Delhi District Court
M/S World Wide Journeythro. Its Prop. … vs M/S Expert Holiday And Tour Through Its … on 5 May, 2025
IN THE COURT OF SH. ANKIT SOLANKI : JMFC NI
DIGITAL COURT NUMBER 01, WEST DISTRICT, TIS
HAZARI COURTS COMPLEX
M/S WORLD WIDE JOURNEY
Vs.
M/S EXPERT HOLIDAY & TOUR
CC NI ACT No. 110/2020
U/S 138 Negotiable Instruments Act, 1881
1. CC NI Act number : 110/2020
2. Name of the complainant : M/s World Wide Journey
3. Name of the accused : M/s Expert Holiday & Tour
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 : 05.05.2025
Date of Institution: 28.11.2020
Date of Reserving Judgment/Order: 09.04.2025
Date of Pronouncement of Judgment/Order : 05.05.2025
JUDGMENT
1. Vide this Judgment, this court shall dispose of the present
complaint filed by M/s World Wide Journey, through its
proprietor Mr. Bineet Babu (hereinafter referred to as ‘the
complainant’) against M/s Expert Holiday & Tour through its
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.05.05
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proprietor/partner Smt. Rajni Soni (hereinafter referred to as ‘theaccused’) U/S 138 of Negotiable Instruments 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 that the complainant is
running his tour and travels company/business in the name and
style of M/s World Wide Journey. The accused also runs her tour
and travel business in the name and style of M/s Expert Holiday
& Tour. The accused booked 600 tickets from India to Thailand
on 12.02.2019 through complainant and the said deal was
finalized in a sum of Rs.54 Lakh and an outstanding of Rs.22
Lakh was remained againt the accused. That thereafter, when
complainant demanded his remaining money from the accused
then, in discharge of her part legal liability, the accused issued
two post dated cheques for a sum of Rs.5,00,000/- bearing
no.030916 dated 06.05.2019 drawn on IDBI Bank of
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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Rs.4,00,000/- and 030918 dated 07.05.219 drawn on IDBI Bakof Rs.1,00,000/- and assured the complainant that the same shall
will be honoured on its presentation. The said cheques were
accepted by the complainant subject to encashment on its
presentation. As per instructions of the accused, the complainant
then presented the above said two cheques three times with his
banker situated at Axis Bank Paschim Enclave Branch, Near
Rohtak Road, Delhi-110087, and the said cheques got
dishonoured due to the reason “DRAWER SIGNATURE
DIFFER” and was returned vide cheque returning memos dated
07.05.2019, 17.05.2019 and 15.07.2019. That after receiving the
pre litigation/mediation cell notice sent by the concerned office
District Court Tis Hazari, Delhi, the accused visited the Delhi
and meet the complainant out of medciation cell at Tis Hazari
Court and entered into a settlement with complainant and settled
the aove dishonoured cheque’s amount of Rs.5,00,000/- in a sum
of Rs.4,90,000/- and issued the following six post dated cheques
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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all drawn on IDBI Bank, Vijay Nagar, Jabalpur, M.P. to the
complainant.
S. No. Cheque No. Date Amount 1. 059471 20.08.2020 30,000/- 2. 059472 20.09.2020 30,000/- 3. 059473 05.08.2020 30,000/- 4. 059475 20.07.2020 30,000/- 5. 059476 20.08.2020 1,60,000/- 6. 041971 15.10.2020 2,10,000/-
That believing upon the assurances, the complainant presented
the above noted cheques before his banker i.e. Oriental Bank of
Commerce, now Punjab National Bank after merging main
Rohtak Road, Nangloi, Delhi for encashment but the said
cheques got dishonoured due to the reason “FUNDS
INSUFFICIENT” and was returned vide cheque returning
memos all dated 26.10.2020. The complainant after receipt of
said dishonoured cheques, sent a legal notice dated 05.11.2020 to
the accused through his counsel through Speed post, but despite
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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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
complainant on the point of summoning of the accused, prima
facie it 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 22.12.2020 and summons were
issued to the accused.
4. Notice U/S 251 Cr.P.C. was framed against the accused on
08.06.2022 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
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.05.05
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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.
The right of the complainant to lead CE was closed vide order
dated 20.09.2024. Statement of the accused U/S 313 CrPC was
recorded on 05.03.2025. The accused has also not lead any
evidence and the same was closed vide spearate statement of
accused dated 05.03.2025. Thereafter, the case was listed for
final arguments. On 09.04.2025, final arguments were heard on
behalf of the complainant and accused and the case was reserved
for judgment.
Evidence:
5. The complainant has not lead any evidence as the right of the
complainant to lead CE was closed vide order dated 20.09.2024.
6. The accused did not wish to lead Defence Evidence and a
statement in this regard was recorded on 05.03.2025.
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.05.05
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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 cheques in question were
issued by the accused towards his legally enforceable liability.
He further argued that when the cheques were presented before
the bank for encashment, the same were dishonored on
presentation vide return memos dated 07.05.2019, 17.05.2019
and 15.07.2019. Thereafter the legal notice dated 05.11.2020
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.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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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:
“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;
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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(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.
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;
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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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 cheques. In notice under Section 251 CrPC,
the accused has admitted to issuing the cheques in question to
the complainant and 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 cheques
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.05.05
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in question were returned vide return memo dated 07.05.2019,17.05.2019 and 15.07.2019. By implication thereof, the cheques
were presented within three months and the same were returned
for “Drawer Signature Differ” and “Funds Insufficient”.
Therefore, Ingredient number III & IV stand fulfilled in the
present case.
13. The legal notice dated 05.11.2020 was sent within 30 days of
return of the bank memo indicating cheques in question being
unpaid. The fact that the legal demand notice has made a clear
and unambiguous demand for payment of the cheques in
question is not disputed. The accused has admitted to the receipt
of legal demand notice 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.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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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. 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
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
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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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 is
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
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.05.05
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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.”
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
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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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. In light of the above discussions since the accused has
admitted to issuance of cheques, admitted the signatures on the
Cheques and the legal demand notice what is left to be seen is
whether the accused has been able to rebut the presumption
against himself and that whether he has been able to raise a
probable defence in his favor or not.
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.05.05
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17. At the stage of framing of notice u/s 251 Cr.P.C., the accused
admitted his liability to the extent of the cheque amount towards
the complainant and wanted to settle the matter.
18. Since the accused has admitted taking a loan from the
complainant and also the fact that he had issued the cheques in
question to the complainant, it is clear that the accused has a
legally recoverable debt to pay to the complainant.
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
presumption under Sections 118(a) and 139 of the N. I.
Act inter alia held as under:
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
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“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
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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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
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 s 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
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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presumption under Section 118(a) NI Act would arisethat 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 consideration did
not exist or its non-existence was so probable 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
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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that consideration and debt did not exist for whichdirect 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 order to raise a probable defence, the
accused can also rely on the evidence adduced by the
complainant. However, a bare denial of the statutory
presumption by the accused will not suffice.
Digitally
signed by
ANKIT
ANKIT SOLANKI
SOLANKI Date:
2025.05.05
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19. Now for an offence to be made out under Section 138 NI Act,
the following ingredients, as mentioned above, needs to be set
out;
Firstly that the cheque was issued by the accused in discharge
of a legally enforceable debt. This ingredient has been proved as
the accused has admitted his liability towards the complainant to
the extent of the cheque.
Secondly that the cheque is presented for payment within 3
months of its issue date. This ingredient has also been fulfilled
in the present case.
Thirdly that the cheque is dishonoured for want of funds.
Return memos dated 07.05.2019, 17.05.2019 and 15.07.2019 of
the cheques in question shows the reason for dishonour of the
cheque in question as “Drawer Signature Differ and Funds
Insufficient”. Therefore, this ingredient has also been fulfilled.
Fourthly that a legal demand notice is sent by the complainant
to the accused demanding the cheque amount within 30 days
of the day on which the cheque got dishonoured. As the
complainant had sent the legal demand notice on 05.11.2020,
that is within 30 days of the cheque getting dishonoured, this
ingredient also stands fulfilled.
Fifthly that the accused does not make payment of the cheque
within a period of 15 days of the receipt of the legal demand
notice. The accused has not made payment of the sum within 15
days, this ingredient also stands fulfilled.
As per the discussion above and in light of the admissions
made by the accused, this Court is of the considered opinion
that the offence under Section 138 NI Act has been made out
Digitally signed
by ANKIT
SOLANKI
ANKIT Date:
SOLANKI 2025.05.05
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21 Out of 22
and accused Rajni Soni is convicted of the offence mentioned
above.
20. Copy of this Judgment be given free of cost to both the
parties.
Digitally
Announced in open Court ANKIT
signed by
ANKIT
SOLANKI
Today on this 05.05.2025. SOLANKI Date:
2025.05.05
16:53:28
+0530(Ankit Solanki)
Judicial Magistrate First Class
(NI ACT) Digital Court No.1
Tis Hazari Courts, West, DelhiCC NI ACT No. 110/2020
M/s World Wide Journey Vs. M/s Expert Holiday & Tour
22 Out of 22
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