Delhi District Court
Sarmat @ Nirmala vs Seema on 27 June, 2025
IN THE COURT OF SH. SNEHIL SHARMA, The Then JUDICIAL
MAGISTRATE FIRST CLASS, NI ACT DWARKA COURT, SOUTH WEST
DISTRICT, DWARKA, DELHI
NOW WORKING AS JMFC(NI ACT-01), PATIALA HOUSE,
NEW DELHI DELHI
J U D G M E N T (RESERVED ON TRANSFER)
SARMAT @ NIRMALA VS SEEMA CC NO: 26602/2018 P. S. Najafgarh U/s 138 NI Act a CNR No. of the case : DLSW02-028755-2018 b Date of institution of the case : 25.07.2018 c Cheque number and dated : 896122 dt. 17.03.2018 d Cheque amount : Rs. 45,00,000/-
e Name of the complainant : Smt. Sarmat @ Nirmala w/o Late Sh. Rajinder Singh R/o V.P.O. Bamnauli, Tehsil Bahadurgarh, Haryana - 124507.
f Name of the accused and her : Ms. Seema w/o Sh. Sudhir Dabas parentage R/o H.No. 506, Tau Bihari Marg, Ladpur, Delhi - 110081.
g Offence complained of : 138 NI Act h Plea of accused : Not guilty i Orders reserved on : 13.05.2025 j Final order : Accused Seema is convicted for offences punishable under sections 138 NI Act. k Date of judgment : 27.06.2025
1. Vide this judgment the present complaint case for an offence punishable U/S.138 of the Negotiable Instruments Act, 1881 (hereinafter "the NI Act") is being decided.
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2. It is case of the complainant that complainant was sole and absolute owner of agricultural land measuring 6 Bigha 15 Biswa situated at V.P.O. Ashodha Todran, Teh-Bahadurgarh, Haryana-124507. In the year 2016, the accused approached to complainant and requested her to sell the said land/property to her. As complainant was not known to accused, so complainant was not interested to sale out the said property to unknown persons i.e. accused.
3. Accused made repeated requests to the complainant and convinced her to sell out the aforesaid property to accused. Thereafter, due to aforesaid request of the accused and meetings, the complainant was agreed to sell out the said property to the accused and the deal was finalized between the parties for a the total sale consideration of Rs.1,09,69,000/- regarding the agricultural land measuring 6 Bigha 15 Biswa situated at V.P.0. Ashodha Todran, Teh-Bahadurgarh, Haryana-124507. On dated 29/6/2016 accused paid Rs. 10,00,000/- vide Cheque No. 002419 dated 29/6/2016 as a token money to the complainant. Thereafter accused paid to complainant Rs. 13,69,000/- in cash on dated 1/7/2016.
4. At the time of registration of the sale deed bearing no.3155 before Registration Authority at Bahadurgarh, the accused in discharge of her liability issued two post dated cheques bearing no. 0022420 amount Rs.43,00,000/-dated 29/01/2017 and 002422 amount Rs.43,00,000/-dated 28/2/2017, drawn on Axis Bank, Pooth Kalan, Delhi branch and accused assured complainant that the aforesaid cheques will be positively honoured.
5. As per the assurance of accused, the complainant presented said cheques with her banker Punjab National Bank, but the same were dishonoured on account of signature not matched. After dishonour of said cheques the complainant became shocked and she immediately contacted accused and requested to return the cheque amount, but accused avoided CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 2 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:43:30 +0530 payment, on one pretext or the other. After repeated demand of Rs.86,00,000/- towards accused standing liability as balance consideration. pertaining to said sale deed, a suit for declaration (sales deed no.3155 Null and Void) was filed in the court of Ld. Senior Civil Judge, Bahadurgarh.
6. Thereafter accused again contacted to complainant and requested for some time and assured complainant to give balance payment and thereafter, accused entered in a compromise with complainant dated 15.3.2018, wherein in lieu of discharge of accused liability towards balance sale consideration arising out sale deed, accused again issued two cheques to the complainant for total amount of Rs.86,00,000/-. The cheque bearing no.896121 dated 15/3/2018 was for amount of Rs.41,00,000/- and another cheque bearing no.896122 dated 17/3/2018 was for amount Rs.45,00,000 /- and both were drawn at Punjab National Bank, Sector-11, Rohini. The said compromise was also filed before the court of Ld. Civil Judge, Senior Division, Bahadurgarh alongwith the copy of said cheques bearing no.896121 and 896122.
7. Accused assured complainant that the said cheques will be encashed. The copy of the said compromise is Ex. CW-1/1. The aforesaid cheque no.896121, when presented for payment through her banker, State Bank of India was honored discharging liability of Rs.41,00,000/- from total liability of Rs.86,00,000/-.
8. Thereafter, accused requested to the complainant not to present the aforesaid Cheque No.896122 for payment till 17-04-2018 stating scarce liquidity of sufficient funds required for the cheque to be honoured.
9. The complainant presented the above said cheque bearing no. 896122 in her account . But the said cheque was dishonoured and returned CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 3 of 24 Digitally signed by SNEHIL SNEHIL SHARMA Date:
SHARMA 2025.06.27 16:43:35 +0530 unpaid with remarks "funds insufficient" vide return memo dated 28.05.2018.
10. The complainant had sent a legal notice dated 11.06.2018 to the accused through her counsel regarding the dishonour of the aforesaid cheque through registered AD & speed post and the same was served upon the accused. The accused has neither replied nor make payment of the cheque amount and therefore, the present complaint is filed by the complainant against the accused for the offence under Section 138 of the NI Act.
11. On being satisfied of the prima facie ingredients of Section 138 of the NI Act, cognizance was taken and summons were directed to be issued against the accused vide order dated 18.09.2018.
12. Accordingly, on 16.10.2021 notice under Section 251 Cr.PC r/w Section 263(g) Cr.P.C was framed and served upon the accused to which she pleaded not guilty and claimed trial. While putting forth her plea of defence, accused submitted that she know the complainant and she had bought the property from the complainant. Accused has admitted her signatures on the cheque and also admitted filling of other particulars in the cheque. Accused further admits receiving of legal notice and had also replied to the same. Accused admits the bank returning memo. Accused further submits that she had given this cheque twoards purchasing of the property from the complainant only on faith as she took Rs.15 lacs from her in black. Now they want her to hounour this cheque of Rs. 45 lacs whereas she was liable and willing to pay Rs. 30 Lacs which is the remaining amount towards the said transaction.
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13. In Complainant's evidence, the complainant (CW-1) tendered her evidence affidavit in post summoning evidence and relied upon the following documents:
i) Ex. CW1/A : Evidence of complainant
by way of affidavit.
ii) Ex. CW1/1 : Copy of compromise
iii) Ex. CW1/2 : Cheque in question.
(admitted u/s 294 Cr.P.C.)
iv) Ex. CW1/3 : Returning memo
(admitted u/s 294 Cr.P.C.)
v) Ex. CW1/4 : Legal notice
vi) Ex.CW1/5 : Postal receipts
vii) Ex.CW1/6 : Tracking record
viii) Ex.CW1/7 : Reply to legal notice
14. Complainant/CW1 was cross examined on behalf of accused and she deposed that she is not educated at all. She had affixed her signatures on the affidavit in some court. However, she does not remember where the court is located. She knew the contents of her affidavit Ex. CW1/A. She used to talk to the accused through her son's mobile phone. She had never met the ascused personally. CW1 voluntarily stated that her son had met her. The cheque in question was handed over by the accused around three to three and half years ago on 17th of month. Again says she does not remember the date. Apart from cheque in question no other cheque was ever given to her by the accused.
15. CW1 further deposed that there are six members in the family who reside with her. Her son, her daughter-in-law, their two children and one daughter-in-law of her deceased son and her son i.e. her grand child. She is CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 5 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:43:47 +0530 illiterate although her family members are educated. She did not know the accused prior to the subject transaction. CW1 voluntarily stated that yeh dealer ka kaam karte hai. CW1 was asked that what does the accused do to which she answered that she is a property dealer. CW1 was asked that how did she come to know that accused is a dealer to which she answered that she was informed by her acquaintances. The accused had come to her residence for the first time around seven years ago. She does not remember the exact date or month. She was accompanied by her husband.
16. CW1 after reading over para no.4 of her affidavit Ex. CW1/A, stated that she did not make any such complaint as she also wanted to buy the property and she was also in need of money. She had met the accused for the first time at Baba Hari Das Nagar address. It is correctly admitted that this fact is not mentioncd by her in her affidavit. CW1 was asked that within how much time since her first meeting with the accused was the alleged deal finalized to which she answered that she does not recall the date however, after 2/5/10 days the deal was finalized (doh pach das din baad sauda ban gya tha). The deal was finalized in presence of her, her son Manveer, the accused and the husband of accused. No bayana was done. They had directly done the registry of the property. Court question: Do you understand the meaning of bayana to which she answered that, yes. It means some advance payment before purchase of property wherein the remaining payment is made within the stipulated time.
17. CW1 further stated that on the day of registry, the accused had given her cash Rs. 12.5 lakhs (sade barah lakhs tax vagarah kat keh), one cheque of Rs.10 lakhs and two cheques of Rs.43 lakhs cach (chalis jama teen lakh ke double cheque). Court observation: witness is unable to add 40 plus 3 and, that is why, she is using the expression chalis jama teen. She had gone to the bank to deposit the cheques along with her son. The cheque of Rs.10 lakh was encashed however, the remaining two cheques were dishonoured. CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 6 of 24 Digitally signed by SNEHIL SNEHIL SHARMA Date:
SHARMA 2025.06.27 16:43:53 +0530 These cheques were returned to her by the bank. She had filed a case against the accused in a court in Bahadurgarh (she had filed case for cancellation of registry and cheque bounce. She was under apprehension that the accused may further sale the property). Thereafter the accused had approached her and stated that she is not having funds to honour her legal liability. She requested that she withdraw the case file before the Bahadurgarh Court and allow her to sell the property forward. She undertook that she would pay her as soon as she receives the sale amount of the property. She is a widow and her son was also quite a child at that time, so with a view to settle the matter she agreed and withdrew the case from the Bahadurgarh Court.
18. CW1 also stated that at the time of withdrawal, the accused had issued her two cheques-one was of Rs.41 lakhs which was encashed and the other was of Rs.45 lakhs which is cheque in question. The accused is liable to pay this amount to her. No settlement talks happened after dishonour of the cheque, on the contrary the accused threatened her to take any action whatsoever possible by her since she would not pay her any amount. It is correctly admitted that she had not made any member of her family a witness in the list of witnesses. CW1 denied the suggestion that an amount of Rs. 15 lacs was paid to her in cash by the accused after issuance of cheque and before its presentation. CW1 further denied that she had requested the accused to pay her an amount of Rs. 15 lacs since she was in need of funds. CW1 further denied that after dishonour of the cheque, she had received the amount of Rs. 15 lacs in 2018. CW1 has denied all the suggestion put to her. Thereafter, CE was closed.
19. The accused was then examined under Section 313 Cr.P.C., 1973 wherein all the incriminating evidence were put to the accused and accused stated that compromise was entered between her and the complainant and she had issued the cheque in question as a part of this compromise. CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 7 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:43:57 +0530 Accused admitted that the cheque in question bears her signatures and remaining material particulars have also been filled by her. Accused further stated that she had come to know about dishonour of the cheque. Accused does not know whether she had received the legal notice or not but the address mentioned thereon is her correct address. Accused further stated that the reply to legal notice was sent by her earlier counsel on her instructions. Accused also said that for documents like tracking report and postal receipts etc., she had no personal knowledge about the same. Accused further deposed that after issuance of this cheque of Rs.45 lakhs, she had given a sum of Rs. I5 lakhs in cash to the complainant and on an understanding that she will provide the entire amount of Rs.45 lakhs in cash only and the complainant will return the cheque to them, however, after receiving the amount of Rs.I5 lakhs in cash the complainaınt turned back on her words and presented the cheque in question despite no instructions from her. She said that on the date of presentation of the cheque her total legal liability towards her was only Rs.30 lakhs. Accused opted to lead DE.
20. Accused has examined herself as DW1. DW1 has deposed that she is a housewife. She had not known the complainant earlier. She had only met her in Bahadurgarh Tehsil or in Dwarka Court. A particular property was purchased by her from the complainant. She does not know the details of the property or the amount of sale consideration as all thesc things are handled by her husband. As far as she is concerned one cheque of Rs.45 lakhs was given to the complainant as part of sale consideration of that property however, they had paid a sum of Rs.15 lakhs to the complainant out of that amount on an assurance that she would return the cheque of Rs.45 lakhs. However, thc complainant refused to do so and filed this false case against her. She is not liable to pay the cheque amount. Her liability is only for Rs.30 lakhs which she is ready and willing to pay even today. She CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 8 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:02 +0530 does not remember whether any other case was filed by the complainant against her.
21. DW1 was cross examined on behalf of complainant and she deposed that in the year 2016, she was house wife and in the year 2018 also she was house wife. DW1 voluntarily deposed that now she is running business of farm house/ resort. In the year 2016 and 2018 her source of income was Nil. It is correctly admitted that on 01.07.2016 complainant executed a sale deed in her favour qua purchase of agricultural land and she is not aware the details of land. She does not remember if she had issued three cheques towards the sale consideration of the land. Regarding the sale deed dated 01.07.2016 entire sale consideration was paid and settled.
22. DW1 voluntarily deposed that some of the part of sale consideration was remained unpaid. The sale consideration was paid through the income source of her husband. In the year 2016 her husband was employed with Tihar Jail as an warden and now working as property dealer. DW1 voluntarily deposed that in the year 2016, in addition to her employment, her husband was doing work of property dealer side by side. She does not have any knowledge when her husband left the job. She does not remember whether the complainant filed a civil suit in Bahadur garh court against her in the year 2018. She does not remember whether she had appeared in civil court at Bahadurgarh at any point of time. Her husband knows whether on 15.3.2018 any settlement / compromise was executed between her and complainant qua civil suit, she does not remember.
23. DW1 identifies her signature on Ex.CW1/1 below the signature of complainant. She does not remember whether she had issued cheques in question in the present case or not to the complainant. Witness has admitted her signature and written contents thereon on Ex.CW1/2. She does not remember whether she had received legal demand notice or not. She does CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 9 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:06 +0530 not remember whether any reply to legal notice was got issued on her behalf. She does not remember date, month, year or time of payment of Rs. 15 lac to the complainant. She sent payment of Rs.15 lac to the complainant through her husband. She did not make the aforesaid payment personally. No receipt was obtained from the complainant qua aforesaid payment of Rs. 15 lacs. The payment was made before dishonour of cheque however, she does not remember how many days before the dishonour of the cheque, she made the payment.
24. DW1 had not made any complaint that she is not liable to make the payment of the cheque amount. She does not remember from where and how source of payment of Rs.15 lacs. DW1 voluntarily stated her husband used to take care for all the financial dealings. The property which was purchased by her from complainant on 01.07.2016 had been sold by her. She does not remember the year or to whom she sold the said property. She had denied all the suggestions put to her.
25. Accused examined Dr. Surender Dabas as DW2 and he deposed that the son of the complainant is also a doctor. Therefore he tried to mediate this matter between the complainant and the accused. Eventhough the son of the complainant was not known to him earlier, however, during the pendency of this case, he came in contact with the son of the complainant. He alongwith Dr. Ajay Dabas and Sh. Pankaj Chillar (advocate) went to the clinic of the son of the complainant for the purpose of mediation in the present matter. At the time of mediation, alongwith the aforesaid persons, son of the complainant, two local people who were known to him as well as to the son of the complainant were present. The cheque in question was lying with Dr. Ajay Dabas. Ajay Dabas told him that he has given Rs. 15 lacs to the son of the complainant at Mansa Ram Hospital, Nangloi.
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26. On Court Question, DW2 answered that Rs. 30 lacs was due to be paid by the accused to the complainant. DW2 further deposed that the complainant and the accused were the joint owners of a property situated at a village near Bahadurgarh. The aforesaid property was sold to someone and the aforesaid Rs. 30 lacs were due to be paid by the accused to the complainant out of the consideration amount realised from the aforesaid sale. DW2 voluntarily stated that the son of the complainant namely Dr. Manveer Chillar already took a sum of Rs. 15 lacs in cash from the husband of the accused namely Sudhir in the presence of Dr. Ajay Dabas at Mansa Ram Hospital Nangloi.
27. It is further stated by DW2 that since after the payment of Rs. 15 lacs, only Rs. 30 lacs were due to be paid by the accused to the complainant, he in the aforesaid mediation requested the son of the complainant Dr. Manveer Chillar to take the amount of Rs. 30 lacs alongwith interest which he would pay. Dr. Manveer Chillar admitted that he had taken a sum of Rs. 15 lacs. He had a recording of the same. The same is now exhibited as Ex. DW2/1. However, Dr. Manveer Chillar said that he will not settle the matter for anything less than 1.25 crore. Dr. Manveer Chillar was adamant on the settlement amount of Rs. 1.25 Crore even after he offered a sum of Rs. 60 lacs. Due to the above, the mediation failed.
28. DW2 was cross examined and he deposed that around 2 ½ years back, he became aware about the trial of present case. Prior to the meeting conducted with Dr. Manveer in presence of Dr. Ajay Dabas and Pankaj (lawyer), he had once visited the clinic of Dr. Manveer around 1 month prior. He visited the clinic of Dr. Manveer in the month of October 2021 probably. The meeting continued for around 1 ½ hours. Before visit the clinic of Dr. Manveer he along with Dr. Ajay Dabas decided to record the coversation of the Dr. Manveer. The recording was continued during the CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 11 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:17 +0530 complete meeting hours i.e. more than 1 hour. DW2 was asked that can he tell the duration of recording which he had submitted in his evidence through pen drive to which he answered that exact duration he does not know.
29. DW2 was asked that what was the mode of recording i.e. which mobile to which he answered that samsung. DW2 was asked that when and how he transferred the recording from the mobile to the pendrive to which he answered that after the six months of the incident and same was transferred by his nephew. The transfer of the conversation in pendrive was not done in his presence. Afer leaving the meeting he had listened the recording conversation. The fact of recording the conversation of meeting was conveyed to the accused Smt. Seema. He was not aware about the number of cheques issued in favour of complainant from the side of his family including him, his brother(Sudhir) and accused/Smt. Seema. The payment of Rs. 15 lacs was not given to the complainant's son in his presence.
30. DW2 was asked that that son of the complainant Dr. Manveer has stated in the conversation that sum of Rs. 15 lacs in cash was received prior to the issuance of presentation of cheque in question to which he answered that he does not have any idea about the same. It is correctly admitted that accused is his wife of his younger real brother. DW2 has denied all the suggestions put to him.
31. Accused examined Ajay Kumar as DW3 and he deposed that on 22.11.2021, he had attended a meeting in Najafgarh in the office of Dr. Chillar's clinic. Inside said meeting 6/7 persons were present including Dr. Mandeep Chillar, adv. Pankaj and Dr. Surender and myself. Meeting was regarding an ongoing dispute for the settlement purpose. In meeting settlement could not be arrived as there was some dispute of around Rs.15 CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 12 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:23 +0530 lacs. Dispute was that amount of Rs. 15 lacs which were already paid by Sudhir to the son of the complainant, could not be adjusted towards the settlement offer. Meeting was concluded and thereafter he did not participate in any meetings. All conversation has been recorded in his phone make S20, Ultra Samsung. The said phone is with him and he is ready to deposit the said phone in the court for the genuiness of the conversation. He can verify the voice of Dr. Chillar, Ady. Pankai, Sachin(expired) and Dr. Surender.
32. DW3 was cross examined on behalf of complainant and he deposed that he came to know about the meeting on the same day i.e. 22.11.2021 at around 5.00- 6.00 PM and attended the meeting around 7.00 PM. DW3 was asked that had he decided before the meeting that he will record the meeting without the knowledge of the other parties to the meeting to which he answered that No.
33. DW3 voluntarily stated that he decided the same during the meeting.
The meeting was continued. The recording is of full length from the starting till the end of the mecting. The recording is between from around 7.00-8.00 PM. The duration of the recording is of around 45 minutes to 1 hour. The recording device i.e. mobile is of mine. He had shared the recording of the mecting to Dr. Surender Dabas. He had not shared the recording of the meeting to anyone else except Dr. Surender Dabas. He was not present at the time of transferring of recording of meeting from mobile phone to pendrive in order to produce the same before Hon'ble Court. DW3 has denied all the suggestions put to him.
34. Accused examined Sudhir Dabas as DW4 and he deposed that there was a deal between him and the son of complainant regarding sale purchase of agriculture land situated at Asoda Village, District Jhajjar, Haryana. The transaction for the sale of the said land was Rs.86 lacs. At the time of CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 13 of 24 Digitally signed by SNEHIL SNEHIL SHARMA Date:
SHARMA 2025.06.27 16:44:29 +0530 execution of sale deed two cheques were given of Rs.41 lacs and Rs. 45 lacs. After execution of the sale deed measurement of the land was conducted and it was found that 1 bigha land is short. This dispute of short land was brought in the notice of the complainant's son. Entire dealing was done by son of the complainant on behalf of complainant. During this period one cheque of Rs.41 lacs was encashed in favour of complainant. Regarding the short land disputes arrised and they stopped the payment towards the cheque of Rs.45 lacs. Thereafter, we approached civil court Bahadurgarh for settlement.
35. DW4 further stated that at Civil Court Bahadurgarh a settlement was recorded with the complainant in presence of adv. Pankaj. Dr. Manvir Chillar and himlsef. Before presentation of cheque in question the son of the complainant approached him and expressed his needs and demanded Rs.15 lacs in cash. In the mid of year 2018, son of the complainant in presence of adv. Pankaj received Rs. 15 lacs from him at his Kanjhawal office. After payment of Rs. 15 lacs in cash. He asked Dr. Manveer to return the cheque of Rs.45 lacs back to him and he also suggested to collect another cheque of balance amount of Rs.30 lacs. He also suggested either to collect cash. Then he received court notice and dispute started on the first date before the court and he also admitted his legal liabílity of Rs.30 lacs. He is still ready to pay the same.
36. DW4 was cross examined and he deposed that he does not remember whether the sale consideration was of Rs. 10969000/-. The sale deed was executed in favour of his wife through him. At this stage, witness is shown photocopy of sale deed dt. 01.07.2016 upon seeing the same witness admits that the sale consideration amount was Rs. 10969000/-. It is correctly admitted that at the time of sale deed three cheques of Rs.10,00,000/-, Rs. 43 lacs and Rs. 43 lacs were issued in favour of complainant. The cheques given at the time of sale deed were issued from the account of accused CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 14 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:34 +0530 Seema. He does not remember the three cheques were issued from the account of Salasar Real and Builders. Salasar Real and Builders was started in the year 2006/2007 and he and his wife are the partners. No notice was issued regarding the short land dispute. DW4 voluntarily stated that verbally it was conveyed. Before Civil Judge Bahadurgarh suit was filed by the complainant as the cheques issued at the time of sale deed were dishonoured. He does not remember reason for dishonour.
37. DW4 voluntarily stated that perhaps same would have been stopped with a request with bank as short land dispute arises. At this stage, photocopy of two cheques of Rs. 43 lacs each issued at the time of sale deed are shown to the witness and after seeing the same the witness admits that the cheques were returned unpaid with reason drawer's signature differ.
At this stage, witness asked whether complainant is able to bring the original cheque before this court as in the back side of the cheque receiving of Rs. 15 lacs is recorded. He has received Rs. 15 lacs back side of the said cheque. The amount of Rs. 15 lacs recorded in the back side of the cheque was made/paid towards the dispute arises qua the part payment. This Rs. 15 lacs against the receipt upon the back of the cheque was paid in the mid of year 2018. The son of the complainant signed the receiving behind the back of f the said cheque about the reccipt of cash of Rs. 15 lacs.
38. At this stage, ld. counsel for the complainant produced two cheques boaring no. 002422 dt. 28.02.2017 of Rs.43 lacs and another cheque bearing no 002420, dt. 29.01.2017 of Rs.43 lacs same are now Ex.DW4/1 and Ex.DW4/2 respectively. It is correctly admitted by DW4 that in back side of exhibit Ex.DW4/2 bears his signature alongwith the signature of doctor Manveer regarding the receipt of Rs.15 lacs. It is correctly admitted that receipt of Rs. 15 lacs is endorsed and recorded date as 18.12.2016. It is correctly admitted that cash payment of Rs.15 lacs transaction was done on 18.12.2016. In civil suit settlement was recorded before the Bhahdurgarh CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 15 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:39 +0530 Court on 15.03.2018 and settlement was signed by accused Seema. It is correctly admitted that in terms of settlement dt. 15.03.2018 two cheques of Rs.41 lacs and Rs. 43 lacs were issued in favour of complainant by the accused. The land purchase from complainant was sold to one resident of Ashoda on 15.03.2018.
39. DW4 further stated that the sale deed executed in favour of buyer of resident Ashoda bears the same contents and measurement of the land which were recorded in the sale deed executed by complainant in favour of accused. Short land issue was informed to the subsequent buyer before execution of sale deed. DW4 has denied all the suggestion put to him and thereafter DE was closed and final arguments were heard.
40. It has been argued by Ld. Counsel for the complainant that case of the complainant is proved and cheque is also in the favour of the complainant, therefore, accused must be convicted and amount should be recovered. On the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in this case and that complainant has not been able to prove its case beyond reasonable doubt against the accused.
41. I have heard ld counsel for the complainant and Ld. Defence counsel for accused & considered the respective arguments as well as gone through case file very carefully.
42. The essential ingredients in order to attract Sec. 138 of NI Act, 1881 are as following:
i) The cheque for an amount is issued by the drawer to the payee/complainant on a bank account being maintained by him.
ii) The said cheque is issued for the discharge, in whole or in part of any debt or liability.
iii) The cheque is returned by the bank unpaid on account of insufficient amount to honour the cheque or it exceeds the CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 16 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:45 +0530 amount arranged to be paid from that account by an agreement made with the bank.
iv) The cheque is presented within 3 months from the date on which it is drawn or within the period of its validity.
v) within 30 days a legal demand notice is issued by the payee or the holder in due course to the drawer of the cheque on receipt of information by him from the bank regarding the dishonour of the cheque.
vi) The drawer of the said cheque fails to make payment of the said amount of the money as demanded in the legal demand notice to the payee or the holder in due course within 15 days of the reciept of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
43. Now, coming to the facts of the present complaint case keeping in view the essential ingredients of section 138 of NI Act. In this case, it is not disputed and duly admitted by the accused that the cheque in question bears her signatures and other particulars are also fulfilled by her and also admit giving of the cheque to the complainant. Therefore, it can be said that the cheque was drawn by her in favour of the complainant (being the holder of the cheque). Therefore, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled.
44. The dishonour of cheque is mattter of record and accused has not contradicted the said returning memo showing fund insufficient in the account of the accused, hence, another essential ingredients (iii) and (iv) also stand proved by the complainant. Accused has replied the legal demand notice and admits address to be corrrect. So it can be rightly said that she has received the legal notice. Hence, essential ingredients (v) and
(vi) also stand proved.
45. Now coming to the last and the remaining core ingredients (ii) and
(vii) of Section 138 of NI Act as discussed above and the real issue of controversy herein i.e. whether the cheque in question was issued in CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 17 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:44:53 +0530 discharge of any debt or liability, whole or in part and whether the same is a legally enforceable debt.
46. In this case, the statutory presumptions under section 118(a) and 139 would be raised in favour of the complainant regarding the fact that the impugned cheques have been drawn for consideration and issued by the accused in discharge of legally enforceable debt.
47. It has been held by a three-judge bench of the Hon'ble Apex Court in the case of Rangappa vs. Sri Mohan (2010) 11 SCC 441 that the presumption contemplated under Section 139 of NI Act includes the presumption of existence of a legally enforceable debt. Once the presumption is raised, it is for the accused to rebut the same by establishing a probable defence. The principles pertaining to the presumptions and the onus of proof were recently summarized by the Hon'ble Apex Court in Basalingappa vs. Mudibasappa (2019) 5 SCC 418 as under:
"25. We having noticed the ratio laid down by this Court in the above cases on Section 118(a) and 139, we now summarize the principles enumerated by this Court in the following manner:
25.1. 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. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3. To rebut the presumption, it is open for the accused to rely on evidence led by him or the 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.
25.4. 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.
CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 18 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:45:10 +0530 25.5. It is not necessary for the accused to come in the witness box to support his defence."
It is explicit in the NI Act that the said presumption shall remain untill contrary is proved.
48. Perusal of the record shows that the cheque in question dt 17.03.2018 was given by the accused in compromise settlement before the Ld. Civil judge at Bahadurgarh and accused did not disclose the reason for withdrawing from the said compromise statement/agreement given before the civil court and also non compliance of the said agreement. As per the compromise, the amount and date were already filled in on the cheque. The accused failed to demonstrate how the circumstances if went beyond her control and why she could not maintain sufficient funds in her account on the due date or even beyond the date and why she made wrong statement before the court.
49. It is also found that as per the accused, she has paid Rs 15 lacs in cash to the complainant prior to realisation of the cheque. However when, where and why the amount of Rs 15 lacs was given to the complainant that too without any documentation is never explained. It is also not explained by the accused even in her reply to legal notice that why she deviated from the compromise submitted in court. It is not explained by the accused that what were the compelling circumstances for her to pay the amount of Rs 15 lacs in cash, instead of bank mode. It is pertinent to mention here that there is a gap of only 2 days in 1st cheque date & 2nd cheque date and 2nd cheque was returned unpaid due to insufficient funds.
50. Also, Even if we assume this new allegations of the accused to be true, still the accused should have either filed a separate recovery case for Rs. 15 lakhs or approached the civil court claiming that the complainant committed fraud with her or should send legal notice first. However, she CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 19 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:45:14 +0530 did not do any of this. Instead, accused failed to honour the cheque presented in civil court. Her bank account also shows "insufficient funds,"
not a "stop payment" instruction and this further weekens her defence. Even the accused has not shown the source of Rs 15 lacs i.e bank withdrawal etc. Also, the allegation of receiving Rs.15 lacs is against the son of the complainant and not to the complainant and no witness confirmed the presence of complainant while allegedly giving Rs.15 lacs (if true).
51. In addition to this, the accused in her application u/s 145(2) NI Act para 9 submitted that the complainant with ulterior motives without presenting the cheque in question for encashment has withdrawn the said suit in clear violation of the terms of compromise. This also suggest that accused knew that bouncing of cheque is a violation of compromise including the violation of civil court's settlement. Here also accused did not disclose the ulterior motives of the complainant. It is a question of common sense that no sensible person would knowingly trap their own money again without any reason. Rather the withdrawing of civil case by complainant without realising the full payment shows her trust as well bonafidness.
52. Also the accused has admitted herself during notice framing that she had signed the cheque, has filled the cheque and had given the cheque to the complainnant and could not show that how the facts and circumstances got changed between the day the cheques in question is handed over and the day when it got bounced. Further accused has made a contradictory statement in notice framing by stating that cheque was given towards purchasing of the property instead of compromise/settlement.
53. Additionally the testimony of CW1 has remained unchallenged and unrebutted. Despite such extensive cross-examination, the accused could not extract any relevant contradictions from the complainant. Moreover, the CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 20 of 24 SNEHIL SHARMA Digitally signed by SNEHIL SHARMA Date: 2025.06.27 16:45:19 +0530 questions asked by the accused regarding the property do not make much difference, as the accused has already admitted to the property dealings with the complainant.
54. Also the contradictory stand is taken by the accused for Rs 15 lacs as during notice framing, accused submitted that Rs 15 Lacs was given for purchase of property i.e in 2017, in reply to legal notice, she deposed that complainant was in need of money, so she paid the amount and during cross examination of CW1, suggestion was given by counsel for the accused that amount was received in 2018 after dishonour of the cheque. Subsequently, if the amount was given by the accused after dishonour of the cheque then also the accused could not show any documentation.
55. It is also found that during Statment of accused, accused has submitted that there was understanding between the parties that Rs 45 lacs will be provided in cash and complainant will return the cheque. However, where & how they made understanding is never brought on record by the accused. It is acceptable fact that generally the people takes cash first and keep cheques for future but the accused is blowing entirely different horn by stating that cheque was realized first, case was withdrawan and then cash was kept pending to be paid later on.
56. Alongwith this, the answers given by accused at the time of defence evidences are evasive one and in the form of "i do not remember". DW1 does not remember issuances of cheque, she does not remember the civil suit against her in bahadurgarh court, she also does not remember compromise between them, she does not remember receiving of legal notice, she does not remember date, month, year , time or source of payment of Rs 15 lac etc. She even admits that she did not make alleged payment of Rs 15 lacs personally to the complainant. She also admits that CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 21 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:45:24 +0530 no receipt was obtained from the complainant qua the alleged payment of Rs 15 Lacs. Therefore, these answers are not of any help to the accused.
57. It is also found that the audio recording EX DW2/1 does not mention the voice of the complainant or accused but of other persons and accused could not prove that how the said recording is relevant without proving its authenticty, without showing that it is legally obtained, without forensic verification/voice matching and without showing circumstances under which it is recorded etc. Even if consider the voice recording, the Accused could not show that admission by person other than complainant is fatal to the case of complainant when complainant's voice or presence is not present in the recording.
58. It is pertinent to mention here that as per DW2, he offered a sum of Rs 60 lacs to the complainant's son for settlement against less liability. This indicates either a fear of adverse findings at trial, an implicit admission of guilt, or a strategic move to avoid further scrutiny and legal consequences.
59. DW3 also talks about giving of Rs 15 lacs cash to son of the complainant and not to the complainant, though not proved. Also, the clarification and explanation was given by counsel for the complainant regarding said receiving that it was on 18.12.2016 and not after making the settlement agreement in court in 2018. Accused or DW3 could not rebut the said claim. It seems that the accused is trying to take advantage of some old transaction in the present case.
60. As neither the effective cross examination of complainant was conducted by the accused nor she has led effective DE. No doubt is raised upon the story deposed by the complainant. Accused had not shown how and when she has repaid the entire amount. Once the cheque is drawn in favour of the complainant, it was the duty of the accused to keep money in CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 22 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:45:28 +0530 her bank account to discharge her legal liability against the complainant or if she has already paid the money she should ask the complainant in writing (documentary or through whatsapp) to return the cheque. However, as the accused has admitted herself that she had given the cheque and complainant proved that cheque was given to repay the amount, also sufficient to prove that cheque was issued in lieu of legal and enforceable debt.
61. Non-discharge of the liability of cheque amount by the accused is not a ground of acquittal without any evidence/witness/record etc. No plea of alibi is taken by the accused on the date deposed by the complainant. No repayment slip is shown by the accused so as to suggest that she does not have this much liability towards the complainant. Mere verbal submission of the accused without any legimate proof is no evidence.
62. On the aspects of preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the court to conclude either that the consideration did not exist or that its non existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. As per the facts and circumstances of this case accused has not led any cogent and believable evidence to support her defence and has failed to rebut the presumptions.
63. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel vs State of Gujarat and Another 2019) 18 SCC 106 and in various other rulings have time and again, emphasized that though there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfil the requirements of rebuttal as envisaged under section 118 and 139 of the NI Act. Further, it CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 23 of 24 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.06.27 16:45:33 +0530 has been held in Rajesh Agarwal v. State, 2010 SCC online Del 2501 that:-
"9. .....There is no presumption that even if an accused fails to bring out his defence, he is still to be considered innocent. If an accused has a defence against dishonour of the cheque in question, it is he alone who knows the defence and responsibility of spelling out this defence to the court and then proving this defences is on the accused....."
64. Keeping in view the facts and circumstances of the present case and the settled position of law in this regard, the presumption of law as per section 118(a) and section 139 of NI Act clearly come in picture for the favour of complainant and her burden of proving the fact of issuance of cheque in question in discharge of legally enforceable debt stands discharged and the accused has miserably failed to discharge her reverse onus. Accordingly, the ingredients mentioned at (ii) & (vii) of Para No. 42 of this judgment are also fulfilled.
65. In my view, the complainant has proved that the accused had issued the cheque in question in her favour for discharge of the legally enforceable liability and has proved her case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, accused Seema is thus, held guilty and stands convicted for the said offence.
Digitally signed by
SNEHIL SNEHIL SHARMA
SHARMA Date: 2025.06.27
16:45:39 +0530
Announced in Open Court (SNEHIL SHARMA)
today on 27.06.2025 The Then, JMFC (NI Act) SOUTH- WEST
DWARKA, DELHI
Now
JMFC (NI Act 01)
PATIALA HOUSE COURT,
NEW DELHI
Copy of this judgment be given free of cost to convict.
CC NO. 26602/2018 SARMAT @ NIRMALA VS SEEMA Page 24 of 24