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Delhi District Court
Tarun Kumar vs Rajesh on 12 June, 2025
IN THE COURT OF MR. SARTHAK PANWAR, JMFC05,
NORTH, ROHINI, DELHI
In Re:
CC No. 5251/2019
Tarun Kumar S/o Sh. Ravinder Swaroop
R/o House no. 463. Pana Dhaniwala, Bawana
Delhi
...................Complainant
Versus
Sh. Rajesh
S/o Sh. Ram Diya
R/o House no. 468, Pana Dhaniwala Balmiki Mandir Wali Gali,
near Brahman Chopal, Bawana,
Delhi ...................Accused
(1) Offence complained of or
proved : 138 N.I. Act
(2) Plea of accused : Pleaded not guilty
(3) Date of institution of case : 30.10.2019
(4) Date of conclusion of
arguments : 06.06.2025
(5) Date of Final Order : 12.06.2025
(6) Final Order : Conviction
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Digitally signed by
SARTHAK SARTHAK PANWAR
PANWAR Date: 2025.06.12
17:26:10 +0530
JUDGMENT
1. Vide this judgment I shall dispose of the present complaint case
filed by the complainant under Section 200 Cr.P.C read with Section
138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as
the ‘Act’).
2. Brief facts relevant for the decision of the case are as under:
That the accused is known to the complainant and when accused
was in need of money the accused requested the complainant for
financial help of Rs. 3,00,000/ and upon his request complainant gave
Rs. 3 lakhs to the accused. It is further averred that when complainant
demanded the aforesaid amount from the accused, the accused issued a
cheque bearing no. 559294 dated 29.08.2019 of Syndicate Bank,
Kanjhawala, New Delhi in favour of complainant, and thereafter, upon
presentation of aforesaid cheque same was dishonoured for the reasons
‘funds insufficient’ vide return memo dated 30.08.2019. Thereafter, the
complainant through his counsel sent legal notice dated 20.09.2019
through registered post in order to pay cheque amount within statutory
period of 15 days and despite service of the notice upon the accused
person, accused failed to pay the cheque amount within 15 days of
service of notice. Thereafter, complainant had filed the present
complaint case with a prayer that accused be summoned, tried and
convicted according to law.
3. In his presummoning evidence, complainant examined himself
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SARTHAK SARTHAK
PANWAR
PANWAR Date: 2025.06.12
17:26:17 +0530
on oath via affidavit i.e. Ex. CW1/A and reiterated the contents of the
complaint and further placed on record Original Cheque bearing no.
559294 as Ex.CW1/1, Original return memo as Ex.CW1/2, Statutory
legal demand notice as Ex.CW1/3, Postal receipt as Ex. CW1/4 and
tracking report as Ex. CW1/5.
4. After careful perusal of the record and upon appreciation of the
presummoning evidence lead by the complainant, accused was
summoned for the offence under Section 138 of the Act. Thereafter,
notice under Section 251 Cr.P.C. for the offence u/s 138 Negotiable
Instrument Act was framed against him in which accused stated that he
does not plead guilty and claimed trial. Accused further stated that he
took a friendly loan of Rs. 80,000/ from the complainant and issued a
blank cheque as security. He further admitted that cheque in question
bears his signatures, however he denied filling of any other particulars
on the cheque. He further stated that he has repaid Rs. 50,000/ to the
complainant and Rs. 30,000/ is yet to be paid. He further denied
receiving of legal notice from the complainant and stated that
complainant has misused his cheque in question. Thereafter, matter was
listed for CE and complainant had examined himself on oath as CW1
and was duly cross examined by Ld. counsel for accused.
5. Thereafter, statement of accused u/s 313 Cr.P.C was recorded in
which accused denied receiving of legal notice, however admitted that
address mentioned on the legal notice is his correct address. He further
stated that he had only taken loan of Rs. 80,000/ from the complainant
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SARTHAK SARTHAK PANWAR Page no. 18 of 18
PANWAR 17:26:26
Date: 2025.06.12
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and at the time of taking loan he had issued cheque in question as blank
signed security cheque to the complainant. He further stated that he had
returned Rs. 50,000/ to the complainant and when he went to the house
of the complainant to return the remaining amount Rs. 30,000/ and
demanded his cheque, same was refused by the complainant. He further
stated that he had not taken loan of Rs. 3 lakhs from the complainant.
Upon being asked whether he wants to lead defence evidence accused
stated in affirmative and matter was listed for DE.
6. In his defence evidence, accused examined himself as DW1 and
deposed that in June 2019 he had taken a friendly loan from complainant
Tarun Kumar in the sum of Rs. 80,000/ and has repaid Rs. 50,000/ the
complainant Tarun in the month of August in cash. Accused further
deposed that in August 2019 he went to the house of complainant Tarun
for payment of Rs. 30,000/ and he also demanded his cheque in
question from the complainant. He further admitted that the cheque was
bearing his signatures and was a blank cheque. He further deposed that
complainant told him that cheque in question is misplaced by
complainant and thereafter he did not pay to the complainant remaining
amount of Rs. 30,000/ and returned to his home. He further deposed
that thereafter, complainant has filed present case for dishonour of
cheque amount of Rs. 3 lakhs. Thereafter, accused was duly cross
examined by Ld. counsel for complainant. Thereafter, vide separate
statement accused closed his DE and matter was listed for final
arguments.
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SARTHAK Digitally signed by
SARTHAK PANWAR
PANWAR Date: 2025.06.12
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7. In his final arguments, Ld. counsel for the complainant argued
that accused has admitted his signatures on the cheque in question
during the trial. He further argued that the story of the accused that he
has taken only loan of Rs. 80,000/ from the complainant and has repaid
Rs. 50,000/ is purely a baseless and concocted story in order to save
himself from clutches of law. It was further averred by the Ld. Counsel
for the complainant that accused has failed to rebut the statutory
presumption u/s 139 r/w section 118(a) of the Act, therefore accused is
liable to be convicted u/s 138 of the Negotiable Instruments Act.
8. In rebuttal, Ld. counsel for the accused reiterated the defence
taken by the accused during the trial and argued that the accused has
taken only Rs. 80,000/ from the complainant and has repaid Rs.
50,000/, and the cheque in question was given as blank signed security
cheque to the complainant by the accused at the time of taking loan. He
further argued that accused lacked financial capacity and sources of
funds to grant the alleged loan in the instant case. He further submitted
that accused has sufficiently rebutted the statutory presumption u/s 139
r/w Section 118 (a) of the Act. He further submitted that the case of the
complainant is inherently weak and suffers from material lapses and is
not sufficient to establish the guilt of the accused. He further stated that
complainant has failed to prove his case beyond reasonable doubt and
accused is liable to be acquitted for offence u/s 138 of Negotiable
Instruments Act. He further submitted the written arguments alongwith
supporting judgments and same has been perused.
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SARTHAK Digitally signed by
SARTHAK PANWAR
PANWAR Date: 2025.06.12
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9. I have gone through the entire record and have carefully perused
the evidence led by both the parties complainant as well as the accused
but before appreciating the facts of the case in length for arriving at any
conclusion, let the relevant position of the law be discussed first :
Before finding the conviction of the accused u/s 138 of the
Negotiable Instruments Act, it has to be established by the complainant
cumulatively that :
(i) the cheque in question was issued by the accused in favour of the
complainant in discharge of legally enforceable liability;
(ii) the cheque was presented to the bank for encashment within three
months from the date on which it is drawn or within the period of its
validity, whichever is earlier;
(iii) a demand is made in writing by the payee or holder in due course
by the issuance of a notice in writing to the drawer of the cheque within
thirty days of the receipt of information from the bank of the return of
the cheques unpaid; and
(iv) there is failure of the drawer to make the payment of the cheque
amount to the payee or the holder in due course within fifteen days of
the receipt of the notice.
The aforesaid legal position was discussed by the Hon’ble
Supreme Court of India in MSR Leathers vs. S. Palaniappan (2013) 1
SCC 177, wherein it was held that,
“6…….. The proviso to Section 138, however, is
all important and stipulates three distinct
conditions precedent, which must be satisfied
before the dishonour of a cheque can constitute
an offence and become punishable. The first
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SARTHAK Digitally signed by
SARTHAK PANWAR
PANWAR Date: 2025.06.12
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condition is that the cheque ought to have been
presented to the bank within a period of six
months from the date on which it is drawn or
within the period of its validity, whichever is
earlier. The 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, 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. The third condition is that the
drawer of such a cheque should have failed to
make 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. It is only upon the
satisfaction of all the three conditions mentioned
above and enumerated under the proviso
to Section 138 as clauses (a), (b) and (c) thereof
that an offence under Section 138 can be said to
have been committed by the person issuing the
cheque.
10. This Court shall now examine whether the aforesaid four
ingredients as described in the forgoing paragraph have been duly
satisfied in this case or not.
11. That whether the cheque in dispute was presented within the
period of its validity or not has not been disputed by the accused at any
stage of trial. Accordingly, condition no. (ii), as above stands satisfied.
12. In the present matter, accused has denied the receiving of the
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Digitally signed by
SARTHAK SARTHAK PANWAR
PANWAR Date: 2025.06.12
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statutory legal demand notice i.e. Ex.CW1/3 in answer to the question
asked in notice framed u/s 251 Cr.P.C. as well as in his statement u/s
313 Cr.P.C. However, the position of law in this regard is no longer res
integra and even if the version of the accused is believed that no legal
notice was served upon him then also accused cannot take any
advantage on account of nonservice of statutory legal notice as he had
the due notice of the pendency of present complaint case against him
and despite which he had failed to make payment of cheque amount in
question to the complainant. Reliance in this regard can also be placed
on the judgment passed by Hon’ble Supreme Court of India, in case of
C.C. Alavi Haji vs. Palapetty Muhammed, (2007) 6 SCC 555,
wherein it has been held as follows:
” It is also to be borne in mind that the requirement
of giving of notice is a clear departure from the rule
of Criminal Law, where there is no stipulation of
giving of a notice before filing a complaint. Any
drawer who claims that he did not receive the
notice sent by post, can, within 15 days of receipt of
summons from the court in respect of the complaint
under Section 138 of the Act, make payment of the
cheque amount and submit to the Court that he had
made payment within 15 days of receipt of summons
(by receiving a copy of complaint with the
summons) and, therefore, the complaint is liable to
be rejected. A person who does not pay within 15
days of receipt of the summons from the Court
along with the copy of the complaint under Section
138 of the Act, cannot obviously contend that there
was no proper service of notice as required
under Section 138, by ignoring statutory
presumption to the contrary under Section 27 of the
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SARTHAK SARTHAK
PANWAR
PANWAR Date: 2025.06.12
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G.C. Act and Section 114 of the Evidence Act. In
our view, any other interpretation of the proviso
would defeat the very object of the legislation. As
observed in Bhaskarans case (supra), if the giving
of notice in the context of Clause (b) of the proviso
was the same as the receipt of notice a trickster
cheque drawer would get the premium to avoid
receiving the notice by adopting different strategies
and escape from legal consequences of Section
138 of the Act.
Accordingly, conditions No.(iii) and (iv) as above also stands
satisfied as it is a matter of record that accused had due notice of the
pendency of the present complaint case and despite which he failed to
make the payment of cheque in question to the complainant.
13. It is now only remains to be seen whether the accused issued the
cheque in question i.e. Ex.CW1/1 in favour of the complainant in order
to discharge his legally enforceable debt or liability, or not.
14. At this stage, it becomes imperative to mention Section 139 r/w
Section 118 (a) of NI Act 1881 which carves out two presumptions in
favour of drawee firstly, that the cheque was issued to him in discharge
of debt or other legally enforceable liability and secondly, that every
negotiable instrument was drawn for consideration, and that every such
instrument when it has been accepted, endorsed, negotiated or
transferred was accepted, endorsed, negotiated or transferred for
consideration.
Section 118 (a) of the N.I. Act provides :
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“Presumptions as to negotiable instruments. — Until the
contrary is proved, the following presumptions shall be made:
of consideration –that every negotiable instrument
was made or drawn for consideration, and that
every such instrument, when it has been accepted,
indorsed, negotiated or transferred, was accepted,
indorsed, negotiated or transferred for
consideration;
Section 139 of the N.I. Act further provides as follows :
“It shall be presumed, unless the contrary is
proved, that the holder of a cheque received the
cheque of the nature referred to in section 138 for
the discharge, in whole or in part, of any debt or
other liability.”
15. For the offence of Section 138 of the Act, a presumption u/s
118(a) and Section 139 have to be compulsorily raised as soon as
execution of cheque is either admitted by the accused or is proved by the
complainant. Thereafter the burden is shifted upon accused to rebut the
presumptions. These presumptions shall be rebutted only when the
contrary is proved by the accused i.e. the cheque was not issued for any
consideration and in discharge of any legal debt or liability etc. A
presumption is not in itself an evidence but only makes a primafacie
case for a party for whose benefit it exists. Presumptions under both the
sections i.e. Section 118(a) and Section 139 of N.I. Act are rebutable in
nature. Same was held by Hon’ble Supreme Court of India in case of
Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC.
In the present case, accused has admitted his signature on the
cheque in question Ex.CW1/1, in answer to question asked in notice
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framed u/s 251 Cr.P.C as well as in his statement u/s 313 CrPC and in
his defence evidence as DW1. Reference can be made to judgment of
the apex Court in Rangappa vs Mohan AIR 2010 SC 1898, that
” once the cheque relates to the account of the
accused and he accepts and admits the signature on
the said cheque, then initial presumption as
contemplated u/s 139 of the Negotiable Instrument
Act has to be raised by the Court in favour of the
complainant.”
Also in the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999
(4) RCR (Criminal) 309, it has been held by the Hon’ble Supreme
Court as under:
” As the signature in the cheque is admitted to be
that of the accused, the presumption envisaged in
section 118 of the Act can legally be inferred that
the cheque was made or drawn for consideration on
the date which the cheque bears. Section 139 of the
Act enjoins on the Court to presume that the holder
of the cheque received it for the discharge of any
debt or liability.”
16. In view of the forgoing discussions, this Court is of the considered
opinion that a presumption u/s 139 r/w section 118(a) N.I. Act can duly
be raised against the accused.
17. The offence of Section 138 of the N.I. Act is being premised on
the theory of reverse onus of proof, and our next point of determination
is whether the accused has been able to discharge the onus of proof
placed upon him. The journey of trial qua a complaint u/s 138 N.I. Act
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SARTHAK Digitally signed by SARTHAK
PANWAR
PANWAR Date: 2025.06.12 17:27:33
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commences after a determination is made that presumption as per
section 139 r/w section 118(a) of N.I. Act can be raised against the
accused and when such presumption is duly raised, it is the accused who
is required to prove that the cheque in question was not given for any
consideration or for discharge of any legally enforceable debt. In this
regard, reliance can be placed upon judgment of Hon’ble Supreme Court
of India in case of Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6
SCC.
“………………………………… because both Sections
138 and 139 require that the Court “shall presume” the
liability of the drawer of the cheques for the amounts
for which the cheques are drawn, …, it is obligatory
on the Court to raise this presumption in every case
where the factual basis for the raising of the
presumption had been established. “It introduces an
exception to the general rule as to the burden of proof
in criminal cases and shifts the onus on to the accused”
(ibid). Such a presumption is a presumption of law, as
distinguished from a presumption of fact which
describes provisions by which the court “may presume”
a certain state of affairs. Presumptions are rules of
evidence and do not conflict with the presumption of
innocence, because by the latter all that is meant is that
the prosecution is obliged to prove the case against the
accused beyond reasonable doubt. The obligation on
the prosecution may be discharged with the help of
presumptions of law or fact unless the accused adduces
evidence showing the reasonable possibility of the non
existence of the presumed fact.
In other words, provided the facts required to form the
basis of a presumption of law exists, no discretion is
left with the Court but to draw the statutory conclusion,
but this does not preclude the person against whom the
presumption is drawn from rebutting it and proving theTarun Kumar Vs. Rajesh Ct. no. 5251/2019 Page no. 18 of 18
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contrary. A fact is said to be proved when, “after
considering the matters before it, the Court either
believes it to exist, or considers its existence so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it exists” . Therefore, the rebuttal does
not have to be conclusively established but such
evidence must be adduced before the Court in support
of the defence that the Court must either believe the
defence to exist or consider its existence to be
reasonably probable, the standard of reasonability
being that of the ‘prudent man’.”
18. In the backdrop of legal position as enunciated above, it is now to
be examined by this Court that whether the accused on a scale of
preponderance of probabilities has been able to rebut the presumption
which has been raised against him and in favour of the complainant, or
has been able to demolish the case of the complainant to such extent so
as to shift the onus placed upon the accused again on the complainant.
As held by Hon’ble Supreme Court of India in case of Kumar Exports
vs Sharma Carpets (2009) 2 SCC 513, the accused can either prove the
nonexistence of the consideration and debt by direct evidence or by
bringing on record such facts and circumstances, upon consideration of
which, the Court may either believe that the consideration and debt
either did not exist or their nonexistence was so probable that a prudent
man may act upon the plea that they did not exist. If the Court comes to
the conclusion that accused has not been able to rebut the presumption
raised against him by failing to bring on record direct evidence or by
even failing to sufficiently perforate the case of the complainant, the
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SARTHAK PANWAR
by SARTHAK
PANWAR Date: 2025.06.12
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complainant is entitled to a decision in his favour.
19. In light of the aforesaid legal position, this Court shall now first
examine that whether the accused has been able to prove his defence in
affirmative or not, by carrying out scrutiny of the evidence which has
been led at the trial.
20. In the instant matter, the principle defence which has been taken
by the accused is that he has only taken loan of Rs. 80,000/ from the
complainant and has repaid Rs. 50,000/ to the complainant and only Rs.
30,000/ is left to be paid to the complainant, and the cheque in question
was handed over to the complainant at the time of taking loan as blank
signed security cheque which has been misused by the complainant.
However, the aforesaid defence version of the accused cannot be
sustained as in order to prove it accused has failed to produce any
credible evidence by way of receipt or otherwise in support of his
aforesaid defence version, and in fact in his cross examination as DW1
he has admitted that he has no proof / written documents to prove that he
has taken loan of Rs. 80,000/ from the complainant and he has returned
Rs. 50,000/ to the complainant. Thus, in view of above discussions and
in absence of any credible evidence on record, the aforesaid defence
version taken by the accused without any substantial proof is not tenable
and hence, cannot be considered.
21. Ld. counsel for the accused also argued that complainant did not
had sources of funds and financial capacity to grant the alleged loan in
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SARTHAK SARTHAK
PANWAR
PANWAR Date: 2025.06.12
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the instant case. Perusal of the record reveals that in the present case
complainant has deposed in his cross examination as CW-1 that he
withdrew Rs. 1.5 lakhs from his bank and remaining amount was
borrowed from his father and brother in May 2019. In the considered
opinion of the Court, in order to prove that complainant lacked sources
of funds and financial capacity to grant the loan, the accused could have
called the father and brother of complainant in the witness box as well
as he could also have called for the documents regarding the sources of
funds of complainant but despite having the presumption raised against
him, accused neither called the father and brother of complainant as
witness nor got them summoned through Court nor got any documents
summoned qua sources of funds from complainant. Further, accused
himself admitted the fact of taking loan in the sum of Rs. 80,000/- from
the complainant, and it is highly improbable to believe that complainant
lacked the financial capacity to grant the present loan in the sum of Rs. 3
lakhs to the accused. Thus, in view of aforesaid discussion, this
argument of the Ld. counsel for accused at the stage of final arguments
appears only a belated attempt to cast some doubt on the case of the
complainant which is devoid of any merits and is liable to be rejected.
Reliance in this regard can also be placed upon decision of Hon’ble
High Court of Delhi in case of Sanjay Arora Vs. Monika Singh, Crl.
Appeal no. 98/2017, DOD- 31.05.2017 wherein it has been held that-
“24. Mere admission of the complainant that he was earning only
Rs. 12,000 per month from small business or his failure to file income
tax returns, or his omission to produce the bank passbook or to examine
Chhotu as a witness in corroboration, are inconsequential. In order toTarun Kumar Vs. Rajesh Ct. no. 5251/2019 Page no. 18 of 18
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rebut the statutory presumption, it was the burden of the respondent to
prove the facts she had pleaded in answer to the notice under Section
251 Cr.P.C. No material in support of such plea having come on record,
the statutory presumption under Section 139 Negotiable Instruments Act
in the case at hand has not been rebutted”.
22. So far as it relates to another defence raised by accused that the
cheque in question was given as blank signed security cheque which
was misused by the complainant, same in absence of any credible
evidence in support does not hold any merit and is liable to be rejected.
Further, accused has never filed any complaint before the appropriate
authority i.e. police or otherwise qua the misuse of his cheque in
question by the complainant till date, and in fact accused has admitted in
his cross examination as DW1 that he has not filed any police
complaint regarding misuse of the cheque in question by the
complainant. In as much as it relates to the another argument that the
cheque in question was given as blank signed cheque to the
complainant, it is a settled proposition of law that once the accused has
admitted his signature on the cheque in question, he cannot escape from
his liability and clutches of law on the ground that the contents of the
cheque were not filled by him or contents of the cheque were filled in
with some different ink or writing. It is also a trite law that once the
cheque even if it is blank is signed and handed over to the holder, it
means that person signing it has given implied authority to the holder of
the cheque to fill up the remaining particulars on the cheque. This law is
clearly laid down in Section 20 of Negotiable Instruments act which is
as follows :
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by SARTHAK
SARTHAK PANWAR
PANWAR Date:
2025.06.12
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Inchoate stamped instruments.–Where one person signs
and delivers to another a paper stamped in accordance
with the law relating to negotiable instruments then in
force in 1[India], and either wholly blank or having
written thereon an incomplete negotiable instrument, he
thereby gives prima facie authority to the holder thereof to
make or complete, as the case may be, upon it a negotiable
instrument, for any amount specified therein and not
exceeding the amount covered by the stamp. The person so
signing shall be liable upon such instrument, in the
capacity in which he signed the same, to any holder in due
course for such amount; provided that no person other
than a holder in due course shall recover from the person
delivering the instrument anything in excess of the amount
intended by him to be paid thereunder.
In the case of Satish Jayantilal Shah Vs. Pankaj
Mashruwala & anr., 1996 Cri.L.J.3099, it has been held that :-
“No law provides that in case of any Negotiable Instruments, entire
body has to be written by maker or drawer only.”
In the case of Moideen vs Johny, 2006 (2) DCR 421, it
has been held that when a blank cheque is issued, the drawer gives an
authority to a person to whom it is issued, to fill it at appropriate stage
with necessary entries and to present it to the bank. In view of the
forgoing discussion, since the accused has admitted that he has signed
the cheque in question, he cannot dispute the contents of the the cheque
in question. Hence, the accused has failed to rebut the presumption
raised against him u/s 139 r/w 118(a) of Negotiable Instrument Act in
present case.
23. In view of the above discussion, this court is of the considered
opinion that the accused is not able to raise any probable defence in
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PANWAR
PANWAR Date: 2025.06.12
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order to rebut the statutory presumption under section 139 r/w section
118(a) of Negotiable Instrument Act. The complainant in the present
case has proved the existence of legally enforceable debt or liability vide
the cheque in question, return memo, legal notice and other documents
brought on record and there is sufficient material on record to conclude
that complainant has successfully proved its case beyond reasonable
doubt.
24. Accordingly, the accused Rajesh is convicted for the offence
under Section 138 of Negotiable Instruments Act, 1881.
25. Let the convict be heard on quantum of sentence.
26. Copy of Judgment be supplied to the convict free of cost.
Pronounced in the open (SARTHAK PANWAR)
Court on 12.06.2025 JMFC-05 (North), Rohini Courts
New Delhi 12.06.2025
Tarun Kumar Vs. Rajesh Ct. no. 5251/2019 Page no. 18 of 18
SARTHAK Digitally signed by
SARTHAK PANWAR
PANWAR Date: 2025.06.12 17:28:29
+0530
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