Delhi District Court
Shivam Thareja vs Navjot Singh on 22 July, 2025
IN THE COURT OF MS. NISHTHA MEHTANI,
JUDICIAL MAGISTRATE (NI ACT), DIGITAL COURT-03
NEW DELHI DISTRICT, PHC, NEW DELHI
1.
Complaint Case : 4884/2021
number
2. Name & address of the : Shivam Thareja,
complainant S/o Sh Sunil Thareja
R/o A-281, FF, Derawal Nagar, Delhi -
110009
3. Name and address : Navjot Singh,
of the accused S/o Sh Manjit Singh Anand
R/o B-1, Second Floor, Gujranwala
Town Part-1, Model Town, New Delhi,
110 009
Also at: Shop No. 2752, Minerva
Cinema Street, Kashmere Gate, Delhi-
11 0006
4. Offence complained : Section 138, Negotiable Instruments
Act, 1881.
5. Plea of the guilt : Pleaded not guilty
6. Final Order : Convicted
7. Date of institution : 22.09.2021
8. Date on which : 07.07.2025
reserved for judgment
9. Date of judgment : 22.07.2025
Digitally
signed by
NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:35:24
+0530
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 1 of 26
BRIEF STATEMENT OF FACTS
1. Vide this judgement, this court shall dispose of the aforementioned complaint
case filed by the complainant namely Mr. Shivam Thareja, against the accused,
namely Mr. Navjot Singh, in respect of the dishonour of the cheque bearing no.
690031 dated 18.06.2021 for an amount of Rs.5,00,000/- (Rs. Five lakhs only) ,
drawn on Yes Bank Ltd. Kashmere gate branch, Delhi- 110006 (hereinafter
referred to as the “cheque in question”).
2. Succinctly put, it is the case of the complainant that the accused is a childhood
friend of the complainant and is known to the complainant since many years.
That somewhere in the year 2018-2019, the accused approached the
complainant and requested for a friendly loan from the complainant for an
amount of Rs. 1,00,000/-, which the accused required in his business and also
induced the complainant with the promise that the accused shall repay the said
friendly loan as and when demanded by the complainant. That since the accused
was a childhood friend of the complainant, therefore, the complainant advanced
a friendly loan of Rs. 1,00,000/- to the accused and instead of returning the said
friendly loan amount, the accused on different occasions approached the
complainant and requested for further amount(s) as friendly loan, which were
advanced by the complainant to the accused from time to time. That the
complainant advanced an aggregate amount of Rs. 5,30,000/- (Rupees Five
Lakhs Thirty Thousand only) to the accused on different occasions, as and when
demanded by the accused, as friendly loan upon the assurances of the accused
that the accused shall repay the said friendly loan as and when demanded by the
complainant. That in the month of August, 2020, when the complainant
requested the accused to return the friendly loan, as the complainant was in
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh Digitally
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NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
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need of finances, the accused, while acknowledging the entire liability
amounting to Rs. 5,30,000/-, requested the complainant to grant some more
time and assured the complainant that the accused shall repay the entire loan
amount within a period of 3-4 months. That few emails were also exchanged
between the accused and the complainant wherein the accused acknowledged
his liability towards the complainant and the accused on his own also gave a
written acknowledgement of the said friendly loan, to the complainant, by way
of Promissory Note and a Receipt. That in the month of June 2021, the accused
approached the complainant and in partial discharge of his admitted liability, the
accused issued the cheque in question in favour of the complainant. That
believing the commitments, assurances and promises made by the accused that
the said cheque will be duly honoured by his said Bank on presentation, the
complainant accepted the said cheque.
3. However on presentation of the above said cheque no. 690031 (hereinafter
cheque in question, the same was returned unpaid by the banker vide cheque
return memo dated 19.07.2021 with the remarks ‘funds insufficient’.
4. That thereafter the complainant issued a legal notice dated 10.08.2021, which
was duly served on the accused calling upon him to pay Rs.5,00,000/- with
respect to dishonour of cheque in question within 15 days from the receipt of
the notice.
5. Since the accused failed to pay the amount of the cheques in question within the
statutory period of 15 days from the receipt of legal demand notice, hence, the
complainant has moved this court with the present complaint under Section 138
of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “NI
Act“).
NISHTHA
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Digitally signed by
NISHTHA MEHTANI
Date: 2025.07.22
19:35:49 +0530
PROCEEDINGS BEFOR E THE COURT
PRE-SUMMONING EVIDENCE:
6. That in order to prove a prima-facie case, the Complainant led pre-
summoning evidence by way of affidavit i.e., Ex. CW-1/A wherein the
Complainant affirmed the facts stated in the present complaint and relied
upon the following documents:
1. Copy of emails exchanged between the parties are Mark-A (Colly).
2. Original Promissory note and receipt is Ex. CW-1/2 (colly)
3. Original cheque dated 18.06.2021 is Ex. CW-1/3.
4. Bank Return memo dated 19.07.2021 is Ex. CW-1/4.
5. Legal Demand Notice dated 10.08.2021 is Ex. CW-1/5.
6. Postal receipts are Ex. CW-1/6 and Ex. CW-1/7.
7. Internet generated tracking report is Mark B (colly).
COGNIZANCE & SUMMONING OF THE ACCUSED:
7. That, after considering the Pre-summoning evidence led by the Complainant
and the submissions made by him, the Court took cognizance and issued
summons to the Accused vide order dated 25.09.2021. The accused
appeared before this court on 07.02.2022.He was admitted to bail upon
furnishing of bail bond in the sum of Rs. 80,000/- with one surety of the
like amount.
NOTICE U/S- 251 CR.P.C:
8. That on the same day i.e. on 08.09.2022 Notice u/s- 251 of the Code of
Criminal Procedure, 1973 (for short ‘Cr.P.C.’) containing the substance of
accusation, for the offence under Section 138 of the Act was served upon
the Accused to which he pleaded not guilty and claimed trial. He admitted
that the cheque in question bears his signature but did not admit filling of
the other particulars on the cheque in question. In his plea of defence, he
stated that in the year 2017, he had taken a friendly loan of Rs.1,00,000/-
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NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
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from the complainant out of which he had already returned Rs.50,000/- by
way of cash in various installments. He also stated that the complainant
had given the said amount of Rs.1,00,000/- by way of cheque and he does
not owe Rs.5,00,000/- as claimed by the complainant and in fact, the
outstanding liability towards the complainant was only Rs.50,000/-. He
admitted the receipt of the legal demand notice.
EVIDENCE OF THE COMPLAINANT:
9. After an application under Section 145(2) NI Act moved on behalf of the
accused was allowed on 03.01.2023, the complainant was re-called for his
examination. He relied upon his affidavit filed at the stage of pre-
summoning evidence at the post summoning stage as well and deposed as
CW-1. During his cross-examination held on 02.04.2024, he was confronted
with copy of cheque no. 046845 i.e. Mark C and on 12.09.2024 he was
confronted with whatsapp chats EX-CW-1/D1(colly) along with certificate
under section 65B of the indian evidence act EX. CW-1/D2. Thereafter,
aftter being cross-examined on three dates, evidence on behalf of the
Complainant stood closed. That being the case, the matter was then listed
for statement of the Accused u/s 313 Cr.P.C read with Section 281 Cr.P.C.
STATEMENT OF THE ACCUSED:
10. That in order to give an opportunity to the Accused to personally explain
all the incriminating circumstances appearing in evidence against him,
statement of the Accused under Section 313 Cr.P.C read with Section
281 Cr.P.C was recorded on 15.01.2025 without oath wherein all the
incriminating circumstances appearing in evidence against the accused
were put to him .He admitted that the cheque in question as well as the
signatures on them belonged to him. He denied filling the particulars on
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NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
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the cheque in question He admitted the emails i.e. Mark A (colly) and also
admitted his signatures on the promissory note and receipt i.e. Ex-CW-
1/2(colly), but stated the same to be blank when signed. He further stated
that he had handed over the cheque in question to the father of the com-
plainant as he had borrowed Rs.1,00,000/- from him and the cheque in
question was handed over to him as a blank signed security cheque. He
also stated that he had already returned Rs.50,000/- to the father of the
complainant in cash when he visited the house of the complainant as he
had family relation and the father of the complainant used to also provide
advice to him with respect to his matrimonial dispute which was pending at
Saket District Court. He admitted the receipt of the legal demand notice. He
stated that his cheque had been misused.
11. That afterwards, the matter was scheduled for defence evidence. The
Accused himself entered the witness box and was examined as DW-1
(Defense Witness-1) on 11.03.2025. He relied upon the following
documents:-
1.Counterfoil of the chequebook Ex-DW-1/1
He was then cross-examined and discharged on the same day. Following the
completion of evidence, the case was set for final arguments.
FINAL ARGUMENTS
12. Oral arguments were made on behalf of both the parties. Written
arguments as well were filed on behalf of the complainant which are on
record.
13. Ld. Counsel for the complainant has cited in his written submissions the
following judgments titled as :
i) K N Beena Vs Muniyappan and Anoter, (2001) 8 SCC 458,
ii) Crl Appeal Nos 230-231 of 2019 titled as “Bir Singh Vs Mukesh
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 6 of 26
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by NISHTHA
MEHTANI
NISHTHA Date:
MEHTANI 2025.07.22
19:36:18
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Kumar"
14. Ld. Counsel for the accused has cited in his written submissions the
following judgments titled as:
i) Basalingappa vs. Mudibasappa 2019 (1) DCR 612 H and RBANMS
Educational Institution ys. B. Gunashekar & Another
ii) Civil Appeal No. 5200 of 2025 (Arising from sLP (C) No. 13679 of
2022)
15. I have carefully considered the submissions made on behalf of the
parties. Additionally, I have meticulously reviewed the entire case record,
including the judgements provided on behalf of the complainant. The legal
authorities cited on behalf of the complainant have also been thoroughly
examined.
16. While the judgments cited by the complainant do provide relevant legal
context, they are factually distinguishable from the present case.
Nonetheless, I have remained cognizant of the legal principles established in
these judgments while making my decision in the current matter.
LEGAL POSITION:
17. In order to constitute an offence u/s.138 of the Negotiable Instruments
Act, 1881, the following legal requirements must be satisfied from the
averments in the Complaint as well as the evidence of the Complainant 1: –
(a) 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, in whole or in part, of any legally enforceable debt1
Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. AIR 2000 SC 954,
Delivered by Honorable Division Bench of Justice K.T.Thomas & Justice D.P.Mohapatra,
Supreme Court of India on 30-03-2011.*modified in consonance with the amendments brought
subsequent to the judgement dated 23.02.2000 in the NI Act.
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NISHTHA MEHTANI
MEHTANI Date:
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or other liability;
(b) that the cheque has been presented to the bank within a
period of three months from the date on which it is drawn or
within the period of its validity, whichever is earlier;
(c) that the cheque has been returned by the drawee bank
unpaid, either for the reason that 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;
(d) that the payee or the holder in due course of the cheque
has made a demand for the payment of the said amount of
money by giving a notice in writing, to the drawer of the
cheque, within 30 days of the receipt of information from the
bank regarding the return of the cheque as unpaid;
(e) that the drawer of such cheque fails to make the payment
of the said amount of money to the payee or holder in due
course within 15 days of receipt of the said notice.
18. That the legal requirements mentioned hereinabove are cumulative in
nature, i.e. only upon fulfilment of all the aforementioned ingredients, the
drawer of the cheque is deemed to have committed an offence under s. 138
of the Negotiable Instruments Act.
19. The provision of Sec.138 is further supported by Sec.139 and Sec.118 of
the Act. Sec. 139 of the Act provides presumption in favour of the
Complainant and mandates that the court shall presume, that the holder of
a cheque received the cheque of the nature referred to in Sec.138 for the
discharge, wholly or in part of any debt or other liability. Sec.118 of the Act
provides presumptions as to negotiable instruments; that the court shall
presume, until the contrary is proved, that every negotiable instrument was
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NISHTHA by NISHTHA
MEHTANI
MEHTANI Date: 2025.07.22
19:36:37 +0530
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.
20. Elaborating further on this point, the Apex Court in Basalingappa v.
Mudibasappa2 summarised the law. The following was laid down in para 25:
(SCC p. 433-434)
“25. We have noticed the ratio laid down by this Court in the above cases
on sections 118(a) and 139, we now summarise the principles enumerated
by this Court in following manner:
25.1. Once the execution of cheque is admitted section 139 of
the Act mandates a presumption that the cheque was for the
discharge of any debt or other liability.
25.2 The presumption under section 139 is a rebuttable
presumption and the onus is on the Accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
25.3 To rebut the presumption, it is open for the Accused to
rely on evidence led by him or the Accused can also rely on
the materials submitted by the Complainant in order to raise
a probable defence. Inference of preponderance of probabilities
can be drawn not only from the materials brought on record
by the parties but also by reference to the circumstances upon
which they rely.
25.4 That it is not necessary for the Accused to come in the
witness box in support of his defence, section 139 imposed an
evidentiary burden and not a persuasive burden.
25.5 It is not necessary for the Accused to come in the witness
box to support his defence.
21. What emerges from the abovesaid discussion is that the offence u/s 138
of the Negotiable Instruments Act operates on reverse onus of proof theory;
once a given set of facts are shown to exist, the presumptions u/s 139 and
2
(2019) 5 SCC 418; Delivered by Honorable Division Bench of Justice Ashok Bhushan &
Justice K.M.Joseph, Supreme Court of India on 09-04-2019.
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by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
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Sec.118 of the Act mandate the court to draw them. The same is evident by
the language used, i.e., “Shall Presume”. However, the said presumptions
are in the nature of rebuttable presumptions, i.e. it is open for the defence to
shift the onus on the Complainant by raising a probable/ plausible defence.
22.In the present case, accused has admitted his signatures on the cheque in
question. Reference in this regard can also be made to judgement of the
Hon’ble Apex Court in Rangappa Vs. Mohan AIR 2010 SC 1898, that once the
signatures in the cheque is admitted to be that of the accused, the presumption
envisaged in Section 118 of the Act can be legally inferred that the cheque was
made or drawn for consideration on the date which the cheque bears. Section
139 of the Act enjoins on the Court to presume that the holder of the cheque
received it for the discharge of any debt or liability.
23.In view of the foregoing discussions, this Court is of considered opinion that a
presumption under Section 139 r/w 118(a) NI Act duly be raised against the
accused.
24.Since the above said two presumptions have duly been raised against the
accused, our next point of determination is that whether the accused is able to
rebut the above said presumptions or not. It is now settled law that accused can
rebut these presumptions on a scale of standard of preponderance of
probabilities, or to rebut these presumptions, it is open for the accused to rely
upon the direct evidence led by himself, or in exceptional cases, the accused can
also rely on materials submitted by the complainant in order to raise a probable
defence. Reliance in this regard, can be placed on judgment of Hon’ble
Supreme Court of India in the case of Hiten P.Dalal Vs. Bratindranath Banerjee
(2001) 6 SCC, wherein it was stated that :
“…………Because both sections 138 and 139 require that the Court
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NISHTHA MEHTANI
MEHTANI Date:
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‘shall presume’ the liability of the drawer of the cheque for the amount
for which the cheque are drawn,…. 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. It introduces an exception to the
general rule as to the burden of proof in criminal cases and shift the
onus on the accused. Such a presumption is a presumption of law, as
distinguished from a presumption of fact which describes provisions by
which the court ‘may presume’ a certain state of affairs. Presumptions
are rules of evidence and do not conflict with the presumption of
innocence because by the latter all that is meant is that the prosecution
is obliged to prove the case against the accused beyond reasonable
doubt. The obligation on the prosecution may be discharged with the
help of presumptions of law or fact unless the accused adduces
evidence showing the reasonable possibility of non-existence of the
presumed fact.
In other words, provided the facts required to form the basis of a
presumption of law exists, no discretion is left with the Court but to
draw the statutory conclusion, but this does not preclude the person
against who the presumption is drawn from rebutting it and proving the
contrary. The rebuttal does not have to be conclusively established but
such evidence must be a dude before the court in support of the defence
that the court must either believe the defence to exist or consider its
existence to be reasonably probable, the standard of reasonability being
that of a ‘prudent man’.”
25.As regards the rebuttal of mandatory presumptions, it is also settled law
that the presumption under Section 139 of the NI Act cannot be rebutted
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NISHTHA Date:
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upon a mere denial but only by leading cogent evidence. Same was held
by the Hon’ble Supreme Court of India in the decision cited as K.N.
Beena Vs. Muniyappan and Another; (2001) 8 SCC 458. Further, the
presumptions may be rebutted by the accused either by leading direct
evidence and in exceptional cases, from the case set out by the
complainant himself i.e. from the averments in his complaint, in the
statutory notice and even the evidence adduced by the complainant
during the trial. The burden of proof is to be discharged by the accused
on a scale of ‘preponderance of probabilities’. Same was held by the
Hon’ble Supreme Court in the decision cited as M/s Kumar Exports Vs.
M/s Sharma Carpets; 2009 AIR (SC) 1518. It is also a settled law that
the statements made by the accused in reply to notice under Section 251
Cr.P.C. or in his examination under Section 281 read with Section 313
Cr.P.C. are not on oath and hence are not substantive pieces of
evidence. At best, they may be an explanation of the incriminating
circumstances against the accused but are devoid of any presumption as
to their truthfulness. Support is drawn from the decision of the Hon’ble
High Court of Delhi cited as V.S. Yadav Vs. Reena; 172 (2010) DLT
561. Supra
26.In the backdrop of legal position as enunciated above, it is now to be
examined by this Court that whether the accused on a scale of
preponderance of probabilities has been able to rebut the presumptions
which has been raised against him and in favour of the complainant, or
has been able to demolish the case of the complainant to such extent to
shift the onus placed upon the accused back again on the complainant,
and if the Court comes to the conclusion that accused has not been able
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NISHTHA MEHTANI
MEHTANI Date:
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to rebut the presumptions raised against him by failing to bring on
record direct evidence or by even failing to sufficiently perforate the
case of the complainant, the complainant is entitled to a decision in his
favour. The fundamental issue to be addressed is whether the Accused
has effectively put forward a credible defence to overturn the
presumption against him.
APPRECIATION OF EVIDENCE AND FINDINGS:
27. I shall now proceed to analyse the legal elements involved in this case,
evaluating whether the oral and documentary evidence satisfy the legal
requirements. To streamline the discussion, it is important to distinguish
between contested and admitted issues, thus narrowing the scope of the
controversy.
28. Concerning ingredients no. two and three, these are evidently satisfied by
examination of the disputed cheque dated 18.06.2021 (Ex. CW-1/3) and its
return memo dated 19.07.2021 (Ex. CW-1/4), indicating “funds
insufficient”. The defence has presented no contrary evidence; hence, these
ingredients stand established against the Accused.
29. That it is a trite law that in order to maintain a complaint u/s-138 NI
Act, serving of legal demand notice to the Accused before filing the case is
imperative. As regards the service of legal demand notice, the Complainant
has dispatched the same, Ex.CW-1/5 dated 10.08.2021 to the Accused.
Original postal receipt Ex. CW-1/6 and tracking report Ex. CW-1/7
corroborate this. Besides, the Accused had admitted the receipt of the legal
demand notice at the time of the framing of the notice u/s 251 Crpc as well
as in his statement recorded u/s 313 r/w section 281 CrPC . Hence the
fourth ingredient also stands fulfilled.
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NISHTHA MEHTANI
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30. The fifth ingredient also stands satisfied against the Accused as in the
instant case, it is an admitted position that the Accused has failed to pay
the amount due under the cheque in question, on the ground that he does
not owe any liability towards the Complainant.
31. In view of the above, the only point for determination in the present
matter remains is that of existence of legally enforceable debt or liability for
which the cheque in question was issued by the Accused, i.e., the first
ingredient.
32. At the outset, the alleged liability of the Accused stems from the issuance
of the cheque in question, to the Complainant in discharge of his legal
liability i.e., towards the payment of the sale consideration amount to the
accused. It is pertinent to note that the Accused admitted his signature on
the cheque in question and that the same is drawn on his bank account. He
also admitted filling the body of the cheque in question. In a recent
judgement titled as Rajesh Jain v. Ajay Singh, SLP Crl. No. 12802 of 2022,
the Apex court held as following:
“……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 Kumar3]. 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.”
33. Applying the ratio of the above-said judgement, the undisputed execution
of the cheque in question and the legal principles previously discussed leads
to an inference under Section 139 read with Section 118 of the Act. This
presumption suggests that the cheque was issued for settling a legally
enforceable debt or liability owed to the Complainant. With this presumption
3
(2019) 4 SCC 197
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raised against the Accused, the onus shifts to him to counteract it by
presenting a plausible defence. To this end, the Accused has conducted
cross-examination of the Complainant, referred to as CW-1 and also entered
the witness box himself as DW-1. The fundamental issue to be addressed is
whether the Accused has effectively put forward a credible defence to
overturn the presumption against him.
34. For substantiating the complaint, it is crucial that CW-1 (the
Complainant) provides consistent testimony regarding the key elements of
the transaction with the Accused. During cross-examination, no substantial
information emerged that could significantly undermine the reliability of the
Complainant.
35. It is worthy to note that the testimony of CW-1 qua the loan in question
is not mere ipse dixit but corroborated by the documentary evidence on
record i.e. the promissory note and the receipt Ex. CW-1/2(colly). A bare
perusal of the testimony of the complainant reveals that he has remained
consistent throughout his deposition, barring few minor inconsistencies,
and his oral testimony is corroborated by the documentary evidence. It is
the case of the complainant that he and the accused are childhood friends
and a total of Rs.5,30,000/- was advanced as a friendly loan to the accused
in lieu of the partial discharge of which the cheque in question was issued
by the accused to the complainant. The complainant has also relied upon a
promissory note and receipt there of that is Ex. CW-1/2 (colly).
36. The accused, in the present case, has failed to prove his defence on the
touchstone of preponderance of probabilities for the reasons discussed
below.
37. The accused is utterly confused in the defence sought to be established
by him. In the present case, the plea of defence taken by the accused at the
time of the framing of the notice under section 251 Cr.P.C is that he had
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taken a friendly loan of only Rs.1,00,000/- from the complainant out of
which he had already returned Rs.50,000/- by way of cash in various
installments, and not of the amount as alleged by the complainant. He also
stated that the said amount of Rs.1,00,000/- was given to him by the
complainant by way of a cheque. However a different stand was taken by the
accused at the time of the cross examination of the complainant wherein it
was suggested to the complainant by the learned counsel for the accused
that the loan of Rs.1,00,000/- was arranged by the complainant through his
father vide cheque no. 046845 dated 18.09.2017 that is mark C. The cheque
being a photocopy, cannot be considered in evidence, original of which was
never produced during the trial. Thereafter , in the statement of the accused
recorded under section 313 Cr.P.C read with section 281Cr.P.C, the accused
again took stark contradiction to his plea of defence taken under section
251 Cr.P.C and stated that he had borrowed an amount of Rs.1,00,000/-
from the father of the complainant. At this stage the accused had become
even more wiser and improvised his version by stating that the checqe in
question was handed over to the father of the complainant as a blank signed
security cheque and that the father of the complainant used to provide him
advice with respect to his matrimonial dispute. It is pertinent to note that
no such plea of the checque in question being given as a security was taken
by the accused at the time of the framing of notice under section 251 Cr.P.C
and the same was also not suggested to the complainant at the time of his
cross examination.
38.Even if it is presumed that the cheque was given as a security, the same does not
help the accused. Reliance in this regard is placed by this court on the
judgments of Hon’ble Supreme Court of India in Sampelly Satyanarayana Rao
Vs. Indian Renewable Energy Development Agency Ltd., (2016) 10 SCC 458,
Sripati Singh Vs. State of Jharkhand & Anr., 2021 SCC OnLine SC 1002 and
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 16 of 26
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by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:37:50 +0530
Sunil Todi Vs. State of Gujarat & Anr., 2021 SCC OnLine SC1174 wherein the
Hon’ble Apex Court has held that merely because a cheque has been given for
security purposes does not mean that there is no legally enforceable debt or
liability in favour of the complainant, however, it does mean that the court has
to see whether there exists legally enforceable debt or liability as on the date
mentioned on the cheque or whether a legally enforceable debt or liability has
arisen at the time of presentation of the cheque. It has been held by the Hon’ble
Court that the accused would very much be liable under Section138 NI Act for
issuance of a security cheque as well, if on the date of the presentation of such
cheque there has not been a prior discharge of debt, or if the cheque has not
been given towards advance payment, the goods in respect of which have not
been received, or if there has been change in circumstances which precludes the
complainant from depositing the cheque with the bank.
39.Thus, the legal position that emerges is that simply pleading the cheques in
question to have been given as security cheques shall not in itself be sufficient
to discharge the burden caste upon the accused by law. The accused must also
further establish that there was no liability of the accused on the date when the
cheque was presented for encashment. Mere denial is not sufficient once
execution of the cheque has been admitted. Sections-20, 87 and 139 of NI Act
when read in harmony, makes it clear that the drawer of the cheque is liable to
pay unless the presumption has been rebutted by raising a probable defence and
it would make no difference if the particulars of the cheques in question is filled
by someone else if the cheques have been duly signed by the Accused. Sec-138
NI Act would be attracted if the cheques are otherwise valid cheques.
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 17 of 26
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signed by
NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:37:59
+0530
40. Moving further, during the cross examination of the complainant, the
counsel for the accused tried to set up a case that the emails brought on
record by the complainant i.e. Mark A (colly) were only exchanged between
the complainant and the accused on the advice of the father of the
complainant to help the accused gain benefit in his pending matrimonial
dispute. However it seems that this is only an afterthought and no evidence
in any oral or documentary form , leave aside cogent one , has been brought
on record by the accused to support his version. Moreover the accused
admitted document Mark A (colly) at the time of the admission and denial of
the documents u/s 294 Cr.P.C and also at the time of recording his
statement u/s 313 Cr.P.C. Even when a specific question with respect to the
emails was put to the accused during his cross examination, he had stated
that the emails show true and correct transactions between him and the
complainant. A bare perusal of the emails mark A (colly) reflects that the
accused has nowhere disputed his liability when the same was stated to him
by the complainant. The relevant portion of the emails mark A (colly) is as
follows:-
“Till date the total amount which you have borrowed in past 2 years is above
5,00,000/- (Approximately 5,30,000/-) . I helped you in brotherhood, never
asked you to pay any other amount or interest over it.”
41. Despite the email being replied by the accused subsequently on several
dates, there is not even a whisper of denial of the said amount by the
accused . Rather the accused has repeatedly sort time for the repayment of
the same owing to his financial crisis. The contradictory stands taken by the
accused at different stages of the trial resultantly casts serious doubt on
his credibility. Moreover, no evidence in any oral or documentary form has
been brought by the accused to support his version that the amount was
returned to the complainant (as stated in plea of defence under section 251
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 18 of 26
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by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:38:07 +0530
Cr.p.c) or to the father of the complainant (as stated in statement under
section 313 Cr.P.C) in cash. The only evidence brought by the accused on
which he relied upon in his examination in chief is Ex. DW1/1 which is the
counterfoil of his chequebook which is a self serving document devoid of
lending any support to his version.
42. During the cross examination of the complainant the counsel for the
accused tried to question the financial capacity of the complainant whereby
he stated that he had given the loan in question after partially borrowing
from his mother and from his own savings and that no document with
respect to the same was executed between him and his mother. In the
opinion of the court the complainant provided satisfactory answers with
respect to the source of the funds and it was indeed for the accused to first
indicate circumstances or bring on record such evidence which would create
doubt on the financial capacity of the complainant as it is not incumbent
upon the complainant initially to lead evidence in this respect. It is also
improbable that an agreement would be entered into between a mother and
a son whilst borrowing some amount. Also no further question was put to
the complainant to dispute the source of funds of the loan in question and it
is trite law that the unchallenged part of the testimony of the witness is to
be taken as admitted by the opposite party. Reliance in this regard is placed
on Lakshmi bai through L.R’S and another vs. Bhagwant Buva through
L.R’S.4
43. At the time of the final arguments, the counsel for the accused took a
plea on behalf of the accused that the complainant has not placed any
document on record to show that the loan in question was granted to the
accused. Qua this defence, it is pertinent to note that friendly relations
between the parties have not been disputed by the accused at any stage of
4
[2013 SCC Online SC101]
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh Digitally
signed by
19 of 26
NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:38:15
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the trial. In a recent judgment, the Honourable Delhi High Court 5 held that
in cases involving friendly loans, the absence of documentary evidence is
not, by itself, a sufficient ground for acquittal of the accused, particularly
once a presumption has arisen in favour of the complainant and the
accused has failed to substantiate his defence. In the present case, the
accused could neither cast doubt upon the financial capacity of the
Complainant nor could prove his defence as per the standard required as
per law.
44. Another argument, taken by the counsel for the accused was that the
particulars on the checque and the promissory note were not filled by the
accused and hence he cannot be held liable. In this regard it is imperative to
reproduce section 20 of the act:-
“20. Inchoate stamped instruments.–Where one person signs and delivers
to another a paper stamped in accordance with the law relating to negotiable
instruments then in force in 1[India], and either wholly blank or having
written thereon an incomplete negotiable instrument, he thereby gives
prima facie authority to the holder thereof to make or complete, as the case
may be, upon it a negotiable instrument, for any amount specified therein
and not exceeding the amount covered by the stamp. The person so signing
shall be liable upon such instrument, in the capacity in which he signed the
same, to any holder in due course for such amount; provided that no person
other than a holder in due course shall recover from the person delivering
the instrument anything in excess of the amount intended by him to be paid
thereunder.”
45. Further, the Hon’ble Apex Court in Oriental Bank of Commerce Vs.
Prabodh Kumar Tiwari in Criminal Appeal no. 1260/2022 dated
16.08.2022 and in Bir Singh Vs. Mukesh Kumar (2019) 4 SCC 197 has
5
Amit Jain v. Sanjeev Kumar Singh & Anr. CRL. A. 1248/2019, decided on 16.08.2024.
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 20 of 26
Digitally signed
by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:38:24 +0530
clearly held that it is immaterial that the cheque may have been filled in by
any person other than the drawer, if the cheque is duly signed by the
drawer. Therefore, it can be said that, if a signed blank cheque is
voluntarily presented to a payee, towards some payment, the payee may fill
up the amount and other particulars on the cheque. This in itself would not
invalidate the cheque. The onus would still be on the accused to prove that
the cheque was not issued in discharge of a debt or other liability. Therefore,
the contention of the accused that not filling the particulars of the cheque in
question would absolve the accused from the liability is hereby rejected.
46. Even with respect to the argument that the particulars on the
promissory note were not filled by the accused, the accused has admitted
his signatures on the same both in his statement under section 313 Cr.P.C
r/ws ection 281 Cr.P.C as well as in his cross examination. The contention
of the accused that the same was a blank paper is untrustworthy as no
steps were taken by the accused to challenge this document. Being a
prudent person, he could have filed a complaint to any law enforcement
agency to show that his signatures were obtained on blank papers which
were later manipulated. However nothing of this sort was done on behalf of
the accused and a mere suggestion of the promissory note being forged and
fabricated would be of no help to him unless proved otherwise. The
argument of the learned counsel for the accused that the witness to the
promissory note was not called by the complainant holds no water keeping
in mind the presumption under section 118 r/w section 139 of the act
arisen in favour of the complainant. It was rather on the accused to call the
relevant witness to establish his defence on the touchstone of
preponderance of probabilities.
47. The argument made by the counsel for the accused in his written
submissions that the emails produced by the complainant are manipulatedCC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 21 of 26
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signed by
NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:38:31
+0530
is liable to be rejected as the same have been admitted by the accused at
different stages of the trial. Another argument of the counsel for the accused
that there is no reference of the loan amount of Rs.5,30,000/- being
advanced or demanded back by the complainant in the whatsapp chats
placed on record by the accused i.e. Ex.CW-1/D1 (colly) also does not lend
support to the accused due to the same reason. The counsel for the accused
also argued that in lieu of the loan amount availed by the accused from the
father of the complainant, Rs.12,000/- was returned to the complainant,
which can be seen from the whatsApp chats Ex.CW-1/D1 (colly) and the
same were not towards any interest as the complainant never charged the
same. He thus argued that the accused does not owe the liability to the tune
of the amount as reflected on the cheque in question. Qua the same, the
complainant in his cross examination stated that the same was received by
him and it was in lieu of the interest that the accused used to pay on his
own wish to the complainant as he had time and again defaulted in the
payments. A minute perusal of the whatsapp chats brought by the accused
on record himself i.e. Ex. CW-1/D1(Colly), rather offers support to the
version of the complainant that indeed the accused used to pay the interest
to the complainant. On 20.04.2020, one of the messages from the accused
to the complainant reads as follows:-
“March and April interest is pending??”
The chat makes it amply clear that indeed the accused was paying some
interest to the complainant.
48. On one hand the accused denies the suggestion put to him during his
cross examination that besides the father of the complainant he had
financial dealings with the complainant also, on the other hand he has
himself pointed out towards paying Rs.12,000/- to the complainant. Even in
the written submissions, the counsel for the accused has taken a plea thatCC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 22 of 26
Digitally signed
by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:38:39 +0530
there were other transactions between the complainant and the accused
which is in stark contradiction to the version of the accused .In view of the
same, the accused’s version that Rs.12,000/- was paid to the complainant
towards Rs.1,00,000/- borrowed by him from his father seems to be highly
unreliable and the same appears to be in lieu of the interest payable to the
complainant. This argument of the accused thus also stands rejected.
49. Another argument that finds mention in the written submissions
furnished by the counsel for the accused is that the cheque in question was
already with the complainant and the story put forth by the complainant
that the cheque was handed over to him by the accused is false. However
the accused at the time of his Statement recorded under section 313 Cr.P.C
read with section 281 Cr.P.C submitted that he had handed over the cheque
in question to the father of the complainant as he had borrowed
Rs.1,00,000/- from him. Later when asked about the same, during his cross
examination, he stated that he had given the cheque in question to someone
from the family of the complainant but he does not exactly remember to
whom the same was handed over. This contradiction further creates doubt
in the defence attempted to be set up by the accused and the argument of
the Ld. Counsel for accused again stands rejected.
50. The argument of the learned counsel for the accused that contradictory
statements have been made by the complainant with respect to the date of
the handing over of the cheque in question and the promissory note in his
complaint, evidence affidavit and cross examination, does not hold much
water when the legal presumption has been raised against the accused
which he has failed to rebut through cogent evidence or through punching
holes in the case of the complainant. The same is a minor contradiction
which does not necessarily undermine the entire case of the complainant
and also can be attributed to common errors of human memory. TheCC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 23 of 26
Digitally signed
by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:38:50 +0530
argument of the counsel for the accused with respect to the violation of the
tax laws, is not itself fatal to the case of the complainant wherein
appropriate action may or may not be taken by the concerned authorities
and this in itself cannot turn the case of the complainant improbable or lead
the court to the conclusion that there was no advancement of the alleged
loan amount even if other circumstances so indicate.
51. Accused has not been able to prove for the reasons discussed above that he did
not have liability towards the complainant as on the cheque in question on the
day when the cheque in question was presented. Mere denial of the case of the
Complainant with oral averments, supported by no documents or evidence,
leave alone, cogent one is not going to assume any evidentiary value and
averments in notice of accusation and in his examination under Sec-313 Cr.P.C
read with Sec-281 Cr.P.C would not assume the character of defence evidence6
as mere denial is not sufficient.
52. In view of the above discussion, the evidence presented on behalf of the
Complainant gains credibility and instils confidence in the Court regarding the
material aspects of the Complaint. The narrative of the Complainant remains
consistent and coherent supported by documentary evidence in stark contrast to
the mere oral version provided by the Accused.
53.The Accused’s admission of his signature on the cheque is pivotal, and when
combined with the presumption raised under Sections 118 and 139 of the
Negotiable Instruments Act, all the necessary elements of Section 138 of the
same Act have been adequately established by the case of the Complainant. The
defence of the accused was primarily based on the assertion that the liability as
on the cheque in question did not exist as on the date when the cheque in
6
V.S Yadav v. Reena, CRL. A. No. 1136 Of 2010.
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 24 of 26
Digitally signed
by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:38:59 +0530
question was presented. However, the Accused has failed to meet the burden of
proof, failing to provide convincing evidence that tilts the balance of
probabilities in his favour. Consequently, the presumption raised against the
Accused remains unchallenged and stands firm.
54.The culmination of the above analysis leads to the conclusion that all the
essential elements required under Section 138 of the Negotiable Instruments
Act are satisfactorily met with respect to the Accused. The case of the
Complainant stands on a firm foundation, while the defence of the Accused is
riddled with inconsistencies and lacks persuasive evidence, failing to create any
reasonable doubt in the version put forth by the Complainant.
55.In the opinion of court, consistency in the testimony of the Complainant
especially regarding material transaction aspects, remains unshaken despite
cross-examination. When analysed comprehensively, the evidence led by the
Complainant emerges as more credible and consistent, leading to the conclusion
that all the legal requirements are met, and the defence of the Accused lacks
substantiation.
FINAL ORDER
56.In view of the aforesaid, accused Navjot Singh , S/o Sh Manjit Singh Anand is
held guilty and is convicted of the offence under Section 138 Negotiable
Instruments Act.
57. This judgment contains 26 signed pages.
58. Announced in open court on 22.07.2025 in the presence of the Accused.
59. Copy of this judgment be given to the convict free of cost as per rules.
CC No. 4884/2021 Shivam Thareja Vs. Navjot Singh Digitally
25 of 26
signed by
NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:39:09
+0530
60. Convict be now heard on the quantum of sentence.
Digitally signed
by NISHTHA
NISHTHA MEHTANI
MEHTANI Date:
2025.07.22
19:39:18 +0530Announced in open (Nishtha Mehtani)
Court on 22.07.2025 JMFC(NI Act), (Digital Court-03)
/PHC/NDCC No. 4884/2021 Shivam Thareja Vs. Navjot Singh 26 of 26
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