Delhi District Court
Om Prakash vs Rattan Kumar Jagia on 28 February, 2025
IN THE COURT OF SH. HIMANSHU TANWAR,
MUNICIPAL MAGISTRATE (JMFC), SOUTH-WEST,
DWARKA COURTS, NEW DELHI
CNR No. DLSW02-056325-2019
CC No. 40297/2019
Om Prakash vs. Rattan Kumar
Jagia
Date of Registration of case 04.11.2019
Judgment Reserved on 24.02.2025
Date of Judgment 28.02.2025
Details of complainant Sh. Om Prakash, s/o Sh.
Chander r/o Vill.Khaira,
Najafgarh, New Delhi
-110043
Details of accused person Rattan Kumar Jagia s/o Late
Sh.Tara Chand r/o Flat no.
18007,B-Block, 16th Avenue,
Gaur city-2,Greater Noida
West, Gautam Budh Nagar,
UP-201009
The offence complained of 138 NI Act
The plea of accused person Pleaded not guilty
The final order Convicted
The date of such order 28.02.2025
By this judgment the Court shall dispose of the case filed under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as the 'Act ') Digitally signed
by HIMANSHU
HIMANSHU TANWAR
TANWAR Date:
2025.02.28
15:03:13 +0530
CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.1 of 15
Brief statement of the reasons for the decision:
1) The complainant had alleged that he had friendly relations
with the accused as both of them were working in same Bank i.e
Bank of Baroda. In May 2017, accused had requested
complainant for a friendly loan of Rs.3,00,000/- to meet some
urgent requirements and upon the said request, the complainant
advanced a sum of Rs. 3,00,000/- to accused on 27.05.2017 in
the presence of some witnesses. A pronote cum receipt dated
27.05.2017 was also executed by accused in this regard. The
accused had promised to repay the entire loan amount within a
period of one year.
2) It is further stated that accused failed to repay the loan
amount within stipulated period and after great persuasion,
accused in the discharge of his legal liability, issued a cheque
bearing No. 556394 dated 01.07.2019 for a sum of Rs. 3,00,000/-
drawn on Bank of Baroda, Asaf Ali Road, New Delhi, which on
presentation by the complainant in his bank was dishonoured
vide return memo dated 23.09.2019 due to the reason "funds
insufficient". Thereafter, legal demand notice dated 26.09.2019
demanding payment of aforesaid cheque amount was sent to
accused and despite service of aforesaid notice, no money was
repaid by the accused. Thereafter, complainant filed the present
complaint case.
3) In the pre-summoning evidence, complainant examined
Digitally signed
by HIMANSHU
HIMANSHU TANWAR
TANWAR Date:
2025.02.28
15:03:22 +0530
CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.2 of 15
himself on affidavit as Ex. CW-1/A. He reiterated the contents of
complaint as Ex. CW-1/1 and placed on record pronote dated
27.05.2017 as Ex. CW-1/2, the original cheque in question
bearing No. 556394 as Ex. CW-1/3, cheque returning memo
dated 23.09.2019 as Ex. CW1/4, legal demand notice dated
26.09.2019 as Ex. CW-1/5, postal receipts as Ex. CW-1/6 & Ex.
CW-1/7 and tracking report as Ex. CW-1/8.
4) (i) Upon the appreciation of pre-summoning evidence,
accused was summoned for the offence punishable under Section
138 of the Act and after his appearance before the Court, notice
dated 08.06.2022 under Section 251 Cr.P.C. qua the offence
punishable under Section 138 NI Act was framed upon the
accused.
(ii) Accused pleaded not guilty and had claimed trial but
had admitted his signatures on the cheque in question but denied
filling the remaining details. He also denied receiving the legal
demand notice.
(iii) Accused took the defence in the said notice that he
had availed a loan of Rs. 1,00,000/- only from the complainant
in the year 2012-2013 in small installments of Rs. 10,000/- or Rs.
20,000/-. He gave the cheque in question as blank signed security
cheque at the time of availing the said loan in the year 2013. He
has repaid Rs. 30,000/- to the complainant after December 2013.
He did not remember whether the amount was paid through cash
or cheque. He has paid Rs. 55,000/- to the complainant through
bank transfer on 10.08.2015. He used to pay Rs. 2,500/- to Rs.
Digitally signed
HIMANSHU by HIMANSHU
TANWAR
TANWAR Date: 2025.02.28
15:03:32 +0530
CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.3 of 15
3,000/- per month to the complainant till April 2018. He further
stated that he has repaid entire amount to the complainant with
interest @ 4% per month and the complainant had misused the
blank signed security cheque in question to institute a false
complaint case against him.
5) In the complainant evidence, the complainant examined
himself as CW-1, wherein he had adopted his pre-summoning
evidence recorded on 08.01.2020 and relied upon the documents
already exhibited vide Ex. CW-1/A, Ex. CW-1/1 to Ex. CW-1/8.
Witness was duly cross-examined by Sh. Deepak Kumar,
Ld. Counsel for accused.
6) Accused in his statement u/s 294 CrPC, stated his no
objection if the authors/signatories of following documents are
exempted from formal examination and the said documents are
read in evidence and accordingly authors of the below said
documents were dropped from the list of witnesses: -
a. Cheque in question Ex CW-1/3 and
b. dishonour memo Ex. CW-1/4.
7) No other witness was produced by the complainant and
accordingly complainant's evidence was closed and matter was
listed for recording of statement of the accused u/s 313 Cr.P.C.
8) In the statement of the accused recorded u/s 313 Cr.P.C. all
the incriminating evidence were put to the accused separately to
which accused reiterated the stand taken by him in answer to the
Digitally signed
HIMANSHU by HIMANSHU
TANWAR
TANWAR Date: 2025.02.28
15:03:40 +0530
CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.4 of 15
notice served upon him under Section 251 Cr.P.C. He denied
receiving the legal demand notice. However, he admitted that
the address mentioned in the legal demand notice was his correct
address. He also admitted his signature in the cheque in question,
however denied filling any other remaining details in it. He also
denied signing the pronote Ex. CW-1/2 and labelled the same as
false and fabricated. He also stated that his father is wrongly
mentioned on said pronote. In his defence he had stated that he
has availed a loan of Rs. 1,00,000/- only from the complainant in
the year 2012-2013 in small installments of Rs. 10,000/- or Rs.
20,000/-. He gave the cheque in question as blank signed security
cheque at the time of availing the said loan in the year 2013. He
has repaid Rs. 30,000/- to the complainant after December 2013.
He did not remember whether the amount was paid through cash
or cheque. He has paid Rs. 55,000/- to the complainant through
bank transfer on 10.08.2015. He used to pay Rs. 2,500/- to Rs.
3,000/- per month to the complainant till April 2018. He has
repaid entire amount to the complainant with interest @ 4% per
month and the complainant had misused the blank signed
security cheque in question to institute a false complaint case
against him and accused preferred to lead defence evidence.
9) Thereafter, the matter was fixed for defence evidence.
Accused examined himself as DW-1 after the application filed
u/s 315 Cr.P.C was allowed. Accused has stated that he had taken
a loan of Rs. 1,00,000/- from the complainant in the year 2012-
2013 in small installments of Rs. 10,000/- or Rs. 20,000/- or Rs.
5,000/- and further that he had started the repayment of said loan
Digitally signed by
HIMANSHU HIMANSHU
TANWAR
TANWAR Date: 2025.02.28
15:03:49 +0530
CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.5 of 15
in the year 2013 after December and had repaid Rs. 30,000/- to
the complainant. He has also repaid Rs. 55,000/- to the
complainant through bank transfer on 10.08.2015. He has filed
his stamped bank statement w.e.f 01.07.2015 to 24.08.2015 vide
EX DW-1/A. He has also repaid the remaining amount with
interest in small installments of Rs. 2,500/- or Rs. 3,000/- each in
cash to the complainant every month. The cheque in question
was given as blank signed security cheque at the time of availing
loan in question and same is misused by the complainant.
10) Accused/DW-1 was not cross-examined by Ld. Counsel
for the complainant despite several opportunities being given to
him and right of the complainant to cross-examine the accused
was closed vide order dated 02.08.2024 and matter was listed for
listed for final arguments.
APPRECIATION OF EVIDENCE
11) It was argued by the Ld. counsel for the complainant that
this is a fit case for conviction of the accused as all the essential
ingredients of Section 138 of the Act read with Section 139 of
the Act have been fulfilled and that the same has been aptly
demonstrated by the complainant before the court. It was argued
that accused admitted his signatures on the cheque at the time of
framing of notice under Section 251 Cr.P.C as well as in his
statement recorded u/s 313 Cr.P.C. He argued that accused never
gave reply to the legal demand notice and both the parties had
friendly relations as both were the employees in same Baroda
Bank. Further, accused had failed to raise the probable defence to
Digitally signed
by HIMANSHU
HIMANSHU TANWAR
TANWAR Date: 2025.02.28
15:04:03 +0530
CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.6 of 15
disprove the case of complainant and to rebut the presumption
under Section 139 NI Act. Therefore, accused be convicted for
the offence punishable under Section 138 of the Act.
12) Per contra, on behalf of accused, Ld. counsel reiterated the
submissions made by accused in his plea of defence at the time
of framing of notice under Section 251 Cr.P.C and in his
statement recorded under Section 313 Cr.P.C. It has been argued
that accused has taken a loan of Rs. 1,00,000/- in the year 2012
and same was repaid and the cheque in question was issued qua
the said loan and not for the alleged loan of Rs. 3,00,000/-. It is
further argued that accused had never taken a loan of Rs.
3,00,000/- from the complainant and cheque in question has been
misused by the complainant. It is further argued that the father's
name of the accused in the alleged pronote has been mentioned
wrongly and it is beyond comprehension why would the accused
mention the name of his father wrong in the said pronote. It was
argued that evidence of complainant suffered from material
lapses and was not sufficient to establish the case against
accused. It was argued that complainant has failed to prove his
case beyond reasonable doubt and accused is entitled to be
acquitted of offence punishable u/s 138 of the Act.
13) I have perused the entire record as well as evidence led by
the complainant as well as by the accused.
14) For the offence punishable under Section 138 of the Act to
be made out against the accused, the complainant must prove the
Digitally signed by
HIMANSHU
HIMANSHU TANWAR
TANWAR Date: 2025.02.28
15:04:14 +0530
CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.7 of 15
following points, that:-
1.the accused issued a cheque on account maintained by him with a bank.
2. the said cheque had been issued in discharge, in whole or in part, of any legal debt or other liability.
3. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
4. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonoured.
5. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
6. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
15) (i) The Act raises two presumptions in favour of the holder of the cheque, i.e., the Complainant in the present case. Firstly, there is a presumption regarding the passing of consideration, as contained in Section 118(a) of the Act. Secondly, under section 139 of the Act, it is presumed that the holder of the cheque has received it in discharge, in whole or in part, of any debt or other liability.
(ii) Section 118 of the N.I Act provides:
"Presumptions as to negotiable instruments: Until the contrary is proved, the following presumptions shall be made:
(a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred was accepted, indorsed, negotiated or transferred for consideration;"
(iii) Section 139 of the N.I Act further provides as follows:
"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".Digitally signed by HIMANSHU TANWAR
HIMANSHU Date: TANWAR 2025.02.28 15:04:22 +0530 CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.8 of 15
16) For the offence under Section 138 of the Act, the presumptions under Sections 118(a) and 139 have to be compulsory raised as soon as execution of cheque by accused is admitted or proved by the complainant and thereafter burden is shifted to accused to prove otherwise. These presumptions shall be rebutted only when the contrary is proved by the accused, i.e., the cheque was not issued for consideration and in discharge of any debt or liability etc. A presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. Presumptions both under Sections 118 and 139 are rebuttable in nature. Same was held by the Hon'ble Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16].
17) (i) In the present case, accused has admitted his signatures on the cheque in question in the notice framed u/s 251 Cr.P.C. and his statement recorded u/s 313 Cr.PC. Reference can be made to Judgment of Hon'ble Supreme Court of India in Rangappa v. Mohan, AIR 2010 SC 1898,that, "Once the cheque relates to the account of the accused and he accepts and admits the signatures on the said cheque, then initial presumption as contemplated under Section 139 of the Negotiable Instruments Act has to be raised by the Court in favour of the complainant."
(ii) Also in the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for Digitally signed by HIMANSHU HIMANSHU TANWAR TANWAR Date: 2025.02.28 15:04:51 +0530 CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.9 of 15 consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
18) (i) It has been held in M/s. Kumar Exports v. M/s. Sharma Carpets, [2009 A.I.R. (SC) 1518] that the accused may rebut these presumptions by leading direct evidence and in some and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial.
(ii) Further, the burden may be discharged by the accused by showing preponderance of probabilities and the onus on the accused is not as heavy as it is on the complainant to prove his case. In light of afore-stated legal position, let us carry out a scrutiny of the evidence led at the trial.
19) In the present case, the complainant by way of an affidavit led his own evidence testifying that cheque was issued to him in discharge of liability, after he had advanced a friendly loan of Rs. 3,00,000/- to the accused. The cheque in question, dishonour memo of the cheque and legal demand notice were exhibited on record.
20) Thus as per the scheme of the Act, on proof of the foundational facts, a presumption arises as to the cheque having been issued in discharge of a legal liability, and the burden of proof lies upon the accused to rebut the said presumption. This clearly is an instance of the rule of 'reverse onus' in action, where Digitally signed HIMANSHU by HIMANSHU TANWAR TANWAR Date: 2025.02.28 15:04:59 +0530 CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.10 of 15 it is incumbent on the accused to lead what can be called 'negative evidence'. Evidence of a character not to prove a fact affirmatively, but 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 also keeping in mind that negative evidence is not easy to be led by its very nature. It is now fairly well settled that the accused can displace this presumption on a scale of preponderance of probabilities and the lack of consideration or a legally enforceable debt need not be proved to the hilt or beyond all reasonable doubts. The accused can either prove that the liability did not exist or make the non existence of liability so probable that a reasonable person ought under the circumstances of the case, act on the supposition that it does not exist. Simply put, the accused has to make out a fairly plausible hypothesis.
21) The defence taken by the accused as brought out from the notice under Section 251 Cr. P.C, his statement recorded under Section 313 Cr. P.C and his defence evidence is that he availed a loan of Rs. 1,00,000/- from complainant in the year 2012-2013 in small installments of Rs. 10,000, Rs. 20,000 or Rs. 5,000 and accused had repaid the said loan alongwith interest calculated at 4% per month. It has been stated by accused that he used to pay Rs. 2,500 to Rs. 3,000 per month to complainant till April, 2018, so it can be presumed that loan was Rs. 1,00,000 was repaid in April, 2018. It is further stated that the cheque in question was given as blank signed security cheque at the time of availing the loan of Rs. 1,00,000 in the year 2013. It is also stated that Rs.
Digitally signed byHIMANSHU HIMANSHU TANWAR TANWAR Date: 2025.02.28 15:05:07 +0530 CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.11 of 15 55,000 was repaid by the accused to the complainant through bank transfer on 10.08.2015. The fact that complainant is known to accused is not disputed.
22) (i) The version of story presented by the accused is not supported by any material on record. It is the stand of the accused that the promissory note, Ex. CW-1/2 is a false and fabricated document and signature on it are not his. Further, it has been argued that the father's name of accused has been mentioned wrong in the abovesaid note. The alleged forgery of the promissory note was not mentioned by the accused in his defence disclosed at the time of framing of notice. The accused has merely denied his signature on the promissory note, labelling it as false and fabricated. However, he has failed to substantiate his claim by taking any reasonable steps, such as seeking expert analysis of the signatures by sending the same to FSL. Accused was in a very good position to discredit the claim of complainant, if he had taken such steps, but he chose not to do so, for reasons best known to him. His bald assertion, unsupported by any evidence, remains unsubstantiated and lacks credibility.
(ii) Even if, the version of accused is taken as the gospel truth, i.e., he had taken a loan of Rs. 1,00,000 from complainant in year 2012-2013 and cheque in question was issued as security cheque for that loan and said loan was repaid in totality in April, 2018, the court is unable to comprehend, as to why accused did not take any steps for recovering the cheque in question or give any instruction to his banker for stoppage of payment qua the cheque in question. Further, the accused must have got the Digitally signed by HIMANSHU HIMANSHU TANWAR TANWAR Date: 2025.02.28 15:05:22 +0530 CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.12 of 15 information that his cheque had been presented and same had been returned as dishonoured but despite the same, he had not filed any complaint against the complainant for wrongful retention and misuse of his cheque. Therefore, the defence of accused remains totally unsubstantiated by any material on record and is devoid of any merit.
23) (i) The accused has denied receiving the legal demand notice dated 26.09.2019. However, the address of the accused as mentioned in legal demand notice is the same address as that mentioned in the notice framed u/s 251 Cr.P.C, statement of accused recorded under section 313 Cr.P.C and also on bail bonds furnished by him, i.e H.No. 44, Baba Haridas Nagar, Najafgarh, New Delhi. Once the legal demand notice is proved to be sent by post to correct address of accused then the presumption u/s 27 of General Clauses Act, 1897 arises and it shall be presumed unless proved contrary, that legal demand notice sent to address of accused was delivered to him.
(ii) In M/s Darbar Exports and Ors. Vs. Bank of India, 2003 (2) SCC (NI) 132 (Delhi), the court held that a presumption of service of notice is to be drawn where the notice is sent through registered post as well as UPC on correct address. In the light of the same the legal notice is deemed to have been served upon the accused. The accused has failed to adduce any evidence to rebut the presumption of due service. As such, the legal notice stood served upon the accused but no payment was made despite the service nor any reply sent to the same. Digitally signed by HIMANSHU HIMANSHU TANWAR Date:
TANWAR 2025.02.28 15:05:31 +0530 CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.13 of 15
24) Moreover as per the dicta of Hon'ble Apex Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr, 2007 Cr. L.J. 3214, that if the accused did not receive the legal notice, he could have made payment of the cheque amount within 15 days of receipt of summons from this court and could have prayed for rejection of the complaint, but this course of action has not been adopted by accused. Hence the defence of non-service of legal notice is without substance.
25) In view of the above said observations, this court is of the considered opinion that apart from not raising a probable defence, the accused was not able to contest the existence of a legally enforceable debt or liability. The complainant disclosed the existence of a legally enforceable debt or liability vide the cheque in question, return memo and the legal notice brought on record. However, accused failed to rebut the presumption in favour of complainant either on the basis of other material available on record or by adducing any defence evidence. There is sufficient material on record to conclude that complainant has successfully proved his case beyond reasonable doubt.
26) Accordingly, the accused Rattan Kumar Jagia s/o Sh. Lohit Kumar Jagia is convicted/Acquitted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881.
27) Let the convict be heard on quantum of sentence.
Digitally signed by HIMANSHU HIMANSHU TANWAR TANWAR Date:
2025.02.28 15:05:39 +0530 CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.14 of 15
28) Copy of Judgment be supplied to the convict free of cost.Digitally signed by
HIMANSHU HIMANSHU TANWAR TANWAR Date: 2025.02.28 15:06:16 +0530 ANNOUNCED IN THE (HIMANSHU TANWAR) OPEN COURT. MUNICIPAL MAGISTRATE (JMFC) TODAY i.e 28.02.2025 SW, DWARKA COURTS/ DELHI CC No. 40297/2019 Om Prakash vs. Rattan Kumar Jagia Page No.15 of 15