Delhi District Court
Athar Alam vs Rajesh Anand on 30 July, 2025
CNR No.: DLST02-001380-2023
IN THE COURT OF MS. NORMA JAIN,
JMFC (NI ACT) DIGITAL COURT-01, SOUTH DISTRICT,
SAKET COURT COMPLEX, NEW DELHI.
In the matter of: CC No.: 833/2023
CNR NO.: DLST02-001380-2023
Athar Alam
S/o Late Sh. SK Ahmad
R/o A-33, Flat No. 201, Alig Residency,
Abul Fazal Enclave, Jamia Nagar, New Delhi.
Mob No. 9891356444. ......Complainant
versus
Rajesh Anand
S/o Late Prof. AK Prasad
R/o 170, MIG Flats, Prasad Nagar, New Delhi
Mob No. 9811287398 ........Accused
JUDGEMENT
Date of Institution of Complaint : 18.01.2023 Police Station : Saket Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Date of Final Arguments Heard : 22.07.2025 Decision Qua Accused : Acquitted.
Date of Decision : 30.07.2025.
BRIEF STATEMENT OF REASONS FOR DECISION
1. Vide this judgment, I shall decide the present complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act') by the complainant against the accused on account of dishonour of cheque bearing no. 759198 dated Digitally CC No. 833/2023 signed by NORMA NORMA JAIN Athar Alam Vs. Rajesh Anand JAIN Date: Page No. 1 of 15 2025.07.30 16:19:21 +0530 CNR No.: DLST02-001380-2023 13.09.2022 for a sum of Rs.6,00,000/- drawn on Canara Bank, New Delhi allegedly issued by the accused in favour of the complainant (hereinafter referred to as the 'cheque in question').
CASE OF THE COMPLAINANT
2. Brief facts of the case as per the complaint are that the complainant and the accused had advocate-client relationship with each other since 2021. The accused contacted the complainant through his common friend and requested him to represent him in his service matter before Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as 'CAT') in O.A. No. 2519/2016. At that time, the accused stated to the complainant that because of his suspension and termination as Joint Secretary in University Grant Commission (hereinafter referred to as 'UGC'), the accused is not in a position to pay his professional fees, however, he stated that he will arrange money from somewhere and will pay his fees at the time of filing urgent application for listing and final hearing of the CAT matter. The complainant accepted the brief of the accused on the condition that the accused would pay a minimum total fee of Rs. 6,00,000/- to him towards his professional fees including court fee, drafting charges, research work, photocopies, clerkage etc. till the final disposal of the petition before CAT.
2.1 Thereafter with the efforts of the complainant, the matter was listed before the Chairman, CAT on 28.02.2022 under the category of final argument and the complainant filed his written submissions before CAT on 26.02.2022. Consequently, the IO was disposed off vide order and judgment dated 28.02.2022 (hereinafter referred to as the said 'judgment') and the accused was reinstated to his services. The accused being satisfied with the judgment visited the complainant Digitally signed by CC No. 833/2023 NORMA NORMA JAIN Athar Alam Vs. Rajesh Anand JAIN Date: Page No. 2 of 15 2025.07.30 16:19:15 +0530 CNR No.: DLST02-001380-2023 on 27.03.2022 in the canteen of Hon'ble Supreme Court and in discharge of his liability, he asked the complainant to write his correct name and outstanding amount on the cheque and put his signatures and assured him for encashment after some time. 2.2 Thereafter, UGC challenged the said judgment before the Hon'ble Delhi High Court vide writ petition no. 8533 of 2022 and at the time of listing of the said matter in the last week of May, 2022, the complainant again asked for his professional fee on which the accused stated that he is arranging money by taking loan from some private bank and the same will be paid shortly. The accused also assured the complainant to pay some amount for the proceedings before the Hon'ble Delhi High Court but the same was not paid by the accused. 2.3 The accused in order to discharge his liability and in accordance with the agreed terms and conditions towards payment of professional fee to the complainant issued the cheque in question to the complainant assuring that the same will be encashed on presentation. Accordingly, the complainant presented the cheque in question on the assurance of the accused, however, on presentation, the cheque in question returned dishonoured with remarks "Payment Stopped by Drawer" vide cheque return memo dated 03.11.2022 (hereinafter referred to as the said 'return memo'). Thereafter, a legal demand notice dated 25.11.2022 (hereinafter referred to as the said 'legal notice') was sent to the accused, however, since no payment was made within 15 days of the service of legal notice, the present complaint came to be filed.
3. In support of the case of the complainant, Ld. Counsel for the complainant relied on averments made in the complaint, evidence by way of affidavit of the complainant, the presumption of law under CC No. 833/2023 Athar Alam Vs. Rajesh Anand Digitally signed Page No. 3 of 15 NORMA by NORMA JAIN Date:
JAIN 2025.07.30 16:19:18 +0530 CNR No.: DLST02-001380-2023 Section 118(a) read with Section 139 of NI Act and the following documentary evidence:
S. No. Documents Exhibit No.
1. Urgent application with annexures Ex. CW-1/1(Colly)
and vakalatnama filed before CAT,
Principal Bench, New Delhi
2. Written submissions filed before CAT Ex. CW-1/2(Colly)
3. True copy of judgment passed by Ex. CW-1/3(Colly)
Chairman Principal Bench, CAT
4. True copy of order dated 29.08.2022 Ex. CW-1/4(Colly)
passed by CAT Bench
5. True copy of Delhi High Court order Ex. CW-1/5(Colly)
dated 27.05.2022 & 20.07.2022
6. Original cheque in question Ex. CW-1/6
7. Original Cheque Return Memo Ex. CW-1/7(Colly)
8. True copy of legal notice Ex. CW-1/8(Colly)
CASE PROCEEDINGS
4. In the present matter, notice of accusation under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') was served on the accused on 22.08.2024 and the accused pleaded not guilty and claimed trial. The plea of defence of the accused was also recorded by the court on the same day. In the plea of defence, accused admitted that the cheque in question bears his signatures, however, he denied filling other particulars on the same.
He denied the receipt of legal demand notice but admitted the address mentioned on the same, however, submitted that on the said address his wife lives with whom his matrimonial proceedings are going on in Tis Hazari Court. He further stated that the cheque in question was given only for security purposes as his matter was going on in CAT CC No. 833/2023 Digitally signed Athar Alam Vs. Rajesh Anand by NORMA NORMA JAIN Page No. 4 of 15 JAIN Date:
2025.07.30 16:19:10 +0530 CNR No.: DLST02-001380-2023 and for which he had appointed complainant for only one hearing. He further stated that he has no legally enforceable debt or liability in favour of the complainant in respect of the cheque in question and this is a false case against him filed after misusing his security cheque.
5. Oral application under Section 145 (2) NI Act of the accused was allowed vide order dated 22.08.2024 and he was granted an opportunity to cross-examine the complainant. The complainant entered in the witness box as CW1, he was duly cross-examined and was thereafter discharged. Since complainant did not wish to examine further witnesses, accordingly, the post-summoning evidence was closed vide order dated 30.05.2025.
6. Statement of accused under Section 313 CrPC read with Section 281 CrPC was recorded on 30.06.2025 and all the incriminating evidence was put to the accused.
7. During his statement, accused stated that he approached the complainant for representing him before CAT through one friend and the complainant only represented him at the time of final arguments before CAT and that to was also for 20 minutes, at that time due to Covid the proceedings were taking place online. He further stated that no amount was fixed to be given to the complainant, he told the complainant that due to his suspension he cannot pay the amount, however, the same will be paid later. He further stated that even the name of the complainant was not there in the judgment and was later added. He further stated that he did not appoint the complainant to represent him before Hon'ble Delhi High Court and he appointed another advocate himself. He further stated that it is incorrect that the Senior Advocate Sh. Syed Mohd. Arif was engaged by the complainant for him. He further stated that he gave signed blank CC No. 833/2023 Digitally signed Athar Alam Vs. Rajesh Anand NORMA by NORMA JAIN Page No. 5 of 15 Date:
JAIN 2025.07.30 16:19:12 +0530 CNR No.: DLST02-001380-2023 cheque in question to the complainant in relation to one land in Darbhanga, Bihar as security/guarantee and the same was not given for any liability. He further stated that he did not give instructions to his bank for stop payment but he did not have funds in his account. He denied the receipt of legal demand notice and stated that the address mentioned on the same is his old address and he left the said premises 5 years back.
8. Since the accused chose not to lead Defence Evidence in his statement under Section 313 CrPC, matter was fixed for final arguments.
9. Final arguments were heard by this court on 22.07.2025.
SUBMISSION OF THE PARTIES:
10. The Ld. Counsel for the accused argued that the accused never gave the cheque in question to the complainant for any legally enforceable debt and/or liability. He further argued that the story of the complainant is full of contradictions and the same can be seen from his version made in the legal demand notice, complainant and his evidence affidavit.
11. He further argued that the ingredients required to fulfill Section 138 of NI Act are not satisfied in the present case as the legal demand notice was never received by the accused. He further submitted that the complainant deliberately got the notice served on the address in which he knew that the accused is not residing.
12. Per contra, Ld. Counsel for the complainant argued that the initial burden lied on the accused to disprove the case as the signatures on the cheque in question are admitted and he failed to rebut the presumption as the accused has taken contradictory stand before the court. He argued that it was on the accused to prove that he had no Digitally CC No. 833/2023 signed by NORMA NORMA JAIN Athar Alam Vs. Rajesh Anand JAIN Date:
2025.07.30 Page No. 6 of 15 16:19:04 +0530 CNR No.: DLST02-001380-2023 liability towards him, however, he failed to show the same.
13. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
LAW UNDER CONSIDERATION
14. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 of NI Act. The following legal requirements need to be satisfied in order to constitute an offence under Section 138 of NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that 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;
(iii) that the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the 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 the bank;
(iv) that the payee or the holder in due course of the cheque 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;
(v) that the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied then the person who had drawn the cheque can be held liable for offence under Section 138 of NI Act.
15. Burden of proof: The claim based under the provisions of NI Digitally signed CC No. 833/2023 by NORMA Athar Alam Vs. Rajesh Anand NORMA JAIN Page No. 7 of 15 JAIN Date:
2025.07.30 16:19:06 +0530 CNR No.: DLST02-001380-2023 Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and Section 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability.
16. The rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court of Rangappa versus Mohan 2010 (11) SCC 441 and Hiten P. Dalal v. Bratindranath Banerjee 2001 (6) SCC.
REASONS FOR DECISION
17. In the present case, the signatures on the cheque in question are admitted. Once the signatures are admitted, presumption under Section 118(a) read with Section 139 of NI Act is raised against the accused that the cheque in question was issued by him to the complainant in discharge of legally enforceable debt or liability and it CC No. 833/2023 Digitally signed Athar Alam Vs. Rajesh Anand NORMA by NORMA JAIN Page No. 8 of 15 JAIN Date: 2025.07.30 16:18:58 +0530 CNR No.: DLST02-001380-2023 is now on him to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
18. In the present case, the accused has taken two defences, firstly, that the cheque in question was not issued for any legally enforceable debt and/or liability and secondly, that he never received the legal demand notice and thereby the ingredients of Section 138 NI Act are not fulfilled in the present case.
19. With regards to the first defence of the accused , the complainant approached this Court stating that he accepted the brief of the accused to represent him before CAT on the condition that the accused will pay minimum Rs.6,00,000/- to him. He further stated that after the pronouncement of the said judgment, on 27.03.2022, the accused approached him and handed over the cheque in question which was to be encashed after some time.
20. Though the complainant in the complaint stated that the cheque was given in March, however, in the legal notice, he stated that the cheque in question was given by the accused to him on 27.01.2022.
21. When the complainant was asked about the handing over of the cheque in question in the cross-examination, he stated that the cheque in question was given to him after the judgment of CAT was pronounced, as the judgment was pronounced at the end of February, it means that the cheque in question must have been after February only.
22. With respect to the amount of Rs.6,00,000/- and when the same was to be paid by the accused to the complainant, the complainant in the complaint stated he accepted the brief of the accused on the condition that he will pay Rs.6,00,000/- to him and the same were to be paid till the final disposal of the petition. In the cross-examination, CC No. 833/2023 Digitally signed by NORMA Athar Alam Vs. Rajesh Anand NORMA JAIN Page No. 9 of 15 JAIN Date:
2025.07.30 16:19:01 +0530 CNR No.: DLST02-001380-2023 he stated that the accused told him that he will pay his profession fee after the judgment in CAT and for the amount, he stated that:
'Ques: Was there any amount which was agreed between the accused and you?
Ans: Accused gave me blank cheque and stated that I can fill the amount whatever I feel like. Again said that the accused visited me with his daughter and one servant and gave me the cheque stating that the amount of Rs.6,00,000/- be filled in the same, accordingly, I filled the amount of Rs.6,00,000/-, the accused at that time told me to present the cheque after giving an intimation to him qua the same.'
23. The evidence affidavit Ex. CW1/B is silent on the points as to what was the amount agreed, when the same was payable as well as when the cheque in question was issued by the accused to the complainant.
24. As per the case of the complainant, the cheque in question was given in March, the cheque is dated 13.09.2022 and the same returned unpaid on 03.11.2022, what happened between March to September to November. The complainant stated that he approached the accused again and again to pay the legal fees, however, no evidence ocular/documentary was brought by him to show and/or prove that the professional fee of Rs.6,00,000/- was agreed between the parties and the same was demanded by him from the accused.
25. There is no document on record to prove that Rs.6,00,000/- was agreed between the parties and for the same, the cheque in question was issued. The complainant himself in his cross-examination stated that no invoice was raised by him to the accused and there was no written agreement between the accused and him with regards to the professional fee.
26. The Hon'ble Madras High Court in C. Manohar vs B.R. Poornima 2005(1)ALD(CRI)56 had similar facts before it and it held CC No. 833/2023 Athar Alam Vs. Rajesh Anand NORMA Digitally signed by NORMA JAIN Page No. 10 of 15 JAIN Date: 2025.07.30 16:18:52 +0530 CNR No.: DLST02-001380-2023 that:
14. Case of the complainant is that on behalf of the accused, he has filed claim petitions in M. C. O. P. Nos. 2339 of 1992 and 246 of 1993. Two civil cases were also filed. There is nothing to show that the complainant/Advocate himself has paid the stamp duty and bore the legal fees. The complainant has not produced any agreement showing as to what was the arrangement between him and the accused, as to how much is the fee payable and whether the accused agreed for payment of stamp duty by her counsel itself. In the absence of any agreement, Ex. P-1 cheque cannot be said to have been issued for the purpose of discharge of any substantial debt or liability. Urging the Court to raise the presumption under Section 139 N. I. Act, the learned counsel for the appellant has relied upon 1998 Crimes 268 (SC): (1998 Cri LJ 1397 )- wherein the Supreme Court has held that once the cheque is issued by the drawer a presumption under Section 139 N. I. Act must follow and merely because the drawer issues a notice to the drawee (Payee) or to the Bank for stoppage of the payment it will not preclude an action under Section 139 of the Act by the drawee (Payee) or the holder of a cheque in due course. Of course, under Section 139 N. I. Act, there is a presumption that unless the contrary is proved, the holder of the cheque received the cheque for the discharge in whole or in part of any debt or other liability. But even in Section 139 N. I. Act, the legal presumption is created only for the cheque so received for the discharge in whole or in part of any debt or other liability. In the case on hand, the complainant being a practicing advocate, has not proved the debt amount payable towards him by the accused, who has engaged him as his lawyer to conduct the case. The finding of the trial Court that there is no debt or legally enforceable liability' does not suffer from any infirmity warranting interference.
27. Further, perusal of the cheque in question, exhibited as Ex. CW1/6 (Colly), indicates that the signatures of the accused are in a different ink from that used to fill in the amount (both in words and figures), the name of the payee, and the date. The complainant has candidly admitted that he himself filled in these particulars. It is true that the Hon'ble Supreme Court, in Bir Singh v. Mukesh [(2019) 4 SCC 197], held that if a legally enforceable debt or liability exists, the complainant/payee may fill in the details of a cheque issued by the Digitally CC No. 833/2023 signed by NORMA NORMA JAIN Athar Alam Vs. Rajesh Anand JAIN Date: Page No. 11 of 15 2025.07.30 16:18:55 +0530 CNR No.: DLST02-001380-2023 accused/drawer, and that doing so does not invalidate the instrument. However, in the present case, the complainant has failed to establish, by cogent evidence, that a legally enforceable liability of ₹6,00,000/- existed against the accused. In the absence of such proof, the possibility that the complainant was merely in possession of a signed blank cheque belonging to the accused, and subsequently filled in the particulars without due authority, cannot be ruled out. This casts a serious doubt on the complainant's version and weakens the presumption under Section 139 of the NI Act.
28. The story of the complainant is not only full of contradictions but the same is also unsupported by any cogent evidence which shows that the professional fee agreed between the parties was for a sum of Rs. 6,00,000/- and towards the same, the cheque in question was given by the accused to the complainant.
29. Keeping in view the discussion held above, the accused has been successful in putting holes in the story of the complainant. On the other hand, the complainant has failed to clear the mist created by the accused on his story.
30. With regards to the second defence of the accused , the legal demand notice Ex. CW1/8 (Colly) mentions the address of the accused as: "R/o 170, MIG Flats, Prasad Nagar, New Delhi "
(hereinafter referred to as the 'said address')
31. As per the tracking report, the legal notice was delivered to the accused. The accused in his plea of defence as well as statement under Section 313 Crpc denied receiving the legal notice and stated that his wife has been residing at the given address.
32. The complainant in his cross-examination stated that:
"I met the accused first time in 2020 with regard to his case CC No. 833/2023 Digitally signed by Athar Alam Vs. Rajesh Anand Page No. 12 of 15 NORMA NORMA Date:
JAIN JAIN 2025.07.30 16:18:49 +0530 CNR No.: DLST02-001380-2023 going on against his wife in Tis Hazari Court."
"Accused told me that he has a matrimonial dispute with his wife. (Vol. The accused used to come with the papers of the same and I used to also give advice to him on the same). The accused was living in the Gurgaon property only. I served the legal demand notice Ex. CW1/8 (Colly) on 170, MIG Flats, Prasad Nagar, New Delhi on the accused as previously he was residing at the said address, however, after dispute with his wife, he shifted to Gurgaon address. The notice was received by his wife. No efforts were made by me to serve the accused at Gurgaon address."
33. The Hon'ble Supreme Court in the case of C.C. Alavi Haji vs Palapetty Muhammed & Anr 2007 AIR SCW 3578 held that:
It is, thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.
34. As per the judgment of the Hon'ble Supreme Court in C C Aalvi (supra), in case wherein the accused deny receiving the legal demand notice, requirement of clause (b) of proviso to Section 138 of NI Act is said to be fulfilled, if the address mentioned on the legal demand notice is the correct address of the accused.
35. In the present case, the complainant was very well aware that matrimonial disputes were going on between the accused and his wife and the accused was not residing at the said address and was rather residing at the address in Gurgaon, still he mentioned the said address on the legal demand notice and made the service on it. As the address mentioned on the legal demand notice was not the correct address of the accused and even the complainant was aware about it, Section 27 CC No. 833/2023 Digitally signed Athar Alam Vs. Rajesh Anand NORMA by NORMA JAIN Date:
Page No. 13 of 15JAIN 2025.07.30 16:18:47 +0530 CNR No.: DLST02-001380-2023 of GCA cannot be attracted in the present case and notice cannot be said to be delivered to the accused.
36. Though the complainant in the complaint stated that he again and again contacted the accused, however, it is not known why the service of the legal demand notice was not tried to be affected upon the accused by whatsapp/email.
37. Keeping in view the discussion held above, it cannot be said that the legal demand notice was delivered to the accused, accordingly, the accused has been successful in proving his second defence, the ingredients of Section 138 of NI Act cannot be said to be fulfilled in the present case.
FINAL ORDER
38. It is imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence.
39. In view of the above discussion and in view of the judgments of Hon'ble Superior Courts as stated above, the accused has been able to raise probable defences and has been able to prove his defences on the basis of preponderance of probabilities that he did not have any legally enforceable debt or liability towards the complainant and that the ingredients required to attract liability under Section 138 of NI have not been fulfilled by the complainant. Thus, the accused has been able to rebut the presumption under Section 118 (a) read with Section 139 NI Act. Furthermore, the complainant has failed to prove his case beyond reasonable doubt qua the accused in respect of the cheque in question.
Digitally
CC No. 833/2023 signed by
NORMA JAIN
Athar Alam Vs. Rajesh Anand NORMA Date: Page No. 14 of 15
JAIN 2025.07.30
16:18:44
+0530
CNR No.: DLST02-001380-2023
40. In view of the aforesaid discussion, accused Rajesh Anand S/o Late Prof. AK Prasad is hereby acquitted of offence under Section 138 Digitally signed of Negotiable Instruments Act. NORMA by NORMA JAIN Date:
JAIN 2025.07.30 16:18:38 +0530 (Norma Jain) Announced in Open Court JMFC (NI Act) Digital Court-01 on 30.07.2025 South, Saket Courts, New Delhi Note: This judgment contains 15 signed pages and each page has been signed by the undersigned. NORMA Digitally signed by NORMA JAIN JAIN Date:2025.07.30 16:18:41 +0530
(Norma Jain) JMFC (NI Act) Digital Court-01 South, Saket Courts, New Delhi 30.07.2025 CC No. 833/2023 Athar Alam Vs. Rajesh Anand Page No. 15 of 15