Delhi District Court
Manoj Kumar Kapoor vs Aman Pandey on 20 March, 2025
1
DLST020156502023
Registered on : 14.08.2023
Presented on : 14.08.2023
Decided on : 20.03.2025
Decision : Convicted.
IN THE COURT OF
JUDICIAL MAGISTRATE FIRST CLASS (NI ACT)-08
SOUTH, SAKET DISTRICT COURT
(PRESIDED OVER BY SH. KOMAL)
CC NI ACT/6572/2023
CNR NO. DLST02-015650-2023
Sh. Manoj Kumar Kapoor,
S/o Sh. Rohtash Kapoor,
R/o H.No. F-173, Lado Sarai,
New Delhi-110030. .....Complainant.
Vs.
Sh. Aman Pandey,
S/o Sh. Ram Naresh Pandey,
R/o H.No. B-244, Phase-2,
Chhatarpur Enclave, South Delhi,
New Delhi-110074. .....Accused.
CC NI ACT 6572/2023
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 1 of 11
Digitally signed
by komal
komal Date:
2025.03.20
16:47:03 +0530
2
FACTUAL MATRIX:
1. The instant matter has originated out of a complaint under
Section 138 Negotiable Instruments Act (hereinafter referred to as
'NI Act'), filed by the complainant against the accused alleging
that a cheque was issued by the accused towards discharge of his
liability to the complainant, but the cheque was dishonoured and
despite service of legal notice dt. 10.06.2023, the accused failed
to pay the cheque amount to the complainant within the stipulated
period and thereby committed an offence. By virtue of this
judgment, the present complaint is being disposed of.
2. The brief facts of the present case as averred in the
complaint is that the accused had approached the complainant for
selling the Flat/property situated at Property No. 80, Khasra
No.58, measuring 40 sq. yards, Rajpur Khurd, New Delhi-110068
for the sale consideration amount of Rs.12,05,000/-. Thereafter, a
Bayana Agreement for purchase of the said flat was made and the
complainant had made a payment of Rs.2,05,000/- through cheque
and cash and the rest payment was to be made at the time of
handing over the possession of the said flat. Thereafter, in the
month of March 2023, the complainant requested the accused to
handover the possession of the said flat, however, the accused
demanded additional amount of Rs.50,000/- which was paid by
the complainant. Despite several requests, the accused did not
hand over the possession of the said flats. After several efforts, the
accused issued a cheque bearing no. 000020 dated 15.05.2023 for
Digitally
CC NI ACT 6572/2023 signed by
komal
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 2 of 11 komal Date:
2025.03.20
16:47:08
+0530
3
a sum of Rs.2,55,,000/-drawn on IDFC First Bank, Malviya Nagar
Branch, Ground Floor, D-79, South Delhi, New Delhi-110017
towards full and final payment of Bayana and other payments
made by the complainant to the accused (hereinafter referred to as
"cheque in question"). The accused further promised that the
cheque in question would be encashed upon its presentation.
Thereafter, the complainant presented the cheque in question
through its banker namely Central Bank of India, Lado Sarai, New
Delhi for encashment, but the same was returned unpaid vide
bank return memo dated 24.05.2023 with remarks 'alter req drwrs
authentication'.
3. The complainant sent a legal notice to the accused through
Speed Post on 10.06.2023 and that too within the statutory period
period directing the accused to pay the cheque in question amount
within 15 days of the receipt of the legal notice. The said legal
notice was duly received by the accused, but despite serving of the
same, the accused failed to make the payment to the complainant.
Accordingly, the accused has committed an offence under Section
138 of NI Act and the complainant has filed the present case.
APPEARANCE OF ACCUSED AND TRIAL:
4. This Court after taking cognizance of the offence,
summoned the accused vide impugned order dated 23.08.2023.
The accused entered his appearance on 06.04.2024 after issuance
of Section 82 Cr.P.C proceedings. He was admitted to bail on
CC NI ACT 6572/2023 Digitally
signed by
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 3 of 11 komal
komal Date:
2025.03.20
16:47:11
+0530
4
furnishing of personal bond in the sum of Rs.20,000/- with one
surety of like amount. Thereafter, notice U/s 251 Cr.P.C for the
offence of Section 138 N.I. Act was served upon the accused. He
pleaded not guilty and claimed trial. Thereafter, his plea of
defence was recorded. He took the plea that he the property for
which bayana agreement was entered into could not be sold out,
he issued the cheque in question to the complainant. He further
admitted that outstanding towards the complainant. He admitted
the complainant to be known to him. He admitted his signatures
on the cheque in question, but filling the particulars on the cheque
in question apart from the date. He further denied receiving of the
legal demand notice from the complainant but admitted the
address on the legal demand notice to be his correct address. In
his statement under section 294 Cr.P.C, he admitted the cheque in
question to be from his account and the return memo.
5. Given the nature of the allegations and reply of the accused
u/s 251 Cr.P.C, this Court directed that the case shall be tried as a
Summons case under Chapter XX of Cr.P.C. Thereafter, the matter
was listed for recording evidence on behalf of the complainant.
EVIDENCE LED BY THE COMPLAINANT:
6. The complainant in order to prove his case examined
himself as CW-1. He adopted her pre-summoning evidence
tendered by way of affidavit Ex.CW1/A bearing her signatures at
Point A and Point B in his post-summoning evidence. He further
Digitally
CC NI ACT 6572/2023 signed by
komal
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 4 of 11 komal Date:
2025.03.20
16:47:16
+0530
5
relied upon the documents which are the copy of bayana
agreement bearing Ex.CW1/1, Payment details bearing
Ex.CW1/2, original cheque in question bearing Ex.CW1/3, Bank
Return Memo bearing Ex.CW1/4, office copy of legal demand
notice bearing Ex.CW1/5, postal receipt bearing Ex.CW1/6,
tracking report bearing Ex.CW1/7 and Certificate u/S 65-B of
Indian Evidence Act bearing Ex.CW1/8. CW-1 was duly cross-
examined and discharged and CE was closed vide order dated
09.04.2024.
7. Thereafter, the statement of accused u/S 313 Cr.P.C r/w 281
Cr.P.C was recorded. The incriminating evidences were put to
him, but he denied the same. The accused stated that he had a
property transaction with the complainant but the same was not
completed. The complainant paid him the bayana which is still to
be repaid. He further admitted his liability towards the
complainant and cited repayment plan as per which the last
installment would be payable in the month of October, 2024. He
denied to lead defence evidence. Thereafter, the matter was listed
for verification of payment/final arguments. Despite ample
opportunities, the accused failed to make the entire payment even
till 20.03.2025. Thereafter, the final arguments were heard.
ARGUMENTS:
8. Final arguments were advanced on behalf of both the
parties. Rival submissions were heard on behalf of both the
Digitally
CC NI ACT 6572/2023 signed by
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 5 of 11 komal
komal Date:
2025.03.20
16:47:21
+0530
6
parties.
9. Ld. Counsel for the complainant, has argued that all the
ingredients of Section 138 NI Act have been fulfilled in the
present case and the complainant has duly proved his case and
hence prayed that the accused be convicted. He argued that the
legal liability has been proved by way of original cheque, return
memo, legal notice and tracking receipt placed on record. He
further argued that the accused had admitted his liability only of
the cheque amount.
Per contra, Ld. counsel for the accused, has argued that
that the cheque in question is misused by the complainant.
Complainant has failed to prove its case beyond reasonable doubt
and the case must be dismissed on the technical grounds.
Therefore, the accused should be acquitted for the offence alleged
by the complainant.
POINTS OF DETERMINATION:
10. The following points of determination arise in the present
case:
a. Whether the complainant is successful in raising the
presumptions under Section 118 read with Section
139 of NI Act?
b. If yes, whether the accused has been successful in
raising a probable defence?
Digitally
signed by
CC NI ACT 6572/2023 komal
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 6 of 11 komal Date:
2025.03.20
16:47:25
+0530
7
THE LAW APPLICABLE:
11. I have given my thoughtful consideration to the rival
submissions of the Ld. counsels from both sides and have also
perused the record. Before appreciation of evidence led on behalf
of the parties, at the very outset, I would like to narrate the legal
principles relevant for adjudication of complaint under Section
138 of NI Act.
12. The Hon'ble Supreme Court of India in Basalingappa v.
Mudibasappa, 2019 SCC OnLine SC 491 at page 422 held as
follows :
(i) Once the execution of cheque is admitted Section 139 of the
Act mandates a presumption that the cheque was for the
discharge of any debt or other liability.
(ii) The presumption under Section 139 is a rebuttable
presumption and the onus is on the accused to raise the probable
defence. The standard of proof for rebutting the presumption is
that of preponderance of probabilities.
(iii) To rebut the presumption, it is open for the accused to rely
on evidence led by him or accused can also rely on the materials
submitted by the complainant in order to raise a probable
defence. Inference of preponderance of probabilities can be
drawn not only from the materials brought on record by the
parties but also by reference to the circumstances upon which
they rely.
(iv) That it is not necessary for the accused to come in the
witness box in support of his defence, Section 139 imposed an
evidentiary burden and not a persuasive burden.
13. The three-judge bench of the Hon'ble Supreme Court in
Rangappa v. S. Mohan, (2010) 11 SCC 441 has ruled that
existence of liability itself is a presumption of law. It held as
Digitally
signed by
CC NI ACT 6572/2023 komal
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 7 of 11 komal Date:
2025.03.20
16:47:29
+0530
8
under:
"26. In light of these extracts, we are in agreement with the
respondent claimant that the presumption mandated by Section
139 of the Act does indeed include the existence of a legally enforceable debt or liability."
14. The Hon'ble Supreme Court of India in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 3 SCC (Cri) 236 at page 565 held as follows:
"A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act."
APPRECIATION OF EVIDENCE AND FINDINGS POINT OF DETERMINATION NO. 1:
15. It is not in dispute that cheque in question bearing Ex.CW1/ 3 was drawn on account maintained by the accused and the same have been signed by the accused. The reason for dishonour of cheques in question as mentioned in cheque return memos Ex.CW1/4 is "Alter req dwrs authentication". The legal demand notice i.e. Ex.CW1/5 was sent to the accused on his correct address. The Postal receipt bearing Ex.CW1/ 6 and the internet generated tracking report bearing Ex.CW1/7 stating 'item delivered' was filed as proof of sending of legal CC NI ACT 6572/2023 Digitally signed by MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 8 of 11 komal komal Date:
2025.03.20 16:47:34 +0530 9 demand notice. The plea of the accused regarding the non-receipt of the legal notice is accordingly rejected as being inconsequential.
16. In view of the abovementioned circumstances, the presumptions under sections 139 and 118 NI Act that the cheque in question was for a legally recoverable debt/liability stands activated.
17. Accordingly, the point of determination no.1 is decided in affirmative.
POINT OF DETERMINATION NO. 2:
18. The burden to disprove the existence of legal liability is upon the accused. This may be done by poking holes in the case of the complainant or by leading positive evidence in defence.
19. As far as complainant evidence is concerned the CW-1 was not cross-examined by accused. In such circumstances the testimony of CW-1 stands unrebutted.
20. The defence taken by the accused during the framing of notice u/S 251 Cr.P.C is that he had outstanding towards complainant. The burden to prove the outstanding amount rests on accused. The accused had failed to prove any document showing his quantum of outstanding towards complainant.
Digitally signed by CC NI ACT 6572/2023 komal MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 9 of 11 komal Date:
2025.03.20 16:47:44 +0530 10
21. Further, it is crystal clear from a catena of case laws that bare denial or mere ipse dixit by the accused is not sufficient to rebut the statutory presumptions existing in favour of the complainant. Rather, the reverse burden lies on the accused to proof his case.
22. In the event of failure to discredit the complainant, something more should have been brought on record by the accused to establish their defence or demolish the case of the complainant. In the absence of any evidence disproving the debt or liability or elucidating any material circumstances that weaken the case of the complainant, it is patent that the accused has miserably failed in discharging the burden of rebutting the statutory presumptions in the instant matter.
23. Accordingly, in light of the aforesaid discussion, the point of determination no.2 is decided in negative.
Conclusion:
24. In view of the above discussion, this Court is of the considered opinion that the complainant has duly proved its case against the accused for offence punishable under Section 138 of The Negotiable Instruments Act, 1881 qua accused. The accused has miserably failed to rebut the said presumption by raising a probable defence. The accused Aman Pandey is hereby convicted for the offence punishable under Section 138 NI Act qua the cheque in question in the present case.
CC NI ACT 6572/2023 Digitally signed by komal MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 10 of 11 komal Date:
2025.03.20 16:47:48 +0530 11
25. Let a copy of the judgment be provided to the convict free of cost.
Announced in the Open Court on this 20th of March, 2025. This Judgment consists of 11 digitally signed pages.
Digitally
signed by
komal
komal Date:
2025.03.20
16:47:54
(KOMAL) +0530
JMFC(NI Act)-08,South
Saket/NewDelhi/20.03.2025
CC NI ACT 6572/2023
MANOJ KUMAR KAPOOR Vs. AMAN PANDEY Page 11 of 11