Delhi District Court
Shriram Transport Finance Co.Ltd vs Dashrath on 11 March, 2025
IN THE COURT OF Ms. AASTHA SHARMA, LD. JMIC (N.I. Act)-09,
SOUTH-WEST DISTRICT, DWARKA COURTS COMPLEX:
DELHI
M/s Shriram Transport Finance Co. Ltd. v. Dasrath
CC No. 29992/2019
U/S 138 Negotiable Instruments Act, 1881
1. CNR number DLSW02-041811-2019
2. Name of the complainant and SHRIRAM TRANSPORT FINANCE
the address COMPANY LTD.
HAVING ONE OF ITS'S BRANCH
OFFICE AT: G-2, 2ND FLOOR, NEW
MAHAVIR NAGAR, OPPOSITE
METRO PILLAR NO.551,
JANAKPURI, NEW DELHI - 110058
Digitally signed by
AASTHA AASTHA SHARMA
SHARMA Date: 2025.03.11
16:41:23 +0530
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 1
3. Name of the accused DASRATH
person(s), parentage &
R/O 26-27, SUBHASH CHOWK,
residential address
LAXMI NAGAR, DELHI
4. Offence complained of or U/s 138 of Negotiable Instruments Act,
proved 1881
5. Plea of the accused Pleaded not guilty and claimed trial
6. Final Judgment/order Convicted
7. Date of judgment/order 11.03.2025
Date of Institution: 14.08.2019
Date of Reserving Judgment/Order: 04.02.2025
Date of Pronouncement of Judgment/Order: 11.03.2025
Digitally signed
ARGUING COUNSELS: by AASTHA
SHARMA
AASTHA Date:
SHARMA 2025.03.11
16:41:31
+0530
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 2
Ld. Counsel for the complainant: Sh. Abhishak Agarwal
Ld. Counsel for the Accused: Sh. Roshan Kumar
JUDGMENT
1. Vide this judgment, this Hon’ble Court shall dispose of the present complaint
filed by the complainant M/s Shriram Transport Finance Co. Ltd. (hereinafter
referred to as “complainant”) against Sh. Dasrath (hereinafter “accused”) under
Section 138 of the 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 complainant is a company registered under the Companies Act, 1956,
having its registered office at 3rd Floor, Mookambika Complex, No. 4, Lady
Desika Road, Mylapore, Chennai-600004, and having one of Branch Office at G-2,
Second Floor, New Mahavir Nagar, Opposite Metro Pillar 551, Janakpuri, New
Delhi-110058 and engaged in the business of financing, leasing, amongst other
businesses.
B. That, the accused approached the complainant company for the purchase of a
vehicle bearing registration no. DL4CNE-3896, to which the complainant agreed
for financial assistance subject to conditions of the Loan-cum-Hypothecation
Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:41:40 +0530Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 3
Agreement no. MAYUVO809270001 and the accused agreed to pay monthly
EMIs as per the schedule of agreement on time.
C. That the accused in discharge of his part legally enforceable liability, issued a
cheque bearing no. 181126 dated 26.06.2019 for Rs. 61,767/-, drawn on Oriental
Bank of Commerce, Vikas Marg Branch, Laxminagar, Delhi-110092 in favor of
the complainant and the accused while issuing the said cheque, assured the
complainant that the said cheque would be encashed without any difficulty.
D. That, on presentation of the aforesaid cheque in his bank Axis Bank Ltd.,
Dwarka, Sector 12B, New Delhi-110078 for encashment, the cheque was returned
dishonoured with the remarks “Funds Insufficient” vide returning memo dated
28.06.2019.
E. That, the complainant company got issued a statutory legal demand notice to the
accused through his counsel, dated 17.07.2019, 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 Post and Speed Post on 18.07.2019 at his correct address. It is
further submitted by the complainant that the said notice was duly served on the
accused person.
F. That 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
Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:41:47 +0530Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 4
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 and the accused was summoned vide order dated 01.10.2019.
Thereafter, the accused entered into an appearance on 04.03.2021 and was granted
bail. On 01.10.2022, 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 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 : Denied but admitted to the address on the
legal demand notice being his correct addressIn his defense, the accused has stated that he took a loan of Rs. 1,50,000/- from the
complainant and had issued one blank signed security cheque to the complainant as
security. The accused has further stated that he has already paid back Rs. 40,000/-
to the complainant. The accused has further stated that the complainant has issued
Digitally
signed by
AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:41:55
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one policy in the name of the accused and extorted money from the accused. The
accused has further stated that the complainant has misused my cheque in question.
4. Vide a separate statement of the accused person, the admissions and denials u/s
294 CrPC was recorded in which they admitted that the cheque belonged to them
and the same has been dishonoured and the genuineness and correctness of postal
receipt. Therefore, the witnesses at number 2 and 3 in the list of complainant’s
witnesses were dropped.
5. 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 :-
● Copy of Power of Attorney is exhibited as Ex. CW1/A (OSR).
● Original Cheque is Ex. CW1/B.
● Cheque return memo is Ex. CW1/C.
● Copy of Legal Notice is Ex-CW1/D & Original Postal receipt is Ex-
CW1/E.
● Copy of company incorporation certificate is Mark 1.
● Tracking Report is Mark 2.
Thereafter, the accused was granted an opportunity to cross-examine the
complainant under Section 145(2), NI Act and the complainant was duly cross-
Digitally
signed by
AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:02
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examined by the Ld. Counsel for accused. Thereafter, CE was closed vide order
dated 18.03.2023.
6. 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.
7. The accused did not opt to lead defence evidence and DE was closed by the
order of this court vide a separate statement of the Ld. Counsel for the accused on
28.04.2023.
8. Thereafter, the matter was listed for final arguments. After hearing the final
arguments from both sides and on the basis of the written submissions on record by
both the parties, the matter was reserved for pronouncement of judgment.
Arguments advanced by both the parties:
9. Ld. Counsel for the complainant while reiterating the facts of the complaint, has
stated that the accused has admitted to the loan in question and has only paid Rs.
35,000/- out of Rs. 1,47,000/-, therefore the accused owes the legally enforceable
liability to the tune of the cheque in question.
10. Ld. Counsel for the complainant 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
Digitally
signed by
AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:08
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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.
11. Per contra, Ld. Counsel for the accused in his final arguments has argued that
the complainant does not have the territorial jurisdiction to file the case in Dwarka
courts as the return memo has been stamped by Mayur Vihar branch. Ld. Counsel
for the accused further argues that the complainant has not placed anything on
record to indicate that the complainant has presented the cheque in Dwarka branch
and therefore they have the jurisdiction to file the present complaint in Dwarka
Courts.
12. The Ld. Counsel for the accused, in consequence, has prayed that the accused
be acquitted.
Appreciation of evidence:
13. I have heard counsels on behalf of both the sides, perused the record as well as
relevant provisions of law.
14. Before appreciating the facts of the case in detail for the purpose of decision,
let relevant position of law be discussed first. Section 138, NI provides as under:
“Section 138.- Dishonour of cheque for insufficiency, etc., of funds in the
account.-
Where any cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other liability, is
Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:15 +0530Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 8
returned by the bank unpaid, either because of the amount of money standing to the
credit of that account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be punished with imprisonment for a
term which may be extended to two years, or with fine which may extend to twice
the amount of the cheque, or with both:”
Provided that nothing contained in this section shall apply unless:
(A) The cheque has been presented to the bank within a period of six months from
the date on which it is drawn or within the period of its validity, whichever is
earlier;
(B) The payee or the holder in due course of the cheque, as the case may be, makes
a demand for the payment of the said amount of money by giving a notice in
writing, to the drawer of the cheque, within thirty days of the receipt of
information by him from the bank regarding the return of the cheque as unpaid;
and
(C) The drawer of such cheque fails to make the payment of the said amount of
money to the payee or, as the case may be, to the holder in due course of the
cheque, within fifteen days of the receipt of the said notice.
Explanation — for the purposes of this section, “debt or other liability” means a
legally enforceable debt or other liability. Digitally
signed by
AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:23
+0530Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 9
15. 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;
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. Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:30 +0530Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 10
16. In the present case at hand, the complainant has filed on record the original
cheque, i.e., bearing no. 181126 dated 26.06.2019 for a sum of Rs. 61,767/-, drawn
on Oriental Bank of Commerce, Vikas Marg, Laxmi Marg, Delhi-110092 (Ex.
CW1/B). 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.
17. 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, i.e., Ex. CW1/B
dated 26.06.2019 was returned vide return memo dated 28.06.2019 due to the
reason “Funds Insufficient”. By implication thereof, the cheque was presented
within three months and the same was returned for want of sufficient funds to the
credit of the drawer. Therefore, Ingredient number III & IV stand fulfilled in the
present case.
18. The legal notice dated 17.07.2019 (Ex. CW1/D) was dispatched on 18.07.2019
by Speed Post (Ex. CW1/E), i.e., within 30 days of return of the bank memo
indicating cheque 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 not admitted to the receipt of legal demand notice
in notice u/s 251 CrPC, however, he has admitted that the address on the legal
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 11
Digitally signed
AASTHA by AASTHA
SHARMA
SHARMA Date: 2025.03.11
16:42:38 +0530
demand notice bears his correct address. 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),
“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 GC Act and Section 114 of the Evidence Act.”
In K. Bhaskaran vs Sankaran Vaidhyan Balan and Anr, Appeal (crl.) 1015 of 1999
(SC) (hereinafter referred to as “K. Bhaskaran”), the Hon’ble SC observed:
“On the part of the payee he has to make a demand by `giving a notice’ in writing.
If that was the only requirement to complete the offence on the failure of the
drawer to pay the cheque amount within 15 days from the date of such `giving’ the
travails of the prosecution would have been very much lessened. But the legislature
says that failure on the part of the drawer to pay the amount should be within 15
days `of the receipt’ of the said notice. It is, therefore, clear that `giving notice’ in
the context is not the same as receipt of notice.”
The burden of giving notice within 30 days of return of bank memo, falls on the
complainant/payee to constitute the offence u/s 138, NI Act. If the notice is sent on
Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:45 +0530Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 12
the correct address, then the presumption u/s 27 General Clauses Act and Section
114, Indian Evidence Act arises in the favour of the complainant/payee.
Therefore, it is deemed that the legal notice was duly served on the accused person.
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.
19. 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.
20. Let us now move on to ingredient number II,
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.
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. Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:52 +0530Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 13
II. The presumption under Section 139 is a rebuttable presumption and the onus is
on the accused to raise the probable defence. The standard of proof for rebutting
the presumption is that of preponderance of probabilities.
III. To rebut the presumption, it is open for the accused to rely on evidence led by
him or accused can also rely on the materials submitted by the complainant in
order to raise a probable defence. Inference of preponderance of probabilities can
be drawn not only from the materials brought on record by reference to the
circumstances upon which they rely.
IV. That it is not necessary for the accused to come in the witness box in support of
his defence. Section 139 imposes an evidentiary burden and not a persuasive
burden.
It is therefore implied that the law regarding the presumption for the offence under
Section 138, NI Act, the presumptions under Section 118(a) and Section 139 have
to be compulsorily raised as soon as the execution of cheque by the accused is
admitted or proved by the complainant and thereafter the burden is shifted upon the
accused to prove otherwise.
21. These presumptions shall end only when the contrary is proved by the accused,
that is, the cheque was not issued for consideration and in discharge of any debt or
liability etc. The Hon’ble Apex Court in Kumar Exports v. Sharma Carpets [(2009)
2 SCC 513], has laid down the benchmark for the burden of proof that the accused
has to raise a doubt as to the presumption under Section 139, NI Act.
Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:42:58 +0530
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 14
“The accused in a trial under Section 138 of the Act has two options. He can either
show that consideration and debt did not exist or that under the particular
circumstances of the case the non-existence of consideration and debt is so
probable that a prudent man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions, an accused is not expected to prove
his defence beyond reasonable doubt as is expected of the complainant in a
criminal trial. The accused may adduce direct evidence to prove that the note in
question was not supported by consideration and that there was no debt or liability
to be discharged by him. However, the court need not insist in every case that the
accused should disprove the non-existence of consideration and debt by leading
direct evidence because the existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare denial of the passing of the
consideration and existence of debt, apparently would not serve the purpose of the
accused. Something which is probable has to be brought on record for getting the
burden of proof shifted to the complainant. To disprove the presumptions, the
accused should bring on record such facts and circumstances, upon consideration
of which, the court may either believe that the consideration and debt did not exist
or their non-existence was so probable that a prudent man would under the
circumstances of the case, act upon the plea that they did not exist. Apart from
adducing direct evidence to prove that the note in question was not supported by
consideration or that he had not incurred any debt or liability, the accused may also
rely upon circumstantial evidence and if the circumstances so relied upon are
compelling, the burden may likewise shift again on to the complainant. The
accused may also rely upon presumptions of fact, for instance, those mentioned in
Section 114 of the Evidence Act to rebut the presumptions arising under Sections
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 15
Digitally signed
by AASTHA
SHARMA
AASTHA Date:
SHARMA 2025.03.11
16:43:07
+0530
118 and 139 of the Act. The accused has also an option to prove the non-existence
of consideration and debt or liability either by letting in evidence or in some clear
and exceptional cases, from the case set out by the complainant, that is, the
averments in the complaint, the case set out in the statutory notice and evidence
adduced by the complainant during the trial. Once such rebuttal evidence is
adduced and accepted by the court, having regard to all the circumstances of the
case and the preponderance of probabilities, the evidential burden shifts back to the
complainant and, thereafter, the presumptions under Sections 118 and 139 of the
Act will not again come to the complainant’s rescue.”
To put in a nutshell, the intent behind the NI Act is to prevent financial frauds and
affect the socio-economic well-being of the country. If the burden is placed on the
complainant to prove the existence of liability against the accused, that would be
too heavy a burden as most of these transactions are in the nature of “friendly loan”
and the accused would, in a normal circumstance, always deny the liability.
Therefore, the legislation is drafted in a way so as to discharge the complainant
from proving the liability and a presumption is raised by virtue of Section 139 read
with Section 118(a) of the Act that the cheque if issued by the accused, then the
same is deemed to be in discharge of some legally enforceable debt in favour of the
complainant. The presumption is rebuttable and the accused “may” either prove
that no legally enforceable debt existed or punch holes in the story of the
complainant and give rise to a probable defence to rebut the presumption. As per
the law discussed above, the burden of proof on the accused to raise a probable
defence is that of “preponderance of probabilities”, and not “beyond reasonable
doubt.” Once a probable defence is raised, then the onus is shifted to theCt. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 16
Digitally signed
by AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:43:14 +0530
complainant to establish that a legally enforceable liability existed in his favour
and the burden of proof on complainant in this case is that of “beyond reasonable
doubt.”
22. The accused can rebut the presumption as raised under the NI Act by (a)
putting forth his defence at the time of framing of notice u/s 251 CrPC; (b) cross-
examining the complainant; (c) when statement of accused is recorded u/s 313
CrPC; (d) or by leading defence evidence, thereby demolishing the case of the
complainant. It is amply clear that the accused does not need to discharge his or
her liability beyond the shadow of reasonable doubt. He just needs to create holes
in the case set out by the complainant. Accused can say that the version brought
forth by the complainant is inherently unbelievable and therefore the prosecution
cannot stand.
23. 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?
24. The case of the complainant is that the accused had borrowed a sum of Rs.
1,50,000/- as vehicular loan from the complainant, out of which certain
installments were admittedly paid by the accused but the accused defaulted on the
remaining payments. The cheque in question is for the part liability owed by the
accused to the complainant. The accused in the present case has not denied the loan
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 17
Digitally signed
by AASTHA
SHARMA
AASTHA Date:
SHARMA 2025.03.11
16:43:24
+0530
procured from the complainant. The accused has further not denied the issuance of
the cheque in question or his signatures on the cheque in question. The primary
defence of the accused is that the present complaint has been filed beyond its
territorial jurisdiction and therefore the present complaint is not maintainable.
25. It is an established principle of law that lack of territorial jurisdiction shall not
lead to vitiating of proceedings or order of the court, unless it has the effect of
causing failure of justice. A bare reading of Section 460 CrPC read with Section
462 CrPC provides that if the cognizance of an offence is taken erroneously in
good faith under Clause (a) of Section 190(1) CrPC by a court not having
jurisdiction, then also any finding, sentence or order of the criminal court shall not
be set aside only on the ground that inquiry, trial or other proceedings have been
arrived at in the wrong court, unless there is failure of justice.
The Hon’ble Apex Court has also reiterated that time and again in several
judgments. Recently in the case of M/s Shri Sendhuragro and Oil Industries Pranab
Prakash v. Kotak Mahindra Bank Ltd., 2025 LiveLaw (SC) 292, it was also
observed that:
“Thus, although no rigid and inflexible rule or test could be laid down to decide
whether or not the power under Section 406 Cr.P.C should be exercised, yet it is
manifest from a bare reading of sub-sections (2) and (3) of the said section and on
an analysis of the decisions of this Court that an order of transfer of trial is not to
be passed as a matter of routine and more particularly on the plea of lack of
territorial jurisdiction of the court to try the offence under Section 138 of the N.I.Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 18
Digitally signed
by AASTHA
SHARMA
AASTHA Date:
SHARMA 2025.03.11
16:43:31
+0530
Act. This power has to be exercised cautiously and in exceptional situations, where
it becomes necessary to do so to provide credibility to the trial.”
As per the above discussion, it is clear that lack of territorial jurisdiction is not an
incurable defect which will vitiate the trial and affect the merits of the case. None
of the ingredients u/s 138, NI Act also discuss territorial jurisdiction as an essential
ingredient and territorial jurisdiction is divided for the sake of convenience.
Furthermore, the complainant in his evidence by way of affidavit as CW-1 has
stated that their bank branch is in Sector 20, Dwarka and they have also placed on
record statement of accounts of the bank account maintained by the complainant in
Axis Bank, Sector 20 Dwarka. Therefore this defence of the accused person that
the complainant did not have territorial jurisdiction to file the present complaint
and therefore the complaint is not maintainable is not tenable in law.
26. Moving on, the accused has admitted that he has procured a loan of Rs.
1,50,000/- from the complainant, out of which he has admitted to have paid Rs.
35000/- to Rs. 40000/- to the complainant. Therefore what remains to be seen is
whether the accused owes the liability to the tune of the amount mentioned in the
cheque in question?
The accused has admitted to taking the loan in question from the complainant
company, which is the loan in question. The accused has admitted to the issuance
of the cheque in question and the signature on the cheque in question.
As per the discussion above in the cases of Basalingappa (2019, supra) and Kumar
Exports (2009, supra), once the presumption is raised u/s 118 read with Section
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 19
Digitally signed
by AASTHA
SHARMA
AASTHA Date:
SHARMA 2025.03.11
16:43:37
+0530
139, NI Act that the cheques were issued for consideration, i.e., for a legally
enforceable debt in favour of the complainant, then onus of proof shifts to the
accused to rebut the presumption by raising a probable defence. The accused has
not brought anything on record such as statement of accounts etc. to indicate that
he does not owe any liability to the complainant.
27. In the present case, the accused has failed to even create any doubt, let alone
discharging his burden of proof to rebut the presumption u/s 139, NI Act. Further,
the accused is obliged to set up a probable defence and not a possible defence, i.e.,
there should be some credible material or circumstance on record to show that the
defence taken by the accused is a probable one. In the present case, firstly, the
accused has not brought any witness on record nor brought any documentary
evidence on record. It is the duty of the accused to punch holes in the story of the
complainant which he has not been able to do. Secondly, the complainant has
brought documentary evidence so as to prove his version of the story alongwith the
benefit of presumption raised u/s 139, NI Act in his favour.
28. In light of the discussion above, this Court is of the view that the accused has
not been able to rebut the presumption against him and therefore ingredient no. II
has been fulfilled in the present case.
29. Accordingly, all the ingredients required for conviction u/s 138, NI Act stands
established against the accused.
Digitally
signed by
Conclusion: AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:43:48
+0530
Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 20
30. In view of the evidence adduced, documents put forth and arguments advanced
by the parties and further in view of the above discussion, the court is of the
considered view that accused Sh. Dasrath is guilty of offence under Section 138 of
Negotiable Instruments Act, 1881 and accordingly, accused is hereby convicted
under Section 138 of Negotiable Instruments Act, 1881.
PRONOUNCED IN THE OPEN COURT TODAY ON 11.03.2025
This judgment consists of 21 pages and all are duly signed by me.
Digitally
signed by
AASTHA
AASTHA SHARMA
SHARMA Date:
2025.03.11
16:43:55
+0530(Aastha Sharma)
Judicial Magistrate-Ist Class
(NI Act)-09/South-West,
Dwarka/11.03.2025Ct. Cases No. 29992/2019 M/s Shriram Transport Finance Co. Ltd. v. Dashrath 21
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