Delhi District Court
Surinder Dhar Dwivedi vs Sunit Dutt on 11 August, 2025
Surinder Dhar Dwivedi vs. Sunit Dutt
IN THE COURT OF SH. SHIV KUMAR,
JUDICIAL MAGISTRATE-FIRST CLASS (NI ACT)-05,
DWARKA COURTS, NEW DELHI
CNR NO. DLSW02-045897-2018
Ct. Cases No. 45288/2018
Surinder Dhar Dwivedi VS. Sunit Dutt
1. Name of the complainant : Surinder Dhar Dwivedi
(Surender Dhar Diwedi)
S/o Sh. Ram Murti Dhar
Dwivedi
R/o J-8, Umeshwar Mahadev
Mandir, Rajouri Garden,
New Delhi-110027
2. Name and address of the : Sunit Dutt
accused R/o H. No. J-8/61, First Floor,
Rajouri Garden, New
Delhi-110027
3. Offence complained of or : Under Section 138 of the
proved Negotiable Instruments Act,
1881.
4. Plea of the accused : Pleaded not guilty and
claimed trial.
5. Final Order : Acquitted
6. Date of Institution : 22.11.2018
7. Date of pronouncement : 11.08.2025
Digitally
signed by
Ct. Case No. 45288/2018 Page No. 1 of 15 SHIV
SHIV KUMAR
KUMAR Date:
2025.08.11
15:45:54
+0530
Surinder Dhar Dwivedi vs. Sunit Dutt
JUDGMENT
1. Vide this judgment, I shall decide the present matter, Ct. Cases No. 45288/2018 filed by complainant against the dishonour of two cheques bearing no. 120485 and 120475 respectively, both dated 13.09.2018, both drawn on Bank of Maharashtra, Rajouri Garden, New Delhi and for Rs.5,00,000/- each (henceforth, the cheques in question). The complaint does not pray for recovery of any specified amount of money from the accused.
2. Briefly stated, the facts are that the complainant and accused were known to each other for many years. Complainant was working as priest in the Umeshwar Mahadev Mandir, Rajouri Garden for many years and was residing there with family. Accused used to come to that temple. The complainant in his complaint stated that accused had stated to the complainant that the accused had good approach with Higher Officials in Ministry and the accused stated to help the unemployed son of the complainant namely Durgesh Dhar Diwedi in finding out for appointing Job in Railway and accused had asked Rs. 15,00,000 to get a job of Station Master in Northern Railway. Seeing the good future in Govt. job the complainant sold his property at Gorakhpur, U.P. and gave cash sum of Rs. 13,00,000/- to the accused in March 2018 to get the job in Northern Railway as Station Master as the accused had assured to the complainant that the accused had Ct. Case No. 45288/2018 Page No. 2 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:46:09 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt direct link in Baroda House, New Delhi, with Minister and Higher Railway Officials, therefore, having good faith in the accused, the complainant has given copy of all relevant documents, photo etc. of his above son along with Rs. 13,00,000/- in cash.
3. It is further the case of complainant that accused gave false date of interview and joining in the Railway Job. Complainant suspected cheating and asked the accused to return Rs. 13,00,000/-. As per complaint, the accused gave 3 cheques in which two were of Rs. 5,00,000/- each in the name of the complainant herein vide cheque no. 120485 and another cheque no 120475, both dated 13.09.2018, both drawn on Bank of Maharashtra, Nehru Market, Rajouri Garden, New Delhi-27 and the third cheque no. 120476 dated 13.09.2018 of Rs. 3,00,000/- drawn on Bank of Maharashtra, Nehru Market, New Delhi-27 in the name of the son of the complainant namely Durgesh Dhar Diwedi against Rs. 13,00,000/- given by the complainant.
4. Two cheques are exhibited in the present case. The first cheque bears number 120485 and second cheque bears number 120475, both dated 13.09.2018, both drawn on Bank of Maharashtra, Nehru Market, Rajouri Garden, New Delhi-27. Each cheque shows filled amount of Rs. 5,00,000/- each, thereby the two cheques show total amount of Rs. 10,00,000/- in this case. Both the cheques in question were returned unpaid with Ct. Case No. 45288/2018 Page No. 3 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:46:21 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt remarks "Funds Insufficient" vide return memo dated 24.09.2018.
5. Thereafter, complainant sent a legal notice dated 17.10.2018 to the accused through registered post calling upon him to pay Rs. 13,00,000/- in this case. The same is Ex. CW1/5. It is the case of the complainant that despite service/receipt of the notice, the accused failed to repay the amount within 15 days. Hence, the present complaint.
6. The present complaint was filed within the limitation period.
7. Pre summoning evidence of CW1/complainant was recorded and the cognizance was taken u/s 138 NI Act on 27.02.2019 and summons were issued to accused thereupon.
8. Notice was framed against the accused on 13.12.2021 to which he pleaded not guilty and claimed trial. Application u/s 145(2) NI Act was orally pleaded and considering no objections, the same was allowed.
9. CW1/complainant examined himself and filed his evidence by way of affidavit Ex.CW1/A. He has relied upon the documents: -
Ex.CW1/1 and
1. Original cheques in question.Ex.CW1/2
Ct. Case No. 45288/2018 Page No. 4 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:46:31 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt Ex.CW1/3 and
2. Return memo.Ex.CW1/4
3. Ex.CW1/5 Legal notice.
4. Ex.CW1/6 Postal receipt.
5. Ex.CW1/7 Copy of delivery report
6. Mark A Complaint dated 03.10.2018
10. CW1/complainant was examined in chief and partly cross examined on 12.04.2024 and further cross-examined and discharged on 04.01.2025. Closing CE, the matter was listed for SA.
11. The accused was examined and his statement was recorded under section 313 Cr.P.C. on 14.02.2025, after all the incriminating evidence and the documents on record were put to him. Accused had chosen to lead evidence in his defence. Accordingly, the matter was fixed for Defence Evidence.
12. Allowing the application u/s 315 Cr.P.C., the accused examined himself as DW1. The witness was examined in chief on 23.05.2025. Accused was cross-examined and discharged on 18.07.2025. Two brothers of accused, DW2 and DW3 were examined, cross-examined and discharged on 18.07.2025. Closing DE, matter was listed for final arguments.
SHIV KUMAR Ct. Case No. 45288/2018 Page No. 5 of 15 Digitally signed by SHIV KUMAR Date: 2025.08.11 15:46:41 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt
13. Both the counsels led their oral submissions in length and filed judgments in support of their case. Rebuttal submissions also taken from both the counsels. The submissions made on behalf of both the parties and the judgments relied on by the parties have been considered.
POINTS FOR DETERMINATION, APPRECIATION OF EVIDENCE AND CONSEQUENT FINDINGS:
14. To establish the offence under Section 138 of the NI Act against the accused, the complainant must prove the following: -
i. the accused issued a cheque on account maintained by him with a bank.
ii. the said cheque has been issued in discharge, in whole or in part, of any legal debt or other liability.
iii. the said cheque has been presented to the bank within a period of three months from the date of cheque or within the period of its validity.
iv. the aforesaid cheque, when presented for encashment, was returned unpaid/dishonored.
v. the payee of the cheque issued a legal notice of demand to the drawer within 30 days from the receipt of information by him from the bank regarding the return of the cheque.
vi. the drawer of the cheque failed to make the payment within 15 days of the receipt of aforesaid legal notice of demand.
Digitally Ct. Case No. 45288/2018 Page No. 6 of 15 signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:46:51 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt
15. Analysis of any case starts from appreciating the complaint alongwith annexures.
16. This particular complaint mentions that the cash of Rs. 13,00,000/- was given by the complainant to the accused. The purpose of handing over the money was that this cash amount was supposed to be the foundation of procuring a Govt. Job of Railway Station Master, for the unemployed son of the complainant. Complainant reposed full faith on the alleged political connections of the accused in Railway Ministry and other Higher Officials. It is the version of the complainant himself that believing on representation of accused, he not only sold his property at Gorakhpur, U.P. and handed over the sale proceeds of Rs. 13,00,000/- in cash to the accused for securing the job, but also handed over the documents and photo of his son to the accused. Complainant suspected fraud and cheating after procuring alleged false interview and job letter from the accused and subsequently, the complainant procured the cheques in question from the accused, got them dishonoured and sued the accused by way of instant litigation.
17. The complainant outrightly averred that money was given to accused with a view to procure Govt. Job for his son in the Indian Railways. Complainant never mentioned that the accused was running any coaching center providing tuition and preparation of competitive exam or similar lawful reasons for alleged transfer of such huge amount. Complainant imputed Ct. Case No. 45288/2018 Page No. 7 of 15 SHIV KUMAR Digitally signed by SHIV KUMAR Date: 2025.08.11 15:47:17 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt cheating on the accused as despite having paid Rs. 13,00,000/- to the accused, the accused failed to hand over the job of Railway Station Master to the unemployed son of the complainant yet.
18. The fact that complainant handed over the ID documents and photo of his son to the accused alongwith Rs. 13,00,000/- in cash itself demonstrates that the complainant was totally consumed in false hope of procuring Govt. Job for his child by means of illegal gratification as a means to procure the said job. However the accused did not admit having made any illegal promise or taking any money as alleged by the complainant.
19. Apart from complaint, the complainant evidence recorded on oath reiterated that the complainant had given cash amount of Rs. 13,00,000/- to accused in the temple itself as consideration for securing Govt. job of Railway Station master for his unemployed son relying on alleged strong connection of the accused with the Ministry of Railways and other Higher Officials.
20. The portrayed terms of the alleged agreement between the parties do not show elements of lawful agreement. Attempting to procure a publically advertised government job by way of bribe and illegal means of cash money violates public policy.
21. During the notice framed upon the accused under section 251 Cr.PC, statement of accused recorded as per section 313 Ct. Case No. 45288/2018 Page No. 8 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:47:37 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt Cr.PC as well as defence evidence on oath, the accused nowhere admitted having taken Rs. 13,00,000/- from the complainant as a means to securing any Govt. Job for the unemployed son of the complainant. The accused nowhere admitted that he ever represented to the complainant that he had connections with the Railway Ministry or any Official to help the complainant fulfill his short cut chase to Govt. Job.
22. Section 23 of the Indian Contract Act 1872 reads as follows:
What considerations and objects are lawful, and what not:
The consideration or object of an agreement is lawful, unless--
it is forbidden by law ; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent ; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
..... Illustration (f) A promises to obtain for B an employment in the public service and B promises to pay 1,000 rupees Ct. Case No. 45288/2018 Page No. 9 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:47:45 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt to A. The agreement is void, as the consideration for it is unlawful.
23. As per the Indian Contract Act, the amount given to procure employment in public service forms unlawful consideration and the agreement is void.
24. In the case of Krishna Janardhan Bhat vs. Dattatreya Hegde, reported in (2008) 4 SCC 54, the Hon'ble Supreme Court held that section 139 merely raised presumption in favour of holder in due course of cheque that said cheque has been issued for discharge of any debt or other liability, so existence of legally recoverable debt is not a matter of such presumption. Further in the case of Rangappa vs. Sree Mohan reported in (2010) 11 SCC 441 the Hon'ble Supreme Court held that the presumption under section 139 extends beyond existence of legally enforceable debt or liability. Latest pronouncement on that point is Jain P. Jose vs. Santhosh and another, in SLP Srl. No. 5241 of 2016 dt.10.11.2022. Hence when legally enforceable debt is established and proved, presumption under section 139 can be taken and conviction can be given, unless the accused rebuts such presumption through probable defence.
25. Recently, it was also held by the Hon'ble High Court of Punjab And Haryana in Surinder Singh v. Ram Dev (2024:PHHC:135884) that, "7. Under Section 138 of the NI Act, the mere issuance of a cheque does not constitute an offence Ct. Case No. 45288/2018 Page No. 10 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:47:52 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt unless it is proven that the cheque was issued for the discharge of a debt or liability that is legally enforceable. It is well-settled law that any debt or liability arising from a contract or promise that is unlawful, immoral, or not legally enforceable does not attract the provisions of Section 138 of the Act. A payment made as a bribe, being an illegal and immoral transaction, does not constitute a legally enforceable liability. Thus, the learned trial Court correctly concluded that no legally enforceable debt existed in this case, and the cheque issued in furtherance of an unlawful act cannot give rise to criminal liability under the Negotiable Instruments Act."
26. In the light of law discussed above, I am of the opinion that the amount in question in the present case is not legally recoverable debt.
27. It is pertinent to note that the presumption under Section 139 of the NI Act, pertains only to the existence of a legally enforceable debt or liability, and such presumption is rebuttable, not conclusive. Presumptions are like training wheels, they provide support in the absence of complete evidence, but once the facts are clearly established, they are no longer needed. In the present case, the complainant's own averments in the complaint and evidence affidavit clearly disclose that the amount in question was advanced as illegal gratification for securing a government job for his son. Such a transaction is inherently illegal and void ab initio, being opposed to public policy.
Digitally Ct. Case No. 45288/2018 Page No. 11 of 15 signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:48:03 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt Consequently, the presumption under section 139 stands rebutted, as the object and consideration of the transaction are unlawful, and no presumption of a legally recoverable debt can be sustained in such circumstances.
28. In view of the foregoing discussion, the complainant has failed to establish the existence of a legally enforceable debt or liability against the accused. The alleged payment cash amount amount of Rs. 13,00,000/- itself for lawful purpose remains unproven. More importantly, the case put forth by the complainant reveals that the purported amount was allegedly paid as consideration or illegal gratification for securing public employment for his son, an objective that is impermissible in law.
Such a transaction, being tainted with illegality, is not enforceable in a court of law. Therefore, the issuance of the cheque cannot be said to have been in discharge of any legally recoverable liability, and the statutory requirement under Section 138 of the NI Act stands unfulfilled.
29. It is further pertinent to note that the legal notice was served upon the accused and complaint has been filed to recover Rs. 13,00,000/- from the accused. But only two cheques of Rs. 5,00,000/- each have been placed on record, totaling to Rs. 10,00,000/- only. It is settled law that the instruments forming basis of cause of action must be produced before Court. It is he case of the accused that another case was filed under section 138, NI Act against son of the accused for recovery of Rs. 3,00,000/- Ct. Case No. 45288/2018 Page No. 12 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:48:11 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt which was later withdrawn as compounded after receiving the payment. In these circumstances, the legal notice filed before me does not corroborate to the cheques placed on record as patently, the legal notice has made clear demand of payment of Rs. 13,00,000/- from accused whereas cheques which form basis of cause of action are for total amount of Rs. 10,00,000/-. The legal notice sent to the accused is bad in law and is of no help to the complainant.
30. Throughout the CE, complainant has not made a single statement showing that he has approached this Court with clean hands qua the nature of amount sought to be recovered.
31. The accused in his defence evidence has stated that he had taken loan of Rs. 5,00,000/- from the complainant on some other occasion and had already repaid the said loan. It is also undisputed that complainant has to stand on his own feet in order to prove the prima facie case against the accused and cannot take benefit of weakness of defence evidence for covering up the illegality of the very transaction since inception.
32. Mark CW1/X is transfer deed of the property of the complainant situate at Gorakhpur, U.P. Internal pages 16 and 17 thereof show that the amount paid by the concerned buyer to the complainant was in cheques. The paying capacity of the complainant is challenged. The evidence of the complainant does not show how the complainant procured such huge sums of cash Digitally Ct. Case No. 45288/2018 Page No. 13 of 15 signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:48:22 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt being a priest of a temple. Hence, the paying capacity of the complainant is challenged successfully.
33. The complainant lodged an FIR number 110/2019 dated 20.03.2019 at P.S. Rajouri Garden against the accused under section 420, IPC. The facts are common to the case in hand. It is submitted by the parties that the FIR case is not concluded yet. It is interesting to note that the case in hand was instituted by the complainant on 22.11.2018 whereas the FIR was lodged on 20.03.2019. The reason of instituting the FIR after filing of the case under provisions of Negotiable Instruments Act is unexplained by the complainant. Accused had given some amount to the complainant after registration of the FIR. The FIR appears to be an afterthought. The FIR is Ex. CW1/Z and has been exhibited by the complainant. Perusal of the FIR reveals that in FIR also, the complainant has averred that he gave Rs. 13,00,000/- in cash to the accused in the temple for securing Govt. job for this son. Hence, the fact of unlawful consideration as well as unrecoverable debt is proved beyond reasonable doubt.
34. Ex. CW1/DX1 dated 27.03.2019 shows the stamp paper having some affidavit as annexure. The same are secondary evidence being the photocopy and no OSR mark is appended. This affidavit purports to be acknowledgment of the accused regarding having taken amount of Rs. 15,00,000/- from the complainant. But the complaint as well as legal notice of complainant pertains to amount of Rs. 13,00,000/-. This Ct. Case No. 45288/2018 Page No. 14 of 15 Digitally signed by SHIV SHIV KUMAR KUMAR Date:
2025.08.11 15:48:30 +0530 Surinder Dhar Dwivedi vs. Sunit Dutt contradiction is unexplained by the complainant and remains a mystery even after this case having become 6 years old itself. It is the defence of the accused that the said affidavit was executed by the accused at police station, Rajouri Garden. Accordingly, it is held that the Ex. CW1/DX1 dated 27.03.2019 contradicts the version of complainant and does not come to the rescue of the complainant.
35. Legally recoverable debt is not proved. Legal notice of complainant is bad in law. The case of the complainant is not proved.
36. Accordingly accused Sunit Dutt is acquitted for the offence under section 138 NI Act.
37. Let the copy of judgment be given to the accused free of Digitally cost. signed by SHIV SHIV KUMAR Date:
Pronounced in the open KUMAR 2025.08.11 15:48:42 Court on 11.08.2025 +0530 Shiv Kumar JMFC-05 NI ACT South West, Dwarka New Delhi/11.08.2025 Note: This judgment contains 15 pages and each page is signed by the undersigned.
SHIV
Shiv Kumar
KUMAR
JMFC-05 NI ACT Digitally signed by
South West, Dwarka SHIV KUMAR
Date: 2025.08.11
New Delhi/11.08.2025 15:48:53 +0530 Ct. Case No. 45288/2018 Page No. 15 of 15