Delhi District Court
M/S Ganga Build Mart Pvt Ltd vs Anita Kakkar on 21 July, 2025
IN THE COURT OF MS. PRIYANKA GARTAN : JMFC NI
DIGITAL COURT NUMBER 02, NORTH DISTRICT,
ROHINI COURTS COMPLEX
M/S GANGA BUILD MART PVT LTD
VS
ANITA KAKKAR
(ADARSH NAGAR)
CC NI ACT 606/2022
U/S 138 Negotiable Instruments Act, 1881
In the matter of
M/s Ganga Build Mart Pvt Ltd
Through its Director
Sh. Sanjeev Marwah
S/o Late Sh. D.L. Marwah
R/o 285-86, Gali NO. 3
Majlis Park, Delhi-110033 ...... Complainant
Vs.
Anita Kakkar
W/o Lalit Kakkar
R/o B-21, Mahatma Gandhi Road
Adarsh Nagar,
Delhi-110033. ...... Accused
Date of Institution : 23.02.2022
Date of Reserving Judgment/Order : 24.05.2025
Date of Pronouncement of Judgment/Order : 21.07.2025
JUDGMENT:
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
FACTUAL MATRIX-
1. This is a complaint case filed under Section 138 of Negotiable
Instrument Act (hereinafter referred to as “NI Act“) by M/S Ganga
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:16:25
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR +0530
Page 1 of 20
Build Mart Pvt. Ltd. through Sh. Sanjeev Marwah (complainant)
against Ms. Anita Kakkar (accused) in respect of cheque bearing
no.000032 dated 16.07.2021 of Rs. 5,00,000/- drawn on HDFC
Bank, Adarsh Nagar, Delhi.
2. The brief facts of the complaint are as:
2.1. The complainant is a registered company and Sh. Sanjeev
Marwah is one of the directors. The accused alongwith her
husband approached Sh. Sanjeev Marwah and his father with
whom they had cordial relations for more than 35 years, for
friendly loan of Rs. 5,00,000/- for her son’s wedding.
2.2. On request of the accused, Sh. Sanjeev Marwah gave the
loan from the account of the complainant company as his father
was also one of the directors of the complainant company through
RTGS and on the same date i.e. 24.02.2020 a loan deed was
entered between Sh. Sanjeev Marwah and the accused.
2.3. Then in discharge of her legal liability the accused issued the
cheque in question. However, when the same was presented for
encashment, the cheque in question was dishonoured with remarks
“FUNDS INSUFFICIENT” on dated 20.07.2021 as shown by the
return memo.
2.4. Then the complainant sent legal demand notice dated
13.01.2022 through speed post and WhatsApp to the accused, but
to no avail. Hence, the present complaint.
PROCEEDINGS BEFORE THE COURT-
3. The complainant tendered her pre-summoning evidence on
affidavit. On a prima facie case being made out Ms. Anita Kakkar
(hereinafter referred to as accused), the cognizance was taken and
the accused was summoned.
4. Particulars of the offence and substance of the accusations, as per
the provisions of Section 251 of Criminal Procedure Code 1973
(hereinafter called “CrPC), were explained to the accused to which
the accused pleaded not guilty and claimed trial. In his defence
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
17:16:36
+0530
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 2 of 20
recorded on the same day, the accused stated that “the cheque is
mine but the signatures on the cheque is not mine. The
complainant obtained this cheque fraudulently from my husband.
My husband had friendship with Sh. Sanjeev Marwah. My
husband had taken money from the complainant which he has
repaid.” Further the accused admitted that the legal demand notice
was received by her.
5. Statement of accused U/s 294 Cr.P.C. recorded as per which
witnesses at serial no. 4 was dropped from the proceedings.
6. Pursuant to the defence raised by the accused, accused was
granted right to cross examine the complainant on an oral
application u/s 145(2) NI Act which was not objected by other
party and the matter was then fixed for CE.
7. Thereafter, complainant led his evidence by examining himself as
CW-1 in post summoning evidence, wherein he adopted his pre-
summoning evidence. He relied upon the following documents:
Ex. CW1/1: copy of RTGS entry of the passbook.
Ex. CW1/2 : copy of loan deed dated 24.02.2020
Ex. CW1/3: original cheque in question
Ex. CW1/4: return memo.
Ex. CW1/5(colly): legal notice alongwith postal receipts.
Ex. CW1/6(colly) : copy of screenshots of whatsapp delivery
Ex. CW1/7(colly) and Ex. CW1/8(colly): delivery reportThe CW1 in his affidavit reiterated the contents of the complaint.
CW1 was cross-examined by the Ld. Counsel for the accused and
discharged. As no other witness was to be produced by the
complainant, CE was closed and matter was fixed for SA.
8. Thereafter, statement of accused was recorded under Section 313
Cr.P.C. r/w section 281 Cr.P.C. where all the incriminating
evidence was put to the accused. The accused stated that “I did not
give the cheque in question to the complainant. I gave it to the
father of the complainant. I have already repaid the loan amount”.
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
17:16:43
+0530
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 3 of 20
During the recording of statement, the accused stated that he wish
to lead DE in the matter and matter was fixed for DE.
9. Accused is examined as DW1 wherein the accused relied upon
complaint filed against the accused EX. DW1/1. She was cross
examined and discharged.. DE was closed and matter was fixed
for final arguments.
10. Final arguments were advanced by both the parties. Written
arguments filled on behalf of the accused. I have heard counsel for
both the parties, perused the record and have gone through the
relevant provisions of the law.
INGREDIENTS OF THE OFFENCE AND DISCUSSION-
11. It would be apposite to first consider the legal position serving as
base to the offence underlying Section 138 NI Act. The following
legal requirements need to be satisfied in order to constitute an
offence u/s 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:
(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
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR 17:16:52
+0530Page 4 of 20
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;
The above legal requirements are cumulative, meaning
thereby that only if all the aforementioned ingredients are satisfied
can the person who had drawn the cheque be held liable for offence
u/s 138 NI Act.
12. Burden of proof: The claim based under the provisions of
Negotiable Instruments 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 contemplates
that a presumption is attached in regard to each and every
negotiable instrument that the same was drawn and issued against
due discharge of the liability and thus, whenever any claim is
made on the basis of a negotiable instrument, the presumption has
to be drawn in favour 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 is not able to rebut the
presumption and fails to prove his defence, the presumption
becomes absolute and it has to be assumed that the cheque was
issued by the accused in discharge of debt or liability and
consequently, accused is assumed guilty of the offence. It was held
by Hon’ble Supreme Court in the case of Rangappa v. Mohan:
2010 (11) SCC 441 that presumption of Section 139 of N.I. Act
also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement
with the respondent claimant that the presumption mandated
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR 17:16:58
+0530Page 5 of 20
by Section 139 of the Act does indeed include the existence of
a legally enforceable debt or liability.
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 favour 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 favour 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 the liability did
not exist or make the non-existence of liability so probable that a
reasonable person, ought under the circumstances of the case, act on
the supposition that it does not exist. 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 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
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:03
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
+0530Page 6 of 20
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 has 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 favour of 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.
14. 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 another
person from out of that account for the discharge of any debt or other
liability.”
At the outset, it has to be proved that the accused had issued the
cheques in question on his account maintained with a bank for discharge of
any debt or other liability
In the instant case, accused has denied her signature on the cheques
in question in his statement recorded u/s 313 Cr.P.C. and in notice framed
u/s 251 Cr.P.C. However, the cheques in question have been drawn on the
account maintained by accused and the accused has stated that the said Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:09
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR +0530Page 7 of 20
cheque was obtained by the complainant from her husband fraudulently.
Though the accused has denied signing the cheque in question but the
cheque was returned unpaid from the bank due to reason “funds
insufficient” and not for reason drawer signature differs. Further the accused
has not produced any further proof to show that the signature on the cheque
in question are not her and are forged other than making a statement.
Further, the complaint beholds the onus of proving the issuance of
cheques in his favour and the said issuance has to be done on an account
maintained by the accused. In this regard, complainant as CW-1 has deposed
through his affidavit that accused in order to discharge his liability has
issued the cheques.
Nothing has been led by the accused to disprove his signature on the
cheque. The cheques in question have also been drawn on the account
maintained by accused. The said fact has not been denied by accused at any
stage of proceeding.
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: Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:15
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR +0530Page 8 of 20
“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.”
14.1. In the instant case, the said cheques being drawn on the bank
account of accused, the mandatory presumption automatically
arises in favour 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.
14.2. 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
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:20
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR +0530Page 9 of 20
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).
14.3. The accused has chosen to do so by cross examining the
complainant i.e. CW1 and raising defence evidence by examining
himself as DW1. During cross- examination, CW1 deposed that no
authority letter has been filled by the complainant alongwith the
complaint, he does not remember the date when the complainant
company got registered, no registration certificate of the company
has been filled in the present matter, complainant company is in
the business of construction of building and has separate bank
account and assets and liabilities other than personal assets of the
Sh. Sanjeev Marwah, the complainant company files separate
ITRs.
14.4. The complainant also deposed that he knows the accused for
last 7 years through her husband whom he has known for more
than 35 years, the complainant could not attend the wedding of the
accused as well as of the son of the accused, he does not know the
exact date of marriage of the son of the accused but it was after
15-20 days of the day when the money was given, he never visited
to meet the son and daughter in law of the accused, the accused
visited the house of her husband in the first week of
February,2020.
14.5. Further the complainant deposed that he has not initiated any
proceedings against the accused and her husband regarding alleged
loan of Rs. 7,00,000/- taken on earlier occasion, the loan was
advanced at the request of his father who is second director of the
complainant company, the complainant did not have enough
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
17:17:25
+0530Page 10 of 20
money in his personal capacity to lend loan to the accused. The
complainant has also deposed that he did not give money on
interest and he has no money lending license. However, in
contrary he deposed that he had given loan of Rs. 5 lacs to the
accused out of which accused returned Rs. 25,000/- till date as
interest.
14.6. Further, the complainant deposed that he purchased the stamp
paper from some office of advocate at Adarsh Nagar, the accused
did not accompany the complainant for purchase of stamp paper,
however, the stamp paper shows the name of the accused and her
husband as buyer of the stamp paper on the instructions of the
complainant, when the loan agreement was prepared the accused
was not present and she was called later after it was drafted, the
complainant do not remember the date when it was drafted, It
might be 24.02.2020, it was agreed between the accused and the
complainant to pay the interest @2% per month, the complainant
does not remember the meeting notary Adv Surender Kumar, the
complainant had never visited the office of the notary, the
complainant does not remember the signing of the register kept in
the Notary’s office, he does not remember if the accused had went
to the Notary, he does not remember if the accused has signed the
loan agreement in his presence, he never issued notice to the
accused to demand the money in terms of para 4 of loan
agreement, he does not remember if there is some witness of loan
agreement or not, he does not know the witness of the loan
agreement and the witness did not sign in his presence.
14.7. The complainant further deposed that as per the loan
agreement the accused approached for loan for her personal use,
however, as per the evidence affidavit the accused approached for
her son’s marriage, the cheque was not post dated cheque, it was
blank cheque, again said it was undated , as per loan agreement the
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:30
+0530
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 11 of 20
cheque was given in 2020, the date, name of payee and amount in
the cheque in question was filled by the complainant on the
instructions of the accused, the accused came to my office on
24.02.2020 and asked me to fill the date as 16.07.2021, the
complainant did not remember whether accused signed the cheque
in question in his presence or not, it is correct that Ex. CW1/6 was
not sent on the mobile number of the accused.
14.8. The accused examined himself as DW1 and deposed that she
does not know the complainant and she has never met the
complainant, the complainant has falsely implicated the accused,
the cheque in question does not bear her signature, the
complainant threatened to kill her and her husband outside the
temple in 2023 against which FIR was registered which was
exhibited Ex. DW1/1(colly).
14.9. During cross examination the accused deposed that she is
housewife with no source of income of her own and she does not
file ITR, the amount of Rs. 5,00,000/- was transferred by SH.
Sanjeev Marwah to her account which might be of commission as
her husband is a property dealer, the loan agreement does not bear
her signature, it is correct that she used to reside on rent near the
house of the complainant director in 2020-21 for around 1-1.5
year, the accused is residing at the address B-21, Mahatma Gandhi
Road, Adarsh Nagar, Delhi since her marriage, the accused does
not know is some action has been taken on the FIR, the accused
met with the complainant in the temple only once when she was
threatened, she is not aware about any transaction or any cheques
which were given to the complainant by her husband during the
time when the husband of the accused and the complainant were in
talking terms, she does not have any document to prove that the
transaction of Rs. 5,00,000/- was commission amount.
14.10. The accused has chosen to defend the case against him. In
brief, the defence as raised by accused is that the cheque in
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:36
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR +0530
Page 12 of 20
question was never issued to the complainant as it was
fraudulently obtained by the complainant from her husband.
Further, the accused has also argued that there is no legally
enforceable debt towards the complainant.
14.11. However, in view of the legal presumption which already
stood 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 prove that the complainant has presented the cheque amount
for an amount for which the accused is not liable. To rebut the
presumption the accused has not led any defence evidence and has
only tried to prove his case by pointing deficiencies in the case of
the complainant.
14.12. The facts that are not in dispute are that the accused has
received the amount of Rs. 5,00,000/- in her account and that the
complainant and the husband of the accused are known to each
other.
14.13. To begin with, the contention of the accused is that the
complainant has not filled any authority letter to show that he is
authorised to file the present complaint on behalf of the
complainant company and thereby the present complaint is not
maintainable. In support of the above contention the Ld. Counsel
for the accused relied on the judgment of A.C.Narayanan Vs
State of Maharashtra & Anr. . it has been admitted fact that the
alleged loan was given from the account of the complainant
company and the case has been filled by the complainant company
through its director. Hence, as per settled law that the present
complaint is not maintainable as no authority letter has been filled
on behalf of the complainant company in favour of the director Sh.
Sanjeev Marwah.
14.14. Next, the contention of Ld. Counsel for the accused against
the case of the complainant is that the complainant has given the
loan in contravention of the companies act. Sec 186 of Companies
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:42
+0530
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 13 of 20
Act provides that a company can give loan only if it is authorised
to do so as per memorandum of associations/ MOA. However,
during final arguments MOA was referred and argued that the
complainant company was authorised to do so but no such
document was ever placed on record to support their contention.
Hence, the transaction prima facie appears in contravention of law.
14.15. Further, another contention of the accused is that the cheque
in question was not issued to the complainant for legal enforceable
debt and it was obtained by Sh. Sanjeev Marwah from the husband
of the accused when they were in talking terms. In the present
matter, the complainant has alleged that the accused approached
him for loan of Rs. 5 lakhs in third week of Feb, 2020 for her son’s
marriage and Rs. 7 lakhs were also given as loan to the accused on
an earlier occasion against which appropriate proceedings have
already been initiated. However, during cross examination of the
complainant deposed that the accused approached in first week of
Feb 2020 for her personal use and that the complainant has not
initiated any proceedings against the accused and her husband
against Rs. 7 lakhs given on earlier occasion. All these facts are
contradictory to the alleged facts in complaint which raises doubt
in the story of the complainant.
14.16. Further, during cross examination the complainant deposed
that the money was not given on interest but later deposed that Rs.
25,000/- was paid by the accused as interest of the loan and the
interest was agreed to be paid as per loan deed. However, the fact
was loan was not mentioned in the complaint, which again raises
contradiction in the story of the complainant.
14.17. Further, the complainant has annexed the loan deed Ex.
CW1/2 to prove the loan, however, during cross examination the
accused has successfully raised the doubt in the execution of the
loan deed as the complainant admitted that the stamp paper was
purchased by him though the name of the accused was mentioned
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:47
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
+0530Page 14 of 20
as purchaser, further the complainant admitted that the accused
was not present at the time of preparing the loan deed and he does
not know the date when the loan deed was drafted, he does not
even remember meeting Notary officer or signing in the register of
the Notary as law mandates. Further the complainant deposed that
he does not remember if the accused has signed the loan deed in
his presence or not. He also does not now the witness mentioned
in the loan deed and the witness did not sign in his presence. These
facts raises doubt in the execution of the only written document to
prove the loan.
14.18. Further, it was argued by the complainant that as the
complainant has not mentioned about the interest in the complaint
and has admitted to have received Rs. 25,000/- then the
complainant could not have presented the cheque in question for
the cheque amount as the accused would not have been liable for
the complete cheque amount, which also makes the case of the
complainant doubtful.
14.19. During cross examination the complainant has admitted that
the details of the cheque were filled by him on instructions of the
accused. Hence, accused raised another contention that the
particulars of the cheque were not filled by the accused and hence
the cheque has been misused. However, the said contention is also
without any merits. By virtue of Section 20 NI Act, a right has
been created in the holder of the cheque. When a blank cheque is
signed and handed over, it means that person signing it has given
an implied authority to any subsequent holder to fill it up. Prima
facie, holder thereof is authorized to complete the incomplete
inchoate instrument. Thus, merely the allegation of issuance of
incomplete negotiable instrument does not create absolute defence
in favour of the accused. There is no law that a person drawing the
cheque must necessarily fill it up in his own handwriting. Hence,
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:51
+0530CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 15 of 20
once accused has admitted his signature on cheques, he cannot
escape his liability on the ground that same has not been filled
in by him. A person issuing a blank cheque is supposed to
understand the consequences of doing so. Thus, this defense is of
no assistance to accused. (Jaspal Singh v. State, Crl. Rev.
160/2016, by Hon’ble High Court of Delhi, & Ravi Chopra v.
State 2008 (102) DRJ 147, relied on.)
14.20. The accused in her defence has produced a police complaint
filed against the complainant for threatening the accused and her
husband for life. However , the same has been filled after the
present complaint and the accused has not been able to prove its
fats during cross examination as she has no information as to the
follow up of the complaint.
14.21. For proving his case the complainant cross examined the
accused to show that the amount transferred in the account of the
accused from the account of the complainant company was not
commission and was loan. During cross examination it was
deposed by the accused that she has no document to prove the
work of her husband and she does not know the name of the firm
where he works as property dealer. All these facts raise doubt in
the story of the accused but the complainant cannot take benefit of
discrepancies in the case of the accused as the case of the
complainant has to stand on its foot.
14.22. The legal presumption of issuance of cheque in discharge of
liability being in favour of complainant, accused was only
burdened to rebut the presumption on the touchstone of
preponderance of probability. The test being that of a prudent
person. The burden is said to have been discharged once accused
lays out a probable defence that either the consideration did not
exist or existence of consideration was so improbable in the facts
of the case that any prudent person would believe that it did not
exist. In the present case, looking at the above observations the
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:17:57 +0530
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 16 of 20
accused has successfully rebutted the presumption raised against
him. Once the presumption is rebutted, the burden shifts upon the
complainant to prove his case. The complainant has failed to prove
his case beyond reasonable doubt.
14.23. Thus, accused has successfully rebutted the presumption of
law and discharge the burden of proof by raising a probable
defence that the cheque in question was not issued in discharge of
legal debt or liability. The first legal requirement is, thus, proved
against the complainant and in favour of the accused.
15. 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 cheque in question Ex. CW-1/3 is dated 16.07.2021. Return
memo showing the dishonour of cheque is Ex. CW-1/4 is dated
20.07.2021, which proves that the cheque in question was presented
within the period of its validity. Thus, the second legal requirement
is adjudicated in favour of complainant.
16. 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 dishonour of cheque upon
production of bank’s slip or memo having the official mark
denoting that the cheque in question has been dishonoured. 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 favour of
complainant by virtue of Section 146 NI Act that the cheque in
question was dishonoured for the reason stated therein viz.
Insufficient Funds and therefore, the burden now shifts upon the
Digitally signed
by PRIYANKA
PRIYANKA Date:
2025.07.21
17:18:02
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR +0530
Page 17 of 20
accused to rebut this presumption by establishing some reasonable
justification for the same. But the accused has failed to disprove
the same.
Thus, the third legal requirement is adjudicated in favour of
complainant.
17. The fourth legal requirement is:
“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 cheque in issue was returned dishonoured
on 20.07.2021. The complainant sent a legal notice dated
13.01.2022 addressed to the accused. Postal receipts dated
16.01.2022 alogwith legal notice is Ex. CW-1/5(colly). The date
of postal receipt proves that the legal notice was sent to accused
within prescribed period after excluding the period between
15.03.2020 to 28.02.2022 as per directions of Hon’ble Apex Court
in Suo Moto Writ Petition ( C ) No. 3 of 2020.The fourth legal
requirement is, thus, adjudicated in favour of complainant.
18. 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.”
The tracking report proves delivery of legal notice on 16.11.2020
which is Ex. CW1/F and Ex. CW1/G.The same was sent through
speed post via postal receipts dated 13.11.2020 on the address of
the firm of the accused.
The accused admitted receiving of legal demand notice in the
notice framed u/s 251 Cr.P.C. however during cross examination
the accused denied receiving legal demand notice. However, she
admitted to be residing at the address mentioned on the legal
demand notice during cross examination.
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
17:18:09
+0530
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 18 of 20
In such a case, the verdict of Hon’ble Supreme Court in the case
titled as C.C. Alavi Haji v. Palapetty Muhammed & anr.:
(2007) 6 SCC 555 becomes relevant:
“17. It is also to be borne in mind that the requirement of giving of
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 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.”
However, despite issuance of summons and appearance of accused
before the court, accused has failed to pay the cheque amount to
the complainant and thus is precluded from raising the plea of
non-service of demand notice. It is also an undisputed fact and a
matter of record that the accused has failed to make the payment
till date let alone making payment within 15 days of receipt of
notice.
Thus, the fifth legal requirement is adjudicated in favour of
complainant.
19. All the legal requirements constituting an offence u/s 138 NI Act
being cumulative in nature, the fact that the first legal requirement
has not been proved in favour of complainant, the ingredients
necessary to bring home the guilt of accused remain incomplete.
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.07.21
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR 17:18:15
+0530Page 19 of 20
Accordingly, Ms. Anita Kakkar (accused) is held ‘not guilty’ for
the alleged offence u/s 138 NI Act.
20. Copy of this Judgment be given free of cost to both the
parties.
(This judgment contains 20 pages which have been digitally
signed by the undersigned)
Digitally signed
Announced in open Court by PRIYANKA
Date:
PRIYANKA
Today on this 21.07.2025 2025.07.21
17:18:24
+0530
(PRIYANKA GARTAN )
Judicial Magistrate First Class
(NI ACT) Digital Court No.2
North District Rohini Courts,
Delhi.
CC NI ACT 606/2022 M/S GANGA BUILD MART PVT LTD VS. ANITA KAKKAR
Page 20 of 20
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