Delhi District Court
Pushp Lata vs Saurabh Das on 26 July, 2025
IN THE COURT OF Ms. AASTHA SHARMA, JUDICIAL MAGISTRATE
FIRST CLASS, NI-03, SOUTH-EAST DISTRICT, SAKET COURTS
COMPLEX: DELHI
PUSHP LATA v. SAURABH DASS
CC No. 969/2020
U/S 138 Negotiable Instruments Act, 1881
1. CNR number DLSE02-002101-2020
2. Name of the complainant Pushp Lata
W/o Sh. Anil Kumar Bhalla
R/o D-3/83, Gali no. 3, Mangal
Bazar Road, Sangam Vihar,
(Opposite Batra), New Delhi-
110062
3. Name of the accused person(s), parentage & Saurabh Dass
residential address
S/o Late Sh. Sudhir Kumar Dass
R/o D-4/329, Sangam Vihar
(Opposite Batra), New Delhi-
110062
4. Offence complained of or proved U/s 138 of Negotiable
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Instruments Act, 1881
5. Plea of the accused Pleaded not guilty and claimed
trial
6. Final Judgment/order Acquitted
7. Date of judgment/order 26.07.2025
Date of Institution: 25.01.2020
Date of Reserving Judgment/Order: 10.07.2025
Date of Pronouncement of Judgment/Order: 26.07.2025
ARGUING COUNSELS:
Ld. Counsel for the complainant: Sh. Vikas Sharma
Ld. Counsel for the Accused: Sh. M.K. Sharma
JUDGMENT
1. Vide this judgment, this Court shall dispose of the present complaint filed by the
complainant Ms. Pushp Lata (hereinafter referred to as “the Complainant”) against Sh.
Saurabh Dass (hereinafter referred to as “the Accused”) under Section 138 of the
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Negotiable Instruments Act, 1881 read with Section 142 of Negotiable Instruments Act,
1881 (hereinafter referred to as “NI Act“).
Brief facts of the case:
2. It is the case of the complainant,
A. That, the accused in March 2017 approached the complainant for a friendly loan of Rs.
14,95,000/- for reconstructing his house. That, the complainant agreed to the same
considering the long association with the accused, however the complainant informed the
accused that he does not have the entire loan amount as requested by the accused and
therefore the loan was granted in installments. That, the accused had promised to return
the loan amount within one year with interest @ 24% per annum. That, the complainant
demanded his money after a year and the accused issued a cheque bearing no. 478592
dated 04.11.2019 drawn on Axis Bank, Branch CR Park, New Delhi-110019 for an
amount of Rs. 14,95,000/- with the promise that the same would be duly encashed on its
presentation.
B. That, on the assurance of the accused, the complainant presented the cheque to her
banker State Bank of India, Greater Kailash Branch, New Delhi but to the utmost
shock of the complainant, the cheque was dishonoured due to the reason “funds
insufficient” vide return memo dated 15.11.2019.
C. In these circumstances, the complainant got issued a statutory legal demand notice to
the accused through his counsel, dated 10.12.2019, thereby requiring the accused to pay
the amount of the aforesaid cheque within a period of 15 days from the receipt of the said
notice. The said notice under Sec. 138 of NI Act was sent to the accused through
Registered AD, Speed Post and Courier at his correct address on 10.12.2019. That
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despite service of the above stated notice of demand, the Accused has deliberately and
wilfully failed to comply with the said notice of demand and has failed to pay the amount
of the aforesaid cheque within the stipulated period of 15 days from the date of receipt of
the said notice. Consequently, this case was filed by the complainant against the accused,
which was within limitation period as laid down u/s 138, NI Act.
Proceedings before the court:
3. Upon a prima facie consideration of pre-summoning evidence, it appeared that the
offence u/s 138 NI Act has been made out. After leading pre-summoning evidence by the
complainant, cognizance of the offence u/s 138, NI Act was taken against the accused
person and he was summoned vide order dated 25.01.2020. Thereafter, the accused
entered into an appearance and was granted bail on 15.11.2021. On the same date, a
separate notice was framed against the accused u/s 251 of the Code of Criminal
Procedure, 1973 (hereinafter “CrPC“), which was read over and explained to him, to
which the accused person pleaded not guilty and claimed trial. At the stage of framing
notice, the following aspects were admitted/denied by him:
(i) Issuance of cheques to the complainant : Admitted
(ii) Signatures on the cheque in question : Admitted
(iii) Receiving the legal demand notice : Admitted
In his defense, the accused person has stated that he had taken a loan of Rs. 2,50,000/-
from the husband of the complainant Sh. Anil Kumar Bhalla in installments of Rs.
1,00,000/- and Rs. 1,50,000/-. The accused person has stated that he had issued two blank
signed cheques to the husband of the complainant against the same. It is further stated by
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the accused that he has already made part payment of Rs. 60,000/- to Rs. 65,000/- to the
husband of the complainant. The accused person has further stated that he does not owe
any liability towards the complainant and that the complainant has misused his cheque in
question.
4. During the trial, the complainant has led the following oral and documentary evidence
by way of an affidavit Ex. CW1/1, against the accused to prove its case beyond
reasonable doubt and relied upon the following documents :-
● The cheque in question is exhibited as Ex. CW1/A
● The returning memo is Ex. CW1/B.
● The legal notice is Ex. CW1/C and The postal receipt is Ex. CW1/D.
● The Tracking report is Ex. CW1/E and Section 65B, Indian Evidence Act
certificate is Ex. CW1/F.
● SPA in favour of the husband of the complainant is Ex. CW1/G.
Thereafter, the accused person was granted an opportunity to cross-examine the
complainant CW-1 under Section 145(2), NI Act and the complainant witness was duly
cross-examined by the Ld. Counsel for the accused. Thereafter, CE was closed vide order
dated 06.02.2024.
5. Thereafter, before the start of defence evidence, in order to allow the accused to
personally explain the circumstances appearing in evidence against him, his statement
under Section 313 CrPC was recorded without oath.
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6. The accused opted not to lead DE and therefore, DE was closed vide order of this court
by recording a separate statement of the Ld. Counsel for the accused on 28.04.2025.
7. Thereafter, the matter was listed for final arguments. After hearing the final arguments
on behalf of both the parties, the matter was reserved for pronouncement of judgment.
Arguments advanced by both the parties:
8. Ld. Counsel for the complainant while reiterating the facts of the complaint has argued
that the accused has admitted his signatures on the cheque in question and has admitted
liability of Rs. 2,50,000/-. Ld. Counsel for the complainant further submits that the
issuance of the cheques and the signatures on the cheque in question are also admitted by
the accused, and since all the ingredients u/s 138, NI Act have been fulfilled, the accused
is is liable for the offence u/s 138, NI Act and be punished with maximum punishment in
accordance with law and be punished with imprisonment for a term of two years and fine
of double of the amount of the said cheque.
9. Per Contra, Ld. Counsel for the accused submits that the complainant does not have
the financial capacity to pay a friendly loan amounting to Rs. 14,95,000/- when the
complainant has himself admitted that he was not employed anywhere at the time of
advancement of loan to the accused. Ld. Counsel for the accused further submits that the
complainant has made several contradictory statements in his testimony and has not
placed on record any document to indicate the source for advancement of loan to the
accused by way of sale deed indicating sale of property etc. Ld. Counsel for the accused
further submits that the complainant has not placed on record his statement of accounts as
well. Ld. Counsel for the accused, in consequence, has prayed that the accused be
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acquitted as the conditions for Section 138, NI Act have not been fulfilled and the
complainant has misused the cheques against the accused.
Relevant Law:
10. I have heard counsels on behalf of both the sides, perused the record as well as
relevant provisions of law.
11. It is well settled position of law that to constitute an offence under Section 138, NI
Act, the following ingredients are required to be fulfilled:
I. drawing of the cheque by a person on an account maintained by him with a banker,
II. The cheque was issued for payment to another person for discharge in whole/part any
debt or liability;
III. Cheque has been presented to the bank within a period of six months from the date on
which it is drawn or within the period of its validity whichever is earlier. RBI in its
notification DBOD.AML BC.No.47/14.01.001/2011-12 has reduced the aforesaid period
from 6 months to 3 months.
IV. Returning of the cheque unpaid by the drawee bank for want of sufficient funds to the
credit of the drawer or any arrangement with the banker to pay the sum covered by the
cheque;
V. Giving notice in writing to the drawer of the cheque within 30 days of the receipt of
information by the payee from the bank regarding the return of the cheque as unpaid
demanding payment of the cheque amount;
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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.
12. 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 orPUSHP LATA v. SAURABH DASS
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proved by the complainant and thereafter the burden is shifted upon the accused to prove
otherwise.
Appreciation of evidence and marshalling of facts:
13. Issuance of cheque: The complainant has filed on record the original cheque, i.e.,
bearing no. 478952 dated 04.11.2019 for Rs. 14,95,000/- drawn on Axis Bank Ltd., CR
Park, New Delhi-110019 (Ex. CW1/A). In notice under Section 251 CrPC, the accused
has admitted that the cheque in dispute belongs to him. It is also not disputed that the
cheque in question is not drawn on the account maintained by the accused person and it is
impliedly admitted therefore that the accused is the drawer of the cheque. Therefore,
ingredient number I stands fulfilled in the present case.
14. Presentment and dishonor of cheque: As per the RBI guidelines, it is essential for
the cheque in question be to presented within a period of three months from the date on
which they are drawn and the same be returned as unpaid by the drawee bank for want of
sufficient funds to the credit of the drawer or any arrangement with the banker to pay the
sum covered by the cheque. In the case at hand, the cheque in question was returned vide
return memo dated 15.11.2019 (Ex. CW1/B) due to the reason “Funds Insufficient.” By
implication thereof, the cheque was presented within three months and the same was
returned. Therefore, Ingredient number III & IV stand fulfilled in the present case.
15. Legal demand notice and payment by the accused thereof: The legal notice dated
10.12.2019 (Ex. CW1/C) was dispatched on 10.12.2019 vide speed post (Ex. CW1/D),
i.e., 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 cheque in question is not disputed. The accused has admitted to the
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receipt of legal demand notice in notice u/s 251 CrPC. Furthermore, as per the
presumption raised under Section 114 of Indian Evidence Act, 1872 and Section 27 of
General Clauses Act, if the legal demand notice is sent at the correct address, then the
same shall be deemed to have been duly served, as per the precedent laid down by the
Hon’ble Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC
(Cri). The ingredient number V is fulfilled by virtue of giving of legal demand notice
within 30 days from the bank return memo. The receipt of legal demand notice by the
accused is deemed to be admitted as per the discussion above.
16. 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.
Presumption under Section 118A read with Section 139, NI Act
17. 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. 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 Supreme Court of India in its judgment titled Rangappa Vs. Sri Mohan,
(2010) 11 SCC 441 held that a reverse onus clause usually imposes an evidentiary burden
and not a persuasive burden and when an accused has to rebut the presumption under
Section 139, the standard of proof for doing so is that of “preponderance of
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probabilities”. Therefore, if the accused is able to raise a probable defence which creates
doubts about the existence of a legally enforceable debt or liability, the prosecution can
fail. It was further held that the accused can rely on the materials submitted by the
complainant in order to raise such a defence and it is conceivable that in some cases the
accused may not need to adduce evidence of his/her own. 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 the complainant in this case is
that of “beyond reasonable doubt.”
18. The accused can rebut the presumption as raised under Section 138, 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 demolishing the case of the complainant.
Rebuttal of Presumption by Accused as to existence of legally enforceable debt
19. In light of the above discussion, since the accused has admitted to issuance of cheque,
admitted the signatures on the cheque and legal notice has also been deemed to be served,
what is left to be seen is whether the accused has been able to rebut the presumption
against him, i.e., whether the accused is able to raise a probable defence which creates
doubts about the existence of a legally enforceable debt?
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20. The case of the complainant is that the accused had taken a loan of Rs. 14,95,000/-
from the complainant in 2017 for a period of one year and the accused issued a cheque to
discharge his liability, which got dishonoured.
The case of the accused is that he only took a loan of Rs. 2,50,000/- from the husband of
the complainant in two installments and he has already repaid it in half.
The accused has been consistent in his defence since the stage of notice u/s 251 CrPC.
The consistency in the defence of the accused indicates the credibility of the accused and
further strengthens his case.
21. Qua the defence of financial capacity of the complainant to lend the sum of Rs.
14,95,000/- to the accused person, the complainant has stated that the same was advanced
by the complainant in installments after withdrawing from his bank account. Later, the
complainant stated that he has advanced the said loan to the accused after selling a
property. However, the complainant has not placed anything on record such as his
statement of accounts or ITR or the property documents to indicate that he had enough
financial income to extend money to the accused, who he did not even have any family
relations with. The complainant has nowhere disclosed the means from which he has
collected the sum of Rs. 14,95,000/- to advance to the accused person. The complainant
in his cross-examination dated 06.02.2024 has further stated:
“I used to do export business at the time of advancing the loan. I had not filed any record
regarding the said business. I had given the said loan from the account of my wife namely
Ms. Pushp Lata. My wife was housewife at the time of advancing the loan. I used to file
ITR but I had not filed the same. I had no any source of income when I advanced the loanPUSHP LATA v. SAURABH DASS Digitally signed by
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to the accused. I had advanced the loan to the accused after selling my property. I do not
remember this fact in my complaint regarding the sale of property….”
“…I do not aware whether I had filed any statement of bank of the said loan in this
case…”
“…It is wrong to suggest that I had not advanced the loan to the accused by selling of the
property as I had not mentioned the same in my complaint. It is correct that I and my wife
not have any source of income when I advanced the loan to the accused…”
From the above, it is evident that the complainant did not have enough funds to advance
such a huge sum of money to the accused and he admittedly did not have any source of
income at the time of advancement of the loan. The complainant has not produced any
relevant documents to indicate his source of funds for advancing the same to the accused.
Furthermore, it seems highly imprudent for a man to extend such a big sum of money to
an acquaintance without any legitimate ground and without any agreement or security.
22. In the case of APS Forex Service Private Limited vs Shakti International Fashion
Linkers, AIR 2020 SC 945, the Hon’ble Apex Court observed that:
“When the proceedings were initiated under Section 138 of the
N.I. Act the accused denied the debt liability and the accused
raised the defence and questioned the financial capacity of the
complainant. To that, the complainant failed to prove and
establish his financial capacity. Therefore, this Court was
satisfied that the accused had a probable defence and
consequently in absence of complainant having failed to provePUSHP LATA v. SAURABH DASS Digitally signed by
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his financial capacity, this Court acquitted the accused. In the
present case, the accused never questioned the financial
capacity of the complainant. We are of the view that whenever
the accused has questioned the financial capacity of the
complainant in support of his probable defence, despite the
presumption under Section 139 of the N.I. Act about the
presumption of legally enforceable debt and such presumption
is rebuttable, thereafter the onus shifts again on the
complainant to prove his financial capacity and at that stage
the complainant is required to lead the evidence to prove his
financial capacity, more particularly when it is a case of
giving loan by cash and thereafter issuance of a cheque.”
Similarly, in K. Subramani vs. K. Damodar Naidu, (2015) 1 SCC 99, it was observed
that:
“In the present case the complainant and the accused were
working as Lecturers in a Government college at the relevant
time and the alleged loan of Rs.14 lakhs is claimed to have
been paid by cash and it is disputed. Both of them were
governed by the Government Servants’ Conduct Rules which
prescribes the mode of lending and borrowing. There is nothing
on record to show that the prescribed mode was followed. The
source claimed by the complainant is savings from his salary
and an amount of Rs.5 lakhs derived by him from sale of site
No.45 belonging to him. Neither in the complaint nor in thePUSHP LATA v. SAURABH DASS
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chief-examination of the complainant, there is any averment
with regard to the sale price of site No.45. The concerned sale
deed was also not produced. Though the complainant was an
income-tax assessee he had admitted in his evidence that he
had not shown the sale of site No.45 in his income-tax return.
On the contrary the complainant has admitted in his evidence
that in the year 1997 he had obtained a loan of Rs.1,49,205/-
from L.I.C. It is pertinent to note that the alleged loan of Rs.14
lakhs is claimed to have been disbursed in the year 1997 to the
accused. Further the complainant did not produce bank
statement to substantiate his claim. The trial court took into
account the testimony of the wife of the complaint in another
criminal case arising under Section 138 of the N.I. Act in which
she has stated that the present appellant/accused had not taken
any loan from her husband. On a consideration of entire oral
and documentary evidence the trial court came to the
conclusion that the complainant had no source of income to
lend a sum of Rs.14 lakhs to the accused and he failed to prove
that there is legally recoverable debt payable by the accused to
him. In our view the said conclusion of the trial court has been
arrived at on proper appreciation of material evidence on
record. The impugned judgment of remand made by the High
Court in this case is unsustainable and liable to be set aside.”
Therefore, in cases in which the impugned loan transaction is in cash, the accused can
raise a probable defence by questioning the financial capacity of the complainant, and
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once the said question is raised, the onus shifts on the complainant to prove his financial
capacity. In the present case, admittedly, no documents were placed on record to show
that the complainant was having sufficient funds with him to advance such a huge sum of
money when he does not have a stable monthly income. Further, such a huge sum was
provided by the complainant to the accused without any source of income, and that too
without any security, which cannot be equated with the conduct of a prudent man acting
in similar circumstances. The complainant has admitted that he only knew the accused as
a friend and to think that he would go to the extent of lending the sum to the accused by
arranging money over several months and paying in installments without having any
stable income seems improbable.
23. Furthermore, the complainant in his complaint has nowhere mentioned about
advancement of loan by selling the property, however the same was mentioned by the
husband of the complainant in his cross-examination. Moreover, there are several
contradictions in the testimony of the complainant qua the advancement of loan to the
accused in several installments. It is an established rule of law that contradictions in the
testimony of a witness affects his credibility and therefore the conduct of the complainant
has led to his testimony becoming incredible and has led to the mandatory presumption
u/s 139, NI Act being rebutted.
24. The complainant has neither brought any documentary evidence to indicate the loan
advanced to the accused person, nor has brought any complainant witness to corroborate
his case. In view of the aforesaid findings and analysis, this court has arrived at an
irresistible conclusion that the accused has been able to cast a shadow of reasonable
doubt upon the case of the complainant by rebutting the mandatory presumption resting
in its favour and by several inconsistencies in the version of the complainant. Once the
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accused had created a probable defence as to the legally enforceable liability, the onus
shifted on the complainant to prove the existence of legally enforceable liability of the
accused, as on the date of the drawal or presentation of the impugned cheques, which has
not been fulfilled by the complainant in the present case. Since this basic ingredient
which is pivotal to attract liability under Section 138 NI Act has not been proved by the
complainant, accordingly, no offence of dishonour of the impugned cheque under the said
Section is made out.
25. In light of the discussion above, ingredient no. II has also not been fulfilled in the
present case.
Conclusion:
26. In view of the aforesaid discussion, the accused Saurabh Dass has been successful in
establishing a probable defence on a standard of preponderance of probabilities to rebut
the presumption under Section 118 and 139 of the NI Act by establishing a probable
defence and as a consequence and questioning the existence of legally enforceable
liability in favour of the complainant qua the cheque in question. In the result of the
analysis of the present case, the accused Saurabh Dass is hereby acquitted of the offence
punishable under Section 138, Negotiable Instruments Act, 1881.
PRONOUNCED IN THE OPEN COURT Digitally signed by
AASTHA AASTHA SHARMA
SHARMA Date: 2025.07.26
16:31:31 +0530
TODAY ON 26th July, 2025 (AASTHA SHARMA)
JMFC, (NI-Act) -03/SE/ND
New Delhi
This judgment consists of 17 pages and all pages are duly signed by me
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