Delhi District Court
Padam Arora vs Sarabjeet Kaur on 26 May, 2025
IN THE COURT OF SH. RISHABH TANWAR,
JUDICIAL MAGISTRATE FIRST CLASS/NI ACT-01/WEST/TIS
HAZARI COURT/DELHI
CT Cases no. 8536/2019
CNR No. DLWT020178902019
PADAM ARORA
D/o Late Sh. Dayanand Arora,
R/o BG-6/233-A, Paschim Vihar,
Delhi-110063 .........Complainant
Vs.
SARABJEET KAUR
W/o Sh. Navdeep Singh,
R/o 2/96, 3rd Floor,
Subhash Nagar
Delhi-110027 .........Accused
::J U D G M E N T:
:
1. Date of institution of case : 14.11.2019
2. Date of reserving the judgment : 24.04.2025
3. Date of pronouncement of judgment : 26.05.2025
4. Offence complained or proved : 138 N.I. Act
5. Plea of Accused : “Not Guilty”
6. Final Order : CONVICTION
7. Date of Final Order : 26.05.2025
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 1/17
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.26
16:02:36
+0530
BRIEF FACTS AND REASONS FOR DECISION
1. The present case has arisen out of a complaint filed under section 138
read with section 142 of Negotiable Instrument Act, 1881 (hereinafter
referred to as N.I. Act). The complainant is aggrieved by the dishonor of the
cheque bearing number 000020 dated 08.09.2019 for an amount of
Rs.2,00,000/- drawn on Punjab and Sind Bank, Jwala Heri Branch Delhi
(hereinafter referred to as ‘the cheque in question’) issued by the accused to
discharge her liability of returning the friendly loan of Rs.2,00,000/-
provided by the complainant upon her request in January, 2019. The cheque
in question had returned dishonored with the remark “funds insufficient” on
24.09.2019 and the present complaint came to be filed as the accused failed
to pay the amount of cheque in question despite receipt of demand notice dt.
30.09.2019.
2. The complainant examined himself as CW-1 on 07.12.2019 and
tendered his evidence on affidavit which was exhibited as Ex. CW-1/A. He
also placed reliance on the following documents: –
(a) Ex. CW1/1 is the cheque in question.
(b) Ex. CW1/2 is the return memo dt. 24.09.2019.
(c) Ex. CW-1/3 is the legal notice 30.09.2019.
(d) Ex. CW-1/4 is the courier receipt dt. 30.09.2019
(e) Ex.CW1/5 is the postal receipt.
3. The defense of the accused under section 251 Criminal Procedure
Code 1973 (hereinafter referred to as ‘Cr.P.C.’) was recorded, after serving
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no.Digitally
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signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.26
16:02:41
+0530
upon her the substance of accusation on 27.03.2021, wherein she pleaded
not guilty and stated that she had given the cheque in question to her brother
before his passing away in January 2022. She further claimed not knowing
how the cheque came into the possession of the complainant. She further
admitted her signatures on the cheque in question but denied filling the other
particulars on the same and she further denied receiving any legal demand
notice.
4. This court had allowed the accused to cross-examine the complainant
under section 145(2) NI Act on 27.03.2021. The complainant’s evidence on
affidavit (Ex. CW-1/A) was read as her examination in chief under section
145(1) NI Act. CW-1 was duly cross-examined by Ld. Counsel for the
accused.
5. The Statement of accused u/s. 313 Cr.P.C. was recorded on
22.12.2022 wherein she claimed that she had given the cheque in question to
her brother as her mother was admitted in hospital and the same was for her
mother’s medical expenses. Thereafter her mother has passed away and after
11 months her brother also expired. She further stated that she never
enquired from her brother regarding the cheque and she came to know about
the present cheque only when the case was filed. She further stated that the
complainant is neighbour of her mother and she did not know the
complainant personally and she has no legal liability towards complainant
and there was no transaction between her and the complainant.
6. The accused examined herself as a witness under section 315 Cr.P.C.
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She was duly cross-examined by the Ld. Counsel for the complainant.
Subsequently, the case was put up for final arguments.
THE APPLICABLE LAW
7. Before appreciating the facts of the case in detail for the purpose of
decision, let relevant position of law be discussed first. It is well settled
position of law that to constitute an offence under S.138 N.I. Act, the
following ingredients are required to be fulfilled:
(1) That the cheque in question has been drawn by a person on an
account maintained by him with a banker, for payment to another
person from out of that account.
(2) The cheque has been drawn for discharge in whole/part any debt
or liability.
(3) That the said cheque has been presented to the bank within a
period of three months from the date on which it is drawn or
within the period of its validity whichever is earlier.
(4) That the cheque was returned dishonoured by the drawee bank for
want of sufficient funds or the same exceeded any arrangement
with the banker to pay the sum covered by the cheque.
(5) That the complainant gave a notice in writing to the drawer of the
cheque within 30 days of the receipt of information by him from
the bank regarding the return of the cheque as unpaid demanding
payment of the cheque amount.
(6) The accused has received the legal notice.
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 4/17
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.26
16:02:49 +0530
(7) Lastly that the accused failed to make payment to the payee (the
complainant), or the holder in due course, the cheque amount
within 15 days of the receipt of the notice.
8. It is only when all the aforementioned ingredients are satisfied that the
person who had drawn the cheque can be deemed to have committed an
offence under Section 138 of the N I Act. The Act also raises two
presumptions in favour of the holder of the cheque namely first, in Section
118(a) which says that every negotiable instrument was made or drawn for
consideration, and, second, a presumption under Section 139, that the holder
of cheque receiving the same of the nature referred to in Section 138 for
discharge, in whole or in part, of any debt or other liability. Analysing all the
concerned provisions of law and various pronouncements in this regard, the
Hon’ble Apex Court in ‘Basalingappa v. Mudibasappa, AIR 2019 SC 1983′,
noted at para 23 Bharat Barrel and Drum Manufacturing Company v. Amin
Chand Pyarelal, (1999) 3 SCC 35; M.S. Narayana Menon alias Mani v. State
of Kerala and another, (2006) 6 SCC 39; Krishna Janardhan Bhat v.
Dattatraya G. Hegde, (2008) 4 SCC 54; Kumar Exports v. Sharma Carpets,
(2009) 2 SCC 513; Rangappa v. Sri Mohan, (2010) 11 SCC 441]:
(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 ofCC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 5/17
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RISHABH by RISHABH
TANWAR
TANWAR Date: 2025.05.26
16:02:52 +0530
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 imposes 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.
ARGUMENTS ADVANCED ON BEHALF OF THE PARTIES
9. Sh. Sameer Sidhar, Ld. counsel for the complainant has argued that
the complainant has been able to prove all the pre-requisites of Section 138
NI Act against the accused and the accused has failed to rebut the
presumption u/s. 138 NI Act. Ld. counsel has prayed that the accused be
convicted of the offence u/s. 138 NI Act.
10. Per contra, Sh. A. P. Shah, Ld. Counsel for the accused has argued that
the accused has not taken any financial help from the complainant and the
latter has no friendly relation with the accused. It has also been argued that
the accused had issued the blank signed cheque to his deceased brother for
treatment of her ailing mother, who was hospitalized in a hospital in Jaipur.
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 6/17
Digitally signed
RISHABH by RISHABH
TANWAR
TANWAR Date: 2025.05.26
16:02:56 +0530
It has also been argued that accused does not have any liability towards the
complainant as the demand notice was not served upon the accused. It was
also argued that the complainant was a money lender, and she did not have
any license for money lending. It was argued that the complainant has not
brought any loan agreement on record to show the existence of alleged loan.
Ld. Counsel has prayed that the accused be acquitted of the offence alleged
against her.
POINTS OF DETERMINATION
11. The following points of determination arise in the present case:
A. Whether the complainant has successfully proven the facts which
would raise the presumption u/s. 118 r/w Section 139 of NI Act by
proving that the cheque in question bears the signature of the accused?
B. If yes, whether the accused has been successful in raising a probable
defence to rebut the presumption under section 139 NI Act?
C. If yes, whether the complainant has proved its case, beyond the
shadow of reasonable doubt, without taking the aid of presumption
under section 139 NI Act?
FINDINGS OF THE COURT
Points of determination number (A): Whether the complainant has
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 7/17
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.26
16:03:00 +0530
successfully proven the facts which would raise the presumption u/s. 118 r/w
Section 139 of NI Act by proving that the cheque in question bears the
signature of the accused?
12. Whether the complainant has successfully proven the facts which
would raise the presumption u/s. 118 r/w Section 139 of NI Act by proving
that the cheque in question bears the signature of the accused?
13. It is settled law that once the signature upon the cheques in question
has been admitted by the accused, certain presumptions are drawn, which
result in shifting of onus. Section 118(a) of the NI Act lays down the
presumption that every negotiable instrument was made or drawn for
consideration. Another presumption is enumerated in Section 139 of NI Act.
The provision lays down the presumption that the holder of the cheque
received it for the discharge, in whole or part, of any debt or other liability.
14. The combined effect of these two provisions is a presumption that the
cheque was drawn for consideration and given by the accused for the
discharge of debt or other liability. Both the sections use the expression
“shall”, which makes it imperative for the court to raise the presumptions,
once the foundational facts required for the same are proved. Reliance is
placed upon the judgment of the Hon’ble Supreme Court in ‘Hiten P. Dalal
vs. Bratindranath Banerjee (2001) 6 SCC 16′.
15. The Hon’ble Supreme Court in ‘Kumar Exports vs. Sharma Carpets
(2009) 2 SCC 513′, while elaborating upon the interplay of section 118(a)
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 8/17
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.26
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r/w 139 of the N I Act, has held that:
“14. Section 139 of the Act provides 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.
15. Applying the definition of the word “proved” in section 3 of
the Evidence Act to the provisions of sections 118 and 139 of the Act,
it becomes evident that in a trial under section 138 of the Act a
presumption will have to be made that every negotiable instrument
was made or drawn for consideration and that it was executed for
discharge of debt or liability once the execution of negotiable
instrument is either proved or admitted. As soon as the complainant
discharges the burden to prove that the instrument, say a note, was
executed by the accused, the rules of presumptions under section 118
and 139 of the Act help him shift the burden on the accused. The
presumption will live, exist and survive and 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. A
presumption is not in itself evidence, but only makes a prima facie
case for a party for whose benefit it exists.”
16. In the present case, the accused at the time of framing of notice u/s
251 and statement recorded u/s 313 Cr.P.C has admitted his signatures on the
cheques in question. Once signatures are admitted, the presumption under
section 118(a) r/w 139 NI Act becomes operative in favour of the
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 9/17
Digitally signed
by RISHABH
TANWAR
RISHABH Date:
TANWAR 2025.05.26
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complainant in the present case.
17. Accordingly, the point of determination number A is decided in the
affirmative.
Points of determination number (B): whether the accused has been
successful in raising a probable defence to rebut the presumption under
section 139 NI Act?
18. There is no dispute with respect to the ingredients no. (1), (3), (4), (5)
and (7) as defined in the paragraph no. 8, as they are admitted facts in the
present case. As per section 58 Indian Evidence Act 1872 (hereinafter
“I.E.A.”) (corresponding section 53 of Bharatiya Sakshya Adhiniyam 2023),
the complainant need not prove the admitted facts.
19. The point of focus of this judgment would hereinafter be on the fact in
issues, that are (a) whether the legal demand notice under section 138(b) NI
Act was served upon the accused, and (b) whether the cheques in question
were issued by the accused in favour of the complainant in discharge of the
legally recoverable liability?
20. As far as point no. (a) is concerned, the accused has denied receiving
the legal notice. When her statement under section 313 Cr.P.C. was recorded,
she had stated that the address mentioned on the legal demand notice was
correct. The burden to prove that he had not received the legal notice was on
the accused. Section 103 I.E.A. lays down the rule that the burden of proving
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 10/17
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.26
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a particular fact is on the person who asserts that fact. Since the accused ad-
mitted that the address on the legal notice was correct, there was limited
scope for him to prove that the legal notice was not served upon him. Sec-
tion 27 of the General Clauses Act establishes a presumption of service with
respect to letters or documents sent through post and states: “… the service
shall be deemed to be effected by properly addressing, pre-paying, and post-
ing by registered post, a letter containing the document, and, unless the con-
trary is proved, to have been effected at the time at which the letter would be
delivered in the ordinary course of post. ” There has been no dispute regard-
ing the complainant sending the legal demand notice to the accused via pre-
paid registered post. The accused has also acknowledged that his address on
the legal demand notice was correct. Therefore, the presumption under sec-
tion 27 of the General Clauses Act applies in this case, and it can be assumed
that the legal demand notice was served upon the accused in the ordinary
course of business.
21. Moreover the Hon’ble Supreme Court in the case of “C.C. Alavi Haji
vs Palapetty Muhammad & Anr AIR 2007 SC (SUPP) 1705″ held that: “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
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 11/17
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.26
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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.”
22. There is no dispute the fact that the accused has not paid the amount
of the cheques in question within 15 days of appearing in this court.
Consequently, based on the aforementioned caselaw, the accused cannot
claim that she did not receive the legal notice and no liability can be
attributed upon him.
23. Let us now consider the point no. (b) i.e., whether the accused had
been able to prove that the cheques were not issued towards any legally
recoverable debt or any other liability?
24. The primary defence of the accused is that she does not know the
complainant and that she had issued the cheque in question to her deceased
brother for paying the hospital bills of her deceased mother. When the ac-
cused testified as DW-1, she admitted that she did not know the amount paid
to the hospital for her mother. She further admitted that she did not enquire
from her brother about the cheque in question even after it was dishonoured
upon presentation in September 2019. Additionally, she conceded that her
mobile number is linked to her bank account. It is noteworthy that the ac-
Digitally signed
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 12/17
by RISHABH
RISHABH TANWAR
Date:
TANWAR 2025.05.26
16:03:22
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cused was unaware of the hospital bills for her mother. It appears unnatural
to this court that the accused did not seek information from her brother re-
garding the cheque in question despite receiving dishonour notifications on
her mobile phone, since the same was linked with her bank account. These
admissions by the accused raise doubts regarding the credibility of her de-
fence. It belittles the defence of the accused that she had not issued the
cheque in question to the complainant instead she had issued the same to
her brother. It was the duty to enquire regarding the same.
25. Furthermore, the accused was confronted with the WhatsApp chat
between her and the complainant supported by the certificate under section
65B Indian Evidence Act, 1872 (Ex. DW-1/C1) wherein the accused is seen
admitting making payment to the complainant and also demanding extension
of time to pay the amount. It is notable that on one hand the accused states
that she does not know the complainant, on the other hand the WhatsApp
chat Ex.DW1/C1 shows that she had not only been talking to the
complainant but there appears to be an existence of financial transaction
existing between the two, otherwise why would the accused seek extension
of the time to make the payment. The accused has merely stated that the
WhatsApp chats had not been sent by her though she had admitted that the
mobile number from which the said chats were received belongs to her. The
chat Ex. DW-1/C1 prove the defence of the accused to be false and baseless.
26. Furthermore, the complainant’s case has been attack on the ground
that she did not have the financial capacity nor was there any written
agreement or acknowledgment brought on record by her with respect to the
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 13/17
Digitally signed
by RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.26
16:03:26 +0530
alleged loan given to the accused. It is not uncommon in the society to help
out community acquaintances in time of financial turmoil. It is also not
uncommon in the society to help such persons without formerly entering into
written arguments. Ignoring the said possibility would take us away from the
ground realities. The Hon’ble High Court in the case of ‘Amit Jain Vs.
Sanjeev Kumar Singh‘ 2024 DHC 6207 had held that :
“17. We often find that acquittals in Section 138 NI Act proceedings
place the burden of proving the existence of the debt on the complainant,
which is diametrically opposite to the presumption placed on the accused
under Section 139 NI Act. The accused often gets away with an acquittal,
despite having tendered and even admitting to the cheque, merely because
the complainant is unable to produce documents to support the existence of
the debt (usually in the form of a friendly loan provided in cash, which does
not have any document trail). It would be unwise for the court to not
acknowledge that friendly cash loans are provided by parties, sometimes
based on small savings of the lender. In these circumstances rather than
focussing on the question as to why the accused gave the cheque in the first
place (which he or she admits), the complainant is left unhinged for inability
to provide any documentation. Often when accused is asked by the court, as
to for what purpose they gave the cheque in the first place, a cogent and
rational answer is not forthcoming.”
27. Even in the present case the accused has failed to raise any probable
doubt on the story of the complainant and the case of the complainant cannot
be shunned merely on the ground that there was no written agreement
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 14/17
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by RISHABH
RISHABH TANWAR
TANWAR Date:
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between the accused and the complainant. As far as the financial capacity of
the complainant is concerned, she had brought her Income Tax Returns
(ITR) for the financial year 2019-2020 on record, which was marked as
Ex.CW1/7, wherein her gross income was shown to be Rs.4,80,000/- per
year. It is not unusual for a person, having such income, to give a loan of
Rs.2,00,000/-. Accordingly, no doubt is raised on the financial capacity of
the complainant.
28. The accused has not examined any witnesses or brought any material
on record which would show that she had not issued the cheque in question
to the complainant or that she had issued the same to her brother. On the
other hand, complainant has brought on record the WhatsApp chat
Ex.DW1/C1 which shows that the accused knew the complainant and there
was some financial transaction between the two. These Chats have not been
controverted by the accused except a bare denial. The case set up by in
defence is not strong enough to rebut the presumption under section 139 NI
Act and bereft of any evidence.
29. In the considered finding of this court, the accused has failed to raise a
probable defense, on the scale of preponderance of probability and has failed
to rebut the presumption under section 139 NI Act. Accordingly, the point of
determination no. (B) is decided in the negative.
30. Since the point of determination no. (B) has been decided in the nega-
tive, it would not be necessary to discuss the point of determination no. (C).
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 15/17
Digitally signed
RISHABH by RISHABH
TANWAR
TANWAR Date: 2025.05.26
16:03:34 +0530
31. It is trite law that when the accused has failed to rebut the presump-
tion under section 139 NI Act, the court can proceed to convict the accused.
reliance is placed upon the judgment of Hon’ble Supreme Court in Supreme
Court in ‘Rajesh Jain v. Ajay Singh, (2023) 10 SCC 148′, which discusses
the correct approach in dealing with presumption under Section 139 ob-
served as under; relevant extracts are reproduced hereunder:
“54. …Once the presumption under Section 139 was given ef-
fect to, the courts ought to have proceeded on the premise that the
cheque was, indeed, issued in discharge of a debt/liability. The entire
focus would then necessarily have to shift on the case set up by the ac-
cused, since the activation of the presumption has the effect of shifting
the evidential burden on the accused. The nature of inquiry would
then be to see whether the accused has discharged his onus of rebut-
ting the presumption. If he fails to do so, the court can straightaway
proceed to convict him, subject to satisfaction of the other ingredients
of Section 138….”
CONCLUSION
32. Accordingly, this Court finds the accused Sarabjit Kaur, W/o Sh.
Navdeep Singh ‘guilty’ of the offence under Section 138 NI Act and
accordingly she is convicted of the said offence.
CC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 16/17
Digitally signed by
RISHABH RISHABH TANWAR
TANWAR Date: 2025.05.26
16:03:39 +0530
33. This judgement contains 17 pages, and each page has been signed by
the undersigned as per rules.
34. Let the copy of digitally signed judgment be uploaded on the website
Digitally
of Tis Hazari District Court as per rules. signed by
RISHABH
RISHABH TANWAR
TANWAR Date:
2025.05.26
16:03:43
+0530Announced in open Court (RISHABH TANWAR)
On 26th day of May 2025 JMFC (NI ACT-01)/WEST/DELHICC No.8536/2019 Padam Arora V. Sarabjeet Kaur pg. no. 17/17