Delhi District Court
Jitender Rana vs Pawan Kumar on 1 April, 2026
IN THE COURT OF MS. AAKANKSHA, JMFC-03,
NORTH-WEST DISTRICT, ROHINI COURTS, DELHI
Ct. Case No. 14626/2017
Jitender Rana .........Complainant
Through: Mr. Pradeep Gahalot and Gauri
Singh, Advocate
Versus
Pawan Kumar ..........Accused
Through: Mr. Parvesh Dabas, Advocate
(1) Name of the Jitender Rana S/o Sh. Sardar
complainant Singh R/o B-3/16, Ground
Floor, Samant Bhadra
CGHS, Limited, Sector-13,
Rohini, New Delhi-110085
(2) Name of the accused Pawan Kumar
S/o Sh. Azad Singh
R/o H.No. 75, Garhi
Mohalla, Ward No. 12,
Kharkhoda, District Digitally
signed by
AAKANKSHA
AAKANKSHA Date:
2026.04.01
16:30:10
+0530
Ct. Case No. 14626/2017
Jitender Rana Vs. Pawan Kumar
Page 1 of 30
Sonepat, Haryana
(3) Offence complained of Section 138 Negotiable
or proved Instruments Act, 1881
(4) Plea of accused Pleaded not guilty
(5) Date of institution of 15.11.2017
case
(6) Date of conclusion of 14.03.2026
arguments
(7) Date of Final Order 01.04.2026
(8) Final Order CONVICTION
JUDGMENT
1. The complainant Jitender Rana has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Pawan Kumar on 13.11.2017.
Digitally signed by AAKANKSHA AAKANKSHA Date:
2026.04.01 16:30:19 +0530
2. The factual matrix as can be culled out from the complaint is that having friendly relations, complainant financially helped accused by advancing a sum of Rs. 21,00,000/- in front of father of accused namely Sh. Azad Singh and one Rakesh vide loan Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 2 of 30 agreement dated 10.05.2016 for a period of five months and accused promised to repay the same with interest @ Rs. 55,000/- per month for period of default. Father of accused stood as a guarantor and issued post-dated cheque bearing no. 489612 dated 10.10.2016 drawn on account of his proprietorship concern. That accused committed default and after much persuasion, delivered the cheque in question bearing no. 000021 dated 10.07.2017 for a sum of Rs.
24,00,000/- drawn on HDFC Bank, Kharkhoda Road, Haryana, to complainant in partial discharge of his liability. However, to the complainant's dismay the said cheque was returned unpaid with remarks "Payment stopped by drawer" vide return memo dated 15.09.2017. The complainant then issued a legal notice dated 12.10.2017 calling upon the accused to pay the cheque amount within 15 days from the receipt thereof, but the accused failed to make the payment thus constraining the complainant to file this AAKANKSHA complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter Digitally signed by AAKANKSHA Date: 2026.04.01 16:30:24 +0530 referred to as 'NI Act') seeking redress against the dishonor of the cheque in question.
3. With a view to establish a prima facie case in order to enable the court to summon the accused, complainant led pre- summoning evidence by way of affidavit Ex. CW-1. The complainant relied upon following documentary evidence:
Ct. Case No. 14626/2017Jitender Rana Vs. Pawan Kumar Page 3 of 30
(a) Original cheque bearing no. 489612 dated 10.10.2016 for a sum of Rs. 21,00,000/- drawn on Oriental Bank of Commerce, which is Ex.CW1/1.
(b) Original car loan/loan agreement dated 10.05.2016, which is Ex.
CW-1/B.
(c) Original cheque in question bearing no. 000021 dated 10.07.2017 for a sum of Rs. 24,00,000/- drawn on HDFC Bank, which is Ex.CW1/C.
(d) Return memo dated 15.09.2017 qua cheque no. 000021, which is Ex. CW-1/D.
(e) Office copy of legal notice, which is Ex.CW1/E.
(f) Postal receipt, which is Ex.CW1/F.
(g) Speed post tracking report, which is Ex.CW1/G.
(h) Reply of legal notice, which is Ex. CW1/H. AAKANKSHA Complainant closed his pre-summoning evidence on 27.03.2018.
Digitally signed by AAKANKSHA Date: 2026.04.01 16:30:29 +05304. On the basis of above material and finding a prima facie case made out against the accused, the accused was summoned vide order dated 27.03.2018. Accused entered his first appearance, through his counsel on date fixed ie. 07.08.2018.
Ct. Case No. 14626/2017Jitender Rana Vs. Pawan Kumar Page 4 of 30
5. Notice u/s 251 Cr.P.C. was framed against accused on 30.01.2020 stating out to him the substance of accusation, to which he pleaded not guilty and claimed trial. His defence was recorded at the stage of framing of notice in compliance of directions passed by Hon'ble High Court of Delhi in Rajesh Aggarwal v. State 171 (2010) DLT 51. The accused took defence that cheque in question bears his signature, he used to run committee and cheque in issue was given as a security for the committee to the complainant, he has already paid Rs. 24,00,000/- of committee but complainant did not return his cheque and misused the same, that he has no liability to pay the cheque amount to the complainant. He also gave his father's cheque but the same has also not been returned to him and he has been falsely implicated. He further stated that he did not receive legal demand notice.
6. Accused was granted right to cross-examine the complainant on an oral prayer made by accused u/s 145(2) NI Act by accused vide order dated 30.01.2020. The complainant was examined as CW-1 thereby adopting his pre-summoning evidence AAKANKSHA as post-summoning evidence and was duly cross-examined and Digitally signed by AAKANKSHA Date:
2026.04.01 discharged. Vide separate statement of complainant, complainant's 16:30:34 +0530 evidence was closed on 15.05.2023.
7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 31.05.2023 wherein all the incriminating Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 5 of 30 evidence was put to the accused and he was granted an opportunity to explain the circumstances appearing against him at trial. While explaining the circumstances appearing in evidence against him, accused stated without oath that no loan agreement was ever executed, the cheque of his father was given as security as he used to run a committee and no loan was taken by him from complainant. He further stated that two cheques were given as security, one in his name and one in the name of his father and he does not have liability to make any payment, he has made all the due payment to complainant for the committee run by him and after that he issued stop payment instruction to his bank, he did not receive legal notice. Accused preferred to lead evidence in his defence.
8. At the stage of defence evidence, accused examined himself as DW-1 and was duly cross-examined. Defence evidence stood closed vide order dated 15.10.2025.
Digitally signed by AAKANKSHA AAKANKSHA Date:
2026.04.01 16:30:38 +0530
9. At the stage of final arguments, Ld. counsel for complainant submitted that complainant lent Rs. 21 lac to accused and security cheque of his father was given at the time of executing loan agreement, that when complainant persuaded accused to repay the loan, accused issued cheque in question in partial discharge of his liability on 10.07.2018 whereas accused filed complaint on 28.07.2018 and does not state whether the cheque was lost or stolen or anything regarding that. He further submitted that accused gave Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 6 of 30 reply to legal notice that his cheque was stolen and complaint has been filed but Mark A does not mention that the cheque was stolen or lost and it is just a blank complaint and accused has failed to show what happened to his complaint. Despite giving reply to legal notice, accused repeatedly took defence that he did not receive legal notice. In notice u/s 251 Cr.P.C. accused has admitted giving his father's cheque to complainant and later in his evidence DW-1 deposed that the cheque drawn on his father's account does not bear signature of his father, meaning thereby that accused himself signed his father's cheque. Accused further took defence that cheque was given as security for a committee which existed in 2015-16 and that cheque was given at the commencement of the committee and that he demanded the cheque in 2016, however the cheque is dated July 2017 and the amount is also filled by accused therefore this defence of accused stands disproved. Later in his cross-examination accused admitted filling the date and amount in the cheque in issue, contrary to his earlier deposition that his blank signed cheque was lost. Accused again retracted from his previous statement and deposed AAKANKSHA that he did not give his father's cheque to complainant. The Digitally signed by AAKANKSHA complaint filed before police station by accused is undated. In Ex. Date:
2026.04.01 16:30:43 +0530 DW-1/A cheque no. 21 is mentioned in handwriting but the same is missing from online complaint and therefore police was not aware about the specific cheque which accused claims to have lost. Accused did not put any question to complainant regarding issuing the cheque as security. He further prayed to convict the accused Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 7 of 30 stating that accused has failed to discharge the burden raised upon him.
10. Per contra, Ld. counsel for accused prayed to acquit the accused on the ground that the complaint nowhere mentions that the loan of Rs. 21 lac was advanced to accused on interest, two cheques were given to complainant out of which cheque in issue is drawn for a sum of Rs. 24 lacs whereas the loan amount as claimed is Rs. 21 lacs. Accused has admitted his signature on the cheque in issue. The loan agreement mentions only the cheque no. 489612 but complainant is not relying on this cheque. The agreement further mentions interest of Rs. 55,000/- per month and is stated to be signed by accused at point A and B which has been disputed and denied in cross-examination and in defence evidence. Even if signature of accused are compared on record and on the loan agreement, it is clear that accused did not sign the loan agreement.
The witness to the loan agreement namely Rakesh was never examined by complainant. CW-1 deposed that the loan was interest free for first five months and then interest was levied, but it runs contrary to the averments of the complaint. He further submitted that legal presumption only arises qua cheque of Rs. 21 lacs. Accused has taken defence that cheque was given as a security and by any calculation even if Rs. 55,000/- interest per month is added, the liability cannot be Rs. 24,00,000/- and therefore there is no legally enforceable liability of accused towards complainant. AAKANKSHA Digitally signed by AAKANKSHA Date: 2026.04.01 16:30:48 +0530 Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 8 of 30
11. After hearing the arguments advanced on behalf of both the parties and perusing the record carefully, the appreciation of evidence and findings of the court are as below.
12. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 NI Act. The following legal requirements need to be satisfied in order to constitute an offence u/s 138 NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii) that the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
AAKANKSHA Ct. Case No. 14626/2017 Digitally signed by AAKANKSHA Jitender Rana Vs. Pawan Kumar Date:
2026.04.01 Page 9 of 3016:30:53 +0530
(iv) that the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) that the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied can the person who had drawn the cheque be held liable for offence u/s 138 NI Act.
13. Burden of proof: The claim based under the provisions of Negotiable Instruments Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be AAKANKSHA drawn in favour of the holder of the cheque (drawee) and the law Digitally signed by AAKANKSHA Date: 2026.04.01 16:30:59 +0530 has put the burden to rebut the presumption on the accused that the Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 10 of 30 cheque was not issued by him against discharge of a debt or a liability. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. It was held by Hon'ble Supreme Court in the case of Rangappa v. Mohan: 2010 (11) SCC 441 that presumption of Section 139 of N.I. Act also includes the existence of legally enforceable debt:
14. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability.
Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in the section 139 NI Act is a presumption of law and not a presumption of fact and thus, this presumption has to be drawn in favour of the drawee and the burden to rebut the presumption with the probable defence is on the accused.
This is indeed an instance of the rule of 'reverse onus', where it is incumbent on the accused to lead what can be called 'negative evidence' i.e. to lead evidence to show non-existence of liability. Keeping in view that this is a departure from the cardinal rule of 'presumption of innocence' in favour of the accused and that negative evidence is not easy to be led by its very nature, it is now AAKANKSHA settled that the accused can displace this presumption on a scale of Digitally signed by AAKANKSHA Date:
2026.04.01 16:31:04 +0530 Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 11 of 30 preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non-existence of liability so probable that a reasonable person, ought under the circumstances of the case, act on the supposition that it does not exist. He can do so either by leading own evidence in his defence or even by punching holes in the case of the complainant in the testing ordeal of cross-examination. This can be deciphered from relevant para no.21 of Hiten P. Dalal (supra):
21. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'.
Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008 Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence. It is, thus, clear that in cases of Section 138 NI Act, AAKANKSHA upon proof of foundational facts, law presumes in favour of drawee Digitally signed by AAKANKSHA Date: 2026.04.01 16:31:10 +0530 that the cheque was issued by the accused in discharge, wholly or in part, of legally enforceable debt or liability and the burden to rebut Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 12 of 30 the same is upon the accused. The burden does not have to be conclusively established but the accused has to prove his defence on preponderance of probability.
14. Now applying the above law to the facts of the present case, it has to be adjudged whether the legal requirements laid down hereinabove have been fulfilled in the instant case.
14.1. The first legal requirement is:
"A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability."
At the outset, it has to be proved that the accused had issued the cheque in question on his account maintained with a bank AAKANKSHA for discharge of any debt or other liability. In the instant case, Digitally signed by AAKANKSHA Date:
2026.04.01 accused has admitted his signatures on the cheque in question in his 16:31:15 +0530 statement recorded u/s 313 Cr.P.C. and in notice framed u/s 251 Cr.P.C. The cheque in question has also been drawn on the account maintained by accused with HDFC Bank. The said fact has never been denied by accused at any stage of the proceeding.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian: 2021 SCC Online SC 75 Hon'ble Supreme Court held that:Ct. Case No. 14626/2017
Jitender Rana Vs. Pawan Kumar Page 13 of 30 "14. Adverting to the case in hand, we find on a plain reading of its judgment that the trial court completely overlooked the provisions and failed to appreciate the statutory presumption drawn under Section 118 and Section 139 of NI Act. The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him."
The above said principle has also been crystallized by Hon'ble Supreme Court in the case of Basalingappa v. Mudibasappa: (2019) 5 SCC 418, by observing that:
"25. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarize the principles enumerated by this Court in following manner:
(i) 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.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or 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.
(iv) 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.
(v) It is not necessary for the accused to come in the witness AAKANKSHA box to support his defence."Digitally signed by AAKANKSHA Date: 2026.04.01 16:31:20 +0530
14.2. In the instant case, the accused having admitted his signature on the cheque in question and the said cheque being drawn Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 14 of 30 on his own bank account, a mandatory presumption automatically arises in favour of complainant by virtue of Section 118(a) r/w 139 NI Act that the cheque in question was issued by him in discharge of, whole or part of, legally enforceable debt or case liability.
14.3. To prove his case, complainant examined himself as CW-1 thereby relying upon the cheque in question claiming it to have been issued by accused in partial discharge of his legal liability, towards complainant qua the friendly loan of Rs. 21 lacs. During cross-examination CW-1 deposed that " I have not filed my ITR or my bank statement showing my financial capacity of the relevant period. I have not disclosed any source of Rs. 21 lakhs in my entire complaint...The aforesaid amount was interest free for the first five months and thereafter it was advanced on interest basis. The accused undertook to pay interest @ Rs. 55,000/- per month after the first five months. There are no whatsapp messages or text messages pertaining to the demand if loan amount. Vol. I had called the accused and had also personally met with him with regard to repayment of my loan amount. It is correct that the loan agreement dated 10.05.2016 Ex. CW-1/B is executed between me and accused Pawan whereas the cheque Ex. CW-1/A was issued by the father of accused namely Sh. Azad Singh. The body of cheque Ex. CW-1/A was filled in completely except the name of the payee when it was given to me. It is wrong to suggest that the signatures on the loan AAKANKSHA Digitally signed agreement Ex. CW-1/B are forged and fabricated or that no by AAKANKSHA Date:
2026.04.01 16:31:25 +0530 Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 15 of 30 agreement whatsoever was ever executed between me and the accused Pawan. I cannot say as to whether any entry was made in the books of the notary with regard to the loan agreement. The witness Rakesh hails from a nearby Village Sisana and is known to both me and the accused. The father of the accused namely Sh. Azad Singh was present when the loan agreement Ex.CW-1/B was executed. It is correct that the father of the accused namely Sh. Azad Singh had not signed upon the loan agreement Ex. CW-1/B as witness despite his presence. It is correct that the cheque Ex. CW-1/C i.e. the cheque in question is not part of the said loan agreement. It is correct that the cheque in question is of Rs. 24 lakhs whereas an amount of Rs. 21 lakhs is mentioned in the loan agreement as the loan amount. Vol. The amount of Rs. 24 lakhs as mentioned in the cheque include the interest amount. No fresh agreement or any other document whatsoever was executed between me and the accused Pawan Kumar when the cheque in question for an amount of Rs. 24 lakhs was given to me. I have not returned the old cheque Ex. CW-1/A to the accused at the time of taking the second cheque i.e. Ex. CW-1/C from him. Apart from name of payee, the rest of the body of cheque in question was already filed.
AAKANKSHA The accused had filled the body of the cheque apart from the payee Digitally signed by AAKANKSHA in front of me. It is correct that I have filled the name of the payee in Date:
2026.04.01 16:31:30 +0530 my own handwriting... It is correct that I used to give money to the accused as committee since 2014...It is wrong to suggest that I have forged the loan agreement Ex. CW-1/B."Ct. Case No. 14626/2017
Jitender Rana Vs. Pawan Kumar Page 16 of 30 14.4. The case of the complainant is based upon a loan agreement Ex. CW-1/B, which accused has categorically denied having ever executed. This can be deciphered from the cross-
examination of CW-1 as briefly narrated hereinabove. Together with denying the execution of loan agreement, accused has also questioned his signature on the agreement and absence of his father's signature on the agreement despite complainant insisting the presence of father of accused at the time of entering into the loan agreement. CW-1 has admitted in his complaint as well as in his testimony that father of accused was present at the time of execution of such loan agreement. However, he has also admitted that despite his presence, the loan agreement was not signed by father of accused. The loan agreement Ex. CW-1/B also does not bear signature of the second witness. The only witness to the loan agreement is Mr. Rakesh. However, complainant has failed to examine the said witness. Ld. counsel for accused has argued that thus, complainant has failed to prove his case.
14.5. Accused examined himself as DW-1 and deposed that he used to run a committee wherein complainant used to invest, that cheques used to be given by him to members of the committee and AAKANKSHA when any member used to get the amount of committee as per Digitally signed by AAKANKSHA Date:
2026.04.01 16:31:34 rotation basis, he used to take his cheque back and guve him the +0530 committee amount, that complainant has not given the cheque in question to him upon receiving the committee amount on one Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 17 of 30 pretext or the another, that complainant had told him that the cheque was misplaced and that he will return the same as he finds it, that when despite multiple reminders complainant did not return his cheque it was then when he filed complaint at PS Kharkhoda. When cross-examined DW-1 deposed that "The committee in which the complainant was a member was started in year 2015 and it was closed in year 2016, however I do not remember the exact month in which it was closed. It is correct that I used to give the cheque to all the members when the committee used to start and used to take back the cheque when that member received the amount of the committee. It is correct that at that time of making the payment to the members I used to demand back the cheque which was given at the start of committee. It is correct that I have demanded back the cheque in question from the complainant in the year 2016 when the payment has been made to the complainant. On the day when I made the payment in year 2016 and when I asked the complainant to return the said cheque, the complainant stated that I had not brought the cheque in question today and the same I will return in 2-4 days. I have not given any specific time to the complainant to return the cheque as he has assured that he will return the cheque to me, however, after several follow-ups with the complainant to return the cheque, the same was not returned...When the cheque was not returned by the complainant I had filed the complaint as above AAKANKSHA mentioned. It is correct that in the complaint Mark A it is not Digitally signed by AAKANKSHA mentioned that as to from where the cheque was lost/stolen. Vol. I Date:
2026.04.01 16:31:40 +0530 have filed the complaint online that my cheque has been lost. I have Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 18 of 30 filed this complaint on 28.07.2017. I have not received any legal demand notice sent by the complainant after dishonor of the same. At this stage, witness is confronted Ex. CW-1/H after seeing the reply to the legal demand notice, I had received the legal demand notice on 12.10.2017. It is correct that in the reply to the legal demand notice it is stated that the cheque in question was not given by me to the complainant rather the same was stolen from my office by the complainant. Vol. I used to run many committees in which the complainant was member of more than one committee. I myself do not remember as to how many cheques I have given to the complainant and how many cheques are remaining to be returned by the complainant after receiving the committee amount...The cheque in question handed over to the complainant was blank signed cheque. No contents in the cheque were filled by me... I have not given cheque Ex. CW-1/A to the complainant. Vol. I myself do not remember as to how many cheques I have given to the complainant and how many cheques are remaining to be returned by the AAKANKSHA Digitally signed by complainant after receiving the committee amount...It is wrong to AAKANKSHA Date:
2026.04.01 16:31:49 +0530 suggest that the present cheque Ex. CW-1/A has been given by me to the complainant. It is further wrong to suggest that this cheque belongs to my father..It is correct that I have stated today that cheque in question was given to the complainant at the time of starting the committee which was not returned and at the same time it has been mentioned in my reply to the legal notice that the cheque in question was stolen by the complainant from my office. Out of the two statement, the statement which I have stated today in the Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 19 of 30 Court is the correct statement...It is correct that date and amount filled in words are in my handwriting. I had received the notice Ex. CW-1/E. There is no contents in the complaint Mark DW-1/A and even the same is undated. I have filed the complaint on-line, however after lodging the complaint I visited the police station and thereupon on the copy of the complaint I have mentioned the cheque no. 21 in my handwriting...The cheque Ex. CW-1/A is handed over to the complainant in lieu of payment towards the committee. I used to issue my father's cheque also to the person who were members of the committee when I do not have my own cheques. It is correct that the account number mentioned on the cheque Ex. CW-1/A belongs to my father. The cheque Ex. CW-1/A belongs to my father only. I had handed over the cheque Ex. CW-1/A to the complainant in respect to the committee. The cheque does not bear signature of my father."
14.6. In a case involving trial u/s 138 NI Act, when legal presumption stands in favour of complainant that the cheque was issued by accused in discharge of his legal liability, the burden is actually upon the accused to rebut such presumption and the court AAKANKSHA cannot proceed as if complainant was required to prove his own Digitally signed by AAKANKSHA Date:
2026.04.01 case. However, the standard of proof upon accused is only 16:31:54 +0530 preponderance of probability. Merely setting up a plea that the cheque was not issued in discharge of legal liability is not sufficient. Something which is probable has to be brought on record for getting Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 20 of 30 the burden of proof shifted to the complainant. To disprove the presumption, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non- existence was so probable that a prudent man would under circumstances of the case, act upon the plea that they did not exist [Uttam Ram v. Devinder Singh Hudan (2019) 10 SCC 287 ]. The standard of probability is that of a prudent person. To raise such probable defence, it is not enough for accused to merely offer a reasonable and probable explanation. But it must be shown that the explanation offered by accused is a true one.
14.7. In the present case, the accused has failed to raise a consistent defence, thereby giving rise to a doubt over the defence set up by accused. To begin with, accused has taken defence u/s 251 AAKANKSHA Cr.P.C. that he gave cheque in issue and his father's cheque as Digitally signed by AAKANKSHA Date:
security for committee to complainant and that despite having paid 2026.04.01 16:32:10 +0530 complainant a sum of Rs. 24 lakhs for the committee, complainant failed to return the cheques to him. In his explanation to statement u/s 313 Cr.P.C. accused reiterated the above defence further stating that when complainant did not return his cheque, he issued stop payment instructions to his banker and that he has not received legal notice. To the contrary, accused has given reply to legal notice, which is Ex. CW-1/H. A perusal of reply to the legal notice would bring to surface the defence taken by accused that he never issued Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 21 of 30 the cheque to complainant, rather the said cheque was stolen by complainant from the office of accused and that he also lodged a lost property report before PS Kharkhoda. Yet again, in his testimony DW-1 admitted handing over blank signed cheque in issue to the complainant as security for the committee. Both such defences cannot co-exist. Either the cheque was given as a security to complainant or could have been stolen from the office of accused. Further, DW-1 admitted that Mark DW-1/A is the same complaint that he referred to in the reply to the legal notice. However, there is no mention of the cheque number which accused claims to have lost in his online complaint Mark DW-1/A. Ld. counsel for complainant has, thus rightly argued that therefore the police was never aware about the cheque which was claimed to have been stolen/lost and that accused has failed to show the outcome of his such online complaint. When questioned by complainant as to which of his statements was true, DW-1 assigned truthfulness to the statement made before Court that the cheque in issue was given at the starting AAKANKSHA Digitally signed of the committee to the complainant as security. Thereby accused by AAKANKSHA Date: 2026.04.01 16:32:16 +0530 falsified his own reply to the legal notice which is considered to be the first stage affording accused an opportunity to raise a defence against use of his cheque.
14.8. Furthermore, such lost property case was only filed on 28.07.2017 as claimed by DW-1. The complaint Mark DW-1/A is, however, undated as also admitted by accused in his cross-Ct. Case No. 14626/2017
Jitender Rana Vs. Pawan Kumar Page 22 of 30 examination. DW-1 has also deposed that the committee for security of which he gave this cheque to complainant commenced in the year 2015 and ended in the year 2016. Yet the cheque in issue is dated 10.07.2017, which makes it hard to believe that a cheque for a date of October 2017 would be issued as security for a committee which existed from 2015 to 2016 only. This also becomes true in the light of deposition of DW-1 wherein he first denied having filled the particulars of cheque in issue, and later admitted filling the date and the amount therein.
14.9. Also, contrary to his claim u/s 251 Cr.P.C and 313 Cr.P.C., in his testimony DW-1 denied issuing his father's cheque Ex. CW-1/A to the complainant. He also denied his father's signature on the cheque Ex. CW-1/A whereas his defence till the stage of defence evidence was that he issued both the cheques as security for the committee. When further questioned, DW-1 had deposed that there were several committees in which complainant was a member and AAKANKSHA that he does not know and does not remember as to how many Digitally signed by AAKANKSHA Date: 2026.04.01 16:32:22 +0530 cheques were still lying with the complainant. Thus, when accused is himself not sure about his defence, it cannot be said that he raised a probable defence. Moreover, accused also failed to examine his father to prove his defence. It is unlikely that a prudent person would not issue legal notice or demand in any other way, return of his cheque from complainant for almost a year till 2017, if he claims to have paid the committee amount in full to the complainant in Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 23 of 30 2016 itself. Accused has also failed to file on record the details and the reason for issuing stop payment instructions to his banker. His police complaint is vaguely filed which does not bear the cheque number or any other detail/manner in which the cheque was stolen/lost. This is also contrary to his defence taken during the trial that the cheque was not lost/stolen but was issued as security for the committee.
14.10. Furthermore, accused has argued that complainant failed to examine the witness to the loan agreement i.e. Mr. Rakesh, that complainant failed to prove his lending capability and that the loan agreement relies on cheque Ex. CW-1/A whereas the complainant relies upon cheque Ex. CW-1/C and that by no means the liability for loan of Rs. 21 lakhs could have accrued to Rs. 24 lakhs. However, as discussed hereinabove, the burden was upon accused to first raise a probable defence and only then the burden would have been shifted upon complainant to prove his case beyond reasonable doubt. It would also be apposite to observe that the case of the complainant is that the loan of Rs. 21 lakhs was granted interest free for first five months and thereafter interest @ Rs. 55,000/- per month was to be levied and that when despite demands accused failed to repay the loan, accused issued cheque in question Ex. CW-1/C for a sum of Rs. 24 lakhs in partial discharge of his AAKANKSHA liability. This finds support from the pleadings as well as from bare Digitally signed by AAKANKSHA Date: 2026.04.01 16:32:27 +0530 perusal of the loan agreement Ex. CW-1/B. Although there is Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 24 of 30 correction in blue ink in the amount of interest to be levied, the same also bears initials of accused. Accused has denied his signature on the loan agreement, but accused has also failed to examine the witness Rakesh, which CW-1 has admitted being known to both the parties. Accused has also failed to examine his father to deny any such allegations, despite his father's cheque being allegedly given as security for the committee to complainant. Further, accused has himself admitted that he gave back the committee amount of Rs. 24 lakhs to complainant. Thus, such challenge to financial capability of complainant does not yield any positive inference in favour of accused when accused has himself admitted returning complainant committee amount of Rs. 24 lacs.
14.11. To sum up, accused has failed to raise a consistent defence. Sometimes, accused claims not to have received legal notice and then himself agrees to have given a reply to the same. In his reply, accused alleges that complainant stole the cheque, and AAKANKSHA later in his deposition DW-1 admitted that the cheque was issued as Digitally signed by AAKANKSHA Date:
2026.04.01 security to complainant. Sometimes, accused takes defence that both 16:32:30 +0530 the cheques on record were given to complainant as security for committee which started in 2015 and ended in 2016 and that he did not fill the particulars of the cheque in issue. Later, accused himself admits filling the date and amount in words on the cheque in issue and the cheque is dated October 2017, meaning thereby that a security cheque of 2017 was given for a committee which ended in Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 25 of 30 2016. Yet at some places, accused disputes giving his father's cheque to the complainant. Finally, accused admits that he does not remember how many cheques were given to complainant and are still lying with complainant. Accused has also failed to give any notice, etc. to complainant or file any complaint or taken any action whatsoever to demand back his cheque from the complainant. The police complaint that accused filed does not bear the cheque number which he claims to have lost/stolen and is undated. Further, it is contrary to the defence of security cheque set up by accused during the trial. AAKANKSHA Digitally signed by AAKANKSHA Date: 2026.04.01 16:32:35 +0530 14.12. The burden was upon accused to rebut the legal presumption, on the test of probability, and raise a probable defence which would convince the court that the cheque was not issued towards legal liability of accused. The standard of probability was that of a prudent person. However, accused has been unable to prove the same as he pleaded contradictory defences during trial and in his reply to legal notice. He has also failed to act as a prudent person. Accused has, thus, miserably failed to prove his defence.
14.13. Thus, accused has been unable to rebut the presumption of law and discharge the burden of proof by raising a probable defence that the cheque in question was not issued to complainant in discharge of his liability.Ct. Case No. 14626/2017
Jitender Rana Vs. Pawan Kumar Page 26 of 30 The first legal requirement is, thus, proved in favour of complainant and against the accused.
15. The second legal requirement is:
"That cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier."
The cheque in question Ex. CW-1/C is dated 10.07.2017. The cheque returning memo Ex. CW-1/D is dated 15.09.2017, which proves that the cheque in question was presented within the period of its validity. Further, defence has failed to controvert the said fact.
Thus, the second legal requirement is adjudicated in AAKANKSHA
favour of complainant. Digitally
signed by
AAKANKSHA
Date:
2026.04.01
16:32:39
+0530
16. The third legal requirement is:
"That cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank."
Section 146 NI Act presumes the fact of dishonour of cheque upon production of bank's slip or memo having the official mark denoting that the cheque in question has been dishonoured. This is also a rebuttable presumption and the upon production of such bank memo, the burden shifts upon accused to disprove the Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 27 of 30 same. It was held in Laxmi Dyechem v. State of Gujarat: (2012) 13 SCC 375 that:
"15. ... We find ourselves in respectful agreement with the decision in NEPC Micon Ltd. (supra) that the expression "amount of money .......... is insufficient" appearing in Section 138 of the Act [NI ACT] is a genus and dishonour for reasons such "as account closed", "payment stopped", "referred to the drawer" are only species of that genus. Just as dishonour of a cheque on the ground that the account has been closed is a dishonour falling in the first contingency referred to in Section 138, so also dishonour on the ground that the "signatures do not match" or that the "image is not found", which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act."
In the instant case, a presumption has been raised in favour of complainant by virtue of Section 146 NI Act that the cheque in question was dishonored for the reason stated therein viz. payment stopped by drawer. As held in Laxmi Dyechem (supra) dishonour of cheque with the remarks "payment stopped" also fall within the offence u/s 138 NI Act and therefore, the burden now shifts upon the accused to rebut this presumption by establishing some reasonable justification for the same. But the accused has admitted his signature on the cheque in question and even the fact that he stopped the payment of the same by giving instruction to his bank.
Thus, the third legal requirement is adjudicated in favour of complainant.
17. The fourth legal requirement is: Digitally signed by AAKANKSHA AAKANKSHA Date:
2026.04.01 16:32:44 +0530 Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 28 of 30 "The payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid."
In the instant case, the cheque in issue was returned dishonoured on 15.09.2017. The complainant sent a legal notice (Ex. CW-1/E) addressed to the accused. Speed post receipt dated 12.10.2017 (Ex. CW-1/F) proves that the legal notice was sent within the prescribed period.
Thus, the fourth legal requirement is adjudicated in favour of complainant.
18. The fifth legal requirement is:
"The drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice."
Although accused has denied receiving the legal notice in his plea of defence u/s 251 Cr.P.C. and in his statement recorded u/s 313 Cr.P.C., however it is admitted fact that accused has sent reply to the legal notice. Thus, accused has admittedly received the legal demand notice. It is also an undisputed fact and a matter of record that the accused has failed to make the payment till date let alone making payment within 15 days of receipt of notice.
AAKANKSHA Thus, the fifth legal requirement is adjudicated in Digitally signed by AAKANKSHA Date:
2026.04.01 16:32:49 +0530 favour of complainant.Ct. Case No. 14626/2017
Jitender Rana Vs. Pawan Kumar Page 29 of 30
19. All the legal requirements constituting an offence u/s 138 NI Act have been proved in favour of complainant and against the accused. Accordingly, accused Pawan Kumar S/o Azad Singh is held "guilty" and is thus, convicted for the alleged offence u/s 138 NI Act.
Copy of this judgment be given Dasti to the convict free of cost as per rules.
Announced in the open court on 01st of April 2026.
Digitally signed by AAKANKSHA AAKANKSHA Date:
[AAKANKSHA] 2026.04.01 Judicial Magistrate First Class-03(North-West)/ 16:32:54 +0530 Rohini/Delhi Ct. Case No. 14626/2017 Jitender Rana Vs. Pawan Kumar Page 30 of 30