Interim Order 9

Order Details: COPY OF JUDGMENT
Pdf Text: (RK)
ORDER
CA 111/2025
IN THE COURT OF BABRU BHAN, ADDL. SESSIONS
JUDGE-04, NORTH-EAST, KARKARDOOMA COURTS,
DELHI
Criminal Appeal No. 111/2025
Jitender Vs. Priya Sharma
IN THE MATTER OF:
Sh. Jitender,
S/o. Sh. Kishan Lal,
R/o. H.No-20, Gali No-1, …Appellant
Village- Gamri, PS-Bhajan Pura,
Delhi-110053
Versus
1. Smt. Priya Sharma
W/o- Sh. Lokesh Sharma,
R/o- V-747/2, Gali No-1, Vijay Park,
Maujpur, Delhi-110053 ...Respondents
2. The State (Govt NCT of Delhi)
Date of Institution : 10.07.2025
Date of Judgment : 03.02.2026
JUDGMENT
Jitender Vs. Priya Sharma
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1. Vide this Order, this Court shall dispose of a criminal
appeal preferred against the judgment dated 13.06.2025,
passed by Ld. JMFC (NI Act), Digital Court, North-East
District, KKD Courts, Delhi, in case titled as “Jitender Vs.
Smt. Priya Sharma, CC No-739/2021 filed U/s 138 of NI
Act”.
2. Before proceeding with the order on merits, this
Court deem it appropriate to reiterate the facts of the case.
As per the facts alleged in the complaint filed before Ld.
JMFC (hereinafter referred as the Ld. Trial Court), the
respondent/accused had approached the
appellant/complainant for a friendly loan in March 2021 for
purchasing a plot. Initially, on 07.03.2021,
appellant/complainant provided cash amount of
Rs.1,00,000/- to the respondent/accused. Again, on
15.03.2021, respondent/accused approached the
appellant/complainant and demanded further sum of Rs.
1,00,000/- for the construction of the aforesaid plot.
Appellant/complainant again provided the desired amount
to the respondent/accused on 21.03.2021. The
respondent/accused agreed to return the said amount of Rs.
2,00,000/- by 1st Week of September, 2021.
3. Instead of returning the amount already received, the
respondent/accused again approached the
appellant/complainant and demanded further amount of Rs.
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1,50,000/- in cash. Appellant/complainant withdrew that
amount from his bank account and gave the same to
respondent/accused on 09.04.2021. For the fourth time,
respondent/accused approached the appellant/complainant
on 05.05.2021 with a further demand of Rs. 1,50,000/-.
Appellant/complainant fulfilled that demand also on
09.05.2021.
4. Again on 15.06.2021, respondent/accused
approached the appellant/complainant and further
demanded an amount of Rs. 1,00,000/-.
Appellant/complainant provided desired amount of Rs.
1,00,000/- in cash on 20.06.2021. That amount was also
withdrawn by the appellant/complainant from his bank
account. On 25.06.2021, respondent/accused once again
approached the appellant/complainant and made further
demand of Rs. 65,000/- in cash. Once again, the
appellant/complainant withdrew that amount from his bank
account and paid the same to the respondent/accused on
27.06.2021. The respondent/accused assured the
appellant/complainant to return the entire borrowed amount
of Rs. 6,65,000/- in the 1st week of September, 2021.
5. On 21.08.2021, a written agreement was also
executed between the appellant/complainant and
respondent/accused for the aforesaid loan transactions in
presence of one witness namely Baby Kaur. On 21.08.2021,
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the respondent/accused also issued two cheques bearing no-
000006 dated 25.08.2021 for an amount of Rs. 3,35,000/-
and cheque bearing no- 000007 dated 27.08.2021 for an
amount of Rs. 3,30,000/- (hereinafter referred as impugned
cheques) both drawn on Kotak Mahindra Bank, Yamuna
Vihar, Delhi in favour of the appellant/complainant.
Needless to say, the aforesaid impugned cheques were
issued by the respondent/accused in discharge of her
liability arising out of the loan transactions detailed above.
6. On presentation, the aforesaid cheques were
dishonoured for the reasons and remarks ‘Account Closed'
on 06.09.2021. The appellant/complainant intimated the
respondent/accused regarding the dishonour of the cheques
but no payment was made. Thereafter, the
appellant/complainant got issued a legal demand notice
dated 16.09.2021 and same was delivered upon the
respondent/accused. Despite service of legal demand notice,
the respondent/accused failed to make the payment of
aforesaid cheques amount within the statutory period.
7. On appearance, a statutory notice U/s 251 of Cr.P.C
for the offence U/s 138 of N.I Act was served upon the
respondent/accused to which he pleaded not guilty and
claimed to be tried.
8. To prove its case, appellant/complainant examined
himself as CW-1 and tendered his evidence by way of an
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affidavit. In support of his case, he filed following
documents:
a. Written Agreement- Ex.CW1/1.
b. Original Cheque bearing no-000006- Ex.CW1/2.
c. Original Cheque bearing no-000007- Ex.CW1/3.
d. The Return Memo dated 06.09.2021 as
Ex.CW1/4.
e. The Return Memo dated 06.09.2021 as
Ex.CW1/5.
f. The Legal demand notice as Ex.CW1/6.
g. The postal receipt as Ex.CW1/7.
h. The reply to the legal notice is Ex.CW1/9.
i. Bank Statement is Mark A.
9. The appellant/complainant was duly cross-examined
by Ld. Counsel for the respondent/accused.
10. The complainant's evidence was followed by
statement of the accused U/s 313 of Cr.P.C. The entire
incriminating evidence produced by the
appellant/complainant in support of his case, was put to the
respondent/accused but she denied the case of the
appellant/complainant and pleaded the defence that
appellant/complainant had stolen the impugned cheques
from her bag while she had gone to Vijay Nagar, Ghaziabad.
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She further explained that she had also filed a complaint in
this regard.
11. During defense evidence, respondent/accused
examined herself as DW-1. She was duly cross-examined by
Ld. Counsel for the appellant/complainant. Thereafter, DE
was closed.
12. Ld. Trial Court, after hearing the final arguments
and appreciating the evidence adduced, acquitted the
respondent/accused from the charges of offence U/s 138 of
Negotiable Instrument Act vide impugned judgment dt.
13.06.2025.
13. During course of arguments, Ld. Counsel for the
appellant/complainant has submitted that the
respondent/accused had executed a written
acknowledgment Ex.CW1/1 whereby the
respondent/accused had admitted having availed the
friendly loan as well as the issuance of signed cheques. That
document alone was sufficient to establish the legal liability
of the respondent/accused to the tune of Rs. 6,65,000/- but
Ld. Trial Court ignored that document without any legal
justification.
14. Ld. Counsel has further submitted that Ld. Trial
Court failed to appreciate that had any cheque of the
respondent/accused been actually stolen, she would have
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made specific complaint when she came to know about the
same. She would have also informed her bank about the
same but no such steps were taken by the
respondent/accused.
15. It is also submitted by Ld. Counsel for the
appellant/complainant that the reason for the dishonour of
cheques mentioned in the return memo is ‘account closed’.
The respondent/accused had issued the cheques despite
having knowledge that her account was closed. It shows
that respondent/accused had dishonest intention from the
very beginning. She also did not disclose the date of closure
of her bank account. She also did not elaborate in her reply
to legal demand notice that her cheques were stolen.
16. On the other hand, Ld. Counsel for the
respondent/accused has submitted that the
respondent/accused had not borrowed any amount from the
appellant/complainant. She was blackmailed and her video
was also recorded. She had also lodged a complaint in this
regard. She had met the complainant/appellant as he had
introduced himself as a medical insurance agent. He had
called the respondent/accused at Vijay Nagar, Ghaziabad.
All her documents including cheque-book, aadhar card, her
child’s cheque-book, fee cards etc. were stolen from there.
The respondent/accused had also filed a complaint Mark-
X2 in this regard.
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17. Arguments heard. Record has been perused.
18. In order to prove an offence u/s 138 of N.I. Act,
complainant is required to prove the following ingredients:-
(i) That the accused has issued a cheque on an account
maintained by him ;
(ii) The cheque is issued in discharge of any debt or liability ;
(iii) The cheque is presented for encashment within period of its
validity ;
(iv) The cheque is returned unpaid on account of insufficiency
of funds ;
(v) The payee or holder in due course has made the demand of
the cheque amount from the drawer by giving a notice in writing
within 30 days of the receipt of information of dishonour by him
; and
(vi) The drawer of the cheque has failed to make the payment of
the cheque amount within 15 days of the receipt of the notice.
19. In case in hand, at the time of framing of notice U/s
251 of Cr.P.C dated 08.02.2022, the respondent/accused
was specifically asked about the issuance of cheques in
question. In response to the notice, she replied that although
the cheques were bearing her signatures, but same were not
issued in discharge of any debt or liability. She went to
explain that the appellant/complainant had stolen her
cheques which were kept in her bag and she had also filed a
complaint in this regard. When the respondent/accused was
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called upon to explain the evidence against her in terms of
statement u/s 313 of Cr.P.C, she again admitted her
signatures upon the impugned cheques. The perusal of the
cross-examination of the appellant/complainant would
reveal that the complainant was not subjected to any
question disputing the signatures of the respondent/accused
on the impugned cheques. Thus, the appellant/complainant
has successfully proved that the cheques in question bear
the signatures of the respondent/accused.
20. Similarly, the dishonour of the cheques and the
service of legal demand notice have also not been disputed.
Reference of the statement of the accused u/s 313 of Cr.P.C
can be taken in this regard, where respondent/accused
clearly admitted the dishonour of the cheques and service of
legal demand notice. Further, it also stands proved through
the dishonour memo Ex.CW1/4 and Ex. CW1/5 and postal
receipts Ex.CW1/7 and registered AD Ex.CW1/8 that the
cheques in question were dishonoured on the account of
‘Account Closed’ and the payment was not made despite
service of legal demand notice.
21. Now comes the only substantial defense pleaded by
the respondent/accused that appellant/complainant had
stolen a bag of respondent/accused containing the
impugned cheques. The respondent/accused has further
claimed that the stolen cheques were misused by the
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appellant/complainant and she had also made a complaint
Mark-X in this regard.
22. In a case u/s 138 of N.I. Act, once it is proved that
cheque in question is signed by the drawer, a presumption
u/s 118 (a) would automatically arise that same was issued
for consideration. Section 139 of the Act further provides
that unless the contrary is proved, it shall be presumed that
holder of a cheque received the same for discharge, in
whole or part, of any debt or liability. Both of these
presumptions are rebuttable in nature. If the accused
successfully proved to have discharged the initial burden of
showing that existence of the consideration was improbable
or doubtful or same was illegal, the onus would shift to the
complainant, who would oblige to prove that the cheque
was issued in discharge of liability. To disprove these
presumptions, the accused has to bring on record such facts
and circumstances upon consideration of which, the court
may either believe that the consideration did not exist or its
non-existence was so probable that a prudent man would,
under the circumstances of this case, act upon the plea that
it did not exist.
23. In case titled as
Kumar Exports Vs. Sharma Carpets
(2009) 2 SCC 513, Hon'ble Apex Court of India has made
following observations on the quality of evidence required
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to be given in rebuttal. The relevant observations are as
under:-
“..........To rebut the statutory presumption, an accused is
not expected to prove his defence beyond reasonable doubt
as it is expected of the complainant in a criminal trial. …....
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
would not serve the purpose of the accused. Something
which his 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... the
accused may also rely upon the circumstantial evidence
and if the circumstances so relied upon are so
compelling..........”.
24. Here in this case, the respondent/accused has
admitted her signatures on the impugned cheques during
the trial. The statutory presumptions u/s 118 (a) and 139 of
the NI Act had therefore, arisen in the favour of the
appellant/complainant. The onus was upon the
respondent/accused to rebut the statutory presumption. The
defense pleaded by the respondent/accused during the entire
trial is that her bag containing the impugned cheques was
stolen by the appellant/complainant and subsequently the
said cheques were misused and the present complaint was
filed. In order to support her defense, the
respondent/accused has produced a complaint Mark-X
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which she had allegedly given to the police of PS Vijay
Nagar, Ghaziabad.
25. First of all, the respondent/accused did not summon
any police official from PS Vijay Nagar to prove the
aforesaid complaint Mark-X. Thus, the aforesaid complaint
has remained unproved. Therefore, Ld. Trial Court has
erred in relying upon the said complaint Mark-X. Further,
the complaint Mark-X is nothing but a self-serving
document/statement. There is no presumption in law that
the contents of a complaint given to the police are always
correct. If such kind of complaints are accepted as a valid
defense, then it would become very convenient for a
dishonest borrower to obtain a loan, issue a cheque and then
subsequently lodge a complaint against the payee to evade
the liability of the repayment of the loan. In that situation,
the very objective of section 138 of N.I Act which is to
promote the efficiency of banking operations and to
enhance the credibility of transaction through cheques shall
be defeated.
26. Further, an agreement Ex.CW1/1 was also executed
between the appellant/complainant and respondent/accused.
It is clearly mentioned in the agreement that the
respondent/accused had taken a friendly loan of Rs.
6,65,000/- from the appellant/complainant. This agreement
further records that 02 cheques bearing no-000006 and
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000007 for an amount of Rs. 3,35,000/- and 3,30,000/-
respectively were issued by the respondent/accused in
favour of the appellant/complainant to discharge the
liability arising out of the aforesaid loan. The said
agreement bears the signatures of the respondent/accused
and same have not been disputed by her during the trial.
The respondent/accused has attempted to wriggle out of the
aforesaid agreement by alleging that some blank
documents were got signed by the appellant/complainant at
the time when she had taken a medical policy. Relevant it
would be to note here that the agreement Ex.CW1/1 is
executed on a stamp paper purchased on 21.08.2021 when
some dispute had already arisen between the
appellant/complainant and respondent/accused. She had
already lodged a complaint Mark-X against the
appellant/complainant on 12.08.2021 before execution of
the agreement.
27. The fact that the respondent/accused had already
lodged a complaint Mark X against the
appellant/complainant before execution of agreement
Ex.CW1/1 indicates that the respondent/accused had
subsequently executed and signed the agreement Ex.CW1/1
knowing that she had fabricated a defense in form of a
complaint Mark X on 12.08.2021. Further, it has not been
explained by the respondent/accused that when she had
already lodged a complaint against the
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appellant/complainant, why she signed the agreement
Ex.CW1/1 on 21.08.2021 (the stamp paper on which the
agreement is executed is of date 21.08.2021).
28. Further, Section 91 and 92 of Indian Evidence Act
codifies that when the terms of a contract or of a grant or of
any other disposition of property have been reduced to a
form of document, no evidence shall be given in proof of
the terms of such contract, grant or other disposition of
property, except the document itself. The exclusion of oral
evidence in favour of a written document represents one of
the corner stone principle of law of evidence ensuring
reliability, certainty and prevention of fraud in transaction
reduced into writing. This doctrine is commonly known as
best evidence rule, which prioritize documentary proof over
oral testimony when the terms of certain matters are
embodied in a written form. Although, there are some
exceptions to the aforesaid rule of best evidence including
the oral proof of the facts which may invalidate the
document itself.
29. In this case, the respondent/accused has sought to
explain that she had signed some documents for obtaining
medical policy through the appellant/complainant.
Apparently, she has attempted to project that the papers
upon which the agreement Ex.CW1/1 has been executed
was also got signed from her on the pretext of said policy
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documents and this agreement was typed subsequently
upon the same. The respondent/accused has not produced
any such medical policy purchased from the
appellant/complainant. She has also not explained
anywhere that when she had already filed a complaint Mark
X against the appellant/complainant on 12.08.2021, why
did she sign the agreement Ex.CW1/1 on 21.08.2021 on any
pretext whatsoever. Furthermore, she has not produced any
other evidence to show that this agreement Ex.CW1/1 was
got signed from her on pretext of medical policy
documents. In considered opinion of this court, this hollow
argument made on behalf of respondent/accused that she
had signed medical policy documents shall not be sufficient
to discard the agreement Ex.CW1/1.
30. In view of the discussion above, this court is not
inclined to accept the reasoning given by the Ld. Trial
Court on the credibility of loan transactions. This court does
not see any reason for which the agreement Ex.CW1/1 can
be ignored or visited with any suspicion. Thus, this
document is sufficient to prove that respondent/accused had
availed loan of Rs. 6,65,000/- from the
appellant/complainant and had issued the impugned
cheques in discharge of the said liability.
31. Further, the bank statement of appellant/complainant
would reflect the withdrawal of Rs. 03 Lakh on 19.02.2021,
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Rs. 01 Lakh and 03 Lakhs on 11.01.2021 and Rs. 1,60,000/-
on 31.03.2021 for self. This court understands that the
aforesaid withdrawals alone shall not be sufficient to prove
that the aforesaid amount was withdrawn by the
appellant/complainant for disbursal of loan amount to the
respondent/accused. However, since the withdrawals were
made during the same time period when the
appellant/complainant had provided the loan amount to the
respondent/accused in installment, these cash withdrawals
shall add some additional corroboration to the case of the
appellant/complainant that he had provided loan to the
respondent/accused.
32. In view of the above discussion, there is no room for
doubt that the appellant/complainant had provided a loan of
Rs. 6.65 Lakh to the respondent/accused between March to
June 2021. Thereafter, terms of the said agreement and
issuance of impugned cheques were reduced into writing in
form of agreement Ex.CW1/1 on 21.08.2021. The
respondent/accused has not disputed her signatures on the
agreement Ex.CW1/1. The impugned cheques were
presented for encashment but same were returned unpaid
for the reasons and remarks “Account Closed”. A legal
demand notice was sent to the respondent/accused and same
was duly served upon her. The service of legal demand
notice has not been denied. The respondent/accused made a
feeble attempt to plead a defense that her bag containing the
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impugned cheques was stolen by the appellant/complainant
but the complaint Mark X given in this regard has not even
been proved in the court. Thus, the appellant/complainant
has successfully proved all the ingredients of offence U/s
138 of N.I Act, therefore, the impugned order of acquittal
shall not be sustainable in the eyes of law. Accordingly, the
impugned judgment dated 13.06.2025 is hereby set aside.
Respondent/accused is hereby convicted for offence U/s
138 of N.I Act.
33. Let the appeal be put up for arguments on sentence
on 09.02.2026 at 03:00 PM.
34. Copy of this judgment be given dasti to the
respondent/accused.
35. Ordered accordingly.
Pronounced in open Court
on 03rd of February, 2026.
(Babru Bhan)
ASJ-04/North-East District
KKD/Delhi/03.02.2026
Jitender Vs. Priya Sharma
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