Delhi District Court
Sumit Batra vs Zeeshan Khan on 21 January, 2025
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
DLSE010068662024
CRL. APPEAL No. 230/2024
ZEESHAN KHAN
S/o Late Sh. Walluddin
R/o RZ-1485-B, Gali No. 28,
Tughlakabad Extension,
New Delhi-110019
....Appellant
VERSUS
SUMIT BATRA
S/o Sh. Sadan Batra
R/o Shop No. 2, Central Market,
DDA Flats, Kalkaji,
New Delhi-110019.
...Respondent
Date of institution : 08.07.2024
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DLSE010064672024
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 1/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
Digitally
signed by
LOVLEEN
LOVLEEN Date:
2025.01.22
15:32:24
+0530
CRL. REV. No. 330/2024
SUMIT BATRA
S/o Sh. Sadan Batra
R/o Shop No. 2, Central Market,
DDA Flats, Kalkaji,
New Delhi-110019.
....Revisionist / Complainant.
VERSUS
ZEESHAN KHAN
S/o Late Sh. Walluddin
R/o RZ-1485-B, Gali No. 28,
Tughlakabad Extension,
New Delhi-110019
...Respondent
Date of institution : 01.07.2024
Date of Reserving judgment : 06.11.2024
Date of Pronouncement : 21.01.2025
Decision : Dismissed.
JUDGMENT
1. Vide this common judgment, this court shall dispose of these 02
connected matters arising out of CC No. 5641/2021 titled Sumit Batra Vs.
Zeeshan Khan. The said complaint was filed on account of commission of
an offence punishable u/s 138 Negotiable Instruments Act and the same
came to be disposed of by the Ld. Metropolitan Magistrate (N.I. Act),
LOVLEEN Digital Court-01, South-East District vide a judgment dated 30.04.2024 and
Digitally signed
by LOVLEEN
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra
Date: 2025.01.22
15:32:29 +0530 2/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
order on sentence dated 06.06.2024. Vide the said judgment, the Ld.
Metropolitan Magistrate was pleased to convict the appellant Zeeshan
Khan u/s 138 of Negotiable Instruments Act (hereinafter referred to as NI
Act). The Ld. Metropolitan Magistrate was then pleased to impose a fine of
Rs. 6,00,000/- upon the appellant Zeeshan Khan, all of which is payable to
revisionist / complainant Sumit Batra as compensation within two months
from the date of sentence, failing which appellant Zeeshan Khan is to
undergo simple imprisonment for three months. Appellant Zeeshan Khan
has filed his appeal u/s 374 Cr.P.C. / 415 of BNSS as he is aggrieved by his
conviction. Revisionist Sumit Batra has filed the petition as he is aggrieved
due to inadequate punishment and compensation awarded by the Ld.
Metropolitan Magistrate at the time of disposal of his complaint. For the
sake of convenience, the appellant Zeeshan Khan shall be referred to as
‘accused’ and the revisionist Sumit Batra herein shall be referred to as
‘complainant’.
BRIEF FACTS
2. The facts of the case put forth by the complainant against the
accused have been correctly noted by the Ld. Magistrate in her impugned
judgment. The relevant paragraphs are reproduced hereinafter for ready
reference:-
“1. The present complaint has been filed by the complainant
Sumit Batra against the accused person Zeeshan Khan under
Digitally
signed by
LOVLEEN
LOVLEEN Date:
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
2025.01.22
15:32:34
+0530 referred to as “NI Act“). The substance of allegations and
assertions of the complainant is that the accused vide agreement
to sell & purchase dated 14.01.2021 had agreed to sell the Ground
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Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
Floor shop no. RZ-58-G, Gali No.28, Tughlakabad Extension,
New Delhi-110019 (hereinafter referred to as “property”) to the
complainant and received an amount of Rs. 4,00,000/- as part sale
consideration. Subsequently, when the accused had failed to
deliver the vacant possession of the property to the complainant
the agreement to sell and purchase executed between the parties
was cancelled vide settlement dated 26.02.2021. In order to return
the amount of Rs. 4 Lakh received by the accused as part
consideration he issued the cheque bearing no. 000396 dated
26.02.2021 for a sum of Rs. 4,00,000/- drawn on DCB Bank
Limited, Greater Kailash, New Delhi- 110048 (hereinafter
referred to as “Cheque in question”). The complainant presented
the aforementioned cheque for encashment on 02.03.2021 with
his banker. The said cheque in question was returned dishonoured
on presenting with the remarks “Refer to Drawer” vide return
memo dated 03.03.2021. The complainant thereafter issued a legal
demand notice dated 02.04.2021 for the cheque in question which
was duly served upon the accused. Despite service, the accused
LOVLEEN failed to repay the cheque amount within the stipulated period and
Digitally signed hence, the present complaint has been filed under section 138 of
by LOVLEEN
Date:
2025.01.22 the NI Act." 15:32:38 +0530 TRIAL
3. Vide order dated 24.11.2021, the Ld. Metropolitan Magistrate
summoned the accused to face trial u/s 138 NI Act. On 01.06.2022, a notice
u/s 251 Cr.P.C. was framed upon the accused wherein he admitted his
signatures on the cheque but claimed that he did not fill any particulars (in
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 4/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
the cheque). He further claimed that the cheque was blank. He also
admitted receipt of demand notice from the complainant. However, in
defence, he submitted that:- “I and the complainant used to do property
business. The complainant is known to me. I had signed a number of
cheques and kept them in my drawer. The complainant has misused the
cheque in question which was kept in my drawer without my permission. I
got to know about the cheque in question when I received the legal demand
notice. I have not entered into any settlement with the complainant.”
4. The complainant examined himself as CW-1 in support of his
allegations against the accused in this case. Statement of accused was
recorded u/s 313 Cr.P.C. In defence, the accused examined himself as
DW-1. He also examined one Veer Singh as DW-2 and one Mohd.
Mustakeem as DW-3. Upon the conclusion of trial, accused was convicted
of the offence punishable u/s 138 NI Act vide the impugned judgment
dated 30.04.2024.
GROUNDS OF APPEAL CITED BY ACCUSED ZEESHAN KHAN
5. The grounds cited by the accused against the impugned judgement
are as under :
A. Because the Ld. Trial Court failed to appreciate that
the story of the respondent/complainant apparently
Digitally
signed by
LOVLEEN appears to be false, concocted and baseless.
LOVLEEN Date:
2025.01.22
15:32:43
B. Because the Ld. Trial court failed to appreciate that
+0530
the respondent/complainant has failed to establish the
existence of any debt or liability.
C. Because the Ld. Court failed to appreciate the fact
that the appellant is not liable to pay the cheque
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 5/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
amount in question to the complainant /respondent as
the cheque in question was stolen by the respondent.
D. Because the Ld. Trial court has not appreciated the
facts that the respondent has not filed any proof of
giving 4 lakh rupees towards agreement to sell dated
14.01.2021 as part payment.
E. Because the Ld. Trial court has not appreciated the
facts that the respondent has not filed the Income tax
return for the relevant year of the advancement of
money despite demand.
F. Because the Ld. Trial Court has not appreciated the
facts that no witness was called who were present
during Agreement to Sell dated 14.01.2021.
G. Because the Ld. Trial Court has not appreciated the
facts that the complaint dated 20.12.2020 was prior to
filing of the present case which clearly means that the
appellant was not aware, who has stolen the cheque in
Digitally
signed by
question.
LOVLEEN
LOVLEEN Date:
2025.01.22
H. Because the Ld. Trial Court has not appreciated that
15:32:48
+0530
the appellant had filed the complaint bearing only
stamp which was supposed to be verified by the
concerned SHO Govindpuri.
I. Because the Ld. Trial Court has not appreciated that
the appellant informed his baker to stop the payment.
J. Because the Ld. Trail Court has not appreciated that
the court on his own compared the signature of the
appellant however it is not verified by any expert so it
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 6/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
cannot be relied.
Κ. Because the Ld. Court failed to appreciate the fact
that the appellant has not been served with any legal
notice as mandated under the NI Act. Without
prejudice, since an amount apart from the cheque in
question has been claimed in the notice, the same is
defective and not in compliance of provision of section
138 NI Act.
L. Because the Ld. Trial court has failed to appreciate
the judgment passed by Hon’ble High Court of Delhi in
Crl LP No.268/14 titled as Luminous Power
Technology Pvt Ltd Vs Vinay Aggarwal, wherein it has
been held as under:
“… The ledger account of the respondent showed the
outstanding liability as Rs.1,64,042/-. Either the cheque
would have been drawn for the said amount, or if the
same had to be made for a larger amount, i.e.
Rs.1,68.292/-, the reason for issuance of a cheque of a
Digitally
signed by larger amount would have been contemporaneously
LOVLEEN
LOVLEEN Date: recorded by the parties. Certainly, it can not be said that
2025.01.22
15:32:52 the petitioner proved the commission of the offence in
+0530
question beyond reasonable doubt, since the amount
covered by the cheque was not the debt owed to the
complainant and was more than the said amount…..”
M. Because the Ld. Trial Court failed to appreciate that
it is settled proposition of law that oral evidence is not
admissible to contradict the terms of the written
contract.
N. Because the Ld. Trial Court failed to appreciate that
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Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
it is apparent & clear that neither the amount was due
nor there was any liability at the time of issuance of the
said cheque.
O. Because the Ld. Trial Court failed to appreciate that
there was no liability at the time when the cheque was
stolen and as such there was no occasion for issuance
of cheque for discharge of liability.
P. Because the Ld. Trial Court failed to appreciate that
the respondent had failed to show any material or
evidence to establish alleged liability of Rs.4,00,000
except the stolen cheque.
Q. Because the Ld. Trial Court failed to appreciate that
no evidence was led by the respondent to prove
existence of any amount due.
R. Because the Ld. Trial Court failed to appreciate the
law laid down by the Hon’ble Supreme Court in M.S
Narayana Menon Alias Mani v/s State of Kerela and
Another reported as (2006) 6 SCC 39 , wherein the
Hon’ble Supreme Court has referred to various
judgments and discussed the case law and held that the
evidence adduced by the parties before the Ld. Trial
Digitally
Court lead to one conclusion that the appellant has
signed by
LOVLEEN
LOVLEEN Date: been able to discharge his initial burden and the burden
2025.01.22
15:32:58
+0530 thereafter shifted to the second respondent to prove his
case. The Hon’ble Supreme Court held that if the
defence is acceptable as probable the cheque therefor
cannot be held to have been issued in discharge of the
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 8/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
debt as, for example, if a cheque is issued for security
or for any other purpose the same would not come
within the purview of Section 138 of the Act.
S. Because the impugned judgment of conviction and
order on sentence referred above are against the law
and facts on records and are not sustainable as such.
T. Because the Ld. Magistrate passed on erroneous
judgment and order which is not tenable in law and is
full of surmise and conjectures.
U. Because the Ld Trial court failed to appreciate that
holding the appellant/appellant guilty U/s.138 NI Act is
bad in law and the same is contrary to the facts of the
case as the appellant, no manner under any obligation
and the respondent also failed to prove prima facie any
legal enforceable debt or liability against the appellant
to make the payment of cheque.
V. Because the Ld. Trial court failed to appreciate that
the stage of presumption under section 138 of NI Act
regarding existence of any legally enforceable debt or
liability or that the cheque has been draw for a
Digitally
signed by consideration U/s. 118(A)NI Act, comes at a later stage
LOVLEEN
LOVLEEN Date:
2025.01.22
and not prior to the compliance of basic or essential
15:33:03
+0530 ingredients of provisions of section 138 of the
Negotiable Instruments Act.
W. Because the proviso to section 138 NI Act stipulates
the basic ingredients/three distinct conditions
precedents, which must be satisfied before the
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Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
Χ. Because the Trial court failed to appreciate that the
aforesaid stipulated conditions have not been fulfilled
by the respondent/complainant. It is indicated that the
respondent/complainant although claimed to have
issued legal notice by ordinary post and service thereof
however the said averment is neither proved nor
established by the respondent /complainant during the
trial.
Y. Because the Ld MM. failed to appreciate the fact
that the respondent has misused the cheque in question
which was never issued to him.
Z. That the appellant craves leave of this Hon’ble Court
to urge any other or further additional grounds at the
stage of arguments as the copy of the complete case
Digitally
signed by records, testimonies of the witnesses and cross
LOVLEEN
LOVLEEN Date:
2025.01.22
15:33:08 examination are not available with the appellant at
+0530dishonour of a cheque can constitute an offence and
become punishable i.e.
The first condition is that the cheque ought to have
been presented to the bank within a period of 6 months
from the date on which it is drawn or within the period
of its validity whichever is earlier.
The second condition is that the payee or the holder in
due course of the cheque, as the case may be, ought to
make a demand for the payment of the said amount of
money by giving a notice in writing, 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.
The third condition is that the drawer of such a cheque
should have failed to make payment of the said amount
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 10/31
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of money to the payee or as the case may be, to the
holder in due course of the cheque within 15 days of
the receipt of the said notice.
It is indicated that only upon satisfaction of all
the three conditions mentioned above and enumerated
under the proviso to section 138 of NI Act as clause (a)
(b) and (c) thereof that an offence under section 138 NI
Act can be said to have been committed by the person
issuing the cheque.
6. It is prayed that the judgment dated 30.04.2024 and and the order on
sentence dated 06.06.2024 may be set aside.
Submissions Of Complainant Sumit Batra
7. On the other hand, Ld. Counsel for the complainant has argued that
the accused has been correctly convicted by the Ld. Magistrate. He prays
for dismissal of the appeal filed by the accused.
GROUNDS OF REVISION CITED BY COMPLAINANT
LOVLEEN SUMIT BATRA
Digitally signed
by LOVLEEN
Date: 2025.01.22
15:33:13 +0530
8. The grounds cited by the complainant against the impugned Order on
Sentence are as under :
a) That the Ld. MM has failed to appreciate that to prolong the
litigation the convict raised totally false and baseless defence
and dragged on with the case for 3 years and the punishment
given to him is not adequate and in consonance of crime
committed by him.
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 11/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
b) That the Ld. MM has failed to appreciate that the manner in
which the convict has played calculated fraud upon the
complainant, the convict deserves no leniency and on the
contrary the convict shall be given stringent punishment.
Convict purchased the shop from Shri Dharmendra Kumar
Sharma for Rs.10 Lakhs vide ATS, GPA and Receipt Dated 21-
11-2015. Subsequently, Shri Dharmendra Kumar Sharma
executed Sale Deed Dated 07-02-2017 for Rs.11.20 Lakhs in
favour of the convict. On the basis of Sale Deed Dated 07-02-
2017 convict sold the shop to Shri Veer Singh vide Sale Deed
Dated 13-06-2017 for Rs.11.30 Lakhs. Thereafter, on the basis
of original ATS, GPA and Receipt Dated 21-11-2015 of the
shop, the convict entered into ATS Dated 14-01-2021 with the
complainant for Rs.10 Lakhs and took Rs.4Lakhs as part
payment. Subsequently, ATS Dated 14-01-2021 was got
cancelled on 26-02-2021 and cheque in question was issued
which on presentation got dishonoured.
c) That the punishment awarded by the Ld. MM is not in
conformity with the law laid down by Hon’ble Supreme Court
in case titled Suganthi Suresh Kumar v. Jagdeeshan (2002 CrLJ
1003) and in case titled H. Pukhraj v. D. Parasmal [(2015) 17
SCC 368]. Also, Ld. MM has not given any reason for not
giving any imprisonment term to the convict even though under
LOVLEEN Section 138 of The Negotiable Instruments Act trial court can
give imprisonment term up to 2 years.
Digitally signed
by LOVLEEN
Date: 2025.01.22
15:33:18 +0530
d) That the Ld. MM has failed to consider that convict is using
the money of the complainant since 14-01-2021. Section 80 of
The Negotiable Instruments Act provides for interest @ 18%
p.a. Applying the said rate of interest, as on 06-06-2024 the
accrued interest comes to Rs.2,52,000/-. Furthermore, during
the trial there had been 34 court hearings for which the
complainant had paid counsel fees besides litigation expenses
for court processes and other incidental expenses totally
approximately Rs.1,50,000/- (Rupees One Lakh And Fifty
Thousand Only). Therefore, compensation amount of
Rs.6,00,000/- without any interest and litigation expenses is
highly inappropriate.
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 12/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
e) That the Ld. MM has failed to consider that inadequacy of
punishment / sentence encourages a guilty to commit a similar
crime / offence again and also erode the faith of the victim as
well as society in legal process. Therefore, the sentence
awarded to the convict vide impugned Order On Sentence is
liable to be enhanced and more stringent punishment, including
enhanced compensation amount with interest and litigation
expenses, shall be awarded to the convict.
9. It is prayed that the impugned Order on Sentence may be modified
appropriately against the accused.
DISCUSSION
10. This Court has considered the oral submissions as well as the
records.
11. Recently, the Hon’ble Supreme Court was pleased to define the
contours of the law relating to the provision u/s 138 of Negotiable
Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The
relevant extracts of the observations are reproduced below for ready
reference:-
Section 138 of the NI Act – Necessary Ingredients
25. Essentially, in all trials concerning dishonour of
cheque, the courts are called upon to consider is whether
the ingredients of the offence enumerated in Section 138 of
the Act have been met and if so, whether the accused was
Digitally
signed by
LOVLEEN
LOVLEEN Date:
able to rebut the statutory presumption contemplated by
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15:33:27
+0530 Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel (2022) 11
SCC 705 , this Court has unpacked the ingredients forming
the basis of the offence under Section 138 of the NI Act in
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the following structure:
(1) The drawing of a cheque by person on do
account maintained by him with the banker for the
payment of any amount of money to another from
that account;
(i) The cheque being drawn for the discharge in
whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank
arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank
as unpaid either because the amount of money
standing to the credit of that account is insufficient
to honour the cheque or that it exceeds the amount
Digitally
(v) A notice by the payee or the holder in due
signed bycourse making a demand for the payment of the
LOVLEEN
LOVLEEN Date:
2025.01.22
15:33:33
+0530
amount to the drawer of the cheque within 30 days
of the receipt of information from the bank in
regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make
payment of the amount of money to the payee or
the holder in due course within 15 days of the
receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7
SCC 510 this Court had summarised the constituent
elements of the offence in fairly similar terms by holding:
“14. The offence Under Section 138 of the Act can
be completed only with the concatenation of aCrl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 14/31
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number of acts.The following are the acts which
are components of the said offence: (1) drawing of
the cheque, (2) presentation of the cheque to the
bank, (3) returning the cheque unpaid by the
drawee bank, (4) giving notice in writing to the
drawer of the cheque demanding payment of the
cheque amount, (3) failure of the drawer to make
payment within 15 days of the receipt of the
notice.”
28. The five (5) acts as set out in K Bhaskaran‘s case
(supra) are, generally speaking, matters of record and would
be available in the form of documentary evidence as early
as, at the stage of filing the complaint and initiating
prosecution. Apart from the above acts, it is also to be
proved that cheque was issued in discharge of a debt or
liability (Ingredient no. (ii) in Gimpex‘s case). The burden
of proving this fact, like the other facts, would have
ordinarily fallen upon the complainant. However, through
the introduction of a presumptive device in Section 139 of
the NI Act, the Parliament has sought to overcome the
general norm as stated in Section 102 of the Evidence Act
Digitally
and has, thereby fixed the onus of proving the same on the
signed by
LOVLEEN
LOVLEEN Date: accused. Section 139, in that sense, is an example of a
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15:33:37
+0530 reverse onus clause and requires the accused to prove the
non-existence of the presumed fact, i.e., that cheque was not
issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual
Underpinnings
29. There are two senses in which the phrase ‘burden of
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proof’ is used in the Indian Evidence Act, 1872 (Evidence
Act, hereinafter). One is the burden of proof arising as a
matter of pleading and the other is the one which deals with
the question as to who has first to prove a particular fact.
The former is called the ‘legal burden’ and it never shifts,
the latter is called the ‘evidential burden’ and it shifts from
one side to the other. [See Kundanlal v. Custodian Evacuee
Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which
remains constant throughout a trial. It is the burden of
establishing the facts and contentions which will support a
party’s case. If, at the conclusion of the trial a party has
failed to establish these to the appropriate standards, he
would lose to stand. The incidence of the burden is usually
clear from the pleadings and usually, it is incumbent on the
plaintiff or complainant to prove what he pleaded or
contends. On the other hand, the evidential burden may shift
from one party to another as the trial progresses according
to the balance of evidence given at any particular stage; the
burden rests upon the party who would fail if no evidence at
all, or no further evidence, as the case may be is adduced by
either side (See Halsbury’s Laws of England, 4th Edition
para 13). While the former, the legal burden arising on the
Digitally
signed by
LOVLEEN
LOVLEEN Date:
2025.01.22
15:33:41
+0530
pleadings is mentioned in Section 101 of the Evidence Act,
the latter, the evidential burden, is referred to in Section 102
thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139)
affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC
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Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
35] ]
31. Presumption, on the other hand, literally means
“taking as true without examination or proof”. In Kumar
Exports v. Sharma Exports (2009) 2 SCC 513, this Court
referred to presumption as “devices by use of which courts
are enabled and entitled to pronounce on an issue
notwithstanding that there is no evidence or insufficient
evidence.”
32. Broadly speaking, presumptions are of two kinds,
presumptions of fact and of law. Presumptions of fact are
inferences logically drawn from one fact as to the existence
of other facts. Presumptions of fact are rebuttable by
evidence to the contrary. Presumptions of law may be either
irrebuttable (conclusive presumptions), so that no evidence
to the contrary may be given or rebuttable. A rebuttable
presumption of law is a legal rule to be applied by the Court
in the absence of conflicting evidence (Halsbury, 4th
Edition paras 111, 112]. Among the class of rebuttable
presumptions, a further distinction can be made between
discretionary presumptions (‘may presume’) and
compulsive or compulsory presumptions (‘shall presume’).
[G. Vasu V. Syed Yaseen (Supra)]
Digitally
33. The Evidence Act provides for presumptions, which
signed by
LOVLEEN
LOVLEEN Date: fit within one of three forms: ‘may presume’ (rebuttable
2025.01.22
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+0530 presumptions of fact), ‘shall presume’ (rebuttable
presumption of law) and conclusive presumptions
(irrebuttable presumption of law). The distinction between
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‘may presume’ and ‘shall presume’ clauses is that, as regards
the former, the Court has an option to raise the presumption
or not, but in the latter case, the Court must necessarily raise
the presumption. If in a case the Court has an option to raise
the presumption and raises the presumption, the distinction
between the two categories of presumptions ceases and the
fact is presumed, unless and until it is disproved, [G.Vasu V.
Syed Yaseen (Supra)]
Section 139 NI Act-Effect of Presumption and Shifting of
Onus of Proof
34. The NI Act provides for two presumptions: Section
118 and Section 139. Section 118 of the Act inter alia
directs that it shall be presumed, until the contrary is
proved, that every negotiable instrument was made or
drawn for consideration. Section 139 of the Act stipulates
that ‘unless the contrary is proved, it shall be presumed, that
the holder of the cheque received the cheque, for the
discharge of, whole or part of any debt or liability’. It will
be seen that the ‘presumed fact’ directly relates to one of the
crucial ingredients necessary to sustain a conviction under
Section 138.
35. Section 139 of the NI Act, which takes the form of a
‘shall presume’ clause is illustrative of a presumption of
law. Because Section 139 requires that the Court ‘shall
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presume’ the fact stated therein, it is obligatory on the Court
15:33:49
+0530to raise this presumption in every case where the factual
basis for the raising of the presumption had been
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 18/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
established. But this does not preclude the person against
whom the presumption is drawn from rebutting it and
proving the contrary as is clear from the use of the phrase
‘unless the contrary is proved’.
36. The Court will necessarily presume that the cheque
had been issued towards discharge of a legally enforceable
debt/liability in two circumstances. Firstly, when the drawer
of the cheque admits issuance/execution of the cheque and
secondly, in the event where the complainant proves that
cheque was issued/executed in his favour by the drawer.
The circumstances set out above form the fact(s) which
bring about the activation of the presumptive clause.
[Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding
that presumption takes effect even in a situation where the
accused contends that ‘a blank cheque leaf was voluntarily
signed and handed over by him to the complainant. [Bir
Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore,
mere admission of the drawer’s signature, without admitting
the execution of the entire contents in the cheque, is now
sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to
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prove that the instrument, say a cheque, was issued by the
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15:33:53
accused for discharge of debt, the presumptive device under
+0530
Section 139 of the Act helps shifting the burden on the
accused. The effect of the presumption, in that sense, is to
transfer the evidential burden on the accused of proving that
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 19/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
the cheque was not received by the Bank towards the
discharge of any liability. Until this evidential burden is
discharged by the accused, the presumed fact will have to
be taken to be true, without expecting the complainant to do
anything further.
39. John Henry Wigmore12 on Evidence states as follows:
“The peculiar effect of the presumption of law is merely to
invoke a rule of law compelling the Jury to reach the
conclusion in the absence of evidence to the contrary from
the opponent but if the opponent does offer evidence to the
contrary (sufficient to satisfy the Judge’s requirement of
some evidence), the presumption ‘disappears as a rule of
law and the case is in the Jury’s hands free from any rule.”
40. The standard of proof to discharge this evidential
burden is not as heavy as that usually seen in situations
where the prosecution is required to prove the guilt of an
accused. The accused is not expected to prove the non-
existence of the presumed fact beyond reasonable doubt.
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The accused must meet the standard of ‘preponderance of
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probabilities’, similar to a defendant in a civil proceeding.
15:33:58
+0530[Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the
contrary, it is open to the accused to raise a probable
defence wherein the existence of a legally enforceable debt
or liability can be contested. The words ‘until the contrary is
proved’ occurring in Section 139 do not mean that accused
must necessarily prove the negative that the instrument is
not issued in discharge of any debt/liability but the accused
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 20/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
has the option to ask the Court to consider the non-existence
of debt/liability so probable that a prudent man ought, under
the circumstances of the case, to act upon the supposition
that debt/liability did not exist. [Basalingappa Vs.
Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports
Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options.
The first option-of proving that the debt/liability does not
exist-is to lead defence evidence and conclusively establish
with certainty that the cheque was not issued in discharge of
a debt/liability. The second option is to prove the non-
existence of debt/liability by a preponderance of
probabilities by referring to the particular circumstances of
the case. The preponderance of probability in favour of the
accused’s case may be even fifty one to forty nine and
arising out of the entire circumstances of the case, which
includes: the complainant’s version in the original
complaint, the case in the legal/demand notice,
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complainant’s case at the trial, as also the plea of the
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LOVLEEN Date: accused in the reply notice, his 313 statement or at the trial
2025.01.22
15:34:01
+0530 as to the circumstances under which the promissory
note/cheque was executed. All of them can raise a
preponderance of probabilities justifying a finding that there
was ‘no debt/liability’. [Kumar Exports and Sharma
Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential
burden need not necessarily be direct evidence i.e., oral or
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 21/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
documentary evidence or admissions made by the opposite
party; it may comprise circumstantial evidence or
presumption of law or fact.
44. The accused may adduce direct evidence to prove
that the instrument was not issued in discharge of a
debt/liability and, if he adduces acceptable evidence, the
burden again shifts to the complainant. At the same time,
the accused may also rely upon circumstantial evidence and,
if the circumstances so relied upon are compelling the
burden may likewise shift to the complainant. It is open for
him to also rely upon presumptions of fact, for instance
those mentioned in Section 114 and other sections of the
Evidence Act. The burden of proof may shift by
presumptions of law or fact. In Kundanlal’s case- (supra)
when the creditor had failed to produce his account books,
this Court raised a presumption of fact under Section 114,
that the evidence, if produced would have shown the non-
existence of consideration. Though, in that case, this Court
was dealing with the presumptive clause in Section 118 NI
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2025.01.22
118 and 139 is the same, the analogy can be extended and
15:34:07
+0530
applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused
adduces evidence to the satisfaction of the Court that on a
preponderance of probabilities there exists no debt/liability
in the manner pleaded in the complaint or the demand
notice or the affidavit-evidence, the burden shifts to the
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 22/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
complainant and the presumption ‘disappears’ and does not
haunt the accused any longer. The onus having now shifted
to the complainant, he will be obliged to prove the existence
of a debt/liability as a matter of fact and his failure to prove
would result in dismissal of his complaint case. Thereafter,
the presumption under Section 139 does not again come to
the complainant’s rescue. Once both parties have adduced
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of proof loses all its importance. [Basalingappa vs.
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+0530
Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs.
Sri Mohan (2010) 11 SCC 441].
EXISTENCE OF STATUTORY PRESUMPTIONS
12. Trial court record reflects that at the time of framing of notice
u/s 251 Cr.P.C, the accused admitted that the cheque in question belongs to
him and also bears his signatures. Complainant claims that the cheque in
question was issued by the accused in his favour on 26.02.2021 at the time
of execution of a ‘Settlement’ Ex.CW1/1. On the other hand, accused
denies the said claim of complainant. Rather, accused claims that the
cheque in question bearing only his signature was retained in his drawer
and the complainant has misused the same. Accused learnt about the
cheque in question when he received the legal demand notice from the
complainant.
12.1. In order to substantiate their respective claims as to the
handing over of cheque in question, complainant examined himself as CW1
and the accused examined himself as DW1.
12.2 Complainant has deposed clearly and categorically, vide his
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 23/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
affidavit Ex. CW1/A, that on 14.01.2021, he had entered into an Agreement
to Purchase a shop belonging to the accused and had also advanced a sum
of Rs. 4 lakhs to the accused as a part payment of the consideration
amount. However, accused failed to transfer the said shop in his favour.
Subsequently, on 26.02.2021, the said Agreement to Purchase dated
14.01.2021 was cancelled vide a ‘Settlement’. At that time, the accused
handed over the cheque in question to the complainant in order to return the
sum of Rs. 4 lakh advanced to him on 14.01.2021. Upon the encashment of
cheque in question, the complainant was to return the original title
documents of the said shop to the accused. The complainant was cross-
examined on behalf of the accused. At that time, accused put suggestions
denying the execution of any agreement to purchase dated 14.01.2021 or
the ‘Settlement’ Ex.CW1/1 in favour of the complainant. Accused also put
suggestions denying receipt of any money from the complainant or the
handing over of the cheque in question to the complainant. Accused also
put suggestions to the effect that the complainant has removed the cheque
in question from his drawer and misused the same to file the present
complaint. All the said suggestions were promptly declined by the
complainant. However, it has been noticed by this Court that during the
course of cross-examination of complainant the accused has impliedly
admitted the execution of the Agreement to Purchase dated 14.01.2021 and
also receipt of Rs. 4 lakh from the complainant. In fact, the accused has
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also admitted the handing over of the cheque in question to the complainant
signed by
during the course of cross-examination of complainant. The relevant
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+0530
portion of cross-examination of complainant is reproduced below for ready
reference:-
“……………………………The agreement to sell in respect of the
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 24/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
property was executed for a value of Rs. 10 lakhs, out of which,
Rs. 4 lakhs was given in advance and Rs. 6 lakhs was due. I do
not remember the exact date when I had given Rs. 4 lakhs to the
accused. Vol. The date is already on record. That the amount
was given on the same date when the agreement to sell was
executed. I did not withdraw the aforesaid amount of Rs. 4
lakhs from the bank. I had cash from
sales…………………………………The accused had given me the
cheque in question complete in all respects. ……………………….”
12.3 The above admissions are binding upon the accused in view of
the observations made made by Hon’ble Supreme Court in Balu Sudam
Khalde and Anr. Vs. State of Maharashtra 2023 SCC Online SC 355 . That
apart, this Court must also observe that the accused claims that he learnt
about the misuse of the cheque in question by the complainant only upon
the receipt of Demand Notice (after the dishonour of the cheque). However,
surprisingly till date the accused has not taken any legal action against the
complainant despite implying indirectly that the complainant has stolen the
cheque in question. The above mentioned admissions, coupled with the
inaction on the part of the accused despite being aware of the alleged theft
of cheque in question by the complainant, raise a reasonable suspicion
against the accused vis-a-vis his claim / defence regarding ‘misuse’ of
cheque in question.
Digitally
13. Be that as it may, this Court has also gone through the defence
signed by
LOVLEEN
LOVLEEN Date:
2025.01.22 evidence led on record. Accused examined himself as DW1 and deposed as
15:34:21
+0530under:-
“Sumit Batra is my friend and he used to visit my office and
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 25/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
used to do sale / purchase work from my office. I received
notice of case u/s 138 NI Act of present case through whats app.
Prior to this office I had lodged a complaint of missing of my
cheque at police station Govindpuri which is Ex.DW1/1. The
shop in question I had already sold to some other person in the
year 2017. Complainant was aware of this fact.”
14. Accused also examined Sh. Veer Singh as DW2, who deposed
as under:-
“Accused is residing in my lane and is known to me since year
2018. I purchased shop no. 1, RZ-58G, Gali No. 28,Digitally
Tughlaqabad Extn., New Delhi from accused in the year 2017
signed by
LOVLEEN
LOVLEEN Date: for which I have got registered Sale Deed in my favour. Copy
2025.01.22
15:34:27
+0530
of sale deed dated 13.06.2017 in my favour is Ex. DW2/1(OSR)
and copy of sale deed dated 07.02.2017 in favour of zeeshan
Khan is Ex.DW2/2(OSR). I am running my said shop since
September, 2017.”
15. Accused further examined Mohd. Mustakeem as DW-3 who deposed
as under:-
“My friend namely Veer Singh has purchased a shop from the
accused in the year 2017. I was the witness in the registered sale
deed. Since then the shop is vacant. My signature on the sale
deed is Ex.DW2/1 as a witness is at point A.”
16. A bare perusal of the oral testimony of accused reflects that prior to
the receipt of Demand Notice dated 02.04.2021 from the complainant, he
had reported the loss of cheque in question to PS Govind Puri vide a
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 26/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
complaint dated 20.12.2020 Ex.DW1/1. At this juncture, this Court must
observe that the above oral testimony of accused / DW1 is contrary to the
statement made by accused at the time of framing of notice u/s 251 Cr.P.C.
At that stage, accused had stated that he learnt about the cheque in question
when he received the Demand Notice from the complainant (after the
dishonour of the cheque in question). That apart, this Court does not find it
appropriate to rely upon the said complaint Ex.DW1/1 for multiple reasons.
Firstly being the fact that the complaint Ex.DW1/1 is the original
document, which, under ordinary circumstances, should have been in the
custody of police rather than the accused. The accused should have been in
possession of a copy of the same rather than the original. Secondly, the said
complaint Ex.DW1/1 does not bear any endorsement as to any GD entry or
diary number regarding its receipt in the PS concerned. Thirdly, the said
complaint ExDW1/1 does not bear the details of the official who received
the same. Fourthly, the accused has not bothered to summon any police
official to prove the filing of said complaint Ex.DW1/1 in the PS
concerned. For the aforegoing reasons, this Court rejects the prayer of the
accused to rely upon the said complaint Ex.DW1/1.
17. The remaining part of the oral testimony of accused / DW1 is
that he had already sold the shop, regarding which the complainant claims
to have entered into an ‘Agreement to Purchase’ with the accused on
14.01.2021, to some other person in the year 2017 and that the complainant
was aware of this fact. Apparently, the accused is attempting to prove that
he could not have entered into any ‘Agreement to Purchase’ dated
14.01.2021 with the complainant as he had already sold the shop to a third
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party, about which fact the complainant was also aware and hence the
LOVLEEN
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2025.01.22
15:34:32
complainant is misleading the Courts. During trial, the accused was
+0530Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 27/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
subjected to cross-examination on behalf of the complainant. During cross-
examination, accused specifically admitted that he had entered into an
‘Agreement to Sale’ with the previous owner of said shop namely
Dharmender Kumar Sharma. However, upon being confronted with the title
documents of said shop executed by said Dharmender Kumar Sharma in
favour of the accused (i.e. GPA Mark-B, Agreement to Sell Mark-C,
Receipt Mark-D), placed on record by the complainant during trial, accused
denied his signatures on all the said documents; but at the same time he
admitted the availability of his photographs on the same. The availability of
his photographs on the said title documents was not explained by the
accused. This fact creates a reasonable doubt in the mind of this Court
regarding the sanctity/genuineness of the denial made by the accused (as to
the availability of his signatures on the said title documents), particularly
when the accused has admitted that he entered into an Agreement to Sale
with the said Dharmender Kumar Sharma. In the considered opinion of this
Court, since the complainant had placed the said title documents on records
during the course of trial, it would have been appropriate for the accused to
either place the actual / original Agreement to Sale entered into with said
Dharmender Kumar Sharma in respect of the said shop at the relevant time
or to seek the summoning and examination of said Dharmender Kumar
Digitally Sharma so as to dispel any doubts regarding the genuineness of the said
signed by
LOVLEEN
LOVLEEN Date: title documents. Since the accused did not take any steps in this regard, as
2025.01.22
15:34:38
+0530 such, an adverse inference is liable to be drawn against him in this regard.
Here, this Court must also observe that DW-2 Veer Singh, who was
examined in defence to prove that he had purchased the said shop from the
accused vide a Sale Deed dated 13.06.2017 Ex.DW2/1, duly identified and
proved the signatures of accused on the GPA Mark-B. In fact, DW-2 Veer
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 28/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
Singh also placed on record a copy of the Sale Deed dated 07.02.2017
Ex.DW2/2 executed by said Dharmender Kumar Sharma in favour of the
accused and then deposed that he was aware of the execution of a GPA by
said Dharmender Kumar Sharma in favour of the accused prior to
execution of Sale Deed. The above facts clearly demonstrate that the
accused has deliberately denied the genuineness of the title documents
placed on record by the complainant during the course of trial. In such
circumstances, this Court must also hold that the possession of complainant
over the said title documents corroborates the last recital of the ‘settlement’
Ex.CW1/1 (The recital being – ‘ On encashment of aforementioned cheque
Sh. Sumit Batra will return original documents of the aforementioned shop
to Sh. Zeeshan Khan’). This fact is sufficient to assume that the
‘Settlement’ Ex.CW1/1 is also genuine. The oral testimony of DW3 Mohd.
Mustakeem does not advance the case of the accused at all.
18. Having arrived at the above conclusions, this Court could
safely reject the entire defence of the accused challenging the genuineness
of the above said title documents (i.e. GPA Mark-B, Agreement to Sell
Mark-C, Receipt Mark-D) or that of ‘Settlement’ Ex.CW1/1. Consequently,
this Court could assume that the cheque in question was indeed handed
over by the accused to the complainant in pursuance of the said
‘Settlement’ Ex.CW1/1.
19. Admittedly, the cheque in question was dishonored upon being
LOVLEEN
presented for encashment by the complainant. Service of the legal demand
Digitally signed
by LOVLEEN notice is admitted by the accused. Admittedly, the accused did not make
Date: 2025.01.22
15:34:43 +0530
any payment demanded vide the said legal notice within the period
prescribed u/s 138 of NI Act. All the above facts are sufficient to invoke the
presumptions available to the complainant u/s 118 NI Act and u/s 139 NI
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 29/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
Act. As such, the evidential burden stood transferred upon the accused to
prove that the cheque in question was not issued towards discharge of any
liability. Until the said evidential burden is discharged by the accused, the
presumptions available against the accused u/s 118 NI Act and u/s 139 NI
Act will have to be assumed to be true, without expecting the complainant
to do anything further. The said burden could be discharged by the accused
either by leading defence evidence to conclusively establish that the cheque
was not issued in discharge of a debt / liability or by proving the non
existence of debt / liability on preponderance of probabilities by referring
to the particular circumstances of the case. The nature of evidence required
to shift the evidential burden need not necessarily be direct evidence. Once
the accused produces such evidence, the burden shifts back to the
complainant and the above mentioned presumptions disappear.
REBUTTAL OF STATUTORY PRESUMPTIONS
20. Now, the question left to be decided is whether the said
presumptions have been successfully rebutted by the accused or not.
Already this Court has observed in the afore-going paragraphs that the
accused has admitted the execution of Agreement to Purchase dated
14.01.2021 in favour of the complainant and the receipt of Rs. 4 lakhs from
LOVLEEN
Digitally signed
the complainant at that time. This Court has also concluded that the
by LOVLEEN
Date: 2025.01.22
15:34:48 +0530 accused entered into a ‘Settlement’ Ex.CW1/1 with the complainant for
cancellation of above said Agreement to Purchase and then handed over the
cheque in question to the complainant. This Court has already rejected all
the defences of the accused in the afore-going paragraphs. Consequently, it
has to be held that the accused has not been able to rebut the legal
presumptions available in favour of the complainant either during the
Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 30/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
cross-examination of complainant or through defence evidence.
DECISION
21. Apparently, all the statutory presumptions available to the
complainant remain unrebutted and intact. All the ingredients of the offence
punishable u/s 138 NI Act are available against the accused. Consequently,
it has to be held that accused was correctly convicted u/s 138 NI Act by the
Ld. Magistrate concerned. For the afore-going reasons, the impugned
judgment dated 30.04.2024 is hereby affirmed and upheld.
SENTENCE
22. Admittedly, the cheque in question was issued for a payment
of Rs.4,00,000/- on 26.02.2021. Admittedly, the complainant has been
running from pillar to post to recover the said amount. Be that as it may,
this Court is of the view that the Ld. Magistrate has granted an appropriate
sum of compensation to the complainant. Reason being the fact that the
complainant has been granted 50% of the principal amount as
compensation after a lapse of 03 years and four months since the date of
handing over of the cheque in question. As such, the sentence imposed by
the Ld. Trial Court does not call for any interference. Benefit of Section
428 Cr.P.C. be given to the accused.
23. Both the matters stands disposed of in above terms. TCR be
sent back alongwith copy of this judgment.
24. Both judicial files be consigned to Record Room as per rules.
Announced & Dictated in the
Open Court today i.e. 21.01.2025
(Lovleen)
ASJ-03 (South East)
Digitally
signed by
LOVLEEN
Saket Courts, Delhi
LOVLEEN Date:
2025.01.22
15:34:53
+0530Crl. Appeal No: 230/2024 Zeeshan Khan vs Sumit Batra 31/31
Crl Rev. No. 330/2024 Sumit Batra Vs. Zeeshan Khan
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