Delhi District Court
Subhash Chander Bhardwaj vs Pawan Garg on 10 March, 2025
IN THE COURT OF MS. DIVYA SINGH
JUDICIAL MAGISTRATE FIRST CLASS, DWARKA COURTS, NEW DELHI
Criminal Complaint No.: 7444/2018
Subhash Chander Bhardwaj ......... Complainant
Versus
Pawan Garg ......... Accused
1. Name & address of the complainant: : Subhash Chander
Bhardwaj, prop of
Bhardwaj Associate
B-16, New Multan Nagar
Rohtak Raod, Peeragarhi
Pachim Vihar, New
Delhi
2. Name & address of the accused : Pawan Garg,
R/o M-98, Guru Hari
Krishan Nagar, Paschim
Vihar, Delhi
3. Offence complained of : U/S 138, The
Negotiable
Instruments Act,1881.
4. Date of Institution of case : 15.02.2018
5. Plea of accused : Pleaded not guilty.
6. Final order : Convicted
7. Date of decision of the case : 10.03.2025
CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally
1/32
signed by
DIVYA DIVYA
Date:
SINGH
SINGH 2025.03.10
13:02:33
+0530
JUDGMENT
1. Vide this judgment, I shall dispose of the aforementioned complaint case as filed by the complainant, Subhash Chander Bhardwaj (hereinafter referred to as the complainant) against accused Pawan Garg, (hereinafter referred to as the accused). The present complaint has been filed against the accused u/s 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as the NI Act).
2. The brief facts as alleged by the complainant in his complaint are that In the month of May 2012 accused approached complainant for a friendly loan and complainant advanced a friendly loan of Rs. 2,00,00,000/- in cash to the accused and kep the property document in return. In discharge of the liability accused issued one postdated cheque (cheques in question) bearing no 173019, dated 12.12.2017 Rs. 2,00,00,000 drawn at Punjab and Sind Bank, Meera Bagh, Paschim Vihar, Delhi. When complainant presented the above- mentioned cheque in question the same was returned unpaid by the banker of the complainant vide cheque returning memos dated 09.01.2018 with the remarks "Payment Stopped by drawer"
3. Thereafter, the complainant served a legal demand notice upon the accused through his counsel on 18.01.2018 and upon the expiry of statutory period when accused failed to make the payment of cheque in question, complainant had filed the present complaint case.
CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 2/32 Digitally signed by DIVYA DIVYA SINGH SINGH Date:
2025.03.10 13:02:55 +0530
4. In order to prove his case, complainant in the pre-summoning evidence, examined himself as CW1 by way of affidavit Ex. CW1/1 and relied upon following documents which are as follows:
1) Ex.CW1/A is the cheque in question.
2) Ex.CW1/B is the the cheque returning memo.
3) Ex.CW1/C is the legal notice.
4) Ex. CW1/D is the original postal receipt.
5) Ex. CW1/E is the tracking report.
5. Upon appreciation of pre-summoning evidence and upon finding prima facie case against the accused, pre-summoning evidence was concluded on 16.02.2018 and summons were issued to accused on the very same day.
6. Thereafter Notice u/s 251 Cr.PC was framed against the accused on accused on 04.07.2018 to which he pleaded not guilty and claimed trial. Accused denied taking any loan from the complainant.
Accused admitted his signatures on the cheque in question but denied filling in particulars except the date. Accused further denied receiving of any legal demand notice.
7. Thereafter, complainant examined himself as CW-1, cross-examined by the Ld. counsel for the accused on 05.09.2018, 06.03.2019, 11.07.2019 & 01.06.2022. Thereeafter, matter was listed for recording of statement u/s 313 Cr.PC.
CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally signed 3/32 by DIVYA DIVYA SINGH SINGH Date:
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8. Statement of accused u/s 313 Cr.PC was recorded on 27.07.2022 wherein all the incriminating evidence were put before the accused wherein Accused denied having any personal dealings with the complainant. Accused enied taking the amount from the complainant.
Accused admitted his signatures on the cheque in question but denied filling in particulars except the date. Accused further deneid receiving of legal demand notice.
9. Thereafter, the matter was listed for Defence Evidence and accused examined Mr. Pramod Garg as DW-1 on 19.01.2024, cross-examined and discharged. Mr. Arjun Prakash, Notice server Income Tax Department was examined and cross-examine as DW-2 and matter was fixed for final arguments.
10.Final arguments were concluded and record of the case and evidence of both the parties was thoroughly perused.
11.In the final arguments, the counsel for complainant submitted that complainant has been able to prove all the ingredients u/s 138 NI Act which stood corroborated by the documentary evidence led in the evidence. The counsel for complainant further submitted that accused has not brought any defence and has neither rebutted the presumption arising in favour of the complainant in terms of Section 118 & 139 of NI Act in as much as testimony of complainant has remained uncontroverted in material particulars.
CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally signed 4/32 by DIVYA DIVYA SINGH SINGH Date:
2025.03.10 13:03:08 +0530 On the other hand, counsel for accused stated that there were many contradictions in the evidence of the complainant and as such complainant has not been able to prove any liability of the accused.
12.Before proceedings to the merits of the case, it is important to lay down the basic provision of Section 138 of NI Act,1881. In order to ascertain whether accused has committed offence u/s 138 NI Act the following ingredients have to be proved which are as follows:
A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain sum of money to another person from out of that account for the discharge of any legally enforceable debt or liability;
cheque has been presented to the bank within a period of three months from the date on which it is drawn or within the period of its validity whichever is earlier;
That cheque has been 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;
The payee or the holder in due course of the cheque has made a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and 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.
13.It becomes imperative to mention that Section 139 of NI Act provides a statutory presumption in favour of the drawee that the cheque was issued to him in discharge of a debt or other liability of a legally enforceable nature. Also, the said provision must be read along with Section 118 of NI Act CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 5/32 Digitally signed by DIVYA DIVYA SINGH Date:
SINGH 2025.03.10 13:03:15 +0530 which states that every negotiable instrument is presumed to have been drawn and accepted for consideration. That said, what follows is that trial under section 138 NI Act is structured on the premise of the reverse onus of proof theory since the offence is a document based technical one. The journey of evidence begins not from the home of the prosecution story but from the point of the defence. The presumptions carved out in favour of the complainant are those of law and not those of facts.
14.In this regard, reliance can be placed on K. N. Beena v. Muniyappan (AIR 2001 SC 2895), it was observed as follows: -
"Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee reported in (2001) 6 SCC 16 has also taken an identical view."
15.The Hon'ble Hon'ble Supreme Court, in the case of Hiten P. Dalal vs. Bratindranath Banerjee (AIR 2001 SC 3897), observed as follows:
"Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheque for the amounts for which the cheque are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer, (AIR 1958 SC 61), 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. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid)."
16.Further, it is a settled position that when an accused has to rebut the presumption under Section 139 NI Act, the standard of proof for doing so is CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 6/32 Digitally signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:03:22 +0530 that of "preponderance of probabilities". As held in Rangappa vs. Srimohan [(2010) 11 SCC 441], the Hon'ble Hon'ble Supreme Court has observed:
"Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of preponderance of probabilities. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own."
17.Thus, as laid down in catena of decisions it is an established law that onus lies upon the accused to rebut the presumption and to establish that cheque in question was not given in respect of any debt or liability, with the standard of proof being preponderance of probability. Therefore, it becomes critical to examine whether the explanation of the accused coupled with the evidence on record is sufficient to dislodge the presumption envisaged by Section 118 & 139 of NI Act.
18.Being cumulative, it goes without saying that it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence u/s 138 NI Act. This criminal liability can be attached by proving each of the elements of the section under which liability is sought to be enforced. I shall now go on to appreciate the evidence, documentary or oral, in the light of how compellingly it satisfies each of such ingredient, if it all.
CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 7/32 Digitally signed by DIVYA DIVYA SINGH SINGH Date:
2025.03.10 13:03:30 +0530 Appreciation of Evidence and finding:
19. In the present matter, the cheque was returned unpaid for the reason ' Payment Stopped by drawer' on 09.01.2018. The record, complainant has brought to substantiate his point are the cheque dated 12.12.2017, as Ex. CW1/A, cheque return memo dated 09.01.2018 Ex. CW1/B. The legal demand notice Ex. CW1/C, Postal receipt and Tracking report Ex. CW1/D and CW1/E. Let us examine the potency of the defences taken by the accused one at a time.
20. In the facts of the present case, the signature on the cheque in question have not been denied by accused and accordingly, this court raises presumption under section 118(a) r/w section 139 of NI Act that the cheque in question were issued by accused to the complainant in discharge of legally enforceable debt or liability and it is now on the accused to raise a probable defence and to prove his case on the basis of preponderance of probabilities.
In this regard the following judgments can be relied upon:
21. In the case of K. Bhaskaran vs. Sankaran Vaidhyan Balan [1999(4) RCR (Criminal) 309], it has been held by the Hon'ble Supreme Court as under:
"As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the NI Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability."
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SINGH SINGH 2025.03.10 13:03:37 +0530
22. Also, in the case of M/S Kalamani Tex vs P. Balasubramanian Criminal Appeal No. 123 of 2021, the Hon'ble Supreme Court has held: The Statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then the 'reverse onus' clause become operative.
23. To rebut the presumptions raised in favour of complainant, the defences taken by the accused are elaborately discussed hereunder:
Firstly, accused in his defence has stated that he has not taken any loan from the complainant and the cheque in question was issued in blank signed manner for the purpose of purchasing a property which was eventually not purchased.
Secondly, the complainant did not have the financial capacity to advance the alleged loan to the tune of Rs. 2 crores and that the alleged loan amount was unaccounted as it was not shown in the ITR by the complainant.
Thirdly, As per the averments made in the complaint the cheque in question is issued for a time barred debt and the cheque issued for a time barred debt does not attract penalty u/s 138 of NI Act.
24. The accused in his notice framed U/s 251 Cr.P.C on 4th of July 2018 has stated that he has not taken any loan from the complainant and the cheque in question was given to the complainant for the purchase of a property which was eventually not purchased. He further stated that he knows the complainant as they were CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 9/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:03:43 +0530 engaged in the same business of dealing with the property and that the cheque in question has been misused by the complainant.
25. In order to prove his defence version, he has cross examined the complainant CW1 who has denied the suggestions put to him that the cheque in question was given to him for the purpose of certain property transaction which was never materialised.
26. Thereafter, accused in his statement under Section 313 of CrPC has taken a completely new defence, that he does not have any personal dealing with the complainant, he does not owe anything to the complainant, his brother Parmod Garg had some property dealings with the complainant due to which complainant used to visit the office of his brother situated in Dwarka where accused used to keep his blank signed cheques and complainant procured the same without his knowledge and has misused the cheque. The accused has failed to present any substantial evidence to support his claims.
27. At this stage, court deems it fit to place reliance on the case of M/S Kumar Exports vs M/S Sharma Carpets, Special Leave Petition (Criminal) No. 955 of 2007), wherein it was stated that, "When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over."
It was further held that the accused in a trial under Section 138 of the Act has two options. He can either show that consideration and CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 10/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:03:51 +0530 debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
28. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist, or their non- existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.
29. It will be utter disregard to the established principle of evidence, if this court accepts the oral explanation or answer given by the accused during notice framing, at the stage of recording of statement under section 313 Crpc or submission made at the time of final arguments, devoid of any documentary evidence to concretize the proof. The story of the accused, in the absence of any credible evidence, cannot be taken as gospel truth.
CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 11/32 Digitally signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:03:57 +0530
30. At this juncture, it is pertinent to note that the Hon'ble High Court of Delhi in V.S. Yadav v. Reena CRL. A. NO. 1136 Of 2010 wherein it was held that:
"If mere statement under Section 313 Cr. P.C. or under Section 281 Cr. P.C. of accused of pleading not guilty was sufficient to rebut the entire evidence produced by the complainant/ prosecution, then every accused has to be acquitted. But, it is not the law. In order to rebut the presumption under Section 139 of N.I. Act, the accused, by cogent evidence, has to prove the circumstance under which cheques were issued."
31. Also, as observed by the Hon'ble Supreme Court of India in Sumeti Vij vs Paramount Tec Feb Industries (CRA 292/2021) LL 2021 SC 149, " The statement of the accused recorded under 313 of the Code is not a substantive evidence of defence, but only an opportunity to the accused to explain the incriminating circumstance appearing in the prosecution case of the accused".
32. Further the ld counsel for the accused has stated that the complainant has misused the blank signed security cheques for agreeing to sell the property. The position with respect to security cheque is already well settled and reliance can be placed on judgment as discussed by Hon'ble High Court of Delhi in the case of Credential Leasing & Credits Ltd. Vs. Shruti Investments & Anr. (2015) 3 BC 691 wherein Hon'ble High Court has relied upon Suresh Chandra Goyal vs Amit Singhal, Crl.. Appeal Nos. 601/2015 decided on 14.05.2015, holding that:
"There is no magic in the word "security cheque", such that, the moment the accused claims that the dishonoured cheque (in respect whereof a complaint under Section 138 of the Act is preferred) was given as a "security cheque", the Magistrate would acquit the accused. The expression "security cheque" is not a statutorily defined expression in the NI Act. The NI Act does not per se carve out an exception in respect of a 'security cheque' to say that a complaint in respect of such a cheque would not be maintainable. There can be mirade situations in which the cheque issued by the CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally signed 12/32 by DIVYA DIVYA SINGH Date:
SINGH 2025.03.10 13:04:05 +0530 accused may be called as security cheque, or may have been issued by way of a security,i.e. to provide an assurance or comfort to the drawee, that in case of failure of the primary consideration on the due date, or on the happening (or not happening) of a contingency, the security may be enforced. While in some situations, the dishonor of such a cheque may attract the penal provisions contained in Section 138 of the Act, in others it may not."
33. Further, accused in his defence has examined his brother Pramod Garg as DW1. DW1 Sh. Pramod Garg stated in his examination in chief that, he knows complainant since 1995-96 as they are doing same business. In 2012, he was having a plot in Sec-23 Pocket 9, Plot no. 60 Dwarka in the name of Gupta Property Pvt. Ltd., registered under Gupta Property Pvt. Ltd., where his brother-in- law namely, Sh. Subhash Gupta, was a director. The plot was sold to the complainant, he received Rs. 1.90 Crores from the complainant in favour of Gupta Property Dealers Pvt. Ltd. from the account of Yash Mittal. As per the agreement between him and complainant the title documents of the said plot were handed over to the complainant, but the documents were not executed in favour of the complainant at that time. It was agreed that the documents will be executed in favour of prospective buyer afterwards. As per the witness it was first deal between the complainant and Gupta properties, complainant asked for a security cheque from Gupta properties, but they denied to issue any cheque. So, complainant asked for a security cheque from his account, he was having blank signed cheques of his brothers namely Rajesh Garg and Pawan lying with him, which he handed over to the complainant in place of his own cheques and it is alleged that complainant misused the said cheques. He also produced a conveyance deed in favour of Gupta properties Ex. DW1/1 and documents executed by Gupta Properties Pvt. Ltd in favour of Yash Mittal Ex. DW1/2.
CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 13/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:04:12 +0530
34. Although, the documents brought on record by the DW-1 Pramod Garg proves that some transaction of Rs. 1.9 crores for property in Sec-23 Pocket 9, Plot no. 60 Dwarka has taken place between Yash Mittal and Gupta Properties, but nothing has come on record to prove that the said transaction was between the complainant and DW-1 Sh. Parmod Garg. On contrary, DW-1 has admitted during his cross- examination that he is not part of Gupta Property Pvt. Ltd. in any sense. No evidence or witness is brought on record to prove that the said property was held by DW-1 in the name of Gupta Property Pvt. Ltd and the alleged transaction has taken place between complainant and DW-1. In the present circumstances, it is hard to believe that a transaction has actually taken place between complainant and Sh. Pramod Garg for which he was asked by complainant to issue a security cheque in his favour. Further, there is no explanation on record explaining as to why the accused used to keep blank signed cheques in the office of his brother DW-1 Pramod Garg and why the defence witness handed over the blank signed cheques of the accused instead issuing his own cheques. The whole story put forward by the DW-1 is having many unexplained gaps, hence rendering it unreliable due to the lack of corroborating evidence.
35. Further, the witness brought on record by the accused DW1 himself has stated that the property in Sec-23 Pocket 9, Plot no. 60 Dwarka was transferred in the name of son of complainant, by executing a sale deed dated August 18, 2023, registered on August 25, 2023, for which conveyance deed dated 05.01.2012, in lieu of the settlement and for the consideration of Rs. 1.9 crores already paid in aforementioned manner stated by the DW1 in his examination in chief. Although it has already been observed that the story put forward by DW1 is unreliable but his statement corroborates one fact that the complainant is having capacity to arrange CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 14/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:04:21 +0530 and make payments in crores as the property which is alleged to be purchased by the complainant in the name of his son is admittedly having value of Rs. 1.9 crores.
36. Furthermore, throughout the course of trial, the accused did not whisper anything about the recourse he took to procure back the cheque handed over to the complainant or as alleged misused by the complainant. Curiously enough, accused has not disputed the documents placed on record by the complainant in the present matter and the same remains uncontroverted. There is no presumption of law that explanation given by the accused is truthful. Accused has not placed any material before the court to rebut the statutory presumption.
37. Even if for the sake of arguments, if one were to assume that cheque in question was in fact, issued for the purchase of property as stated by the accused in the notice framed under section 251 Crpc, then a pertinent question arises as to why the accused person did not ask for the return of the cheque when the deal was not materialised and if the cheque was procured by the complainant from the office of the brother of the accused then also a question arises that why the accused did not file any complaint either with his bank or with the police in order to ensure that the cheque was not misused. The failure to lodge or file any complaint or to ask for the return of the cheque creates doubt around the story of defence. An adverse inference can safely be drawn against the accused who has otherwise failed to adduce any credible evidence to show that he indeed did everything as prudent man to ensure that cheque with his signature is not misused. Further it has already been observed that the version of DW1 that cheque in question was handed over as blank signed security cheque by him to the complainant is not reliable. Therefore, it is safe to say that accused has failed miserably to show or establish CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 15/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:04:31 +0530 circumstances under which the cheque ultimately came into the possession of the complainant.
38. Therefore, in view of the above discussion the defence taken by the accused that the cheque was not issued by him for the purpose alleged by the complainant and that the complainant has misused the cheque is without any force.
39. Another defence taken by the accused is that the complainant did not have the financial capacity to advance the alleged loan to the tune of Rs. 2 crores and the amount was unaccounted as the loan amount has not been mentioned in the ITR filed by the complainant. The ld. Counsel for the accused has also argued that the alleged loan was advanced in cash and no agreement/ document was executed and also no receipts were taken from the accused. To prove this version the accused has cross examined the complainant CW1 and has highlighted the portion of the cross examination where in the complainant has stated that his income in the financial year 2010 to 2011 as per the ITR filed by the complainant was approximately Rs 1,25,000 and that his income in the year 2011 to 2012 was approximately Rs. 3,17,000. In this regard learned counsel for the accused has also given a suggestion that the complainant has not shown the advancement of loan of the rupees 2 crores to the accused in his ITR.
40. Further, the ld. counsel for accused has relied on the following judgements:
Basalingappa Versus Mudibasappa, Supreme Court Of India, 2019(2) LRC 315(SC), wherein it was observed "Non-production of any document by the complainant to show his earnings, and that he did not execute any document before CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 16/32 Digitally signed DIVYA by DIVYA SINGH SINGH Date:
2025.03.10 13:04:38 +0530 lending such huge amount of 6 lacs to the accused. Such circumstance raises serious doubts on the transaction as claimed by the complainant."
41. In the case of Col. R.P. Mendiratta v. Sandeep Choudhary, CRL.A.1125/2013, the ld counsel for the accused has relied on para 20, "As per Section 269(ss) of Income Tax Act, any loan to be advanced by one person to another for more than Rs. 20,000/- must be by way of cheque and the plea of giving such a huge amount of Rs. 44 lakhs in cash does not inspire confidence, more particularly; in view of the fact that the bank statement of the complainant does not reflect that he was having sufficient funds".
42. In Sanjay Mishra v. Ms. Kanishka Kapoor, (2009) 4 Mah LJ 155, it was observed that since the entire amount was paid in cash and the same was not disclosed in the Income tax return. Thus, the alleged debt cannot be said to be a legally recoverable debt.
43. In Vikas Gopi Bhagat V. Shivdas Pednekar and Another, (2019) 3 AIR Bom R (Cri) 97, an has stated that it was observed by the Hon'ble Court that the complainant had not shown the transaction in issue of 4,00,000/- advanced to the accused in his Income Tax Returns 2010-2012. It is further admitted by the complainant that he did not inform his Chartered Accountant about the present transaction. He even was unable to tell the exact amount of turnover for the year 2010. According to him, he will have to consult his Chartered Accountant. He states that since cash was lying in his hands, there was no need to withdraw any amount from the Bank. The court in the above facts held in para 12 that the complainant/appellant, has failed to discharge the burden of proof that it was a legally enforceable debt or liability. The cash of Rs. 4,00,000/- was unaccounted, CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 17/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:04:45 +0530 in the sense, no Income Tax Returns have been tendered by the complainant/appellant.
44. Ld counsel for the accused has further placed reliance on R. Narender v. Yakamma Keloth or Kalyan, (2021) 4 RCR (Cri) 844, K. Subramani v. K. Damodar Naidu, (2015) 1 SCC 99, John K. Abraham v. Simon C. Abraham, (2014) 2 SCC 236, wherein the courts has held that the complainant despite being an income tax assesseeZz has failed to show the alleged debt/liability in ITR and in absence of any documentary proof, the said debt or liability cannot be said to be a legally recoverable liability within the meaning Section 138 of the Negotiable Instruments Act income tax assessee has failed to show the alleged debt/liability in ITR and in absence of any documentary proof, the said debt or liability cannot be said to be a legally recoverable liability within the meaning Section 138 of the Negotiable Instruments Act.
45. The complainant in this regard has relied on the following judgements:
In Lekh Raj Sharma vs Yash Pal Gupta on 30 June, 2015 decided by the hon'ble Delhi High Court and has highlighted para 21. The finding that, as the amount of loan disbursed to the respondent was not shown in the balance sheet and ITR, the appellant could not be said to have proved its case beyond reasonable doubt, is also erroneous..........ii) Mr. Krishna P. Morajkar vs. Mr. Joe Ferrao, 2013 CRIJ (NOC) 572 Bombay (Decided on 19.07.2013), wherein the Court observed:
"............ If some amounts are not accounted for, the person would be visited with the penalty or at times even prosecution under the Income Tax Act, but it does not mean that the borrower can refuse to pay the amount which he has borrowed simply, because there is some infraction of the provisions of the Income Tax Act. Infraction of provisions of Income Tax Act would be a matter between the revenue and the defaulter and advantage thereof cannot be taken by the borrower. In my humble view, to say that an amount not CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 18/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:04:52 +0530 disclosed in the income tax returns becomes irrecoverable would itself defeat the provisions of Section 138 of the Negotiable Instruments Act. Apart from the purpose of this Act, which has been outlined by the learned Single Judge in Shri Deelip Apte (supra) as well as in Sanjay Mishra (supra), it ought to be seen that the moment a person seeks to recover through a cheque an amount advanced in cash it gets amounted for in the system and the revenue authorities can keep a track of that and if necessary tax the person. To brand an amount which is not shown in Income Tax Act as unaccounted money would be too farfetched and, therefore, I am in respectful disagreement with the observations in Sanjay Mishra (supra), which in fact amounts to reading an additional requirement in Section 138 of the Negotiable Instruments Act, and legislating that such amounts becomes irrecoverable. At the cost of repetition, for saying that an amount not disclosed in income tax returns cannot be legally recoverable liability, some provisions of law to that effect would have to be shown. Such provision was not noticed by me and even the learned Counsel for the respondent could not show any such provision to me." (Emphasis Supplied)
46. In Tedhi Singh vs Narayan Dass Mahant on 7 March, 2022 decided by the Hon'ble Supreme Court of India it was observed: At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence. In the reply notice the appellant has not set up any case that the respondent did not have the financial capacity to advance the loan. In fact even we CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 19/32 Digitally signed by DIVYA DIVYA SINGH SINGH Date:
2025.03.10 13:04:59 +0530 notice that there is no reference to the loss of the cheque book or signed cheque leaf. No complaint was given of the loss of the cheque book or the signed cheque leaf either to the police or to the bank.
47. Rohitbhai J Patel vs The State of Gujarat on 15 March, 2019 decided by the Hon'ble Supreme Court of India it was observed:
The Hon'ble Apex Court observed that so far, the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 the NI Act is concerned, the accused could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs. 3 lakhs each. The said cheques were presented to the Bank concerned within the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. Therefore, the court held that all the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. It was further held that the result of such presumption is that existence of a legally enforceable debt is to be presumed in favour of the complainant. When such a presumption is drawn, the factors relating to the want of documentary evidence in the form of receipts or accounts or want of evidence as regards source of funds were not of relevant consideration while examining if the accused has been able to rebut the presumption or not.
48. In the present matter the complainant has denied all the suggestions put forth by the accused and has stated in his cross examination on 11.07.2019 that he has arranged the amount of Rs. 2 crores from the sale of property, from his wife, son, from the sale of property of his son, the rental income of Rs. 22 lakhs received by his son and from the Commission received by trading in real estate. The complainant has also stated that he has received an amount of rupees 6-8 lacs approximately as loan from his wife in the financial year 2012-2013. it is pertinent to mention here that the cross examination of complainant was deferred for want of these documents at request of the accused on 11.07.2019. The ITR of HUF and the CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 20/32 Digitally signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:05:08 +0530 Copy of the Sale documents relating to the property of the complainant sold were produced by the complainant on the next date of hearing i.e. 14.08.2019 and on the said date the matter was adjourned as the accused sought some time to go through the documents. However, on the next date of hearing the accused chose not to confront the complainant with these documents for the reasons best known to him and as such no questions were asked regarding the said documents, herein an adverse inference can be drawn against the accused for not confronting the complainant with the said documents to prove his defence that the complainant does not have the financial capacity to lend the loan to the tune of Rs. 2 Crores.
49. Before evaluating the contention of the counsels regarding the financial capacity, it is pertinent to first discuss the position of law in relation to financial capacity. In the case of M/S. Aps Forex Services Pvt. Ltd. vs Shakti International Fashion 2020 SCC OnLine SC 193, it was observed by the Hon'ble Apex Court, inter alia, as under: -
"20...In the present case, the accused never questioned the financial capacity of the complainant. We are of the view that whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque. That is not a case here."
50. Similar views were expressed in Basalingappa vs.Mudibasappa, (2019) 5 SCC 418, wherein it was observed as under: -
"30. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 21/32 Digitally signed by DIVYA DIVYA SINGH Date:
SINGH 2025.03.10 13:05:15 +0530 accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence...." (emphasis supplied).
51. The crux of the aforesaid decisions of the Hon'ble Supreme Court has been summarized by the Hon'ble Kerala High Court in Sunitha vs Sheela Antony, 2020 SCC OnLine Ker 1750. In my view, the crux of the referred to above is the following:
"The complainant has no obligation, in all cases under Section 138 of the Act, to prove his financial capacity. But, when the case of the complainant is that he lent money to the accused by cash and that the accused issued the cheque in discharge of the liability, and if the accused challenges the financial capacity of the complainant to advance the money, despite the presumption under Section 139 of the Act, the complainant has the obligation to prove his financial capacity or the source of the money allegedly lent by him to the accused. The complainant has no initial burden to prove his financial capacity or the source of the money. The obligation in that regard would arise only when his capacity or capability to advance the money is challenged by the accused".
52. Therefore, the cases in which the underlying debt, transaction or loan is advanced by way of cash, the accused can raise a probable defence by questioning the financial capacity of the complainant and once the said question is raised, the onus shifts on the complainant to prove his financial capacity. Further it is also a settled law that the admitted facts need not be proved.
53. In the present case, complainant denied all the suggestions put to him by the counsel for accused that he had no financial capacity to lend the money to the accused.
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54. It is pertinent form the record that at the time of framing of notice under section 251 Crpc the accused has stated that complainant is in the business of property dealing. Further in his statement under section 313 Crpc accused has again stated that complainant is in business of property dealing. Further the defence witness Sh. Parmod Grag who is also the brother of the accused as mentioned earlier has admitted in his chief examination that the complainant is doing property dealing business. Further in his chief examination he implicitly admits that the complainant has the capacity to arrange or to make payments in crores as he has stated that in the year 2012 a plot was sold to the complainant, he received a cheque amounting to Rs. 1.90 crores from the complainant in favour of Gupta Property Dealers Pvt. Ltd. Further it has also been admitted by the defence witness that the deal of property no 60 sector 23 pocket 9 Dwarka was also done through him and it was sold to Sh. Subhash Chandra Bhardwaj. It clearly shows that the complainant had requisite funds in the year 2012. Further in the statement of the affairs dated 31st of March 2013 Mark X(colly) filed by the complainant wherein the complainant has mentioned his current assets amounting to Rs 2 crores in his favour and against Mr Pawan Garg. This document has not been challenged by the accused. Although not conclusive in deciding the present matter and the court is not forming its decision based on this document solely but it is corroborating the version of the complainant and putting holes in the defence of the accused. Therefore, it is evident that accused on one hand is stating that the complainant did not have requisite funds to advance the loan in the year 2012 and on the other hand he is stating that his brother had financial dealings in crores with the complainant for the sale and purchase of the properties. The accused cannot be allowed to blow hot and cold at the same time.
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55. Also, the accused has cross examined the complainant at length on multiple dates and the complainant has sufficiently explained his financial capacity.
Although the accused has summoned DW2, notice server, Income tax department who has placed on record the ITRs and acknowledgement for the assessment year 2013 to 2014 of the complainant however, same pertains to year 2013 to 2014 and does not help with the case of the accused to establish that the complainant was not having the capacity to lend the alleged loan in the year 2012.
56. The accused has failed to bring out any contradiction or any inconsistencies in the cross examination of the complainant which questions his financial ability to lend the amount in question.
57. The defence has failed to probablise the lack of financial capacity of the complainant to advance the loan in question to the accused. Reliance can also be based on the judgement of the Hon'ble Delhi High Court in a case titled as Sanjay Arora vs Monika Singh Crl. A. 98/2017 wherein it has been held that:
"Mere admission of the complainant that he was earning only Rs. 12,000/- per month from his small business or his failure to file income tax returns, or his omission to produce the bank passbook or to examine Chhotu as a witness in corroboration, are inconsequential. In order to rebut the statutory presumption, it was the burden of the respondent to prove the facts that she had pleaded in answer to the notice under section 251 Cr.P.C. No material in support of such plea having come on record, the statutory presumption under section 139 Negotiable Instruments Act in the case at hand has not been rebutted."
58. The accused has challenged the financial capacity to lend the amount in question but not sufficiently enough to raise a doubt in his favour. For the reasons mentioned in the above discussion the defense of the accused with regard to the financial capacity of the complainant is untenable.
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SINGH 2025.03.10 13:05:40 +0530
59. Furthermore, the counsel for accused has contended that complainant stated in his cross examination that he did not file the ITR in the year in which the loan was advanced, yet such factor alone cannot be enslaving enough to shroud the prosecution story with doubt. The averment of the counsel for accused regarding non mentioning of loan amount in ITR or not filing the ITR to doubt the case of complainant do not inspire confidence as culpability of offence under section 138 NI Act will not freeze for the reason that there is violation of section 269 of Income Tax Act and the same does not prevent the operation of the statutory presumption of section 139 of NI Act.
60. The prosecution u/s 138 of NI Act cannot be dismissed or stalled for non- compliance of Section 269 SS of the Income Tax Act. Such violation may give rise to an independent criminal offence, but on account of violation of the said provision, the prosecution of the accused for the alleged dishonour of cheque u/s 138 NI Act does not become bad in law.
61. Another defence taken by the accused is that cheque in question is issued for a time barred debt and the cheque issued for a time barred debt does not attract penalty u/s 138 of NI Act as the cheque was issued in the year 2017 and loan was advanced in 2012. Ld counsel has stated during the course of the final arguments that as per section 18 of the Limitation Act, 1963 and Section 25(3) of the Indian Contract Act, 1879, with regard to payment of time-barred debt, there must be a distinct promise to pay either wholly or part of the same, in writing either signed by the person concerned or by his duly appointed agent before the limitation period of 3 years from the advancement of the loan. In absence of any such acknowledgment in the present case, the debt in issue is barred by limitation and thus is not recoverable.
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62. Ld counsel for the accused has relied on the following judgements in this regard:
In A.V. Murthy vs. B.S. Nagabasavanna (2002) 2 SCC 642: The Hon'ble Supreme Court held that a cheque issued for a time-barred debt can be valid if it is accompanied by a fresh promise to pay under Section 25(3) of the Indian Contract Act. However, if there is no such promise, the debt remains unenforceable.
63. Hon'ble Supreme Court in S. Natarajan vs. Sama Dharman (2021) 6 SCC 413:
it was clarified that the question of whether a debt is time-barred is a mixed question of law and fact that must be determined based on the evidence presented during the trial. Also in the judgement of Yogesh Jain vs. Sumesh Chadha (2022):
it was held that the existence of a legally enforceable debt is crucial to establishing liability under Section 138 of the NI Act. The mere issuance of a cheque does not revive a time-barred debt unless there is evidence of a fresh promise to pay.
64. The ld. counsel for the accused has also relied on SASSERIYIL JOSEPH V. DEVASSIA, wherein it has been held by the Supreme Court that, a cheque which has been issued by the accused for a due which was barred by limitation, the penal provision under Section 138 of the NI Act is not attracted. And has stated that, Section 138 is attracted only if the cheque is issued for the discharge of a legally enforceable debt or other liability.
65. In Amrit Sandhu Costar vs State and Anr, (2022) 294 DLT 97, The court in para 23 and para 26 held that "During the period with effect from 2011 till 06.03.2017 i.e. day on which cheque was issued, there is no acknowledgement on behalf of either the petitioner or Jasween Sandhu within meaning of section 18 of the Limitation Act. The accused cannot be prosecuted for offence under section 138 of the NI Act, 1881 for issuance of cheque for time barred liability or debt."
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SINGH 2025.03.10 13:05:58 +0530
66. C. Ramesh vs S. Sakhtivel, (2023) 2 MWN (Cri) DCC 40, wherein the Hon'ble court in para 15 observed "Thus, by the time the cheque was issued, the debt was barred by limitation, since there was no valid acknowledgement of the liability within the period of limitation, the accused cannot be convicted under Section 138 of the Negotiable Instruments Act, since the time-barred debt cannot be construed as a legally enforceable debt."
67. In the case of The Bidar Urban Co-Operative Bank Ltd. v. Girish, ILR 2021 Kar 2437, the court in para 39 observed "the penal provision of Section 138 of the N.I. Act is applicable only to the cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to Explanation must be a legally enforceable debt or other liability. A cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under Section 138 of N.I Act."
68. Jage Ram Karan Singh vs State, (2019) 265 DLT 374, the goods were sold in 2005, the cause of action to enforce the liability against the respondent No. 2 remained in existence up to July 2008, whereas the cheque in question had been issued on 12.06.2009. The court therefore in para 33 held that "the alleged responsibility of the respondent No. 2, if any, had already become time-barred as on the date of the issuance of cheque and, therefore, the same cannot be said to be in discharge of a legally enforceable debt or liability."
69. Per contra, complainant has relied upon the observations of Hon'ble High Court of Delhi in case titled as Rajeev Kumar Vs. State NCT of Delhi on 11 September, 2024 wherein it was held that "32. Therefore, a priori the cheque itself CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 27/32 Digitally signed by DIVYA DIVYA SINGH SINGH Date:
2025.03.10 13:06:06 +0530 becomes a promise made in writing signed by the person to pay wholly or in part debt, which otherwise, may not be payable due to law of limitation. Per section 25(3) of the ICA, this would be an agreement in itself. Section 139 presumption under the NI Act which presumes that the cheque is in discharge in whole or part liability of any debt or liability would therefore, actually come into play. The contrary position of the accused that no debt or liability subsists having extinguished by the law of limitation, would be then unmerited and untenable, since a fresh agreement comes into operation by the tendering of the cheque. By issuing the cheque, the drawer is acknowledging a legally enforceable liability and he ought not be entitled to claim that the debt had become barred by limitation."
70. In the present matter, it has to be determined whether the act of issuing the cheque can be considered a fresh promise to pay, thus reviving the debt and making it enforceable? Herein reference to Section 25(3) of Indian Contract Act is relevant which provides that any agreement without consideration is a valid agreement if it is made in writing and signed by the person or his agent for the payment of a debt which might be a time barred debt.
71. At this stage the judgement "Rajeev Kumar vs. The State of Delhi & Anr.
(2024) CRL.L.P. 212/2021 & CRL.M.A. 20429/2021 of the hon'ble high court is relied on. Hon'ble High Court of Delhi has held that furnishing of a cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under section 25(3) of ICA. Hon'ble High Court of Delhi has held as following:
"The furnishing of a cheque of a time-barred debt effectively resurrects the debt itself by a fresh agreement through the deeming provision under section 25(3) of ICA. The original debt therefore, CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 28/32 Digitally signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:06:14 +0530 through section 25(3) of the ICA, becomes legally enforceable to the extent of the amount the cheque has been given. This resonates also with practical considerations. Persons who have chosen to escape liability, can draw a cheque, in order to clear an earlier debt upon persuasion by the creditor. By the act of drawing a cheque, the promisor i.e. the drawer, is effectively stating that he has a liability to pay the drawee. Drawing of the cheque in itself, is acknowledgment of a debt or liability. It is the resurrection or the revival of the prior debt which would trigger the provisions under section 138 of NI Act. To deny a complainant/drawee of invoking the penal provisions under section 138 of NI Act, despite the categorical premise of section 25(3) of the Indian Contract Act recognizing a fresh agreement to pay, would be an unfortunate disentitlement."
72. Thus, the issuance of the cheque by the accused effectively constitutes a fresh promise to pay the previously time-barred debt, making it legally enforceable. The issuance of the cheque is considered an acknowledgment of the debt, invoking Section 139 of the NI Act, which presumes the cheque was issued for a legally enforceable debt unless proven otherwise.
73. Further, in present case, it is not in dispute that the cheque in question was signed by the accused. Thus, the execution of cheque is proved. Therefore, the court is in agreement with the submissions made by the learned counsel for the complainant as the judgements referred by the accused are based on the circumstances on which the Hon'ble courts have passed their observations with regard to the law under section 18 of the limitation act, however, the judgement on which the complainant has placed his reliance is interpreting the scope of section 25 (3) of Indian contract act with regard to the cheque issued by the drawer after the expiry of the limitation period. In view of the above discussion and the observation of honourable High Court of Delhi in the case of as Rajeev Kumar Vs. State NCT of Delhi the court is of the opinion that in the presence circumstances, the defence of time barred debt by the accused holds no merits.
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74. Further, the legal notice was served by the complainant upon the accused on the address of the accused. The accused stated during framing of u/s 251 Cr.PC that he has not received the legal demand notice.
75. Perusal of the notice u/s 251 Cr.PC and statement u/s 313 Cr.PC and bail bonds furnished by the accused reveals that address as mentioned by the accused on both is the same address M-98, Guru Hari Krishan Nagar, Paschim Vihar, Delhi upon which the legal demand notice that was sent by the complainant. Therefore, a presumption of deemed service is drawn under section 27 General Clauses Act which provides that where notice is sent to the correct address, the same shall be presumed to have been duly served.
76. Law with respect to the delivery of legal notice by post and the presumption with respect to the same has been succinctly put forth by the Hon'ble Supreme Court in C C Alavi Haji vs Palapetty Muhammed (2007) 6 SCC 555. Para 13 of the judgment is worth mentioning as under:
"According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 30/32 Digitally signed DIVYA by DIVYA SINGH SINGH Date:
2025.03.10 13:06:28 +0530 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption.
"Any drawer who claims that he did not receive the notice sent by post, can within 15 days of receipt of summons from the court in respect of complaint under Section 138 of the Act, make the payment of the cheque amount and submit to the court that he had made the payment within 15 days of the receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complainant is liable to be rejected. A person who does not pay within 15 days of receipt of summons from the court alongwith the copy of complaint Under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary Under Section 27 of General Clauses Act and 114 of the Evidence Act."
77. Thus, in view of the law as above said and the fact that the address mentioned on the legal notice being the same address given by the accused in his Notice framed under Section 251 Cr.PC and statement recorded under section 313 Crpc, defence of the accused that he did not receive the legal demand notice is without merits.
78. Defence set up by the accused is neither definitive nor consistent with his innocence. It was the sole burden and duty of accused to prove absence of liability by raising a "probable defence". However, he has failed to discharge his onus. Except for making bare averments, accused has not led any cogent evidence which could be termed as probable defence. Accused has not brought forth not even an iota of evidence to pillar his defence. Accused did not bring any evidence to impeach the credibility of the documents tendered by the complainant. Burden lied heavily on the accused to have probablized the factum of repayment of repayment of the loan amount. Therefore, considering the admission of the accused that signature on the cheque in question belongs to him and compelling documentary CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg Digitally 31/32 signed by DIVYA DIVYA Date:
SINGH SINGH 2025.03.10 13:06:35 +0530 evidence placed on record and failure of the accused to put forth any reasonable and believable defence, the essential elements of the section 138 NI Act stand assembled.
79. Ratio: Finally, having considered the totality of the facts and the circumstances of the case, the accused has failed to rebut the presumption in favour of the complainant as spelled under section 139 NI Act. The law as laid down under section 138 NI Act, 1881 is made out against the accused. The weight of the evidence adduced by the complainant to prove his case against the accused is sufficient enough to impute criminality on the accused. Complainant has successfully proved all the essential ingredients of Section 138 of the Act. Therefore, accused is held guilty and convicted for commission of offence punishable under section 138 of the Negotiable Instrument Act, 1881.
80. Let the convict be heard on the quantum of sentence separately.
81. Let the copy of this judgment be given to the convict free of cost.
Digitally signed by DIVYA DIVYA SINGH SINGH Date:
2025.03.10 13:06:42 +0530 Announced in the open court on Divya Singh 10.03.2025 JMFC-NI Act -02, South West District Dwarka Courts, Delhi CC No.: 7444/2018 Subhash Chander Bhardwaj Vs. Pawan Garg 32/32