Delhi District Court
Aisha Fatma vs Maqsood And Company And Others on 13 August, 2025
IN THE COURT OF SH. ANMOL NOHRIA, DJS, JUDICIAL
MAGISTRATE FIRST CLASS-02, NORTH - EAST,
KARKARDOOMA COURTS, DELHI
CC No. : 641/2020
U/s : 138 N. I. Act
P.S : Seelampur
Aisha Fatima vs. Maqsood and Company & Ors.
CNR No. : DLNE020016672020
-: J U D G M E N T :-
1. CC No. : 641/2020
2. Date of institution of the case: 21.07.2020
3. Name of complainant : Aisha Fatima,
D/o Ameenuddin, R/o H.
No. 1463, Gali No. 52,
Jafrabad, Delhi-53.
4. Name of accused, parentage
Digitally
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:27
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 1 of 34 JMFC-02/NE/KKD Courts/Delhi
and address : 1). Maqsood & Company
Through its Proprietor,
Maqsood Ali S/o Nazir
Ali, R/o H. No. C-901,
Gali No. 06, Chauhan
Bangar, Delhi-53.
2). Maqsood Ali
S/o Nazir Ali, R/o H.
No. C-901, Gali No. 06,
Chauhan Bangar, Delhi-53.
5. Offence complained of : 138 N. I. Act
6. Plea of accused : Accused pleaded not guilty
7. Final order : CONVICTED
8. Date on which order was
reserved : 05.06.2025
9. Date of pronouncement : 13.08.2025
1. The instant matter has originated out of a complaint
under section 200 Cr.PC read with Section 142 Negotiable
Digitally
Instruments Act (hereinafter referred to as the 'N I Act'), filed by the
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:28
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 2 of 34 JMFC-02/NE/KKD Courts/Delhi
complainant company against the accused under Section 138 N I Act
alleging that cheque bearing number- 000229 dated 10.02.2020
amounting to Rs. 5,00,000/-drawn on Kotak Mahindra Bank, Preet
Vihar, Delhi issued by the accused in favour of the complainant, in
discharge of a legal debt or other liability, has been dishonored and the
accused has not paid the said amount even after receiving the
prescribed legal demand notice. By virtue of this judgment, the
present complaint is being disposed off.
BRIEF REASONS FOR THE DECISION OF THE CASE
FACTUAL BACKGROUND OF THE CASE:-
2. Briefly stated facts of this case as per complaint are that accused is a friend of her brother namely Javed and having cordial relations with him and had thereafter, had taken a loan of Rs.5,00,000 from the complainant in the name of his firm Maqsood & Company via cheque. When the complainant asked for repayment, the accused issued a cheque bearing number- 000229 dated 10.02.2020 amounting to Rs. 5,00,000/-drawn on Kotak Mahindra Bank, Preet Vihar, Delhi and also issued an undertaking/receipt qua his repayment on 15.02.2020. However, on presentation on 02.05.2020 the same was returned unpaid with remarks "fund insufficient" vide returm memo dated 04.05.2020. Complainant got issued a legal notice dated Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:24 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 3 of 34 JMFC-02/NE/KKD Courts/Delhi 28.05.2020 but, no payment was made by the accused and hence, the present complaint was filed.
PROCEEDINGS BEFORE COURT
3. On the basis of pre-summoning evidence, accused was summoned by the court for the offence under Section 138 of Negotiable Instrument Act. The accused put in his own appearance and thereafter notice under Section 251 Cr.P.C. was framed upon the accused on 03.03.2022 to which accused pleaded not guilty and claimed trial. In his plea of defence, the accused stated that he has no transactions with the complainant but with Jameel Ahmed, who is maternal uncle of complainant and had not issued the cheque to her but to Jameel Ahmed as security from whom he had taken Rs.25,00,000 as loan from which he has returned about Rs.22,72,000 and has no legal liability to pay the complainant. Statement under Section 294 Cr.P.C of the accused was also recorded on 03.03.2022, wherein he has admitted his signatures on the cheque in question but denied receiving legal demand notice and filling the particulars of the cheque.
Digitally
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:26
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 4 of 34 JMFC-02/NE/KKD Courts/Delhi
4. Vide order dated 26.11.2022 the accused to cross examine the complainant and request has been allowed to cross examine the complainant under Section 145 (2) NI Act.
5. During the trial, complainant has led the oral and documentary evidence against the accused to prove his case beyond reasonable doubt. The following evidence are as under:
Oral Evidence CW1 Aisha Fatma (Complainant) Documentary Evidence Ex. CW1/A Evidence Affidavit Ex. CW1/1 Receipt cum acknowledgement Ex. CW-1/2 Original Cheque Ex. CW-1/3 Cheque return memo Ex. CW-1/4 Legal demand notice Ex. CW-1/5(colly) Postal receipt Ex. CW-1/6 POD of legal notice Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:25 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 5 of 34 JMFC-02/NE/KKD Courts/Delhi
6. The complainant was cross examined at length by the counsel for the accused on 08.12.2023. Thereafter the complainant's evidence was closed. Statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 on 19.01.2024. Incriminating evidence was put to him wherein he has admitted, signatures on cheque stated that he does not know the complainant and has never signed any acknowledgment and has no transactions with her or any liability towards her.
7. Thereafter, the matter was listed for defence evidence and accused has examined Mohd. Javed and himself as DW1 and DW2 respectively and has lead oral evidence. However, he has further examined Mohd. Nazim(accused son) as DW3 after application u/S 311 Cr.P.C. was allowed, who has proved the ledger DW3/A. Thereafter, DE was closed and matter was listed for final arguments.
8. Afterwards, final arguments were heard on behalf of both the parties and after hearing the arguments, trial was concluded.
9. It has been argued that the complainant has been able to prove his case by way of presumptions in his favor and the accused Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:25 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 6 of 34 JMFC-02/NE/KKD Courts/Delhi has failed to rebut the same by leading any cogent evidence. It has been further argued that the accused has not been able to rebut the presumptions of law and nothing has been brought out in the cross examination and defence evidence for the same. It has been further argued that the accused failed to discharge the burden cast upon him and has put forward a false defence; and has failed to prove his defence to rebut the version of the complainant; consequently, the case of the complainant stands proved in view of the same.
10. Per contra, it has been argued that the case of the complainant is false one. At the outset, the counsel for the accused has questioned the appearance of SPA stating that SPA does not mention that the SPA has specific knowledge of the facts of the case and has placed reliance upon A.C. Narayanan vs. State of Maharashtra, 2014 (11) SCC 790. Further, it has been argued that the complainant has not been able to prove his case beyond reasonable doubt for securing a conviction; and the accused by way of cross examination of the complainant and his own evidence, has been able to dislodge the version of the complainant. It is submitted that the accused is defending the case upon the following grounds:
i. Accused has never received the legal demand notice; ii. The impugned cheque was blank signed security cheque;
Digitally
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:24
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 7 of 34 JMFC-02/NE/KKD Courts/Delhi
iii. The impugned cheque was never issued to the complainant and accused has no transactions with the complainant.
11. I have heard the counsels for both the parties; perused the record and have gone through relevant provisions of the law and the judgments relied upon by both the parties.
INGREDIENTS OF OFFENCE AND DISCUSSION-
12. Since, the accused has raised a question of locus of the SPA, it becomes necessary at the outset to discuss the same. It has been argued for the accused that the present complaint is not maintainable as the SPA filed by the complainant in the present case does not mention that the SPA holder has specific and personal knowledge of the facts of the case; and hence the present proceedings are not maintainable in terms of the judgment of the Hon'ble Supreme Court in the case of A.C. Narayanan vs. State of Maharashtra(Supra).
13. Perusal of the record shows that the present complaint has been filed by the complainant Aisha Fatma in her own name and without any SPA. She has also filed her evidence affidavit Ex. PW1/A upon which the cognizance was taken. Thereafter, an application with Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:26 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 8 of 34 JMFC-02/NE/KKD Courts/Delhi SPA was filed by the complainant seeking to persue the matter through SPA, however, the same was allowed only to the extent of purposes of appearance only and exemption from appearance was granted to the complainant vide order dated 25.03.2022. Thereafter, the complainant herself was cross examined by counsel for the accused on 08.12.2023 as CW1.
14. Since, the complaint has been filed by complainant in her own capacity as the holder of the cheque and thereafter has also stepped into the witness box herself for cross examination; I am of the opinion that the facts of the present case do not fall within the purview of case being filled through SPA holder and the principles of A.C. Narayanan vs. State of Maharashtra(Supra) are not a bar in the same.
15. Ergo, the contention qua SPA of the accused does not hold water with this court and is accordingly, dismissed.
16. Now, before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both sides. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfill all the essential ingredients of the Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:29 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 9 of 34 JMFC-02/NE/KKD Courts/Delhi offence. Perusal of the bare provision reveals the following necessary ingredients of the offence :-
First Ingredient: The cheque was drawn by a person on an account maintained by him for payment of money and the same is presented for payment within a period of 3 months from the date on which it is drawn or within the period of its validity;
Second Ingredient: The cheque was drawn by the drawer for discharge of any legally enforceable debt or other liability; Third Ingredient: The cheque was returned unpaid by the bank due to either insufficiency of funds in the account to honour the cheque or that it exceeds the amount arranged to be paid from that account on an agreement made with that bank;
Fourth Ingredient: A demand of the said amount has been made by the payee or holder in due course of the cheque by a notice in writing given to the drawer within thirty days of the receipt of information of the dishonour of cheque from the bank;
Fifth Ingredient: The drawer fails to make payment of the said amount of money within fifteen days from the date of receipt of notice.
17. It is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the NI Act.
Digitally
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:27
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 10 of 34 JMFC-02/NE/KKD Courts/Delhi
18. The accused can only be held guilty of the offence under Section 138 NI Act if the above-mentioned ingredients are proved by the complainant co-extensively. Additionally, the conditions stipulated under Section 142 NI Act have to be fulfilled.
APPRECIATION OF EVIDENCE-
19. Notably, there is no dispute qua the proof of first and fifth ingredient. The complainant had proved the original cheque vide Ex. CW1/2 which the accused had not disputed as being drawn on the account of the accused. It was not disputed that the cheque in question was presented within its validity period. Notably, no dispute has been raised qua the fifth ingredient as such the same is deemed to be proved that no payment has been made after issuance of legal demand notice.
20. As far as the third ingredient is concerned, the complainant is only required to prove the dishonor of the cheque for the reasons attributable to the accused. In the instant case, the cheque in question was returned unpaid vide return memos Ex. CW1/3. At this stage a reference can be drawn from Section 146 of NI Act as per which the court shall on production of bank's slip or memo having Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:25 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 11 of 34 JMFC-02/NE/KKD Courts/Delhi thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. In the instant case perusal of the cheque return memo Ex. CW1/3 shows that they bear a stamp of the bank with signature and date. Further, neither any question as to the factum of dishonor has been put to the complainant in the cross examination nor any evidence regarding the same has been brought in the defence. Thus, no evidence has been led to disprove the fact of dishonor. Further, the Hon'ble Delhi High Court in the case of Guneet Bhasin vs State of NCT of Delhi & Anr. & Ors; 2022/DHC/005048, has observed that the purpose of the cheque return memo is to give the information of the holder of the cheque that his cheque on presentation could not be encashed due to the variety of reasons as mentioned in the cheque return memo. From the discussion above it can be concluded that there is no need for the complainant to examine any bank witness to prove the cheque return memo if it falls in the ambit of Section 146 NI Act. Ergo, the factum of dishonor stands proved in view of Section 146 and consequently third ingredient stands proved.
21. So far as the legal demand notice is concerned it is one of the statutory requirements in order to bring home the guilt of the Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:29 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 12 of 34 JMFC-02/NE/KKD Courts/Delhi accused under section 138. Any defect in the statutory requirement would go to the very root of the proceedings as such it is essential to first discuss whether the legal notice issued by the complainant in compliance with the provisions of section 138 or not. Provisio (b) appended to Section 138 with respect to legal demand notice is reproduced below for ready reference:
(a) "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;"
22. As such, it is necessary that the payee or holder in due course makes demand of money due by giving a notice to the drawer, in writing, within 30 days of receipt of information from the bank regarding the return of the cheque is dishonoured. The object of notice is to give a chance to the door of the cheque to rectify his omission and also to protect an honest drawer. Reliance is placed upon, Central Bank of India vs Saxons Farms, 1999(39) ACC891(SC).
23. In the factual matrix of the present case, the accused in his statement u/s 294 and in his statement u/s313 r/w 281 Cr.P.C has Digitally denied receiving the legal demand notice.
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:27
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 13 of 34 JMFC-02/NE/KKD Courts/Delhi
24. However, perusal of the cross examination of the complainant, shows that no question qua the legal demand notice or the address of the accused has been put by the accused to deny the service. Further, no suggestion that no legal notice was sent which has been denied by the complainant. Further, the summons have also been served to the accused at the same address and also NBW's have been sent at the same address which came back unexecuted with reports that he was not available at home. Also, the accused has also in his particulars at stage of notice framing, statement u/s 313 and as DW2 has mentioned the address as mentioned upon legal demand notice Ex. CW1/4.
25. In the landmark decision of Hon'ble Supreme Court of India in matter of "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr." reported in (2007) 6 Supreme Court Cases 555 held that as under:-
"16. 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 Digitally had made payment within 15 days of receipt of signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:26 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 14 of 34 JMFC-02/NE/KKD Courts/Delhi summons (by receiving a copy of complaint with the 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. In our view, any other interpretation, of the proviso would defeat the very object of the legislation. As observed in Bhaskarans case (supra), if the giving of notice in the context of Clause (b) of the proviso was the same as the receipt of notice a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of Section 138 of the Act."
26. The perusal of the address mentioned on the memo of parties, the legal demand notice Ex. CW1/4, summons, NBW's, notice u/s 251 Cr.P.C. and statement of accused under section 313 of Cr.P.C and testimony of DW2 shows that addresses are same. Also, the accused in his cross examination as DW2 has stated that he is staying at the said address since 1980 and is the registered owner of the first floor of the said address and has received the summons on the same.
Digitally
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:28
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 15 of 34 JMFC-02/NE/KKD Courts/Delhi
Hence, placing reliance upon Hon'ble Supreme Court of India in matter of "C. C. Alavi Haji Vs. Palapetty Mohd. & Anr(Supra), there is a deemed delivery of legal demand notice. Consequently, the legal demand notice Ex. CW1/4 and postal receipts Ex. CW1/5 and POD Ex. CW1/6 is deemed to be proved. Hence, the requirements of fourth ingredient stand complied with.
27. As far as the proof of second ingredient is concerned, the complainant has to prove that the cheque in question was drawn by the drawer for discharging a legally enforceable debt. However, as per the scheme of the NI Act, once the accused admits signature on the cheque in question, certain presumptions are drawn, which result in shifting of onus. Section 118(a) of the NI Act lays down the presumption that every negotiable instrument was made or drawn for consideration. Another presumption is enumerated in Section 139 of NI Act. The provision lays down the presumption that the holder of the cheque received it for the discharge, in whole or part, of any debt or other liability.
28. The combined effect of these two provisions is a presumption that the cheque was drawn for consideration and given by the accused for the discharge of debt or other liability. Both the Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:25 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 16 of 34 JMFC-02/NE/KKD Courts/Delhi sections use the expression "shall", which makes it imperative for the court to raise the presumptions, once the foundational facts required for the same are proved. Reliance is placed upon the judgment of the Hon'ble Supreme Court, Hiten P. Dalal vs. Bratindranath Banerjee (2001) 6 SCC 16.
29. Further, it has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under: -
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. 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.
25.2. The presumption under Section 139 is a Digitally rebuttable presumption and the onus is on the signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:26 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 17 of 34 JMFC-02/NE/KKD Courts/Delhi accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the 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.
25.4. 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. 25.5. It is not necessary for the accused to come in the witness box to support his defence."
30. Thus, the presumptions raised under Section 118(b) and Section 139 NI Act are rebuttable presumptions. A reverse onus is cast on the accused, who has to establish a probable defence on the standard of preponderance of probabilities to prove that either there was no legally enforceable debt or other liability.
31. In this case, the accused in his plea of defence has stated that he has no transactions with the complainant but with Jameel Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:29 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 18 of 34 JMFC-02/NE/KKD Courts/Delhi Ahmed, who is maternal uncle of complainant and had not issued the cheque to her but to Jameel Ahmed as security from whom he had taken Rs.25,00,000 as loan from which he has returned about Rs.22,72,000 and has no legal liability to pay the complainant. Consequently, the accused has raised the following defences to rebut the presumptions:
a) The cheque in question is blank security cheque;
b) The accused does not have liability as per the version of the complainant as cheque was never issued to the complainant and accused has no transactions with the complainant.
I will be discussing both the defences separately.
a.) The cheque in question is blank security cheque:
32. It has been stated by the accused that the cheque in question was a blank security cheque and he has never filled any particulars on the same. Further, the cheque has never been issued to the complainant but to Jameel Ahmed as security, maternal uncle of complainant from whom he had taken Rs.25,00,000/- as loan.
33. At this stage reference can be drawn from Section 20 of the NI Act talks about inchoate instruments. As per this provision if a Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:27 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 19 of 34 JMFC-02/NE/KKD Courts/Delhi person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up the particular in it and complete the cheque, thus making the drawer liable for the payment mentioned in it. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provision of section 138 would be attracted
34. The Hon'ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 wherein the Apex Court while upholding the validity of blank signed cheque in a proceeding u/s 138 of the Act has interalia held the following:-
"If a signed blank cheque is voluntarily presented to a payee,towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
35. Notably, in the case of Suresh Chandra Goyal Vs. Amit Singhal, Crl.L.P. 706/2014, it was held by the Hon'ble Delhi High Court that:-
Digitally "The appellant was well within his rights to signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:25 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 20 of 34 JMFC-02/NE/KKD Courts/Delhi enforce the security in respect whereof the cheques in question were issued and to seek to recover the outstanding debt by encashment of the said cheques. Since the cheques in question were dishonoured upon presentation, the ac- cused suffered all consequences as provided for in law and the appellant became entitled to invoke all his rights as created by law. Thus, the appellant was entitled to invoke Section 138 of the NI Act; issue the statutory notice of demand, and; upon failure of the accused to make payment in terms of notice of demand -
to initiate the complaint under Section 138 of the NI Act."
36. It is noteworthy that the Hon'ble Apex Court in the case of Sripati Singh Vs. The State of Jharkhand and Ors., AIR 2021 SC 5732, has held that:-
"16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:24 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 21 of 34 JMFC-02/NE/KKD Courts/Delhi security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated Under Section 138 and the other provisions of N.I. Act would flow.
17.When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the instalment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented. Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that Digitally signed by would be available to the drawer of the cheque ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:29 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 22 of 34 JMFC-02/NE/KKD Courts/Delhi in a proceedings initiated Under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast Rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on demand promissory note' and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation."
37. Further, in case of Credential Leasing & Credits Ltd. Vs. Shruti Investments & Ors., 2015 (4) JCC 252, it was held that:
"30. Thus, I am of the considered view that there is no merit in the legal submission of the respondent accused that only on account of the fact that the cheque in question was issued as security in respect of a contingent liability, the complaint under Section 138 of the NI Act Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:27 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 23 of 34 JMFC-02/NE/KKD Courts/Delhi would not be maintainable. At the same time, I may add that it would need examination on a case to case basis as to whether, on the date of presentation of the dishonoured cheque the ascertained and crystallised debt or other liability did not exist. The onus to raise a probable defence would lie on the accused, as the law raises a presumption in favour of the holder of the cheque that the dishonoured cheque was issued in respect of a debt or other liability. As settled by the Supreme Court, the said onus obliges the accused to raise a defence - either by picking holes in the case of the complainant and/ or by positively leading defence evidence which leads the Court to believe that there is a probable defence raised by the accused to the claim of the complainant with regard to the existence of the debt or other liability. The said onus does not cast as stringent an obligation on the accused, as it casts on the complainant, who has to prove beyond reasonable doubt the guilt of the accused."
38. Thus, it is a settled of the proposition of law that a check issued a security, pursuit of financial transaction, cannot be considered as a worthless piece of paper. It is given to ensure the fulfillment of an obligation undertaken. If a check issued to secure repayment of a loan advanced and if the loan is not repaid on or before the due date, the drawee would be entitled to get the cheque for payment, and if such a Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:26 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 24 of 34 JMFC-02/NE/KKD Courts/Delhi cheque is dishonored, the consequences contemplated under section 138 NI act would follow. Reliance is placed upon Sripati Singh v.
State of Jharkhand(Supra). Further as to the plea of cheque being a security check, it was held in ICDS v. Beena Shabir & Anr.(Supra), that security checks would also fall within the purview of section 138 NI act and a person cannot escape is liability unless he proves that the debt or liability for which cheque was issued as security is satisfied otherwise.
39. With regards to the submission that the cheque was never issued to the complainant but to Jameel Ahmed who is the maternal uncle of the complainant from whom he had taken Rs. 25,00,000/- and never to the complainant; the accused while cross examining the complainant has never asked any question qua the same as to how and when the same was handed over apart from suggestions regarding handing over the same to Jameel Ahmed which have been denied by the complainant. Further, the accused has never made any such complaint to the police regarding its misuse by Jameel Ahmed or the complainant.
40. However, accused had led defence evidence to prove the same. Perusal of the testimony of DW1 shows that he has not Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:24 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 25 of 34 JMFC-02/NE/KKD Courts/Delhi supported the version of the accused but has rather proved the agreement Ex. CW1/1 and identified his signatures on the same as a witness and stated that accused had issued the said cheque in his presence at the time of execution of Ex. CW1/1. Perusal of Ex. CW1/1 shows that accused has specifically admitted his liability in the same and has also admitted to the issuance of the cheque in question to the complainant in the same. Perusal of the testimony of accused as DW2, shows that he has never stated anything in the same qua the issuance of the cheque in his examination in chief. Same is the case with the testimony of son of the accused as DW3.
41. In terms of Section 101 of Indian Evidence Act a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In other words "he who asserts must prove"
the standard of proof in civil cases is preponderance of probability, while in the criminal cases the standard of proof is beyond the reasonable doubts. If no evidence at all is adduced by either side, the person on whom the burden of proof lies would fail. One who asserts a particular fact is in existence, then he has to prove the said fact unless and until the law says that the burden lies on anymore else; and in the instant case the burden to prove issuance to Jameel Ahmed and Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:24 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 26 of 34 JMFC-02/NE/KKD Courts/Delhi not to complainant was upon the accused and in view of the discussion above, he has failed to discharge the same.
42. Ergo, in light of the above discussion, this court is of the considered view that, the ground that the cheque in question is a blank security cheque and not issued to the complainant does not hold water with this court and even in case of blank signed cheque, the statutory presumptions under section 118(a) and 139 would be raised in favour of the complainant. Therefore, in instant case, since, the accused has admitted the execution of impugned cheque, the aforementioned statutory presumptions would be raised in favour of the complainant regarding the fact that the impugned cheque have been drawn for consideration and issued by the accused in discharge of legally enforceable debt.
b.) The accused does not have liability as per the version of the complainant and has no transactions with the complainant.
43. In the instant case, the version of the complainant in the complainant is that the accused has issued the impugned cheque in order to discharge his liability to repay the amount advanced by the complainant to the accused at the instance of her brother and the Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:28 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 27 of 34 JMFC-02/NE/KKD Courts/Delhi accused has even issued an acknowledgment for the same on 15.02.2020.
44. By virtue of the presumptions the onus is upon to accused to show the debt qua the cheque amount does not exist upon him; and for the purposes of the same the accused has relied upon the cross examination of the complainant as well as his defence evidence.
45. Perusal of the cross examination of the complainant shows that complainant is unaware as to the particulars of work or family of the accused but has clarified that the money was advanced at the instance of her brother. No question as to source of funds, time of advancing etc., has been put to the complainant in the cross examination and only suggestions qua cheque being blank security cheque and its particulars or repayment have been asked which have been denied by the complainant. It is noteworthy, that the accused while cross examining the complainant, has himself given a suggestion that he had taken a sum of Rs.25,00,000/- out which Rs.5,00,000/- belonged to the complainant and rest to Jameel Ahmed, which is in actual an admission by the accused of his liability towards the complainant. Also, neither any question qua the acknowledgment Ex. CW1/1 or its execution has been put to the complainant nor any Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:27 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 28 of 34 JMFC-02/NE/KKD Courts/Delhi suggestion denying the same has been put to the complainant rather perusal of testimony of DW2 shows that he has proved the agreement Ex. CW1/1 and identified his signatures on the same as a witness and stated that accused had issued the said cheque in his presence at the time of execution of Ex. CW1/1. Perusal of Ex. CW1/1 shows that accused has specifically admitted his liability in the same and has also admitted to the issuance of the cheque in question to the complainant in the same and the same also finds mention of the particulars of the cheque. Further, no mode of repayment has been put to the complainant by the accused while cross examining her. Thus, nothing has been brought out by the accused by cross examination of the complainant to dislodge or her version or to prove his own case.
46. Further, coming to the evidence led by the accused in his defence that he has made payment of Rs. 22,00,000 something to the Jameel including the amount of the complainant; the defence witness DW1 has not supported the version of the accused and has rather deposed in favor of the complainant and has also negated the fact that any repayment was made by the accused to the complainant in his presence. The accused himself as DW2 has stated the he has made repayments but in his cross examination has stated that he has filed the ledger in support of the same on judicial record which was Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:28 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 29 of 34 JMFC-02/NE/KKD Courts/Delhi nowhere to be found when confronted with judicial record in his cross examination. Further DW2, in his cross examination has admitted that cheque of the complainant was encashed in his account, thereby admitting that he has liability towards the complainant. Further DW2 has stated in his cross examination that he has no receiving of the money paid by him to Javed or any other person on behalf of the complainant and he has no document in this regard. Thus, the version of DW1 and DW2 put together also, negate the defence of the accused that he has repaid the complainant.
47. However, the accused after the same produced DW3/ Mohd. Nazim in order to prove his defence by bringing on record the ledgers to show entries of repayment by way of application u/S 311 Cr.P.C. Perusal of the testimony of DW3 shows that he has brought on record ledger DW3/A from 04.07.2016 to 04.02.2020 and stated that he has handed over money to Javed or Jameel and has repaid an amount of Rs. 22,22,700 including the amount due to the complainant, the same being part of one single transaction. However, it was observed by the court in his testimony that entries in name of Jameel Ahmed were forged and made later on when confronted with 2 pages of DW3/A and thus it was in totality observed that such entry has been squeezed at every page wherever place was found and is in a different Digitally signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:26 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 30 of 34 JMFC-02/NE/KKD Courts/Delhi ink. Thus, in view of the above discussion , testimony of DW3 can be discarded in totality and the authenticity of DW3/A itself comes under a cloud and same can be found to be forged and fabricated specially in the circumstance when it was not produced at the very first instance.
48. Another argument put forth by the counsel for the accused is that even if the squeezed in entries are ignored there exist other entries on several pages which show the repayment and are in the name of Jameel.
49. I have perused the ledger and the said entries can be found as under:-
Page no. of Amount in Rupees
DW3/A
8 Rs.11,138/-
9 Rs.11,550/-
10 Rs.11,390/-
11 Rs.11,300/-
12 Rs.11,390/-
13 Rs.11,330/-
14 Rs.10,990/-
16 Rs.38,190/-
17 Rs.17,281/-
Digitally
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:28
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 31 of 34 JMFC-02/NE/KKD Courts/Delhi
18 Rs.34,632/-
20 Rs.32,372/-
22 Rs.36,723/-
28 Rs.20,000/-
42 Rs.33,057/-
Total Total amount :
entries : 14 Rs.2,91,343/-
50. After, perusal of the entries, even if the same are believed to be genuine, a doubt arises that why would there be two entries in the name of same person of the same day and the accused has not been able to clarify the same; and even if the same are believed to be true the same do not total up to the amount as stated by DW2 or DW3 as stated by them in their testimony. Thus, the argument of certain entries being genuine also does not water with this court.
51. It has been held by the Hon'ble Supreme Court of India in 'Rohitbhai Jivanlal Patel v. State of Gujarat & Anr. [(2019) 18 SCC 106] -
"17. On the aspects relating to 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 non- Digitally existence was so probable that a prudent man signed by ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:25 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 32 of 34 JMFC-02/NE/KKD Courts/Delhi would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, 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 fulfil the requirements of rebuttal as envisaged under Section 118 and 139 of the NI Act. ..."
52. Ergo, it can be concluded that the evidence led by the accused also does not come to the aid of the accused and the accused by the same has failed to dislodge the version of the complainant or prove his owns of return of Rs.22,00,000/- something; and in view of the discussion above the version put forward by the accused is highly unbelievable and does not hold water with this court. The accused has failed to create a probable doubt to rebut the presumptions through the cross examination of the complainant or by way of independent evidence, in the version of the complainant, accordingly, the defence taken by the accused that does not find merit and the accused has failed to rebutt the presumption raised under section 139 of NI Act. Consequently, it can be said that the cheque in question was issued by the accused in discharge of legally recoverable debt/liability/owed towards the complainant thus, the second ingredient to the offence under section 138 of NI Act stands proved.
Digitally
signed by
ANMOL
ANMOL NOHRIA
NOHRIA Date:
2025.08.13
15:00:24
+0530
CC No. 641/2020
Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria)
Page No. 33 of 34 JMFC-02/NE/KKD Courts/Delhi
CONCLUSION:
53. To recapitulate the above discussion, the complainant has been successful in establishing his case beyond reasonable doubt with the aid of presumptions of law raised in his favor under section 118 and 139 of the NI Act by and other evidence; and by withstanding the test of cross examination to punch the holes in the case of the complainant and making the case of the complainant doubtful. In the result of the analysis of the present case, the accused no. 01 i.e. Maqsood Company and accused no. 02 i.e. Maqsood Ali S/o Nazir Ali are hereby convicted of the offence punishable under Section 138, Negotiable Instruments Act, 1881.
54. This judgment contains 34 pages. This judgment has been signed and pronounced by the undersigned in open court.
55. Let a copy of the judgment be given free of cost to the convict.
56. Let a copy of the judgment be uploaded on the official website of District Courts, Karkardooma forthwith.
Announced in the open (ANMOL NOHRIA) Digitally signed by Court on 13th August, 2025 JMFC-02/NE/KKD COURTS ANMOL ANMOL NOHRIA NOHRIA Date:
2025.08.13 15:00:28 +0530 CC No. 641/2020 Aisha Fatima vs. Maqsood Company & Anr. (Anmol Nohria) Page No. 34 of 34 JMFC-02/NE/KKD Courts/Delhi