Delhi District Court
Pravesh Kumar vs Vishal Maheshwari on 15 September, 2025
IN THE COURT OF MS. SHIVANGI MANGLA,
JMFC (NI Act) DIGITAL COURT-02
WEST TIS HAZARI COURTS, NEW DELHI
CNR NO. : DLWT02-014586-2020
CT. CASE NO. : 84/2020
CASE TITLE : PRAVESH KUMAR Vs. VISHAL
MAHESHWARI
15.09.2025
JUDGMENT
1. Complaint Case number : 84/2020
2. Name of the complainant : Pravesh Kumar, s/o Sh. Hari Om, r/o A-68, Gali no-4, Mandoli Ext. Mandoli, Delhi-110093
3. Name and address of the : Vishal Maheshwari, s/o Sh.
accused Ashok Kumar, r/o A-50, Gali
no-3, Mandoli Ext. Mandoli,
Delhi -110091
4. Offence complained of or : Under Section 138 of the proved Negotiable Instruments Act, 1881.
5. Plea of the accused : Pleaded not guilty and claimed trial.
6. Final Order : ACQUITTAL
7. Date of Institution : 10.12.2020
8. Date of pronouncement : 15.09.2025 Ct. Case No 84/2020 Pravesh Kumar v. Vishal Maheshwari Page No. 1 of 9 Digitally signed SHIVANGI by SHIVANGI MANGLA MANGLA Date: 2025.09.15 13:18:10 +0530 JUDGMENT
1. Vide this judgment, I shall decide the present matter, Ct. Cases No.84/2020 filed by complainant against the dishonour of a cheque bearing No. 017832 dated 23.07.2020 for sum of Rs. 3,00,000/- drawn at Punjab National Bank, Dilshad Garden , Delhi-110095 (henceforth, the cheque in question).
2. Briefly stated, the facts that the complainant shared friendly relations with accused. On 15.01.2019, accused requested for personal loan of Rs. 3 lacs from the complainant with promise to return the same within a year. Acceeding to the request, complainant advanced the amount to the accused in cash accordingly. In discharge of the legal debt/ liability towards the complainant, the accused issued the cheque in question as undated with request to present the same in January 2020. In January 2020, when the complainant asked for the payment, the accused sought further time of 3 months. Thereafter, further time was sought by accused for repayment till July 2020. On the instructions of the accused, the complainant filed the date on the cheque in question as 23.07.2020. Thereafter, on receipt of the instructions from the accused regarding deposition of the cheque, the same was presented by the complainant for encashment. On presentation, the cheque in question was returned unpaid with remarks " 84-OTHER REASONS- CONNECTIVITY FAILURE" vide returning memo dated 29.09.2020. Thereafter, the cheque was presented again on the assurance of accused, however, it was returned unpaid again with remarks " 88-CHQ UNUSABLE " vide returning memo dated 05.10.2020. It is the case of the complainant that thereafter, accused gave no response and avoided him.
3. Thereafter, complainant sent a legal notice dated 14.10.2020 to the accused through registered post calling upon him to pay the outstanding amount. It is the case of the complainant that despite service/receipt of the notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
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4. The bank witness from the accused bank was summoned who stated to have no details of the record. Later, bank witness for the complainant bank was summoned. However, no appearance given. Taking into consideration the Pre summoning evidence by way of affidavit, cognizance was taken u/s 138 NI Act on 25.04.2022 and summons were issued to accused thereupon.
5. Notice was framed against the accused on 17.08.2022 to which he pleaded not guilty and claimed trial. Application u/s 145(2) was orally pleaded on behalf of accused and the same was allowed considering no objections.
6. Complainant examined himself as CW1 and filed his evidence by way of affidavit Ex.CW1/A. He has relied upon the documents : -
1. Ex.CW1/1, Original cheque in question.
Original returning memo dated
2. Ex.CW1/2, 05.10.2020
3. Ex.CW1/3 Legal demand notice.
4. Ex.CW1/4 Postal receipts
5. Ex.CW1/5 Tracking report.
7. CW1/ Complainant was examined in chief, cross-examined and discharged on 20.03.2025. Closing CE, the matter was listed for SA.
8. The accused was examined and his statement was recorded under section 313 Cr.P.C. on 01.05.2025 after all the incriminating evidence and the documents Ct. Case No 84/2020 Pravesh Kumar v. Vishal Maheshwari Page No. 3 of 9 Digitally signed SHIVANGI by SHIVANGI MANGLA MANGLA Date: 2025.09.15 13:18:20 +0530 on record were put to him. Accused had chosen to lead evidence in his defence. Accordingly, the matter was fixed for Defence evidence.
9. Later, statement of accused was recorded separately with regard to non willingness to lead any defence evidence. Accordingly, the matter was fixed for final arguments.
10. Final arguments heard from both the counsels. Rebuttal arguments also taken. The submissions made on behalf of both the parties and the judgments relied on by the parties have been considered.
POINTS FOR DETERMINATION, APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
11. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following: -
i. The accused issued a cheque on account maintained by him with a bank.
ii. The said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
iii. The said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
iv. The aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
v. The payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
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vi. The drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
12. The accused admitted his signatures on the cheque in question at every stage; from notice under section 251 Cr.P.C. to his statement under section 313 Cr.P.C. Thus, presumption under section 118(a) and under section 139 of NI Act arises against the accused. Unless the contrary is proved, it shall be presumed that the cheque in question were drawn for a consideration and that the complainant received the cheque in question in discharge of a debt/ liability from the accused. In order to rebut the presumptions, the burden of proof shifts to the accused to prove on a preponderance of probabilities that there was no liability for the amount of cheque in question.
(Reliance placed on Triyambak S. Hegde vs Sripad decided by 3 judge bench of Hon'ble SC on 23.09.2021 and Basalingappa vs Mudibasappa (2019) 5 SCC 418; Bir Singh Vs. Mukesh Kumar (2019) 4SCC; K Bhaskaran Vs. Sankaran Vaidhyan Balan (1999) 7 SCC510; Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC16; 8 Kalamani Tex and Ors Vs. B Balasubramanian (2021) SCC online SC 75; P. Rasia Vs. Abdul Nazer & Anr.;)
13. Therefore, in the present matter, the onus of proof is now upon the accused to raise a probable defence and to rebut the presumption of the existence of a legally recoverable debt arisen in favor of the complainant (reliance placed on Rangappa Vs. Sri Mohan (2010) 11 SCC441). It is now to be examined as to whether the accused has brought any material on record dislodging the presumption which meets the standard of preponderance of probabilities.
14. It is the defence of accused that no loan of Rs. 3 lacs was taken from complainant. Rather loan of only Rs.1 lakh was taken by 2 persons namely Anup Ct. Case No 84/2020 Pravesh Kumar v. Vishal Maheshwari Page No. 5 of 9 Digitally signed SHIVANGI by SHIVANGI MANGLA MANGLA Date: 2025.09.15 13:18:30 +0530 and Rahul for which accused stood as guarantor and issued cheque in question. Accused also admitted friendly relations with the complainant. It is the further plea of defence that amount of Rs.80,000/- was repaid by Anup and same was handed over to the complainant. Rahul also handed over the amount in cash to accused but the same was refused to be accepted by the complainant on the account of non-payment of the interest for the period of pandemic. Accordingly, the liability of the accused towards the complainant stood to the amount of Rs. 20,000 being the guarantor and no more.
15. No evidence, oral or documentary, has been led by the accused in support of the averments made in the defence by him. Anup and Rahul never called as defence witnesses to support the case of accused. No proof of payment of Rs.80,000 furnished by the accused. No proof has been furnished to fortify the fact that he stood as "Guarantor" for Anup and Rahul. Further, no proof with regard to pending liability of Rs.20,000 has been furnished by the accused. Accordingly, the defences raised by the accused has remained unproved and unestablished.
16. However, as per the guidelines laid down in the case of Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513, which are as follows:
"20. ........................The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the Ct. Case No 84/2020 Pravesh Kumar v. Vishal Maheshwari Page No. 6 of 9 Digitally signed by SHIVANGI SHIVANGI MANGLA MANGLA Date:
2025.09.15 13:18:38 +0530 accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist..............."
17. It is the case of complainant that he advanced amount of Rs.3,00,000 to the accused on his request in cash. However, during the cross-examination of CW1, for the first time, the fact was revealed regarding the withdrawal of the amount Rs.1,00,000 from the bank account of the complainant for the purpose of advancement to the accused. The complainant stated his monthly income to be Rs. 50,000 per month and further stated to have dependent wife, mother and two children. No purpose for advancement of the impugned loan has been provided during the entire proceedings, apart from the fact that accused shared good relations with the complainant. The fact of having good relations has been admitted by the accused, however, that does not stand in consonance with the fact that when the complainant is himself earning meagre income having dependent family members, then for what purpose he went on to help the accused financially. Admittedly, no ITR or bank statement has been filed by the complainant in support of his case. CW1 also went on to state. -" I cannot show the account from where I have withdrawn the amount of Rs.1,00,000 as the same account was closed by me." No documentary evidence in regard to the advancement of the loan has been furnished by the complainant. No proof regarding the present transaction between the complainant and the accused has been furnished coupled with the inability of the complainant to furnish the details of the bank account from which he withdrew the amount to handover to accused.
Ct. Case No 84/2020 Pravesh Kumar v. Vishal Maheshwari Page No. 7 of 9 Digitally signed SHIVANGI by SHIVANGI MANGLA MANGLA Date: 2025.09.15 13:18:44 +0530 As settled in Basalingappa vs Mudibasappa AIR 2019 SC 1983, when financial capacity of complainant is being questioned, it shall be incumbent on him to have explained his financial capacity.
However, in the present case, the complainant has failed in toto to furnish any cogent evidence or any other proof to show his financial ability to lend aforesaid amount to the accused. Further, the income as orally stated by the complainant does not showcase the capacity of the complainant to lend the impugned loan amount to the accused in consideration of having dependent family members and their expenses. Coupled with the fact that despite being asked, complainant bluntly refused to furnish the bank statements or income proofs.
18. Moreover, the reason for the return of the cheque being presented twice are
- "connectivity failure" and "cheque unusable". As per Section 138 NIA, a cheque must be returned by the bank unpaid:
"...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..."
To enumerate the offence u/s 138 NIA, the cheque must have been returned due to reason of 'fund insufficient' or 'the cheque amount exceeds the arrangement made with the bank'. The reasons of connectivity failure or unusable cheques does not give rise to the cause of action u/s 138 NIA as also held in various judgments of Hon'ble High Court and Hon'ble Apex Court. Moreover, the complainant never took any steps to call any bank witness to establish the reasons for return of the cheque, neither he furnished any evidence on record to prove the coverage of the said subjects within the provisions of NI Act. Hence, it can be observed that the said subjects are not covered within the provisions of section 138 NIA to cast liability on accused.
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19. On the basis of the above reasoning, it can be observed that the complainant has failed to show that the present complaint fulfills the requirement of s.138 NIA and has also failed to show his financial ability to advance the impugned loan despite being specifically questioned. The accused has remained successful in punching holes in complainant version and the burden of rebutting the presumption has been duly discharged by shifting onus onto complainant to prove his case beyond reasonable doubt. While, the complainant has failed to discharge reverse onus casted on him.
20. Accordingly, accused Vishal Maheshwari stands acquitted of the offence under s.138 NIA.
Announced in the open Court on 15.09.2025.
Note : This judgment contains 09 pages and each page is signed by the undersigned.
Digitally signed by SHIVANGI SHIVANGI MANGLA
MANGLA Date:
2025.09.15
13:18:53 +0530
(SHIVANGI MANGLA)
JMFC (NI Act) Digital Court-02
West, Tis Hazari Courts, Delhi 15.09.2025
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