Delhi District Court
Dilshad Khan vs Manoj Kumar on 17 July, 2025
CNR No.: DLST02-014582-2022
IN THE COURT OF MS. NORMA JAIN,
JMFC (NI ACT) DIGITAL COURT-01, SOUTH DISTRICT,
SAKET COURT COMPLEX, NEW DELHI.
In the matter of: CC No.: 5375/2022
CNR NO.: DLST02-014582-2022
Dilshad Khan
S/o Sh. Noshad Ahmed
R/o H. No. 166, Block-11, Dakshinpuri Extension,
Sector-6, Pushpa Bhawan, New Delhi-110062.
Mob No. 9911684036 ......Complainant
versus
Manoj Kumar
S/o Sh. Jitender Prasad
R/o H. No. 659/3,
(i) Flat No. A-1, Nai Basti, Devli Extension, New Delhi
(ii) Office Address:
A-4, 5, Raju Park, Khanpur Extension, New Delhi
(iii) C/o Sanatan Dharam Mandir
N-Block, Saket (Near ICICI Bank) Saket, New Delhi.
M.No.: 9350787488. .....Accused
JUDGEMENT
Date of Institution of Complaint : 14.07.2022 Police Station : Neb Sarai Offence Complained of : u/s. 138 of NI Act Plea of Accused : Not Guilty Decision Qua Accused : Acquitted.
Date of Decision : 17.07.2025.
BRIEF STATEMENT OF REASONS FOR DECISION
1. Vide this judgment, I shall decide the present complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'NI Act') by the complainant against the Digitally signed by NORMA CC No. 193/2020 NORMA JAIN Dilshad Khan Vs. Manoj Kumar Date: Page No. 1 of 11 JAIN 2025.07.17 15:24:07 +0530 CNR No.: DLST02-014582-2022 accused on account of dishonour of three cheques, first cheque bearing no. 179544 dated 17.05.2022 for a sum of Rs. 6,00,000/- drawn on State Bank of India, second cheque bearing no. 000002 dated 15.05.2022 for a sum of Rs. 1,00,000/- drawn on IDFC First Bank and third cheque bearing no. 000160 dated 09.05.2022 for a sum of Rs. 1,00,000/- drawn on Kotak Mahindra bank allegedly issued by the accused in favour of the complainant (hereinafter referred to as the 'cheques in question').
CASE OF THE COMPLAINANT
2. Brief facts of the case as per the complaint are that the accused approached the complainant for business and after various discussions, on 02.09.2020 a partnership deed was executed between the complainant and the accused for carrying the business of providing physiotherapy, acupuncture, acupressure and pathological test etc. in the name and style of Horizon Healthcare 24X7. As per the partnership, complainant had given loan for investment to the accused for Rs.6,00,000/- (hereinafter referred to as "investment amount") through account transfer and he was also to provide his services. It was agreed between the parties that the profit and loss sharing will be 70:30 and in the event of dissolution of the partnership, the investment amount will be refunded by the accused along with profit of 30%. 2.1 On 02.05.2022, the partnership business was dissolved and the accused gave the cheques in question to the complainant towards the investment amount and the profit amount assuring that the cheques will get cleared on presentation.
3. The complainant presented the cheques, however, on presentation, the cheques in question were returned dishonoured with remarks "Funds Insufficient/Account Dormant" vide cheque return CC No. 193/2020 Dilshad Khan Vs. Manoj Kumar Digitally Page No. 2 of 11 signed by NORMA NORMA Date:
JAIN JAIN 2025.07.17 15:24:02 +0530 CNR No.: DLST02-014582-2022 memos dated 25.05.2022 & 18.05.2022 (hereinafter referred to as the said "return memos"). Thereafter, a legal notice dated 31.05.2022 was sent to the accused and since no payment was made within 15 days of the service of legal notice, the present complaint came to be filed.
4. In support of the case of the complainant, Ld. Counsel for the complainant relied on averments made in the complaint, evidence by way of affidavit of the complainant, the presumption of law under Section 118(a) read with Section 139 of NI Act and the following documentary evidence:
S. No. Documents Exhibit No.
1. Copy of Aadhar Card of Ex. CW-1/A
complainant
2. Copy of Partnership deed dated Ex. CW-1/B
02.09.2020
3. Copy of bank statement Ex. CW-1/C
4. Original Cheques in question Ex. CW1/D to Ex. CW-1/F
5. Original Return memo Ex. CW1/G to Ex. CW-1/I
6. Legal Demand Notice Ex. CW1/J
7. Postal Receipt Ex. CW1/K
8. Tracking Report Ex. CW1/L
9. Reply dated 20.06.2022 Ex. CW1/M
CASE PROCEEDINGS
5. In the present matter, notice of accusation under Section 251 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'CrPC') was served on the accused on 20.09.2023 and the accused pleaded not guilty and claimed trial. The plea of defence of the accused was also recorded by the court on the same day. In the plea of defence, accused stated that he signed the cheques in question but not filled the particulars on the same. He further admitted receiving of CC No. 193/2020 Digitally Dilshad Khan Vs. Manoj Kumar signed by Page No. 3 of 11 NORMA NORMA Date:
JAIN JAIN 2025.07.17 15:24:04 +0530 CNR No.: DLST02-014582-2022 legal demand notice and stated that he also replied the same. He further stated that he has already paid several sums of money to the complainant and his actual liability is not equivalent to the amount of cheques in question. He further stated that it is correct that he received a sum of Rs. 6,00,000/- from the complainant and the cheques in question were given only for security purposes. He further stated that he has no legally enforceable debt or liability in favour of the complainant in respect of the cheques in question and this is a false case against him filed after misusing his security cheque.
6. Oral application under Section 145 (2) NI Act of the accused was allowed vide order dated 20.09.2023 and he was granted an opportunity to cross-examine the complainant. The complainant entered in the witness box as CW1, he was duly cross-examined and was thereafter discharged. Since complainant did not wish to examine further witnesses, accordingly, the post-summoning evidence was closed vide order dated 18.03.2025.
7. During cross-examination of CW-1, the following documents were placed on record:
S. No. Documents Exhibit No.
1. Whatsapp Chat Mark CW-1/CX1
8. Statement of accused under Section 313 CrPC read with Section 281 CrPC was recorded on 16.04.2025 and all the incriminating evidence was put to the accused. During his statement, accused stated that it is correct that a partnership deed dated 02.09.2020 was executed between the complainant and him. He further stated that the amount of Rs.6 Lacs was not the loan amount but the same was an investment made by the complainant and he does not remember about CC No. 193/2020 Dilshad Khan Vs. Manoj Kumar Page No. 4 of 11 NORMA Digitally signed by NORMA JAIN JAIN Date: 2025.07.17 15:23:57 +0530 CNR No.: DLST02-014582-2022 the percentage of the profit loss, however, the complainant stated that he wants 30% profit/loss. He further stated that no conversation about refunding the amount of Rs.6 Lacs took place between the complainant and him, however, he only stated that he will get 30% of profit/loss. He further stated that he cannot say about the dissolution, however, he stopped paying the complainant after March, 2022. He further stated that he gave 3 blank signed cheques to the complainant at the time when he invested Rs.6 Lacs in the partnership. He further stated that he received messages on his phone regarding the dishonour of the cheques in question. He admitted receiving of legal demand notice Ex.CW1/J. He further stated that the complainant started treating the investment as a loan as he was not concerned about the profit or loss and he used to come and ask for the money, accordingly, he used to give him the same, despite there being hardly any work due to Covid. He further stated that once, the complainant sent him a miscalculated and a higher amount on his whatsapp, in which he mentioned the expenses even incurred by him. He further stated that as per him, he has paid a lot of money to the complainant.
9. Since the accused chose to lead Defence Evidence in his statement under Section 313 CrPC, matter was fixed for filing of appropriate application under Section 315 CrPC along with list of witnesses. However, thereafter, as the counsel for the accused stated that accused does not wish to lead the defence evidence, defence evidence was closed vide order dated 25.04.2025 and matter was adjourned for final arguments.
10. Final arguments were heard on behalf of the complainant and opportunity to advance the arguments was given to the Ld. Counsel for accused.
CC No. 193/2020 Digitally signed
Dilshad Khan Vs. Manoj Kumar NORMA by NORMA JAIN
Date:
Page No. 5 of 11
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CNR No.: DLST02-014582-2022
11. Ld. Counsel for complainant argued that the initial burden lied on the accused to disprove his case as the signatures on the cheque in question are admitted, however, he failed to rebut the presumption. He further stated that everything agreed between the parties is mentioned in the partnership deed and the accused cannot go beyond the terms of it. He also argued that the accused in the reply to the legal demand notice stated that he paid Rs.6,50,000/- to the complainant, however, he failed to show the same.
12. I have heard counsel for the parties, perused the record and have gone through the relevant provisions of the law.
LAW UNDER CONSIDERATION
13. It would be apposite to first consider the legal position serving as base to the offence underlying Section 138 of NI Act. The following legal requirements need to be satisfied in order to constitute an offence under Section 138 of NI Act, as held by Hon'ble Supreme Court in the case titled as Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd.: (2000) 2 SCC 745:
(i) that a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability;
(ii) that the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;
(iii) that the cheque is returned by the bank unpaid either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
(iv) that the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
(v) that the drawer of such cheque fails to make payment of the CC No. 193/2020 Digitally Dilshad Khan Vs. Manoj Kumar signed by Page No. 6 of 11 NORMA JAIN NORMA Date:
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said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice;
The above legal requirements are cumulative, meaning thereby that only if all the aforementioned ingredients are satisfied then the person who had drawn the cheque can be held liable for offence under Section 138 of NI Act.
14. Burden of proof: The claim based under the provisions of NI Act is an exception to the general rule of law that burden of proof lies on the prosecution. The two specific provisions viz. Section 118 (a) and Section 139 of NI Act contemplates that a presumption is attached in regard to each and every negotiable instrument that the same was drawn and issued against due discharge of the liability and thus, whenever any claim is made on the basis of a negotiable instrument, the presumption has to be drawn in favour of the holder of the cheque (drawee) and the law has put the burden to rebut the presumption on the accused that the cheque was not issued by him against discharge of a debt or a liability.
15. The rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'. In case, the accused is not able to rebut the presumption and fails to prove his defence, the presumption becomes absolute and it has to be assumed that the cheque was issued by the accused in discharge of debt or liability and consequently, accused is assumed guilty of the offence. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court of Rangappa versus Mohan 2010 (11) SCC 441 and Hiten P. Dalal v.
CC No. 193/2020 Digitally
Dilshad Khan Vs. Manoj Kumar signed by
NORMA Page No. 7 of 11
NORMA JAIN
JAIN Date:
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Bratindranath Banerjee 2001 (6) SCC.
16. Further, in Bharat Barrel v. Drum Manufacturing: AIR 1999 SC 1008, Hon'ble Supreme Court held that the accused has to rebut the presumption and mere denial of passing of consideration is no defence.
REASONS FOR DECISION
17. In the present matter, the signatures on the cheques in question are admitted, accordingly presumption u/s 118(a) r/w Section 139 NI Act is raised against the accused that the cheques in question were issued for a legally enforceable debt or liability and now it is on the accused to rebut the same.
18. The accused has primarily taken a defence that his liability towards the complainant is not to the extent of the amount mentioned in the cheques in question.
19. The accused in the reply to the legal demand notice Ex. CW- 1/M at para no. 3 stated that he gave Rs.3000/- to Rs.2500/- to Rs.1500/- to the complainant per day. The accused further in his plea of defence stated that he has paid several sums of money to the complainant and his liability is not equivalent to the amount mentioned on the cheques in question.
20. Though, the reply to the legal demand notice was received by the complainant and he also filed the same on record, however, nowhere in the complaint it was mentioned as to how much amount he received from the accused. The complaint as well as evidence affidavit is silent to this effect.
21. The complainant when was cross-examined, he stated that:
"Q I put to you that you have received regularly an amount of Rs. 3,000/- to 5,000/- without performing your duty against CC No. 193/2020 Digitally signed by Dilshad Khan Vs. Manoj Kumar NORMA NORMA JAIN Page No. 8 of 11 Date:
JAIN 2025.07.17 15:23:40 +0530 CNR No.: DLST02-014582-2022 the interest of the said investment? A. It is wrong. The accused never gave me more than Rs. 2,000/- to Rs. 2500/- and at the end of our dealings, the amount which he used to give came to be around Rs 500/-. The transactions have been mentioned at the right side of the whatsapp chat Mark CW1/CX-1 and the amount was also of my practice.
It is correct that I have not mentioned the same in my complaint. Q. I put to you that you received the reply of the legal demand notice, sent by the accused?
(Question is disallowed being matter of record as the reply has been filed by the complainant with the complaint.) It is wrong to suggest that despite mentioning in the said reply by the accused that he has paid Rs. 1500-3,000 per day to me i.e. a total sum of Rs. 6,50,000/- against the investment cum loan as per the partnership deed, I deliberately concealed the said fact in my complaint."
22. Ld. Counsel for the accused brought Whatsapp Chat Mark CW- 1/CX1 during the cross-examination of the complainant to show that the complainant himself sent a calculation of amount to the accused, however, he did not disclose the same to the Court. When the complainant was asked about the same, he stated that:
"At this stage, witness is confronted with Whatsapp chat dated 20.09.2021 which is now marked as Mark CW-1/CX1. This is not an account statement but the details of the transactions between me and the accused. In the very shown picture the left side portion is reflecting where accused Manoj Kumar had paid me and at right side it reflects the amount was pending against the accused person. (Vol. The account stated to be paid by the accused in the picture does not fully reflect the amount due which was to be paid by the accused to me as I was to be paid 30% of the profits in all services)."
23. As per the Whatsapp chat, the calculation was though sent by the complainant to the accused, however, nowhere in the complaint or evidence affidavit, the complainant mentioned the calculation of the profit amount which was either paid by the accused or which was due to be paid by him nor he himself brought the said Whatsapp Chat.
24. During the evidence, it came on record that the complainant CC No. 193/2020 Digitally Dilshad Khan Vs. Manoj Kumar signed by Page No. 9 of 11 NORMA JAIN NORMA Date:
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received Rs.5,75,000/- from the accused, when the complainant was asked about the same, he stated that:
"It is correct that I have not disclosed receiving the amount of Rs. 5,75,000/- as mentioned in Mark CW1/CX-1 as I did not have the paper with me and the same was with the accused, the said paper shows at the left side the amount which was received by me from the accused and at the right side the amount which was due to be paid by the accused as profit. It is wrong to suggest that I did not perform my duties as a partner diligently. It is further wrong to suggest that the amount of Rs. 6 Lakhs which were invested for the partnership was treated as a loan by me.
25. In the complaint, the complainant did not disclose as to how much amount he received from the accused nor any calculation was filed to show as to how much amount was due to be paid by the accused as profit to the complainant and what was exactly the liability of the accused after paying Rs.5,75,000/-.
26. The complainant stated that the accused paid the cheques in question at the time of dissolution of the partnership. As per him, first cheque was given for the investment made by him and the second and third cheques were given for the profit amount. No written document is there on record to ascertain as to how much amount was due to be paid by the accused to the complainant at the time when the partnership of the accused and the complainant was dissolved.
27. As the complainant approached this court stating that the accused has a liability of Rs.8,00,000/- towards him and during the evidence it came out that Rs.5,75,000/- already stood paid by the accused to the complainant and no explanation was provided why the same was not disclosed by the complainant nor any clarification was received as to whether this amount was received qua the profit and/or towards the investment made by the complainant or for both, the CC No. 193/2020 Digitally signed by Dilshad Khan Vs. Manoj Kumar NORMA NORMA JAIN Page No. 10 of 11 Date:
JAIN 2025.07.17 15:23:37 +0530 CNR No.: DLST02-014582-2022 accused has been successful in proving his defence and in rebutting the presumption.
28. Once the accused is successful in rebutting the presumption, the onus shifts on the complainant to prove his case beyond reasonable doubt which the complainant has failed to do.
FINAL ORDER
29. It is imperative to understand that in order to pronounce a conviction in a criminal case, the accused 'must be' guilty and not merely 'may be' guilty. For an accused to be guilty, guilt should not be based on mere surmises and conjectures but it should be based on cogent evidence.
30. In view of the above discussion and in view of the judgments of Hon'ble Superior Courts as stated above, the accused has been able to raise probable defence and has been able to prove his defence on the basis of preponderance of probabilities. Thus, the accused has been able to rebut the presumption under Section 118 read with Section 139 of NI Act. On the other hand, the complainant has failed to prove his case beyond reasonable doubt qua the accused in respect of the cheques in question.
31. In view of the aforesaid discussion, accused Manoj Kumar S/o Sh. Jitender Prasad is hereby acquitted of offence under Section 138 Digitally signed of Negotiable Instruments Act. JAIN by NORMA NORMA JAIN Date:
2025.07.17 15:23:27 +0530 (Norma Jain) Announced in Open Court JMFC (NI Act) Digital Court-01 on 17.07.2025 South, Saket Courts, New Delhi Note: This judgment contains 11 signed pages and each page has been signed by the undersigned. Digitally signed by NORMA NORMA JAIN JAIN Date:
2025.07.17 15:23:33 +0530 CC No. 193/2020 Dilshad Khan Vs. Manoj Kumar Page No. 11 of 11