Delhi District Court
Desh Deepak vs Smt Reena on 3 March, 2025
Page 1 of 23
IN THE COURT OF MS. SEEMA MEENA
JMFC (N. I. ACT) DIGITAL COURT-04, SOUTH-WEST
DWARKA COURTS, NEW DELHI
CC NI ACT NO: 750/2020
DLSW020376242020
Desh Deepak,
S/o Sh. Suresh Kohli,
R/o RZ-149, 1st Floor, Gali No.4,
Vaishali Palam, Dabri Road,
Palam Village, Najafgarh,
South-West, Delhi-110045. .........Complainant
Versus
Smt. Reena,
W/o Sh. Lenin,
R/o H. No.1449/62, Gali No.6,
Durgapuri, Shahdara, Delhi-110093
Also at:-
C-33, Street No.5,
Jagatpuri Extension,
Shahdara, Delhi-110093. .......Accused
Offence Complained of or proved : U/S 138 NI Act
Plea of the Accused : Pleaded not guilty
Date of filing : 17.12.2020
Date of Institution : 18.12.2020
Date of pronouncement of judgment : 03.03.2025 Digitally signed
SEEMA by SEEMA
MEENA
Final Order/Judgment : Convicted MEENA 2025.03.02
Date:
16:20:34 +0530
CC NO.750/2020 Desh Deepak Vs. Reena
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JUDGMENT
1. This criminal complaint was filed by the complainant against the accused under section 138 of the Negotiable Instruments Act, 1881. (Hereinafter be referred to as the NI Act).
2. The case of the complainant is that the husband of the accused approached the complainant in the month of January 2016 and requested for a friendly loan for an amount of Rs.5,00,000/- for his personal needs. On request, the complainant gave Rs. 5,00,000/- in cash to the husband of the accused on assurance that the loan amount will repay within one year. Thus, loan agreement-cum-receipt was executed by husband of the accused. After much persuasion, the accused issued one cheque bearing no. 650510 dated 28.09.2020 of Rs.5,00,000/- drawn on Vijaya Bank, Shahdara Branch, Delhi on behalf of her husband to discharge his legal liability.The accused assured the complainant that the aforesaid cheques will be duly encashed on its presentationbut same was returned dishonored vide return memo dated 30.09.2020 with remarks "Funds insufficient".
3. Thus, after many attempts to seek payment from the accused, the complainant served a legal notice dated 23.10.2020 through speed post to make the payment of the amount of the cheque in question. However, the accused failed to make the payment of amount of cheque in question to the complainant even after expiry of fifteen days from the date of service of legal notice. Thus, the complainant has filed the present complaint seeking action qua accused u/s 138 NI Act. SEEMA Digitally signed by SEEMA MEENA Date: MEENA 2025.03.02 16:20:46 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 3 of 23
4. Instant complaint has been filed within the limitation period as per Section 142 of N.I. Act, and the territorial jurisdiction to try the present complaint vests with this Court.
5. Vide order dated 23.01.2020, this Court took cognizance of offence u/s 138 NI Act, and summoned the accused. Thereafter, accused appeared on 29.07.2021, Notice under section 251 of Code of Criminal Procedure (hereinafter referred to as the Cr.P.C) was served upon him on 09.09.2021, where the substance of the allegation against her was read over and explained to her. The accused pleaded not guilty and claimed trial.
6. While disclosing her defence, the accused stated that she does not know the complainant. Accused further admitted that her husband had taken a loan from the complainant and the cheque in question might have been issued against the payment of loan. Though, she stated that the name of payee as well as amount in figures and words were not filled by her, but she admitted her signature on the cheque in question. The accused moved an application under Section 145(2) of NI Act which was allowed and the complainant was cross-examined vide order dated 29.08.2022.
7. In order to prove his case, the complainant tendered his evidence by way of affidavit vide Ex CW1/1 and got himself examined as CW-1 and has further relied on the following documents:
Digitally signeda) Mark CW1/A is copy of receipt/agreement, by SEEMA SEEMA MEENA MEENA Date:
2025.03.02 16:20:53 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 4 of 23
b) Ex CW1/B is cheque in question bearing no.650510 dated 28.09.2020 for an amount of Rs.5,00,000/-,
c) Ex CW1/C is Return memo dated 30.09.2020,
d) Ex. CW1/D is legal demand notice dated 23.10.2020
e) Ex. CW1/E is postal receipt of legal demand notice and
f) Ex. CW1/F is tracking report
8. During cross-examination, the complainant (CW-1) has deposed that the cheque in question issued by the accused was given to him pertaining to the loan taken by her husband. There was no separate receipt issued with respect to the cheque in question issued by the accused. The complainant admitted that the receipt that he has placed on record does not mention the cheque number of the cheque in question. The cheque in question was handed over to him by the accused in September 2020. He denied the suggestion that when the husband of the accused had taken loan from him; he handed over the cheque in question along with cheques from his own account for security. He admitted to produce the original copy of the receipt as well as the stamp paper signed by the husband of the accused at the time of taking the loan marked as Mark CW-1/A (Colly). Further, he denied the suggestion that the accused's husband had paid the entire loan amount to him i.e. Rs. 5,00,000/- after which he handed over the said receipt and stamp paper to the husband of Digitally signed by SEEMA the accused which he tore off and the complainant misused SEEMA MEENA MEENA Date:
2025.03.02 16:21:02 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 5 of 23 security cheques given to him as mentioned in the receipt.He does not have money lending license. He voluntarily stated that he is not into the business of money lending. He has not placed any documents on record to show that he was having Rs.5 Lakhsin cash in year 2016. He does not have any documentary proof in order to establish that he has Rs.5 Lakhs in cash in the year 2016. He voluntarily stated that it was his savings. He has two addresses of the accused. He admitted that Ex. CW1/D does not bear his signatures. He admitted that all the three cheques mentioned in Mark CW1/A has been received by him on 20.01.2016. The cheque bearing no.032128 dated 20.01.2016 for sum of Rs.1000/- has been enchased by him and the same was duly credited in his account. He denied the suggestion that he has misused the documents Mark CW1/A. He denied the suggestion that he is giving evasive answer that documents Mark CW1/A has been lost as the accused has paid the loan amount. Witness was confronted with document Mark CW1/A and stated that Sh.
Chet Ram whose signature is appended at point "A" is perhaps driver of accused. He has not given loan to anyone else. He admitted that he has not filed the tracking report of the courier receipt. He denied the suggestion that he has deliberately sent the legal notice Ex. CW1/F on the wrong address so that accused could not receive the same. He admitted that he has not demanded through legal notice/filed any case or complaint against the accused from January 2016 till 22.10.2020. He denied the suggestion that accused has no legal enforceable debt and liability against him. He met the accused at first time in year 2016 at her wedding. He does not remember the exact month. He denied the suggestion that he has not met the accused on Digitally signed by SEEMA SEEMA MEENA MEENA Date:
20.01.2016. He voluntarily stated that he met the accused in the 2025.03.02 16:21:09 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 6 of 23 year 2016 but do not remember the exact date. He has not filed any document to show that he has met with the accused in the year 2016. He cannot produce any document which would proof the meeting with the accused in the year 2016. He admitted that he has not given any sum of money to the accused. There is no deed or guarantee was executed between him and the accused.
He denied the suggestion that he has not bring the document Mark CW1/A (Colly) in original because he has received the payment from the accused's husband and same was destroyed by him and the accused's husband.He denied the suggestion that he misused the process by filing case against the accused and accused's husband. He denied the suggestion that he has given the amount to the accused's husband upon on interest. He denied the suggestion that the particulars in the cheque in question are not filled by the accused. He admitted that there is no legally enforceable debt and liability of the accused against him. However, he was seeking the payment in question from the accused's husband wherein the accountability was taken by the accused in order to make the payment by handing over the cheque in question. He admitted that there was no acknowledgment of accused's husband liability by the accused in writing. He denied the suggestion that the cheque in question was not handed over by the accused to him. He files his income tax return. He can file his income tax return. He denied the suggestion that he has not mentioned in his ITR since the accused has no liability against him. Witness was confronted with the para no.2 from point "A" to "B" of the affidavit Ex. CW1/1. He admitted that there is no documentary proof of assurance given by the accused in order to make the payment by the accused's Digitally signed by SEEMA SEEMA MEENA husband. He voluntarily stated that there is an agreement signed MEENA Date:
2025.03.02 16:21:15 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 7 of 23 by the accused's husband to make the payment within a year. He admitted that accused has not placed any assurance to make the payment within a period of one year. He voluntarily stated that maybe it is typographical error instead of accused's husband, written as accused). CW-1 was confronted with the para no.2 from point "A" to "B" of the complaint. He has signed the affidavit as well as complaint after going through the contents of the same. He denied the suggestion that notice was not served upon the accused. He denied the suggestion that accused has no legally enforceable debt and liability towards him. He denied the suggestion that he has filed false and fabricated case against the accused. He denied the suggestion that he has filed false and fabricated case therefore; he has not produced the document CW1/A in original. He denied the suggestion that he is deposing falsely. This is, in sum and substance, the complainant's evidence. The complainant led no other evidence and CE stands closed on 24.02.2023.
9. Thereafter, the accused was examined u/s. 313 Cr.P.C. All the incriminating material was put to her. She was given an opportunity to offer explanation to which she stated that she had no clue about the loan transaction took place between the complainant and her husband. It only came to her knowledge when the present was instituted before this Court. She has not issued any cheque in question in favour of the complainant. She received the bank message regarding the return memo and no legal notice was sent to her by the complainant. When queried to this effect, the accused opted to lead D.E.
10. In Defence Evidence, accused examined herself as Digitally signed by SEEMA SEEMA MEENA MEENA Date:
DW-1. In her examination in chief, she deposed that she did not 2025.03.02 16:21:22 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 8 of 23 know the complainant. She never met the complainant prior to this present matter. The cheque in question was in a possession of her husband and the same had been handed over by her husband to the complainant. She had no knowledge about the loan taken by her husband from the complainant. About the return memo in the present matter, she got to know through the message from the concerned bank. She had no transaction with the complainant and she did not hold any legal liability towards the complainant in the present matter.
11. The accused was cross-examined and has deposed that she did not know about theproceeding instituted u/s 138 N.I. Act. She did not know the complainant before. The complainant visited her place only once to meet her husband. That is all she knew about the complainant. Except the present cheque in question, there is no other cheque which was in possession of her husband. There is no other matter pending before any court or authority against her except the present matter. There are several matters pending against her husband except the present one which is pending before this court only. She admitted that it is her signature only in cheque in question. When she had received message from the bank regarding the return memo, she enquired her husband regarding the same. Her husband informed her that he had taken loan from the complainant and at the time of taking the loan, he had her cheque in possession which he handed over to the complainant towards the loan. Therefore, the loan agreement executed between her husband Sh. Lenin and the complainant. Her husband also informed her that he had already repaid the loan to the complainant and the said agreement was Digitally signed by SEEMA SEEMA MEENA discarded by the complainant only. Upon the faith, her husband Date:
MEENA 2025.03.02 16:21:28 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 9 of 23 informed her thatcomplainant may return the cheque in question later. However, same was not returned by the complainant to her husband. She denied the suggestion that the loan was taken by her husband from the complainant in her presence and the cheque in question was given by her as a guarantor on behalf of her husband to the complainant.
12. DE was closed on 08.02.2024 on the submission of the accused. Final arguments were heard at length on behalf of both the parties.
13. Ld. Counsel for the complainant reiterated all the averments made in the complaint and has argued that the complainant has proved all the ingredients of the offence under section 138 NI Act.
14. Ld. Counsel for the accused on the other hand submitted his written arguments and argued on several grounds. Firstly, thatthe complainant cannot recover the time barred debt given to the husband of the accused from the accused. Further, the accused has no legal liability towards the complainant. Lastly, no legal notice was sent to the accused. In response to the written arguments filed on behalf of the accused, the Ld. Counsel submits that the accused has admitted his issuance of cheque in question along with her signature. Further argued, that the accused has issued the cheque in question to repay the loan of her husband as a guarantor and the liability of guarantor is co- extensive in nature with that of the principal debtor i.e. husband of the accused in present matter. Further argued, that the accused Digitally has not filed any complaint against the complainant regarding SEEMA signed by SEEMA MEENA MEENA Date:
2025.03.02 16:21:34 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 10 of 23 misuse of cheque in question claiming that the debt is time barred.
15. It would be appropriate to briefly discuss law applicable to the defence of dishonor of cheque before finding of conviction. The legal position that emerges, from reading of S.138 N.I. Act, is that before finding of conviction with the offence punishable Section 138 N.I. Act can be returned against the accused, it has to be established, cumulatively-
a. The cheque was drawn by the accused on an account maintained by him with a bank for payment of a certain amount of money to another person from out of that account;
b. That the cheque was issued in discharge of any debt or liability;
c. That the cheque has been presented to the bank within a period of 3 months from the date on which it was drawn or within the period of its validity, which- ever is earlier;
d. That the cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
e. The payee or the holder in due course of the Digitally signed by SEEMA SEEMA MEENA cheque makes a demand for the payment of the said MEENA Date:
2025.03.02 16:21:43 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 11 of 23 amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
f. The drawer of such cheque fails to make pay- ment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.
16. The language of section 138 NI Act leaves no room for doubt that only when all the above ingredients are satisfied can the drawer of the dishonoured cheque be said to have committed an offence under section 138 NI Act. It is also pertinent to note that Section 138 of the NI Act cannot be read in isolation and has to be read along with sections 139 and 118 of the NI Act, which entitle the payee or holder in due course to certain presumptions of law. It is relevant to state aforementioned provisions of NI Act, which are as follows:
"Section 139- 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, or any debt or other liability."
17. Section 139 of the NI act, being a reverse onus clause, is an exception to the general rule as to the burden of proof in Digitally signed by criminal cases and shifts the onus on to the accused. This SEEMA SEEMA MEENA MEENA Date:
2025.03.02 16:21:48 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 12 of 23 provision stipulates a presumption in favour of the complainant with regard to the existence of a legal debt or liability.
18. Once presumption is drawn against the accused u/s 139 of NI Act, the accused has to offer on something that makes his version probable. This the accused can do by both successfully raising and proving competing version to the case of the complainant or by perforating the case of the complainant. Opportunity to do this arises for the accused at four stages: -
a. When the accused puts forth defence at the time of when his plea of defence as recorded after the substance of acquisition is explained to him u/s 251 Cr.P.C.
b. When the accused cross-examine the complainant pursuant to his application u/s 145(2) N.I. Act being allowed.
c. When the statement of the accused is recorded u/s 313 Cr.P.C.
d. When the defence witness was examined.
19. The stand taken by the accused at all these stages shall be examined to determine if the accused could raise a probable defence on the touchstone of benchmark set in the judgment as held by Hon'ble Supreme Court of India in Kumar Exports vs Sharma Carpets (2009)2 SCC 513
20. The judicial analysis at this stage is centered on whether the complainant has been able to make out the ingredient of Digitally signed by SEEMA SEEMA MEENA MEENA Date:
2025.03.02 16:21:54 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 13 of 23 Section 138 NI Act. Firstly, that a person drew a cheque on an account maintained by him with the banker and that such cheque when presented to the bank is returned by the bank unpaid. On the close scrutiny and appraisal of the original cheque in question bearing no. 650510 dated 28.09.2020 for sum of Rs. 5,00,000/- marked as Ex. CW1/B drawn on Vijaya Bank, Shahdara Branch, Delhi, it clearly transpires that the same had been issued and was dishonoured vide return memo dated 30.09.2020 with remarks "
Funds Insufficient" and the statements of the accused recorded u/s 251 Cr.P.C and Section 313 Cr.P.C. as defence, what comes out is that the accused has admitted cheque in question in the present case have been drawn from her account and it bears her signature. Hence the first ingredient has been fulfilled.
21. Secondly, the presentation of the cheque within three months is concerned, the same is satisfied upon the perusal of the cheques in question (Ex CW1/B) dated 28.09.2020, while the return memo (Ex.CW1/C) dated 30.09.2020. The presentation of the cheque and its eventual dishonour for the reason "Funds Insufficient" as specified in return memo (CW1/C) is not in dispute and same has been admitted by the accused in notice framed under Section 251 Cr.P.C. dated 09.09.2021 as well as in the statement of the accused recorded under section 313 Cr.P.C. Hence the second ingredient stands fulfilled.
22. Furthermore, another condition with regard to Section 138 NI Act is receiving of legal notice. Accused has denied the receiving of legal notice at the stage of notice framed under Section 251 Cr.P.C as well as during the recording of statement of accused u/s 313 Cr.P.C. This court is of the view that the Digitally signed SEEMA by SEEMA MEENA address on the legal notice once having been shown to be the MEENA 2025.03.02 Date:
16:22:00 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 14 of 23 correct address of accused and legal notice having been dispatched by registered AD, a presumption of due service arises in view of Section 27 of General Clause Act & Section 114 of Indian Evidence Act and now it is upon accused to prove that notice was not served upon him. Not even an iota of evidence has been brought on record by the accused to displace the presumption of due service. To the contrary, perusal of record shows that complainant has issued a legal demand notice to the accused and same was dispatched by way of speed post. The accused and has not substantiated her defence either by bringing forth relevant evidence as proof or by pointing out to such inconsistencies or contradictions in the case of the complainant which would make his defence probable. Therefore, the said defence is not proved. This Court places its reliance on CC Alavi Haji Vs. Palapatti Mohammad (Crl.)767/2007 wherein Hon'ble Supreme Court held that "where 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 proviso to section 138 Act stands complied with." Further, the above judgment also stated that "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 u/s 138 NI Act make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons. In the present case, 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." Therefore, in view of the discussion, the complainant has Digitally signed by SEEMA SEEMA MEENA remained successful to prove that the legal notice was sent to the MEENA Date:
2025.03.02 16:22:06 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 15 of 23 accused at his admitted address within stipulated period through speed post.
23. It is well settled law that once the execution of cheque is admitted, Section 139 of the NI Act mandates the drawing of the presumption that the cheque was issued in discharge of any debt or other liability. Reliance in this regard is placed on the recent case of Basalingappa v Mudibasappa (2019) 5 SCC 418. It is also pertinent to note that, as per the Rangappa vs Sri Mohan (2010) 11 SCC 441 passed by Hon'ble Supreme Court, the presumption mandated by the said legal provision is not just with respect to the existence of a debt or liability but rather the existence of a legally enforceable debt or liability.
24. Considering the above factual position, it is important to reproduce Sec.118(a) and Sec.139 of the N.I. Act here:
"Section 118(a) of the Act provides that until the contrary is proved, it shall be presumed that "that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration."
25. Further, Section 139 of the Act lays down that "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 Digitally 138 for the discharge, in whole or in part, of any debt or other signed by SEEMA SEEMA MEENA MEENA Date:
2025.03.02 16:22:13 liability." +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 16 of 23
26. The nature and scope of the abovementioned presumptions have been discussed in the cases of Hiten P. Dalal v Bratindranath Banerjee, (2002) 6 SCC 16 and Rangappa v Sri Mohan, (2010) 11 SCC 441 wherein it was observed by the Hon'ble Supreme Court of India that section 139 of NI Act, being a presumption of law, makes it mandatory for the Court to draw a presumption in every case where the foundational facts required raising such presumption have been successfully established by the complainant. The Court further held that the accused, against whom the presumption is raised, is not prevented from rebutting this presumption. This rebuttal, or rather the defence taken by the accused, the Court clarified, need not be conclusively established and the accused is required to only lead such evidence that causes the Court to either believe the defence to exist or consider its existence to be reasonably probable. Hence, the standard of proof for the accused is that of "preponderance of probability" and not "beyond reasonable doubt". The accused can successfully rebut the presumption raised against him by raising a probable defence or by discrediting or creating doubts in the case of the complainant. In order to do this, the accused may either lead evidence of his own or he can simply rely on the materials submitted by the complainant.
27. In the case of K.N. BeenaVs. Muniyappan AIR 2001 SC 2000, it was established as follows "In complaint u/s 138 the court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable, however, the burden of proving that the cheque has not been issued to the Digitally signed by SEEMA SEEMA MEENA complainant by the accused for the discharge of debt or MEENA Date:
2025.03.02 16:22:21 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 17 of 23 liability, lies on the accused". Thus, the statutory presumption has been raised in favour of the complainant; the burden of proof now lies upon the accused to rebut the statutory presumption as per the reverse onus of proof that now shifts upon the accused.
28. After analyzing the other ingredients of Section 138 NI Act, judicial scrutiny now centers on as whether the complainant has been able to satisfy that the cheque in question being issued for the discharge, in whole or in part, of any debt or liability. One point of consideration before is that the present complaint is not valid as the same is time-barred. It is matter of record that the loan was tendered to the husband of the accused in January 2016.
Whereas, the cheque in question was issued in September 2020. Thus, at the outset, the present complaint seems to be time- barred. However, it is pertinent to note that the cheque in question was issued by the accused in favour of the complaint for repayment of loan tendered to the husband of the accused by the complainant. Thus, it is imperative for the Court to examine whether an agreement between both the parties would resurrect the cause of action of filing a criminal complaint u/s 138 NI Act. In this regard Section 25(3) of Indian Contract Act becomes relevant, which states as follows:
"25. Agreement without consideration void, unless it is in writing and registered, or is a promise to com- pensate for something done, or is a promise to pay a debt barred by limitation law. --An agreement made without consideration is void, unless--
(3) it is a promise, made in writing and signed by the Digitally signed by SEEMA SEEMA MEENA person to be charged therewith, or by his agent gen- Date:
MEENA 2025.03.02 16:22:27 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 18 of 23 erally or specially authorized in that behalf, to pay wholly or in part of a debt of which the creditor might have enforced payment but for the law for the limita- tion of suits.
29. Section 25(3) of Indian Contract Act provides that any agreement without consideration is a valid agreement if it is made in writing and signed by the person or his agent for the payment of a debt which might be a time barred debt. It is pertinent to note that Hon'ble High Court of Delhi has dealt with the similar issue in case titled as "Rajeev Kumar vs. The State of Delhi & Anr. (2024)CRL.L.P. 212/2021 & CRL.M.A. 20429/2021. Hon'ble High Court of Delhi has held that furnishing of a cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under section 25(3) of ICA. Hon'ble High Court of Delhi has as following:
"A cheque as per section 6 of the NI Act is a "bill of exchange", which in turn is defined in section 5 of the NI Act as an instrument in writing signed by the maker directing payment of certain sum of money to a certain person. The maker of the cheque is the 'drawer' and the person to be paid is the 'drawee' as per section 7 of the NI Act.
a priori the cheque itself becomes a promise made in writing signed by the person to pay wholly or in part debt, which otherwise, may not be payable due to law of limitation. Per section 25(3) of the ICA, this would Digitally signed by SEEMA SEEMA MEENA be an agreement in itself. Section 139 presumption Date:
MEENA 2025.03.02 16:22:33 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 19 of 23 under the NI Act which presumes that the cheque is in discharge in whole or part liability of any debt or liability would therefore, actually come into play. The contrary position of the accused that no debt or liability subsists having extinguished by the law of limitation, would be then unmerited and untenable, since a fresh agreement comes into operation by the tendering of the cheque. By issuing the cheque, the drawer is acknowledging a legally enforceable liability and he ought not to be entitled to claim that the debt had become barred by limitation."
The furnishing of a cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under section 25(3) of ICA. The original debt therefore, through section 25(3) of the ICA, becomes legally enforceable to the extent of the amount the cheque has been given. This resonates also with practical considerations. Persons, who have chosen to escape liability, can draw a cheque, in order to clear an earlier debt upon persuasion by the creditor. By the act of drawing a cheque, the promisor i.e. the drawer, is effectively stating that he has a liability to pay the drawee. Drawing of the cheque in itself is acknowledgment of a debt or liability. It is the resurrection or the revival of the prior debt which would trigger the provisions under section 138 of NI Act. To deny a complainant/drawee of invoking the Digitally signed by SEEMA SEEMA MEENA penal provisions under section 138 of NI Act, despite MEENA Date:
2025.03.02 16:22:48 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 20 of 23 the categorical premise of section 25(3) of the ICA recognizing a fresh agreement to pay, would be an unfortunate disentitlement.
30. In present case, it is not in dispute that the cheque in question was signed by the accused. Thus, the execution of cheque is proved. As discussed, the accused has admitted that the factum loan of Rs. 5,00,000/- tendered by the complainant to the husband of the accused. In view of this Court, the accused has given contradictory statement in her evidence. She has stated that she did not know the complainant. Whereas, in her defence, she admitted that the complainant had given loan to her husband and the complainant also visited her house to meet her husband.
Thus, such variation to show that she did not know the complainant is not tenable. Further, initially, accused stated that she is not aware of any loan transaction took place between the said persons. However, she contradicted herself in evidence, wherein she has admitted that her husband had taken of Rs. 5,00,000/- from the complainant and she also admitted that loan agreement vide Mark CW1/A was executed between the said persons. Thus, legal liability to repay the loan of Rs. 5,00,000/- is successfully shown by the complainant.
31. The accused has also taken contradictory stand. She has stated that has she no clue as to how the cheque in question came in possession of the complainant. On contrary, the accused further took the plea that the cheque in question was misused and handed over by her husband to the complainant without her consent. It is to be noted that the accused has not examined her husband to prove said alleged fact. Moreover, she came to Digitally signed by SEEMA SEEMA MEENA knowledge of dishonor of cheque in question through the MEENA Date:
2025.03.02 16:22:56 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 21 of 23 message received from the concerned bank, which shows that she was made aware of the fact that a cheque issued by her has been presented by someone and the same was dishonored. Despite knowledge, the accused failed to take any action qua her husband or the person who presented the said cheque. Throughout the course of trial, the accused did not whisper anything about the recourse she took to procure back cheque in question from the complainant either personally or through her husband. Further, she also did not file any complaint before the police or the concerned bank regarding misuse of cheque. There is no other evidence on record to prove the allegations/defence of the accused. The complaint has remained successful to transpire the confidence of this Court that the accused issued cheque in favour of the complainant for the repayment of loan of Rs. 5,00,000/- given to the husband of the accused by the complainant.
32. As discussed in Rajeev Kumar case (ibid),the issuance of a cheque becomes a promise to pay under Section 25(3) of the Indian Contract Act. The delivery of the cheque to the drawee creates a right to recover the money. On the cheque being dishonoured the person concerned becomes liable for prosecution. The execution of the cheque is an acknowledgment of a legally enforceable liability. As per Section 25(3) of ICA, a promise can be made even in a case where the limitation for recovery of the amount has already expired. Such a promise has to be in writing. It can be in the form of a cheque. When a cheque is delivered to the payee, the person is entitled to present the cheque to the bank and seek payment. In such an event, if the cheque is dishonoured, the liability under Section 138 NI Act Digitally signed by SEEMA SEEMA MEENA would arise. In present case, the cheque in question issued by the MEENA Date:
2025.03.02 16:23:03 +0530 CC NO.750/2020 Desh Deepak Vs. Reena Page 22 of 23 accused forms a signed agreement for the repayment of loan of Rs. 5,00,000/- tendered by the complainant to husband of the accused. Furthermore, the accused acted as an agent of her husband for discharge legal liability. Thus, it is not permissible for the accused to take the plea that the present complaint is barred by law of limitation. In view of this, drawing of the cheque in itself is acknowledgment of a debt or liability. It is the resurrection or the revival of the prior debt which would trigger the provisions under section 138 of NI Act.
33. In view of the above discussion, issuance of the cheque in question of a time barred debt brings back the debt in existence itselfby a fresh agreement by virtue of provisions under section 25(3) of ICA and original debt becomes legally recoverable to the extent of the amount mentioned in cheque in question. As discussed, the accused has admitted the loan taken by her husband from the complainant and by an act of drawing the cheque in question; the accused has acknowledged the debt or liability towards the complainant. The defence taken by the accused appears to be only a bare denial and does not measure up to the standard of "preponderance of probability". This Court is of the considered opinion that the complainant has successfully satisfied all the ingredients of offence under section 138 NI Act and the accused has failed to rebut the statutory presumptions raised against him either based on the material available on record or by adducing cogent evidence.
34. The complainant has with the aid of evidence led a presumption of legal liability under Section 118 read with Digitally signed Section 139 of N. I. Act and has successfully proved the basic SEEMA by SEEMA MEENA Date:
MEENA 2025.03.02 ingredients of offence under section 138 N. I Act.
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35. Therefore, Accused Smt. Reena w/o Sh. Lenin is, thus, convicted for the offence under section 138 Negotiable Instrument Act.
36. Let the convict be heard separately on quantum of sentence.
37. Let a copy of this judgment be given to the convict free of cost.
JUDGMENT PRONOUNCED IN THE OPEN COURT ON 03.03.2025. IT IS CERTIFIED THAT THIS JUDGMENT RUNS INTO TWENTY-THREE PAGES AND EACH BEARS UNDERSIGNED SIGNATURE Digitally signed by SEEMA SEEMA MEENA MEENA Date:
2025.03.02 16:23:39 +0530 (SEEMA MEENA) JMFC (NI ACT) DIGITAL COURT-04 SOUTH WEST, DWARKA COURTS, NEW DELHI.
CC NO.750/2020 Desh Deepak Vs. Reena