Delhi District Court
Bijender vs Ranjeet Kumar Mishra on 19 February, 2025
DLSE010001652025
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
CRL. APPEAL No. 10/2025
BIJENDER
S/O SH. RAMESH CHAND
R/O H.NO. 1645, GALI NO. 53/3
BLOCK-E, MOLARBAND EXTN.
BADARPUR, NEW DELHI-110044
....Appellant
versus
RANJEET KUMAR MISHRA
S/O SH. KARI MISHRA
R/O D-94, GF, BLOCK-D,
HARI NAGAR EXTN, BADARPUR,
NEAR SHIV DAIRY, HANUMAN MANDIR,
NEW DELHI-110044
...Respondent
Date of institution : 10.01.2025
Date of Reserving judgment : 13.02.2025
Date of Pronouncement : 19.02.2025
LOVLEEN
Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 1/32
Digitally signed
by LOVLEEN
Date: 2025.02.19
13:19:14 +0530
JUDGMENT
1. This is an appeal under section 415 BNSS preferred by the appellant against the impugned judgment dated 16.10.2024 and order on sentence dated 09.12.2024 passed by Court of Ld. Judicial Magistrate First Class (NI Act) Digital Court-01, South East District in CC No. 5761/2022 titled Ranjeet Kumra Mishra Vs. Bijender, whereby the appellant/ convict Bijender was convicted of the offence punishable under Section 138 of Negotiable Instruments Act and was sentenced to SI for one month. Additionally, the appellant / convict Bijender was directed to pay a fine of Rs. 2,75,000/- all of which is to go to respondent Rajneet Kumar Mishra as compensation. In default, appellant/ convict Bijender is to undergo SI for 01 month. For the sake of convenience, the appellant herein shall be referred to as 'accused' and the respondent herein shall be referred to as 'complainant'.
BRIEF FACTS
2. The brief facts of the case are correctly noted by the Ld. Trial Court in the following fashion:
"1. The present complaint has been filed by the complainant Ranjeet Kumar Mishra against the accused person Bijender under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"). The substance of allegations and assertions of the complainant is that the accused is known to the complainant since November 2020 as the accused was Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 2/32 working as a driver in Ola/Uber with the complainant. That the accused requested the complainant for a friendly loan of Rs. 1,98,000/- for business requirement, as the accused was in dire need of money the complainant agreed to provide the loan of Rs. 1,98,000/- and had given the same to the accused on 26.06.2021 in cash. That the accused promised to return the said amount within six months. That after lapse of six months when the complainant requested to return the amount the accused sought time. That after persuasion, the accused had issued the cheque bearing no. 937646 dated 10.03.2022 for a sum of Rs. 1,98,000/- drawn on Canara Bank, Bhogal Lane, New Delhi-110024 (hereinafter referred to as "Cheque in question") in favour of the complainant to discharge the liability of the loan amount. That the complainant presented the cheque in question with his banker for encashment on 09.05.2022. The said cheque in question was returned dishonoured on presenting with the remarks "funds insufficient" vide return memo dated 11.05.2022. The complainant thereafter issued a legal demand notice dated 19.05.2022 for the cheque in question which was duly served upon the accused. Despite service, the accused failed to repay the cheque amount within the stipulated period and hence, the present complaint has been filed under section 138 of the NI Act .............................................................................. .............................................................................."
Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 3/32 TRIAL
3. Vide order dated 18.10.2022, the Ld. Metropolitan Magistrate summoned the accused to face trial u/s 138 NI Act. On 27.07.2023, a notice u/s 251 Cr.P.C. was framed upon the accused to which he pleaded not guilty and claimed trial. He stated that "I used to drive the car of the complainant in Ola/Uber Taxi Services in the year 2020. I worked for the complainant for 8-10 months. I took the car on monthly rent of Rs. 12,000/-. I used to pay the rent to the complainant in cash and through online mode. The transactions were recorded by the complainant in the registered maintained by him. Whatever amount I used to pay to the complainant was recorded in the register by the complainant. The rent of approximately Rs. 26000/- was became due to me and the complainant asked me to give security cheque regarding the same. I do not owe to the complainant the cheque amount in question, however I have to pay Rs. 26500/- to the complainant". At the same time, he denied the receipt of Demand Notice sent by the complainant, but admitted the address mentioned upon the same.
4. During trial, the complainant examined himself as CW-1 and deposed in line with the case set up against the accused. Statement of accused was recorded u/s 313 Cr.P.C, wherein he reiterated his defence, as recorded at the time of framing of notice u/s 251 CrPC. The accused Bijender examined himself as DW-1. Accused examined one Prashant Sharma as DW-2. Upon the conclusion of trial, accused was convicted for the commission of offence punishable u/s 138 NI Act vide the impugned judgment dated 16.10.2024.
Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 4/32 GROUNDS OF APPEAL
5. The grounds cited by the accused against the impugned judgement are as under :
(a). BECAUSE the Ld. JMFC, Digital Court-01, South-East, Saket Court erred in law in recording the finding of guilt against the Appellant and further erred in law in sentencing the Appellant for the alleged offence. The Ld. JMFC ought to have appreciated, seen and held that the Respondent had failed to establish the basic ingredients of Section 138 of the Negotiable Instruments Act. The Ld. JMFC, therefore, could not have held the Appellant guilty of an offence under Section 138 of the Negotiable Instruments Act.
(b) BECAUSE the Learned JMFC failed to appreciate that the complainant had miserably failed to prove that he had advanced a loan of Rs. 1,98,000/- to the appellant in cash and has not filed any written agreement between the parties along with the compliant case. It is humbly submitted that the Ld. Trial Court failed to realize that there is no written agreement between the parties and later on the respondent brought one fake promissory note which was converted one blank signed page into promissory note.
(c) BECAUSE the Ld. Trial Court further failed to appreciate that as per the case of the complainant himself, he said in his cross-examination that there is no written agreement between the parties, if there any, must be filed with the complaint case.
Hence a bare perusal of the documents relied upon by the complainant, copy of the complaint and evidence led will reveal that no where in the entire complaint has the respondent stated that there was a written agreement between the parties Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 5/32 in the form of promissory note and the same amount is given @ rate of 2% per month. Hence in the present circumstances the complainant himself failed to show as to how and when the said loan amount of Rs. 1,98,000/-became due from the appellant as the respondent already made so many payments even after date of loan. The Id. Trial Court failed to realize that the process under s.138 N.I Act was only available to a complainant with respect to an amount which is 'legally recoverable'. Thus the complaint itself was devoid of any averments relating to as to how and when the alleged amount of Rs. 1,98,000/- became legally recoverable debt.
(d) BECAUSE the Ld. Trial Court failed to realize that the respondent did not mention anywhere in his complaint or in his evidence as to when and how the alleged loan amount of Rs. 1,98,000/- became due from the appellant and the same was given @ 2% per month. The complainant miserably failed to show as to how and why was the amount mentioned on the register page produced by the appellant have some other transactions and not this due amount of Rs. 26,500/-which is only due on the part of the appellant and against whom the security cheque was given to the respondent by the appellant in the presence of DW-2. The respondent thus failed to even aver in his complaint as to how and when the alleged amount of Rs. 1,98,000/- became legally recoverable from the appellant.
(e) BECAUSE the Ld. Trial Court failed to realize that the appellant was successfully able to rebut the statutory presumption raised in favour of the complainant under s. 139 N.I Act and prove that the cheque was not drawn for the discharge in whole or in part of any debt or other liability.
Reliance can be placed on the decision of our Hon'ble High Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 6/32 Court of Delhi in N. Chirag Travels Pvt. Ltd vs. Ashwani Kumar and Anr., reported as 2010 (1) DCR 231, wherein Hon'ble High Court has discussed the burden of proof required on the parties to a case under 138 NI Act and the statutory presumptions raised in favour of the complainant, the Court observed that:
"6. The Negotiable Instruments Act raises two presumptions:
firstly, in regard to the passing of consideration as contained in Section 118(a) therein and, secondly, a presumption that the holder of cheque receiving the consideration of the nature referred to in Section 139 discharged in whole or in part any debt other liability. Presumptions both under Sections 118(a) and 139 are rebuttable in nature. Having regard to the definition of terms 'proved' and 'disproved' as contained in Section 3 of the Evidence Act also the nature of the said burden upon the prosecution vis-a-vis an accused it is not necessary that the accused must step into the witness box to discharge the burden proof in terms of the aforementioned provision. or as of
7. In this regard, in K. Prakashan v. P.K. Surenderan MANU/SC/8009/2007: (2008)1SCC258, the Hon'ble Apex Court observed as under:
18. The said legal principle has been reiterated by this Court in Kamala S. v. Vidhyadharan M.J. wherein it was held: (SCC p. 270, paras 15-17)
33. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act.
Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another.
Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 7/32
8. It is furthermore not in doubt or dispute that whereas the standard of proof so far as the prosecution is concerned is proof of guilt beyond all reasonable doubt; the one on the accused is only mere preponderance of probability.
9. In this regard, in M.S. Narayana Menon v. State of Kerala MANU/SC/2881/2006: 2006CriLJ4607, the Hon'ble Apex Court observed as under:
46. In Harbhajan Singh v. State of Punjab this Court while considering the nature and scope of onus of proof which the accused was required to discharge in seeking the protection of Exception 9 to Section 499 of the Penal Code, stated the law as under (SCR pp. 242 H-243 A)-
In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings the Court trying an issue makes its decision by adopting the test of probabilities, so must a criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him.
47. In V.D. Jhingan v. State of Uttar Pradesh it was stated (SCR p. 739 H)-It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt.
(See also State of Maharashtra v. Wasudeo Ramchandra Kaidalwar.)
48. In Kali Ram v. State of H.P. Khanna, J., speaking for the three-Judge Bench, held (SCC p. 819, para 23)-
Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 8/32 One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the Courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.
49. In State (Delhi Admit.) v. Sanjay Gandhi, it was stated (SCC p. 420, para 14)-
Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 9/32 criminal trial like the cancellation of bail of an accused.
(f) BECAUSE the Ld. Trial Court failed to take into account the decision of Hon'ble Supreme Court in 'Vijay vs. Laman', reported as (2013) 3 SCC 248, wherein in almost similar factual matrix was involved. The Hon'ble Court observed that:
"The absence of any details of the date on which the loan was advanced as also the absence of any documentary or other evidence to show that any such loan transaction had indeed taken place between the parties is a significant circumstance."
(g). BECAUSE the Ld. Trial Court failed to realize that the complainant had to prove his case beyond reasonable doubt and he miserably failed in discharging the same as the respondent not brought any witness on whom presence this promissory note took place or signed or notrised. Therefore the learned Magistrate failed to notice that although the complainant enjoys the benefit of the presumption raised under section 139 N.I Act it is still required to prove to existence of the debt or liability which was incumbent upon the appellant
(h) BECAUSE the Ld. Trial Court failed to appreciate the decision of the Hon'ble Apex Court in Krishna Janardhan Bhat v. Dattatraya Hegde, reported as AIR 2998 SC 1325: 2008 (4) SCC 54 that "the provisio appended to section 139 provides for compliance to legal requirements before a complaint petition can be acted upon by a Court of Law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of a legally recoverable debt is not a matter of presumption under section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 10/32 or other liability".
(I). BECAUSE The Ld. Magistrate miserably failed to appreciate the legal mandate that the veracity of any loan transaction and issue of cheque in discharge of liability under a loan is to be tested with reference to materials tendered by the complainant in the case. The Hon'ble High Court of Kerala has held in C. Bhaskaran v. B. Mohanan, reported as 2009 DCR 673 that presumption under section 118 and 139 of the NI Act can be canvassed only where execution of documents is either proved or admitted. Such presumption is rebuttable and can only survived if the contrary is not proven by the accused. The Hon'ble Court further went on to hold that the Court is expected to examine whether the transaction covered under the cheque is genuine and bona fide.
(j). BECAUSE the Ld. Magistrate ought to have appreciated and seen that the Appellant had successfully rebutted the presumption under Section 139 of the Negotiable Instruments Act, firstly by examining himself on oath as Defence Witness and on the basis of the material on record and later on brought one more witness DW-2 in whose presence the keys of the car was handover by the appellant to the respondent and in the presence of DW-2 the appellant gave one signed security cheque and also gave one blank signed page along with thumb impression to the respondent and Ld. Magistrate wrongly mentioned that DW-2 failed to mentioned any house of the complainant and in his cross examination DW-2 said that he accompaniyed the accused in the car and accused know the address of the complainant.
(k). BECAUSE the Ld. Magistrate has not assigned any valid reasons or grounds for recording the finding of guilt against the Appellant. In fact, the Ld. Magistrate ought to have Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 11/32 dismissed the said complaint and acquitted the Appellant for the alleged offence. The Ld. Magistrate ought to have held that the Respondent had failed to prove the case against the Appellant beyond reasonable doubt.
l). BECAUSE the entire approach adopted by the Ld. Magistrate in appreciating the evidence adduced by both the parties during trial by adopting different yardsticks for both sides, is clearly illegal, improper and contrary to the well- settled principles of criminal jurisprudence. The Ld. Magistrate has committed serious error of law in dismissing the application of the appellants under section 73 and 45 of the Indian Evidence Act.
(m). BECAUSE the impugned judgment and order is absolutely illegal, incorrect, improper and against the well settled interpretation governing the provisions of Sec.138 of Negotiable Instruments Act. The Ld. Magistrate ought to have appreciated and held that the Respondent had failed to prove the case against the Appellant beyond the reasonable doubt.
(n). BECAUSE The Ld. Magistrate ought to have taken in to account and consideration the principles laid down by the Hon'ble supreme Court in the case of M. Abbas v. State of Kerala, reported as 2001 (4) JT 92: 2001 (4) Supreme 405, wherein it has been held that "Where an accused sets up a defence or offers an explanation it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities"
(0). BECAUSE the Ld. Magistrate has failed to appreciate, follow and take in to account the ratio laid down by the Hon'ble Bombay High Court in the case of Prabhakar D. Naik vs. Jerry S. Viegas & another reported in 2002 Bom.C.R. Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 12/32 (Cri.) 623, wherein it is held that "It is true that for rebutting the presumption under section 139 of the Negotiable Instruments Act, 1881, it is not necessary for the accused to rebut it by proof beyond reasonable doubt. The accused can rebut the said presumption either by leading evidence himself or by relying upon admissions and circumstances as appearing in the evidence of the prosecution. The accused is required to rebut the presumption by preponderance of probabilities. In other words, the accused is required to probablise his defence". The ratio laid down in the aforesaid judgment was squarely applicable to the case of Appellant, who had successfully rebutted the presumption U/S 139 of N. I. Act.
(p). BECAUSE the Ld. Magistrate further ought to have appreciated and followed the principles laid down by the Hon'ble Supreme Court in the case of Bharat Barrel & Drum Manufacturing Company vs. Amin Chand Payrelal, reported as 1999 3 SCC 35 wherein it is held that "Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 13/32 defendant is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt"
(q). BECAUSE the Ld. Magistrate ought to have appreciated and kept in mind the principles laid down by the Hon'ble Supreme Court in the case of Jolly George Varghese vs Bank of Cochin, reported in 1980 AIR(SC) 470: 1980 (2) SCC 360, wherein it has been held that "It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of daridra narayana, is no crime and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness".
6. It is prayed that the impugned judgment dated 16.10.2024. and the order on sentence dated 09.12.2024 may be set aside.
SUBMISSIONS OF COMPLAINANT
7. On the other hand, Ld. Counsel for the complainant has argued that the accused has been correctly convicted by Ld. Metropolitan Magistrate Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 14/32 and an appropriate sentence has been imposed upon him. He prays for dismissal of the appeal.
DISCUSSION
8. This Court has considered the oral submissions as well as the records.
9. Recently, the Hon'ble Supreme Court was pleased to define the contours of the law relating to the provision u/s 138 of Negotiable Instruments Act in Rajesh Jain Vs. Ajay Singh 2023 INSC 888. The relevant extracts of the observations are reproduced below for ready reference:-
Section 138 of the NI Act - Necessary Ingredients
25. Essentially, in all trials concerning dishonour of cheque, the courts are called upon to consider is whether the ingredients of the offence enumerated in Section 138 of the Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the Act.
26. In Gimpex Private Limited vs. Manoj Goel (2022) 11 SCC 705 , this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure:
(1) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account;
Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 15/32
(i) The cheque being drawn for the discharge in whole or in part of any debt or other liability;
(iii) Presentation of the cheque to the bank arranged to be paid from that account,
(iv) The return of the cheque by the drawee bank as unpaid either because the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount
(v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and
(vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice.
27. In K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 this Court had summarised the constituent elements of the offence in fairly similar terms by holding:
"14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts.The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of the receipt of the Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 16/32 notice."
28. The five (5) acts as set out in K Bhaskaran's case (supra) are, generally speaking, matters of record and would be available in the form of documentary evidence as early as, at the stage of filing the complaint and initiating prosecution. Apart from the above acts, it is also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability.
Burden of Proof and Presumptions: Conceptual Underpinnings
29. There are two senses in which the phrase 'burden of proof' is used in the Indian Evidence Act, 1872 (Evidence Act, hereinafter). One is the burden of proof arising as a matter of pleading and the other is the one which deals with the question as to who has first to prove a particular fact. The former is called the 'legal burden' and it never shifts, Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 17/32 the latter is called the 'evidential burden' and it shifts from one side to the other. [See Kundanlal v. Custodian Evacuee Property (AIR 1961 SC 1316)]
30. The legal burden is the burden of proof which remains constant throughout a trial. It is the burden of establishing the facts and contentions which will support a party's case. If, at the conclusion of the trial a party has failed to establish these to the appropriate standards, he would lose to stand. The incidence of the burden is usually clear from the pleadings and usually, it is incumbent on the plaintiff or complainant to prove what he pleaded or contends. On the other hand, the evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; the burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be is adduced by either side (See Halsbury's Laws of England, 4th Edition para
13). While the former, the legal burden arising on the pleadings is mentioned in Section 101 of the Evidence Act, the latter, the evidential burden, is referred to in Section 102 thereof. [G.Vasu V. Syed Yaseen (AIR 1987 AP139) affirmed in Bharat Barrel Vs. Amin Chand [(1999) 3 SCC 35] ]
31. Presumption, on the other hand, literally means "taking as true without examination or proof". In Kumar Exports v. Sharma Exports (2009) 2 SCC 513, this Court referred to presumption as "devices by use of which courts are enabled Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 18/32 and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence."
32. Broadly speaking, presumptions are of two kinds, presumptions of fact and of law. Presumptions of fact are inferences logically drawn from one fact as to the existence of other facts. Presumptions of fact are rebuttable by evidence to the contrary. Presumptions of law may be either irrebuttable (conclusive presumptions), so that no evidence to the contrary may be given or rebuttable. A rebuttable presumption of law is a legal rule to be applied by the Court in the absence of conflicting evidence (Halsbury, 4th Edition paras 111, 112]. Among the class of rebuttable presumptions, a further distinction can be made between discretionary presumptions ('may presume') and compulsive or compulsory presumptions ('shall presume'). [G. Vasu V. Syed Yaseen (Supra)]
33. The Evidence Act provides for presumptions, which fit within one of three forms: 'may presume' (rebuttable presumptions of fact), 'shall presume' (rebuttable presumption of law) and conclusive presumptions (irrebuttable presumption of law). The distinction between 'may presume' and 'shall presume' clauses is that, as regards the former, the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 19/32 presumptions ceases and the fact is presumed, unless and until it is disproved, [G.Vasu V. Syed Yaseen (Supra)] Section 139 NI Act-Effect of Presumption and Shifting of Onus of Proof
34. The NI Act provides for two presumptions: Section 118 and Section 139. Section 118 of the Act inter alia directs that it shall be presumed, until the contrary is proved, that every negotiable instrument was made or drawn for consideration. Section 139 of the Act stipulates that 'unless the contrary is proved, it shall be presumed, that the holder of the cheque received the cheque, for the discharge of, whole or part of any debt or liability'. It will be seen that the 'presumed fact' directly relates to one of the crucial ingredients necessary to sustain a conviction under Section
138.
35. Section 139 of the NI Act, which takes the form of a 'shall presume' clause is illustrative of a presumption of law. Because Section 139 requires that the Court 'shall presume' the fact stated therein, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary as is clear from the use of the phrase 'unless the contrary is proved'.
36. The Court will necessarily presume that the cheque had been issued towards discharge of a legally Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 20/32 enforceable debt/liability in two circumstances. Firstly, when the drawer of the cheque admits issuance/execution of the cheque and secondly, in the event where the complainant proves that cheque was issued/executed in his favour by the drawer. The circumstances set out above form the fact(s) which bring about the activation of the presumptive clause. [Bharat Barrel Vs. Amin Chand] [(1999) 3 SCC 35]
37. Recently, this Court has gone to the extent of holding that presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar (2019) 4 SCC 197]. Therefore, mere admission of the drawer's signature, without admitting the execution of the entire contents in the cheque, is now sufficient to trigger the presumption.
38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further.
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39. John Henry Wigmore12 on Evidence states as follows:
"The peculiar effect of the presumption of law is merely to invoke a rule of law compelling the Jury to reach the conclusion in the absence of evidence to the contrary from the opponent but if the opponent does offer evidence to the contrary (sufficient to satisfy the Judge's requirement of some evidence), the presumption 'disappears as a rule of law and the case is in the Jury's hands free from any rule."
40. The standard of proof to discharge this evidential burden is not as heavy as that usually seen in situations where the prosecution is required to prove the guilt of an accused. The accused is not expected to prove the non- existence of the presumed fact beyond reasonable doubt. The accused must meet the standard of 'preponderance of probabilities', similar to a defendant in a civil proceeding. [Rangappa vs. Mohan (AIR 2010 SC 1898)]
41. In order to rebut the presumption and prove to the contrary, it is open to the accused to raise a probable defence wherein the existence of a legally enforceable debt or liability can be contested. The words 'until the contrary is proved' occurring in Section 139 do not mean that accused must necessarily prove the negative that the instrument is not issued in discharge of any debt/liability but the accused has the option to ask the Court to consider the non-existence of debt/liability so probable that a prudent man ought, under the circumstances of the case, to act upon the supposition that debt/liability did not exist. [Basalingappa Vs. Mudibasappa (AIR 2019 SC 1983) See Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 22/32 also Kumar Exports Vs. Sharma Carpets (2009) 2 SCC 513]25
42. In other words, the accused is left with two options. The first option-of proving that the debt/liability does not exist- is to lead defence evidence and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non- existence of debt/liability by a preponderance of probabilities by referring to the particular circumstances of the case. The preponderance of probability in favour of the accused's case may be even fifty one to forty nine and arising out of the entire circumstances of the case, which includes: the complainant's version in the original complaint, the case in the legal/demand notice, complainant's case at the trial, as also the plea of the accused in the reply notice, his 313 statement or at the trial as to the circumstances under which the promissory note/cheque was executed. All of them can raise a preponderance of probabilities justifying a finding that there was 'no debt/liability'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513]
43. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact.
44. The accused may adduce direct evidence to prove that Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 23/32 the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. The burden of proof may shift by presumptions of law or fact. In Kundanlal's case- (supra) when the creditor had failed to produce his account books, this Court raised a presumption of fact under Section 114, that the evidence, if produced would have shown the non- existence of consideration. Though, in that case, this Court was dealing with the presumptive clause in Section 118 NI Act, since the nature of the presumptive clauses in Section 118 and 139 is the same, the analogy can be extended and applied in the context of Section 139 as well.
45. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumption 'disappears' and does not haunt the accused any longer. The onus having now shifted to the complainant, he will be obliged to prove the existence of a debt/liability as a matter of fact and his failure to prove Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 24/32 would result in dismissal of his complaint case. Thereafter, the presumption under Section 139 does not again come to the complainant's rescue. Once both parties have adduced evidence, the Court has to consider the same and the burden of proof loses all its importance. [Basalingappa vs. Mudibasappa, AIR 2019 SC 1983; See also, Rangappa vs. Sri Mohan (2010) 11 SCC 441].
Existence of Statutory Presumptions
10. Trial court record reflects that at the time of framing of notice u/s 251 Cr.P.C, the accused admitted that the cheque in question belongs to him and also bears his signatures. The accused also admits the handing over of the cheque in question to the complainant albeit for a different purpose then what is claimed by the complainant. Admittedly, the cheque in question was dishonored upon being presented for encashment by the complainant. A legal notice was then sent by the complainant to the accused demanding the amount due under the cheque in question. Service of the said legal notice was denied by the accused at the time of framing of notice u/s 251 CrPC. However, perusal of the record reflects that the said legal notice was sent by registered post at the admitted address of the accused. As such, a legal presumption arises in favour of the complainant and against the accused regarding the service of the said legal notice. Admittedly, the accused did not make any payment demanded vide the said legal notice within the period prescribed u/s 138 of NI Act. All the above facts are sufficient to invoke the presumptions available to the complainant u/s 118 NI Act and u/s 139 NI Act. As such, the evidential burden stood Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 25/32 transferred upon the accused to prove that the cheque in question was not issued towards discharge of any liability. Until the said evidential burden is discharged by the accused, the presumptions available against the accused u/s 118 NI Act and u/s 139 NI Act will have to be assumed to be true, without expecting the complainant to do anything further. The said burden could be discharged by the accused either by leading defence evidence to conclusively establish that the cheque was not issued in discharge of a debt / liability or by proving the non existence of debt / liability on preponderance of probabilities by referring to the particular circumstances of the case. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence. Once the accused produces such evidence, the burden shifts back to the complainant and the above mentioned presumptions disappear.
Rebuttal of Statutory Presumptions
11. Now, the question left to be decided is whether the said presumptions have been successfully rebutted by the accused or not. In order to adjudicate the same, this Court must deal with the facts adduced on record by the accused during the cross-examination of complainant or during the defence evidence.
12. The said adjudication requires an understanding of the respective stands taken by the parties. As per complainant, the cheque in question was issued by the accused in order to repay the friendly loan of Rs. 1,98,000/- advanced in cash by the complainant on 26.06.2021. On the other hand, the accused denies any such liability and claims, in response to notice framed upon him u/s 251 Cr.P.C, that " I used to drive the car of the complainant Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 26/32 in Ola/Uber Taxi Services in the year 2020. I worked for the complainant for 8-10 months. I took the car on monthly rent of Rs. 12,000/-. I used to pay the rent to the complainant in cash and through online mode. The transactions were recorded by the complainant in the registered maintained by him. Whatever amount I used to pay to the complainant was recorded in the register by the complainant. The rent of approximately Rs. 26000/- was became due to me and the complainant asked me to give security cheque regarding the same. I do not owe to the complainant the cheque amount in question, however I have to pay Rs. 26500/- to the complainant." In his statement recorded u/s 313 Cr.PC, the accused reiterates the said defence. Both the parties examined themselves as witnesses in support of their above claims. Accused additionally examined DW-2 Prashant Sharma in defence.
13. Now we delve into the testimony of complainant, who examined himself as CW-1. CW-1 deposed in line with the facts mentioned in the afore-going paragraphs. He was cross-examined at length on behalf of the accused. During the course of cross examination, complainant deposed that no written agreement was executed between the parties at the time of advancement of said friendly loan to the accused. Complainant further deposed that accused used to drive his car which was attached with OLA/ UBER between November 2020 to July 2021. However, he denied that accused used to pay any rent (@ Rs. 12,000/- per month) to him towards the said car. Rather, he claimed that the accused used to pay a sum of Rs. 12,000/- to the complainant, being the ride fare received from the customers. Complainant denied the suggestion of the accused to the effect that the cheque in question was handed over to him (complainant) against Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 27/32 the unpaid rent of the car. During the course of cross-examination of complainant, a document Ex.CW1/XA was placed on record by the accused. The same is a brief hand written statement of account between 06.12.2020 to 05.07.2021 and is reproduced as under:-
Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 28/32
14. As per accused, the said document reflects that he (accused) used to pay a sum of Rs. 12,000/- to the complainant towards the rent the said car belonging to the complainant. Upon being confronted with the said document, complainant admitted that the said handwriting belongs to him and also bears his signatures at point A. Complainant explains the said entries as a rough record of his 'business transactions' kept in his car, which was stolen by the accused. Complainant denies that only a sum of Rs. 26,479/- was due and payable by the accused to him at the time of return of his car. Complainant admits that he does not have any record of the fare charges required to be paid to him by the accused.
15. It is vehemently argued on behalf of the complainant that the said entries have no relevance to the 'loan transaction' between the parties, which transaction actually led to the issuance of cheque in question in his favour (by the accused). At the same time, the accused vehemently contests the case set up by the complainant and argues that the cheque in question was issued as a security at the time of return of car (to the complainant) so as to ensure the payment of said sum of Rs. 26,479/-. Having gone through the records, this court finds that the complainant admits the above entries reflected in Ex. CW1/XA. Surprisingly, the entries pertain to the period falling between November 2020 and July 2021. Admittedly, accused drove the car of the complainant between the said period only. Although, complainant claims that the said entries are a rough record of his 'business transactions', but he has failed to explain as to what business transactions he is referring to. This Court also notes that the said document also bears the signatures of the complainant at point A. Complainant has failed to Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 29/32 explain as to why he would maintain a rough record of his unexplained 'business transactions' and also affix his signatures on the same. This act of complainant is odd and unheard of. Generally, rough records maintained by a party for his personal use do not bear any signatures. Reason being the fact that such records are just a tool for refreshing one's memory. On the other hand, a party generally affixes his signatures on a record/ statement of transactions as an acknowledgment, for the satisfaction of the other party involved in such transactions and such records are in the possession of that other party. The fact that the document Ex. CW1/XA pertains to a period when accused used to drive complainant's car and the fact that the said document is in possession of the accused seems to deal a blow to the case of the complainant. In the considered opinion of this Court, the above facts seem to support the claim of the accused that the entries mentioned in Ex. CW1/XA reflect the transactions carried on between the complainant and the accused. In the absence of any explanation offered by complainant regarding the availability of multiple entries of Rs. 12,000/- each in the said document Ex. CW1/XA, which entries are in consonance with the defence raised by the accused, it could be safely held that the accused has been able to create a reasonable doubt in the case put forth by the complainant. Moreso, when the complainant has failed to produce any receipt reflecting an acknowledgment of the advancement of cash loan to the accused at the relevant time, which omission is an additional damage to the case put up by the complainant.
16. Proceeding further, this Court has noted that the accused, when he examined himself as DW-1, and DW-2 Prashant Sharma have inter alia deposed that the cheque in question was handed over by the accused to the Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 30/32 complainant as a security at the time of return of the car (to the complainant). Both further deposed that at that time, the complainant had taken his signatures on a blank paper. A bare perusal of the cross-
examination of both the said witnesses reflects that the complainant has not bothered to challenge the assertion of either of the said witnesses regarding the time and the purpose of issuance of cheque in question. The same reflects adversely upon the complainant. That apart, this Court has noticed that the complainant has confronted the accused with a photocopy of a promissory note Mark C, which was allegedly executed in favour of the complainant by the accused on 26.06.2021 towards repayment of the loan amount of Rs. 1,98,000/-. Surprisingly, complainant has not bothered to disclose the existence of said promissory note Mark C till the arrival of the stage of cross-examination of accused. No explanation has been offered in this regard by the complainant. Rather, by producing the said promissory note Mark C at that belated a stage, the complainant has contradicted his own statement made at the time of his cross-examination (by the accused) when he claimed that no written agreement was executed between the parties regarding the said 'loan transaction'. Admittedly, complainant has not produced the original of said promissory note Mark C during the course of trial. Complainant claims that the same was stolen by the accused along with the document Ex. CW1/XA but has failed to produce any corroborative material in this regard. Admittedly, the mere admission made by accused regarding availability of his signatures on Mark C does not amount to proof of the contents therein. Reason being the fact that the accused denies the execution of said promissory note Mark C. In the absence of the original promissory note, this Court could not act upon the contents of the document Mark C (reliance is placed upon the observations Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 31/32 made by a Constitutional Bench of Hon'ble Supreme Court in NEERAJ DUTTA VS STATE MANU/SC/1617/2022). The above facts also create an inconsistency in the case put forth by the complainant.
17. In the considered opinion of this Court, cumulatively, the above facts and circumstances are sufficient to hold that the accused has been able to rebut the statutory presumptions operating against him. Complainant has not bothered to place any other evidence on record to prove the existence of any liability upon the accused to repay the amount mentioned in the cheque in question. In such circumstances, the accused Bijender is liable to be acquitted of the charges punishable u/s 138 of Negotiable Instruments Act. Ordered accordingly. Consequently, the impugned judgment dated 16.10.2024 and the order on sentence dated 09.12.2024 are hereby set aside.
18. TCR be sent back along with a copy of this judgment.
19. Appeal filed by accused therefore stands disposed of in above terms.
Announced & Dictated in the Open Court today i.e. 19.02.2025 (Lovleen) ASJ-03 (South East) Saket Courts, Delhi Crl. Appeal No: 10/2025 Bijender Vs Ranjeet Kumar Mishra 32/32