Delhi District Court
Virender Kumar vs Vinay Kumar on 22 July, 2025
CC No 22985/2022
IN THE COURT OF MS. SURABHI RASTOGI,
JMFC NI ACT DIGITAL COURT 10, SOUTH-WEST
DISTRICT, DWARKA COURT, NEW DELHI
IN THE MATTER OF: 22985/2022
CNR NO. DLSW020472632022
VIRENDER KUMAR
S/O SHRI GANGA PRASAD
R/O H.NO 136, CHOTI PATTI
PAPRAWAT VILLAGE
NAJAFGARH, NEW DELHI-110043
COMPLAINANT
VERSUS
VINAY KUMAR
S/O SHRI OM PRAKASH YADAV
R/O RZ-94A, DEEPAK VIHAR,
GALI NO.5, NAJAFGARH,
NEW DELHI
ACCUSED
DATE OF INSTITUTION : 16.08.2022
OFFENCE COMPLAINED OF : U/S 138 NI ACT
PLEA OF ACCUSED : NOT GUILTY
DECISION QUO ACCUSED : CONVICTED
DATE OF DECISION : 22.07.2025
Digitally signed
by SURABHI
SURABHI RASTOGI
Date:
RASTOGI 2025.07.22
16:31:14
+0530
CC No. 22985/2020
Virender Kumar vs Vinay Kumar 1 of 17
CC No 22985/2022
JUDGMENT
1. Vide this judgment, this court shall decide the present
complaint filed u/s 138 of the Negotiable Instruments Act
(hereinafter referred to as the ‘NI Act‘) by the complainant
against the accused on of dishonour of his cheque bearing no.
770204 dated 25.05.2022 for sum of Rs. 22,00,000 drawn on
Canara Bank, Wazirpur Branch, Delhi (hereinafter referred to as
‘cheque in question’).
2. The case of the complainant in brief is that the accused
took a loan of Rs. 22,00,000 from the complainant on a friendly
basis and to discharge this liability, he had issued the cheque in
question. When the cheque was presented for encashment, it was
dishonoured with the remark ‘account blocked’. Thereafter, the
complainant apprised the fact of dishonour to the accused and
issued a legal demand notice against him. The accused had failed
to pay the cheque amount within 15 days of receipt of this notice,
resulting in the filing of the present complaint u/s 138 of NI Act
against him.
PRE TRIAL PROCEDURE
3. In support of this complaint, the complainant tendered his
evidence by way of affidavit and relied on the following
documents:
a. Original Cheque (Ex.CW1/A) Digitally signed
by SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
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Virender Kumar vs Vinay Kumar 2 of 17
CC No 22985/2022b. Bank return memo (Ex.CW1/B)
c. Legal notice (Ex.CW1/C)
d. Receipt of Speed Post (Ex.CW-1/D)
e. Tracking Report (Ex.CW-1/E)
4. Upon appreciation of pre-summoning evidence, accused
was summoned for the offence u/s 138 NI Act. Notice of
accusation u/s 251 of the Criminal Procedure Code, 1973
(hereinafter referred to as CrPC) was served on the accused, and
the accused pleaded not guilty and claimed trial. In the plea of
defence accused had admitted his signature on the cheque and
had also admitted that the amount in the cheque was filed by him.
He had stated that he had never issued the cheque to the
complainant. He further stated that the complainant used to visit
his shop and godown where he used to keep his cheque in
question was also kept at the same place. This cheque was meant
for handing over to the bank as security for a loan for the
purchase of a Tyre Truck vehicle, and was misplaced from
shop/godown. He further stated that he is unaware of how the
cheque came into possession of the accused. He had also denied
receipt of the legal demand notice.
5. Application u/s 145(2) NI Act was allowed, and the
accused was given the opportunity to cross-examine the
complainant and his witness, if any. Complainant entered as
CW1 and was duly cross-examined and discharged. Thereafter
Complainant’s Evidence was closed.
Digitally signed
by SURABHI
RASTOGI
SURABHI Date:
CC No. 22985/2020 RASTOGI 2025.07.22
16:31:29
Virender Kumar vs Vinay Kumar 3 of 17 +0530
CC No 22985/2022STATEMENT OF ACCUSED
6. Statement of accused under Section 313 CrPC read with
Section 281 CrPC was recorded and all incriminating evidence
were put to accused. During his statement, the accused has stated
that he had filed the cheque and it was kept in his shop. He had
denied giving cheque in question to the complainant. Accused
has not led Defence Evidence and matter was adjourned for final
arguments.
ARGUMENTS OF PARTIES
7. Ld. Counsel for the complainant had argued that the
accused and the complainant had friendly/family relations over
the years 2014 to 2022, and during this period, the complainant
had given a friendly loan to the accused in parts. He had further
argued that though this fact is not mentioned in the complaint and
his evidence by way of affidavit, but is mentioned in the legal
demand notice. He had further argued that once the complainant
has admitted his signature on the cheque, the burden to disprove
the case has been shifted to the accused. It was further argued
that if the accused is taking the defence that the cheque was kept
for the purchase of a truck, he had not brought on record any
detail regarding a substituted cheque given by him for the same
or intimation sent to the bank regarding misplacement.
8. Ld. Counsel for the accused had argued that there exists
some confusion in the version of the complainant regarding the
Digitally signed
by SURABHI
SURABHI RASTOGI
CC No. 22985/2020 RASTOGI Date:
2025.07.22
Virender Kumar vs Vinay Kumar 4 of 17
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CC No 22985/2022nature of relations between the parties, i.e. whether it is a friendly
relationship or they are relatives. He had further argued that the
fact that the complainant had given the loan to the accused from
2014 to 2022 is also not stated in the complaint or in evidence by
way of affidavit. It was further argued that the complaint is silent
about the date of the advancing loan to the accused, and there is
no documentary proof regarding the dates and amount of the
loan. Ld. Counsel for the accused has argued that the
advancement of such a huge loan amount is a violation of the
Income Tax Laws. It was further argued that there is no
receipt/agreement between the parties in respect of these alleged
loan transactions. He had further argued that despite the monthly
earnings of Rs 2-2.5 lakh, the complainant has not filed ITR. It
was argued that the complainant had himself stated that he had
given a personal loan to the accused, but the complainant does
not have the required license to advance the loan. Further, Ld.
Counsel for the accused has also argued that the alleged
transaction never took place, and therefore, there is an absence of
any witnesses to the transaction.
9. I have heard counsel for parties, perused the record and
have gone through relevant provisions of law. The following
points required determination in the present case:
1. Whether the offence punishable under section 138 of the
NI Act is made out against the accused?
2. Whether the complainant proved the guilt of the accused
beyond a reasonable doubt? Digitally signed
by SURABHI
SURABHI RASTOGI
Date:
RASTOGI 2025.07.22
16:31:44
+0530CC No. 22985/2020
Virender Kumar vs Vinay Kumar 5 of 17
CC No 22985/2022LAW UNDER CONSIDERATION
10. To bring home the guilt of the accused, the complainant is
duty-bound to prove the following ingredients of Section 138 NI
Act as held by the Hon’ble Supreme Court of India in the case
titled Aparna A. Shah v M/s Sheth Developers P. Ltd & Anr.
(2013) 8 SCC 7
(i) 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;
(ii) the cheque should have been issued for the
discharge, in whole or in part, of any debt or
other liability;
(iii) that cheque has been presented to the bank
within six months from the date on which it is
drawn or within the period of its validity,
whichever is earlier;
(iv) that cheque is returned by the bank unpaid,
either because the amount of money standing to
the credit of the account is insufficient to honour
the cheque or because it exceeds the amount
arranged to be paid from that account by an
agreement made with the bank;
(v) 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 15
days of the receipt of information by him from
the bank regarding the return of the cheque as
unpaid;
(vi) the drawer of such cheque fails to make Digitally signed
by SURABHI
payment of the said amount of money to the SURABHI RASTOGI
Date:
RASTOGI 2025.07.22
16:31:54
+0530CC No. 22985/2020
Virender Kumar vs Vinay Kumar 6 of 17
CC No 22985/2022payee or the holder in due course of the cheque
within 15 days of the receipt of the said notice.
11. Further, once the accused had admitted his signature on the
cheque in question, the presumption u/s 139 NI Act and Section
118 (a) of the NI Act becomes applicable.
Section 118 (a) of the NI Act provides,
Until the contrary is proved, the following
presumptions shall be made:–(a)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 118 (g) of the NI Act provides,
Until the contrary is proved, the following
presumptions shall be made:–(g) that the holder
is holder in due course –that holder of
negotiable instrument is a holder in due course.
Provided that where the instrument has been
obtained from its lawful owner, or from any
person in lawful custody thereof, by means of an
offence or fraud, or has been obtained from the
maker or acceptor thereof, by means of an
offence or fraud or for unlawful consideration,
the burden to prove that he is holder in due
course lies on him.
Section 139 of the NI Act provides,
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 Digitally signed
or other liability.
by SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:32:02 +0530CC No. 22985/2020
Virender Kumar vs Vinay Kumar 7 of 17
CC No 22985/2022Further, Section 146 of the NI Act provides,
The Court shall, in respect of every proceeding
under this Chapter, on production of a bank’s slip
or memo having thereon the official mark
denoting that the cheque has been dishonoured,
presume the fact of dishonour of such cheque,
unless and until such fact is disproved.
The presumptions raised against the accused are rebuttable
presumptions, and the burden to rebut the same lies on the
accused, and the standard of proof required for rebuttal is
preponderance of probabilities.. The accused can discharge this
burden either by bringing his own evidence or by cross-
examination of the complainant.
FINDINGS
12. In the present case, the complainant has prima facie proved
the ingredients of offence u/s 138 of the NI Act. These are (i)
cheque in question is drawn on account maintained by the
accused as the same is admitted by the accused (ii) the cheque
was dishonoured as shown in return memo therefore presumption
u/s 146 of the NI Act becomes applicable (iii) legal demand
notice was sent address of the accused and (iv) the accused had
not made the payment within 15 days from receipt of the notice.
Now in respect of the question of legally enforceable debt,
presumption u/s 118(a) of the NI Act and Section 139 of the NI
Act comes into play since the accused has admitted his signature
on the cheque in question in the notice of accusation put to him
u/s 251 CrPC. Now the accused has the burden to rebut the case Digitally
signed by
SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:32:11CC No. 22985/2020
+0530Virender Kumar vs Vinay Kumar 8 of 17
CC No 22985/2022of the complainant. To discharge this burden accused had taken
the defence on following grounds.
FIRST DEFENCE- DATES OF LOAN ADVANCED BY THE
COMPLAINANT NOT MENTIONED IN THE COMPLAINT
AND HIS EVIDENCE AFFIDAVIT
13. One of the grounds for defence taken by the accused was
that the complainant had not mentioned the fact regarding the
advancement of a loan on various dates by him to the accused in
his complaint and evidence by way of affidavit. It is correct that
the complainant has not mentioned the fact of advancement of
the total loan of Rs 22,00,000 to the accused over the years in his
complaint or evidence by way of affidavit, but the legal demand
notice mentions various dates of advancement of the loan and the
amount given by the complainant. These dates and amounts of
loan advanced as mentioned in the legal demand notice are-
i. Rs 5,00,000 advanced on 04-10-2014 ii. Rs 1,00,000 on 24-11-
2014 iii. Rs 2,00,000 on 05-12-2014 iv. Rs 3,00,000 on 12-12-
2014 v. Rs 5,00,000 on 20-02-2015 vi. Rs 3,00,000 on 21-02-
2015 vii. Rs 3,00,000 on 27-08-2015. Further, CW1, in his cross-
examination, has also stated the fact of the advancement of the
loan amount in cash to the accused over the years. In the cross
examination, the complainant has also stated about the issuance
of fresh cheques by the accused during this transaction period
which also supports the version of the complainant. Further, the
accused has not brought to on record anything which denies the
Digitally
signed by
SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:32:19
CC No. 22985/2020 +0530Virender Kumar vs Vinay Kumar 9 of 17
CC No 22985/2022fact of the advancement of this loan in parts on various dates by
the complainant to him.
SECOND DEFENCE – ABSENCE OF DOCUMENTS /
RECEIPTS
14. Another ground for defence taken by the accused was the
absence of any documents/receipts regarding this loan
transaction. In Rohitbhai Jivanlal Patel v. State of Gujarat,
(2019) 18 SCC 106, the Hon’ble Supreme Court of India has
held
18. ….The observations of the trial court that
there was no documentary evidence to show the
source of funds with the respondent to advance
the loan, or that the respondent did not record the
transaction in the form of receipt of even
kachcha notes, or that there were inconsistencies
in the statement of the complainant and his
witness, or that the witness of the complaint was
more in the know of facts, etc. would have been
relevant if the matter was to be examined with
reference to the onus on the complaint to prove
his case beyond reasonable doubt. These
considerations and observations do not stand in
conformity with the presumption existing in
favour of the complainant by Sections 118 and
139 of the NI Act. Needless to reiterate that the
result of such presumption is that the existence of
a legally enforceable debt is to be presumed in
favour of the complainant. When such a
presumption is drawn, the factors relating to the
want of documentary evidence in the form of
receipts or accounts or the want of evidence as Digitally signedregards the source of funds were not of relevant
by SURABHI
SURABHI RASTOGI
Date:
RASTOGI 2025.07.22
16:32:27
+0530CC No. 22985/2020
Virender Kumar vs Vinay Kumar 10 of 17
CC No 22985/2022consideration while examining whether the
accused has been able to rebut the presumption
or not.
Applying the above law on the fact before us, though it is correct
that there is no documents/receipt regarding the alleged loan
advanced by the complainant to the accused but there is no
requirement for the complainant to bring on record any
document/receipts of the loan advanced once the presumption u/s
118 NI Act and section 139 NI Act is in the favour of the
complainant.
THIRD DEFENCE- FINANCIAL CAPACITY OF THE
COMPLAINANT
15. Another ground of defence taken by the accused was that
the CW1 in his evidence has stated that he was earning 2-2.5 lakh
monthly at the time of the transaction in question, but he has not
filed his ITRs along with the complaint to support his case. It is
well settled that the complainant does not have the initial burden
to prove his financial capacity unless and until the accused raises
any objection on the same. In M/s S. S. Production v. Tr.
Pavithran Prasanth, 2024 INSC 1059, the Hon’ble Supreme
Court of India has held that
8…. Just by taking a counter-stand to raise a
probable defence would not shift the onus on the
complainant in such a case, for the plea of
defence has to be buttressed by evidence, either
oral or documentary, which in the present case
has not been done. Moreover, even if it is
presumed that the complainant had not proved Digitally
the source of the money given to the petitioners
signed by
SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:32:35
CC No. 22985/2020 +0530Virender Kumar vs Vinay Kumar 11 of 17
CC No 22985/2022by way of loan by producing statement of
accounts and/or Income Tax Returns, the same
ipso facto, would not negate such claim for the
reason that the cheques having being issued and
signed by the petitioners has not been denied,
and no evidence has been led to show that the
respondent lacked capacity to provide the
amount(s) in question.
Applying the above law on the facts in the case, failure of the
complainant to produce Income Tax Returns will not negate the
claim of the complainant as the cheque has been admitted to be
signed by the accused. No evidence has been led by the accused
to show the financial incapacity of the complainant to advance
the loan amount that would shift the burden on the complainant
to prove his financial capacity.
FOURTH DEFENCE- ABSENCE OF LICENSE TO ADVANCE
LOAN
16. Another ground of defence taken by the accused was that the
complainant does not have any license to lend money and the
complainant has used the term personal loan instead of friendly
loan. The use of terminology of personal loan instead of
friendly/loan to relative will not be a ground for requirement of
money lender license, in absence of any fact showing that the
complainant was engaged in money lending business. The
transaction between the parties is apparently a friendly loan or a
loan to a relative. Nothing has been brought on record to show
that the complainant was engaged in the money lending business
Digitally
signed by
SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:32:44
+0530CC No. 22985/2020
Virender Kumar vs Vinay Kumar 12 of 17
CC No 22985/2022or had lent money to other persons, therefore, the ground of
requirement of money lender license is not tenable.
FIFTH DEFENCE- ABSENCE OF WITNESS TO THE
TRANSACTION
17. Another ground taken by the accused was the absence of a
witness to the alleged transaction. CW1, in his evidence, has
stated that it is correct that at the time of advancing the loan to
the accused, no one was present. It is settled law that it is not the
number of witnesses that is important to prove a fact; rather, it is
the quality of the evidence that is relevant to prove a fact. In the
present case. The complainant has stated that the transactions
between the parties does not have any witness and he is sole
witness in this case. Once the accused has admitted his signature
on the cheque, the question of burden on the complainant to
prove the valid consideration is extinguished The burden to prove
that the transaction that resulted in this legal liability never
happened gets shifted on the accused. This burden was not
discharged by the accused.
SIXTH DEFENCE- VIOLATION OF INCOME TAX LAWS
18. Another ground of defence taken by the accused was the
violation of Income Tax Laws by the complainant on account of
an alleged loan given by him to the accused in cash. Hon’ble
High Court of Delhi in Dilip Chawla v Ravinder Kumar 2017 (3)
DCR 358
Digitally
23. The advancement of loan in cash may entail SURABHI
signed by
SURABHI
RASTOGI
negative consequences for a party, especially an RASTOGI Date:
2025.07.22
16:32:53
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Virender Kumar vs Vinay Kumar 13 of 17
CC No 22985/2022Income Tax assessee, as his having acted in
breach of Section 269SS of the Income Tax Act,
1961. Chapter XXB provides for the requirement
as to the mode of acceptance, payment or
repayment in certain cases to counteract evasion
of tax. Section 269SS mandates that no person,
after the cut-off date, shall take or accept from
any other person any loan or deposit otherwise
than by an account payee cheque or an account
payee bank draft if the amount is more than Rs
10,000/-. Breach of Section 269SS of the Income
Tax Act provides a penalty to which a person
would be subjected to under Section 271D.
24. However, Section 271D does not provide that
such a transaction would be null and void. The
payer of money in cash, in violation of Section
269SS of the Income Tax Act, can always have
the money recovered.
Applying the above law, the advancement of loan of more than
Rs 20,000 in cash is a violation of Income Tax Laws but the same
will not render the present transaction as null and void.
OTHER CORROBORATING FACTS
19. Now, other corroborating facts are discussed here. The
accused has not filed any complaint with his bank/ authorities
regarding misplacement of cheque in question. Further, the
accused had not brought on record anything to show that he had
given any substituted cheque for the purchase of the vehicle for
which this duly signed the cheque in question was kept in his
shop/godown. Further, the fact that the accused has not brought
on record anything to show that he was engaged in some
proposed contract to finance a vehicle and had agreed to give Digitally
signed by
SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:33:02
+0530
CC No. 22985/2020
Virender Kumar vs Vinay Kumar 14 of 17
CC No 22985/2022security cheque of exact amount of Rs 22,00,000 for the purpose
of financing that vehicle.
CONCLUSION
20. From the above it can be concluded that the cheque in
question was issued by the accused in favour of the complainant
for discharging the legally enforceable debt. This cheque was
presented for encashment but was dishonoured. Thereafter, the
legal demand notice was issued to the accused by the
complainant, calling him to make the payment. He did not make
the payment, and that led to the filing of the present complaint.
On admission of the accused of his signature on the cheque in
question, the burden to rebut the presumption u/s 139 NI Act was
shifted to the accused. The grounds of defence taken by the
accused had not sufficiently rebutted this presumption. On the
other hand, the complainant has stood firm on his testimony
throughout the trial on all aspects with respect to the outstanding
dues payable. Further, there are other facts that corroborates the
version of the complainant. Thus, this court is of the view that the
present complaint has disclosed the existence of legally
enforceable liability against the accused. The complainant has
been successful in proving all the ingredients of offence
punishable u/s 138 of the NI Act and the accused has failed to
rebut the presumption by creating any reasonable doubt in the
version of the complainant.
Digitally
signed by
SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:33:09
+0530CC No. 22985/2020
Virender Kumar vs Vinay Kumar 15 of 17
CC No 22985/2022
21. The accused, Mr. Vinay Kumar, is held guilty for the
offence punishable under Section 138 NI Act and is convicted
under Section 138 of the NI Act in the present case.
Let the convict be heard on the quantum of sentence.
A Copy of this judgment shall be given dasti to the convict
free of cost as per the rules. Digitally signed
by SURABHI
SURABHI RASTOGI
RASTOGI Date:
Pronounced in open court on 22.07.2025 2025.07.22
16:33:24 +0530(SURABHI RASTOGI)
JMFC (NI Act)-01
DWARKA COURT,
SWD, DELHIPREVIOUSLY PRESIDED OVER AS
(SURABHI RASTOGI)
JMFC (NI Act) DIGI – 10
DWARKA COURT,
SWD, DELHIThis judgment contains 17 pages, and each page bears my
Digitallysignature.
signed by
SURABHI
SURABHI RASTOGI
RASTOGI Date:
2025.07.22
16:33:32
+0530(SURABHI RASTOGI)
JMFC (NI Act)-01
DWARKA COURT,
SWD, DELHICC No. 22985/2020
Virender Kumar vs Vinay Kumar 16 of 17
CC No 22985/2022CERTIFICATE
The convict has been apprised that he can avail the services of
LAC for pursuing higher remedies including filing of appeal
against the aforesaid judgment. The convict has also been
apprised about the address and contact of concerned official from
DLSA, Dwarka Court, South-West, Delhi i.e. Administrative
Block, Ground Floor, Dwarka Court, New Delhi, Phone No.
28041480, email id : [email protected]
Digitally signed
SURABHI by SURABHI
RASTOGI
RASTOGI Date: 2025.07.22
16:33:45 +0530(SURABHI RASTOGI)
JMFC (NI Act)-01
DWARKA COURT,
SWD, DELHICC No. 22985/2020
Virender Kumar vs Vinay Kumar 17 of 17
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