Delhi District Court
Sapan Dhawan vs R.G.Infravelopers on 21 July, 2025
IN THE COURT OF MS. ANSHUL AGNIHOTRI, JMFC (NI ACT)
DIGITAL COURT-03 SOUTH DISTRICT, SAKET COURTS
COMPLEX: NEW DELHI
1. Complainant case number 625193/2016
2. Name of the complainant Sapan Dhawan
R/o- S-263, 2nd Floor, Greater Kailash,
Part I, New Delhi
3. Name and address of the 1. RG Infradevelopers P. Ltd.
accused 2. Mr. rajat Rawal, Director
Add. 40, Ground Floor, Ambica Vihar,
Paschim Vihar, New Delhi.
Also at:
303, 3rd Floor, Shivam Tower RDC,
Raj Nagar, Ghaziabad.
4. Offence complained of Section 138 of the Negotiable
Instruments Act, 1881
5. Plea of the accused Pleaded not guilty and claimed trial
6. Final order Accused no. 1 is acquitted.
Accused no. 2 is acquitted.
7. Date of institution 28.09.2015
8. Date of reserving the judgment 22.05.2025
9. Date of pronouncement 21.07.2025
JUDGMENT
1. The present complaint under section 138 Negotiable
Instruments Act, 1881 (hereinafter referred to as the ‘NI Act‘)
has been filed by Sh. Sapan Dhawan (hereinafter referred to as
the ‘complainant’) against RG Infradevelopers P. Ltd.
(hereinafter referred to as the ‘accused no.1’) and Sh. Rajat
Rawal, Director of accused company (hereinafter referred to
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AGNIHOTRI
as the ‘accused no.2’).
Digitally signed by
ANSHUL AGNIHOTRI
Date: 2025.07.21
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SAPAN DHAWAN VS RG INFRADEVELOPERS P. LTD.
Page No.1 of 15
BRIEF FACTS OF THE CASE
2. The version of the complainant is that the complainant is in the
business of liaisoning and a chartered accountant and accused
no.1 is in the business of the real estate whose day to day
affairs are looked after by accused no.2 being Director of the
company. Accused no.1 required funds for expansion of its
business, therefore, accused no.2 on behalf of accused no.1
approached the complainant and his associates to get loan
sanctioned. Considering the request, complainant and his
associates agreed to arrange the lender from whom loan could
be sanctioned. Accused initially sought services of the
complainant to arrange the loan to extent of Rs.150 crores
@8% p.a. on reducing basis. Before sanctioning the loan,
complainant had asked the accused no.2 to provide requisite
documents for advancing loan. Thereafter, an MOU was signed
between the complainant and accused company for the services
being rendered by the complainant and as per the said MOU
accused company has to pay the charges as per the MOU.
After, getting all the documents, loan of Rs.150 crores was
sanctioned to the accused company by Citifin Corp Services by
issuing offer letter, conditional offer letter and final approval
letter to the accused company. Clause 13A of the MOU
between the parties stipulated that if the first party failed to
accept the loan disbursal after receiving the conditional offer
letter and final approval, the respondents were still obligated to ANSHUL
AGNIHOTRI
pay the agreed service charges to the complainant. The first Digitally signed
by ANSHUL
AGNIHOTRI
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party had the right to reject the offer if dissatisfied with the
lending process. Upon verification, it was discovered that the
solvency certificate submitted by the accused was forged.
Consequently, the financier canceled the loan disbursement.
The accused had provided various legal and guarantor
documents, which were later found to be forged and fabricated.
Despite the complainant fulfilling all obligations, the loan was
not disbursed due to the fabricated documents. As per the
MOU, the accused was required to pay a commission for the
services rendered by the complainant. Thereafter, accused no.2
on behalf of accused no.1 towards the services rendered by the
complainant has issued a cheque bearing No.031654 dated
10.02.2015 for a sum of Rs.45,00,000/- drawn upon Union
Bank of India, Raj Nagar Branch, Ghaziabad.
3. Upon presentation of the cheque bearing number 031654
(hereinafter referred to as the ‘cheque in question’), same got
dishonoured with the remarks ‘Payment stopped by drawer’
vide return memo dated 13.03.2015 qua cheque in question.
Thereafter, a legal demand notice dated 08.04.2015 was duly
sent to accused by the complaint at their available address. The
said notice was received by the accused on 13.04.2015. The
accused failed to pay the amount qua cheque in question within
the statutory period. Hence, the present complaint under
Section 138 NI Act was filed against the accused.
4. On issuance of summons, accused entered appearance in the
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present matter for the first time on 04.05.2017 and was
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admitted to bail on on the very same day. Further, it was
ensured that copy of complaint with relevant documents has
been supplied to accused. Thereafter, notice u/s 251 of Code of
Criminal Procedure, 1973 (hereinafter referred to as the
‘Cr.P.C.’) was served upon the accused on 29.07.2017 to which
he pleaded not guilty and claimed trial.
PLEA OF DEFENCE OF ACCUSED
5. In his plea of defence, accused stated that, complainant was
supposed to get him loan of Rs.150 crores. It was a secured
loan against collateral property. Complainant has asked for his
facilitation charges. He had requested complainant to deduct
the same from the loan amount. The loan was never disbursed.
He had given advance security cheque to the complainant and
the cheque was misused by the complainant as loan was not
disbursed by the lender. The cheque was completely filled by
him. The cheque was given in the month of January, 2015. He
has no liability towards the complainant for any payment.
Thereafter, accused was granted an opportunity to cross-
examine the complainant u/s 145 (2) NI Act and matter was
fixed for complainant’s evidence.
COMPLAINANT’S EVIDENCE
6. In order to support its case, complainant stepped into the
witness box as CW-1 and tendered evidence by way of an
affidavit Ex.CW1/A wherein averments made in the complaint
were reiterated. He also relied upon various documents such
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as:- AGNIHOTRI
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S. Particulars Exhibits
No.
1 Evidence by way of Ex. CW-1/A
affidavit of complainant
2 Copy of MOU Ex. CW-1/1
3 The original cheque Ex. CW-1/2
4 The Original Return Memo Ex. CW-1/3
dated 13.03.2015
5 Copy of notice dated Ex.CW1/4
08.04.2015
6 Original postal receipts Ex.CW1/5 to Ex.CW1/8
The witness was duly cross-examined at length by the Ld.
counsel for the accused.
STATEMENT UNDER SECTION 313 Cr.P.C.
7. The statement of accused was recorded without oath under
Section 313 of Cr.P.C. read with Section 281 Cr.P.C. on
27.02.2020. All the incriminating evidences were put to
accused. In his statement, accused stated that the complainant
was to facilitate his company for granting loan of Rs.160
crores. The MOU was executed and even communications were
exchanged, the financing company changed its conditions for
disbursing the loan and there were conditions placed which
were added later on. Finally no deal was struck and no loan was
sanctioned. The present cheque in question was given as
security against assurance for his facilitation charges, however
the same is not due since no loan was granted. Thereafter,
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accused opted to lead defence evidence.
Digitally signed by
ANSHUL
AGNIHOTRI
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DEFENCE EVIDENCE
8. Ld. Counsel for the accused had orally requested for allowing
the accused under Section 315 Cr.P.C. to be examined for his
evidence in present case and application was duly allowed.
Accused Rajat Rawal as DW1 was examined and cross
examined on 20.05.2021, 09.06.2022, 19.10.2024 and
29.01.2025. Witness Rakesh Singhal as DW2 was examined on
22.05.2023 and 04.08.2023. Witness Ritika Mohan as DW3
was examined and cross-examined on 04.08.2023. Witness
Satpal as DW4 was examined and cross-examined on
19.10.2024. Accused reiterated the same defence taken during
plea of defence under Section 251 Cr.P.C. and during recording
of statement under Section 313 Cr.P.C. At request of Ld.
Counsel for accused, vide order dated 29.01.2025, defence
evidence was closed.
9. Final arguments advanced by both the parties vide order dated
06.03.2025. I have perused the case file, documents placed on
record by both the parties and duly considered the submission
made by Ld. Counsels for both the parties.
INGREDIENTS OF OFFENCE UNDER SECTION 138 NI
ACT
10.The factual position being thus, now let us quickly run through
the legal benchmark which is to be satisfied in order to
constitute an offence under S.138 NI Act :-
(i) Person must have drawn a cheque on an account
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maintained by him in a bank for payment of a certain AGNIHOTRIDigitally signed by
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amount of money to another person from out of that
account;
(ii) The cheque should have been issued for the discharge,
in whole or in part, of any debt or other liability;
(iii) That 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;
(iv) That cheque is returned by the bank unpaid, either
because of the amount of money standing to the credit of
the account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account
by an agreement made with the bank;
(v) The payee or the holder in due course of the cheque
makes a demand for the payment of the said amount of
money by giving a notice in writing, to the drawer of the
cheque, within 30 days of the receipt of information by him
from the bank regarding the return of the cheque as unpaid;
(vi) The drawer of such cheque fails to make payment of the
said amount of money to the payee or the holder in due
course of the cheque within 15 days of the receipt of the
said notice.
APPRECIATION OF EVIDENCE
11.Being cumulative, it goes without saying that it is only when all
the aforementioned ingredients are satisfied that the person
who had drawn the cheque can be deemed to have committed
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an offence under Section 138 NI Act. AGNIHOTRI
Digitally signed by
ANSHUL
AGNIHOTRI
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With Respect to first, third and fourth ingredients:-
12.It is pertinent from the averments and evidence adduced by the
parties there is no dispute regarding first, third and fourth
ingredient. The complainant has proved the original cheque in
question vide Ex CW1/2 that the accused had not disputed as
being drawn on his account and is duly signed by him. During
framing of notice under Section 251 Cr.P.C. accused admitted
that the cheque in question bear his signatures. It is not
disputed that the cheque in question was presented within
period of validity. The cheque in question was returned unpaid
vide return memo Ex.CW-1/3 with remarks “Payment stopped
by drawer”. The said reason is duly covered within the scheme
of NI Act. Therefore, requirement of first, third and fourth
ingredients stand fulfilled in the present matter.
With Respect to fifth and sixth ingredients:-
13.As far as proof of fifth and sixth ingredients are concerned, Ld.
Counsel for accused contended that the legal demand notice
dated 08.04.2015, Ex.CW-1/4, sent by the complainant was not
received by the accused and no tracking report has been placed
on record by the complainant. However, accused admitted that
address mentioned on the legal notice is the correct address. As
per provisions of Section 114 of Indian Evidence Act, 1872
read with Section 27 of General Clauses Act, the court may
presume that legal notice duly addressed to the accused and
dispatched to him by way of post was actually received by the
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accused, regard being had to the common course of natural
Digitally signed by
ANSHUL
AGNIHOTRI
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events.1Therefore, the legal demand notice in the present case is
deemed to have been duly served to the accused. Furthermore,
it is also clear from the record that accused has failed to make
payment within 15 days of receipt of notice. Therefore, the
requirement of fifth and sixth ingredients also stand fulfilled.
With Respect to second ingredient:-
14.The core question in the present case is that whether the cheque
in question has been issued by the accused in discharge of a
legal liability or not.
15.For that, let us again briefly recapitulate that accused at the
stage of framing of notice u/s 251 Cr.P.C. admitted the cheque
in question Ex.CW1/2 drawn on a bank account maintained in
his name and bear his signatures. Now, once these foundational
facts are admitted, by virtue of Section 118 (a) and Section 139
of NI Act, a presumption arises in favour of the complainant
that the cheque in question was issued by accused to discharge
a legally enforceable liability.
16.As per the scheme of the NI Act, on proof of foundational facts
– a presumption arises as to the cheque having been issued in
discharge of a legal liability, and the burden of proof lies upon
the accused to rebut the said presumption. It is now fairly well
settled that the accused can displace this presumption on a
scale of preponderance of probabilities. Reliance in this regard
can be placed upon Rangappa v. Sri Mohan,2 wherein Hon’ble
Digitally
Supreme Court held that: signed by
ANSHUL
ANSHUL AGNIHOTRI
AGNIHOTRI Date:
1 C.C. Alavi Haji v. Palapetty Muhammed, 2007(6)SCC555 2025.07.21
16:13:16
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“where the fact of signature on the cheque is
acknowledged, a presumption has to be raised that the
cheque pertained to a legally enforceable debt or liability,
however, this presumption is of a rebuttal nature and the
onus is then on the accused to raise a probable defence.”
17.The accused can either prove that the liability did not exist or
make the non existence of liability so probable that a
reasonable person ought under the circumstances of the case –
act on the supposition that it does not exist. Simply put, the
accused has to make out a fairly plausible hypothesis. This the
accused can do so either by leading defence evidence or even
by punching holes within the case of the complainant in the
testing ordeal of cross examination. In the present case, accused
has extensively cross-examined the complainant and led the
defence evidence.
18.To rebut the statutory presumption raised in favour of the
complainant, Ld Counsel for the accused has argued that the
legal liability of the accused does not arise in the present case
as the commission charges of the complainant were dependent
upon the disbursement of the loan by the lender and in the
present case no loan was disbursed to the accused. However,
Ld. Counsel for complainant has relied heavily on clause 13 of
MOU Ex. CW-1/1 that in case the accused does not take the
loan disbursal after accepting the conditional offer letter and
final sanction letter, the first party would be still liable too give ANSHUL
AGNIHOTRI
the agreed service charges, as enlisted in clause 2 of MOU, to
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by ANSHUL
AGNIHOTRI
Date:
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the complainant and his associates. It is a settled canon of
construction that a contract must be read as a whole and the
intention of parties must be gathered from the language used in
the contract by adopting harmonious construction of all the
clauses contained therein. Perusal of sub clause B of clause 2
of MOU enunciated that service charges according/in
proportion of each tranche disbursement of loan amount. This
clearly reflects the intention of parties that service charges were
to be paid to the complainant from the disbursed loan. In
addition to this, there was no sanction letter that was ever
issued which can confirm that loan was sanctioned or any letter
headed as final approval letter . Further, even relying on initial
words of clause 13 of MOU “in case the first party does not
take the disbursal” reveals that if disbursal was offered and
accused refused to accept it on any ground then accused shall
be liable to pay the service charges. However, the same is not
the case of complainant because loan was never even finally
offered to be disbursed to the accused. Further, DW-4 Rakesh
Singhal who was one of the parties to the MOU testified in his
cross examination that he returned the security cheque that he
received in lieu of his commission to the accused as loan was
not disbursed to him. In Indus Airways P. Ltd. v. Magnum
Aviation P. Ltd,3 Hon’ble Delhi High Court held that cheque
had to be withdrawn in the ‘discharge of existing or adjudicated
liability of the past’ in order to attract the offence under Section
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138 of NI Act. The liability, if any, exists towards the accused AGNIHOTRI
3 (2014) 12 SCC 539 Digitally signed by
ANSHUL AGNIHOTRI
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is civil in nature and the same cannot be encompassed as a
legally enforceable criminal liability under Section 138 NI Act.
The accused can, at best, be held liable for the tort of breach of
contract, but proceedings cannot be launched against him under
Section 138 of NI Act. In the present case, the cheque in
question cannot be held to have drawn for an existing debt or
other liability. Therefore, there is no question of existing
liability qua cheque in question that was issued as post dated
cheque in lieu of service charges of the complainant.
19.Ld. Counsel for the complainant has argued that complainant
has submitted forged edited solvency certificates to the lender
and this was the main reason that loan disbursal was cancelled
by the lender. Per Contra, Ld. Counsel for the accused
examined DW-3 Deputy Manager of Union Bank of India who
stated that Solvency Certificate/ Banker Certificate dated
29.01.2015 Mark A-1 at page no.38 was issued by their
respective bank. In addition to this, she denied issuance of
report at page no.39 of Mark A-1 to be issued by bank as it was
not in proper format and there were several spelling mistakes as
well. Accordingly, fabricated verification report on solvency
certificate presented by lender casts doubt on the credibility of
lender as well as the complainant. It is observed that one of the
solvency certificates found to be edited by the accused but
verification report issues by the lender on other solvency
certificate found to be false and fabricated. It is a settled law
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that complainant should approach Court with clean hands and
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by ANSHUL
AGNIHOTRI
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in the present case complainant who is a qualified C.A. and
authorised by Subhash Grover to act on behest of lender
pointed out the deficiencies on the part of accused when lender
company itself has issued false and fabricated verification
report.
20.Further, Ld. Counsel for accused examined DW-4 Sh. Rakesh
Singhal who was the part of MOU along with complainant for
facilitating the accused company to procure the loan. During
cross examination of CW-1 dated 27.10.2018, complainant
stated that he does not know any person namely DW-4 but
again improvised his statement. DW-4 stated that he did not
present his commission cheque received from the accused as
the complainant and his associates failed to get the loan
sanctioned for the accused. It is also stated that there were
several demands from the side of complainant i.e. to increase
the number of guarantors and advance money for processing
the loan that were not communicated to accused initially. It is
evident from the record of emails and communication letters
exchanged between the parties wherein page no. 3 of Mark A-
1(Colly) clearly reflects that quantum of loan sought by accused
got reduced and condition of guarantor was not informed to
accused.
21.Ld. Counsel for complainant has argued that there were several
delays on part of accused and several extensions in timeline
was sought by him. However, it is clear from the record that
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timelines were breached and extended from both sides. Further, AGNIHOTRI
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accused admitted that sought loan was a secured loan against
collateral but stated that valuation report, Ex A2 dated
27.10.2014 was not seen by him. As per the statement of
accused under Section 313 Cr.P.C., the present cheque in
question was given as a post dated cheque that has to be
encashed on loan disbursement. Perusal of copy of emails,
Mark A-1(Colly) page no. 70-71, communication between the
complainant and the accused was ongoing. The complainant
presented the cheque on 12.03.2015 when the loan process was
in continuity and loan was not disbursed to the accused.
Therefore, when the cheque in question was presented before
the bank by the complainant, there was no existing debt or
liability against the accused.
22.It is a settled position that when an accused has to rebut the
presumption under Section 118 read with 139 of NI Act, the
standard of proof for doing so is that of ‘preponderance of
probabilities’. Therefore, if the accused is able to raise a
probable defence which creates doubts about the existence of a
legally enforceable debt or liability, the prosecution can fail.
23.In the present factual matrix, the accused successfully raised a
doubt as to the legal liability on the date the cheques in
question were dishonoured and therefore second ingredient is
not satisfied.
CONCLUSION
24.To recapitulate the above discussion, accused has successfully ANSHUL
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established a probable defence on a standard of preponderance Digitally signed by
ANSHUL
AGNIHOTRI
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of probabilities to rebut the presumption raised under Section
139 read with Section 118 of NI Act by punching holes in the
case of the complainant and making the case of the
complainant doubtful. The accused has, thereby, proved that the
cheques in question were not given in discharge of existing
legal debt or liability. In the result of the analysis of the present
case, accused no.1 R.G. Infradevelopers P. Ltd. and accused
no.2 Sh. Rajat Rawal, is hereby acquitted of the offence
punishable under Section 138 of NI Act.
25.This judgment contains 15 pages and each page bears the
signature of the undersigned. Copy of the judgment be
uploaded as per rules.
Digitally
signed by
ANSHUL
ANSHUL AGNIHOTRI
AGNIHOTRI Date:
2025.07.21
Announced in the open 16:13:44
+0530
court on this 21.07.2025
(This judgment contains 15 pages and (Anshul Agnihotri)
each has been signed by the undersigned) JMFC(NI Act)Digital Court-3 (South)
Saket Courts: New Delhi/21.07.2025
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