Delhi District Court
Gopal Swaroop Sharma vs Arun Sharma on 6 September, 2025
Gopal Swaroop Sharma vs. Arun Sharma
IN THE COURT OF SH. SHIV KUMAR,
JUDICIAL MAGISTRATE-FIRST CLASS (NI ACT)-05,
DWARKA COURTS, NEW DELHI
CNR NO. DLSW02-045329-2018.
Ct. Case No. 44862/2018
Gopal Swaroop Sharma vs. Arun Sharma
1. Name and address of the : Gopal Swaroop Sharma
complainant S/o Devki Nandan Sharma
R/o DDA LIG Flat C-11,
Second Floor, Pocket-2,
Sector-7, Dwarka, New Delhi.
2. Name and address of the : 1. Arun Sharma
accused S/o Sh. Jagat Ram Sharma
R/o Rehni Tehsil, Malad Road
Talab Ke Pass Garhi, District
Udhampur-182121.
2. Jagat Ram Sharma
R/o Rehni Tehsil, Malad Road
Talab Ke Pass Garhi, District
Udhampur-182121.
3. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
4. Plea of the accused : Pleaded not guilty and claimed
trial.
5. Final Order : Convicted
6. Date of Institution : 19.11.2018
SHIV
KUMAR 7. Date of pronouncement : 06.09.2025
Digitally signed Ct. Case No. 44862/2018 Page No. 1 of 16
by SHIV KUMAR
Date: 2025.09.06
16:01:20 +0530
Gopal Swaroop Sharma vs. Arun Sharma
JUDGMENT
1. Vide this judgment, I shall decide the present matter, Ct. Cases No. 44862/2018, filed by complainant against the dishonour of a cheque bearing no. 002410 dated 10.09.2018 for Rs. 25,00,000/-, drawn on J&K Bank, Rehambal, Udhampur (henceforth, the cheque in question).
2. Briefly stated, the facts that the complainant is working in Indian Army as Subedar and as per his job, complainant got transferred. In between December 2008 to June 2011, complainant was posted at Udhampur and was having account in State Bank of India. At that time he has policy of ICICI Prudential Life which was of Rs. 8.5 lakhs where complainant used to visit to pay premium. Accused Arun Sharma met the complainant at the said branch and was Manager there. Accused introduced himself as stock broking market agent and encouraged complainant to invest amount in commodity market. As per accused continuous demand, on 25.01.2010, complainant transferred Rs. 25,000/- and in September 2011 complainant transferred Rs. 30,000/- to account no. 30311927883 which is personal account of the accused. However, accused never opened any trading account as promised. Till 25.05.2015, complainant paid total amount of Rs. 28,63,000/- to accused. In lieu of each and every transfer, accused furnished monthly profit statement with balance payment details to the complainant. Accused gave Digitally signed by Ct. Case No. 44862/2018 Page No. 2 of 16 SHIV SHIV KUMAR KUMAR Date:
2025.09.06 16:01:26 +0530 Gopal Swaroop Sharma vs. Arun Sharma monthly profit and pending balance statement with balance payment details till May 2016 of Rs. 66,92,568/- which was inclusive of trading profit. Thereafter, accused neither furnished any profit statement and stop transferring his profit.
On seeing sudden change in behavior of accused, complainant was surprised and demanded to return all principal amount with earned profit but he did not receive any reply from the accused. After some time accused straightly refused to make the payment and also threatened him. Complainant directly approached the accused at Udhampur and asked him to repay the full amount but accused and his father Sh. Jagat Ram Sharma started threatening and clearly denied to return his money. Then complainant approached to nearest police station and lodged an FIR no. 122/16 u/s 420/506 IPC against the accused but the police did not take any serious action.
In lieu of his FIR, accused and his father showed interest to resolve all issues and gave a post dated cheque bearing no. 002410 dated 10.09.2018 of Rs. 25,00,000/-, drawn on J&K Bank, Rehambal Udhampur. On presentation, the cheque was returned unpaid with remarks "Instrument Mutilated requires bank's guarantee" on 25.09.2018.
3. Thereafter, complainant sent a legal notice dated SHIV 08.10.2018 to the accused through registered post as well as KUMAR through courier calling upon her to pay the outstanding amount. Digitally signed It is the case of the complainant that despite service/receipt of the by SHIV KUMAR Date: 2025.09.06 Ct. Case No. 44862/2018 Page No. 3 of 16 16:01:31 +0530 Gopal Swaroop Sharma vs. Arun Sharma notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
4. The present complaint was filed within the limitation period.
5. Pre summoning evidence of complainant was recorded and the cognizance was taken u/s 138 NI Act on 18.02.2019 and summons were issued to accused thereupon.
6. Notice was framed against the accused no. 1 Arun Sharma on 29.11.2019 to which he pleaded not guilty and claimed trial. Application u/s 145(2) was filed and considering submissions, same was allowed.
7. The complainant has examined himself as CW1 and filed evidence by way of affidavit Ex.CW1/A and he has relied upon the documents: -
1. Ex. CW1/1 Copy of gas connection for address proof
2. Ex. CW1/2 Detail of payment made to accused.
Detail of loan and PF withdrawal for 3. Ex.CW1/3 payment to accused Digitally signed by SHIV 4. Ex.CW1/4 Copy of monthly profit and loss statement SHIV KUMAR KUMAR Date: Ct. Case No. 44862/2018 Page No. 4 of 16 2025.09.06 16:01:35 +0530 Gopal Swaroop Sharma vs. Arun Sharma sent by accused to complainant on mail.
Copy of Magistrate complaint and FIR 5. Ex.CW1/5 against the accused at Udhampur Copy of 138 NI Act case against the
6. Ex.CW1/6 complainant filed at Udhampur by accused.
Copy of payment detail of Sudha Sharma, 7. Ex.CW1/7 wife of complainant to accused.
8. Ex.CW1/8 Original cheque in question.
9. Ex.CW1/9 Original returning memo.
Copy of Whatsapp communication
between complainant and accused
10. Ex.CW1/10 regarding money transaction alongwith
certificate u/s 65B of Indian Evidence Act.
11. Ex.CW1/11 Copy of legal notice
12. Ex.CW1/12 Original receipts of postal department.
13. Ex.CW1/13 Copy of delivery report. Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.09.06 Ct. Case No. 44862/2018 Page No. 5 of 16 16:01:41 +0530 Gopal Swaroop Sharma vs. Arun Sharma
14. Ex.CW1/14 Reply of legal notice.
8. CW1/complainant was examined in chief, cross examined on 05.11.2022 and discharged on 22.02.2023. CW2 was examined on 01.04.2023, cross examined and discharged on 06.05.2023. Closing CE, the matter was listed for SA.
9. The accused was examined and his statement was recorded under section 313, CrPC on 26.08.2023, after all the incriminating evidence and the documents on record were put to him. Accused had chosen to lead evidence in his defence. Accordingly, the matter was fixed for DE.
10. Allowing the application u/s 315 CrPC, accused was allowed to be examined as defence witness. Accused had chosen to lead evidence in his defence. Accordingly, the matter was fixed for DE and defence witnesses were examined as under:
i) DW1/accused was examined himself and cross examined on 20.01.2024. He further cross examined and discharged on 21.06.2024.
Digitally signed by Thereafter DE was closed.
SHIV SHIV KUMAR KUMAR Date:
2025.09.06 16:01:48 +0530 Ct. Case No. 44862/2018 Page No. 6 of 16 Gopal Swaroop Sharma vs. Arun Sharma
11. Both the counsels led their oral submissions alongwith judgments in support of their case. Rebuttal submissions also taken from both the counsels. The written final arguments submitted 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:
12. 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. Digitally signed by SHIV vi. the drawer of the cheque failed to make the SHIV KUMAR KUMAR Date: payment within 15 days of the receipt of aforesaid 2025.09.06 16:01:54 legal notice of demand. +0530 Ct. Case No. 44862/2018 Page No. 7 of 16 Gopal Swaroop Sharma vs. Arun Sharma
13. 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 was drawn for a consideration and that the complainant received the cheque in question in discharge of a debt/liability from the accused. The accused received legal notice and dispatched a reply to the same as per statements recorded under section 251 and 313 Cr.P.C. Hence, service of legal notice is proved.
14. 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 favour 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.
15. The statement of accused recorded under section 313 Cr.PC does not reveal any substantial explanation for issuance of Digitally signed by the cheque.
SHIV SHIV KUMAR KUMAR Date:
2025.09.06 16:02:00 +0530 Ct. Case No. 44862/2018 Page No. 8 of 16 Gopal Swaroop Sharma vs. Arun Sharma
16. It is the case of the complainant that the accused had approached the complainant by representing himself as broker in stock market. He has defrauded the complainant and other army man also. The accused used to show excel sheets of weakly/monthly profits earned via stock market trading out of the amount received from the complainant. Complainant tried to prove that Rs. 87,00,000/- were fetched from the complainant however, only the cheque pertaining to amount of Rs. 25,00,000/- has been filed in the present case. He further contended that the legal notice also demanded repayment of Rs. 25,00,000/-. The wife of the complainant was made CW2 but not the complainant however, she deposed in favour of the complainant, yet no documentary evidence was led by her to support the case of the complainant. It is on record that the seventh cheque is not mentioned in the excel sheet (Annexure A-3) alongwith application u/s 145(2) NI Act when seven cheques were shown. Complainant contended that the statement of accused in notice framed u/s 251 Cr.PC and statement given u/s 313 Cr.PC are contradictory as different amount was disclosed by the accused.
17. It is disclosed in the evidence of DW1 dated 21.06.2024 that trading account statement of BMA company never showed any transaction by accused with the complainant. It is further SHIV KUMAR matter of record that the complaint mentioned two accused however, only one accused is prosecuted vide a order dated Digitally signed by SHIV KUMAR 29.11.2019 when the notice was framed on one accused only. It is Date: 2025.09.06 16:02:12 +0530 Ct. Case No. 44862/2018 Page No. 9 of 16 Gopal Swaroop Sharma vs. Arun Sharma further matter of record that excel sheet and Whatsapp chat and account statement of ICICI Bank of accused corroborate the amount transferred to the complainant.
18. It is the case of the defence side that the accused was franchise holder of BMA Stock Broking and Commodities Pvt. Ltd. The amount given to the accused was not as loan but as capital for trading in commodities and hence, the complainant has concealed material facts and the complaint falls on the ground. It is the case of the accused that the accused had service based contact on behalf of assigner and not any personal capacity. Hence, accused is not liable. Ld. counsel for accused contended that the complainant had transferred some amount of money in the personal account of accused without consent of accused. He further contended that in the evidence of the complainant, he accepted some profit from the transfer carried out by the accused as sub broker and, therefore, the transaction is reflective of investment and not loan, therefore, there was no legal liability to return any such alleged loan amount.
19. Perusal of Court file and comparison of exhibits and evidence reflects that there are contradictory versions of statement of accused.
SHIV KUMAR 20. Statement of accused recorded u/s 251 Cr.PC dated Digitally signed by SHIV KUMAR 29.11.2019 in answer no. 3 reflects 'the cheque in question was Date: 2025.09.06 Ct. Case No. 44862/2018 Page No. 10 of 16 16:02:17 +0530 Gopal Swaroop Sharma vs. Arun Sharma with one Sunil Kapoor as a security cheque... my some cheques have misplaced, newspaper advertisement filed". Statement recorded u/s 313 Cr.PC dated 26.08.2023, answer no. 14 reflects 'the cheque in question has been stolen from my office'. Examination in chief of DW1 dated 20.01.2024 reflects 'the complainant has a friend name Sunil Kapoor in connivance with whom he stoled my cheques from my aforesaid medical shop/office'.
21. If statement u/s 251 Cr.PC is believed to be proved, it means that cheque in question was kept with Sunil Kapoor as security cheque and other cheques were misplaced. Which means that accused deposed falsely in examination in chief dated 20.01.2024 when he stated that complainant connived with his friend Sunil Kapoor and stole cheque in question from medical shop and misused it.
22. Notice framed u/s 251 Cr.PC does not reveal any defence apart from alleged fact of cheque in question being a security cheque with Sunil Kapoor, alleged misuse of the same by complainant, misplacing of few other cheques and advertisement about it in Himalayan newspaper on 31.05.2016.
23. Question no. 6 in statement recorded u/s 313 Cr.PC dated SHIV 26.08.2023 was put to the accused to explain why he issued post KUMAR Digitally signed dated cheque in question amounting to Rs. 25,00,000/- alongwith by SHIV KUMAR Date: 2025.09.06 Ct. Case No. 44862/2018 Page No. 11 of 16 16:02:22 +0530 Gopal Swaroop Sharma vs. Arun Sharma reason of its dishonour. Accused answered "It is matter of record. I have nothing to say".
24. Defence evidence dated 20.01.2024, reveals that accused in cross-examination stated that he had instructed his bank to stop payment of the cheque on the same day when the cheque in question was presented for encashment.
25. Accordingly, it is held that payment was stopped by accused and the cheque was mutilated also. Despite receipt of legal notice, accused did not issue fresh cheque nor made payment to complainant. It reveals malafide intention of accused.
26. Perusal of para 8 of complaint reveals that complainant paid Rs. 28,63,000/- to accused in various accounts as per directions of accused. Internal page 155 of Court file reveals that accused admitted having received approximately Rs. 26,50,000/- from complainant. Defence evidence dated 20.01.2024 reflects that accused admitted having received Rs. 11,70,000/- till October 2013 from complainant by any NEFT/cheques. He also admitted Rs. 14,80,000/- more having received from the complainant which includes contribution from wife of complainant. Hence, evidence of accused as corroborated with averments in the complaint that Rs. 26,50,000/- were paid by SHIV complainant to accused. The burden was on the accused to show KUMAR in what capacity, he received the alleged amount and to elaborate Digitally signed by SHIV KUMAR Ct. Case No. 44862/2018 Page No. 12 of 16 Date: 2025.09.06 16:02:28 +0530 Gopal Swaroop Sharma vs. Arun Sharma on exact amount in order to discharge the reverse burden of proof in the presence of presumption already raised in favour of complainant.
27. Admittedly, the case was registered in November 2018 and first date of hearing was 19.11.2018 and no payment was made by accused to the complainant since dishonour of the cheque till the registration of the case or thereafter during the trial.
28. It is admitted by the accused that the cheque in question bears the stamp of medical shop of the accused. He also admitted his signatures on the cheque and receipt of legal notice. Accused did not take any step to recover the cheque in question from complainant. It shows that the versions of the accused at various stages are sufficient to draw the only conclusion that the cheque in question was deliberately handed over to complainant.
29. Whatsapp communication Ex. CW1/10 (colly) is supported by certificate u/s 65B of Indian Evidence Act. The accused has financial transactions with the complainant and various amount was transferred by complainant to accused as reflected in various exhibits. Accordingly, to refute the case of complainant, no question was put during the complainant evidence. The Whatsapp communication has gone unrebutted. SHIV KUMAR Digitally signed 30. Perusal of alleged photocopy of newspaper the Himalayan by SHIV KUMAR Date: 2025.09.06 Ct. Case No. 44862/2018 Page No. 13 of 16 16:02:33 +0530 Gopal Swaroop Sharma vs. Arun Sharma Mail dated 31.05.2016 reveals that accused boldly stated that he lost a cheque book. No description of the cheque book/bank account was given and serial nos. of alleged lost cheques were not mentioned in the said advertisement. In application u/s 145 (2) NI Act, accused stated that at Annexure A-5 (page no. 27) he lost his cheque book but in Annexure A-5 (page no. 31), it was clearly mentioned that cheque nos. 2401, 2402, 2403, 2404, 2405, 2406, 2407, 2408, 2409, 2411, 2412 and 2416 were cleared between December 2013 to January 2014 and were successfully used by the accused. Therefore, cheque no. 2410 given by the accused and notification of dated 31.05.2016 at Annexure A-5 (page no. 27) for the loss of cheque book is false and fabricated story only to trap the complainant in the name of trading. The advertisement does not appear to be helpful to the accused. Hence, loss of cheque in question is not proved.
31. Even if by any stretch of imagination it is accepted that cheque was lost, then it is contradictory to statement given by accused during framing of notice u/s 251 Cr.PC wherein he said that cheque in question was given to one Sunil Kapoor as security cheque who connived with the complainant to misuse the cheque in question in this case.
32. Perusal of Mark-X5 reveals that complainant had SHIV KUMAR transferred various amounts on various dates to the bank account Digitally signed of BMA Stock Broking/account of accused. On 24.04.2015, by SHIV KUMAR Ct. Case No. 44862/2018 Page No. 14 of 16 Date: 2025.09.06 16:02:37 +0530 Gopal Swaroop Sharma vs. Arun Sharma 29.09.2015, 30.10.2015, 07.05.2014 and 09.05.2014 various amounts were transferred which were immediately transferred by the accused either in his own personal account or withdrawn via ATM or transferred to some third person without permission from complainant.
33. The quashing petition filed by the accused reveals that accused stated that complainant took loan from him for the purpose of trading however, Mark-X2 states that complainant took loan for the personal use and for purchase of new house. The submissions of the accused are contradictory and do not fulfill the standard of preponderance of probabilities to escape the conviction.
34. Application u/s 143A NI Act has been pending and not yet decided. The same is disposed off as dismissed.
35. Accused miserably failed to bring to book any piece of evidence to reveal that there was any probability of the cheque having been issued for any purpose other than one alleged by complainant. Bare averments that accused is not liable are not helpful for the cause of the accused. In consideration of the above, it can be observed that accused has miserably failed to SHIV rebut the presumption arisen in favor of the complainant under KUMAR section 118/139 NI Act.
Digitally signed by SHIV KUMAR Date: 2025.09.0616:02:42 +0530 Ct. Case No. 44862/2018 Page No. 15 of 16 Gopal Swaroop Sharma vs. Arun Sharma
36. The case is filed within limitation. Signatures on the cheque in question are admitted by accused. Service of legal notice admitted. No payment has been made by accused to the complainant since the dishonour of cheque in question. Presumption u/s 118 (a) and 139 NI Act is raised in favour of complainant. The accused has miserably failed to discharge the reverse burden by even preponderance of probabilities.
37. Accordingly accused Arun Sharma is convicted for the offence under section 138 NI Act.
38. Let the convict be heard on quantum of sentence.
39. Let the copy of judgment be given free of cost to the convict.
Note: This judgment contains 16 pages and each page is signed by the undersigned.
Digitally signed by SHIV SHIV KUMAR KUMAR Date:
Announced in the open 2025.09.06
16:02:47
Court on 06.09.2025 +0530
Shiv Kumar
JMFC-05 NI ACT
South West, Dwarka
New Delhi/06.09.2025
Ct. Case No. 44862/2018 Page No. 16 of 16