Delhi District Court
Akhilesh Yadav vs Ms S D J Infratech Pvt. Ltd. Ors on 16 July, 2025
IN THE COURT OF MS. SURBHI GUPTA ANAND,
JUDICIAL MAGISTRATE FIRST CLASS, DIGITAL COURT-05,
SOUTH-WEST DISTRICT, DWARKA, NEW DELHI
EARLIER: JUDICIAL MAGISTRATE FIRST CLASS, (NI ACT)-07
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Cases No.7946/2015 & 4992807/2016
CNR No. DLSW02003416-2015
Akhilesh Yadav
.........Complainant
Through: Sh. Virender Yadav, Advocate
Versus
1. M/s. SDJ Infratech Pvt. Ltd.
2. Mr. Robin Kumar Singh
..........Accused
Through: Sh. Kuldeep Yadav, Advocate
(1) Name of the Akhilesh Yadav
complainant
S/o Sh. Kapal Yadav
R/o C-1/188, Madhu Vihar,
Uttam Nagar,
New Delhi-110059.
(2) Name of the accused (1) M/s. SDJ Infratech Pvt.
Ltd.
Through its Director
Mr. Robin Kumar Singh
Having office at: Plot No. 176,
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Vaishali, Sector-4,
Near Aryan School,
Ghaziabad, U.P. 201012
(2) Mr. Robin Kumar Singh
Having office at: Plot No. 176,
Vaishali, Sector-4,
Near Aryan School,
Ghaziabad, U.P. 201012
(3) Offence complained of Section 138 Negotiable
or proved Instruments Act, 1881
(4) Plea of accused Pleaded not guilty
(5) Date of institution of 15.12.2015
case
(6) Date of conclusion of 26.05.2025
arguments/clarification
s
(7) Date of Final Order 16.07.2025
(8) Final Order CONVICTION/HELD
GUILTY
JUDGMENT
1. The complainant Akhilesh Yadav has instituted this
complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter
referred to as ‘NI Act‘) against accused no.1 M/s. SDJ Infratech Pvt.
Ltd. and accused no.2 i.e. its director/authorised signatory Robin
Kumar Singh on 14.12.2015.
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2. The factual matrix as can be culled out from the
complaint is that the complainant is in the business of shuttering
buildings and that accused no.2 had approached him for shuttering
work in his site KW Shristi, Raj Nagar Extension, Ghaziabad, U.P
and the complainant agreed to do the same. Accused no.2 is stated
to be the Director of accused no.1 company. The complainant
finished his work well in time and accused no.2 issued two cheques
i.e. cheque bearing no. 174923 dated 28.09.2015 and cheque bearing
no. 174924 dated 06.10.2015 for a sum of Rs.1,09,419/- each, both
drawn upon the bank account of accused no.1 maintained at Axis
Bank, Vaishali Branch, Ghaziabad, U.P. to the complainant, in
discharge of his liability, with assurance of their encashment upon
presentation. However, to the complainant’s dismay, the said
cheques were returned unpaid with remarks, “Funds Insufficient”
vide return memos, both of which were dated 12.11.2015. The
complainant then issued a legal demand notice dated 14.11.2015,
calling upon the accused persons to pay the cheque amounts within
15 days from the receipt thereof, but the accused persons sent reply
dated 23.11.2015 denying their liability and failed to make the
payment, thus, constraining the complainant to file this complaint
u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as
‘NI Act‘) seeking redress against the dishonor of the cheques in
question.
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3. With a view to establish a prima facie case in order to
enable the court to summon the accused persons, complainant led
pre-summoning evidence by way of affidavit Ex. CW-1/1. The
complainant relied upon following documentary evidence:
(a) Original cheque bearing no. 174923 dated 28.09.2015 for a sum
of Rs.1,09,419/- drawn on Axis Bank, Vaishali Branch, Ghaziabad,
which is Ex. CW1/A.
(b) Original cheque bearing no. 174924 dated 06.10.2015 for a sum
of Rs.1,09,419/- drawn on Axis Bank, Vaishali Branch, Ghaziabad,
which is Ex. CW1/B.
(c) Return memo qua Ex. CW1/A dated 12.11.2015, which is Ex.
CW-1/C.
(d) Return memo qua Ex. CW1/B dated 12.11.2015, which is Ex.
CW-1/D.
(e) Office copy of legal demand notice dated 14.11.2015, which is
Ex. CW-1/E.
(f) Postal receipts which are Ex. CW-1/F (colly).
(g) Tracking reports, which are Ex. CW1/G & Ex. CW1/H.
(h) Reply to legal demand notice dated 23.11.2015, which is Ex.
CW1/I.
(i) Complaint which is Ex. CW1/J.
Complainant closed his pre-summoning evidence on 15.12.2015.
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4. On the basis of the above material, finding that a prima
facie case is made out against accused no.1 and 2, they were
summoned vide order dated 15.12.2015. Accused no.1 and 2 entered
their first appearance along with their counsel on 31.08.2021.
5. Notice u/s 251 Cr.P.C. was framed against accused
no.1 & accused no.2 on 31.08.2021, stating out to them the
substance of accusation, to which they pleaded not guilty and
claimed trial. Their defence was recorded at the stage of framing of
notice in compliance of directions passed by Hon’ble High Court of
Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. Accused
no.2, also answering on behalf of accused no.1 in capacity of its
Director, took the defence that they had given the cheques to the
complainant and Pappu Yadav in a blank signed manner as security,
they did not receive legal notice, however, it bears their correct but
incomplete address, further, since then, they have shifted from the
said address.
6. Accused no.1 and 2 were granted right to cross-
examine the complainant on an application u/s 145(2) NI Act
preferred by the accused no.1 and 2 vide order dated 31.08.2021.
The complainant was examined as CW-1 thereby adopting his pre-
summoning evidence as post-summoning evidence and was duly
cross-examined and discharged. Vide separate statement of
complainant, complainant evidence was closed on 03.01.2023.
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7. Statement of accused no.2, as director & on behalf of
accused no.1 company, was recorded u/s 313 Cr.P.C. r/w section
281 Cr.P.C. on 03.05.2023 wherein all the incriminating evidence
was put to him and he was granted an opportunity to explain the
circumstances appearing against him at trial. While explaining the
circumstances appearing in evidence against him, accused no.2
stated, without oath, that he had approached the complainant for
work of shuttering at his site at KW Shristi, Raj Nagar Extension,
Ghaziabad, U.P., the cheques in question bears his signature but
other details were not filled by him, he had issued the cheques in
question to the complainant in blank signed manner as security
before starting of the work by the complainant, he got the payment
of the said cheques stopped as he had already paid the complainant
the amount for his work and the complainant had also issued an
NOC to him with regard to no dues, thereafter, the complainant
misused the cheques in question for filing the present case against
him, when he asked for the cheques, the complainant assured him
that he would return the cheques later on as he had not brought them
at the time of the payment, he did not receive the legal demand
notice, he was told by someone from the neighborhood about the
notice so he appeared in court, the address mentioned thereupon is
correct but as on 14.11.2015 he was not residing there and had
shifted out of that address, now he again resides at that address, the
complainant misused the cheques to extort money from him, he
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knows the complainant and has nothing to pay to him. Accused
preferred to lead evidence in his defence.
8. At the stage of defence evidence, accused no.2
examined himself as DW-2 and his brother as DW-1. DW-1 and
DW-2 were duly cross-examined and discharged. Vide order dated
07.09.2024, defence evidence stood closed.
9. At the stage of final arguments, Ld. counsel for
complainant relied on the averments made in the complaint and
submitted that accused have been inconsistent in their defence
throughout the course of trial. Ld. Counsel pointed at the defence
recorded u/s 251 Cr.P.C. wherein accused have denied receiving the
legal demand notice but have sent in fact sent a reply to the same
which is Ex. CW-1/I, denying their liability. Further, accused no.2
deposed that when the complainant refused to return the cheques in
question, he neither filed a police complaint, nor instituted any case
against the complainant. Accused also failed to intimate his bank as
to the alleged misuse of the cheques in question. Moreover, accused
has taken the stand that he issued stop payment instructions to his
bank qua the cheques in question during his statement u/s 313
Cr,P,C. and in his cross-examination, but as per the return memos
placed on record, both the cheques in question were return unpaid
for the reason of the funds being insufficient in the account of
accused no.1 company. It is submitted by the counsel that DW-1 i.e.
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brother of the accused is a sham witness as he was never a witness
to any transaction or dealings between the parties, else he would
have also been a witness to the NOC signed by the complainant.
Accused have admitted that complainant worked for him, that the
cheques in question were issued by them to the complainant, have
failed to dispute the existence of legally enforceable debt, and
despite the receipt of legal demand notice, have failed to pay the
amount due from them. Accordingly, Ld. Counsel for the
complainant prayed that the accused no.1 and 2 be convicted for the
offence u/s 138 NI Act.
Per contra, Ld. counsel for accused no.1 and 2
submitted that the cheques in question were issued as security
cheques and not towards satisfaction of any legal liability, accused
paid the complainant all his dues and complainant also issued NOC
dated 15.09.2015 which has been placed on record and admitted by
the complainant to have been executed by him upon satisfaction of
all his dues, the cheques in question have been misused by the
complainant who failed to return them despite payment of all his
dues. The same is fortified from the fact that cheques in question
were presented for payment after the issuance of NOC i.e. when
there existed no liability towards the complainant. Further, the
complainant has not placed any bills/invoices etc. on record to prove
that there was any legal liability existing as on the date of
presentment of the cheques for encashment. Accordingly, Ld.
Counsel for the accused no.1 and 2 prayed that the accused be
acquitted.
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10. After hearing the arguments advanced on behalf of
both the parties and perusing the record carefully, and upon
appreciation of evidence, the findings of the court are as below.
11. The legal position serving as base to the offence
underlying Section 138 NI Act, as held by Hon’ble Supreme Court
in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar
Peterson Securities Ltd.: (2000) 2 SCC 745 is :
(i) that a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain amount of
money to another person from out of that account for the
discharge of any debt or other liability;
(ii) that the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within the
period of its validity whichever is earlier;
(iii) that the cheque is returned by the bank unpaid either because
of the amount of money standing to the credit of the account is
insufficient to honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement made with
the bank;
(iv) that 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 thirty days of
the receipt of information by him from the bank regarding the
return of the cheque as unpaid;
(v) that 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;
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The above legal requirements are cumulative, meaning
thereby that only if all the afore-mentioned ingredients are satisfied
can the person who had drawn the cheque be held liable for
committing an offence u/s 138 NI Act.
12. Burden of proof: The claim based under the provisions
of NI Act is an exception to the general rule of law that burden of
proof lies on the prosecution. The two specific provisions viz.
Section 118 (a) and 139 of NI Act contemplate that a presumption is
attached in regard to each and every negotiable instrument that the
same was drawn and issued against due discharge of liability and
thus, whenever any claim is made on the basis of a negotiable
instrument, the presumption has to be drawn in favor of the holder
of the cheque (drawee) and the law has put the burden to rebut the
presumption on the accused that the cheque was not issued by him
against discharge of a debt or a liability. In case the accused cannot
rebut the presumption or fails to prove his defence, the presumption
becomes absolute, and it must be assumed that the cheque was
issued by the accused in discharge of debt or liability and
consequently, the accused is assumed guilty of the offence.
It was held by the Hon’ble Supreme Court in the case
of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of
Section 139 of NI Act also includes the existence of legally
enforceable debt or liability.
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Hon’ble Supreme Court, in the case of Hiten P. Dalal
v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the
presumption mentioned in the section 139 NI Act is a presumption
of law and not a presumption of fact and thus, this presumption has
to be drawn in favor of the drawee and the burden to rebut the
presumption with the probable defence is on the accused.
This is indeed an instance of the rule of ‘reverse onus’,
where it is incumbent on the accused to lead what can be called
‘negative evidence’ i.e. to lead evidence to show non-existence of
liability. Keeping in view that this is a departure from the cardinal
rule of ‘presumption of innocence’ in favor of the accused and that
negative evidence is not easy to be led by its very nature, it is now
settled that the accused can displace this presumption on a scale of
preponderance of probabilities and the lack of consideration or a
legally enforceable debt need not be proved to the hilt or beyond all
reasonable doubts. The accused can either prove that 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. He can do so either by leading
own evidence in his defence or even by punching holes in the case
of the complainant in the testing ordeal of cross-examination. This
can be deciphered from relevant para no.21 of Hiten P. Dalal
(supra):
21. In other words, provided the facts required to form the basis
of a presumption of law exist, no discretion is left with the Court
but to draw the statutory conclusion, but this does not preclude
the person against whom the presumption is drawn from
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rebutting it and proving the contrary. A fact is said to be proved
when, “after considering the matters before it, the Court either
believes it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the particular
case, to act upon the supposition that it exists”. Therefore, the
rebuttal does not have to be conclusively established but such
evidence must be adduced before the Court in support of the
defence that the Court must either believe the defence to exist or
consider its existence to be reasonably probable, the standard of
reasonability being that of the ‘prudent man’.
Further, in Bharat Barrel v. Drum Manufacturing:
AIR 1999 SC 1008 Hon’ble Supreme Court held that the accused is
required to rebut the presumption and mere denial of passing of
consideration is no defence.
It is, thus, clear that in cases of Section 138 NI Act,
upon proof of foundational facts, law presumes in favor of the
drawee that the cheque was issued by the accused in discharge,
wholly or in part, of legally enforceable debt or liability and the
burden to rebut the same is upon the accused. The burden does not
have to be conclusively established but the accused has to prove his
defence on preponderance of probability.
13. Now applying the above law to the facts of the present
case, it has to be adjudged whether the legal requirements laid down
hereinabove have been fulfilled in the instant case.
13.1. The first legal requirement is:
“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
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another person from out of that account for the discharge of any
debt or other liability.”
At the outset, it must be proved that the accused had
issued the cheque in question on his account maintained with a bank
for discharge of any debt or other liability.
In the instant case, accused no.2 has admitted his
signatures on the cheques in question in his notice framed u/s 251
Cr.P.C, as well as in his statement recorded u/s 313 Cr.P.C. The
cheques in question have also been drawn on the account
maintained by accused no.1 company with Axis Bank, Vaishali
Branch, Ghaziabad, U.P., of which accused no.2 is the authorized
signatory/director. The said fact has not been denied by the accused
at any stage of proceeding.
13.2. It was held in the case of Kalamani Tex & anr. v. P.
Balasubramanian: 2021 SCC Online SC 75 Hon’ble Supreme
Court held that:
“14. Adverting to the case in hand, we find on a plain reading of
its judgment that the trial court completely overlooked the
provisions and failed to appreciate the statutory presumption
drawn under Section 118 and Section 139 of NI Act. The statute
mandates that once the signature(s) of an accused on the
cheque/negotiable instrument are established, then these
‘reverse onus’ clauses become operative. In such a situation, the
obligation shifts upon the accused to discharge the presumption
imposed upon him.”
The above said principle has also been crystallized by
Hon’ble Supreme Court in the case of Basalingappa v.
Mudibasappa: (2019) 5 SCC 418, by observing that:
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“25. We having noticed the ratio laid down by this Court in
above cases on Sections 118(a) and 139, we now summarize the
principles enumerated by this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of the
Act mandates a presumption that the cheque was for the
discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the
probable defence. The standard of proof for rebutting the
presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely
on evidence led by him or accused can also rely on the materials
submitted by the complainant in order to raise a probable
defence. Inference of preponderance of probabilities can be
drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which
they rely.
(iv) That it is not necessary for the accused to come in the
witness box in support of his defence, Section 139 imposed an
evidentiary burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box
to support his defence.”
In the instant case, accused no.2 having admitted his
signatures on the cheques in question and the said cheques being
drawn on the bank account of accused no.1 company of which he
was the director at the relevant time, a mandatory presumption
automatically arises in favor of complainant by virtue of Section
118(a) r/w 139 NI Act that the cheques in question were issued by
him in discharge of, whole or part of, legally enforceable debt or
liability.
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13.3. Now the burden shifts upon the accused to rebut the
above presumption by raising a probable defence, by leading
evidence or bringing such facts on record in the cross-examination
of the complainant that could make the latter’s case improbable. If,
in such a case, the accused is proved to have discharged the initial
onus of proof placed on him by showing that the existence of
consideration was improbable or doubtful or illegal, then the onus
will again shift back to the complainant who will then be under an
obligation to prove it as a matter of fact and failure to do so will
disentitle him to any relief on the basis of the negotiable instrument
(as held in Satish Sharma v. State NCT of Delhi & anr.: (2013)
204 DLT 289).
13.4. Accused no.1 and 2 have chosen to do so by cross-
examining the complainant and by leading evidence in their
defence. During his cross-examination, CW-1/complainant deposed,
in brief, that the accused no.1 company had liabilities towards him
at the time of issuance of the cheques in question, he had issued bills
to the company regarding the work done by him, he does not
remember if he had placed the copy of bills with the present
complaint, NOC had been signed by him on 15.09.2015 against full
and final payment i.e. after receiving the cheques in question, the
cheques in question were fully filled by the company and were
signed by the Director, the company had issued three cheques to
him at the date of the settlement out of which one was honored and
two were dishonored, he does not know why the cheques in question
were not mentioned in the NOC, the cheques were not issued as
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security and were not misused by him, Pappu Yadav had not
informed the company regarding the loss of the cheques in question
on his behalf, he does not remember the actual amount due against
the liability of the company.
13.5. Accused no.2 examined himself (DW-2) and his
brother Shailesh Kumar Singh (DW-1) as defence witnesses. DW-1
was duly cross-examined and deposed, in brief, that he is the real
brother of accused no.2, complainant worked with accused no.1
company, all the accounts with the complainant were settled in his
presence, complainant had 1-2 security cheques of accused,
complainant did not return the security cheques after the settlement
and later used them to file the case, complainant signed the voucher
issued by accused no.1 regarding settlement of accounts, Pappu
Yadav i.e. partner of complainant and Pankaj were accompanying
the complainant, he does not have any document to prove that the
entire payment was made by accused no.1 company to the
complainant but the same is already on record as Mark D1, he does
not remember the exact settlement amount but it was approximately
Rs.2.5 lakhs, Mark D1 does not contain the settlement
amount/cheque number/cheque amount, he was not employed by
accused no.1 but he had all information about the company,
settlement Mark D1 was also executed by his indulgence, Mark D1
does not bear his signatures, cheques in issue were not issued by
accused no.2 in discharge of liability of accused no.1 but as security,
he does not know if accused no.2 sent reply to the legal demand
notice, Mark D1 is regarding the settlement of the entire account
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with the complainant, he does not have any proof/receiving of
payment by complainant. He denied the suggestions that Pappu
Yadav and Pankaj never received any payment on behalf of the
complainant and Mark D1 is not towards the settlement of the
cheques in question.
13.6. Accused no.2 i.e. DW-2 was duly cross-examined and
deposed, in brief, that he is employed in accused no.1 company
since 2014, he was director of accused no.1 at the relevant time i.e.
from 2014 till 2016, he was aware about the day to day affairs of the
accused no.1 company, complainant approached accused no.1 as
contractor and cheques in question were issued to him in blank
signed manner as security, at the insistence of his client KW Shrishti
he entered into settlement with the complainant and complainant
signed NOC after termination of contract in the presence of his
partner on 15.09.2015, when he demanded return of his security
cheques complainant informed him that he would return the same
later as he had not brought them along, original NOC was given by
him to the client KW Shrishti and one copy was kept by him, he did
not receive the legal notice, he did not send reply to the legal notice,
he does not know if someone else had sent reply on behalf of the
company, he denied sending the reply at Ex. CW-1/I, he does not
know the contents of Ex. CW-1/I, he knows Ravinder Sharma i.e.
the author of the reply Ex. CW-1/I, both the cheques in question
bear his signatures but he has not filled in the amount and the rest of
the particulars, he did not take any receiving at the time of handing
over the cheques as they were issued as security when the
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complainant approached him for business, he made payment of
Rs.1,50,000/- and 30,000/- to the complainant after handing over of
the cheques in question, the cheques in question were not handed
towards full and final settlement, amount in cheques in question was
not filled by some other employee in the company, he did not file
any police complaint when the complainant failed to return the
cheques but he got payment of the said cheques stopped and
contacted the complainant over telephone, he did not send any legal
notice to the complainant regarding return of cheques as
complainant has promised to return the cheques, he took NOC as
receiving while paying the cash against the cheques, he did not issue
3 cheques to the complainant for an amount go Rs.1,09,419/- each
towards settlement out of which one cheque was cleared and the
other two are the cheques in question, he gave 3 cheques including
the 2 cheque in question as security out of which one was honored,
the cheques in question were not issued after NOC towards balance
payment to be made to the complainant, he was only given a
photocopy of the NOC and original is in the possession of the
complainant, Pappu Yadav was accompanying the complainant at
the time of issuance of the NOC but he did not sign the same, he has
no proof that Pappu Yadav was partner of the complainant but he
always accompanied the complainant, he has no liability towards the
complainant for the amounts of the cheques in question.
13.7. In the present case, the complainant has set up a claim
against accused no.1 and 2 for a total sum of Rs.2,18,838/- qua the
two cheques in question.
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It is alleged by the complainant that he did shuttering work
for accused no.1 company between 2014 and 2015 at its project site
KW Shristi. Upon completion, total dues for work done by him
were settled with accused no.1 company whereupon three cheques,
signed by director/accused no.2, were issued to him in fully filled
manner. Of these three cheques, only one was honoured and the
remaining two cheques for an amount of Rs. Rs.1,09,419/- each
were returned dishonored with remarks ‘Funds Insufficient’. These
two cheques are the cheques in question in the present case.
13.8. In view of the legal presumption of issuance of cheque
in discharge of liability being in favour of complainant by virtue of
the section 139 NI Act, the burden was in fact upon the accused to
rebut such presumption and to prove that he had no legal liability
towards the cheques in question. The test being that of a prudent
person, it was not necessary for the accused to lead any evidence in
his defence and he could have discharged the burden even by
making out a probable case in his favour from the cross-examination
of complainant witnesses. The burden is said to have been
discharged once accused lays out a probable defence that either the
consideration did not exist at all, or the existence of consideration
was so improbable in the facts of the case that any prudent person
would believe that it did not exist.
13.9. In the case at hand, it is not the defence of the accused
that the consideration did not exist at all. In fact, accused no.2 has
admitted that he was the director of accused no.1 company at the
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relevant time and that complainant worked for accused no.1
company at its project site KW Shrishti between 2014 and 2015.
Accused no.2 has also admitted that accused no.1 company had
liabilities towards the complainant for the work done by him, and
the same were settled with the complainant upon completion of
project site. Accused no.2 has admitted his signatures on the
cheques in question, in the capacity of authorized signatory for
accused no.1 company as well as handing over the cheques in
question to the complainant. However, he has chosen to defend the
case against him.
13.10. The primary defence raised by accused no.2 is that the
cheques in question were issued to the complainant as security
cheques, in blank signed manner, before the complainant started
working for his company at the project site KW Shrishti, and not at
the time of settlement of accounts.
As per accused no.2’s version of events, when he
settled the account of the complainant, he had paid all the dues to
the complainant by way of cash. Thereupon, the complainant had
issued to him voucher dated 15.09.2015 (Mark D1) as
acknowledgment of the receipt of these dues. But, despite such
payment, the complainant refused to return the security cheques
lying in his possession and later misused the said cheques to extort
money from him.
Broadly, therefore, the only point of contention
between the parties is whether the cheques in question were issued
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as security cheques or towards the payment of the dues upon which
the NOC dated 15.09.2015 was admittedly executed and issued by
the complainant to the accused.
13.11. Throughout the course of trial, accused no.2 has
maintained that all the dues of the complainant were paid to him in
cash after the settlement of accounts while the cheques in question
were issued initially as security cheques, however, this is
contradictory to contents of Ex. CW-1/I i.e. the reply to the legal
demand notice dated 23.11.2015 sent by accused no.2 on behalf of
accused no.1 company, wherein it has been admitted in Para 4 that
two cheques were issued by the accused to the complainant on
15.09.2015 towards the settlement of dues. There can be no doubt
with respect to the fact that the cheques referred to in the said
paragraph are the cheques in question as the details of those cheques
viz. the cheque numbers, the amounts of the cheques and the bank
upon which they have been drawn are clearly mentioned therein,
and the NOC was issued only upon the receipt of those cheques.
Accused no.2 has outrightly denied having any
knowledge about the contents of the said reply or sending it to the
complainant during his cross-examination, however, a cursory
perusal of Ex. CW-1/I leaves no room for doubt that it was indeed
sent at the instruction of accused no.2 on behalf of accused no.1,
through his counsel Sh. Ravinder Sharma. Accused no.2 has
admitted that he knows Sh. Ravinder Sharma as also the fact that he
was aware of all day to day affairs of accused no.1 company. This
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renders it highly improbable that the said reply was sent upon his
instructions in response to the legal demand notice sent by the
complainant.
The aforesaid contradiction also renders the plea of
accused no.2 qua not filling in the other particulars in the cheques in
question improbable as the reply categorically mentions that
cheques were issued in a fully filled manner.
13.12. Accused no.2 has also stated during recording of his
statement u/s 313 Cr.P.C as well as in the course of his cross-
examination that the complainant refused to return the cheques in
question, which were issued as security, and later misused them to
extort money, despite payment of dues but admittedly, accused no.2
has neither filed any police complaint nor instituted any case against
the complainant for alleged misuse of the cheques in question till
date. The same is not expected of a prudent person, who would have
at least reported the apprehension of misuse of valuable security in
the form of blank signed cheques, especially in light of the fact that
the lapse of time between settlement of accounts i.e. when the
complainant was supposed to return the cheques in question and
presentation of those cheques for encashment was almost two
months.
13.13. Accused no.2 also took seemingly inconsistent stands
during his cross-examination viz that he did not file any complaint
against the complainant for his failure to return the cheques in
question as the complainant had promised to return the same, and
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yet, that he issued ‘Stop Payment’ instructions qua the two cheques
in question to his banker.
The fact that the cheques in question were returned
dishonored for the reason ‘Funds Insufficient’ and not for the reason
‘Payment Stopped by Drawer’ further fortifies the probability that
the cheques in question were not issued as security cheques but
towards the dues post settlement of accounts on 15.09.2015 i.e. the
date of execution of NOC.
13.14. It has also been consistently averred by accused no.2
that the complainant was always accompanied by Pappu Yadav,
alleged to be the partner of complainant, in his dealings with
accused no.2, and in fact, the NOC executed by complainant was
witnessed by Pappu Yadav. Further, it is the case of the accused that
Pappu Yadav had misinformed him of the loss of cheques in
question, but the accused never examined him as witness in the
present case.
13.15. Albeit accused no.2 has consistently denied his liability
towards the cheques in question, however, apart from failure of
accused no.2 to take any concrete action against complainant who
has been alleged to have misused the cheques, there are myriad
inconsistencies in the defence of the accused no. 2. The defence that
cheques in question were issued as security cheques and were
misused by the complainant can be said to be none other than one
hanging in the air and devoid of any substance.
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Thus, in light of the aforesaid discussion and in
absence of any other cogent evidence, the accused has not able to
prove that the cheques in issue were not issued in discharge of legal
liability i.e. towards payment of the amount due to the complainant
for work done by him for accused no.1’s project site.
13.16. In view of the above observations, it can be safely
concluded that accused have failed to rebut the presumption of law
and discharge the burden of proof by raising a probable defence that
the cheques in question were not issued to the complainant in
discharge of his liability.
Thus, the first legal requirement is adjudicated in
favor of complainant.
14. The second legal requirement is:
“That cheque has been presented to the bank within a period of
six months from the date on which it is drawn or within the
period of its validity whichever is earlier.”
The cheques in question Ex. CW-1/A and Ex. CW-1/B
are dated 28.09.2015 and 06.10.2015, respectively, and returning
memos Ex. CW-1/C and Ex. CW-1/D are both dated 12.11.2015.
This proves that the cheques in question were presented within the
period of their validity. Further, defence has failed to controvert the
said fact.
Thus, the second legal requirement is adjudicated in
favor of complainant.
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15. The third legal requirement is:
“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.”
Section 146 NI Act presumes the fact of dishonor of
cheque upon production of bank’s slip or memo having the official
mark denoting that the cheque in question has been dishonored. This
is also a rebuttable presumption and upon production of such bank
memo, the burden shifts upon accused to disprove the same.
In the instant case, a presumption has been raised in
favor of complainant by virtue of Section 146 NI Act that the
cheques in question were dishonored for the reason stated in the
return memos viz. ‘Funds Insufficient’. The said reason falls
squarely within the offence defined u/s 138 NI Act and therefore,
the burden now shifts upon accused no.1 and 2 to rebut this
presumption by establishing some reasonable justification for the
same. But, accused no.2 has admitted his signatures on the cheques
in question and has failed to controvert the reason for dishonor of
the cheques in question.
Thus, the third legal requirement is adjudicated in
favor of complainant.
16. The fourth legal requirement is:
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“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 thirty days
of the receipt of information by him from the bank regarding the
return of the cheque as unpaid.”
In the instant case, the cheques in issue were returned
dishonored on 12.11.2015 (Ex. CW-1/C and Ex. CW-1/D). The
complainant sent legal demand notice dated 14.11.2015 (Ex. CW-
1/E) addressed to the accused no.1 and 2 at their office address.
Original postal receipts (Ex. CW-1/F(colly) are also dated
14.11.2015.
Accused no.1 and 2 have failed to controvert the said
fact. It is thus proved that the legal notice was sent to the accused
no.1 and 2 within thirty days of receipt of intimation of dishonor of
cheques in issue.
The fourth legal requirement is, therefore,
adjudicated in favor of complainant.
17. The fifth legal requirement is:
“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.”
At the outset, accused no. 2, also answering on behalf
of accused no.1 company, has denied receiving legal demand notice
both in his defence recorded u/s 251 Cr.P.C. and in his statement
recorded u/s 313 Cr.P.C. However, he has admitted the address
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mentioned on the legal demand notice to be his correct old address,
wherein he was not residing as on the date of the legal demand
notice. He has, however, admitted that he is currently residing at the
same address.
It has already been established in the foregoing
discussion that the accused no.2 sent the reply dated 23.11.2015 at
Ex. CW-1/I in response to the legal demand notice sent by the
complainant.
Thus, the attempt to deny the knowledge of the dishonor
of the cheques in question and receipt of the legal demand notice is
nothing but a sham, especially in view of the existence of
documentary proof of the delivery of the same in the form of the
tracking reports (Ex. CW-1/G and Ex. CW-1/H).
17.1. Even otherwise, law expects a person pleading non-
receipt of the legal demand notice to prove his bona fides by making
the payment of the cheque amount within 15 days of receiving court
summons. This is crystallized by the verdict of Hon’ble Supreme
Court in the case titled as C.C. Alavi Haji v. Palapetty Muhammed
& Anr.: (2007) 6 SCC 555:
“17. It is also to be borne in mind that the requirement of
giving notice is a clear departure from the rule of Criminal
Law, where there is no stipulation of giving of a notice before
filing a complaint. Any drawer who claims that he did not
receive the notice sent by post, can, within 15 days of receipt
of summons from the court in respect of the complaint under
section 138 of the Act, make payment of the cheque amount
and submit to the Court that he had made payment within 15
days of receipt of summons (by receiving a copy of complaint
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with the summons) and, therefore, the complaint is liable to be
rejected. A person who does not pay within 15 days of receipt
of the summons from the Court along with the copy of the
complaint under section 138 of the Act, cannot obviously
contend that there was no proper service of notice as required
under section 138, by ignoring statutory presumption to the
contrary under Section 27 of the G.C. Act and section 114 of
the Evidence Act.”
17.2. In the case at hand, despite the issuance of summons,
and appearance of accused before the court, albeit after a lapse of
more than 5 years from the institution of the present complaint, he
has failed to pay the amount of the cheques in question to the
complainant and is thus precluded from raising the plea of non-
service of demand notice.
It is also an undisputed fact and a matter of record
that accused has failed to make the payment till date, let alone
making the payment within 15 days of receipt of legal demand
notice.
Thus, the fifth legal requirement is adjudicated in
favor of complainant.
18. All the legal requirements constituting an offence u/s
138 NI Act have been proved in favor of the complainant and
against accused no.1 and 2. Accordingly, the accused no.1 M/S
SDJ Infratech Pvt. Ltd. and its director/authorized signatory
accused no.2 Robin Kumar Singh are held guilty for the
alleged offence u/s 138 NI Act qua the two cheques in
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question.
19. Now to come up for arguments on quantum of
sentence. Copy of this judgment be given Dasti to the convicts
free of cost as per rules.
Announced in the open Digitally signed by
court on 16th July, 2025. SURBHI SURBHI GUPTA
GUPTA ANAND
Date: 2025.07.16
ANAND 17:23:21 +0530
(SURBHI GUPTA ANAND)
Judicial Magistrate First Class (NI Act) DC-05
S/W District, Dwarka Courts, New Delhi/16.07.2025
Earlier: Judicial Magistrate First Class (NI Act)-07
S/W District, Dwarka Courts, New Delhi/16.07.2025
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