Delhi District Court
Om Prakash vs Chandra Shekhar on 29 April, 2026
Om Prakash Vs. Chandra Shekhar & Anr.
IN THE COURT OF SH. PANKAJ GUPTA
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH-WEST: DWARKA COURTS: DELHI
CA No. 56/2020
CNR NO. DLSW01-001619-2020
Mr. Om Prakash,
S/o Sh. Khub Chand,
R/o H. No. 8, Shyam Nagar,
Okhla, Phase-III, Delhi.
...........Appellant
Vs
1. Sh. Chandra Shekhar,
S/o Sh. G.P. Sonkar,
R/o C-3/127, Janak Puri,
New Delhi.
2. The Govt. of NCT of Delhi.
...........Respondents
Date of filing of appeal : 07.02.2020
Date on which judgment reserved : 29.04.2026
Date on which judgment pronounced : 29.04.2026
JUDGMENT
1. The appellant preferred the present appeal, being aggrieved by the judgment dated 25.10.2019 and order on sentence dated 10.01.2020 modified vide order dated 18.02.2020 passed by Ld. Metropolitan CA No.56/2020 Page No.1 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
Magistrate (NI Act-08), South-West, Dwarka Courts, Delhi (the trial court) whereby the appellant was held guilty and convicted for the offence under section 138 Negotiable Instruments Act, 1881 (NI Act). Consequently, the appellant was sentenced to simple imprisonment of one year and to pay compensation of Rs. 20,25,000/- to the respondent under section 357(3) CrPC within 30 days from the date of the order on sentence and in default of payment of compensation, to undergo simple imprisonment for a further period of two months. For the sake of convenience, the appellant and the respondent no. 1 shall be referred to herein as per their position before the trial court as the accused and the complainant, respectively.
2. In the present case, the complainant filed the complaint under section 138 NI Act, stating that the accused, who was/is the absolute owner and in possession of one flat no. RU-388 MIG Flat, Ground Floor, Pitampura, Delhi (the said flat), had desired to sell the same. The complainant showed his inclination to purchase the said flat. The accused assured the complainant that the said flat was free from all kinds of encumbrances. Consequently, the complainant agreed to purchase the said flat. In pursuance thereto, they entered into an agreement to sell w.r.t. the said flat for a total sale consideration of Rs. 80,00,000/- on 30.05.2013. The complainant paid Rs. 25,00,000/- towards part payment to the accused at the time of execution of the agreement to sell, and as agreed, the balance sale consideration was to be paid to the accused within one week after the said flat would be converted into freehold by the concerned authority, for which the accused had to make the effort. The accused assured that he would get that done within 60 days from that date and then would execute CA No.56/2020 Page No.2 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
the sale deed in the complainant's favour. Thereafter, from time to time, the accused represented to the complainant that he had applied to the concerned authority for conversion of the said flat into the freehold. The complainant believed the said representation of the accused and paid a total amount of Rs. 75,00,000/- to him till 03.12.2013 on different dates. However, the accused failed to do the needful.
3. In the complaint, it was also stated that on 03.12.2013, the accused executed a General Power of Attorney in favour of the complainant w.r.t the said flat and handed over the vacant possession of the same on the assurance that he would get the said flat converted into freehold and would thereafter execute the sale deed. However, the accused failed to do the needful. Subsequently, the complainant was shocked to know that the said flat could not be converted into freehold as two or three more persons had filed objections to the ownership of the said flat. The complainant confronted the accused to this effect. On protest, the accused agreed to cancel the deal and return the money received by him. Consequently, the accused handed over the 04 cheques as follows, for a total sum of Rs.75,00,000/- towards refund of the amount received by him.
S. No. Date Amount Cheque No. Name & Address of
the Bank
1. 01.02.2014 Rs.20,00,000/- 887734 Oriental Bank of
Commerce, Delhi.
2. 10.02.2014 Rs.20,00,000/- 006451 Oriental Bank of
Commerce, Delhi.
3. 10.03.2014 Rs.20,00,000/- 006452 Oriental Bank of
Commerce, Delhi.
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4. 10.04.2014 Rs.15,00,000/- 006453 Oriental Bank of
Commerce, Delhi.
4. In the complaint, it was also stated that the cheque no. 006451 (hereinafter referred to as "the subject cheque") on presentation was returned unpaid by the banker of the complainant vide the cheque returning memo dated 17.02.2014 with the remarks " Funds Insufficient". Consequently, the complainant got issued a legal notice dated 14.03.2014 calling upon the accused to pay the cheque amount, but of no use. Hence, the present complaint.
5. In the present case, the complainant was examined in his pre- summoning evidence. Consequently, the summons of the complaint was issued to the accused and in response thereto, the accused appeared and notice under section 251 Cr. P.C dated 16.12.2017 was issued to him, to which he pleaded not guilty and claimed a trial. However, despite being given opportunities, the accused had neither cross-examined the complainant nor led his evidence. Consequently, the evidence of the accused was closed on 20.07.2018. Later on, the accused moved an application u/s 145 (2) NI Act but the same was dismissed by the trial court. Being aggrieved by the same, the accused filed a Revision Petition, which was also dismissed vide order 13.02.2019.
6. After the trial, the trial court held the accused guilty of the offence under section 138 NI Act and sentenced him as mentioned above. Being CA No.56/2020 Page No.4 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
aggrieved by the same, the accused preferred the present appeal.
7. Notice of the appeal was issued to the complainant. In response thereto, the complainant appeared and prayed for dismissal of the appeal.
8. I have heard counsel for the accused and counsel for the complainant and have perused the material available on record, including the trial court record.
9. In a nutshell, the case of the complainant is that he paid Rs. 75,00,000/- to the accused towards part payment to purchase the said flat. However, the accused failed to get the said flat converted into freehold, which was a prerequisite to execute the sale deed in favour of the complainant. Consequently, the accused could not execute the sale deed of the said flat in favour of the complainant. Hence, the complainant called upon the accused to refund the amount received by him to this account. In pursuance thereto, the accused issued the 04 cheques, including the subject cheque in favour of the complainant to refund the money received by him. However, on presentation, the subject cheque was dishonoured for the reason "Funds Insufficient". Consequently, the complainant got issued a legal notice dated 14.03.2014 calling upon the accused to pay the cheque amount, but of no use. Hence, the complaint.
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10. Before the trial court, to prove his case, the complainant examined himself as CW1 and tendered his affidavit by way of evidence Ex.CW1/A and relied upon the following documents:
(a) Agreement to sell and purchase Ex.CW1/1.
(b) General Power of Attorney Ex.CW1/2.
(c) Original cheque Ex.CW1/3
(d) Cheque returning memo Ex.CW1/4.
(e) Legal Notice Ex.CW1/5.
(f) Postal receipt Ex.CW1/6.
(g) Courier receipt Ex.CW1/7.
(h) Tracking report Ex.CW1/8.
(i) Copy of reply Ex.CW1/10 and envelope Ex.CW1/9.
(j) Complaint Ex.CW1/11.
11. Before the trial court, the accused raised the following defences:
(i) the subject sale transaction with respect to the said flat between him and the complainant took place through one Mediator/Property Dealer, namely Raj Kumar, to whom the accused had given the signed blank cheques, including the subject cheque, as security. However, the said Raj Kumar might have given the subject cheque to the complainant. As such, the subject cheque was not issued by the accused to the complainant towards the discharge of his liability.CA No.56/2020 Page No.6 of 30
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(ii) the possession of the said flat is already with the complainant. As such, the subject cheque was not issued towards a consideration.
(iii) the accused had been in the custody in this matter for more than 02 years. Therefore, the accused has already undergone the sentence awarded to him.
12. It is evident from the record that after dishonour of the subject cheque Ex.CW-1/3, the complainant issued the legal notice Ex.CW1/5 to the accused and the accused vide reply dated 04.04.2014 Ex.CW1/10 stated that the complainant had taken 04-05 blank signed cheques as security for the earnest money paid by him. Without going into the merit of the said defence at this stage, the fact remains that vide the said reply, the accused admitted the issuance of the subject cheque and his signature on the same. Further, the testimony of the complainant to this effect remained unrebutted.
13. It is evident from the record that the complainant presented the subject cheque for encashment but it was dishonoured for the reason "Fund Insufficient" vide returning memo as Ex.CW1/4. As such, it stands proved that the subject cheque was dishonoured on presentation for the reason "Fund Insufficient".
14. As evident from the record, the accused vide his reply Ex.CW1/10 responded to the complainant's legal notice Ex.CW1/5. Hence, it stands CA No.56/2020 Page No.7 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
proved that the complainant issued the legal notice in compliance with Section 138 NIA, and the same was duly received by the accused.
15. In view of the foregoing discussion, it can be held that the accused issued the subject cheque Ex.CW-1/3 and it bore his signature. On presentation, the subject cheque was dishonoured for the reason "Fund Insufficient". The complainant issued the legal notice Ex.CW1/5 in compliance with Section 138 NIA, and the same was duly served upon the accused. However, the accused failed to pay the cheque amount.
16. Now the question arises whether the subject cheque was issued by the accused to the complainant towards the discharge of his debt and liability.
17. In the judgment titled "Rajesh Jain v. Ajay Singh", reported in (2023) 10 SCC 148, the Hon'ble Supreme Court held:
"33. The NI Act provides for two presumptions : Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that "unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability". It will be seen that the "presumed fact" directly relates to one of the crucial ingredients necessary to sustain a conviction under Section 138.CA No.56/2020 Page No.8 of 30
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[ The rules discussed herein below are common to both the presumptions under Section 139 and Section 118 and are hence not repeated--reference to one can be taken as reference to another]
34. Section 139 of the NI Act, which takes the form of a "shall presume" clause is illustrative of a presumption of law. Because Section 139 requires that the Court "shall presume" the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase "unless the contrary is proved".
35. The Court will necessarily presume that the cheque had been issued towards discharge of a legally enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal [Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35] ]
36. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar [Bir CA No.56/2020 Page No.9 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
Singh v. Mukesh Kumar, (2019) 4 SCC 197 : (2019) 2 SCC (Civ) 309 : (2019) 2 SCC (Cri) 40] ]. Therefore, 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.
37. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
38.John Henry Wigmore [John Henry Wigmore and the Rules of Evidence : The Hidden Origins of Modern Law] on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule'."
39. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not CA No.56/2020 Page No.10 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
expected to prove the non-existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of "preponderance of probabilities", similar to a defendant in a civil proceeding. [Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 : AIR 2010 SC 1898] ]
40. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words "until the contrary is proved" occurring in Section 139 do not mean that the accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non- existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist.
[Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983] ;
see also Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] ]
41. In other words, the accused is left with two options. The first option--of proving that the debt/liability does not exist--is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a CA No.56/2020 Page No.11 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty-one to forty-nine and arising out of the entire circumstances of the case, which includes :
the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his Section 313CrPC statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was "no debt/liability". [Kumar Exports v. Sharma Carpets [Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513 : (2009) 1 SCC (Civ) 629 : (2009) 1 SCC (Cri) 823] ]
42. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
43. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling, the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact.
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In Kundan Lal case [Kundan Lal Rallaram v. Custodian (Evacuee Property), 1961 SCC OnLine SC 10 : AIR 1961 SC 1316] when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non-existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Sections 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption "disappears" and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa v. Mudibasappa [Basalingappa v. Mudibasappa, (2019) 5 SCC 418 : (2019) 2 SCC (Cri) 571 : AIR 2019 SC 1983] ; see also, Rangappa v. Sri Mohan [Rangappa v. Sri Mohan, (2010) 11 SCC 441 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184 :
AIR 2010 SC 1898] ] CA No.56/2020 Page No.13 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
18. Counsel for the accused pleaded that the subject sale transaction w.r.t.
the said flat between him and the complainant took place through one Mediator/Property Dealer, namely Raj Kumar, to whom the accused had given the signed blank cheques, including the subject cheque, as security. However, the said Raj Kumar might have given the subject cheque to the complainant. As such, the subject cheque was not issued by the accused towards the discharge of his liability. He also pleaded that in the present case, the accused neither cross-examined the complainant nor led his evidence in defence. Therefore, the trial court presumed the existence of the debt and liabilities against the accused in view of sections 118 and 139 of NI Act. However, the said findings of the trial court are erroneous because the applicant failed to show that there existed a debt against the accused and to discharge the same, the accused issued the subject cheque. Hence, no presumption under sections 118 and 139 of NI Act against the accused should have been drawn by the trial court. In support of his submission, counsel for the accused relied upon the judgment titled "Geeta vs. Anita and Anr." passed by the Delhi High Court in Crl. L.P 8/2021 on 26.05.2025.
19. Now the first question arises whether the accused issued the subject cheque as security to the complainant.
20. The accused in his statement to the notice under 251 Cr. P.C. stated that he sold the said flat through Mediator/Property Dealer, namely Raj Kumar, to whom he had given the 04 blank cheques, including the subject cheque, CA No.56/2020 Page No.14 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
duly signed by him for security. However, the said Raj Kumar might have given the subject cheque to the complainant. Firstly, the accused has failed to lead any evidence to prove the same. Secondly, the accused in his reply dated 04.04.2014 Ex.CW1/10 stated that the complainant had taken 04-05 blank signed cheques as security for the earnest money paid by him. As such, there exists a material contradiction in the statement of the accused to whom he had given the cheques, i.e. whether to Raj Kumar or to the complainant. Thirdly, in the said reply, the accused stated that he issued the said blank cheques as security to the complainant to secure the earnest money of Rs.25,00,000/-. It cannot be believed that the accused would have issued 04 blank cheques for a total amount of Rs. 75,00,000/- just to secure the earnest money of Rs.25,00,000/-. The accused has failed to give any explanation for his such conduct. Fourthly, it is not the case of the accused that he ever made any complaint against the complaint regarding misuse of the subject cheque.
21. Further, the accused in his statement to the notice u/s 251 Cr. P.C stated that he has sold the said flat to the complainant. As evident from the record, the prerequisite to sell the said flat to the complainant was to get it converted into freehold. The accused has failed to disclose the date when he got it converted into freehold. The accused has not led any evidence to prove the same. The accused has not disclosed the details of the documents vide which he sold the said flat to the complainant. In fact, the accused has not led any evidence to prove the same. In the given circumstances, it can be held that the accused has failed to prove that he had performed his part of the agreement. Hence, it can be held that the accused issued the subject CA No.56/2020 Page No.15 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
cheque for repayment of the consideration amount to the complainant.
22. It is evident from the record that the agreement to sell Ex.CW1/1 was executed between the complainant and the accused, and the accused has received a total amount of Rs.75,00,000/- from the complainant. It is the specific case of the complainant that once the accused delayed in getting the said flat converted into freehold, he protested against the said act of the accused. Consequently, on 03.12.2013, the accused executed GPA Ex.CW1/2 in favour of the complainant w.r.t. the said flat and also handed over its vacant possession to him. Thereafter, the accused issued 04 cheque including the subject cheque in favour of the complainant. The accused has failed to explain once, by delivering the possession of the said flat, he had already discharged his liability towards the complainant and nothing more was required to be done to this effect as alleged, then as to why he issued 04 cheques for a total amount of Rs.75,00,000/- thereafter. In other words, if, according to the accused, the grievance of the complainant was satisfied by delivering the possession of the said flat to him and nothing more was required to be done by him regarding the subject transaction, then as to why at the subsequent stage, he issued the 04 cheques including the subject cheque for a total amount of Rs.75,00,000/-.
23. Counsel for the accused pleaded that as per the receipt dated 30.03.2013, the complainant paid only Rs.65,00,000/- to the accused, hence, there was occasion for the accused to issue the 04 cheques for a total sum of Rs. 75,00,000/-. Firstly, the said receipt is not tendered in CA No.56/2020 Page No.16 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
evidence. Secondly, if it is presumed to be correct for the sake of arguments only, then the accused must have issued the cheques for a sum of Rs.65,00,000/- only. However, as discussed above, the accused issued the cheques for total a sum of Rs. 75,00,000/- and the accused has failed to assign any reason for the same. Further, out of 04 cheques, 03 cheques are of Rs.20,00,000/- each and 01 cheque of Rs.15,00,000/- and sum of any three cheques in any combination cannot be Rs.65,00,000/-. The complainant has failed to explain why, once he had received Rs.65,00,000/- only and not Rs.75,00,000/- as alleged, then why he issued 04 cheques including the subject cheque, for a total amount of Rs.75,00,000/-. As such, there is no substance in the plea raised by counsel for the accused.
24. In view of the foregoing discussion, it can be held that the accused has failed to prove that he had not issued the subject cheque to the complainant towards the discharge of his debt and liability or that it was issued as security to the complainant. As such, on the one hand, the complainant has discharged his onus to prove that the accused issued the subject cheque towards the discharge of his debt and liability. On the other hand, the accused has failed to rebut the presumption in any manner that he had not issued the subject cheque towards the discharge of his debt and liability. Further, the accused has failed to show any infirmity in the finding of the trial court to this effect. I also do not find any infirmity in the said findings of the trial court. Hence, it can be held that the accused has issued the subject cheque to the complainant towards the discharge of his debt and liability. For the reason mentioned above, the judgment titled Geeta (supra) CA No.56/2020 Page No.17 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
relied by the accused is of no benefit of the accused.
25. Counsel for the accused pleaded that as per clause-4 of Agreement to Sell Ex.CW1/1, in case of breach of any term of the agreement, the complainant had the opportunity to file a Civil Suit for Specific Performance of Contract. Further, the parties agreed that in case of any dispute, they shall go for arbitration. Instead, the complainant filed the subject complaint which was against the settled terms of the said agreement. As such, the subject dispute was civil in nature and therefore, the trial court being the criminal court had no jurisdiction to entertain the same.
26. At the outset, it is mentioned that during the trial before the trial court and even in the Memorandum of Appeal, the accused has not taken any plea that the subject complaint was not maintainable in law as the subject dispute was civil dispute in nature. Further, the complainant filed the subject complaint based on the dishonour of the subject cheque, which, as held above, was issued by the accused to the complainant towards discharge of his debts and liabilities and was dishonoured on presentation. Negotiable Instruments Act, 1881 is a special statute, and Chapter XVII of the said Act deals with the penalties in case of dishonour of a cheque for insufficiency of funds in the account. Counsel for the accused has failed to cite any law that bars the complainant from filing the subject complaint. Hence, there is no substance in the plea raised by counsel for the accused.
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27. In view of the foregoing discussions, it can be held that the complainant/respondent proved the essential ingredients of section 138 NI Act beyond a reasonable doubt against the accused. As such, I do not find any infirmity in the impugned judgment.
28. As per the record, counsel for the accused has failed to substantiate that the accused had been in custody for 02 years in the present matter, and therefore, the sentence awarded has already been undergone.
29. Further, during the course of hearing, this court called the report from the Office of Superintendent, Central Jail 10, Rohini, Delhi which in its report dated 15.04.2026 reported that from 18.02.2020 till 26.09.2025, the accused had been in the judicial custody for a total period of 01 year, 03 months and 19 days. Hence, there is no substance in the plea raised by counsel for the accused.
30. Lastly, counsel for the accused pleaded that according to the complainant, he intended to purchase the said flat for a total consideration amount of Rs.80,00,000/- and he paid Rs.75,00,000/- towards part payment to the accused. However, once the said transaction could not be finalised, the accused issued 04 cheques, including the subject cheque to the complainant towards the refund of the said amount. As such, the accused handed over 04 cheques of different dates to the complainant, but the same were a result of the single transaction. However, the complainant filed 04 separate complaints for dishonour of one cheque each, which were CA No.56/2020 Page No.19 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
separately tried and decided by separate judgments and orders on sentence. Accordingly, the complainant was entitled to the benefit of Section 427 Cr.P.C. However, in the sentence order, the trial court awarded the substantive sentence of one year in each complaint to the accused, but did not mention that it had to run concurrently. Hence, in law, the substantive sentence awarded to the accused should run concurrently. To substantiate the same, counsel for the accused relied upon the judgment titled "V.K. Bansal Vs. State of Haryana & Ors.", reported in (2013) 7 SCC 211.
31. On the contrary, counsel for the complainant pleaded that on the date of passing of the order on sentence on 10.01.2020 and on 18.02.2020, when the sentence order dated 10.01.2020 was modified, no plea was raised by the accused that the sentence should run concurrently. Even in the present appeal, the accused has not raised any ground to this effect. It is only at the stage of the final argument that the accused raised the said plea. As such, the accused has waived his right to raise the said plea.
32. Firstly, the accused had no occasion to raise the plea to this effect on 10.01.2020 because before passing the sentence order, he could not apprehend the terms of the sentence to be passed against him. Secondly, the trial court passed the order dated 18.02.2020 under section 362 CrPC, and therefore, the accused could not seek the review of the sentence order dated 10.01.2020 to this effect. Thirdly, perusal of the order dated 06.11.2020, passed by the predecessor of this court, reveals that the accused moved the application praying for the benefit of Section 428 CA No.56/2020 Page No.20 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
Cr.P.C. and that the sentence may run concurrently. Fourthly, even otherwise, this is a legal plea and counsel for the complainant has failed to cite any provision of law which bars the accused from raising the said plea at this stage. Hence, there is no substance in the plea raised by counsel for the complainant to this effect.
33. Before proceeding further, in view of the foregoing discussion, it can be held that the 04 cheques, including the subject cheque issued by the accused to the complainant, were part of a single transaction.
34. Counsel for the complainant pleaded that while considering the plea of the accused that the sentences should go concurrently, this court is to exercise the judicial discretion to decide whether the sentences should go concurrently or consecutively. During the trial, the accused was declared "Proclaimed Offender" (PO), and he also failed to cross-examine the complainant and to lead evidence in his defence. Further, in appeal, at the request of the accused, on several occasions, the matter was sent to the Mediation Centre to explore the possibility of settlement. However, due to the conduct of the accused, the settlement could not be reached. During the appeal, the accused paid Rs.1,50,000/- and agreed to pay the remaining sum of Rs. 73,50,000/-, which he failed to pay despite being given the opportunity. As such, on the one hand, the accused has not paid the settlement amount, and on the other hand, he has raised the plea that the sentences should run concurrently. If the court allows the said plea of the accused, then the complainant would be deprived of the amount which he CA No.56/2020 Page No.21 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
had paid as a part payment of the sale consideration of the flat to the accused. In the said background, it is a fit case to award a consecutive sentence to the accused. In support of his submissions, counsel for the complainant relied upon the judgments titled "O.M. Cherian v. State of Kerala", reported in (2015) 2 SCC 501 and "Sunil Kumar @ Sudhir Kumar and another Vs. State of Uttar Pradesh", reported in (2021) 5 SCC
560.
35. Perusal of the trial court record reveals that on 08.01.2016, none appeared for the accused; hence, the process under section 82 Cr.P.C. was initiated against the accused. On 08.03.2017, an application for the issuance of a production warrant was issued against the accused on the ground that the accused was in judicial custody (JC) in another matter, i.e. FIR No.289/2016 under section 420/467/468/471 IPC, PS Maurya Enclave in Tihar Jail. Consequently, the accused was produced before the trial court and was granted bail on 23.06.2017. Hence, it can be held that the accused was declared PO because he failed to appear before the court, but the reason for the same was that he was in JC in another matter. In other words, it is not a case where the accused had deliberately not appeared before the trial court, which resulted in the PO order against him.
36. It is evident from the record that on 20.07.2018, the evidence of the accused was closed. Later, the accused moved an application u/s 145 (2) NI Act, which was dismissed on 24.08.2018. Being aggrieved by the same, the accused preferred the Criminal Revision Petition No.296/2018, which CA No.56/2020 Page No.22 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
was dismissed on 13.02.2019. As such, the accused has already faced the consequences for not cross-examining the complainant and not leading the evidence in his defence.
37. It is evident from the record that during the pendency of the appeal, between 28.07.2023 and 01.09.2025, the matter was sent to the Mediation Centre to explore the possibility of settlement on various occasions; however, no settlement could be reached between the parties. Mediation is a voluntary process, and if the parties failed to reach at a settlement in the mediation proceedings, that fact in itself is not adverse to the accused.
38. It is also revealed that during the pendency of the appeal, on 28.07.2023, the accused paid Rs.1,50,000/- towards part payment to the complainant. On 03.02.2026, the accused offered to pay the balance amount of Rs.73,50,000/- towards full and final settlement of the dispute, which was accepted by the complainant subject to just exceptions. However, the accused failed to fulfil the said promise. The present proceedings under section 138 of NIA Act are not a recovery proceeding. As such, there is no substance in the plea raised by counsel for the complainant to this effect.
39. Further, to judge whether the sentences have to run concurrently or consecutively, the facts that existed and proceedings taken place till the date of the passing of the sentence order dated 10.01.2019 are to be taken into consideration and not the facts that took place thereafter.
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40. In the judgment titled "S.S. Production and Another Versus Tr. Pavithran Prasanth", reported in 2024 SCC OnLine SC 4935 , the peti- tioner no. 2/accused, the proprietor of the petitioner no. 1 was in the busi- ness of Cinema Production and for his urgent business needs, he had ap- proached the complainant/respondent and borrowed a total sum of Rs. 41,28,000/- in five installments as a hand loan on 29.08.2015 and promised to repay the same on demand with interest at the rate of 2% per month. Separate Promissory Notes dated 29.08.2015 were executed for each of the installments in favour of the complainant. In order to discharge the liability of Rs. 42,08,000/-, a total of five cheques were issued by the accused, which on being presented by the complainant, were returned with the en- dorsement 'funds insufficient'. Statutory Notice was issued by the com- plainant pursuant to which he lodged five complaints in respect of the five dishonoured cheques against the petitioners. The Trial Court convicted the accused under Section 138 of NIA and sentenced them to six months of Simple Imprisonment and to pay the cheque amounts as compensation, in each of the complaints. This order of conviction and sentence has been up- held by the First Appellate Court and thereafter by the High Court vide the Impugned Order. While dealing with the case, the Hon'ble Supreme Court of India held:
14. However, before parting, the Court would clarify that though there are separate judgments and orders of the Trial Court, in each case, six months' simple imprisonment and direction to pay the cheque amount as the compensation has been awarded; the orders being of the same date between the same parties and in connection with the same transaction of the same nature, albeit in different CA No.56/2020 Page No.24 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
tranches, the sentences of imprisonment awarded shall run concurrently. Further, in case of failure of the petitioners to pay the compensation amount within six months from today, the same shall be recovered from them as a public debt under the relevant law, and it shall be paid to the complainant/respondent by the competent authority post-recovery. In directing the sentences to run concurrently, we have exercised judicial discretion [reference to 'judicial discretion' herein is to be understood as per Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240] guided by the principles governing the field, which are noted infra:
I. Mohd. Akhtar Hussain v. Assistant Collector of Customs (Prevention), (1988) 4 SCC 183 [2-Judge Bench] '10. The basic rule of thumb over the years has been the so- called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different.' (emphasis supplied) II. V K Bansal v. State of Haryana, (2013) 7 SCC 211 [2- Judge Bench] '18. Applying the principle of single transaction referred to above to the above fact situations we are of the view that each CA No.56/2020 Page No.25 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
one of the loan transactions/financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing company/appellant on the other. If different cheques which are subsequently dishonoured on presentation, are issued by the borrowing company acting through the appellant, the same could be said to be arising out of a single loan transaction so as to justify a direction for concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so, the substantive sentence awarded to the appellant in each case relevant to the transactions with each company referred to above ought to run concurrently. We, however, see no reason to extend that concession to transactions in which the borrowing company is different no matter the appellant before us is the promoter/Director of the said other companies also. Similarly, we see no reason to direct running of the sentence concurrently in the case filed by State Bank of Patiala against M/s Sabhyata Plastics and M/s Rahul Plastics which transaction is also independent of any loan or financial assistance between the State Financial Corporation and the borrowing companies. We make it clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction.CA No.56/2020 Page No.26 of 30
Om Prakash Vs. Chandra Shekhar & Anr.
We do so because the provisions of Section 427 CrPC do not, in our opinion, permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation.' (emphasis supplied) III. O.M. Cherian v. State of Kerala, (2015) 2 SCC 501 [3- Judge Bench] '18. While referring the matter to a larger Bench, the Bench observed that in Mohd. Akhtar Hussain case [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921], Section 31 CrPC was not noticed by this Court. It is to be pointed out that in Mohd. Akhtar Hussain case [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and Manoj case [(2014) 2 SCC 153 : (2014) 1 SCC (Cri) 763], the appellants who were convicted for different counts of offences arose out of a single transaction, favouring the exercise of discretion to the benefit of the accused that the sentences shall run concurrently. Those decisions are not cases arising out of conviction at one trial of two or more offences and therefore, reference to Section 31 CrPC in those cases was not necessitated.
19. As pointed out earlier, Section 31 CrPC deals with quantum of punishmen which may be legally passed when there is (a) one trial; and (b) the accused is convicted of two or more offences. The ambit of Section 31 is wide, covering not only a single transaction constituting two or more CA No.56/2020 Page No.27 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
offences but also offences arising out of two or more transactions. In the two judgments in Mohd. Akhtar Hussain [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and Manoj [(2014) 2 SCC 153 : (2014) 1 SCC (Cri) 763], the issue that fell for consideration was the imposition of sentence for two or more offences arising out of the single transaction. It is in that context, in those cases, this Court held that the sentences shall run concurrently.
20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and CA No.56/2020 Page No.28 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain [Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 : 1988 SCC (Cri) 921] and Section 31 CrPC.' (emphasis supplied)
41. Facts of the present case are almost similar to the facts of the judgment S.S. Production (supra). In the present case, total 04 cheques were issued by the accused, which on being presented by the complainant, were returned with the endorsement 'funds insufficient'. Statutory Notice was issued by the complainant pursuant to which he lodged 04 separate complaints in respect of the 04 dishonoured cheques against the accused. In the above cited judgment, it is not held that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. In view of the foregoing discussion, it can be held that the complainant has failed to make out a case to enable this court to exercise its judicial discretion to hold that the substantive sentence awarded to the accused vide orders dated 10.01.2020 and 18.01.2020 should run consecutively. Hence, it is held that the substantive sentence awarded to the accused in each case shall run concurrently. The sentence which the CA No.56/2020 Page No.29 of 30 Om Prakash Vs. Chandra Shekhar & Anr.
accused has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction.
42. In view of the foregoing discussion, it can be held that the complainant/respondent proved the essential ingredients of section 138 NI Act beyond a reasonable doubt against the accused. However, it is ordered that the substantive sentence awarded to the accused in each case shall run concurrently. The sentence which the accused has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction. Appeal filed by the appellant/accused is partly allowed to the extent as indicated hereinabove.
43. TCR be sent back to the court concerned along with a copy of this order information and compliance.
44. Appeal file be consigned to the record room.
Digitally signed by PANKAJPANKAJ GUPTA Date: GUPTA 2026.04.29 Announced in Open Court 15:55:29 +0530 on this 29th day of April, 2026. (PANKAJ GUPTA) Principal District & Sessions Judge South-West, Dwarka Courts New Delhi/29.04.2026 CA No.56/2020 Page No.30 of 30