Delhi District Court
Manoj Kumar Garg vs Ruchi Khanna on 2 April, 2025
IN THE COURT OF Ms. HIMANSHI TYAGI JMFC(NI ACT) DIGITAL COURT-1,
NORTH, ROHINI COURTS, NEW DELHI
Sh. MANOJ KUMAR GARG S/o RAMESH CHANDER
Add:-1151, UTSAV VIHAR, KARALA, DELHI-110081
................Complainant
Vs.
RUCHI KHANNA D/o Sh. MAHENDER KHANNA
Add:- FLAT No. 823, 1st Floor, LOK NAYAK PURAM, BLOCK-B
POCKET-B, BAKKARWALA, DELHI-110033
.......................Accused
JUDGMENT
CNR No. DLNT020006302021 CC NI ACT 295/2021 Date of Insititution 18.01.2021 Offence alleged Under Section 138 NI Act Plea of the accused Not pleaded guilty Final Order Acquitted Date of Decision 02.04.2025 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date: 2025.04.02 17:56:05 +0530 CC NI ACT 295/2021 1of9
BRIEF FACTS RELEVANT FOR THE DECISION OF THE CASE ARE AS UNDER:
(1.) According to the facts mentioned in the compliant that the accused requested to the complainant in October, 2019 for a friendly loan for his urgent needs. The complainant granted loan on regular basis to the accused till February, 2020 and as such gave an amount of Rs. 3,50,000/-. The accused again requested a further loan amount of Rs. 2,00,000/ in the February, 2020 which the complainant initially denied to grant as he had already given the amount of Rs. 3,50,000/- but the accused made repeated requests that his financial conditions were not good and that he will not be able to clear the previous loan if complainant did not give him the further loan. Then the complainant and accused matched their accounts and the accused agreed that the amount of Rs. 3,50,000/- was outstanding against him and therefore accused got ready to issue a cheque in respect of discharging his previous liability as well as for requested loan amount and as such the total liability of the accused became Rs 5,50,000/-. The complainant gave a sum of Rs. 2,00,000/- to the accused which he assured to repay without any interest to the complainant in the month of November 2020. In discharge of the abovesaid total liability, accused issued a cheque bearing no. 934568 dated 20.11.2020 for a sum of Rs. 5,50,000/- drawn on Punjab National Bank, KHRM School, Ashok Vihar, Delhi-110052 in favour of complainant with the assurance that the cheque would be honoured and encashed. However, the said cheque was returned unpaid due to the reason "Account Closed" vide cheque dishonour memo dated 26.11.2020. The complainant informed the accused about dishonour of the said cheque and demanded the cheque amount from the accused but accused did not respond to his calls. The complainant sent a Legal Notice of Demand dated 13.12.2020 to the accused demanding the amount of aforesaid cheque within statutory period of 15 days But despite its receipts accused did not pay the cheque amount. Hence the complainant filed the present compliant.
Digitally signed by HIMANSHI TYAGI HIMANSHI Date: TYAGI 2025.04.02 17:56:12 +0530 CC NI ACT 295/2021 2of9 EVIDENCE AND PROCEEDINGS BEFORE THE COURT:
(2.) The complainant filed on record the following documents:- Original cheque Ex. CW-1/1, Cheque return memo Ex.CW-1/2, copy of legal notice dated Ex.CW-1/3, postal receipt Ex.CW-1/4 and tracking reports Ex. CW-1/5.
(3.) Upon appreciation of presummoning evidence, accused was summoned by the Ld Predecessor vide order dated 21.01.2021 for an offence punishable under Section 138 of the Act. Thereafter, on the 11.03.2022, notice under Section 251 Cr.P.C. for the offence u/s 138 Negotiable Instrument Act was served upon him by the Ld Predecessor to which she pleaded not guilty and claimed trial. Further, she denied her signatures on the cheque and admitted the receipt of the legal notice. She took the defence that she did not borrow any amount from the complainant. Thereafter, the accused was permitted to cross exam- ine the complainant and the matter was listed for evidence but several opportunities given to the complainant, complainant had never appeared for cross-examination, therefore, on 24.02.2025 the right of CE of the complainant closed for non-appearance. The matter was proceeded for statement of accused U/s 313 CrPC.
STATEMENT OF THE ACCUSED:
(4.) Statement of the accused was recorded u/s 313 Cr.P.C. r/w Section 281 Cr.P.C on 24.02.2025 wherein all the incriminating circumstances appearing in evidence against the accused were put to her and she stated that her father and the complainant only had visiting terms. She never approached or obtained any loan from the complainant. She further submitted that the she did not sign on the cheque, did not fill the particulars of the cheque, did not issue the cheque in question to the complainant, her cheque was stolen from the house of her father, the bank account pertaining to the cheque in question was already closed in the year 2017 and she could not have issued the cheque of this account to anyone in the year 2020 and that the cheque hasDigitally been misused. On signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2025.04.02 17:56:16 +0530 CC NI ACT 295/2021 3of9 24.02.2025, upon submission of the Ld. Counsel for accused that accused did not chose to lead evidence in his defence, the DE was closed and the matter was fixed final arguments. After hearing arguments, matter was filed for judgment for 19.03.2025 (5.) Thereafter, on 19.03.2025, the proxy Counsel for the complainants appeared and sought time to file an application u/s 311 CrPC to lead CE. On 29.03.2025, the application u/s 311 CrPC was filed on behalf of the complainant and an application U/s 256 CrPC was filed on behalf of the accused. The application U/s 311 CrPC was dismissed vide separate order today.
ARGUMENTS:
(6.) None appeared for the complainant for arguments.
(7.) Ld. Counsel for the accused reiterated the version of the accused given in answer to the notice u/s 251 Cr.P.C as well as in his statement u/s 313 Cr.P.C. He argued that accused has no legal liability as mentioned in the compliant, the complainant have misused the cheque in question and there was no sufficient evidence to establish the case against the accused as complainant did not subject himself to cross examination. He submitted that complainant has failed to prove his case beyond reasonable doubt and accused is liable to be acquitted u/s 138 of Negotiable Instruments Act.
DECISION ALONG WITH BRIEF REASONS:
(8.) I have perused the entire record as well as the evidence led by the complainant as well as the accused. Before finding the conviction of the accused u/s 138 of the Negotiable Instruments Act, it has to be established by the complainant cumulatively that : Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2025.04.02
17:56:19 +0530
CC NI ACT 295/2021 4of9
(i) the cheque in question was issued by the accused in favour of the complainant in discharge of legally enforceable liability;
(ii) presentation of the cheque to the bank within three months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) a demand being made in writing by the payee or holder in due course by the issuance of a notice in writing to the drawer of the cheque within thirty days of the receipt of information from the bank of the return of the cheques; and
(iv) the failure of the drawer to make payment of the amount of money to the payee or the holder in due course within fifteen days of the receipt of the notice.
(9.) It is a well settled principle of criminal jurisprudence that a criminal trial precedes on the presumption of innocence of the accused i.e. an accused is presumed to be innocent unless proved guilty. Thus, in the regular course, the initial burden is on the complainant/ prosecution to prove the guilt of the accused and the standard of proof for the same is beyond reasonable doubt. However, in offences under Section 138 NI Act, there is a reverse onus clause, which is contained in Sections 118 and 139 of the Act. It is pertinent to reproduce Sec.118 and Sec.139 of the N.I. Act here.
(10.) Section 118 of the N.I Act provides :
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
a. of consideration - that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred was accepted, endorsed, negotiated or transferred for consideration;"
(11.) Section 139 of the N.I Act further provides as follows:
Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2025.04.02 17:56:22 +0530 CC NI ACT 295/2021 5of9 "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 Section 138 for the discharge, in whole or in part, of any debt or other liability".
(12.) For the offence of Section 138 of the Act, a presumption u/s 118(a) and Section 139 has to be compulsorily raised as soon as execution of cheque by the accused is admitted or proved by the complainant and thereafter the burden is shifted upon accused to prove otherwise. These presumptions shall be rebutted when only when the contrary is proved by the accused i.e. the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a primafacie case for a party for whose benefit it exists. Presumptions under both the sections i.e. Section 118(a) and Section 139 of N.I. Act are rebutable in nature. Once Section 139 of NI Act comes into picture, the Court presumes that the cheque was issued in discharge, in whole or in part, of any debt or liability. The effect of the presumption has been explained in a catena of judgments, including the judgments of the Hon'ble Supreme Court in, Hiten P. Dalal v. Bratindranath Banerjee (2001) 6 SCC 16 and Rangappa vs. Sri Mohan (2010) 11 SCC 441.
(13.) In case titled as S. Anand versus Vasumathi Chandrasekar, reported in (2008) 4 Supreme Court Cases 67, wherein the complaint under Section 138 of the NI Act was dismissed by the trial Court exercising the power under Section 256 Cr.P.C., on failure of the complainant or her power of attorney or the lawyer appointed by her to appear in Court on the date of hearing fixed for examination of witnesses on behalf of the defence, the apex Court has considered as to whether provisions of Section 256 Cr.P.C., providing for disposal of a complaint in default, could have been resorted to in the facts of the case as the witnesses on behalf of the complainant have already been examined and it has been held that in such a situation, particularly, when the accused had been examined Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2025.04.02 17:56:26 +0530 CC NI ACT 295/2021 6of9 under Section 313 Cr.P.C., the Court was required to pass a judgment on merit in the matter.
(14.) Applying the same formula to the case on hand, where the complainant has failed to keep himself present before this court for his cross-examination and this court has already recorded 313 statement of the accused in the present case, hence this court was required to pass a judgment on merit.
(15.) The accused had taken the defence that she did not sign the cheque, did not issue the cheque towards any debt and that she did not receive the legal demand notice. The points for determination are as follows:
1. Whether the accused received the legal demand notice or not?
2. Whether the accused issued the cheque towards discharge of legally recoverable debt or not?
(16.) It is clear from the record that the complainant did not appear for cross examination. In the affidavit filed along with the complaint, the complainant has re- iterated the contents of complaint stating that he has lend friendly loan to the accused and accused issued the cheque in question towards repayment of legally enforceable debt. Ex.CW1/3 is the demand notice which was issued by the complainant to the accused, in compliance with statutory requirement under section 138 of NI Act, calling upon the accused to repay the cheques amount. In his notice u/s 251 CrPC, accused admitted that she has received the legal notice. In her statement u/s 313 CrPC she denied receipt of legal notice but she admitted that her address mentioned in legal notice. Further, in light of the judgment C.C. Alavi Haji Vs Palapetty Muhammed & Anr 2007 (6) SCC 555 passed by Hon'ble Apex court, the defence of not receiving the notice is not maintainable if the accused does not pay amount of the cheque to the complainant within Digitally signed by HIMANSHI TYAGI HIMANSHI Date: TYAGI 2025.04.02 17:56:29 +0530 CC NI ACT 295/2021 7of9 15 days of receiving the summons from the court. The accused did not do so in the present case and has failed to adduce any evidence to rebut the presumption of due service. Therefore, the accused is deemed to be served under section 138 N.I. Act.
(17.) In the case at hand, the complainant did not have the presumption of law in his favour under section 118 and 139 of NI Act as accused did not admit her signatures on the cheque. So, the burden relied upon the complainant to prove that the accused issued the cheque in question towards discharge of the legally recoverable debt.
(18.) When the case was posted for cross-examination of complainant, the complainant has failed to keep himself present before this court though his counsel had appeared on few occasions. The accused was very much present before this court to conduct cross- examination of complainant on several dates of hearing. It is the complainant who has not appeared before this court, offering himself for cross-examination. Hence, his cross examination is taken as nil. Since the evidence of the complainant not testified through the test of cross-examination, no evidentiary value could be attached to his evidence given by way of affidavit. Reliance is placed upon Syed Dastageer Vs State of A.P. (2005), wherein while dealing with the provisions of Sec.137 and 138 of the Indian Evi- dence Act 1872, the Hon'ble High Court of A.P. has pleased to held that the object of cross examination is to test credibility of witness, to test truthfulness of facts which he had stated in chief examination, to put defense version in the mouth of witnesses and to know facts which witness did not state.
(19.) In this case, the accused has taken the defence that she never obtained any loan from the complainant and did not issue that cheque in question for legally recoverable debt. She also disputed her signature on the cheque and stated that cheque was stolen from the house of her father. Under these circumstances, the initial burden lies on the complainant to prove that he gave loan amount to the accused and that accused has Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2025.04.02 17:56:33 +0530 CC NI ACT 295/2021 8of9 issued the said cheque in question towards legally recoverable debt and on presentation of cheque, it was dishonoured.
(20.) As the complainant did not keep himself present for cross examination, the issuance of cheque in question towards legally recoverable debt was not proved beyond reasonable doubts. There was no other evidence on record to prove the loan transaction or the signatures of the accused on the cheque in question. The version of the complainant is unsubstantiated and highly doubtful.
(21.) Therefore, for the reasons discussed above, this court is of the considered view that the materials placed on record do not establish the guilt against the accused beyond all reasonable doubt and the essential ingredients of the offence punishable U/s.138 of N.I.Act have not been proved through evidence. Accordingly, the accused Ruchi Khanna is hereby acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act.
(22.) Ordered accordingly.
(23.) Announced in open court on 02.04.2025.
(24.) This judgment contains 09 pages and each page has digitally Digitally signed by the signed by undersigned. HIMANSHI TYAGI HIMANSHI TYAGI Date:
2025.04.02 17:56:36 +0530 (HIMANSHI TYAGI) MM/NI ACT/DIGITAL COURT-01 NORTH DISTRICT, ROHINI COURTS 02.04.2025 CC NI ACT 295/2021 9of9