Delhi District Court
Sukh Sareen vs Vivek Mishra on 13 October, 2025
In The Court of Sh. Divyam Lila, Municipal Magistrate, East, Delhi
JUDGEMENT
DLETDLET020037862017 CT CASE: CT Cases/1790/2017 Date of Filing : 07-06-2017 Date of Registration : 08-06-2017 Date of Disposal : 13-10-2025 ________________________________________________________________ Mrs. Sukh Sareen, W/o Sh. N.K. Vinay, D/o Sh. Victor, R/o H. No. 8/245, Khichripur, Delhi-110091 ...(Complainant) Versus Digitally signed by Sh. Vivek Mishra, S/o Late Sh. J.K. Mishra, DIVYAM DIVYAM LILA R/o TM1, Plot no. 67, Minal Apartment, Sec.-5, LILA Date:
2025.10.13 16:09:45 Rajender Nagar, Ghaziabad, UP. ...(Accused) +0530 _____________________________________________________ Advocate appearing for Complainant: Sh. Rahul Meena Advocate appearing for the Accused: Sh. Poonam Shahi Offence punishable under : Section 138 of Negotiable Instruments Act, 1881 Final Order : Conviction of accused under Section 138 NI Act ________________________________________________________________
-:Index of Judgment:-
1. Introduction:-.................................................................................................. 2
2. Brief Facts of the Case:-................................................................................. 2
3. Notice Framed on the Accused and Plea of the Accused.............................3
4. Issues for Determination:............................................................................... 4
5. Evidence on Record........................................................................................ 4
6. Legal Position:.................................................................................................8
7. Arguments of the parties:.............................................................................11
8. Analysis and Findings:................................................................................. 14
10. Conclusion and Reason for decision:........................................................ 25
11. Order:...........................................................................................................25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi
1. Introduction:-
a. This judgement arises out of a complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act") by the complainant against the accused for dishonour of cheque based on the trust based/ friendly loan.
2. Brief Facts of the Case:-
a. The case of the complainant in brief is that an alleged friendly loan transaction between the parties occurred, facilitated through the long-standing friendship between the accused and the complainant's husband, Sh. N.K. Vinay. As per the complainant's averments, in January 2017, the accused approached the complainant's husband seeking financial assistance on account of personal exigency and borrowed a sum of Rs. 2,75,000/- in cash on 08.01.2017. An agreement memorializing the loan was also executed on the same date, duly signed by the complainant, the accused, the complainant's husband, and a witness, Sh. Sudhanshu Kothiyal.
b. In security thereof, the accused issued two cheques dated 08.01.2017: one for Rs. 2,00,000/- (Cheque No. 038407, drawn on ICICI Bank, Sector-18, Noida) and another for Rs. 75,000/-
(Cheque No. 832274, drawn on State Bank of India, Vasundhara, Ghaziabad) (hereinafter called as "cheques in question"). Upon the expiry of the agreed repayment period of two months, the complainant demanded repayment, but the accused deferred the same citing adverse circumstances. The cheques were presented for encashment at the complainant's bank (State Bank of India, Ghazipur Branch, Delhi) on 05.04.2017 and 20.04.2017 respectively, only to be dishonoured with the remark "Payment Stopped by Drawer" on 10.04.2017 and the second with "Funds CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 2/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi Insufficient" on 20.04.2017. A statutory demand notice dated 26.04.2017 was issued through counsel and served upon the accused on 04.05.2017, to which no response or payment was forthcoming within the prescribed 15-day period. Aggrieved thereby, the complainant filed the present complaint. c. Cognizance of the offence was taken and summons were issued to the accused. In support of her case, the complainant examined herself as CW-1 and her husband, Sh. N.K. Vinay, as CW-2. The accused, in his statement under Section 313 CrPC, denied liability and led defense evidence by examining himself as DW-1 No other witnesses were examined by either side. I have heard the arguments advanced by the learned counsel for both sides and perused the record. The matter is now taken up for final adjudication on merits.
3. Notice Framed on the Accused and Plea of the Accused a. The accused was served notice under Section 251 Cr.P.C and pleaded "not guilty".
b. He stated that he knew the husband of the complainant who used to work with me and he never had any transaction with the complainant. These signed cheques were kept in his home. The husband of the complainant used to visit his home and the complainant was aware of the signed cheques. The complainant took his cheques and has misused the same. He did not lodge any police complaint regarding the cheques and he directed the bank to stop payment when I became aware of missing cheque no. 038407. I do not have any liability towards the complainant.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 3/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi
4. Issues for Determination:
a. The cheque was issued in discharge of a legally enforceable debt or liability.?
b. The cheque was presented within the period of validity of three months?.
c. The cheque was dishonoured for insufficiency of funds.? d. A legal notice was duly served.?
e. The accused failed to make payment within the prescribed period. f. The accused has successfully rebutted the statutory presumption under Sections 118 and 139 of the NI Act.?
g. Whether the accused no.1 company was struck off and if the same would have any effect liability and outcome of the offence.?
5. Evidence on Record a. Complainant's Evidence:
i. In support of his case, the complainant examined herself as CW-1 by way of affidavit, wherein she reiterated the contents of the complaints and supported the case of the complainant. In cross-examination she stated that she knew the accused since 2013 (4-5 years prior to testimony), through his long-term work association with her husband. An agreement for the loan was prepared on January 8, 2017, signed by her, the accused, her husband, and witness Sudhanshu Kothiyal. She did not place the agreement on record initially, claiming it was lost, and no police complaint was filed for its loss. CW-1 confirmed advancing Rs. 2,75,000 in cash on January 8, 2017, due to the accused's personal needs, with repayment assured within two months.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 4/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi No interest was charged. The accused needed the money to start some work (exact nature unknown). No separate receipt was taken beyond the cheques and lost agreement. CW-1 also stated that amid November 2016 demonetization, funds were arranged from her husband's sale of agricultural land in Bihar (Vaishali Dist., Village Chaksarifa) for approx Rs. 3 lakhs in December 2016. She offered to produce property documents later. Some amount (approx Rs. 1,10,000) was received via bank transfers in installments; the rest in cash (Rs. 100 notes). Withdrawals from her SBI Mayur Vihar account and husband's probable Canara Bank account totaled approx Rs. 1,10,000 over multiple days (not a single withdrawal, countering limits). Produced bank statements/passbooks (Marked Ex. CW1/X colly. 9 pages; CW1/Y colly. 2 pages; CW1/Z colly. 3 pages) showing small withdrawals (e.g., Rs. 4,500, Rs. 2,000) from December 19, 2016, to January 9, 2017. She did not file ITR and was unaware of rules requiring reporting cash transactions over Rs. 20,000. She clarified that "arranged from somewhere" in complaint/affidavit meant the property sale; denied it being an afterthought. Did not recall if notes were old or new. Denied not giving the loan, absence of accused's signatures beyond cheques, misuse of blank cheques by her husband, or false deposition. Cheques were handed over at her house on the loan date. Affirmed the 10-year friendship in the legal notice was correct, despite her initial testimony of 4-5 years. ii. CW-2 (Sh. Navneet Kumar Vinay): CW-2 tendered his evidence by way of affidavit (Ex. CW-2/A), bearing his signatures at points A and B. He produced the loan CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 5/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi agreement between his wife and the accused (Ex. CW2/1, colly. 3 pages), to which he was a witness; his signature appears at point A thereon. CW-2 was cross-examined by the accused's counsel, wherein he confirmed the plot (agricultural land in Bihar) was sold on November 8, 2016 that was the day demonetization was announced. Payments were partly via bank transfer and partly in Rs. 100 notes cash (denied receiving only Rs. 100 notes or incomplete consideration). Received full amount ~one month later per mutual understanding; no amount before registry. No other receipt/document beyond Ex. CW2/1 was prepared for the loan. CW-2 stated that he was unaware if the notary recorded cheque numbers in their register for attestation. Denied the accused's signature on Ex. CW2/1 being obtained on a blank document or later converted; no loan was advanced without receipt apart from the agreement. CW-1 deposed that he had friendly relations with the accused (former colleague). The complaint was framed per their counsel's instructions. He is a graduate and aware of affidavit contents. Does not know if the accused received the legal notice. Denied the accused having no liability. CW-1 further stated that he gave a loan given in cash (Rs. 100 notes) due to faith in the accused and available cash from the sale (received by December 2016). The accused approached in the first week of January 2017. Denied false deposition.
b. Statement of accused: The statement of the accused under Section 313 Cr.P.C. was recorded wherein the accused admitted signing the cheques, which belong to him, but denied filling the particulars. He denied taking any loan or transaction; claimed complainant's CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 6/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi husband (former colleague till 2013) approached in January 2017 for cash-to-cheque swap (Rs. 2 lakhs cash for cheque); never received cash or issued cheques; pre-signed cheques (4 total) kept in home drawer, misplaced/stolen during March 2017 house shift, possibly by husband; no liability. He denied receipt of legal notice;
vacated address on 04.03.2017 before service. He also claimed that he was abducted on September 21, 2017, in Ghaziabad; recovered September 29, 2017 in Noida and forced to sign blank papers/cheques, misused here. He wished to lead defence evidence. c. Defence Evidence: Accused examined only one witness, DW-1, as himself and he denied guilt and stated he took no loan from the complainant, whom he did not know personally, though he had worked with her husband for 10 years. In January 2017, the husband called offering Rs. 2,00,000 in cash, prompting him to visit on January 8 with a cheque; he signed the agreement (Ex. CW2/1) without questioning it, but refused the bundle of old Rs. 500 notes as invalid post-demonetization, took back the cheque, and left the agreement behind. After shifting homes in March 2017, he claimed the husband, who visited and knew the layout, stole the cheques from his drawer (including the Rs. 75,000 one, part of four misplaced cheques). He learned of the misuse through a court notice, alleged the agreement was forged, and produced a mobile photo of the "original" version (Ex. DW1/1, 2 pages) to demonstrate manipulation, asserting no liability as the cheques were misused. In cross-examination, the accused clarified that the husband visited on January 5 offering cash for a cheque and met him physically for the January 8 house visit; he admitted his signatures on the agreement (Ex. CW2/1) and both cheques (Ex. CW1/A), including filling the dates (08.01.2017) himself. He CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 7/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi denied receiving the notice, having left the address in March 2017, and discovered the missing cheques post-shift while sorting papers; he stopped payment online for No. 038407 and via letter to SBI's Vasundhara Manager for No. 832274, but had no copy or photo of the letter. He confirmed a habit of keeping pre-signed cheques at home and filed no police complaint, relying only on bank stops. Case details came via verbal update to his brother in Basti, causing him to miss the first hearing due to short notice. He signed without querying the purpose due to long-term trust with the husband, denying false testimony or issuing the cheques for a loan.
6. Legal Position:
a. In order to constitute an offence under Section 138 of the Negotiable Instruments Act, 1881, the following essential elements must be satisfied as per the judgement in Kusum Ingots & Alloys Ltd. Vs. Pennar Peterson Securities Ltd. AIR 2000 SC 954 ,both in the complaint and the evidence presented by the complainant:
i. Drawing of the Cheque: The accused must have drawn a cheque on an account maintained by them, for the payment of a legally enforceable debt or liability to another person. ii. Timely Presentation: The cheque must be presented to the bank for payment within three months from the date on which it was drawn, or within the period of its validity, whichever is earlier.
iii. Dishonour of the Cheque: The cheque must be dishonoured by the bank due to either insufficient funds in the account or because the amount exceeds the arrangement made with the bank.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 8/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi iv. Notice of Demand: The payee or holder of the cheque must issue a written demand for payment to the drawer, within 30 days of receiving information from the bank regarding the dishonour.
v. Failure to Pay: The drawer must fail to make payment within 15 days of receiving the notice of demand.
b. Additionally, the provisions of Sections 139 and 118 of the Act further strengthen the case for the complainant. Section 139 creates a presumption in favour of the holder of the cheque, mandating that the court shall presume, unless proven otherwise, that the cheque was issued for the discharge of a debt or other liability. Section 118, on the other hand, provides that there is a presumption that every negotiable instrument, including a cheque, was made for consideration, and that it was transferred for consideration. c. In the case of Basalingappa v. Mudibasappa (2019) 5 SCC 418;, the Hon'ble Supreme Court has laid down that once the execution of the cheque is admitted, Section 139 imposes a rebuttable presumption in favour of the complainant, establishing that the cheque was issued for the discharge of a debt or liability. The presumption is rebuttable and the accused has the opportunity to raise a probable defence. The standard of proof for rebutting this presumption is based on the preponderance of probabilities. d. The court further held that it is not mandatory for the accused to enter the witness box to prove their defence. They may rely on the evidence presented by the complainant or any other available materials. The onus to rebut the presumption lies on the accused, but it is important to note that this is an evidentiary burden, not a persuasive one.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 9/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi e. Thus, Section 138 operates on the principle of reverse onus of proof - once the complainant proves the essential elements of dishonour, the burden shifts to the accused to raise a plausible defence. The presumption of guilt is strong, but not irrebuttable, and the accused is entitled to challenge it through a preponderance of evidence.
f. In the backdrop of legal position as enunciated above, it is to be examined by this Court that whether the accused on a scale of preponderance of probabilities has been able to rebut the presumption which has been raised against him and in favour of the complainant, or has been able to demolish the case of the complainant to such extent so as to shift the onus placed upon the accused again on the complainant. As held by Hon'ble Supreme Court of India in case of Kumar Exports vs Sharma Carpets (2009) 2 SCC 513, the accused can either prove the non−existence of the consideration and debt by direct evidence or by bringing on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt either did not exist or their non−existence was so probable that a prudent man may act upon the plea that they did not exist. If the Court comes to the conclusion that the accused has not been able to rebut the presumption raised against him by failing to bring on record direct evidence or by even failing to sufficiently perforate the case of the complainant, the complainant is entitled to a decision in his favour.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 10/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi
7. Arguments of the parties:
a. Arguments by Ld. Counsel for the Complainant: The learned counsel for the complainant submitted that the case is squarely covered under Section 138 of the Negotiable Instruments Act, 1881, and the accused is liable for the dishonour of the cheque. The key arguments advanced by the counsel urged the court to convict the accused, are as follows:
i. Proof of Loan Transaction and Consideration: The complainant advanced Rs. 2,75,000/- as a friendly, interest-free loan on 08.01.2017, evidenced by the duly executed loan agreement (Ex. CW2/1, 3 pages) signed by the complainant, accused, her husband (CW-2 as witness), and Sudhanshu Kothiyal. CW-1 and CW-2 consistently deposed to the accused's approach due to personal needs for starting work, with repayment assured within two months. Bank statements (Ex. CW1/X, Y, Z colly.) corroborate the source of funds from CW-2's December 2016 Bihar land sale. ii. Accused's Tacit Admission of Loan and Inconsistencies:
During cross-examination of CW-1, the accused's counsel suggested a 5% interest rate, which was denied, but the suggestion itself tacitly admits the existence of a loan transaction. The accused, in his DW-1 chief and Section 313 statement, claimed a "cash-for-cheque" proposal for Rs. 2 lakhs but could not explain why he signed the full Rs. 2,75,000 loan agreement (Ex. CW2/1) without questioning its purpose, citing mere "trust" from a 10-year association (ended 2013), rendering his version implausible and self-contradictory.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 11/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi iii. Failure to Prove Cheque Theft/Misuse Defense: The accused's core defense of theft during his March 2017 house shift lacks foundation as no police complaint/FIR was filed for the alleged theft of four pre-signed blank cheques (admitted habit in DW-1 cross), no bank complaint records or stop-payment acknowledgments produced (only verbal claims), and no criminal prosecution (e.g., under Sections 403/420 IPC) initiated against CW-2 for misuse. This inaction is imprudent for a genuine victim and belies the claim.
iv. Unexplained Circumstances of Alleged Theft and Proposal:
The accused vaguely alleged CW-2 "visited" and "knew the drawer" to steal cheques but provided no specifics (dates, witnesses, or inventory of other misplaced items), making the modus operandi speculative. Similarly, he failed to explain agreeing to the "cash-for-cheque" proposal (old Rs. 500 notes, invalid post-demonetization) by signing the loan agreement without demur, or why he left the agreement behind while taking back the cheque; exposing the defense as an afterthought.
v. No Challenge to Complainant's Evidence: The accused did not question CW-1/CW-2 on the loan agreement's witness signatures, notary details, or fund sources (e.g., property sale documents offered by CW-1), nor cross-examined on the Rs. 2 lakhs "proposal" circumstances, tacitly accepting the transaction's validity.
b. Arguments by Ld. Counsel for the Accused : The learned counsel for the accused vehemently argued that the complainant has failed to prove the existence of a legally enforceable debt, and CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 12/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi the case is based on a fabricated narrative to extort money. The key arguments advanced by the counsel, while praying for the acquittal of the accused, are as follows:
i. Rebuttal of Presumption under Section 139 NI Act: While the accused admits his signatures and the dates on the cheques (Ex. CW1/A colly.) during DW-1 cross-examination, this alone does not prove a legally enforceable debt. His detailed testimony as DW-1 and under Section 313 CrPC establishes that the cheques were pre-signed blanks kept in a home drawer (admitted habit) and stolen/misused by CW-2 during the March 2017 house shift, rebutting the presumption with preponderance of probability. The complainant's failure to disprove misuse shifts the balance in favor of acquittal.
ii. No Loan Advanced; Rejected "Cash-for-Cheque" Proposal:
The accused consistently denied receiving Rs. 2,75,000/- or any consideration, deposing in DW-1 chief that CW-2 initiated a proposal on January 5, 2017, for exchanging invalid old Rs. 500 notes (post-demonetization) for a Rs. 2,00,000 cheque, which he rejected on January 8 by refusing the cash and retrieving the cheque. He signed the agreement (Ex. CW2/1) in trust without reading it fully, but left it behind inadvertently explaining his presence at the house without implying a loan. CW-1 and CW-2's vague "personal needs" for the accused's "work" lack specificity, rendering the transaction fictitious.
iii. Forged and Manipulated Loan Agreement: The agreement (Ex. CW2/1) is unreliable, as CW-1 initially deposed it was "lost" with no police complaint, only later produced by CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 13/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi CW-2 without notary register verification. The accused's self-produced mobile photo of the "original" (Ex. DW1/1, 2 pages, taken January 8, 2017) demonstrates post-signature manipulation (e.g., added loan details). Neither CW-1 nor CW-2 explained the witness Sudhanshu Kothiyal's absence or verified signatures, exposing fabrication to bolster a non-existent loan.
iv. Unpursued Theft Claim Consistent with Circumstances:
While no police complaint was filed immediately, the accused's prompt bank stops and house-shift chaos (many helpers, misplaced items) explain the delay in formal action. CW-2's admitted "friendly relations" and visits provided opportunity for theft from the known drawer, with no need for prosecution as the misuse surfaced via court notice (learned via brother's verbal info in Basti, missing first hearing due to logistics). The complainant's failure to rebut access or motive strengthens the misuse narrative.
8. Analysis and Findings:
a. Issue 1 - Issuance of Cheque: This ingredient pertains to the issuance of the cheque in question itself. The Accused person had in his notice of accusation admitted the signature on the cheques in question. In the cross-examination as DW-1, the accused has also admitted filling the dates on the cheques in question. It is observed that the plea of the accused that the particulars of the cheque in question were not filled by him is of no help; as the signature of the accused on the cheque is not disputed. Reliance can be placed, at this juncture, wherein Hon'ble High Court of Delhi in Ravi Chopra Vs. State and Anr. (2008) 102DRJ147, held: "Section 20 NI Act talks of "inchoate stamped instruments" and states that if a person CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 14/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi signs and delivers a paper stamped in accordance with the law and "either wholly blank or have written thereon an incomplete negotiable instrument" such person thereby gives prima facie authority to the holder thereof "to make or complete as the case may be upon it, a negotiable instrument for any amount specified therein and not exceeding the amount covered by the stamp." "A collective reading of the above provisions shows that even under the scheme of the NI Act it is possible for the drawer of a cheque to give a blank cheque signed by him to the payee and consent either impliedly or expressly to the said cheque being filled up at a subsequent point in time and presented for payment by the drawee. There is no provision in the NI Act which defines the difference in the handwriting or the ink pertaining to the material particulars filled up in comparison with the signature thereon as constituting a 'material alteration' for the pur- poses of Section 87 NI Act. What, however, is essential is that the cheque must have been signed by the drawer." Further, in Bir singh Vs. Mukesh Kumar, (2019) 4 SCC 197 it was held that:-"It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted." Hence, In the present case, Prima facie the ingredient that the cheque was issued to the complainant has been satisfied as the accused admitted his signature on the cheque and the account being maintained by him. Having admitted the basic ingredient, the presumption is drawn against the accused and now the accused would have to prove that the cheque in question was not issued by him; by way of rebuttal of the presumption drawn against him. Whether the accused was able to successfully rebut the adverse CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 15/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi presumption is dealt in detail in the issue no. 6; However, the issue no. 1 is decided in favour of the complainant and the presumption is drawn against the accused.
b. Issue 2 - Presentation within Validity: This ingredient stands satisfied on a bare perusal of the cheque in question and the return memo being presented within the period of validity. The cheque is also not dishonoured with the remark "instrument stale"; as the cheque has been returned dishonoured with a return memos noting the reason for return as "fund Insufficient" and "Payment stopped by Drawer". The defence has led no evidence to contradict the same and hence, this ingredient stands fulfilled as against the accused. Hence, this issue is also decided in favour of the complainant and the cheque has been proved to be dishonoured within the period of validity.
c. Issue 3 - Dishonour of Cheque: The bank return memo records state that the cheque in question has been returned dishonoured for the reason "fund Insufficient" and "Payment stopped by Drawer". The defence has led no evidence to controvert the same and hence, this ingredient also stands satisfied as against the accused. Hence, this issue is also decided in favour of the complainant and the cheque has been proved to be dishonoured. d. Issue 4 - Legal Notice: Service of the legal notice is the legal fiction which constitutes the major ingredient of the offence u/s-138 NI Act. The objective of serving legal demand notice to the Accused before filing the case is to allow the accused to make the payment. As regards the service of legal demand notice, the Complainant has sent the same to the accused. The accused has denied receiving the legal demand notice in his notice of accusation u/s 251 Cr.P.C and in the statement of accused u/s 313 Cr.P.C read CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 16/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi with Sec-281 Cr.P.C. However, the accused has also admitted the address on legal notice being correct. The accused has also not led any positive evidence to prove that the legal notice was not served on her, nor any evidence to prove that the address on the legal notice is correct. Thus, in absence of any evidence against the presumption of service and admission of the accused persons with respect to receipt of the legal notice, this issue is also decided in favour of the complainant and the service of legal notice has been proved.
e. Issue 5 - Non-Payment within 15 Days: In the present case, after the issue no. 4 is against the accused, the case of the accused is that she does not have any liability towards the complainant and his cheque was misused. Hence, it is an admitted position that no payment for the cheque in question was made and thus this ingredient of non-payment within 15 days also stands satisfied. Hence, this issue is also decided in favour of the complainant and the cheque has been proved to be not paid by the accused despite service of notice.
9. Issue 6 : Defence of the Accused and Rebuttal of Presumption: The above ingredients being satisfied, the court would have to look at the defence brought out by the accused by way of cross examination of the complainant's evidence and the rebuttal by way of defence evidence. In the present case, the accused had made following attempts towards rebuttal of the statutory presumption against him; and with the following observations, it is held that the issue no. 6 is decided against the accused and in favour of the complainant:
a. Insufficiency of the accused's challenge to the loan transaction: The accused's defense failed to mount a robust or credible assault CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 17/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi on the existence of the loan transaction itself. While he outright denied receiving any funds (stating in his examination under Section 313 CrPC and as DW-1 that "I did not take even one Rupee as loan from the complainant" and no transaction occurred), his narrative was riddled with contradictions that undermined its veracity. For instance, he admitted visiting the complainant's residence on January 8, 2017, with a pre-signed cheque for Rs. 2,00,000, purportedly for a "cash-to-cheque swap" at the behest of the complainant's husband. This admission, coupled with his concession that he signed the loan agreement (Ex. CW2/1) without questioning its contents, effectively corroborated the complainant's version of events. In the absence of concrete evidence to disprove the transaction, the presumption under Section 139 NI Act (that the cheque was issued for a valid consideration) remained unrebutted, tilting the balance in favor of conviction. The shortcomings of the accused in disproving the loan transaction is reflected as follows: i. Tacit Admission of Loan on 5% Interest via Defense Suggestion: A critical lapse in the accused's defense was his tacit endorsement of the loan's existence through the cross-examination strategy employed by his counsel. During the cross-examination of CW-1 (Sukh Sareen), the defense suggested: "It is wrong to suggest that interest of 5% was fixed." The complainant firmly denied any interest, affirming the loan was interest-free as a gesture of friendship. However, the accused, in his own testimony as DW-1, did not expressly refute this suggestion or clarify the terms. Instead, his narrative of a proposed Rs. 2,00,000 cash exchange implied an underlying financial arrangement, which the court interpreted as a veiled acknowledgment of CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 18/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi the debt. It is settled law that the suggestion-based admission, by the counsel of the accused, also binds the accused. By introducing the 5% interest angle without disowning the transaction's financial nature, the defense inadvertently affirmed the loan's legitimacy, weakening the accused's blanket denial and reinforcing the statutory presumption of liability.
ii. Admission of Proposal for Rs. 2 Lakhs Loan from Complainant's Husband: The accused's testimony under Section 313 CrPC and as DW-1 explicitly referenced a "proposal" from the complainant's husband (N.K. Vinay) to provide Rs. 2,00,000 in cash in exchange for a cheque. He stated: "In January 2017, I received a call from Sh. N.K. Vinay that he has cash of Rs. 2,00,000/- and asked me to bring a cheque of Rs. 2,00,000/-." Further, in cross-examination, he confirmed visiting the residence on January 8, 2017, and signing the cheques and agreement. This self-incriminating detail directly mirrored the complainant's account of the loan advance on that date, albeit with a twisted explanation (refusal of "old Rs. 500 notes" due to demonetization). This is a tacit admission of the transaction's occurrence, merely disputing the modality. By framing it as a "proposal to take loan," the accused inadvertently validated the debt's existence, failing to explain why he would prepare and sign security instruments without any underlying obligation. The conduct of the accused is also improbable and does not reflect an act of a prudent person. This inconsistency eroded his defense, as it aligned CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 19/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi more closely with the prosecution's narrative than his own claim of misuse.
iii. Failure to Challenge the Loan Document's Authenticity: The loan agreement (Ex. CW2/1), a three-page notarized document signed by the complainant, accused, her husband, and witness Sudhanshu Kothiyal, formed the bedrock of the prosecution's case. Despite admitting his signature thereon during cross-examination ("It is correct that the sign on agreement exhibited 2/1 is mine"), the accused merely alleged it was "forged and fabricated" and produced a mobile photo (Ex. DW1/1) purporting to show "manipulation." He offered no forensic analysis, handwriting expert opinion, or challenge to the witnesses' signatures or the notary's attestation. Critically, he did not summon the notary to question the register entry or cross-examine the attesting witness (Sudhanshu Kothiyal). Nor did he probe CW-2 (N.K. Vinay) on the document's preparation. It appears as a deliberate omission, as the accused's superficial attack lacks substantive evidence and failed to displace the agreement's evidentiary weight, thereby affirming the loan's enforceability.
iv. No Doubt Raised on the Source of Funds: The complainant's testimony detailed the loan's funding from the sale of agricultural land in Bihar (December 2016, post-demonetization), with Rs. 1,10,000 withdrawn via bank installments and the balance in valid Rs. 100 notes. Despite opportunities in cross-examination, the accused raised no specific doubt on this source by way of neither questioning the land sale documents nor disputing the transaction itself.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 20/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi By not contesting this facet, the accused allowed the presumption of a valid consideration to stand unassailed. v. Failure to Question the Complainant on the Loan and Surrounding Circumstances: Throughout the trial, the accused's cross-examination of CW-1 was perfunctory, avoiding direct interrogation on the Rs. 2,00,000 loan specifics or contextual circumstances (e.g., the accused's "dire need" as pleaded, the two-month repayment assurance, or the handover at the residence). Questions focused narrowly on demonetization logistics and cheque misuse, without eliciting contradictions on the transaction's core. Similarly, in his Section 313 statement and DW-1 testimony, he did not confront the complainant's narrative head-on, such as by asking why she (not her husband) was the nominal lender. This as a strategic lapse under Section 138 NI Act jurisprudence , where the accused bears the burden to rebut presumptions through pointed evidence. The absence of such probing left the complainant's account intact, leading to the conclusion that the loan was advanced as alleged. b. Failure of Accused to Prove Defense of Cheque Theft and Misuse: The accused has raised a specific defense alleging that the subject cheques (No. 038407 for Rs. 2,00,000 and No. 832274 for Rs. 75,000) were stolen or misplaced from his residence during a house shift in March 2017, and subsequently misused by the complainant's husband (Sh. N.K. Vinay) without his consent or knowledge. He further claimed that these were part of four pre-signed blank cheques kept in a drawer at home, and that the entire transaction stemmed from a "cash-for-cheque" proposal initiated by the complainant's husband, which he rejected by not CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 21/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi accepting the invalid old currency notes post-demonetization. However, the accused's defense fails on multiple evidentiary and logical grounds, rendering it unsubstantiated and unreliable. The key infirmities are outlined below:
i. Absence of Formal Complaints or Prosecution for Cheque Theft/Misuse: The accused categorically admitted in cross-examination that no police complaint was lodged regarding the alleged theft or loss of the cheques, despite claiming they were stolen during the house relocation. This omission is fatal, as a prudent person facing potential financial fraud would immediately report such an incident to the authorities to safeguard their interests and create a contemporaneous record. The lack of any FIR or police documentation undermines the credibility of the theft narrative, especially since the accused only "came to know"
of the misuse upon receiving court notice months later (via verbal information to his brother). Similarly, while the accused claimed to have stopped payment on the cheques via online mode for Cheque No. 038407 (ICICI Bank) and a written letter to the State Bank of India (Vasundhara Branch) for Cheque No. 832274; no supporting evidence, such as bank acknowledgments, stop-payment receipts, or copies of the letter, was produced on record. The accused explicitly stated he had "no record or photo" of the letter, which further erodes the defense's probative value. Critically, the accused initiated no criminal prosecution (e.g., under Sections 403/420 IPC for criminal breach of trust or cheating) against the complainant or her husband for the alleged misuse of the cheques. This inaction is inconsistent with the gravity of the CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 22/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi accusation and suggests the defense was an afterthought, rather than a genuine grievance pursued contemporaneously. The accused admitted in cross-examination to a "habit" of keeping pre-signed blank cheques in his home drawer, a practice that is inherently risky and contrary to banking prudence. However, he offered no rationale for this habit such as professional necessity or lack of alternative nor did he explain safeguards taken to prevent unauthorized access. This unexplained vulnerability weakens the theft claim, as it portrays the accused as negligent, making it easier for the story of theft to appear fabricated to evade liability. ii. Inadequate Explanation of the "Cash-for-Cheque" Proposal Defense: The accused's version states that the complainant's husband approached him in early January 2017 with a proposal to exchange Rs. 2,00,000 in cash (allegedly old Rs. 500 notes) for a blank cheque, purportedly for some account transfer. He claims he signed an agreement (Ex. CW2/1) without questioning its purpose, relying on "trust" from their 10-year professional association (till 2013), but refused the cash as invalid post-demonetization and left with the cheque. This account is riddled with inconsistencies and lacks corroboration. The accused could not explain why he agreed to the proposal at all, despite admitting it involved handing over a signed cheque without receiving value or why he signed the agreement (detailing a Rs. 2,75,000 loan) without demurring or seeking clarification. No independent evidence, such as call records, witnesses to the meeting, or contemporaneous notes, was adduced to support this sequence.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 23/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi iii. Vague and Unexplained Modus Operandi of the Alleged Theft: The accused vaguely attributed the theft to the complainant's husband "visiting" his house during the March 2017 shift and being "aware of the whereabouts of things,"
implying access to the drawer. However, he provided no specifics like dates of visits, no witnesses to the husband's presence, no inventory of misplaced items beyond the four cheques, and no explanation of how the complainant (whom he claimed not to know personally) or her husband could have targeted and extracted precisely these cheques without detection. This narrative remains speculative and unsubstantiated, failing to meet the burden of proof under Section 315 CrPC for defense evidence. The accused's additional claim of abduction in September 2017 (post-dating the cheque issuance) and being forced to sign blank papers was raised only in his Section 313 CrPC statement, without supporting police records or details, further diluting its relevance to the January 2017 events.
10.Conclusion and Reason for decision:
a. The Issue no. 1, 2, 3, 4 and 5 were decided in favour of the complainant and the presumption was drawn against the accused. b. The accused has failed to rebut the presumptions drawn against him and issue no. 6 is decided against the accused. In view of the foregoing discussion and upon careful consideration of the evidence on record, including the consistent and credible testimony of the complainant juxtaposed against the accused's inconsistent and unsubstantiated defense of cheque misplacement; this Court finds that the prosecution has proved the offense beyond reasonable doubt.
CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 24/ 25 In the court of Sh. Divyam Lila, MM/JMFC, East district, Karkardooma courts, Delhi
11.Order:
a. Accordingly, the accused, Sh.Vivek Mishra is held guilty and convicted under Section 138 of the Negotiable Instruments Act, 1881.
b. The matter shall now be listed for arguments on sentence. c. The signed copy of the judgement be uploaded on the CIS immediately.
d. Pronounced in open court and in presence of both the parties/ or their Counsels.
Digitally
signed by (DIVYAM LILA)
DIVYAM
DIVYAM LILA Municipal Magistrate, East District
LILA Date: Karkardooma Court/Delhi
2025.10.13 Date: 13.10.2025
16:09:53
+0530
_____________________End of the document_____________________ CT CASE/1790/2017 Mrs Sukh Sareen Versus Sh. Vivek Mishra page 25/ 25