Delhi District Court
Bonus Developers Pvt Ltd vs Manish Kumar on 11 March, 2025
IN THE COURT OF SH. ANKIT SOLANKI : JMFC NI
DIGITAL COURT NUMBER 01, WEST DISTRICT, TIS
HAZARI COURTS COMPLEX
BONUS DEVELOPERS PVT. LTD.
Vs.
MANISH KUMAR
CC NI ACT No. 2616/2021
U/S 138 Negotiable Instruments Act, 1881
1. CC NI Act number : 467/2021
2. Name of the complainant : Bonus Developers Pvt. Ltd.
3. Name of the accused : Manish Kumar
4. Offence complained of or proved : U/S 138 of Negotiable Instruments
Act, 1881
5. Plea of the accused : Pleaded not guilty and claimed trial
6. Final Judgment/order : Convicted
7. Date of judgment/order : 30.01.2025
Date of Institution: 09.09.2021
Date of Reserving Judgment/Order: 21.02.2025
Date of Pronouncement of Judgment/Order : 11.03.2025
JUDGMENT
1. Vide this Judgment, this court shall dispose of the present
complaint filed by Bharat Bhushan Thakral, who is the
Director/AR of the the complainant company (hereinafter referred
to as ‘the complainant’) against Manish Kumar (hereinafter
referred to as ‘the accused’) U/S 138 of Negotiable Instruments
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.03.11
16:50:42
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CC NI ACT No. 2616/2021
Bonus Developers Pvt. Ltd. Vs. Manish Kumar
1 Out of 20
Act, 1881 r/w Section 142 Negotiable Instruments Act, 1881
(hereinafter referred to as ‘NI Act‘).
Brief facts:
2. It is the case of the complainant company, that the complainant
company is a non-banking financial institution having its office at
J-21, WZ-62, Beriwala Bagh, Hagi Nagar, New Delhi. The accused
made a representation before the complainant company for availing
a facility of finance in the nature of Hire and Purchase of new TSR
vehicle bearing no.DL-1RZ-7277 Bajaj Auto Rickshaw. The
accused signed necessary loan documents dated 03.02.2020 for
finance loan amount of Rs.1,70,000/- and the same was financed by
complainant on interest. The interest amount agreed Rs.34,000/- for
24 months. The accused had to pay 24 monthly installments of
Rs.8,500/- each, totaling Rs.2,04,000/-. On the above said terms
and conditions as agreed between accused and complainant, the
said vehicle was financed to accused on loan-cum-hypothecation
basis; this is signified by the endorsement of Hire-Purchase on the
Registration Certificate of the vehicle also. The accused confirmed
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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the payment schedule alongwith agreed rate of interest within 24months payble in the installments. So the tenure for payment of
hire purchase is that of 24 months. That first installment was due
on 06.03.2020. The accused after availing and enjoying the finance
of the vehicle no.DL-1RZ-7277 Bajaj Auto Rickshaw failed to
make the payment as per the agreement and committed wilful
defaults. The complainant had sent many requests and demands
calling upon accused to clear dues but accused linger on the
payments on one or the other excuses and grounds. The accused
had paid only three installments of Rs.8,500/- each totaling to
Rs.25,500/- towards the installments till date to complainant, thus
as per the statement of account till 06.08.2021, the balance
outstanding was Rs.1,27,500/- excluding overdue/penalty/late
payment charges. The possession of the vehicle in question is with
the accused till date. The accused has not discharged off his
financial commitments of making the monthly installments. In the
last week of July, 2021 accused visited to complainant’s office and
offered to clear the entire dues till 06.08.2021 for which accused
issued one post dated cheque no.377835 dated 06.08.2021 for sum
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
16:50:53
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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of Rs.1,27,500/- drawn on Punjab National Bank, Vikaspuri, Delhi-
110018 in favour of the complainant and handed over the same to
the complainant with assurance that the same could be honoured on
their representation for encashment. The complainant believing
upon assurance of the accused has presented the said cheque in its
banker, HDFC Bank Ltd., Rajouri Garden, New Delhi-110027 for
their encashment but the said cheque returned dishonoured with the
remarks “Funds Insufficient” vide return memo dated 11.08.2021.
The complainant after receipt of said dishonoured cheque, sent a
legal notice dated 24.08.2021 to the accused through speed post,
but despite receiving of the notice the accused did not bother to pay
back his outstanding dues to the complainant. The accused had
failed to pay the cheque amount to the complainant within
stipulated time of 15 days, hence this complaint U/S 138/142 NI
Act.
Proceedings before the Court:
3. The complaint was received by assignment in this Court. After
perusing the complaint and hearing the arguments of the
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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complainant on the point of summoning of the accused, prima facieit appeared that the offence U/S 138 NI Act, has been committed.
Hence, cognizance of the offence U/S 138 NI Act was taken against
the accused on 08.11.2021 and summons were issued to the
accused.
4. Notice U/S 251 Cr.P.C. was framed against the accused on
21.01.2022 to which the accused pleaded not guilty and claimed
trial. The accused further admitted that the cheque belongs to him
and has been dishonoured. Thereafter, considering the defence
stated at the time of framing of notice by the accused, this court
decided to allow cross examination of the complainant as per
145(2) NI Act, and the case was tried as a summons case. After
availing several opportunities to cross examine the complainant,
the right of the accused to cross examine was closed on 04.05.2022
by Ld. Predecessor Court and statement of accused u/s 313 Cr.P.C.
was recorded on 10.06.2022, wherein the accused has opted to lead
defence evidence, as such, the case was fixed for defence evidence.
In defence evidence, the accused examined himself as DW1 and
Digitally signed
by ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.03.11
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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thereafter, DE stands closed and the case was listed for finalarguments. On 20.12.2024, final arguments were heard on behalf of
the complainant and accused and the case was reserved for
judgment.
Evidence:
5. Opportunity to cross examine the Complainant was closed on
04.05.2024.
6. The Accused has examined himself as DW1 in this case to
disprove the complainant’s case.
Arguments of both parties:
7. Ld. counsel for the complainant while reiterating the contents of
the complaint has argued that all the requirements of Section 138,
NI Act have been fulfilled by the complainant in the present case.
He argued that the cheque in question was issued by the accused
towards his legally enforceable liability. He further argued that
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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when the cheque was presented before the bank for encashment,the same was dishonored on presentation vide return memo dated
11.08.2021 for reason ‘Funds Insufficient’. Thereafter the legal
notice dated 24.08.2021 was sent to the accused to make the
payment within the 15 days stipulated period, but no payment was
made by the accused. Thus, all the ingredients of section 138 NI
Act, have been duly satisfied and thus presumption U/S 139 NI
Act, has been validly raised against the accused. Ld. Counsel
submits that the accused has failed to raise any probable defence
to disprove the case of complainant and to rebut the presumption
U/S 139 NI Act.
Appreciation of evidence:
8. I have heard counsels on behalf of both the sides, perused the
record as well as relevant provisions of law.
9. Before appreciating the facts of the case in detail for the purpose
of decision, let relevant position of law be discussed first. Section
138, NI provides as under:
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.03.11
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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“Section 138.- Dishonour of cheque for insufficiency, etc., of funds
in the account.-
Where any cheque drawn by a person on an account maintained by
him with a banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank unpaid,
either because of the amount of money standing to the credit of that
account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement
made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other
provisions of this Act, be punished with imprisonment for a term
which may be extended to two years, or with fine which may
extend to twice the amount of the cheque, or with both:”
Provided that nothing contained in this section shall apply unless:
(A) 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;
(B) The payee or the holder in due course of the cheque, as the case
may be, 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; and(C) The drawer of such cheque fails to make the payment of the
said amount of money to the payee or, as the case may be, to the
holder in due course of the cheque, within fifteen days of the
receipt of the said notice.
Explanation — for the purposes of this section, “debt or other
liability” means a legally enforceable debt or other liability.
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
16:51:18
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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10. It is well settled position of law that to constitute an offence
under Section 138, NI Act, the following ingredients are required to
be fulfilled:
I. drawing of the cheque by a person on an account maintained by
him with a banker,II. The cheque was issued for payment to another person for
discharge in whole/part any debt or liability;
III. 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. RBI in its notification DBOD.AML
BC.No.47/14.01.001/2011-12 has reduced the aforesaid period
from 6 months to 3 months.
IV. Returning of the cheque unpaid by the drawee bank for want of
sufficient funds to the credit of the drawer or any arrangement with
the banker to pay the sum covered by the cheque;
V. Giving notice in writing to the drawer of the cheque within 30
days of the receipt of information by the payee from the bank
regarding the return of the cheque as unpaid demanding payment of
the cheque amount;
VI. Failure of the drawer to make payment to the payee or the
holder in due course of the cheque, of the amount covered by the
cheque within 15 days of the receipt of the notice.
The offence under Section 138, NI Act is made out against the
drawer of the cheque, only when all the aforementioned ingredients
are fulfilled.
11. In the present case at hand, the complainant has filed on record
the original cheque. In notice under Section 251 CrPC, the accused
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.03.11
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has admitted to issuing the cheque in question to the complainantand admitted the signatures on the cheques. Therefore, ingredient
number I stands fulfilled in the present case.
12. As per the RBI guidelines, it is essential for the cheque in
question be to presented within a period of three months from the
date on which they are drawn and the same be returned as unpaid
by the drawee bank for want of sufficient funds to the credit of the
drawer or any arrangement with the banker to pay the sum covered
by the cheque. In the case at hand, the cheque in question was
returned vide return memo dated 11.08.2021 due to the reason
“FUNDS INSUFFICIENT.” By implication thereof, the cheque
was presented within three months and the same was returned for
Funds Insufficient. Therefore, Ingredient number III & IV stand
fulfilled in the present case.
13. The legal notice dated 24.08.2021 was sent within 30 days of
return of the bank memo indicating cheque in question being
unpaid. The fact that the legal demand notice has made a clear and
unambiguous demand for payment of the cheque in question is not
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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disputed. The accused has admitted to the receipt of legal demandnotice in notice u/s 251 CrPC, the ingredient number V stands
discharged by virtue of giving of legal demand notice within 30
days from the bank return memo.
14. Moving on, it is not disputed that the accused has not made the
payment of the cheque amount within 15 days of the receipt of
legal demand notice. Therefore, ingredient number VI also
stands fulfilled in the present case.
15. Let us now move on to ingredient number II,
15.1. The NI Act raises two presumptions in favour of the holder of
the cheque, i.e., complainant; firstly, with regard to the issuance of
cheque for consideration, as contained in Section 118(a) and
secondly, with regard to the fact that the holder of cheque received
the same for discharge, in whole or in part, of any debt or other
liability, as contained in Section 139 of the Act.
15.2. Analysing all the concerned provisions of law and various
pronouncements in this regard, the Hon’ble Apex Court in the case
of Basalingappa v. Mudibasappa [AIR 2019 SC 1983] held that:
I. Once the execution of cheque is admitted, Section 139 of the Act
mandates that a presumption be drawn that the cheque in question
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. TheDigitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
16:51:30
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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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 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 imposes an evidentiary
burden and not a persuasive burden.
It is therefore implied that the law regarding the presumption for
the offence under Section 138, NI Act, the presumptions under
Section 118(a) and Section 139 have to be compulsorily raised as
soon as the execution of cheque by the accused is admitted or
proved by the complainant and thereafter the burden is shifted upon
the accused to prove otherwise.
15.3. These presumptions shall end only when the contrary is
proved by the accused, that is, the cheque was not issued for
consideration and in discharge of any debt or liability etc. The
Hon’ble Apex Court in Kumar Exports v. Sharma Carpets [(2009)
2 SCC 513], has laid down the benchmark for the burden of proof
that the accused has to raise a doubt as to the presumption under
Section 139, NI Act.
“The accused in a trial under Section 138 of the Act has two
options. He can either show that consideration and debt did not
exist or that under the particular circumstances of the case the
non-existence of consideration and debt is so probable that a
prudent man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions, an accused is not
expected to prove his defence beyond reasonable doubt as isDigitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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expected of the complainant in a criminal trial. The accused may
adduce direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or liability
to be discharged by him. However, the court need not insist in
every case that the accused should disprove the non-existence of
consideration and debt by leading direct evidence because the
existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare denial of the
passing of the consideration and existence of debt, apparently
would not serve the purpose of the accused. Something which is
probable has to be brought on record for getting the burden of
proof shifted to the complainant. To disprove the presumptions, the
accused should bring on record such facts and circumstances, upon
consideration of which, the court may either believe that the
consideration and debt did not exist or their non-existence was so
probable that a prudent man would under the circumstances of the
case, act upon the plea that they did not exist. Apart from adducing
direct evidence to prove that the note in question was not
supported by consideration or that he had not incurred any debt or
liability, the accused may also rely upon circumstantial evidence
and if the circumstances so relied upon are compelling, the burden
may likewise shift again on to the complainant. The accused may
also rely upon presumptions of fact, for instance, those mentioned
in Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act. The accused has
also an option to prove the non-existence of consideration and debt
or liability either by letting in evidence or in some clear and
exceptional cases, from the case set out by the complainant, that is,
the averments in the complaint, the case set out in the statutory
notice and evidence adduced by the complainant during the trial.
Once such rebuttal evidence is adduced and accepted by the court,
having regard to all the circumstances of the case and the
preponderance of probabilities, the evidential burden shifts back to
the complainant and, thereafter, the presumptions under Sections
118 and 139 of the Act will not again come to the complainant’s
rescue.”
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
16:51:36
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15.4. To put in a nutshell, the intent behind the NI Act is to prevent
financial frauds and affect the socio-economic well-being of the
country. If the burden is placed on the complainant to prove the
existence of liability against the accused, that would be too harsh as
most of these transactions are in the nature of “friendly loan” and
the accused would, in a normal circumstance, always deny the
liability. Therefore, the legislation is drafted in a way so as to
discharge the complainant from proving the liability and a
presumption is raised by virtue of Section 139 read with Section
118(a) of the Act that the cheque if issued by the accused, then the
same is deemed to be in discharge of some legally enforceable debt
in favour of the complainant. The presumption is rebuttable and the
accused “may” either prove that no legally enforceable debt existed
or punch holes in the story of the complainant and give rise to a
probable defence to rebut the presumption. As per the law
discussed above, the burden of proof on the accused to raise a
probable defence is that of “preponderance of probabilities”, and
not “beyond reasonable doubt.” Once a probable defence is raised,
then the onus is shifted to the complainant to establish that a legally
enforceable liability existed in his favour and the burden of proof
on complainant in this case is that of “beyond reasonable doubt.”
15.5. The accused can rebut the presumption as raised under the NI
Act by (a) putting forth his defence at the time of framing of notice
u/s 251 CrPC; (b) cross-examining the complainant; (c) when
statement of accused is recorded u/s 313 CrPC; (d) or by leading
defence evidence, thereby demolishi15 ptng the case of the
complainant. It is amply clear that the accused does not need to
discharge his or her liability beyond the shadow of reasonable
doubt. He just needs to create holes in the case set out by the
Complainant.
16. At the stage of final arguments, Ld. Counsel for the
complainant has argued that the signatures on the cheque in
question have been admitted by the accused and the legal demand
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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Bonus Developers Pvt. Ltd. Vs. Manish Kumar
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notice of the cheque in question has been served. All theingredients of Section 138 NI Act have been fulfilled and the
accused be convicted.
17. On the other hand, Ld. Counsel for the accused has argued that
the complainant has not been able to prove his case on the basis of
preponderance of probabilities and that the accused be acquitted of
all the charges.
18. In the present matter, firstly the accused has admitted his
signatures on the cheque in question and also the receipt of the
legal demand notice. There is a presumption u/s 118 & 139 NI Act
in favour of the complainant. Section 139 NI Act states that “it
shall be presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to in
section 138 for the discharge, in whole or in part, of any debt or
other liability”.
In M.S Narayana Menon Vs. State of Kerala, (2006) 6
SCC 39, the Apex Court dealing with the statutory
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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presumption under Sections 118(a) and 139 of the N. I.Act inter alia held as under:
“29. In terms of Section 4 of the
Evidence Act whenever it is provided by
the Act that the Court shall presume a
fact, it shall regard such fact as proved
unless and until it is disproved. The
words “proved” and “dis-proved” have
been defined in Section 3 of the Evidence
Act (the interpretation clause)……
30. Applying the said definitions of
“proved” or “disproved” to the principle
behind Section 118(a) of the Act, the
Court shall presume a negotiable
instrument to be for consideration unless
and until after considering the matter
before it, it either believes that the
consideration does not exist or considers
the nonexistence of the consideration so
probable that a prudent man ought,
under the circumstances of the particular
case, to act upon the supposition that the
consideration does not exist. For
rebutting such presumption, what is
needed is to raise a probable defence.
Even for the said purpose, the evidence
adduced on behalf of the complainant
could be relied upon.
32. The standard of proof evidently is
preponderance of probabilities.
Inference of preponderance of
probabilities can be drawn not only from
the materials on record but also by
reference to the circumstances upon
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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which he relies. 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’.”
It is a well settled proposition of law that once execution
of Negotiable instrument is admitted, the presumption
under Section 118(a) NI Act would arise that it is
supported by a consideration. However, such
presumption is rebuttable and the accused can prove the
non-existence of a consideration by raising a probable
defence. The burden upon the accused of proving the
non-existence of the consideration can be either direct or
by bringing on record the preponderance of probabilities
by reference to the circumstances upon which he relies.
To disprove the presumption, the accused has to bring on
record such facts and circumstances upon consideration
of which the court may either believe that the
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.03.11
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consideration did not exist or its non-existence was soprobable that a prudent man would, under the
circumstances of the case, act upon the plea that it did not
exist.
The gist of two above mentioned precedents is that the
accused is in trial under Section 138 NI Act is left with
two alternatives for his defence. He can either show that
consideration and debt did not exist for which direct
evidence could be adduced which is seldom available or
he can show by relying upon circumstantial evidence that
under the particular circumstances of the case the non-
existence of consideration and debt is so probable that
prudent man ought to suppose that no consideration and
debt existed. It is evident that standard of proof to rebut
the statutory presumption is not to prove it beyond the
reasonable doubt as required in a criminal complaint. The
onus to that effect on the accused is not onerous and what
is required is a probable defence which could primarily
find its foundation in preponderance of probabilities. In
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.03.11
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order to raise a probable defence, the accused can alsorely on the evidence adduced by the complainant.
However, a bare denial of the statutory presumption by
the accused will not suffice.
19. In the present matter, at the stage of notice framing notice, the
accused had stated that he has given the cheques in question to
Rohit Chopra and Vikram Singh. However, at the stage of
recording of his statement, he had stated that he had given the
cheques in question to Rohit Chopra, Vikram Singh, Piyush Chopra
and one more person whose name is not known. This raises a doubt
upon the defence put forward by the accused. Apart from that, the
only defence led by the accused is that he had paid the complete
amount to Rohit Chopra and Vikram Singh. No evidence
whatsoever has been lead to show the relation of Rohit Chopra and
Vikram Singh with the complainant. The accused alleges that the
Auto Rickshaw was financed by Mr. Rohit Chopra, the owner of
Shiva Auto and Mr. Vikram Singh, who is the employee of Mr.
Rohit Chopra. However, the accused has not lead any evidence to
show the relation between Rohit Chopra and the complainant.
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.03.11
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Therefore, it can not be assumed that the accused had madepayments to the complainant. Apart from that, there are no
evidences on record to punch holes in the version of the
complainant. Accordingly, the complainant has been able to prove
his case on the basis of preponderance of probabilities. All the
ingredients of Section 138 NI Act have been fulfilled and therefore
this court returns the finding of conviction against the accused
Manish Kumar.
20. Copy of this Judgment be given free of cost to both the parties.
Announced in open Court Digitally signed
Today on this 11.03.2025.
by ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.03.11
16:52:05 +0530(Ankit Solanki)
Judicial Magistrate First Class
(NI ACT) Digital Court No.1
Tis Hazari Courts, West, DelhiCC NI ACT No. 2616/2021
Bonus Developers Pvt. Ltd. Vs. Manish Kumar
20 Out of 20