Delhi District Court
Santosh Kumari vs Robin Singh on 1 April, 2026
Santosh Kumari vs Robin Singh
IN THE COURT OF SH. ASHISH RASTOGI
ADDITIONAL SESSIONS JUDGE- 05
EAST, KARKARDOOMA COURTS, DELHI
CA No.178/2025
Santosh Kumari
(through her SPA Atul Vijaywargi)
W/o late Sh. Naresh Kumar
R/o D-202, Milan Vihar-1,
Abhay Khand-3, Indirapuram,
Ghaziabad, UP-201014, UP
.... Appellant
Vs.
Robin Singh
S/o Sh. Om Pal Singh
R/o B-19, West Jawahar Nagar,
Loni Dehat,
Ghaziabad, UP-201101
.... Respondent
Date of Institution : 28.07.2025
Arguments heard : 08.01.2026
Date of order : 01.04.2026
JUDGMENT
1. This is an appeal U/s 413 BNSS filed against the Judgment and impugned order dated 28.06.2025 passed by Ld. JMFC (NI Act)-04/South-Saket, New Delhi in CT Case No.1558/2021 titled as 'Santosh Kumari through her SPA vs Robin Singh' vide which the accused/respondent was acquitted of the offence U/s 138 of NI Act.
Factual Matrix
2. The case in brief of the complainant/appellant is that in Digitally August 2018, accused/respondent approached the signed by Ashish Ashish Rastogi complainant and requested her to advance loan of Rs.7 Rastogi Date:
2026.04.01 17:03:40 CA No.178/2025 +0530 1 of 20 Santosh Kumari vs Robin Singh lakhs to him. Upon request of accused, complainant gave a friendly loan of Rs.7 lakhs in installments mentioned below:
Sl. No. Amount Date
1 2,00,000/- 27.08.2018
2 1,00,000/- 26.10.2018
3 2,00,000/- 14.11.2018
4 2,00,000/- 02.02.2018
3. The respondent/accused promised to return the said mount latest by March 2021. It is further mentioned that the accused returned an amount of Rs.4,99,600/- to the complainant from 18.05.2020 to 01.06.2020 through OnLine transfer. It is further alleged that in the second week of July, 2020, accused visited the house of complainant and paid Rs.400/- in cash to her and also issued a post dated cheque bearing No.060955 dated 13.03.2021 for an amount of Rs.2 lakhs drawn on Yes Bank, New Friends Colony, New Delhi (the cheque in question).
4. It is alleged that on presentation, the said cheque got dishonoured and returned unpaid vide returning memo dated 16.04.2021 with remarks "Funds Insufficient' and then again on 27.05.2021 with the remarks "Drawer Signature differs". Thereafter, the complainant sent a legal demand notice dated 15.06.2021 to the accused/respondent advising him to pay the amount of the cheque within 15 days of the receipt of the notice i.e. the period prescribed under NI Act. As the accused did not pay the amount within Digitally the said period from the date of service of the notice, the signed by Ashish Ashish Rastogi Rastogi Date:
2026.04.01 CA No.178/2025 17:03:44 2 of 20 +0530 Santosh Kumari vs Robin Singh present Criminal Complaint was filed.
5. Thereafter, after the pre-summoning evidence of the complainant, the notice U/s 251 Cr.P.C was framed against the appellant/accused on 02.04.2022 wherein she pleaded not guilty and claimed trial and submitted as under in plea of defence:-
plea of defence of the accused
1. I have taken Rs.5,00,000/- on loan from the complainant for which I have issued the cheque in question after filling the amount and sign the same as security cheque. I had repaid the loan to the complainant. Complainant assured med that my security cheque will be returned to me but he did not return the same.
2. I received not any legal demand notice issued by the complainant.
Admission/denial of document U/s 194 Cr.P.C I admit the cheque in question and returning memo for the same.
6. After completion of complainant's evidence, statement of accused/appellant was recorded U/s 313 Cr.P.C on 03.11.2023 in which accused stated that this is a false and fabricated case filed against him by the complainant. Accused further stated that he had taken a loan of Rs.2 lakh from the son of the complainant in the year 2018 in cash. At the time of taking the loan, he had given the cheque in question to the son of the complainant for the security of the above said loan and only amount was filled by him. After that he had again taken a loan of Rs.3 lakh from the son of the complainant in the year 2019 in cash. He had Digitally signed by Ashish made all the payments to the son of the complainant Ashish Rastogi Rastogi Date: through OnLine transfer and Rs.400/- in cash towards the 2026.04.01 17:03:51 +0530 CA No.178/2025 3 of 20 Santosh Kumari vs Robin Singh loan. As such, he does not have any liability to make any payment to the complainant towards the cheque in question. Accused opted to lead defence evidence and accordingly, matter was listed for defence evidence.
7. On 13.12.2023, the accused examined himself as DW1 and took almost similar defence as taken by him in his statement recorded U/s 313 Cr.P.C. Thereafter, matter was posted for final arguments.
8. Vide separate judgement dated 28.06.2025, accused/respondent was acquitted. Against the said impugned Judgment, the appellant has filed this instant Appeal.
9. Ld. Counsel for appellant, inter alia, argued that Ld. Trial Court has committed error while passing the impugned judgement and ignored the relevant fact. The impugned judgement and order is not only perverse but in direct conflict with the position of law and evidence on record.
10.It is further submitted that the case law i.e. "Sanjay Mishra vs Kanishka Kapoor @ Nikki relied by the Ld. Trial Court, has been overruled by the division bench of Hon'ble Bombay High Court in "Prakash Madhukarrao Desai vs Dattatraya Sheshrao Desai" [Crl. Appeal No.895/2018 dated 19.08.2023]. Ld. Counsel for appellant also relied upon the case law reported as "Lekh Raj Sharma vs Yash Pal Gupta (2015) 221 DLT 585 in support of his contention.
11.It is further submitted that the Ld. Trial Court has Digitally signed by Ashish committed error in holding that the financial capacity of the Ashish Rastogi Rastogi Date:
2026.04.01 complainant to lend the loan amount was challenged by the 17:03:58 +0530 CA No.178/2025 4 of 20 Santosh Kumari vs Robin Singh respondent or that the answer of CW1 in his cross- examination that "I am not aware whether my mother is an income tax payee or not. I do not know PAN card number of my mother", amounted to challenging the financial capacity of the complainant. Once, the appellant had proved bank withdrawals Ex.CW1/3 which were accepted by the respondent without any dispute, there was neither any scope for challenging the financial capacity of the complainant nor was so done by the respondent. He has relied upon the case law reported as "Ashok Singh vs State of UP (Criminal Appeal No.4171 of 2024 dated 02.04.2025) in support of his contention.
12.It is further submitted that the Ld. Trial Court has committed error in taking the circumstances adverse to the appellant by observing that 'further, the loan was repaid in 07 separate installments between 18.05.2020 to 01.06.2020. However, not even a single installment was made into the account of the complainant and all the installments were made into the account of SPA of the complainant.'
13.It is further submitted that the Ld. Trial Court completely misdirected itself by ignoring that the "approbate and reprobate" doctrine, meaning one cannot both uphold and reject something at the same time, is a salutary legal principle based on 'doctrine of election'.
14.It is further submitted that the Ld. Trial Court fell in error Digitally signed by by not appreciating that it was the case of reverse burden Ashish Ashish Rastogi Rastogi Date: and since the financial capacity of the appellant was not 2026.04.01 17:04:04 +0530 challenged, the burden had not shifted back to the CA No.178/2025 5 of 20 Santosh Kumari vs Robin Singh appellant. Rather, the respondent was required to dislodge the presumptions as held by the Hon'ble Supreme Court in "M/s Kumar Exports vs M/s Sharma Capets" (AIR 2009 SC 1518). Thus, it is submitted that the impugned judgement and order are liable to be set aside.
15.Ld. Counsel for respondent, on the other hand submitted that the judgment before the Ld. Trial Court and all the evidence as well as material on record has been meticulously examined by the Ld. Trial Court. The Trial Court has considered all the facts and decided the matter against the appellant and there is no need to interfere in the said judgment by this court in exercise of its judgment.
Appeal against Acquittal: -
16.Before moving on the findings, it is pertinent to discuss in brief as to the law related to appeals against acquittal. The Hon'ble Supreme Court in "Jafarudheen v. State of Kerala", (2022) 8 SCC 440, made a detailed analysis of the precedents, with respect to the scope of an appeal against acquittal and recorded as under:
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, Digitally signed by the judgment cannot be said to have been vitiated. (See Ashish Ashish Rastogi in this connection the very cases cited at the Bar, namely, Rastogi Date:
2026.04.01 Surajpal Singh v. State; Wilayat Khan v. State of U.P.) In 17:04:08 +0530 our opinion, there is no substance in the contention raised CA No.178/2025 6 of 20 Santosh Kumari vs Robin Singh on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
(emphasis in original)
27. N. Vijayakumar v. State of T.N.as hereunder : (SCC pp. 695-99, paras 20-21 & 23-24):
"20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka has laid down the general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under : (SCC p. 432) '42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", Digitally "glaring mistakes", etc. are not intended to curtail Ashish signed by Ashish Rastogi extensive powers of an appellate court in an appeal Rastogi Date:
2026.04.01 against acquittal. Such phraseologies are more in the 17:04:14 +0530 nature of "flourishes of language" to emphasise the CA No.178/2025 7 of 20 Santosh Kumari vs Robin Singh reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.'
21. Further in the judgment in relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained.
In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court ought not to reverse the acquittal to that of the conviction.
***
23. Further, in Hakeem Khan v. State of M.P. this Court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be Digitally signed by Ashish interdicted and the High Court cannot supplant over the Ashish Rastogi Rastogi Date:
view of the trial court."
2026.04.01 17:04:20 +0530
17.Before moving further, it shall be pertinent to mention the relevant provisions of NI Act as the same shall be pressed CA No.178/2025 8 of 20 Santosh Kumari vs Robin Singh into service for deciding the subject matter of this dispute.
Purpose and relevant provisions of NI Act:
18.The purpose of NI Act is to safeguard the sanctity of Negotiable Instruments and to make sure that they do not become a paper tiger and also to curb their widespread misuse. With the gradual increase in the financial transactions between the parties, the need was felt to enact a legal framework wherein transactions could freely be concluded between the parties and payments could be done with the help of Negotiable Instruments. For the same, it was very necessary that there should be a confidence in public at large that a legal framework exists which can get the Negotiable Instruments enforced. With this salutary purpose in mind, the provisions of the NI Act mainly Section 138 and 139 NI Act were enacted. The same hold as under:-
138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years'], or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section Digitally shall apply unless--(a) the cheque has been signed by Ashish presented to the bank within a period of six Ashish Rastogi Rastogi Date: months from the date on which it is drawn or within the period of its validity, whichever is 2026.04.01 17:04:24 +0530 CA No.178/2025 9 of 20 Santosh Kumari vs Robin Singh earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque,[within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
139. Presumption in favour of holder. --It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section138 for the discharge, in whole or in part, of any debt or other liability.
19.In addition, Section 118 of NI Act engrafts an additional presumption in favor of the holder of the Negotiable Instrument and that is that it shall be presumed that every Negotiable Instrument was drawn for consideration. Section 118(a) of NI Act holds as under:-
118. Presumptions as to negotiable instruments. --
Until the contrary is proved, the following presumptions shall be made: --
(a) of consideration: --that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date: --that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance: --that every accepted bill of exchange was accepted within a reasonable time after its date Digitally signed by and before its maturity;
Ashish Ashish Rastogi Rastogi Date:
2026.04.01
(d) as to time of transfer: --that every transfer of a 17:04:30 +0530 negotiable instrument was made before its maturity;
(e) as to order of endorsements: --that the endorsements CA No.178/2025 10 of 20 Santosh Kumari vs Robin Singh appearing upon a negotiable instrument were made in the order in which they appear then on;
(f) as to stamp: -- that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course: --that the holder of a negotiable instrument is a holder in due course:
PROVIDED that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
20.Effect of the presumption under Section 139 NI Act:- The combined effect of both these Sections when read in consonance with each other is that once the basic ingredients of Section 138 NI Act are satisfied, the presumption under Section 139 automatically kicks in. The said essential ingredients are as follows:-
1. Issuance of a Cheque: The first requirement is the issuance of a cheque by the drawer, which could be in favor of the payee.
2. Presentation of the Cheque: The payee must present the cheque to the bank within a period of three months from the date of issue. It is essential to adhere to this timeline, as a delayed presentation might weaken the case.
3. Dishonoured Cheque: If the bank dishonours the cheque due to insufficient funds or other specified reasons, it is considered a dishonoured cheque.
4. Notice to the Drawer: The payee must serve a legal notice to the drawer within 30 days of receiving the information about the dishonoured cheque from the bank. The notice should demand the payment of the cheque amount within 15 days from the receipt of the notice.
Digitally signed by Ashish
5. Failure to Make Payment: If the drawer fails to Ashish Rastogi Rastogi Date: make the payment within the stipulated 15-day 2026.04.01 17:04:35 +0530 period, the payee can proceed with filing a complaint.
21.Once the said presumption kicks in, it is presumed that the CA No.178/2025 11 of 20 Santosh Kumari vs Robin Singh cheque was issued for or in discharge of some legally enforceable liability. In "Bir Singh v. Mukesh Kumar ; (2019) 4 SCC 197", this Court held that presumption under Section 139 of the Act is a presumption of law. The Court held as under:-
"20. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact as held in Hiten P. Dalal [Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16 : 2001 SCC (Cri) 960] .
22.The words used in the said Section are "shall be presumed". The same, hence, is a mandatory presumption of law. Regarding the purport of the said expression, it has been observed by the Hon'ble Supreme Court in Neeraj Dutt Vs. State, SLP(Crl.) No. 6497/2020 as under: -
".........Courts are authorized to draw a particular inference from a particular fact, unless and until the truth of such inference is disproved by other facts. The court can, under Section 4 of the Evidence Act, raise a presumption for purposes of proof of a fact. It is well settled that a presumption is not in itself evidence but only makes a prima facie case for a party for whose benefit it exists. As per English Law, there are three categories of presumptions, namely, (i) presumptions of fact or natural presumption; (ii) presumption of law (rebuttable and irrebuttable); and
(iii) mixed presumptions i.e., "presumptions of mixed law and fact" or "presumptions of fact recognized by Digitally law". The expression "may presume" and "shall signed by Ashish Ashish Rastogi presume" in Section 4 of the Evidence Act are also Rastogi Date:
2026.04.01 categories of presumptions. Factual presumptions or 17:04:44 +0530 discretionary presumptions come under the division CA No.178/2025 12 of 20 Santosh Kumari vs Robin Singh of "may presume" while legal presumptions or compulsory presumptions come under the division of "shall presume".
"May presume" leaves it to the discretion of the court to make the presumption according to the circumstances of the case but "shall presume" leaves no option with the court, and it is bound to presume the fact as proved until evidence is given to disprove it, for instance, the genuineness of a document purporting to be the Gazette of India. The expression "shall presume" is found in Sections 79, 80, 81, 83, 85, 89 and 105 of the Evidence Act."
23.The accused at the time of framing of notice denied the receipt of legal demand notice. However, the accused has admitted in his statement U/s 313 Cr.P.C that the address mentioned on the notice is correct address and he is residing at the same address since last 30 years. In light of the above, it stands proved that the legal demand notice was served upon the accused.
24.It is admitted fact that he did not make any payment within 15 days of the service of summons. The Hon'ble Supreme Court in "C.C. Alavi Haji v. Palapetty Muhammad, 2007(6) SCC 555", held that the true intent behind the service of legal demand notice is to be seen as a precursor to launch of prosecution against the Accused and that is providing ample opportunity to the Accused to repay the cheque amount and avoid the legal proceedings against him. The Service of summons upon the Accused fulfills the said purpose and provides ample opportunity to the Accused to pay the amount in dispute. Any Accused who fails to pay Ashish the said amount within 15 days of service of summons Rastogi cannot hide behind this technical plea of non-service of Digitally signed by Ashish Rastogi Date: 2026.04.01 17:04:48 +0530 legal demand notice, to evade his liability.
CA No.178/2025 13 of 20 Santosh Kumari vs Robin Singh
25.Hence, all the ingredients i.e. issuance of cheque, dishonor of cheque, notice to drawer and failure to make payment stand satisfied and therefore the presumption 139 and 118 of NI Act automatically becomes operative in this case i.e. that the cheques were issued in discharge of a legally enforceable debt.
26.Therefore, the combined implication of both Section 138 and 139 NI Act is that once the essential ingredients of Section 138 are satisfied and the presumption under Section 139 is pressed into service then the case of the Complainant against the accused/appellant stands proved that the negotiable instrument was issued in discharge of a legally enforceable debt and now it is upto him to rebut the presumption drawn against him by leading evidence to the Contrary. The burden which the accused has to discharge in rebutting the said presumption is "preponderance of probabilities" while the Complainant has to prove her case beyond reasonable doubt. Therefore, what has been envisaged is that the accused should raise a probable defence which is an expression i.e. different from possible defence. In "Kumar Exports v. Sharma Carpets; (2009) 2 SCC 513", it was held that mere denial of existence of debt will not serve any purpose but accused may adduce evidence to rebut the presumption. This Court held as under:-
"20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the Digitally signed by particular circumstances of the case the non-existence Ashish Ashish Rastogi of consideration and debt is so probable that a prudent Rastogi Date: man ought to suppose that no consideration and debt 2026.04.01 17:04:52 +0530 existed. To rebut the statutory presumptions an CA No.178/2025 14 of 20 Santosh Kumari vs Robin Singh 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. 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. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act."
27.Therefore, in order to travel from the point of possible defence to probable defence, the accused has to have some credible material on record so as to raise a doubt on the version of the Complainant.
28.With the above factual and legal background in mind, the task cut out for this court is to undertake an independent Digitally signed by analysis of evidence on record to determine that whether Ashish Ashish Rastogi Rastogi Date:
2026.04.01 the accused has successfully rebutted the said presumption 17:04:56 by demonstrating the inconsistency/untrustworthiness in +0530 CA No.178/2025 15 of 20 Santosh Kumari vs Robin Singh the testimony of the Prosecution witnesses or by successfully proving her own defence by her defence evidence.
29.The first leg of discussion is the independent analysis of evidence and relevant facts so as to come to a conclusion whether the respondent has infact produced sufficient material before the consideration of this court to prove his case beyond reasonable doubt and whether the Appellant has able to successfully rebut the same.
Analysis:
30.At the outset, it is pertinent to mention that case of the complainant/appellant is that only Rs.5 lakhs were paid to the account of her SPA for repayment of the loan taken from the complainant. In this connection it has been clearly admitted by the accused that the payment was made by the accused from his own bank account, bank of accounts of his cousin Ms. Richu Sharma and his wife Mrs. Tanu and that it made no difference whether he repaid part loan amount from his own account or from the account's of his family members or relatives. The complainant also considered the said payment as part repayment of the loan which was allegedly advanced by the complainant. Likewise it is also admitted case that the payment made into the account of SPA of the complainant, may be treated as repayment of loan taken from the complainant. Since the Digitally complainant herself admits that out of the total loan taken, signed by Ashish Ashish Rastogi only Rs.5 lakhs were repaid. Rastogi Date:
2026.04.01 17:05:03 +0530 31.The main bone of contention is regarding the conflicting CA No.178/2025 16 of 20 Santosh Kumari vs Robin Singh stand of the appellant and respondent. The respondent argued that he took only Rs.5 lakhs from the SPA of the complainant and the cheque in question was also handed over to the SPA of complainant only as a security for payment for an initial installment of loan of Rs.2 lakhs. While the stand of the appellant is that the loan amount was Rs.7 lakhs which was given to the respondent in cash from August 2018 till February 2019 after withdrawal of the amount from her bank account and from her husband's bank account and that the cheque in question was a post dated cheque dated 13.03.2021 which was given to the appellant by the respondent in the second week of July 2020.
32.To prove the said stand, the appellant has annexed the bank account statements of HDFC Bank account (A/c No.1) 07091930004981 belonging to appellant, HDFC Bank account (A/c No.2) 07091930004817 belonging to Naresh Kumar Gupta and Indian Bank account (A/c No.3) 6206697902 belonging to Naresh Kumar Gupta (HUF) wherein several entries have been shown vide which amount has been withdrawn from the aforesaid accounts.
The appellant, in his evidence, has mentioned the breakup of the loan amount of Rs.7 lakhs and when and in what installments, the said amount was withdrawn. CW1 has mentioned that Rs.2 lakhs were withdrawn on 27.08.2018, Rs.1 lakh was withdrawn on 26.10.2018, Rs.2 lakhs were withdrawn on 14.11.2018 and Rs.2 lakhs were withdrawn Digitally on 02.02.2019. CW1 has further mentioned that he was signed by present and witnesses the said transaction. However, Ashish Ashish Rastogi Rastogi Date:
2026.04.01 17:05:07 +0530 perusal of the document Ex.CW1/3 i.e. bank account CA No.178/2025 17 of 20 Santosh Kumari vs Robin Singh statements brings out a mismatch about the claim of CW1. Herein Rs.2 lakhs have been withdrawn on 27.08.2018, Rs.1 lakh was was withdrawn on 26.10.2018 and only Rs.1 lakh each has been withdrawn on 14.11.2018 and 02.02.2018. Therefore, if the transactions and the amounts as mentioned by CW1 are matched from the bank account statements, the amount, indeed, comes to Rs.5 lakhs. Even if for the sake of arguments, one additional entry from account no.2 is considered which shows withdrawal of Rs.1 lakh on 09.11.2019 then also, the amount comes to Rs.6 lakhs and not Rs.7 lakhs. The same is without prejudice to the fact that there is no evidence to show that the entire amount as withdrawn by the appellant were given to the respondent for the purpose of advancing the loan. Be that as it may the said mismatch itself raises doubt on the version of the appellant that the amount of loan was Rs.7 lakhs. In such circumstances, it may be held that the accused has raised a probable defence to substantiate that the loan mount was Rs.5 lakhs.
33.It is well settled law that once the ingredients of section 138A are satisfied then the presumption U/s 139 r/w section 118(a) of NI Act operates against the accused and presumption that the cheque was given in discharge of legally enforceable debt but the said presumption is rebuttable presumption and accused can raise a probable defence. The standard of proof for the said defence is on the touch stone of preponderance of probability. It is the Digitally signed by Ashish Ashish Rastogi considered opinion of this Court that respondent has raised Rastogi Date:
2026.04.01 17:05:11 +0530 a probable defence to substantiate his stand that loan amount was Rs.5 lakhs. The appellant has not brought CA No.178/2025 18 of 20 Santosh Kumari vs Robin Singh fourth any document/agreement or any other evidence so as to show that the loan amount was Rs.7 lakhs.
34.The Ld. Trial Court has further observed that the SPA of the appellant was asked about the ITR of the complainant to which he replied that he doses not know whether the complainant is an income tax payee or not and he further stated that he does not know PAN card number of the complainant. Therefore, the question was also raised regarding the financial capacity of the complainant to lend loan amount and proof of loan through ITR. The same may be answered by bringing the relevant documents on record or tendering the evidence of complainant herself. In this regard, the Ld. Trial Court has rightly made reference to observations of the Hon'ble Supreme Court in APS Forex Services Pvt. Ltd. vs Shakti International Fashion Linkers & Ors. 2020 SCC OnLine SC 193, wherein, inter alia, it was observed that:-
"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."
35.It is further observed after referring to the decision of Digitally Hon'ble Bombay High Court in Sanjay Mishra vs Kanishka signed by Ashish Ashish Rastogi Rastogi Date:
2026.04.01 17:05:15 +0530 Kapoor @ Nikki (2009) 5 Bom CR 464 and of Hon'ble CA No.178/2025 19 of 20 Santosh Kumari vs Robin Singh Delhi High Court in Ashok Baugh vs Kamal Baugh Crl. L.P. No.358/2012 that non-reflection of advance in the ITR as a successful factor in rebutting the presumption under Section 139 NI Act.
36.Cumulatively taking into account the reasoning of Ld. Trial Court and by independent appreciation of evidence, it is the considered opinion of this Court that the respondent has been successful in rebutting the presumption on the touch stone of preponderance of probability and the view taken by the Ld. Trial Court can be considered to be a possible view and hence, the same does not warrant any interference of this Court in exercise of this appellate jurisdiction.
Hence, the appeal stands dismissed.
37.TCR be sent back along with copy of this order.
38.Appeal file be consigned to the Record Room. Announced in the open Court on 01.04.2026 (Ashish Rastogi) Digitally Additional Sessions Judge-05 signed by Ashish East/Karkardooma Courts/Delhi Ashish Rastogi Rastogi Date:
2026.04.01 17:05:20 +0530 CA No.178/2025 20 of 20