Delhi District Court
M S Maqsood Company And Anr vs Aisha Fatma on 13 January, 2026
1
IN THE COURT OF SHRI PUNEET PAHWA,
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
NORTH EAST DISTRICT, KARKARDOOMA COURTS,
DELHI
CRIMINAL APPEAL NO. 182/2025
CNR No. DL NE 01-002899-2025
1. M/S. MAQSOOD & COMPANY
Through it's Proprietor
Maqsood Ali
S/o Sh. Nazir Ali
R/o H. No. C-901, Gali No.6,
Chauhan Bangar,
Delhi-110053
2. MAQSOOD ALI
S/o Sh. Nazir Ali
R/o H. No. C-901, Gali No.6,
Chauhan Bangar,
Delhi-110053
........ Appellants/Convicts
Versus
AISHA FATIMA
D/o Ameenuddin
R/o H. No. 1463, Gali No. 6,
Jafrabad, Delhi-110053
....... Respondent/Complainant
Date of Institution of Appeal : 26.09.2025
Date of Completion of Arguments : 01.12.2025
Date of Judgment : 13.01.2026
JUDGMENT
Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:55 +0530 2
1. This appeal is directed against the impugned judgment dated 13.08.2025 and the order on sentence dated 30.08.2025 passed by the court of Sh. Anmol Nohria, Ld. JMFC-02, North-East, Karkardooma Courts, Delhi in a case bearing CC No.641/2020 filed against the appellants /convicts under section 138 of Negotiable Instruments Act (herein after referred to as the NI Act), vide which, the accused no. 1 and 2 (appellants herein) were convicted under section 138 of NI Act and sentenced to undergo maximum punishment i.e. simple imprisonment for a period of two years and directed to pay fine of Rs.10,00,000/-, which is double the cheque amount to the complainant, as compensation within 30 days from the date of impugned order on sentence i.e. 30.08.2025 and in default of the payment of compensation, the convict shall undergo further simple imprisonment of two months.
2. Feeling aggrieved with the impugned judgment and order on sentence, the appellants/convicts have filed the present appeal. Notice of the appeal was issued to the respondent/complainant.
3. The record of the Trial Court is also requisitioned.
4. Brief facts of the case, as stated by the complainant in her complaint are that accused (appellant no. 2 herein) is a friend of her brother namely Javed and having cordial relations with him. The accused (appellant no. 2 herein) Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:57 +0530 3 had taken a loan of Rs.5,00,000 from the complainant in the name of his firm Maqsood & Company i.e. appellant no. 1 herein. When the complainant asked for repayment, the accused had issued a cheque bearing No. 000229 dated 10.02.2020 amounting to Rs.5,00,000/- drawn on Kotak Mahindra Bank alongwith an undertaking/receipt qua his repayment on 15.02.2020. But, on presentation, the said cheque was returned unpaid with remarks "fund insufficient" vide returning memo dated 04.05.2020.
Thereafter, complainant got issued a legal notice to the accused, but, despite that no payment was made to the complainant by the accused. Finding no option, the complainant had filed a complaint u/s. 138 NI Act against the accused seeking legal remedy for dishonour of cheque and recovery of the due amount.
5. The accused had taken plea that he had no transaction with the complainant, but with Jameel Ahmed, who is maternal uncle of complainant and had not issued any cheque to her, but to Jameel Ahmed as security from whom, he had taken Rs.25,00,000/- as loan out of which, he had returned about Rs.22,72,000/- and has no legal liability towards the complainant. In his statement under Section 294 Cr.P.C, the accused had admitted his signatures on the cheque in question, but, he denied receiving legal demand notice and filling the particulars of the cheque.
Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:48 +0530 4
6. As observed by the Ld. Trial Court, the accused failed to rebut the presumption of liability and all the ingredients of offence u/s. 138 of NI Act were proved qua the accused. Accordingly, accused no. 1 and 2 were convicted of offence u/s 138 N.I. Act, vide impugned judgment dated 13.08.2025 and thereafter, accused no. 2 (appellant no. 2) was sentenced, vide order on sentence dated 30.08.2025.
7. Feeling aggrieved with the impugned judgment and order on sentence, the convicts (appellant no.1 and 2 herein) filed the present appeal.
8. It is pertinent to mention at the outset that the arguments on the main appeal were heard on 01.12.2025 and after the conclusion of arguments, the case was fixed for orders on 13.12.2025, however, on 13.12.2025, Ld. Counsel for the appellant had filed an application u/s. 432 BNSS on behalf of the appellant for recording of additional evidence, vide which, the appellant has furnished bank account statement of M/s. Maqsood & Co., reflecting bank transactions of receiving loan amount of Rs.25 lakhs from the respondent and also reflecting transactions of repaying the said loan amount to the respondent.
9. Ld. Counsel for the appellant further submitted that he could not furnish the said bank statement before Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:53 +0530 5 the Ld. Trial Court, as same were not available due to Covid 19 pandemic and same has been luckily discovered by the appellant. Another fact which was sought to be proved by leading additional evidence was payment of Rs.1 lakh from the account of the appellant to the account of the respondent on 25.10.2016.
10. Ld. counsel for the respondent has filed reply to the said application and submitted that the present application is not maintainable, as the same has been filed without any cogent reason. The appellant has filed the said application with false, frivolous and misleading intention to delay the proceedings of the Hon'ble Court.
So far as the transaction with regard to the amount of Rs.1,00,000/- is concerned, Ld. Counsel for the respondent submitted that on 27.06.2016, the appellant had taken a loan of Rs.1,00,000/- from the respondent and on 25.10.2016, the appellant had returned the said loan amount to the respondent. He has also submitted that the transactions showing in the bank statement between the appellant and respondent have no concern with the present case, therefore, the present application is liable to be dismissed and prayed that the said application may be dismissed with heavy cost.
11. In the considered opinion of this court, the said application u/s. 432 BNSS for leading additional Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:51 +0530 6 evidence is not maintainable, firstly on the ground that the application is totally silent as to why, no such evidence was lead by the appellant before the Ld. Trial Court despite the fact that it was within the knowledge of the appellant and secondly, also on the ground that the alleged payment of Rs.1 lakh was made by the appellant on 25.10.2016, whereas, the loan in question was advanced on 03.08.2018. Thus, the said payment of Rs. 1 lakh was not even relevant for the present case. Thus, the application is not maintainable.
12. Reliance can be placed on Sonu Dahiya v. State the Govt. of NCT of Delhi, 2015 SCC OnLine Del 9601, wherein it was observed by the Hon'ble High Court of Delhi that in exercise of powers under Section 391 of the CrPC, the Court cannot permit production of new documents especially when the aforesaid evidence has not been led before the Trial Court. The relevant portion reads as below:
"10. The law in this regard is well settled. The Court must exercise its jurisdiction with care and caution and only in cases where appellate Court is satisfied that some evidence, which ought to have been brought on record, has been left out, the Court must satisfy itself that additional evidence is essential to prevent misca riage of justice.
11. A reading of the above Section clearly stipulates that the power under Section 391 of the Code of Criminal Procedure needs to be exercised with great Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:50 +0530 7 care. It is binding upon the Court that where the documents are already on record, the prayer for adducing additional evidence may be inferred as delaying the disposal of the case and in case of production of new documents, the Appellate Court cannot permit such ground as raised by the Appellant.
XXX XXX XXX
13. It is relevant to point out that during the course of trial, accused Somi Dahiya (appellant herein) did not opt to bring forth any evidence in his defence. He had a full run of trial to adduce evidence in this regard but he has not taken steps for leading additional evidence during the course of trial. An effort is being made to introduce new facts which is an afterthought and has been raised for the first time at the stage of appeal. The only inference which can be drawn is that the application has been made with an intention to delay the proceedings of the case Moreover the judgments cited by the learned Counsel for the appellant are only case specific and cannot be relied in this case."
13. The Hon'ble Supreme Court in Brig. Sukhjeet Singh (Retd), Mvc v. State of LP, 1(2019)SLT 661 decided on 25th January, 2019 has rejected the findings given by the High Court while upholding decision of the Appellate Court in dismissing application under Section 391 of the Code that the present exercise initiated by the applicant for filing additional evidence at such a belated stage appears to be with some ulterior mala fide motive or delaying the decision of the appeal to eternity. It was observed that when it becomes necessary to take additional evidence, cannot be enlisted or enumerated in Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:49 +0530 8 any fixed formula and it depends on facts of each and every case to come to a conclusion as to whether it is necessary to take additional evidence or not. Thus, the application u/s. 432 of BNSS filed on behalf of the appellant stands dismissed, being devoid of merits.
14. Now, coming to the main appeal. The notice of the appeal was issued to the respondent and on completion of service of notice, SPA Holder of the respondent had appeared with Ld. Counsel.
15. I have heard the Ld. Counsel for the appellant, Ld. Counsel for the respondent and perused the record of the Ld. Trial Court.
16. Ld. Counsel for the appellant/convict submitted that the appellant has been falsely implicated in the above noted case by the complainant, as the appellant never took any loan from the complainant and he never issued any cheque to the complainant to discharge any liability. Ld. Counsel also submitted that the Ld. Trial Court has not considered the fact that at the time of framing the notice under Section 251 Cr.P.C on dated 3.3.2022, wherein, the appellant stated that he has no transaction with the respondent, but Jameel Ahmed, who is the maternal uncle of the respondent and had not issued any cheque to the respondent, but to Jameel Ahmad, as a security from whom, he had taken Rs.25,00,000/- as loan, out of which, he had returned about Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:52 +0530 9 Rs.22,22,700/- to Jameel Ahmad. He had no liability to pay any amount to the respondent.
17. Ld. Counsel for the appellant/convict further submitted that the Ld. Trial Court has not considered the fact mentioned in the application under Section 145 (2) of N.I. Act, wherein, the appellant stated that he had taken Rs.25,00,000/- in the year 2016 on different dates from the uncle of the complainant namely Jameel Ahmad and at the time of disbursement of the loan amount, Jameel Ahmad had taken 9 blank security cheques from the appellant and got signed some blank papers in his possession. The Ld. Trial Court has also not considered the fact that the appellant had returned the amount of Rs.22,22,700/- w.e.f. 24.6.2016 to April, 2018 to Jameel Ahmad, the uncle of the respondent, which the respondent admitted in her cross examination dated 8.12.2023.
18. Ld. Counsel for the appellant/convict further submitted that the Ld. Trial Court also failed to consider the fact that DW-3 Mohd. Nazim, in order to prove his defence by bringing on record the ledger Ex.DW3/A, w.e.f. 4.7.2016 to 4.2.2020 to show the entries of repayment and stated that he had handed over money to Javed and Jameel and had repaid a sum of Rs.22,22,700/-. The Ld. Trail Court also failed to consider the entries shown in ledger Ex.DW3/A. Ld. Counsel had relied upon the judgment of Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:01:00 +0530 10 Hon'ble Supreme Court, in Dashrathbhai Trikam Bhai Patel v. Hitesh Mahenderbhai Patel & Ors., Crl. Appeal No. 1497/2022 dated 11.10.2022, but, the Ld. Trial Court did not consider the said judgment.
19. Ld. Counsel for the appellant/convict further submitted that the impugned judgment and order on sentence have been passed by the Ld. Trial Court in mechanical manner without application of judicial mind and ignoring material evidence placed on record by the appellant. He also submitted that the impugned order on sentence is illegal and against the provisions and principles of natural justice, hence, the impugned judgment and order are liable to be set-aside and prayed that the impugned judgment as well as the order on sentence may kindly be set aside, in the interest of justice.
20. On the other hand, Ld. Counsel for the respondent /complainant submitted that the appellant herein has concealed the true, material and relevant facts and have not come with clean hands. The appellant is guilty of concealment, misstatement and misrepresentation of true and correct facts. Ld. Counsel also submitted that the Ld. Trial Court has properly considered the facts given in the impugned judgment with proper observation.
21. Ld. Counsel for the respondent/complainant further submitted that the total amount of loan received by the Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:56 +0530 11 accused till April 2018 was Rs.15 lakhs, then why has the accused repaid Rs.22,22,700/- till April 2018? For the total loan amount of Rs.25 lakhs, the amount of Rs.10 lakhs is received by the accused, after April 2018 and the accused admitted that nothing has been paid towards repayment, after April 2018. He has also submitted that the appellant made forged entries in the day books/ledgers to support the self prepared unauthentic documents. All the ingredients of offence u/s. 138 of NI Act have been fulfilled in respect of the accused/appellant herein and the accused/appellant herein could not rebut the statutory presumptions arising against him and submitted that the Ld. Trial Court passed the impugned judgment dated 13.08.2025 and order on sentence dated 30.08.2025, after considering all the facts and circumstances in a very judicious manner. He has also submitted that the appeal filed by the appellant/convict is false, frivolous and baseless and prayed for dismissing the present appeal filed by the appellant/convict.
22. I have gone through the impugned judgment, order on sentence, the Trial Court record and also heard the arguments advanced by both the parties.
23. Now, the relevant provision of law to settle the entire dispute/controversy between the parties herein is Sec. 138 of NI Act and the same is being reproduced hereinafter for the ready reference:-
Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:52 +0530 12 "138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-
(a) the cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity, whichever is earlier:
(b) the payee or the holder in due course of the cheque, as the case may be, 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; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation For the purposes of this section, "debt of other liability" means a legally enforceable debt or other liability.
24. The essential ingredients in order to attract Sec.
138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the amount arranged to be paid from that account by an Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:59 +0530 13 agreement made with the bank.
iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the receipt of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
25. Now, coming to the facts of the present complaint case keeping in view the essential ingredients of section 138 of NI Act.
26. In this case, it is not disputed and duly admitted by the accused that the cheque in question bears his signature and drawn by him. Therefore, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled. Accused has further not disputed the fact of dishonour of the cheque in question, hence, another essential ingredients (iii) and (iv) also stand proved by the complainant. So far as the ingredient no. (v) & (vi) are concerned, the appellant/accused has not admitted receipt of legal demand notice.
27. It is now well settled that once the notice is sent on the correct address of the appellant/accused, by a registered post, then notice is deemed to be served.
28. The notice was sent at the correct address of the Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:54 +0530 14 appellant/convict and as per the tracking report, which is Ex.CW1/6 (colly.), the item delivery has been confirmed. Meaning thereby, notice was served upon the addressee. It is worth noticing that the address at which the notice was sent is the same address, where, the summons of the complaint case were served upon the appellant/convict and the same address was mentioned in the testimony of the appellant/convict, when he had stepped into the witness box, as DW-2.
29. The Hon'ble Supreme Court in C. C. Alavi Haji v.
Palapetty Muhammed & Anr., (2007) 7 SCC 555 refers to Sec. 114 of the Evidence Act and Section 27 of the G C Act, and observed as under:
"Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v.
Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:53 +0530 15 Natthu Singh [(1992) 1 SCC647: AIR 1992 SC 1604]; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8SCC 774: 2005 SCC (Cri) 393].) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."
30. Thus, this court concurs with the conclusion arrived at by the Ld. Trial Court that the notice was duly served upon the appellant/accused. Admittedly, no payment was made by the appellant/accused to the complainant within 15 days of the receipt of legal demand notice. Thus, ingredient no. (v) & (vi) mentioned above also stood proved before the Ld. Trial Court.
31. Now coming to the last and the remaining core ingredients of Sec. 138 of NI Act, i.e. ingredient no. (ii) and (vii) as discussed in the preceding paragraphs and the real issue of controversy herein ie. whether the cheque in question was issued in discharge of any debt or liability, whole or in part and whether the same is a legally enforceable debt or not.
32. It is pertinent to mention here that the holder of the cheque has the presumption of law in his favour as per Section 118 of the NI Act and Section 139 of the NI Act.
Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:57 +0530 16 According to Section 139 of Negotiable Instruments Act, unless the contrary is proved, it is to be presumed 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. In the case in hand, since the appellant/convict has admitted his signature on the cheque in question, presumption of section 118 and 139 of NI Act arise in favour of the complainant which are being reproduced hereinafter for ready reference:-
"Section.118 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, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date - that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements - that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamps that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course:
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:50 +0530 17 obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
"139. 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".
33. It is now well settled that the said presumption shall remain untill contrary is proved. In K. Bhaskaran vs Sankaran Vaidhyan Balan And Anr, (1999) 7 SCC 510 and also in Rangappa v. Sri Mohan, (2010) 11 SCC 441, the Hon'ble Supreme Court has held that the presumptions under Sections 118 (a) and 139 of the NI Act are rebuttable in nature and for rebuttal of the same accused need not to step into the witness box as he can rebut the same by placing reliance on the material brought on record by the complainant. It is also a well settled legal position that the presumptions can be rebutted even by raising presumptions of fact and law on the basis of material available on record. It is further well settled that the standard required from the accused to prove his defence is preponderance of probabilities and accused need not prove his defence beyond reasonable doubts. Again in Basalingappa vs Mudibasappa (2019) 5 Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:53 +0530 18 SCC 418, the Hon'ble Supreme Court categorically held as under:-
"10. The complainant being holder of cheque and the signature on the cheque having not been denied by the accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before we refer to judgments of this Court considering Section 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn."
34. Needless to mention herein that the presumption contemplated under Section 139 of the Negotiable Instruments Act, is a rebuttable presumption. However, the onus of proving that the cheque was not in discharge of any debt or other liability is on the accused drawer of the cheque. In the present case initial presumptions in terms of Section 118 (a) and 139 of the NI Act duly arise not only regarding existence of legally enforceable liability in favour of the complainant but also regarding issuance of cheque in question by the accused in favour of complainant in discharge of his aforesaid liability. Now, whether or not the accused has been able to rebut the said presumption is a question of fact which needs to be decided after appreciation of entire evidence led on behalf of both the parties in the light of guiding principles laid down by the Hon'ble Supreme Court as mentioned herein above and depends upon the facts and Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:59 +0530 19 circumstances of each case.
35. Again, this court is not oblivious of the position of law that the accused is only supposed to discharge his /her onus not beyond the reasonable doubt but on the principle of preponderance of probabilities which is again a settled position of law and it has been reiterated again and again through the judicial precedents that the said appreciation depends upon the facts and circumstance of each and every case and no air tight formula can be adopted in order to ascertain as to whether accused has been successful in dislodging the testimony of complainant before the court.
36. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel vs State of Gujarat and Another 2019) 18 SCC 106 and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfill Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:56 +0530 20 the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. Further, it has been held in Rajesh Agarwal v. State, 2010 SCC online Del 2501 that:-
"9...... There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
37. The primary issue in the case in hand is to determine whether the accused has succeeded in discharging his burden i.e. whether he has successfully raised a probable defence in order to create a reasonable doubt in the case of complainant to discard the presumption of law in favour of complainant.
38. The defence of the appellant/convict on the basis of which, the present appeal has been filed is mainly that he had no transaction with the respondent, as he had only transacted with Jameel Ahmad, who was the maternal uncle of the respondent and he had never issued any cheque to the respondent. As per the defence raised by the appellant/convict, he had taken a loan of Rs.25 lakhs from Jameel Ahmad and issued 9 cheques as security to him and out of the said loan amount of Rs.25 lakhs, he had already returned Rs.22,22,700/- to Jameel Ahmad.
Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:51 +0530 21 To prove the repayment of Rs.22,22,700/- and also to prove that the actual liability upon the appellant/convict was much less than of Rs.5 lakhs, he had examined three witnesses and out those three witnesses, DW-3 was his own son, who had produced ledger book for the period of 04.07.16 to 04.02.20 to show entry of the payments made by him to Jameel Ahmad. On the basis of this and relying upon the judgment Dashrathbhai Trikam Bhai Patel (supra), it was argued that since the actual liability was less than Rs.5 lakhs, the complaint u/s. 138 of NI Act was not maintainable, which facts were not considered by the Ld. Trial Court.
39. In the considered opinion of this court, none of the arguments raised by the Ld. Counsel for the appellant is sound enough to make this court come to a different conclusion then, that of Ld. Trial Court. In a complaint u/s. 138 of NI Act, the onus is upon the convict/appellant to bring sufficient material on record, so as to rebut the presumption raised against him u/s. 118 & 139 of the NI Act.
40. From the abovesaid defence, at least it is clear and infact admitted by the appellant/convict himself that:
a) He and the complainant were known to each other, though not directly, but through one Javed, who was the brother of the complainant and friend Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:49 +0530 22 of the appellant/convict.
b). The cheque in question bears his signatures.
c). The accused/appellant herein had handed over the cheque in question to Jameel Ahmad, who is the maternal uncle/husband of the complainant.
d). The accused/appellant had taken loan of Rs.25 lakhs from Jameel Ahmad.
41. The above four points weaken the case of the accused and infact further strengthens the presumptions u/s. 118 & 139 of NI Act. Under the NI Act, the cause of action for filing a complaint u/s. 138 of NI Act arises when a cheque is dishonoured and the payee issues notice of the said dishonour to the drawer of the cheque calling upon him to make the payment of the cheque amount within 15 days and when the payee fails to make the payment within 15 days of receipt of notice, the cause of action arises on the 16th day to file the complaint u/s. 138 of NI Act.
42. The appellant/accused has admitted his signature on the cheque in question and as soon as the drawer of the cheque admits his signature on the cheque, the presumptions u/s. 118 & 139 of NI Act come into effect. The Hon'ble Apex Court in Rajesh Jain v. Ajay Singh, IX (2023) SLT 247-1 (2024) BC 129 (SC)=(2023) 10 Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:59 +0530 23 SCC 148, while discussing the appropriate approach in dealing with presumption under Section 139 of the NI Act, observed the following:
54..... Once the presumption under Section 139 was given effect to, the Courts ought to have proceeded on the premise that the cheque was, indeed, issued in discharge of a debt/liability. The entire focus would then necessarily have to shift on the case set up by the accused, since the activation of the presumption has the effect of shifting the evidential burden on the accused.
The nature of inquiry would then be to see whether the accused has discharged his onus of rebutting the presumption. If he fails to do so, the Court can straightaway proceed to convict him, subject to satisfaction of the other ingredients of Section 138. If the Court finds that the evidential burden placed on the accused has been discharged, the complainant would be expected to prove the said fact independently, without taking aid of the presumption. The Court would then take an overall view based on the evidence on record and decide accordingly.
55. At the stage when the Courts concluded that the signature had been admitted, the Court ought to have inquired into either of the two questions (depending on the method in which the accused has chosen to rebut the presumption): Has the accused led any defence evidence to prove and conclusively establish that there existed no debt /liability at the time of issuance of cheque? In the absence of rebuttal evidence being led the inquiry would entail: Has the accused proved the non-existence of debt/liability by a preponderance of probabilities by referring to the "particular circumstances of the case"?
XXX XXX XXX Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date: PAHWA 2026.01.13 16:00:56 +0530 24
61. The fundamental error in the approach lies in the fact that the High Court has questioned the want of evidence on the part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque."
(Emphasis supplied)
43. On a perusal of the judgment on conviction dated 13.08.2025, it is clear that all the arguments of the appellant have been extensively dealt with by the Ld. Trial Court. The Ld. Trial Court rightly noted that the appellant had failed to rebut the presumptions raised u/s. 118 & 139 of NI Act.
44. As per the case of the appellant/convict, although the cheque in question bears his signature and he had handed over the said cheque to Jameel Ahmad, as security cheque, but, no other particulars were filled by him. He has not denied his liability towards Jameel Ahmad. Admittedly, Jameel Ahmad is the maternal uncle/husband of the respondent and during her testimony, the respondent had very categorically stated that out of Rs.25 lakhs, Rs.20 lakhs were paid by Jameel Ahmad, whereas, Rs.5 lakhs were paid by the complainant/respondent. No contradiction whatsoever came out from the cross-examination of the complainant and even after leading defence evidence, the appellant Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:54 +0530 25 /convict failed to prove that he had actually paid Rs.22,22,700/- to Jameel Ahmad and he had also failed to prove that the actual liability was less than Rs.5 lakhs.
45. The onus to prove the same was on the appellant /convict and he had examined three witnesses to discharge the said onus. DW-1 was Mohd. Javed, who was the brother of the complainant/respondent and although he had stepped into the witness box, as defence witness, yet he had supported the case of the complainant. DW-2 was the appellant/convict himself, who had also failed to bring anything on record to rebut the presumption raised against him. In fact, in his cross- examination, he had also admitted his thumb impression and signature on the receipt cum acknowledgment dated 15.02.2020, which is Ex.CW1/1, which clearly specifies that the appellant/convict had taken a loan of Rs.5 lakhs from the respondent/complainant and also admitted that in discharge of his said liability, he had issued cheque bearing no. 000229 of Rs. 5 lakhs to the complainant /respondent. Although, he had stated that he had signed on some blank papers, which had two revenue receipts and placed thumb impressions upon the same, yet, this court is unable to believe the same and nothing has been brought on record to show that when the said document was signed, it was a blank document. DW-3 Mohd. Nazim had produced certain ledger entries to show Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:48 +0530 26 payments were being made to Jameel Ahmad. However, bare perusal of his testimony shows that during recording of his evidence, Ld. Trial Court had made certain observations and specifically held that the said document appeared to be having forged entries, as the entry mentioning payment to Jameel Ahmad appears to have been squeezed in and the said entries do not appear to have been made in ordinary course of business, as all the entries in those ledger regarding Jameel Ahmad are at such a place, where either some other entries were cancelled and name of Jameel Ahmad was entered or on some of the pages, the name of Jameel Ahmad has been mentioned at the top of the paper or right at the end, which made those entries to be highly doubtful. Moreover, as rightly observed by the Ld. Trial Court, the total of the amount mentioned in those ledgers do not match if the entry qua Jameel Ahmad is also considered.
46. Thus, the said ledger entries were discredited by the Ld. Trial Court and the testimony of Md. Nazim was rightly not considered. The case of the complainant was duly proved and in support of her claim, she had also placed one receipt cum acknowledgment duly signed by the appellant/convict i.e. Ex.CW1/1, which further strengthens the case of the complainant and the appellant /convict failed to bring anything on record to rebut the presumption raised against him.
Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:48 +0530 27
47. So far as the argument that the appellant had only signed the cheque in question, and rest of the particulars were not filled by him is concerned, the same is also not tenable. Section 20 of the Negotiable Instruments Act talk about Inchoate stamped instruments and it specifically provides that when one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon the said negotiable instruments. It further provides that the person so signing shall be liable upon the said instrument, in the capacity in which he signed the same to any holder in due course for such amount. Thus, section 20 of Negotiable Instruments Act specifically provides that when a cheque, duly signed by the issuer of the cheque, is handed over to another person, then the person having the possession of the cheque has prima facie authority to complete the particulars, which were left blank at the time of issuance of the said cheque. Thus, when the appellant had handed over the cheque in question, which was duly signed by him, to the respondent/complainant, the, respondent/complainant had implied authority to fill the remaining particulars in the cheque and the onus was upon the appellant to show that the cheque in question was misused by the respondent/complainant, but no Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:58 +0530 28 evidence to that effect was ever led by the appellant before the Ld. Trial Court.
48. The judgment of Dashrathbhai Trikam Bhai Patel's case (supra) being heavily relied upon by Ld. Counsel for the appellant is not applicable to the facts of the present case, as in that case, the accused was able to show that the actual liability upon the accused was less than the cheque amount, but in the present case, the appellant had failed to prove the same.
49. In view of the above, it can be said that there is no infirmity and illegality in the judgment of the Ld. Trial Court and the appellant has been rightly convicted. In the present case accused has merely denied the liability and failed to prove the same either by rebutting the testimony of complainant through her cross examination which may lead this court to believe non-existence of the consideration for which cheque in question is allegedly issued to complainant by accused, nor his defence is so probable that any prudent man would believe the same in the facts and circumstances of the case in hand or by leading any cogent and believable evidence to support his defence.
50. Thus, this court is inclined to hold that Ld. Trial court had rightly convicted the appellant/accused, as the appellant failed to rebut the presumptions raised against him. This court does not find any illegality, infirmity or Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:55 +0530 29 perversity in the impugned judgment under appeal, which may require any interference therein.
51. Therefore, the impugned judgment under appeal passed by the Ld. Trial Court is upheld and the appeal of the appellant/convict is hereby dismissed, being devoid of merit.
52. The record of the Ld. Trial court is ordered to be returned with the attested copy of this judgment.
53. Appeal file be consigned to the record room, after due compliance.
Announced in the open court on 13th day of January, 2026.
(PUNEET PAHWA) Special Judge (NDPS)/Addl. Sessions Judge/ North East/Karkardooma Courts/Delhi Criminal Appeal No. 182/2025 M/s. Maqsood Ali & Anr. Vs. Aisha Fatima Digitally signed by PUNEET PUNEET PAHWA Date:
PAHWA 2026.01.13 16:00:58 +0530