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Delhi District Court
Aparna Sharma vs State Nct Of Delhi on 15 July, 2025
IN THE COURT OF SH. ATUL AHLAWAT
ADDL. SESSIONS JUDGE, NDPS ACT (SPECIAL JUDGE)
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
IN RE:
Crl. Appeal No. 297/2023
CNR No. DLND01-008645-2023
Brief Details of the Case & Memo of Parties
RAKESH KUMAR TIWARI VS. APARNA SHARMA &
ANR.
Date of Institution : 14.10.2023
Date of Arguments : 08.07.2025
Date of Order : 15.07.2025
Memo of Parties
Rakesh Kumar Tiwari
S/o Late Sh. Bikram Tiwari
R/o H. No.11/8, Sector-1, Pushp Vihar, Saket,
New Delhi-110017.
.....Appellant
Vs.
(1.) Aparna Sharma
D/o Late Sh. S R S Bhardwaj
R/o House No. 113/9, Near Bansal Hospital,
Goshala Road, Vasant Kunj, New Delhi-110070.
(2.) State (GNCT of Delhi)
......Respondents
PS- Tilak Marg
Digitally signed
by ATUL
AHLAWAT
ATUL Date:
AHLAWAT 2025.07.15
11:31:59
+0530
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
CR No. 696/2023 Aparna Sharma Vs State & Anr. CNR No. DLND01-008790-2023 Page No. 1/28
AND
IN RE:
Crl. Revision No. 696/2023
CNR No. DLND01-008790-2023
Brief Details of the Case & Memo of Parties
APARNA SHARMA VS STATE OF NCT OF DELHI &
ANR.
Date of Institution : 18.10.2023
Date of Arguments : 08.07.2025
Date of Order : 15.07.2025
Memo of Parties
Aparna Sharma
D/o Late Sh. S R S Bhardwaj
R/o House No. 113/9, Near Bansal Hospital,
Goshala Road, Vasant Kunj, New Delhi-110070.
.....Revisionist
Vs.
(1.) State (GNCT of Delhi)
(2.) Rakesh Kumar Tiwari
S/o Late Sh. Bikram Tiwari
R/o H. No.11/8, Sector-1, Pushp Vihar, Saket,
New Delhi-110017.
......Respondents
PS- Tilak Marg
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:32:05
+0530
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
CR No. 696/2023 Aparna Sharma Vs State & Anr. CNR No. DLND01-008790-2023 Page No. 2/28
JUDGMENT
(Pronounced on the 15th Day of July, 2025)
1. Vide the present judgment, I shall dispose off the Criminal
Appeal moved u/s 374(3) Cr.P.C., 1973 and the Criminal
Revision Petition filed u/s 397 Cr.P.C.,1973, filed by the parties
against the impugned Judgment dated 28.08.2023 and impugned
Order on Sentence dated 13.09.2023, passed by the Court of Ld.
MM (NI Act), Digital Court-03, New Delhi District, PHC, New
Delhi, in CC no. 265/2022, in case titled as “Aparna Sharma Vs
Rakesh Kumar Tiwari LDC.”
2. Since both the appeal and the revision petition are arising
out of the same impugned judgment and order on sentence, they
are both hereby disposed off vide the present common judgment.
Perusal of the record shows that both the present appeal and the
revision petitions were filed within the limitation period
prescribed under the law.
3. As per the impugned Judgment dated 28.08.2023, the
appellant/accused was convicted for committing the offence
punishable u/s 138 NI Act, 1881. Vide the Order on Sentence
dated 13.09.2023, the Ld. Trial Court had sentenced the
appellant/accused to pay a fine to the tune of Rs. 9,00,000/-
(Rupees Nine Lacs) and the said fine was to be paid to the
complainant/respondent u/s 357(1) (b) Cr.P.C, 1973, within 30
Digitally
signed by
ATUL
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023 ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:32:13
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days from the date of the said order. Furthermore, in default of
paying the fine amount of Rs. 9,00,000/-, he was sentenced to
undergo further Simple Imprisonment for a period of three
months.
4. The appellant/accused had challenged the passing of both
the impugned judgment and order on sentence, whereby the
revisionist/complainant is challenging the impugned order on
sentence on the ground of the sentence being inadequate and
inter alia, seeking enhancement of sentence awarded by the Ld.
Trial Court.
5. Vide the order dated 06.06.2025, this Court had decided
the maintainability of the revision petition with respect to the
prayers sought by the revisionist/complainant. It was duly held
that although the revision petition was maintainable qua the
aspect of sentence and enhancement thereof, however, this Court
cannot decide the question of inadequate compensation awarded,
as for the same the revisionist/complainant had to prefer an
appeal under the proviso to section 372 Cr.P.C.,1973, which she
has not done.
6. TCR was received. The same was perused carefully.
7. It was submitted by the Ld. Counsel for the
appellant/accused that the appellant/accused was in urgent need
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
Digitally
signed by
ATUL
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AHLAWAT Date:
2025.07.15
11:32:20
+0530
of money in the year 2023 and since his CIBIL score was not
good, he could not procure the same from any bank or financial
institution. The desperation for the unsecured loan of Rs.
5,00,000/- for purchasing a property led him to the internet,
where he found the contact details of one Mukul Gupta,
Advocate. He got in touch with the said person and the latter
falsely represented to the appellant/accused that he would
arrange the said loan for him.
8. It was submitted by the Ld. Counsel for the
appellant/accused that based upon the misrepresentations of the
said Mukul Gupta, Advocate, the appellant/accused came to
Patiala House Court, where he met the revisionist/complainant
and one Vaibhav Mishra, Advocate. He was foxed into giving an
undertaking-cum-receipt, which was prepared by him at the
direction /dictation of the said Mukul Gupta. At that time the
revisionist/complainant and Vaibhav Mishra were also present
there. Since, the appellant/accused was desperate for the loan, he
executed the said document and also issued a blank signed
cheque, which was not having any other details on it. He was
forwarded Rs. 2,00,000/- in cash on that day and was promised to
be given the remaining amount on the next day. The fraudsters
also took Rs. 10,146/- from him on the pretext of purchasing
court fees. When the appellant/accused went back the next day,
the said Mukul Gupta refused to recognize him.
Digitally signed
by ATUL
AHLAWAT
ATUL Date:
AHLAWAT 2025.07.15
11:32:26
+0530
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
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9. It was submitted by the Ld. Counsel for the
appellant/accused that the revisionist/complainant in conspiracy
and connivance with her co-conspirators had misused the
security cheque given by the appellant and the details in the said
cheque were filled up and it was presented for encashment. Later,
he received an undated legal notice qua the said cheque and he
got to know about the fraud being committed upon him. He then
filed a complaint against the fraudsters before PS Tilak Marg on
15.05.2022 which was registered vide DD No. 43.
10. It was submitted by the Ld. Counsel for the
appellant/accused that based upon the undertaking-cum-receipt,
the revisionist/complainant filed a civil suit for recovery against
the appellant/accused. Without the notice/summons being issued
to him, the appellant/accused was made to appear before the
Court of Ld. ADJ, PHC and the revisionist/complainant got a
consent decree passed from the said Court by playing fraud. The
said judgment passed by the Court of Ld. ADJ is under challenge
at present, after the appellant/accused moved an application to set
aside the same. The revisionist/complainant also filed the
execution petition bearing number 302/2021 and the
appellant/accused filed the objections against the said petition
before the concerned Court, which is also pending adjudication.
11. It was submitted by the Ld. Counsel for the
appellant/accused that the Ld. Trial Court had failed to appreciate
Digitally
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023 signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
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the fraud being played upon the appellant/accused by the
revisionist/complainant and her accomplices, who are all
practicing lawyers. The Ld. Trial Court further failed to
appreciate that the revisionist/complainant could not establish
through any cogent evidence, the foundational evidence
regarding the alleged transaction for supply of the agricultural
products, as mentioned in the undertaking-cum-receipt. The
impugned judgment was passed by the Ld. Trial Court in
contravention of the law of the land and same is suffering from
patent illegality, since it is based on irrelevant and extraneous
material and the revisionist/complainant had failed to establish
her case before the Ld. Trial Court and the defense taken by the
appellant/accused was not considered. Even if it was presumed
that the cheque was issued to the revisionist/complainant, it was
not having a date filled on it and by filling the said date, the
revisionist/complainant had committed material alteration, which
is barred u/s 87 of the NI Act,1881. The Ld. Trial Court had also
misplaced the burden of proof, since for the appellant the said
burden was only to establish his defense on the preponderance of
probabilities, which he had duly satisfied. It was for the
revisionist/complainant to establish her case beyond reasonable
doubt and the appellant/accused could not have been convicted
on the basis of the statutory presumptions alone. Therefore, the
impugned judgment and order on sentence, deserves to be set
aside.
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:32:39 +0530
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
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12. It is submitted by Ld. Counsel for the
revisionist/complainant that there is no illegality or infirmity in
the impugned judgment passed by the Ld. Trial Court as the Ld.
Trial Court had correctly held the appellant guilty for committing
the offence punishable u/s 138 NI Act, for dishonour of the
cheque dated 29.09.2021, drawn for an amount of Rs 8,00,000/-,
which was issued by the appellant/accused in discharge of partial
settlement of the legally enforceable debt, i.e. payment for the
agricultural produce supplied to him. The declaration-cum-
receipt was an admitted document, which was brought on record
as CW-1/D-1 by the appellant/accused himself. Furthermore, in
his statement u/s 294 Cr.P.C., 1973, the appellant/accused had
admitted the cheque, Ex. CW-1/2; the cheque returning memo,
Ex. CW-1/3; the legal notice, Ex. CW-1/4 and the postal receipts,
Ex. CW-1/5 along with the tracking report. He further admitted
the certified copies of the civil suit and his own statement made
in the said suit before the Court of Ld. ADJ, Ex. CW-1/1(colly.).
Hence, there are categorical admissions in the present case and
the appellant/accused could not rebut the statutory presumptions
raised against him.
13. That the appellant has raised the following grounds of
appeal:
(i) Because, the Ld. Trial Court has totally failed to
appreciate properly and it relied upon those points of
evidence, which were against the appellant/accused andDigitally
signed by
ATUL
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023 ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:32:47
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did not appreciate the points/objections/legal submissions
made by the appellant/accused and in favour of the
appellant/accused, hence the impugned judgment and
order passed by the Ld. Trial Court is liable to be set-aside
on this very ground in the eyes of law.
(ii) Because, the Ld. Trial Court has failed to appreciate
the fact that the complaint u/s 138 of NI Act was not
maintainable and the essential ingredients of the offence
punishable u/s 138 of the said Act was not made out in
the present case and the said complaint was not able to
substantiate the allegations with any foundational
evidence. There were no invoices or proof brought on
record by the revisionist/complainant to substantiate that
she had supplied agricultural products for several years to
the appellant/accused.
(iii) Because, the Ld. Trial Court has totally failed to
appreciate the fact that impugned judgment and order of
sentence are based on conjectures and surmises and there
can be no recovery of the fine amount under the
provisions of the NI Act, 1881. Hence, the order on
sentence passed by the Ld. Trial Court is liable to be set-
aside on this very ground in the eyes of law.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:32:53
+0530
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
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(iv) Because, the Ld. Trial Court has totally failed to
appreciate the fact that revisionist/complainant had
played a fraud upon the Court by obtaining a civil decree
on consent basis. The cheque in question was also
obtained by playing fraud upon the appellant/accused and
the undated and blank cheque was issued to Mukul
Gupta, Advocate and not the revisionist/complainant. The
Ld. Trial Court also ignored the criminal complaint filed
by the appellant/accused against the
revisionist/complainant and her accomplices. The
impugned judgment and order of sentence have been
passed in highly mechanical and routine manner and the
Ld. Trial Court failed to appreciate that the cheque in
question was a security cheque and the same was
illegally filled up and presented for encashment by the
revisionist/complainant with the only motive of extorting
money from the appellant/accused and to harass him.
Therefore, the same is liable to be set aside on this very
ground alone.
14. The revisionist/complainant has sought the enhancement
of sentence passed by the Ld. Trial Court, on account of same
being too lenient and not being the commensuration with the
offence in question. The revisionist/complainant has sought for
passing the order of sentence for the maximum term as
prescribed under the law and also argued that the fine amount
Digitally
signed by
ATUL
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023 AHLAWAT
ATUL
AHLAWAT Date:
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was also passed without appreciating the law laid down by the
Hon’ble Supreme Court of India in catena of judgments, since
the said fine amount was not having minimum 9% per annum
interest. Furthermore, enhanced compensation is also sought by
the revisionist/complainant.
15. I have heard the submissions and gone through the
material available on record. I have also carefully perused the
TCR and the impugned Judgment dated 28.08.2023 and the
impugned Order on Sentence dated 13.09.2023.
16. Before, appreciating the evidence brought on record by the
prosecution before the Ld. Trial Court, this court deems it fit to
discuss the relevant case laws applicable to appreciating the
evidence in the present case.
17. It is trite law that the accused persons can be convicted on
the basis of credible evidence brought on record and the
appreciation of the said evidence must be done in correct and true
perspective manner and in the natural course of events, what
would have been occurred. Appreciation of evidence beyond
reasonable doubt does not mean that it should be assessed
beyond any iota of doubt. Beyond Reasonable Doubt means that
the prosecution is required to place evidence at a higher degree of
preponderance of probabilities compared to what is degree of
preponderance of probability in civil cases. The theory of Beyond
ATUL
AHLAWAT
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
Digitally signed by
ATUL AHLAWAT
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11:33:06 +0530
Reasonable Doubt means expecting higher degree of
preponderance of probabilities and the natural conduct of human
beings, as held by the Hon’ble High Court of Karnataka in “State
of Karnataka Vs Venkatesh @ Venkappa & Anr“, Criminal
Appeal No. 100492 of 2021, decided on 18.12.2023.
18. Section 2 of the BSA, 2023 (erstwhile section 3 of the
Indian Evidence Act, 1872) defines “evidence”. The evidence can
be broadly divided into oral and documentary. “Evidence” under
the Act can be said to include the means, factor or material,
lending a degree of probability through a logical inference to the
existence of a fact. It is an adjective law highlighting and aiding
the substantive law. Thus, it is neither wholly procedural nor
substantive, though trappings of both could be felt. Reliance is
placed upon the decision of the Hon’ble Apex Court in “Rajesh
Yadav & Anr Vs State of UP”, Criminal Appeal No. 339-340 of
2014, date of decision 04.02.2022.
19. The definition of the word “proved” though gives an
impression of a mere interpretation, in effect, is the heart and
soul of the entire Act. This clause, consciously speaks of proving
a fact by considering the “matters before it”. The importance is
attached to the degree of probability in proving a fact through the
consideration of the matters before the court. What is required for
a court to decipher is the existence of a fact and its proof by a
degree of probability, through a logical inference.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:33:14
+0530
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
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20. Matters are necessary, concomitant material factors to prove
a fact. All “evidence” would be “matters” but not vice versa. In
other words, matters could be termed as a genus of which
evidence would be a species. Matters also adds strength to the
evidence giving adequate ammunition in the Court’s sojourn in
deciphering the truth. Thus, the definition of “matters” is
exhaustive, and therefore, much wider than that of “evidence”.
However, there is a caveat, as the court is not supposed to
consider a matter which acquires the form of an evidence when it
is barred in law. Matters are required for a court to believe in the
existence of a fact.
21. Matters, do give more discretion and flexibility to the court
in deciding the existence of a fact. They also include all the
classification of evidence such as circumstantial evidence,
corroborative evidence, derivative evidence, direct evidence,
documentary evidence, hearsay evidence, indirect evidence, oral
evidence, original evidence, presumptive evidence, primary
evidence, real evidence, secondary evidence, substantive
evidence, testimonial evidence, etc.
22. In addition, they supplement the evidence in proving the
existence of a fact by enhancing the degree of probability. As an
exhaustive interpretation has to be given to the word “matter”,
and for that purpose, the definition of the expression of the words
“means and includes”, meant to be applied for evidence, has to
ATUL
AHLAWAT
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ATUL AHLAWAT
Date: 2025.07.15
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be imported to that of a “matter” as well. Thus, a matter might
include such of those which do not fall within the definition of
Section 3, in the absence of any express bar.
23. What is important for the court is the conclusion on the
basis of existence of a fact by analyzing the matters before it on
the degree of probability. The entire enactment is meant to
facilitate the court to come to an appropriate conclusion in
proving a fact. There are two methods by which the court is
expected to come to such a decision. The court can come to a
conclusion on the existence of a fact by merely considering the
matters before it, in forming an opinion that it does exist. This
belief of the court is based upon the assessment of the matters
before it. Alternatively, the court can consider the said existence
as probable from the perspective of a prudent man who might act
on the supposition that it exists. The question as to the choice of
the options is best left to the court to decide. The said decision
might impinge upon the quality of the matters before it.
24. The word “prudent” has not been defined under the
Adhiniyam (or under the Indian Evidence Act,1872). When the
court wants to consider the second part of the definition clause
instead of believing the existence of a fact by itself, it is expected
to take the role of a prudent man. Such a prudent man has to be
understood from the point of view of a common man. Therefore,
a judge has to transform into a prudent man and assess the
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ATUL
AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.07.15
11:33:30 +0530
existence of a fact after considering the matters through that lens
instead of a judge. It is only after undertaking the said exercise
can he resume his role as a judge to proceed further in the case.
25. The aforesaid provision also indicates that the court is
concerned with the existence of a fact both in issue and relevant,
as against a whole testimony. Thus, the concentration is on the
proof of a fact for which a witness is required. Therefore, a court
can appreciate and accept the testimony of a witness on a
particular issue while rejecting it on others since it focuses on an
issue of fact to be proved. However, the evidence of a witness as
whole is a matter for the court to decide on the probability of
proving a fact which is inclusive of the credibility of the witness.
Whether an issue is concluded or not is also a court’s domain.
26. While appreciating the evidence as aforesaid along with the
matters attached to it, evidence can be divided into three
categories broadly namely, (i) wholly reliable, (ii) wholly
unreliable and (iii) neither wholly reliable nor wholly unreliable.
If evidence, along with matters surrounding it, makes the court
believe it is wholly reliable qua an issue, it can decide its
existence on a degree of probability. Similar is the case where
evidence is not believable. When evidence produced is neither
wholly reliable nor wholly unreliable, it might require
corroboration, and in such a case, court can also take note of the
contradictions available in other matters. The aforesaid principle
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AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.07.15
11:33:38 +0530
of law has been enunciated in the authority of Hon’ble Supreme
Court of India in “Vadivelu Thevar v. State of Madras“, 1957
SCR 981 wherein it is held as under:
“In view of these considerations, we have no hesitation in
holding that the contention that in a murder case, the court
should insist upon plurality of witnesses, is much too
broadly stated. Section 134 of the Indian Evidence Act has
categorically laid it down that “no particular number of
witnesses shall in any case, be required for the proof of any
fact”. The legislature determined, as long ago as 1872,
presumably after due consideration of the pros and cons,
that it shall not be necessary for proof or disproof of a fact
to call any particular number of witnesses. In England, both
before and after the passing of the Indian Evidence Act,
1872, there have been a number of statutes as set out in
Sarkar’s Law of Evidence — 9th Edn., at pp. 1100 and 1101,
forbidding convictions on the testimony of a single witness.
The Indian Legislature has not insisted on laying down any
such exceptions to the general rule recognized in s.134
quoted above. The section enshrines the well-recognized
maxim that “Evidence has to be weighed and not counted”.
Our Legislature has given statutory recognition to the fact
that administration of justice may be hampered if a
particular number of witnesses were to be insisted upon. It
is not seldom that a crime has been committed in the
Digitally
signed by
ATUL
ATUL AHLAWAT
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presence of only one witness, leaving aside those cases
which are not of uncommon occurrence, where
determination of guilt depends entirely on circumstantial
evidence. If the Legislature were to insist upon plurality of
witnesses, cases where the testimony of a single witness
only could be available in proof of the crime, would go
unpunished. It is here that the discretion of the presiding
judge comes into play. The matter thus must depend upon
the circumstances of each case and the quality of the
evidence of the single witness whose testimony has to be
either accepted or rejected. If such a testimony is found by
the court to be entirely reliable, there is no legal
impediment to the conviction of the accused person on such
proof. Even as the guilt of an accused person may be proved
by the testimony of a single witness, the innocence of an
accused person may be established on the testimony of a
single witness, even though a considerable number of
witnesses may be forthcoming to testify to the truth of the
case for the prosecution. Hence, in our opinion, it is a
sound and well-established rule of law that the court is
concerned with the quality and not with the quantity of the
evidence necessary for proving or disproving a fact.
Generally speaking, oral testimony in this context may be
classified into three categories, namely:
(1) Wholly reliable.
Digitally signed
(2) Wholly unreliable. ATUL
by ATUL
AHLAWAT
Date:
AHLAWAT 2025.07.15
11:33:50
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(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no
difficulty in coming to its conclusion either way — it may
convict or may acquit on the testimony of a single witness,
if it is found to be above reproach or suspicion of
interestedness, incompetence or subornation. In the
second category, the court, equally has no difficulty in
coming to its conclusion. It is in the third category of
cases, that the court has to be circumspect and has to look
for corroboration in material particulars by reliable
testimony, direct or circumstantial. There is another
danger in insisting on plurality of witnesses. Irrespective
of the quality of the oral evidence of a single witness, if
courts were to insist on plurality of witnesses in proof of
any fact, they will be indirectly encouraging subornation
of witnesses. Situations may arise and do arise where only
a single person is available to give evidence in support of
a disputed fact. The court naturally has to weigh carefully
such a testimony and if it is satisfied that the evidence is
reliable and free from all taints which tend to render oral
testimony open to suspicion, it becomes its duty to act
upon such testimony. The law reports contain many
precedents where the court had to depend and act upon
the testimony of a single witness in support of the
prosecution. There are exceptions to this rule, for example,
Digitally
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023 signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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in cases of sexual offences or of the testimony of an
approver; both these are cases in which the oral testimony
is, by its very nature, suspect, being that of a participator
in crime. But, where there are no such exceptional reasons
operating, it becomes the duty of the court to convict, if it
is satisfied that the testimony of a single witness is entirely
reliable. We have, therefore, no reasons to refuse to act
upon the testimony of the first witness, which is the only
reliable evidence in support of the prosecution.”
27. It is trite law that there is a statutory presumption of law,
wherein, as per the provisions of section 139 of NI Act, 1881, the
court shall presume that the cheque in question was issued in
discharge of, whole or part of any debt or liability, unless the
contrary is proved.
28. The nature of the statutory presumption and the
corresponding burden of proof u/s 139 of NI Act, 1881 is in
addition to the statutory presumption u/s 118 of the Act, whereby,
it shall be presumed, until the contrary is proved that every
negotiable instrument was made or drawn for consideration.
29. The Hon’ble Supreme Court of India had recently held in
“Bir Singh Vs. Mukesh Kumar” (2019) 4 SCC 197, that on mere
admission of the drawer’s signature, without admitting the
execution of the entire contents in the cheque, is now sufficient to
ATUL
AHLAWAT
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023 Digitally signed by
ATUL AHLAWAT
Date: 2025.07.15
11:34:05 +0530
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trigger the presumption u/s 139 of NI Act, 1881. As soon as the
complainant discharges the burden to prove that the instrument,
i.e. a cheque was issued by the accused for discharge of debt, the
presumptive device u/s 139 of the Act, helps shift the burden
upon the accused. The effect of the presumption is that, the
evidentiary burden is then shifted upon the accused to prove that
the cheque was not received by the banker towards the discharge
of any legally enforceable right or liability. The burden upon the
accused is only in the form of reverse onus clause and the
evidentiary burden is not as heavy as upon the threshold of
beyond reasonable doubt and if the accused is able to meet the
standard of “preponderance of probabilities”, similar to that of in
civil cases. Reliance is placed upon the judgment of the Hon’ble
Supreme Court of India in “Rangappa Vs. Shree Mohan” AIR
2010 SC 1898.
30. In order to rebut the presumption and to prove the contrary,
it is open to the accused to raise a probable defense wherein, he
can raise the question upon the existence of legally enforceable
debt or liability. The words “until the contrary is proved ”
occurring in section 139 of NI Act, 1881 does not mean that in
every case, the accused must necessarily prove by leading cogent
and positive evidence that the cheque was not issued in
discharged of any debt or legally enforceable liability, however,
the accused also had an option for the court to consider the non-
existence of such debt or liability so probably that no prudentCA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
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signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:34:12
+0530
person, ought under the circumstances of the case could have
acted upon the supposition that such debt or liability did not
exists. Reliance is placed upon the judgment of the Hon’ble
Supreme Court of India in “Basalingappa Vs. Mudibasappa“
AIR 2019 SC 1983 and in “Kumar Exports Vs. Sharma
Carpets” (2009) 2 SCC 513.
31. In the notice of accusation framed by the Ld. Trial Court
u/s 251 Cr.PC,1973 the defense taken by the appellant was that
although the cheque in question bears his signature, however, all
the other details such as name, amount and date were not written
by him and the said cheque was a blank signed cheque. He also
admitted the receipt of the statutory legal notice. He had further
taken the defense of fraud being committed upon him.
32. The appellant vide his statement recorded u/s 294 Cr.PC,
1973 on 25.07.2023, had duly admitted original cheque, bank
returning memo, legal notice, postal receipts and the certified
copies of the civil suit and his statement suffered under the said
civil suit before the Ld. ADJ.
33. It is trite law that to initiate the proceedings relating to
commission of the offence punishable u/s 138 of NI Act, the
mandatory requirement is of sending a notice under proviso (b)
of section 138 of the Act, whereby, the payee or holder in due
course of the cheque, makes a demand for the payment of the
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
Digitally
signed by
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ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:34:18
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“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.
34. Therefore, the basis of the prosecution u/s 138 of NI Act,
1881, is based upon the notice which the payee sends to the
drawer of the cheque. The expression, “the said amount of
money” has been interpreted by the Hon’ble Supreme Court of
India in the judgment of Dashrathbhai Trikambhai Patel Vs
Hitesh Mahendrabhai Patel & Anr, Cr. Appeal No. 1497/2022,
dated 11.10.2022 wherein, it was held that the notice demanding
the payment of the said amount of money has been interpreted by
the judgments of the Hon’ble Supreme Court of India, to mean
the cheque amount. It was further held by the Hon’ble Apex
Court that the conditions stipulated in the provisos to section 138
need to be fulfilled in addition to the ingredients in the
substantive part of section 138.
35. In the facts of the present case, the legal notice, Ex. CW1/4
was issued on behalf of the revisionist/ complainant and the
postal receipts were exhibited as Ex. CW1/5, are admitted
documents. Furthermore, the appellant/accused had also admitted
that his correct address is duly mentioned in the legal notice.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:34:24
+0530
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36. Perusal of the TCR further reflects that the revisionist/
complainant was examined as CW-1 and during her cross
examination, the appellant/accused had himself brought on
record the declaration-cum-receipt and it was exhibited as Ex.
CW-1/D1. The said document is an admitted document and it
clearly established the legally enforceable debt/liability of the
appellant/accused. Instead of helping the defense of the
appellant/accused, it has furthered the cause of the
revisionist/complainant and acted in addition to the statutory
presumptions raised.
37. After closing the Complainant’s Evidence, the Ld. Trial
Court had recorded the statement of the appellant/accused u/s
313 Cr.P.C, 1973. In the said statement, the accused categorically
stated that he never appeared before the Court of Ld. ADJ-01,
PHC in CS No. 254/2021 and denied making any statement in
the said civil suit admitting his liability towards the
revisionist/complainant. He stated the cheque in question was a
security cheque, which was taken by Mukul Gupta, at the time of
advancing a loan and the fraud being committed upon him.
38. The appellant/accused entered into the witness box as DW-
1 and during his cross examination, he categorically admitted
being working in Ministry of Defense as Assistant Section officer
and that he was dealing on the bank and hotel MOU drafting
between the Indian Navy and other parties. Therefore, it is duly
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
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established that the appellant/accused is not a layman in the
ordinary sense of the term. He is a government employee, who
was specifically working in drafting/execution of the MOUs for
the Indian Navy with banks and hotels. Thus, a severe blow to his
defense of him being a layman and executing the declaration-
cum-receipt, Ex.CW-1/D1, being executed upon dictation of
some other person, without understanding its import, as alleged
by him is beyond the comprehension of this Court and no
reasonable prudent person would believe the same. He further
went on to admit that he appeared before the Court of Ld. ADJ,
however, deposed that he appeared there only once. The said
deposition runs counter to the admitted certified copies of the
court orders in the Civil Suit, duly admitted by him in his
statement u/s 294 Cr.P.C, 1973, since, in the said orders, his
appearance in person is marked on number of occasions.
Furthermore, he also admitted that he filled up all the details
including the name of the payee and the cheque amount, which
runs counter to his statement at the time of framing of notice of
accusation. Lastly, he also admitted that in the alleged complaint
filed by him before PS Tilak Marg qua the alleged fraud
committed upon him, he had not mentioned the cheque number
or the declaration-cum-receipt Ex. CW-1/D-1.
39. Since, the issuance of cheque in question was not denied
and the signatures on the cheque were duly admitted by the
appellant, all the essential ingredients of section 138 NI Act,CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023 Digitally
signed by
ATUL
ATUL AHLAWAT
CR No. 696/2023 Aparna Sharma Vs State & Anr. CNR No. DLND01-008790-2023 Page No. 24/28 AHLAWAT Date:
2025.07.15
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1881 were duly satisfied and the presumptions u/s 139 r/w 118 of
NI Act, 1881 had kicked in. The appellant also admitted the
receipt of the legal notice issued to him by the
revisionist/complainant. He admitted his statement made before
the Court of Ld. ADJ in the civil suit for recovery filed against
him, admitting his liability, which led to passing of a decree
against him. Furthermore, he himself brought on record the
declaration-cum-receipt admitting his liability/legally
enforceable debt towards the revisionist/complainant. The
defense of fraud being committed against him was not
established by him, even on preponderance of probabilities. He
had pleaded the fraud and the onus was on him to prove the
same, which he has miserably failed to do so and no probable
defense was established by him to rebut the statutory
presumptions raised against him. Therefore, no ground is made
out by the appellant/accused to interfere with the impugned
judgment dated 28.08.2023. Therefore, the appeal preferred
by him is hereby dismissed for being devoid of any merits.
40. After considering the material aspects of the present case
and after considering the aggravating and mitigating
circumstances, this court is of the view that the sentence awarded
by the Ld. Trial Court vide impugned order dated 13.09.203,
does not commensurate with the offence in question, since no
sentence qua the imprisonment of the appellant/accused was
passed.
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
Digitally
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ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
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41. The offence under section 138 of the NI Act,1881 is quasi-
criminal in nature and it is not an offence against the society,
however, it does not mean that the Court trying the said offence
is merely a recovery Court primarily focusing on the aspect of
fine and compensation to the complainant. The Hon’ble Supreme
Court in “State of Himachal Pradesh Vs Nirmala Devi“, 2017
(2) RCR (Criminal) 613 has held that the sentence imposed
must be commensurate with the crime committed and in
accordance with the jurisprudential justification such as
deterrence, retribution and restoration. The mitigating and
aggravating circumstances had to be both kept in mind.
42. In the present case, the decision of the Ld. Trial Court in
not awarding any sentence of imprisonment, in the considered
opinion of this Court does not commensurate with the offence in
question. Mere payment of fine amount as compensation to the
complainant is not enough. The same is neither having any
deterrent or retribution. Therefore, the order on sentence passed
by the Ld. Trial Court has shown undue leniency to the
appellant/accused, which is impermissible as per the law laid
down by the Hon’ble Apex Court in “Nagpal Traders Vs
Davinder Singh”, (2017) 4 SCC (Cri.) 342. The impugned order
on sentence is merely a flea-bite sentence and the same is not
sustainable in the facts and circumstances of the present case.
Reliance is also placed on the decision of the Hon’ble Apex
Court in “Suganthi Suresh Kumar vs Jagdeeshan“, (2002) 2
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
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AHLAWAT
Digitally signed by
ATUL AHLAWAT
Date: 2025.07.15
11:34:50 +0530
SCC 420. Hence, the impugned order on sentence is partially set-
aside.
43. The appellant/accused is hereby convicted to undergo
Simple Imprisonment for a period of Six Months, for
committing the offence punishable u/s 138 of the NI Act,
1881. The remaining portion of the order on sentence
regarding imposition of fine to the tune of Rs 9,00,000/-
(Rupees Nine Lacs) and the same be paid to the
revisionist/complainant as compensation u/s 357 (1) (b) of the
Cr.P.C., 1973 is hereby upheld. Furthermore, in the default of
payment of fine as compensation, the appellant/convict
within 30 days from the date of the present judgment, he
shall undergo 03 months Simple Imprisonment in default of
payment of fine. The fine amount shall be recoverable u/s 421
Cr.P.C., 1973. The appellant is directed to be taken into
custody.
44. The Ld. Trial Court shall release the 20% of the
compensation amount to the revisionist/complainant.
45. The appellant shall be granted the benefit of the period of
imprisonment already undergone by him in the present case, if
any, in terms of section 468 BNSS, 2023 (428 Cr.P.C., 1973).
Digitally signed
by ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.07.15
11:34:58 +0530
CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
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46. The warrants for execution of the sentence passed against
him shall be issued separately to the concerned Jail
Superintendent.
47. The present appeal and the revision petition stands
disposed off accordingly. Let the copy of this judgment be given
free of cost to the appellant.
48. The case property, if any, be disposed off in accordance
with law.
49. The Trial Court Record along with a copy of this Judgment
be sent to the Ld. Trial Court for necessary information and
record.
50. The file of the present appeal and the revision be
consigned to the Record Room after due compliance.
Announced in the open court on 15.07.2025.
This judgment consists of 28 pages and Digitally
signed by
All of them have been digitally signed by me. ATUL
ATUL
AHLAWAT
AHLAWAT Date:
2025.07.15
11:35:05
+0530(ATUL AHLAWAT)
ASJ NDPS Act (Special
Judge)/PHC/NDD
New Delhi/15.07.2025CA No. 297/2023 Rakesh Kumar Tiwari Vs Aparna Sharma & Anr. CNR No. DLND01-008645-2023
CR No. 696/2023 Aparna Sharma Vs State & Anr. CNR No. DLND01-008790-2023 Page No. 28/28
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