Delhi District Court
Sanjeev Vermani vs Bptp on 1 July, 2025
1
IN THE COURT OF SHRI YASHDEEP CHAHAL
Judicial Magistrate First Class-01 : New Delhi District : PHC : New Delhi.
Complaint Case No. 13518/2018
Gopi Kant Mishra Vs. Tarun Rawat
P.S. : Connaught Place
ID number of the case : New No.13518/2018
DLND02-013134-2018
Date of commission of offence : 01.07.2018.
Date of institution of the case : 28.08.2018.
Name of the complainant : Mr. Gopi Kant Mishra,
S/o Late Vishnu Kant Mishra,
R/o CR-218, Lalita Park,
Laxmi Nagar, Delhi-110092.
Name of accused and address : Mr. Tarun Rawat,
S/o Shri Jagmohan Singh Rawat,
R/o A-176, A-Block, Gali No. 5,
First Floor Near Gopal Ji Store,
West Vinod Nagar,
Delhi-110092.
Offence Charged : Under Section : 138/142 of the
Negotiable Instruments Act.
Offence Complained of : Under Section : 138/142 of the
Or Proved Negotiable Instruments Act.
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 28.05.2025.
JUDGMENT
BRIEF STATEMENT OF FACTS FOR THE DECISION Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 1 2
1. By this Judgment, I shall dispose-of complaint under Section 138 NI Act filed by complainant Gopi Kant Mishra against accused Tarun Rawat.
2. Briefly stated, the facts of the complaint reveal that the complainant and the accused were known to each other for more than ten years and were family friends. In February, 2016, the accused showed some property papers to the complainant and expressed his willingness to sell off the property. Thereafter, in May, 2016 the accused came to the residence of the complainant and expressed that he was going to a serious financial crunch and requested the complainant to arrange for a sum of Rs.10,00,000/-. The accused asked for immediate arrangement of Rs.3,50,000/- and considering the compelling situation, the complainant gave a sum of Rs.3,50,000/- to the accused. An amount of Rs.50,000/- was given in cash and an amount of Rs.3,00,000/- was given vide cheque bearing No. 934677 dated 07.05.2016. Thereafter, the accused executed a mortgage agreement dated 12.05.2016 with an acknowledgment of the receipt of Rs.3,50,000/-. The accused also handed over the original sale deed of his immovable property dated 05.02.2016 to secure the amount. Thereafter, in June, 2016 the accused again approached the complainant for a sum of Rs.10,00,000/- for the medical treatment of his mother. The complainant again gave a total sum of Rs.9,00,000/- to the accused. The amount was given partially vide cheque No. 0194476 dated 25.06.2016 for a sum of Rs.1,50,000/- and the remaining amount of Rs.7,50,000/-
Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 2 3was given in cash in front of attesting witnesses to the agreement dated 28.06.2016.
3. It is stated that for returning the friendly loan amount received by him from the complainant, the accused issued three post- dated cheques to the complainant, collectively amounting to a sum of Rs.9,00,000/-. Upon presentation, the said cheques were returned unpaid for the reason 'funds insufficient'. Thereafter, despite receipt of legal notice, the accused failed to make the payment, thereby giving rise to cause of action under Section 138 of NI Act.
4. By this judgment, I shall determine whether accused is liable for the commission of offence under Section 138 of NI Act.
5. Upon summoning, the notice under Section 251 Cr.PC was served upon the accused on 01.10.2021, wherein the accused pleaded not guilty and claimed trial. In his defence plea, the accused stated that the cheques were issued by him to the complainant as blank signed cheques. He further stated that he had taken a loan of Rs.3,50,000/- only and had already repaid more than the loan amount. He denied any liability towards the complainant.
6. During complainant evidence, the complainant exhibited his affidavit of evidence as Ex. CW-1/A along with the original cheques in the following manner : -
Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 3 4(i) Cheque dated 28.06.2018 for a sum of Rs.5,00,000/- bearing No. 906481, drawn on Canara Bank as Ex. CW-1/1.
(ii) Cheque dated 28.06.2018 for a sum of Rs.3,50,000/- bearing No. 906482, drawn on Canara Bank as Ex. CW-1/2.
(iii) Cheque dated 28.06.2018 for a sum of Rs.50,000/- bearing No. 966124, drawn on Canara Bank as Ex. CW-1/3.
7. The complainant also exhibited the return memos as Ex. CW-1/4, Ex. CW-1/5 and Ex. CW-1/6, legal notice of demand dated 11.07.2018 as Ex. CW-1/7 and postal receipt of legal notice as Ex. CW-1/8. In his evidence, the complainant/CW-1 deposed in support of his complaint. He exhibited the mortgage agreement dated 12.05.2016 as Ex. CW-1/11 qua the loan of Rs.3,50,000/- along with the registered sale deed in the name of the accused dated 05.02.2016, which was allegedly deposited by the accused as security for the loan. He also exhibited the subsequent agreement dated 28.06.2016 for a loan of Rs.9,00,000/- as Ex. CW-1/13. He deposed in his evidence that vide his legal notice dated 11.07.2018, a last opportunity was given to the accused to pay the cheque amount of Rs.9,00,000/- along with calculated interest up to July, 2018, amounting to Rs.3,38,000/-. Thus, the complainant demanded a total sum of Rs.12,38,000/- vide his statutory legal notice.
8. Upon a prayer under Section 145 (2) of NI Act, the accused was permitted to cross-examine the complainant. During cross- examination, CW-1 deposed that he used to file income tax returns for his Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 4 5 income every year, but he could not remember the income he had shown in his returns filed from 2015 to 2018. He further deposed that in financial year 2022-2023, he had shown his income as Rs.4,50,000/-. He further deposed that there is a gap of 15 years between the accused and himself. He further deposed that he belongs to Madhubani Bihar and the accused belongs to Uttrakhand. He further deposed that he met the accused for the first time through his son Anshuman Mishra. He further admitted that witness No. 1 in Ex. CW-1/11 is his son Anshuman Mishra. He admitted that he had not mentioned the loan amount in his ITR and his earning in the year 2016 was Rs.3,00,000/- to Rs.3,50,000/- per month. Despite opportunity, CW-1 could not place on record his ITR stating that it was not traceable. He admitted that as against the loan advanced by him, the accused had to pay an interest of Rs.26,000/- per month. He also admitted that on 10.06.2016, a sum of Rs.9,000/-, on 08.07.2016 a sum of Rs.26,000/- and on 10.08.2016 two sums of Rs.26,000/- and Rs.28,000/- respectively were deposited by the accused in his account. He admitted that it was payment towards interest. He also admitted that he did not have any money lending licence in his favour. On being asked about other cases filed by him under Section 138 of NI Act, CW-1 denied to disclose about the other cases. He further admitted that one Chandan Tripathi had issued a cheque in his favour for a sum of Rs.2,50,000/- and he had received the same on behalf of his daughter. He further deposed that witness No. 1 in Ex. CW-1/13 was one Mr. Praveen Kumar and he was known to him. Further, CW-1 denied that he knew any person, namely, Rajesh Singh, S/o Krishan Singh. He further Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 5 6 deposed that out of the second loan of Rs.9,00,000/-, the cheque amount of Rs.1,50,000/- was paid by his daughter Ms. Aarti Mishra and the cash component of Rs.7,50,000/- was given in the presence of the Notary Officer. He admitted that it is not mentioned in his complaint. In further cross-examination, CW-1 admitted that he had settled a case against Chandan Tripathi on behalf of his daughter and in that case, he was a complainant and had taken the cheque in question on behalf of his daughter. He also admitted that his daughter had also filed a separate case under Section 138 of NI Act against Chandan Tripathi. Referring to Ex. CW-1/11, he deposed that the second witness in the deed of mortgage was Mr. Madan Mohan Mishra, his real brother. He further deposed that both the witnesses to Ex. CW-1/11 are his family members. He further deposed that all three cheques in question were given to him on 28.06.2016. He denied the suggestion that the details in the cheques were not filled up by the accused.
9. At this stage, attention of CW-1 was drawn to Ex. CW-1/13 and a specific question was put as to why the details of payments received were not typed but were hand written. He stated that all the hand written endorsements were written on 28.06.2016. He admitted in further cross-examination that the accused had transferred certain amounts towards interest of the loan granted by him by online mode.
10. After the closure of complainant's evidence, the matter was kept for statement of the accused under Section 313 Cr.PC, wherein the Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 6 7 entire incriminating material was put to the accused. He stated that the cheques in question were given as security cheques for the loan amount and no details were filled up by him. He further stated that he had taken a loan of Rs.3,50,000/- to Rs.4,00,000/- from the complainant and had repaid the same by online mode as well as by cash. He denied the receipt of legal notice.
11. The accused chose to lead evidence in his defence. He examined himself as DW-1, wherein he deposed that in the year 2016, he needed some money and he came to know that the complainant was offering loan on interest basis. In exchange of loan, the complainant demanded some blank signed cheques and property papers. The same were accordingly, handed over by him and he also signed some documents in English language despite the fact that he did not understand English. He further deposed that he used to pay a monthly installment of Rs.28,000/- to the complainant in the presence of his mother and her friend Ms. Chanchal Saxena. He further deposed that his mother had also paid an amount of Rs.2,80,000/- after borrowing Rs.1,50,000/- from their neighbour.
12. During cross-examination, DW-1 deposed that the complainant was dealing in money lending business and he approached the complainant for some loan.
Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 7 813. Thereafter, DW-2 Ms. Kanak Lata Rawat was examined and she deposed that the complainant used to collect the monthly installments of Rs.28,000/- from her house in lieu of the loan taken by her son. She also deposed that she used to make the payments sometimes and had paid a total amount of Rs.2,80,000/- to the complainant. She also deposed that she had borrowed Rs.1,50,000/- from Ms. Usha Rawat. He further deposed that the complainant along with his brother and Praveen Jha used to come for collection of installments and payments were made in cash. She further deposed that the complainant never issued any receipt for the same.
14. During cross-examination, DW-2 deposed that no receipt or acknowledgment was executed by her while borrowing loan from Usha Rawat.
15. Thereafter, DW-3 Ms. Kalpana Rawat was examined and she deposed that between June, 2016 to September, 2018, they had paid Rs.28,000/- per month as installments to the complainant, which were collected by the complainant, his brother and Praveen Jha.
16. Thereafter, DW-4 Ms. Chanchal Saxena was examined and she deposed that she had seen DW-2 handing over money to the complainant.
Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 8 917. Thereafter, DW-5 Ms. Usha Rawat was examined, who deposed that she knew DW-2 and DW-3 as they used to work in her boutique. She deposed that she used to visit their home and they had taken some money from her on various occasions to repay the loan taken by the accused. She further deposed that she had seen the complainant at their home for collection of installments.
18. Upon the conclusion of evidence of both sides, the matter was kept for final arguments.
19. Ld. Counsel for the complainant submitted that the relationship between the parties has been admitted by the accused. He further submitted that the defence witnesses are not reliable and none of their transactions were documentary. He further submitted that the accused has improved upon his version multiple times.
20. Per contra, Ld. Counsel for accused submitted that the relationship has been denied by the accused as there was no proximity between the parties. He further submitted that the loan was not shown by the complainant in his income tax returns and the same is relevant as the complainant could not have advanced a loan of Rs.9,00,000/- when his annual income was Rs.3,50,000/- only. He further submitted that the attesting witnesses were not examined by the complainant. He further submitted that there was no reason for the accused to have issued three cheques for one debt. Ld. Counsel also questioned the legal notice of Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 9 10 demand by submitting that there is no demand of the cheque amount in the said notice. Elaborate written submissions have also been filed on behalf of the accused and I have gone through the same.
21. I have given a careful consideration to the evidence on record as well as to the arguments advanced by Ld. Counsels for both the parties. I may now consider the evidence adduced by both sides and analyse the same to answer the principal issue i.e. whether the accused is guilty of committing the offence under Section 138 of NI Act.
22. Before proceeding, I may reproduce Section 138 NI Act for ready reference: -
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years', or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 10 11
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.--For the purposes of this section, "debt of other liability"
means a legally enforceable debt or other liability."
23. The conditions essential for proving the offence under Section 138 NI Act may be listed as follows: -
(i) Cheque drawn by a person on an account maintained by him for a payment of money to another person.
(ii) The payment must be for the discharge of any debt or other liability.
(iii) The cheque must be returned by the bank as 'unpaid'.
(iv) The cheque must be presented to the bank within a period of three months from the date on which it is drawn.
(v) Upon dishonour, a demand for payment must be made by the payee by giving a notice in writing to the drawer of the cheque within 30 days of the receipt of information of dishonour.
(vi) The drawer of cheque fails to make the payment within 15 days of the receipt of the notice.
24. In addition to the ingredients mentioned in Section 138, Section 139 provides a presumption in favour of the holder of cheque to the effect that the cheque received by him was received for the discharge of any legally enforceable debt or other liability. In other words, the complainant has a statutory presumption in his favour and it is not Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 11 12 specifically required to be proved that the cheque was issued to him for the discharge of any debt or liability. No doubt, the said presumption is a rebuttable presumption and the accused ought to be granted an opportunity to rebut the same during the trial.
25. The genesis of the entire story of the complainant is the grant of two loans to the accused amounting to Rs.3,50,000/- and Rs.9,00,000/- respectively. The first loan was allegedly advanced in the month of May, 2016 and in order to secure the same, a mortgage agreement Ex. CW-1/11 was executed and property documents/sale deed Ex. CW-1/12 were obtained. As regards the second loan of Rs.9,00,000/- which was advanced in the month of June, 2016 an agreement dated 28.06.2016 Ex. CW-1/13 was executed. At the outset, it is of utmost relevance to note that the complainant has not deposed consistently with respect to the nature of loan. In paragraph No. 2 of his affidavit of evidence, CW-1 has deposed that he knew the accused for the last ten years and they were family friends. The relationship has been categorically denied by the accused. At one stage, CW-1 has stated that the loan was a friendly loan and in his cross-examination, CW-1 has deposed that the loan was carrying an interest component, thereby meaning that it was not a friendly loan. Be that as it may, in a matter wherein the complainant claims to have advanced a personal loan to the accused, the question of paying capacity or source of money for advancement of such loan becomes relevant. The question assumes greater relevance when the same is questioned by the accused and in that Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 12 13 scenario, it falls upon the complainant to demonstrate paying capacity or financial capacity. The law with respect to the case of friendly loan is fairly clear and the complainant is duty bound to establish sufficient paying capacity for proving his version.
26. In Sri Dattatraya Vs. Sharan Appa, Criminal Appeal No. 3257/2024, the Hon'ble Supreme Court has observed that when the concern of financial capacity of the creditor is raised on behalf of an accused, a burden falls upon the complainant to clarify the same to the satisfaction of the Court and the same is to be discharged by the complainant by leading cogent evidence.
27. In this case, there are serious discrepancies in the case of the complainant. The friendly or family relationship between the parties has not been proved by the complainant to the satisfaction of the Court. There is absolutely nothing to suggest that the complainant was a friend of the accused. An even more serious issue in the version of the complainant lies in the fact that the complainant has failed to prove his paying capacity to advance the loans claimed by him. He has deliberately withheld his ITRs from the Court by stating that they were not traceable. It is a matter of common understanding that the complainant could have taken out his ITRs by using his PAN number, but he failed to do so. Naturally, the ITRs would have reflected that the complainant had no paying capacity of the kind to justify the grant of loan. It is so because the complainant has himself stated that during the relevant time period, Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 13 14 he was having an annual income of Rs.3,50,000/- to Rs.4,00,000/-. It is completely fascinating that a man with such an annual income would extend a loan of almost double of his annual income to a person with whom no affectionate relationship has been proved. Moreover, it is the admitted position that the complainant had extended the loan on payment of interest and the said position is contrary to the initial version of the complainant. Thus, the concealment of his own income returns directly raises an adverse inference against the accused.
28. It is also noteworthy that the loan agreement relied upon by the complainant has been witnessed by the brother and son of the complainant. Despite availability, the witnesses have not been examined by the complainant and there is no explanation for his failure to produce best evidence in the Court. No explanation is forthcoming qua the second loan agreement as well. It is also interesting to note that for the second loan, the complainant advanced an amount of Rs.7,50,000/- in cash. There is no evidence regarding the source of money and considering the financial capacity of the complainant, it is difficult to believe that he had the potential to advance such loan. The whole version of the complainant rests on the documents purportedly executed by the accused at the time of loan. The accused has denied the documents. The version of the accused is that the complainant is in the business of extending loans to public persons without having any license and the documents are executed under coercion and lack of understanding of legal implications of the gullible persons in need of money. It cannot be ignored that all the Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 14 15 documents are witnessed by the family members of the complainant and are notarized by the same notary. It is admitted by the complainant that all is loan documents are notarized by the same notary. Considering that the complainant had no financial capacity or source of income to advance the loan allegedly granted by him, the documents become seriously doubtful. For, the contents of the documents do not match with the admitted reality of the case that the complainant has completely failed to prove the source of income. Furthermore, the failure of the complainant to examine the witnesses of the documents, despite being family members, also makes the documents as doubtful. In such a scenario, it would be dangerous of this Court to place upon some disputed documents to arrive at the guilt of the accused.
29. I may also note that the conduct and truthfulness of the version of the complainant is also doubtful in light of the fact that the complainant has apparently given false answers to certain questions. He has been very economical with the truth while giving answers to the questions regarding other cheque bounce cases filed by him and his family members in various courts. He has denied knowledge about some named persons despite it having been shown to the Court that he has deposed in other cases involving the same persons. The accused has filed an application under Section 340 Cr.P.C. qua one such person alleging that the complainant has given false evidence in this Court while denying knowledge of one such person.
Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 15 1630. In light of the above discussion, the statutory presumption in favour of the complainant is not adequate to prove his case against the accused, as the statutory presumption has been rebutted in material particulars. The complainant seems to have exaggerated the amounts of loans advanced by him and the cheques taken as security for the admitted loan of Rs. 3,50,000/- have been misused to claim the amplified and exaggerated amounts. The inference originating from the rebuttal given by the accused also appears to be consistent with the conduct of the complainant in other cases filed by him and his family members against various persons in different courts of the capital. Without having any legitimate source of income, the complainant appears to be filing cases before different Courts claiming amounts allegedly advanced by him as loans. The web of documents prepared by and at the instance of the complainant are being used in support of such claims, despite the documents being in complete contrast with the financial reality of the complainant. This Court can take judicial notice of the fact that the offence under Section 138 of NI Act has become a tool of abuse for many, especially because of the reverse onus upon the accused which effectively cripples the accused. The present case appears to be falling in the same category. I say no more.
31. Consequently, it is observed that the complainant has failed to discharge his burden in proving the case beyond reasonable doubt despite the statutory presumption in his favour. The statutory presumption has been successfully rebutted by the accused during cross-
Complaint Case No.13518/2018 Gopi Kant Mishra Vs. Tarun Rawat Page No. 16 17examination of the complainant and during defence evidence which indicates that the loan has been repaid by the accused. Accordingly, the accused, namely Tarun Rawat stands acquitted from the charge framed against him under Section 138 of NI Act.
28. Bail/surety bond already on record is extended for a period of six months in compliance of Section 437-A of Cr.PC.
29. This judgment is contained in 17 pages and all pages have been signed by me at the bottom.
30. File be consigned to record room after necessary compliance. Digitally signed by YASHDEEP YASHDEEP CHAHAL CHAHAL Date: 2025.05.28 16:27:13 +0530 Announced in the Open Court (YASHDEEP CHAHAL) On 28 May, 2025.
th JMFC-01 : New Delhi District : PHC : ND.
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