Delhi District Court
Cc Ni Act No.6035 Of 2021 Nikesh Yadav vs . Vishal Sisodia Page No. 1 on 22 October, 2022
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 1
IN THE COURT OF MS. AISHWARYA SHARMA,
METROPOLITAN MAGISTRATE (NI ACT) DIGITAL COURT02,
SOUTHEAST DISTRICT, SAKET COURT COMPLEX, NEW DELHI
Criminal Complaint No: CC NI ACT/6035/2021
NIKESH YADAV ...Complainant
Versus
VISHAL SISODIA ... Accused
1.Name & address of the complainant:Sh. NIKESH YADAV
S/O Sh. Ramprit Yadav
R/O H No. 76/A, Block L, Near Rajdhani
Public School, Jaitpur, New Delhi
2.Name & address of the accused : Sh. VISHAL SISODIA
S/O Sh. R.S.Sisodia
R/O C52 A/6, Hari Nagar Extn.,Near
Chokan Mandir, Badarpur, New Delhi.
3.Offence complained of : U/S 138 The Negotiable Instruments
Act,1881.
4.Plea of accused : Pleaded not guilty.
5.Final Arguments : 23.09.2022
6.Date of Institution of case : 29.07.2021
7.Date of decision of the case : 22.10.2022
JUDG MENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case
filed by the complainant, Sh. Nikesh Yadav (hereinafter referred to as the
'complainant') against accused Sh. Vishal Sisodia (hereinafter referred to as 'the
accused').
2. Factual Matrix: The complainant's case is that the accused was his
close friend and he approached the complainant in June, 2019 seeking financial help
of Rs. 2 Lakhs citing that his child is admitted in hospital. Complainant somehow
arranged this amount and gave it to the accused and the accused promised to return
Digitally signed
by AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:51:35 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 2
the same within 3 months, however, the accused did not return the same within
stipulated time and when the complainant approached him thereafter for repayment
through calls and whatsapp messages, the accused did not return the same on one
pretext or another. Then finally, after interference by friends for repayment of the
loan amount in February, 2021, the accused had issued one cheque bearing No.
000052 dated 22.02.2021 for a sum of Rs. 2 Lakhs drawn on HDFC Bank, Ashoka
Enclave, Sector 35, Faridabad, Haryana Branch, (hereinafter referred as the 'cheque
in question'), however, the same was dishonoured with remarks "Drawers Signatures
differ" vide return memo dated 23.02.2021. After dishonour of the cheque in
question, the complainant again contacted the accused informing him about the
dishonour of the cheque in question and upon regular follow ups by the complainant,
the accused again asked the complainant to present the cheque. The complainant
again presented the cheque in question with his banker on 08.04.2021 but it was
returned unpaid with remarks "Drawer Signatures Differ" vide return memo dated
09.04.2021. Thereafter, the complainant issued the legal demand notice dated
06.05.2021 to the accused, calling upon him to make the payment of the remaining
amount within 15 days and the same was duly served upon the accused. However, the
accused neither filed reply to the same nor made any payment. Hence, being
aggrieved, the complainant filed the present complaint under section 138 of The
Negotiable Instruments Act, 1881 on 29.07.2021 and prayed that the accused be
summoned, tried and punished under section 138 of The Negotiable Instruments Act,
1881.
3. Summoning of accused: The court summoned the accused after
hearing the arguments at the stage of presummoning vide order dated 12.11.2021
and the accused entered appearance in the present case on 11.03.2022.
4. Notice: The court has framed notice of accusation under Section 251
Cr.P.C. against the accused on 24.03.2022. The substance of accusation was read
Digitally signed by
AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:51:44 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 3
over and explained to the accused and after being satisfied that the accused
comprehended the same, the court recorded his plea.
5. Plea of the accused: The accused pleaded not guilty and claimed trial.
He denied his signatures on the cheque in question. He also denied filling particulars
of the cheque in question. He admitted that the legal demand notice was sent at his
correct address, however, stated that he has not received the legal demand notice at
the same address. In his defence, he stated that he had taken loan of Rs. 50,000/ from
the complainant at 3% monthly interest, by the end of the year 2019 being friend of
the complainant. He stated that he had returned the entire amount along with the
interest to the complainant but the complainant started demanded higher rate of
interest and misused his blank unsigned cheque which was given as security for
availing loan of Rs. 50,000/. He stated that despite his demand on several occasions,
the complainant did not return his cheque and threatened him, pursuant to which he
has filed one complaint against the complainant before ACP Sarita Vihar. On the
same date, the statement of accused was recorded U/S 294 Cr. P.C wherein he
admitted correctness of dishonor memo pursuant to which the Bank witnesses
mentioned at Sr. No. 2 Concerned Clerk / official from Complainant Bank & Witness
at Sr.No. 3 Concerned Clerk/ Official from accused bank were dropped.
6. Evidence on behalf of complainant: To prove his case prima facie, the
complainant has examined himself as CW1 and has filed his evidence under Section
200 of the Cr.P.C. by way of an affidavit which is EX. CW1/9 bearing his signatures
at point A & B, wherein he has reiterated the averments made in the complaint. To
support his case, the complainant has also placed on record EX. CW1/1 (Colly) the
copy of screenshot of whatsapp messages sent by complainant to the accused
seeking repayment of loan amount along with certificate U/S 65 B of Indian Evidence
Act, EX. CW1/2 original cheque in question dated 22.02.2021, EX. CW1/3 the
original return memo dated 23.02.2021, EX. CW1/4 the original return memo dated
Digitally signed
by AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:51:49 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 4
09.04.2021, EX.CW1/5 the legal demand notice dated 06.05.2021, along with it's
Courier receipts EX. CW1/6 and tracking report EX. CW1/7. Thereafter, CW1
was subjected to cross examination.
7. During his cross examination, this witness stated that he knows the
accused for last 67 years being his good friend and that he had given Rs. 2 Lakhs to
the accused by way of cash out of his savings and after borrowing some amount from
his friends and father. He stated that he has also mentioned this fact in his complaint,
however, the same is not mentioned in the complaint. He deposed that the accused
had affixed his signatures and filled all the particulars of cheque in question in his
presence. He denied the suggestion that he forged the signatures of the accused in the
cheque in question. He also denied the suggestion that he had advanced only Rs.
50,000/ at 3% interest to the accused. He stated that he had not advanced any amount
to the accused on interest. He denied the suggestion that the blank cheque in
question without affixing signatures was handed over by accused to him as security,
in lieu of amount of Rs. 50,000/ advanced by him to the accused. He denied the
suggestion that the wife of the accused had given him Rs. 14,000/ by way of PayTM
and stated that she had given Rs. 11,000/ by way of PAYTM in several installments
of Rs. 2,000/ Rs.3,000/ in discharge of partial liability for loan of Rs. 2 Lakh. He
admitted that he had received this amount of Rs. 11,000/ by PAY TM prior to filing
of this complaint and prior to presentation of the cheque in question. He also
admitted that he had not mentioned this fact in his complaint that he had received
some amount out of the loan advanced, from the accused. He stated that he is
working in Civil Defence and also working as Bouncer and has 7 members in his
family. He further stated that his monthly income is approximately Rs. 24,000/ and
his father's monthly income is Rs. 40,000/ per month as he is working as Thekedar
and his father bears all the family expenditure which is around Rs. 30,000/ to Rs.
35,000/ per month. He stated that he is unmarried. He further stated that he does not
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:51:57 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 5
file ITR as his income comes within the exempted limit. He stated that he is not
aware about the work/ employment of the accused. He further stated that he had
gone to the house of accused when he had given him the amount of Rs. 2 Lakhs and
he further deposed that he had also gone to the house of accused for demanding
repayment of loan amount, but he was thrown away by father of the accused from his
house. He stated that he had given the amount of Rs. 2 Lakhs to the accused in
presence of his wife, as the accused was in need of funds for treatment of his son and
he had given this amount as the accused was his good friend, so he had faith that he
will repay this amount. He further deposed that the family of accused consists of his
wife, one son and his parents and stated that he did not inquire about the illness of the
son of the accused. He denied the suggestion that he had not visited the house of the
accused and had not given the amount of Rs. 2 Lakhs to accused. He also denied the
suggestion that he had given Rs. 50,000/ to the accused and that the accused has
returned him Rs. 74,000/ by way of PAYTM and cash against this amount including
the interest and principal amount. He also denied the suggestion that he has misused
the cheque in question and the accused has filed complaint dated 03.03.2022, against
him regarding the same which is Ex.DW1/1 (Colly). He stated that he is not aware of
any such complaint and he has ever been called by any police official regarding any
such complaint. He also stated that he is not aware that the accused has filed one
application U/S 156 (3) Cr. P.C against him which is pending in the court of
Ms.Shikha Chahal, Ld. MM, South East, Saket Courts, New Delhi, copy of which is
EX.DW1/2 (Colly). He stated that he had informed the accused and his father before
presentation of the cheque in question telephonically. He denied the suggestion that
the legal demand notice was not delivered upon the accused. He stated that he had
never given loan to anyone apart from accused.
8. Examination of the accused under section 313 Cr.P.C: The accused
was examined under section 313 Cr.P.C. on 21.07.2022, wherein he denied that he
Digitally signed by
AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:02 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 6
approached the complainant in June, 2019 seeking financial help of Rs.2,00,000/
for treatment of his child as he was hospitalized, with the assurance that the same will
be returned within 3 months and he stated that he had only taken Rs. 50,000/ from
the complainant on interest in August, 2019 as he had some family problem. He
denied that he did not return the loan amount to the complainant within stipulated
period of time despite demand by the complainant over phone calls and whats app
messages, the screenshot of whatsapp messages along with certificate U/S 65 B of
Indian Evidence Act is EX. CW1/1 (Colly). He denied that he issued the cheque in
question for a sum of Rs. 2 lakhs in favour of the complainant when the complainant
approached him for return of the amount through friends, in Februrary, 2021 and he
stated that the cheque in question was given to the complainant at the time of
advancement of loan of Rs. 50,000/ , on 3 % monthly interest for 6 months, as
security. He stated that he could not repay the loan within 6 months, however, he had
repaid the entire amount with interest by January, 2021. He admitted that the cheque
in question upon it's presentation was dishonoured for the reason "Drawers
Signatures Differs" vide return memos dated 23.02.2021 EX.CW1/3 and 09.04.2021
i.e. EX. CW1/4. He admitted that the legal demand notice dated 06.05.2021 U/S 138
of the N.I. Act i.e. EX.CW1/5 was sent at his correct address, however, he had
denied receiving the same. He denied his signatures on the cheque in question and
stated that he has given his blank unsigned cheque to the complainant as security. He
also denied filling any particulars on the cheque in question. He admitted being good
friend of the complainant and stated that he had returned the entire amount to the
complainant and demanded return of the cheque in question from the complainant,
but the complainant did not return the same on the pretext that he had lost the same
and will return it whenever, it will be found. He stated that he intends to lead defence
evidence.
9. Evidence on behalf of Accused: In his defence, the Accused has
Digitally signed by
AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:08 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 7
examined himself as DW1 wherein he adopted his statement recorded U/S 313 Cr.
P.C as his examinationinchief and further stated that he had returned amount of Rs.
50,000/ along with interest to the complainant in January, 2021. He further stated
that he had returned Rs. 14,000/ to the complainant by transfer through PAYTM. He
stated that in January, 2021, he had returned friendly loan amount of Rs. 50,000/
along with interest, taken from the complainant in August 2019. He stated that he
had returned Rs. 14,000/ against the said loan by transfer through PAYTM in 23
installments of Rs. 3,000/ or Rs. 4,000/ and remaining amount of approximately Rs.
60,000/ in cash in January, 2021 and that out of this amount of Rs. 60,000/, he had
given Rs. 20,000/ in cash without presence of any other witness and Rs. 40,000/
was returned in presence of his father's friend namely Sh. Khachchan Singh. He
stated that he had no outstanding liability towards the complainant as he had already
repaid the entire loan amount along with interest. Thereafter, this witness was cross
examined.
10. During his cross examination, he stated that he was working as
salesman in NOIDA City Centre Logix Mall for last two months having office
timings from 12:00 Noon till 10:00 Pm. He stated that in year 2019, he was working
as salesman in CROWN Interior Mall, Faridabad, Haryana where he had worked
there for 6 or 7 years i.e. from 2011 till 2016 and thereafter, stated that in the year
2019, he was working in Orient Electric Shop, at Ghaziabad since the year 2019 till
July, 2021 having office hours from 1:00 PM to 11:00 PM. He stated that he was
using his bank account of HDFC Bank from which the cheque in question was given
since the year 2017 and that his registered mobile number with the bank was
9717545371 and this number is not functional since the February, 2020. He denied
the suggestion that he received messages from the HDFC Bank. He stated that as of
now he is using Phone No. 8595309505. He stated that apart from complainant, he
had also taken loan i.e. vehicle loan and personal loan from different Banks. He
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:15 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 8
stated that he knows Sh. Virender Awana. He denied the suggestion that he had taken
loan from Sh. Virender Awana. He admitted that he had given one cheque to Mr.
Virender Awana and stated that he had given the same for payment of Committee
amount and after settlement of committee amount, he took back his cheque from him.
He denied the suggestion that the cheque given to Mr. Virender Awana, was also
dishonoured. He could not produce his account statement from the year 2019 to 2021
stating that his bank account of HDFC Bank has become non operational on account
of non uses. He stated that apart from this case, he does not have any other litigations/
cases pending against him. He admitted that he had Whatsapp conversation
EX.CW1/1 (Colly) with the complainant and that as per his whatsapp conversation
with the complainant on 22.01.2021, the complainant told him through that he has not
received his amount from last 2 years and that now he will recover his amount
through legally permissible modes. He stated that after this conversation, on
25.01.2021, he had gone to the house of complainant along with his father and had
given him Rs. 40,000/ in cash. He admitted the fact he has not mentioned the time
when he along with his father visited the house of the complainant on 25.01.2021 in
his complaint EX. DW1/1 (Colly). He also admitted that he has not mentioned in his
complaint EX. DW1/1 (Colly) that Sh. Khachchan Singh who is friend of his father
also accompanied them to the house of complainant. He admitted that no receiving
regarding payment of Rs. 40,000/ in cash to the complainant was taken by him,
despite the fact that the complainant had threatened to take legal action against him.
He also admitted that he did not file any communication made with the complainant
to show that he had demanded return of the cheque in question from the complainant.
He admitted that as mentioned in his complaint EX. DW1/1 (Colly)on 2 nd para of
Page No. 13, when the complainant refused to return his cheque on 01.02.2022, he
did not make any whatsapp communication with the complainant or sent any demand
notice seeking return of his cheque and stated that he did not send any demand notice
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:20 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 9
or whatsapp message in this regard as he frequently used to meet with the
complainant. He admitted that as mentioned in his complaint EX. DW1/1 (Colly) on
2nd para of Page No. 15, when the complainant abused his father and attempted to
give beatings to his father on 02.03.2022, he did not make any PCR call. He stated
that he had not gone to office on 03.03.2022 and that he had gone to office on
04.03.2022. He stated that complaint EX. DW1/1 (Colly) was signed by him
however, the same has been sent through speed post by his father. He stated that on
02.03.2022, he had gone to the house of complainant in the morning around 6:30 Am
or 7:30 Am and he had only met with the complainant at his house as he was
standing outside of his house. He denied that he had taken loan of Rs. 2 Lakhs from
the complainant and he had given the cheque in question as security towards the
repayment of the said loan amount. He also denied the suggestion that he
deliberately had affixed different signature on the cheque in question so that the
cheque is dishonoured and he stated that he did not affix his signatures on the cheque
in question and he had given the blank cheque to the complainant. He denied the
suggestion that he had given the cheque in question for repayment of the loan and due
to the said reason, he did not demand return of his cheque from the complainant. He
stated that he demanded return of the cheque several times but complainant did not
return the same on the pretext that he has misplaced it. He denied the suggestion that
he had filed false complaint EX. DW1/1 (Colly) to save himself from his liability for
dishonour of the cheque in question as he had filed this complaint almost one year
after the dishonour of the cheque. He stated that he had filed this complaint when he
got to know about the dishonour of the cheque.
11. In support of his defence, the accused has also examined his father Sh.
R S Sisodia as DW2 who deposed that he knows the complainant as he is friend of
his son and he does money landing business. He stated that his son had taken loan of
Rs. 50,000/ from the complainant on interest @ 3 % in year, 2019 and that out of
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:27 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 10
this amount, his son had returned Rs. 14,000/ through PAYTM and Rs. 20,000/ in
cash but he does not remember the date when his son had returned this amount. He
further stated that due to pandemic his son lost his job, due to which he could not
make payment of remaining amount in time, thus, the complainant came to his house
in January, 2021 seeking return of his payment and he assured him of return of this
payment and informed him that he will speak to his son (accused) about this
transaction who is staying in Ghaziabad as his son had recently joined a new job. He
stated that on 24.01.2021, his son had come to his house from Ghaziabad and on
25.01.2021, at around in the morning 6:00 to 7:00 am, he along with his son
(Accused) had gone to the house of complainant along with one of his friend Sh.
Khachchan Singh and inquired from the complainant about the outstanding amount
and the complainant informed them about the outstanding amount of Rs. 40,000/. He
stated that he asked the complainant to reduce some interest amount due to pandemic
situation but he refused to reduce the amount and thus, they had given Rs. 40,000/ in
cash to the complainant. He stated that the blank unsigned cheque in question was
given by the accused to the complainant at the time of obtaining loan amount. Thus,
at the time of repayment of Rs. 40,000/, he demanded return of the cheque from the
complainant and the complainant assured to return the same, after locating it. He
stated that the complainant did not return the cheque in question despite demand by
the accused several times even before receiving the summons of this case.
Thereafter, this witness was subjected to cross examination.
12. During his cross examination, he admitted that the complainant did not
advance/ hand over the loan amount to the accused in his presence. He admitted that
complainant and accused did not talk about this financial transaction in his presence.
He stated that his son (Accused) has not taken loan from any other person apart from
the complainant. He stated that he was not aware if his son had taken any bank loan
or not. He stated that he did not know the complainant personally before his son had
Digitally signed by
AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:33 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 11
taken loan from the complainant. He stated that he was aware that the complainant
used to advance the money on interest. He stated that he is not aware if the
complainant had advanced money to any other person apart from accused or not. He
admitted that he was never informed by his son (accused), if he had taken any loan
from any other person apart from the complainant. He stated that he was not aware
when the complainant was about to initiate the legal proceedings against the accused.
He admitted that they had not obtained any receiving from the complainant while
handing him over the alleged amount of Rs. 40,000/. He admitted that he was not
informed about any occurrence between the complainant and accused on 01.02.2022
as mentioned in para No. 2 of the page No.13 of EX.DW1/1 (Colly). He admitted
that they had not made any PCR Call regarding the incident of 02.03.2022 as
mentioned in para No.2 page No. 15 of Ex.DW1/1 (Colly). He stated that they did not
make any PCR call as they were under impression that the complainant is a Police
Official as he has told them so. He denied the suggestion that the complainant EX.
DW1/1 was filed / sent by his son at instructions of his counsel. He stated that he has
filed this complaint himself. He stated that he sent/posted complaint EX. DW1/1
(Colly) through speed post through a post office at Saket Court Complex, New Delhi.
He admitted to have knowledge about the contents of complaint EX. DW1/1 (Colly).
He admitted that it is nowhere mentioned in the said complaint that the complainant
is a police official. He denied the suggestion that his son had taken loan of Rs. 2 Lakh
from the complainant and had given the cheque in question in lieu of repayment of
the same. He denied that his son had not given the cheque in question to the
complainant in his presence. He denied the suggestion that he had not visited the
house of complainant on 25.01.2021 and that they did not give amount of Rs.
40,000/ to the complainant on 25.01.2021.
13. Final Argument: Final arguments have been heard on behalf of the both
the parties. The matter was then reserved for judgment. The written submissions filed
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:40 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 12
on behalf of both the parties have been considered.
14. In order to ascertain whether the accused has committed the offence under
Section 138 of the NI Act, it is deemed fit to examine separately as to whether all the
indispensable ingredients constituting the offence have been proved by the
complainant. The offence under Section 138 of the NI Act has the following
ingredients:
a) Existence of legally enforceable debt or liability and issuance of cheque in
discharge of said debt or liability;
b) Dishonor of cheque in question which must have been drawn on an account drawn
on an account maintained by the accused;
c) Service of demand notice seeking payment of cheque amount within fifteen days
from the date of service;
d) Nonpayment of cheque amount within fifteen days from the date of service of
notice; and
e) Filing of complaint within one month from the date on which cause of action
arises.
15. Coming to the first ingredient of the offence, in the present case, the
accused has disputed the issuance of the cheque in question towards legally
enforceable debt or liability. Though the accused has admitted that he had taken loan
from the complainant, however, he has denied that he had taken loan of Rs. 2 lakh
form the complainant in June, 2019 and he has claimed that he had only taken loan of
Rs. 50,000/ from the complainant in August, 2019 for 6 months, however, he could
not repay the same in time on account of Covid and that he has repaid the entire
amount with interest to the complainant by January, 2021 and thus, he has claimed
that the accused has misused his cheque. To dispute the loan transaction, the
accused had also tried to dispute the financial capacity of the complainant however,
the complainant has stated his monthly income is around Rs. 24,000/ and his entire
Digitally signed by
AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:47 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 13
expenditure is born by his father whose monthly income is approximately Rs.
40,000/ and he does not have any other liability being unmarried. With regard to
the advancement of loan amount, the complainant has stated that he had given loan
amount to the accused out of his savings and after borrowing the same from his
friends and father. Thus, the financial capacity of the complainant has been
established by him. With respect to the loan amount, the complainant has denied the
suggestion of the accused during his cross examination that he has advanced the loan
of Rs. 50,000/ to the accused at 3% interest and stated that he did not advance any
amount to the accused on interest. The complainant has admitted that out of the loan
amount advanced, he has received part payment of total Rs. 11,000/ in several
instalments, through PAYTM before filing of this complaint and even prior to the
presentation of the cheque in question. He admitted that he has not nowhere
mentioned this fact in the complaint. He could not disclose any detail regarding
employment of the accused and claimed that he had advanced the amount to the
accused for treatment of his son as accused was his good friend. However, he
admitted that he did not inquire about the illness of son of the accused. He denied
the suggestion that he has advanced Rs. 50,000/ to the accused and in lieu of the
same he has received Rs. 74,000/, through PAYTM and cash. To support the factum
of repayment, the accused has examined himself as DW1 and his father as DW2.
The accused stated that he has returned Rs. 14,000/ to the complainant by way of
PAYTM in several instalments, Rs.20,000/ in cash in absence of any witness and Rs.
40,000/ in cash in presence of his father and one of his friend namely Sh.
Khachchan Singh. During his cross examination also he admitted that on 22.01.2021,
the complainant had told him through whatsapp messages that he has not received
amount for last 2 years and he will recover the same through legally permissible
modes. However, he stated that after this conversation, he has gone to the house of
complainant along with his father and gave him Rs. 40,000/ in cash. DW2 Sh. R S
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:52:54 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 14
Sisodiya, who is the father of the accused has also supported the fact that his son had
returned Rs. 40,000/ in cash to the complainant at his house on 25.01.2021 in the
morning at around 67:00 AM.
16. In the present case, as per the version of the accused, he handed over his
blank unsigned cheque to the complainant as security and the complainant has
misused the same despite receiving entire amount with interest. Though the
complainant has denied receiving the entire amount, however, during his cross
examination he has admitted that he had received part payment of Rs. 11,000/
through PAYTM from the accused even before presentation of cheque in question,
however, admittedly he has not mentioned this fact anywhere in the complaint or in
the legal demand notice. Now the question is since the amount due and payable to
the complainant was less than the amount represented by the cheque on the day of it's
presentation for encashment, would the accused have been legally required to honour
the cheque, specifically when the complainant himself has admitted receipt of
Rs.11,000/ from the accused much prior to the date of presentation of the cheque. To
determine this, it is relevant to refer to provision of Section 138 NI Act, which reads
as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the accounts
Where any cheque drawn by a person on an account maintained by him with a
banker for payment of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of money standing to the
credit of that 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 that bank,
such person shall be deemed to have committed an offence and shall without
prejudice to any other provisions of this Act, be punished with imprisonment for [a
term which may extend to two years], or with fine which may extend to twice the
amount of the cheque, or with both: Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:53:00 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 15
Provided that nothing contained in this section shall apply unless
(a) The cheque has been presented to the bank within a period of six months from the
date on which it is drawn or within the period of its validity, whichever is earlier.
(b) The payee or the holder induce course of the cheque, as the case may be, makes a
demand for the payment of the said amount of money by giving a notice, in writing,
to the drawer, of the cheque within thirty days of the receipt of information by him
from the bank regarding the return of the cheques as unpaid, and
(c) The drawer of such cheque fails to make the payment of the said amount of money
to the payee or, as the case may be, to the holder in due course of the cheque, within
fifteen days of the receipt of the said notice.
17. The following are the components of the offence punishable under Section 138
of Negotiable Instrument Act:
(1) drawing of the cheque by a person on an account maintained by him with a
banker, for payment to another person from out of that account for discharge in
whole/part any debt or liability, (2) presentation of the cheque by the payee or the
holder in due course to the bank, (3) returning the cheque unpaid by the drawee bank
for want of sufficient funds to the credit of the drawer or any arrangement with the
banker to pay the sum covered by the cheque, (4) giving notice in writing to the
drawer of the cheque within 15 days of the receipt of information by the payee from
the bank regarding the return of the cheque as unpaid demanding payment of the
cheque amount, (5) failure of the drawer to make payment to the payee or the holder
in due course of the cheque, of the amount covered by the cheque within 15 days of
the receipt of the notice.
18. To determine the meaning of expression 'amount of money', it is
relevant to refer to the judgment of Hon'ble High Court of Delhi in M/S Alliance
Infrastructure v Vinay Mittal, ILR (2010) III Delhi 459, wherein similar factual
situation was dealt and it was held that:
" ...8. The question which comes up for consideration is as to what the
expression, amount of money‟ means in a case where the admitted liability of the
drawer of the cheque gets reduced, on account of part payment made by him, after
issuing but before presentation of cheque in question. No doubt, the expression
"amount of money" would mean the amount of the cheque alone in case the amount
payable by the drawer, on the date of presentation of the cheque, is more than the
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:53:08 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 16
amount of the cheque. But, can it be said the expression "amount of money" would
always mean the amount of the cheque, even if the actual liability of the drawer of
the cheque has got reduced on account of some payment made by him towards
discharge of the debt or liability in consideration of which cheque in question was
issued. If it is held that the expression "amount of money" would necessarily mean
the amount of cheque in every case, the drawer of the cheque would be required to
make arrangement for more than the admitted amount payable by him to the payee of
the cheque. In case he is not able to make arrangement for the whole of the amount
of the cheque, he would be guilty of the offence punishable under Section 138 of
Negotiable Instruments Act. Obviously this could not have been the intention of the
legislature to make a person liable to punishment even if he has made arrangements
necessary for payment of the amount which is actually payable by him. If the drawer
of the cheque is made to pay more than the amount actually payable by him, the
inevitable result would be that he will have to chase the payee of the cheque to
recover the excess amount paid by him. Therefore, I find it difficult to take the view
that even if the admitted liability of the drawer of the cheque has got reduced, on
account of certain payments made after issue of cheque, the payee would
nevertheless be entitled to present the cheque for the whole of the amount, to the
banker of the drawer, for encashment and in case such a cheque is dishonoured for
wants of funds, he will be guilty of offence punishable under Section 138 of
Negotiable Instrument Act.
9. I am conscious of the implication that the drawer of a cheque may make
payment of a part of the amount of the cheque only with a view to circumvent and get
out of his liability under Section 138 of Negotiable Instrument Act. But, this can
easily be avoided, by payee of the cheque, either by taking the cheque of the reduced
amount from the drawer or by making an endorsement on the cheque acknowledging
the part payment received by him and then presenting the cheque for encashment of
only the balance amount due and payable to him. In fact, Section 56 of Negotiable
Instrument Act specifically provides for an endorsement on a Negotiable Instrument,
in case of partpayment and the instrument can thereafter be negotiated for the
balance amount. It would, therefore, be open to the payee of the cheque to present
the cheque for payment of only that much amount which is due to him after giving
credit for the partpayment made after issuance of cheque. The view being taken by
me was also taken by a Division Bench of Kerala High Court in Joseph Sartho vs.
Gopinathan Nair, 2009 (2) Crimes 463 (Kerala). As noted by the Hon‟ble Supreme
Court in Rahul Builders vs. Arihant Fertilizers & Chemicals And Another, (2008) 2
SCC 321, Negotiable Instruments Act envisages application of the penal provisions
which needs to be construed strictly. Therefore, even if two views in the matter are
possible, the Court should lean in favour of the view which is beneficial to the
accused. This is more so, when such a view will also advance the legislative intent,
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:53:15 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 17
behind enactment of this criminal liability..."
19. In the present case, admittedly, the complainant has received part
payment of Rs. 11,000/ out of the total alleged loan amount of Rs. 2 lakhs, from the
accused much prior to the date of presentation of the cheque and the complainant has
not given any explanation as to why he presented the cheque for total amount of Rs. 2
Lakhs without making any endorsement for the part payment received prior to the
presentation of the cheque in question, specifically when he himself admitted that he
had not advanced the amount to the accused on interest. Thus, when the accused has
made partpayments after the debt was incurred and before the cheque was encashed
upon maturity, the sum of rupees two lakhs represented on the cheque was not the
'legally enforceable debt' on the date of maturity as the offence under Section 138 is
tipped by the dishonour of the cheque when it is sought to be encashed. On this point,
it is relevant to refer to the judgment of Hon'ble Apex Court in Dashrathbhai
Trikambhai Patel v Hitesh Mahendrabhai Patel & Anr. , Criminal Appeal No.
1497 of 2022 , wherein it has been held that
"...30. In view of the discussion above, we summarise our findings below:
(i) For the commission of an offence under Section 138, the cheque that is dishon
oured must represent a legally enforceable debt on the date of maturity or presenta
tion;
(ii) If the drawer of the cheque pays a part or whole of the sum between the period
when the cheque is drawn and when it is encashed upon maturity, then the legally en
forceable debt on the date of maturity would not be the sum represented on the
cheque;
(iii) When a part or whole of the sum represented on the cheque is paid by the
drawer of the cheque, it must be endorsed on the cheque as prescribed in Section
56 of the Act. The cheque endorsed with the payment made may be used to negoti
ate the balance, if any. If the cheque that is endorsed is dishonoured when it is
sought to be encashed upon maturity, then the offence under Section 138will stand
attracted; Digitally signed by
AISHWARYA
AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:53:20 +0530
CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 18
(iv) The first respondent has made partpayments after the debt was incurred and be
fore the cheque was encashed upon maturity. The sum of rupees twenty lakhs repre sented on the cheque was not the 'legally enforceable debt' on the date of maturity. Thus, the first respondent cannot be deemed to have committed an offence under Sec tion 138 of the Act when the cheque was dishonoured for insufficient funds; and
(v) The notice demanding the payment of the 'said amount of money' has been inter preted by judgments of this Court to mean the cheque amount. The conditions stipu lated in the provisos to Section 138 need to be fulfilled in addition to the ingredients in the substantive part of Section 138..."
20. Since, in the present case, the admitted liability of accused got reduced on account of part payment of Rs. 11,000/ made by him, before presentation of the cheque, thus, it cannot be said that the amount of Rs. 2 lakhs for which the cheque was presented by the complainant, is covered under the expression "any amount of money" U/S 138 NI Act. As such, when the accused has presented the cheque in question for entire amount of Rs. 2 lakhs despite receiving part payment of Rs. 11,000/ before presentation of the cheque, he cannot be held guilty for dishonour of the cheque presented for Rs. 2 Lakhs. Further, since, the complainant has nowhere disclosed even in the legal demand notice that he has received part payment of Rs. 11,000/, thus, the legal demand notice also itself becomes invalid. On this point, I rely upon the case titled as K.R.Indira vs. Dr.G.Adinarayana, 2003 (3) JCC(NI) 273, wherein a consolidated notice was sent in respect of four cheques. Two of which were issued to him in the name of the husband and the two were in the name of the wife. It was noted by the Hon'ble Supreme Court that the cheque amounts were different from the alleged loan and the demand made was not of the cheque amount but was of the loan amount. It was held that the complainant was required to make demand for the amount recovered by the cheque which was conspicuously absent in the notice and, therefore, the notice was imperfect. The same would be the legal effect when a partpayment against a cheque is made, after its issue. The amount covered by the cheque would necessarily mean the principal amount due to the payee Digitally signed by AISHWARYA AISHWARYA SHARMA SHARMA Date: 2022.10.22 16:53:26 +0530 CC NI ACT No.6035 of 2021 Nikesh Yadav Vs. Vishal Sisodia Page No. 19 after giving credit for the parpayment received by him and therefore, if the notice does not specifically demand that particular amount, it would not be a valid notice and would not fasten criminal liability on account of its noncompliance.
21. In view of discussion made above, it becomes clear that the complainant has failed to establish the first ingredient of the offence U/S 138 NI Act i.e. the issuance of the cheque in question in discharge of any legally enforceable debt or any other liability, thus, there is no need to discuss the remaining elements of the offence. Accordingly, I have no hesitation to hold that the complainant has failed to establish the liability of the accused under Section 138 of the Act, thus, accused Sh. Vishal Sisodia, stands acquitted for the offence U/S 138 NI Act. Let copy of this judgment be uploaded on CIS and Layers forthwith.
Digitally signed by
AISHWARYA AISHWARYA SHARMA
SHARMA Date: 2022.10.22
16:53:34 +0530
Announced in the open court on (Aishwarya Sharma)
this day i.e. 22.10.2022 MM (N.I. ACT)Digital Court02/SED,
Saket Courts, New Delhi