
H). Because evidence affidavit of complainant Ex. CW-1/1 was
not signed before the notary rather as admitted by the
complainant in his cross-examination. The relevant extract of
cross-examination of the complainant dated 04.09.2023 is
reproduced here for ready reference: It is correct that my
Affidavit of evidence has been prepare by my counsel. The
content of affidavit was read over to me by my counsel. I do
not know the meaning of vernacular language. I do not know
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LOVLEEN
Digitally signed
by LOVLEEN
Date:
2025.07.15
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where the affidavit was attested(vol. It was attested by my
counsel).It is correct that I did not visit any Notary public and
did not sign in the register of notary public.
I). Because the impugned judgment is based on the surmises
and conjectures and therefore, liable to be set aside.
J). Because the impugned order/judgment is against the well
settled law on the point involved in the case and the findings of
the Learned Trial Court are perverse, contrary to evidence on
record, and result in miscarriage of justice. a
Κ). Because learned trial court erred in not appreciating that
Hon’ble Delhi High court in Shail Kumari US Saraswati
Devihas held as under: –
18. There are other rules also which deal with how the
endorsement is to be made at the documents which are not
admitted in evidence, the documents which are required to be
placed in strong cover, the consequences of not properly
admitting documents etc. However, Rule 18 which has
relevance to the controversy raised is necessary to be noticed.
It is as follows:
“It is the duty of the Court, before hearing arguments, finally to
revise the record which is to form the basis of its judgment and
to see that it contains all that has been formally admitted in
evidence and nothing else. Any papers still found with the file,
which have not been admitted in evidence, should be returned
to the parties.
Appellate Courts should examine the records of cases coming
before them on appeal with a view to satisfying themselves that
subordinate Courts have complied with the provisions of theLOVLEEN
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law and instructions of the High Court on the subject, and
should take serious notice of the matter when it appears that
any Court has failed to do so.”
L). Because in Baldeo Sahai v. Ram Chander and Ors. AIR
(1931) Lahore 546 it was held:
“There are two stages relating to documents. One is the stage
when all the documents on which the parties rely are filed by
them in Court. The next stage is when the documents are
proved and formally tendered in evidence. It is at this later
stage that the Court has to decide whether they should be
admitted or rejected. If they are admitted and proved then the
seal of the Court is put on them giving certain details laid
down by law, otherwise the documents are returned to the
party who produced them with an endorsement therein to that
effect.”
M). Because the Ld. Trial Court has relied upon the judgment
titled as “Krishna Janardhan Bhat V. Dattatraya G. Hegde,
(2008) 4 SCC 54 but the Ld. Trial court failed to consider the
further observation made by Hon’ble Apex Court in para 33
and 34 of the Judgment relied upon by the Ld. Trial Court. The
observation made by the Hon’ble Apex Court is reproduced
below:
“33. But, we may at the same time notice the development of
law in this area in some jurisdictions.
The presumption of innocence is a human right. Article 6(2) of
the European Convention on Human Rights provides:
“Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law”. Although India
is not bound by the aforementioned Convention and as such it
may not be necessary like the countries forming European
LOVLEENDigitally signed
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countries to bring common law into land with the Convention,
a balancing of the accused rights and the interest of the society
is required to be taken into consideration. In India, however,
subject to the statutory interdicts, the said principle forms the
basis of criminal jurisprudence. For the aforementioned
purpose the nature of the offence, seriousness as also gravity
thereof may be taken into consideration. The courts must be on
guard to see that merely on the application of presumption as
contemplated under Section 139 of the Negotiable Instruments
Act, the same may not lead to injustice or mistaken conviction.
It is for the aforementioned reasons that we have taken into
consideration the decisions operating in the field where the
difficulty of proving a negative has been emphasized. It is not
suggested that a negative can never be proved but there are
cases where such difficulties are faced by the accused e.g,.
honest and reasonable mistake of fact.
In a recent Article “The Presumption of Innocence and Reverse
Burdens: A Balancing Duty” published in [2007] C.L.J.
(March Part) 142 it has been stated:
In determining whether a reverse burden is compatible with the
presumption of innocence regard should also be had to the
pragmatics of proof. How difficult would it be for the
prosecution to prove guilt without the reverse burden? How
easily could an innocent defendant discharge the reverse
burden? But courts will not allow these pragmatic
considerations to override the legitimate rights of the
defendant. Pragmatism will have greater sway where the
reverse burden would not pose the risk of great injustice where
the offence is not too serious or the reverse burden only
concerns a matter incidental to guilt. And greater weight will
be given to prosecutorial efficiency in the regulatory
environment.
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34. We are not oblivious of the fact that the said provision has
been inserted to regulate the growing business, trade,
commerce and industrial activities of the country and the strict
liability to promote greater vigilance in financial matters and
to safeguard the faith of the creditor in the drawer of the
cheque which is essential to the economic life of a developing
country like India. This, however, shall not mean that the
courts shall put a blind eye to the ground realities. Statute
mandates raising of presumption, but it stops at that. It does
not say how presumption drawn should be held to have
rebutted. Other important principles of legal jurisprudence,
namely presumption of innocence as human rights and the
doctrine of reverse burden introduced by Section 139 should be
delicately balanced. Such balancing acts, indisputably would
largely depend upon the factual matrix of each case, the
materials brought on record and having regard to legal
principles governing the same.”
Ν). Because the Ld. Trial Court incorrectly appreciated and
placed incorrect interpretation on the oral evidence and
documents on record.
O). Because the sentencing procedure wherein the appellant
has been directed to pay compensation to the respondent is
against the procedure established by law.
P). Any other ground/judicial pronouncement (s), during
arguments with the permission of this Hon’ble Court.
6. It is prayed that the impugned judgment dated 25.10.2024 and the
order on sentence dated 16.11.2024 may be set aside.
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SUBMISSIONS OF COMPLAINANT
7. On the other hand, Ld. Counsel for the complainant has argued that
the accused has been correctly convicted by the Ld. Magistrate. He prays
for dismissal of the appeal filed by the accused.
DISCUSSION
8. This Court has considered the oral submissions as well as the
records.
9. Recently, the Hon’ble Supreme Court was pleased to define the
contours of the law relating to the provision u/s 138 of Negotiable
Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The
relevant extracts of the observations are reproduced below for ready
reference:-
Section 138 of the NI Act – Necessary Ingredients
25. Essentially, in all trials concerning dishonour of
cheque, the courts are called upon to consider is whether
the ingredients of the offence enumerated in Section 138 of
the Act have been met and if so, whether the accused was
able to rebut the statutory presumption contemplated by
Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel (2022) 11
SCC 705 , this Court has unpacked the ingredients forming
the basis of the offence under Section 138 of the NI Act in
the following structure:
(1) The drawing of a cheque by person on do
LOVLEEN
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account maintained by him with the banker for the
payment of any amount of money to another from
that account;
(i) The cheque being drawn for the discharge in
whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank
arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank
as unpaid either because the amount of money
standing to the credit of that account is insufficient
to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due
course making a demand for the payment of the
amount to the drawer of the cheque within 30 days
of the receipt of information from the bank in
regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make
payment of the amount of money to the payee or
the holder in due course within 15 days of the
receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999)
7 SCC 510 this Court had summarised the constituent
elements of the offence in fairly similar terms by holding:
“14. The offence Under Section 138 of the Act can
be completed only with the concatenation of a
number of acts.The following are the acts which
are components of the said offence: (1) drawing of
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bank, (3) returning the cheque unpaid by the
drawee bank, (4) giving notice in writing to the
drawer of the cheque demanding payment of the
cheque amount, (3) failure of the drawer to make
payment within 15 days of the receipt of the
notice.”
28. The five (5) acts as set out in K Bhaskaran‘s case
(supra) are, generally speaking, matters of record and
would be available in the form of documentary evidence as
early as, at the stage of filing the complaint and initiating
prosecution. Apart from the above acts, it is also to be
proved that cheque was issued in discharge of a debt or
liability (Ingredient no. (ii) in Gimpex‘s case). The burden
of proving this fact, like the other facts, would have
ordinarily fallen upon the complainant. However, through
the introduction of a presumptive device in Section 139 of
the NI Act, the Parliament has sought to overcome the
general norm as stated in Section 102 of the Evidence Act
and has, thereby fixed the onus of proving the same on the
accused. Section 139, in that sense, is an example of a
reverse onus clause and requires the accused to prove the
non-existence of the presumed fact, i.e., that cheque was not
issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual
Underpinnings
29. There are two senses in which the phrase ‘burden of
proof’ is used in the Indian Evidence Act, 1872 (Evidence
Act, hereinafter). One is the burden of proof arising as a
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matter of pleading and the other is the one which deals with
the question as to who has first to prove a particular fact.
The former is called the ‘legal burden’ and it never shifts,
the latter is called the ‘evidential burden’ and it shifts from
one side to the other. [See Kundanlal v. Custodian Evacuee
Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which
remains constant throughout a trial. It is the burden of
establishing the facts and contentions which will support a
party’s case. If, at the conclusion of the trial a party has
failed to establish these to the appropriate standards, he
would lose to stand. The incidence of the burden is usually
clear from the pleadings and usually, it is incumbent on the
plaintiff or complainant to prove what he pleaded or
contends. On the other hand, the evidential burden may
shift from one party to another as the trial progresses
according to the balance of evidence given at any particular
stage; the burden rests upon the party who would fail if no
evidence at all, or no further evidence, as the case may be is
adduced by either side (See Halsbury’s Laws of England,
4th Edition para 13). While the former, the legal burden
arising on the pleadings is mentioned in Section 101 of the
Evidence Act, the latter, the evidential burden, is referred to
in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987
AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999)
3 SCC 35] ]
31. Presumption, on the other hand, literally means
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“taking as true without examination or proof”. In Kumar
Exports v. Sharma Exports (2009) 2 SCC 513, this Court
referred to presumption as “devices by use of which courts
are enabled and entitled to pronounce on an issue
notwithstanding that there is no evidence or insufficient
evidence.”
32. Broadly speaking, presumptions are of two kinds,
presumptions of fact and of law. Presumptions of fact are
inferences logically drawn from one fact as to the existence
of other facts. Presumptions of fact are rebuttable by
evidence to the contrary. Presumptions of law may be either
irrebuttable (conclusive presumptions), so that no evidence
to the contrary may be given or rebuttable. A rebuttable
presumption of law is a legal rule to be applied by the Court
in the absence of conflicting evidence (Halsbury, 4th
Edition paras 111, 112]. Among the class of rebuttable
presumptions, a further distinction can be made between
discretionary presumptions (‘may presume’) and
compulsive or compulsory presumptions (‘shall presume’).
[G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which
fit within one of three forms: ‘may presume’ (rebuttable
presumptions of fact), ‘shall presume’ (rebuttable
presumption of law) and conclusive presumptions
(irrebuttable presumption of law). The distinction between
‘may presume’ and ‘shall presume’ clauses is that, as
regards the former, the Court has an option to raise the
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presumption or not, but in the latter case, the Court must
necessarily raise the presumption. If in a case the Court has
an option to raise the presumption and raises the
presumption, the distinction between the two categories of
presumptions ceases and the fact is presumed, unless and
until it is disproved, [G.Vasu V. Syed Yaseen (Supra)]
Section 139 NI Act-Effect of Presumption and Shifting of
Onus of Proof
34. The NI Act provides for two presumptions: Section
118 and Section 139. Section 118 of the Act inter alia directs
that it shall be presumed, until the contrary is proved, that
every negotiable instrument was made or drawn for
consideration. Section 139 of the Act stipulates that ‘unless
the contrary is proved, it shall be presumed, that the holder
of the cheque received the cheque, for the discharge of,
whole or part of any debt or liability’. It will be seen that
the ‘presumed fact’ directly relates to one of the crucial
ingredients necessary to sustain a conviction under Section
138.
35. Section 139 of the NI Act, which takes the form of a
‘shall presume’ clause is illustrative of a presumption of
law. Because Section 139 requires that the Court ‘shall
presume’ the fact stated therein, it is obligatory on the Court
to raise this presumption in every case where the factual
basis for the raising of the presumption had been
established. But this does not preclude the person against
whom the presumption is drawn from rebutting it and
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proving the contrary as is clear from the use of the phrase
‘unless the contrary is proved’.
36. The Court will necessarily presume that the cheque
had been issued towards discharge of a legally enforceable
debt/liability in two circumstances. Firstly, when the drawer
of the cheque admits issuance/execution of the cheque and
secondly, in the event where the complainant proves that
cheque was issued/executed in his favour by the drawer. The
circumstances set out above form the fact(s) which bring
about the activation of the presumptive clause. [ Bharat
Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding
that presumption takes effect even in a situation where the
accused contends that ‘a blank cheque leaf was voluntarily
signed and handed over by him to the complainant. [Bir
Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore,
mere admission of the drawer’s signature, without admitting
the execution of the entire contents in the cheque, is now
sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to
prove that the instrument, say a cheque, was issued by the
accused for discharge of debt, the presumptive device under
Section 139 of the Act helps shifting the burden on the
accused. The effect of the presumption, in that sense, is to
transfer the evidential burden on the accused of proving
that the cheque was not received by the Bank towards the
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discharged by the accused, the presumed fact will have to
be taken to be true, without expecting the complainant to do
anything further.
39. John Henry Wigmore12 on Evidence states as
follows:
“The peculiar effect of the presumption of law is merely to
invoke a rule of law compelling the Jury to reach the
conclusion in the absence of evidence to the contrary from
the opponent but if the opponent does offer evidence to the
contrary (sufficient to satisfy the Judge’s requirement of
some evidence), the presumption ‘disappears as a rule of
law and the case is in the Jury’s hands free from any rule.”
40. The standard of proof to discharge this evidential
burden is not as heavy as that usually seen in situations
where the prosecution is required to prove the guilt of an
accused. The accused is not expected to prove the non-
existence of the presumed fact beyond reasonable doubt.
The accused must meet the standard of ‘preponderance of
probabilities’, similar to a defendant in a civil proceeding.
[Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the
contrary, it is open to the accused to raise a probable
defence wherein the existence of a legally enforceable debt
or liability can be contested. The words ‘until the contrary
is proved’ occurring in Section 139 do not mean that
accused must necessarily prove the negative that the
instrument is not issued in discharge of any debt/liability
but the accused has the option to ask the Court to consider
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the non-existence of debt/liability so probable that a
prudent man ought, under the circumstances of the case, to
act upon the supposition that debt/liability did not exist.
[Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See
also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC
513]25
42. In other words, the accused is left with two options.
The first option-of proving that the debt/liability does not
exist-is to lead defence evidence and conclusively establish
with certainty that the cheque was not issued in discharge of
a debt/liability. The second option is to prove the non-
existence of debt/liability by a preponderance of
probabilities by referring to the particular circumstances of
the case. The preponderance of probability in favour of the
accused’s case may be even fifty one to forty nine and
arising out of the entire circumstances of the case, which
includes: the complainant’s version in the original
complaint, the case in the legal/demand notice,
complainant’s case at the trial, as also the plea of the
accused in the reply notice, his 313 statement or at the trial
as to the circumstances under which the promissory
note/cheque was executed. All of them can raise a
preponderance of probabilities justifying a finding that
there was ‘no debt/liability’. [Kumar Exports and Sharma
Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential
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documentary evidence or admissions made by the opposite
party; it may comprise circumstantial evidence or
presumption of law or fact.
44. The accused may adduce direct evidence to prove
that the instrument was not issued in discharge of a
debt/liability and, if he adduces acceptable evidence, the
burden again shifts to the complainant. At the same time,
the accused may also rely upon circumstantial evidence
and, if the circumstances so relied upon are compelling the
burden may likewise shift to the complainant. It is open for
him to also rely upon presumptions of fact, for instance
those mentioned in Section 114 and other sections of the
Evidence Act. The burden of proof may shift by
presumptions of law or fact. In Kundanlal’s case- (supra)
when the creditor had failed to produce his account books,
this Court raised a presumption of fact under Section 114,
that the evidence, if produced would have shown the non-
existence of consideration. Though, in that case, this Court
was dealing with the presumptive clause in Section 118 NI
Act, since the nature of the presumptive clauses in Section
118 and 139 is the same, the analogy can be extended and
applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the
accused adduces evidence to the satisfaction of the Court
that on a preponderance of probabilities there exists no
debt/liability in the manner pleaded in the complaint or the
demand notice or the affidavit-evidence, the burden shifts to
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the complainant and the presumption ‘disappears’ and does
not haunt the accused any longer. The onus having now
shifted to the complainant, he will be obliged to prove the
existence of a debt/liability as a matter of fact and his
failure to prove would result in dismissal of his complaint
case. Thereafter, the presumption under Section 139 does
not again come to the complainant’s rescue. Once both
parties have adduced evidence, the Court has to consider
the same and the burden of proof loses all its importance.
[Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See
also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
EXISTENCE OF STATUTORY PRESUMPTIONS
10. Trial court record reflects that at the time of framing of notice u/s
251 Cr.P.C, the accused admitted that the cheque in question belongs to her
and also bears her signatures and all the particulars on the cheque except
the date. The accused also admits the handing over of the cheque in
question to the complainant albeit for a different purpose then what is
claimed by the complainant. Admittedly, the cheque in question was
dishonored upon being presented for encashment by the complainant. A
legal notice was then sent by the complainant to the accused demanding the
amount due under the cheque in question. Service of the said legal notice is
admitted by the accused at the time of framing of notice u/s 251 CrPC.
Admittedly, the accused did not make any payment demanded vide the said
legal notice within the period prescribed u/s 138 of NI Act. All the above
facts are sufficient to invoke the presumptions available to the complainant
u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood
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transferred upon the accused to prove that the cheque in question was not
issued towards discharge of any liability. Until the said evidential burden is
discharged by the accused, the presumptions available against the accused
u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true,
without expecting the complainant to do anything further. The said burden
could be discharged by the accused either by leading defence evidence to
conclusively establish that the cheque was not issued in discharge of a
debt / liability or by proving the non existence of debt / liability on
preponderance of probabilities by referring to the particular circumstances
of the case. The nature of evidence required to shift the evidential burden
need not necessarily be direct evidence. Once the accused produces such
evidence, the burden shifts back to the complainant and the above
mentioned presumptions disappear.
REBUTTAL OF STATUTORY PRESUMPTIONS
11. Now, the question left to be decided is whether the said presumptions
have been successfully rebutted by the accused or not. In order to
adjudicate the same, this Court must deal with the facts adduced on record
by the accused during the cross-examination of complainant or during the
defence evidence.
12. The said adjudication requires an understanding of the respective
stands taken by the parties.
13. As per complainant, the cheque in question was handed over by the
accused in order to repay the friendly loan of Rs. 1,70,000/-, advanced via
a demand draft drawn on PNB. Complainant examined himself as a witness
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during the course of trial.
14. On the other hand, the accused denies any such liability and claims,
in response to notice framed upon her u/s 251 Cr.P.C, that “I have taken Rs.
1,70,000/- from the complainant out of which I have already returned Rs.
1,20,000/- to the complainant by making payment of Rs. 10,000/- every
month. I had given the cheque in question to the complainant when I had
taken loan from him. I have outstanding liability of Rs. 50,000/- towards
the accused”. In her statement recorded u/s 313 Cr.PC, the accused states
that the demand draft referred to by the complainant was for an NGO
namely Gyan Ganga Kalyan Sangh, where she was working. She further
states that she was told to return the amount of demand draft, which she did
in installments of Rs. 10,000/- each. She further states that the cheque in
question was issued as a ‘security’ at the time of receipt of said demand
draft. Accused examined herself as DW-1 and one Vikram Vig as DW-2 in
defence.
15. Now we delve into the oral testimony of complainant, who examined
himself as CW-1. CW-1 deposed in line with the facts mentioned in the
afore-going paragraphs. He was duly cross-examined on behalf of the
accused. However, nothing material could be brought on record by accused
so as to create any doubt in the case set up by the complainant. In fact ,
CW1 has flatly denied all the suggestions given by the accused inline with
the plea of defence recorded at the time of framing of notice u/s 251 CrPC.
Rather, this Court notes that during the course of cross-examination of said
witness, certain relevant admissions were made by the accused. The
relevant extracts of the cross-examination are reproduced for ready
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reference:-
“………………………………………………………………
The amount of cheque in question is Rs. 1,70,000/-. The
accused has not paid any amount to me. (Vol. Rs. 2,00,000/-
was given to the accused as loan and she has repaid only Rs.
30,000/- to me. The statement of account is not on record). It
is correct that no document/ loan agreement was executed
between us. ……………………….. The loan was given by way
of DD on 31.12.2019. It is correct that I did not see any
document of the accused to assure if the loan was taken for
business purposes. (vol. I had faith in the accused and this is
why upon her request I issued DD)………….. Rs. 30,000/-
was given to the accused by way of UPI in two trenches of Rs.
5000/- and Rs. 25,000/-. It is correct that I did not inform the
husband of the accused. (Vol. The husband was not
concerened with the loan). It is correct that I have demanded
the cheque amount from the accused. It is correct that we
used to conversed over whatsapp) ………………………………
………………………………………………………………………”
(Cross-examination of CW1 Sh. Ankesh Kumar Patel dated
04.09.2023 )
16. The above cross-examination clearly reflects that the accused admits
that she availed a loan from complainant through a Demand Draft. The said
admission is binding upon the accused in view of the observations made by
Hon’ble Supreme Court in Balu Sudam Khalde and Anr. Vs. State of
Maharashtra 2023 SCC Online SC 355. In view of the above admission as
well as the admissions made by the accused at the time of framing of notice
u/s 251 CrPC (to the effect that she took a sum of Rs. 1,70,000/- from the
complainant and that she herself had handed over the cheque in question to
the complainant at the time of availing the said loan), all the relevant
arguments of the accused disputing the above aspects are liable to be
discarded. That being so, in the considered opinion of this Court, it could
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be safely held that the accused has not been able to rebut the statutory
presumptions operating against her during the course of cross-examination
of CW1.
17. Proceeding further, this Court notes that accused has examined
herself as DW-1 in her defence. DW-1 deposed as under during the course
of his examination-in-chief:-
“I know the complainant since many years. I did not request or
demanded any friendly loan from the complainant for Rs.
1,70,000/- but it was the complainant who had handed over a
DD for Rs. 1,70,000/- to me as I used to work in an NGO. I
asked the complainant as to how I shall return the amount as
the DD is in my name but the complainant assured me that the
payment can be made in installments and there is no rush. After
six-seven months, the complainant demanded a cheque from
me. I gave the cheque in question as a blank signed cheque to
the complainant in the year 2020. At the time of lockdown, the
complainant along with five to six other people used to visit my
residence and demand his money back. I could not return the
amount in one installment but I returned the amount of Rs.
1,20,000/- in various installments like Rs. 50,000/- out of which
Rs. 40,000/- was given from my account and Rs. 10,000/- was
given in cash. Thereafter, I paid various installments of Rs.
10,000/- by way of cash and account transfer. Till date, I have
paid a total amount of Rs. 1,20,000/- to the complainant and I
am ready to pay rest of the amount of Rs. 50,000/- to the
complainant. I have whatsapp chat with the accused which is
Mark DW1/A.”
18. It is very much apparent from the above oral testimony of DW-1 that
she has deposed contrary to her plea of defence recorded at the time of
framing of notice u/s 251 CrPC. This court must note that at the time of
framing of notice u/s 251 CrPC, the accused admits that she took a sum of
Rs. 1,70,000/- from the complainant and she herself had handed over the
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cheque in question to the complainant at the time of availing said loan.
However, accused deposes as DW1 that she did not request or demand any
loan from the complainant, rather it was the complainant who handed over
a demand draft of Rs. 1,70,000/- to her as she was working in an NGO. Not
only she fails to clarify the above contradiction, she also fails to explain as
to why the complainant would hand over a demand draft for Rs. 1,70,000/-
to her merely because she was working in an NGO. That apart, at the time
of framing of notice u/s 251 CrPC, the accused admits that she handed over
the cheque in question to the complainant at the time of availing loan from
complainant (i.e. in the year 2019). However, accused deposes as DW1 that
she handed over the cheque in question to the complainant in the year
2020. Accused has failed to explain the above contradictions as well.
Moving further, this Court notes that at the time of framing of notice u/s
251 CrPC, the accused admits that the particulars in the cheque in question,
except the date, were filled by her. However, accused deposes as DW1 that
the cheque in question was blank at the time it was handed over to the
complainant. Accused has failed to explain the above contradictions also.
In the absence of any reasonable and logical explanation towards the above
contradictions, this court finds it appropriate to reject the oral testimony of
DW1 as far as the same is concerned with respect to the above aspects.
19. Be that as it may, it is a fact that the principle of ‘falsus in uno,
falsus in omnibus’ does not apply in India. As such, this Court could not
reject the entire oral testimony of DW1 in a wholesale manner and is rather
required to deal with the same as per the prescribed standards of law. Here,
this Court must observe that DW1 has deposed that she has returned a sum
of Rs. 1,20,000/- to the complainant and therefore her existing liability is to
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the extent of Rs. 50,000/- only. In this regard, DW1 relies upon her bank
statement Ex. DW1/B and her whatsapp chats with the complainant Ex.
DW1/A. It would be appropriate to mention here that the impugned
judgment dated 25.10.2024 reflects that the Ld. Magistrate has dealt with
the said defence of the accused at length between paras 27 to 34. There is
no doubt about the fact that DW1 has not placed on record any direct
documentary proof regarding her claim as to the repayment of Rs.
1,20,000/- to the complainant. That apart, this Court finds that the bank
statement Ex. DW1/B does not seem to corroborate her claim regarding
repayment of Rs. 1,20,000/- to the complainant. However, TCR reflects
that the whatsapp chat Ex. DW1/A, accompanied by a certificate u/s 65 B
of IEA, between the complainant and accused bears acknowledgement by
complainant regarding receipt of atleast a sum of Rs. 1,00,000/- from the
accused and an outstanding sum of Rs. 1,00,000/- before 04.01.2022.
Complainant has not disputed the said whatsapp chat Ex. DW1/A, nor has
he claimed that the above acknowledgement relates to some other
transaction between the parties. Complainant has not bothered to explain as
to why he has made the said acknowledgement in favour of the accused. In
the absence of any such explanation from the complainant, a reasonable
doubt indeed arises as to the total quantum of the outstanding amount
recoverable by him from the accused. This doubt probablises the defence of
the accused that she had already returned a lion’s share of the loan availed
by her from the complainant and that her outstanding liability is not Rs.
1,70,000/-. This fact shifts the evidential burden upon the complainant and
discharges all the statutory presumptions operating against the accused.
Admittedly, complainant has not placed any other material to rebut the
claim of the accused.
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DECISION
20. In view of the above discussions, this Court is constrained to hold
that appellant Bindu @ Bindu Kumari @ Renu Singh is liable to be
acquitted. Ordered accordingly. Needless to say, the impugned judgment
25.10.2024 and the order on sentence dated 16.11.2024 are hereby set
aside. Digitally signed
by LOVLEEN
Date:
LOVLEEN
Announced & Dictated in the 2025.07.15
16:25:42
Open Court today i.e. 15.07.2025 +0530(Lovleen)
ASJ-03 (South East)
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