Final Order 6

Order Details: COPY OF JUDGMENT
Pdf Text: CNR No. DLNE010027092025
IN THE COURT OF SH BALWINDER SINGH
ADDL. SESSIONS JUDGE (FTC), NORTH EAST
KARKARDOOMA COURT: DELHI
Crl. Appeal No. 168/2025
CNR No. DLNE010027092025
Hans Raj
S/o Sh. Prabhu Dayal
R/o H. No. 6395/7, Gali No. 3-4,
Dev Nagar Karol Bagh Central, Delhi.
Presently residing at:
690, Pocket-C, Bakkarwala,
Lok Nayak Puram, DDA Flats,
Mundka Industrial Area, Mundaka Delhi.
…..Appellant
Vs.
Sh. Nagendra Sharma
S/o Late Sh. G.C. Sharma,
R/o C-1/28, first floor,
Yamuna Vihar, Delhi-53.
…...Respondent
PS- Bhajanpura
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Judgment reserved on : 24.12.2025
Judgment delivered on: 29.01.2026
JUDGMENT
1. The present appeal u/s 374 Cr.P.C./415 BNSS has been filed on behalf of the
appellant assailing the judgment dated 28.07.2025 and order on sentence dated
04.08.2025 passed by Ld. JMFC-NI Act (Digital Court), North-East, KKD Court,
in the complaint case bearing CC no. 774/2022 filed u/s 138 NI Act titled as
‘Nagendra Sharma Vs. Hans Raj’ whereby the appellant was convicted for the
commission of offence u/s 138 NI Act and was sentence to a simple imprisonment
for a period of one month alongwith fine of Rs. 10 lacs to be paid as compensation
to the original complainant. Furthermore, in default of paying the
fine/compensation amount of Rs.10,000,00/-, the appellant was sentenced to
undergo further Simple Imprisonment for a period of Two Months.
2. Pursuant to the filing of appeal, notice thereof was also issued to the
respondent. Respondent also put in his appearance through his counsel. However,
no separate reply to the appeal has been filed on behalf of respondent.
3. Before proceeding to dispose of the appeal in hand on its merits, for
convenience and better understanding, the brief facts of the original complaint of
the respondent are summarized as follows. Further, to avoid confusion the parties
are also referred to by their titles as were in the original complaint:
“The complainant and accused (appellant) were having friendly relations for
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past around 8-9 years after the accused was introduced to the complainant by his
uncle Sh. Kritendra Sharma. During July 2018, owing to some financial
difficulties, the accused approached the complainant for a financial help and
considering the past relationship, the complainant transferred different sums of
amount from his bank account in favour of the accused over a period of time
starting with effect from 26.07.2018 till 19.09.2019 totaling a sum of Rs. 9 lacs.
The complainant further asserts that since the amounts of loan granted to the
accused had increased significantly and there was also no repayment, he requested
the accused to prepare the loan documents and set a date for repayment to keep the
record straight. However, the accused requested the complainant to allow him to
make the repayment of the entire borrowed amount through a cheque by
18.04.2022. The request was accepted by the complainant. Further, a loan
agreement dated 19.09.2019 qua the borrowed amount comprising of Agreement to
Borrow Money, Receipt and Undertaking/Handing Over the cheque bearing No.
294761 dated 16.04.2022 drawn on State Bank of India, Arya Samaj Road, Karol
Bagh, New Delhi, was also executed by the accused in favour of the complainant
towards the discharge of his liability.
On 16.04.2022, the complainant presented the abovesaid cheque bearing no.
294761 for encashment. However, on presentation, the same got dishonored due to
insufficiency of funds vide return memo dated 18.04.2022. Thereafter, the
complainant served a legal demand notice dated 13.05.2022 upon the accused.
However, despite the service of the legal demand notice, the accused failed to
make the payment of the cheque within the stipulated period which led to the
ultimate filing of the complaint in question”.
4. In his present appeal, the following grounds have been raised by the
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appellant to challenge the impugned judgment and order on sentence dated
28.07.2025 and 04.08.2025 respectively passed by the Ld. Trial Court :
(i) The impugned judgment and order on sentence were passed by the Ld. Trial
court in a mechanical and arbitrator manner without proper appreciation of all the
material and evidences available on record.
(ii) The impugned judgment and order on sentence are based on surmises and
conjectures and against the law.
(iii) The Ld. Trial Court failed to appreciate that it is highly improbable that a
person who is advancing loan will pay the loan amount in installments for more
than a year as alleged by the respondent/original complainant.
(iv) The Ld. Trial Court failed to appreciate that the alleged loan agreement
relied upon by the respondent/original complainant was having over writing which
establishes that the same was filled later on and was created by the respondent with
a sole motive to create false supporting document.
(v) The Ld. Trial Court failed to appreciate that the cheque in question was a
security cheque and has been misused by the respondent.
(vi) The Ld. Trial Court failed to appreciate that the version of the
respondent/original complainant in his complaint and legal notice dated 13.05.2022
were completely contrary since the legal notice reveals that the loan was to be
repaid by 31.12.2021 whereas in his complaint it was stated that the repayment was
assured by 18.04.2022.
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(vii) The Ld. Trial Court failed to appreciate that the respondent/original
complainant conceded the fact that the loan amount was not shown by him in his
ITRs and the same reveals that the alleged loan never existed.
(viii) The Ld. Trial Court failed to appreciate that the respondent/original
complainant failed to prove its case as the burden was upon him to prove that the
cheque in question was issued in discharge of legally enforceable debt.
5. During the course of arguments also, while making his submissions on
behalf of the appellant similar submission were again made by his Ld. Counsel and
it was also argued that the discrepancies in the legal demand notice and the main
complaint regarding the actual date of repayment of alleged loan and the mode of
payment of the installments of the alleged loan (i.e through cheque or NEFT) also
cast serious shadow of doubt over the case of original complainant/respondent. It is
also submitted that similarly since the accused has taken the same stand through
out the trial that the entire loan amount already stands repaid, the case of the
original complainant/respondent remains not proved and he has failed to establish
that the cheque in question was issued towards the discharge of any legally
enforceable debt. Hence, it is prayed that the appeal of the appellant may be
allowed and the impugned judgment and order on sentence being illegal and
untenable in the eyes of law, be set aside and the appellant may be acquitted of
offence u/s 138 N.I Act.
6. Per contra, opposing the appeal, the Ld. Counsel for the respondent had
argued that the appeal of the appellant is completely meritless and the impugned
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judgment and the order on sentence do not suffer from any infirmity or illegality
and were passed by the Ld. Trial court after a proper appreciation of the entire facts
and due application of the law.
7. It is argued that all the grounds raised by the appellant in his appeal are
completely meritless and without any substance and have been raised only for the
sake of arguments.
8. It is argued that in the instant case the friendly relations between both the
sides are not disputed. Further, the borrowing of the loan amount, execution of the
loan agreement as well as issuance of cheque in question is also not disputed by the
appellant and the only defence taken by him was that the entire loan amount stands
repaid and in fact he had already repaid more than Rs. 13 lacs. It is argued that,
however, since no evidence or material was led by the accused to prove the alleged
repayment of the loan amount, the Ld. Trial court rightly concluded that the
accused has failed to discharge his burden to rebut the statutory presumption
arising against him u/sec. 13of the NI Act and therefore, the case of the
complainant stands duly proved.
9. Hence, it is prayed that the present appeal of the appellant being devoid of
any merits may be dismissed.
10. I have already heard the submissions of both the sides and have also gone
through the TCR very carefully.
11. Section 138 of the NI Act is a penal provision providing for punishment
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where a cheque issued by a person on an account maintained by him with a banker
gets dishonored on account of insufficiency of funds or exceeding the amount
arranged to be paid from that account subject to the fulfillment of the condition
laid down in the proviso to the said section.
12. It is also trite a law that there is a statutory presumption of law, wherein, as
per the provisions of section 139 of NI Act, 1881, the court shall presume that the
cheque in question was issued in discharge of, whole or part of any debt or
liability, unless the contrary is proved.
13. The nature of the statutory presumption and the corresponding burden of
proof u/s 139 of NI Act, 1881 is in addition to the statutory presumption u/s 118 of
the Act, whereby, it shall be presumed, until the contrary is proved that every
negotiable instrument was made or drawn for consideration.
14. In the case of “
Bir Singh Vs. Mukesh Kumar” (2019) 4 SCC 197, it was
also held by the Hon'ble Supreme Court that on mere admission of the drawer’s
signature, without admitting the execution of the entire contents in the cheque, is
now sufficient to trigger the presumption u/s 139 of NI Act, 1881. It was observed
by the Hon’ble Supreme Court as follows:
“
32. The proposition of law which emerges from the
judgments referred to above is that the onus to rebut the
presumption under Section 139 that the cheque has been issued in
discharge of a debt or liability is on the accused and the fact that the
cheque might be post-dated does not absolve the drawer of a cheque
of the penal consequences of Section 138 of the Negotiable
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Instruments Act.
33. A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections 20, 87 and 139,
makes it amply clear that a person who signs a cheque and makes it
over to the payee remains liable unless he adduces evidence to rebut
the presumption that the cheque had been issued for payment of a
debt or in discharge of a liability. It is immaterial that the cheque
may have been filled in by any person other than the drawer, if the
cheque is duly signed by the drawer. If the cheque is otherwise
valid, the penal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a
payee, towards some payment, the payee may fill up the amount and
other particulars. This in itself would not invalidate the cheque. The
onus would still be on the accused to prove that the cheque was not
in discharge of a debt or liability by adducing evidence.
35. It is not the case of the respondent-accused that he either
signed the cheque or parted with it under any threat or coercion. Nor
is it the case of the respondent-accused that the unfilled signed
cheque had been stolen. The existence of a fiduciary relationship
between the payee of a cheque and its drawer, would not disentitle
the payee to the benefit of the presumption under Section 139 of the
Negotiable Instruments Act, in the absence of evidence of exercise
of undue influence or coercion. The second question is also
answered in the negative.
36. Even a blank cheque leaf, voluntarily signed and handed
over by the accused, which is towards some payment, would attract
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presumption under Section 139 of the Negotiable Instruments Act,
in the absence of any cogent evidence to show that the cheque was
not issued in discharge of a debt.”
15. Thus, it is clear that once the complainant discharges his burden to prove
that a cheque in question was issued by the accused for discharge of debt, the
presumption u/s 139 of the Act, is attracted and the burden shifts upon the accused
to prove that the cheque in question was not issued in discharge of any legally
enforceable debt. The burden upon the accused is only in the form of reverse onus
clause and the evidentiary burden is not as heavy as based upon the threshold of
‘beyond reasonable doubt’ and it is sufficient if the accused is able to meet the
standard of “pereponderance of probabilities”, similar to that of in a civil cases.
16. It is relevant to note here that in the case of
Basalingappa Vs. Mudibasappa”
(2019) 5 SCC 418, it was also observed by Hon’ble Supreme Court as follows:
“
25. We having 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 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
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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.”
17. Thus, it is also clear that in order to rebut the statutory presumption and to
prove the contrary, it is open for an accused to raise a probable defense wherein, he
can raise the question upon the existence of legally enforceable debt or liability.
Further, to rebut the statutory presumption it is also open for an accused to rely on
the evidence led by him or he can also rely upon the materials of the complainant
and it is not necessary for him to come in witness box to support his defence.
18. Now coming to the instant appeal, on the perusal of the Trial Court Record,
it is seen that in the notice of accusation framed by the Ld. Trial Court u/s 251
Cr.PC r/w section 263(g) Cr.PC, while putting his plea of defense, the appellant
had admitted his signature on the cheque in question, though, he also pleaded that
the other details of the cheque were not written/filed by him and it was a blank
singed cheque. Further, he also admitted that he had taken the loan amount of Rs. 9
lacs from the respondent in the year 2018 and also contended that he had already
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repaid the entire loan amount and in fact around Rs. 13 Lacs and that the cheque in
question was issued in favour of the complainant only at his insistent as security.
Likewise, he also admitted the execution of the loan documents Ex. CW1/2 to
CW1/4 and also did not dispute the service of legal demand notice dated
13.05.2022.
19. It is also seen that even during his examination u/s 313 Cr.P.C, the appellant
has not disputed the receipt of the different sums of loan amount totaling Rs. 9 lacs
from the complainant/respondent during the year 2018. Similarly, he has also not
disputed the execution of loan documents dated 19.09.2019 Ex. CW1/2 to CW1/4.
20. During the trial of the case, the respondent had appeared in the witness box
as CW-1 and he was cross examined in detail on behalf of the accused on
22.09.2023. However, even during the cross examination of the respondent, the
appellant could not bring any material inconsistency, discrepancy or demerit in the
case of the complainant so as to raise any shadow of doubt over the case of the
prosecution and to suggest that he has been able to raise a probable defence. As
rightly observed the Ld. Trial Court the alleged contradictions and discrepancies in
the version of the complainant are just minor contradictions and completely
immaterial in nature. Likewise, the alleged contradictions and discrepancies
pointed out by the Ld. Counsel for the appellant during the course of hearing on
appeal with resect to date of repayment occurring in the legal demand notice and
the complaint of the complainant/respondent and mode of payment/transfer of the
loan amount in favour of the appellant/accused are also merely minor and
completely immaterial contradiction and discrepancies and do not affect the
foundational case of the complainant.
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21. Further, as also rightly observed by the Ld. Trial Court, the onus to discharge
statutory presumption existing under the law i.e. Section 139 NI Act was upon the
appellant accused and since it was the categorical plea of the appellant that the
loan amount stands already repaid, it was incumbent upon him to prove the said
fact by leading evidence to that effect. However, neither the appellant led any
evidence to prove the repayment of the loan amount nor he has also been able to
point out any demerits in the case of the respondent/complainant.
22. Admittedly, the receipt of loan amount, the issuance of cheque in question
and execution of loan documents is not disputed by the appellant. As such since
the appellant had completely failed to discharge his onus to prove the repayment of
the loan amount and the plea of his defense that the cheque in question was only a
blank singed security cheque, the mere denial on his part does not fulfill the
requirements of the reverse burden being cast upon him in light of the decision of
the Hon’ble Supreme Court of India in “
Rohit Bhai Jeevan Lal Patel Vs. State of
Gujrat and Anr.” (2019) 18 SCC 106.
23. Further, the service of legal demand notice also stands duly proved in view
of documents Ex. CW1/7 to CW1/11 as well as the own statement of accused u/s
251 Cr. P.C. and apparently no payment was made by the appellant despite the
service of the legal demand notice within the stipulated time.
24. As far as the non filling up of the particulars in the cheques in question by
the appellant/accused are concerned, it is seen that the said fact has also been
seriously disputed by the complainant/respondent during his cross-examination and
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he has duly deposed in the court that all the particulars were already filled in the
cheque. Moreover, even otherwise, the said fact is also completely immaterial as
the same is duly covered u/sec. 20 of the NI Act, and even if the defense of the
appellant is considered that he had not filled the entire portion of the cheque, there
was an implied authority given to the holders/respondent to fill up the particulars
and complete the cheque.
25. Accordingly, in view of the above-said discussion and findings, the court is
of the firm view that there is no infirmity or illegality in the impugned judgment
and order on sentence passed by the Ld. Trial Court so as to interferer with.
26. The impugned judgment and order on sentence passed by the Ld. Trial Court
are accordingly upheld and the appeal of the appellant stands dismissed.
27. The appellant is directed to be taken into custody and be sent to Jail to
undergo the sentence of simple imprisonment for a period of one month (01) and a
fine of Rs. 10,000,00/- to be paid as compensation to the respondent/complainant
as already awarded by the Ld. Trial Court. Furthermore, in default of the payment
of fine amount, he shall undergo further simple imprisonment for a period of two
month.
28. The appellant shall be granted the benefit of the period of imprisonment
already undergone by him in the present case, if any, in terms of section 428 Cr.PC.
29. The warrants for execution of the sentence passed against him be issued
separately to be sent to the concerned Jail Superintendent.
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30. The present appeal stands disposed off accordingly. Let the copy of this
judgment be given free of cost to the both the sides.
31. The Trial Court Record along with a copy of this Judgment be sent to the Ld.
Trial Court for necessary information and record.
32. The file of the present appeal be consigned to the Record Room after due
compliance.
Announced in the open court on 29.01.2026.
This judgment consists of 14 pages and
All of them have been digitally signed by me.
(BALWINDER SINGH)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/29.01.2026
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