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Delhi District Court
Parul Bansal vs M/S.Rhr Infrastructure P.Ltd on 30 July, 2025
IN THE COURT OF Ms. SURBHI GUPTA ANAND JUDICIAL
MAGISTRATE FIRST CLASS, DIGITAL COURT-05,
SOUTH-WEST, DWARKA, NEW DELHI
EARLIER: JUDICIAL MAGISTRATE FIRST CLASS, (NI ACT)-07,
SOUTH-WEST DISTRICT, DWARKA COURTS, NEW DELHI
Ct. Case No.29307/2018
CNR No. DLSW02-033388-2018
Parul Bansal .........Complainant
Through: Mr. Satyakam Saini, Advocate
Versus
(1) M/S RHR Infrastructure P. Ltd. ....Accused No. 1
(2) Hrishikesh Kaushik ....Accused No. 2
(3) Himadri Goswami ....Accused No. 3
Through: Sh. Pradeep Shukla, Advocate
(4) Rahul Kumar ....Accused No. 4
Through: Sh. Vikram Singh, Advocate
(1) Name of the Parul Bansal
complainant
S/o Sh. Ram Narain Bansal
R/o V-126F, Sector A,
Bhagwati Vihar, Uttam Nagar,
Delhi 110059.
(2) Name of the accused 1. M/S RHR Infrastructure P. Ltd.
persons
Regd. Add: H.No. RZ-4,
Kamla Park, Dharampura,
Najafgarh, Delhi 110043.
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2. Hrishikesh Kaushik
S/o Lt. Sh. Inder Bhushan Sharma
R/o A 57, IIIrd Floor,
Sainik Nagar, Uttam Nagar,
Delhi 110059.
3. Himadri Goswami
W/o Sh. Hrishikesh Kaushik
R/o A 57, IIIrd Floor,
Sainik Nagar, Uttam Nagar,
Delhi 110059.
4. Rahul Kumar
S/o Jai Bhagwan Sharma
R/o RZ 4, Dharampura First,
Najafgarh, Delhi - 110043.
(3) Offence complained Section 138 Negotiable Instruments
of or proved Act, 1881
(4) Plea of accused Pleaded not guilty
persons
(5) Date of institution of 05.09.2018
case
(6) Date of conclusion of 26.04.2025
arguments
(7) Date of Final Order 30.07.2025
(8) Final Order Accused no.1 & 2: CONVICTION
Accused no.3 & 4: ACQUITTAL
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JUDGMENT
1. The complainant Parul Bansal has instituted this
complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter
referred to as ‘NI Act‘) against the accused persons on
04.09.2018.
2. The factual matrix as can be culled out from the
complaint is that accused no.2, on behalf of accused no.1
company, lured the complainant to invest in a small township
project “Pankaj Garden” at Village Amberhai, New Delhi and
consequently, complainant booked a plot admeasuring 100 Sq
yards in the said project. An Agreement to Sell was executed by
accused no.1 company in favor of the complainant for a total
value of Rs.16,00,000/- and he paid to accused no.2
Rs.1,60,000/- as earnest money. Thereupon, the complainant
came to know that accused no.2 had misrepresented that he was
owner of the said plot as the Agreement to Sell mentioned
Kundan Lal to be the executor and he was now deceased. Upon
being confronted, accused no.2 assured the complainant that he
has purchased the land from the legal heirs of Kundan Lal, and
that therefore, he was now the owner. Accused no.2 executed a
fresh Agreement to Sell dated 23.11.2017. The complainant paid
accused no.2 further, a total of Rs.10,15,000/- up to 28.03.2018,
whereafter he came to know that accused no.2 had still not
acquired ownership of the said plot. Thereafter, the complainant
confronted accused no.2 to show him the proper documentation
with respect to the property in question, to accept the balance
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amount due and execute sale deed in his favor, or to return
double the amount of earnest money to him. Accused no.2
prepared some transfer documents and took signatures of the
complainant on some blank papers but never turned up at the
Sub-Registrar’s office. Accused no.2 tried to dodge the
complainant and did not transfer the property in favor of the
complainant and in fact, lured the complainant to execute a fresh
Agreement to Sell dated 10.05.2018 for a consideration of
Rs.23,00,000/-, buying back the plot at a profit of Rs.7,00,000/-
after adjusting all previous dues. In discharge of his liability,
accused no.2 issued four post-dated cheques totaling
Rs.17,15,000/- to the complainant, bearing nos. 120894, 120895,
120896 and 120897, dated 20.05.2018, 10.06.2018, 10.07.2018
and 25.07.2018 respectively. The said cheques were for a sum of
Rs.2,30,000, Rs.4,95,000/-, Rs.4,95,000/- and Rs.4,95,000/-
respectively, all drawn on Allahabad Bank, Kakrola Housing
Complex Branch, New Delhi, and were handed over with
assurance of their encashment upon presentation. However, to
the complainant’s dismay, when the said cheques were presented
for encashment, they were returned unpaid with remarks
“Exceeds Arrangement”, “Payment Stopped by Drawer” and “the
amount in words/figures does not match/is blank”, vide return
memos dated 02.07.2018, 27.07.2018, 27.08.2018 and
26.07.2018, by the banker of the complainant. The complainant
was constrained to issue a legal demand notice dated 30.07.2018
calling upon all the accused to pay the cheque amounts within 15
days from its receipt, but the accused failed to make the payment
within the prescribed period, thus constraining the complainant toCt. Case No. 29307/2018
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file this complaint u/s 138 Negotiable Instruments Act, 1881
(hereinafter referred to as ‘NI Act‘) seeking redress against the
dishonor of the cheques in question.
3. With a view to establish a prima facie case to enable
the court to summon the accused, complainant led pre-
summoning evidence by way of affidavit Ex. CW-1/A. The
complainant relied upon following documentary evidence:
Sr.
Exhibits Documents
No.Original Agreement to Sell and Purchase,
(a) Ex. CW-1/1 dated 23.11.2017 along with Receipt dated
17.12.2017
(b) Ex. CW-1/2 Original Agreement to Sell, dated
10.05.2018
Original cheque bearing no.120894 dated
(c) Ex. CW-1/3 20.05.2018 for a sum of Rs.2,30,000/-
drawn on Allahabad Bank, Kakrola
Branch, Delhi.
Original cheque bearing no.120895 dated
(d) Ex. CW-1/4 10.06.2018 for a sum of Rs.4,95,000/-
drawn on Allahabad Bank, Kakrola
Branch, Delhi.
Original cheque bearing no.120896 dated
(e) Ex. CW-1/5 10.07.2018 for a sum of Rs.4,95,000/-
drawn on Allahabad Bank, Kakrola
Branch, Delhi.
Original cheque bearing no.120897 dated
(f) Ex. CW-1/6 25.07.2018 for a sum of Rs.4,95,000/-
drawn on Allahabad Bank, Kakrola
Branch, Delhi
Ex. CW-1/7, Cheque returning memos dated
(g) Ex. CW-1/8, 02.07.2018, 27.07.2018, 27.08.2018 and
Ex. CW-1/9 & 26.07.2018 qua Ex. CW-1/3, Ex. CW-1/4,
Ex. CW-1/10. Ex. CW-1/5 & Ex. CW-1/6, respectively.
(h) Ex. CW-1/11 Office copy of legal demand notice dated
30.07.2018
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(i) Ex. CW-1/12
Original postal receipts dated 30.07.2018
(colly)
(j) Ex. CW-1/13
Returning envelopes
(colly)
(k) Ex. CW-1/14
Company Master Data
(colly)Complainant closed his pre-summoning evidence on 12.11.2018.
4. On the basis of the above material and finding a
prima facie case made out against the accused, accused no.1, 2, 3
and 4 were summoned vide order dated 12.11.2018. Accused
no.2 & 3 entered their first appearance on 06.03.2019. Accused
no.4 entered his first appearance on 29.02.2020.
5. Notice u/s 251 Cr.P.C. was framed against accused
no.1, 2 & 3 on 1.07.2022 and against accused no. 4 on
04.03.2022, stating out to them the substance of accusation, to
which they all pleaded not guilty and claimed trial. Their defence
was recorded at the stage of framing of notice in compliance of
directions passed by Hon’ble High Court of Delhi in Rajesh
Aggarwal v. State (2010) 171 DLT 51. Accused no. 1 & 2 took
the defence that cheques in question bear signatures of accused
no.2, but he has not filled up other particulars in the cheques
except the amount in figures, he had received legal demand
notice, cheques in question were given to the complainant,
complainant was involved in a land deal with Parshuram in
which he acted as the middleman, complainant asked him to get
GPA documents of the sale of the land registered but the same
was not allowed as per law, he gave cheques in question to the
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complainant as security to guarantee that the land was without
any dispute, complainant was not to present the cheques for
encashment. Whereas, Accused no. 3 took the defence that
cheques in question do not bear her signatures, other details have
not been filled by her, she did not receive legal demand notice
but it bears her correct address, she does not know how the
cheques came into the possession of the complainant, she is not
aware about the transaction as accused no. 2 used to run the
company, she used to stay at home. On the other hand, Accused
no. 4 took the defence that cheques in question do not bear his
signatures but those of Hrishikesh Koushik (accused no.2), he did
not receive legal demand notice, it doesn’t bear his correct
address, he never resided at that address, he had resigned from
accused no.1 company and he does not know what happened in
the company thereafter.
6. Accused no.1, 2 and 3 were granted right to cross-
examine the complainant upon an oral prayer made u/s 145(2) of
NI Act vide order dated 1.07.2022, whereas Accused no. 4 was
granted the same vide order dated 13.09.2022. Complainant was
examined as CW-1 thereby adopting his pre-summoning
evidence as post-summoning evidence. CW-1 was duly cross-
examined by accused no.1,2,3 and 4, and discharged. Vide
separate statement of the complainant, complainant evidence
stood closed on 01.03.2023.
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7. Statement of accused persons was recorded u/s 313
Cr.P.C. r/w section 281 Cr.P.C. on 26.05.2023 wherein all the
incriminating evidence was put to them, and accused persons
were granted an opportunity to explain the circumstances
appearing against them at trial. While explaining circumstances
appearing in evidence against him, accused no.2, also answering
on behalf of accused no.1 company, stated without oath that he
came to know about execution of the three Agreements to Sell
and the transactions alleged by the complainant after he came
back from his village, none of the documents at Ex. CW 1/1 and
Ex. CW 1/2 bear his signatures, the signatures on the cheques in
question belong to him but he has not filled in the rest of the
particulars, he did not receive the legal notice and the address
mentioned therein is wrong, he was in his village at the relevant
time, after he came back he came to know that one person
namely Puneet had entered into an agreement with the
complainant wherein accused no. 1 was mediator, complainant
was the borrower and Parshurama was seller, Parshuram issued
power of attorney in favour of complainant but complainant
asked for registration of the same, Parshuram assured the
complainant of registration but later he absconded, his security
cheques were given to the complainant by Puneet at the time of
giving of the earnest money as he was in his village, he told
complainant that he was also searching for Parshuram but the
complainant presented the cheques for encashment, he has no
liability towards the complainant. On the other hand, accused
no.3, stated without oath that she does not know anything as she
did not sit in the office, cheques in question do not bear herCt. Case No. 29307/2018
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signature or her handwriting, she did not receive the legal notice
and the address on it is wrongly mentioned, she does not know
about any such dealing, she does not know the complainant.
Accused no.4, stated without oath that he does not know
anything as he is not the director of the accused no.1 company
since March 2017, the cheques do not bear his signature, he did
not receive the legal notice regarding the cheque in question, he
does not know anything as he left the accused no.1 company in
March 2017 and resigned in August 2017.
Accused no. 2 & 4 preferred to lead evidence in their
defence, while accused no. 1 & 3 chose not to lead defence
evidence.
8. At the stage of defence evidence, accused no. 4
examined himself as DW-1, he was duly cross examined and
discharged. Defence evidence on part of accused no.4 was closed
on 03.02.2024. No witnesses were examined on behalf of
accused no.1, 2 and 3, and vide separate statement of accused
no.2 and 3, defence evidence on part of accused no.1, 2 and 3
was closed on 12.08.2024.
9. At the stage of final arguments, Ld. counsel for
complainant submitted that the present case has been filed for an
amount of Rs.17,15,000/- qua the four cheques issued by the
accused to the complainant in discharge of his liability towards
the repurchase of the property from the complainant. As accused
no.2 was not able to ensure transfer of clear title in favor of
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complainant under the initial agreement to sell the property in
question, he offered to repurchase it from the complainant at a
profit of Rs.7,00,000/- over and above the amount already paid
by the complainant earlier i.e 10,15,000/- and issued four
cheques totalling Rs.17,15,000/- towards the same. Accused no.2
has admitted that he was the director of accused no.1 company at
the relevant time as well as his signatures upon the cheques in
question issued on behalf of accused no.1 company. Accused
no.2 has also admitted handing over the cheques in question to
the complainant after filling in the amount in figures and receipt
of the legal demand notice. Accused no.3 and 4 were also
directors of accused no.1 company at the relevant time. All
accused have failed to raise a probable defence in their favour
and have taken contradictory and inconsistent stands throughout
the course of the present proceedings. Accused no.2 has denied
his signatures upon the agreements to sell placed on record but
has not been able to prove the same. Ld. Counsel for the
complainant thus, prayed to convict the accused persons for the
offence u/s 138 NI Act.
Per contra, Ld. counsel for accused no.1, 2 and 3
prayed to acquit the accused on the ground that there is no
specific averment in the complaint as to how accused no.2 and 3
are responsible for the day-to-day affairs of accused no.1, the
cheques in question were handed over to the complainant as
security to assure that the land deal was secure and ownership of
the land is without any doubt on its title, and not towards
payment of any consideration. Accused no.2 was only a mediator
in the land deal between the complainant and a third person and
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therefore, he had no legal liability towards the complainant.
Complainant has admitted the same in his cross-examination.
The agreements Ex. CW-1/1 and Ex. CW-1/2 have been executed
in accused no.2’s personal capacity and not on behalf of accused
no.1. The agreement to sell dated 29.09.2017 has not been placed
on record. Vague allegations have been made by the complainant
in his complaint. Further, accused no.3, who is the wife of
accused no.2, was only a sleeping partner in the company and
had no role in the regular conduct of business of the company.
Only accused no.2 and 4 took part in day-to-day affairs of the
company and accused no.3 had no role in its transactions. Ld.
Counsel for accused no.1, 2 and 3 submitted that since
presumption u/s 139 NI Act has been successfully rebutted,
accused no.1, 2 and 3 be acquitted for the offence u/s 138 NI Act.
Ld. Counsel for the accused relied on the judgments of the
Hon’ble Supreme Court of India in M.S. Narayana Menon v
State of Kerala AIR 2006 SC 3366, M/s Kumar Exports v M/s
Sharma Carpets AIR 2009 SC 1518, Rangappa v Mohan AIR
2010 SC 1898 and the Honb’le High Court of Delhi in Rahul
Sood v Govt. of NCT of Delhi and Anr., Crl. M.C. 5085/2017 in
support of his contentions.
Ld. counsel for the accused no.4, on the other hand,
submitted that accused no.4 had resigned from accused no.1
company in August 2017 and had stopped taking part in its
affairs since March 2017, whereas the alleged transactions took
place only thereafter i.e. September 2017 onwards, accused no.4
has been falsely implicated in the present matter, he had no role
to the play in the transactions or issuance of the cheques in
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question, legal demand notice was never served on him as his
address is incorrectly mentioned. Thus, his liability u/s 138 NI
Act cannot be made out by the operation of section 141 NI Act,
he accordingly prayed that accused no.4 be acquitted of the
alleged offence.
10. After hearing the arguments advanced on behalf of
all the parties and perusing the record carefully, the appreciation
of evidence and findings of the court are as below.
11. The legal position serving as base to the offence
underlying Section 138 NI Act, as held by Hon’ble Supreme
Court in the case titled Kusum Ingots & Alloys Ltd. v. M/s
Pennar Peterson Securities Ltd.: (2000) 2 SCC 745 is:
(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 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
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cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative,
meaning thereby that only if all the 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 NI Act is an exception to the general rule of law
that burden of proof lies on the prosecution, in view of the two
specific provisions viz. Section 118 (a) and 139 of NI Act. A
presumption is attached to each negotiable instrument that the
same was drawn and issued against due discharge of liability and
thus, whenever any claim is made based on a negotiable
instrument, the presumption has to be drawn in favor of the
holder of the cheque (drawee). 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
cannot rebut the presumption and fails to prove his defence, the
presumption becomes absolute, and 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 or liability. The said presumption is a
presumption of law and not a presumption of fact and thus,
presumption has to be drawn in favor of the drawee and the
burden to rebut the presumption with the probable defence is on
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the accused. (Hiten P. Dalal v. Bratindranath Banerjee: 2001
(6) SCC 16)
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. Since this is a departure from the cardinal
rule of ‘presumption of innocence’ in favor 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.
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 favor 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 doesCt. Case No. 29307/2018
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not have to be conclusively established but the accused must
prove his defence on preponderance of probability.
13. Now applying the above law to the facts of the
present case, it is to be adjudged whether the legal requirements
laid down hereinabove have been fulfilled in the instant case.
13.1. 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 one of the
accused no.2, 3 or 4 had issued the cheques in question on the
account of accused no.1 maintained with a bank for discharge of
any debt or other liability.
In the instant case, accused no.2 has admitted his
signatures on the cheques in question, in capacity of the director
of accused no. 1 company, in notice framed u/s 251 Cr.P.C. and
in his statement recorded u/s 313 Cr.P.C. The cheques in
question have also been drawn on the account maintained by
accused no. 1 company in Allahabad Bank, Kakrola Housing
Complex Branch, Delhi. The said fact has not been denied by
accused persons at any stage of proceeding.
13.2. It was held in the case of Kalamani Tex & anr. v. P.
Balasubramanian: 2021 SCC Online SC 75 Hon’ble Supreme
Court held that:
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“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:
“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.”
In the instant case, accused no.2 having admitted his
signature on the cheques in question and the said cheques being
drawn on the bank account of accused no. 1 company, a
mandatory presumption automatically arises in favor of
complainant by virtue of Section 118(a) r/w 139 NI Act that the
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cheques in question were issued by him in discharge of, whole or
part of, legally enforceable debt or liability.
13.3. Now the burden shifts upon 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 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).
13.4. Accused no.1, 2 and 3 have chosen to do so by cross
examining CW-1. During his cross-examination, the notable
points that came forth from CW-1’s deposition, in brief, are that
he was earning about Rs.90,000/- to 1,00,000/- per month as
salary from a private job during January, 2014 to 2020 and ITR
for the relevant period was placed on record as Mark CW-1/D1;
he didn’t remember if investment of Rs.10,15,000/- in property
was shown in his ITR but he had sufficient income to invest in
property in 2017-18; he entered into an agreement with accused
no.1 with respect to the property and Ex. CW-1/1 is the
agreement of sale by accused no.2 in his favor and Bayana
Agreement, he had asked for title deed documents before
entering into agreement at Ex. CW-1/1 but accused never gave
them to him so he could not verify the title of accused, accused
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no.2 had told him of his role as mediator on behalf of Kundan
Lal but he came to know that Kundan Lal had already expired
and still accused no.1 had taken the entire consideration from
him; proof of payment of Rs.10,15,000/- to accused is not on
record; he did not know that the owner of the property was
Parshuram; he did not file any police complaint against accused
no.2 after discovering that property is not in his name but he
confronted him in his office; accused no.2 offered to repurchase
the property from him at a profit of Rs.7 lakhs and and executed
an agreement Ex. CW-1/2 dated 10.05.2018, Ex. CW-1/2 is the
second agreement between him and accused no.1, accused no.2
handed him four cheques totaling Rs. 17,15,000/-; all four
cheques got dishonored, thus, no sale deed was executed by him
in favor of accused no.2; accused had not handed over the
cheques without filling in details, accused had not filled only the
signatures and amount in figures, cheques in question were not
filled by accused no.2 in his presence, cheques were handed over
to him by accused no.2 in DDA Bindapur; accused had asked
him to present the cheques on the date mentioned on the cheques;
cheques in question were not given as security cheques by
accused no.2 in the capacity of a mediator; he did not misuse the
cheques in question; he sent legal notice to the accused before
filing the present case; he did not meet accused no.3 before filing
the present case, and is not aware if accused no.3 was a sleeping
partner and had nothing to do with the daily affairs of accused
no.1; agreement was not executed between him and accused no,
1, 2 and 3; Ex. CW-1/1 and Ex. CW-1/2 are not forged orCt. Case No. 29307/2018
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fabricated; he has not filed the present case against the accused as
the original owner Parshuram went absconding.
13.5. The complainant has set up a claim of
Rs.17,15,000/- i.e. the total amount of the four cheques in
question against accused no.1, 2, 3 and 4 on the basis of the
Repurchase Agreement dated 10.05.2018. Under the said
agreement, accused no.2 had allegedly repurchased the property
that he had earlier failed to transfer to the complainant under an
agreement dated 23.11.2017, promising him a profit of Rs.
7,00,000/- as returns/interest on his initial investment and
accordingly, issued to him four cheques i.e. cheques in question
drawn on the account of accused no.1 company towards the
same. Complainant relied on Ex. CW-1/1 and Ex. CW-1/2 in
support of his claim.
It is the case of the complainant that accused no.2
cheated him of his money without any intention to perform either
of the two contracts on behalf of accused no.1 company. Further,
it is alleged that accused no.3 and 4, being directors of accused
no.1 company at the relevant time, are also liable for the acts of
accused no.2 by virtue of section 141 NI Act.
13.6. Though, accused no. 2 has admitted that he is the
director/authorised signatory on behalf of accused no.1 company
as he admitted his signatures on the four cheques in question, he
has denied his liability towards those cheques.
It is settled law that a mere denial of passing of
consideration is not sufficient and the accused need to bring on
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record some factual circumstance which lays out a probable
defence that either the consideration did not exist, or existence of
consideration was so improbable in the case at hand that any
prudent person would believe that it did not exist. The test being
that of a prudent person, it was not necessary for the accused to
have led any evidence in his defence, and he could have
discharged the burden by making out a probable case in his
favour by punching holes in the case of the complainant.
13.7. Accused no.2 has taken the defence that he was a
mediator in a land deal between the complainant and Parshuram
and he had given the cheques in question to the complainant to
guarantee that the land was without any dispute, in his defence
recorded u/s 251 Cr.P.C.
However, accused no.2 took an entirely different
stand in his statement recorded u/s 313 Cr.P.C. that he didn’t
even know about the execution of the three Agreements to Sell
and the alleged transactions as he was in his village at the
relevant time, and someone named Puneet had executed an
agreement with the complainant with accused no. 1 as mediator
and Parshurama as seller, in his absence. Accused no.2 alleged
that Puneet gave his security cheques to the complainant when
complainant gave the earnest money as he was in his village.
Accused no.2 also denied his signatures on the documents at Ex.
CW 1/1 and Ex. CW-1/2.
Yet again, during his final arguments, accused no.2
submitted to the contrary that the cheques in question were
handed over to complainant as security to assure him that the
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land deal was secure & title wasn’t doubtful, and that the
agreements Ex.CW-1/1 and Ex.CW-1/2 have been executed in
accused no.2’s personal capacity & not on behalf of accused
no.1.
13.8. It is clear from foregoing discussion that accused
no.2 has been inconsistent in his stands throughout the course of
trial. Not only has accused no.2 taken varying stances in denying
his liability towards the cheques in question, but he has also
failed to lead any positive evidence in support of his defence.
For instance, accused no.2 has indicated at the role
of Puneet in disputing handing over of the cheques in question to
the complainant and execution of the agreements with the
complainant, however, he never brought Puneet into the witness
box to prove that it was Puneet who had executed the agreements
and handed over the cheques to the complainant and not him.
Further, accused no.2 did not take any steps to prevent the misuse
of his cheques after he came to know that Puneet had executed
agreements on behalf of accused no.1 and handed over his
cheques to the complainant. He never filed any complaint against
Puneet or the complainant for misuse of his cheques. Puneet
would have been a material witness in establishing accused
no.2’s defence.
Further, accused no.2 has himself admitted that he
had handed over the cheques to the complainant, though in his
personal capacity, during final arguments.
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Considering these inconsistencies and
unsubstantiated claims of accused no.2, it can be said without a
doubt that the cheques in question were handed over to the
complainant by accused no.2 himself.
13.9. Accused no.2 has already admitted his signatures on
cheques in question, and the cheques have been drawn on the
account of accused no.1 company. Therefore, the argument that
they were issued in accused no.2’s personal capacity is without
any merit.
Now, since the cheques in question have been issued
by accused no.2 in the capacity of its director, the only thing that
needs to be established is whether accused no.1 and 2 had any
liability towards the complainant qua these cheques.
13.10. Accused no.2 has taken the defence that he was only
a mediator in the alleged transaction and cheques in question
were issued as an assurance that the land is without any
encumbrance as to its title, and therefore, he had no liability
towards these cheques. CW-1 has stated, to the contrary, during
his cross-examination that the cheques in question were issued as
per the terms of the Repurchase Agreement Ex. CW-1/2 and not
as security cheques, though accused no.2 had told him of his role
as a mediator.
As per the mandate of section 91 and 92 of the
Indian Evidence Act, 1982 wherever a contract, grant, or any
property disposition is documented or mandated by law to be
documented, the terms of such document can only be proven
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through the document itself, and oral evidence cannot be used to
qualify the terms outlined in the document.
Complainant has placed on record original
agreement to sell 10.05.2018, whereby, he has proved that
accused no.2 had entered into a contract to repurchase the subject
property from the complainant and had issued the four cheques in
question to him, in accordance with the terms of this agreement.
Accused no.2 has failed in disproving the existence, genuineness
and contents of the said document.
As per the terms of the agreement, accused no.2 had
agreed to resale the land of complainant for a total of Rs.
23,00,000/- and had issued four cheques i.e. one cheque bearing
no. 120894 dated 10.06.2018 for an amount of Rs.2,30,000/- and
three cheques bearing nos. 120895, 120896 and 120897, dated
10.07.2018, 25.07.2018 and 27.07.2018, respectively, for an
amount of Rs.4,95,000/- each towards its payment. These four
cheques are the very cheques in question and accused no.2 also
admitted that he had filled in the amount in figures in the cheques
in question in his defence recorded u/s 251 Cr.P.C.
It is therefore established that the cheques in
question were issued by accused no.2 as a part of the agreement
dated 10.05.2018 and not as security cheques, and his defence
can be said to be nothing but one hanging in the air and devoid of
any substance.
13.11. As far as the liability of accused no.3 and 4 is
concerned, it would be apposite to note that the accused no.3 and
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4 have been arraigned as accused not in their personal capacity
but in view of their vicarious liability u/s 141 NI Act, by virtue of
them being directors of accused no.1 company.
Complainant has placed on record the Company
Master Data of accused no.1 company (Ex. CW-1/14) wherein
accused no. 3 and 4 have been reflected as directors of accused
no.1 company. The liability by virtue of section 141 NI Act can
be extinguished only if accused no.3 and 4 could prove that they
had no part to play in the regular affairs or conduct of business of
the accused no.1 company, or the offence was committed without
their knowledge or that they exercised all due diligence to
prevent commission of such offence.
13.12. Accused no.3 has taken the plea she was not taking
part in the day-to-day affairs of accused no.1 company as she did
not used to sit in the company office and her husband i.e. accused
no.2 used to run accused no.1 company. She had never met the
complainant and has no knowledge about the transaction related
to the property or the cheques in question.
In Sunita Palita & ors v. M/S Panchami Stone
Quarry, SLA (Crl.) Nos. 10396.2019, the Hon’ble Supreme
Court held that the liability under section 138 r/w section 141 of
NI Act would depend on the role played by the director in the
affairs of the company and not on the basis of designation alone.
Hon’ble Court referred to the decision in the case of S.M.S.
Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) 8 SCC 89,
“What is required is that the persons who are sought to be made
criminally liable under Section 141 should be, at the time the
offence was committed, in charge of and responsible to the
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company for the conduct of the business of the company. Every
person connected with the company shall not fall within the
ambit of the provision. It is only those persons who were in
charge of and responsible for the conduct of business of the
company at the time of commission of an offence, who will be
liable for criminal action. It follows from this that if a director
of a company who was not in charge of and was not responsible
for the conduct of the business of the company at the relevant
time, will not be liable under the provision. The liability arises
from being in charge of and responsible for the conduct of
business of the company at the relevant time when the offence
was committed and not on the basis of merely holding a
designation or office in a company.”
Thus, liability u/s 141 NI Act requires specific
allegations substantiated by concrete evidence to demonstrate
that the accused was actively involved in the company’s affairs
during the relevant period.
13.13. In the present case, the complainant was cross-
examined on the aspect of liability of accused no. 3, and it was
admitted by him that he had not met accused no.3 before filing of
the present case. Further, he has not placed any material on
record to establish accused no.3’s complicity in the alleged
crime. Accused no.3 is also not signatory to the cheques in
question.
It follows from the aforesaid discussion that accused
no.3 was not in charge of and responsible for the conduct of the
business of accused no.1 company and had no role to play in the
transaction in question. Thus, accused no.3 is not liable by import
of section 141 NI Act for the acts committed by accused no.1
company.
13.14. Accused no.4, on the other hand, has taken the
defence that though he was a director of accused no.1 company
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since 2015, he had resigned on 18.08.2017, i.e. before the
issuance of the cheques in question and therefore, he cannot be
held vicariously liable u/s 141 NI Act.
Accused no.4 cross-examined the complainant in his
defence, and CW-1 deposed, in brief, that accused no.4 was the
director of accused no.1 at the time of both the dealings, he met
accused no.4 for the first time after filing of the present case, Ex.
CW-1/14 is authentic, accused no.4 was director of accused no.1
in September 2017 i.e. at the time of the first dealing, no proof of
dealing in September 2017 has been placed on record, no
document from Registrar of Companies proving that accused
no.4 was director of accused no.1 at the time of dealing in
September 2017 has been placed on record.
Accused no. 4 himself stepped into the witness box
as DW-1, was duly cross-examined and deposed, in brief, that he
was a director of accused no.1 company from 2015 till 2017, he
had resigned in August 2017, copy of his resignation letter and
Form DIR 12 has been placed on record, he does not know the
complainant and has no knowledge of transaction with him, he
met the complainant for the first time in court, he did not sell any
plot to complainant, no document proving acceptance of his
resignation is on record, address mentioned on legal notice is
incorrect, he never resided at that address, he did not receive
legal notice, he did not file any reply to the same, he was not
director of accused no.1 when the transaction took place between
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for the transactions with accused no.1 in the capacity of director
of accused no.1.
13.15. In the present case, the legal liability of the
arraigned accused emanates primarily from the Repurchase
Agreement dated 10.05.2018 i.e. Ex. CW-1/2, whereby the four
cheques in question were issued by accused no.2 to the
complainant. Agreement to sell dated 23.11.2017 i.e. Ex. CW-1/1
is claimed to be the precursor to this Repurchase Agreement.
Accused no.4 has placed on record Mark X (colly)
i.e. his resignation letter dated 18.08.2017 and Form DIR 12, in
support of his claim that he was not associated with accused no.1
company at the relevant time, having already resigned on
18.08.2017, i.e. much before the aforesaid agreements were
executed between the complainant and accused no.2, acting on
behalf of accused no.1 company. Although Mark X (colly) has
been objected to by the complainant, however, since it has been
digitally signed and has been taken from the records of the
Registrar of Companies, there is no reason to doubt its
authenticity.
Accused no.4 also deposed during his cross-
examination that he had never met the complainant before filing
of the present case. When CW-1 was cross-examined on this
aspect, he had corroborated the said fact and failed to attribute
any role to accused no.4 in the transaction in question or the prior
dealings alleged to have taken place in September 2017.
13.16. In the case of Adhiraj Singh v Yograj Singh and
Ors, SLA (Crl.) No(s). 16051-16052/2023, Hon’ble Supreme
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Court held that a director cannot be held liable for the offence u/s
138 NI Act r/w section 141 NI Act if he had resigned from the
company prior to the issuance of the cheque in question.
From the foregoing discussion, it has been
established that accused no.4 had already resigned from accused
no.1 company on 18.08.2017 and the cheques in question were
issued after the execution of agreement dated 10.05.2018.
Consequently, accused no.4 cannot be held liable due to the
operation of section 141 NI Act.
13.17. Thus, accused no.1 and 2 have failed to rebut the
presumption of law and discharge the burden of proof by raising
a probable defence that the cheques in question were not issued
to complainant in discharge of their liability.
On the other hand, accused no. 3 and 4 have been
able to rebut the presumption of law and discharge the burden of
proof by establishing that they did not have any liabilities
towards the complainant qua the cheques in question.
The first legal requirement is, thus, proved in
favor of the complainant, and against accused no.1 and 2.
14. 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 cheques in question i.e. Ex. CW-1/3, Ex. CW-
1/4, Ex. CW-1/5 and Ex. CW-1/6 are dated 20.05.2018,
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10.06.2018, 10.07.2018 and 25.07.2018, respectively. Returning
memos qua these cheques i.e. Ex. CW-1/7, Ex. CW-1/8, Ex. CW-
1/9 and Ex. CW-1/10 are dated 02.07.2018, 27.07.2018,
27.07.2018 and 26.07.2018, respectively. Thus, it is proved that
the cheques in question were presented within the period of their
validity. Further, defence has failed to controvert the said fact.
Thus, the second legal requirement is adjudicated
in favor of complainant.
15. 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
favor of complainant by virtue of Section 146 NI Act that the
four cheques in question were dishonored for the reasons stated
in the bank return memos viz. ‘Exceeds arrangement’, ‘Payment
Stopped by Drawer’, and ‘the amount in words/ figures does not
match/ is blank’.
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It is settled law that the abovementioned reasons for
the dishonor of the cheques in question fall within the ambit of
the offence defined u/s 138 NI Act. Therefore, the burden was
upon the accused to rebut this presumption by establishing some
reasonable justification for the same, but accused no.2 has
admitted his signatures on the cheques in question, and the
accused persons have not disputed the reasons for the dishonor of
the cheques in question.
Thus, the third legal requirement is adjudicated
in favor of complainant.
16. 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 four cheques in issue were
returned dishonoured on 02.07.2018 (Ex. CW-1/7), 26.07.2018
(Ex. CW-1/10) and 27.07.2018 (Ex. CW-1/8 and Ex. CW-1/9).
The complainant sent a legal demand notice dated 30.07.2018
(Ex. CW-1/11) addressed to all the accused persons. Postal
receipts dated 30.07.2018 (Ex. CW-1/12(colly)) are also on
record. Thus, it is proved that the legal notice was sent to the
accused persons within thirty days of receipt of intimation of
dishonor of the cheques in issue.
The fourth legal requirement is, thus,
adjudicated in favor of complainant.
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“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 requirement of law under the present head
can be ascertained in two parts, firstly, the ‘receipt of the
legal demand notice’ and secondly, ‘failure to make payment
within 15 days of receipt’.
17.1. Accused no.2, also answering on behalf of accused
no.1 company, admitted receipt of the legal demand notice in his
defence recorded u/s 251 Cr.PC, however, he has disputed the
receipt as well as his address mentioned on the legal demand
notice in his statement recorded u/s 313 Cr.P.C. Similarly,
accused no.3 took contradictory stands with respect to her
address mentioned on the legal demand notice in her defence
recorded u/s 251 Cr.P.C. and her statement recorded u/s 313
Cr.P.C. On the other hand, accused no.4 has been consistent in
stand that he never received the legal demand notice and that it
bears his incorrect address.
17.2. Upon perusal of the legal demand notice (Ex. CW-
1/11) and postal receipts (Ex. CW-1/12(colly)) it is apparent that
the legal demand notice was sent to all the accused persons, and
specifically to accused no.2, 3 and 4 in their capacity as directors
of accused no.1 company, at A-7, Kiran Garden, Opp. Delhi
Bazar, Matiala Road, Rajpur Dairy Building, Uttam Nagar, New
Delhi 110059 address. Additionally, it was also sent to accused
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no.1 company at the H.No. 4, Dharampura, Najafgarh, New
Delhi-110043 address.
The company master data at Ex. CW-1/14(colly)
clearly mentions both the abovementioned addresses to be the
Head Office address and the Registered Address of accused no.1
company, respectively. Accused no.2 and 3 have admitted the
fact that they were directors of accused no.1 company as on the
date of the legal demand notice i.e. 30.07.2018. However,
accused no.4 has established that he had resigned from accused
no.1 company on 18.08.2017, and that he never resided at any of
the aforementioned addresses.
Thus, it can be said that the legal notice was
properly addressed to the correct address of accused no.1, 2 and
3, and by virtue of the presumption u/s 27 General Clauses Act,
accused no.1, 2 and 3 are deemed to have received the legal
notice since the notice had been sent to their correct address by
post.
17.3. Even otherwise, law expects a person pleading non-
receipt of any demand notice to prove his bona fides by making
the payment of the cheque amounts within 15 days of receiving
court summons. This is crystallized by the verdict of Hon’ble
Supreme Court in the case titled as C.C. Alavi Haji v. Palapetty
Muhammed & anr.: (2007) 6 SCC 555:
“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
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signed by
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SURBHI GUPTA
GUPTA ANAND
ANAND Date:
2025.07.30
15:50:35
+0530
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.”
17.4. In the case at hand, despite issuance of summons
and appearance of all the accused before the court, the accused
have failed to pay the amount of cheques to the complainant and
thus, are precluded from raising the plea of non-service of
demand notice.
It is an undisputed fact and a matter of record that
the accused have 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
favor of the complainant.
18. All the legal requirements constituting an offence u/s
138 NI Act have been proved in favor of the complainant and
against the accused no.1 and 2.
Accordingly, accused no.1 M/s RHR Infrastructure &
Ors and its director/signatory accused no.2 Hrishikesh
Kaushik are held guilty for the alleged offence u/s 138 NI Act.
Accused no. 3 Himadri Goswami and accused no.4 Rahul
Kumar stand acquitted for the alleged offence u/s 138 NI Act.
Ct. Case No. 29307/2018 Digitally
Parul Bansal v M/s RHR Infrastructure & Ors signed by
SURBHI
Page 33 of 34 SURBHI GUPTA
GUPTA ANAND
ANAND Date:
2025.07.30
15:50:43
+0530
19. Now to come up for arguments on quantum of
sentence on behalf of the convicts.
Copy of this judgment be given Dasti to the convicts free
of cost, as per rules.
Announced in the open Digitally signed
court on 30th July, 2025. SURBHI by SURBHI
GUPTA ANAND
GUPTA Date:
2025.07.30
ANAND 15:50:50
+0530(SURBHI GUPTA ANAND)
Judicial Magistrate First Class (NI Act) DC-05
S/W District, Dwarka Courts, New DelhiEarlier: Judicial Magistrate First Class (NI Act)-07
S/W District, Dwarka Courts, New DelhiCt. Case No. 29307/2018
Parul Bansal v M/s RHR Infrastructure & Ors
Page 34 of 34
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