Delhi District Court
Manoj Singh vs Rahul Trivedi on 23 December, 2025
1
IN THE COURT OF MS. DEEPTI DEVESH
ADDITIONAL SESSIONS JUDGE, SPL.FAST TRACK COURT
PATIALA HOUSE COURTS, NEW, DELHI
Criminal Appeal No. 277/2024
CNR No. DLND01-009326-2024
IN THE MATTER OF :-
MANOJ SINGH
S/o Ram Pukar Singh
R/o 1/17, Vivek Khand,
Gomti Nagar, Lucknow,
Uttar Pradesh - 226010
..........Appellant
Versus
RAHUL TRIVEDI
S/o Sh. Ashok Trivedi
R/o A-1, Block O, Jangpura,
Extension, New Delhi - 110014
.........Respondent
-:JUDGMENT:-
1. The present appeal has been preferred by the appellant (accused before Ld. Trial Court) against the impugned judgment dated 08.07.2024 and order on sentence dated 21.08.2024, of Ld. JMFC-03 (NI Act), NDD, Patiala House Courts, passed in complaint case u/s 138 NI Act. By way of the said impugned judgment, the appellant was convicted of offence punishable u/s 138 NI Act and sentenced to simple imprisonment of three months and payment of fine of Rs.10,90,000/-, payable as compensation to the respondent (complainant before Ld. Trial Court). For the sake of 2 convenience, both parties shall be referred as their original position before the Ld. Trial Court, i.e. as complainant and accused.
2. The facts relevant for deciding the present appeal, in brief are as follows. The complainant presented cheque bearing no. 077894 dated 12.12.2019 for Rs.7,70,000/-, issued and signed by the accused, which cheque was dishonored for the reason ' Funds Insufficient' vide memo dated 13.01.2020. Thereafter, legal notice was issued to the accused dated 13.01.2020. Thereafter, the accused failed to make payment to complainant and the complaint was filed before Ld. Trial Court.
3. After recording of pre-summoning evidence, the Ld. Trial Court summoned accused vide order dated 28.02.2020. Notice u/s 251 Cr.P.C was given to accused on 06.06.2022, in which he pleaded not guilty and stated that the cheque in question was signed by him against the fees payable by him to the complainant for his professional services. No formal application u/s 145(2) NI Act was filed by accused. In view of the statement of accused in notice u/s 251 Cr.P.C, the matter was proceeded to recording of statement of accused u/s 313 Cr.P.C. Statement of accused u/s 313 Cr.P.C was recorded on 13.12.2022, in which he stated that he wants to lead defence evidence. He also disclosed his defense that the cheque in question had been paid for the litigation fees but he never received any legal notice. He also stated that the litigation fees with the complainant was not finalized.
Accused was examined as DW1 on 05.06.2023 but failed to present himself for cross examination and therefore, the Ld. Trial Court closed defence evidence by way of adverse order dated 19.02.2024. Thereafter, final arguments were addressed and the impugned judgment and order on sentence were passed against the accused.
34. Before going into the merits of the present appeal, it is pertinent to note that an application seeking condonation of delay has also been filed on behalf of the appellant. The impugned judgment has been pronounced on 08.07.2024 and order on sentence has been pronounced on 21.08.2024. Appeal ought to have been filed within 30 days but the appeal was instituted in this court on 20.11.2024. It has been stated in the application seeking condonation of delay that the delay is of 27 days on account of the accused not being informed of the impugned judgment by his advocate and which advocate also failed to take timely action regarding filing of appeal. It has been stated that the advocate was responsible for delayed filing of application for certified copy and upon becoming aware of the advocate's negligence, the accused engaged new counsel and then obtained certified copies of the impugned judgment and order on sentence for the purpose of appeal. The present application for condonation of delay has been vehemently opposed by the complainant on the ground that at every stage during trial, the accused has tried to delay the proceedings and therefore, it is only in keeping with his conduct that the appeal has also been filed after delay. It has been stated that the delay is not of 27 days as claimed by the accused in his application, but of 62 days.
5. I have heard the arguments and also perused the record. Trial court record has also been perused.
6. The claims made by accused in his application seeking condonation of delay are bald claims without being substantiated with any document. The accused has not disclosed in the application, the relevant date of which application for certified copies have been moved before court and on which date, were made available for the court to assess how much time period is to be excluded for the purpose of limitation. Further more, the 4 accused has made allegations against his advocate regarding lack of information about the judgment and then, lack of timely action by the advocate for filing appeal. However, trial record has completely contradicted the claims of accused. Order dated 08.07.2024 of the Ld. Trial Court clearly records the presence of both accused through V.C and his counsel at the time of pronouncement of impugned judgment. Therefore, the accused himself was present in the court when impugned judgment was pronounced and to accuse his counsel for not informing him of the adverse judgment is simply passing the buck by accused. Further more, the accused has not produced any relevant document showing any complaint made by accused against his previous counsel, if he is so aggrieved with the actions of the previous counsel. Thereafter, the impugned order on sentence was passed on 21.08.2024, on which date the accused has furnished personal bonds as well as surety bonds u/s 389 Cr.P.C before the Ld. Trial court for the purpose of suspending sentence to file appeal. In view of the fact that accused himself had furnished bail bonds and surety bonds u/s 389 Cr.P.C, how the accused can now claim that his advocate never informed him for timely action is beyond comprehension. Therefore, in view of the above, it is clear that the application seeking condonation of delay is completely meritless and the accused has filed the same as a matter of routine. It is now well established that delay, if not sufficiently explained, ought not to be condoned as a matter of routine. Hence, the present application seeking condonation of delay on behalf of accused is dismissed. On this ground alone, the present appeal ought to be dismissed. However, the present appeal is being dealt with also on its own merits, herein below.
7. Now, the accused has filed the present appeal challenging the impugned judgment and order on sentence on the following grounds:
a) that the legal notice was never received by the accused.5
b) that the Ld. Trial court failed to provide an appropriate and sufficient opportunity to accused to present his defence, by closing his right to lead defence evidence.
c) that the Ld. Trial Court has failed to appreciate that no legal liability existed in favor of the complainant for payment as the payment had already been made in cash by the accused on 05.12.2019 of Rs.5,70,000/- and on 10.12.2019 of Rs.7,00,000/-.
d) that the Ld. Trial court has failed to appreciate the misconduct of the complainant in filing case against his own client.
8. The accused has reiterated the above said averments in his appeal at the time of advancing oral arguments in the present appeal. Reliance has also been placed upon the following judgments by accused.
a) Indus Airways Pvt. Ltd. Vs. Magnum Aviation Pvt.Ltd. (2014) SCC 539
b) Deepak v. Ramesh Sethi in C.M (M 306/2022) decided on 08.04.2022 by Hon'ble High Court of Delhi.
c) Deepa Bhure v. Jai Kishan in C.S (O.S 3324/2014) decided on 15.02.2019 by Hon'ble High Court of Delhi
9. Per contra, the complainant has challenged the grounds raised in the present appeal in written reply to the present appeal. It has been submitted by the complainant that the accused has no defence to raise, as he had admitted his liability u/s 251 Cr.P.C before the Ld. Trial Court. He has further submitted that the conduct of accused has been extremely mischievous since inception of trial, for which the Trial court record can be perused. Written arguments were also filed on behalf of the complainant in support of oral arguments. He has relied upon the following judgments:
6a) H.Guruswami v. A.Krishnayya in civil appeal no. 317 of 2025 decided on 08.01.2025 of Hon'ble Supreme Court.
b) E.C Constructions Pvt. Ltd. v. Neeraj Zutshi in C.M (M.No.1683 of 2025) decided on 17.11.2025 by Hon'ble High Court of Delhi.
c) Satish P. Bhatt v. State of Maharashtra in criminal appeal no.__ of 2024 arising out of SLP (Crl.) No.7433 of 2019 decided on 03.01.2024 by Hon'ble Supreme Court.
d) Sanajbij Tari v. Kishor S.Borcar in Crl. Appeal no. 1755 of 2010 decided on 25.09.2025 by Hon'ble Supreme Court.
10. Arguments have been heard. Record has been perused. Trial court record was also summoned and same has been perused.
11. The accused has faced trial for offence punishable u/s 138 NI Act. The essential ingredients for offence punishable u/s 138 NI Act are as follows -
a. that a cheque was drawn in favor of complainant by the accused, b. the cheque drawn was in discharge of whole or part of legally enforceable debt or liability, c. the cheque so drawn was presented for encashment by the complainant at his bank within period of its validity or three months, whichever is earlier, d. the cheque so presented was returned dishonored as unpaid due to specific reasons informed by the bank, e. that within 30 days of dishonor of cheque, legal notice in writing was issued by the complainant to the accused calling for payment of the dishonored cheque, f. that accused failed to make payment of the cheque amount within 15 days of receipt of legal notice, g. that after failure of accused to make payment of cheque amount within 15 days of receipt of legal 7 notice, within 30 days complainant presented the complaint u/s 138 NI Act before the LD. Trial Court.
12. Apart from the necessary ingredients of offence punishable u/s 138 NI Act, the presumptions attached to the said offence under the provisions of section 118 and 139 NI Act are also pertinent to be noted. As per the presumption in favor of complainant, once the complainant establishes that the cheque in question was executed by the accused in his favor, it would be presumed under law that the cheque in question was drawn for consideration and the complainant received it in discharge of debt or liability. The nature of presumption u/s 118 and 139 NI Act is rebuttable and the said presumptions are not evidence in favor of the complainant , but aids in establishing the prima facie case for the complainant. In this regard, reliance is placed upon the judgment of Hon'ble Supreme Court of India in Hiten P. Dalal Vs. Bratindranath Bannerjee (2001)' 6 SCC 16. Furthermore, both the said presumptions as contained in section 118 and 139 of NI Act are raised in favor of complainant, when the accused does not dispute the signatures on the cheques in question. In this regard, reliance is placed upon the observations on Hon'ble Supreme Court of India in K. Bhaskaran Vs. Shankaran Vaidhyan Balan 1999 (4) RCR (Criminal) 309, wherein it has been held -
"as the signatures in the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date when the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
Reliance is also placed upon the observations of Hon'ble Supreme Court in Rangappa Vs. Mohan AIR 2010 SC 1989 in this regard.
813. Perusal of the trial record clearly shows that the accused had admitted his liability to make payment for the cheque in question in notice u/s 251 Cr.P.C. The accused has categorically stated that "the cheque in question was handed over to the complainant against the fees payable by me to the complainant for his legal / professional services availed by me....I owe the amount mentioned in the cheque in question and I am ready to pay the same." In view of this categorical admission, the matter was straightway listed for recording statement of accused u/s 313 Cr.P.C. In the said statement u/s 313 Cr.P.C, accused has denied his liability to make payment. He also contradicted himself in certain small details in the said statement, wherein he stated that he has only signed on the cheque in question, that the litigation fees was not finalized. In the notice u/s 251 Cr.P.C, accused had stated that he had signed on the cheque in question and also filled all the other details except the name of payee. He did not dispute the litigation fees to be paid. Therefore, it is clear that accused has made contradictory statement in his two statements recorded before court, which raises doubt regarding his defence. Further more, in none of the two statements, one recorded on 06.06.2022 and other recorded on 13.12.2022, accused raised the defence of already having paid amount in cash to the complainant. The said defence has been raised for the first time by accused in his examination in chief dated 05.06.2023, which appears to be an after thought and is an improvement in the case of accused. Further more, the accused has not been able to substantiate his defence of already having made the payment as he failed to examine the said eye witnesses to the said alleged payment in cash to the complainant. The defence evidence was closed vide adverse order dated 19.04.2023, however, the Ld. Revisionist court vide its order dated 26.05.2023 had granted one more opportunity to lead defence evidence before the Ld. Trial court. Despite the same, after examination on 05.06.2023, the accused failed to lead further DE or present himself for cross 9 examination and therefore, vide order dated 19.02.2024, by adverse order, the Ld. Trial court closed the right to lead DE. In view of the said proceedings during trial, it can not be said that Ld. Trial court did not grant sufficient and fair opportunity to the accused to prove his defence, rather the accused has squandered the opportunity given by his own conduct. The appeal is bound to fail on this ground of lack of sufficient opportunity.
14. In view of the above discussion, it is clear that the facts claimed by accused in his appeal have nowhere been disclosed on record before the Ld. Trial Court. As accused has failed to present himself for cross examination, after due compliance of the orders regarding payment of cost, it can not be said that the examination in chief of the accused can be read in evidence, since the complainant never got the opportunity to cross examine accused. Hence, the said defence disclosed by accused remains in the realm of mere assertions and never acquired the status of cogent evidence for rebuttal of presumptions raised in favor of the complainant.
15. The accused has also challenged the impugned judgment and order on sentence on the ground that although correct address of accused has been mentioned in the legal notice issued by complainant, but he never received the same. The said argument is a strange argument when the accused himself has not disputed the address mentioned on the legal notice during trial. Furthermore, this court is in agreement with the reasons propounded by the Ld. Trial court alongwith case laws relied upon the case of Alavi Haji Vs. Palapetty Mohammed (2007) 6SCC 555 in respect of receipt of legal notice u/s 138 NI Act and no interference in this regard is called for in the impugned judgment.
1016. Furthermore, the Hon'ble Supreme Court of India in Sanjabij Tari vs. Kishore S. Borcar in Crl. Appeal No. 1755/2010 decided on 25.09.2025 has held:
"29. Furthermore, the fact that the accused has failed to reply to the statutory notice under Section 138 of the NI Act leads to an inference that there is merit in the Appellant-Complainant's version. This Court in Tedhi Singh vs. Narayan Dass Mahant, (2022) 6 SCC 735 has held that the accused has the initial burden to set up the defence in his reply to the demand notice that the complainant did not have the financial capacity to advance the loan. The relevant portion of the said judgment is reproduced here in below:-
"10. ... The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross-examination of the witnesses of the complainant. Ultimately, it becomes the duty of the courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence."11
30. This Court in MMTC Ltd. and Another vs. Medchl Chemicals & Pharma (P) Ltd. and Another, (2002) 1 SCC 234 has specifically held that when a statutory notice is not replied, it has to be presumed that the cheque was issued towards the discharge of liability.
31. Also, after receipt of the legal notice, wherein the Appellant- Complainant alleged that the Respondent No.1-Accused's cheque had bounced, no complaint or legal proceeding was initiated by the Respondent No.1-Accused alleging that the cheque was not to be encashed. Consequently, the defence of financial incapacity of Appellant-Complainant advanced by the Respondent No.1-Accused is an afterthought."
Thus, the grounds taken in appeal are unsustainable in view of the above discussion.
17. With respect to presumptions in favor of complainant for offence punishable u/s 138 NI Act and the manner in which the presumption can be rebutted by accused and how onus shifts like a pendulum in the trial u/s 138 NI Act has been discussed at length in the judgment of N. Vijaykumar Vs. Vishwanath Rao N. in Crl. Appeal No. 5305/2024 decided on 22.04.2025 by Hon'ble Supreme Court of India. In the instant case, there has been no occasion during trial, as reflected by record that the onus shifted upon the complainant at any point of time to prove its case against the accused and thus the presumptions, always remained in favor of the complainant.
18. The case laws relied upon by accused are not advancing the case of accused as they are distinguishable of the peculiar facts and circumstances of this case.
1219. Thus, in view of the above discussion, it is clear that the complainant has established its case against the accused and the present appeal is devoid of any merits. Accordingly, the present appeal is dismissed.
Typed directly upon dictation on court computer and announced in Open Court, On 23rd December, 2025 (Deepti Devesh) ASJ/Spl.FTC/PHC/23.12.2025