Delhi District Court
Ramesh Chandra Gupta vs Kamlesh on 17 March, 2026
IN THE COURT OF MS. AAKANKSHA, JMFC-03, NORTH-WEST
DISTRICT, ROHINI COURTS, DELHI
Ct. Case No. 401/2018
Ramesh Chandra Gupta .........Complainant
Through: Mr. Pankaj Kumar, Advocate
Versus
Kamlesh .............Accused
Through: Mr. Mukesh Sharma, Advocate
(1) Name of the complainant Ramesh Chandra Gupta S/o Late
Sh. Prahlad Rai Gupta R/o
D-11/325, Sector-7, Rohini,
Delhi-110085
(2) Name of the accused Kamlesh W/o Late Sh. Lal Chand
R/o House No. F-2/67, Sector-11,
Rohini Delhi
(3) Offence complained of or proved Section 138 Negotiable
Instruments Act, 1881
(4) Plea of accused Pleaded not guilty
(5) Date of institution of case 14.10.2017
(6) Date of conclusion of arguments 06.03.2026 AAKANKSHA
Digitally signed
by AAKANKSHA
Date: 2026.03.17
15:45:32 +0530
Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 1/22
(7) Date of Final Order 17.03.2026
(8) Final Order CONVICTION
JUDGMENT
1. The complainant Ramesh Chandra Gupta has instituted this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') against accused Kamlesh on 12.10.2017.
2. The factual matrix as can be culled out from the complaint is that complainant having friendly relations with accused and her son Yogesh Bali, advanced from time to time a total sum of Rs. 5,20,000/- on interest to Yogesh Bali since February 2016 for commencement of business of Tour & Travel as requested by Yogesh Bali. Yogesh Bali also executed promissory notes in favour of complainant against the advanced sum but on few occasions no promissory note was executed by Yogesh Bali citing paucity of time. Despite passing of substantial time, the accused or her son did not return back the borrowed sum with interest and upon demands made by complainant, in discharge of said liability, accused issued cheque in question bearing no. 532623 dated 09.08.2017 for a sum of Rs. 5,20,000/- drawn on ICICI Bank, Sector-11 Rohini, Delhi, in favour of complainant with assurance of its repayment. However, to the complainant's dismay the cheque in issue was returned unpaid with remarks "Insufficient Funds" vide return memo dated 09.08.2017, 17.08.2017 and 23.08.2017. The complainant then issued a legal notice dated 31.08.2017 calling upon the accused to pay the cheque amount within 15 days from the receipt thereof, but the accused AAKANKSHA Digitally signed by AAKANKSHA Date: 2026.03.17 15:45:38 +0530 Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 2/22 failed to make the payment thus constraining the complainant to file this complaint u/s 138 Negotiable Instruments Act, 1881 (hereinafter 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-1/1. The complainant relied upon following documentary evidence:
(a) Ten promissory notes, which are Ex. CW-1/A1 to Ex. CW1/A10.
(b) Original cheque bearing no. 532623 dated 09.08.2017 for a sum of Rs.
5,20,000/- drawn on ICICI Bank, which is Ex.CW-1/B.
(c) Return memo dated 23.08.2017, which is Ex. CW-1/C.
(d) Office copy of legal notice, which is Ex.CW1/D.
(e) Postal receipts, which are Ex. CW-1/E1 and Ex. CW-1/E2.
(f) Returned envelopes, which is Ex. CW-1/F1 and Ex. CW-1/F2.
(g) Copy of bank passbook of complainant, which is Ex.CW-1/G (OSR).
Complainant closed his pre-summoning evidence on 14.10.2017.
4. On the basis of above material and finding a prima facie case made out against the accused, the accused was summoned vide order dated 14.10.2017. Accused entered his first appearance on 15.03.2019.
5. Notice u/s 251 Cr.P.C. was framed against accused on 12.07.2019 stating out to her the substance of accusation, to which she pleaded not guilty and AAKANKSHA Digitally signed by AAKANKSHA Date: 2026.03.17 15:45:44 +0530 Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 3/22 claimed trial. Her 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 does not bear her signature, she never issued the cheque to complainant, the cheque in question was lost from her house and intimation was also given to the bank, complaint was also given to police regarding the same and complainant is not known to her, she did not receive legal notice.
6. Accused was granted right to cross-examine the complainant on an application filed by accused u/s 145(2) NI Act vide order dated 23.12.2021. The complainant was examined as CW-1 thereby adopting his pre-summoning evidence as post-summoning evidence and was duly cross-examined and discharged. Vide separate statement of complainant, complainant's evidence was closed on 05.09.2024.
7. Statement of accused was recorded u/s 313 Cr.P.C. r/w section 281 Cr.P.C. on 26.11.2024 wherein all the incriminating evidence was put to the accused and she was granted an opportunity to explain the circumstances AAKANKSHA appearing against her at trial. While explaining the circumstances appearing in Digitally signed by AAKANKSHA Date:
evidence against her, accused stated without oath that she does not know anything 2026.03.17 15:45:58 +0530 about the promissory notes, she had never taken any loan from complainant and never handed over any cheque to complainant, the cheque in question was lost for which she gave intimation to her bank and police, she does not know the complainant and has no legal liability towards complainant, her cheque has been misused, her correct address is F-2,67, Sector-11, Rohini, Delhi. Accused AAKANKSHA preferred to lead evidence in her defence. Digitally signed by AAKANKSHA Date: 2026.03.17 15:45:49 +0530 Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 4/22
8. At the stage of defence evidence, accused examined herself as DW-1 relying upon intimations given to the bank (Mark DW-1) and to the police (Mark DW-1/A). Accused also examined SI Samsher Singh as DW-2. Vide separate statement of accused, defence evidence stood closed on 28.07.2025.
9. At the stage of final arguments, Ld. counsel for complainant submitted that it is admitted fact that the loan was advanced to son of accused, ten promissory notes under signature of son of accused were handed over to complainant which were never disputed by accused. He further submitted that issuance of cheque towards legal liability of her son, is as good as issuing cheque by accused qua her own liability. That accused took different stand during the trial- in her notice framed u/s 251 Cr.P.C. accused denied her signature stating that complainant was not known to her and that the cheque has been lost. Whereas in her testimony, accused admitted her son having friendly relations with complainant and that complainant used to visit their house since 3-4 years, accused also admitted her signature on the cheque in issue. The address of accused throughout the trial has remained the same on which legal notice was sent. The complaint dated 09.08.2017 was filed before the dishonor of cheque on 09.08.2017, 17.08.2017 and 23.08.2017 as cheque has been presented thrice, meaning thereby that upon dishonor of cheque on 09.08.2017 accused got notice but police complaint is belated where accused has mentioned that cheque has been misplaced for last two months. The bank intimation is vague which states AAKANKSHA Digitally signed by AAKANKSHA that passbook and cheque book have been destroyed, there is no authenticity of Date:
2026.03.17 15:46:08 +0530 application sent to bank for closure of account and prayed to convict the accused.
10. Per contra, Ld. counsel for accused prayed to acquit the accused on the ground that accused is stranger to complainant, complainant is known to son Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 5/22 of accused, that even as per averments in the complaint, the money was required by son of accused and the money was lent not to accused but to her son, the promissory notes were also executed by son of accused, and accused only issued the cheque as per complaint. That accused gave intimation of loss of cheque in issue to the bank and to the police. Complainant has failed to prove how a sum of Rs. 5-6 lacs were advanced in six months, no ITR, no GST return is filed by complainant, no ledger is maintained by complainant, without repayment of previous loan complainant is stated to have been advancing money to son of accused which is unexplainable, the promissory notes do not bear any signature or writing of accused. That even for the sake of arguments if complaint is believed, the last promissory note of June 2017 is executed with a promise to return the money till 15.08.2017 but the complaint has been filed in May 2017 meaning thereby that the cheque has been presented for encashment prior to the date fixed for repayment. The legal notice was not served upon accused and was returned with reason 'no such person'. No document of loan was executed by accused in favour of complainant, the cheque was misplaced and the complaint has been filed.
AAKANKSHA Digitally signed by AAKANKSHA Date:
2026.03.17 15:46:13 +0530
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:
Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 6/22(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;
(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; AAKANKSHA Digitally signed by The above legal requirements are cumulative, meaning thereby that only if AAKANKSHA Date:
2026.03.17 15:46:18 +0530 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 Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 7/22 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 drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the 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.
AAKANKSHA Hon'ble Supreme Court, in the case of Hiten P. Dalal v. Digitally signed by AAKANKSHA Date:
2026.03.17 15:46:24 Bratindranath Banerjee: 2001 (6) SCC 16 held that the presumption mentioned in +0530 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 settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 8/22 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 AAKANKSHA cases of Section 138 NI Act, upon proof of foundational facts, law presumes in Digitally signed by AAKANKSHA Date:
2026.03.17 15:46:28 +0530 favour of drawee 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 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.Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 9/22
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 her account maintained with a bank for discharge of any debt or other liability. In the instant case, although accused denied her signature on cheque in question in her defence recorded in notice u/s 251 Cr.P.C. but has categorically admitted her signature in her testimony as DW-1. The cheque in question has also been drawn on the account maintained by her with ICICI Bank. The said fact has not been denied by accused at any stage of proceeding, as accused has admitted intimating her bank to close her account.
It was held in the case of Kalamani Tex & anr. v. P. Balasubramanian: 2021 SCC Online SC 75 Hon'ble Supreme Court held that:
"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."
AAKANKSHA The above said principle has also been crystallized by Hon'ble Digitally signed by AAKANKSHA Supreme Court in the case of Basalingappa v. Mudibasappa: (2019) 5 SCC 418 , Date: 2026.03.17 15:46:34 +0530 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.Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 10/22
(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 box to support his defence."
14.2. In the instant case, the accused having admitted her signature on the cheque in question and the said cheque being drawn on her 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 her in discharge of, whole or part of, legally enforceable debt or liability.
14.3. Now the burden shifts upon accused to rebut the above presumption AAKANKSHA by raising a probable defence, by leading evidence or bringing such facts on Digitally signed by AAKANKSHA Date:
record in the cross-examination of the complainant that could make the latter's 2026.03.17 15:46:40 +0530 case improbable. If, in such a case, the accused is proved to have discharged the initial onus of proof placed on him by showing that the existence of consideration was improbable or doubtful or illegal, then the onus will again shift back to the complainant who will then be under an obligation to prove it as a matter of fact and failure to do so will disentitle him to any relief on the basis of the negotiable instrument (as held in Satish Sharma v. State NCT of Delhi & anr.: (2013) 204 DLT 289).Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 11/22
14.4. The accused has chosen to do so by cross-examining the complainant and even leading her defence, but has utterly failed to discharge such burden as can be deciphered from following discussion. During cross-examination, CW-1 deposed, in brief, that no one was present when he disbursed the loan to accused.
They share common friends but he is unable to tell name of any such common friend whom he told about non-repayment of loan amount by accused. He disbursed amount to accused for the last time in August 2017 and at that time also a promissory note was executed by son of accused. At no point of time, accused either executed promissory note or any other document in writing with regard to disbursal of loan. The promissory notes are not signed by any witness.
14.5. In her defence, accused examined herself as DW-1 and deposed that she did not take any loan from complainant. She does not know the complainant and the complainant is known to her son. The cheque in issue bears her signature but she never issued the same in favour of complainant. The cheque was lost from her house and she does not know how it came in possession of complainant. She gave intimation to bank vide Mark DW-A and filed a complaint before police vide receiving Ex. DW-1/A. She did not receive legal demand notice. DW-1 was cross-examined by complainant wherein she deposed that her son Yogesh Bali is not employed. The application to bank Mark DW-A was submitted on 14.08.2017 in which she had made request to bank to close her bank account but no fact of loss of cheque is mentioned therein. She had orally told her bank to stop payment qua the cheque in issue as she had lost it. She did not receive any SMS informing about the dishonor of cheque in issue prior to making request at her bank and AAKANKSHA filing of police complaint. Her bank account was zero balance account. She Digitally signed by AAKANKSHA cannot identify the signature of her son. She only kept one blank signed cheque at Date:
2026.03.17 15:46:48 +0530 her house. She did not give legal notice to accused or filed case against accused for return/misuse of her cheque. Her son has friendly relations with complainant Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 12/22 since 6-7 years and complainant has been coming to her house since 3-4 years before filing of this case.
14.6. Accused also examined SI Samsher Singh as DW-2 but he deposed that all the records till the year 2019 have been destroyed vide order of DCP Ex.
DW-2/A (colly.) and therefore the witness could not confirm whether complaint was filed at PS Prashant Vihar or not.
14.7. It is undisputed fact that the cheque in issue bears the signature of accused. Although accused had denied having known to the complainant and denied her signature on the cheque in issue in her defence under Section 251 Cr.P.C., yet her categorical admission to her signature being appended on the cheque in issue finds mention in her testimony as DW-1. Also she has admitted in her testimony the fact that her son was maintaining friendly relations with complainant since last many years and complainant used to even visit their house since last 3-4 years. Thus, acquaintance of accused with complainant cannot be denied. Now coming to the brief facts of the complaint, complainant has alleged advancement of loan of Rs. 5,20,000/- to son of accused in presence of accused on various occasions since February 2016, and issuance of cheque in question by accused in discharge of liability of her son. To the contrary, accused has taken defence that she does not know the complainant, she never issued the cheque in question to complainant and that the said cheque in blank signed manner was lost from her house qua which she also filed an application to her banker and a complaint to the police station.
AAKANKSHA Digitally signed by AAKANKSHA Date: 2026.03.17 15:46:53 +0530 Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 13/22 14.8. In view of existence of legal presumption in favour of complainant that the cheque was issued by accused in discharge of her liability, the examination of defence of accused becomes imperative to conclude whether or not accused has been able to rebut such presumption existing in favour of complainant. The first defence raised by accused is that even as per the averments of the complaint, no loan was sought by accused, no such loan was advanced to accused, the promissory notes were not executed by accused. Ld. counsel for complainant rebutted such argument pleading that issuance of cheque in discharge of liability of some other person is as good as issuing cheque for one's own liability. The Court is convinced with the plea advanced by Ld. counsel for complainant. Reliance may be had to the language employed in Section 138 NI Act:
"When 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..."
The expression " for the discharge...of any debt or other liability" is sufficient to hold that cheque issued in discharge of not only the debt or liability of the drawer of the cheque, but also any debt or liability of any other person, is squarely covered under the realm of Section 138 NI Act. To this effect, it would also be appropriate to refer to the case of Anil Sachar v. Shree Nath Spinners (P) Ltd. (2011) 13 SCC 148 wherein it has been held by Hon'ble Apex Court that if the cheque is given towards any liability or debt which might have been incurred AAKANKSHA even by someone else, the person who is drawer of the cheque can be made liable Digitally signed by AAKANKSHA Date:
2026.03.17 15:47:02 +0530 under section 138 NI Act. Thus, accused could be made liable also for the debt incurred by her son if she issued her cheque in discharge of the said debt. In view thereof, the first defence raised by accused stands nullified.Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 14/22
14.9. Another defence taken by accused is that of loss of cheque. Accused raised defence that she did not issue the cheque in question to complainant, in fact the same was lost from her house which was kept at her house in blank signed manner. To prove such defence, DW-1/accused deposed that when her cheque was lost, she gave an application to the bank as well as a complaint to concerned PS. Accused relied upon a complaint given to SHO PS Prashant Vihar and the same is Ex. DW-1/A. Further, application submitted to the bank is Mark DW-A. Complainant sought to disprove the above during cross-examination of DW-1, wherein DW-1 admitted the fact that application to bank viz. Mark DW-A was submitted on 14.08.2017 and in the said application she had made a request to her bank to close her bank account but did not claim loss of cheque anywhere. Mark DW-A is savings account closure form allegedly filled by accused and submitted to bank on 14.08.2017 with a letter to banker requesting the banker to close her savings bank account with immediate effect. The said letter was submitted to bank on 14.08.2017, as also admitted by DW-1. The cheque in question was returned unpaid on 09.08.2017, 17.08.2017 and 23.08.2017 as per averments in the complaint which have not been disputed either in evidence or during the course of final arguments, although only the last return memo dated 23.08.2017 has been placed on record. Meaning thereby, that this application to close the account on which cheque has been drawn, was preferred by accused to her banker only after the cheque in issue was returned unpaid by the bank. Also, no reason for such closure of account has been mentioned by accused in her letter Mark DW-A, which makes her defence weak. AAKANKSHA Digitally signed by AAKANKSHA Date: 2026.03.17 15:47:11 +0530 14.10. Further, accused claims to have given another complaint to SHO PS Prashant Vihar, which is Ex. DW-1/A. The said complaint was received at PS on 13.08.2017, meaning thereby that this complaint was also given by accused only after cheque in issue was returned unpaid for the first time. Moreover, accused Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 15/22 took plea in such complaint that one of her cheques bearing no. 532623 has been misplaced since last two months. In such circumstances, it would be apposite to note that complainant has alleged advancing loan to son of accused in presence of accused. Interestingly, accused has failed to deny such fact. Accused has admitted her signature on the cheque in issue but she neither denied nor admitted the signature of her son on the promissory notes. She merely raised defence that she did not borrow any loan. Significantly, accused has failed to examine her son as defence witness, whose testimony would have been of utmost relevance in the facts of this case. When accused has failed to deny loan borrowed by her son, she has failed to deny her signature on the cheque in issue, the testimony of her son was relevant to prove her defence that she did not issue the said cheque to complainant and that the cheque was in fact lost from her house.
14.11. Furthermore, Ld. counsel for accused also contended that the last promissory note of June 2017 is executed with a promise to return the money till 15.08.2017 but the complaint has been filed in May 2017 meaning thereby that the cheque has been presented for encashment prior to the date fixed for repayment. Ex. CW-1/A1 to Ex. CW-1/A10 are ten promissory notes, for a total sum of Rs. 4,80,000/-. Whereas the cheque in question is drawn for a sum of Rs.
5,20,000/-. It is clear from the deposition of CW-1 himself that not always was the promissory note executed by son of accused. Also, execution of the promissory notes by son of accused, has not been denied by accused. The last promissory note on record Ex. CW-1/A-10 relates to borrowing of Rs. 70,000/- by son of accused on 05.06.2016 with promise to repay it till 15.08.2017. However, the cheque in question is dated 09.08.2017, which was dishonored on 09.08.2017, 17.08.2017 and 23.08.2017 as pleaded by complainant and not denied by accused and the AAKANKSHA Digitally present complaint has been filed on 12.10.2017. Although the first presentation of signed by AAKANKSHA Date:
2026.03.17 15:47:18 +0530 cheque occurred prior to the date fixed for repayment of part of the borrowed sum Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 16/22 i.e. Rs. 70,000/-, however the present complaint is based on the third presentation of cheque and its dishonor on 23.08.2017. It is not the defence of accused that there was any other promissory note executed by her son with promise to pay part amount after 23.08.2017. Therefore, the fact that the present complaint is based on third dishonor of cheque on 23.08.2017 and by that time, the entire loan amount was due and payable, the Court does not find any merit in the above submission put forth by Ld. counsel for accused.
14.12. The accused also seeks to challenge the financial capacity of complainant to lend a sum of Rs. 5,20,000/-. The accused cross-examined CW-1 on this aspect and CW-1 has deposed that he does not file income tax return of his shop, he does not file GST return of his shop and that he does not have money lending licence. CW-1 further deposed that he does not lend money to persons usually. He directly gave money to accused for about 8-10 times and accused usually came along with her son Yogesh Bali to borrow money. He earns about Rs. 3-4 lakhs per annum from his business. Ld. counsel for accused has contended that complainant has failed to prove how a sum of Rs. 5-6 lacs were advanced in six months, no ITR, no GST return is filed by complainant, no ledger is AAKANKSHA Digitally signed by AAKANKSHA maintained by complainant and without repayment of previous loan complainant Date:
2026.03.17 15:47:24 +0530 is stated to have been advancing money to son of accused which is unexplainable.
14.13. To adjudicate the veracity of this defence, reliance ought to be placed on the observations made by Hon'ble Apex Court in the case of Uttam Rai v.
Devinder Singh Hudan (2019)10 SCC 287 that Trial Court cannot proceed as if the complainant is required to prove the debt owed to him. Statutory presumption has to be raised in his favour which can only be rebutted by either showing that consideration and debt did not exist or that under the particular circumstances of Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 17/22 the case non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration or debt existed. Although showcasing that complainant did not have adequate financial capacity to lend money to accused amounts to a probable defence and can help in rebutting the statutory presumption that is accrued to the benefit of complainant [ Basalingappa v. Mudibasappa (2019)5 SCC 418]. But once accused discharges the burden of rebutting legal presumption that arose u/s 139 NI Act, then accused is within his right to challenge and complainant will then have to prove his/her financial capability. In K. Subramani v. K. Damodara Naidu (2015)1 SCC 99, it was held that in every case u/s 138 NI Act complainant is not required to necessarily establish his financial capacity and presumption u/s 139 NI Act accrue to the benefit of complainant unless the accused rebuts that presumption.
14.14. Therefore, in order to challenge the financial capacity of complainant, accused is required to first raise a probable defence, which in this case accused has clearly failed to raise. The accused neither stepped into the witness box, nor examined her son to whom the subject loan is stated to have been advanced. Also, accused failed to give reply to the legal notice. Her actions in closing her bank account and filing police complaint were belated and devoid of proper explanation. Thus, without having rebutted the legal presumption, accused could not take shelter of lack of financial capacity of complainant to plead her AAKANKSHA innocence. Digitally signed by AAKANKSHA Date:
2026.03.17 15:47:29 +0530 14.15. The burden was upon accused to prove that no such loan was borrowed and the cheque was never issued in discharge of legal debt. However, from above discussion it is clear that accused has failed to rebut the legal presumption as contradictory pleas have been raised by accused during trial that Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 18/22 she does not know the complainant and that the cheque does not bear her signature which pleas were later proved incorrect. Further, the above stated facts, when viewed in conjunction with non-examination of son of accused, failure of accused to deny even vaguely loan taken by her son and failure of accused to put out a cogent defence is sufficient to arrive to a conclusion that accused has been unable to discharge the onus of rebutting the legal presumption.
14.16. Thus, accused has been unable to rebut the presumption of law and raise a probable defence that the cheque in question was not issued by her to complainant in discharge of her liability.
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/B is dated 09.08.2017. The last cheque returning memo Ex. CW-1/C is dated 23.08.2017, which proves that the cheque in question was presented within the period of its validity. AAKANKSHA Digitally signed Thus, the second legal requirement is adjudicated in favour of by AAKANKSHA Date:
2026.03.17 15:47:35 +0530 complainant.
16. The third legal requirement is:
Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 19/22"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 same. 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. funds insufficient, which falls 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 her signature on the cheque in question in her testimony and has failed to prove that the cheque was returned due to any other reason not falling under the realm of Section 138 NI Act.
Thus, the third legal requirement is adjudicated in favour of complainant.
17. The fourth legal requirement is:
AAKANKSHA Digitally signed by AAKANKSHA Date: 2026.03.17 15:47:41 +0530 "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 dishonored lastly on 23.08.2017. The complainant sent a legal notice dated 31.08.2017 (Ex.CW-1/D) addressed to the accused. Speed post receipts are dated 31.08.2017 (Ex. CW-1/E-1 and Ex. CW-1/E-2), which proves that demand was made within the prescribed period. Further, returned envelopes are Ex. CW-1/F-1 and Ex.Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 20/22
CW-1/F-2 dated 04.09.2017 and 05.09.2017. Thus, it is proved that the legal notice was sent to accused within the prescribed period.
The fourth legal requirement is, thus, 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 legal notice in her plea of defence recorded u/s 251 Cr.P.C, but she has categorically accepted her address as F-2,67, Sector-11, Rohini, Delhi, in her statement u/s 313 Cr.P.C. The legal notice was also bound for the same address but RC was received back with report 'no such person'. Therefore, admission of address of accused raises a presumption u/s 27 General Clauses Act that accused must have received the summons.
AAKANKSHA Digitally signed by 18.1. Even otherwise, law expects a person pleading non-receipt of any AAKANKSHA Date:
2026.03.17 15:47:47 +0530 demand notice to prove his bona fide by making the payment of the cheque amount within 15 days of receiving court summons. This is crystallized by the verdict of Hon'ble Supreme Court in the case titled as C.C. Alavi Haji v. Palapetty Muhammed & anr.: (2007) 6 SCC 555:
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 21/22 summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and section 114 of the Evidence Act."
18.2. In the case at hand, despite issuance of summons and appearance of accused before the court, accused has failed to pay the cheque amount to the complainant and thus is precluded from raising the plea of non-service of demand notice. Further, it is an undisputed fact and also 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.
Thus, the fifth legal requirement is adjudicated in favour of complainant.
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 Kamlesh W/o Lt. Sh. Lal Chand is convicted for the offence u/s 138 NI Act.
AAKANKSHA Digitally signed by AAKANKSHA
20. Let a copy of this judgment be given to convict free of cost.
Date:
2026.03.17 15:47:51 +0530 Announced in the open Digitally signed by court on 17th March 2026. AAKANKSHA AAKANKSHA Date:
2026.03.17 [AAKANKSHA]15:48:05 +0530 Judicial Magistrate First Class-03(North-West)/ Rohini/Delhi Ct. Case No. 401/2018 Ramesh Chandra Gupta Vs. Kamlesh PS North Rohini Page No. 22/22