Delhi District Court
Bhudev Pd. Vaishnav vs Rajan Kr. Sharma on 29 May, 2025
IN THE COURT OF SH. SNEHIL SHARMA,
JUDICIAL MAGISTRATE FIRST CLASS, NI ACT -08,
SOUTH WEST DISTRICT, DWARKA COURT, DELHI
JUDGMENT
BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA CC NO: 8332/2018 P. S Dwaraka South U/s 138 NI Act a CNR No. of the case : DLSW02-010458-2018 b Date of institution of the case : 27.02.2018 c Cheque number and dated : 492133 dt. 24.10.2017 & 492947 dt. 20.11.2017 d Cheque amount : Rs. 20,000/- and Rs. 10,000/- resp. e Name of the complainant : Bhudev Prasad Vaishnav s/o Sh. Jeetram, Office at:- Seat no.7, Hall No.4, Lawyers Chambers Block, Dwarka Court Complex, Sector 10, Dwarka, New Delhi- 110075.
f Name of the accused and his : Rajan Kumar Sharma s/o Chander Pal Sharma parentage r/o Plot No. 162, 3rd Floor, Amberhai Village, Sector 19 Dwarka, New Delhi - 110075.
g Offence complained of : 138 NI Act h Plea of accused : Not guilty i Orders reserved on : 16.05.2025 j Final order : Accused Rajan Kumar Sharma is convicted for offences punishable under sections 138 NI Act. k Date of judgment : 29.05.2025
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.
2. It is case of the complainant that complainant is an advocate by profession. The complainant was engaged by accused to conduct the case in FIR No. 1073/2015, u/s 376/323/406 IPC, Police Station Vasant Vihar, titled as Sate CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 1 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:35:17 +0530 Vs. Rajan Kumar Sharma which included the bail proceedings and trial till acquittal. The complainant contested the case diligently from time to time for which he further engaged another lawyer Sh. Dharmendra Kumar advocate for the purpose of trial.
3. That at the time of signing vakalatnama, it was agreed by accused to pay fees of Rs.2,00,000/-(Two Lakhs Only) out of which 1,20,000/- was paid in cash and cheque by way of instalments as part payments, however Rs.80,000 (Eighty Thousand only) was balance due on accused part. Accused had issued cheque no 492133 in the sum of Rs.20,000/- dated 24-10-2017 and cheque no. 492947 dated 20-11-2017 of Rs.10,000/- both drawn on Canara Bank, Vasant Vihar, New Delhi for payment of fee to complainant.
4. On the assurance of the accused, the complainant presented the abovesaid cheque for encashment with his bank but the said cheque was dishonoured and returned unpaid with remarks "funds insufficient" vide return memo dated 27.10.2017 and accused requested to present the cheque again after 10.01.2018 and it is again returned back with the same reason on 12.01.2018. Accused also assured to pay balance amount of Rs.50,000/ in cash in Feburary 2018.
5. The complainant had sent a legal notice dated 06.02.2018 to the accused through his counsel regarding the dishonour of the aforesaid cheque through registered AD & speed post but the accused has neither discharged his liability 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.
6. 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 27.02.2018.
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7. Accordingly, on 25.06.2018 notice under Section 251 Cr.PC r/w Section 263(g) Cr.P.C was framed and served upon the accused to which he pleaded not guilty and claimed trial. While putting forth his plea of defence, accused stated that he had engaged the complainant in the case bearing FIR no. 1073/15 PS Vasant Vihar in case titled as State VS Rajan Kumar Sharma. He had never engaged the complainant directly. One relative of the complainant namely Vijay Bharadwaj engaged the complainant on his behalf. The cheques in question were not issued by him for discharging any part liability qua the legal renumeration fee of the complainant but the same were issued by him to the complainant for filing defamation suit against the prosecutrix in FIR bearing no. 1073/15 PS Vasant Vihar in case titled as State VS Rajan Kumar Sharma. The complainant misused his cheque in the present case. The complainant had to return his cheques and the amount of Rs. 45,000/- also but has filed the present false case against him. He had admitted the receving of legal notice and also stated that he had not replied to the same but had telephonically spoken to the complainant. He had filed police complaint against the complainant.
8. In Complainant's evidence, the complainant (CW-1) tendered his evidence affidavit in post summoning evidence and relied upon the following documents:
i) Ex. CW1/1 :Evidence of complainant by
way of affidavit.
ii) Ex. CW1/A &B : Original cheque
iii) Ex. CW1/C : Returning memo dt. 27.10.2017
iv) Ex.CW1/D&E :Returning memo dt. 12.01.2018
v) Ex. CW1/F : Legal notice
vi) Ex. CW1/G to I : Postal receipts
vii) Ex. CW1/J to L : Delivery report
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SNEHIL
SNEHIL SHARMA
SHARMA Date:
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9. CW1 was cross examined on behalf of the accused, and he deposed that he had engaged the counsel Dharmender Kumar advocate for assisting the accused in the trial in FIR bearing no. 1073/15, U/s 376/406/323 IPC, PS Vasant Vihar. CW1 voluntarily deposed that the accused has signed the vakalatnama of Sh. Dharmender Kumar advocate on 21.07.2016 for appearing in the Court of Sh. D.K Sharma, Ld. ASJ, FTC Patiala House court. The accused has agreed to pay Rs.2 lakhs as legal fee to me for the bail and trial in the aforesaid case. Complainant had filled the date on the cheque in question Ex.CW1/A and amounting to Rs. 20,000/- and Rs.10,000/- respectively on the instance of the accused. He had received a payment of Rs. 1,20,000/- on different dates by way of cheques and cash and that is why he continued to represent the bearing FIR NO. 1073/15, PS Vasant Vihar. He received Rs. 50,000/- in accused in the aforesaid matter cash on 10.01.2016 from the friend of the accused namely Mr. Vijay Bhardwaj when the accused was in JC and the balance payment of Rs. 70,000/- was paid by the accused himself. He got the vaklatnama signed for the accused on 12.01.2016 in the court of Sh. Harvinder Singh, Ld. MM Patiala House Court when the accused was produced from JC and the accused released on bail on 23.01.2016 by the court of Sh. Amit Bansal, Ld. ASJ, FTC Patiala House Court.
10. CW1 further deposed that he got another vakalatnama signed from the accused on 29.03.2016 and submitted in the court of Sh. D.K Sharma, Ld. ASJ Patiala House Court. He received the balance amount of Rs. 70,000/- from the accused on different dates after he was released on bail on 23.01.2016. He voluntarily stated that the said payment of Rs.75,000/- was given by the said Vijay Bhardwaj in presence of the accused after the bail was granted. He knows Hira Lal Jaiswal as he is the father of the wife of the accused. He came to know about the said Hira Lal Jaiswal when the bail bond was furnished by the wife of the accused in terms of section 437 A Cr.P.C when the accused was acquitted in the said case and he presented the said bail bonds. CW1 has denied all the suggestions put to him.
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11. Complainant examined Dharmendra as CW2 by way of affidavit Ex.CW2/1 and he deposed that the he is an advocate Enrolment No D/1409/2000 by profession since year 2000 and has been practicing criminal law mainly and was approached by the complainant for taking the services of the expertise of the CW2 in case FIR NO 1073/2015 U/s 376/323/406 IPC P.S Vasant Vihar Titled State Vs Rajan Kumar Sharma. It is further stated that the complainant had requested the CW2 to render help in contesting the case while the case was at the stage of the prosecution evidence before the court of Sh. Devendra Kumar Sharma Ld. ASJ/ FTC PHC and hence after the due consultation with the accused Rajan Kumar the deponent along with his Associates Abhishek Aggarwal and Akhilesh Kumar was engaged as counsel after signing the vakalatnama by the accused as well as the complainant/CW1 and associates of CW2 including CW2 on 21st July 2016 and the same was filed before the Ld. Court on 22 July 2016 advocate in the above noted matter and was engaged as an advocate.
12. CW2 and the complainant had diligently contested the case and in between at the time of recording statement of Accused Rajan Kumar on 05-05- 2017 same day the accused had handed over the two cheques towards the part payment due to the complainant vide cheque no 492133 in the sum of Rs 20000/- and Cheque no 492947 in the sum of Rs 10,000/- drawn of Canara bank Vasanth Vihar and had requested the complainant in the presence of CW2 that since the funds was not available, the dates of the cheque was not filled by the accused. However, the accused requested complainant to fill the dates after confirming from the accused Somewhere in month of October 2017. It was also assured that accused shall be paying the balance remaining amount of Rs.50,000/-in February 2018 towards full and final fees for contesting the case.
13. That the complainants informed CW2 that after due consultation with the accused the dates on the cheque were filled by the complainant as he had assured the encashment of the cheques if presented and however the cheque in CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 5 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:35:38 +0530 the sum of Rs 20000/- dated 24-10-2017 has been dishonoured and accused has asked the complainant to present it again with the second cheque issued by him in the sum of Rs 10, 000/- dated 20-11-2017.
14. It is further stated that the CW2 and the complainant had argued the case of the accused at length quoting various landmark judgments on 27-11-2017 and then also the accused has assured the complainant to present the cheque after 10-01-2018 and to believe the accused. The deponent continued Contesting the case on the assurance of the complainant that that cheques shall be honoured as assured by the accused. After acquittal on 30.11.2017, accused again assured the complainant that cheque will be honoured after 10.01.2018 and cash of Rs.50,000/- shall be paid in February 2018.
15. CW2 was cross examined on behalf of accused and he deposed that he met accused Rajan first time prior the day of filing my vakalatnama. It is written in para no. 2 of his affidavit which is Ex. CW-2/1. He missed only one or two dates after 21.07.2016. CW2 voluntarily deposed that he is not sure. CW2 voluntarily deposed that on the instance of accused CW-1 had approached him. In FIR No. 1073/15 which is Ex. CW-1/2 the amount of fees in between accused and complainant was not fixed in his presence. After 21.07.2016 he had spoken with accused Rajan regarding fees, that why he is not paying the fees to CW-1 because he has asked me not to appear as accused is not paying the pending fees. Accused had signed the vakalatnama in his presence on 21.07.2016.
16. CW2 does not remember who else had signed the vakalatnama but can tell the same after looking at the vakalatnama. It is correctly admitted that both the cheques of Rs.10,000/- and Rs.20,000/- were given in his presence to CW-1. No amount has been fixed in between him and accused as the professional fees. It is correctly admitted that the professional fees were decided in between him and CW-1 with respect to his fees. CW2 voluntarily stated that accused had himself disclosed that he has to pay balance of Rs.80,000/-. He does not have CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 6 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:35:42 +0530 any idea whether an amount of Rs.50,000/- cash given by accused to CW-1. CW-1 never disclosed him that the accused had ever approached him for filing another case. CW-1 informed him that both the above-mentioned cheques were presented in the bank and were bounced. There were no talks between him and the accused regarding presentation of the cheques. It is correct that no amount is due from accused Rajan to him till date. CW2 has denied all the suggestions put to him and thereafter CE was closed.
17. The accused was then examined under Section 313 Cr.P.C., 1973 wherein all the incriminating evidence were put to the accused and accused has stated that he had engaged the complainant in FIR no. 1073/2015 Titled as State Vs. Rajan Sharma and had paid him entire amount for the services and nothing remain to be paid to the complainant. He was acquitted in the abovesaid FIR and he had instructed the complainant to file the defamation suit. He had issued the cheque in question to the complainant for this purpose only, which complainant has misused. The cheque in question was given to the complainant as duly filled and signed except the date. He had instructed the complainant to inform him before presenting the cheque. He admits receiving of the legal notice. He further stated that complainant has filed false case against him, and is using his profession against him. A person namely Vijay Bhardwaj who he knew through a friend, had engaged the complainant to pursue a case against him. He thinks Vijay Bhardwaj and complainant had conspired against him. Accused has opted to lead DE.
18. Accused examined himself as DW1 and he deposed that in the year 2015, on 28th December he was arrested in some case in which his girlfriend had put some allegations on him. Thereby he went in JC. In the meantime, his fiancé, one of his friends who stays in Palam and Vijay Bharadwaj started to consult each other for providing him legal assistance. Vijay Bharadwaj said that one of the friends of his Mama is a legal advocate by profession and then his wife and Vijay Bharadwaj engaged the complainant for him as his Advocate. Some young CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 7 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:35:47 +0530 person took his signatures on vakalatnama when he was in JC and his wife came to meet him and told him that the complainant has been engaged for a fee of Rs.1,20,000/-. Vijay Bharadwaj told his wife that she gave him the money and he will hand over it to the complainant.
19. DW1 further deposed that on 24.01.2016, He was granted bail and 80% payment of the legal fees was given to the complainant which was not in his knowledge but was informed to him. Thereafter, he asked his wife whether the payment is being made to the complainant through Vijay Bharadwaj. Then he met the complainant personally and he told him that he had not received the payment and then in front of him he called Vijay Bharadwaj. Thereafter, Vijay Bharadwaj on his asking gave Rs.25,000/- or Rs.50,000/- to the complainant. In the meantime, he understood that he was being cheated upon. Although the complainant is a reputed Advocate and a nice gentleman. The complainant demanded more money but he told the complainant that all the legal fees had already been paid through his wife. Thereafter, complainant kept on demanding the legal fees. Then he told the complainant that he wants to meet the person namely Vijay Bharadwaj through which he had met the complainant.
20. DW1 further stated that He had even called the brother of the complainant who is SI in Haryana Police. The complainant's brother also misguided him and then he called Vijay Bharadwaj and he shouted him not to call again. In the car of complainant, Vijay Bharadwaj on phone told the complainant and Sh. Dharmender Kumar, Advocate, something which was not clear. Thereafter, the complainant told him that accused makes the payment from his side and when complainant would receive payment from Vijay Bharadwaj, he will return the amount paid by accused. Then he paid the complainant Rs.50,000/- in cash in instalments. When the case against him was at final stages, then he told the complainant to file the defamation case for which he had issued two cheques to the complainant which are the cheques in question which were undated cheques. On 30.11.2017, the final judgment was pronounced in which he was acquitted.
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2025.05.29 15:35:52 +0530 But on 24.10.2017 the complainant had presented the first cheque amounting to Rs.20,000/- in the bank. Then he called the complainant, who told that his son filled the date on the cheque and presented it in the bank. Then on the second cheque of Rs.10,000/- was also already filled by the complainant which includes the date. They had put a date of 20.11.2017 on the second cheque and then presented in the bank.
21. DW1 also stated that in the month of January 2018 the complainant again presented the first cheque amounting to Rs.20,000/-. Then in the night he called the complainant and complainant threatened him and he also stated that we will settle the matter in court. The main purpose for the cheques was for the defamation case but the complainant misused his cheques by making some false story regarding nonpayment of legal fees. Since last three years the complainant is mentally harassing him by lodging a complaint in various police stations. In one police station one Sl Hans Raj also noted that there is no dispute and mere harassment. One Civil case in Dwarka court was also filed by the complainant against him to mentally harass him.
22. DW1 was cross examined on behalf of complainant and he correctly admits that he was arrested in FIR No. 1073/15, PS Vasant Vihar u/s 376/323/406 IPC. He got married on 10.03.2016. DW1 voluntarily deposed that he was already engaged to his fiancée. It is correctly admitted that he had received a legal notice with regards the cheque in question. He did not file any reply to the same. DW1 voluntarily deposed that he had a telephonic conversation with the complainant with regards the legal notice and he asked why legal notice was sent at his home tome and other addresses when he had good relations with him. When he received notice then on that date only, he had called the complainant. He could not say whether Vijay Bharadwaj was his Pairokar.
23. DW1 did not file any complaint during the time when he had received the legal notice and till the receiving of the summons from this court. DW1 CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 9 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:35:57 +0530 voluntarily deposed that he had talked to the complainant twice during that time. He did not register any complaint since the filing of this case in any court or police station against the complainant for cheating. DW1 voluntarily deposed that he had given a written complaint to SI Hans Raj about the same. It is correctly admitted that he did not issue stop payment instructions to the bank regarding the cheques in question. DW1 voluntarily deposed that he did not do so as he had good relations with the complainant. He had not filed any complaint against the complainant for filing a civil case against him. DW1 voluntarily deposed that he is a professional and he does not want to waste his hard-earned money by filing the litigations against the complainant. From the start, the complainant wanted to settle the matter with him but he refused to settle the same as it is a false case. The fact that Vijay Bharadwaj had threatened him and brother of the complainant misguided him may have been mentioned in his affidavit.
24. DW1 also stated that in the year 2017, he was using mobile phone number 9971688845 which was also his WhatsApp number. It is correctly admitted that he used to have WhatsApp chat with the complainant. He cannot show the WhatsApp chat as he had changed his number. He does not remember whether he had received messages from the bank on the date of presentation of the cheques as many messages keep coming daily and it is a technical issue. Vijay Bharadwaj was the friend of his Palam friend and relative of the complainant. The Palam friend namely Rekha lives in Mehram Nagar and currently he is not in touch with her. His wife namely Dr. Shipra Jaiswal never used to visit Vijay Bharadwaj at his home. He had not filed any documentary proof of transactions with Vijay Bharadwaj. DW1 voluntarily deposed that he had made payment to Vijay Bharadwaj through his wife which can be proved from his account statement, if called upon by the court.
25. DW1 stated that Cash of Rs.50,000/- was given to Vijay Bharadwaj by his wife when he was in JC. DW1 could not tell the date on which amount of CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 10 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:36:02 +0530 Rs.50,000/- was handed over to Vijay Bharadwaj. After coming out of jail, he had never met Vijay Bharadwaj Rs.1,20,000/- was the legal fees as per his knowledge which was entirely paid to Vijay Bharadwaj as informed to him by his wife when he came out of jail. DW1 voluntarily deposed that thereafter too the complainant had further taken Rs.50,000/- from him. He does not remember the date when he gave the cheques to the complainant but cheques were given in Patiala House court in the presence of complainant as well as counsel. He had handed over the cheques to the complainant one month before the date of judgment. He had not filed any civil case against the complainant for the return of cheques in question. He had filed a police complaint against the complainant but he does not remember the date. DW1 voluntarily deposed that he received a call from SI Hans Raj for investigation regarding the written complaint which he had filed against the complainant. He was called two times from different PS i.e. Dwarka Sector-23 and another Sector-20 B, Dwarka for investigation.
26. DW1 was asked that that in bail application no. 267/16 in FIR No. 1073/15 titled as State Vs. Rajan Kumar the prosecutrix was paid Rs.1,00,000/- on your behalf towards her jewellery articles and since she gave no objection you were granted bail vide order dated 23.01.2016 by the Hon'ble Court of Sh.Amit Bansal, Ld. ASJ, Patiala House Courts to which he answered that he is not aware of the same. DW1 has denied all the suggestions put to him.
27. Accused examined Deepak as DW2 and he deposed that he had brought the details of the address of Sh. Vijay Kumar Bharadwaj who is maintaining his account bearing No. 000701618550 with the ICICI Bank, Sector 07, Gurugram Haryana and the address is Fat No. 1402, Tower No. 4, 14h Floor, Imperial Garden, Scctor-102, Dhankot-49, Gurugram 122-505, Haryana, Mobile No. 9818147618, 7838677208. The document regarding the same is taken on record and same is exhibited as Ex. DW2/A. DW2 was not cross examined by complainant despite giving opportunity. Thereafter DE was closed and final arguments were heard.
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28. 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.
29. 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.
30. 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 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 receipt of said notice.
vii) The debt or other liability against which the cheque was issued is legally enforceable.
31. 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 is admitted by the accused that both cheques bear his signatures and other CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 12 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:36:13 +0530 particulars are also filled by him except the date. He also admits handing over of cheque to the complainant. He also admits that he had instructed the complainant to inform him before presenting the cheque. Therefore, it can be said that the cheques were drawn by him in favour of the complainant. Therefore, the essential ingredient (i) as discussed in the preceding paragraph stands fulfilled.
32. Perusal of the reason on returning memo shows that both the cheques were returned being funds insufficient and these documents speak for itself and accused has not challenged those bank returning memos. Accused has not called bank witness for challenging and rebutting these returning memos. No proof is brought by the accused to show that he was having sufficient balance and these returning memos are falsely created. It is pertinent to mention to here that accused has neither denied the account number nor his name/signature mentioned on the cheque. The dishonour of cheque is matter of record and accused has admitted the said returning memo in statement of accused showing fund insufficient in the account of the accused, hence, another essential ingredients (iii) and (iv) also stand proved by the complainant.
33. Accused has admitted the fact of receiving the legal demand notice sent to him by complainant in framing of the notice, statement of accused as well as in DE and also stated that he had not reply the same. Also, as the accused has appeared before the court and matter came in his knowledge and documents were supplied to him after summoning, still accused chose not to reply back the legal notice or to pay the due amount. Further, the accused had not explained that what was stopping him to send the reply of legal notice of the complainant. Moreover, the accused has not challenged the postal receipts. So, it can be rightly said that he has received the legal notice. Hence, essential ingredients (v) and (vi) also stand proved.
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34. 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 discharge of any debt or liability, whole or in part and whether the same is a legally enforceable debt.
35. 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.
36. 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.
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2025.05.29 15:36:25 +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.
37. With respect to the point of blank cheque/date raised by the accused, it is pertinent to mention that Section 20 of the NI Act talks about inchoate instruments. As per this provision if a person gives a duly signed cheque which is either blank or partly filled then he is deemed to have given implied authority to the holder to fill up the particular in it and complete the cheque, thus making the draw liable for the payment mentioned in it. It is immaterial that the cheque may have been filled in by any person other than the drawer, when the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provision of section 138 would be attracted. At this stage, reference may be sought from the decision of Hon'ble Supreme Court in the case of Bir Singh vs. Mukesh Kumar (2019) 4 SCC 197 wherein the Apex Court while upholding the validity of blank signed cheque in a proceeding u/s 138 of the Act has interalia held the following:
"If a signed blank cheque is voluntarily presented to a payee,towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence."
38. Perusal of the record shows that accused has corroborated with the case of complainant during DE where the accused deposed that when he met complainant personally, complainant told him that he had not received the payment. In the cross examination, DW1/accused further deposed that complainant kept on demanding the legal fees. Accused has not called Vijay Bhardwaj in his support and to prove payment by the Vijay Bhardwaj to the complainant. Moreover, it is admitted by accused that payment was made by his wife through Vijay Bhardwaj. Even the accused has not called his wife into the witness box to prove payment by her or facts told by his wife to him. Also, CW2 CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 15 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:36:32 +0530 also corroborated with the story of complainant by stating that he spoke with the accused regarding fee after 21.07.2016 and asked him that why he is not paying fees to complainant.
39. Also, why the accused did not mention the date on the cheque if this was given for the defamation case which was about to be filed in future. Therefore, the complainant has successfully raised the doubt on the story of the accused that this further defamation case by the accused is after thought for the present case. Furthermore, accused could not justify his stance of defamation case because on the one side, during DE, he stated that cheque in question was given before the judgment in Rape case i.e during trial and on the other side, he stated that it was given to file defamation case against the prosecutrix of Rape case. This court fails to understand that how the accused perceived in advanced that he will win the Rape case without judgment being pronounced and he will have to file defamation case against the prosecutrix in future. Moreover, why the defamation case against the prosecutrix was never filed, is also not explained. Even it is not explained by the accused that if the cheques were given as advance/token amount of defamation case then what was the total legal fees agreed upon.
40. Also, perusal of record shows that cheque returning memo shows that reason of returning the cheque "funds insufficient". If the accused had given this cheque earlier then also, he should have filed complaint before the bank or police or before complainant or common acquitance regarding the possibility of misuse of these cheques, which he had not, showing that accused was under
liability to pay the amount to the complainant.
41. This court fails to understand the reason behind non filling of date in any of the cheques. If the cheques were indeed handed over to the complainant for a case, then why was date not written on them. No reasonable explanation has been provided for this omission. Further, if the accused was not having any CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 16 of 20 SNEHIL SHARMA Digitally signed by SNEHIL SHARMA Date: 2025.05.29 15:36:38 +0530 liability, then what was the compelling circumstances for him to hand over his 2 filled cheques in question to the complainant when the one cheque would have suffice. It is also found that not even a single cheque mentioned on its back that this is an advance cheque against another case/defamation.
42. Accused has not deposed anything regarding the non-filing complaint against Vijay Bhardwaj or against SI brother of the complainant, if both threatened and misguided and not cooperated him. Also, if these cheques were the advance/token cheque for filing of defamation case then also dates should have been filed by the accused upon these. Accused claims cheques were meant for a defamation case i.e it should be after acquittal on 30.11.2017, yet admits cheques were handed over on 05.05.2017 (as per CW2), months before acquittal. This is a clear contradiction and an afterthought by the accused. Also, Accused neither filed any VakalaNama of defamation case, nor showed any draft/plans/documents/WhatsApp chats/call recording to prove that a defamation case was actually contemplated or initiated i.e he has failed to show that complainant was engaged afresh for future purpose.
43. This court also found shifting stance of the accused. During DE, Accused first said that Vijay Bhardwaj paid Rs 1.20 lakh, then says complainant demanded money again, and he paid Rs. 50,000. If full payment was already made, then why complainant was paid again and if paid extra then what step accused took to recover the same. In addition to this, Evidence of CW2 remained unrebutted for the fact that the cheques were handed over in his presence by the accused on 05.05.2017. Accused also agreed that cheque was given prior to judgment. This date is contemporaneous with the main case trial and fees being pending handed over by way of the cheques in question, not for some later defamation matter. Further during DE, accused has stated that 80% of payment of legal fees was given to the complainant, suggest that there was some dues left.
CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 17 of 20Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
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44. It is also on record that even after filing a case the accused has not repaid the cheque amount to the complainant and choose to contest the case. During the case, he has failed to inform the ultimate date of the cheque payment. Also, no document or witness or WhatsApp chat is produced by the accused to prove the repayment (whatsoever) to the complainant and showing zero balance against the accused. Further, no document or witness or WhatsApp chat or call recording etc. is produced by the accused in support of his contention that complainant has misused the cheque. No repayment slips or no repayment message or no digital record of clearing all the dues towards the complainant is filed by the accused for the perusal of the court and for his support. Even the accused has not challenged or rebutted the deposition of the complainant.
45. As neither the effective cross examination of complainant was conducted by the accused nor he has led effective DE. No doubt is raised upon the cheque liability shown by the complainant. No doubt is raised upon the story deposed by the complainant. Accused had not shown how and when he 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 his bank account to discharge his legal liability against the complainant or if he has already paid the money, he should ask the complainant in writing (documentary or through WhatsApp) to return the cheque. However, as the accused has admitted himself that he 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.
46. Non-discharge of the liability of cheque amount by the accused is not a ground of acquittal without any evidence/witness/record etc. No repayment slip is shown by the accused so as to suggest that he does not have this much liability towards the complainant. Even accused could not prove that the total agreed Legal Fees was only Rs. 1.20 Lakhs. No evidence is brought to the notice of court to suggest that Vijay Bhardwaj and complainant had conspired CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 18 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:36:51 +0530 against him ( as stated in SA). Mere verbal submission of the accused is no evidence.
47. Accused has relied upon the judgment of Bar of Indian Lawyers v D.K. Gandhi 2024 SCC 430 and submits that non-payment to service of advocate does not become legally recoverable debt under NI Act and only civil recovery can be filed for legal fees and as advocate can not be liable under Consumer Protection Act therefore accused can not be liable under NI Act. However, undersigned does not agree with the accused. Legally enforceable debt (any) or liability (other) encompasses obligations arising from valid contracts, including professional fee agreements and services under personal contract. Therefore, the exclusion of legal services from Consumer Protection Act does not negate the enforceability of Lawyer's fee under NI Act. Moreover, NI Act deals with credibility and enforceability of Negotiable Instrument and facilitating financial transactions through bank/proper channel in fair manner.
48. In this case, Legal Fees for services rendered by an advocate/complainant constitute a contractual obligation. Also, the advocate-client relationship is fiduciary in nature and payment for professional service of advocate is a valid legal liability. Further the cheque given by accused as payment for legal work already done or to be done, amounts to consideration for services. Therefore, the advocate/complainant has earned his professional fees which client/accused is liable to pay and failure to pay the fees creates liability.
49. 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 his defence and has failed to rebut the presumptions. CC NO. 8332/2018 BHUDEV PRASAD VAISHNAV vs. RAJAN KUMAR SHARMA Page 19 of 20 Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date:
2025.05.29 15:36:57 +0530
50. 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 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....."
51. 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 his 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 his reverse onus. Accordingly, the ingredients mentioned at (ii) & (vii) of Para No. 30 of this judgment are also fulfilled.
52. In my view, the complainant has proved that the accused had issued the cheque in question in his favour for discharge of the legally enforceable liability and has proved his case against the accused for the offence under Sec. 138 Negotiable Instruments Act. Resultantly, accused Rajan Kumar Sharma is thus, held guilty and stands convicted for the said offence. Digitally signed by SNEHIL SNEHIL SHARMA SHARMA Date: 2025.05.29 15:37:09 +0530 Announced in Open Court (SNEHIL SHARMA) today on 29.05.2025 JMFC(NI Act-08) SOUTHWEST, DWARKA DELHI Copy of this judgment be given free of cost to convict.
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