Final Order 15

Order Details: COPY OF JUDGMENT
Pdf Text: CA No. 496/2025
IN THE COURT OF SH. SYED ZISHAN ALI WARSI,
ADDL. SESSIONS JUDGE-02, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS: NEW DELHI
Criminal Appeal No. 496/2025
DLND010083152025
IN THE MATTER OF:
MANJU BALA
W/o Sh. Harish Kumar
R/o 336/I/ADC, Village Munirka,
New Delhi-110067 ...Appellant/Complainant
Versus
SAVITA
W/o Sh. Ravikant Gautam,
R/o 332, Village Munirka,
Near Girls Govt. School,
New Delhi-110067 ...Respondent/Accused
Date of Institution : 08.10.2025
Date of arguments : 05.09.2026
Date of Judgment : 21.09.2026
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JUDGMENT
1. The present appeal is u/s 372 r/w Section 378(4) Cr.P.C.
seeking to set aside the impugned judgment of acquittal dated
07.07.2025 passed by Ld. JMFC-06, PHC, New Delhi in CC No.
15798 of 2018.
BRIEF FACTS:
2. Brief facts in nutshell are like that the complainant is a
housewife and that the Accused is running a private chit fund business
along with various kitties. That the accused aproached the
complainant in the month of April 2016 with a proposal to invest in
gold and the accused again approached the complainant in the month
of May 2016 and told that the gold prices are increasing and it is right
time to buy gold. At the instance of accused, complainant gave the
accused, a sum of Rs.1.5 lakh from her savings against a proper
receipt. That the complainant requested on multiple occasions for
return of the amount but the accused started prolonging the request of
the complainant. Due to delay, heated words were exchanged between
the husband of the accused and the accused on one side and
complainant on the other side. Thereafter, with the intervention of the
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other people in the vicinity, an oral settlement was arrived between the
accused and the complainant that the accused would give three post-
dated cheques of Rs. 3 lakhs each to the complainant to discharge her
liabilities. In order to discharge her liability for the payment of the
amount, accused had issued a cheque bearing no. 013033 dated
02.09.2018 for an amount of Rs. 3,00,000/- in the name of the
complainant. Complainant presented the cheque in question to her
banker for encashment but the same was returned unpaid with the
endorsement "Account Closed". The complainant demanded the above
said amount from the accused but she did not make the payment.
Thereafter, complainant sent legal notice dated 25.09.2018 through
speed post. As the payments were not made, the complainant filed the
complaint under Section 138 of NI Act within the period of one month
of the cause of action.
2.1. After institution of complaint, pre-summoning evidence
was recorded. Thereafter, accused was summoned and notice u/s 251
Cr.P.C. was put to the accused on 16.09.2019, to which the accused
took the defence that her husband had taken a loan of Rs. 1 lakh from
the complainant in the year 2014 and the same was to be returned in
10 installments of Rs. 11000/- each. Towards security of the said loan
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amount, 10 blank signed cheques including the above said cheque was
given to the complainant. The loan amount was returned along with
interest, however, the cheques given as security were not returned and
misused by the complainant.
2.2. In the statement of accused u/s 313 Cr.P.C. recorded on
21.05.2022, accused stated as follows:
“Harish kumar is running a society namely Hari Krishna Society and lend
money to several people on inflated rate of interest. Many people like
neighbours and outsiders take loan from him. My husband also took loan
from him on several occasion which were duly repaid. The complainant
lives in the same vicinity and he was also friends with my husband. In the
year 2014 my husband was in need of money and he took a loan of Rs.
1,00,000/- in January 2014 which was duly paid in ten EMI's of Rs.
11,000/- each (with interest). In this regard complainant asked for security
cheques and at that time some renovation was going on in our house due to
which my husband could not find his own cheque book. So, he asked me to
give my cheques as security on my questioning he said we are friends and
earlier also I have dealt with him and on this I have given my ten cheques
to my husband. Neither I filled the amount, name or date on those security
cheques. Those cheques contains only my signatures. After the repayment of
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each Installment when I asked my husband about those cheques then he
said that Harish told me that the cheques are lying at the office of the
Society at Madangir and he will return later on. And after the payment of
entire loan amount when my husband asked about those cheques than
complainant Harish told my husband that all the cheques are lying at his
home and he could not trace them as white wash was going at his home.
When the cheques started bouncing we went to PS and police officials
refused to lodged our complaint by saying that neither your cheques were
lost nor snatched by someone. So, we cannot lodge an FIR. Now, its a
matter of court trial. I have no transaction whatsoever with complainant
Harish or his wife Manju Bala. All these cases are false. I have never run
or attached with any society/chit fund/ kitty. All the allegation against me
are false.”
2.3. On the basis of the material and evidence adduced by the
parties, the Ld. JMFC acquitted the accused for the offence u/s 138 NI
Act.
2.4. The relevant grounds in my opinion of the present appeal
are as follows:
• The Ld. Trial Court has wrongly shifted the burden of proof
onto the complainant despite the accused’s admission of cheque
issuance and signature.
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• The defence of “security cheque” and alleged repayment is
wholly unsubstantiated and unsupported by records.
• Absence of receipts does not negate liability under Section 138
NI Act, which is cheque based.
2.5. It is prayed that the judgment of acquittal dated
07.07.2025 be set aside.
ARGUMENTS ON BEHALF OF LD. COUNSEL FOR THE
APPELLANTS:
3. It is submitted by the Ld. Counsel for the appellant that
the appellant and the respondent were known to each other and
resided in the same locality thereby the respondent induced the
appellant to invest money in gold schemes and the appellant made
investment of substantial sums over time against receipts and were
later return upon settlement. It is also submitted that the cheque was
issued in discharge of admitted liability and the same was dishonoured
for ‘account closed’. The legal notice was duly served in statutory
time period as well as the complaint u/s 138 NI Act was also filed. It is
also submitted that all the substantial compliances of Section 138 NI
Act was duly complied. It is submitted that the Ld. Trial Court has
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failed to consider presumption u/s 118 & 139 NI Act in favour of the
appellant/complainant while the legally unsustainable defence of
security cheque was considered. The Ld. Trial Court has wrongly
rebutted the evidence on record while the same is established and
corroborated by cogent evidence. The Ld. Trial Court has wrongly
shifted the burden on the complainant while in the light of
presumptions, the burden is on the accused. Lastly, it is submitted that
the findings of the Ld. Trial Court is based on conjectures, surmises
and wrong appreciation of law and the same is liable to be set aside.
4. During arguments, he has placed reliance on certain
judgments:
➔ ICDS Ltd. v. Been Shabeer, (2002) 6 SCC 426.
➔ Bir Singh v. Mukesh Kumar, (2019) 4 SCC 197.
➔ Rangappa vs. Mohan, (2010) 11 SCC 441.
➔ Satish Chand Sharma v. Mukesh Kumar, 2025 SCC OnLine Del
6779.
➔ Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
➔ Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106.
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ARGUMENTS ON BEHALF OF LD. COUNSEL FOR THE
RESPONDENT:
5. Ld. Counsel for the respondent submits that the impugned
order of the Ld. Trial Court is based on correct appreciation of
evidence and law. There is no irregularity or infirmity in the order of
the Ld. Trial Court. The complainant has failed to establish through
cogent and credible evidence the case against the respondent/accused.
It is also submitted that complainant has misused the security cheques
against the accused/respondent as the cheques were given as security
cheques for the purpose of loan taken in the year 2014 by the husband
of the accused/respondent from the Harish Kumar (complainant/AR).
It is also submitted that there are 06 complaints filed by the
complainant husband and wife and the amounts on the cheques is
more than the amount said to be stated to be given as per conjoint
complaints. It is also submitted that total invested amount of Rs.9
lakhs is given as per cheques and demanded money was of Rs.10
lakhs. It is also submitted that the multiple complaints was filed on the
basis of malafide intention as the respondent/accused never run any
kitty while the complainant/AR Harish Kumar is a Government
Servant is unlawfully running Hare Krishna Society via which he
lends money to the neighbours on interest and the independent witness
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produced by the accused/respondent has proved the same by support
of documentary evidence. It is also submitted that the complainant has
not reached the court with clean hands and suppressed the fact with
regard to misuse of security cheques while loan was repaid. Lastly, it
is submitted that the onus of proof u/s 139 NI Act is rebuttable and the
same is rebutted by the accused/respondent and the judgment of
acquittal of the Ld. Trial Court has to be maintained.
6. During arguments, he has placed reliance on certain
judgments:
➢ Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513.
➢ Rangappa vs. Sri Mohan, (2010) 11 SCC 441.
➢ Basalingappa v. Mudibasappa, (2019) 5 SCC 418.
➢ K. John v. Tom Varghese & Anr, 2007(12) SCC 714.
➢ Vijay v. Laxman & Anr., (2013) 3 SCC 86.
ANALYSIS AND FINDINGS
7. Heard Ld. Counsel for Appellants, Ld. Counsel for
complainant/respondent and perused the appeal file as well as the Trial
Court Record.
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8. Before proceeding further, it is essential to consider
Section 138 of NI Act which is reproduced as follows:
“138. Dishonour of cheque for insufficiency, etc., of funds in the
account.—
Where any cheque drawn by a person on an account maintained by him with
a banker for payment of any amount of money to another person from out of
that account for the discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall be deemed to have
committed an offence and shall, without prejudice to any other provisions of
this Act, be punished with imprisonment for a term which may be extended
to two years, or with fine which may extend to twice the amount of the
cheque, or with both:Provided that nothing contained in this section shall
apply unless—
(a) the cheque has been presented to the bank within a period of six months
from the date on which it is drawn or within the period of its validity,
whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be,
makes a demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, [within thirty days of the
receipt of information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount
of money to the payee or, as the case may be, to the holder in due course of
the cheque, within fifteen days of the receipt of the said notice.”
Explanation- For the purposes of this section, “debt or other liability” means
a legally enforceable debt or other liability.
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9. Thus, the essential ingredients of Section 138 NI Act are-
(i) That the person must have drawn a cheque on an account
maintained by him in a bank for payment for a certain sum of money
to another person from out of that account for the discharge of any
legally enforceable debt or liability;
(ii) Cheque has been presented to the bank within a period of
three months from the date on which it is drawn or within the period
of its validity whichever is earlier;
(iii) That cheque has been 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) The payee or the holder in due course of the cheque has
made a demand for the payment of the said amount of money by
giving a notice in writing, to the drawer of the cheque, within 30 days
of the receipt of information by him from the bank regarding the
return of the cheque as unpaid; and
(v) 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.
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10. These essential ingredients were also laid down by the
Hon’ble Supreme Court in the case of Kusum Ingots and Alloys Ltd.
Vs. Pennar Peterson Securities Ltd. (2000) 2 SCC 745.
11. In the present case, the requirements with regard to
signing the cheques i.e. issuance of the cheque, presentation of the
cheque, dishonourment of the cheque, issuance of legal notice and
filing of the complaint are as per the statute and within the statutory
period. The main point for determination in the present appeal is with
regard to the issuance of cheque for legally enforceable debt/liability
or not. In the following paragraphs, the same has been analysed and
dealt with.
12. Before proceeding further, it is relevant to consider the
presumption as provided u/s 139 of the NI Act and the interpretation
with regard to the nature of presumption in the settled principles of
law of Hon’ble High Court and Hon’ble Supreme Court. For the ready
reference, Section 139 NI Act reads as under:
“139. Presumption in favour of holder.—It shall be presumed, unless
the contrary is proved, that the holder of a cheque received the cheque
of the nature referred to in section138 for the discharge, in whole or in
part, of any debt or other liability.”
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13. It is also relevant to consider that the Hon’ble Supreme
Court in Basalingappa v. Mudibasappa; (2019) 5 SCC 418; decided
on 09.04.2019, summarized the law. The following was laid down in
para 25: which is reproduced as below:
"25. We have noticed the ratio laid down by this Court in the above cases on
sections 118(a) and 139, we now summarise the principles enumerated by this
Court in following manner:
25.1. 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.
25.2 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.
25.3 To rebut the presumption, it is open for the Accused to rely on evidence
led by him or the 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.
25.4 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.
25.5 It is not necessary for the Accused to come in the witness box to
support his defence.”
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14. Also, in Kumar Exports vs. Sharma Carpets, (2009) 2
SCC 513, it is observed as follows:
“19. The use of the phrase “until the contrary is proved” in
Section 118 of the Act and use of the words “unless the contrary is
proved” in Section 139 of the Act read with definitions of “may
presume” and “shall presume” as given in Section 4 of the
Evidence Act, makes it at once clear that presumptions to be raised
under both the provisions are rebuttable. When a presumption is
rebuttable, it only points out that the party on whom lies the duty of
going forward with evidence, on the fact presumed and when that
party has produced evidence fairly and reasonably tending to show
that the real fact is not as presumed, the purpose of the
presumption is over.
20. The accused in a trial under Section 138 of the Act has two
options. He can either show that consideration and debt did not
exist or that under the particular circumstances of the case the
non-existence of consideration and debt is so probable that a
prudent man ought to suppose that no consideration and debt
existed. To rebut the statutory presumptions an accused is not
expected to prove his defence beyond reasonable doubt as is
expected of the complainant in a criminal trial. The accused may
adduce direct evidence to prove that the note in question was not
supported by consideration and that there was no debt or liability
to be discharged by him. However, the court need not insist in
every case that the accused should disprove the non-existence of
consideration and debt by leading direct evidence because the
existence of negative evidence is neither possible nor
contemplated. At the same time, it is clear that bare denial of the
passing of the consideration and existence of debt, apparently
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would not serve the purpose of the accused. Something which is
probable has to be brought on record for getting the burden of
proof shifted to the complainant. To disprove the presumptions, the
accused should bring on record such facts and circumstances,
upon consideration of which, the court may either believe that the
consideration and debt did not exist or their non-existence was so
probable that a prudent man would under the circumstances of the
case, act upon the plea that they did not exist. Apart from adducing
direct evidence to prove that the note in question was not
supported by consideration or that he had not incurred any debt or
liability, the accused may also rely upon circumstantial evidence
and if the circumstances so relied upon are compelling, the burden
may likewise shift again on to the complainant. The accused may
also rely upon presumptions of fact, for instance, those mentioned
in Section 114 of the Evidence Act to rebut the presumptions
arising under Sections 118 and 139 of the Act.
21. The accused has also an option to prove the non-existence of
consideration and debt or liability either by letting in evidence or
in some clear and exceptional cases, from the case set out by the
complainant, that is, the averments in the complaint, the case set
out in the statutory notice and evidence adduced by the
complainant during the trial. Once such rebuttal evidence is
adduced and accepted by the court, having regard to all the
circumstances of the case and the preponderance of probabilities,
the evidential burden shifts back to the complainant and,
thereafter, the presumptions under Sections 118 and 139 of the Act
will not again come to the complainant's rescue.”
15. Thus, in the light of the aforesaid discussion, it crystalizes
that the presumption under section 139 is a rebuttable presumption
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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.
16. Now, reverting back to the present case, it is relevant to
mention that the complainant and her husband has filed 06 complaint
cases i.e. CC 15796/2018 titled Harish Kumar Vs. Savita, CC
15798/2018 titled Manju Bala Vs. Savita, CC 15799/2018 titled
Manju Bala Vs. Savita, CC 15800/2018 titled Harish Kumra Vs.
Savita, CC 16289/2018 titled Harish Kumar Vs. Savita & CC
16290/2018 titlted Manju Bala Vs. Savita and among those six
complaint cases 03 cases are filed by complainant Harish Kumar and
03 cases are filed by complainant Manju Bala i.e. wife of complainant
Harish Kumar and in the complaint cases of Manju Bala, Harish
Kumar has appeared her AR i.e. CW-1. It is also relevant to mention
that among the aforesaid 06 complaint cases, in 02 complaint cases i.e.
CC 16289/2018 & CC 16290/2018, the alleged money was taken by
accused for construction of house and in the remaining four complaint
cases i.e. CC 15796/2018, CC 15798/2018, CC 15799/2018 & CC
15800/2018, the alleged money was given to accused for investment
in gold. The period in all the six complaints for alleged payment of
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money is almost near about the same time period and the cheques
were also issued in the same time period i.e. August & September,
2018. The nature of transaction seems to be paradox in nature as in
some of the complains as stated above, the money was given for
investment in gold scheme while on the other hand, the money was
given as loan for construction of house to the accused. The conduct of
providing money does not seems to be prudent as both the situations
cannot exist at the same time that the same accused may be an
investor for the complainants and also the debtor of the complainant.
No prudent man can invest money through a person or on the advise
of a person who is a debtor himself. This cast a shadow of doubt on
the testimony of the complainant.
17. To rebut the presumption u/s 139 of the NI Act, the
defence of the accused Savita remains consistent from her initial
Section 251 Cr.P.C. notice statement till the time of Section 313
Cr.P.C. statement of accused that the husband of her has taken a loan
of Rs.1 Lac from the complainant in the year 2014 and the same was
refunded in 10 installments of Rs.11,000/- each and the cheques were
given as security and the same has been misused by the complainants.
It is also came in her 313 Cr.P.C. statement that Harish Kumar is
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running a society namely Hare Krishna Society and lend money to
several people on inflated rate of interest. Many people like neighbors
and outsiders take loan from him and her husband also took loan
which was duly paid. The accused to rebut the presumption u/s 139 of
NI Act has produced in the deposition box 05 witnesses i.e. Sh.
Kamlesh Devi, Sh. Munna Khan, Sh. Ravi Kant Gautam, Ms. Meera
Poddar and Sh. Alok Ranjan and all those witnesses have deposed that
complainant Harish Kumar runs a society i.e. Hare Krishna Society
and DW-1 Kamlesh Devi has produced a passbook of Hare Krishna
Society Ex.DW1/A(OSR). DW-2 Munna Khan has also produced
documents and passbook of Hare Krishna Society i.e.
Ex.DW2/A(OSR), Ex.DW2/B(OSR) & Ex.DW2/C(OSR) and DW-3
Sh. Ravi Kant Gautam has also produced documents of Hare Krishna
Society i.e. Ex.DW3/A(OSR) and the testimony of these witnesses
and the exhibitted documents have not been rebutted in cross-
examination of those witnesses. While on the other hand, the
complainant has failed to produce any independent witness in support
of the complainant’s case. In the present case, the complainant has to
produce independent witness because as per the submissions in the
complaint, it has been specifically stated that the original receipts
were returned to the accused as with the intervention of the other
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people in the vicinity, an oral settlement was arrived between the
accused and the complainant. Thus, the onus was on the complainant
to either support its case either through documentary evidence and if
the documentary evidence i.e. receipts in the present case are given
back to the accused then only bald submission with regard to oral
settlement in absence of production of any of the witness in support
does not substantiate the narration of the complaint and testimony of
complainant and cast a shadow of doubt on the case of the
complainant and the presumption u/s 139 NI Act in the present case is
rebutted and the accused/respondent has discharged the onus of proof
on the basis of preponderance of probabilities by producing
documentary evidence as well as independent witnesses and accused’s
own defence and the same remain consistent, corroborated and
unrebbuted in cross-examination.
18. Thus, in the light of the aforesaid discussion, it
precipitates that the appellant/complainant had not approached the
courts with clean hands. It is also relevant to consider the observations
made by Hon’ble Supreme Court in K. John v. Tom Varghese & Anr,
2007(12) SCC 714 which is as follows:
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“11. Relationship between the parties is not in dispute. The
complainant is a partner of a firm which is in the business of
running chitty fund. The fact that the respondent subscribed
three chitties and that he could not pay the instalments of the
prized amount is not in dispute. Pendency of three civil suits
filed by the firm through the appellant against the respondent
is also not in dispute. The High Court upon analysing the
materials brought on record by the parties had arrived at a
finding of fact that in view of the conduct of the parties it
would not be prudent to hold that the respondent borrowed a
huge sum despite the fact that the suits had already been filed
against him by the appellant. Presumption raised in terms of
Section 139 of the Act is rebuttable. If, upon analysis of the
evidence brought on record by the parties, in a fact situation
obtaining in the instant case, a finding of fact has been
arrived at by the High Court that the cheques had not been
issued by the respondent in discharge of any debt, in our
opinion, the view of the High Court cannot be said to be
perverse warranting interference by us in exercise of our
discretionary jurisdiction under Article 136 of the
Constitution. The High Court was entitled to take notice of
the conduct of the parties. It has been found by the High
Court as of fact that the complainant did not approach the
Court with clean hands. His conduct was not that of a
prudent man. Why no instrument was executed although a
huge sum of money was allegedly paid to the respondent was
a relevant question which could be posed in the matter. It was
open to the High Court to draw its own conclusion therein.
Not only had no document been executed, even no interest
had been charged. It would be absurd to form an opinion that
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despite knowing that the respondent was not even in a
position to discharge his burden to pay instalments in respect
of the prized amount, an advance would be made to him and
that too even after institution of three civil suits. The amount
advanced even did not carry any interest. If in a situation of
this nature, the High Court has arrived at a finding that the
respondent has discharged his burden of proof cast on him
under Section 139 of the Act, no exception thereto can be
taken.”
19. Further, the observations and findings of the Ld. Trial
Court in the opinion of this court is made after proper appreciation of
the evidence on record as can be seen from the following paras of the
Ld. Trial Court’s judgment which is reproduced as below:
“16. In the present case, the court holds that the accused has successfully
resütied the mandatory presumption of law and has also controverted the
story of the complainant and has established her own story. The opinion of
the court is based upon the observations in the following paragraphs.
17. The accused in her plea of defence, her statement under section 313
Cr.P.C and in her examination -in- chief has consistently taken the defence
that in the year 2014, her husband took a loan of Rs 1,00,000 from the
husband of the complainant as the husband of the complainant runs a
society named as Hare Krishna Society (money lending business) and that
the accused has returned the said loan amount in 10 EMI's installments of
Rs. 11,000/- each (with interest). The witnesses produced by the accused
support the defence raised by accused that the complainant runs a society in
the name of Hare Krishna Society and lends money to people on interest
and take security cheques.
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18. The complainant was unable to prove the fact that how much money she
allegedly invested in the gold scheme. No evidence has been brought on
record by the complainant to prove that she had given around Rs. 9 lakhs in
total to the accused as deposed by the AR of the Complainant in his cross
examination. In the absence of any concrete evidence of investing of Rs. 1.5
Lakhs as well as unvalued money given in intervals by the complainant to
the accused, as alleged in the present complaint, in the gold scheme
business and in the light of unrebutted and uncontroverted defence of
accused of merely having taken only Rs. 1,00,000 and having returned the
same with interest, the version of the story of the complainant does not
inspire the confidence of this court as accused has successfully brought the
case of the complainant under the shadow of doubt. Furthermore, it is
perplexing that the complainant has only demanded the amount she had
allegedly given to the accused. The complainant did not demand any profits
from the alleged gold scheme as no prudent investor would do that.
19. It is a well settled law that the presumption lies in favour of the
complainant in terms of section 139 N.1. Act but the said presumption is
rebuttable in nature. The said presumption can be rebutted by the accused
by producing independent evidence or from the case of the complainant
itself. In the present case the accused has produced sufficient evidences
before the court to rebut the presumption under section 139 N.I. Act against
him. Once the presumption is rebutted, the burden to prove her case shifts
upon the complainant. In the present factual matrix, the complainant has
miserably failed to prove his version of story after the burden to prove his
case shifted upon him. He did not bring any evidence on record to prove
that he had given Rs. 2 Lakhs to the accused or any other amount from the
month of May 2016 till the month of July 2018 for investment in gold
scheme.
20. That the complainant has failed to furnish any documentary proof in
support of the alleged amount advanced to the accused as stated in
complaint. As per the Para No. 6 of the complaint, allegedly, the
complainant gave Rs. 1,50,000/- to the accused against a proper receipt and
later on as per Para No. 7 allegedly gave moncy in installments during
intervals to the accused against proper receipts. The complainant does not
mention any specific dates or amounts paid in intervals nor denomination of
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CA No. 496/2025
the currency notes she gave to the accused. This implies that a concocted
story has been made by complainant with mala fide intentions. It is notably
seen that averments made by the complainant are not specific in nature and
made more in ambiguous nature. And whatsoever, averments made by the
complainant were not proved by the complainant.
21. It is worth observing that the complainant chose not to keep any recred
the entire transaction or copy of any receipt he received at the time of
advancement of loan. It is quite implausible for someone to have invested
such s huge amount in a gold scheme even when there are no close-family
relations between both the parties, unsupported by any documentary proof.
Mere averments of the Complainant that receipts were prepared and were
returned back to the Accused at the time of receiving the cheque in question
cannot be accepted in absence of any evidence as well as the other factual
doubts arising in the story of Complainant. The law has been settled in K.
John v. Tom Vargese: JT 2007 (13) SC 222 wherein the Apex Court has
observed as under:
"10 The High Court was entitled to take notice of the conduct of the
parties. It has been found by the High Court as of act that the
complainant did not approach the court with clean hands. His conduct
was not that of a prudent man. Why no instrument was executed although
a huge sum of money was allegedly paid to the respondent was a relevant
question which could be posed in the matter. It was open to the High
Court to draw its own conclusion therein. Not only no document had been
executed, even no interest had been charged. It would be absurd to form
an opinion that despite knowing that the respondent even was not in a
position to discharge his burden to pay instalments in respect to the
prized amount, an advance would be made to him and that too even after
institution of three civil suits. The amount advanced even did not carry
any interest. If in a situation of this nature, the High Court has arrived at
a/finding that the respondent has discharged his burden of a proof cast on
him under Section 139 of the Act, no exception thereto can be taken."
22. Mere production of cheque carnet make the case of the compt ute and
sacrosanct. It is necessary for the complainers to prove that de choque has
been issued against the liability of the recused to repay for me liability
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CA No. 496/2025
advanced to the accused with evidence of impeccabile and imevocable
character. The sccused had to raise a probuble defence on the standard of
preponderance of probabilities and the inference of the preponderance of
probabilities can be drawn not only from the materials on record, but also
by reference to the circumstances upon which the complainant relies. In
view of the facts and circumstances discussed above, the defence raised by
the sccused appears to be genuine as well as reasonable. The accused has
succeeded in rebutting the statutory presumption in favour of the
complainant. It is settled principle of criminal law that the benefit of doubt
has to be given to the accused when a doubt of the liability of accused
arises and the liability of accused is not proved beyond reasonable doubt.
23. Another major doubt created is that in what type or kind of gold scheme
was offered to the complainant by the accused. It is nowhere mentioned in
other three connected complaints as well, the only answer given by the
complainant is "day by-day prices of gold is increasing so invest in gold". It
is still doubtful in the present case, that the alleged amount was invested for
what grams of gold, for what carat of gold, for what period and for what
profit on investment. Neither the name of gold scheme nor any document
regarding the same is brought on record. Hence, the benefit of doubt has to
be given to the accused.
24. It is worth observing that the Para 12 of the complainant states "with
the intervention of the other people in the vicinity, an oral settlement was
arrived between the accused and the complainant that on 20.08.2018,
accused would give three post-dated cheques of Rs.3,00,000/- cach to the
complainant and the complainant shall return all the original money
receipts to the accused." It is notably seen that complainant did not mention
any name of people of vicinity and also did not call any person as witness to
support his version or to prove his case. Thus, making a huge shadow of
doubt again in the version of complainant.”
20. In view of the above discussion and reasoning, this Court
does not find any merit in the appeal and the case laws relied by Ld.
Counsel for the appellant is not applicable to the facts and
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circumstances of the present case as the facts and circumstances of the
present case are different. Accordingly, present appeal is dismissed.
The impugned judgment dated 07.07.2025 is upheld.
Parties to bear their own cost of appeal.
TCR be sent back with copy of this judgment.
Appeal file be consigned to Record Room after
necessary compliance. Order dasti.
Announced in the SYED ZISHAN ALI WARSI
open court on 21.09.2026 ADDL. SESSIONS JUDGE-02,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS,
NEW DELHI/21.09.2026
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