Delhi District Court
Shri Bajrang Aggarwal vs Shri Vikas Kumar Sharma on 28 April, 2025
1
DLST020172932023
Registered on :16.08.2023
Presented on :16.08.2023
Decided on : 28.04.2025
Decision : Acquitted.
IN THE COURT OF JUDICIAL MAGISTRATE
FIRST CLASS (NI ACT)-08 SOUTH,
SAKET DISTRICT COURT
(PRESIDED OVER BY SH. KOMAL)
CC NI ACT/7098/2023
CNR NO. DLST-02-017293-2023
JUDGMENT
Shri Bajrang Aggarwal Son of Late Shri Mansa Ram Aggarwal Resident of B-444, Sangam Vihar, New Delhi - 110080 ... Complainant Versus Shri Vikas Kumar Sharma CC NI Act 7098/2023 Page 1 of 12 komal Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma Digitally signed by komal Date: 2025.04.28 16:52:17 +0530 2 Proprietor, M/s SRG Enterprises R/O 400A/5, Munirka, Budh Vihar, Opp. JNU, New Delhi - 110067 And also at:
R/O 400A/8, Munirka, Budh Vihar, Opp. JNU, New Delhi - 110067 ... Accused Offence punishable under Section 138 of Negotiable Instruments Act, 1881 JUDGMENT FACTUAL MATRIX
1. The complainant, Shri Bajrang Aggarwal, is the proprietor of "M/s Aggarwal Traders," engaged in the trading of building materials at B-444, Sangam Vihar, New Delhi - 110080.
2. The accused, Shri Vikas Kumar Sharma, is the proprietor of "M/s SRG Enterprises," operating from 400A/5 and 400A/8, Munirka, Budh Vihar, Opp. JNU, New Delhi - 110067, and is also engaged in the business of building material trading.
3. The case of the complainant as stated in the present complainant is that between 16.03.2023 and 25.03.2023, the accused purchased building materials, including Rori, Dust, and Reta, from the complainant for a total consideration of Rs.
CC NI Act 7098/2023 Page 2 of 12 Digitally signed by Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal komal Date:
2025.04.28 16:52:25 +0530 3 1,33,500/- (Rupees One Lakh Thirty-Three Thousand Five Hundred only).
4. The accused made part payments towards the said amount in cash as follows:
i) Rs. 30,500/- on 19.03.2023.
ii) Rs. 25,000/- on 22.03.2023.
iii) Rs. 20,000/- on 25.03.2023.
Thus, an outstanding balance of Rs. 58,000/- (Rupees Fifty- Eight Thousand only) remained payable by the accused.
5. To discharge the aforesaid liability, the accused issued the following two cheques in favour of the complainant's firm:
i) Cheque No. 866271 dated 16.04.2023 for Rs. 29,000/-
ii) Cheque No. 866274 dated 22.04.2023 for Rs. 29,000/-
Both cheques were drawn on Yes Bank Ltd., Ground Floor, G-09 to G-17, Plot No. 54B, DDA Community Centre, Janakpuri, New Delhi - 110058. (Hereinafter referred to as the "cheques in question".)
6. The complainant presented the cheques in question for encashment through his banker, Bank of India, Saket Branch, on 18.04.2023 and 25.04.2023 respectively. However, the cheques were returned unpaid on 19.04.2023 and 26.04.2023 with the endorsement "ACCOUNT BLOCKED".
7. Upon being informed, the accused requested the CC NI Act 7098/2023 Page 3 of 12 Digitally signed by Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal komal Date:
2025.04.28 16:52:31 +0530 4 complainant to re-present the cheques with the assurance that his account would be functional within a week. On this assurance, the complainant again presented the cheques on 05.07.2023 through the same banker. However, the cheques were once again dishonoured for the same reason: "ACCOUNT BLOCKED".
8. The complainant thereafter sent a legal notice dated 17.07.2023 (dispatched on 18.07.2023) to the accused demanding payment of Rs. 58,000/- within 15 days of receipt. However, the accused refused to accept the notice on 19.07.2023.
9. Despite service of legal notice, the accused failed to make payment of the said amount within the statutory period. Since the accused did not make the payment within the statutory period of 15 days the complainant preferred to file the present complaint under Section 138 of NI Act.
APPEARANCE OF ACCUSED AND TRIAL
10. The cognizance in the present matter was taken by the Ld. Court vide Order 27.09.2023 and summons were issued against the accused. On 12.04.2024, the accused appeared before the Court and was granted bail subject to furnishing of Personal Bond in the sum of Rs.5,000/- with one surety of like amount. On being served notice under Section 251 CrPC, the accused pleaded not guilty to the offence under Section 138 of the Negotiable CC NI Act 7098/2023 Page 4 of 12 Digitally signed by Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal komal Date:
2025.04.28 16:52:36 +0530 5 Instruments Act and claimed trial. He stated that he is in a business relationship with the complainant and that the cheques in question were given only as security. He contended that there was no legally enforceable debt or liability towards the complainant at the time of issuance of the cheques. The accused admitted that the cheques bear his signatures and that he had filled in all particulars, including the date and the name of the payee. He further admitted knowing the complainant but denied having received any legal demand notice. He also denied that the address mentioned in the legal notice was correct.
11. Given the nature of the allegations and reply of the accused u/s 251 CrPC, this Court directed that the case shall be tried as a Summons case under Chapter XX of Cr.P.C.
12. The complainant was cross-examined after the plea of the accused under Section 145(2) of NI Act was allowed on the oral request of the accused. Further, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C was recorded wherein the incriminating evidence were denied by him. In his statement recorded under Section 313 Cr.P.C., the accused stated that he had purchased building materials worth Rs. 80,000/- from the complainant for his firm, M/s SRG. He stated that an amount of Rs. 45,000/- was still outstanding to be paid to the complainant. However, he denied having received the legal demand notice allegedly sent by the complainant, despite the production of the postal receipt (Ex. CW1/8) and proof of delivery (Ex. CW1/8A).
CC NI Act 7098/2023 Page 5 of 12 Digitally signed by Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal komal Date:
2025.04.28 16:52:41 +0530 6 The accused claimed that the case was false and had been filed to harass him, asserting that the witnesses examined were interested witnesses. He further explained that the cheques in question were handed over at the time of material purchase and were filled in as per the value of the material supplied, though he maintained that the dates on the cheques had not been filled by him. The accused expressed his intention to lead defence evidence in support of his case.
EVIDENCE LED BY THE COMPLAINANT
13. To support his case, the complainant had examined himself as CW-1 and adopted his evidence by way of affidavit bearing Ex.CW1/10 bearing his signatures at Point A and Point B. The complainant has further relied upon following Documentary evidences: Two original cheques issued by the accused, marked as Ex. CW1/1 and Ex. CW1/2; the bank return memos indicating dishonour of the cheques, marked as Ex. CW1/3 to Ex. CW1/6; the office copy of the legal notice along with the return envelope, marked as Ex. CW1/7; the postal receipt evidencing dispatch of the legal notice to the accused, marked as Ex. CW1/8; and a copy of the complaint filed before the Hon'ble Court, marked as Ex. CW1/9.
14. CW-1 was duly cross-examined by the Ld. counsel for the accused and then discharged. CE was closed since no more witness was left to be examined on behalf of the complainant.
Digitally signed by CC NI Act 7098/2023 Page 6 of 12 komal komal Date:
Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma 2025.04.28 16:52:46 +0530 7 EVIDENCE LED BY THE ACCUSED
15. On the other hand, the accused had examined himself in his defence as defence witness DW-1. In examination-in-chief, he deposed that he is working as a supplier and deals in building materials. He used to supply construction materials to different shops. The complainant had contacted him telephonically for supply of construction materials. He gave a cheque to the complainant as security. All transactions between him and the complainant were in cash. He stated that on 18.03.2023, the complainant supplied him 400 ft. of dust material at the rate of Rs. 50/- per foot, totaling Rs. 20,000/-, and also supplied 180 ft. of concrete/rori/gitti material at Rs. 58/- per foot, totaling Rs. 10,500/-. He paid Rs. 30,500/- in cash for these materials. On 20.03.2023, the complainant again supplied 400 ft. of dust material at Rs. 50/- per foot, totaling Rs. 20,000/-. On the same day, he also received 180 ft. of jamuna sand/reta at Rs. 45/- per foot, totaling Rs. 5,000/-. He paid Rs. 25,000/- in cash to the complainant on 20.03.2023. On 25.03.2023, he again received 180 ft. of concrete/rori and 180 ft. of dust material, totaling Rs. 20,000/-, which he paid in cash on the same day. On 27.03.2023, he received 160 ft. of jamuna sand/reta material, for which Rs. 4,500/- remains unpaid. After examination-in-chief, he was duly cross-examined by the learned counsel of the complainant.
16. After the cross-examination of DW-1, DE was closed and the matter was fixed for final arguments.
CC NI Act 7098/2023 Page 7 of 12 Digitally Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal signed by komal Date:
2025.04.28 16:52:53 +0530 8 ARGUMENTS
17. Final arguments were advanced on behalf of both the parties. Rival submissions were heard on behalf of both the parties.
18. Ld. Counsel for the complainant, has argued that all the ingredients of Section 138 NI Act have been fulfilled in the present case and the complainant has duly proved his case and hence prayed that the accused be convicted. He submitted that the legal liability has been proved by way of original cheque, return memo, legal notice and tracking receipt placed on record.
Per contra , Ld. counsel for the accused, has argued that the complainant has misused the security cheques in the present case, and therefore, the accused should be acquitted for the offence alleged by the complainant.
POINTS OF DETERMINATION:
19. The following points of determination arise in the present case:
a. Whether the complainant is successful in raising the presumptions under Section 118 read with Section 139 of NI Act?
b. If yes, whether the accused has been successful in raising a probable defence?
CC NI Act 7098/2023 Page 8 of 12 Digitally signed by Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal komal Date:
2025.04.28 16:53:06 +0530 9 THE LAW APPLICABLE:
20. I have given my thoughtful consideration to the rival submissions of the Ld. counsels from both sides and have also perused the record. Before appreciation of evidence led on behalf of the parties, at the very outset, I would like to narrate the legal principles relevant for adjudication of complaint under Section 138 of NI Act.
21. The Hon'ble Supreme Court of India in Basalingappa v. Mudibasappa, 2019 SCC OnLine SC 491 at page 422 held as follows :
(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden.
22. The three-judge bench of the Hon'ble Supreme Court in Rangappa v. S. Mohan, (2010) 11 SCC 441 has ruled that existence of liability itself is a presumption of law. It held as CC NI Act 7098/2023 Page 9 of 12 Digitally signed by Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal komal Date:
2025.04.28 16:53:10 +0530 10 under:
"26. In light of these extracts, we are in agreement with the respondent claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability."
23. The Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri) 236 at page 565 held as follows:
"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 GC Act and Section 114 of the Evidence Act."
APPRECIATION OF EVIDENCE AND FINDINGS POINT OF DETERMINATION NO. 1:
24. It is not in dispute that cheques in question bearing Ex.CW1/1 and Ex.CW1/2 were drawn on account maintained by the accused and the same have been signed by the accused. The reason for dishonour of cheques in question as mentioned in cheque return memos Ex.CW1/2 to Ex.CW1/6 is "Account Blocked". The return memos being admitted by the accused, the presumption of dishonour under Section 146 NI Act arises. The receipt of legal demand notice i.e. Ex.CW1/7 sent to the accused vide postal receipt and tracking report bearing Ex.CW1/8A has not been admitted by the accused. Moreover, the address on bail bond Digitally CC NI Act 7098/2023 Page 10 of 12 signed by komal Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal Date:
2025.04.28 16:53:15 +0530 11 furnished by accused and address on legal demand notice is different. The complainant shall lead positive evidence to prove that address on legal demand notice is the correct or last known address of accused. The plea of the accused regarding the non- receipt of the legal notice is accordingly accepted.
25. In view of the abovementioned circumstances, the presumptions under sections 139 and 118 NI Act that the cheque in question was for a legally recoverable debt/liability does not stands activated.
26. Accordingly, the point of determination no.1 is decided in negative.
POINT OF DETERMINATION NO. 2:
27. The burden to disprove the existence of legal liability is upon the accused. This may be done by poking holes in the case of the complainant or by leading positive evidence in defence.
28. As far as defence evidence is concerned, accused had examined himself as DW-1. It is stated by DW-1 that complainant supplied him building construction material and he had regular dealings with him. The complainant had neither confronted accused with unpaid bills nor put on record any bill in his complainant evidence. In such circumstances the whole case becomes a word for a word. The custom of trade is that informal Digitally CC NI Act 7098/2023 Page 11 of 12 signed by komal Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma komal Date:
2025.04.28 16:53:19 +0530 12 bills are raised in such dealings. The complainant must have had a copy of those bills. The act of not putting any bill on record casts a shadow on his case.
29. Accordingly, in light of the aforesaid discussion, the point of determination no. 2 is decided in affirmative.
Conclusion:
30. In view of the above discussion, this Court is of the considered opinion that the complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 qua accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The accused Vikas Kumar is hereby acquitted for the offence punishable under Section 138 NI Act qua the cheque in question in the present case.
Announced in the Open Court on this 28.04.2025. This Judgment consists of 12 digitally signed pages.
Digitally
signed by
komal
komal Date:
2025.04.28
16:53:25
+0530
(KOMAL)
JMFC(NI ACT)-08, SOUTH DISTT.
SAKET COURTS, DELHI, 28.04.2025
CC NI Act 7098/2023 Page 12 of 12
Shri Bajrang Aggarwal Vs. Shri Vikas Kumar Sharma