Delhi District Court
Major Avijit Sharma vs Shakti Siingh on 23 September, 2025
THE COURT OF Ms. RAVISHA SIDANA
JUDICIAL MAGISTRATE FIRST CLASS-06, NI ACT, CENTRAL
DELHI
DLCT020181312016
CC NO. 539837/2016
MAJOR AVIJIT SHARMA
S/o Late Shri Ravi Shankar Sharma
Posted at Jodhpur,
presently R/o
6/46, near Gurudwara Road,
Karol Bagh, New Delhi-110005 ........ Complainant
vs.
SHRI SHAKTI SINGH
Aakansha Heights
Delhi Roorkee Highway
near Pallavpuram,
Meerut, Uttar Pradesh ........ Accused
a) Offence complained of Section 138 of Negotiable
or proved Instruments Act, 1881 (NI Act)
b) Date of Filing 13.07.2012
c) Plea of Accused Not Guilty
d) Date of Reserving Order 03.09.2023
e) Date of Pronouncement 23.09.2023
f) Final Order Acquitted
Argued by :-
Ld. counsel for the complainant Sh. Sanjeev Thakur.
Ld. counsel for the accused Sh. Abhishek Singh.
Digitally signed by
RAVISHA RAVISHA SIDANA
SIDANA Date: 2025.09.23
17:24:18 +0530
CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
FACTUAL MATRIX
1.Briefly, it is the case of the complainant that the accused came to be the owner/ proprietor of project known as Aakansha Heights at Delhi-Roorkee Highway near Pallavpuram, Meerut, U.P., (hereinafter referred as 'flat') and due to the aforementioned allurement by the accused, the father of the complainant namely Sh. Ravi Shankar Sharma registered a flat in the said project of Aakansha Heights and deposited a sum of Rs.8,50,000/- and all the formalities regarding the registration and the deposit of the said amount were completed by the accused through his authorized agent at Delhi at the house of the complainant. After the demise of the father of the complainant on 24.10.2011, the accused in his malafide, gave the aforesaid flat to some other person at some premium. The accused assured to refund the deposit amount of Rs.8,50,000/- to the complainant alongwith interest @12% p.a. on the said amount from the date of its deposit and in view of this assurance, and to discharge the liability of aforesaid friendly loan, accused persons issued cheque bearing number 002431 dated 15.04.2012 for Rs.8,50,000/- drawn on Syndicate Bank, Cantonment Meerut, U.P. (hereinafter 'impugned cheque') in favour of his legal liability and assured the encashment upon presentment. The said cheque was assured to be encashed on its presentation as per commitment and assurance given by the accused persons, the impugned cheque was return unpaid with the remarks "Funds Insufficient and Drawer's signatures differ" vide returning memo dated 19.04.2012 and 19.05.2012. After no satisfactory response to several intimation and requests, the complainant sent a legal notice dated 06.06.2012 through speed post, which was duly served upon the accused but accused failed to repay the amount of dishonoured cheque within 15 Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.09.23 17:24:26 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH days. The complainant has filed the present complaint upon dishonour of the impugned cheque.
2. Vide order dated 14.09.2017, after being satisfied that prima facie ingredients of Section 138 NI Act are made out, the cognizance was taken and summons were directed to be issued against the accused persons. Ld. Counsel for accused, on behalf of accused had put an appearance on 02.09.2019.
3. During his framing of notice u/s 251 Cr.PC, he admitted his signatures on the cheque but he denied filling other particulars in the cheque. He disputed the receipt of legal demand notice and raised the plea of defence as follows:
" I am a builder. The complainant had booked a flat that was to be constructed by me. However, after booking the flat, the complainant expressed his inability to buy the same and requested for cancellation of flat. However, I told the complainant that instead of returning the entire amount in one go, I could issue a security cheque in his favour so that the same can be kept with the complainant till the time that entire amount is not paid and as and when the entire amount is paid, the same be returned to me. Thereafter, the cheque in question was issued as security to the complainant and even the complainant kept making his cash from my office in the meanwhile but the security cheque kept lying with him. As on date, I am only liable to pay Rs.1,25,000/- to the complainant and not as alleged in the complaint. The complainant has misused my security cheque, given to him earlier and has filled out an exaggerated amount".
4. The matter was then listed for Complainant Evidence. CW-1 (complainant), relied on his evidence by way of affidavit in post summoning evidence (Ex.CW-1/X) and additional affidavit is Ex.CW1/Y and relied on following documents:
Original cheque Ex.CW1/A
Digitally
signed by
RAVISHA
RAVISHA SIDANA
SIDANA Date:
2025.09.23
17:24:30
+0530
CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH
Bank returning memos Ex.CW1/B and Ex.CW1/C
Legal Demand Notice Ex.CW1/D
Postal receipt Ex.CW1/E
Receipt no. 531 dated 11.10.2011 Ex.CW1/F
Allotment letter Ex.CW1/G
ORAL EVIDENCE
CW-2 Tarun Sharma relied upon his Evidence affidavit Ex.CW2/1.
CW-3 Naresh Kumar, Senior Manager, Canera Bank relied upon document Ex.CW2/1 (colly).
5 The Complainant was examined and cross-examined as CW-1. Thereafter, the CE was closed vide order dated 28.02.2025.
6. During his statement recorded u/s 313 Cr.PC after all the incriminating circumstances were put to accused, he denied the receipt of legal demand notice and he did not opt to lead DE by stating as follows:
" I did not take any money from the complainant. The deal with respect to the formalities pertaining to registration of property was entered between the complainant and Aakansha Builtech Pvt. Ltd. and not with me. The impugned cheque does not pertain to me. It is cheque of the company Aakansha Builtech Pvt. Ltd. However, it bears my signatures".
ARGUMENTS
7. The final arguments were heard. I have heard the ld. counsel appearing for the parties and have given my thoughtful consideration to the material appearing on record. Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date: 2025.09.23 17:24:35 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH
8. It has been argued by the complainant that all the ingredients of the offence are fulfilled in the present case and further:
a) The accused has admitted his signature on the cheque in question. No suggestions have been put to the important witnesses on material issues.
b) Further, it has been urged that the only defence of the accused is non stamping on behalf of the company of the accused and since the accused had admitted his signatures, therefore, the company of the accused was not required to be impleaded as a party in the present case. Ld. counsel for the complainant has contended that it has been duly proved in this case and the accused has failed to produce any convincing evidence to the contrary.
As such, it is prayed that the accused be punished for the said offence.
8.1 Per contra, ld. counsel for the accused has argued that the complainant has failed to establish his case beyond reasonable doubt and submits that
a)the accused has no legally enforceable liability towards the complainant as the transaction in question was between father of the complainant and the Aakansha Builtech Pvt. Ltd. and not with the accused.
b) It is undisputed that the drawer of the impugned cheque is Aakansha Builtech Pvt. Ltd. and the accused is only the authorised signatory on behalf of the company and therefore, the company of the accused ought to have been impleaded as party in the present case, therefore, the present complaint is not maintainable against the accused. Reliance is placed upon judgement of Hon'ble Supreme Court in case tilted as Himanshu v. Shivamurthy, 2019 3SCC 797 and Aneeta Hada v. God Father Travels and Tools and Travel Pvt. Ltd., 2012 5SCC
661. Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.09.23 17:24:40 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH
c)The legal demand notice was never delivered to the accused and was issued to the accused and not the company of the accused and therefore, due compliance under 138 of NI Act Proviso (B) has not been made.
d) The accused can rely on the evidence led by the complainant to prove his defence and it is not required that the accused himself leads evidence in his defence.
As such, it is prayed that the accused be acquitted.
INGREDIENTS OF OFFENCE AND DISCUSSION-
9. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met by both parties. In order to establish the offence under Section 138 of NI Act, the prosecution must fulfil all the essential ingredients of the offence. Perusal of the bare provision reveals that the following ingredients are to be proved before an offence is said to be committed:-
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. Digitally signed RAVISHA by RAVISHA SIDANA SIDANA Date: 2025.09.23 17:24:44 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH
10. The accused can only be held guilty of the offence under Section 138 NI Act when the above mentioned ingredients are proved by the complainant co- extensively. Additionally, the conditions provided under Section 142 NI Act have to be fulfilled.
11. It is settled law that once the execution of cheque is admitted, Presumption under section 139 of NI act is raised in favour of the complainant. The presumption raised is a rebuttable presumption and the onus on the accused to raise a probable defence. The standard of proof for rebutting, the presumption is that of preponderance of probabilities. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]
12. The phrase "unless the contrary is proved" u/s 139 is of vital importance clarifying that the rebuttal of the presumption has to be supported by proof and not mere plausible explanation. The liberty is granted to the accused to either rely on evidence led by him in his support or the material relied by the complainant to raise his probable defence. In addition to the materials brought on record, the circumstances relied upon can also draw the inference of preponderance of probability lying in the favour of the accused.
13. In the case at hand, the proof of the first and third ingredient are disputed. The complainant has although proved the original cheque (Ex. CW1/A) pertaining to the being drawn on the account of the accused. It is disputed that the cheque in question was presented within the validity period of the debt. Further, the cheque in question was returned unpaid vide return memo (Ex. CW1/B) & (Ex. CW1/C) due to the reason, "Funds insufficient" and "Drawer's signature Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.09.23 17:24:48 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH differs, which does falls strictly within the purview of section 138 NI Act. As such, the first and third ingredient of the offence under Section 138 NI Act stand proved.
14. With regard to the fourth and fifth ingredient, the complainant has proved on record legal notice & postal receipt Ex. CW1/D and Ex. CW1/E. The postal receipt was addressed to the accused and sent by the counsel for the complainant dated 06.06.2012. In Ergo, the accused has denied receipt of the legal demand notice in his Notice framed u/s 251 Cr.P.C. as well as in his Statement recorded u/s 313 Cr.P.C and disputed that address mentioned in legal Notice was already vacated as on the date of legal demand notice. The fact that the payment was not made within 15 days of the receipt of the legal notice also becomes disputed. Therefore, the fourth ingredient requires adjudication subject to which, the fifth ingredient of the offence shall stand proved.
DELIVERY OF LEGAL DEMAND NOTICE
15. The perusal of Legal Demand Notice Ex. CW1/D dt 06.06.2012 reflects the address of the accused to be "Aakansha Heights, Delhi Roorkee Highway, near Pallavpuram, Meerut, Uttar Pradesh".
15.1 The aforesaid address is denied by the accused during the stage of notice framing and statement of accused stating that the aforesaid address is incorrect during the recording of the statement of the accused u/s 313 Cr.PC and the aforesaid address was already vacated by him during his notice framing. The said address also does not finds corroboration from the Aadhar Card annexed with the bail bonds furnished by the accused as it mentions his correct address as "House no.4, queens land park, Kanker Khera, Meerut, Uttar Pradesh-250001" . The Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.09.23 17:24:52 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH aforesaid also in tendum with the Receipt dated 11.10.2011 Ex.CW1/F, filed on behalf of the complainant.
16 In this regard, address on the ID proof of the accused annexed with the bail bonds has also been perused. The postal receipt Ex. CW1/D was addressed to the accused and sent by the counsel for the complainant is dated 06.06.2012, but the perusal of the record reflects that there is no tracking report filed along with postal receipt to acknowledge the delivery of legal Demand notice.
16.1 The attention of the court is drawn to the Para No. 14 of the Complaint and Para no. 16 of PSE Affidavit, which is as follows :
" issued legal notice dated 06/06/2012 under regd. AD cover. The said notice was sent at the correct address of the accused"
It is clear from the aforesaid contents that no affirmative averments have been made qua the delivery of Legal notice.
17 The presumption of service raised by the Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr.VI (2007) SLT 442, that when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of the proviso to Section 138 of the NI Act stands complied with.
17.1 Therefore, the present case is distinguishable to the facts in hand as the legal demand notice was sent at the incorrect address. Therefore, the defence of the accused that he had not received the legal demand notice strikes at the Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date: 2025.09.23 17:24:56 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH threshold of the complaint as on reading the documents placed on record that the legal demand notice was unserved through speed post. In the light of aforesaid observations, the fourth and the fifth ingredient stand disproved.
17.2 This Court places its reliance on the judgment passed by The Hon'ble High Court of Delhi in case titled as "RL Varma and Sons vs. P C Sharma"
Revision Petition (Crl) 438o0f 2017". It was held that the notice had been sent via registered post but returned unsent as there had been no one to receive it. The presumption of service of notice could not be held in favour of the complainant if the notice was sent to the incorrect address. As the necessary notice had not been served, the complaint could not be considered as valid. Legal presumption of service of notice can only arise in the case the notice is correctly addressed. If the notice is incorrectly addressed no legal presumption can arise. Further, Section 138 NI Act mandates the issuance of the statutory notice as a pre-condition to filing of a complaint. On examination of the evidence on record, the complainant has failed to comply with the mandatory requirement of issuance of legal demand notice u/s 138 NI Act. Thus, the version of the complainant without any proof is not tenable at all and cannot be sustained.
NON IMPLEADMENT OF COMPANY
18. In the factual matrix, the transaction in the present case is undisputed to the extent of booking Plot no. 201 ie. The property in question and the cheque in question being issued as security to return the booking amount given for the purchase of the alleged plot. During his framing of notice, the accused has admitted filling all the particulars in the impugned cheque. RAVISHA Digitally signed by RAVISHA SIDANA SIDANA Date:
2025.09.23 17:25:00 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH
19. The primary defence of the accused raised during the entire trial is that the alleged transaction took place between the father of the complainant and the Akansha Builtech Pvt. Ltd. In continuance of the same, the impugned cheque was issued through the account of the Akansha Builtech Pvt and not in individual capacity of the accused. Therefore, the drawer of the cheque is not him as he is merely an authorized signatory and the cheque in question has been drawn on the account of Akansha Builtech Pvt, which has not been arrayed as the primary accused in this case.
20. It is noteworthy that it is an admitted factual position that the accused was the Authorized signatory on behalf of Akansha Builtech Pvt. Ltd. During cross- examination of CW1 dated 05.06.2023, a question is put to the complainant that the cheque in question pertains to Akansha Builtech Pvt Ltd. and the accused is only the authorized signatory of Akansha Builtech Pvt. Ltd. Therefore, it is admitted that the 'drawer' as per the definition of section 7 of NI Act, of the impugned cheque is Akansha Builtech Pvt. The documents filed on behalf of the complainant with Additional evidence (Ex.CW1/Y) i.e Receipt (Ex.CW1/F) and the allotment letter (Ex.CW1/G) have been issued by Aakansha Buildtech to the father of the complainant further corroborates the stance of the accused. The documents produced by the bank witness (CW-3) also verified to the effect that the account number on the impugned cheque belongs to the Akansha Builtech Pvt Ltd. and not the individual account of the accused.
21. The issue that the cheque in question has been issued by the company whereas the same has not been arrayed as an accused. Reliance is placed upon the judgment of Himanshu vs. B. Shivamurthy and Anr. CA No. 1465/2009 Hon'ble RAVISHA Digitally signed by RAVISHA SIDANA SIDANA Date: 2025.09.23 17:25:03 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH Supreme Court wherein vide para no. 13, it has been held that in the absence of the company being arraigned as an accused, the complaint would not be maintainable.
22. In Bijoy Kumar Moni vs. Paresh Manna & Anr. Crl. Appeal No. 5556/2024 it was held by Hon'ble Supreme Court of India that :
"39.What invariably follows from a perusal of the aforesaid provisions is that it is only the drawer of the cheque who can be held liable under Section 138. Section 141 is an exception to this scheme of the NI Act and provides for vicarious liability of persons other than the drawer of the cheque in cases where the drawer of the cheque under Section 138 is a corporate person."
23. The question as to whether a person who was not the drawer of the cheque upon an account maintained by him could be held to be liable for an offence under Section 138of the NI Act fell for the consideration of this Court in the case of P.J. Agro Tech Ltd. and Others v. Water Base Ltd. reported in (2010) 12 SCC
146. The Court construed the provision strictly and answered the question in the negative. The relevant observations are reproduced hereinbelow:
"11. From the submissions made on behalf of the respective parties, it is quite apparent that the short point for decision in this appeal is whether a complaint under Section 138 of the 1881 Act would be maintainable against a person who was not the drawer of the cheque from an account maintained by him, which ultimately came to be dishonoured on presentation.
13. From a reading of the said section, it is very clear that in order to attract the provisions thereof a cheque which is dishonoured will have to be drawn by a person on an account maintained by him with the 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. It is Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.09.23 17:25:08 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH only such a cheque which is dishonoured which would attract the provisions of Section 138 of the above Act against the drawer of the cheque."
24. In Jugesh Sehgal v. Shamsher Singh Gogi reported in (2009) 14 SCC 683, this Court emphasised on the importance of the dishonoured cheque having been drawn by the accused person on an account held in his name for the offence to be made out and held thus:
"22. As already noted hereinbefore, in Para 3 of the complaint, there is a clear averment that the cheque in question was issued from an account which was non- existent on the day it was issued or that the account from where the cheque was issued "pertained to someone else". As per the complainant's own pleadings, the bank account from where the cheque had been issued, was not held in the name of the appellant and therefore, one of the requisite ingredients of Section 138 of the Act was not satisfied. Under the circumstances, continuance of further proceedings in the complaint under Section 138 of the Act against the appellant would be an abuse of the process of the court. In our judgment, therefore, the decision of the High Court cannot be sustained." (Emphasis supplied)
25. In the recent case of Shri Gurudatta Sugars Marketing (P) Ltd. v. Prithviraj Sayajirao Deshmukh and Others reported in 2024 SCC OnLine SC 1800 had the occasion to consider the issue of whether the authorised signatory of a company who had signed a cheque drawn on the bank account of the company and which got dishonoured subsequently could be held to be liable for the payment of interim compensation under Section 143A of the NI Act. This Court while answering the issue in the negative, applied the doctrine of separate corporate personality and held that it is only the drawer of the cheque who could be held to be liable for the payment of interim compensation under Section 143A of the NI Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.09.23 17:25:12 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH Act and the authorised signatory of a company cannot be said to be the drawer of the cheque.
26. A catena of decisions of this Court have settled the position of law that in case of a cheque issued on behalf of a company by its authorised signatory, prosecution cannot proceed against the such authorised signatory or other post- holders of the company as described under Section 141 of the NI Act, unless the company who is the drawer of the cheque is arraigned as an accused in the complaint case filed before the magistrate. Further, vicarious liability can only be affixed against the directors, authorised signatories, etc. of the company after the company is held liable for the commission of offence under Section 138."
27. In the facts of the present case, the drawer of the cheque being a private limited company would be the principal offender, cannot be convicted in its absence being not arrayed as a party. The defect goes to the root of the matter and is incurable. Hence, the argument of ld. counsel of the accused that present suit is bad on ground of failure to array the accused's company Akansha Builtech Pvt. Ltd is dealt is justifiable.
28. Further, the accused has been able to raise a probable defence that no cause of action to file the present complaint arose as the legal notice were ever served to him by the complainant and the complainant has failed to prove ingredient no. (iv) and (v) qua the accused in respect of due service of legal notice under section 138 of NI Act as a pre-condition to section 138 NI Act. Further, the non-impleadment of the company of the accused as party makes the present Digitally signed by RAVISHA RAVISHA SIDANA SIDANA Date:
2025.09.23 17:25:16 +0530 CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH complaint non-maintainable in the eyes of law. In lieu of the aforesaid, the other ingredients on merits do not require adjudication.
29. Resultantly, the accused SHAKTI SINGH is, thus, stands acquitted for the said offence. Digitally signed by RAVISHA SIDANA RAVISHA Date:
SIDANA 2025.09.23
17:25:20
Announced in Open Court on 23.09.2025. +0530
(RAVISHA SIDANA)
JMFC, NI ACT-06,
CENTRAL DISTRICT, THC/23.09.2025
CC NO. 539837/2016 MAJOR AVIJIT SHARMA V. SHRI SHAKTI SINGH