Delhi District Court
Usha Rani vs Krishan Arora on 16 May, 2025
IN THE COURT OF MS. PRIYANKA : JMFC NI DIGITAL COURT
NUMBER 02, NORTH DISTRICT, ROHINI COURTS COMPLEX
USHA RANI VS . KRISHAN ARORA
(Prashant Vihar)
CC NI ACT No. 81/2022
U/S 138 Negotiable Instruments Act, 1881
In the matter of:
Mrs. Usha Rani
W/o late Sh. Narender Nath Diwan
Through her AR
Pawan Kumar Pruthi
R/o H-7/128,
First Floor, Ramesh Nagar,
Delhi-110015 ...... Complainant
Vs.
Krishan Arora
S/o late Sh. Mahender Pal Arora
R/o B-2/19,
Second Floor, Sector 11,
Rohini, Delhi-110085
...... Accused
Date of Institution : 04.12.2021
Date of Reserving Judgment/Order : 02.05.2025
Date of Pronouncement of Judgment/Order : 16.05.2025
Digitally
signed by
PRIYANKA
PRIYANKA Date:
2025.05.16
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JUDGMENT:
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
FACTUAL MATRIX-
1. This is a complaint case filed under Section 138 of Negotiable
Instrument Act (hereinafter referred to as “NI Act“) by Mrs. Usha Rani
(complainant) against Sh. Krishan Arora (accused) in respect of four
cheques bearing no. 089505, 089508, 089506 and 089507 all dated
29.09.2021 of Rs. 5,00,000/-, Rs. 5,00,000/-, Rs. 2,50,000/- and Rs.
5,00,000/- respectively all drawn on Oriental Bank of Commerce,
Sector-8, Rohini, Delhi.
2. The brief facts of the complaint are as:
2.1. The present complaint is filled by the SPA holder namely Mr.
Pawan Kumar Pruthi who is well conversant with the facts of the case
which are that the accused is a close relative is close relative of
complainant’s late husband and had financial transctions with the him
in his life time.
2.2. Due to financial crisis of the complainant’s late husband and to
avoid future dispute, a loan agreement dated 26.03.2016 was executed
and then for further clarification another agreement was executed dated
16.06.2016 during the life time of complainnatt’s late husband.
2.3. After the demise of the complainant’s husband on 26.10.2020, after
intervention of respectable persons of the society and relatives the
accused issued 9 cheques in discharge of his part legal liability which
was of Rs. 22,00,000/- at that time.
2.4. Three of the nine cheques of Rs.1,00,000/- each were cleared but
on presentment of the cheques in question were dishonoured with
remarks “funds insufficient” vide four return memos each dated
30.09.2021.
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PRIYANKA
PRIYANKA Date:
2025.05.16
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2.5. Then the complainant sent legal demand notice dated 26.10.2021
through speed post to the accused, but to no avail. Hence, the present
complaint.
PROCEEDINGS BEFORE THE COURT-
3. The complainant tendered her pre-summoning evidence on affidavit.
On a prima facie case being made out against Sh. Krishan Arora
(hereinafter referred to as accused), the cognizance was taken and the
accused was summoned.
4. Particulars of the offence and substance of the accusations, as per the
provisions of Section 251 of Criminal Procedure Code 1973
(hereinafter called “CrPC), were explained to the accused to which the
accused pleaded not guilty and claimed trial. The accused admitted his
signatures on the cheque in question. In his defence recorded on the
same day, the accused stated that “I had borrowed some money from
my maternal uncle Mr. Narender Nath Diwan whose wife is the
complainant. Before the complainant leaving India for Canada, I had
issued these cheques as security cheques. I only owe around Rs.
4,00,000/- to the complainant”. Further, the accused raised the defence
that he did not receive legal demand notice.
5. Pursuant to the defence raised by the accused, accused was granted
right to cross examine the complainant on oral application of the
accused which was not objected by the Ld. Counsel for the complainant
and the matter was then fixed for CE.
6. Thereafter, complainant led her evidence by examining himself as CW-
1 in post summoning evidence, wherein he adopted his pre- summoning
evidence. He relied upon the following documents:
Mark X : copy of death certificate of the husband of the
complainant.
Ex. CW1/A: Loan agreement dated 16.06.2016.
Ex. CW1/A1: loan agreement dated 26.03.2016.
Ex. CW1/1B to CW1/E: original Cheques in question
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Ex. CW1/F to Ex. CW1/I : Return memos
Ex. CW1/J: Copy of legal notice
Ex. CW1/K : postal receipts.
Ex. CW1/L: Tracking Report.
Ex. CW1/Z: SPA dated 11.11.2020
The CW1 in his affidavit reiterated the contents of the complaint. CW1
was cross-examined by the Ld. Counsel for the accused and discharged.
Witnesses mentioned at Sr. no. 2, 3 and 4 were dropped after recording of
statement of accused under Sec 294 Cr.P.C. As no other witness was to
be produced by the complainant, CE was closed and matter was put up
for recording of statement under sec 313 Cr.P.C.
7. Thereafter, statement of accused was recorded under Section 313
Cr.P.C. r/w section 281 Cr.P.C. where all the incriminating evidence
was put to the accused. The accused stated that ” I used to borrow
money from the complainant’s husband and used to repay the same
from time to time and the amount of Rs. 3 to 4 lacs are pending and the
nine cheques were issued for security purpose. It was agreed between
us that the cheques would be presented with the mutual consent of both
of us. I have not received any legal notice from the complainant. the
present case is false and fabricated”. During the recording of statement,
the accused stated that he wish to lead DE in the matter and matter was
fixed for DE. However, the accused has submitted that he does not wish
to bring any witness. DE was closed vide order dated 04.02.2025.The
matter was then fixed for final arguments.
8. Final arguments were advanced by both the parties. Written arguments
were filled by the Ld. Counsel for the accused. I have heard counsel for
both the parties, perused the record and have gone through the relevant
provisions of the law.
INGREDIENTS OF THE OFFENCE AND DISCUSSION-
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PRIYANKA
PRIYANKA Date:
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9. It would be apposite to first consider the legal position serving as base
to the offence underlying Section 138 NI Act. The following legal
requirements need to be satisfied in order to constitute an offence u/s
138 NI Act, as held by Hon’ble Supreme Court in the case titled as
Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.:
(2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained
by him in a bank for payment of a certain amount of money to
another person from out of that account for the discharge of any
debt or other liability;
(ii) that the cheque has been presented to the bank within a period of
six months from the date on which it is drawn or within the period
of its validity whichever is earlier;
(iii) that the cheque is returned by the bank unpaid either because of the
amount of money standing to the credit of the account is
insufficient to honour the cheque or that it exceeds the amount
arranged to be paid from that account by an agreement made with
the bank;
(iv) that the payee or the holder in due course of the cheque makes a
demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within thirty days of
the receipt of information by him from the bank regarding the
return of the cheque as unpaid;
(v) that the drawer of such cheque fails to make payment of the said
amount of money to the payee or the holder in due course of the
cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative, meaning thereby that
only if all the aforementioned ingredients are satisfied can the person who
had drawn the cheque be held liable for offence u/s 138 NI Act.
10.Burden of proof: The claim based under the provisions of Negotiable
Instruments Act is an exception to the general rule of law that burden of
proof lies on the prosecution. The two specific provisions viz. Section
118 (a) and 139 of NI Act contemplates that a presumption is attached
in regard to each and every negotiable instrument that the same was
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drawn and issued against due discharge of the liability and thus,
whenever any claim is made on the basis of a negotiable instrument, the
presumption has to be drawn in favour of the holder of the cheque
(drawee) and the law has put the burden to rebut the presumption on the
accused that the cheque was not issued by him against discharge of a
debt or a liability. In case, the accused is not able to rebut the
presumption and fails to prove his defence, the presumption becomes
absolute and it has to be assumed that the cheque was issued by the
accused in discharge of debt or liability and consequently, accused is
assumed guilty of the offence. It was held by Hon’ble Supreme Court in
the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of
Section 139 of N.I. Act also includes the existence of legally
enforceable debt:
14. In light of these extracts, we are in agreement with the
respondent claimant that the presumption mandated by Section 139
of the Act does indeed include the existence of a legally
enforceable debt or liability.
Hon’ble Supreme Court, in the case of Hiten P. Dalal v.
Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption
mentioned in the section 139 NI Act is a presumption of law and not a
presumption of fact and thus, this presumption has to be drawn in favour
of the drawee and the burden to rebut the presumption with the probable
defence is on the accused.
This is indeed an instance of the rule of ‘reverse onus’, where it is
incumbent on the accused to lead what can be called ‘negative evidence’
i.e. to lead evidence to show non-existence of liability. Keeping in view
that this is a departure from the cardinal rule of ‘presumption of
innocence’ in favour of the accused and that negative evidence is not easy
to be led by its very nature, it is now settled that the accused can displace
this presumption on a scale of preponderance of probabilities and the lack
of consideration or a legally enforceable debt need not be proved to the
hilt or beyond all reasonable doubts. The accused can either prove that
the liability did not exist or make the non-existence of liability so
probable that a reasonable person, ought under the circumstances of the
case, act on the supposition that it does not exist. He can do so either by
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leading own evidence in his defence or even by punching holes in the
case of the complainant in the testing ordeal of cross-examination. This
can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of
a presumption of law exist, 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 the
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’.
Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC
1008 Hon’ble Supreme Court held that the accused has to rebut the
presumption and mere denial of passing of consideration is no defence.
It is, thus, clear that in cases of Section 138 NI Act, upon proof of
foundational facts, law presumes in favour of drawee that the cheque was
issued by the accused in discharge, wholly or in part, of legally
enforceable debt or liability and the burden to rebut the same is upon the
accused. The burden does not have to be conclusively established but the
accused has to prove his defence on preponderance of probability.
11.Now applying the above law to the facts of the present case, it has to be
adjudged whether the legal requirements laid down hereinabove have
been fulfilled in the instant case.
12.The first legal requirement is:
“A person must have drawn a cheque on an account maintained by him in
a bank for payment of a certain amount of money to another person from
out of that account for the discharge of any debt or other liability.”
At the outset, it has to be proved that the accused had issued the cheques
in question on his account maintained with a bank for discharge of any debt or
other liability. In the instant case, accused has admitted his signature on the
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cheques in question in his statement recorded u/s 313 Cr.P.C. and in notice
framed u/s 251 Cr.P.C. The cheques in question have also been drawn on the
account maintained by accused. The said fact has not been denied by accused at
any stage of proceeding.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian:
2021 SCC Online SC 75 Hon’ble Supreme Court held that:
“14. Adverting to the case in hand, we find on a plain reading of its
judgment that the trial court completely overlooked the provisions and
failed to appreciate the statutory presumption drawn under Section 118
and Section 139 of NI Act. The statute mandates that once the
signature(s) of an accused on the cheque/negotiable instrument are
established, then these ‘reverse onus’ clauses become operative. In such a
situation, the obligation shifts upon the accused to discharge the
presumption imposed upon him.”
The above said principle has also been crystallized by Hon’ble Supreme
Court in the case of Basalingappa v. Mudibasappa: (2019) 5 SCC 418, by
observing that:
“25. We having noticed the ratio laid down by this Court in above cases
on Sections 118(a) and 139, we now summarize the principles enumerated by
this Court in following manner:
(i) Once the execution of cheque is admitted Section 139 of the Act
mandates a presumption that the cheque was for the discharge of
any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption
and the onus is on the accused to raise the probable defence. The
standard of proof for rebutting the presumption is that of
preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on
evidence led by him or accused can also rely on the materials
submitted by the complainant in order to raise a probable defence.
Inference of preponderance of probabilities can be drawn not only
from the materials brought on record by the parties but also by
reference to the circumstances upon which they rely.
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(iv) That it is not necessary for the accused to come in the witness box
in support of his defence, Section 139 imposed an evidentiary
burden and not a persuasive burden.
(v) It is not necessary for the accused to come in the witness box to
support his defence.”
12.1. In the instant case, the accused having admitted his signature on
the cheques in question and the said cheques being drawn on the bank
account of accused, the mandatory presumption automatically arises in
favour of complainant by virtue of Section 118(a) r/w 139 NI Act that
the cheques in question were issued by him in discharge of, whole or
part of, legally enforceable debt or liability.
12.2. Now the burden shifts upon the accused to rebut the above
presumption by raising a probable defence, by leading evidence or
bringing such facts on record in the cross-examination of the
complainant that could make the latter’s case improbable. If, in such a
case, the accused is proved to have discharged the initial onus of proof
placed on him by showing that the existence of consideration was
improbable or doubtful or illegal, then the onus will again shift back to
the complainant who will then be under an obligation to prove it as a
matter of fact and failure to do so will disentitle him to any relief on the
basis of the negotiable instrument (as held in Satish Sharma v. State
NCT of Delhi & anr.: (2013) 204 DLT 289).
12.3. The accused has chosen to do so by cross examining the SPA
holder of the complainant i.e. CW1. During cross- examination, CW1
deposed that the address as mentioned in the SPA is the correct address
of the complainant and the same address have been nominated as the
address of her sons, the complainant stayed in Jammu for 1.5 months
for her husband’s treatment and thereafter she returned to Delhi, the
Jagjeet Singh Dewan used to visit Canada frequently, but he is not
aware if husband of the complainant was permanently settled in
Canada, he does not remember who wrote the handwritten lines on the
page no. 18 of complaint and 3rd page of SPA , SPA is attested by Oath
Commissioner, the agreement Ex. CW1/A1 and Ex. CW1/A are not
signed in the presence of the SPA holder, the transactions mentioned in
Ex.CW1/A did not take place in the presence of the witness.
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12.4. The witness further deposed that there used to be several
transactions between the husband of the complainant and the accused
and the husband of the complainant showed certain documents which
indicated the liability to be around 45 lakh and the same was
communicated to him in oral discussion, these documents included
excel sheets prepared by the children of the complainant for principal
amount and interest, the husband of the complainant showed the loan
agreement and around 20 cheques signed by the accused, these excel
sheets are not attached with the complaint, the witness could not recall
the principal and interest amount as mentioned in the excel sheets, the
witness could not identify the signature of the complainant on loan
agreement Ex. CW1/A.
12.5. The witness further deposed that the witness is relying only on two
documents Ex. CW1/A and Ex. CW1/A1, it is correct that four of the
cheques in question bearing no. 089505, 089506, 089507, 089508 are
not mentioned in these agreements, the agreements were prepared
before the death of the complainant’s husband and the cheques in
question were given after his death, the same fact is not mentioned in
the complaint or PSE agreement, it is correct that there is no agreement
dated 16.06.2016 as mentioned in the complaint and the PSE affidavit,
the witness does not remember when the loan agreement was attested,
the loan agreement does not bear the signature of the complainant, the
witness cannot tell how much interest has been paid and how much
interest is pending, the witness does not remember who filled the
particulars(date) on the cheque as he was not present, the witness
cannot say if the complainant was present in India or not in October/
November 2021, the cheque in question were presented by the witness
in the bank as the complainant was not present in India at that time, the
complainant was not in India at the date of filling of the complaint,
except SPA no other document is signed by the complainant including
complaint, the complainant has signed the vakalatnama, the date of
receiving of return memo is not mentioned on the return memo, the
print out of the tracking report was taken hy the counsel.
12.6. The accused has admitted his signature on the cheque in question,
however, he has chosen to defend the case against him. In brief, the
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defence as raised by accused is that the cheques in questions were
security cheques issued for loan of 2016 and the debt is time barred and
the liability is not a legally enforceable liability. The accused raised
another defence that the SPA Ex. CW1/Z is not as per law and the SPA
holder is not authorised to file complaint or give evidence in the matter.
Further, the defence raised is that the accused did not receive the legal
demand notice.
12.7. However, in view of the legal presumption which already stood in
favour of complainant by virtue of the section 139 NI Act, the burden
was in fact upon the accused to rebut such presumption and prove that
the complainant has presented the cheque amount for an amount for
which the accused is not liable. To rebut the presumption the accused
has not led any defence evidence and has only tried to prove his case by
pointing deficiencies in the case of the complainant.
12.8. The facts that are not in dispute are that cheque in question bears
signature of the accused. Accused has further admitted that he entered
into loan agreement in 2016 with the husband of the complainant.
12.9. To begin with, the first point of contention of Ld. Counsel for the
accused against the case of the complainant is that the debt is time
barred debt and not legally enforceable debt. Ld. Counsel for the
accused has relied upon the following four judgements (1) Amrit
Sandhu Coster Vs State & Anr., (2) Jage Ram Karan Singh & Anr. Vs.
State & Anr., (3) Pranjan Malhotra Kumar Jain Vs. Ravi and (4)
Jagdamba Parisar Sahakari Pat Sanstha Maryadit Vs Sharvan Ajinath
Ukride & Anr. wherein it has been held that “mere giving of a cheque
will not revive a time barred debt, because cheque has to be given in
discharge of a legally enforceable debt, the penal provision under
sec138 NI Act is not attracted.”
In the present matter the case of the complainant is that the loan
agreement was executed in 2016 and the cheques in question were
issued after the death of the husband of the complainant in 2020. This
fact in itself proves that the cheques in question were issued after expiry
of the time period of 3 years which is prescribed period of limitation.
This is settled law that for the revival of the liability the
acknowledgment must be before the period of limitation is not,
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however, this is not the case in hand. Hence, the contention of the
accused is well established in the favour of the accused.
12.10. Next, the contention of the accused is that the SPA in the matter is
not as per law and the SPA holder is not authorised to file complaint and
to depose before the court as the SPA holder is not aware about the facts
of the case. . The judgment of A.C.Narayanan Vs State of Maharashtra
& Anr. in support of the above contention is relied by the Ld. Counsel
for the accused which states that “the power of attorney holder is
authorised to file complaint, depose and verify on oath before the court
in order to prove the contents of the complaint only if such power of
attorney has witnessed the transaction as agent of the payee or holder in
due course or possesses due knowledge regarding the said transaction.
If the power of attorney holder has no knowledge regarding the
transaction then he cannot be examined as a witness in the case.
12.11. In the present matter the accused has cross examined the SPA
holder on the point that the SPA holder is not aware about the facts of
the case wherein the SPA holder has deposed that ” I am not aware
whether Jagjeet Singh Dewan is settled in Canada since 2010 or not…
At this stage, Ld. Counsel for accused shows page no. 21 & 24, Ex.Cw-
1/A1 and Ex. CW 1/A to the complainant and asks:- were these
agreements signed in your presence? Ans. No……. The transactions
mentioned in Ex. CW-1/A loan agreement did not take place in my
presence….. Mr. Narender Nath Dewan showed me certain documents
which indicated that the liability was roughly around 45 lakh. He also
communicated the same to me in an oral discussion….. On the loan
agreement Ex. CW-1/A, I cannot identify the signature of Usha Rani….
It is correct that none of the four cheques in question i.e. cheque bearing
no. 089505 089506, 089507 and 089508 are not mentioned in these two
agreements. (Vol. These agreements were prepared before the demise of
Usha Rani’s husband and the cheques in question were given by the
accused after the death of Usha Rani’s husband.) It is correct that this
fact that the cheques were given after the death of Usha Rani’s husband
is not mentioned in PSE affidavit or the complaint. It is correct that
there is no loan agreement dated 16.06.2016 as mentioned in my
affidavit and complaint…. I cannot tell how much interest amount had
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been paid by the accused in cash as per the agreement dated 17.06.2016
and how much interest was pending……. I do not remember who filled
the date in the cheques in question. (Vol. There were several people at
that time. I do not remember who filled the date because it was not done
in front of me.) I do not know who filled the particulars of the cheques
in question.”
From the above deposition it is clear that the SPA holder has not
witnessed or does not have a personal knowledge about the transactions,
therefore, the SPA holder is not a competent witness in the matter as per
the settled law.
12.12. Further, the accused has also raised the contention that the SPA is
not valid in the eyes of the law as the same is not a special power of
attorney as the same is issued for general powers and not specific to the
case in hand. On perusal it is found that the special power of attorney
Ex. CW1/Z is overwritten to authorise the SPA holder to initiate
proceedings under Sec 138 NI Act against the accused. During the cross
examination the SPA holder deposed that “It is wrong to suggest that
the handwritten lines on page no. 18 of complaint and 3rd page of SPA
has been manipulated and added without the presence of the above
mentioned persons. I do not remember who wrote this particular line on
SPA.” Further, the SPA holder deposed that “Que. Since the SPA was
executed on 11.11.2020 and the cheques in question are dated
29.09.2021, can we say that the complainant and her husband already
knew before hand that the cheques in question shall be dishonoured?
Ans. I do not know”. Also, the accused has cross examined the
complainant to suggest that the SPA is false and fabricated, the SPA
holder is not authorised to lead evidence before court and file the
present court.
From the above observations, it is clear that the accused as raised a
probable defence that the authorisation under SPA is not as per law as
the same is tampered and the SPA holder is not duly authorised to
depose in the present matter.
12.13. The legal presumption of issuance of cheque in discharge of
liability being in favour of complainant, accused was only burdened to
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rebut the presumption on the touchstone of preponderance of
probability. The test being that of a prudent person. It was not necessary
for accused to lead any evidence in his defence and he could have
discharged the burden even by making out a probable case in his favour
from the cross-examination of complainant witnesses. The burden is
said to have been discharged once accused lays out a probable defence
that either the consideration did not exist or existence of consideration
was so improbable in the facts of the case that any prudent person
would believe that it did not exist. In the present case, merely looking at
the cross examination of the complainant and the defect in the authority
of the SPA holder, accused has been able to successfully make out a
probable case in his defence that the accused is not liable towards the
complainant as the debt is time barred, hence, the cheque was not
presented for legal enforceable debt. Now the burden was upon
complainant to prove his case beyond reasonable doubt. However, the
complainant has failed to do as even after the authority of the SPA
holder was challenged and during the cross examination the fact
became clear that the SPA holder is not aware about the complete facts
the complainant did not examine herself to prove her case.
12.14. In view of the above observations, the accused has proved the fact
that a unhinged defence was taken by the accused throughout the trial,
which goes on to prove that accused has been able to rebut the
presumption standing against him and the complainant has failed to
prove his case beyond reasonable doubt.
12.15. Thus, accused has been able to successfully rebut the presumption
of law and discharge the burden of proof by raising a probable defence
that the cheque in question was not issued in discharge of legal debt or
liability. The first legal requirement is, thus, proved in favour of
accused.
13.The second legal requirement is:
“That cheque has been presented to the bank within a period of six
months from the date on which it is drawn or within the period of its
validity whichever is earlier.”
The cheques in question Ex. CW-1/B to Ex. CW1/E are dated
29.09.2021. The cheque returning memo are Ex. CW-1/F to Ex. CW1/I
Digitally signed
by PRIYANKA
USHA RANI VS KRISHAN KUMAR PRIYANKA Date:
2025.05.16
14
81/2022 16:21:00
+0530
is dated 30.09.2021, which proves that the cheque in question was
presented within the period of its validity. Thus, the second legal
requirement is adjudicated in favour of complainant.
14. The third legal requirement is:
“That cheque is returned by the bank unpaid, either because of the
amount of money standing to the credit of the account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid
from that account by an agreement made with the bank.”
Section 146 NI Act presumes the fact of dishonour of cheque upon
production of bank’s slip or memo having the official mark denoting
that the cheque in question has been dishonoured. This is also a
rebuttable presumption and upon production of such bank memo, the
burden shifts upon accused to disprove the same. In the instant case, a
presumption has been raised in favour of complainant by virtue of
Section 146 NI Act that the cheque in question was dishonoured for the
reason stated therein viz. Insufficient Funds and therefore, the burden
now shifts upon the accused to rebut this presumption by establishing
some reasonable justification for the same. But the accused has failed to
disprove the same.
Thus, the third legal requirement is adjudicated in favour of
complainant.
15.The fourth legal requirement is:
“The payee or the holder in due course of the cheque makes a demand
for the payment of the said amount of money by giving a notice in
writing, to the drawer of the cheque, within thirty days of the receipt of
information by him from the bank regarding the return of the cheque as
unpaid.”
In the instant case, the cheque in issue was returned dishonoured on
30.09.2021. The complainant sent a legal notice dated 26.10.2021
(Ex.CW-1/J) addressed to the accused. Postal receipts dated 26.10.2021
are Ex. CW-1/K. The date of postal receipt proves that the legal notice
was sent to accused within thirty days of receipt of information of
dishonour of cheque in issue. The fourth legal requirement is, thus,
adjudicated in favour of complainant.
16.The fifth legal requirement is:
Digitally
signed by
PRIYANKA
USHA RANI VS KRISHAN KUMAR PRIYANKA Date:
2025.05.16
15
81/2022 16:21:04
+0530
“The drawer of such cheque fails to make payment of the said amount
of money to the payee or the holder in due course of the cheque within
15 days of the receipt of the said notice.”
The tracking report proves delivery of legal notice on 30.10.2021 which
is Ex. CW1/L.The same was sent through speed post via postal receipts
dated 26.10.2021.
The accused has raised the contention that he has not received the legal
demand notice and that the certificate under section 65B Indian
Evidence Act which certifies the tracking report is not filled on record
and tracking report cannot be read in evidence as being inadmissible in
evidence without proper certificate of electronic evidence. For the same
the accused has relied upon the judgement in (1) Samsung India
Electronics Pvt. Ltd. Vs MGR Enterprises and (2). Anvar Plaintiff V Vs
Plaintiff K Basheer & Ors. wherein the court has held that ” the
electronic evidence produced before the Court should have been in
accordance with the statute and should have complied with the
certification requirement, for it to be admissible in the court of law. As
rightly stated above, Oral evidence in the place of such certificate, as is
the case in the present matter, cannot possibly suffice as Section 65B(4)
is a mandatory requirement of the law.”
During the cross examination, the complainant has admitted that “The
print out of the tracking report of the legal demand notice was taken out
by our legal counsel.” Therefore, the contention of the accused stands
proved and the tracking report cannot be read in evidence as being
inadmissible in law as the certificate to certify the electronic record is
not as per law.
However, it is settled law that if service is done by registered (speed)
post, a presumption of service is raised under Sec 27 General Clauses
Act if the post is correctly addressed.
In the present matter the accused has although denied receiving of legal
notice but has disputed his address to which the legal notice was
addressed as the accused has mentioned the same address as his while
statement under sec 313 Cr.P.C. was recorded.
Digitally signed
by PRIYANKA
PRIYANKA Date: 2025.05.16 USHA RANI VS KRISHAN KUMAR 16:21:08 16 +0530 81/2022
In such a case, the verdict of Hon’ble Supreme Court in the case titled
as C.C. Alavi Haji v. Palapetty Muhammed & anr.: (2007) 6 SCC 555
becomes relevant:
“17. It is also to be borne in mind that the requirement of
giving of notice is a clear departure from the rule of
Criminal Law, where there is no stipulation of giving of a
notice before filing a complaint. Any drawer who claims
that he did not receive the notice sent by post, can, within
15 days of receipt of summons from the court in respect
of the complaint under section 138 of the Act, make
payment of the cheque amount and submit to the Court
that he had made payment within 15 days of receipt of
summons (by receiving a copy of complaint with the
summons) and, therefore, the complaint is liable to be
rejected. A person who does not pay within 15 days of
receipt of the summons from the Court along with the
copy of the complaint under section 138 of the Act,
cannot obviously contend that there was no proper
service of notice as required under section 138, by
ignoring statutory presumption to the contrary under
Section 27 of the G.C. Act and section 114 of the
Evidence Act.”
However, despite issuance of summons and appearance of accused
before the court, accused has failed to pay the cheque amount to the
complainant and thus is precluded from raising the plea of non-service
of demand notice. It is also an undisputed fact and a matter of record
that the accused has failed to make the payment till date let alone
making payment within 15 days of receipt of notice.
Thus, the fifth legal requirement is adjudicated in favour of
complainant.
17. All the legal requirements constituting an offence u/s 138 NI Act being
cumulative in nature, the fact that the first legal requirement has not
been proved in favour of complainant, the ingredients necessary to
bring home the guilt of accused remain incomplete. Accordingly, Sh.
Digitally signed by PRIYANKA Date: USHA RANI VS KRISHAN KUMAR PRIYANKA 2025.05.16 17 16:21:11 81/2022 +0530
Krishan Arora(accused) is held ‘not guilty’ for the alleged offence u/s
138 NI Act.
18.Copy of this Judgment be given free of cost to both the parties.
(This judgment contains 18 pages which have been digitally signed by the
undersigned)
Announced in open Court Digitally
signed by
Today on this 16.05.2025 PRIYANKA
PRIYANKA
Date:
2025.05.16
16:21:16
(PRIYANKA) +0530Judicial Magistrate First Class
(NI ACT) Digital Court No.2
North District Rohini Courts,
Delhi.
USHA RANI VS KRISHAN KUMAR 18
81/2022